In re Elise W. CA1/5 ( 2014 )

Filed 1/10/14 In re Elise W. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re Elise W., a Person Coming Under the
Juvenile Court Law.
SONOMA COUNTY HUMAN
SERVICES DEPARTMENT,
Plaintiff and Respondent, A136845
v.
(Sonoma County
Danielle D., Super. Ct. No. 3718-DEP)
Defendant and Appellant.
Danielle D. (Mother) appeals from an order terminating her parental rights to her
daughter, Elise W. The court had previously ordered a bypass of reunification services in
the case based on Mother’s failure to reunify with Elise’s older half-siblings. We
affirmed that order on writ review. Mother argues the termination order should be
reversed because (1) Elise’s father reported Indian ancestry and Indian Child Welfare Act
(ICWA; 25 U.S.C. § 1901 et seq.) notice requirements were not satisfied; (2) Mother was
denied a proper hearing on her request to represent herself at the contested termination
hearing; (3) Mother’s petition for modification of the order bypassing services was
improperly denied without a hearing; and (4) the trial court erred in ruling that the
beneficial parental and sibling relationship exceptions to termination of parental rights
did not apply. We conclude the trial court’s finding that the Sonoma County Human
Services Department (Department) fulfilled ICWA notice requirements is not supported
1
by substantial evidence and we order a limited remand to correct the error. In all other
respects, we reject Mother’s arguments on appeal.
I. BACKGROUND
Even before Elise was born in 2011, Mother had a long history of substance abuse
and domestic violence issues and had been the subject of multiple child welfare referrals
involving Elise’s half-siblings, Adan (born in 2002) and Eden (born in 2004) (hereafter
Siblings). In January 2008, Mother and the Siblings were found living in a home with no
heat or electricity and the children were hungry and cold; local police identified Mother
as a known methamphetamine user. In May 2008, another domestic violence incident
occurred between Mother and the Siblings’ father—at least the fourth such incident
between the two—and Mother had alcohol on her breath at the time of the incident. In
June 2008, Mother was found with Eric W. (Elise’s father; hereafter Eric), who was
under an order to stay away from Mother because he had broken her jaw in a previous
domestic violence incident. In September 2008, the family home was found to be filthy
and without edible food. An adult male, D.W., was living there with Mother and
methamphetamine and marijuana pipes were openly displayed in the bedrooms. In
December 2008, the home was again found to be filthy and unsafe. D.W. was again
present, and he and Mother were both uncooperative with investigating officers, while
another man in the home was arrested on outstanding warrants.
A. Siblings’ Dependency Case
In December 2008, the Department filed a juvenile dependency petition on behalf
of the Siblings pursuant to Welfare and Institutions Code section 300.1 The petition
alleged that Mother failed to provide the Siblings with adequate food, clothing, shelter or
medical care, in part due to her substance abuse, and that Mother had a history of
domestic violence that exposed the children to the risk of harm. At a January 2009
1
All statutory references are to the Welfare and Institutions Code unless otherwise
indicated.
2
jurisdiction and disposition hearing, the court sustained an amended petition, ordered the
children removed, and granted reunification services to both parents.
During 2009, Mother completed an inpatient alcohol abuse treatment program,
participated in therapy, and was positive and appropriate during visits with the Siblings.
After successful overnight visits, the Siblings were placed with Mother on a trial home
visit in November 2009. At a 12-month review hearing in December 2009, the court
granted Mother an additional six months of reunification services and scheduled a status
review hearing for February 2010.2 Mother made further progress and, at a March 2010
status review hearing, the court formally returned the children to Mother’s care and
granted Mother six months of family maintenance services.
In May 2010, Eric came to Mother’s home uninvited and intoxicated, stole money
from Mother, tried to get her to drink vodka, threatened to kill her, punched her in the
head, dragged her by the hair, and choked her to the point of her almost causing her to
lose consciousness. Mother was able to get someone to take the children out of the home
and call the police, and she cooperated with the police investigation and obtained a
restraining order against Eric. In July 2010, Mother was found in her home with a man
who had a known substance abuse problem and a criminal history, although Mother did
not show signs of intoxication. In other respects, the Siblings’ stay in Mother’s care was
going well. The children were happy and doing well developmentally, the home was
usually clean and stocked with food, and Mother continued to test negative for drugs and
alcohol and to participate in services. At a September 2010 hearing, the court extended
Mother’s family maintenance services for an additional six months.
B. Birth of Elise
In January 2011, Mother gave birth to Elise. Eric was incarcerated for the
May 2010 assault on Mother and was scheduled to be released in June. Mother said she
did not want to resume her relationship with Eric, but she wanted him to have a
relationship with Elise if he changed his lifestyle. In January 2011, Mother allowed the
2
The Siblings’ father’s services were terminated.
3
Siblings’ father to stay overnight in her apartment, and he verbally and physically
assaulted Mother while she was in bed with Eden. Mother agreed to limit her contact
with him and to return to individual therapy. At a March 2011 status review hearing, the
court granted Mother an additional six months of family maintenance services, but
expressed concern about Mother’s ability to handle Eric’s possible demands to see Elise
when he was released from custody.
In July 2011, Mother allowed Eric into her home following his release from prison
in violation of a restraining order. He was reincarcerated for violating the order and was
scheduled to be released again in six months. That same month, Mother’s home was
found to be filthy and unsafe and the children were left in the care of Jason J., a parolee
with an outstanding arrest warrant who appeared to be under the influence of a drug,
possibly methamphetamine. The following month Mother missed three drug tests. On
August 15, she was found walking with her children and Jason J., who had alcohol on his
breath and initially fled when he saw police. Mother also smelled of alcohol and had a
backpack that contained a partially consumed 40-ounce beer. On August 19, Mother was
pulled over for failing to stop at a stop sign. The officer discovered that Mother was
driving with a suspended license and without insurance, and the inside of her car was
filthy, foul-smelling and unsafe. All three children were in the car. Mother was arrested
for felony child endangerment and violation of probation, and the children were taken
into protective custody.
