California Court of Appeal Jun 8, 2015 No. D066690Unpublished
Filed 6/8/15 In re H.H. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re H.H., et al., Persons Coming Under the Juvenile Court Law.
S.D. COUNTY HEALTH & HUMAN D066690 SERVICES AGENCY,
Plaintiff and Respondent, (Super. Ct. Nos. J518380, J518380A-B) v.
Christina M.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Joe O.
Littlejohn and Kenneth J. Medel, Judges. Affirmed in part, reversed in part and
remanded with directions.
Law Offices of Rosemary Bishop and Rosemary Bishop, under appointment by
the Court of Appeal, for Defendant and Appellant.
County of San Diego County Counsel Thomas E. Montgomery and John E.
Philips, Chief Deputy County Counsel, Paula J. Roach, Deputy County Counsel for
Plaintiff and Respondent.
Tilisha Martin and Carolyn Levenberg, under appointment by the Court of Appeal,
for the Minors.
Christina M. appeals from a juvenile court judgment terminating her parental
rights over her children, H.H. and J.H., under Welfare and Institutions Code1 section
366.26. Christina contends the juvenile court prejudicially erred by (1) failing to comply
with the notice requirements of the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901
et seq.); (2) not continuing a section 366.26 hearing until after a relative placement
evaluation under section 387 was completed; and (3) finding that the "beneficial
relationship" exception to adoption did not apply in this case.
We conclude the juvenile court erred when it terminated parental rights before
hearing the section 387 petition on the children's placement. Because the error deprived
Christina of her statutory and due process rights, we reverse the order terminating
parental rights. We further conclude the court did not err when it determined ICWA did
not apply. Accordingly, we affirm in part, reverse in part and remand with directions.2
1 Statutory references are to the Welfare and Institutions Code.
2 In light of our disposition, we do not refer to certain facts regarding the court's decision to terminate Christina's parental rights or the conduct of the children's father, Brian H., because he is not a party to this appeal. 2
FACTUAL AND PROCEDURAL BACKGROUND
On March 16, 2012, the San Diego County Health and Human Services Agency
(Agency) filed a section 300 petition alleging that H.H. came within the juvenile court's
jurisdiction because in January 2011, then two-month-old H.H. was exposed to a violent
confrontation between Christina M. and Brian H.
The petition stated H.H. might be a member of the Apache tribe, as Christina had
once told a social worker she had Apache Indian heritage but she was not enrolled in the
tribe. Christina later told the same social worker that she did not have Indian heritage.
At an April 2012 hearing, Brian H. denied having American Indian ancestry. Christina
testified she had "watch[ed] the video of my grandmother . . . like a documentary, saying
she had Indian heritage, but she's old, so she really don't know or remember." Christina
testified her grandmother did not mention membership in any specific tribe, and the
grandmother could not name any person who might be involved in a tribe or might have
additional information about this matter. The court ruled ICWA did not apply "based
upon review of the [ICWA] form from both parents."
In May 2012, the court sustained the section 300 petition, declared H.H. a
dependent of the juvenile court, removed her from parental care, and placed her in a
licensed foster home. It ordered reunification services for the parents and ordered them
to comply with their case plans.
In August 2012, J.H. was born. The Agency filed a section 300 petition on his
behalf, alleging he faced a substantial risk of serious physical harm based on the parents'
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past domestic violence and continued cohabitation in violation of a restraining order.
Following a hearing, the juvenile court found ICWA did not apply in J.H's case. It
ordered J.H. detained and placed with a nonrelative extended family member. In
September 2012, H.H. and J.H. were placed in the same home. In November 2012, the
court declared J.H. a dependent of the juvenile court and removed him from parental
care.
In a February 2014 report, Agency sought a 60-day continuance of a scheduled
section 366.26 hearing because the children's caregiver had doubts about whether to
adopt the children; therefore, Agency needed more time to explore possible permanent
placement options for the children. Agency pointed out the maternal grandmother had
just begun her relative home assessment to be considered for placement. The social
worker stated the parents' visits with the children continued to be inconsistent, and
Christina's current whereabouts were unknown, although the maternal grandmother
reported Christina still lived with Brian H. The court granted the continuance until May
6, 2014.
