Opinion
H045040
04-17-2018
In re J.R., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. A.M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 17JD024486)
Father (A.M.) appeals from the juvenile court's jurisdictional and dispositional orders removing daughter (J.R., born 2006) from her caregiver's care. In its orders, the juvenile court made two findings that father now contests on appeal: (1) there was clear and convincing evidence that placing daughter with father would be to her detriment and (2) the notices sent by the Department of Family and Children's Services (Department) pursuant to the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) were adequate. Father argues the juvenile court's finding regarding daughter's placement with him was superfluous and erroneous, because daughter was not in his care at the time the dependency proceedings were initiated and he did not request placement. He also claims the notices sent by the Department pursuant to ICWA were deficient. As we explain below, father forfeited his arguments about the juvenile court's detriment finding for failing to object below. Additionally, even if we were to consider his arguments on the merits, we would reject them. However, we agree with father that the ICWA notices were deficient. Thus, we reverse the matter for the limited purpose of perfecting notice under ICWA.
BACKGROUND
On May 11, 2017, the Department filed a petition under Welfare and Institutions Code section 300, subdivisions (a) (serious physical harm), (b)(1) (failure to protect), and (c) (serious emotional damage) alleging that daughter came within the juvenile court's jurisdiction. According to the petition, daughter's caretaker, Gregory, used a four-foot wooden paddle to hit daughter on her buttocks and thighs after she purchased a toy using her own money. Daughter had told father and mother (P.M.) about the abuse, but they did nothing to intervene. At the time, daughter had been residing with Gregory for the past four years. Father was homeless and was living out of his pickup truck. He voluntarily submitted to a drug test and tested positive for methamphetamines and amphetamines. Mother also had a history of substance abuse and chronic homelessness. The petition alleged both parents failed to meet daughter's healthcare needs, because she had not seen a doctor in several years and had not seen a dentist despite having tooth pain.
Unspecified statutory references are to the Welfare and Institutions Code.
Father was initially interviewed by the Department on May 10, 2017, during which he was asked about his Indian ancestry. Father said he had Cherokee ancestry from his father's side of his family and Blackfoot ancestry from his mother's side of his family. Father said he did not know if mother had any Indian ancestry. He did not provide information about mother's friends or relatives or how to locate her.
Father said he had temporary full legal and physical custody of daughter. He saw daughter approximately two times a month, with each visit lasting four or five hours. He agreed to have daughter live with Gregory after he and mother lost their apartment and became homeless. He knew that Gregory used physical discipline with daughter, but he believed Gregory did so when daughter misbehaved. He had previously told Gregory, "If you think you need to whack her on the butt, go ahead." Father was only intermittently able to provide financial assistance to daughter. He had spoken to Gregory about having him appointed as daughter's legal guardian, but father had not yet initiated the process in court. He denied any recent methamphetamine use and claimed his current positive result must have been due to his accidental ingestion of mother's Adderall medication.
Gregory was also interviewed by the Department. He acknowledged hitting daughter as a form of discipline. He submitted to a drug test voluntarily, which came back presumptively positive for methamphetamines.
The juvenile court held an initial hearing on the section 300 petition on May 12, 2017. Neither father nor mother were present. Following the hearing, the court found ICWA may apply and also concluded a prima facie showing had been made that daughter came within the juvenile court's jurisdiction. Daughter was ordered detained. Father was found to be daughter's presumed father, father and mother were authorized to have supervised visits, and any contact between daughter and Gregory were thereafter required to be supervised.
On June 5, 2017, both parents executed an ICWA-020 form describing their Indian ancestry. Mother indicated she "may have Indian ancestry" but did not provide any additional information. Father indicated he was or may be eligible for membership in the "Cherokee and Blackfoot-TN" tribes.
On June 27, 2017, Gregory filed a statement regarding parentage requesting the juvenile court find him to be daughter's parent. That same day, Gregory filed a petition under section 388 requesting daughter be permitted to remain with him under his care. Construing these two filings as a request to be adjudged as daughter's presumed parent, the juvenile court set the matter for a hearing and appointed Gregory counsel. On July 18, 2017, Gregory, through appointed counsel, filed a formal motion to establish presumed parenthood under Family Code sections 7611 and 7612. Father submitted a memorandum in concurrence supporting Gregory's motion. Daughter and mother also filed briefs supporting Gregory's motion.
The juvenile court held a hearing on Gregory's motion to establish parentage on August 4, 2017. Subsequently, the court found Gregory did not qualify for presumed parent status under Family Code section 7611, subdivision (d). The court noted that Gregory may have been a committed caretaker, but his care of daughter did not rise to the level of a presumed parent under the law.
