In re S.C. CA2/8 ( 2014 )

Filed 6/23/14 In re S.C. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re S.C., Person Coming Under the B252917
Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK68831)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
WILLIE W.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Anthony
Trendacosta, Juvenile Court Referee. Conditionally reversed and remanded.
Andre F.F. Toscano, under appointment by the Court of Appeal, for Defendant
and Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
_______________________
Father Willie W. appeals from the juvenile court order terminating his parental
rights. (Welf. & Inst. Code, § 366.26.) Father contends the court erred in appointing his
guardian ad litem, reasoning the court’s order is not supported by substantial evidence,
and that paternal aunt was not qualified to act as his guardian ad litem because she is not
an attorney. Father also contends the Los Angeles County Department of Children and
Family Services (Department) failed to comply with its obligation to inquire into his
Indian ancestry under the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.).
We find that father has forfeited any objection to the order appointing a guardian ad
litem, and that in any event, the guardian ad litem was properly appointed. We also find
that while father made an unconvincing showing concerning his Indian ancestry, remand
is necessary to clear up any doubt whether ICWA applies. We therefore conditionally
reverse the order terminating parental rights, and remand this case for compliance with
ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
Because of the narrow issues raised on appeal, we will limit our factual summary
to those facts relevant to the appointment of father’s guardian ad litem and ICWA.
S.C. came to the attention of the Department on November 4, 2011, when she was
born to mother, D.C., because of concerns that mother could not care for S.C. due to
mother’s “mental retardation” and seizure disorder.1 Mother is not a party to this appeal.
Mother identified father as the father of S.C. When a Department social worker
interviewed father on November 8, he indicated that he would not be able to care for S.C.
Father had been diagnosed with “mental retardation.” The Department’s detention report
indicates that ICWA does not apply, although it does not reflect whether father was asked
about his Indian ancestry.
Mother completed a Judicial Council Parental Notification of Indian Status form,
indicating that she has “no Indian ancestry as far as I know.” No such form was
1 We affirmed termination of mother’s parental rights to another child in In re
Jose C. (2010) 188 Cal.App.4th 147.
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completed by father.
The court’s minutes from the November 14, 2011 detention hearing do not reflect
that any ICWA findings were made by the trial court. The reporter’s transcript for this
hearing is not included in the record on appeal. At the detention hearing, the court found
father to be an alleged father.
The Department’s December 19, 2011 jurisdiction/disposition report states
“[ICWA] does not apply. The minute order dated 11/14/2011 documents that the court
did not make a finding as to ICWA in regards to the child.” The Department was unable
to reach father to interview him, but spoke with paternal aunt K.W., who reported that
father is not able to read or write. Paternal aunt told the Department that she and father
would like a DNA test to determine if he is the father, and that if he is the father, paternal
aunt would like the child placed in her care.
On January 3, 2012, father appeared with paternal aunt for the arraignment
hearing. Father’s attorney indicated that “my client is requesting that a G.A.L. [(guardian
ad litem)] be appointed.” The following colloquy ensued:
“THE COURT: . . . [Father], the law requires that before I appoint a
guardian ad litem I have to inquire as to whether or not you know and understand
why you are here and the purposes of these proceedings. So let me ask you a
couple of questions. . . . [¶] . . . [¶] . . . Did someone tell you why you are in
court today?”
“THE FATHER: No. [¶] . . . [¶]
“THE COURT: Okay. Did anyone ever advise you that you may be the
father of [S.C.]?
“THE FATHER: I might be. [¶] . . . [¶] . . . I want to take a test.
“THE COURT: Okay. Do you know [mother]?
“THE FATHER: I know her, yeah.
“THE COURT: All right. Did you have relations with her?
“THE FATHER: Yes.
“THE COURT: Okay. Did anyone ever advise you that the baby might be
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at risk because of [mother’s] alleged condition?
“THE FATHER: They told me.
“THE COURT: Okay. And you are asking for a test, sir?
“THE FATHER: A paternity test.
“THE COURT: . . . So you . . . understand . . . why you need to take a
paternity test?
