NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. SCSCJVSQ155082903, SCSCJVSQ155162901)
Danielle C., mother of minors Mia C. and Leila C., appeals from juvenile court orders terminating parental rights. (Welf. & Inst. Code, §§ 366.26, 395.) Joseph K., father of Leila, also appeals from the order pertaining to Leila.
Undesignated statutory references are to the Welfare and Institutions Code.
Mother contends (1) although a challenge to the denial of reunification services would normally be barred at this stage of the proceeding, mother should be permitted to challenge the denial because she was not informed of the right to seek appellate review by writ petition; (2) the juvenile court erred in denying reunification services because there is insufficient evidence to support the finding that mother did not make reasonable efforts to treat the problems that led to a prior termination of services; and (3) the orders terminating parental rights should be reversed because the juvenile court failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.)
Joseph K., who was incarcerated by California out of state, contends (4) the juvenile court failed to order that he be transported to the section 366.26 hearing or that he be allowed to appear by other means; and (5) the juvenile court failed to comply with the ICWA inquiry and notice requirements.
We conclude mother may challenge the denial of reunification services in this appeal but her challenge lacks merit. However, we will reverse the orders terminating parental rights and remand for further proceedings to give Joseph K. the opportunity to appear and to give the juvenile court the opportunity to comply with ICWA.
A detention report filed September 10, 2015, stated that on September 8, 2015, the Siskiyou County Health and Human Services Agency (Agency) received a call that mother had left her children, six-year-old Mia and three-year-old Leila, with their maternal great-grandmother, who was no longer able to care for the children. Mother reportedly was scheduled to pick up the children on September 6, 2015, and had not contacted the maternal great-grandmother to make extended arrangements. The maternal great-grandmother was elderly, had suffered a recent stroke, and was limited in her ability to care for the children for extended periods of time.
The report also stated that Joseph D., Mia's father, had punched mother, kicked her, pointed a gun at her, threatened to kill her, lit her hair on fire, spit on her, burnt her arm with a lighter, and dragged her around the house by her hair. Both mother and Joseph D. had been using methamphetamine prior to this incident. Joseph D. was arrested. Leila's care provider stated that mother had deteriorated and the harm to the children had increased "immensely." She also disclosed that Mia had been waking up in the middle of the night having panic attacks and screaming.
In interviews, Mia and Leila acknowledged being present while mother and Joseph D. used illegal substances and they also acknowledged witnessing severe violence between them. Both Mia and Leila said they were scared Joseph D. was going to kill mother, and Mia said Joseph D. told mother he was going to "put her face in hot boiling water." Mother and Joseph D. had a long history of domestic violence and substance abuse, and the children had articulated fear for their safety and well-being due to the threats that had been made by Joseph D. and the violence they had witnessed.
The children's siblings, Olivia D. and Lillie C., were dependents of the court due to mother and Joseph D.'s methamphetamine use and domestic violence as well as Joseph D.'s long history of incarceration and untreated bipolar disorder. Parental rights to Olivia and Lillie were terminated by the court on February 6, 2009. Mia was a dependent of the court from March 2009 through April 2010, due to mother's methamphetamine use, and was again placed into protective custody in August 2011. Both mother and Joseph D. were using methamphetamine and involved in domestic violence at that time.
Since mother's reunification with Mia, the Agency reported having received nine referrals for issues of mother using methamphetamine, engaging in domestic violence, and leaving her children with care providers for extended periods of time without provisions for care or contact with the providers.
