San Bernardino County Children & Family Services v. Kimberly L. (2016) · DecisionDepot
San Bernardino County Children & Family Services v. Kimberly L.
California Court of Appeal Jan 14, 2016 No. E063869Published
Before: McKinster, Hollenhorst, King
Synopsis
[CERTIFIED FOR PARTIAL PUBLICATION †]
Filed 1/14/16
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re ALBERT A. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E063869
Plaintiff and Respondent, (Super.Ct.Nos. J253936 & J253937)
v. OPINION
KIMBERLY L.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin
and Cheryl C. Kersey, Judges. Affirmed in part; reversed in part with directions.
Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and
Appellant.
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part III, sections C., D., E., and F.
1
Jean-Rene Basle, County Counsel, and Danielle E. Wuchenich, Deputy County
Counsel, for Plaintiff and Respondent.
I.
INTRODUCTION
Kimberly L. (mother) appeals from orders under Welfare and Institutions Code1
section 366.26 terminating her parental rights to Albert A. (A.A.) and Veronica A. (V.A.)
(the children). Mother contends: (1) the juvenile court’s jurisdictional orders finding the
children were dependents within the meaning of section 300, subdivision (b)(1), were not
supported by substantial evidence; (2) the juvenile court abused its discretion by
terminating reunification services and setting a section 366.26 permanency planning
hearing; (3) the juvenile court abused its discretion by denying mother’s request to
continue the permanency hearing to allow her time to file a petition under section 388
requesting additional reunification services; (4) the juvenile court’s orders finding the
children were likely to be adopted were not supported by substantial evidence; and (5) the
juvenile court erred by concluding legally sufficient notice was provided to relevant
Indian tribes pursuant to the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; ICWA).
Respondent San Bernardino County Children and Family Services (CFS) argues
mother waived her right to challenge the jurisdictional orders by not appealing from the
dispositional orders, and mother waived her right to challenge the orders terminating
1 Unless otherwise indicated, all additional statutory references are to the Welfare and Institutions Code.
2
reunification services by not filing a petition for extraordinary writ challenging the orders
setting a permanency hearing. CFS contends the juvenile court did not abuse its
discretion by not continuing the permanency hearing. Although CFS concedes the
juvenile court did not consider a possible legal impediment to the children being adopted
by their paternal grandmother, CFS contends the court correctly found they were likely to
be adopted. Finally, CFS concedes the ICWA notice was inadequate and that a
conditional reversal and limited remand to provide adequate notice is appropriate.
In the published portion of this opinion, we conclude mother waived her claim of
error regarding the jurisdictional orders by not appealing from the dispositions. Mother
was absent from the continued jurisdictional hearing and was not entitled to notice of her
right to appeal under California Rules of Court, rule 5.590(a).2 Because we conclude the
juvenile court did not provide mother with timely and adequate notice of her right to
challenge the orders setting a permanency hearing, as mandated by rule 5.590(b), mother
did not waive her claim of error respecting the termination of reunification services.
In the unpublished portion of this opinion, we conclude the juvenile court did not
abuse its discretion by terminating reunification services or by denying a request to
continue the permanency hearing because mother did not comply with her case plan and
did not visit with the children. However, we agree with mother that the juvenile court
erred by not considering legal impediments to the children being adopted by their
paternal grandmother when it found the children were likely to be adopted, and we agree
2 All additional references to rules are to the California Rules of Court.
3
with mother and CFS that the ICWA notice was inadequate. Therefore, we reverse the
orders terminating parental rights and remand for the juvenile court to consider legal
impediments to the children being adopted, for CFS to provide new ICWA notice, and for
the juvenile court to determine whether that notice is sufficient.
II.
FACTS AND PROCEDURAL HISTORY
A. Referral to CFS and Detention
CFS received a referral alleging general neglect of the children when mother
appeared at V.A.’s elementary school and acted strangely. Mother requested V.A. be
called from her classroom so mother could take her to juvenile hall. The school principal
reported the incident to law enforcement. V.A. told school officials that earlier in the
morning mother told her to change her clothing because she did not approve of her jeans.
V.A. said mother became irate, grabbed her, and tried to force her into mother’s car to
take her to juvenile hall. The children’s father3 intervened and told V.A. to run to school.
Mother admitted to the school principal she was under the influence of
methamphetamines. Law enforcement officers who responded also observed mother was
under the influence of methamphetamines, and placed her under arrest. The referral also
stated both mother and the father used methamphetamines and lived in the children’s
paternal grandmother’s garage.
3 The father is not a party to this appeal.
4
The paternal grandmother told the social worker she was concerned about the
children’s welfare because the parents used drugs and would leave for days at a time
without telling the paternal grandmother when they would return or how they could be
contacted. The parents would leave the children in the paternal grandmother’s care, but
would not provide resources or provisions for the children. The paternal grandmother
also told the social worker she was concerned about mother’s mental health because she
acted strangely. Finally, the paternal grandmother told the social worker she wished to
continue caring for the children.
When interviewed, mother told the social worker the paternal grandmother kicked
mother out of the house and she did not have a permanent place to stay. However,
mother told the social worker she could stay at the home of the children’s maternal
grandfather as long as she did not use drugs. Mother admitted she used
methamphetamines on a daily basis, but told the social worker she had not used since her
arrest. Although mother told the social worker she was not under the influence of drugs
during the interview, the social worker reported mother had “pressured speech, flight of
ideas, paranoid ideations, [and] auditory hallucinations.” Mother told the social worker
she experienced visual hallucinations in the past, and reported experiencing an auditory
hallucination earlier that day. While standing on a balcony, smoking a cigarette, mother
heard a voice say, “Jump! Just do it.” Mother denied she was suicidal.
Although mother told the social worker she would seek drug treatment and would
follow through with a mental health assessment, the social worker reported mother lacked
insight into how her drug use and behavior affected the children. Mother did not believe
5
her behavior was attributable to her drug use, and instead attributed the change in her
behavior to the fact a ruby was stuck in her body. The social worker reported this
appeared to be “a paranoid ideation and tactile hallucination of ‘feeling like something is
in her body.’” The social worker reported her concern that mother’s drug use,
hallucinations, and inability to provide for the children placed them at risk of harm, and
her erratic behavior was disruptive to the children’s school and living situations.
During a “team decision making” meeting, mother experienced sporadic
hallucinations, became irate, and walked out of the meeting. When it was decided the
father would care for the children and take them to the paternal grandmother’s home,
mother began shouting obscenities at A.A. and the paternal grandmother. CFS concluded
mother’s mental health issues and substance abuse placed the children in imminent risk
of harm, and concluded the children should not remain in the custody of the parents or
the grandparents. An officer with the San Bernardino Police Department served a
detention warrant, and the children were detained and placed in the custody of CFS.
In petitions filed with the juvenile court, CFS alleged the children were dependents
within the meaning of section 300, subdivision (b)(1), because mother and the father’s
substance abuse, as well as mother’s history of mental health issues, rendered them unable
to properly and appropriately care for the children. CFS also alleged the children suffered
severe emotional damage as a result of mother’s verbal abuse during a psychotic episode,
within the meaning of section 300, subdivision (c). CFS recommended the juvenile court
order the children be detained and placed in foster care.
6
Mother appeared for the detention hearing, during which her appointed attorney
entered a denial of the allegations and requested the juvenile court appoint a guardian ad
litem for mother. The juvenile court appointed a guardian ad litem for mother, made a
prima facie finding that the children were dependents within the meaning of section 300,
and ordered the children detained and placed in foster care. The court ordered mother to
submit to random drug testing, and ordered supervised visitation with the children a
minimum of once a week for two hours. CFS was ordered to provide reunification
services to mother and the children. At CFS’s request, the court ordered unsupervised
visitation by the paternal grandmother.
