In re Garbriella H. CA2/7 ( 2022 )

Filed 8/12/22 In re Garbriella H. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
IN RE GABRIELLA H. et al., B313276
Persons Coming Under the
Juvenile Court Law. (Los Angeles County
Super. Ct. No. 20CCJP01554)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
CHASTITY B. et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of Los Angeles
County, Annabelle G. Cortez, Judge. Affirmed and conditionally
affirmed with directions.
Jesse McGowan, under appointment by the Court of
Appeal, for Defendant and Appellant Chastity B.
Jesse F. Rodriguez, under appointment by the Court of
Appeal, for Defendant and Appellant Ramon T.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Navid Nakhjavani, Principal
Deputy County Counsel, for Plaintiff and Respondent.
____________________________________
INTRODUCTION
Chastity B. appeals from juvenile court orders denying two
petitions filed under Welfare and Institutions Code section 3881
by Chastity’s mother, Marlene B., requesting a relative
placement assessment under section 361.3 and placement of
three of Chastity’s four children with Marlene. The Los Angeles
County Department of Children and Family Services and the
court determined it was not appropriate to place the children
with Marlene, in part because the juvenile court had previously
sustained a section 300 petition alleging Marlene sexually abused
Chastity’s oldest child. We conclude that the juvenile court did
not abuse its discretion in denying Marlene’s section 388
petitions and that any error the juvenile court may have
committed in not requiring the Department to prepare a formal
assessment under section 361.3 or in applying section 388 to
Marlene’s request for placement was harmless.
Chastity and Ramon T., the father of one of Chastity’s
children, also appeal from the juvenile court’s disposition order
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
concerning Chastity’s youngest child and argue the Department
did not comply with the inquiry and notice requirements of the
Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and
related California law. We agree the Department did not comply
with ICWA and related California law by failing to conduct an
adequate inquiry into the child’s possible Indian ancestry and to
provide adequate notice to the relevant tribe. Therefore, we
conditionally affirm the court’s disposition order regarding
Chastity’s youngest child and direct the juvenile court to ensure
the Department complies with its duties under ICWA and related
California law.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Family Has a Prior History with the Department
and the Juvenile Court
Chastity is the mother of four children: Isabella, who is 15
years old, and Gabriella, Gracie, and Hailey, who are all under
the age of six (Hailey is two). Isabella’s father is not the father of
Chastity’s other children and he, like Isabella, is not a party to
these proceedings. Gabriella and Gracie’s father is Moises H.;
Hailey’s father is Ramon.
In 2011 the juvenile court sustained a petition under
section 300 filed on behalf of Isabella alleging Chastity and her
mother Marlene sexually abused Isabella. The sustained petition
alleged Chastity and Marlene fondled Isabella’s vagina, took
photographs of it, and posted the photographs online. The
juvenile court terminated jurisdiction with a custody order
awarding sole physical custody of Isabella to her father.
3
In 2016 the juvenile court sustained a petition under
section 300 on behalf of Gabriella and Gracie alleging that
Chastity and Moises had a history of substance abuse and that
Chastity had not completed court-ordered programs in connection
with the petition filed on behalf of Isabella. The court removed
Gabriella and Gracie from Moises and released them to Chastity.
After Chastity and Moises completed various classes and
programs and Chastity submitted to weekly drug and alcohol
testing, the court returned the children to their parents and
terminated jurisdiction.
B. The Department Removes Gabriella, Gracie, and
Hailey from Chastity and Files a Petition Under
Section 300
In February 2020 Chastity, while 29 weeks pregnant with
Hailey, admitted herself to a hospital after vomiting blood. She
tested positive for marijuana, cocaine, and methamphetamine;
she did not deny recent methamphetamine and marijuana use.
Chastity told a case social worker Gabriella and Gracie were
living with Marlene because Chastity was homeless. Marlene
told the social worker Gabriella and Gracie (then five and three
years old) had lived with her for two years. Marlene denied ever
abusing Isabella, calling the previous juvenile proceeding a
“custody issue,” but she admitted she had a criminal history and
child welfare history.2 Chastity went into labor several weeks
2 In addition to the sustained petition alleging Marlene
sexually abused Isabella, Chastity’s referral history as a minor
showed a substantiated claim of “Caretaker absence/Incapacity”
against Marlene in 1999. The record does not provide any details
of Marlene’s criminal history.
