Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant D.B. Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant M.M. Thomas E. Boze, County Counsel, and Maria Elena Ramos Ratliff, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JVDP18000071)
APPEAL from an order of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge. Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant D.B. Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant M.M. Thomas E. Boze, County Counsel, and Maria Elena Ramos Ratliff, Deputy County Counsel, for Plaintiff and Respondent.
M.M. (mother) and D.B. (father) (collectively parents) appeal the juvenile court's order terminating parental rights to their now 20-month-old son, L.B. (Welf. & Inst. Code, § 366.26.) Mother, joined by father, contends the juvenile court erred when it denied her trial attorney's request for a continuance of the section 366.26 hearing so the assessment of relatives for placement could be completed. We conclude parents lack standing to challenge the order terminating parental rights on the grounds of relative placement and, in any event, the juvenile court did not abuse its discretion. We conditionally reverse, however, for the Stanislaus County Community Services Agency (Agency) to comply with notice deficiencies father, joined by mother, raises under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA).
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2018, the Agency received an emergency response referral that then two-month-old L.G. (the baby) was at Valley Children's Hospital with uncontrolled seizures caused by his brain bleeding and swelling. The baby had sustained significant trauma to the head, which a child abuse expert opined was due to the baby being shaken or slammed. Mother, who had a history of becoming frustrated when the baby cried, had been left alone with the baby for the first time; after about 20 minutes, she called father and paternal grandmother to inform them the baby was not acting normally. Paternal grandmother performed cardiopulmonary resuscitation on the baby, an ambulance was called, and the baby was transported to the hospital.
Maternal grandmother reported that mother, who was then nearly 18 years old, was diagnosed with bipolar disorder when she was 13 years old and she had been taken off her medication. Maternal grandmother did not believe mother was bonding with the baby and was not ready to be a mother. A hospital social worker reported that father, who was then 26 years old, had a learning disability and sometimes appeared to have difficulty understanding.
The Dependency Petition and Inquiries about Relative Placement
The Agency filed a dependency petition on June 29, 2018, which alleged the baby came within the provisions of section 300, subdivisions (a) (serious physical harm), (b)(1) (failure to protect) and (e) (severe physical abuse of a child under five). At the July 2, 2018 detention hearing, the juvenile court told parents they should encourage anyone interested in taking placement of the baby to contact Agency placement specialist Janet Diaz. The juvenile court explained that anyone interested in taking placement had to go through the Resource Family Approval (RFA) process, which included taking classes and being assessed, and the sooner interested individuals came forward, the sooner they could be assessed and the baby placed with someone parents trusted. The juvenile court detained the baby, who was still in the hospital, and ordered him placed in the Agency's care and custody. Parents and multiple relatives met with a social worker at the court and collectively asked about placement. The social worker told them to leave a voicemail for Diaz, who would inform them about the steps they needed to take.
On July 9, 2018, the Agency sent "Youth Connection Letters" (connection letters) regarding relative placement to 22 family members who "appeared on Stanislaus County Child and Family Services Youth Connections." Three days later, the baby was discharged from the hospital and placed in a nonrelative foster home.
On July 30, 2018, Diaz spoke with maternal grandmother, who had inquired about placement. Diaz explained the Agency was concerned about her "providing appropriate parenting and protection" because she and her spouse allowed mother to be involved in an inappropriate relationship with father when she was a minor and he was an adult. Diaz said they could still move forward with the RFA orientation and process, but the baby would not be placed with them.
On August 8, 2018, the Agency placed the baby with paternal great-uncle and great-aunt as an emergency placement, where he was doing well and adjusting appropriately. On August 23, 2018, during a home visit, paternal great-aunt told Diaz she and her husband were unable to pursue legal guardianship, but the baby could stay there as long as needed until a new placement could be located. Diaz told her she would work on reaching out to other relatives and possibly county homes to work on a placement change.
On September 14, 2018, paternal grandmother and stepgrandfather told Diaz they would like to be considered for placement. Diaz was concerned about placing the baby with them, however, due to the "protective factor" and because they were parents' sole transportation providers. At the beginning of October 2018, paternal grandmother told Diaz she and her husband would be attending an RFA orientation.
Diaz attempted to contact other relatives concerning placement. On September 19, 2018, Diaz called paternal aunt, who told Diaz she lived on a military base six hours from Modesto and was unable to take placement at that time. She could reconsider, however, if her situation changed. The next day, Diaz spoke with a maternal great-aunt by marriage, who said she would need to discuss it with her husband and would call back. Diaz also called and left a message for a maternal relative that a new placement was needed, and she would like to know if the relative was interested. At the end of September 2018, Diaz left a message for a maternal relative who had called asking for additional information regarding potential placement.
