Opinion
H050031
03-09-2023
In re H.S. et al., Persons Coming Under the Juvenile Court Law. v. C.M., Defendant and Appellant. SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Santa Cruz County Super. Ct. Nos. 20JU00252, 20JU00253)
Wilson, J.
In this dependency proceeding, C.M. (mother) appeals the juvenile court's 12-month review orders continuing reunification services and her children's placement in foster care. C.M. argues she was denied due process because a conflict of interest undermined the dependency proceedings-her children's foster father was a district attorney in the same office that was simultaneously prosecuting her for the crimes which formed the basis for her children's detention. She also contends the juvenile court erred in finding that reasonable reunification services had been provided to her and that adequate notices had been issued pursuant to the Indian Child Welfare Act (ICWA).
We determine there was a potential conflict of interest which should have been disclosed earlier in the proceedings and that C.M. was denied due process because it was not. However, we also conclude the due process denial was harmless here under any applicable standard. We further find that C.M. forfeited her arguments regarding the reunification services by not raising them below and that she has not demonstrated the ICWA notices were inadequate. Accordingly, we affirm.
I. Factual and Procedural Background
A. Minors' detention
On November 16, 2020, Santa Cruz police officers conducted a welfare check at C.M.'s apartment in Santa Cruz in response to a report of general neglect, including that C.M. appeared drunk and wobbly while caring for her three minor children. Upon arrival, an officer knocked on the door several times and noted items scattered in front of the residence in an unorganized manner. The officer observed excessive garbage and belongings inside, as well as a pot of boiling water on the stove. C.M.'s 17-month old son O.S. was walking through the residence wearing only a t-shirt and the officer noticed a lesion on his left thigh.
C.M. then approached from the south side of the complex with her four-year-old daughter H.S. (hereafter, Ha.S.) in her arms. C.M. had a black substance under her nose, on her teeth and on her pants, which the officer suspected was residue from inhalant drug use. When asked about O.S. being left inside alone, C.M. stated she was going back inside. The officer instructed her to wait and had to detain her when she physically resisted while holding Ha.S. in her arms.
Once officers entered the residence, they observed O.S. had dirt on his face and a small scratch on his right nostril, while Ha.S. had a red abrasion on her left bicep and left forearm, and a vertical abrasion on the center of her neck, which she said were from C.M. "pinching her." The oldest child, 13-year-old Hu.S., was inside his bedroom with the door closed. He reported to the officers that C.M. had grabbed him by the arm and punched him once in the stomach a few days earlier. Inside the residence, the officers also found "Dust Off," a compressed gas aerosol commonly used as an inhalant drug. According to the officers, the residence as a whole was filthy, uninhabitable, and lacked healthy conditions for the children.
The officers believed the children suffered serious physical and mental harm due to C.M. being physical with them and failing to provide adequate supervision and protection. Accordingly, they contacted respondent Santa Cruz County Human Services Department (Department) and detained the children pursuant to Welfare and Institutions Code section 300.
Undesignated statutory references are to the Welfare and Institutions Code.
Two social workers arrived and noticed that the exterior entryway was cluttered with a mixture of garbage, toys, and other items. Pet food was scattered throughout, and crushed into crumbs and small bits in various locations. The floors were covered with excessive dirt and piles of dirty laundry within each room and the only bathtub in the home was plugged up with several inches of water and various items floating in it. Human excrement and vomit lay on bed sheets on the floor; there was no food in the refrigerator; the sink was full of dirty dishes; and there were rodent droppings on the floor.
Hu.S. shared that C.M. does not get along well with the neighbors and that the previous month she had pulled a knife out in front of one neighbor who had asked her to move her car. He added that neighbors and friends of his mother have told him C.M. is a drug user. He said that C.M. had dropped O.S. on his head "so many times, he has lost count." Hu.S. told the social workers that his family did not have food in the home and did not get their usual food stamp assistance that month because his parents had not followed through on renewing the benefits.
The children were placed with an emergency licensed foster home in Santa Cruz County (County) on November 16, 2020. C.M. was arrested and taken to County jail.
On November 17, 2020, the social workers met separately with the children's father R.S.; with C.M.; and with the children at their emergency foster home. R.S. reported that he and C.M. were in the process of separating and that he wanted to secure his own residence so he could keep the children safe. He expressed concerns regarding C.M.'s mental health and said she denies she has any issues and refuses to seek professional treatment, despite his requests. C.M. has told him she believes the social workers want to kill her and that the local police department is "in on it."
The social workers then met with C.M. at the County jail. C.M. stated that she has no history of mental health problems and that, while she has a history of substance abuse, she last used methamphetamine about 10 years earlier.
The social workers next visited the children at their emergency foster home. Hu.S. reported that he had noticed a change in his mother approximately nine to 10 months earlier, when she "stopped being a mom." He said that she no longer cleans, cooks or takes care of him and his siblings as she used to, and instead cries a lot and "has not been in the right mind." She will often say someone is trying to kill her, bomb her car or poison her. Hu.S. stated that they have never gone without electricity before, but they have gone without water in the past. He said they currently do not have food stamps and usually C.M. will go to local food banks, but lately she has not been going.
B. C.M.'s arrest and charges
As noted above, C.M. was arrested on November 16, 2020. She was charged with one count of willful cruelty to a child: possible injury/death (Pen. Code, § 273a, subd. (a)), a felony; and one count of obstructing or resisting a police officer (Pen. Code, § 148, subd. (a)), a misdemeanor. She was arraigned on November 18, 2020, and a criminal protective order was issued protecting the children from her. On June 25, 2021, C.M. was held to answer for the charges at a preliminary hearing.
The record does not indicate the current status of the criminal case against C.M.
C. Petitions
The Department filed juvenile dependency petitions for the children on November 18, 2020. With respect to Ha.S. and O.S., the petitions alleged that the children fell within the provisions of section 300, subdivisions (a) serious physical harm; (b) failure to protect; (c) serious emotional damage; and (j) abuse of sibling. As to Hu.S., the petition alleged that he fell within the provisions of subdivisions (a), (b), and (c).
Although the 12-month review orders that C.M. appeals in this case pertained only to Ha.S. and O.S., we include details regarding Hu.S. for context.
In support of the section 300, subdivision (a) provisions, the petitions alleged that the children have suffered, or are at substantial risk of suffering, serious physical harm inflicted by their mother C.M. On November 12, 2020, C.M. "slap-punched" and "shoved" Hu.S. in his stomach, left shoulder and face, and pushed him to the ground. On November 16, 2020, Ha.S. had red abrasions on her left bicep, left forearm, and on the lower part of her neck, from C.M. pinching her. O.S. had an irritated abrasion on his left inner thigh.
In support of the section 300, subdivision (b), provisions, the petitions alleged that C.M. suffers from unstable and/or untreated mental health issues, which negatively impact her ability to provide regular and appropriate care for her children, and put the children at substantial risk of serious physical harm. On November 12, 2020, C.M. yelled at Hu.S. that his uncle was planning to "murder her and steal her babies." C.M. often tells Hu.S. that "someone is trying to kill her," and she once threatened her friend with a knife. On November 16, 2020, law enforcement determined the family's home to be hazardous to the health and safety of the children, and uninhabitable.
The petitions further alleged that C.M. abuses substances including inhalants, which negatively impacts her ability to provide safe and appropriate care for her children. C.M. began using alcohol when she was 11 years old and methamphetamines when she was 19. She has had child welfare services interventions regarding her substance abuse since 2011 and was offered court-ordered services from November 2011 to August 2013. The petitions concluded that C.M.'s substance abuse, coupled with her undertreated mental health, significantly increase the risk of harm to her children.