4
later. Hailey was born with “complications with [her] breathing
and needed treatment.”
On March 4, 2020 a case social worker asked permission to
enter Marlene’s residence, but Marlene denied the social worker
access to Gabriella and Gracie. Marlene told the social worker
she could observe the children through a window, and the social
worker informed Marlene that such limited access was not
sufficient to assess the children’s safety. The social worker
returned with a law enforcement officer, but Marlene, though she
was home, refused to answer the door. Marlene later called the
social worker and gave her permission to enter the home. The
social worker reported the children were physically healthy and
developing age-appropriately.
On March 13, 2020 the juvenile court issued a removal
order for Gabriella, Gracie, and Hailey. Gabriella and Gracie
were placed one week later with their paternal grandparents, and
Hailey was placed with her father, Ramon. The Department
later detained Hailey from Ramon following his incarceration for
a domestic violence incident involving Chastity.
Meanwhile, the Department filed a petition on behalf of
Gabriella, Gracie, and Hailey alleging jurisdiction under
section 300, subdivisions (b), (d), and (j). The Department alleged
Chastity and Moises failed to make an appropriate plan for the
safety and well-being of Gabriella and Gracie by allowing them to
live with Marlene. Under subdivisions (b) and (j) the Department
also alleged that Chastity and Moises had a history of substance
abuse and that Ramon knew or should have known of Chastity’s
substance abuse. The Department filed a first amended petition
adding allegations under section 300, subdivisions (a), (b), and (j),
5
that Chastity and Ramon had a history of domestic violence and
that Ramon had a history of substance abuse.
In its July 2020 jurisdiction and disposition report, the
Department reported Gabriella was sad, cried often, threw
tantrums, and said she should not be living with her
grandparents. Gabriella blamed her grandparents for not letting
her live with her mother and for why her mother did not call her.
The Department reported Gracie had no mental or emotional
issues and was adjusting well to her grandparents’ home.
C. Marlene Files Multiple Section 388 Petitions, and the
Juvenile Court Sustains the Section 300 Petition
Marlene filed several petitions under section 388
challenging the juvenile court’s jurisdiction findings in the
dependency proceedings involving Isabella and seeking
placement of Gabriella, Gracie, and Hailey with her. The
juvenile court denied the petitions with the exception of one filed
on July 22, 2020, which the court set for a hearing. That petition
asked the court to place the children with Marlene and to
terminate jurisdiction because Chastity made an appropriate
plan for the children by leaving them with Marlene. Marlene
argued that the children “displayed sadness” because they missed
her and that Chastity wanted the children to live with her, where
(according to Marlene) they were thriving. Marlene argued that
placing the children with her was in the children’s best interest
because she loved them and that the court never should have
removed Gabriella and Gracie from her home.
In a last minute information the Department reported that
on several occasions Marlene went uninvited to the home of the
paternal grandparents (with whom, as stated, Gabriella and
6
Gracie were placed). Marlene reportedly threatened to sue the
paternal grandparents for taking Gabriella and Gracie from her,
and she told the children to tell their attorney they wanted to live
with her. The paternal grandparents asked for a restraining
order against Marlene to protect themselves, Gabriella, and
Gracie. Among other things, the paternal grandparents alleged
Marlene stood outside their home for 90 minutes complaining
loudly about Gabriella’s and Gracie’s medical care and
threatening to call the Department. The record does not indicate
whether a court ever issued a restraining order.
At the February 8, 2021 jurisdiction hearing the juvenile
court stated that the jurisdiction findings in the proceedings
involving Isabella were “res judicata” and that the court did “not
have the power or the authority . . . to overrule or relitigate
something that has already been finalized.” The court sustained
the count under section 300, subdivision (j), alleging Chastity and
Moises “failed to make an appropriate plan for the children’s
safety and well being, in that the mother and father allowed the
children to reside with maternal grandmother [Marlene], who
sexually abused the children’s maternal half-sibling . . . . The
mother knew of the maternal grandmother’s sexual abuse of the
[children’s] sibling and failed to protect the [children’s] sibling.
The children’s maternal half sibling . . . is a prior Dependent of
the Juvenile Court, due to the child’s sexual abuse by the
maternal grandmother and the mother’s failure to protect. Such
an inappropriate plan made by the mother and father endangers
the [children’s] physical health and safety and places the
[children] and the [their] siblings . . . at risk of harm, damage,
danger, sexual abuse, and failure to protect.” The court struck
the same allegation under section 300, subdivisions (b) and (d),
7
and sustained other counts alleged under section 300,
subdivisions (a), (b), and (j).