C. Dependency Petition for Elise and Bypass of Services
On August 24, 2011, the Department filed a juvenile dependency petition on
behalf of Elise pursuant to section 300, subdivisions (b), (g), and (j). The petition alleged
Mother’s substance abuse history and recent relapse, her domestic violence history, the
circumstances of her August 19 arrest, Eric’s substance abuse and domestic violence
history (including the May 2010 incident), the parents’ incarceration, and the sustained
petitions and removal (but subsequent return) of the Siblings. A supplemental petition
was also filed on behalf of the Siblings, and all of the children were removed from
Mother’s care. Elise was placed in foster care and adjusted well to her placement,
4
appearing happy and healthy. Mother minimized the allegations of the new petition, but
her visits with Elise were appropriate and engaging and she was gracious toward the
foster parent.
The Department recommended a bypass of services in Elise’s case for Mother.3
The Department acknowledged that Mother had several strengths as a parent, but
observed that she “continue[d] to bring people and situations into her children’s lives that
jeopardize[d] their safety.” Despite years of services, four significant incidents in the
previous nine months had forced the Department to question Mother’s judgment.
“[Mother] has managed to raise two extremely resilient children and one very happy
baby. But love and ingenuity are not enough to protect children. [Mother’s] long history
of domestic violence and addiction has undoubtedly scarred her children and the
Department can no longer stand by and allow it to happen.”
The Department also recommended a bypass of services for Eric, who had an
extensive criminal history. Eric was incarcerated at San Quentin and scheduled to be
released on December 2, 2011. He appeared in court with counsel on December 12 and
requested paternity testing, which the court ordered.
At a January 17, 2012 contested disposition hearing, the focus was on whether
Mother had made reasonable efforts to treat the problems that had led to the removal of
the Siblings.4 (See § 361.5, subd. (b)(10).) After taking the matter under submission, the
court announced its ruling on January 24, reconsidered the ruling sua sponte, and
announced a new ruling on February 7. The court declared Elise a dependent child,
removed her from Mother’s custody, and ordered a bypass of services for both parents.
Mother challenged the order by writ petition, which we denied. (Danielle D. v. Superior
Court (May 21, 2012, A134645) [nonpub. opn.].)
3
In the Siblings’ case, the Agency recommended removal and termination of
services for Mother. At a November 2011 hearing, the court removed the Siblings,
terminated Mother’s services, and set a section 366.26 hearing on termination of parental
rights for March 29, 2012.
4
As of January 17, 2012, Eric’s whereabouts were unknown.
5
Elise’s section 366.26 hearing was scheduled for June 7, 2012. In a May
section 366.26 report, the Department recommended termination of parental rights in
Elise’s case.5 Elise was living in a foster home with the Siblings and had a positive
relationship with them. She had a healthy attachment to the foster parents, who were
planning to adopt her while maintaining the sibling relationship. Visits with Mother had
been positive and appropriate, but the foster parents reported that Elise was showing
signs of confusion about Mother’s role in her life. Adoption specialists who reviewed
Elise’s case concluded that the benefits of maintaining Elise’s relationship with Mother
did not outweigh the benefits of the permanency of adoption for Elise.
At the June 7, 2012 hearing, Eric was present and the parties had documentation of
his biological paternity. Both parents requested a contested section 366.26 hearing,
which was ultimately scheduled for September 18.6
D. Section 388 Petition
On July 9, 2012, Mother filed a section 388 petition to modify the order bypassing
services and setting the section 366.26 hearing. She asked that Elise be returned home
with family maintenance services or that her visitation be increased and the
section 366.26 hearing delayed or cancelled. In opposition to similar petitions filed in the
Siblings’ case, the Department submitted two police reports, which disclosed the
following. Mother reported to police a January 30–31, 2012 domestic violence incident
perpetrated by Eric after he was released from custody. Eric approached Mother and
asked to talk. Because she was afraid he would become violent if she refused, she agreed
and walked with him away from Mother’s companions. As they approached a trailer,
Eric grabbed Mother, held a screwdriver to her throat, dragged her under a canopy where
the others could not see them, and urged her to go with him to a tent where he was
5
In March 2012, the Department had recommended termination of parental rights
and adoption as the permanent plan for the Siblings.
6
On September 18, 2012, Eric signed a statement regarding paternity
acknowledging he was Elise’s father and the Department stipulated that he was Elise’s
biological father.
6
staying. She stalled and apparently passed out. “Her next memory was waking up in
[Eric’s] tent.” She tried to leave the tent, but Eric became mad and hit her hard in the
stomach and chest, dragged her down by the hair, threatened to kill her, and put his hands
around her throat. She begged him to let her go and he eventually released her, but he
said if he saw her with another man he would slit their throats. Based on the report, Eric
was charged with kidnapping, false imprisonment, assault with a deadly weapon,
domestic violence, and making criminal threats. About four months later, apparently on
the very day Eric was released from custody following his arrest for the January incident,
an officer saw Mother walking with Eric at about 11:00 p.m., and Eric was arrested for
violating a restraining order.7
The section 388 petitions were discussed at a July 13, 2012 hearing and are
described in more detail post. After both sides were heard on the matter, the court denied
a hearing on the petitions.
E. Section 366.26 Hearing
At Elise’s section 366.26 hearing on September 18, 2012, the testimony focused
on whether the beneficial parental relationship exception to termination of parental rights
applied. At the conclusion of the hearing, the court ruled that the beneficial parental
relationship exception did not apply and terminated Mother’s parental rights.
II. DISCUSSION
A. ICWA Notice
Mother argues the trial court erred in finding that ICWA notice requirements were
satisfied and that ICWA did not apply to Elise. We review such findings for substantial
evidence. (In re J.T. (2007) 154 Cal. App. 4th 986, 991.) We conclude the court’s ICWA
findings are not supported by substantial evidence and we order a limited remand to
resolve the error.
7
In her section 388 petition, Mother wrote, “I recently encountered [Eric] in
Sebastopol and had a brief conversation to see if he was staying in town or not, so that I
could determine whether to find another place to stay. He was taken into custody for
violating the Criminal Protective Order.”