“THE FATHER: Because I want to see if I’m the father or not.
“THE COURT: Okay. [Counsel], at this particular point it appears to me
that he understands why he’s here and what the issues are. Do you want to
articulate to the court why you believe a guardian ad litem is necessary?
“THE COUNSEL: . . . Your Honor, I did advise my client why he was
here when I had an opportunity to speak to him. My concern is that he --he
understands why he wants a paternity test. But I am concerned that as the case
moves forward he may not understand more detailed or nuanced issues.
“THE COURT: Is it correct that [father] is on social security disability?
“THE PATERNAL AUNT: Yes.
“THE COURT: . . . And that you are the payee for him; is that correct?
“THE PATERNAL AUNT: Yes.
“THE COURT: Is he receiving services from any organization?
“THE PATERNAL AUNT: Yes. From Regional Center. [¶] . . . [¶]
“COURT: [Father], are you asking that your sister be appointed as your
guardian ad litem?
“THE FATHER: Yeah.
“THE COURT: You understand that if she is appointed as your guardian
ad litem she will make the decisions in this case and not you, and she will be the
one who will advise -- with whom your attorney will discuss and will assist in
making the decisions, and that essentially you will not be the one directly
responsible for making the decisions or consulting with your attorney? Do you
understand that? [¶] . . . [¶]
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“THE FATHER: Yes.
“THE COURT: . . . And you would like your sister . . . to have that
responsibility; is that correct?
“THE FATHER: Yes.
“THE COURT: All right. Then based upon [father’s] agreement that a
guardian ad litem be appointed, I am appointing his sister as guardian ad litem.”
The trial court ordered DNA testing, indicating that “we will address ICWA issues
and those things at the next hearing,” which was set for January 20, 2012. However, at
the January 20, 2012 hearing, ICWA was not addressed, and father’s DNA results were
not yet available.
Father’s paternity results, establishing him as S.C.’s father, were included in the
Department’s March 8, 2012 last minute information for the court.
At the March 9, 2012 progress report hearing, the court found father to be S.C.’s
biological father. No reporter’s transcript of this hearing appears in the record, and
ICWA is not referenced in the court’s minutes.
At the April 26, 2012 jurisdictional and dispositional hearing, the court continued
the hearing so that Evidence Code section 730 evaluations could be conducted as to
mother and father, which would aid the court in deciding whether to order reunification
services. ICWA was not discussed at this hearing.
Father’s Evidence Code section 730 evaluation revealed that father was only able
to provide limited background information, due to his intellectual deficits. Father told the
evaluator he went to high school, but was unable to name the school, and did not know if
he graduated, and if so, when he graduated. When asked if he attended special education
classes, he responded, “no”; but he did not know the meaning of “special education
classes.” Father told the evaluator that he cannot read, and has no mathematical skills.
He did not know what three plus three is. Father told the evaluator that he worked
making soap, but he did not know for how long he had worked, or the name of the
company he worked for. When asked whether he could care for S.C., father said “I don’t
know how to take care of a baby.” He thought S.C. should live with paternal aunt.
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The evaluator found that father presented as “alert, oriented, logical and coherent”
but that his intelligence appeared to be “very limited.” He was reported as having the
intellect of a six-and a-half-year-old child.
At June 1 and June 7, 2012 progress report hearings, ICWA is not referenced in
the court’s minutes, and no reporter’s transcript for these hearings is included in the
record on appeal.
The continued jurisdictional and dispositional hearing was held on June 13, 2012.
Father, through his guardian ad litem, signed a waiver of rights pleading no contest to the
petition. A contested hearing was held as to mother. The court denied mother
reunification services under Welfare and Institutions Code section 361.5,
subdivision (b)(10) and (11), but exercised its discretion to offer services to father, even
though he was not a presumed father. ICWA was not discussed at this hearing.
