Imperial County Department of Social Services v. Ray M. ( 2016 )

Filed 12/16/16
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re RAY M., a Person Coming Under the
Juvenile Court Law.
IMPERIAL COUNTY DEPARTMENT D070157
OF SOCIAL SERVICES,
Plaintiff and Respondent, (Super. Ct. No. JJP02715)
v.
RAY M.,
Appellant.
In re RAY M., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE, D070174
Plaintiff and Respondent, (Super. Ct. No. JJL26173)
v.
RAY M.,
Defendant and Appellant.
CONSOLIDATED APPEALS from orders of the Superior Court of Imperial
County, William Derek Quan, Judge and Juan Ulloa, Judge. Reversed and remanded
with directions.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and
Appellant, a minor.
Katherine Turner, County Counsel, Haislip W. Hayes and Laura Berumen, Deputy
County Counsel, for Plaintiff and Respondent Imperial County Department of Social
Services (D070157).
Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney
General, Julie L. Garland, Peter Quon, Jr. and Anthony Da Silva, Deputy Attorneys
General, for Plaintiff and Respondent the People (D070174).
Ray M. appeals orders of the Imperial County juvenile court denying his motion to
conduct a new assessment under Welfare and Institutions Code section 241.11 and
declaring him a delinquent ward under section 602. Ray filed his motion after the Kern
County juvenile court determined he should be deemed a ward, and not a dependent,
without providing notice to his dependency attorney or to the Imperial County court as
required by section 241.1 and California Rules of Court, rule 5.512.2 Ray also contends,
and the Imperial County Department of Social Services (Department) concedes, that the
juvenile court erred at the outset of the dependency by failing to provide notice as
1 Undesignated statutory references are to the Welfare and Institutions Code.
2 All rule references are to the California Rules of Court.
2
required by the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We agree
with Ray that because the Kern County juvenile court did not comply with the notice
requirements set forth in section 241.1 and rule 5.512, the Imperial County juvenile court
had the authority to revisit the Kern County court's assessment under section 241.1.
Accordingly, we reverse the orders and remand the case for the juvenile court assigned to
hear Ray's dependency matter to conduct a new assessment under section 241.1 and, if
Ray is deemed a dependent, to comply with the notice provisions of ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
Ray, his older brother David M., and their two younger half-siblings were
removed from the custody of their mother, Teresa P., in November 2012, after she was
arrested for disturbing the peace and child endangerment. The police were called by
neighbors because of loud music coming from the home during the early hours of the
morning. When the police arrived, they found Teresa intoxicated and belligerent. The
home was filled with trash and the social workers called to the scene described it as
deplorable. Teresa was arrested and the four minors were taken into protective custody.
The Department filed petitions under section 300 on behalf of Ray and David,
alleging they were at substantial risk of suffering serious physical harm or illness as a
result of Teresa's inability to protect them.3 At the time, Ray was 12 years old and David
was 15. Teresa had a long history of involvement with the Department related to
allegations of neglect and also had several prior criminal convictions. Teresa had
3 Shortly after their removal, Ray's half-siblings were placed with their father.
Neither they nor David are the subject of this appeal.
3
participated in a voluntary family maintenance case with the Department from August
2011 to August 2012, and during that time received mental health counseling and
substance abuse services. After the minors were taken into custody, however, Teresa
became completely uncooperative with the Department.
At the detention hearing, the juvenile court found the Department had made a
prima facie showing that Ray and David were minors described under section 300 and
ordered them detained. After being taken into protective custody Ray and David both
tested positive for methamphetamine and the Department amended the petitions to
include the positive drug tests. At a hearing on the amended petition the following
month, the court again found the Department had made a prima facie showing that the
minors were described by section 300. At the hearing, the minors' father made his first
appearance. He requested placement of the minors and also stated he might have
Cherokee heritage. By January, however, he lost contact with the Department and failed
to return numerous telephone calls from the family's social workers.
Before the contested jurisdiction and disposition hearing in February 2013, Ray
and David were placed in separate foster homes. The Court Appointed Special Advocate
(CASA) for the minors reported that Ray disclosed to her that Teresa had subjected him
to severe physical abuse. At the hearing, the court declared Ray and David dependents
and removed them from parental custody. The court ordered reunification for both
parents and continued the minors' foster placements. The following month, Ray and
David's maternal uncle, Omar P. and his wife, Bianca P., who resided in Arizona,
requested placement of the minors. The Department requested and received an order
4
from the juvenile court for an evaluation of Omar and Bianca's home under the Interstate
Compact for the Placement of Children (ICPC) (Fam. Code, § 7900 et seq.). Ray and
David were placed with Omar and Bianca in Arizona the following June.