After the court sustained the petition, counsel for Ramon
asked the court to assess one of Ramon’s relatives as a possible
placement for Hailey. The court stated that Chastity wanted
Marlene assessed too and that Marlene’s multiple petitions asked
the court to place the children with her. The court asked the
Department to assess Ramon’s relative and Marlene for
placement under section 361.3.
On March 2, 2021 Marlene filed another petition under
section 388 stating that the “judge ordered the [Department] to
assess” her for placement, but that a case social worker informed
Marlene “the judge did not order a full report” and that the social
worker would not be assessing her for placement. Instead,
Marlene claimed, the social worker told her “paperwork will be
filed for [Resource Family Approval] to assess.”3 In response to
the question, “What new order or orders do you want the judge to
make now,” Marlene stated, “I would like the judge to enforce the
3 “The resource family approval . . . process is the current
process for ‘approving relatives and nonrelative extended family
members as foster care providers, and approving guardians and
adoptive families.’ [Citation.] A resource family is ‘an individual
or family that has successfully met both the home environment
assessment standards and the permanency assessment criteria’
established by statute and the State Department of Social
Services [citation] and only then are ‘considered eligible to
provide foster care for children in out-of-home placement and
approved for adoption and guardianship.’” (In re Brianna S.
(2021) 60 Cal.App.5th 303, 310, fn.3.) The Department describes
Resource Family Approval as “‘a new family-friendly and child-
centered caregiver approval process.’”
8
prior order to assess me for placement or the judge can make her
own independent judgment.” The juvenile court set a hearing on
the section 388 petition to coincide with the disposition hearing
on May 27, 2021. The court considered Marlene’s July 22, 2020
petition under section 388 on May 27, 2021 as well.
D. The Juvenile Court Declares the Children Dependent
Children of the Court and Denies Marlene’s Section
388 Petitions
In a last minute information report the Department stated
it determined Marlene’s home was inappropriate for placement
because Marlene had a “hit” on the Child Abuse Central Index,
had sustained allegations against her of sexually abusing
Isabella, and had been “inappropriate” in her visits with the
children by interrogating them about their personal hygiene
while they lived with their paternal grandparents. Marlene also
reportedly asked the children “how many times their grandfather
hits them.” The Department did not indicate whether its
assessment was based on section 361.3 or the Resource Family
Approval procedure. The Department also reported that
Gabriella and Gracie had been living in the home of their
paternal grandparents for over a year and that the grandparents
were meeting the children’s needs and had bonded with them.
Regarding Hailey, the Department reported she was “placed in
the medical placement home” of a nurse who was “well versed” on
how to care for children like Hailey with special medical and
developmental needs and who had completed training at a
children’s hospital on how to feed Hailey through a “G-tube.”
At disposition, counsel for the Department urged the
juvenile court to deny Marlene’s section 388 petitions for the
9
same reasons. Counsel for the Department also stated that
Gabriella’s and Gracie’s placement with their paternal
grandparents was going well and that subjecting them to further
instability was not in their best interest. Counsel argued that
Hailey had “very significant medical challenges” and that “any
caretaker of Hailey will need to be fully trained and involved in
her medical care to ensure that she continues to thrive.” Counsel
for the children and counsel for Moises also opposed granting
Marlene’s section 388 petitions. In support of her petitions,
Marlene argued she did not understand why her home was not
an appropriate placement because she had “not made any
problems during visits or contact with [her] grandchildren at all.”
Counsel for Chastity stated that, if the court did not release the
children to their mother, Chastity wanted the court to place the
children with Marlene.
The juvenile court declared the children dependent children
of the court and removed them from their parents. Turning to
the section 388 petitions, the court stated the burden was on the
moving party to show that there were changed circumstances and
that granting the petition was in the children’s best interest. In
finding that Marlene’s home was not a suitable placement and
that Marlene’s recent conduct was not “conducive to the best
interest of the children,” the court cited a variety of factors.
These factors included the parties’ positions on the section 388
petitions, the prior sustained petition involving Marlene’s abuse
of Isabella, the sustained finding in the current petition that
leaving Gabriella and Gracie with Marlene was an “inappropriate
plan,” Marlene’s initial failure to cooperate with the Department,
the “record of competing restraining orders,” and “the rest of the
information in the record.” In denying Marlene’s section 388
10
petitions, the court ruled that there were no changed
circumstances and that granting the petitions would not be in the
children’s best interest.