The Jurisdiction and Disposition Hearing
In a report prepared for the jurisdiction and disposition hearing, the Agency recommended parents be denied reunification services under section 361.5, subdivision (b)(5) and (6). The Agency asserted denial of services under these subdivisions was warranted because the baby was brought within the juvenile court's jurisdiction under section 300, subdivisions (a), (b)(1), and (e), due to the infliction of severe physical harm by a parent, and it would not benefit the baby to pursue reunification with the offending parents. The concurrent plan for the baby was "legal guardianship with a fit and willing relative."
At the October 22, 2018 combined jurisdiction and disposition hearing, parents decided to waive reunification services under section 361.5, subdivision (b)(14) in exchange for the Agency dismissing its request for a bypass of services under section 361.5, subdivision (b)(5) and (6). County counsel stated the Agency would attempt to place the baby with a relative under legal guardianship. He believed paternal grandparents were being assessed, but the baby would not be placed with them until the RFA was successfully approved and completed, and hopefully the baby would remain in the other relative's home until that time came. County counsel, however, wanted to make clear that if something should happen beyond everyone's control and relatives were not approved, the Agency probably would request termination of parental rights, and it could not control whether a relative caretaker preferred adoption over legal guardianship. County counsel added the Agency was "entering this in good faith in the hopes that a relative who wants legal guardianship would be approved," but if that did not happen, the Agency was not willing to redo any of the proceedings.
The juvenile court found the petition's allegations true after the parents submitted on jurisdiction. As to disposition, mother and father submitted waivers of reunification services. The juvenile court, in accepting parents' waivers, specifically asked them if they understood that if the court accepted the forms: (1) there was no guarantee the ultimate disposition for the baby would be a legal guardianship; (2) it was still possible that parental rights would be terminated and the baby placed for adoption; and (3) the court would set a selection and implementation of permanent plan hearing, at which it would decide whether to proceed with an adoption, appoint a legal guardian, or place in long-term foster care, with adoption preferred over a legal guardianship. Mother and father both answered "Yes" to these questions. The juvenile court accepted the waivers of reunification services, finding they "were freely and voluntarily entered into with a complete understanding of their meaning and impact." The juvenile court removed the baby from parental custody, denied reunification services under section 361.5, subdivision (b)(14) based on the waivers of services, and set a section 366.26 hearing for February 19, 2019.
Subsequent references to dates are to dates in 2019, unless otherwise stated.
Further Inquiries of Relatives Regarding Placement
On October 29, 2018, Diaz spoke with paternal great-aunt, who reiterated the baby could remain with them until a new placement was approved. Diaz also told paternal great-aunt a new social worker had been assigned to work with the family. The new social worker, Samantha Keiser, visited the baby at paternal great-aunt's home on November 9, 2018. On November 19, 2018, Keiser left a voice message for maternal grandfather, who attended an RFA orientation on November 1, 2018, asking about the orientation and how the application process was going.
On November 20, 2018, Keiser emailed county counsel about the baby's placement. Keiser informed them a family member was going through the RFA process, but the Agency was looking for a concurrent RFA or other adoptive home. One nonrelative family met the baby in November, but they declined placement due to the baby's unknown medical needs. A second family met the baby in mid-December. After two, three-hour visits, the family told Keiser they wanted to take placement of the baby on January 2.
On December 31, 2018, paternal grandmother called Keiser and said she heard from the baby's caretakers that the baby was being moved. Keiser told paternal grandmother she could not provide information about this, but if she had questions about the RFA process, she could talk to her social worker, and reminded her the RFA process does not guarantee placement. Keiser also called parents about the placement change. Father asked why the move was taking place; Keiser responded the baby was being moved to a home that was willing to be a concurrent home.
Keiser moved the baby to the new placement on January 2. That day, Keiser received a voice message from the "Foster Parent Association Compliant office" regarding the placement change. Keiser returned the call on January 10 and explained an emergency placement could not take place and the placement was made for a concurrent home. When asked why the Agency was not waiting to place with family members, Keiser shared the medical and financial concerns with the family going through the RFA process.
Keiser also received an email from the baby's counsel asking why paternal grandparents, who questioned why the baby was not placed with them since they believed they were on the verge of being approved, held that belief, since her office was informed in November 2018 the placement likely was not suitable. Keiser responded that according to paternal grandparents' RFA social worker, they were informed the state was looking at their application and they possibly would be denied placement due to their medical needs, being the benefits receiver for father, and some financial questions. Keiser's supervisor told her she could not inform paternal grandparents about the steps of the RFA process, but she had told paternal grandmother RFA does not guarantee placement and the Agency was looking for a family that could meet all of the baby's needs.