In May 2014, Agency filed a section 387 petition to remove the children from
their non-related extended family member placement and requesting the children be
placed in foster care. In Agency's May 14, 2014 addendum report, the social worker
stated that in February 2014, the children's caregiver "expressed concern regarding the
children being placed with the maternal grandmother[, who] would go months without
seeing the children if she became upset with the caregiver." The social worker spoke
with the maternal grandmother on May 1, 2014, regarding her desire to adopt the children
4
versus provide them with guardianship, and the maternal grandmother "explained she
would do whatever she needed to do to get the children and that she wanted to provide
for them permanently." The social worker stated Agency was assessing the maternal
grandmother for placement: "She is currently completing a Relative Home Assessment
and a waiver for criminal history will need to be completed before it can be determined if
the home can be approved. . . . Agency will continue to assess the maternal
grandmother's protectiveness of the children and her commitment to providing a
permanent home for the children." The social worker concluded: "The children have
been assessed by the Agency as generally adoptable and are currently specifically
adoptable because they are in a home with an approved home study who has expressed
interest in adopting them."
On September 24, 2014, Christina's counsel sought a continuance of the section
387 hearing and the section 366.26 hearing to allow the maternal grandmother to
complete the required background checks for Agency's placement evaluation. Agency's
counsel explained that "the maternal grandmother ha[d] been aware of the relative home
assessment and its process since January and ha[d] dragged her feet throughout this entire
process." Counsel also pointed out the juvenile court had already granted one
continuance for the purpose of finalizing the placement evaluation. The court asked
Agency's counsel to state on the record its efforts to evaluate the maternal grandmother's
home, including its assessment of individuals who would have substantial contact with
the children. Agency's counsel responded the social worker "not only maintained contact
with the maternal grandparents but she also continuously explained what the process
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entailed, and she attempted to contact the adults that the grandmother listed as support.
[¶] She then also advised all the parties that they needed to livescan and they needed to
interview because the process does take a while, and maternal grandmother just
continued to drag her feet and to this day we're still awaiting an interview from one of the
adults, and also waivers are pending at this time."
Agency's counsel further explained: "The waivers are important in this case
because all three adults have extensive criminal history, and once the waivers are
approved, the social worker needs to review them, her supervisor needs to approve them,
so it's very important that the waivers are completed to make sure that we can waive any
criminal history in this case for the adults." The court asked if the maternal grandmother
herself had been cleared for placement, and Agency's counsel replied that the maternal
grandmother had initially "requested to have an attorney present after her first interview,
and then there was some difficulty in getting that set up, and then she eventually decided
not to have an attorney present and they were able to schedule for August [2014]."
Agency's counsel stated one more individual who would have significant contact with the
children needed to be interviewed, and afterwards it would take approximately six weeks
for that person's evaluation to be processed. Agency's counsel explained that Agency had
lost contact with this individual since approximately March 2014.
Christina's counsel argued in favor of the continuance: "[T]here's been so much
effort in trying to evaluate this home and it seems like we're nearly there. We just have
one more interview to do. We need the waivers back." The court countered: "The
person who is to respond, I can't order that person. That person's not before the court . . .
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and I can't even order a policeman to go out and pick up somebody if we don't know
where that person is and that person isn't responding, and that's basically what we have
here. [¶] . . . your position loses merit when a person who is going to be integrally
involved with this minor can't be located and needs to be vetted before we can proceed."
The court denied the continuance: "And I understand why [Christina] is doing it and
that's why I took the time to see where the mix-up was. It sounds like that I can't put the
blame on the Agency; that's what it sounds like to me. Even if I say grandmother's
already there, there's still a person who hasn't been interviewed. [¶] So after having
considered your request thoroughly and investigated thoroughly, I'm not prepared to
grant your request for a continuance for that purpose."