ICWA was not referenced in the minutes for subsequent hearings held on July 11,
2012, December 12, 2012, January 4, 2013, February 11, 2013, February 21, 2013,
April 4, 2013, June 19, 2013, August 22, 2013, October 28, 2013, and November 15,
2013.2 The Department’s December 12, 2012 and February 21, 2013 status review
reports, April 4, 2013 interim review report, June 19, 2013 Welfare and Institutions Code
section 366.26 report,3 and August 22, 2013 status review report, indicated that ICWA
does not apply.
Father’s (and mother’s) parental rights were terminated after a contested hearing
2 Reporter’s transcripts were provided for the hearings held on December 12, 2012,
February 21, 2013, June 19, 2013, August 22, 2013, October 28, 2013, and November 15,
2013, none of which make any reference to ICWA.
3 This report indicates “[t]he Indian Child Welfare Act does not apply. The Minute
Order dated 11/04/2011 documents that the Court finds that ICWA does not apply in this
matter.” There is no November 4, 2011 minute order, as the petition was not filed until
November 14, 2011. We assume that the Department meant the November 14, 2011
minute order, which does not reference ICWA. No reporter’s transcript has been
provided for this hearing. However, at the time of this hearing, father was only an
alleged father.
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on November 15, 2013. S.C.’s prospective adoptive parent (who had previously adopted
S.C.’s half sibling, Jose C.) was committed to adopting her. Father has timely appealed
from the court’s order terminating his parental rights.
DISCUSSION
1. Guardian Ad Litem
Father contends the juvenile court erred in appointing a guardian ad litem,
claiming substantial evidence did not support the order appointing the guardian ad litem,
and that paternal aunt was not qualified to act as his guardian ad litem because she is not
an attorney. Respondent contends that this issue was waived by father’s consent to the
order, and his failure to challenge it earlier. We agree with respondent, and find that
father has waived any right to challenge the appointment, and that his arguments also fail
on their merits.
The order appointing father’s guardian ad litem was entered on January 3, 2012,
almost two years before father’s parental rights were terminated. Between these two
dates, the dispositional hearing was held. Father should have challenged the appointment
order then, or by writ petition. (In re Eli F. (1989) 212 Cal.App.3d 228, 233 [the
dispositional order is an appealable order]; see also Welf. & Inst. Code, § 395,
subd. (a)(1).) An appeal from the most recent order entered in a dependency matter may
not challenge previous orders for which the time for filing an appeal has lapsed. (Sara M.
v. Superior Court (2005) 36 Cal.4th 998, 1018.) “Permitting a parent to raise issues
going to the validity of a final earlier appealable order would directly undermine
dominant concerns of finality and reasonable expedition.” (In re Janee J. (1999)
74 Cal.App.4th 198, 207; see also In re Meranda P. (1997) 56 Cal.App.4th 1143, 1151-
1153 [mother’s claim, on appeal from an order terminating parental rights, that she had
been denied her right to counsel at the detention hearing, was waived by failure to raise it
before her parental rights were terminated].) Here, if there had been error in the
appointment of a guardian ad litem, father should have raised it earlier in the proceedings,
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before permanency had been established for S.C.4 Moreover, it was not just father’s
attorney but father himself who asked the court to appoint his sister as his guardian ad
litem. He cannot now complain on appeal because the court granted his request. (See,
e.g., In re Troy Z. (1992) 3 Cal.4th 1170, 1181.)
Father argues that waiver should not apply because to do so would infringe on his
due process rights. (In re Janee J., supra, 74 Cal.App.4th at p. 208 [“the waiver rule will
be enforced unless due process forbids it”]; In re Meranda P., supra, 56 Cal.App.4th at
pp. 1151-1155.) Because father consented to the appointment, we find that his due
process rights are not implicated. (In re Jessica G. (2001) 93 Cal.App.4th 1180, 1187
[“If consent is given, due process is served since the parent will have participated in the
decision.”].)
