In re A.H. CA2/3 ( 2020 )

Filed 9/17/20 In re A.H. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE
In re A.H. et al., Persons Coming B302022
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct.
AND FAMILY SERVICES, Nos. DK24185D,
DK24185E)
Plaintiff and Respondent,
v.
C.P. et al.,
Defendants and Appellants.
APPEAL from an order, Stephen C. Marpet, Judge Pro
Tempore. Conditionally affirmed with directions.
Joseph T. Tavano, under appointment by the Court of
Appeal, for Defendant and Appellant C.P.
Carol A. Koenig, under appointment by the Court of
Appeal, for Defendant and Appellant A.H.
Tarkian & Associates and Arezoo Pichvai for Plaintiff and
Respondent.
——————————
C.P. (mother) and A.H. (father) appeal from the order
terminating their parental rights to two toddler sons, brother
(age four) and baby (age three). (Welf. & Inst. Code, § 366.26.)1
They contend that the juvenile court erred in denying the
parents’ petitions for modification (§ 388), and in finding that the
Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et
seq.) and related California law (§ 224 et seq.) did not apply. We
conclude that the juvenile court did not err in denying the
petitions for modification. However, as the Department of
Children and Family Services (DCFS) violated its continuing
duty under ICWA to inquire, we conditionally affirm the order
terminating parental rights and remand to the juvenile court for
the limited purpose of enabling it and DCFS to comply with their
federal and state duties under ICWA.
BACKGROUND
I. The dependency
Mother and father have five children. Only the two
youngest are the subjects of this appeal.2 The family has an
extensive child welfare history because of substance abuse and
1 All further statutory references are to the Welfare and
Institutions Code.
2 Mother also has a teenage son in legal guardianship who
is not a subject of this appeal.
2
neglect. Brother was exposed to drugs prenatally and a case was
opened for him in Nevada.
Mother tested positive for amphetamine at baby’s birth.
She was unresponsive, high, and out of control at the hospital.
Mother admitted to DCFS that she used marijuana and
methamphetamine during her pregnancy, and in particular the
night before baby’s birth. She also claimed to have been “clean.”
Mother stated that father was sober and had last used a couple of
months earlier.
Father stated he was using marijuana and drinking
alcohol, and the social worker noted father’s bloodshot eyes.
Father denied knowing mother used drugs the night before
baby’s birth. He explained that the family had slept in the truck
that night, and when they awoke mother was gone.
DCFS filed a petition under section 300, subdivision (b) on
behalf of all five children alleging that mother’s and father’s
abuse of methamphetamine, amphetamine, and marijuana
rendered them unable to care for or to protect the children. In
August 2017, the juvenile court detained the children in foster
care and awarded the parents monitored visits.
II. ICWA
At the time brother and baby were detained, father stated
that his family members possessed Cherokee ancestry. In his
parental notification of Indian status form, filed on August 3,
2017, father checked the box indicating that he may have Indian
ancestry. Next to that, he wrote “Cherokee—MGM” and added
paternal grandmother’s name and telephone number, and
paternal great-grandmother’s name.
At the detention hearing that same day, the juvenile court
inquired about father’s Indian heritage. Paternal grandmother,
3
who was present in court, stated she had Cherokee ancestry
although she was not a registered member of the tribe. She
explained that paternal great-great-great-grandmother (the
children’s third great grandmother) and their fourth great
grandmother, who are deceased, were “full Indian” and registered
with the tribe, but did not live on the reservation. She also
mentioned the Navajo. Paternal grandmother did not know the
year or place of third great grandmother’s birth, as she had not
“followed up on it.” She explained that she “just let [her] kids
know . . . it was on background.” She was certain that she and
father could register for tribal membership. Although paternal
grandmother stated that no other family members were alive who
could provide additional information, and that she was “pretty
much it,” when the court asked her whether she could get more
information, paternal grandmother said she would call her
“auntie.” The court stated, at “this time, the court is going to find
that it’s not an ICWA case as I have no reason to know. [DCFS]
can follow up with additional information and, if they deem it
appropriate, walk it on prior to noticing any Indian tribes.”
(Italics added.)
On August 23, 2017, according to DCFS, the juvenile court
found it did not have a reason to know that the children were
Indian children. Thereafter, DCFS repeatedly reported that the
juvenile court had no reason to know that these were Indian
children as defined by ICWA.
III. The reunification period
The juvenile court sustained the petition in October 2017,
declared all five children dependents under section 300,
subdivision (b), and removed them from their parents’ custody.
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The reunification case plan ordered by the juvenile court
required the parents to complete four elements: six months of a
full drug and alcohol program, weekly testing, a 12-step aftercare
program with attendance logs and a sponsor, and individual
counseling with a DCFS approved licensed therapist, or
supervised by a licensed therapist, to address case issues.