For the six-month review hearing, the Department reported that Teresa had failed
to participate in any reunification services. The Department requested that services be
terminated before the 12-month review hearing and that the court set a permanency
planning hearing under section 366.26. The social worker assigned to the case stated
Teresa wanted to regain custody of the minors, but steadfastly refused to cooperate with
the Department or to visit with Ray and David under the Department's supervision. Ray
had started attending therapy on a weekly basis and had disclosed further details about
the physical abuse he and his siblings had suffered while in Teresa's care. Ray told the
therapist that Teresa beat them with belts, pipes, wires, and burned them with metal
utensils. At the time of the six-month review hearing, Ray and David were both doing
poorly in school, and Ray had been suspended from school several times for fighting.
The minors' counsel joined in the Department's request to terminate reunification
services and set a permanency planning hearing. After a contested hearing in August
2013, the juvenile court terminated both parents' services and set a permanency planning
hearing for December 2013. Thereafter, Ray continued to struggle academically and with
anger issues. He was diagnosed with attention deficient and hyperactivity disorder and
prescribed medication. In its report for the permanency planning hearing, the Department
stated that Omar and Bianca, who remained the minors' caretakers, loved them and
wanted to continue to care for them, but were not willing to consider adoption because of
5
the financial commitment it entailed. The Department also reported that the ICPC
request for a foster care license had been closed because Omar and Bianca had not
provided requested documentation. At the permanency planning hearing, the juvenile
court ordered the minors to continue their placement with Omar and Bianca, and set a
subsequent review hearing under section 366.3.
Before the next hearing, Omar and Bianca notified the Department that they were
no longer willing to continue to care for Ray and David because they required constant
supervision and were impacting their ability to care for their own two children. In
February 2014, the minors were placed in a group home in San Diego, California. Once
at the group home, Ray began experimenting with drugs and alcohol, engaged in
aggressive behavior toward David, and also fell in with other residents who were
affiliated with a local gang. As a result, in June 2014, Ray was moved to another group
home in nearby La Mesa. There, however, Ray continued to use drugs, ran away several
times and exhibited aggressive and disruptive behavior. After an episode in which Ray
attacked another group home resident, he was moved again to a group home in Mentone,
California in San Bernardino County.
While in Mentone, on December 19, 2014, Ray was arrested for robbing a
convenience store with two other individuals. The San Bernardino County District
Attorney filed a petition alleging Ray was within the jurisdiction of the juvenile court
under section 602. The matter was transferred to Imperial County. The probation
department in Imperial County, with the agreement of the Department, submitted a report
under section 241.1 recommending that Ray be designated a ward of the juvenile court
6
under section 602, rather than a dependent under section 300. The report stated that Ray
had been suspended from the middle school he was attending multiple times since his
placement in Mentone, was failing all of his classes, admitted to regular drug and alcohol
use, and was associating with gang members. In January 2015, the Department also
submitted a proposal for Ray to remain a dependent but to enter an intensive, structured
program in Michigan where he would receive individual and group therapy, alcohol and
drug treatment, medication support and anger management services.
At the March 10, 2015 hearing on the section 241.1 assessment report to
determine Ray's status, Ray's attorney, James Smith, argued he should remain a
dependent. Smith asserted the Department had not adequately dealt with the underlying
trauma Ray had suffered in Teresa's care. The juvenile court agreed. The court found
Ray's interests were best served by remaining a dependent and being provided with
additional services through the dependency system. The parties agreed at the hearing that
the Department would pursue the placement in Michigan and start the ICPC process.
Because of Ray's behavior, however, finding an immediate placement was difficult.
Once released from juvenile hall, he was placed in another group home but then removed
several days later after punching another resident. Thereafter, he was placed in another
group home in San Diego.
In its report for a section 366.3 review hearing in July 2015, the Department
indicated Ray's current placement was in jeopardy. Ray continued to act out
aggressively. In August 2015, the Department again recommended that the court order
7
Ray placed at the program in Michigan, and in September the juvenile court specifically
ordered the Department to start the ICPC process for that placement.
The record is sparse from September 2015 to January 2016. Ray was eventually
moved to the Tehachapi Mountain Boys Home in Kern County. Then, on January 21,
2016, he was arrested for brandishing a knife at another resident of the home. On
January 25, 2016, the Kern County district attorney filed a petition on Ray's behalf
alleging he was within the jurisdiction of the juvenile court under section 602. The
following day, January 26, 2016, the Kern County juvenile court conducted a
delinquency detention hearing. After appointing public defender Stephen J. Adelson as
counsel for Ray, the court found detention was necessary and set a hearing for a joint
assessment under section 241.1.