On August 22, 2017, the Department filed a first amended section 300 petition, which removed the allegations under section 300, subdivision (a).
In preparation for the jurisdiction and disposition hearing, the Department prepared several reports which were later filed with the juvenile court. Earlier, the Department had prepared a jurisdiction/disposition report dated June 5, 2017. In this report, the Department recommended the juvenile court sustain the section 300 petition and continue disposition. According to the report, daughter was presently placed in a foster home.
The report included some additional information about mother's and father's Indian ancestry and described the efforts made by the Department to ascertain daughter's Indian heritage. The report described that the Department had spoken with mother on May 17, 2017. During that conversation, she agreed to meet with the Department but failed to attend the scheduled meeting. Thus, the Department was unable to discern whether mother had Indian ancestry. The Department, however, spoke with daughter's maternal great grandmother, who said she had Cherokee and Blackfoot Indian ancestry through her grandmother's side of the family. The Department also spoke with daughter's maternal grandmother, who said she had Cherokee and Blackfoot Indian ancestry through her grandmother. The maternal grandmother said she did not have contact with child's maternal grandfather and did not know if he had Indian ancestry.
On May 24, 2017, the Department sent ICWA notices to the Cherokee tribes, but ICWA notices were not sent to the Blackfoot tribes since they are not federally recognized tribes. Ultimately, notices were also sent to the Blackfeet Tribe, Eastern Band of Cherokee Indians, Cherokee Nation, and United Keetoowah Band of Cherokee Indians in Oklahoma on that same day.
The Department also filed an addendum report dated June 27, 2017, which recommended that both parents receive family reunification services. The report noted that father had provided additional information regarding his Indian ancestry, which was included on the ICWA-030 forms the Department sent on June 28, 2017, to the Blackfeet Tribe and the Seminole Nation. According to the attachment, daughter's paternal grandfather had lived and died on the Round Valley Indian Reservation in Mendocino County. On June 28, 2017, the Department sent additional ICWA notices to the Blackfeet Tribe of Montana, Seminole Nation of Oklahoma, Seminole Tribe of Florida, Eastern Band of Cherokee Indians, Cherokee Nation, and United Keetoowah Band of Cherokee Indians in Oklahoma. The notices indicated daughter may be eligible for membership in the Cherokee Seminole, or Blackfeet tribes. The notice also indicated the name of mother's biological mother (daughter's maternal grandmother) and her former address, but had no information about her current address. It had no information for mother's biological father (child's maternal grandfather) aside from his name. A notice was not sent to the Round Valley Indian tribe.
The Department prepared a third addendum report dated August 4, 2017, which detailed the responses it received from the ICWA notices it had sent. The Department had received responses from the Blackfeet Tribe of Montana, Seminole Nation of Oklahoma, Seminole Tribe of Florida, United Keetoowah Band of Cherokee Indians in Oklahoma, Eastern Band of Cherokee Indians, and Cherokee Nation of Oklahoma indicating that daughter was not enrolled or eligible for membership.
Finally, the Department prepared a fourth addendum report dated August 25, 2017. The report recommended the juvenile court sustain the first amended petition, find that daughter came within the juvenile court's jurisdiction, and grant reunification services to both parents. The report also recommended the juvenile court find "[b]y clear and convincing evidence, placement with the previously noncustodial parent would be detrimental to the child's safety, protection, or physical or emotional well-being."
On August 25, 2017, the juvenile court held a jurisdiction and disposition hearing, during which it considered the reports submitted by the Department. That same day, the Department filed a second amended petition. The second amended petition amended the allegations under section 300, subdivision (b)(1) to reflect that Gregory used "excessive & inappropriate physical discipline" and further amended the allegations under subdivision (b)(4) to state that father had a history of substance "use" instead of "abuse," and he was unable to care for daughter "at this time."
Father submitted on the amended petition for jurisdiction. Father's counsel told the court she had explained the Department's recommendations with respect to disposition and reunification services with father. Included in the Department's recommendations was the recommendation that the court find by clear and convincing evidence that placement with father would be detrimental to daughter's safety, protection, or physical or emotional well-being. Thereafter, father also submitted on disposition.
Subsequently, the juvenile court made its orders regarding disposition. It found that notice had been proper under ICWA, clear and convincing evidence supported daughter's removal from Gregory's care, and clear and convincing evidence supported not placing daughter with either of her noncustodial parents. Reunification services were ordered for both parents. Father appealed.