The parents failed to comply with their case plans. They
did not complete a drug rehabilitation program. They tested
positive or missed tests many times, which count as dirty test
results. Neither parent provided proof of attendance at a 12-step
program or of a sponsor. DCFS had no indication either parent
had enrolled in individual counseling.
At the six month review hearing in October 2018, father
was in jail, mother was homeless, and neither parent was
cooperative with DCFS. The juvenile court terminated
reunification services for the parents after finding that their
compliance with its orders were “nonexistent.” The court
scheduled a permanency planning hearing under section 366.26
and directed DCFS to initiate adoptive home studies.
IV. The parents’ section 388 petitions for modification
A. The parents’ initial showing
In late July 2019, two years after the children were
detained and nine months after reunification services were
terminated, the parents each filed petitions under section 388
seeking reinstatement of services. As changed circumstances,
they explained that they had completed six months of a drug
treatment program in the Antelope Valley.
Mother attached to her petition letters from the Antelope
Valley program confirming her completion of 90 days of out-
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patient treatment, and a subsequent three-month program.
Mother also included her 12-step attendance cards from January
to mid-March 2019 only, and her drug-test results for the same
period, showing a positive result.
For his prima facie showing, father submitted a certificate
of completion from the same Antelope Valley 90-day treatment
program dated April 15, 2019, and the identical letters as mother
submitted confirming his subsequent completion of another three
months with the program. He also included 11 illegible drug-test
reports.
At the section 366.26 selection and implementation hearing
on July 30, 2019, the juvenile court found that the modification
petitions provided no information about the parents’ completion
of parenting classes or participation in individual therapy with a
licensed therapist, stating, “you don’t have that.” (Italics added.)
The court explained that the counseling included in the drug
treatment program was drug-related and thus was different than
the individual therapy it had ordered as part of the case plan,
which required the parents to undergo psychotherapy with a
licensed therapist focused on case issues.
Nonetheless, as it was continuing the 366.26 hearing for
completion of placement assessments, and to enable DCFS to file
responses to the section 388 petitions, the juvenile court “set a
388 finding [that] there is a change of circumstance and it’s in the
minors’ best interest, as a prima facie finding, and set this matter
over for a hearing” for October 2019. After admonishing the
parents that they both “need to get involved in individual
counseling and a parenting class,” the court gave them clear
directions and expectations for the next hearing: “When I come
back, I’ll have a therapist report, I’ll have a parenting certificate,
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I’ll have a nice long list of testing clean, no missed or dirty” tests.
(Italics added.)
B. The parents’ subsequent showing
On October 1, 2019, DCFS reported that mother was seen
by a psychiatrist on August 30, 2019, and father underwent a
psychiatric evaluation on August 30, 2019, but had not yet
scheduled an appointment to begin individual therapy. DCFS
learned that treatment would begin three months after father’s
August 2019 evaluation. Yet, father claimed to have been in
therapy for two months, meaning since before he was evaluated
at the end of August 2019.
Father’s test results between August 1, 2019 and
September 7, 2019 were clean. In the same period, mother
produced four positive results for marijuana, one for cocaine, and
failed to submit to two tests.
Notwithstanding her positive test results, mother insisted
that she had been sober for two years. She provided DCFS with a
copy of her medical marijuana card. To justify her August 3,
2019 positive cocaine result, mother provided her discharge
papers from the hospital whose emergency room had prescribed
her Norco (Hydrocodone-acetaminophen, an opioid) for pain on
September 3, 2019. Father claimed he had been sober for a year
and that he had completed half of his parenting classes.
DCFS was unable to confirm father’s assertion that he was
attending a 12-step program or that the paternal grandfather
was his sponsor. Mother provided the same 12-step attendance
log she had earlier submitted, for the first quarter of 2019 only,
and gave no information about a sponsor.
In its report responding to the section 388 petitions, DCFS
concluded that the parents had struggled to maintain their
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sobriety and had not made progress in complying with their case
plans. They had not demonstrated current participation in
aftercare services, which DCFS deemed crucial to maintaining
sobriety. Both parents have significant childhood trauma such as
sexual abuse, losses, parental substance abuse, and gang
violence, yet neither parent understood the connection between
their childhood traumas and their substance abuse. Mother
struggled with sobriety after participating in the 90-day program,
and was untruthful about her continuing abuse. DCFS was
particularly concerned that the parents were trying to complete
their case plans as a couple, and that mother’s difficulty
maintaining sobriety could affect father’s sobriety. Father
demonstrated no insight into this potential trigger. Meanwhile,
the children were in a safe, stable home, where their needs were
being met. DCFS concluded that it was in the children’s best
interest to provide them stability and permanency through
adoption, and recommended that the modification petitions be
denied.