On January 8, Keiser received a voice message from paternal aunt and returned the call the following day. Paternal aunt asked why the baby was not placed with paternal grandmother, but Keiser said she could not talk about the case. Paternal aunt then asked about getting placement herself. Keiser told her about the RFA process and that it was time sensitive, since there was an upcoming court hearing.
On January 31, Keiser received a call from paternal aunt. After several days of leaving messages back and forth, the two finally spoke on February 4. Paternal aunt said she moved to another state and wanted to know the next steps for placement. Keiser told her to talk to the Agency's Interstate Compact on the Placement of Children (ICPC) coordinator, Phil Reilly. The next day, Keiser emailed paternal aunt Reilly's name and contact information. Paternal aunt called Keiser again on February 14 with further questions about the ICPC process. Keiser told her Reilly would be the best person to answer her questions.
On February 4, maternal great-grandmother called Keiser to ask about placement. Keiser told her the baby was placed in a concurrent home, but family could complete the RFA process, although that did not guarantee placement. Keiser told maternal great-grandmother about the RFA process and that the next orientation would be held on February 7.
On February 6, maternal grandfather called Keiser and said he just saw the voice message Keiser left for him in November. Maternal grandfather thought paternal grandmother already had placement, but he learned the prior week that she did not. Maternal grandfather said he completed his RFA application and would turn it into the Agency when he had some time. Maternal grandfather was still married to maternal grandmother, but they were not living together. On February 12, Keiser was informed maternal grandmother and maternal great-grandmother had completed orientation and turned in applications.
Paternal Grandmother's and Mother's Section 388 Petitions
Paternal grandmother filed a section 388 petition asking the trial court to continue the section 366.26 hearing "to allow more time for family who has been in RFA since October and to allow child to come for more liberal visits." Mother also moved to vacate and reset the section 366.26 hearing, the juvenile court denied the request on January 29. On February 19, the juvenile court set a contested section 366.26 hearing, as well as a contested hearing on whether to grant or deny a hearing on paternal grandmother's section 388 petition, for March 7.
On February 27, mother filed a section 388 petition asking the juvenile court to: (1) order the Agency to place the baby with one of the relatives who had come forward; (2) order the parties to meet to determine the best relative placement; (3) place the baby in mother's care; and (4) rescind the waiver of reunification services and allow mother to litigate the jurisdictional and dispositional issues. Mother asserted as changed circumstances, that in October 2018, the Agency and family identified paternal grandmother as the concurrent placement pending RFA approval, but in late January the Agency denied her placement, and rather than go down the list of appropriate and willing relatives who had previously come forward, the Agency moved the baby to a nonrelative home. Attached to the petition were four unsigned declarations from maternal grandmother, maternal grandfather, maternal great-grandmother, and mother. The juvenile court set a hearing on whether it should grant or deny an evidentiary hearing on mother's petition for March 7.
The Agency's Reports
In a report prepared for the section 366.26 hearing, the Agency recommended termination of parental rights and a permanent plan of adoption. Social worker Keiser, who inherited the case on October 26, 2018, reported the baby was placed in a concurrent foster home on January 2, and it was certain the foster parents would adopt him if given the opportunity. Keiser provided relative placement updates. Paternal grandmother attended the RFA orientation and submitted an application on October 4, 2018, but received a final denial from RFA on January 24. When paternal aunt called Keiser on January 8 to inquire about the placement process, Keiser provided information about the RFA process and the next orientation dates.
In an addendum report, Keiser provided further information regarding the consideration of relatives for placement. Paternal grandmother was RFA denied on January 24 due, in part, to the following: (1) she was the payee for father's social security benefits, and she did not have a realistic plan for caring for the baby and following her legal obligations to father; (2) the family's medical information; (3) financial concerns in meeting the baby's needs; and (4) the family's ability to meet the baby's medical and health needs. Paternal great-uncle and great-aunt were RFA approved on November 5, 2018, but from the time they took emergency placement, they were not interested in being a concurrent home. Keiser related her conversations with paternal aunt on February 4 and 14. Maternal grandfather turned in his RFA application on February 19. Keiser was informed maternal grandmother withdrew her application on February 20 because mother moved into her home.
The March 7 Hearing
At the March 7 hearing, the juvenile court first addressed paternal grandmother's section 388 petition. The juvenile court denied her request for continuance of the section 366.26 hearing, as she did not have standing to make such a request, but granted her request for twice monthly visits with the baby.