The following day, January 27, 2016, a review hearing under section 366.3 was
scheduled in Ray's dependency case. At the hearing, the court noted it had not received a
report from the Department for Ray. The Department requested a continuance and Ray's
counsel, Smith, stated that he was "told by the social worker that Ray got into some
trouble in Bakersfield" and that he knew things were "in flux" as a result and, therefore,
he did not oppose a continuance. The court continued the hearing to February 22, 2016.
On February 2, 2016, a report titled "WIC 241.1 Joint Assessment Notification to
the Court" and signed by a representative of the Kern County Probation Department was
filed with the Kern County juvenile court recommending wardship for Ray. The report
stated that Ray's case "was reviewed and assessed by Joel Walton and Steven Webdell of
the Kern County Probation Department and by Esther Martinez of the Imperial County
8
Department of Children and Family Services."4 The four-page report recounted Ray's
arrest and contained a brief history of his dependency in Imperial County. The report
also stated that Adelson was asked to provide input and recommended dependency.5
On February 5, 2016, the Kern County juvenile court conducted a hearing on the
assessment report and found that proceeding under the delinquency provisions would best
serve the interest of Ray and the protection of society. At the contested jurisdiction
hearing on February 16, 2016, the Kern County juvenile court heard the testimony of the
victim, a facility manager at the Tehachapi Mountain Boys Home, and Ray. At the
conclusion of the hearing, the court found the allegations contained in the district
attorney's petition true, then ordered the case transferred to Imperial County for
disposition.
On February 18, 2016, the Department submitted a status review report to the
Imperial County juvenile court in Ray's dependency proceeding stating that Ray had been
arrested in Kern County and adjudged a ward of the court by the Kern County juvenile
court. The report stated that Ray's delinquency matter in Kern County was pending
transfer to Imperial County and that Ray would soon be transported from the Kern
County juvenile hall to the Imperial County juvenile hall. The report stated that Ray was
4 The first page of the report also stated "Ray [M.] has been assessed by the Kern
County Probation Department and the Kern County Department of Human Services."
5 The report contains no explanation of Adelson's recommendation, stating only
Adelson "was asked to provide his input regarding whether he felt Dependency or
Wardship was in the best interest of the minor. He felt it was in the minor's best interest
to remain a dependent."
9
no longer eligible to be supervised under section 300 and recounted Ray's history of
difficult behavior. The Department recommended the juvenile court issue an order
terminating dependency jurisdiction and dismissing the proceeding.
At the continued February 22, 2016 review hearing in Ray's dependency
proceeding, the Department's counsel stated the Department had been notified of Ray's
delinquency matter in Kern County and had participated in the joint assessment report
filed in that case. Department counsel also stated the section 241.1 hearing took place on
February 5, 2016, and that the Department requested, but had not yet received, a copy of
the minute order from that hearing. Smith alerted the court that notice of the
determination made in Kern County under section 241.1 had not been provided to him as
required by rule 5.512. The Imperial County juvenile court acknowledged the error, but
posited that any issues with the section 241.1 hearing that occurred in Kern County
needed to be addressed by that court and not it. On Smith's request, the court again
continued the review hearing to March 14, 2016, to provide additional time to address the
section 241.1 determination made in Kern County.
At the February 25, 2016 transfer-in hearing in Imperial County on Ray's
delinquency petition, Ray's delinquency counsel objected to the transfer on the grounds
that the section 241.1 protocol used in Kern County did not comply with the notice
provision in rule 5.512(c).6 The juvenile court overruled the objection and stated that the
6 The transfer-in hearing was conducted by a different judicial officer, Honorable
Juan Ulloa, than the judicial officer assigned to Ray's existing dependency proceeding,
Honorable William D. Quan.
10
objection was best addressed either to the Kern County juvenile court or to the Court of
Appeal. On March 8, 2016, the Imperial County juvenile court in the delinquency matter
conducted a disposition hearing, declared Ray a ward of the court pursuant to section
602, and placed Ray in his maternal grandmother's home.
Prior to the disposition hearing in the Imperial County delinquency court, on
March 4, 2016, Smith filed a "Motion To Reconsider or Redo Section 241.1 Hearing" in
the dependency court. Smith argued the court should conduct a new section 241.1
hearing because notice had not been given to all of the required parties, including the
Imperial County juvenile court itself, in the Kern County proceeding. Smith asserted the
court had the authority under both section 385 and Code of Civil Procedure section 1008
to set aside the Kern County juvenile court's order.