Section 300 Petition
On September 10, 2015, the Agency filed a petition alleging Mia and Leila came within section 300, subdivisions (b) and (c). Under subdivision (b), the petition alleged as follows: (1) on September 8, 2015, mother left the children with the maternal great- grandmother, who was no longer able to care for the children, and mother did not pick up the children when she was asked to do so and did not call the great-grandmother to make extended arrangements; (2) mother had been leaving the children at friends' homes for extended periods of time; (3) mother and Joseph D., after having each used methamphetamine, engaged in an episode of domestic violence on August 22, 2015; (4) the children disclosed being present while mother and Joseph D. used illegal substances, as well as being present during various incidents of domestic violence between mother and Joseph D.; (5) the minors became very emotionally upset when they disclosed the details of the incidents of domestic violence to the social worker and when they disclosed their fears that Joseph D. would kill mother; and (6) there had been two prior dependency cases involving Mia, two prior dependency cases involving mother's two older children, Olivia and Lillie, and parental rights to Olivia and Lillie had been terminated on or about February 6, 2009. The section 300, subdivision (c) allegations incorporated the subdivision (b) allegations.
On September 11, 2015, the juvenile court ordered the children detained from mother's custody. The court also ordered mother to have three visits a week. In addition, the court found Joseph D. to be the presumed father of Mia, and found Joseph D. and Joseph K. to be alleged fathers of Leila.
In a combined jurisdiction/disposition report filed October 22, 2015, the Agency reported that mother's inability to remove herself from the ongoing domestic violence with Joseph D. had adverse effects on the emotional well-being of the children. At the time of detention, the Agency recommended that mother contact a number of Siskiyou County service providers for assessments, participate in Family Dependency Treatment Court (FDTC), attend three Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) meetings a week, arrange for counseling, and participate in drug testing for the Agency. Mother had since made minimal effort to engage in services, communicate with the Agency, or maintain contact with the children.
In early October 2015, mother left voicemail messages stating that she was looking into an inpatient program, receiving services from Empire Outpatient Services in Redding, attending domestic violence classes, attending an AA/NA meeting every day, and had an AOD (alcohol and other drug) assessment scheduled for October 22, 2015. The social worker requested contact information regarding the programs mother was utilizing and releases for information needed to confirm mother's participation in services. In response, mother sent daily AA meeting verification cards dating from September 14, 2015 to October 13, 2015, a verification of a medical appointment, an appointment reminder from One Safe Place, a brochure for Serenity House Sober Living, and a card from One Safe Place specifying the day and time of Break Through, a domestic violence program. In addition, the social worker received a faxed statement from Rose Alcala, Director of Client Services at One Safe Place. The statement, dated October 15, 2015, describes mother as receiving services in the form of information and advice. After following up on the letter, the social worker learned that mother came to the center on October 6, 2015, but had not returned to the center to attend classes.
Mother did participate in a substance abuse assessment with Empire Outpatient Services on October 5, 2015. She reported having used amphetamines on a regular basis for 15 years and having also used heroin, cocaine, and hallucinogens. Her last voluntary abstinence from her drug of choice, methamphetamine, lasted for 34 months, and ended three years ago. She had been treated for drug abuse on two occasions, including completing 550 days of inpatient treatment three years ago in Medford, Oregon. The assessment recommended that mother attend a 90-day residential program followed by a six-month outpatient program, as well as random drug testing and regular attendance in a 12-step program.
The Agency reported the children were residing in a foster home. The children's older siblings, Olivia and Lillie, were adopted by a maternal relative who had expressed an interest in being the permanent plan for Mia and Leila. In light of the termination of mother's parental rights as to Olivia and Lillie and the Agency's determination that mother had failed to show any sign that her behavior would change for Mia and Leila, the Agency recommended reunification not be offered to mother.