After the close of evidence on the section 366.26 hearing, the court terminated
parental rights. It reviewed various Agency reports and granted a six-week continuance
on the section 387 petition, stating: "I want to bring that issue back and I'm finding good
cause because there is a person who is a relative who is available, but she's not able to,
and that is because she has not been cleared. [¶] I'm not going to weigh causation or
who's at fault at this particular point in time. I'm simply saying I'm giving that leeway on
the [section] 387 [petition]." At that same hearing, the court ruled Agency did not need
to provide notice to comply with ICWA because the court "ha[d] reason to know that the
children [were] not Indian children."
At a December 1, 2014 section 387 hearing, the juvenile court sustained the
section 387 petition, finding there was no relative or noncustodial parent available and
7
willing to care for the children.3 The court ordered the children be continued as
dependents of the juvenile court.
DISCUSSION
I.
Christina contends Agency and the juvenile court failed to conduct an inquiry or
provide notice as required by ICWA, and therefore we should remand the case for
Agency to undertake the proper inquiry and notice.
Christina concedes: "It is true [Christina] twice stated she did not have Indian
heritage, once after a second verbal inquiry and once before the second detention hearing
for the younger minor, after the trial court had made its finding the ICWA did not apply.
However, these statements are less reliable than [Christina's] sworn testimony, in which
she provided specific information as to her Indian heritage." Christina contends Agency
and juvenile court failed to conduct an inquiry or provide notice as required by the
ICWA, and therefore we should remand the case for Agency to undertake the proper
inquiry and notice.
Agency argues that Christina is precluded from asserting an ICWA challenge in
this appeal because she did not raise it on an appeal from the May 10, 2012 dispositional
order. The Courts of Appeal have split on the issue of whether the doctrine of forfeiture
applies to a parent's belated claim of ICWA violations. (In re Pedro N. (1995) 35
Cal.App.4th 183, 189-191 [holding a mother foreclosed from raising the issue of
3 We grant Agency's request for judicial notice of the court's minute order of the December 1, 2014 hearing. (Evid. Code, § 452, subd. (a).) 8
improper notice under ICWA on appeal from termination of her parental rights because
she did not appeal from the dispositional order stating ICWA was inapplicable]; compare
In re Marinna J. (2001) 90 Cal.App.4th 731, 739 [holding parents' ICWA violation claim
cognizable on appeal although not raised until after parental rights were terminated].)4
Because the court made another ICWA finding at the section 366.26 hearing, Agency's
forfeiture argument is misplaced.
Even if the court had not made that ruling, however, we would deem the argument
forfeited. This court has previously held that the forfeiture doctrine is inapplicable in the
context of ICWA notice. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247,
251.) Here, we may assume, without deciding, that notwithstanding Christina's belated
objection, she has not forfeited her right to assert an ICWA violation because we
conclude that (1) the juvenile court properly found ICWA inapplicable based on the
conflicting evidence before it (see discussion, post) and (2) although the juvenile court
had an "affirmative and continuing" duty to inquire about whether the children were or
might have been Indian (§ 224.3, subd. (a); Cal. Rules of Court, rule 5.481(a)), it was not
required to revisit the issue absent new and credible evidence of possible Native
American ancestry. (See § 224.2, subd. (b); In re Aaliyah G. (2003) 109 Cal.App.4th
939, 942.)
4 This issue is currently on review before the California Supreme Court. (In re Isaiah W. (2014) 228 Cal.App.4th 981, review granted Oct. 29, 2014, No. B250231.)
9
"ICWA protects the interests of Indian children and promotes the stability and
security of Indian tribes and families by establishing certain minimum federal standards
in juvenile dependency cases." (In re Shane G. (2008) 166 Cal.App.4th 1532, 1538
(Shane G.).) An Indian child is defined as any unmarried person who is under age 18 and
is either (a) a member of an Indian tribe, or (b) eligible for membership in an Indian tribe
and the biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4).)