DISCUSSION
1. Father's Arguments Pertaining to the Juvenile Court's Detriment Finding are Either Forfeited or Meritless
Father argues the trial court unnecessarily—and erroneously—found that placing daughter with him would be detrimental, because he was not residing with daughter at the time the dependency petition was filed and he did not seek custody as a noncustodial parent.
On appeal, father acknowledges he did not object to the court's dispositional orders at any point in the proceedings below, despite having the opportunity to do so. In its fourth addendum report, the Department had recommended the juvenile court find that placing daughter with him would be to her detriment. During the jurisdictional and dispositional hearing, father's attorney indicated he had spoken to father about the recommendations that were being made by the Department, and father chose to submit on the Department's reports. Thereafter, when the juvenile court made its dispositional order, it incorporated the Department's recommended detriment finding. Father made no objection at the time.
Ordinarily, "a reviewing court . . . will not consider a challenge to a ruling if an objection could have been but was not made in the trial court." (In re S.B. (2004) 32 Cal.4th 1287, 1293 (S.B.), superseded by statute on another ground as stated in In re M.R. (2005) 132 Cal.App.4th 269.) "Dependency matters are not exempt from this rule." (S.B., supra, at p. 1293.) However, "application of the forfeiture rule is not automatic . . . [though] the appellate court's discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue." (Ibid.) "In dependency cases, because the proceedings involve the well-being of children, considerations such as permanency and stability are of paramount importance." (In re C.M. (2017) 15 Cal.App.5th 376, 385.)
For example, in S.B., the California Supreme Court determined the appellate court did not err when it considered a mother's challenge to a visitation order that permitted the child's legal guardians to make all decisions concerning the mother's visits with the child despite the mother's failure to object below. (S.B., supra, 32 Cal.4th at p. 1293.) The Supreme Court determined the issue of whether a child's legal guardian could possess the authority to dictate whether a parent may visit his or her child was an important issue of law that was, at the time, dividing the appellate courts. (Id. at pp. 1292-1294.)
In contrast, the legal claim advanced by father here is neither new or an issue that is presently dividing the courts of appeal. Father frames his argument as a legal challenge regarding the statutory interpretation of the removal statute, former section 361, and section 361.2, and presents an important issue over whether these statutes may apply in cases when a parent is not in custody of the child and does not request custody. We disagree with father's interpretation.
First, we agree the statutes cited by father do not apply under the circumstances presented in this case. Former section 361, subdivision (c) provides in pertinent part that "[a] dependent child shall not be taken from the physical custody of his or her parents with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances listed in [former section 361, subdivision (c),] paragraphs (1) to (5)." (Italics added.) The circumstances listed in former section 361, subdivision (c), paragraphs (1) through (5) include circumstances such as substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child.
Section 361 was recently amended to add subdivision (d). (Stats. 2017, ch. 665 (A.B. 1332), § 1, eff. Jan , 2018.) Section 361, subdivision (d) now provides that "[a] dependent child shall not be taken from the physical custody of his or her parents with whom the child did not reside at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence that there would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child for the parent to live with the child or otherwise exercise the parent's right to physical custody, and there are no reasonable means by which the child's physical and emotional health can be protected without removing the child from the child's parent's physical custody." Section 361, subdivision (d) was not in effect at the time the juvenile court made its jurisdictional and dispositional orders.
Under section 361.2, subdivision (a), when a court removes a child under section 361, it "shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child." (Italics added.)
Preliminarily, we note that the juvenile court did not specifically reference either former section 361 or section 361.2 during the hearing. However, the Department recommended the court find that "[b]y clear and convincing evidence, placement with the previous noncustodial parent would be detrimental to the child's safety, protection, or physical or emotional well-being." During the dispositional hearing, the juvenile court found "clear and convincing evidence supports not placing [daughter] with either of her previous noncustodial parents." The language of the juvenile court's finding tracks the findings of detriment that a court must make when deciding not to place a child with a noncustodial parent as set forth under section 361.2 and the finding of detriment that must be made when a child is removed from a parent's custody as set forth under former section 361.
The plain language of both former section 361 and section 361.2 render them inapplicable to this case. As father notes, daughter was not in his physical custody at the time of the dependency proceedings. He also did not request placement below. Thus, we agree it would have been erroneous for the juvenile court to order daughter removed from father's physical custody. The juvenile court, however, made no such removal orders. The only removal order made by the court was the order removing daughter from Gregory, not father.