B. Jurisdictional and Dispositional Orders
In the report submitted for the jurisdictional hearing, the social worker stated
neither parent had made contact with CFS since the children’s removal. The social
worker spoke to the paternal grandmother, who said the father’s whereabouts were
unknown and mother was hospitalized in the psychiatric unit at San Bernardino
Community Hospital. The paternal grandmother also reported mother planned on
entering a residential treatment program upon release from the hospital.
Although the social worker stated mother’s entry into a psychiatric facility was a
significant step toward addressing her mental instability, the social worker continued to
express concern that mother’s mental health issues and her unstable lifestyle had a
detrimental impact on the children’s emotional well-being. The social worker also
reported the children displayed deficits in their education and basic life skills. Finally,
the social worker reported the paternal grandmother was a consistent source of support
7
for the children, and she was being assessed as a potential caretaker for the children. CFS
recommended the juvenile court find true the allegations in the petitions, declare the
children to be dependents, order the children to remain in their current placement and not
be returned to their parents, and approve the case plan prepared for mother.
Mother did not appear for the continued jurisdictional hearing. Without objection,
the juvenile court received into evidence the social worker’s detention and jurisdictional
reports. Mother’s counsel objected to the allegations in the petitions, but offered no
affirmative evidence. The juvenile court found true the allegations of neglect under
section 300, subdivision (b)(1). On the allegations of severe emotional damage within
the meaning of section 300, subdivision (c), mother’s counsel argued what mother said to
the children might not have been nice but did not have “any lasting effect on the
[children] to rise to the level of emotional abuse.” The juvenile court agreed mother did
not cause the children to experience serious emotional damage, and found the allegation
not true. The court declared the children to be dependent children.
With respect to the disposition, the juvenile court ruled continuance of the children
in the parents’ home was contrary to the children’s welfare, reasonable efforts had been
made to prevent or eliminate the need to remove the children, and the children were to be
placed with the paternal grandmother. Mother did not appeal from the disposition.
C. ICWA Notice
The social worker’s report for the detention hearing indicated ICWA might apply
to the children. At the detention hearing, mother’s guardian ad litem informed the
juvenile court mother believed she had Indian ancestry through her father (the children’s
8
maternal grandfather), and mother submitted a Judicial Council form ICWA-020
indicating she may have Indian ancestry. CFS gave notice of the proceedings to the
Bureau of Indian Affairs (BIA) and to 27 California Indian Tribes. The notices included
mother’s name, current address, and her date of birth. The notices also included the
maternal grandfather’s name and current address, but did not include the date and place
of his birth.
When CFS reported that none of the Indian tribes who responded had concluded
the children were members or eligible for membership in the tribes, the juvenile court
found that proper ICWA notice had been given.
D. Six-month Review Hearing and Order Setting Permanency Hearing
In a status review report, the social worker reported mother’s whereabouts were
unknown and she had only made contact with CFS three times in the prior five months.
The social worker asked mother to provide a mailing address, but mother said she was
homeless. The paternal grandmother told the social worker she did not know where
mother or the father resided. She further reported she would only hear from mother about
every three months, and mother had not once visited with the children since they were
placed in the paternal grandmother’s care. The social worker reported the children
continued to do well in the paternal grandmother’s care and in school, and V.A. told the
social worker that “she is okay with her grandmother becoming her adoptive parent.”
The social worker informed the juvenile court the current plan was for the paternal
grandmother to adopt the children, and recommended the juvenile court terminate
reunification services and set a permanency planning hearing under section 366.26.
9
At the six-month review hearing conducted on November 12, 2014, mother’s
counsel informed the juvenile court mother’s whereabouts were still unknown and
“[t]here is no address in the report or contact information.” Mother’s counsel
acknowledged the social worker’s report indicated mother had not visited the children in
six months, which was the basis of the recommendation for terminating reunification
services. However, counsel asked the court to consider providing mother with an
additional six months of reunifications services. “A lot of things can change in six
months. The children are over the age of three. If not, I would object.” Mother’s
counsel also indicated it was unclear “what the wishes of the children are in terms of
mom having six more months of services or not.”
The juvenile court stated that the social worker’s report indicated V.A. was “okay
with her grandmother becoming the adoptive parent.” When asked if that was correct,
V.A. responded, “Yes.” Based on the information included in the social worker’s report,
the juvenile court found no reason to continue reunification services. Counsel for CFS
concurred with the court’s assessment, and counsel for the children agreed, stating,
“although [the children] probably would like more time for the mom, I don’t see where
there is any likelihood of reunifying within the continuing review period.” In response,
mother’s counsel asked the juvenile court to order CFS to assess the parental
grandmother for both guardianship and adoption. Counsel for the children and for CFS
agreed that all options should be considered.
10
The juvenile court adopted the social worker’s recommendations, findings and
orders, found that mother had failed to visit and maintain contact with the children during
the last reporting period, terminated reunification services, limited mother’s supervised
visits with the children to once a month, and set a permanency hearing under section
366.26. The court directed the clerk of the court to “send notice of intent to file a writ
and the writ petition to the parents by first class mail to the last known address.”
Five days after the six-month review hearing, the clerk of the juvenile court served
mother by first class mail with copies of Judicial Council forms JV-820 (“Notice of Intent
to File Writ Petition”) and JV-825 (“Petition For Extraordinary Writ”). The clerk mailed
the forms to an address on 6th Street in San Bernardino. Almost two months later, the
United States Postal Service returned the envelope to the juvenile court, marked
“RETURN TO SENDER.” Handwritten on the envelope are the words, “Not live here.”
Mother did not file a notice of intent to file a petition for extraordinary writ challenging
the order setting a permanency hearing.
E. Permanency Hearing and Termination of Parental Rights
In a report filed for the permanency hearing, the social worker reported that
mother’s first visit with the children was on March 3, 2015, almost four months after the
juvenile court had set the permanency hearing. Mother did not appear for the next
scheduled monthly visit, but showed up the next day, telling the social worker “she had
her days mixed up.” The social worker rescheduled the visit.
11
The social worker reported the children were suitable for adoption by the paternal
grandmother. Although at first the paternal grandmother preferred guardianship to
establish permanency for the children, she changed her mind when she realized adoption
would provide her with more control in raising the children without the interference of
extended family members, and because the children expressed their preference for
adoption. The social worker requested a continuance of the permanency hearing to allow
for assessment of the paternal grandmother as the prospective adoptive parent. The
juvenile court granted the request.
In an addendum report, the social worker reported the paternal grandmother was
nurturing, employed, and had no medical issues. The paternal grandmother’s home was
located in a quiet neighborhood, nicely furnished, well maintained, and close to parks,
schools, shopping, and emergency facilities. The paternal grandmother occasionally
drinks alcohol socially, and reported having no counseling or psychological evaluations.
The paternal grandmother told the social worker she is able and willing to meet the
children’s social, medical, psychological, and financial needs, and understands the
responsibilities she will be taking on. The paternal grandmother also expressed her belief
she is the person best suited to adopt the children, and the children told the paternal
grandmother they would rather she adopt them than be their guardian.
The social worker reported the paternal grandmother had no criminal or child
abuse history. However, the social worker reported the paternal grandmother is still
married to her estranged husband, so legal proof of the husband’s consent was needed to
proceed with adoption. The social worker recommended the juvenile court find that the
12
children are appropriate for adoption and select adoption as the permanent plan; find that
termination of mother’s parental rights would not be detrimental to the children; and find
inapplicable the benefit exception to termination of parental rights under section 366.26,
subdivision (c)(1).
At the June 9, 2015, continued permanency hearing, mother filed documentation
of her attendance at Narcotics Anonymous (NA) meetings. Counsel for mother requested
a continuance of the hearing so mother could file a petition for change of order pursuant
to section 388, but stated she was prepared to proceed if the juvenile court was not
inclined to continue the hearing. The juvenile court denied the request and directed
counsel to file a petition under section 388 forthwith. The court noted the permanency
hearing had originally been set for March 12, 2015, indicated that it had already been
continued once, and stated: “It’s now June 9th. If the mother was going to file a
[section] 388 petition, she had plenty of time to do so before today’s date.” Mother’s
counsel objected, but indicated she was prepared to proceed with a contested hearing.