The juvenile court turned to mother's section 388 petition. Mother's attorney asserted that once paternal grandmother was denied placement, the Agency had a statutory obligation to ask relatives who came forward whether they wanted placement. He argued the juvenile court had two options: (1) grant an evidentiary hearing on placing the baby with one of the three relatives who came forward; or (2) continue the hearing for a few weeks so a meeting could be held with the Agency to find the relative most likely to be able to provide permanency. County counsel objected to setting an evidentiary hearing, noting there was no relative the Agency could place the baby with since none had been officially approved under the RFA process, and there was no indication why the petition was in the baby's best interest.
The juvenile court did not grant a hearing on any of the requests set forth in mother's section 388 petition. Instead, the juvenile court granted an evidentiary hearing on a modified request regarding whether, when the paternal great-uncle "indicated he was no longer a concurrent placement," the Agency evaluated other relatives who came forward and the type of visits they had. County counsel later asked the juvenile court to clarify the issue being heard. The juvenile court stated the purpose of the hearing was to "ensure that the agency complied with relative placement requirements, to assess relative placement after the paternal uncle said he was no longer concurrent placement for [the baby] on or about January 2."
Keiser testified on the Agency's behalf. After being assigned the case from the court unit, she conducted a home visit with paternal great-uncle on November 9, 2018, which is when she learned he was not a concurrent home, although he was willing to care for the baby until a new placement was found. The Agency held an interagency placement decision meeting on November 14, 2018, which was attended by Keiser and her supervisor, the RFA team, the adoption agency team, and the previous social workers. They discussed which relatives were going through the RFA process and whether other relatives had come forward as a result of the connection letters.
After determining paternal grandmother and maternal grandfather had responded to the connection letter, she talked to them about the RFA process and whether they had started it. Keiser learned paternal grandmother was going through the RFA process, but it was not complete and RFA approval was pending. Keiser also spoke with the RFA worker regarding paternal grandmother's application and asked to receive updates on it. After Keiser left the voice message for maternal grandfather on November 19, 2018, she did not receive any further information concerning him before she moved the baby. Keiser subsequently learned he was going through the RFA process. No other relatives came forward to ask about placement between November 9, 2018, and January 2. Keiser spoke with paternal aunt in January and February, and she testified about those conversations.
Since the baby was removed, the following relatives had visited the baby: (1) maternal grandfather visited twice; (2) maternal grandmother visited four times; and (3) paternal grandfather, who did not ask for placement or go through the RFA process, visited seven times. Neither maternal great-grandmother nor paternal aunt had ever visited the baby.
Following Keiser's testimony, mother's attorney asked the court to continue the hearing for 30 days, arguing the court had "a very clear record" that the Agency failed in its obligation to affirmatively reach out to relatives and explain the process. He further argued the court would "hear testimony if you want about how [relatives] were told to back off until November . And you have now between November  and January which is the critical period of time that there was no affirmative outreach to relatives and no reasoned explanation. You have nothing in the record to show that. In fact, you have the opposite which is 'we had an internal meeting and then I went back to look at the letters, but I didn't pick up the phone. I didn't send you letters like I was supposed to. I didn't pick up'—"
County counsel interrupted by asking if they were intending to argue right then. The juvenile court responded that it did not know, but it sounded like argument. County counsel objected "to any comments made about what the agency did or did not do or say to relatives who are not here testifying." Mother's attorney stated he was "asking for a continuance at this time because your questions have been answered, and the questions that you asked have been answered. The agency failed in its obligation—" The court interrupted, stating: "I think it's for the Court to make that determination. The request for continuance is denied. Call your next witness."
Paternal aunt, maternal grandmother and maternal grandfather testified on mother's behalf. Paternal aunt learned the baby was living with paternal great-uncle and great-aunt in August 2018, and did not learn the baby needed to be moved until January. She called the Agency at the end of August 2018, or beginning of September 2018, to find out what was going on and what she could do to take custody; she said she told Diaz she wanted placement. When she hung up, she felt "like [she] had no chance," because she was living in a different town and she "didn't have a chance there."
Paternal aunt next spoke with Keiser, at the end of January or beginning of February, when she was on the road moving to Missouri. She asked Keiser about the process to "transfer for foster care in California to Missouri." Keiser emailed her contact information for Phil Reilly, who was Keiser's supervisor. Paternal aunt contacted Reilly, who told her the Agency wanted to place the baby with someone immediately and she would not have time to complete the process even if she tried "to get it all going" once she got to Missouri. Paternal aunt contacted the social services agency in Missouri after she arrived there and was told to contact the social worker in Stanislaus County to begin the paperwork process. Paternal aunt visited the baby once, in August 2018, at paternal great-uncle's house, but had not visited since then.