At the March 14, 2016 hearing on Ray's motion, the Department's counsel stated
his client's agreement with Ray's position that it was appropriate to rehear the section
241.1 determination. The juvenile court, however, did not agree that it had the authority
to review the order of the Kern County juvenile court. Smith requested a one-week
continuance to discuss the matter with Ray, which the court granted. Smith also stated
that he had attempted to file a motion to reconsider in Kern County, but that the Kern
County juvenile court had rejected the motion on the grounds that the case had been
transferred to Imperial County and it no longer had jurisdiction.
At the continued hearing on March 21, 2016, Ray's dependency counsel reiterated
his position that the Imperial County juvenile court had the authority to revisit the
delinquency determination made by the Kern County court. The dependency court
11
disagreed, again stating that it did not believe it had authority to address the errors made
by the Kern County court. The juvenile court suggested instead that any relief to correct
those errors would have to be obtained through an appeal. The court also suggested that
the motion would have been better addressed to the juvenile court department assigned to
the delinquency matter. At the conclusion of the hearing, the court denied Ray's motion
to reconsider the section 241.1 determination and, on the recommendation of the
Department in its February 18, 2016 report, terminated dependency jurisdiction.
On April 15, 2016, Ray filed notices of appeal for both the delinquency court's
March 8, 2016 order declaring him a delinquent ward and placing him with his maternal
grandmother, and the dependency's court's March 21, 2016 order denying his petition to
reconsider the Kern County court's determination under section 241.1 and terminating
dependency jurisdiction.7
7 On Ray's motion before briefing, this court consolidated the appeals. After Ray
filed his opening brief, it came to the court's attention that Ray had not served the
Attorney General with the motion to consolidate. On our own motion, we vacated our
earlier order consolidating the appeals. Because the legal issue raised by Ray is the same
with respect to both challenged juvenile court orders, we ordered the cases consolidated
again for purposes of this opinion.
12
DISCUSSION
I
Ray's central contention is that the Kern County juvenile court's failure to provide
notice as required by section 241.1 and rule 5.512 requires reversal of the status
determination made by that court to afford him the opportunity to be heard.8
A
"A child who has been abused or neglected falls within the juvenile court's
protective jurisdiction under section 300 as a 'dependent' child of the court. In contrast, a
juvenile court may take jurisdiction over a minor as a 'ward' of the court under section
602 when the child engages in criminal behavior." (In re M.V. (2014) 225 Cal.App.4th
1495, 1505.) In cases where a child qualifies as both a dependent and a ward of the
juvenile court, section 241.1 sets forth the procedure the juvenile court must follow to
determine under which framework the case should proceed. Generally, the child cannot
be both a dependent and a ward of the court.9 (See § 241.1, subd. (d) ["Except as
8 Ray does not challenge, and therefore we do not reach, the Kern County juvenile
court's true finding on the allegations in the petition filed by the District Attorney after
his arrest there. Ray also does not, contrary to the assertions made by both the Attorney
General and the Department, directly challenge the sufficiency of the evidence supporting
the status determination made in Kern County. His argument focuses solely on that
court's failure to provide the requisite notice, which prevented his counsel from
participating in the assessment determination. We take no position on the sufficiency of
the evidence to support the Kern County juvenile court's status determination.
9 "[U]nder certain statutorily enumerated circumstances, the probation department
and the child welfare department of a county, in consultation with the presiding judge of
the juvenile court, may create a written protocol permitting a child to be 'dual status'—
that is, both a dependent child and a ward of the court. (§ 241.1, subd. (e); see Assem.
13
provided in subdivision (e), this section shall not authorize the filing of a petition or
petitions, or the entry of an order by the juvenile court, to make a minor simultaneously
both a dependent child and a ward of the court."]; In re Marcus G. (1999) 73 Cal.App.4th
1008, 1012 (Marcus G.).)
Under section 241.1, subdivision (a), when it appears a minor fits the criteria for
both dependency under section 300 and wardship under section 601 or 602, "the county
probation department and the child welfare services department shall . . . initially
determine which status will serve the best interests of the minor and the protection of
society." The provision calls for the recommendations of both departments to "be
presented to the juvenile court with the petition that is filed on behalf of the minor" and
for the court to "determine which status is appropriate for the minor." (Section 241.1,
subd. (a).) The provision also states that "[a]ny other juvenile court having jurisdiction
over the minor shall receive notice from the court, within five calendar days, of the
presentation of the recommendations of the departments." (Ibid.) The notice must
include "the name of the judge to whom, or the courtroom to which, the
recommendations were presented." (Ibid.)
Subdivision (c) of section 241.1 addresses the situation presented here, when a
minor under the jurisdiction of one county's juvenile court is later alleged to come under
the jurisdiction of another county's juvenile court. The provision states: "Whenever a
Bill No. 129 (2003-2004 Reg. Sess.) § 1.)." (In re M.V., supra, 225 Cal.App.4th at p.