A contested jurisdiction/disposition hearing was held on November 6, 2015. Mother testified that she was living in the Redding area and was frightened to remain in Yreka because of her relationship with Joseph D. Describing the effort she had made to get into treatment programs, mother stated she had obtained a brochure containing referrals for services in the Redding area for victims of domestic violence. Mother said that she called the programs on the list and, in October, began participating in a crisis counseling domestic violence program and had attended 12 to 13 counseling sessions at One Safe Place. Mother had been unable to get into any inpatient treatment program as recommended in the Empire Outpatient Services assessment because she could not afford to pay for them. Mother testified she was on the waiting list for a program in Medford, Oregon (the same program she had previously completed), which would accept her without funding. She also sought sober living transitional housing with Francis Court, but she did not have adequate funds for that either. Accordingly, she had gone to Visions of the Cross for outpatient treatment Monday through Friday, and said she had attended a total of approximately 15 outpatient counseling treatment sessions and classes. Among other things, Visions of the Cross required attending 12-step meetings, which mother had been attending in the Redding area. Meeting entry forms were admitted into evidence verifying her attendance every day from September 14, 2015 until November 5, 2015. Brochures for Visions of the Cross, Francis Court and Serenity House, and a treatment plan appointment reminder for Visions of Cross, were also admitted into evidence.
The social worker testified that, since the time she wrote her report, mother had not provided her with any further documentation of services she was engaged in. As a result, she had been unable to verify statements made by mother. Furthermore, in the past, the social worker learned mother just visited facilities where she claimed to have attended programs.
The juvenile court took the matter under submission and, on November 10, 2015, filed a written decision finding jurisdiction, declaring the minors dependents, bypassing mother for reunification services, and setting a section 366.26 hearing. On January 6, 2016, counsel for mother filed notices of appeal from the November 10, 2015 jurisdiction/disposition hearing orders denying reunification services. On February 11, 2016, this court ordered the appeals dismissed as nonappealable pursuant to section 366.26, subdivision (l).
Section 366.26 Hearing
The California Department of Social Services (Department) provided an adoption assessment on January 29, 2016, recommending termination of parental rights and a plan of adoption. Mia and Leila were described as having a healthy relationship and emotional ties with their potential relative adoptive parents. The potential relative adoptive parents were assessed as demonstrating good parenting techniques and having the capability to meet the needs of Mia and Leila. There was no information to indicate that anything would interfere with the approval of their home study. Both Mia and Leila were assessed as likely to be adopted if parental rights were terminated.
The Department concluded that it was in the best interests of the children that parental rights be terminated. The Department also believed that moving the children to their relative adoptive family would not be detrimental to their well-being, and that any benefit to the children of continuing the legal relationship with their birth parents would be outweighed by the benefit of the legal permanence through adoption. The Agency filed a section 366.26 report on February 11, 2016. The Agency agreed with the Department's recommendation of a plan of adoption and the termination of parental rights.
The contested hearing was held on March 25, 2016. The juvenile court found the children likely to be adopted and terminated parental rights.
Additional facts are included in the discussion as relevant to the contentions on appeal.
As a threshold matter, mother argues that although a challenge to the denial of reunification services would normally be barred at this stage of the proceeding, mother should be permitted to challenge the denial because she was not informed of the right to seek appellate review by writ petition.
On November 10, 2015, the juvenile court filed a written decision finding jurisdiction, declaring the minors dependents, bypassing mother for reunification services, and setting a section 366.26 hearing. Mother concedes that her challenge to the denial of reunification services would ordinarily be barred from review in her current appeal from the orders made at the section 366.26 hearing. Section 366.26, subdivision (l) bars review of an order setting the section 366.26 hearing unless the parent has sought timely review by extraordinary writ. In adopting section 366.26, subdivision (l), "the Legislature has unequivocally expressed its intent that referral orders be challenged by writ before the section 366.26 hearing." (Anthony D. v. Superior Court (1998) 63 Cal.App.4th 149, 156.)