The juvenile court again continued the section 366.26
hearing for a month. Noting that DCFS recommended it deny
the section 388 petitions, the court stated, “[f]ather and mother
who are both in partial compliance with other parts of the case
plan. So that’s the recommendation. And the court’s giving you
an indicat[ion] [of] what the court is going to do.” (Italics added.)
V. The section 366.26 selection and implementation hearing
DCFS reported for the section 366.26 hearing that it had no
proof that the parents were enrolled in individual therapy to
address case issues. Mother was still looking for a therapist. The
drug rehabilitation program informed DCFS that the parents had
yet to enroll in an aftercare program, but were “going to” do so, as
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of October 24, 2019. Father failed to appear for a test on
October 4, 2019. Mother did not submit to testing or produced
positive tests for marijuana between September 2019 and mid
October 2019. Finally, DCFS had no new information about
sponsors or attendance in a 12-step program.
At the section 366.26 hearing, finally held on November 1,
2019, father testified that he had completed the Antelope Valley
drug and alcohol program, and re-enrolled for six months of
aftercare services, which he had just started to complete, and all
of his weekly drug test results were clean. Father had been
regularly attending his monthly therapy sessions for about three
months. In therapy, he learned that his children had been
removed from his care because mother tested positive at baby’s
birth and paternal grandmother’s house was not clean. Father
had been attending a 12-step program for about four months and
paternal grandfather served as his sponsor. In addition to his
case plan requirements, father was taking domestic violence,
anger management, and parenting classes.
The juvenile court asked whether mother’s modification
petition was set for a contest. Told it was set, the court stated
that it had denied that petition. Reminded that both parents had
filed their section 388 petitions on the same day, the court
responded, “I read and considered both of them and I’ve denied
both 388s. I’ll deny mother’s specifically today [as] not in the
minors’ best interest, no change of circumstance.” Mother’s
attorney asked if that ruling came without allowing mother to
testify, the court explained, “Right. Mother continues to test
positive for drugs and she can’t complete a drug program and
continue[s] to test for marijuana.” The court denied mother’s
request to testify about the program that she was currently in,
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stating, “It’s not relevant. I’ve denied it. It’s not in this child’s
best interest, no change of circumstance. None. [¶] Even though
mother’s gone through a whole program, she’s still testing
positive and it’s not in the child’s best interest.” The court then
allowed mother to testify about the permanent plan.
After mother’s testimony, the juvenile court stated with
regard to the 388 petitions that it “indicated [it] denied both 388s
as not sufficient change of circumstance and it’s not in the[ ]
children’s best interest. They’ve been out—these children are
very young and have been literally out of the parents’ life since
the case came in in 2017 and it’s not in the children’s best
interest.” The court terminated parental rights to brother and
baby, implicitly ruling that ICWA did not apply. The parents
each appealed.
DISCUSSION
I. The section 388 petitions
“Section 388 provides an ‘ “escape mechanism” ’ for parents
facing termination of their parental rights by allowing the
juvenile court to consider a legitimate change in the parent’s
circumstances after reunification services have been terminated.
[Citation.] This procedural mechanism, viewed in the context of
the dependency scheme as a whole, provides the parent due
process while accommodating the child’s right to stability and
permanency. [Citation.] After reunification services have been
terminated, it is presumed that continued out-of-home care is in
the child’s best interests. [Citation.] Section 388 allows a parent
to rebut that presumption by demonstrating changed
circumstances that would warrant modification of a prior court
order.” (In re Alayah J. (2017) 9 Cal.App.5th 469, 478.)
10
To obtain the requested modification, the moving parent
must demonstrate both a change of circumstance or new evidence
and that the proposed change of court order is in the best
interests of the child. (§ 388; In re Alayah J., supra,
9 Cal.App.5th at p. 478.)
The juvenile court must hold an evidentiary hearing on a
section 388 petition only if the petitioner makes the required
prima facie showing. (Cal. Rules of Court, rule 5.570(d)(1) & (e);
In re G.B. (2014) 227 Cal.App.4th 1147, 1157.) “A prima facie
case is made if the allegations demonstrate that these two
elements are supported by probable cause. [Citations.] It is not
made, however, if the allegations would fail to sustain a favorable
decision even if they were found to be true at a hearing.” (In re
G.B., at p. 1157.)
We review a juvenile court’s decision to deny a section
388 petition without holding a hearing for abuse of discretion.
(In re G.B., supra, 227 Cal.App.4th at p. 1158.) An abuse of
discretion occurs when the juvenile court exceeds the bounds of
reason by making a determination that is arbitrary, capricious or
patently absurd. (In re Marcelo B. (2012) 209 Cal.App.4th 635,
642.)