The petition also alleged that the children's father R.S. failed to protect them from the behavior of their mother. R.S. is aware of C.M.'s substance abuse and mental health struggles, which impact her ability to provide safe and appropriate care and a safe home environment for the children. R.S. stated that on October 19, 2020, C.M. had chased Hu.S. with a knife and threatened to kill everybody and chased the neighbors into the parking lot. He said that C.M. is a danger to him and to the children. On November 12, 2020, R.S. told police that C.M. had hit Hu.S. and that she "needed help." Despite that knowledge, R.S. continued to leave the children home alone with C.M.
With respect to the section 300, subdivision (c) provisions, the petitions alleged that the children are at substantial risk of suffering severe emotional damage due to exposure to domestic violence between their parents, who have a history of such violence including a March 2020 arrest of R.S. for violence against C.M. after pushing her to get into the home, during which R.S. says C.M. hit him. In addition, on October 19, 2020, R.S. stated that C.M. "got crazy on me and I had to leave."
Lastly, the petitions for Ha.S. and O.S. alleged, with respect to section 300, subdivision (j), that Hu.S. had been abused and/or neglected in connection with a previous dependency from November 2011 to August 2013, wherein C.M. and R.S. were provided with court-ordered services due to concerns regarding substance abuse and domestic violence.
Detention hearings were held on November 19, 2020. The juvenile court found a prima facie showing had been made that the children fell within section 300 and that continuance of the children in the home of the parents was contrary to the children's welfare, and detention of the children was necessary because there was a substantial danger to the physical and emotional health of the children, and there were no reasonable means by which they could be protected without removing them from the parent's physical custody. Placement and care of the children was temporarily vested with the Department pending the disposition or further order of the court. The court found that reasonable efforts had been made to prevent the need for removal of the children from the home.
The juvenile court also ordered that visitation between parents and children shall occur a minimum of three times per week, supervised, and that as long as the minimum level of visitation is offered, the social worker shall have discretion to adjust the frequency, duration and supervision.
D. Minors' placement with foster family
After being placed in an emergency foster home on November 16, 2020, the children were relocated on November 23 or 24 after one of the emergency foster parents began experiencing symptoms from COVID-19. The Department developed a safety plan with R.S. where he would care for the children at a COVID-19 shelter with the understanding that the Department would possibly change the recommendation for him to family maintenance. On December 2, 2020, the children returned to foster care due to concerns with R.S.'s ability to provide care for the children. At that point, the children were placed together in a licensed resource home in Santa Cruz County with foster parents (foster parents).
E. Jurisdictional/disposition hearing
Jurisdictional and disposition hearings were held on December 22, 2020. The Department's jurisdictional report set forth the information summarized above, and provided additional details regarding numerous prior incidents involving neglect, emotional abuse, substance abuse and domestic violence.
The report also summarized interactions with R.S. and C.M. since the initial detention on November 16, 2020. Social workers reported that C.M. appeared under the influence when they met with her on December 11, 2020, and that she had not been visiting the children despite the visitation plan established at the November 19, 2020 detention hearing. Social workers met with R.S. in person outside the family home on December 11, 2020. R.S. claimed C.M. had locked him out of the residence; he believed she was using methamphetamine and expressed his desire for her to obtain treatment.
The Department recommended that the court grant the petitions, and that the parents receive family reunification services and psychological evaluations. The report attached a child welfare services initial case plan (case plan) that would include services for counseling and mental health, psychological/psychiatric evaluations, general counseling, education, family preservation, and substance abuse treatment, and set forth a visitation schedule. The Department submitted a subsequent case plan on December 21, 2020.
R.S. submitted to jurisdiction based on the information in the report, but C.M. requested a contested jurisdictional hearing. The court then set a settlement conference for February 2, 2021 and a contested jurisdictional and disposition hearing for February 19, 2021. The court also ordered psychological evaluations for R.S. and C.M. and continued supervised visitation with the children for a minimum of three times per week.
At the contested hearing on February 19, 2021, C.M. submitted on the Department's December 15, 2020 report. The juvenile court sustained the allegations in the petitions and adopted the recommendations in the Department's report, including ordering family reunification services for R.S. and C.M. and declaring the children dependents of the court. The court ordered implementation of the case plan and made the following visitation orders: as to C.M. and the children, "[v]isitation . . . shall occur a minimum of three times per week, supervised. So long as the minimum level of court ordered visitation is offered, the social worker shall have [the] discretion to adjust the frequency and duration, as well as supervision of visits."
The juvenile court set interim review hearings for May 18, 2021 and the six-month review hearings for August 17, 2021.
F. Indian Child Welfare Act status
At the time of the initial detention hearings on November 19, 2020, C.M. submitted a parental notification of Indian status pursuant to the ICWA. She checked the box indicating that she is, "or may be a member of, or eligible for membership in," the Cherokee tribe. She also wrote in the margin, "maternal side - [MOTHER'S NAME] . . . Oklahoma . . . not sure if any of them are registered . . . went to powwows when young." R.S. indicated on his form that he had no Indian status. The juvenile court found that ICWA may apply and ordered that proper notice be given to the appropriate tribes and the Bureau of Indian Affairs (Bureau).
The Department then sent notice to three Cherokee tribes and the Bureau. It informed the court that the social worker had attempted to obtain family information from C.M. for the ICWA noticing purposes, but she was not cooperative. The social worker then spoke with the maternal aunt and maternal grandmother who stated that the Cherokee affiliation is on the maternal grandmother's father's side of the family, but that she has no documentation of anything.
An ICWA compliance hearing was held on January 12, 2021. The juvenile court found there was no reason to know or believe that ICWA applied in this case, but ordered the Department to continue to make ICWA inquiries.
In advance of the February 19, 2021 contested jurisdictional hearing, the Department submitted additional ICWA information to the court as part of the social worker's status report. The social worker had spoken with the maternal aunt on December 10, 2020, who said there were rumors of possible Cherokee in the family and that she recalled going to a powwow as a child. The social worker also spoke with a maternal uncle on February 1, 2020, who said they have no evidence of Native American ancestry and that "it was only word of mouth." He had taken a DNA test and there was no Native American ancestry. The maternal grandmother said the children and their parents are not registered tribal members eligible for membership.
Notices were sent to three Cherokee tribes: United Keetoowah Band of Cherokee Indians, Eastern Band of Cherokee Indians, and the Cherokee Nation. All three tribes responded and stated that the minors were neither members, nor eligible for membership, in their tribes. On September 14, 2021, the juvenile court found no reason to believe that the minors were Indian children and determined ICWA did not apply.
G. Interim and six-month review hearings
At the interim review hearings on May 18, 2021, the Department reported that R.S. had been engaging and visiting with Ha.S. and O.S. three times per week, and one time per week with Hu.S. R.S. had complied with drug testing and completed co-parenting classes and kept in touch with his social workers. The Department reported that C.M. was currently at Janus Perinatal, an inpatient mother-child substance use disorder program.
Prior to the August 17, 2021 six-month review hearing, the Department requested a court order for additional neuropsychological evaluation of C.M. The social worker reported that C.M. claimed to have suffered a head injury and was experiencing auditory memory loss. According to the social worker, C.M. did not seem to recall information from their previous meetings.
The Department's status report in advance of the six-month review hearing recommended continuation of family reunification services. C.M. continued to reside at Janus Perinatal, was engaging in individual therapy, one-on-one parent coaching through the Leaps and Bounds parent coaching program, substance use testing and use disorder services, and family preservation court. She had been out of touch with the social workers from the beginning of the dependency proceedings until re-engaging in services in April 2021, after which she had been communicating regularly. C.M. had not visited with the children between January and May 2, 2021.