With respect to father, the court only made a finding that placement with him would be detrimental to daughter's well-being. Although this finding may not have been necessary under the circumstances, we do not believe it creates an important legal issue that we should review despite father's lack of objection below. Essentially, father's argument is that the juvenile court made a superfluous finding that must be reversed. Courts have regularly applied the waiver or forfeiture doctrine in dependency cases when the arguments do not raise an important legal issue. (See In re L.Y.L. (2002) 101 Cal.App.4th 942, 956, fn. 8 [inadequacy of assessment report]; In re S.O. (2002) 103 Cal.App.4th 453, 459, 460 [failure to raise sufficiency of dependency petition].) We similarly find that father's claim about the juvenile court's detriment findings are similarly forfeited.
Additionally, even if we were to reach father's arguments, we would find they fail on the merits. Father argues that In re Dakota J. (2015) 242 Cal.App.4th 619 (Dakota J.) and In re B.L. (2012) 204 Cal.App.4th 1111 (B.L.) are applicable to his case. Father claims that under both these cases, even if evidence supported the juvenile court's detriment findings, the removal statute (former § 361) was erroneously applied by the juvenile court as he was not in custody of daughter at the time the dependency proceedings were initiated.
We reiterate that father's claims regarding the application of the removal statute are not well-founded, because the juvenile court did not make any removal orders pertaining to father. For the same reasons, the cases cited by father are inapplicable. In Dakota J., the appellate court held the juvenile court erred in applying former section 361 and removing two children who were not residing with the mother at the time of the dependency from the mother. (Dakota J., supra, 242 Cal.App.4th at pp. 627, 629-630.) In B.L., the parents argued they were entitled to reunification services under section 361.5, but the child in the dependency proceeding had not been removed from his parents' custody. (B.L., supra, 204 Cal.App.4th at p. 1115.) Section 361.5 authorizes reunification services for parents or guardians when a child is removed from their custody pursuant to section 361. Father argues both Dakota J. and B.L. stand for the proposition that the removal statute cannot be applied in cases where the child is not in the parent's custody to begin with. However, since the juvenile court made no such removal orders against father, this is not a case where the juvenile court misapplied the law.
Lastly, we note that even though the juvenile court's finding was superfluous, it was harmless. Father argues he may fail in reunification services, and the juvenile court may later be required to select a permanent plan for daughter under section 366.26. Father therefore claims that termination of his parental rights may be at stake due to the juvenile court's detriment finding, citing to In re Marquis D. (1995) 38 Cal.App.4th 1813, 1829 (Marquis D.).
We find father's interpretation of Marquis D. to be flawed. The Marquis D. court noted that the initial denial of placement with a noncustodial parent under section 361.2 may set the stage "for the court to ultimately terminate parental rights," because at future review hearings "the court may deny return of the child to the parent's physical custody based on a finding supported only by a preponderance of the evidence that return would create a substantial risk of detriment to the child's physical or emotional well-being," instead of by a heightened standard of clear and convincing evidence. (Marquis D., supra, 38 Cal.App.4th at p. 1829.)
The factual circumstances and legal issues contemplated by Marquis D. are markedly different than those present in this case. The appellate court in Marquis D. reversed the juvenile court's dispositional order after finding the court failed to make the detriment finding required under section 361.2 when it denied placement with the noncustodial father. In contrast, the juvenile court made an express—though superfluous—finding of detriment. It did not deny father placement without making necessary findings. Additionally, "[a]t each status review hearing, a parent who is the subject of a detriment finding is presumptively entitled to custody unless the agency proves detriment. (§§ 366.21, subds. (e) & (f), 366.22, subd. (a).) A prior detriment finding is not given preclusive effect at subsequent review hearings. (§ 366.22, subd. (a).)" (In re Nickolas T. (2013) 217 Cal.App.4th 1492, 1505.) Thus, if father seeks custody at further review hearings he will be entitled to it unless a new finding of detriment is made.
We note the juvenile dependency scheme does provide that some detriment findings may be considered by the court when it determines whether to terminate parental rights. Under section 366.26, subdivision (c)(1), a finding "under Section 366.21 or 366.22, that the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights." Section 366.21 governs status review hearings and section 366.22 governs permanency review hearings. However, the detriment finding made by the court here was not made under either of these two statutes. There is nothing in section 366.26 that would permit a juvenile court to use a detriment finding made under former section 361 or section 361.2 as a basis to terminate parental rights.
We further find that the juvenile court's conclusion that clear and convincing evidence did not support placement of daughter with father was supported by substantial evidence. On appeal, "[w]e review the record in the light most favorable to the court's order to determine whether there is substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that placement would be detrimental to the child." (In re Patrick S. (2013) 218 Cal.App.4th 1254, 1262.) The record reflects that father and mother had allowed daughter to live with Gregory, father was aware that Gregory used corporal punishment on daughter yet did not intervene, father tested positive for illegal drugs, father was homeless, and father was unable to regularly provide financial support for daughter.