E. Ramon’s Sister Indicates Hailey May Have Indian
Ancestry
At the March 20, 2020 detention hearing Chastity and
Ramon filed a form ICWA-020 stating they had no known Indian
ancestry. Moises was not present at the detention hearing, but
his parents stated their family had no known Indian ancestry.
The juvenile court found at that time it had no reason to know
Gabriella, Gracie, or Hailey was an Indian child. In connection
with the first amended petition, Moises filed a form ICWA-020
stating he had no known Indian ancestry.
In April 2020 the juvenile court detained Hailey from her
father and placed her with a paternal aunt, Vanessa T., before
eventually placing her in foster care. Vanessa told a dependency
investigator Hailey’s paternal great-grandfather “came from the
Yaqui tribe, but he was not registered with the tribe.” Vanessa
did not know the paternal great-grandfather’s name or have any
additional information about him, but she gave the investigator
the name and phone number of the sister of the paternal great-
grandfather. Vanessa also gave the investigator the names and
birth dates (but not birth years) of Hailey’s paternal grandfather
(who was deceased) and paternal grandmother, as well as the
place where the paternal grandfather died. The investigator
called the sister of Hailey’s paternal great-grandfather twice and
left messages, but the sister did not respond. The record does not
indicate the investigator attempted to contact Hailey’s paternal
grandmother.
11
The dependency investigator sent ICWA-030 notices on
behalf of Hailey to the Pascua Yaqui tribe and to the Bureau of
Indian Affairs. The notices included the name and address of
Hailey’s father and the names (but not the (partial) dates or
places of birth) of Hailey’s paternal grandparents. The notices
also included an address in Los Angeles for Hailey’s paternal
grandmother, but no information about Vanessa or Hailey’s
paternal great-grandfather’s sister. The investigator also
contacted the Pascua Yaqui tribe by phone. On August 20, 2020
the Pascua Yaqui tribe notified the Department that Hailey,
Chastity, and Ramon were not members of the tribe and did not
have any pending applications for membership. Based on the
information the Department provided, the Pascua Yaqui tribe
concluded Hailey was not eligible for membership in the tribe.
On December 15, 2020 the juvenile court found there was
no reason to know Hailey was an Indian child. At the May 27,
2021 disposition hearing the court again found no reason to know
Hailey had Indian ancestry.
F. Chastity and Ramon Timely Appeal
Chastity filed timely notices of appeal (which she prepared
herself) on June 1, 2021, July 12, 2021, and July 21, 2021.
Ramon filed a timely notice of appeal from the court’s findings
and the February 8, 2021 and May 27, 2021 orders involving
Hailey.
12
DISCUSSION
A. The Juvenile Court Did Not Abuse Its Discretion in
Denying Marlene’s Section 388 Petitions or Request
for Placement, and Any Error Was Harmless
1. We Have Jurisdiction To Review the Juvenile
Court’s Rulings on Marlene’s Section 388
Petitions
The Department argues we do not have jurisdiction to
review Chastity’s arguments regarding the juvenile court’s orders
denying Marlene’s section 388 petitions because Chastity’s
notices of appeal did not identify the court’s orders denying those
petitions. But they did. The notice of appeal Chastity filed on
June 1, 2021 (concerning only Gabriella and Gracie) stated she
was appealing from the May 27, 2021 “Jurisdictional
Dispositional findings/orders . . . .” Beneath the question asking
her to identify the section of the Welfare and Institutions Code
under which the juvenile court made the findings or orders she
was appealing from, Chastity, though she did not check the box
stating “Other (specify),” wrote beside that box (among other
things): “Denial of (mgm) 388 filed 9/8/20 & and 3/2/21.”
