In re R.H. ( 2018 )

Filed 1/31/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re R.H., a Person Coming 2d Juv. No. B282855
Under the Juvenile Court Law. (Super. Ct. No. J070951)
(Ventura County)
VENTURA COUNTY HUMAN
SERVICES AGENCY,
Plaintiff and Respondent,
v.
A.N.,
Defendant and Appellant.
A.N. (mother) appeals the juvenile court’s order
terminating her parental rights to R.H., an Indian child, and
selecting adoption as his permanent plan. (Welf. & Inst. Code,1
§ 366.26.) Mother contends the court erred in finding good cause
to depart from the placement preferences set forth in the Indian
1 All statutory references are to the Welfare and
Institutions Code unless otherwise stated.
Child Welfare Act (ICWA).2 She also asks us to take as
additional evidence a letter her appellate counsel received from
R.H.’s tribe over three months after the judgment was rendered
indicating that the tribe—which repeatedly declined the
opportunity to intervene below—wants to “be involved in the
case.” Although an Indian tribe may intervene in state court
dependency proceedings at any time (25 U.S.C. § 1911(c)), R.H.’s
tribe has yet to intervene here. Accordingly, we deny mother’s
request and affirm.
FACTS AND PROCEDURAL HISTORY
R.H. was born in December 2015. In April 2016, mother
was arrested on an outstanding warrant. The Ventura County
Human Services Agency (HSA) filed a dependency petition as to
R.H. alleging failure to protect, no provision for support, and
abuse of a sibling (§ 300, subds. (b), (g), & (j)). The petition
alleged that mother and R.H.’s father (father)3 both have
histories of drug use, mental health issues, and domestic
violence. Two of R.H.’s elder siblings were removed from mother
and father’s custody in Washington and were under a legal
guardianship with the consent of the Round Valley Indian Tribes
(the Tribe).4
2 25 U.S.C. § 1901 et seq.; § 361.31, subds. (c) & (h)
(hereinafter § 361.31(c) & § 361.31(h)); Cal. Rules of Court, rule
5.484(b). All rule references are to the California Rules of Court.
3 Father is not a party to this appeal.
4 Although the Tribe refers to itself as a single tribe, it is
actually “a sovereign nation of [six] confederated tribes” on the
same reservation.
2
After R.H. was detained and placed in a foster home,
mother and father indicated he had Native American ancestry
with the Tribe. HSA notified the Tribe of the April 15, 2016
detention hearing and a copy of the dependency petition was sent
to the Tribe and the Bureau of Indian Affairs (BIA).
At the detention hearing, the court found that ICWA might
apply to R.H. Prior to the jurisdiction and disposition hearing,
HSA filed a memorandum stating that father had reported he is a
member of the Tribe but has no involvement with it and “has
minimal contact with the paternal family.” HSA sent the ICWA
030 notice to the Tribe and encouraged father to provide any
information he might have or obtain about the paternal family.
In its jurisdiction and disposition report, HSA indicated
that all of R.H.’s known paternal relatives had been solicited as
possible placements for R.H. and that none of them were either
able or willing to provide a permanent placement. Mother
refused to provide contact information for her parents because
she did not believe they would be able or willing to provide a
placement for R.H. She also refused to provide any of her eight
siblings’ names or contact information.
At the June 2016 jurisdiction and disposition hearing, R.H.
was declared a dependent and reunification services were ordered
for mother and father. The following month, HSA received a
letter from the Tribe stating that R.H. was eligible for
enrollment. The Tribe did not express any intent to intervene in
the case at that time. HSA submitted the application and the
necessary documents for R.H.’s enrollment to the Tribe. At the
July 6, 2016 ICWA review hearing, the court found that ICWA
applied. On October 12, 2016, HSA received a letter from the
Tribe stating that R.H. had been formally enrolled. The letter,
3
which was signed by Tribe President James A. Russ, made no
reference to any intent to intervene in the proceedings.