ICWA imposes a duty to give the child's tribe notice of the pending proceedings
and provides the tribe a right to intervene "[w]hen a court 'knows or has reason to know
that an Indian child is involved' in a juvenile dependency proceeding." (Shane G., supra,
166 Cal.App.4th at p. 1538; § 224.2, subd. (a).) "Alternatively, if there is insufficient
reason to believe a child is an Indian child, notice need not be given." (Shane G., at
p. 1538.) Notice requirements are meant to ensure that the child's Indian tribe will have
the opportunity to intervene and assert its rights in the proceedings. (In re Kahlen W.
(1991) 233 Cal.App.3d 1414, 1421.)
Section 224.3, subdivision (a) imposes an "affirmative and continuing duty" on the
court and the Agency "to inquire whether a child for whom a petition . . . is to be, or has
been, filed is or may be an Indian child in all dependency proceedings." Subdivision (b)
states that circumstances that may provide reason to know the child is a Native American
child include the following: "(1) A person having an interest in the child . . . provides
information suggesting the child is a member of a tribe or eligible for membership in a
tribe or one or more of the child's biological parents, grandparents, or great-grandparents
are or were a member of a tribe. (2) The residence or domicile of the child, the child's
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parents, or Indian custodian is in a predominantly Indian community. (3) The child or
the child's family has received services or benefits from a tribe or services that are
available to Indians from tribes or the federal government, such as the Indian Health
Service." (See also Cal. Rules of Court, rule 5.481(a)(5).)
If these or other circumstances indicate a child may be a Native American child,
the social worker must further inquire regarding the child's status, including by
interviewing the parents, extended family members or any other person who can
reasonably be expected to have information concerning the child's membership status or
eligibility. (§ 224.3, subd. (c).) If the inquiry leads the social worker or the court to
know or have reason to know a Native American child is involved, the social worker
must provide notice to the tribe and the Bureau of Indian Affairs. (Id., subd. (d); Shane
G., supra, 166 Cal.App.4th at pp. 1538-1539.) More than a bare suggestion of Native
American ancestry is needed before notice is required. (In re Jeremiah G. (2009) 172
Cal.App.4th 1514, 1520.)
We conclude that proper inquiry was conducted to determine whether the children
were Native Americans within the meaning of ICWA. All Christina knew of the matter
was that her mother had a possible connection to the Apache tribe. Further, as Christina
concedes, she twice stated on the record she did not have Indian heritage. Under this
circumstance, the court was not required to give notice. The evidence in this case is akin
to that which this court found insufficient to invoke the notice requirement in Shane G.:
"Here, Agency's inquiry produced no information Shane was an Indian child. The social
worker interviewed the maternal grandmother who indicated Shane's great-great-great-
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grandmother was a Comanche princess. However, no one in the family ever lived on a
reservation, attended an Indian school, participated in Indian ceremonies or received
services from an Indian health clinic." (Shane G, supra, 166 Cal.App.4th at p. 1539.)
On this record, the court was not required to provide ICWA notice. (§ 224.3,
subd. (d); Shane G., supra, 166 Cal.App.4th at p. 1539 [an attenuated, speculative or
vague claim of Indian heritage is insufficient to trigger notice requirements under
ICWA].) "Where, as here, the record is devoid of any evidence a child is an Indian child,
reversing the judgment terminating parental rights for the sole purpose of sending notice
to the tribe would serve only to delay permanency for a child . . . rather than further the
important goals of and ensure the procedural safeguards intended by ICWA." (Shane G.,
at p. 1539.)
II.
Christina contends the court committed reversible error by continuing the hearing
regarding a relative placement under section 387 without also continuing the section
366.26 hearing. She claims that by doing so, the court deprived her of standing at the
subsequent hearing, where she otherwise could have advocated for a more favorable
permanent plan for the children. She specifically argues the juvenile court's action
"resulted in an untimely weakening of the statutory relative preference, deprived the
parents of the right to participate in the section 387 [hearing], and prematurely foreclosed
the option of guardianship with the maternal grandmother as a permanent plan."