The notice of appeal Chastity filed on July 12, 2021
(concerning all three children) stated she was appealing from
findings and orders of the court dated May 27, 2021. Beneath the
question asking Chastity to identify the section of the Welfare
and Institutions Code under which the juvenile court made the
findings or orders she was appealing from, Chastity checked the
box (among others) stating “Other appealable orders relating to
dependency” and wrote, “5/27/21 . . . failed to place & give
13
preferential consideration to maternal [grandmother].” And the
notice of appeal Chastity filed on July 21, 2021 (concerning all
three children) stated she was appealing from the “Detention,
Jurisdictional [and] Disposition 3/30/20, 2/8/21, 5/27/21 [and]
ordering suitable placement.” Beneath the question asking her to
identify the section of the Welfare and Institutions Code under
which the juvenile court made the findings or orders she was
appealing from, Chastity checked the box stating “Other
appealable orders relating to dependency” and wrote (among
other things): “Denied (mgm) 388 on 5/27/21.”
That pretty much covered it. “Generally, we must liberally
construe a notice of appeal in favor of its sufficiency. [Citation.]
A notice of appeal shall be ‘“liberally construed so as to protect
the right of appeal if it is reasonably clear what [the] appellant
was trying to appeal from, and where the respondent could not
possibly have been misled or prejudiced.”’” (In re J.F. (2019)
39 Cal.App.5th 70, 75; see In re Joshua S. (2007) 41 Cal.4th 261,
272.) Taken together, Chastity’s notices of appeal make clear she
intended to appeal from the juvenile court’s orders denying
section 388 petitions filed by Marlene (the “mgm”) on July 22,
2020 and March 2, 2021. The June 1, 2021 notice of appeal
specifically identified the ruling on the March 2, 2021 petition,
and the July 12, 2021 notice of appeal stated Chastity was
appealing from the court’s May 27, 2021 findings and orders and
identified among the “[o]ther appealable orders relating to
dependency” the court’s failure to “place [and] give preferential
consideration to maternal [grandmother].” Finally, the July 21,
2021 notice of appeal also identified the order denying Marlene’s
section 388 petitions by stating “Denied mgm 388 on 5/27/21”
among the “[o]ther appealable orders relating to dependency.” It
14
is abundantly clear that Chastity intended to appeal from the
juvenile court’s denial of her mother’s section 388 petitions and
that the Department could not possibly have been prejudiced by
Chastity’s notices of appeal.
2. Applicable Law and Standard of Review
a. Section 388
Section 388, subdivision (a)(1), provides: “Any parent or
other person having an interest in a child who is a dependent of
the juvenile court . . . may, upon grounds of change of
circumstance or new evidence, petition the court in the same
action in which the child was found to be a dependent child
. . . for a hearing to change, modify, or set aside any order of court
previously made or to terminate the jurisdiction of the court.”
A relative of a child who has been removed from his or her
parents may file a petition under section 388 requesting a
relative placement assessment under section 361.3.4
“Section 388 provides for modification of juvenile court
orders when the moving party presents new evidence or a change
of circumstance and demonstrates modification of the previous
order is in the child’s best interest. [Citations.] ‘“The petitioner
has the burden of showing by a preponderance of the evidence
(1) that there is new evidence or a change of circumstances and
(2) that the proposed modification would be in the best interests
of the child.”’” (In re Malick T. (2022) 73 Cal.App.5th 1109, 1122;
see In re L.S. (2014) 230 Cal.App.4th 1183, 1193.) “We generally
4 But a petition under section 388 is not the only way to
make this request. (See In re Isabella G. (2016) 246 Cal.App.4th
708, 721-722 [a relative is not required to file a section 388
petition to trigger a relative placement evaluation].)
15
review the denial of a section 388 petition for abuse of discretion.”
(Malik T., at p. 1123.)