In sum, even if we were to address father's claims on the merits, we see no reason why the juvenile court's orders should be reversed so that its unnecessary findings—which were supported by the record and ultimately caused father no harm—should be removed. (See In re Daniel C.H. (1990) 220 Cal.App.3d 814, 837.)
2. Limited Reversal is Necessary to Correct Defects in ICWA Notice
Next, father argues reversal is necessary, because the Department and the juvenile court did not conduct a sufficient investigation to determine whether ICWA applies, and the Department provided incomplete notices to the necessary tribes. Specifically, father argues notice should have been provided to the Round Valley Indian Tribe, because the Department had information that the paternal grandfather lived and died on the reservation. Furthermore, father argues further investigation into and additional information about the maternal relatives should have been included in the ICWA notice. As we explain, we agree.
"ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards a state court must follow before removing an Indian child from his or her family. [Citations.] For purposes of ICWA, an ' "Indian child" ' is a child who is either a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (In re Michael V. (2016) 3 Cal.App.5th 225, 231-232.)
Thus, ICWA establishes minimum standards requiring notice to Indian tribes for any involuntary proceeding in state court to place a child in foster care or to terminate parental rights if the court either knows or has reason to believe the child is an Indian child. (In re Isaiah W. (2016) 1 Cal.5th 1, 8.) The notices required by ICWA serve two purposes: to determine whether a child is an Indian child and to ensure an Indian tribe knows it has a right to intervene or exercise jurisdiction in custody proceedings involving Indian children. (Id. at pp. 8-9.)
The requirements of ICWA are codified in California law. Under section 224.3, subdivision (a), "[t]he court, county welfare department, and the probation department have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300, 601, or 602 is to be, or has been, filed is or may be an Indian child in all dependency proceedings and in any juvenile wardship proceedings if the child is at risk of entering foster care or is in foster care." Section 224.3, subdivision (b) describes certain circumstances that may provide reason to know a child is an Indian child, such as if the child's family provides information suggesting the child is a member or eligible for membership in a tribe. If the court, social worker, or probation officer knows or has reason to know that an Indian child is involved in a dependency proceeding, notice must be provided to all tribes in which a child may be a member or be eligible for membership. (§ 224.2, subd. (a)(3).) The notice must include biographical and family history of the child, if known, including names of biological parents, grandparents, great-grandparents, including current and former addresses, places of birth and death, and other identifying information. (Id., subd. (a)(5).) As part of its duty to inquire about a child's Indian ancestry, the Department must interview extended family members. (§ 224.3, subd. (c).)
"ICWA notices are strictly construed. [Citation.] Generally, defective notice is prejudicial and requires reversal. [Citation.] Because the right to notice belongs to the Indian tribes, a parent can raise the defect on appeal notwithstanding his or her failure to raise it below." (In re Amber F. (2007) 150 Cal.App.4th 1152, 1155.)
We agree with father that the ICWA notices sent by the Department were incomplete. Specifically, the ICWA notice sent on June 28, 2017, indicated the paternal grandfather lived and died on the Round Valley Indian Reservation in Mendocino County. However, notice was not sent to the Round Valley Indian tribe, which the Department notes is a federally recognized tribe. The Department concedes, and we agree, that failure to send a notice to the Round Valley Indian tribe was error. Additionally, several maternal relatives that were interviewed by the Department for other reasons (such as a maternal aunt) or were present at court proceedings were not asked to provide information about mother's Indian ancestry. Furthermore, readily ascertainable information, such as maternal grandmother's current address, was left out of the ICWA notices sent by the Department even though the record reflects the Department spoke with the maternal grandmother over the phone on June 2, 2017.
For these reasons, we find the notices provided by the Department did not comply with ICWA. Since we find no other error, we will remand the matter for the limited purpose of complying with ICWA.
DISPOSITION
The juvenile court's order is reversed for the limited purpose of ensuring compliance with the inquiry and notice requirements of ICWA. On remand, the juvenile court shall order the Department to fully comply with ICWA's notice requirements. If, after proper notice is given, any tribes identify the child as an Indian child, the juvenile court shall proceed in accordance with ICWA. If no tribes identify child as an Indian child, the juvenile court shall reinstate its orders.
/s/_________
Premo, Acting P.J. WE CONCUR: /s/_________
Grover, J. /s/_________
Greenwood, J.