However, section 366.26, subdivision (l) also directs the Judicial Council to adopt a rule to ensure that the juvenile court advises the parties that to preserve a right of appellate review they must file a writ petition. (§ 366.26, subd. (l)(3)(A).) The Judicial Council adopted California Rules of Court, rule 5.590(b), which provides in pertinent part that when the court orders a hearing under section 366.26, the court must advise each party that if the party wishes to preserve any right to review of the order setting the section 366.26 hearing, the party is required to seek an extraordinary writ by filing a notice of intent to file a writ petition (such as form JV-820) along with a writ petition (such as form JV-825). (Rule 5.590(b).) The advisement must be given orally to those present when the court orders the hearing under section 366.26, and within one day after the court orders the 366.26 hearing, the advisement must be mailed by the clerk of the court to the last known address of any party who was not present. (Rule 5.590(b).) The advisement must include the time for filing a notice of intent to file a writ petition. Copies of forms JV-820 and JV-825 must accompany all mailed notices informing the parties of their rights. (Rule 5.590(b).)
Undesignated rule references are to the California Rules of Court.
If the trial court fails to provide any notice or fails to provide proper notice and that failure of notice is ultimately attributable to an error of the court, then appellant's claims of error are cognizable on appeal from the section 366.26 hearing. (In re Frank R. (2011) 192 Cal.App.4th 532, 539; In re Lauren Z. (2008) 158 Cal.App.4th 1102, 1110; In re Harmony B. (2005) 125 Cal.App.4th 831, 839; In re Maria S. (2000) 82 Cal.App.4th 1032, 1038; In re Rashad B. (1999) 76 Cal.App.4th 442, 447, 450.)
Here, following the November 6, 2015 hearing, the juvenile court took the matters under submission and did not enter the orders denying reunification services and setting the section 366.26 hearing until November 10, 2015, when the parties were not present. The orders included the required advisement, but there is no evidence the juvenile court sent the order (and the advisement) to mother at her address of record. The juvenile court only mailed mother form JV-820. Thus, the record indicates mother did not receive the order or advisement and did not receive form JV-825. In addition, form JV-820 was mailed late (more than one day after the court ordered the section 366.26 hearing), and it was not sent to mother's address of record.
Under the circumstances, mother may challenge the denial of reunification services in this appeal, and we need not address her alternative argument that her counsel was ineffective in failing to file a writ petition.
Mother next contends the juvenile court erred in denying reunification services because there is insufficient evidence to support the finding that she did not make reasonable efforts to treat the problems that led to a prior termination of services.
The juvenile court found by clear and convincing evidence that reunification services should not be provided to mother because she previously had reunification services terminated for the minors' siblings and she did not make reasonable efforts to treat the problems that led to the prior termination of services. We review an order denying reunification services for substantial evidence. (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.) If the reviewing court concludes that the juvenile court properly denied services under one of the two subdivisions, it is not necessary to consider whether services could also be denied under the other subdivision. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 76.)
Section 361.5, subdivision (b) allows the juvenile court to deny reunification services if it finds clear and convincing evidence that any one of several enumerated conditions exists. To apply section 361.5, subdivision (b)(10), the court must find that the parent previously failed to reunify with a sibling of the child. To apply section 361.5, subdivision (b)(11), the court must find that the parent's parental rights to a sibling of the child have been terminated. Neither provision applies if the parent has made "a reasonable effort to treat the problems that led to removal of the sibling or half sibling." (§ 361.5, subds. (b)(10), (11).) Thus, in order to deny reunification services under either subdivision, the court must find that the parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or termination of parental rights. (E.g., Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.)
Mother and Joseph D. had a long history of domestic violence and substance abuse. The minors' siblings, Olivia and Lillie, were dependents of the court due to mother's and Joseph D.'s methamphetamine use and domestic violence, as well as Joseph D.'s long history of incarceration and untreated bipolar disorder. We reject mother's suggestion that it is unclear what issues led to the removal of Olivia and Lillie. Those children were detained after mother tested positive for methamphetamine at Lillie's birth and were declared dependents of the court due to mother's and Joseph D.'s history of domestic violence and methamphetamine use. This information is sufficient to indicate what problems led to the removal of those children. Parental rights to Olivia and Lillie were terminated in February 2009. Mother's substance abuse and the instances of domestic violence with Joseph D. persisted, ultimately resulting in the instant petition.