1506, fn. 3.) There is no indication in the record that such a protocol has been adopted in
Imperial County or Kern County and that dual status was a possibility for Ray.
14
minor who is under the jurisdiction of the juvenile court of a county pursuant to Section
300, 601, or 602 is alleged to come within the description of Section 300, 601, or 602 by
another county, the county probation department or child welfare services department in
the county that has jurisdiction under Section 300, 601, or 602 and the county probation
department or child welfare services department of the county alleging the minor to be
within one of those sections shall initially determine which status will best serve the best
interests of the minor and the protection of society. The recommendations of both
departments shall be presented to the juvenile court in which the petition is filed on
behalf of the minor, and the court shall determine which status is appropriate for the
minor. . . . Any other juvenile court having jurisdiction over the minor shall receive
notice from the court in which the petition is filed within five calendar days of the
presentation of the recommendations of the departments. The notice shall include the
name of the judge to whom, or the courtroom to which, the recommendations were
presented."10 (§ 241.1, subd. (c), italics added.)
When a minor comes within the description of both a delinquent ward and a
dependent, subdivision (b) of the statute requires the "probation department and the child
welfare services department in each county [to] jointly develop a written protocol to
ensure appropriate local coordination in the assessment of a minor . . . and the
10 In Marcus G., supra, 73 Cal.App.4th 1008 the Court of Appeal construed the
statute, which is arguably imprecise as to whether the joint assessment is filed in the first
court to have jurisdiction or the second, to "mean that the assessment of which status
would be appropriate for the minor is to accompany the later petition, i.e., the petition
that creates the potential for dual jurisdiction." (Id. at p. 1013.)
15
development of recommendations by these departments for consideration by the juvenile
court." The protocol must require the "consideration of the nature of the referral, the age
of the minor, the prior record of the minor's parents for child abuse, the prior record of
the minor for out-of-control or delinquent behavior, the parents' cooperation with the
minor's school, the minor's functioning at school, the nature of the minor's home
environment, and the records of other agencies that have been involved with the minor
and his or her family."11 (§ 241.1, subd. (b)(2).)
The statutory mandate is "augmented by rule 5.512, which requires the joint
assessment under section 241.1 to be memorialized in a written report." (In re M.V.,
supra, 225 Cal.App.4th at p. 1506.) In addition to the eight factors set forth in section
241.1, subdivision (b)(2) that must be considered in any joint assessment, "rule 5.512
demands evaluation of four additional items: (1) the history of any physical, sexual, or
emotional abuse of the child; (2) any services or community agencies available to assist
the child and his or her family; (3) a statement by any counsel currently representing the
minor; and (4) a statement by any court appointed special advocate (CASA) currently
appointed for the child. (Rule 5.512(d).)" (Ibid.)
The augmenting rule also addresses who is responsible for preparing the
assessment if the proceedings involve different counties. It states, "[i]f the petition
alleging jurisdiction is filed in one county and the child is already a dependent or ward in
another county, a joint assessment must be conducted by the responsible departments of
11 There is no indication in the record that Kern County has developed a specific
protocol as contemplated by section 241.1.
16
each county. If the departments cannot agree on which will prepare the joint assessment
report, then the department in the county where the petition is to be filed must prepare the
joint assessment report." (Rule 5.512(c).) The same provision states that the "report
must contain the recommendations and reasoning of both the child welfare and the
probation departments" and "must be filed at least 5 calendar days before the hearing on
the joint assessment in the county where the second petition alleging jurisdictional facts
under sections 300, 601, or 602 has been filed." (Ibid.) Importantly here, the rule also
requires that, "[a]t least 5 calendar days before the hearing [on the joint assessment],
notice of the hearing and copies of the joint assessment report must be provided to the
child, the child's parent or guardian, all attorneys of record, any CASA volunteer, and any
other juvenile court having jurisdiction over the child." (Rule 5.512(f).)
With respect to the timing of the status determination required under section
241.1, the statute is silent. The rule, however, provides that the joint assessment "must be
completed as soon as possible after the child comes to the attention of" the responsible
child welfare and probation departments, and "[w]henever possible, the determination of
status must be made before any petition concerning the child is filed." (Rule
5.512(a)(2).) Rule 5.512 also provides that if "the child is detained, the hearing on the
joint assessment must occur as soon as possible after or concurrent with the detention
hearing, but no later than 15 court days after the order of detention and before the
jurisdictional hearing. If the child is not detained, the hearing on the joint assessment
17
must occur before the jurisdictional hearing and within 30 days of the date of the
petition."12 (Rule 5.512(e).)