Father’s cited authorities do not compel a different result. (See In re M.F. (2008)
161 Cal.App.4th 673, 681-682 [waiver rule did not apply when guardian ad litem was not
appointed because mother could not be expected to challenge the failure to appoint a
guardian ad litem due to her incompetence]; In re Enrique G. (2006) 140 Cal.App.4th
676, 682-683 [waiver rule did not apply where court failed to conduct an inquiry and did
not seek mother’s consent]; In re Jessica G., supra, 93 Cal.App.4th at p. 1187 [waiver
did not apply because mother’s due process rights were violated when the court did not
obtain mother’s consent to the appointment of a guardian ad litem and did not assess
mother’s competence].)
Even if we were to consider father’s claims, they fail on their merits. Courts have
the inherent power to appoint guardians ad litem. (Mabry v. Scott (1942) 51 Cal.App.2d
245, 256.) By statute, “[i]f an insane or incompetent person is a party to an action or
4 Father claims that he could not be expected to exercise his appellate rights at an
earlier juncture, as neither his guardian ad litem nor his attorney, who both assented to
the appointment of a guardian, would have challenged the appointment order. We are not
persuaded. Father requested assistance of a guardian ad litem; he could have just as
easily voiced his dissatisfaction with the appointment, alerting his counsel or the court to
problems with the appointment.
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proceeding,” appointment of a guardian ad litem is “upon the application of a relative or
friend of such insane or incompetent person, or of any other party to the action or
proceeding, or by the court on its own motion.” (Code Civ. Proc., § 373, subd. (c); see
Briggs v. Briggs (1958) 160 Cal.App.2d 312, 318.) “The statutes regarding appointment
of guardians ad litem were enacted to protect minors and insane and incompetent persons
— not to preclude them from their legal rights.” (Briggs, at p. 319; see § 372.)
Before a guardian ad litem may be appointed to represent a parent in a dependency
proceeding, due process requires notice to the affected parent and at least an informal
hearing. (In re Jessica G., supra, 93 Cal.App.4th at pp. 1186-1187.) The parent is
entitled to receive from the court or counsel an explanation of “the purpose of a guardian
ad litem and why the attorney felt one should be appointed.” (In re Sara D. (2001)
87 Cal.App.4th 661, 672.) The parent should also be given an opportunity to respond.
(Ibid.) The trial court must make an inquiry sufficient to satisfy the court that the parent
understands the nature of the proceedings and can assist the attorney in protecting his or
her rights. (In re Jessica G., at p. 1188.) “If consent is given, due process is served since
the parent will have participated in the decision.” (Id. at p. 1187.)
Here, the record amply supports that father not only consented to the appointment
of the guardian ad litem but personally requested that his sister be appointed as his
guardian ad litem, the trial court properly explained the role of a guardian ad litem in the
proceedings, and conducted an inquiry to determine whether appointment of a guardian
ad litem was warranted. Therefore, the order must be affirmed as long as it is supported
by substantial evidence. (In re Jessica G., supra, 93 Cal.App.4th at p. 1186.)
“[A] guardian ad litem should be appointed [for a mentally incompetent
person] if the requirements of either Penal Code section 1367 or Probate Code section
1801 are met.” (In re Sara D., supra, 87 Cal.App.4th at p. 667.) A defendant is mentally
incompetent under Penal Code section 1367, subdivision (a) “if, as a result of mental
disorder or developmental disability, the defendant is unable to understand the nature of
the criminal proceedings or to assist counsel in the conduct of a defense in a rational
manner.” Probate Code section 1801 defines as incompetent, a person “who is unable to
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provide properly for his or her personal needs for physical health, food, clothing, or
shelter,” is “unable to manage his or her own financial resources or resist fraud or undue
influence” or is “developmentally disabled.” (Id., subds. (a), (b) & (d).) To warrant
appointment, the “trial court must find by a preponderance of the evidence that the parent
comes within the requirements of either section.” (In re Sara D., at p. 667.)
Although father appeared to understand what a paternity test is when he was
queried by the court, it was clear that he suffered from significant mental deficits, and
that his attorney was concerned about his ability to understand and participate in future
proceedings. Father had doubts about his ability to understand the proceedings, and
desired the help of his sister, who was appointed his guardian ad litem. Father was a
Regional Center client, received social security disability income, and his sister was his
designated payee. These facts are substantial evidence that father was incompetent
within the meaning of Probate Code section 1801 and Penal Code section 1367. Father
would simply have us reweigh the evidence on appeal, which we cannot do.