In anticipation of the six-month review hearing, HSA
submitted a memorandum documenting its ongoing efforts to
communicate with the Tribe. HSA’s ICWA paralegal Lauren
Lara left the Tribe voicemails on May 11 and 12, 2016. On June
15, Lara spoke on the telephone with Steve Luna, the Tribe’s
Director and ICWA representative. On July 7, Lara left a
voicemail message requesting that an ICWA representative
testify on behalf of the Tribe. On July 22, Ventura County
Counsel Linda Stevenson sent the Tribe an email requesting a
response. On August 22, Lara spoke on the phone with Tribe
representative Elizabeth Ranger. The following day, Stevenson
sent Ranger an email requesting a response. Finally, on
November 16, HSA social worker Tiffany Moody left the Tribe
two voicemail messages requesting a return call. As of November
18, 2016, she had received no response.
HSA also submitted a declaration from ICWA expert
witness Phillip Powers,5 who opined that HSA had made active
5 Section 224.6, subdivision (b)(1) provides that a juvenile
court considering whether to terminate the parental rights of a
parent of an Indian child shall “[r]equire that a qualified expert
witness testify regarding whether continued custody of the child
by the parent or Indian custodian is likely to result in serious
emotional or physical damage to the child.” If the parties so
stipulate, the court may accept a declaration or affidavit from a
qualified expert in lieu of live testimony. (§ 224.6, subd. (e).)
Mother does not dispute that Powers’ declaration was properly
accepted, or that he met the qualifications for an ICWA expert
witness as set forth in subdivision (c) of section 224.6.
4
efforts to provide remedial and rehabilitative services to prevent
the breakup of the Indian family and that those efforts had been
unsuccessful. He also opined that returning R.H. to either parent
would cause him severe emotional and physical harm. He was
unable to determine the Tribe’s position on the matter because he
had “left several telephone messages for [the Tribe] without a
return call” and had been “advised that [HSA] had been
unsuccessful in establishing any meaningful contact with the
tribe throughout [t]his case.”
In a December 16, 2016 memorandum, HSA documented
its continuing efforts to communicate with the Tribe about R.H.’s
case. On November 29, Moody sent an email to Luna and Tribe
ICWA representative Jamie Bloom. In that email, Moody
identified herself as the HSA social worker assigned to R.H.’s
case and noted that HSA had made numerous attempts to speak
with a Tribe representative about the matter. Moody requested
that a Tribe representative appear telephonically at the
upcoming hearing on December 21 via CourtCall6 and offered to
arrange for the call if needed.
On November 30, 2016, Moody received an email from
Ranger requesting additional documentation regarding the case.
The following day, Moody sent Ranger HSA’s most recent status
review report, the juvenile court’s case plan and findings and
orders, and Powers’ declaration. On December 7, Moody left
Ranger a voicemail requesting a return call to discuss the case
and the Tribe’s recommendation.
On December 13, 2016, Moody spoke with Luna, who said
he had not received the documents she sent to Ranger. In
6 CourtCall is a service that facilitates telephonic court
appearances.
5
addition to those documents, Luna requested additional
information about R.H.’s foster parents. The following day,
Moody sent Luna the home inspection report for the foster
parents and additional information regarding the confidential
foster home. She also resent the documents she had sent Ranger
along with HSA’s detention and jurisdiction and disposition
reports.
On December 15, 2016, Moody called Ranger seeking the
Tribe’s input regarding HSA’s proposed recommendation that
parental rights to R.H. be terminated and that the matter be set
for a section 366.26 hearing to implement a permanent plan of
adoption by the foster parents. Ranger said she had not yet
reviewed the documents Moody sent her but would do so and
reply back the next day. After Ranger failed to reply, Moody left
a voicemail message requesting a return call.
In a December 21, 2016 memorandum, Moody reported she
had spoken to Ranger on December 19. Ranger confirmed she
had read the documents Moody sent her and requested updates
regarding the parents’ efforts to comply with their case plans. As
to HSA’s proposed recommendation, “Ranger stated that while
[R.H.] has been in the current foster home for 8 months, she was
not comfortable with moving forward with respect to permanency
with the foster family and stated that the tribe needed to explore
extended paternal family members and determine if there are
any paternal relatives that are able to take placement of the
child.” Ranger also confirmed that she or Luna would
telephonically appear at the December 21, six-month review
hearing via CourtCall as arranged by Moody.