Without objection, the juvenile court received into evidence the social worker’s
report and addendum report. Mother’s counsel objected to the recommendation of
terminating parental rights, and asked the juvenile court to consider legal guardianship as
a lesser alternative to adoption. Counsel argued the paternal grandmother had initially
expressed a preference for guardianship, and mother had made progress in her substance
abuse treatment as demonstrated by the documentation submitted to the juvenile court.
Mother’s treatment, according to counsel, showed mother had “made progress in
becoming more stable and more able to interact with her children.” Counsel also argued
13
that mother’s recent visits with the children went well and again requested the juvenile
court consider legal guardianship and grant mother additional visitation so “she might in
the future have an opportunity to file a 388 to request return of the children.” Because
the children are older and have an established relationship with mother, counsel asked the
juvenile court not to sever mother’s relationship with the children.
Counsel for the children informed the juvenile court both children agreed with the
social worker’s recommendation of adoption by the paternal grandmother, and informed
the court she saw no evidence termination of mother’s parental rights would be
detrimental to the children.
Counsel for CFS argued the children were generally and specifically adoptable
and, given the children’s ages, stated CFS would not have recommended termination of
parental rights if the children were not in agreement. Counsel stated V.A. was 13 years
old and could have vetoed the termination of parental rights, so the recommendation was
in the best interests of the children. Moreover, counsel argued the children would remain
in their extended family and their family relationship would continue. Finally, counsel
argued there was no evidence to support finding an exception to the preferred permanent
plan of adoption.
The juvenile court stated it “considered the wishes of each child consistent with
each child’s age,” and found by clear and convincing evidence each child is likely to be
adopted. The court therefore terminated mother’s parental rights, selected adoption as the
children’s permanent plan, and referred each child to the California Department of Social
Services or to a local, licensed adoption agency for placement.
14
Mother timely appealed.
III.
DISCUSSION
A. Mother Waived Her Challenge to the Jurisdictional Findings by Not Timely
Appealing from the Dispositions
Mother contends there is no substantial evidence to support the juvenile court’s
jurisdictional findings under section 300, subdivision (b)(1), and argues she did not waive
her right to assert those claims of error. CFS contends mother waived her right to
challenge the jurisdictional orders by not timely appealing from the disposition. We
agree with CFS.
“‘Dependency appeals are governed by section 395, which provides in relevant
part: “A judgment in a proceeding under [s]ection 300 may be appealed from in the same
manner as any final judgment, and any subsequent order may be appealed from as from
an order after judgment . . . .” [¶] This statute makes the dispositional order in a
dependency proceeding the appealable “judgment.” [Citation.] Therefore, all subsequent
orders are directly appealable without limitation . . . . [Citations.] A consequence of
section 395 is that an unappealed disposition or postdisposition order is final and binding
and may not be attacked on an appeal from a later appealable order.’ [Citation.] This
‘waiver rule’ holds ‘that an appellate court in a dependency proceeding may not inquire
into the merits of a prior final appealable order,’ even when the issues raised involve
important constitutional and statutory rights. [Citation.]” (In re Z.S. (2015) 235
Cal.App.4th 754, 769-770.)
15
Mother does not dispute she did not appeal from the dispositional orders, but she
argues the waiver rule is inapplicable because the juvenile court did not advise her of her
right to appeal. Rule 5.590(a) provides: “If at a contested hearing on an issue of fact or
law the court finds that the child is described by Welfare and Institutions Code section
300, 601, or 602 or sustains a supplemental or subsequent petition, the court after making
its disposition order other than orders covered in (b) must advise, orally or in writing, the
child, if of sufficient age, and, if present, the parent or guardian of: [¶] (1) The right of
the child, parent, and guardian to appeal from the court order if there is a right to appeal;
[¶] (2) The necessary steps and time for taking an appeal; [¶] (3) The right of an indigent
appellant to have counsel appointed by the reviewing court; and [¶] (4) The right of an
indigent appellant to be provided with a free copy of the transcript.”
The courts have consistently held that when a parent is not properly advised of his
or her right to challenge the setting order by extraordinary writ, and consequently the
parent does not timely file a writ petition, good cause exists to consider issues relating to
the setting hearing in an appeal from the order terminating parental rights. (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 [Fourth Dist., Div. Two];
In re Maria S. (2000) 82 Cal.App.4th 1032, 1038; In re Rashad B. (1999) 76 Cal.App.4th
442, 450; In re Cathina W. (1998) 68 Cal.App.4th 716, 722-726.)
Recently, this court extended the reasoning from those decisions to the juvenile
court’s failure to advise a parent under rule 5.590(a) of her right to appeal from the
disposition when the mother’s presence was not disputed. (In re A.O. (2015) 242
16
Cal.App.4th 145, 147-149 [Fourth Dist., Div. Two].) We held “that a [juvenile] court’s
failure to provide the appeal advisement contained in the same rule of court as the writ
advisement is a ‘“special circumstance[] constituting an excuse for failure to [timely
appeal].”’ [Citation.]” (Id. at p. 149.)
If the juvenile court in this case was required to notify mother of her right to
appeal from the dispositional orders, this court’s decision in In re A.O., supra, 242
Cal.App.4th 145 dictates a finding of good cause to consider mother’s challenge to the
jurisdictional orders in this appeal. CFS contends we should not find good cause because
the juvenile court was not required to advise mother of her right to appeal under rule
5.590(a) for two reasons: (1) the jurisdictional hearing was not “contested”; and (2)
mother was not “present” at the hearing. We disagree with the first assertion, but agree
with the second.
Unless waived, the juvenile court at the jurisdictional hearing must read and
explain the allegations in the petition and advise the parent of her rights at the hearing.
(Rule 5.682(a), (b).) If the parent admits the allegations in the petition or pleads no
contest to them, the hearing is not contested and the juvenile court is required to enter an
order finding the children are dependents pursuant to section 300. (Rule 5.682(c)-(f).) In
that case, there is no requirement that the juvenile court advise the parent of her right to
appeal. (Cf. In re Joseph B. (1983) 34 Cal.3d 952, 959 [former rule 251 (current rule
5.590(a)) did not require advisement of appeal rights when minor admitted allegations of
delinquency petition].) “If the parent or guardian denies the allegations of the petition,”
17
however, “the court must hold a contested hearing and determine whether the allegations
in the petition are true.” (Rule 5.684(a).)
“By submitting on a particular report or record, the parent agrees to the court’s
consideration of such information as the only evidence in the matter. Under such
circumstances, the court will not consider any other evidence in deciding whether the
allegations are true. [Citation.] [¶] Notwithstanding a submittal on a particular record,
the court must nevertheless weigh evidence, make appropriate evidentiary findings and
apply relevant law to determine whether the case has been proved. [Citation.] In other
words, the parent acquiesces as to the state of the evidence yet preserves the right to
challenge it as insufficient to support a particular legal conclusion. [Citation.]” (In re
Richard K. (1994) 25 Cal.App.4th 580, 589.)
Mother offered no affirmative evidence and did not object to the juvenile court
receiving into evidence the social worker’s report, but her attorney affirmatively objected
to the allegations in the petition and did not submit on the social worker’s
recommendations. “Only when a parent submits on a social worker’s recommendation
does he or she forfeit the right to contest the juvenile court’s decision if it coincides with
that recommendation. [Citation.]” (In re T.V. (2013) 217 Cal.App.4th 126, 136.)
Because mother objected to the allegations in the petition and did not agree with the
social worker’s recommendations, she “contested” the jurisdictional findings for purposes
of rule 5.590(a). (In re A.O., supra, 242 Cal.App.4th at p. 149.)