b. Section 361.3
“‘Section 361.3 gives “preferential consideration” to a
relative request for placement, which means “that the relative
seeking placement shall be the first placement to be considered
and investigated.” (§ 361.3, subd. (c)(1).)’ [Citation.] The intent
of the Legislature is ‘that relatives be assessed and considered
favorably, subject to the juvenile court’s consideration of the
suitability of the relative’s home and the best interests of the
child.’” (In re Isabella G. (2016) 246 Cal.App.4th 708, 719; see
In re Stephanie M. (1994) 7 Cal.4th 295, 320.) “In determining
whether placement with a relative is appropriate, ‘the county
social worker and court shall consider, but shall not be limited
to,’ consideration of . . . eight listed factors, the first of which is
the best interest of the child.”5 (In re J.Y. (2022) 76 Cal.App.5th
5 The other factors are the wishes of the parent, the relative,
and the child, if appropriate; the provisions of Family Code
section 7950 et seq. regarding relative placement; placement of
siblings and half siblings in the same home, unless the court
finds such a placement is contrary to the safety and well-being of
any of the siblings; the good moral character of the relative and
any other adult living in the home, including whether any
individual residing in the home has a prior history of violent
criminal acts or has been responsible for acts of child abuse or
neglect; the nature and duration of the relationship between the
child and the relative, and the relative’s desire to care for, and to
provide legal permanency for, the child if reunification is
unsuccessful; the safety of the relative’s home; and the ability of
the relative to provide a safe, secure, and stable environment for
16
473, 477-478.) Indeed, the “linchpin of a section 361.3 analysis is
whether placement with a relative is in the best interests of the
minor.” (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856,
862-863 (Alicia B.); accord, In re Lauren Z. (2008)
158 Cal.App.4th 1102, 1112; see Stephanie M., at p. 321
[“regardless of the relative placement preference, the
fundamental duty of the court is to assure the best interests of
the child”]; In re Maria Q. (2018) 28 Cal.App.5th 577, 592 [“[t]he
first and foremost of [the] factors is ‘[t]he best interest of the
child, including special physical, psychological, educational,
medical, or emotional needs’”].)
“[P]referential consideration under section 361.3 ‘does not
create an evidentiary presumption in favor of a relative, but
merely places the relative at the head of the line when the court
is determining which placement is in the child’s best interests.’”
(Alicia B., supra, 116 Cal.App.4th at p. 863; accord, In re
Antonio G. (2007) 159 Cal.App.4th 369, 376.) Where more than
one relative requests preferential consideration, the county social
worker and the court must consider each relative under the
factors enumerated in section 361.3. (See § 361.3, subd. (b).)
“[T]he court is not to presume that a child should be placed with
a relative, but is to determine whether such a placement
is appropriate, taking into account the suitability of the relative’s
the child, exercise proper and effective care and control of the
child, provide a home and the necessities of life, protect the child
from his or her parents, facilitate court-ordered reunification
efforts, facilitate visitation with the child’s other relatives,
facilitate implementation of the case plan, and provide legal
permanence for the child if reunification fails. (§ 361.3,
subd. (a).)
17
home and the best interest of the child.” (In re Stephanie M.,
supra, 7 Cal.4th at p. 321; see In re H.K. (2013) 217 Cal.App.4th
1422, 1436.)
“A juvenile court’s placement orders are reviewed under the
abuse of discretion standard; the court is given wide discretion
and its determination will not be disturbed absent a manifest
showing of abuse.” (In re Sabrina H. (2007) 149 Cal.App.4th
1403, 1420; see Alicia B., supra, 116 Cal.App.4th at p. 863.)
“‘Broad deference must be shown to the trial judge. The
reviewing court should interfere only “‘if we find that under all
the evidence, viewed most favorably in support of the trial court’s
action, no judge could reasonably have made the order that he [or
she] did.’”’” (Sabrina H., at p. 1421; see Alicia B., at p. 863.)
3. The Juvenile Court Did Not Abuse Its
Discretion in Denying Marlene’s March 2, 2021
Section 388 Petition
Chastity argues the juvenile court abused its discretion in
denying Marlene’s March 2, 2021 section 388 petition because
that petition merely sought to rectify the court’s failure to enforce
the court’s prior request that the Department conduct a relative
placement assessment of Marlene under section 361.3. Chastity
asserts Marlene’s section 388 petition asked the juvenile court to
“‘enforce the prior order to assess [her] for placement [so] the
judge can make her own independent judgment.’” (Italics added,
second set of brackets in original.) Chastity’s assertion is based
on a significant misrepresentation of the record. As stated, the
petition actually asked the court to “‘enforce the prior order to
assess [Marlene] for placement or the judge can make her own
independent judgment.’” And the judge in fact made an
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independent judgment, based on an assessment from the
Department and the record as a whole, that Marlene was not an
appropriate placement. Thus, Marlene obtained the relief she
requested. Chastity’s argument that the court abused its
discretion because Marlene’s section 388 petition sought only to
enforce an existing order is, at best, meritless. To the extent
Chastity argues the juvenile court, in ruling on Marlene’s section
388 petition, abused its discretion by failing “to properly assess
[Marlene] as a placement option” under section 361.3, as we will
discuss, any error was harmless. (See In re Isabella G., supra,
246 Cal.App.4th at pp. 723-724 [harmless error standard of
People v. Watson (1956) 46 Cal.2d 818 applies to a juvenile court’s
failure to assess a relative under section 361.3]; In re Joseph
T. (2008) 163 Cal.App.4th 787, 798 [juvenile court’s errors in
failing to apply the relative placement preference and to state on
the record its reasons for denying a relative’s placement request
were harmless].)