When the matter was called for hearing on December 21,
R.H.’s attorney stated that no one from the Tribe had called in to
6
CourtCall and that the operator had left the line open for
approximately 50 minutes before terminating the call. After all
of the relevant documents were admitted into evidence, Powers
offered testimony reiterating the opinions stated in his
declaration. Mother was present and testified. Father did not
appear, but his counsel made an offer of proof as to what his
testimony would have been. At the conclusion of the hearing, the
court found HSA had made active efforts to avoid breaking up the
Indian family and that returning R.H. to his parents would likely
cause serious emotional or physical harm. Reunification services
were terminated and the matter was set for a section 366.26
hearing. Notice of the hearing was served on the Tribe and the
BIA by certified mail.
In its section 366.26 report, HSA recommended that
parental rights to R.H. be terminated and that he be placed for
adoption with his foster parents (the prospective adoptive
parents). HSA reported that R.H. “appears to have a strong
attachment to the prospective adoptive family and his placement
in the home has remained stable throughout the dependency.”
R.H. cried at the window when his prospective adoptive father
left for work, and the prospective adoptive parents’ three-year-old
son stated that R.H. was his brother. The prospective adoptive
parents had also “expressed their commitment to raise [R.H.]
with an understanding and connection to his tribal ancestry” and
“have researched information about the Round Valley Indian
Tribe to educate themselves, so that they may help support [R.H]
in understanding his culture and heritage lifelong.”
HSA also documented its numerous ongoing efforts to
communicate with the Tribe through Luna and Ranger, the latter
of whom had changed her surname to Redfeather. HSA also
7
submitted three memorandums providing more detailed accounts
of those efforts that included attachments of the numerous emails
and letters that had been sent to the Tribe. HSA reported among
other things that during a May 5, 2017 telephone call, Luna told
Moody that Redfeather was preparing for the section 366.26
hearing and that Moody had sent both Luna and Redfeather the
confirmation page for the CourtCall hearing scheduled for that
date. On May 9, Moody also left voicemail messages on the
Tribe’s main telephone line and Redfeather’s cell phone
reiterating that the hearing was set for the following day and
that the CourtCall confirmation page had been sent.
At the May 10, 2017 hearing, Stevenson noted for the
record that “the social worker set up CourtCall once again for the
Round Valley Tribe and they did not call in once again.”
Stevenson later noted that “[HSA] has set up CourtCall for the
tribe at least four times in these hearings and [HSA] has paid
$75 each time to set that up which we don’t get back. But I think
that the tribe has not called in on any one of those occasions. So
essentially they have not intervened, but we’re just proceeding
trying to meet all the requirements.”
Mother testified at the hearing and also called Moody to
testify. HSA presented all the documents it previously offered in
the case, including Powers’ expert declaration.
In asserting that the court had good cause under section
361.31(h) to depart from ICWA’s placement preferences as set
forth in section 361.31(c) and rule 5.482, Stevenson offered that
HSA “from the get-go, tried to see if there were relatives who
could take these kids [sic], and they were not available to do that.
So ICWA does not require us to place [children] with people who
don’t want to take them. . . . And we cannot place with Indian
8
families [when] we don’t even have the tribe calling us back, and
they’re not giving us any families. The child has to be placed
with somebody. And so the child has been placed with a foster
family. And I think that these arguments that because we didn’t
place with relatives or an Indian family, then we’re out of
compliance with ICWA are absolutely wrong.”
At the conclusion of the hearing, the court found that R.H.
was adoptable and that no exception to adoption had been
established. The court stated that “[w]ith respect to ICWA, the
court finds beyond a reasonable doubt, including the testimony of
Mr. Powers, the qualified expert, that continued custody of the
child by the parents is likely to result in serious emotional or
physical damage to [R.H.] and that [HSA] made active efforts to
provide remedial and rehabilitative programs designed to prevent
the breakup of the Indian family and that these efforts have been
unsuccessful. With respect to the placement preference under
ICWA, despite diligent efforts by [HSA] to locate and place with
[father’s] relatives, no relative has requested placement. The
Tribe has not identified or sought placement with an Indian
family nor has the Tribe responded to numerous messages from
the social worker and Mr. Powers seeking the Tribe’s input.