18
Although we conclude the jurisdictional hearing was contested, the juvenile court
was not required to advise mother of her right to appeal the dispositional orders because
she was not present at the continued jurisdiction hearing. Rule 5.590(a) requires the
juvenile court to provide oral or written notice of appeal rights to “the child, if of
sufficient age, and, if present, the parent or guardian . . . .” (Italics added.) Mother argues
“[i]t does not make sense to interpret the provision as requiring no notice of appeal rights,
simply because the parent is not present,” and instead suggests this court should interpret
rule 5.590(a) to require notice to absent parents. Mother’s suggested interpretation
violates the general rules of statutory interpretation, which we use when interpreting the
California Rules of Court. (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th
894, 902.)
When interpreting a rule, we first look to the words of the rule to ascertain the
intent of the drafters and give effect to their plain meaning.4 (In re Joshua A. (2015) 239
Cal.App.4th 208, 214-215.) If the language of the rule is clear and unambiguous, we must
presume the drafters meant what they said and the plain meaning of the rule governs. (Id.
at p. 215.) The language of rule 5.590(a) is clear and unambiguous—the juvenile court is
only required to advise a parent of her appeal rights if she is present at the jurisdictional
hearing. Adopting mother’s interpretation would render the language “if present” in rule
5.590(a) to be surplusage, a result we must avoid. (In re Joshua A., at p. 215.)
4 After oral argument, we requested the parties submit supplemental briefs addressing the proper interpretation of rule 5.590(a).
19
Rule 5.590(a)’s history supports our interpretation. Rule 5.590(a) traces its origin
to former rules 251 and 1435(d).5 (23 pt. 1B West’s Ann. Court Rules (2006 ed.) foll.
rule 5.590, p. 573; 23 pt. 1B West’s Ann. Court Rules (2015 supp.) foll. rule 5.590, p.
367.) Former rules 251 and 1435(d), which since their adoption applied to juvenile
dependency cases,6 always limited advisement of appeal rights to parents who were
present for the jurisdiction hearing. (E.g., In re Ryan R. (2004) 122 Cal.App.4th 595, 599
[because mother was not present for the permanency hearing, she was not entitled to
advisement under former rules 1463(h) and 1435(d) of her right to appeal from
termination of her parental rights]; In re Arthur N. (1974) 36 Cal.App.3d 935, 940
[quoting former rule 251].) The fact that advisement of a parent’s right to appeal from
the disposition has always been predicated on presence at the jurisdictional hearing,
despite numerous opportunities for the Judicial Council to provide otherwise, is strong
evidence that the plain language of rule 5.590(a) accurately expresses the intent of its
drafters.
5 Former rule 1435 became former rule 5.585, which in turn was amended and renumbered as rule 5.590. (23 pt. 1B West’s Ann. Court Rules (2015 supp.) foll. rule 5.590, pp. 366-367.)
6 As originally adopted, effective July 1, 1973, former rule 251 applied “[i]n juvenile court proceedings in which the minor is found to be a person described by Section 600, 601, or 602 of the Welfare and Institutions Code . . . .” (In re Arthur N., supra, 36 Cal.App.3d at p. 940.) At the time, former section 600 governed juvenile dependency proceedings. (Stats. 1971, ch. 1729, § 1, p. 3676.) The Legislature subsequently repealed former section 600 and enacted section 300. (Stats. 1976, ch. 1068, § 6, p. 4759 & § 20, p. 4782.) Effective July 1, 1978, the Judicial Council amended former rule 251 to substitute section 300 for former section 600. (Historical Notes, 23 pt. 1B West’s Ann. Court Rules (2006 ed.) foll. rule 5.590, pp. 573-574.)
20
Moreover, when interpreting rule 5.590(a), we must read the rule as a whole. (In
re Joshua A., supra, 239 Cal.App.4th at p. 215.) When a juvenile court sets a hearing
under section 366.26, it must give oral notice of the right to file an extraordinary writ “to
those present” and provide written notice to “any party who is not present . . . .”
(Rule 5.590(b)(1), (2).) We must assume the drafters of rule 5.590(b) knew what they
were doing when they required advisement of writ review rights to absent parents but did
not similarly require advisement of appeal rights to absent parents.7
7 Rule 5.590(b) implements a specific legislative mandate that the Judicial Council adopt a rule to ensure a parent is given notice of the right to challenge by extraordinary writ an order setting a permanency hearing. (§ 366.26, subd. (l)(3)(A).) No similar legislative directive governs the giving of notice to parents of the right to appeal from the dispositional order. (See § 395.) We may easily surmise the reason behind this distinction. An order setting a permanency hearing under section 366.26 places a parent in immediate peril of losing his or her parental rights, and the need to timely bring an appellate challenge is paramount. Providing notice of the right to challenge the order to an absent parent is an additional layer of protection to the parent’s rights. In contrast, except for in those limited circumstances where the juvenile court finds jurisdiction but bypasses reunification services and immediately sets a permanency hearing (in which case the parent in entitled to notice under rule 5.590(b) whether or not they are present), a jurisdictional finding does not place a parent in immediate peril of losing her or her parental rights. The parent will have a period of reunification services, and the ability to establish fitness and prevent the setting of a hearing under section 366.26. Because failure to timely appeal from the jurisdictional order is not of the same magnitude as failure to challenge the order setting the permanency hearing, the Legislature and Judicial Council could reasonably conclude notice need not be given to parents who are absent from the jurisdictional hearing.
21
Notwithstanding the plain language of rule 5.590(a), mother contends she was
entitled, as a matter of constitutional due process, to notice of her right to appeal the
disposition. We decline to find a due process exception to the application of the waiver
rule in this case. (E.g., In re Janee J. (1999) 74 Cal.App.4th 198, 208 [“the waiver rule
will be enforced unless due process forbids it”].) “Parents are entitled to due process
notice of juvenile court proceedings affecting the care and custody of their children, and
the absence of due process notice is a ‘fatal defect’ in the juvenile court’s jurisdiction.”
(In re Claudia S. (2005) 131 Cal.App.4h 236, 247, quoting In re B.G. (1974) 11 Cal.3d
679, 688-689.) There is no dispute mother was present for the detention hearing and
original jurisdiction hearing and consequently had actual notice of the continued
jurisdictional hearing. Mother cites no decision holding due process requires that a
parent who is absent from the jurisdiction hearing must be given notice of his or her right
to appeal from the disposition.
Moreover, mother does not contend she was actually ignorant of her right to
appeal from the disposition, she does not contend she would have actually appealed the
disposition had she been advised of her right to appeal, and she did not attempt to file a
late notice of appeal. (In re Arthur N., supra, 36 Cal.App.3d at pp. 938-941 [minor’s
failure to timely appeal jurisdictional order under § 602 was excused where the juvenile
court failed to advise minor of his rights to appeal and to appointed counsel on appeal;
minor was actually ignorant of appellate rights and diligently filed a late notice of appeal
once he learned of his appeal rights].)
22
In sum, we conclude the juvenile court was not required to advise mother of her
right to appeal the dispositional order. Because mother did not appeal the disposition, she
may not challenge the jurisdictional finding in this appeal from the termination of
parental rights.
B. Although Mother Did Not Challenge Orders Made At the Setting Hearing
by Petition for Extraordinary Writ, Good Cause Exists to Address Her Claim of Error in
This Appeal
Mother did not challenge the setting order by filing a petition for extraordinary
writ, but she argues there is good cause to consider her claim of error on appeal from the
order terminating parental rights because the juvenile court did not give her notice of her
right to file such a petition. We agree.
“Section 366.26, subdivision (l), provides that an order setting a section 366.26
hearing ‘is not appealable at any time’ unless ‘[a] petition for extraordinary writ review
was filed in a timely manner,’ the petition raised the substantive issues and they were
supported by an adequate record, and the writ petition ‘was summarily denied or
otherwise not decided on the merits.’ (§ 366.26, subd. (l)(1); see § 366.26, subd. (l)(2).)