C.M. was arrested for public intoxication in March 2021. Although that fact does not appear to have been disclosed in the six-month review report submitted in August 2021, it was included in the 12-month review report submitted in January 2022.
The report summarized the services that had been provided to C.M. and her progress in satisfying the objectives and goals in the case plan. It concluded that, although C.M. had not engaged in services until April 2021, since that time she had embraced her case plan and engaged in a recovery program. C.M. was "still struggling with the totality of the incidents that brought the children into care [and she] is working with her support team to gain clarity around the events in November [2020]." The report concluded that C.M. had made progress on her case plan objectives, but had not fully addressed the safety threats that led to the court involvement and therefore cannot ensure the safety and well-being of the children if they were returned to her care. It added that C.M. "expressed a strong commitment to reunifying with her children and she is to be congratulated on the efforts she has made so far. It is imperative that [C.M.] stay on track and not only consistently engage[] in her services, but that she continue[] to make progress in addressing the reasons for the Department's involvement."
With respect to R.S., the report stated that he had made progress on his case plan by maintaining housing, participating consistently in visitation, attending individual therapy, completing a psychological evaluation and substance use disorder services assessment, and partnering with the resource parents and building a positive relationship with them. It added, though, that R.S. "still struggles to see his role in why his children were initially placed in foster care and has made only minimal progress in making the behavioral changes necessary to provide a minimal level [of] care for his children." Accordingly, the Department recommended that the children continue as dependents of the court and that R.S. continue to receive family reunification services as well.
At the six-month review hearing on August 17, 2021, C.M. and R.S. submitted based on the Department's recommendation to continue services, but minor's counsel disagreed and requested a settlement conference. The matter was continued to September 14, 2021, at which point the juvenile court ordered reunification services to continue.
H. De facto parent request and recusal motion
On September 27, 2021, foster parents filed a "de facto parent request" for Ha.S. and O.S. The juvenile court held a hearing on the request on November 2, 2021 and granted it. Both R.S. and C.M. agreed with the request.
" 'De facto parent' means a person who has been found by the court to have assumed, on a day-to-day basis, the role of parent, fulfilling both the child's physical and psychological needs for care and affection, and who has assumed that role for a substantial period." (Cal. Rules of Court, rule 5.502(10).) De facto parents may be present at hearings, be represented by counsel, and present evidence. (Cal. Rules of Court, rule 5.534(a).)
At the November 2 hearing, the juvenile court judge disclosed that he knew foster father professionally and knew what he does for a living. The judge stated: "The final issue is I am familiar with [foster father]. I've had a smattering of prior dealings with him. I don't think he has previously formally appeared. [Foster mother] has certainly appeared in court on these matters at least a couple of times that I recall and the fact that I've had some previous past professional interactions with [foster father] I do not think in any way shape or form would lead for me to need to recuse myself from further proceedings, but I felt I did have an obligation to indicate that I am familiar with [foster father] and that we've had past professional interactions."
On November 9, 2021, C.M.'s criminal attorney-representing her in the criminal action resulting from the November 16, 2020 incident at which the children were detained-e-mailed foster father, informing him that she intended to file a recusal motion on the entire Santa Cruz County District Attorney's office regarding the prosecution of C.M. The criminal attorney stated that she understood foster father was fostering C.M.'s three children and had "gained de facto parental status." She posed 22 questions to foster father regarding his and foster mother's fostering of the children, the district attorney's office's prosecution of C.M., and communications regarding those matters.
C.M. contends that the recusal motion was granted. As evidence, she cites a January 7, 2022 minute order from C.M.'s criminal action showing an Attorney General present, rather than a Santa Cruz County district attorney. There is no other evidence in the record to support the assertion.
I. 12-month review
The Department submitted its 12-month review of dependency status reports on January 24, 2022, in advance of the 12-month review hearing. They recommended that the children continue as dependents of the court, that C.M. and R.S. continue to receive reunification services for Ha.S. and O.S., and that the parents receive family maintenance services for Hu.S. with full physical custody to R.S. and shared legal custody to R.S. and C.M.
C.M. was residing at a sober living facility while working with an organization to find more permanent housing. She had been attending individual therapy and making progress with her goals, including having completed her in-patient treatment program and graduated her parenting class. She was also submitting to drug testing two times a week and attending at least three alcoholics anonymous meetings per week. She had recently advanced to phase three in family preservation court and continued to participate in the "Leaps &Bounds" parent coaching program. "Without fail," C.M. had showed up to all her appointments and visits with the children on time. She had been sober since April 2021 and had been a "huge advocate for herself to be more involved" in her children's medical appointments and education. However, C.M.'s history with substance abuse and her prior behavior had caused Hu.S. to not want to meet with her, and had caused Ha.S. to experience negative emotions when visiting, which had caused some delay in C.M. moving forward in her visits. C.M. and Ha.S. had been making progress and she had started loosely supervised visits with her two youngest children.
R.S. was living in a two-bedroom apartment in Santa Cruz County with the assistance of a housing voucher. He was in a 30-day extended visit with Hu.S. and reported enjoying his time with him. R.S. was seeing the two youngest children under a supervised visitation status. He was attending therapy until late September when his referral was closed due to no shows. He was submitting to drug testing, but not consistently. R.S. shared with the social worker that he struggles to test due to health conditions. His medical issues have been a concern when caring for two small active children, and R.S. has agreed it would be difficult without the support of the foster parents. R.S. has received an abundance of support from the foster parents throughout the case and considers them part of his natural support system.
Hu.S. moved in with R.S. full time on January 18, 2022.
The Department's 12-month review report concluded: "Risk of further abuse or neglect to [the children] while in [C.M.'s] care is moderate to high. Unfortunately, [C.M.] continues to need additional time to address her mental health needs and establish a more trusting relationship with her children. This includes having a stronger understanding of the trauma caused by [C.M.] when using illegal substances and committing emotional and physical abuse. [¶] Risk of further abuse or neglect to [the children] while in [R.S.'s] care is moderate to high. [R.S.] needs to show the Department that he can consistently [drug test] and that his medical issues continue to be addressed. [R.S.] was given the children to care for at the start of the case and within a month he asked they be placed into foster care because his medical issues were making it hard [to] care for them.... [R.S.] has been honest . . . that he needs additional time to further address his medical issues and he is making progress. [R.S.] has shown the Department that he can care for [Hu.S.] and wants to have him home."
The court-appointed special advocate (CASA) for Ha.S. and O.S. submitted reports to the court as well. With respect to O.S., the CASA stated that, "[C.M.] has been sober since April 2021 and that is an amazing accomplishment, but from my understanding she is still not willing to or is incapable of understanding how her behavior caused her [c]hildren to be taken out of her care. [¶] I believe helping the resource mom and [C.M.] find a middle ground around visitations together, would help the relationship and attachment become stronger for [C.M.] and [Ha.S. and O.S.] Since they are older, they may be more comfortable having more visitation with [C.M.] if the resource mom also feels comfortable with it and encourages it."
As to Ha.S., the CASA stated, "[w]ith regards to [C.M.]-this is the most difficult conversation. [ C.M.] is interested in engaging with [Ha.S.] and getting full custody, but it seems like visits cause trauma to [Ha.S.], to varying degrees depending on who is commenting-[Hu.S.], [r]esource mom, interim resource mom, and [Ha.S.]'s teacher all tell me [Ha.S.] has experienced harmful trauma. The parent center visit supervisors indicate [Ha.S.]'s hesitancy to see [C.M.] still exists but has been getting much less. [¶] It has been well over a year since [Ha.S.] was removed from [C.M.] She has lived over a year with the resource mom and has done well. How much longer will it take for [C.M.] to be able to be a full-time parent, or will she ever, and will [Ha.S.] endure trauma through this process. [C.M.] has a long history of drug use and this is not the first time her child(ren) has been removed from her. My biggest concern is how much more trauma [Ha.S.] will experience from the reunification process, and will she receive sufficient comfort and help to address the anguish. [C.M.] needs to maintain sobriety and learn how to properly care for and parent [Ha.S.] on her own since she and [R.S.] are separated, and [Hu.S.] will not be present to help protect [Ha.S.] if needed."