Mia was a dependent of the court from March 2009 through April 2010, after mother tested positive for methamphetamine during a pregnancy and had shown an inability to stop using methamphetamine. Mia was returned to mother after reunification services were ordered, and the case was dismissed in April 2010.
Mia was again placed in protective custody on August 25, 2011, due to mother being out of contact with her family and mother possibly being on the run with Joseph D., who was wanted for probation violations. In addition, it was reported that both mother and Joseph D. were using methamphetamine and involved in domestic violence. Mother eventually reunified with Mia and gave birth to Leila while attending an inpatient drug treatment program in Oregon.
Following mother's reunification with Mia, the Agency reported receiving nine referrals involving mother using methamphetamine, engaging in domestic violence, and leaving her children with care providers for extended periods of time without provisions for care or contact with the providers. The jurisdiction/disposition report states that mother was named as the perpetrator in 16 referrals involving eight substantiated referrals, six inconclusive referrals, and two unfounded referrals of child neglect, substantial risk, emotional abuse, and severe neglect between September 14, 2004 and September 8, 2015. Mother admitted resuming her substance abuse after leaving the inpatient facility in Oregon. The children reported that mother and Joseph D. still used illegal substances and engaged in domestic violence in their presence. Most recently, mother and Joseph D. engaged in an episode of domestic violence on August 22, 2015, which resulted in Joseph D. being arrested.
Mother argues the fact that she attended services and regained custody of Mia on two occasions necessarily established that she made reasonable efforts to treat the problems that led to the removal and termination of parental rights to Olivia and Lillie. But attending services was not enough. (See e.g., Cheryl P. v. Superior Court, supra, 139 Cal.App.4th at p. 99 [to be considered reasonable, the parent's efforts must be more than "lackadaisical or half-hearted"].) Mother may perform well on service plans as long as her children are dependents of the court, or as long as Joseph D. is incarcerated, but she has shown repeatedly that she cannot otherwise maintain her sobriety or stay away from Joseph D. Nor does mother take steps to address these problems when she is not under the watchful eye of the court or Agency. Instead, mother has allowed her ongoing substance abuse and her inability or unwillingness to separate from Joseph D. to continue to place her children in violent and harmful situations.
It is true that the " 'reasonable effort to treat' " standard in section 361.5, subdivision (b)(10), is not synonymous with cure. (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464.) But "[i]t is certainly appropriate for the juvenile court to consider the duration, extent and context of the parent's efforts, as well as any other factors relating to the quality and quantity of those efforts, when evaluating the effort for reasonableness. And while the degree of progress is not the focus of the inquiry, a parent's progress, or lack of progress, both in the short and long term, may be considered to the extent it bears on the reasonableness of the effort made." (R.T. v. Superior Court (2012) 202 Cal.App.4th 908, 914, italics omitted.)
Substantial evidence supports the juvenile court's finding that mother did not make reasonable efforts to treat the problems that led to the prior termination of services. Although mother repeatedly participated in services, she appears to participate and attempt to treat the problems only when her children are dependents of the court. There is no evidence that mother did anything between the time she last reunified with Mia and the September 2015 removal of Mia and Leila to maintain her sobriety or eliminate domestic violence from her children's lives. That lack of effort on mother's part, and the resulting relapse into substance abuse and ongoing problems with domestic violence, is sufficient evidence to support the juvenile court's findings under section 361.5, subdivisions (b)(10) and (b)(11).
In fact, mother did not appear to make much effort to treat her substance abuse and domestic violence problems even after the recent detention of Mia and Leila. As noted by the court, there was little evidence, other than the slips from the 12-step meetings, confirming mother's assertion that she had been engaging in services after the most recent removal. Mother had a couple of appointment reminders and a handful of brochures, but the social worker said that in the past, mother only visited places where she claimed to have attended programs. Indeed, despite mother's claim that she had attended a domestic violence program and 12 to 13 counseling sessions at One Safe Place, the Director of Client Services at One Safe Place said mother received services "in the form of information and advice." It was subsequently discovered that, although mother had gone to the center on October 6, 2015, she had not returned to attend classes.