Maternal grandmother testified she first asked for placement of the baby when he went into foster care. She spoke with Diaz, who said she was not going to recommend maternal grandmother as a foster parent because she knew mother was pregnant at a young age and allowed that to happen, but if the baby came up for adoption, she may have the option to adopt. She was informed about the RFA process, but she "never got to apply for it at that time." She called Diaz a few times after that to ask about the baby, but never discussed placement.
Maternal grandmother testified that in November 2018, she understood the baby was going to stay with paternal great-uncle and great-aunt until a family member, either on the maternal or paternal side, finished the classes and orientation. She decided to seek placement when mother told her in either November or December 2018, or possibly January, that paternal great-uncle was not going to keep the baby. She left a message for Keiser, but never spoke with her. She attended orientation in late February and submitted her application. When she applied, mother was not living with her. Mother, however, moved in with her two weeks before the hearing, so she rescinded her application.
Maternal grandfather testified he called Diaz about a week after the baby was placed in the first foster home and asked for placement. Diaz asked him to provide information so she could "run a check." When he brought the information to the Agency's office, he asked about orientation; the person he spoke to gave him the paperwork on it. He did not apply for placement, however, until February. He did not apply sooner because he understood paternal grandparents were going to have the baby and he was content with that. Maternal grandmother told him in January that paternal grandparents were not going to get placement. He did not realize he received a voicemail from Keiser asking if he was still interested in fostering until sometime in January. He called Keiser and said he was. He did not remember if she told him to attend an orientation, but he looked at an orientation pamphlet that was part of a packet he received on becoming a foster parent. He completed a CPR class and intended to finish a 12-hour class on becoming a foster parent that afternoon. However, no one had inspected his house and he had not completed his interviews.
Mother's attorney recalled Keiser. Keiser had been a social worker with the Agency since March 2018. The Agency's policy, when reaching out to relatives, was to look at relatives who had expressed interest or been contacted, as well as identify potential relatives through talking with the parents or sending out letters, who might be interested. After Keiser knew on November 9, 2018, the placement was no longer concurrent, she spoke with paternal grandmother, maternal grandfather and paternal aunt, all of whom she learned from log notes had expressed an interest in placement. She spoke with maternal grandfather about how to engage in seeking RFA approval around Halloween, and later left him a voicemail. There were no relatives approved for placement as of the hearing date.
Keiser told parents the baby needed a new placement on December 31, 2018. She did not tell them earlier because her supervisor, Reilly, told her to hold a placement decision meeting and reach out to relatives who, according to the notes, were interested in placement. She did not resend connection letters because she believed they only were required to be sent every six months if placement was disrupted. This was not accurate, however, and she was mistaken about the procedure.
When the baby was moved on January 2, Keiser was confident paternal grandmother was not going to be approved for placement under the RFA process, although she had not received an official notice. As of that date, no other relative had submitted an application through RFA.
Mother's attorney argued the Agency failed to comply with its obligation to evaluate relatives once Keiser knew the baby needed to be moved, and the juvenile court was compelled to "continue this out for a little while to get the results of the evaluation," and then order the baby moved to relatives if any were found to be appropriate. When the juvenile court asked the time frame he was proposing, mother's attorney responded since maternal grandfather was close to completing the RFA process and he was the family's placement preference, they "could be back here in a week."
Following arguments by the other attorneys, the juvenile court reiterated it granted an evidentiary hearing on mother's section 388 petition only to determine whether the Agency exercised due diligence in attempting to locate, notify and assess potential relatives for placement in compliance with section 361.3. The juvenile court found that the Agency had reached out to potential relatives, who clearly had been advised about the RFA process, but they "did not come forward like they should have." While the juvenile court thought "best practices dictated that the Agency should have sent out letters to the relatives in early November," the court did not believe the law required it. The juvenile court found that while the Agency's actions left "something to be desired," the Agency exercised due diligence to attempt to locate, notify and assess potential relatives for placement.
The juvenile court immediately proceeded with the section 366.26 hearing. Mother's and father's attorneys entered objections without additional evidence or argument. The juvenile court found it was very likely the baby would be adopted and termination of parental rights would not be detrimental. Consequently, the court terminated parental rights.
I. The Juvenile Court's Denial of Mother's Request for Continuance
Parents do not challenge the juvenile court's denial of mother's section 388 petition. Instead, mother, joined by father, contends the juvenile court abused its discretion when it denied her attorney's request for a 30-day continuance of the section 366.26 hearing, which was made following Keiser's initial testimony during the hearing on whether the Agency complied with its obligations under section 361.3. Parents contend there was good cause to continue the hearing because maternal grandfather was close to gaining RFA approval and the Agency's efforts to identify relative placement were lacking. Parents assert the Agency should have done more to ensure relatives knew they should all be assessed for placement, notified them sooner that paternal grandmother's application would likely be denied, and resent connection letters. Given these failures, parents argue the juvenile court abused its discretion in denying the requested continuance to allow for a comprehensive assessment of the potential for relative placement. Parents argue remand is required for the juvenile court to fully evaluate all possible relative placements, move the baby to a placement with any fit relative, and hold a new section 366.26 hearing.