7
1. Factual Background
In its September 2011 jurisdiction and disposition report, the Department wrote
that the ICWA does or may apply to Elise. Eric had reported that his father and
grandfather were enrolled members of the Cherokee Nation. Eric had also provided the
following family history: “[Eric] was born . . . in Philadelphia, Pennsylvania to
Diane [F.] and Alfred [W.] His parents were married at the time of his birth [in 1977];
however, they divorced when [he] was about four years old. [He] has a younger brother
who was born in 1979 and currently resides in Hampton, Connecticut. At the age of six
or seven, [Eric] and his brother moved to Hampton, Connecticut with their mother who
worked full-time as a hair dresser.” The Department also reported that Eric was
incarcerated at San Quentin as of July 21, 2011, and was scheduled to be released on
December 2, 2011.
On October 3, 2011, the Department sent ICWA notices to the Cherokee Nation in
Tahlequah, Oklahoma, the United Keetoowah Band of Cherokee in Tahlequah,
Oklahoma, the Eastern Band of Cherokee in Cherokee, North Carolina, the Bureau of
Indian Affairs (BIA), the Secretary of the Interior, and the parents. The notices provided
the name, birthdate and place of birth for Elise and Mother, the name and birthdate of
Eric, the names and birth places (states only) of Eric’s father and grandfather, and some
information about Mother’s parents and Eric’s mother and grandmother.8 The
Department filed a copy of the notice in the trial court record. A photocopy of
overlapping return receipts from the three tribes, BIA and Secretary of the Interior is
included in the appellate record, but the photocopy does not clearly show signatures
confirming receipt by the Cherokee Nation, United Keetoowah Band, or Secretary of the
Interior. It is not clear whether the original return receipts or the same photocopy was
filed in the trial court.
8
In September 2011, the Department had filed and mailed a different version of
the ICWA Notice that apparently included some errors. When the Department sent the
October notice, it told the tribes to disregard the earlier notice.
8
In the February 7, 2012 jurisdiction and disposition order (which included the
order to bypass services), the court adopted an ICWA finding the Department had
initially proposed in its September 2011 jurisdiction report: “There is currently
insufficient information to determine if the minor may be an Indian child[.] [T]he parents
are ordered to assist the Department in its investigation, and the Department will update
the Court by the next hearing and seek the appropriate ICWA findings.”9
In its May 2012 section 366.26 report, the Department wrote: “On January 24,
2012, the Court found that there was insufficient information to determine . . . if the
minor may be an Indian child and requested that the parents assist the Department. The
undersigned has reviewed the case file and has determined that the requested information
has not been obtained. The Cherokee Nation has requested the maternal grandfather’s
middle name and date of birth, and the paternal great grandmother’s maiden name,
middle name, and date of birth. The undersigned has sent a written request for
information to the mother and father and will provide[] the Cherokee Nation[] said
information upon receipt.” “The undersigned” was Patricia Ramano, a social worker who
was assigned to the case in March 2012, or earlier. The response from the Cherokee
Nation is not in the record. In this report, the Department wrote that Eric’s whereabouts
were unknown.
Eric was present at a June 7, 2012 hearing. A “court officer” informed the court,
“I did note in the report, the social worker is very specific about some un[res]olved
[ICWA] issues, specifically related to [Eric], [and] needing information about the
paternal [grandparents] . . . . I did speak to [Eric] this morning. He said he did not have
that information and the person that would have that information is his [m]other,
Diane [F.] and he did provide a phone number for her. I would be talking to [the social
worker] in an effort to obtain that information.”
At the September 2012 section 366.26 hearing, Ramano testified that she had
received the name and number of Diane F. on June 7 and had “called her on several
9
The same finding was in the superseded January 24, 2012 order.
9
occasions” left at least one message, but had not heard back from her. When later asked
to specify how many times she had called Diane F., Ramano said, “I know I’ve called her
at least a couple of times and left a message.”10 Ramano had also “sent letters to both
[parents] requesting” the maternal grandfather’s middle name and date of birth, but never
received the information. She testified that she let the Cherokee Nation know in late June
that she was not able to get the information. When Mother’s counsel attempted to cross-
examine the social worker about the notices sent to the tribes, the social worker was not
able to answer because she did not have the notices with her and she had not personally
sent out the notices, a task that is performed by the Department’s legal/clerical
department. Minor’s counsel asked whether the social worker had contacted other
relatives who might have the information. The social worker answered, “Like I said, I
only got the information back from the Court Officer on June 7th which indicated that
[Diane F.] would have this information.”
On this testimony and without argument by counsel, the court found that ICWA
notice requirements had been satisfied and there was no basis to find that the ICWA
applied.
2. Analysis
The ICWA requires that “[i]n any involuntary proceeding in a State court, where
the court knows or has reason to know that an Indian child is involved, the party seeking
the foster care placement of, or termination of parental rights to, an Indian child shall
notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with
return receipt requested, of the pending proceedings and of their right of intervention.”
(25 U.S.C. § 1912(a), italics added.)
Noncompliance with ICWA notice requirements has been a persistent problem in
this state’s juvenile courts. (See In re I.G. (2005) 133 Cal. App. 4th 1246, 1254–1255.) In
2006, the Legislature addressed the problem by enacting strict notice requirements that
10
Ramano identified the number as one with a 510 area code (which covers the
area immediately east of San Francisco Bay) and Eric had previously suggested that his
mother lived in Connecticut. However, Eric was at the hearing and did not protest.
10
had previously been included in nonbinding federal regulations. (In re J.T., supra,
154 Cal.App.4th at p. 993; § 224.2; 25 C.F.R. § 23.11(a), (d), (e) (1994); see also In re
W.B. (2012) 55 Cal. 4th 30, 52, 56 [purpose of 2006 legislation was to increase
compliance with ICWA]; § 224, subd. (d) [any applicable law that provides a higher
standard of protection prevails over ICWA].) As relevant here, the 2006 enactments
(which are still in effect) provide that notice must include “all of the following
information: [¶] . . . [¶] (C) All names known of the Indian child’s biological parents,
grandparents, and great-grandparents, or Indian custodians, including maiden, married
and former names or aliases, as well as their current and former addresses, birthdates,
places of birth and death, tribal enrollment numbers, and any other identifying
information, if known.” (§§ 224.2, subd. (a)(5), 224.3, subd. (d); see also Cal. Rules of
Court, rule 5.481(b).)11 The social services agency must continue to provide notice of
each hearing unless and until the court finds the ICWA does not apply to the case.