Father also contends the court erred when it appointed his sister, a nonattorney, as
his guardian ad litem. Father cites absolutely no authority requiring a guardian ad litem
to be an attorney, and the statutes concerning appointment set forth no such requirement.
(See Code Civ. Proc., § 372 et seq.)
2. ICWA
Father contends that neither the Department nor the juvenile court inquired about
his Indian ancestry, and that reversal is therefore required. On appeal, father’s attorney
has made an “offer of proof” that ICWA is implicated in this case. The “offer of proof”
of father’s appellate counsel does not eliminate our doubts about whether ICWA applies.
However, because the record shows that the Department did not comply with its duty to
inquire about father’s Indian ancestry, and because it appears that some further
investigation may be warranted, we conditionally reverse and remand for this limited
purpose.
ICWA provides that “where the court knows or has reason to know that an Indian
child is involved,” the child’s tribe must be notified of any pending proceedings to
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terminate parental rights. (25 U.S.C. § 1912(a); see also In re Antoinette S. (2002) 104
Cal.App.4th 1401, 1406.) ICWA’s notice requirements are interpreted broadly, and they
are triggered by information suggesting that the child may be an Indian child.
(Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 256-258; see also Welf. &
Inst. Code, § 224.3, subd. (b)(1) [reason to know exists where “a member of the child’s
extended family provides information suggesting the child is . . . 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”].)
ICWA does not impose a duty to inquire whether the child is an Indian child. (In
re H.B. (2008) 161 Cal.App.4th 115, 120-121.) However, ICWA allows the states to set
higher standards of protection. (25 U.S.C. § 1921.) Under California law, the juvenile
court and the Department have an “affirmative and continuing duty to inquire whether a
child . . . is or may be an Indian child . . . .” (Welf. & Inst. Code, § 224.3, subd. (a).)
Courts must order that parents complete the Parental Notification of Indian Status form
when they first appear in the proceedings. (Cal. Rules of Court, rule 5.481(a)(2) & (3).)
Once the court or Department knows or has reason to know that an Indian child is
involved, the Department must inquire further into the child’s possible Indian status, by
interviewing the parents and extended family, as well as contacting the Bureau of Indian
Affairs, the tribes, and any other person who may have relevant information. (Welf. &
Inst. Code, § 224.3, subd. (c).)
The record in this case does not show that father was ever asked any ICWA-
related questions or directed to complete the Parental Notification of Indian Status form,
even though he appeared early in the case, and was interviewed by the Department. In
contrast, mother did complete a Parental Notification of Indian Status form, indicating
that she has no Indian heritage. Respondent contends that father provided an incomplete
record regarding ICWA compliance, as the reporter’s transcripts for all of the hearings
have not been provided. Alternatively, respondent argues that the error is harmless since
father made an insufficient offer of proof on appeal that he has any Indian heritage. On
this record, where none of the minutes reflect that father was asked about his Indian
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ancestry, and he did not complete a Parental Notification of Indian Status form, there is
no basis for a finding that an inquiry was conducted into father’s Indian ancestry. (See In
re J.N. (2006) 138 Cal.App.4th 450, 461 [record did not support compliance with ICWA
where no Parental Notification of Indian Status form had been completed].)
Nevertheless, the lack of compliance with the duty to inquire has been held
harmless in cases where there is no indication that ICWA applies. (See In re Rebecca R.
(2006) 143 Cal.App.4th 1426, 1431 [finding harmless error where there was no offer of
proof on appeal that father had any ICWA-related information]; In re N.E. (2008) 160
Cal.App.4th 766, 769 [same]; but see In re J.N., supra, 138 Cal.App.4th at p. 461 [court
refused to speculate what mother’s response would have been had she been asked about
her Indian ancestry].)