Agency concedes the juvenile court erred procedurally, but claims the error was to
grant the continuance on the section 387 petition, instead of denying it. Agency argues
12
any error was harmless because the maternal grandmother was not a proper placement
option for the children as the court subsequently ruled, and she had sought adoption of
the children, not guardianship.
We review the juvenile court's grant of a continuance for abuse of discretion. (In
re Giovanni F. (2010) 184 Cal.App.4th 594, 605.) This court has stated: "[A] placement
decision under section 387 has the potential to alter the court's determination of the
child's best interests and the appropriate permanency plan for that child, and thus may
affect a parent's interest in his or her legal status with respect to the child." (In re. H.G.
(2006) 146 Cal.App.4th 1, 10.) In interpreting our holding in that case, the California
Supreme Court stated, "[B]ecause the [juvenile] court failed to properly consider the
request for placement with relatives, the order terminating parental rights was at least
premature and possibly erroneous: The placement of a dependent child with relatives
can, under certain circumstances, make the termination of parental rights unnecessary."
(In re. K.C. (2011) 52 Cal.4th 231, 237.)
As a matter of statutory right and procedural due process, we conclude the court
erred by terminating Christina's parental rights before deciding the issue of relative
placement. In so doing, the court deprived Christina of an opportunity to be heard at the
placement hearing. The juvenile court is required to consider the parents' wishes when
court is required to consider the wishes of the parent and assess the best interest of the
child].) We also point out the court's procedure deprived Christina of her right to appeal
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any order denying placement pursuant to section 387. In light of the above, we cannot
agree with Agency's speculation that the error was harmless.
Because we reverse the order denying Agency's petition for failure to comport
with statute and due process rights, we must also reverse the order under section 366.26
terminating parental rights and selecting adoption as the permanent plan. (Cf. In re
Hashem H. (1996) 45 Cal.App.4th 1791, 1801 [addressing a section 388 hearing]; see
also In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416 ["In the chronology of these
events, a fair hearing on the section 388 petition was a procedural predicate to proceeding
to the section 366.26 hearing."].) As in In re Hashem H., "[i]t is with reluctance that we
reverse the orders . . . , for each delay in reaching a permanent plan 'can be a lifetime to a
young child.' " (Id. at p. 1801, quoting In re Marilyn H. (1993) 5 Cal.4th 295, 310.)
In light of our disposition, we need not address other contentions Christina raises
on appeal.
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DISPOSITION
We affirm the juvenile court's judgment finding that the Indian Child Welfare Act
does not apply. We reverse the findings and orders under Welfare and Institutions Code
section 366.26. We vacate the findings and orders of the Welfare and Institutions Code
section 387 hearing held on December 1, 2014. The court is directed to hold a hearing on
Christina M.'s request to place the children with their grandmother under Welfare and
Institutions Code sections 387 and 361.3, and thereafter hold a new section 366.26
hearing.
O'ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
NARES, J.
15
AI Brief
AI-generated · verify before citing
Holding. The court held that the juvenile court erred by terminating parental rights before resolving a pending section 387 relative placement petition, thereby violating the parent's statutory and due process rights. However, the court correctly determined that the Indian Child Welfare Act (ICWA) did not apply.
Issues
Did the juvenile court err by failing to comply with ICWA notice requirements?
Did the juvenile court err by terminating parental rights before resolving a pending section 387 relative placement petition?
Disposition. Affirmed in part, reversed in part and remanded with directions.
Quotations verified verbatim against the opinion
“We conclude the juvenile court erred when it terminated parental rights before hearing the section 387 petition on the children's placement.”
“As a matter of statutory right and procedural due process, we conclude the court erred by terminating Christina's parental rights before deciding the issue of relative placement.”
“We affirm the juvenile court's judgment finding that the Indian Child Welfare Act does not apply.”