4. The Juvenile Court Did Not Abuse Its
Discretion in Denying Marlene’s Request for
Placement, and Any Error Was Harmless
Chastity argues the juvenile court erred in applying the
standards of section 388 to Marlene’s request for placement. As
Chastity acknowledges, however, the court characterized
Marlene’s section 388 petitions as “asking for an
assessment/placement of the children,” and the court addressed
most, if not all, of the factors under section 361.3.
The juvenile court did not state it was considering the
factors listed in section 361.3, but the court’s comments and
findings indicate the court considered the best interests of the
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children (§ 361.3, subd. (a)(1)); the wishes of Chastity, Marlene,
and the children (§ 361.3, subd. (a)(2)); Marlene’s prior history of
child abuse and neglect (§ 361.3, subd. (a)(5)); Marlene’s ability to
provide a safe and secure environment (§ 361.3, subd. (a)(7)(A));
Marlene’s ability to facilitate visitation with the children’s
paternal relatives (§ 361.3, subd. (a)(7)(F)); Marlene’s ability to
facilitate implementation of all elements of the case plan (§ 361.3,
subd. (a)(7)(G)); and the safety of Marlene’s home (§§ 361.3,
subd. (a)(8)(A), 361.4, subd. (a)(3)). (See, e.g., In re Maria Q.,
supra, 28 Cal.App.5th at pp. 599-600 [any error in considering a
request for placement under section 388 instead of section 361.3
was harmless where, “[a]lthough the juvenile court did not
formally consider the section 361.3 factors, the juvenile court’s
remarks indicate it conducted a multifactorial assessment of [the
children’s] best interests,” including many of the factors listed in
section 361.3].) With regard to the other factors, Chastity does
not argue the Department denied placement of the children with
Marlene on the basis of the race, color, or national origin of
Marlene or the children (§ 361.3, subd. (a)(3); see Fam. Code,
§ 7950), and Gabriella and Gracie were already placed together,
while Hailey required special medical care (§ 361.3, subd. (a)(4)).
There was some evidence in the record that Marlene cared
for Gabriella and Gracie for two years and that at least Gabriella
had a strong bond with her. (§ 361.3, subd. (a)(6).) But there was
also evidence that Gabriella and Gracie had lived with their
paternal grandparents, which was a preferred relative
placement, for over one year at the time of the disposition
hearing and that the grandparents met the children’s needs and
were bonded with them. (See In re Lauren Z., supra,
158 Cal.App.4th at p. 1112 [despite the relative placement
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preference, adoption by a child’s non-relative foster parents was
in the child’s best interest because she had bonded with them].)
And, as discussed, there were compelling reasons for the juvenile
court to deny Marlene’s request that the court place the children
with her. (See In re Joseph T., supra, 163 Cal.App.4th at p. 798
[juvenile court’s error in failing to apply relative placement
preference was harmless where the record showed “compelling
reasons” not to place the child with his aunt regardless of her
qualifications as a foster parent]; In re Alicia B., supra,
116 Cal.App.4th at p. 864 [juvenile court “properly rejected”
placing a child with his grandmother where the grandmother had
“a substantiated referral of neglect with another grandchild in
her care”].)
Chastity argues the juvenile court’s failure to consider
every factor listed in section 361.3 was prejudicial because it is
reasonably probable the court would have placed the children
with Marlene had the court considered Marlene had a “close
relationship with Gabriella and Gracie, the sexual abuse findings
from 2011 were not necessarily true, and [Marlene]’s behavior
was not so disruptive as to disqualify her as a placement option.”
As discussed, however, the juvenile court, in denying Marlene’s
request for placement, referred to the entire record, which
included information about Marlene’s relationship with her
granddaughters, as well as Gabriella’s initial difficulties in
adjusting to living with her paternal grandparents. The court
also referred to the 2011 sexual abuse finding against Marlene
and the court’s basis for the current jurisdiction finding that
placement with Marlene was an “inappropriate plan.” Chastity
argues that Marlene was not a party to the proceedings in 2011
and that she “never had a chance to defend herself.” Chastity,
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however, did not appeal from the jurisdiction findings, including
the finding Chastity “failed to make an appropriate plan for the
children’s safety and well-being” by allowing “the children to
reside with [Marlene], who sexually abused . . . Isabella.”
