In re C.R.-H. CA4/1 ( 2021 )

Filed 9/23/21 In re C.R.-H. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re C.R.-H., a Person Coming
Under the Juvenile Court Law.
D078850
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES AGENCY,
(Super. Ct. No. J520628)
Plaintiff and Respondent,
v.
C.H.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County,
Browder A. Willis III, Judge. Conditionally reversed and remanded with
directions.
Vincent Uberti, under appointment by the Court of Appeal, for
Defendant and Appellant.
Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Eliza Molk, Deputy County Counsel, for Plaintiff and
Respondent.
C.H. (Mother) appeals from the juvenile court’s jurisdictional and
dispositional orders declaring her daughter, C.R.-H. (the minor), a dependent
of the court and removing her pursuant to Welfare and Institutions Code1
section 300, subdivision (b)(1) based on the minor’s positive test for
amphetamine and methamphetamine at birth. Mother asserts that a reason
to believe existed that the minor was an Indian child under the Indian Child
Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.), but that the ICWA inquiries
by the San Diego County Health and Human Services Agency (Agency) were
insufficient. The Agency asserts that it satisfied the inquiry requirements of
the ICWA but concedes that its reports omit the inquiry documentation.
Thus, the record is unclear as to what information the tribes received in
determining that the minor was not eligible for enrollment in their respective
tribes. We conditionally reverse the orders and remand the matter to allow
the Agency to comply with the requirements of the ICWA.
Mother also contends that the Agency failed to adequately attempt to
locate, identify, and notice potential relative caregivers for possible
placement of the minor. We conclude that Mother forfeited her contention
that the Agency failed to exercise due diligence in searching for potential
relative caregivers and decline to address this issue on the merits.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2021,2 Mother was taken to the emergency room
complaining of abdominal pain. She gave premature birth to the minor
approximately 30 minutes later. Although hospital staff encouraged Mother
to provide them with contact information for relatives, she only provided
1 Undesignated statutory references are to the Welfare and Institutions
Code.
2 Undesignated date references are to 2021.
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contact information for her brother and expressly noted he could only be
contacted for emergency purposes. The minor tested positive for
amphetamine and methamphetamine, and displayed withdrawal symptoms.
Two days after giving birth, Mother tested positive for amphetamine and
methamphetamine which indicated that she used drugs while at the hospital.
Mother refused to identify the minor’s father. Mother’s ex-husband denied
being the father and stated that Mother has not seen her other three children
for three or four years.
Mother reported that she has Native American ancestry through the
Sioux tribes but denied knowing if any of her family members were either
registered or receiving services from any tribe. The maternal grandmother
denied any Native American heritage in her family but reported possible
Indian heritage on the paternal side of the family. The maternal
grandmother was unwilling to be a placement option for the minor because of
Mother’s behavior and the concern that Mother “will show up to the home
and cause a scene.” The maternal grandmother denied the existence of other
family members willing to accept placement of the minor.
The Agency filed a dependency petition under section 300, subdivision
(b)(1). Mother did not appear at the January 14, detention hearing and the
Agency informed the juvenile court that it could not reach her after multiple
attempts. The minor remained hospitalized. The juvenile court made a
prima facie finding on the petition, detained the minor in out-of-home care,
which included vesting the Agency with the discretion to detain her with a
relative or a nonrelative extended family member upon her release from the
hospital. The court deferred findings relating to the ICWA.
On January 21, the Agency detained the minor in a licensed foster
home after her discharge from the hospital. On January 25, the maternal
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grandmother disclosed the names of the maternal grandfather and maternal
great-grandfather. The maternal grandfather confirmed having Native
American ancestry with the Sioux tribe. The social worker sent informal
inquiry letters to 17 Sioux tribes. Citing his age and poor health, the
maternal grandfather denied being available for placement of the minor and
was unwilling to share the names of any relatives for placement
consideration.
At the jurisdiction/disposition hearing on February 4, Mother made her
first appearance by telephone and the juvenile court appointed counsel on her
behalf. After Mother indicated that she would speak to the father and
disclose his name to counsel, the juvenile court deferred the paternity and
ICWA issues and continued the matter. At the continued
jurisdiction/disposition hearing on February 24, Mother’s counsel informed
the court that he had been unable to reach Mother since his appointment at
the prior hearing. The juvenile court set the matter for trial and continued to
defer findings related to paternity and the ICWA.
On March 8, Mother was arrested and locally detained for charges
relating to disorderly conduct, being under the influence, burglary,
vandalism, and using false identification. Mother appeared by video at the
March 22 contested jurisdiction/disposition hearing. The juvenile court
continued the matter after counsel indicated that he spoke to Mother for the
first time that morning.
The contested jurisdiction/disposition hearing on April 20 proceeded as
a trial on the documents with Mother again appearing by video. Mother
refused to name the father and the juvenile court ultimately removed Mother
from the proceeding based on her disruptive behavior. The juvenile court
found the allegations of the petition true by clear and convincing evidence
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and removed the minor from Mother’s care. The court also found the ICWA
did not apply after noting that all tribes the Agency had inquired with
responded that the minor was not eligible for enrollment. Mother timely
appealed.