This writ requirement is implemented by the California Rules of Court. (See § 366.26,
subd. (l)(3); rules 8.450, 8.452; see also rule 8.403(b)(1).)” (In re A.H. (2013) 218
Cal.App.4th 337, 346.) “Failure to file a petition for extraordinary writ review within the
period specified by rule, to substantively address the specific issues challenged, or to
support that challenge by an adequate record shall preclude subsequent review by appeal
of the findings and orders made pursuant to this section.” (§ 366.26, subd. (l)(2).)
23
“When the court orders a hearing under Welfare and Institutions Code section
366.26, the court must advise all parties and, if present, the child’s parent, guardian, or
adult relative, that if the party wishes to preserve any right to review on appeal of the
order setting the hearing under Welfare and Institutions Code section 366.26, the party is
required to seek an extraordinary writ by filing a Notice of Intent to File Writ Petition and
Request for Record (California Rules of Court, Rule 8.450) (form JV-820) or other notice
of intent to file a writ petition and request for record and a Petition for Extraordinary
Writ (California Rules of Court, Rules 8.452, 8.456) (form JV-825) or other petition for
extraordinary writ.” (Rule 5.590(b).)
Notice of the parent’s right to writ review of the setting order “must be given
orally to those present when the court orders the hearing under Welfare and Institutions
Code section 366.26.” (Rule 5.590(b)(1).) If the parent is not present for the setting
hearing, notice must be given “[w]ithin one day after the court orders the hearing under
Welfare and Institutions Code section 366.26, [and] the advisement must be sent by first-
class mail by the clerk of the court to the last known address of any party who is not
present when the court orders the hearing under Welfare and Institutions Code section
366.26.” (Rule 5.590(b)(2).) The notice “must include the time for filing a notice of
intent to file a writ petition,” and copies of Judicial Council forms JV-825 and JV-820
“must accompany all mailed notices informing the parties of their rights.” (Rule
5.590(b)(3), (4).)
24
As noted, ante, notwithstanding a parent’s failure to file a petition for
extraordinary writ after the setting hearing, the courts have found good cause to address
the merits of a challenge to orders made at the setting hearing in an appeal from the order
terminating parental rights when the juvenile court did not adequately inform the parent
of their right to file a writ petition. (In re Frank R., supra, 192 Cal.App.4th at p. 539;
In re Lauren Z., supra, 158 Cal.App.4th at p. 1110; In re Harmony B., supra, 125
Cal.App.4th at p. 839; In re Maria S., supra, 82 Cal.App.4th at p. 1038; In re Rashad B.,
supra, 76 Cal.App.4th at p. 450; In re Cathina W., supra, 68 Cal.App.4th at pp. 722-726.)
Mother contends good cause is shown here to excuse her failure to timely file a writ
petition because the written notice sent to her was incomplete, untimely, and was not
mailed to her last known address. We conclude the notice to mother was untimely and
was not mailed to an address where she would likely receive it.
Mother was not present at the six-month review hearing conducted on November
12, 2014, when the juvenile court terminated reunification services and set the
permanency hearing. After setting the permanency hearing, the juvenile court directed
the court clerk “to send notice of intent to file a writ and the writ petition to the parents
by first class mail to the last known address.” On November 17, 2014, a deputy clerk of
the juvenile court served mother by first class mail with copies of Judicial Council forms
JV-825 and JV-820. The clerk mailed the forms to mother at an address on 6th Street in
San Bernardino. On February 9, 2015, the forms were returned to the juvenile court by
the United States Postal Service marked “RETURN TO SENDER,” and handwritten on
the envelope are the words, “Not live here.”
25
With respect to the content of the notice, mother contends the juvenile court did
not comply with rule 5.590(b) because the clerk merely mailed blank copies of Judicial
Council forms JV-825 and JV-820. Mother argues the juvenile court was required to also
mail her a separate notice of writ review rights, a copy of the minute order indicating the
date of the permanency hearing, and to inform her of the date on which a notice of intent
to file a writ petition had to be filed.
True, rule 5.590(b) requires an advisement of writ review rights accompanied by
copies of Judicial Council forms JV-825 and JV-820. (Rule 5.590(b)(4).) However, by
itself form JV-820 sufficiently informed mother: (1) the juvenile court “decided it will
make a permanent plan for this child that may result in the termination of your parental
rights and adoption of the child”; (2) if mother wished to challenge that decision she was
required to file a notice of intent; and (3) because she was absent when the juvenile court
set the permanency hearing, mother was required to file her notice of intent within 12
days of the date the court clerk mailed the forms. (See In re A.H., supra, 218
Cal.App.4th at pp. 346-347 [summarizing the advisements contained in Judicial Council
form JV-820].) Moreover, the social worker, and not the court, is required to give a
parent notice of the date and time of the permanency hearing. (§ 294, subd. (e)(1).)
Including with the notice of writ rights a copy of the minute order setting a permanency
hearing is certainly a good idea, but rule 5.590(b) does not require it.
The content of the juvenile court’s advisement may have satisfied rule 5.590(b),
but there is no dispute the juvenile court clerk did not serve mother with notice of her
writ review rights within one day of the juvenile court setting a permanency hearing, as
26
expressly mandated by rule 5.590(b)(2). A parent who is absent from the setting hearing
has only 12 days after the date the notice is mailed to file her notice of intent to file a writ
petition (rule 8.450(e)(4)(B)), so strict compliance with the time for giving notice is
crucial to implementing the Legislature’s stated intent that reasonable efforts be made to
complete appellate review within the applicable time periods for conducting the
permanency hearing (§ 366.26, subd. (l)(4)(A)). The juvenile court’s five-day delay in
giving mother notice thwarted that legislative intent.
More importantly, the juvenile court clerk did not mail the notice to an address
where mother would likely receive it. As noted, ante, the juvenile court clerk mailed the
notice on November 17, 2014, to an address on 6th Street in San Bernardino. This
address first appears in the record in the social worker’s April 15, 2014 report filed for
the jurisdictional/dispositional hearing. But as early as March 25, 2014, the juvenile
court was aware that mother had no address where she could be reached. Moreover, in a
May 12, 2014 declaration of due diligence regarding the father’s whereabouts, the social
worker informed the juvenile court that the father did not live at the 6th Street address
and that the current residents—who were clearly unrelated to the father and mother—had
lived there for three years. In a November 12, 2014 status review report, the social
worker informed the juvenile court that mother’s address was “unknown” and reported
mother told the social worker she was homeless. And at the six-month review hearing,
mother’s attorney reiterated that mother’s whereabouts and current address were
unknown, and informed the court that mother calls the paternal grandmother but does not
leave a number where she can be reached.
27
Although the 6th Street address was literally the “last known address” on file for
mother, we conclude service of notice to that address did not comply with rule 5.590(b)(2).
“At the first appearance by a parent or guardian in proceedings under section 300 et seq.,
the court must order each parent or guardian to provide a mailing address. [¶] (1) The
court must advise that the mailing address provided will be used by the court, the clerk, and
the social services agency for the purposes of notice of hearings and the mailing of all
documents related to the proceedings. [¶] (2) The court must advise that until and unless
the parent or guardian, or the attorney of record for the parent or guardian, submits written
notification of a change of mailing address, the address provided will be used, and notice
requirements will be satisfied by appropriate service at that address.” (Rule 5.534(m); see
§ 316.1, subd. (a).)