(§ 224.2, subd. (b).) Moreover, even after the court makes such a finding, the agency
must send supplementary notice if it thereafter receives new information that should be
included in an ICWA notice if known. (§ 224.3, subd. (f).)
The 2006 enactments also impose affirmative duties to inquire about and
investigate a child’s potential Indian child status. Section 224.3 provides that the court
and the social services agency “have an affirmative and continuing duty to inquire
whether a child [in dependency proceedings] is or may be an Indian child . . . .” (§ 224.3,
subd. (a); see also rule 5.481(a)(1).) This duty is triggered if a person having an interest
in the child “provides information suggesting the child is a member of a tribe or eligible
for membership in a tribe or one or more of the child’s biological parents, grandparents,
or great-grandparents are or were a member of a tribe.” (§ 224.3, subd. (b)(1); see also
rule 5.481(a)(5).) Upon receiving such information, the social worker “is required to
make further inquiry regarding the possible Indian status of the child, and to do so as
soon as practicable, by interviewing the parents, . . . and extended family members to
11
All further rule references are to the California Rules of Court.
11
gather the information” that should be included in the notice if known, and must
“contact[] the [BIA] 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 and contact[] the tribes and any other person that
reasonably can be expected to have information regarding the child’s membership status
or eligibility.” (§ 224.3, subd. (c); see also rule 5.481(a)(4).)
Finally, the 2006 enactments require the social services agency to create a record
in the trial court of its notice efforts. “Proof of the notice, including copies of notices
sent and all return receipts and responses received, shall be filed with the court in
advance of the hearing,” with exceptions not relevant here. (§ 224.2, subd. (c); see also
rule 5.482(b).) If adequate notice has been provided and neither a tribe nor the BIA
provides a determinative response within 60 days of receiving the notice, the court may
determine that the ICWA does not apply. However, if the tribe or BIA later confirms that
the child is an Indian child, the court must reverse its determination. (§ 224.3,
subd. (e)(3); rule 5.482(d).)
As far as the record before us shows, the Department did not fully comply with
these requirements. First, the Department failed to make an adequate record of its notice
efforts. The Cherokee Nation’s response is not in the record and we cannot determine
whether legible copies of the return receipts are in the trial court record. Without these
documents, the trial court could not properly determine whether the notice requirements
were satisfied. (See In re Mary G. (2007) 151 Cal. App. 4th 184, 210–211 [finding ICWA
notice error in part because tribal response was not filed in the record].) Second, the
record before us suggests that the Department failed to fulfill its affirmative duty of
inquiry and investigation. In the September 2011 jurisdiction report, the Department
acknowledged it had insufficient information to determine if Elise was an Indian child
and that it would benefit from assistance from the parents. However, nothing in the
record indicates that it sought assistance from the parents between September 2011 and
June 2012, when a court officer finally obtained family contact information from Eric.
The Department had the ability to contact Eric in the fall of 2011, and again from
12
February to about May 2012, when he was incarcerated. The Department also had been
given substantial information about Eric’s extended family, including the name of the
city where his mother and brother were, or had been, living. But there is no evidence it
attempted to use that information to gather more detail about Elise’s possible Indian
ancestry.
More specifically, it does not appear that the Department fulfilled its affirmative
duty to follow up on the response it received from the Cherokee Nation. Although the
record does not indicate when the response was received, it likely was received in the fall
of 2011, as the statutory waiting period for tribal responses is 60 days. (§ 224.3,
subd. (e)(3); rule 5.482(d).) The first mention of the response, however, is in the
May 2012 section 366.26 report. Ramano writes that she only obtained information
about ICWA compliance by reviewing the case file. Similarly, at the September 2012
hearing, she was unable to testify fully about the Department’s ICWA compliance efforts
because she did not have the file in her possession, and explained she had not done the
work herself. Even after she obtained a phone number for Diane F. in June 2012,
Ramano apparently only made two phone calls and left one message to attempt to obtain
the needed information.12
On these facts, we cannot conclude that substantial evidence supports the trial
court’s finding that the ICWA did not apply to Elise’s case. (See In re A.G. (2012)
204 Cal. App. 4th 1390, 1397 [reversal where notice was incomplete and evidence was
insufficient that agency adequately inquired and investigated to obtain missing
information].)
The Department complains that Mother and Eric failed to provide the needed
information. The parents’ failure to act, however, does not excuse noncompliance where
12
Two other ICWA notice errors are apparent from the record, although Mother
does not discuss them in her appellate briefs. First, the information on the notices was
incomplete, as the amended October 2011 notices did not include Eric’s birthplace even
though it was reported in the September 2011 jurisdiction report. Second, the
Department apparently did not continue to send ICWA notice of hearings in the case up
to the September 2012 hearing when the court found that the ICWA did not apply.
13
the information was or might have been available from other sources. On the related
issue of a parent’s failure to object to ICWA findings in the trial court, courts have
repeatedly held that “ICWA notice issues cannot be forfeited for appeal by a parent’s
failure to raise them in the juvenile court, because it is the tribes’ interest, not the
parents,’ that is at stake in dependency proceedings that implicate ICWA. [Citations.]”
(In re A.G., supra, 204 Cal.App.4th at p. 1400.)
3. Harmless Error
The Department urges that any deficiencies in ICWA notice were in any event
harmless. We reluctantly disagree.
“ ‘Deficiencies in an ICWA notice are generally prejudicial, but may be deemed
harmless under some circumstances. [Citations.]’ [Citation.]” (In re S.E. (2013)
217 Cal. App. 4th 610, 615.) The Department argues Mother failed to demonstrate
prejudice because she made no showing on appeal that additional information relevant to
Elise’s possible status as a Indian child would have been available had the Department
conducted a more thorough inquiry. The Department argues it is “mere supposition” that
more relevant information was available. Some courts have held that notice errors are
harmless error where the relevant parent never asserted, either in the trial court or on
appeal, Indian heritage. (In re N.E. (2008) 160 Cal. App. 4th 766, 770–771; In re
Rebecca R. (2006) 143 Cal. App. 4th 1426, 1431; but see In re J.N. (2006)
138 Cal. App. 4th 450, 461–462.) Here, however, Eric claimed in the trial court that his
father and grandfather were enrolled members of the Cherokee Nation. In similar
circumstances, another division of this District held that an agency’s failure to adequately
inquire into and investigate a father’s claim of Indian heritage was not harmless error
even though the father had “not made an ‘affirmative representation that further
information showing Indian connection sufficient to invoke ICWA is indeed available,’
or ‘sa[id] what that information is.’ ” (In re A.G., supra, 204 Cal.App.4th at p. 1401.)