DISCUSSION
I. THE MATTER MUST BE REMANDED FOR ICWA COMPLIANCE
In dependency proceedings, the juvenile court and Agency have an
“affirmative and continuing duty to inquire” whether a child “is or may be an
Indian child.” (§ 224.2, subd. (a).) At the first appearance by a parent in any
dependency case, the juvenile court must “[a]sk each participant present
whether the participant knows or has reason to know the child is an Indian
child” and “[o]rder the parent, . . . to complete Parental Notification of Indian
Status (form ICWA-020).” (Cal. Rules of Court, rule 5.481(a)(2)(A), (C).)3
If the court or social worker has reason to believe that an Indian child
is involved the social worker must, as soon as practicable, conduct further
inquiry, including, but not limited to: (1) interviewing parents and extended
family members; (2) contacting the Bureau of Indian Affairs and the State
Department of Social Services for assistance in identifying the names and
contact information of the tribes in which the child may be a member, or
eligible for membership; and (3) contacting the tribes or any persons that
may reasonably be expected to have information regarding the child’s
membership, citizenship status, or eligibility. (§ 224.2, subd. (e)(1)-(2).) Only
if this inquiry establishes reason to know the child is an Indian child, must
the Agency provide notice to the tribes by registered mail of the pending
proceedings and their right to intervene. (Id., subd. (f).)
3 Further rule references are to the California Rules of Court.
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Mother notes that the ICWA inquiry documentation is not in the record
and it is unknown what information the Agency provided to the tribes.
Accordingly, Mother asserts that substantial evidence does not support the
juvenile court’s ICWA findings. The Agency concedes that the Agency’s
reports preceding this appeal omit the information obtained from the ICWA
inquiry and that the juvenile court did not have this inquiry documentation
when it found that the ICWA did not apply. The parties agree, and we
concur, that the matter must be remanded to the juvenile court to order the
Agency to file this information. The juvenile court can then review the
information and determine whether further inquiry or notice is needed.
Mother asserts that the Agency failed to ask the maternal
grandparents for relative contact information for ICWA purposes even
though the Agency asked these individuals about relatives for placement
purposes. The maternal grandmother denied the existence of other family
members willing to take placement and the maternal grandfather was
unwilling to share the names of relatives for placement consideration.
Mother speculates that the Agency may have obtained relative contact
information from the maternal grandparents had the Agency informed them
that it needed relative contact information for purposes of the ICWA.
The record does not indicate whether the Agency asked the maternal
grandparents for relative contact information for purposes of the ICWA. It is
possible that the omitted inquiry documentation contains information on this
issue. On remand, the juvenile court has a duty to review the inquiry
documentation and determine whether further inquiry is needed, including
asking the maternal grandparents for relative contact information.
Mother also contends that the juvenile court did not ask her about any
Native American ancestry and did not receive an ICWA-020 form from her.
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The record shows that the juvenile court failed to ask Mother about her
Indian Heritage when she first appeared at the initial jurisdiction/disposition
hearing on February 4. The court also failed to order Mother to complete an
ICWA-020 form. Nonetheless, state laws implementing the ICWA are subject
to a harmless error analysis. (In re H.B. (2008) 161 Cal.App.4th 115, 121.)
Mother does not argue that the juvenile court’s failures prejudiced her
in any way. (In re A.L. (2015) 243 Cal.App.4th 628, 639 [failure to comply
with the ICWA provisions is reversable “only if the error is prejudicial”].) On
this record, we conclude that the juvenile court’s omissions were harmless
because Mother told the social worker at the outset of the proceeding that she
had Native American ancestry with the Sioux tribes and the Agency had
contact with the maternal grandparents. On remand, the trial court is
directed to determine if further inquiry with Mother and the maternal
grandparents is required.
Finally, Mother argues that the Agency failed to contact the Bureau of
Indian Affairs and the Secretary of the Interior. When the Agency and the
juvenile court have reason to believe that the child is an Indian child within
the meaning of the ICWA, the Agency is required to conduct further inquiry
including “[c]ontacting the Bureau of Indian Affairs and the State
Department of Social Services for assistance in identifying the names and
contact information of the tribes in which the child may be a member, or
eligible for membership in . . . .” (§ 224.2, subd. (e)(2)(B).) Here, the Agency
did not need to conduct a further inquiry with the Bureau of Indian Affairs
and the State Department of Social Services because Mother and the
maternal grandfather claimed Indian heritage via the Sioux tribes. Mother
does not argue, and nothing in the record suggests, that the Agency was
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unable to obtain the names and contact information for any of the Sioux
tribes.
II. MOTHER FORFEITED HER ARGUMENTS REGARDING THE
PLACEMENT INVESTIGATION
Upon removing the minor from Mother’s custody, the Agency was
required to identify and locate adult relatives for possible placement,
including relatives suggested by the parents. (§ 309, subd. (e)(1).)4 The
question whether the Agency exercised due diligence under section 309 is
reviewed for substantial evidence. (In re S.K. (2018) 22 Cal.App.5th 29, 38.)