This court reviews a "juvenile court's determination under section 241.1 for abuse
of discretion." (In re M.V., supra, 225 Cal.App.4th at p. 1506.) " 'To show abuse of
discretion, the appellant must demonstrate the juvenile court exercised its discretion in an
arbitrary, capricious or patently absurd manner that resulted in a miscarriage of justice.' "
(Ibid.) "A discretionary order that is based on the application of improper criteria or
incorrect legal assumptions is not an exercise of informed discretion, and is subject to
reversal even though there may be substantial evidence to support that order." (Mark T.
v. Jamie Z. (2011) 194 Cal.App.4th 1115, 1124-1125.)
B
The issue before us is whether the Imperial County juvenile court had the ability to
remedy the Kern County juvenile court's failure to provide notice by revisiting the section
241.1 assessment. The Department does not dispute that the Imperial County juvenile
court and the parties' attorneys did not receive the notice required by section 241.1 and
rule 5.512(f). Rather, the Department contends the error was harmless because: (1) "all
12 Another court recently pointed out that the timeframes set forth in the rule for the
section 241.1 assessment are problematic because they call for the status determination to
occur before "a determination that the jurisdictional allegations supporting the alternate
status are true." (In re M.V., supra, 225 Cal.App.4th at p. 1507, fn. 4.) One commentator
has noted that " '[s]ince the full nature of the delinquency allegations may not become
clear until after they have been litigated and the juvenile court may or may not find those
allegations true,' there may be 'substantial merit' to deferring the 241.1 determination
until after the jurisdiction hearing in the appropriate case." (Ibid., quoting Seiser &
Kumli, Cal. Juvenile Courts Practice and Procedure (2013 ed.) § 1.11[3][b], p. 1-13.)
18
parties were noticed of the hearing and the minor was represented by counsel"; (2) Ray's
newly appointed delinquency attorney in Kern County was afforded the opportunity to
weigh in and recommended continued dependency; and (3) because the joint assessment
report prepared by the Kern County probation department with input from the
Department provided "a relatively complete picture of the minor's history of abuse and
the services being provided to him as a dependent…."
These arguments are not persuasive. "In juvenile dependency litigation, due
process focuses on the right to notice and the right to be heard." (In re Matthew P.
(1999) 71 Cal.App.4th 841, 851.) Rule 5.512(f) explicitly requires that at least five
calendar days before a hearing under section 241.1 is conducted, both notice of the
hearing and copies of the joint assessment report "must be provided to the child, the
child's parents or guardian, all attorneys of record, any CASA volunteer, and any other
juvenile court having jurisdiction over the child." (Rule 5.512(f), italics added.) Further,
the rule requires that "[a]ll parties and their attorneys" be provided "an opportunity to be
heard at the hearing."13 (Rule 5.512(g).)
Ray's dependency attorney, and the dependency court in Imperial County, had
familiarity with Ray's long history in the dependency system that the public defender
assigned to Ray's delinquency case in Kern County, just 10 days before the assessment
hearing, did not. If properly noticed, Ray's attorney could have provided additional
information concerning Ray's background, including the physical abuse he suffered and
13 Subdivision (d)(11) of the rule also requires the assessment report to contain "a
statement by any counsel currently representing the minor . . . ." (Rule 5.512(d)(11).)
19
the complicated status of his ongoing dependency, that was not included in the joint
assessment report submitted to the Kern County juvenile court. Because notice was not
provided as required, Ray was effectively denied the opportunity to be heard on the issue
of his status under section 241.1. This deficiency was not harmless; we cannot say
beyond a reasonable doubt that the outcome of the status determination would not have
been different with Ray's counsel participation. (In re J.H. (2007) 158 Cal.App.4th 174,
183 [Errors in notice "are subject to the harmless beyond a reasonable doubt standard of
prejudice."].)
C
The Department next contends that even if the error was prejudicial, the Imperial
County juvenile court correctly concluded it could not revisit the Kern County juvenile
court's determination under section 241.1. Confusingly, the Department states that Ray's
proper recourse was to challenge the Kern County court's status determination by filing
an appeal from the subsequent dispositional hearing. Ray, however, did appeal from the
dispositional order made by the delinquency court that accepted the case from Kern
County, as well as from the order in the dependency court denying his request to revisit
the section 241.1 hearing and dismissing the dependency matter.14 These orders are
appealable, and Ray's challenge to the earlier section 241.1 finding made by the Kern
14 We note unnecessary confusion in this case was created by the assignment of the
delinquency matter transferred from the Kern County juvenile court to a different judicial
officer than the one already presiding over Ray's dependency proceeding. When a case
that is appropriate for treatment under section 241.1 arises, if it is possible the judicial
officer to whom the first proceeding is assigned should also preside over any subsequent
juvenile proceeding occurring in the same county.