Finally, the juvenile court found Marlene’s behavior was
uncooperative and not conducive to placing the children with her,
findings Chastity does not challenge. We do not second-guess the
court’s factual findings or reweigh the evidence. (See In re S.G.
(2021) 71 Cal.App.5th 654, 672; R.M. v. T.A. (2015)
233 Cal.App.4th 760, 780.)
B. The Department Did Not Comply with ICWA and
Related California Law
“ICWA provides: ‘“In 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.”
[Citation.] This notice requirement, which is also codified in
California law [citation], enables a tribe to determine whether
the child is an Indian child and, if so, whether to intervene in or
exercise jurisdiction over the proceeding.’ [Citations.] ‘ICWA
reflects a congressional determination to protect Indian children
and to promote the stability and security of Indian tribes and
families by establishing minimum federal standards a state court
must follow before removing an Indian child from his or her
family.’” (In re J.C. (2022) 77 Cal.App.5th 70, 76-77; see
25 U.S.C. § 1902.)
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“‘“‘Federal regulations implementing ICWA . . . require that
state courts “ask each participant in an emergency or voluntary
or involuntary child-custody proceeding whether the participant
knows or has reason to know that the child is an Indian child.”
(In re J.C., supra, 77 Cal.App.5th at p. 77; see 25 C.F.R.
§ 23.107(a) (2021).) State law “‘more broadly imposes on social
services agencies and juvenile courts . . . an “affirmative and
continuing duty to inquire” whether a child in the dependency
proceeding “is or may be an Indian child.”’” (J.C., at p. 77.)
Chastity and Ramon argue the juvenile court and the
Department failed to comply with ICWA and corresponding
California law. Chastity argues the Department did not provide
adequate notice to the Pascua Yaqui tribe because the
Department failed to include any information about Hailey’s
paternal aunt (Vanessa) or her paternal great-grandfather’s
sister in the Notice of Child Custody Proceeding for Indian Child,
even though the Department had that information. (See § 224.3;
In re J.C., supra, 77 Cal.App.5th at p. 78.) Ramon argues the
Department failed to conduct an adequate inquiry by failing to
ask known family members for the name of Hailey’s paternal
great-grandfather. (See § 224.2, subd. (b); J.C., at p. 78-79.)
The Department argues it complied with ICWA and related
California law because its investigator attempted to contact the
sister of Hailey’s paternal great-grandfather and the Department
included the names of Hailey’s paternal grandparents in the
Notice of Child Custody Proceeding for Indian Child. The
Department argues that information was sufficient for the
Pascua Yaqui tribe to conclude Hailey did not qualify for
membership in the tribe because the tribe requires a member to
be a descendant of a member listed in the original base roll of
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1980 and have at least one-quarter degree Pascua Yaqui blood,
and neither of Hailey’s paternal grandparents was enrolled as a
member of the tribe.
The Pascua Yaqui tribe, however, concluded Hailey was not
eligible for membership based on incomplete information.
Regarding Hailey’s paternal grandparents, the Department
provided only their names, the address of Hailey’s paternal
grandmother, and the date and place of death of Hailey’s
paternal grandfather. The Department did not provide the
paternal grandparents’ birth dates (despite having some of that
information) or birth places or any former address for Hailey’s
paternal grandfather. It appears the Department never
contacted Hailey’s paternal grandmother despite having her
address. Thus, the Department failed to conduct an adequate
inquiry into Hailey’s Indian ancestry and failed to provide the
Pascua Yaqui tribe with sufficient information to determine
Hailey’s eligibility for membership in the tribe. Therefore, we
direct the trial court to ensure the Department attempts to
contact Hailey’s paternal grandmother and provides complete
and proper notice to the Pascua Yaqui tribe, including any
information obtained from Hailey’s paternal grandmother, as
well as the names and available information for Hailey’s paternal
aunt (Vanessa) and the sister of Hailey’s paternal great-
grandfather.
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DISPOSITION
The juvenile court’s orders denying Marlene’s section 388
petitions are affirmed. The juvenile court’s disposition order
regarding Hailey is conditionally affirmed. The juvenile court is
directed to ensure the Department complies fully with the
inquiry and notice provisions of ICWA and related California law.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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