In In re Rebecca R., supra, 143 Cal.App.4th at page 1430, the court rejected the
father’s claim that reversal was required for lack of ICWA compliance because he “failed
to show a miscarriage of justice, which is the fundamental requisite before an appellate
court will reverse a trial court’s judgment.” The court explained that “[f]ather is here,
now, before this court. There is nothing whatever which prevented him, in his briefing or
otherwise, from removing any doubt or speculation. He should have made an offer of
proof or other affirmative representation that, had he been asked, he would have been
able to proffer some Indian connection sufficient to invoke the ICWA. He did not. [¶]
In the absence of such a representation, the matter amounts to nothing more than trifling
with the courts.” (Id. at p. 1431.)
Similarly, in In re N.E., supra, 160 Cal.App.4th at page 769, a father appealed the
termination of his parental rights, arguing that the social services agency failed to comply
with its inquiry duties under ICWA. The court determined it was not clear whether the
agency had complied with its inquiry obligations, but found, nonetheless, that “[e]ven if
the juvenile court and SSA [(Social Services Agency)] failed in their inquiry
responsibilities, we cannot disturb the juvenile court’s order without a showing [father]
was prejudiced by the claimed error. (Cal. Const., art. VI, § 13.) And in this case, where
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there is absolutely no suggestion by [father] that he in fact has any Indian heritage, he has
failed to demonstrate the requisite prejudice.” (Ibid.)
Other courts have agreed that a parent must make an affirmative showing that a
miscarriage of justice would result in order to obtain a reversal for an ICWA error. (See
In re S.B. (2005) 130 Cal.App.4th 1148, 1162, fn. omitted [“[a]n ICWA notice violation
may be held harmless when the child’s tribe has actually participated in the proceedings
[citation] or when, even if notice had been given, the child would not have been found to
be an Indian child, and hence the substantive provisions of the ICWA would not have
applied”]; In re Miracle M. (2008) 160 Cal.App.4th 834, 847 [“Mother has not
demonstrated how giving the parents further [ICWA] notice would generate additional
information”].)
We agree with the line of authority that father must establish prejudicial error, but
we cannot decide with confidence that father has not shown prejudice because the
Department failed to comply with its duty to inquire. Here, father’s appellate counsel
inserted the following footnote on the second to last page of his opening brief: “Pursuant
to In re Rebecca R. (2006) 143 Cal.App.4th 1426, for the purpose of removing this
Court’s doubt or speculation about his Indian ancestry, Father, through his undersigned
counsel, makes an offer of proof that had the paternal aunt been asked if Father’s family
has American Indian ancestry, she would have responded there is, and other paternal
relatives know from which tribe or tribes and may provide additional information.”
Although this offer of proof does not “remov[e] any doubt or speculation” that
ICWA applies in this case (In re Rebecca R., supra, 143 Cal.App.4th at p. 1431), we
conclude that further investigation is warranted. (See Welf. & Inst. Code, § 224.3,
subds. (a), (c).) In the interest of eliminating father’s somewhat dubious claim, a
conditional remand is warranted.
The Department also contends that any error was harmless because father has not
demonstrated that S.C. is an Indian child, and that the purposes of ICWA would not be
served because father never had custody of S.C., and therefore there is no Indian family
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to preserve. But California law imposes a duty to inquire into a child’s possible Indian
ancestry, and the record does not demonstrate that duty was fulfilled.
DISPOSITION
The order is conditionally reversed and remanded, with directions that the juvenile
court order the Department to inquire into father’s Indian ancestry, and hold a hearing to
determine if there is adequate information to trigger ICWA’s notice provisions. If the
court determines there is not adequate information, or if it determines there is adequate
information and orders notice be given, but after proper notice no Indian tribe seeks to
intervene or otherwise indicates S.C. is an Indian child as defined by ICWA, the court
shall reinstate the judgment. If, after proper notice an Indian tribe determines S.C. is an
Indian child under ICWA, the court shall conduct a new Welfare and Institutions Code
section 366.26 hearing in accordance with ICWA.
GRIMES, J.
We concur:
RUBIN, Acting P. J.
FLIER, J.
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