20
County juvenile court is properly reviewed on appeal from the orders. (See In re Henry
S. (2006) 140 Cal.App.4th 248, 256 [Juvenile court's finding treating minor "as a ward
under section 600 was an interim order that affected his subsequent treatment by [the
juvenile court]," which may be reviewed on appeal from the subsequent jurisdictional and
dispositional judgment.].)
The Department asserts there is "no express statutory authority [or] case law to
support [Ray's] assertion that the Imperial County juvenile courts had the authority to
overturn Kern County[ juvenile court's s]ection 241.1 determination." The Department
also suggests Ray should have brought a section 388 petition asking the juvenile court in
his dependency proceeding to revisit the status determination, but contradicts that
statement by asserting there "is no indication that a Section 388 motion would allow the
dependency court to set aside an order by a delinquency court." In his reply brief, Ray
responds by stating that although the Imperial County juvenile court found it "did not
have the authority to police the Kern County courts," the department that accepted the
transfer of the Kern County matter should have rejected the transfer until the Kern
County court corrected the notice error.
The juvenile court's jurisdiction "is limited to hearing cases concerning delinquent
and dependent children. The Legislature has vested the juvenile court with the authority
to fashion orders concerning the welfare of a dependent or a delinquent child. (§§ 19,
202, 245.5; see §§ 300.2, 350, subd. (a).) Within its limited jurisdiction, the authority of
the juvenile court is extensive: 'In addition to all other powers granted by law, the
juvenile court may direct all such orders to the parent, parents, or guardian of a minor
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who is subject to any proceedings under this chapter as the court deems necessary and
proper for the best interests of or for the rehabilitation of the minor.' (§ 245.5.)"
(Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 111 (Nickolas F.).) In
addition, "[a]ll courts have inherent powers that enable them to carry out their duties and
ensure the orderly administration of justice. The inherent powers of courts are derived
from California Constitution, article VI, section 1, and are not dependent on statute." (Id.
at p. 110.)
Section 385, which governs modifications of orders in dependency proceedings,
and section 775, which governs the same in delinquency matters, explicitly give the
juvenile court the authority to modify prior orders. Those provisions both state: "Any
order made by the court in the case of any person subject to its jurisdiction may at any
time be changed, modified, or set aside, as the judge deems meet and proper, subject to
such procedural requirements as are imposed by this article."15 (§§ 385, 775.) This
court's opinion in Nickolas F. is instructive. There, we held that a juvenile court had the
authority to modify a prior order providing for reunification services for the father of a
15 Section 262 provides additional authority for the modification of a prior order by a
juvenile court. That provision states: "Upon motion of the minor or his or her parent or
guardian for good cause, or upon his or her own motion, a judge of the juvenile court
may set aside or modify any order of a juvenile hearing officer, or may order or himself
or herself conduct a rehearing. If the minor or parent or guardian has made a motion that
the judge set aside or modify the order or has applied for a rehearing, and the judge has
not set aside or modified the order or ordered or conducted a rehearing within 10 days
after the date of the order, the motion or application shall be deemed denied as of the
expiration of that period." (§ 262.)
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dependent minor without following the procedural requirements for a modification
petition under section 388. (Nickolas F., supra, 144 Cal.App.4th at p. 116.)
The appellant in Nickolas F. argued that section 385's language "subject to such
procedural requirements as are imposed by this article" limited reconsideration of a prior
order to only situations where "a party or interested person has filed a petition for
modification pursuant to section 388." (Nickolas F., supra, 144 Cal.App.4th at p. 112.)
We rejected this assertion, noting "section 388 applies only when a party petitions the
court for modification based on new evidence or changed circumstances" and holding the
juvenile court has authority to reconsider previous orders in situations where section 388
does not apply. (Id. at pp. 113-114, second italics added.) In rejecting the limitation
advanced by the appellant, we stated such an interpretation "would significantly diminish
the juvenile court's general authority to ensure the orderly administration of justice, and
would undermine the court's statutory authority to direct such orders as the court 'deems
necessary and proper for the best interests' of the [minor]." (Id. at pp. 114-115.)
Likewise, precluding the juvenile court from correcting the error here because it occurred
in Kern County, and not in Imperial County, undermined the juvenile court's ability to
ensure the orderly administration of justice in this case.16
The Department points to no countervailing legal authority, statutory or otherwise,
to support its contention that the juvenile court was precluded from reconsidering the
16 In cases like this, where a minor under the dependency jurisdiction of one county's
juvenile court commits a crime in another county, the juvenile courts should
communicate and work cooperatively to fulfil the requirements of section 241.1 and rule
5.512 in order to prevent errors like one that occurred here.