Foster parents also submitted caregiver information reports for Ha.S. and O.S. in advance of the 12-month review hearing, on February 7, 2022. The reports attached a letter from foster mother, in which she asked the court "that any further extension not be granted [as] I do not believe it would be the best interest for [the children]." She explained that her "concern is that [C.M.] gives no thought to and has no consideration/awareness of how her actions affect others; throughout the duration of the children's placement, C.M. has always acted in accordance with whatever she wants and regardless of how her actions may affect her children or the persons trying to help her children."
Foster mother claimed that between December 2020 and February 2021, shortly after the children had been placed in their home, C.M. had sent her "very disturbing well-thought out threatening text messages . . . which continued to cause me concern and have prevented me from feeling safe in any in-person contact with [C.M.]" According to foster mother, some of the texts stated: (1) "If I ever meet you . . . I will strangle you"; (2) "Be afraid walking out your door I do love google search"; (3) "it is already done . . . you will hang in hell eternally . . . you will die and you will meet your fate . . . all of your relationships . . . I will blood eagle"; and (4) "your evil heart hangs on my stake." Her letter attached copies of the alleged texts from C.M.
Foster mother also claimed that on September 10, 2021, C.M. had knowingly violated a restraining order "by somehow finding [Hu.S.]'s bus route that he takes to get home from school . . . and was waiting for him when he got off the bus. [Hu.S.] was shocked to see her and backed away and asked her to leave. The shock of this unexpected contact caused [Hu.S.] to regress."
On January 10, 2022, prior to submitting the caregiver information reports and the attached letter, foster parents filed a 14-day notice to have the minors removed from their home. Ha.S. and O.S. remained with foster parents until March 24, 2022, when they were moved to a new resource home.
On February 8, 2022, the juvenile court held the initial 12-month review hearing. Although C.M. submitted to the Department's report, minor's counsel did not agree with the Department's recommendation that C.M. and R.S. continue to receive reunification services; accordingly, the matter was continued for a settlement conference and contested hearing. The court approved Hu.S.'s placement with R.S., as part of the family maintenance plan, consistent with the January 21, 2022 case plan.
At the February 8 hearing, the juvenile court also informed the parties that it had reviewed the dockets for C.M.'s pending criminal matters. Pursuant to a request by C.M.'s attorney, the court then provided copies of the materials he had reviewed.
The settlement conference was held on March 15, 2022. Minor's counsel objected to the Department's recommendation and stated that for Ha.S. and O.S., the reunification process was "moving at a pace that so far for them is uncomfortable as far as reunifying with their mother." Ha.S. was "showing a great deal of distress both at school and to her therapist," and "we just need to be aware and not re-traumatize these two children so that they're not regressing and that we're not frankly setting the family up for failure." Minor's counsel believed that "it's going to take some time for both of the kids to regain the trust of their mother [and] to feel secure with their father ...."
However, the parties eventually reached a settlement. Minor's counsel agreed to continuing reunification services to the 18-month review date, on the condition that the children not be returned to either parent for an extended visit prior to that hearing. Accordingly, the juvenile court ordered that reunification services continue, and it set a further hearing for May 10, 2022.
The juvenile court expressly found that the return of the children to C.M. or R.S. at that point "would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child[ren]." In addition, "[b]y clear and convincing evidence, the mother and father have been offered and provided reasonable services, which were designed to aid them to overcome the problems that led to the initial removal of the child[ren]. [¶] . . . Conditions that justified the initial assumption of jurisdiction under Welfare and Institutions Code Section 300 still exist, or such conditions are likely to exist if supervision is withdrawn. [¶] . . . The best interests of the child[ren] require continued Juvenile Court jurisdiction. [¶] . . . The child[ren] shall continue as [dependent children] of the Court. [¶] . . . The child[ren] shall continue under the care, custody and control of the Santa Cruz County Human Services Department in a suitable relative home, foster home or community care facility. [¶] . . . There is a substantial probability that the child[ren] will be returned to the physical custody of the mother or father and safely maintained in the home by May 16, 2022, which is 18 months from the child[ren]'s initial removal."
C.M. timely appealed the juvenile court's March 15, 2022 12-month review orders.
The record on appeal includes May 19, 2022 status reports for the 18-month review hearing, in which the Department recommends that reunification services be terminated for both C.M. and R.S., and that a section 366.26 hearing be set to determine the best permanent plan for Ha.S. and O.S. The parties have not argued that this appeal is moot.
II. Discussion
C.M. presents three arguments on appeal. First, she contends foster father's job as an attorney in the Santa Cruz County district attorney's office constituted an inherent conflict of interest which, together with the collective failure by multiple parties to disclose that conflict, violated her due process by "infect[ing]" these dependency proceedings from the early stages.
Second, she argues substantial evidence does not support the juvenile court's finding that C.M. was provided reasonable reunification services because she never received conjoint counseling or therapeutic visitation.
Third, she argues substantial evidence does not support the juvenile court's findings that Ha.S. and O.S. are not Indian children and that the ICWA does not apply, because the notices sent to the Indian tribes did not contain sufficient information.
We address these in turn below.
A. Conflict of interest and due process
C.M. argues that a "conflict of interest was created very early in this case, on December 2, 2020 . . . when a Santa Cruz County Deputy District Attorney and his wife became the resource parents for [C.M.'s] three detained children at the same time as that same District Attorney's [o]ffice was prosecuting the mother for alleged crimes which were the basis for the minors' detention." She contends this conflict "never should have occurred," and that, at the very least, it should have been disclosed by the juvenile court, foster father, the Department and its attorney, and minors counsel, who all "would have been aware of" foster father's position with the district attorney's office.
According to C.M., this conflict violated her due process because it "so infected this case from its early stages" that it affected her ability to reunify with her children. More specifically, she argues the conflict resulted in foster mother adversely affecting C.M.'s ability to have meaningful visitation with her two youngest children and facilitate the reunification process.
1. Applicable law and standard of review a. Dependency proceedings
"The objective of the dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time." (In re Marilyn H. (1993) 5 Cal.4th 295, 307.) "When the child is removed from the home, the court first attempts, for a specified period of time, to reunify the family." (In re Celine R. (2003) 31 Cal.4th 45, 52 (In re Celine).) If reunification efforts fail, the court must terminate them and then" 'set the matter for a hearing pursuant to section 366.26 for the selection and implementation of a permanent plan.'" (Ibid.)
During the attempted reunification period, "[f]amily reunification services play a 'crucial role' in dependency proceedings." (In re Alanna A. (2005) 135 Cal.App.4th 555, 563 (Alanna A.), quoting In re Joshua M. (1998) 66 Cal.App.4th 458, 467.) "The child's case plan is the 'guiding principle in the provision of these services,'" which" 'may include provision of a full array of social and health services to help the child and family and to prevent reabuse of children.'" (Alanna A., supra, at p. 563.)" '[W]henever a child is removed from a parent's or guardian's custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child's mother and statutorily presumed father or guardians.'" (Id. at p. 564, quoting § 361.5, subd. (a).) The juvenile court must hold a six-month review hearing, at which time, "if the child remains in foster care and the goal remains family reunification, 'the court shall direct that any reunification services previously ordered shall continue to be offered to the parent.'" (Alanna A., supra, at p. 564, quoting § 366.21, subd. (e).) "The court has the discretion to modify the terms and conditions of those services." (Alanna A., supra, at p. 564.)