When the juvenile court strictly complies with section 316.1, subdivision (a), and
rule 5.534(m), but the parent fails to inform the court of his or her new mailing address,
the parent’s failure to receive advisement of writ review rights mailed pursuant to rule
5.590(b)(2) does not constitute good cause to excuse the parent’s failure to file a petition
for extraordinary writ. (In re A.H., supra, 218 Cal.App.4th at pp. 348-351.) At the
detention hearing, the juvenile court directed mother to complete Judicial Council form
JV-140 (“Notification of Mailing Address”). But there is no indication the juvenile court
informed mother of the importance of updating her mailing address, and there is no
28
indication in the record the court inquired into mother’s address when she failed to
submit the form.8
Even if we were to conclude the juvenile court complied with section 316.1,
subdivision (a), and rule 5.534(m), and even if mother failed to keep the court apprised of
her current mailing address, we would still conclude the juvenile court did not comply
with rule 5.590(b)(2). The juvenile court knew for almost seven months that neither
mother nor the father lived at the 6th Street address, yet the court clerk mailed the
advisement of writ review rights to that address. That mother was apparently homeless at
the time of the setting hearing did not excuse the juvenile court in mailing notice of writ
review rights to an address it knew was no longer good.
The decision in In re Rashad B., supra, 76 Cal.App.4th 442 is instructive. There,
the juvenile court did not mail notice of writ review rights to a mother who was absent
from a setting hearing. On appeal, the county social services agency argued the failure to
8 In its report filed for the jurisdictional/dispositional hearing, CFS recommended the juvenile court find a “JV-140 dated March 25, 2014 is on file.” The juvenile court adopted that finding, and the May 12, 2014, minute order from the jurisdictional/ dispositional hearing states, “The court finds that mother has/have a current JV-140 on file with the court. Any change in address shall require the filing of a new JV-140.” This finding is contradicted by statements from mother’s counsel and guardian ad litem during the detention hearing that mother had difficulty completing a notification of address form because at the time she was in a residential drug treatment program and had no other mailing address. If mother had actually filed with the juvenile court a form JV-140 dated March 25, 2014, that form—like mother’s form ICWA-020 bearing the same date— would have been included in the record on appeal. (Rule 8.407(a)(4) [clerk’s transcript on appeal must include “[a]ny report or other document submitted to the court”].) On October 14, 2015, a juvenile court clerk filed an affidavit with this court indicating the juvenile court case file does not include a form JV-140 from mother.
29
mail notice was harmless because the mother was homeless and had no address. (Id. at
pp. 448-449.) After finding the juvenile court failed to comply with section 316.1 and
former rule 1412(l) (current rule 5.534(m)), the appellate court held that the court’s error
was not harmless simply because the mother was homeless. (Rashad B., at pp. 449-450.)
“A permanent mailing address, designated for purposes of receiving notices, need not be
the address at which a parent is actually residing. Many homeless people are capable of
designating a permanent mailing address at which they can receive mail.” (Id. at p. 450.)
The court noted the children’s maternal grandmother, in whose custody one of the
children was placed at the detention hearing (id. at p. 445), “was a logical candidate for
designation of a permanent mailing address by appellant.” (Id. at p. 450.)
In this case, the most logical place to mail the advisement of mother’s writ review
rights would have been to the parental grandmother’s house, where the children had been
placed since the jurisdictional/dispositional hearing. Mother’s attorney told the juvenile
court mother had been in telephone contact with the paternal grandmother. Had the
juvenile court mailed the notice to mother at the paternal grandmother’s home, there was
at least a reasonable chance mother would either actually receive the notice or at least
would have been told such notice was mailed to her.
In its brief, CFS argues we should find mother is barred from challenging the
order terminating reunification services because, even if the juvenile court did not
provide adequate notice under rule 5.590(b)(2), the decision not to file a writ petition was
vested in the sound authority and discretion of mother’s guardian ad litem. “The effect of
the guardian ad litem’s appointment is to transfer direction and control of the litigation
30
from the parent to the guardian ad litem, who may waive the parent’s right to a contested
hearing. [Citations.]” (In re James F. (2008) 42 Cal.4th 901, 910.) “[A] guardian ad
litem’s role is more than an attorney’s but less than a party’s. The guardian may make
tactical and even fundamental decisions affecting the litigation but always with the
interest of the guardian’s charge in mind. Specifically, the guardian may not compromise
fundamental rights, including the right to trial, without some countervailing and
significant benefit.” (In re Christina B. (1993) 19 Cal.App.4th 1441, 1454.) The cases
cited by CFS do not support the proposition that a guardian ad litem appointed for a
parent in a juvenile dependency proceeding has the authority to forego filing a petition
for extraordinary writ—with the consequence of waiving the parent’s right to challenge
orders made at the setting hearing—without first consulting with the parent and the
parent’s attorney. The record does not reflect such a consultation.
Finally, CFS argues mother was not prejudiced by the guardian ad litem’s decision
not to file a petition for extraordinary writ and, by extension, was not prejudiced by not
receiving proper notice under rule 5.590(b), because the juvenile court’s order
terminating reunification services was not an abuse of discretion, and a writ petition
would have been denied anyway.
In In re Cathina W., supra, 68 Cal.App.4th 716, the social services agency argued
the mother could not challenge the setting order on appeal from the termination of
parental rights because substantial evidence supported the setting order. (Id. at p. 724.)
The appellate court rejected the notion that a parent must show prejudice from the
juvenile court’s failure to correctly and timely advise the parent of their rights before he
31
or she may challenge the setting order by petition for extraordinary writ. “We will not
impose such a condition upon the mother’s right to appellate review of the merits of the
setting order. Under respondent’s argument, as we understand it, we cannot evaluate the
merits of the setting order unless we find that the order was the result of prejudicial error
by the juvenile court and, consequently, that a writ reversing the order would have issued
had the mother filed a timely and proper . . . notice and petition. However, a
determination that the setting order was infected with prejudicial error obviously requires
an evaluation of the merits of the order. We therefore do not see any purpose to be
served by adopting the rule advocated by respondent.” (Ibid.) So too here. We decline
to impose a prejudice requirement when the parent’s failure to challenge a setting order
by writ petition is the result of the juvenile court’s failure to comply with rule 5.590(b).
On these facts, we conclude the juvenile court did not provide mother with timely
and adequate notice of her right to seek appellate review of the setting order, as mandated
by rule 5.590(b). Therefore, notwithstanding mother’s failure to file a petition for
extraordinary writ challenging orders made at the setting hearing, we find good cause to
consider her claim of error in this appeal.
C. The Juvenile Court Did Not Abuse Its Discretion by Terminating
Reunification Services
Mother contends the juvenile court abused its discretion by terminating
reunification services after only six months. We disagree.
When the child is three years old or older, the parent must be provided with
reunification services beginning after the dispositional hearing and lasting 12 months
32
after the child is placed in foster care. (§ 361.5, subd. (a)(1)(A); rule 5.695(h)(1).) At the
six-month review hearing, the juvenile court must return the child to the parent unless it
finds by a preponderance of the evidence that returning the child would be detrimental to
the child. (§ 366.21, subd. (e), 1st par.; rule 5.710(b)(1).) The juvenile court may order
“additional services reasonably believed to facilitate the return of the child to the custody
of his or her parent . . . .” (§ 366.21, subd. (e), 2d par.; see rule 5.710(b)(4).)
However, if the juvenile court finds by clear and convincing evidence the parent
failed to visit with and contact the child during the first six months of reunification
services, the court may terminate reunification services and set a permanency hearing
under section 366.26. (§ 366.21, subd. (e), 5th par.; rule 5.710(c)(1)(A); Sara M. v.
Superior Court (2005) 36 Cal.4th 998, 1017; see also § 366.21, subd. (h) [“In any case in
which the court orders that a hearing pursuant to Section 366.26 shall be held, it shall also
order the termination of reunification services to the parent or legal guardian”]; rule
5.708(n)(1) [same].)
“The statutes governing reunification services and review hearings must be
considered in light of the juvenile dependency system as a whole. [Citation.] The overall
objective of that system is the protection of abused or neglected children and the
provision of permanent, stable homes if they cannot be returned to parental custody
within a reasonable time. [Citation.] The general purpose of dependency law is to
safeguard the welfare and best interests of children. [Citations.]” (In re Aryanna C.