Thus, there is good cause to modify the ICWA placement
preference.” Parental rights were terminated and adoption was
selected as the permanent plan.
DISCUSSION
Mother’s Contentions
Mother contends the court erred in finding good cause to
depart from ICWA’s placement preferences, as set forth in section
361.31(c). HSA responds that (1) mother’s appeal should be
9
dismissed under the appellate disentitlement doctrine; (2) her
contention is forfeited; and (3) the contention fails on the merits.
We decline to apply the appellate disentitlement doctrine,
which recognizes an appellate court’s inherent authority to stay
or dismiss appeals by parties who willfully failed to follow the
trial court’s legal orders. (In re E.M. (2012) 204 Cal.App.4th 467,
474.) “In dependency cases, the doctrine has been applied only in
cases of the most egregious conduct by the appellant, which
frustrates the purpose of dependency law and makes it
impossible to protect the child or act in the child’s best interests.
(In re C.C. (2003) 111 Cal.App.4th 76, 84 . . . [refusal to submit to
a psychological evaluation]; In re Kamelia S. (2000) 82
Cal.App.4th 1224, 1229 . . . [father absconded with minor];
Guardianship of Melissa W. (2002) 96 Cal.App.4th 1293, 1299,
. . . [grandparents—denied placement and guardianship—
absconded with minor]; Adoption of Jacob C. (1994) 25
Cal.App.4th 617, 623-624 . . . [mother abducted child].)” (In re
E.M., at p. 474.)
HSA asserts that mother’s appeal should be dismissed
under the appellate disentitlement doctrine because she
“refus[ed] to disclose the identity and contact information for her
eight siblings and contact information for her parents, who might
have been able to provide [R.H.] with a relative placement.”
Although HSA notes that the court ordered mother to provide
this information, her failure to comply was not so egregious that
it frustrated the purpose of the dependency law or rendered it
impossible to protect R.H. or act in his best interests.
We agree, however, that mother’s claim is forfeited. Claims
that the juvenile court failed to comply with statutory provisions
that do not relate to the court’s jurisdiction to act under ICWA
10
may be forfeited on appeal if not raised below. (In re Jennifer A.
(2002) 103 Cal.App.4th 692, 707; Fresno County Dept. of Children
and Family Services v. Superior Court (2004) 122 Cal.App.4th
626, 644-646 (Fresno County).) In re Riva M. (1991) 235
Cal.App.3d 403, 411-412.) Mother contends the juvenile court
“failed to follow the correct procedure in ruling on the [ICWA]
placement issues.” Although ICWA’s placement preferences are
both substantive and procedural, they are not jurisdictional and
may thus be waived or forfeited. (See, e.g., In re Santos Y. (2001)
92 Cal.App.4th 1274, 1282 [recognizing that ICWA placement
preferences are subject to waiver].)
Even if mother had preserved her claim, it would fail.
“ICWA establishes minimum federal standards, both procedural
and substantive, governing the removal of Indian children from
their families. [Citation.] The most important substantive
requirement imposed on state courts is that of 25 United States
Code section 1915(a), which, absent ‘good cause’ to the contrary,
mandates that adoptive placements be made preferentially with
(1) members of the child’s extended family, (2) other members of
the same tribe, or (3) other Indian families. [Citation.] . . . In
this way, ICWA seeks to protect the rights of the Indian child as
an Indian and the rights of the Indian community and tribe in
retaining its children in its society. [Citation.]” (Fresno County,
supra, 122 Cal.App.4th at p. 642.) “[A]ccording to ICWA’s
legislative history, Congress, by its use of the term ‘good cause,’
explicitly intended to provide state courts with flexibility in
determining the placement of an Indian child. [Citations.]”
(Ibid.)