The juvenile court must also hold a 12-month review hearing, at which time it may continue reunification services up to six additional months, "provided the next review hearing occurs within 18 months of the date on which the child was physically removed from parental custody." (Alanna A., supra, 135 Cal.App.4th at p. 564, citing § 366.21, subd. (g)(1).) Once reunification services are terminated, if the child is not returned to parental custody, the court must set a hearing pursuant to section 366.26, at which time it will develop a permanent plan that will lead to adoption, legal guardianship or long-term foster care. (In re Celine, supra, 31 Cal.4th at p. 52; § 366.26.)
" 'In addition to providing child welfare services to the family involved in a dependency proceeding, the . . . social services agency provides essential information to the court.'" (In re B.D. (2019) 35 Cal.App.5th 803, 821 (B.D.).)" 'At each stage of the dependency proceeding, the social services agency is statutorily mandated to prepare social study reports and make recommendations to assist the court.' [Citation.] The required reports in dependency proceedings vary by hearing, but in general they are all designed to make sure the court has the evidence before it to make the necessary findings at each stage of the proceeding. [Citation.] Operationally, '[t]he duties to furnish child welfare services and to provide reports and recommendations to the juvenile court are actually placed by statute upon "the social worker." '" (Ibid., quoting In re Ashley M. (2003) 114 Cal.App.4th 1, 8.)
b. Due process in dependency proceedings
"Parents enjoy a fundamental liberty interest in the care, custody, and management of their children." (In re A.B. (2022) 79 Cal.App.5th 906, 929-930 (A.B.), citing Santosky v. Kramer (1982) 455 U.S. 745, 753.)" 'The state and federal Constitutions guarantee no state shall deprive parents of this interest in their children without due process of law ....'" (A.B., supra, at p. 930, quoting David B. v. Superior Court (2006) 140 Cal.App.4th 772, 777 (David B.).)
" 'Due process is a flexible concept which depends upon the circumstances and a balancing of various factors.'" (A.B., supra, 79 Cal.App.5th at p. 930, quoting In re Jeanette V. (1998) 68 Cal.App.4th 811, 817.)" 'The essential characteristic of due process in the statutory dependency scheme is fairness in the procedure employed by the state to adjudicate a parent's rights.'" (A.B., supra, at p. 930, quoting In re James Q. (2000) 81 Cal.App.4th 255, 265.)
" '[E]ven where due process rights are triggered, it must always be determined "what process is due." [Citation.] We look to "the private interest that will be affected by the agency's action, the risk of an erroneous deprivation of that interest, the interest in informing parents of the basis for and consequences of the action and in enabling them to present their side of the story, and the agency's interest in expeditious decisionmaking as affected by the burden caused by an additional procedural requirement." '" (A.B., supra, 79 Cal.App.5th at p. 930, quoting In re A.B. (2014) 230 Cal.App.4th 1420, 1436.)
"' "Different levels of due process protection apply at different stages of dependency proceedings." '" (A.B., supra, 79 Cal.App.5th at p. 931.)" 'In the initial phases of a dependency proceeding, family preservation is the primary focus and the " 'parent's interest in reunification is given precedence over the child's need for stability and permanency.' '' '" (Ibid.)" 'However, "[o]nce reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability." '" (Ibid., quoting M.T. v. Superior Court (2009) 178 Cal.App.4th 1170, 1181.)
We review constitutional due process claims de novo. (In re J.H. (2007) 158 Cal.App.4th 174, 183.)
2. Forfeiture
We begin by assessing whether C.M. forfeited her argument by failing to raise it below. C.M. acknowledges that she did not raise the issue in the juvenile court. She contends, though, that various exceptions apply through which this court should consider the argument on the merits.
The Department does not address the forfeiture issue in its brief.
First, C.M. claims she could not have raised the issue below because "the record does not reveal that [she] ever knew about this conflict or, if she did, when she knew." The record, however, contradicts that claim. As summarized above, C.M. knew or should have known about the potential conflict no later than February 7, 2022, when foster mother submitted the caregiver information forms and included the letter from C.M.'s criminal attorney communicating her intent to file a recusal motion on the district attorney's office because of the conflict. Despite that, C.M. did not raise the conflict of interest issue at any point before the juvenile court entered the 12-month review orders on March 15, 2022. Instead, she submitted on the Department's status report and recommendations.
C.M. also contends that the recusal motion was filed and granted by January 7, 2022, although the record does not include any evidence of that.
C.M. also argues that because the issue implicates her constitutional due process protections, we should exercise our discretion to excuse the forfeiture. The general rule is that a party" 'forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court. [Citations.] Forfeiture, also referred to as "waiver," applies in juvenile dependency litigation and is intended to prevent a party from standing by silently until the conclusion of the proceedings.'" (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 686, quoting In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222; see also In re Sheena K. (2007) 40 Cal.4th 875, 880-881 [constitutional rights may be forfeited"' "by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it"' "].)
Forfeiture is not automatic, though, and a reviewing court has discretion to consider forfeited claims. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) However, "in dependency proceedings, where the well-being of the child and stability of placement is of paramount importance, that discretion 'should be exercised rarely and only in cases presenting an important legal issue.'" (In re Wilford J. (2005) 131 Cal.App.4th 742, 754; In re S.B., supra, 32 Cal.4th at p. 1293.)
With these standards in mind, we elect to excuse the forfeiture and consider the argument here. C.M. presents an important constitutional due process claim that warrants being addressed on the merits.
As other courts have stated, we are reluctant to enforce the forfeiture rule when it conflicts with due process. (See, e.g., In re T.G. (2013) 215 Cal.App.4th 1, 14; In re Frank R. (2011) 192 Cal.App.4th 532, 539; In re P.A. (2007) 155 Cal.App.4th 1197, 1210.)
3. Analysis
We begin by evaluating the nature of the alleged conflict of interest. C.M. asserts that "it is clear there was an actual conflict of interest" and "a clearer conflict is difficult to imagine." Beyond that, she does not elaborate as to why or how foster father's role as a deputy district attorney constituted a conflict of interest. The record does not reflect whether foster father had any direct involvement or influence in C.M.'s criminal prosecution and we will not speculate. Nevertheless, we agree that the circumstances here created, at the very least, a potential conflict of interest. Foster father's position as a prosecutor in the same office prosecuting C.M. for willful cruelty to a child, along with his simultaneous role as a foster parent to the same children who are the alleged victims, certainly raised a question about whether he and foster mother were inclined to impede the primary focus of family preservation and undermine the precedence of the parents' interest in reunification. (A. B., supra, 79 Cal.App.5th at p. 931.) This potential conflict of interest, and the failure to disclose it, risked compromising the essential characteristic of fairness that marks the statutory dependency scheme. (Id. at p. 930.)
The Department does not squarely address C.M.'s assertion of a conflict of interest. Instead, it claims there is no "legally cognizable conflict of interest" in this context. According to the Department, C.M. does not argue that minor's counsel, C.M.'s counsel, the Department's counsel or the juvenile court judge had a conflict of interest, yet they "are the only entities who have any power to determine the trajectory of this dependency case." That misconstrues C.M.'s argument, though. She does not contend there was a conflict of interest involving an attorney's representation of a client in this case, but rather that foster father's dual roles, and the collective failure to disclose them, undermined the fairness of the proceedings and adversely affected the reunification process. In addition, as discussed post, once foster parents became de facto parents, they acquired rights which in fact could impact the dependency case.