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section 241.1 status determination. Instead, the Department contends three general policy
considerations precluded the Imperial County juvenile court from revisiting the section
241.1 determination. First, it asserts that allowing the Imperial County juvenile court to
review the Kern County court's determination for legal sufficiency would usurp the role
of the Court of Appeal. Next, the Department argues that allowing a new section 241.1
hearing would create a situation where there would be conflicting orders as to the minor's
status. Third, it argues allowing another hearing would result in unnecessary delay in the
final disposition, which conflicts with the overriding policy of prompt resolution of both
dependency and delinquency matters.
We recognize the importance of the general policy interests identified by the
Department, but conclude they did not warrant approval of the error made in Kern
County by the juvenile court in Imperial County. Indeed, allowing the juvenile court to
correct this error, which was explicitly acknowledged by the Department, serves the
policy of ensuring prompt resolution of juvenile cases by speeding the resolution of the
case without the significant delay created by this appeal. (See, e.g., Los Angeles County
Dept. of Children and Family Services v. Superior Court (2001) 87 Cal.App.4th 320, 326
[recognizing the importance of resolving status determinations quickly].) Further, there
is no risk of a conflicting order. The Imperial County juvenile court has the authority to
revisit the section 241.1 assessment and make the determination anew. If the Imperial
County juvenile court reaches a different conclusion than the one reached by the Kern
County juvenile court, it does so properly with the participation of Ray's dependency
counsel. Finally, we do not agree with the Department's criticism that allowing the
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Imperial County juvenile court to revisit the section 241.1 determination usurps the
function of this court. To the contrary, allowing the juvenile court to revisit the prior
order and remedy the acknowledged error promotes efficiency and prevents judicial
waste.
Because of the procedural posture of Ray's delinquency case, which was
transferred to Imperial County before Ray's dependency counsel was notified of the Kern
County juvenile court's status determination, Ray's attempt to challenge the order in the
Kern County juvenile court was rejected. As soon as Ray's counsel learned of the status
determination, he raised the error in both the delinquency and dependency courts in
Imperial County. In this unusual situation, we conclude the juvenile court had the
authority both under the Welfare and Institutions Code and article VI, section 1 of the
California Constitution to rectify the acknowledged error that occurred before the case
was transferred to Imperial County. (Nickolas F., supra, 144 Cal.App.4th at p. 110.) As
discussed, we reject the Department's contention that the error made in Kern County was
harmless, and conclude that because the notice provisions of section 241.1 and rule 5.512
were not followed, the Imperial County juvenile court was authorized to revisit the
section 241.1 assessment to allow the participation of Ray's dependency counsel. For
these reasons, the orders challenged by Ray in this appeal are reversed and the matter is
remanded for the juvenile court assigned to Ray's dependency matter to conduct a new
assessment under section 241.1.
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II
Ray also asserts the notification requirements of ICWA were not satisfied in his
case. The juvenile court and social worker have an affirmative and continuing duty in all
dependency proceedings to inquire whether a dependent child is, or may be, an Indian
child. (§ 224.3, subd. (a).) The circumstances that may provide reason to know the child
is an Indian child include when a member of the child's extended family 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 the tribe. (Id. at subd. (b).) A social worker who knows or has
reason to know that the child is an Indian child 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, Indian custodian, and extended family members, to gather the
information required for notice. (Id. at subd. (c); In re A.G. (2012) 204 Cal.App.4th
1390, 1396-1397.)
Ray asserts that ICWA's notice requirement was not met and that reversal to
remedy that error is required. The record shows, and the Department concedes, that
despite Ray's father's statement that he might have Cherokee heritage, the Department
made no further inquiry regarding Ray's possible Indian status. As the Department
concedes, remand is necessary to effect and document proper inquiry under ICWA. (In
re J.N. (2006) 138 Cal.App.4th 450, 461-462.) In the event that the juvenile court
determines Ray's status should be that of a dependent, and not a delinquent ward, the
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juvenile court is directed to order the Department to conduct the requisite ICWA inquiry
and to provide notice accordingly.
DISPOSITION
We reverse the juvenile court orders entered on March 8, 2016, declaring Ray a
ward of the court, and on March 21, 2016, denying Ray's request to conduct an
assessment under section 241.1 and terminating dependency jurisdiction. The case is
remanded for the juvenile court assigned to Ray's dependency matter to conduct a hearing
under section 241.1 with the participation of all parties and their counsel as required by
section 241.1 and rule 5.512. If the juvenile court determines Ray's status should be as a
dependent and not a ward, the court is also ordered to direct the Department to conduct
an ICWA inquiry, to provide ICWA notice to the Cherokee tribe, and to otherwise
proceed in conformance with ICWA.
McCONNELL, P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
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