Distinguishing In re N.E., where the appellant made “ ‘[no] showing whatsoever that the
interests protected by the ICWA [we]re implicated in any way,’ ” the In re A.G. court
wrote, “Here, in sharp contrast, Father expressed his claim of Indian heritage from the
14
beginning, and he provided the Agency with sufficient information to trigger its
obligation to make further inquiry,” but the agency’s inquiry and notice to the tribes was
inadequate. (Ibid.; see also In re Mary G., supra, 151 Cal.App.4th at pp. 211–212 [where
parents disclosed Indian ancestry below but agency investigation was allegedly
inadequate, parents do not need to show on appeal that further investigation would show
minor was Indian child]; cf. In re Brandon T. (2008) 164 Cal. App. 4th 1400, 1414
[omission of information from notice was harmless where record demonstrated that
omitted information was not relevant to determining whether minor was Indian child].)
Other cases relied on by the Department are distinguishable. In re Levi U. (2000)
78 Cal. App. 4th 191 was decided before the 2006 changes in state notice requirements. In
In re K.M. (2009) 172 Cal. App. 4th 115, the “Agency gave notice to the tribes identified
by K.M.’s grandmother and provided the names of K.M.’s grandfather and grandmother
and great-grandmother and great-grandfather and all other information the Agency was
able to obtain from [the mother] and grandmother. The record shows the Agency
attempted on several occasions to elicit further information from the child’s family, but
was unsuccessful due to the family’s hostility toward the Agency.” (Id. at p. 119.) The
mother nevertheless argued that termination of her parental rights should be reversed
because the Agency did not interview the child’s great-grandmother. However, the
grandmother had refused to provide contact information for the great-grandmother, and
none of the tribes that had been contacted suggested K.M. was or might be a tribal
member. (Id. at pp. 118–119.) Here, in contrast, one of the tribes requested specific
additional information, which suggested Elise might be member of that tribe, and
Ramano made only a belated and limited effort to contact Eric’s mother (or other
relatives) to obtain the additional information the tribe needed. We further note that Eric
did not make a vague claim of possible Indian ancestry generations in his past, but stated
that both his father and grandfather were enrolled members of a tribe. (Cf. id. at p. 117
[mother claimed “she was, or might be, a member of the ‘Cherakia’ tribe,” and agency
notified the Cherokee tribes].)
15
All of the cases we discuss were decided prior to the very recent decision of the
United States Supreme Court in Adoptive Couple v. Baby Girl (2013) 570 U.S.___
[133 S. Ct. 2552] (Adoptive Couple). While not directly applicable to the ICWA notice
issues presented here, the Supreme Court considered application of ICWA to
circumstances where, as here, the parent alleging Indian heritage never had custody of the
Indian child. (Id. at p. 2560.) The high court found that “[W]hen an . . . Indian child . . .
has never been in the Indian parent’s legal or physical custody, there is no ‘relationship’
that would be ‘discontinu[ed]’ [consistent with the definition of ‘breakup’] . . . by the
termination of the Indian parent’s rights” (id. at pp. 2562–2563), and that “. . . ICWA’s
primary goal of preventing the unwarranted removal of Indian children and the
dissolution of Indian families is not implicated.” (Id. at p. 2561.) In Adoptive Couple,
however, unlike the instant case, the non-Indian mother voluntarily relinquished the
child. Here in contrast, Mother, who is a “parent” under literal language of the ICWA
(25 U.S.C. § 1903(9) [“ ‘parent’ means any biological parent . . . of an Indian child”]),
actively contests the termination of her parental rights on ICWA grounds. However, the
implicit rationale of Adoptive Couple appears to be that an “Indian family” (which is not
defined in the ICWA) does not exist unless the Indian parent has had custody of the
child, thus implicating the law’s purpose of “preventing the unwarranted . . . dissolution
of Indian families.” (Id. at p. 2561, italics added.) Because Eric never had custody of
Elise, under the reasoning of Adoptive Couple his “continued custody” is not at issue and
the ICWA would not be implicated in the section 366.26 determination insofar as Mother
was concerned. Under such circumstances, remand for ICWA compliance would change
nothing regarding termination of Mother’s parental rights and any ICWA error would be
harmless as to her. “Parents unable to reunify with their children have already caused the
children serious harm; the [ICWA] rules do not permit them to cause additional
unwarranted delay and hardship, without any showing whatsoever that the interests
protected by the ICWA are implicated in any way.” (In re Rebecca R., supra,
143 Cal.App.4th at p. 1431.)
16
But application of Adoptive Child to the differing circumstances presented here
was never considered in the trial court or briefed by the parties here, nor was the effect of
lack of adequate ICWA notice in the first instance a factor before the Supreme Court in
Adoptive Child. These questions may, or may not, arise on remand in the event a tribe,
after proper notice, seeks to intervene. It is therefore premature for us to consider what
application, if any, Adoptive Child may have in this case. On this record, we cannot
deem the notice violations harmless.
B. Mother’s Requests for New Attorney or Self-Representation
Mother argues the trial court violated her due process rights by failing to hold a
hearing on her request to represent herself at the contested section 366.26 hearing. We
affirm.
1. Factual Background
In May 2012, Mother’s attorney notified the court that Mother wanted new
counsel or permission to represent herself. The court held a Marsden-type hearing,13
where Mother complained that her counsel had failed to submit certain evidence to the
court, object to misrepresentations made on the record by opposing counsel, challenge the
jurisdictional allegations, and take certain unspecified actions to improve her chances at
reunification. She also complained that, after she fired her first attorney, her case was
transferred to an attorney in the same dependency counsel contract firm without her
knowledge. After hearing counsel’s response, the court noted that there were “several
previous attorneys [Mother was] unhappy with” and advised her that “you don’t get to
appoint your own attorney.” The court told Mother that any replacement counsel would
have to be appointed from the contract law firm, and asked Mother is she wished to
withdraw or maintain her Marsden request. Mother chose to withdraw her Marsden
request. At this hearing, she did not specifically ask to be allowed to represent herself.