(2005) 132 Cal.App.4th 1234, 1241.) “Where, as the record shows in this case, the
likelihood of reunification is extremely low [citation], a continuation of the reunification
33
period would waste scarce resources and delay permanency for dependent minors. [This
conclusion] is consistent with the legislative intent behind the statutory scheme—‘to
balance efforts to reunify the family with the child’s need for stability.’ [Citation.]” (Id.
at p. 1242.) “The importance of reunification services in the dependency system cannot
be gainsaid. The law favors reunification whenever possible. [Citation.] To achieve that
goal, ordinarily a parent must be granted reasonable reunification services. [Citation.]
But reunification services constitute a benefit; there is no constitutional ‘“entitlement”’ to
those services. [Citation.]” (Ibid.)
There is no dispute mother did not visit with the children until almost four months
after the juvenile court terminated reunification services and set the permanency hearing.
Although the record indicates mother contacted the paternal grandmother sporadically
during the first six months of reunification services, there is no indication in the record
mother contacted the children. In her brief, mother contends the paternal grandmother
did not report whether mother spoke to the children and the social worker did not ask if
mother spoke to the children. True, the report does not indicate whether the social
worker asked if mother spoke to the children. But at the six-month review hearing,
mother’s counsel did not object to the social worker’s report being admitted into evidence
or present any evidence of mother’s contact with the children. Instead, counsel conceded
mother’s failure to visit was the basis of the recommendation for terminating
reunification services. Counsel asked the court to grant services for an additional six
34
months, saying, “A lot of things can change in six months.” On this record, we conclude
the juvenile court did not abuse its discretion by terminating reunification services.9
D. The Juvenile Court Correctly Denied Mother’s Request to Continue the
Permanency Hearing
Mother also contends the juvenile court abused its discretion by denying her
request for a continuance of the permanency hearing so she could file a petition under
section 388. We find no abuse of discretion.
“The juvenile court has the power to ‘control all proceedings during the hearings
with a view to the expeditious and effective ascertainment of the jurisdictional facts and
the ascertainment of all information relative to the present condition and future welfare of
the person upon whose behalf the petition is brought.’ (§ 350, subd. (a)(1); [citation].)
Although continuances are discouraged in dependency cases [citation], the juvenile court
may continue a dependency hearing upon a showing of good cause, provided the
continuance is not contrary to the interest of the child. (See § 352, subd. (a) [‘[N]o
continuance shall be granted that is contrary to the interest of the minor. In considering
the minor’s interests, the court shall give substantial weight to a minor’s need for prompt
9 Mother also contends the juvenile court erred by not considering barriers to mother’s visitation and contact with the children when terminating reunification services. The juvenile court is required to consider barriers to visitation and contact resulting from a parent’s incarceration or institutionalization. (§ 366.21, subd. (e), 5th par.; rule 5.710(c)(1)(A).) Although mother voluntarily entered a psychiatric facility early in the proceedings, there is no evidence in the record she was prevented from visiting or contacting the children because she was incarcerated or institutionalized during the six months of reunification services. The juvenile court’s failure to consider barriers to mother’s visitation and contact was harmless.
35
resolution of his or her custody status, the need to provide children with stable
environments, and the damage to a minor of prolonged temporary placements.’];
[citation].) We review an order denying or granting a continuance for abuse of
discretion. [Citations.] ‘To show abuse of discretion, the appellant must demonstrate the
juvenile court exercised its discretion in an arbitrary, capricious or patently absurd
manner that resulted in a miscarriage of justice.’ [Citation.]” (In re Emily D. (2015) 234
Cal.App.4th 438, 447-448.)
As noted, ante, mother did not make her first visit with the children until almost
four months after the juvenile court terminated reunification services and set the
permanency hearing. On the date of the continued permanency hearing, mother
submitted documentation of her regular, but fairly recent, attendance at NA meetings.
Mother’s counsel requested the permanency hearing be continued once more so mother
could file a petition under section 388, supported by the documentation already submitted
to the court, requesting additional reunification services. The juvenile court denied the
request, finding mother “had plenty of time” to file her petition after the six-month
review hearing.
We agree with the juvenile court that mother had ample time to file a section 388
petition before the continued permanency hearing.10 Moreover, granting the continuance
would not have been in the children’s best interest because mother could not have made a
10In addition, mother did not provide written notice of the motion for a continuance two days before the continued hearing, and the juvenile court did not find good cause to hear the motion orally. (Rule 5.550(a)(4).)
36
sufficient showing under section 388 for additional reunification services. “A juvenile
court order may be changed, modified or set aside under section 388 if the petitioner
establishes by a preponderance of the evidence that (1) new evidence or changed
circumstances exist and (2) the proposed change would promote the best interests of the
child. [Citation.] The parent bears the burden to show both a legitimate change of
circumstances and that undoing the prior order would be in the best interest of the child.
[Citation.] Generally, the petitioner must show by a preponderance of the evidence that
the child’s welfare requires the modification sought. [Citation.]” (In re A.A. (2012) 203
“Not every change in circumstance can justify modification of a prior order.
[Citation.] The change in circumstances must relate to the purpose of the order and be
such that the modification of the prior order is appropriate. [Citation.] In other words,
the problem that initially brought the child within the dependency system must be
removed or ameliorated. [Citation.] The change in circumstances or new evidence must
be of such significant nature that it requires a setting aside or modification of the
challenged order. [Citation.]” (In re A.A., supra, 203 Cal.App.4th at p. 612.)
Section 388 is “an ‘escape mechanism’ when parents complete a reformation in
the short, final period after the termination of reunification services but before the actual
termination of parental rights. [Citation.]” (In re Kimberly F. (1997) 56 Cal.App.4th
519, 528, italics added.) It is not enough for a parent to show an incomplete reformation
or that she is in the process of changing the circumstances which lead to the dependency.
“After the termination of reunification services, the parents’ interest in the care, custody
37
and companionship of the child are no longer paramount. Rather, at this point ‘the focus
shifts to the needs of the child for permanency and stability’ . . . . [Citation.] A court
hearing a motion for change of placement at this stage of the proceedings must recognize
this shift of focus in determining the ultimate question before it, that is, the best interests
of the child.” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
“‘A petition which alleges merely changing circumstances and would mean
delaying the selection of a permanent home for a child to see if a parent . . . might be able
to reunify at some future point, does not promote stability for the child or the child’s best
interests. [Citation.] “‘[C]hildhood does not wait for the parent to become adequate.’”’
[Citation.]” (In re Mary G. (2007) 151 Cal.App.4th 184, 206.)
The courts have consistently held that, when long-term drug addiction is the prime
reason for a parent’s unfitness and of the dependency, it is not enough for the parent to
show they have started the process of getting sober or that they have been sober for a
brief period. (In re Marcelo B. (2012) 209 Cal.App.4th 635, 641-642; In re C.J.W.
(2007) 157 Cal.App.4th 1075, 1081 [Fourth Dist., Div. Two]; In re Mary G., supra, 151
Cal.App.4th at p. 206; In re Amber M. (2002) 103 Cal.App.4th 681, 686-687; In re
Cliffton B. (2000) 81 Cal.App.4th 415, 423-424; In re Casey D. (1999) 70 Cal.App.4th
38, 48; In re Kimberly F., supra, 56 Cal.App.4th at p. 531, fn. 9.)
Although mother’s regular attendance of NA meetings and initial progress in
addressing her mental health issues leading up to the permanency hearing was laudable,
at best they were the beginning of mother’s efforts at rehabilitation. By the time mother
made her request for a continuance, the children had been in the paternal grandmother’s
38
care for many months, and they made it clear they wished their paternal grandmother to
adopt them. Continuing the permanency hearing to permit mother to file what would
have been a futile section 388 petition was not in the children’s best interest. Therefore,
we conclude the juvenile court correctly denied a continuance.