As set forth above, in determining whether this violated C.M.'s due process, we must first determine what process was due. (A.B., supra, 79 Cal.App.5th at p. 930.) We" 'look to the "private interest that will be affected by the agency's action, the risk of an erroneous deprivation of that interest, the interest in informing parents of the basis for and consequences of the action and in enabling them to present their side of the story, and the agency's interest in expeditious decisionmaking as affected by the burden caused by an additional procedural requirement." '" (Ibid., quoting In re A.B., supra, 230 Cal.App.4th at p. 1436.)
Here, C.M. has a fundamental liberty interest in the care, custody, and management of her children. (A.B., supra, 79 Cal.App.5th at pp. 929-930.) Unlike in other contexts that occur later in dependency proceedings, that interest was not attenuated, as there had been no determination of parental unfitness. (B.D., supra, 35 Cal.App.5th at p. 824.) Instead, at the outset of the proceedings, when C.M.'s children were placed with foster parents, reunification of the children with their parents was the priority. (In re Celine, supra, 31 Cal.4th at p. 52.) During the family preservation period,"' "the parent has the best opportunity he or she ever will have to make the strongest case possible in favor of returning the child to parental custody." '" (David B., supra, 140 Cal.App.4th at p. 778, quoting Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 541, fn. 3.)
We have already set forth the principles guiding this process, which impose duties on both the juvenile court and the Department to provide child welfare services and essential information to facilitate the proceedings. (B.D., supra, 35 Cal.App.5th at p. 821.) And, as we have emphasized, "the essential characteristic of due process in the statutory dependency scheme is fairness in the procedure employed by the state to adjudicate a parent's rights." (A.B., supra, 79 Cal.App.5th at p. 930.)
Applying these standards in this context, due process required, at the very least, informing C.M. about foster father's employment with the district attorney's office. Her fundamental liberty interest in her children was directly affected by the Department's actions here, including placement with foster parents and management of the reunification services. (A.B., supra, 79 Cal.App.5th at p. 930.) Placing the children with a foster parent who works in an office simultaneously prosecuting C.M. for the crimes that led to the dependency proceedings, and failing to disclose that fact, undermined C.M.'s right to thoroughly examine the Department's information and witnesses and to evaluate the conduct of foster parents. (Ibid.; see also, In re Thomas R. (2006) 145 Cal.App.4th 726, 734 [where parents wish to test whether agency has met its burden of proof at § 366.26 hearing, "they have a due process right to do so through examination of the agency's witnesses"].)
The need to disclose this potential conflict became especially acute when foster parents sought de facto parent status in September 2021. Both C.M. and R.S. agreed to the de facto parent request and the juvenile court granted it in November 2021. Although it is unknown whether C.M. would have agreed to the de facto parent request had she known about the potential conflict of interest, not disclosing that relevant information prevented her from making an informed decision about whether to object. Once the foster parents became de facto parents, they acquired the rights to be present at hearings, be represented by counsel, and present evidence. (Cal. Rules of Court, rule 5.534(a).) De facto parents may "assert and protect their own interest in the companionship, care, custody and management of the child[ren]." (In re B.G. (1974) 11 Cal.3d 679, 693; accord In re Kieshia E. (1993) 6 Cal.4th 68, 76 ["Within its limited scope, the doctrine of de facto parenthood has since [the In re B.G. decision] been liberally applied to ensure that all legitimate views, evidence, and interests are considered in dispositional proceedings involving a dependent minor."].) With foster parents having requested those rights, fundamental fairness dictated that C.M. be made aware of foster father's role in the district attorney's office and given an opportunity to address it.
B.D. is instructive. In that case, less than a month after terminating parental rights, the social services agency removed the child from his adoptive foster home after discovering that he had been physically abused there. (B.D., supra, 35 Cal.App.5th at pp. 811-812.) Soon thereafter, they learned that the social worker had failed to disclose that the father had been investigated for possible sexual abuse of the child, had spent seven years in prison for a home invasion burglary, and had three adult sons, one of whom was living with the child, who had been victims of sexual abuse as minors and then were alleged to have committed sexual abuse against other minors. (Ibid.)
The court evaluated whether the agency's violation of the statutory reporting obligation was "so egregious as to rise to the level of a denial of due process" as to the parents and, separately, as to the child. (B.D., supra, 35 Cal.App.5th at p. 824.) As to the parents, the court explained that their "fundamental liberty interest in the care, custody and control of Minor was attenuated," because "their parental unfitness had already been adjudicated by the time the case reached the permanency plan selection stage." (Ibid.) Accordingly, they had not been denied due process.
As to the child, though, the court found that he had a "fundamental liberty interest in accurate determination of the issue of adoptability on a full and complete record." (B.D., supra, 35 Cal.App.5th at p. 826.) It explained that the "child welfare agency's preadoption study supplies the evidentiary foundation on which the juvenile court's adoptability determination must rest." (Ibid.) In addition, the court emphasized the "unique obligation of trust and confidence that the child welfare agency has in the permanency selection phase of a dependency proceeding. The minor-dependent is entitled to view the agency as his 'champion' [citation] and to place complete faith in its expert analysis of his adoptability. Thus, going into the section 366.26 hearing, Minor, unlike Parents, had no incentive to probe or challenge the Bureau's litigating position, and at the hearing he elected not to contest any of the Bureau's proposed recommendations or findings." (Id. at pp. 826-827.) The court thus concluded that, "just as the suppression of information material to guilt or innocence in a criminal trial violates the due process right of the defendant to a fair trial [citation], the Bureau violated Minor's due process right to a fair permanency selection and planning hearing." (Id. at p. 827.)
Although B. D. dealt with a different procedural context, we find it analogous in many respects. As the court explained, "[t]he required reports in dependency proceedings vary by hearing, but in general they are all designed to make sure the court has the evidence before it to make the necessary findings at each stage of the proceeding." (B.D., supra, 35 Cal.App.5th at p. 821.) Here, the required reports did not provide the juvenile court with all the available evidence because they did not disclose the existence of the potential conflict of interest. At the same time, the juvenile court itself did not disclose the potential conflict, addressing only the possible conflict for the judicial officer based on foster father's job. The failure to disclose this information prevented C.M. and her attorney from being fully informed at the contested review hearings and thoroughly examining the Department's reports and recommendations, including the extent to which they relied on information from the district attorney's office and foster parents. C.M. was entitled to probe the bias and motive of foster parents, particularly given the negative input they provided to the court. (See also David B., supra, 140 Cal.App.4th at p. 775; id. at p. 780 [at contested review hearing, "where the focus remains on family reunification, 'due process requires the juvenile court to permit a parent to avail himself or herself of the right, if he or she chooses, to a contested review hearing without conditioning that right on a demand for an offer of proof' "].)
We conclude that C.M. was denied due process by the Department's and the juvenile court's failure to disclose the potential conflict of interest.
4. Harmless error
Generally, "[t]he harmless error analysis applies in juvenile dependency proceedings even where the error is of constitutional dimension." (In re J.P. (2017) 15 Cal.App.5th 789, 798.) However, it remains unsettled what standard applies to determine whether an error was harmless. "When we deal with error of federal constitutional dimension in dependency cases, it is unclear whether the prejudice test is that of harmlessness beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24; see In re Mark A. (2007) 156 Cal.App.4th 1124, 1144-1146) or by clear and convincing proof (see Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1514-1515; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1157, fn. 9)." (B.D., supra, 35 Cal.App.5th at p. 827.)