Mother's reliance on In re Albert T. (2006) 144 Cal.App.4th 207 is unavailing. In that case, the juvenile court did not make an express section 361.5, subdivision (b)(10) finding, and the "otherwise silent" record failed to support an implied finding. (In re Albert T., at pp. 216, 218-219.) But here, after taking the matter under submission, the juvenile court made an express written finding that mother had not made reasonable efforts to treat the problems that led to the prior termination of services. In re Albert T. is inapposite.
Mother further contends the orders terminating parental rights should be reversed because the juvenile court failed to comply with ICWA inquiry and notice requirements. We address the facts pertaining to Mia in this part and the facts pertaining to Leila in part V.
ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for removal of Indian children from their families, and by permitting tribal participation in dependency proceedings. (See 25 U.S.C. § 1902; In re Levi U. (2000) 78 Cal.App.4th 191, 195-196.) After the petition is filed, if the court "knows or has reason to know that an Indian child is involved," notice of the pending proceeding and the right to intervene must be sent to the Indian tribe or the Bureau of Indian Affairs (BIA) if the identity or location of the tribe cannot be determined. (25 U.S.C. § 1912(a).) An Indian child is an unmarried person under the age of 18 who is either a member of a federally recognized Indian tribe or who is eligible for membership in such a tribe and is the biological child of a member in the tribe. (25 U.S.C. § 1903(4).) The Indian status of a child need not be certain in order to trigger the notice requirements of ICWA. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422.) The juvenile court and the Agency have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. (Rule 5.481(a).)
According to the detention report filed September 10, 2015, Joseph D., Mia's father, stated he believed he had Native American ancestry. He did not, however, know what tribe or through what family member the ancestry derived. At the September 11, 2015 detention hearing, mother denied having any known Indian ancestry. Joseph D. said he was not sure if he had Native American heritage but that his mother could be contacted on that point. Joseph D. then filed a form saying he may have Indian ancestry but the name of his tribe was unknown.
Mother contends the Agency was required to provide ICWA notice to the BIA and make further inquiry, at least as to Joseph D.'s mother. Although we disagree that the information provided by Joseph D. was sufficient to trigger notice under ICWA, we agree the Agency should have made further inquiry to determine if ICWA notice was required.
While a child's Indian status need not be certain to trigger ICWA's notice requirements, a vague suggestion of Indian ancestry, without more, is not sufficient. (In re O.K. (2003) 106 Cal.App.4th 152, 157-158) "[B]oth the federal regulations and the California Welfare and Institutions Code require more than a bare suggestion that a child might be an Indian child." (In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520.)
In In re Hunter W. (2011) 200 Cal.App.4th 1454, for example, the mother of a dependent child indicated she might have Indian ancestry through her father and deceased paternal grandmother, and provided her father's and paternal grandmother's names, but said she did not have her father's contact information. (Id. at p. 1467.) Reversal on ICWA grounds was not required because, although mother indicated she might have Indian heritage through her father and deceased paternal grandmother, she "could not identify the particular tribe or nation and did not know of any relative who was a member of a tribe. She did not provide contact information for her father and did not mention any other relative who could reveal more information." (Id. at p. 1468.) Accordingly, the court held mother's information was "too speculative" to trigger the notice requirements of ICWA. (Ibid.)
In In re J.D. (2010) 189 Cal.App.4th 118, the paternal grandmother stated she had been informed by her own grandmother that she had Indian ancestry. The paternal grandmother did not know whether such ancestry was through her maternal grandmother or grandfather, did not know what tribe such ancestor might have been a member of, and had no living relatives who could provide additional information. (Id. at p. 123.) Such information was too vague, attenuated and speculative to give the juvenile court any reason to believe the children might be Indian children. (Id. at p. 125.)