“In determining whether good cause exists to depart from
the ICWA’s placement preferences, the court may take a variety
11
of considerations into account.” (In re Alexandra P. (2014) 228
Cal.App.4th 1322, 1352 (Alexandra P.).) The relevant guidelines
enacted by the BIA concerning good cause exception to ICWA’s
placement preferences provide that “‘a determination of good
cause not to follow the order of preference set out [in 25 U.S.C.
section 1915(a)] shall be based on one or more of the following
considerations: [¶] (i) The request of the biological parents or
the child when the child is of sufficient age. [¶] (ii) The
extraordinary physical or emotional needs of the child as
established by testimony of a qualified expert witness. [¶] (iii)
The unavailability of suitable families for placement after a
diligent search has been completed for families meeting the
preference criteria.’ [Citation.]” (Id. at pp. 1352-1353.) These
considerations, which are substantially identical to those set
forth in rule 5.484(b), are not exclusive and courts are thus “free
to consider other factors. [Citation.]” (Id. at p. 1353.)
HSA bore the burden of demonstrating good cause to
depart from ICWA’s placement preferences by clear and
convincing evidence. (Alexandra P., supra, 228 Cal.App.4th at
p. 1348; § 361.31, subd. (j).) “Our review of a juvenile court’s
finding of good cause to modify the placement preference order is
subject to the substantial evidence test.” (In re N.M. (2009) 174
Cal.App.4th 328, 335.) Although HSA bore the burden of
establishing the requisite good cause below, on appeal mother
bears the burden of proving the court’s ruling was erroneous.
(Alexandra P., at pp. 353-354.)
Mother asserts there is no evidence (1) “that [HSA]
explored placements with [mother’s] family” as provided in
section 361.31(c)(1); or (2) “that [HSA] made ‘reasonable efforts’
to locate a conforming placement with another Indian tribe or
12
Indian family” as set forth in section 361.31(c)(3). The former
assertion is belied by the record. HSA asked mother to provide
information regarding her parents and siblings but she refused to
do so. Because mother willfully obstructed HSA’s efforts to place
R.H. with a maternal relative, she cannot be heard to complain
that those efforts were insufficient.
Mother’s latter assertion is also unavailing. Section 361.31,
subdivision (g) provides that “[a]ny person or court involved in
the placement of an Indian child shall use the services of the
Indian child’s tribe, whenever available through the tribe, in
seeking to secure placement within the order of placement
preference” set forth in section 361.31(c). As HSA notes, “[i]t
appeared right up until [the section 366.26] hearing that the
[T]ribe was still looking into the placement issue.” Under the
circumstances, HSA had no duty to independently determine
whether R.H. could be suitably placed with an Indian family from
another tribe.
Moreover, the Tribe’s inaction supports the court’s finding
of good cause to depart from ICWA’s placement preferences.
ICWA does not affect the statutory time limits that apply to
dependency cases. For children like R.H. who were under the age
of three when removed from their parents’ custody, reunification
services cannot exceed six months from the date the child entered
foster care unless the permanent plan for the child is that he or
she be returned and safely maintained in the parents’ home no
later than 18 months after his or her removal. (§ 361.5, subds.
(a)(1)(B) & (a)(3)(A).) Once reunification services have
terminated, the focus of the proceedings shifts to providing
stability and permanence for the child. (In re Marilyn H. (1993)
5 Cal.4th 295, 309.)
13
California dependency law also requires that children for
whom reunification services have been ordered have a concurrent
plan for legal permanence in case reunification services prove
unsuccessful. (§§ 358.1, subd. (b), 16501.1, subd. (g)(10).) Shortly
after R.H. was removed, HSA sought input from the Tribe
regarding its preferences for his permanent placement.
Reunification services were terminated at a hearing held eight
months after R.H.’s removal. Although a Tribe representative
was supposed to telephonically appear at that hearing, no one
actually appeared. After that hearing, the focus of the
proceedings shifted to finding a permanent and stable home for
R.H. HSA continued its efforts to seek the Tribe’s input, but
those efforts failed. The Tribe never appeared in the matter.
HSA arranged (and paid) for a Tribe representative to appear at
no less than four hearings, including the section 366.26 hearing.
Each time the Tribe was supposed to appear, it “stood up” the
court and the parties.