At the start of the September 2012 section 366.26 hearing, Mother raised a number
of objections on her own behalf—she wanted a friend in the courtroom to take notes
13
People v. Marsden (1970) 2 Cal. 3d 118.
17
because she had been unable to get transcripts of prior hearings, and she wanted the case
heard by a judge rather than a commissioner. When her requests were denied in part
because they were untimely, she said, “[E]very time I try and discuss something I’m
informed that I have counsel that is responsible for doing that. I have addressed this issue
with counsel already, and it hasn’t been addressed to the Court. I also asked that these
two pages be submitted into the record requesting a continuance and . . . to represent
myself pro per or be appointed new counsel immediately [¶] . . . [¶] . . . We had less than
an hour before you guys at the settlement [conference]. I am not getting a fair trial right
now. . . . He and I both are supposed to have our points heard, . . . .” The court denied
her requests without further discussion or inquiry.
2. Analysis
Mother had a statutory right to self-representation during the dependency
proceedings. (In re A.M. (2008) 164 Cal. App. 4th 914, 923; In re Angel W. (2001)
93 Cal. App. 4th 1074, 1083.) Section 317, subdivision (b) provides that the court shall
appoint counsel for an indigent parent in a case where the children have or might be
removed from the home “unless the court finds that the parent or guardian has made a
knowing and intelligent waiver of counsel . . . .” (Italics added; see also rule 5.534(g),
(h).) A request for self-representation may be denied if the court in its discretion
determines that granting the request would cause substantial disruption or delay in the
proceedings. In exercising its discretion, the court must weigh the parent’s right to self-
representation against the child’s right to a prompt and fair disposition of the case. (In re
A.M., at pp. 924–926.) The standard is similar to the standard a trial court applies when a
represented defendant wishes to dismiss his attorney during trial and represent himself:
“ ‘[T]he trial court shall inquire sua sponte into the specific factors underlying the
request[,] thereby ensuring a meaningful record in the event that appellate review is later
required[,] . . . [and consider] other factors . . . [including] the quality of counsel’s
representation of the defendant, the defendant’s prior proclivity to substitute counsel, the
reasons for the request, the length and stage of the proceedings, and the disruption or
18
delay which might reasonably be expected to follow the granting of such a motion.’ ”
(Id., at p. 926, quoting People v. Windham (1977) 19 Cal. 3d 121, 128–129.)
We again find a very limited record to review. Mother proffered two pages
“requesting a continuance and . . . to represent myself pro per or be appointed new
counsel” and asked that they be filed, but they are not in the record. Without the benefit
of either Mother’s papers or of further on-the-record inquiry by the court, we cannot
know whether Mother elaborated in writing, or could have elaborated orally, specific
reasons for her request for self-representation at that particular hearing. We also do not
know whether her request for self-representation was contingent on a grant of her request
for a continuance or, if so, the extent of the continuance she had requested.
We conclude, however, that any error was harmless. The parties disagree about
the applicable standard of reversible error. Mother argues denial of self-representation is
structural error that is reversible per se. She notes that the California Supreme Court has
held the right to appointed counsel in dependency proceedings is one of the “significant
due process safeguards . . . built into the dependency scheme” to protect parents’ “basic
civil right” to the care, companionship and custody of their children. (In re James F.
(2008) 42 Cal. 4th 901, 904.) She argues the juvenile court’s alleged denial of a hearing
on her request for self-representation was a due process violation that should be deemed
structural error. However, the James F. court also held, “If the outcome of a proceeding
has not been affected, denial of a right to notice and a hearing may be deemed harmless
and reversal is not required. [Citation.]” (Id. at p. 918.) In other words, harmless error
analysis applies. Mother next argues that, if harmless error analysis applies, we should
apply the Chapman14 standard for federal constitutional error. The underlying right to
self-representation here, however, is not a constitutional but a state statutory right.
Therefore, we apply the Watson15 standard: we must decide whether there is a reasonable
14
Chapman v. California (1967) 386 U.S. 18.
15
People v. Watson (1956) 46 Cal. 2d 818.
19
probability that, had Mother been allowed to represent herself at the section 366.26
hearing, the outcome of the hearing would have been different.
We conclude any error by the court was harmless under the Watson standard.
First, insofar as the record discloses, the court acted within its discretion in refusing to
allow Mother to represent herself at the hearing. There were no apparent deficiencies in
counsel’s performance. Mother’s orally stated reasons for the request referred to past
disputes with her attorney that did not directly relate to the presentation of her case at the
section 366.26 hearing. Mother’s request was tardy: although Mother had previously
presented and withdrew a Marsden motion, she did not assert her right to self-
representation until the commencement of the final hearing in the case. Granting the
request would almost certainly cause delay, and Elise had an interest in obtaining
permanency as soon as possible, an interest that was particularly salient at the
section 366.26 stage of the proceedings where the focus has shifted from the parents’
interest in their children to the child’s interest in stability. (See In re Marilyn H. (1993)
5 Cal. 4th 295, 309 [“[o]nce reunification services are ordered terminated, the focus shifts
to the needs of the child for permanency and stability”].) Second, Mother has made no
showing that if she had been allowed to represent herself she would have presented
evidence or argument that could have changed the outcome of the case. Instead, she only
makes unsupported assertions that she could have presented additional evidence. Mother
testified at the hearing and cites nothing in the record that demonstrates she was restricted
from presenting her full case to the court. We conclude there was no reversible error.
C. Mother’s Section 388 Petition
Mother argues the trial court erred in denying her a full evidentiary hearing on her
section 388 petition. We affirm.