Joseph D.'s assertions that he was "not sure" or that "he believed" he had Native American ancestry but did not know what tribe or through what family member the ancestry derived were too vague to trigger ICWA notice requirements, even to the BIA. However, when circumstances indicate that a child may be an Indian child, the social worker also has an obligation to further inquire regarding the child's possible Indian status by interviewing family members or other persons who may have knowledge of the child's eligibility. (In re Shane G. (2008) 166 Cal.App.4th 1532, 1539.) "Further inquiry includes interviewing the parents, Indian custodian, extended family members or any other person who can reasonably be expected to have information concerning the child's membership status or eligibility. [Citation.] If the inquiry leads the social worker or the court to know or have reason to know an Indian child is involved, the social worker must provide notice. [Citations.]" (Ibid.)
Here, the record does not demonstrate the Agency fulfilled this obligation. Joseph D., while uncertain of his possible Indian ancestry, indicated that his mother would have more information. Yet, it does not appear the Agency inquired further of Joseph D.'s mother, or any other relative. Accordingly, we will reverse the order terminating parental rights as to Mia and remand the matter for compliance with ICWA.
Joseph K. contends the juvenile court failed to order that he be transported to the section 366.26 hearing or that he be allowed to appear by other means.
At the time of the hearing Joseph K. was incarcerated in Mississipi as part of the California Out-Of-State Correctional Facility (COCF) program. He claims he had a right to appear at the section 366.26 hearing and the Agency agrees. Joseph K. asked the Agency to inform the Department of Corrections and Rehabilitation (CDCR) of his request to be transported to the hearing and his counsel also made the request on his behalf in open court. The juvenile court concluded it did not have jurisdiction to order transportation of an inmate from an out-of-state penal institution and denied the request.
The Agency filed a letter, not a respondent's brief. As a respondent, the Agency must file and serve a respondent's brief which comports with the requirements of rule 8.204. (Rule 8.200(a)(2).) "Although it is the appellant's task to show error, there is a corresponding obligation on the part of the respondent to aid the appellate court in sustaining the judgment. 'It is as much the duty of the respondent to assist the court upon the appeal as it is to properly present a case, in the first instance, in the court below.' [Citation.]" (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 719, p. 787.) The Agency's letter did not address all the issues necessary for the disposition of this appeal. --------
Penal Code section 2625, subdivision (d) provides that when a parent is incarcerated, no proceeding seeking to terminate parental rights may be held without the physical presence of the incarcerated parent or the parent's attorney, unless the parent gives the court a written waiver of the right to be present. If there is no written waiver, the court must order the parent to be transported to the hearing. (Pen. Code, § 2625, subd. (e).) When the court receives a statement from a prisoner or his or her attorney that the prisoner wishes to be present during the court proceedings, "the court shall issue an order for the temporary removal of the prisoner from the institution, and for the prisoner's production before the court." (Pen. Code, § 2625, subd. (d).) For purposes of this section, "prisoner" is defined as any individual in custody "in a state prison, the California Rehabilitation Center, or a county jail, or who is a ward of the Department of the Youth Authority or who. . . is confined in a state hospital" for the criminally insane. (Pen. Code, § 2625, subd. (a).)
In enacting Penal Code section 2625, the Legislature has devised a scheme by which all state prisoners whose custody is under its direct control may physically appear at the termination hearing if they wish. (In re Gary U. (1982) 136 Cal.App.3d 494, 498.) "The Legislature contemplated the scheme would trigger on a simple court order directed to the warden of the state prison involved. This device can only be assured of success in California where the custodian is subject to the mandate of [Penal Code] section 2625 and the jurisdiction of the requesting court." (Id. at pp. 498-499.)