E. The Juvenile Court Failed to Consider a Legal Impediment to Adoption by
the Paternal Grandmother When It Found the Children Were Likely to Be Adopted
Mother contends there is no substantial evidence to support the juvenile court’s
findings the children are likely to be adopted because the court did not find the children
are generally adoptable, and the court failed to consider a legal impediment to adoption
by the paternal grandmother. We agree the juvenile court failed to consider a potential
legal impediment to adoption by the paternal grandmother. We therefore reverse the
order terminating parental rights and remand the matter for the juvenile court to consider
potential legal impediments.
When the juvenile court sets a permanency hearing, the county social services
agency must assess, inter alia, “the likelihood that the child[ren] will be adopted if
parental rights are terminated.” (§ 366.21, subd. (i)(1)(G).) The juvenile court may only
terminate parental rights if it finds by clear and convincing evidence the children are
likely to be adopted. (§ 366.26, subd. (c)(1); rule 5.725(d)(2).) “A finding of
adoptability requires ‘clear and convincing evidence of the likelihood that adoption will
be realized within a reasonable time.’ [Citation.] The question of adoptability usually
focuses on whether the child’s age, physical condition and emotional health make it
difficult to find a person willing to adopt that child. [Citation.] [¶] If the child is
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considered generally adoptable, we do not examine the suitability of the prospective
adoptive home. [Citation.] When the child is deemed adoptable based solely on a
particular family’s willingness to adopt the child, the trial court must determine whether
there is a legal impediment to adoption. [Citation.] The juvenile court should also
explore a child’s feelings toward his or her parents, foster parents and prospective
adoptive family. [Citations.]” (In re B.D. (2008) 159 Cal.App.4th 1218, 1231-1232.)
Mother is correct there is a potential legal impediment to the paternal grandmother
adopting the children. “A married person, not lawfully separated from the person’s
spouse, may not adopt a child without the consent of the spouse, provided the spouse is
capable of giving consent.” (Fam. Code, § 8603, subd. (a).) Such a barrier to adoption
“is relevant because the legal impediment would preclude the very basis upon which the
social worker formed the opinion that the minor is likely to be adopted. [Citation.]” (In
re Sarah M. (1994) 22 Cal.App.4th 1642, 1650.)
In the addendum report submitted for the permanency hearing, the social worker
reported the paternal grandmother was a suitable candidate for adopting the children, but
also reported the paternal grandmother was still married to her estranged husband and
would need to obtain his consent before proceeding with the adoption. At the
permanency hearing, the juvenile court found the children were likely to be adopted and
expressly considered the children’s wishes when terminating mother’s parental rights.
However, the court did not consider whether the paternal grandmother would be able to
obtain consent for the adoption from her estranged husband.
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Because the juvenile court did not consider whether the paternal grandmother’s
need to obtain spousal consent under Family Code section 8603 would pose an
impediment to her adopting the children, and did not inquire whether the paternal
grandmother would be able to obtain spousal consent in a reasonable amount of time, we
conclude the court’s adoptability findings are not supported by substantial evidence. The
order terminating parental rights is reversed. On remand, the juvenile court shall
consider potential legal impediments to adoption by the paternal grandmother.
F. Substantial Evidence Does Not Support the Juvenile Court’s Finding of
Adequate ICWA Notice
Last, mother argues, and CFS concedes, the juvenile court’s finding of adequate
notice pursuant to ICWA is not supported by substantial evidence. We agree.
“‘Among ICWA’s procedural safeguards is the duty to inquire into a dependent
child’s Indian heritage and to provide notice of the proceeding to any tribe or potential
tribes, the parent, any Indian custodian of the child and, under some circumstances, to the
Bureau of Indian Affairs.’ [Citation.] To comply with these notice requirements, [CFS]
was required to (1) identify any possible tribal affiliations and send notice to those tribes;
and (2) submit copies of such notices, including return receipts, and any correspondence
received from the tribes to the trial court. [Citation.]” (In re Christian P. (2012) 208
Cal.App.4th 437, 451.) “‘The [trial] court must determine whether proper notice was
given under ICWA and whether ICWA applies to the proceedings. [Citation.] We
review the trial court’s findings for substantial evidence. [Citations.]’” (Ibid.)
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“ICWA notice requirements are strictly construed. [Citation.] The notice sent to the
BIA and/or Indian tribes must contain enough information to be meaningful. [Citation.]
The notice must include: if known, (1) the Indian child’s name, birthplace, and birth date;
(2) the name of the tribe in which the Indian child is enrolled or may be eligible for
enrollment; (3) names and addresses of the child’s parents, grandparents, great
grandparents, and other identifying information; and (4) a copy of the dependency petition.
[Citation.] To enable the juvenile court to review whether sufficient information was
supplied, [CFS] must file with the court the ICWA notice, return receipts and responses
received from the BIA and tribes. [Citation.]” (In re Francisco W. (2006) 139
Cal.App.4th 695, 703.)
Mother reported possible Indian ancestry through her father. The ICWA notice
included the children’s maternal grandfather’s name and current address, but did not
include the date and place of his birth. CFS concedes the omission did not comply with
federal and state law (25 C.F.R. § 23.11(a), (d)(1) (2015); Welf. & Inst. Code, § 224.2,
subd. (a)(5)(C); In re Cheyanne F. (2008) 164 Cal.App.4th 571, 575, fn. 3 [Fourth Dist.,
Div. Two]), and agrees with mother we should remand the matter for proper notice. In
addition, the notice included mother’s date of birth but did not include her place of birth.
On remand, CFS shall exercise due diligence to obtain the omitted information and
shall resubmit notice to the identified Indian tribes and the BIA. The juvenile court shall
then determine anew whether the new ICWA notice contains meaningful information from
which the identified Indian tribes may determine whether the children are Indian children.
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IV.
DISPOSITION
The orders terminating mother’s parental rights are reversed. On remand, the
juvenile court shall order CFS to comply with the notice provisions of ICWA and to file
all required documentation with the juvenile court for its inspection. If, after proper
notice, a tribe claims the children are Indian children, the juvenile court shall proceed in
conformity with all provisions of ICWA. And, the children, mother, and any Indian tribe
claiming the children are Indian children may petition the juvenile court to invalidate any
orders that may have violated ICWA.
If, on the other hand, no tribe makes such a claim, prior defective notice becomes
harmless error. The juvenile court shall then conduct a new permanency hearing and
consider potential legal impediments to adoption by the paternal grandmother. If the
juvenile court concludes no legal impediments exist, the court shall enter new orders
finding the children are likely to be adopted and terminating parental rights.
In all other respects, the underlying orders are affirmed.
CERTIFIED FOR PARTIAL PUBLICATION
McKINSTER J. We concur:
HOLLENHORST Acting P. J.
KING J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a parent waives the right to challenge jurisdictional findings by failing to appeal from the dispositional order, unless the court failed to provide required notice of appeal rights. Additionally, the court held that the juvenile court erred by failing to consider legal impediments to adoption and that the ICWA notice provided was inadequate.
Issues
Whether the mother waived her right to challenge jurisdictional orders by failing to appeal from the dispositional orders.
Whether the juvenile court erred in terminating reunification services and denying a request to continue the permanency hearing.
Whether the juvenile court erred in finding the children were likely to be adopted without considering legal impediments.
Whether the ICWA notice provided to relevant Indian tribes was adequate.
Disposition. Affirmed in part; reversed in part with directions.
Quotations verified verbatim against the opinion
“Mother waived her claim of error regarding the jurisdictional orders by not appealing from the dispositions.”
“we agree with mother that the juvenile court erred by not considering legal impediments to the children being adopted by their paternal grandmother when it found the children were likely to be adopted”