In light of these circumstances, the court could implicitly
conclude that the Tribe had no present interest in participating
in the determination of R.H.’s permanent plan. Moreover, R.H.
has never had any contact with the Tribe and is bonded to his
prospective adoptive parents, with whom he has lived since he
was four months old. This further supports the finding of good
cause to depart from ICWA’s placement preferences. (Alexandra
P., supra, 228 Cal.App.4th at pp. 1354-1356.)
Request to Take Additional Evidence
In conjunction with the filing of her opening brief, mother
filed a request that we take additional evidence on appeal
pursuant to Code of Civil Procedure section 909. The proffered
evidence consists of a letter the Tribe sent to mother’s appellate
14
counsel on August 21, 2017, three days before mother’s opening
brief was filed. The letter, which is signed by Redfeather, states
that “the Tribe will be involved in [R.H.’s] case” and that “[t]he
Tribe is asking to appear by telephone for the court hearings.”
Redfeather goes on to state that “to place [R.H.] with a non
Native family is against our Tribal Codes” and that “[i]n the
event that there is an adoption, we are asking to be able to do a
Tribal Customary Adoption for [R.H.]” The letter makes no
mention of HSA’s repeated prior contacts with the Tribe, or the
fact that the Tribe was served with a copy of the order
terminating parental rights as to R.H. with a permanent plan of
adoption by his prospective adoptive parents.
In making the request, mother’s counsel acknowledges
“[t]he [T]ribe was notified of the[] proceedings and indicated it
would intervene. However, it failed to respond to requests to
recommend a placement for the child at the permanen[cy]
planning hearing held on May 10, 2017.” Counsel adds “I have
advised the Tribe that it needs to file formal intervention papers
with this Court and the Ventura County Juvenile Court. I
anticipate that they will do so but I cannot guarantee it. This
request is made on the presumption that the Tribe will follow
through and is designed to protect their rights until they move, in
a timely manner, to intervene in the appellate proceedings.”
Counsel goes on to state that “[mother] accepts the reality that, if
the tribe does not intervene in a timely manner, this request may
become moot.” In opposing the request, HSA primarily relies on
the rule that appellate courts should not consider postjudgment
evidence offered to attack a juvenile court’s judgment. (In re
Josiah Z. (2005) 36 Cal.4th 664, 676.)
15
To date, the Tribe has neither made a request to intervene
in the case nor stated its intent to do so. In mother’s reply brief,
her counsel—apparently abandoning his prior concession that
mother’s request would become moot if the Tribe did not seek to
intervene “in a timely manner”—asks us to “issue an order to the
Tribe directing it to indicate to this Court what its stance in this
appeal is.”
We deny the request to consider the Tribe’s letter as
additional evidence. We also reject counsel’s request that we
compel the Tribe to state its position. Appellant counsel made
clear to the Tribe that it needed to formally intervene if it wanted
to participate in the proceedings. The Tribe could have
intervened either orally or in writing at any time during the
proceedings (rule 5.482(d)), yet never did so in either the juvenile
court or this court. There is no claim that the Tribe failed to
receive proper notice at any stage of the proceedings.7 Moreover,
although an Indian tribe may intervene in state court
dependency proceedings at any time (25 U.S.C. § 1911(c)), the law
does not grant tribes the right to unnecessarily and willfully
delay the making of decisions that are essential to providing a
dependent child the permanence and stability to which he or she
is entitled under state dependency laws. Under these
circumstances, we decline to consider mother’s proffered
additional evidence.
7 At oral argument, mother’s counsel stated he had notified
the Tribe of the date and time of the hearing and had advised the
Tribe to call the court and make arrangements to appear
telephonically. No one from the Tribe ever called or otherwise
contacted the court.
16
DISPOSITION
The judgment (order terminating parental rights) is
affirmed.
CERTIFIED FOR PUBLICATION.
PERREN, J.
We concur:
YEGAN, Acting P. J.
TANGEMAN, J.
17
Tari L. Cody, Judge
Superior Court County of Ventura
______________________________
Christopher Blake, under appointment by the Court of
Appeal, for Defendant and Appellant.
Leroy Smith, County Counsel, and Linda Stevenson,
Assistant County Counsel, for Plaintiff and Respondent.