When the court finds the social worker has not used due diligence, “the court
may order the social worker to exercise due diligence in conducting an
investigation to identify, locate, and notify the child’s relatives . . . and may
require a written or oral report to the court.” (Rule 5.695(e)(2).)
“When making the determination required [by Rule 5.695, subdivision]
(e), the court may consider, among other examples of due diligence, whether
the social worker has done any of the following: [¶] (1) Asked the child, in an
age-appropriate manner and consistent with the child’s best interest, about
his or her relatives; [¶] (2) Obtained information regarding the location of
the child’s relatives; [¶] (3) Reviewed the child’s case file for any information
regarding relatives; [¶] (4) Telephoned, e-mailed, or visited all identified
4 “If the child is removed, the social worker shall conduct, within 30 days,
an investigation in order to identify and locate all grandparents, parents of a
sibling of the child, if the parent has legal custody of the sibling . . . . The
social worker shall provide to all adult relatives who are located . . . within 30
days of removal of the child, written notification and shall also, whenever
appropriate, provide oral notification, in person or by telephone” that the
child has been removed from his or her parent and an “explanation of the
various options to participate in the care and placement of the child.” (§ 309,
subd. (e)(1)(A), (B).)
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relatives; [¶] (5) Asked located relatives for the names and locations of other
relatives; [¶] (6) Used Internet search tools to locate relatives identified as
supports; or [¶] (7) Developed tools, including a genogram, family tree,
family map, or other diagram of family relationships, to help the child or
parents to identify relatives.” (Rule 5.695(f).)
Mother contends that the Agency did not make reasonable efforts to
locate and contact potential relative caregivers, specifically noting that the
Agency did not contact the minor’s uncle. She also asserts that the juvenile
court did not make a due diligence “finding on the record” as required by Rule
5.695(e)(1). Mother requests that a new hearing regarding placement be held
after relatives are properly searched for, noticed, and evaluated. The Agency
asserts that it exercised due diligence in conducting its placement
investigation and Mother forfeited her arguments by not raising them with
the juvenile court.
The juvenile court expressly “adopt[ed] the recommendations set forth
in the addendum report dated February 24, . . . making each recommendation
an order of the Court.” The adopted recommendation provides: “The social
worker has used due diligence in conducting an investigation to identify,
locate and notify all of the child’s relatives within 30 days of the child’s
removal from the home of his or her parent or guardian.” Mother’s counsel
did not object to the adequacy of the Agency’s placement investigation or to
the sufficiency of the court’s due diligence finding. “A party forfeits the right
to claim error as grounds for reversal on appeal when he or she fails to raise
the objection in the trial court.” (In re Dakota H. (2005) 132 Cal.App.4th 212,
221.) “Forfeiture . . . applies in juvenile dependency litigation and is intended
to prevent a party from standing by silently until the conclusion of the
proceedings.” (Id. at p. 222.)
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Mother argues against forfeiture in her reply brief, stating that she
raised the issue of having relatives supervise visits and this sufficiently
brought relatives to the attention of the parties for purposes of placement.
Mother also asserts that placement with relatives, when possible, serves the
best interests of dependent minors (§ 202, subd. (a); In re R.T. (2015) 232
Cal.App.4th 1284, 1296), and that the minor’s best interests should not be
neglected because she did not explicitly raise an issue in the courtroom.
The application of the forfeiture rule is not automatic, and a reviewing
court has discretion to consider forfeited claims. (In re S.B. (2004) 32 Cal.4th
1287, 1293.) However, the “discretion to excuse forfeiture should be exercised
rarely and only in cases presenting an important legal issue.” (Ibid.; see
id. at pp. 1293-1294 [excusing forfeiture to reach “an important issue of law:
whether a juvenile court in a dependency case may delegate to the child’s
legal guardian the authority to decide whether a parent may visit the child”].)
The circumstances here do not outweigh the important policy reasons for the
forfeiture rule and we deem the Mother’s arguments regarding the adequacy
of the placement investigation and the court’s findings to be forfeited.
DISPOSITION
The April 20, 2021 jurisdictional and dispositional orders are
conditionally reversed and the matter is remanded with directions for the
Agency to promptly file its ICWA inquiry documentation. The juvenile court
must then review this information and determine whether further inquiry,
including asking the Mother and maternal grandparents for relative contact
information, is required.
If, after further inquiry and, if required, notice, the Agency obtains
information showing a reason to know that the minor is an Indian child, the
court must provide notice in accordance with the ICWA. (§ 224.3, subd. (a).)
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The Agency shall thereafter notify the court of its actions and file certified
mail return receipts for any ICWA notices sent, together with any responses
received. The court must then determine, on the record, whether the ICWA
inquiry and notice requirements have been satisfied and whether the minor
is an Indian child. If the court finds she is an Indian child, it is to vacate all
affected orders and conduct a new jurisdiction/disposition hearing, as well as
all further proceedings, in compliance with the ICWA and related California
law. If the court finds the minor is not an Indian child, the court’s original
jurisdictional and dispositional orders may be reinstated.
McCONNELL, P. J.
WE CONCUR:
GUERRERO, J.
DO, J.
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