1. Factual Background
As noted ante, Mother filed a section 388 petition in July 2012 asking that Elise be
returned home with family maintenance services or that her visitation be increased and
the section 366.26 hearing delayed or cancelled. As changed circumstances, she cited her
return to therapy in recent weeks, cooperation with the prosecution of Eric in 2012,
20
avoidance of Eric and Jason J., participation in a domestic violence program,
employment, plans to complete a paralegal program, sobriety and participation in A.A.,
and plans for stable housing that would accommodate her and her children. To
demonstrate why changes to the court’s orders would be in the children’s best interest,
she cited the strong bond between her and the children, her regular participation in
visitation, and the benefit of keeping all of the siblings together.
In opposition to similar petitions filed in the Siblings’ case, the Department
submitted the two police reports discussed ante, which described the January 30–31,
2012 domestic violence incident involving Eric and the June 2012 contact between
Mother and Eric after his release from custody.
At a July 13, 2012 hearing, the court gave the parties an opportunity to be heard on
the section 388 petitions for all three children. The Department asked the court to deny
the petitions without a hearing. It argued the allegations of the petitions were vague or
conclusory and thus failed to establish a prima facie case, particularly in light of the
police reports: “She still is going from a group of people, going to go off by herself with
[Eric] to deescalate the situation. That’s classic codependence. [¶] He was then
incarcerated. The day he gets out of jail, we have this second police report from June 5th,
2012, where the police officer saw the two subjects, [Eric] and [Mother], walking
eastbound together. [¶] . . . [¶] So, . . . as far as change of circumstances, there is nothing
that supports that. [¶] As to . . . the best interests of the children, the Court’s got the
[section 366.26] report.” Mother argued the petitions should be liberally construed for
purposes of determining whether to schedule a hearing and that her petitions met the
prima facie standard.
The court confirmed with Mother that she had received and had an opportunity to
review the police reports, then denied a hearing on all three section 388 petitions. “The
Court is most persuaded by the very recency of the 11:00 p.m. meeting with [Eric] that
. . . is clear evidence that there’s no change of circumstances here. . . . [T]he Court,
frankly, cannot accept [it] as happenstance . . . [as it] occurred on the very day he was
released from jail . . . .”
21
2. Analysis
A parent “may, upon grounds of change of circumstance or new evidence, petition
the court . . . to change, modify, or set aside any order of court previously made . . . . [¶]
. . . [¶] . . . If it appears that the best interests of the child . . . may be promoted by the
proposed change of order, . . . the court shall order that a hearing be held . . . .” (§ 388,
subds. (a)(1), (d).) “The court may deny the petition ex parte if: [¶] . . . the petition . . .
fails to state a change of circumstance or new evidence that may require a change of
order . . . or . . . that the requested modification would promote the best interest of the
child . . . .” (Rule 5.570(d)(1) [“Denial of hearing”].) “A petition for modification must
be liberally construed in favor of its sufficiency.” (Rule 5.570(a).) If a hearing is held,
the party that brings the petition bears the burden of persuasion. (Rule 5.570(h)(1).) The
juvenile court’s ruling on the petition is reviewed for abuse of discretion. (In re
Stephanie M. (1994) 7 Cal. 4th 295, 318.)
Mother raised the same objections she makes here in her appeal of the termination
order in the Siblings’ case. (In re Adan R. (June 6, 2013, A136151) [nonpub. opn.].) In
our opinion in that appeal we found no error, and we reiterate that analysis here. “The
trial court did not abuse its discretion in denying a full evidentiary hearing on the
petitions. The court could have denied the petition ex parte. On the issue of changed
circumstances, the petitions alleged at most changing circumstances, i.e., a renewal of
Mother’s efforts to address the problems that led to the children’s dependency: her return
to therapy, her alleged avoidance of men who were substance abusers and perpetrators of
domestic violence (and cooperation in [Eric’s] prosecution), her enrollment in a domestic
violence counseling program, and her efforts to obtain gainful employment and stable
housing. However, ‘[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, who has
repeatedly failed to reunify with the child, might be able to reunify at some future point,
does not promote stability for the child or the child’s best interests. [Citation.]’ (In re
Casey D. (1999) 70 Cal. App. 4th 38, 47, italics added.) The changed circumstances
alleged in Mother’s petitions on their face were too little and too late in the three-and-
22
one-half-year dependency case to justify further delay in adopting a permanent plan for
the children. (Cf. In re Kimberly F. (1997) 56 Cal. App. 4th 519, 526–527 [changed
circumstances existed where ‘home was no longer in an unsafe and unsanitary condition,’
where condition of home had led to the dependency].)
“Mother argues the court applied an incorrect legal standard when it required a
‘material change of circumstances’ even though the statute only requires a ‘change of
circumstances.’ We disagree. Common sense dictates that the ‘change of circumstance’
standard must include a materiality element as measured by the purpose of the statute;
otherwise, the mere passage of time would suffice to reopen prior orders upon an appeal
to the children’s best interests. Courts recognize this implicit materiality standard by
referring to ‘a genuine change of circumstance’ (In re Anthony W. (2001) 87 Cal. App. 4th
246, 250) and a change of circumstances ‘which may make the modification of a prior
order appropriate’ (In re Daijah T. (2000) 83 Cal. App. 4th 666, 674) when discussing the
section 388 standard.
“Finally, Mother argues her due process rights were violated because ‘the court
neither summarily denied mother’s petition[s] nor did it grant mother a hearing. Instead,
the court heard argument from the parties regarding mother’s petition[s] before denying
the petition[s] without allowing mother a full evidentiary hearing.’ We agree there was
some ambiguity in the court’s actions. The court ruled that it would ‘deny the hearing’
on the petitions, presumably because the allegations of the petition failed to make a prima
facie showing. However, in explaining its reasons, the court cited evidence: the police
reports and the bonding study. The court even took pains to verify that Mother had
received the opposition evidence and had had an opportunity to review it, apparently to
allay any concerns that her due process rights might be violated if the court relied on the
evidence. Nevertheless, even if we assume that the court in fact held a hearing on the
petitions and denied them on their merits, Mother has failed to show reversible error.
The court was not required to conduct the hearing with live testimony, but was free to
rely on the information contained in the petition, documentary evidence, and argument of
counsel. (Rule 5.570(h)(2); In re E.S. (2011) 196 Cal. App. 4th 1329, 1340; In re C.J.W.