While case law has held that the provision does not apply to prisoners who are held out of state, those cases address instances when prisoners are incarcerated by another state and in another state. (See In re Maria S. (1997) 60 Cal.App.4th 1309, 1312 ["Penal Code section 2625 establishes a procedure through which state prisoners incarcerated in California are able to attend dependency hearings held in California. There is no statutory equivalent establishing a procedure to facilitate the attendance of out-of-state or federal prisoners"]; In re Gary U., supra, 136 Cal.App.3d 494, 498-499 [the right afforded in Penal Code section 2625 applies only to California state prisoners].) Here, however, Joseph K. was transferred to another state to serve his California sentence.
California houses prisoners out of state through the COCF. (See Cal. Code Regs., tit. 15, § 3000; see generally, California Correctional Peace Officers' Association v. Schwarzenegger (2008) 163 Cal.App.4th 802, 808.) Joseph K. asserts, and the Agency does not dispute, that he was housed in the Tallahatchie facility in Tutwiler, Mississippi, as part of the COCF program. He remained under California jurisdiction at the time of the section 366.26 hearing and in the legal custody of the CDCR and retained the rights and privileges of a California inmate. (Cal. Code Regs., tit. 15, § 3379, subd. (a)(9)(I); see also Pen. Code, §§ 11189 & 11190.) California Code of Regulations, title 15, section 3379, subdivision (a)(9)(I) provides: "Inmates transferred to a COCF program remain under the legal custody of the CDCR and shall be subject to the rules, rights and privileges of the CDCR in accordance with the California Code of Regulations (CCR), Division 3, Title 15." Additionally, Penal Code sections 11189 and 11190 provide for the transfer of a prisoner being housed out of state pursuant to the COCF program back to California for continued incarceration, release on parole or probation, discharge, or "for any other purpose" permitted by California law. (Pen. Code, §§ 11189, art. IV, subd. (c), 11190, art. IV, subd. (c).)
Under the circumstances, Joseph K. was entitled to appear at the section 366.26 hearing pursuant to Penal Code section 2625.
Joseph K. further contends the juvenile court failed to comply with the ICWA inquiry and notice requirements. Mother joins in this contention.
At the September 2015 detention hearing, mother told the juvenile court Leila had two possible biological fathers. Joseph K. was identified as an alleged father, and the Agency had an address for him at a correctional facility in Oklahoma.
At the November 2015 jurisdiction/disposition hearing, counsel for Joseph K. indicated he did not think Joseph K. knew about the proceeding. Notice of the hearing had not been served on Joseph K. and his counsel had not been able to contact him.
A blood sample was collected from Leila for paternity testing a few days before the jurisdiction/disposition hearing. Joseph K. had provided his blood sample a little more than two years prior on August 6, 2013, per the testing report. On December 2, 2015, the testing confirmed Joseph K. was Leila's biological father.
Sometime between November 13, 2015 and December 1, 2015, the Agency apparently located Joseph K. at the Tallahatchie County Correctional Facility. At no time, however, did the Agency inquire whether Joseph K. had Indian ancestry.
The Agency and the juvenile court have an affirmative and continuing duty, throughout the dependency proceedings, to inquire into a child's possible Indian status. (§ 224.3, subd. (a); In re Isaiah W. (2016) 1 Cal.5th 1, 10-11, 14; rule 5.481(a).) No inquiry was made of Joseph K.
The order terminating parental rights as to Mia C. is reversed and the matter is remanded to the juvenile court to ensure compliance with ICWA. If Mia C. is determined to be an Indian child, the juvenile court is directed to proceed in accordance with ICWA; otherwise, the juvenile court is directed to reinstate the order terminating parental rights.
The order terminating parental rights as to Leila C. is reversed and the matter is remanded to the juvenile court to ensure compliance with ICWA and to afford Joseph K. an opportunity to appear at a new section 366.26 hearing in accordance with Penal Code section 2625.
MAURO, Acting P. J. We concur: /S/_________
MURRAY, J. /S/_________