As standing was not raised in the parties' briefs, we requested supplemental briefing on whether parents had standing to challenge the denial of mother's request for continuance of the section 366.26 hearing to allow for assessment of the potential for relative placement.
"Although standing to appeal is construed liberally, and doubts are resolved in its favor, only a person aggrieved by a decision may appeal. [Citations.] An aggrieved person, for this purpose, is one whose rights or interests are injuriously affected by the decision in an immediate and substantial way, and not as a nominal or remote consequence of the decision." (In re K.C. (2011) 52 Cal.4th 231, 236 (K.C.).)
The child in K.C. was removed from the parents and placed with a prospective adoptive family. The juvenile court bypassed reunification services for the parents and set a section 366.26 hearing. The child's grandparents filed a section 388 petition, seeking placement of the child in their home. At a combined hearing, the juvenile court denied the grandparents' section 388 petition, selected adoption as the permanent plan, and terminated the parents' rights. Both the father and the grandparents appealed. The grandparents' appeal was dismissed as untimely, and the father's appeal was dismissed based on a lack of standing. Our Supreme Court affirmed. (K.C., supra, 52 Cal.4th at pp. 234-235, 240.) The court held the father did not have standing to appeal the denial of the grandparents' section 388 petition because he did not contest termination of his parental rights and thus "relinquished the only interest in K.C. that could render him aggrieved by the juvenile court's order declining to place the child with the grandparents." (K.C., at p. 238.)
The court explained that until parental rights are terminated, all parents have a compelling interest in the companionship, care, custody, and management of their children. Thus, when dependency proceedings begin, the law's first priority is "to preserve family relationships, if possible." (K.C., supra, 52 Cal.4th at p. 236.) However, "after reunification services are terminated or bypassed . . . 'the parents' interest in the care, custody and companionship of the child [is] no longer paramount. . . . [and] "the focus shifts to the needs of the child for permanency and stability . . . ." ' " (Ibid.)
The court also explained the consequences of failing to raise any of the statutory exceptions to adoption at the section 366.26 hearing, which "permit the juvenile court not to terminate parental rights when compelling reasons show termination would be detrimental to the child." (K.C., supra, 52 Cal.4th at p. 237; § 366.26, subd. (c)(1).) Because the father did not argue any exception to terminate parental rights existed, it logically followed "[t]hat he ha[d] no remaining, legally cognizable interest in [the child's] affairs, including his placement . . . ." (Id. at p. 237.) The Supreme Court held, "A parent's appeal from a judgment terminating parental rights confers standing to appeal an order concerning the dependent child's placement only if the placement order's reversal advances the parent's argument against terminating parental rights." (Id. at p. 238.)
Here, although parents objected to the termination of parental rights, they did not challenge the termination by rebutting evidence of the baby's adoptability or raising any of the exceptions to adoption provided in section 366.26, subdivision (c)(1)(B). Consequently, they relinquished their interest in the baby and cannot show they were aggrieved. Thus, under the reasoning of K.C., parents lack standing to challenge the denial of the continuance, which was sought to allow for the continued assessment of relatives for placement.
Parents nevertheless contend they have standing for the following reasons: (1) had the continuance been granted, the juvenile court would have more information before it that may advance an argument against termination of parental rights, such as information concerning the baby's adoptability or that would show changed circumstances and best interests in support of mother's section 388 petition; and (2) had the baby been placed with a relative, the juvenile court would be prevented from terminating parental rights under the caregiver exception to termination of parental rights recognized in section 366.26, subdivision (c)(1)(A).
Mother claims her trial attorney requested a continuance because he believed the Agency failed in its duty to provide the juvenile court with all relevant information concerning the extended family's involvement in seeking placement and its concealment of information from the parents and family. The record, however, does not support this assertion. In her appeal, mother attempts to challenge only her attorney's request, made in the middle of the hearing on her section 388 petition, that the case be continued for 30 days because the Agency "failed in its obligation to affirmatively reach out to relatives, contact relatives, and explain to relatives the process." Her attorney did not request the continuance because the Agency failed to provide information to the court in its section 366.26 report and never objected to the adequacy of the report.
Subdivision (c)(1)(A) of section 366.26 provides for an exception to termination of parental rights under the following the circumstances: "The child is living with a relative who is unable or unwilling to adopt the child because of circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment through legal guardianship, and the removal of the child from the custody of his or her relative would be detrimental to the emotional well-being of the child."