23
(2007) 157 Cal. App. 4th 1075, 1080–1081.) Nothing in the record suggests that the court
denied the petitions because Mother did not offer evidence in support of the specific
factual allegations in her petitions; rather, the court inferably concluded that those facts,
if assumed to be true, were insufficient to justify a change in the court’s orders.
Moreover, nothing in the record suggests that Mother was denied an opportunity during
the hearing to challenge the police report or bonding study evidence or to offer additional
evidence (or at least make an offer of proof) in support of her petitions. Finally, she
makes no showing on appeal that, had she been given an opportunity to present additional
evidence or further argument on the petitions, there was a reasonable probability of a
different result.” (In re Adan R., supra, A136151.)
Mother has not established reversible error in the court’s disposition of the
section 388 petition.
D. Termination of Parental Rights
Mother also challenges the court’s order terminating her parental rights to Elise,
arguing the court should have found that the beneficial parent relationship exception
applied.16 We affirm.
1. Factual Background
Mother testified that she had visited Elise as often as she was allowed and that
during the visits she snuggled, fed, taught, played with, and read to Elise. She maintained
that she never ignored Elise when she was visiting all three children at once, although
acknowledged her attention was necessarily divided at times. She never disciplined
Elise, but would take away objects she should not be touching and distract her toward
16
Mother also argues that the court should have considered the beneficial sibling
relationship exception to termination of parental rights, even though she did not urge the
court to apply that exception at the September 18, 2012 hearing. The party seeking
application of the exception bears the burden of establishing that the section applies. (In
re Lorenzo C. (1997) 54 Cal. App. 4th 1330, 1343.) Therefore, Mother’s failure to pursue
this argument at the termination hearing resulted in a forfeiture. In any event, the
Department’s section 366.26 report noted that the exception did not apply on practical
grounds: the Siblings were likely to move out of state to live with a paternal relative who
was not willing to take Elise.
24
other activities. Elise called Mother “Mommy,” crawled into Mother’s lap, and kissed
pictures of Mother and the Siblings. Elise was very excited to see her at the start of
visits, and became upset when the visits ended. As the visits became more infrequent
(Mother had not seen Elise in seven weeks as of the time of the section 366.26 hearing),
Elise showed less distress at separation. Mother testified it would be traumatizing for
Elise if her relationship with Mother were ended.
The Department conceded that Mother had regularly visited Elise. The social
worker acknowledged that the visits went well: Elise was affectionate with Mother and
receptive to Mother’s affection. However, she opined that Mother was “more of an adult
[Elise] recognizes” than a parent figure to her. Elise showed some anxiety separating
from her foster mother and the social worker interpreted her use of “Mommy” as
referring to the foster mother, wondering where she had gone. At the end of the visits,
Elise was eager to return to the foster mother. Mother asked for a continuance so that she
could show video recordings of her visits with Elise, but the court denied the request.
In argument, Mother’s counsel contended that the evidence established Mother
had regularly visited Elise and Elise would benefit from continuing the relationship, and
contended Mother should not have to prove the benefit of keeping the relationship
outweighed the benefits of adoption. Counsel noted that Mother was Elise’s sole
caregiver during her first seven months of life, and argued Mother had played the role of
a parent, not a friend, during her visits with Elise because she fed her, paid attention to
her developmental milestones, taught her, and appropriately disciplined her. Counsel for
the Department noted that Mother’s visits with Elise had never progressed to
unsupervised visits, and “[e]ven frequent, loving contact with natural parents to whom a
child cannot be returned may be insufficient” to support a beneficial parental relationship
exception to termination of parental rights. Minor’s counsel supported the Department’s
position.
2. Analysis
At a section 366.26 hearing, the juvenile must determine by clear and convincing
evidence whether it is likely the dependent minor will be adopted. (§ 366.26,
25
subd. (c)(1).) If the court finds a likelihood of adoption, the court must terminate parental
rights and order the child placed for adoption unless, as applicable here, it finds a
“compelling reason” that termination would be detrimental under one of the exceptions
listed in section 366.26 subdivision (c)(1)(B). A party arguing that one of those
exceptions applies has the burden of producing evidence that establishes the exception.
(In re Lorenzo C., supra, 54 Cal.App.4th at p. 1343 [discussing former § 366.26,
subd. (c)(1), predecessor of § 366.26, subd. (c)(1)(B)].)
Under the beneficial parental relationship exception, the court must find a
“compelling reason” that termination of parental rights would be detrimental because
“[t]he parents have maintained regular visitation and contact with the child and the child
would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) “The
existence of interaction between the natural parent and child will always confer some
incidental benefit to the child.” (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.)
The beneficial parental relationship exception requires more, “that the parent-child
relationship promote the well-being of the child to such a degree that it outweighs the
well-being the child would gain in a permanent home with new, adoptive parents.
[Citation.]” (Ibid.)
We review the trial court’s decision either for substantial evidence or for abuse of
discretion; in this context, there is little difference between these standards of review.
(In re Bailey J. (2010) 189 Cal. App. 4th 1308, 1314–1315; In re Jasmine D. (2000)
78 Cal. App. 4th 1339, 1351–1352.)
The trial court’s ruling here is supported by the record and was not an abuse of
discretion. It was undisputed that Elise had spent the first seven months of her life in
Mother’s care and that their visits had been nurturing and affectionate. However,
substantial evidence showed that Elise did not have trouble separating from Mother at the
end of the visits and she had formed a parent-child bond with her foster parents. Because
she was only an 18-month-old child, the benefits of a permanent placement were
particularly strong in her case. There simply was insufficient evidence of a strong bond
between Mother and Elise that might outweigh the benefits of adoption.
26
III. DISPOSITION
The September 18, 2012 order terminating Mother’s rights is vacated. The case is
remanded to the juvenile court with directions to order the Department to make a
complete record of ICWA notice efforts and to reconsider, consistent with the views
expressed in this opinion, whether the Department complied with ICWA notice
requirements and order further efforts if necessary. If further efforts are required and,
after proper notice, the court finds the child is an Indian child, the court shall proceed in
conformity with ICWA. If, after proper inquiry and notice, the court finds the child is not
an Indian child, the order terminating Mother’s rights shall be reinstated.
_________________________
Bruiniers, J.
We concur:
_________________________
Simons, Acting P. J.
_________________________
Needham, J.
27