We need not resolve that debate here, though, because we determine that, under either standard, the error was harmless. The evidence supporting the juvenile court's 12-month review orders was overwhelming, independent of the potential conflict of interest and the failure to disclose it. The court determined that "the return of the child[ren] to [their] mother or father would create a substantial risk of detriment to the safety, protection, or physical or emotional wellbeing of the children." In addition, it found that "[b]y clear and convincing evidence, the mother and father have been offered and provided reasonable services, which were designed to aid them to overcome the problems that led to the initial removal of the child[ren]," and "[c]onditions that justified the initial assumption of jurisdiction under Welfare and Institutions Code Section 300 still exist, or such conditions are likely to exist if supervision is withdrawn."
At the same time, though, the juvenile court found that "[t]here is a substantial probability that the child[ren] will be returned to the physical custody of the mother or father and safely maintained in the home by May 16, 2022, which is 18 months from the child[ren]'s initial removal." In other words, the court determined that C.M. had made substantial progress with the reunification services but needed additional time to finalize them, which the court expected would happen.
Those findings were based in large part of the Department's status reports, which documented the progress C.M. had made in the reunification process, and also identified the challenges that had prevented reunification up to that point. The reports demonstrate that the most significant factors supporting the Department's recommendation of continued services-rather than returning the children to C.M.'s custody-were attributable to C.M.'s own behavior and were independent of the conflict of interest.
For instance, the reports placed great emphasis on C.M.'s voluntary absence from the reunification services in the initial period following the detention. C.M. had been out of touch with the social workers from the beginning of the dependency proceedings until re-engaging in April 2021. During roughly that same time period, C.M. had failed to visit with her children. These actions delayed the reunification process, which C.M. herself acknowledged in her report to the court.
The 12-month review reports also emphasized C.M.'s problems with substance abuse, noting that her history with illegal substances and behavior while using had caused delays in her visits with the children. After the initial arrest and detention, C.M. appeared under the influence when she met with social workers on December 10, 2020, and she was arrested for public intoxication in April 2021.
Lastly, the reports noted C.M.'s difficulty grasping the severity of the allegations and the impact her actions had on her children and how that has prolonged the reunification process. They concluded that C.M. needs to have "a stronger understanding of the trauma caused . . . when using illegal substances and committing emotional and physical abuse."
In sum, this evidence demonstrates that the delay in reunification was chiefly attributable to C.M.'s own behavior rather than the potential conflict of interest.
C.M. argues the record contains substantial evidence of the prejudicial effect of the denial of due process. She argues that "the influence of the [foster parents], especially [foster mother] on this case is abundantly clear," and that they had "the power to determine the course of the case." She contends that foster mother negatively influenced the reunification process, in particular the visitation between C.M. and her children, thereby preventing the children from returning to C.M.'s custody. For instance, she notes that foster mother "was quite critical of [C.M.] when addressing many issues about which she was concerned." C.M. points to the letter foster mother submitted to the court in advance of the 12-month hearing, where she asked the court not to continue reunification services, attached copies of the threatening texts C.M. allegedly sent to her, and stated that "[m]y concern is that [C.M.] gives no thought to and has no consideration/awareness of how her actions affect others; throughout the duration of the children's placement, [C.M.] has always acted in accordance with whatever she wants and regardless of how her actions may affect her children or the persons trying to help her children."
C.M. also points to negative reports regarding her visits with the children, and surmises that foster mother was responsible for the information. After summarizing comments from the social worker and clinical psychologist regarding the challenging visits, C.M. states that "surely [foster mother] provided some, if not all, of this information regarding the children's stress regarding visitation." Lastly, C.M. emphasizes reports of a positive relationship between foster mother and the children, seemingly implying that they demonstrate how the conflict of interest led foster mother to negatively impact the children's relationship with C.M.
We do not view this as evidence of a prejudicial effect of the denial of due process described above. First, despite foster mother's letter to the court, reunification services were continued, not terminated as she had requested. Second, the record shows that the difficulties C.M. and her children experienced during visitation were attributable to C.M.'s behavior; she merely speculates that foster mother negatively influenced the visitation because of the conflict of interest.
We note that the procedural status of the dependency is critical to our determination that the denial of due process was harmless here. Were we considering the impact of the failure to disclose the potential conflict of interest if the juvenile court had terminated C.M.'s reunification services after relying on the negative information provided by foster parents, our harmlessness assessment may have been different. However, because the court continued reunification services, we conclude that "[d]etermining prejudice in this context does not necessarily require 'a speculative inquiry into what might have occurred in an alternate universe.'" (In re James F. (2008) 42 Cal.4th 901, 915.) Here, we are able to conclude that the due process violation did not impact the outcome of the proceeding and cause actual harm. (Id. at p. 918.) But our conclusion should not be construed as an endorsement of the failure of the juvenile court and the Department to disclose the potential conflict of interest at the initial stages of the dependency proceedings and provide the due process that has long been recognized as essential to a fair and proper resolution of dependency cases.
B. Reasonable reunification services
C.M. argues the juvenile court erred in finding that reasonable services had been provided to her because she did not receive "conjoint therapy" or "therapeutic visitation." We deem the arguments forfeited because C.M. did not adequately raise them below. (In re T.G., supra, 215 Cal.App.4th at p. 14.)
As summarized in the factual background, C.M. submitted to the Department's status report at the 12-month review hearing. That report detailed the reunification services that had been provided, including counseling and mental health services, Leaps &Bounds parenting education program, a housing services program, substance abuse services, and visitation.
C.M. had provided the court with a personal statement for the 12-month review hearing, in which she stated that she had "worked really hard to establish sobriety and do therapy and complete my case plan. I have also asked to do therapy with my two older children, to heal any trauma in our relationship, and I have not been given the opportunity to do therapy with them." However, at the subsequent hearing on March 15, 2022, C.M.'s attorney stated that C.M. "will continue participating in therapy . . . especially joint therapy with Ha.S. I am sure that [social worker] will facilitate the therapy to be focused on transitioning home and reunification. And [C.M.] certainly will comply and continue participating. We are submitting."
On the basis of this record, we determine the issue was not adequately raised below. Even if C.M.'s personal statement could be construed as having objected to the failure to receive conjoint therapy and therapeutic visitation, her attorney's comments on her behalf at the hearing did not put the juvenile court on notice that she objected to the Department's report and conclusion that reasonable services, including visitation, had been provided. (In re Christina L. (1992) 3 Cal.App.4th 404, 416 ["If Mother felt during the reunification period that the services offered her were inadequate, she had the assistance of counsel to seek guidance from the juvenile court in formulating a better plan."]; see also Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4 [appellate arguments "neither timely nor fully made" deemed forfeited].)
C.M. also argues that the Department "admittedly failed to provide any services whatsoever to assist the mother in the visitation issues with her children." She provides no citation in support of that assertion, though, and we are not aware of any evidence in the record showing the Department made any such admission. Moreover, the record includes ample evidence of visitation services actually provided.
Even if we were to consider C.M.'s arguments, we would determine that substantial evidence supports the juvenile court's finding that reasonable reunification services were provided. "Visitation is an essential component of a reunification plan." (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1426.) Visitation between a parent and a child during the reunification period must "be as frequent as possible, consistent with the well-being of the child." (Ibid., citing § 362.1, subd. (a)(1)(A).) But the law also mandates that "[n]o visitation order shall jeopardize the safety of the child." (§ 362.1, subd. (a)(1)(B).)
"A social services agency is required to make a good faith effort to address the parent's problems through services, to maintain reasonable contact with the parent during the course of the plan, and to make reasonable efforts to assist the parent in areas where compliance proves difficult." (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598.) However, "in most cases more services might have been provided, and the services which are provided are often imperfect." (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) "The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances." (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
Here, the trial court determined that, "[b]y clear and convincing evidence, the mother and father have been offered and provided reasonable services, which were designed to aid them to overcome the problems that led to the initial removal of the child[ren]." The record reflects that C.M. was offered reasonable reunification services, including family therapy with Ha.S. Substantial evidence supports the juvenile court's March 15, 2022 reasonable services finding.