These theories of how parents were injured, however, are purely speculative and do not confer standing. (In re Valerie A. (2007) 152 Cal.App.4th 987, 1000.) While mother contends the continuance could have led to the discovery of more information that may have prevented an adoptability finding or supported her section 388 petition, the continuance was not requested on that basis. Instead, the continuance was requested to allow for the assessment of relatives. Moreover, as mother acknowledges, it is speculative whether any such evidence would have been uncovered or would have resulted in the juvenile court deciding not to terminate parental rights.
It is also speculative that, had a continuance been granted, the baby would have been placed with a relative and the juvenile court would not have terminated parental rights. As of the hearing date, no relative had been approved under the RFA process. While maternal great-grandmother and maternal grandfather submitted applications the month before the hearing, neither had completed the process to even be evaluated for suitability for placement. Only maternal grandfather had visited the baby, and then only twice, in December 2018 and January, although he had scheduled monthly visits. In addition, neither relative indicated what level of commitment they had to the baby, such as foster care, guardianship or adoption.
Even if the juvenile court had continued the hearing and ultimately found placement with one of these relatives was appropriate, it would have immediately proceeded to the permanency determinations of the section 366.26 hearing. Placement with either relative would not have advanced the argument the relative caretaker exception applied because (1) there was no indication these relatives were unwilling to adopt the baby, and (2) the baby would not have been living with the relative for any length of time, so he would not have developed a relationship with the relative that would have made removal detrimental to the baby's emotional well-being. (In re A.K. (2017) 12 Cal.App.5th 492, 500.)
For these reasons, parents are not aggrieved parties and lack standing to raise the issue of the juvenile court's failure to grant a continuance to assess relatives for placement. While our conclusion obviates the need for us to address the merits, even if parents had standing, we would conclude the juvenile court did not err. Section 352, subdivision (a)(2), provides that a continuance shall be granted only on a showing of good cause. Continuances are generally discouraged in dependency cases, and we review the denial of a continuance for abuse of discretion. (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.) The appropriate test for abuse of discretion is whether the court exceeded the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Here, at the conclusion of Keiser's testimony but before mother presented her witnesses, mother's attorney requested a 30-day continuance, essentially arguing Keiser's testimony established the Agency failed in its obligation to reach out to relatives between November 2018 and January, and asserting the juvenile court's questions had been answered. The juvenile court responded that it was for the court to make that determination and denied the request. At that point, the juvenile court had not heard all of the evidence on the issue before it, namely whether the Agency exercised due diligence in attempting to locate, notify and assess potential relatives for placement. The juvenile court reasonably could conclude it should hear all of the evidence before making a ruling on that issue. Accordingly, good cause for a continuance at that point in the proceedings did not exist and the juvenile court did not err in denying the request.
While mother's attorney, in arguing the merits of the section 388 petition at the conclusion of testimony, asserted the juvenile court was compelled to continue the section 366.26 hearing because the Agency failed to comply with its obligation to identify and notify relatives, parents do not argue on appeal that the juvenile court erred in denying the petition. --------
Father, joined by mother, contends the juvenile court erred in finding ICWA did not apply to the proceeding, as the potentially interested Indian authorities were not provided family history information concerning all of the baby's great-grandparents. The Agency concedes the error, and we agree a conditional remand is appropriate.
A. The ICWA Notices
At the outset of the case, father reported he believed he had Cherokee, Sioux, Pueblo and Yaqui ancestry, while mother indicated she had no known Indian ancestry. On July 10, 2018, the Agency sent notice to the Bureau of Indian Affairs, the Secretary of the Interior, and all federally recognized Cherokee, Sioux, Pueblo and Yaqui Indian tribes. That notice included names and birthdates identifying: (1) father and mother; (2) maternal grandmother and grandfather; (3) paternal grandmother and grandfather; (4) one maternal great-grandmother; (5) one maternal great-grandfather; (6) one paternal great-grandmother; (7) paternal aunt; (8) paternal great-aunt; and (9) two paternal relatives.
Based on this information, most of the notified Indian authorities responded with letters that the baby was not a member, or eligible for membership, in their tribes. The Agency, however, received a letter from the Pueblo of Acoma asking for additional information about the baby's family tree and stating that until a determination was made, the case should be treated as an ICWA case. Specifically, the tribe asked for "parents & grandparents' names (maternal & paternal) and date[s] of birth."
Social worker Gurpreet Bains contacted mother and paternal grandmother to inquire further about the baby's maternal and paternal great-grandparents' names and dates and places of birth. Bains obtained the information from them and sent a completed family tree to the Pueblo of Acoma. The record does not show the Agency provided this additional information to any of the other Indian authorities. On February 19, the Agency received a letter from the Pueblo of Acoma stating it determined the baby was not a member or eligible for membership in the tribe.
On March 7, the Agency filed a motion for determination of ICWA applicability, asserting it mailed ICWA notices to the tribes on July 10, 2018, and while several tribes had responded, not all had. The Agency asked the court to determine ICWA did not apply to the proceedings. The juvenile court took up the ICWA motion at the outset of the March 7 hearing. Mother's and father's attorneys objected to the court ruling on the motion, as they did not believe ICWA had been complied with. After parents told the juvenile court they were not registered members of any of the tribes that had not yet responded, the juvenile court found ICWA did not apply to the proceedings and granted the Agency's motion, adding that if the Agency received additional information, there was an obvious ongoing duty of inquiry.
"Congress enacted ICWA to further the federal policy ' "that, where possible, an Indian child should remain in the Indian community." ' " (In re W.B. (2012) 55 Cal.4th 30, 48.) "Among the procedural safeguards included in ICWA is a provision for notice, which states in part: 'In any involuntary proceeding in a [s]tate court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.' (25 U.S.C. § 1912(a).)" (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 783.)
This notice requirement, which is also codified in California law (§ 224.2), enables a tribe to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding. No foster care placement or termination of parental rights proceeding may be held until at least 10 days after the tribe received the required notice. (25 U.S.C. § 1912(a); see § 224.2, subd. (d).) When the notice provision is violated, an Indian child, parent, Indian custodian, or the Indian child's tribe may petition to invalidate the proceeding. (25 U.S.C. § 1914.)
We emphasized the importance of ICWA compliance in In re H. A. (2002) 103 Cal.App.4th 1206, specifically requiring the agency to complete and serve the form ICWA-030 (notice form) along with a copy of the dependency petition, and file the completed notice form with the juvenile court along with copies of the proof of the registered mail or certified mail and the return receipt(s). (Id. at p. 1215.) It is essential that the agency provide the Indian tribe with as much information as is known about the child's ancestors, especially the one with the alleged Indian heritage. (In re Louis S. (2004) 117 Cal.App.4th 622, 631.) Notice must include all of the following information, if known: the child's name, birthplace, and birthdate; the name of the tribe in which the child is enrolled or may be eligible for membership; names and addresses (including former addresses) of the child's parents, grandparents, and great-grandparents, and other identifying information; and a copy of the dependency petition. (25 C.F.R. § 23.111(d)(1)-(5) (2018); § 224.3, subd. (a)(5)(A)-(D); In re D.W. (2011) 193 Cal.App.4th 413, 417; In re Mary G. (2007) 151 Cal.App.4th 184, 209.) While all of this information may not be available, even with an inquiry of available relatives, the agency has an ongoing duty to interview the child's parents and extended family, if known, concerning the child's membership status or eligibility. (§ 224.2, subds. (a) & (c); Cal. Rules of Court, rule 5.481(a)(4).)
Here, father contends the Agency's notices to the Indian authorities, except the Pueblo of Acoma, were deficient because they omitted identifying information for one set of maternal great-grandparents, both paternal great-grandfathers, and one paternal great-grandmother. While any error in information provided about maternal relatives is arguably harmless, given that mother did not claim Indian ancestry, the failure to provide information about paternal great-grandparents, which was available given the Agency's ongoing contact with paternal grandmother and grandfather during the course of the proceedings, and apparently was provided to one tribe, was error. (In re A.G. (2012) 204 Cal.App.4th 1390, 1396-1397 [social services agency failed to comply with its continuing duty of inquiry and provide notice under ICWA when it failed to interview available relatives about the child's Indian heritage and identify known family members in its notices to the tribes]; In re Francisco W. (2006) 139 Cal.App.4th 695, 703-704.)
"Unless a tribe has participated in or expressly indicated no interest in the proceedings, the failure to comply with ICWA notice requirements [citation] constitutes prejudicial error." (In re H. A., supra, 103 Cal.App.4th at p. 1213.) The Agency concedes the notice provisions of ICWA were not followed and the record here is consistent with that concession. Thus, we conditionally reverse the juvenile court's orders and remand for ICWA compliance.
The order terminating mother's and father's parental rights is conditionally reversed. The matter is remanded to the juvenile court for the sole purpose of complying with ICWA's duty of inquiry and notice provisions. If, after proper notice, the juvenile court determines the baby is an Indian child, the juvenile court shall proceed pursuant to the terms of ICWA. If the juvenile court determines ICWA does not apply, the order terminating mother's and father's parental rights shall be reinstated.
HILL, P.J. WE CONCUR: /s/_________
LEVY, J. /s/_________