C. Indian Child Welfare Act
C.M. argues there was insufficient evidence to support the juvenile court's finding that ICWA did not apply because the Department failed to include any information in the notices to the tribes about the maternal relative who reportedly had Cherokee heritage. Specifically, she contends that, "[a]lthough the social worker spoke with the maternal aunt and maternal grandmother who said the Cherokee affiliation was on the maternal grandmother's father's side of the family, the Department inexplicably failed to include any information about this family member on the ICWA-030 notice to the tribes." Further, "there were significant material omissions in the ICWA notices sent to the three applicable Cherokee tribes. In order for the tribes to conduct a thorough search of their records and make an informed decision about whether the minors qualified as tribal members, the tribes must have been provided with sufficient and accurate information."
As we explain below, we find the arguments lack merit.
1. Applicable law and standard of review
"ICWA and governing federal regulations (25 C.F.R. § 23.101 et seq. (2022)) set minimal procedural protections for state courts to follow before removing Indian children and placing them in foster care or adoptive homes." (In re M.B. (2022) 80 Cal.App.5th 617, 625.) "To ensure Indian tribes may exercise their rights in dependency proceedings as guaranteed by ICWA and related state law, investigation of a family member's belief a child may have Indian ancestry must be undertaken and notice provided to the appropriate tribes." (Ibid., citing § 224.2, subd. (a) [imposing on the court and child protective services agencies "an affirmative and continuing duty to inquire whether a child . . . is or may be an Indian child"].) "The duty to inquire 'begins with initial contact (§ 224.2, subd. (a)) and obligates the juvenile court and child protective agencies to ask all relevant involved individuals whether the child may be an Indian child.'" (In re M.B., supra, at p. 625, quoting In re T.G. (2020) 58 Cal.App.5th 275, 290; § 224.2, subds. (a)-(c).)
Section 224.2, subdivision (e), also "imposes a duty of further inquiry regarding the possible Indian status of the child '[i]f the court, social worker, or probation officer has reason to believe that an Indian child is involved in a proceeding, but does not have sufficient information to determine there is reason to know that the child is an Indian child.'" (In re M.B., supra, 80 Cal.App.5th at p. 625, quoting § 224.2, subd. (e).) "California Rules of Court, rule 5.481(a)(4) provides that further inquiry must be conducted if the social worker 'knows or has reason to know or believe that an Indian child is or may be involved.' Further inquiry includes, 'but is not limited to,' interviewing, as soon as practicable, extended family members, contacting the Bureau of Indian Affairs and contacting 'the tribe or tribes and any other person that may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility.' (§ 224.2, subd. (e)(2).) [¶] If those inquiries result in reason to know the child is an Indian child, notice to the relevant tribes is required. (25 U.S.C. § 1912(a); Welf. &Inst. Code, § 224.3 [citations].) The governing federal regulations require ICWA notices to include, if known, the names, birthdates, birthplaces and tribal enrollment information of all direct lineal ancestors of the child. (25 C.F.R. § 23.111(d)(3) (2022).) State law 'mandates inclusion of '[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married, and former names or aliases, as well as their current and former addresses, birth dates, places of birth and death, tribal enrollment information of other direct lineal ancestors of the child, and any other identifying information, if known.' (§ 224.3, subd. (a)(5)(C) [citations].)" (In re M.B., supra, at pp. 625-626.)
While reviewing courts typically evaluate claims of improper notice for substantial evidence, "[w]here the facts are undisputed, we independently review whether ICWA's requirements have been satisfied." (In re I.F. (2022) 77 Cal.App.5th 152, 163; In re D.N. (2013) 218 Cal.App.4th 1246, 1251.) "Where there is reason to believe a dependent child may be an Indian child, defective ICWA notice is 'usually prejudicial' [citation], resulting in reversal and remand to the juvenile court so proper notice can be given." (In re Nikki R. (2003) 106 Cal.App.4th 844, 850.)
2. Analysis
Although C.M. contends that the Department failed to include "any information" in the notices, she does not specify what information was omitted. Her assertions consist only of generalities: "failed to include any information about this family member . . ."; "significant material omissions in the ICWA notices"; "tribes must have been provided with sufficient and accurate information." Similarly, she states that "because of the Department's total failure to include any information about the minor's maternal great-grandfather's side of the family, the Cherokee tribes could not conduct a meaningful search to determine the minor's tribal heritage."
C.M. did not raise this issue below. However, "ICWA notice issues cannot be forfeited for appeal by a parent's failure to raise them in the juvenile court, because it is the tribes' interests, not the parents', that is at stake in dependency proceedings." (In re A. G. (2012) 204 Cal.App.4th 1390, 1400.)
We cannot meaningfully evaluate C.M.'s claims because we do not know what information she contends was available but improperly omitted. The notices sent to the Cherokee tribes had identified C.M., C.M.'s mother (maternal grandmother), C.M.'s father (maternal grandfather), and C.M.'s grandfather (maternal great-grandfather) as having Cherokee ancestry. For C.M. and maternal grandmother, the notices included their names, birth dates, birth places, and former and current addresses. For maternal grandfather, the notices included his name; a partial birth date that included a question mark for the year; two options for birth place, including a different state and a foreign country; and "unknown" for current and former addresses. Lastly, for the maternal great-grandfather, the notices included his name and indicated he was deceased, and stated "unknown" for birth date, birth place and former addresses.
As noted above, ICWA requires that notices include" 'current and former addresses, birth dates, places of birth and death, tribal enrollment information of other direct lineal ancestors of the child, and any other identifying information, if known.' (§ 224.3, subd. (a)(5)(C) [citation].)" (In re M.B., supra, 80 Cal.App.5th at p. 626, italics added.) C.M. does not demonstrate or even argue that certain omitted information was known and we are not aware of any.
In its respondent's brief, the Department states that "[t]here is an error on the [notices]; instead of placing grandmother's father in great-grandfather box, his information is in the grandfather box, and his father's information is in the great-grandfather box instead of the great-great-grandfather box (there is none)." The assertion is unsupported by any citation to the record, though, and C.M. does not argue any such error. We decline to address it, as it is immaterial to our analysis and conclusion, whether error or not.
C.M. cites various cases that found ICWA notices to be insufficient because they omitted certain required information. However, C.M. does not analogize to the cases at all. We are again left to speculate about what information she contends was improperly omitted from the notices.
For instance, C.M. relies on In re D.T. (2003) 113 Cal.App.4th 1449. In that case, the notices were determined to be inadequate because they had omitted information "already known to the social worker, such as appellant's married name, the parents' current addresses, the names of the minors' grandparents, and that the claimed tribal affiliation was Cherokee." (Id. at p. 1454.) As the court explained, "[a]ll of this information was contained in the social worker's dispositional report." (Ibid.) By contrast here, there is no evidence that any information known to the social worker or included in the dispositional report was omitted from the ICWA notices. C.M. has not explained how this case is analogous to In re D. T. or any of the other authority she summarizes.
We presume, in the absence of any contrary evidence, that the Department complied with its continuing duty of inquiry and sought to include all available, relevant information in the notices. (Evid. Code, § 664 ["[i]t is presumed that official duty has been regularly performed"].) Accordingly, we find no error here.
III. Disposition
The juvenile court's March 15, 2022 12-month review orders are affirmed.
WE CONCUR: Greenwood, P.J. Danner, J.