Here, at the July 2019 hearing, the juvenile court found
that the parents had not demonstrated prima facie a change in
circumstances because neither parent had enrolled in individual
therapy to address case issues. Nonetheless, the court gave the
parents an opportunity to make a prima facie showing of change
and gave them a road map, stating they needed to provide a
therapist’s report, parenting certificates, and only clean test
results.
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The juvenile court allowed father to testify about his
section 388 petition and then denied the petition. Father
contends that he showed a change of circumstances in the three
and a half months between the July and November 2019 hearings
and so the court abused its discretion in denying the petition.
Father is wrong. Although father has made great strides toward
conquering his substance abuse, he produced a dirty test result
just before the final hearing, and provided insufficient evidence of
participation in a 12-step program. Father’s circumstances were
changing but had not changed, which is insufficient, given his
long history of drug and alcohol use. (See, e.g., In re Ernesto R.
(2014) 230 Cal.App.4th 219, 223.) Moreover, father told DCFS
and testified that he was in therapy every other week. But the
only report in the record indicates that father underwent a
psychiatric evaluation on August 30, 2019, but did not schedule
an appointment to begin therapy, and according to the mental
health center, treatment was not set to begin right away. DCFS
received no further confirmation of father’s therapy and father
did not submit the therapist’s report that the court had
requested. The court was entitled to believe the documentation
over father’s testimony.
Moreover, father did not show that the modification he
sought would be in the children’s best interest. Father took no
responsibility for this dependency, blaming it on mother’s
positive drug test at baby’s birth and paternal grandmother’s
dirty house. “One cannot correct a problem one fails to
acknowledge.” (In re Gabriel K. (2012) 203 Cal.App.4th 188, 197.)
As brother was a toddler and baby was a newborn when they
were placed in foster care, the parents were entitled no more
than a year of reunification services. (See § 361.5,
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subd. (a)(1)(C).) This dependency has lasted more than three
years, well over a year beyond the date when the services were
terminated, and the focus had shifted to the children’s needs for
permanency and stability. (See In re G.B., supra, 227
Cal.App.4th at p. 1163.) Father was unable to comply with
services for over two years. Postponing stability and finality for
these children to see whether father could comply with his case
plan is simply not in the children’s best interest.
Turning to mother, she contends that the juvenile court
denied her due process when it refused on November 1, 2019 to
allow her to present evidence on her section 388 petition after it
found on July 30, 2019 that she had made a prima facie showing
to warrant a hearing.
As a preliminary matter, we disagree with mother that at
the July 2019 hearing the court actually found that mother had
made a prima facie showing to justify a hearing. Rather, the
court stated, other than completion of a six month drug program,
“I don’t have any information regarding parenting class or
individual counseling. [¶] . . . [¶] . . . So you don’t have that.”
(Italics added.) Immediately thereafter, the court stated, “Both
mother and father need to get involved in individual counseling
and a parenting class” and to test clean for the next hearing. In
other words, had the court considered the petitions right then, it
would have summarily denied them for lack of a evidence of a
change in circumstance. (Cf. In re G.B. supra, 227 Cal.App.4th at
p. 1157 [prima facie case when probable cause supports
allegations].) The court only stated that there was a change in
circumstance and that the change would be in the children’s best
interest to enable DCFS to respond to the petitions and to give
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the parents time to show the changes they failed to make in their
petitions.
Nonetheless, even assuming the juvenile court actually
found changed circumstances such as would justify a hearing, we
conclude that any error in denying mother’s request to testify was
harmless. In the three months following mother’s initial
section 388 petition, which the court found failed to make a prima
facie showing, mother made no progress in therapy. DCFS had
one report, from late August 2019, stating that mother had been
seen by a psychiatrist on that day. Mother asserts that she
completed individual counseling as part of her drug rehabilitation
program. Yet, the court explained in July 2019 that such
counseling was not the psychotherapy it had ordered as part of
the case plan. Otherwise, mother admitted in late October 2019,
just before the section 366.26 hearing, that she was still looking
for a therapist.
Nor did mother make progress in overcoming her drug
addiction even after she underwent drug treatment. Her drug
tests were not clean. Mother’s reliance on her medical marijuana
card is unavailing. Marijuana is still a drug. Mother argues had
she been allowed to testify she would have explained that her
positive cocaine result was because she was discharged from the
hospital with a prescription for a cocaine derivative. But the
juvenile court had these documents at the hearing. They show
that mother tested positive for cocaine on August 3, 2019, but was
prescribed hydrocodone on September 3, 2019, a month later.
Otherwise, mother did not make an offer of proof or identify any
other facts about which she would have testified had she been
given the chance. Therefore, it is not reasonably probable that a
result more favorable to mother would have been reached in the
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absence of the asserted error. (See In re Maria Q. (2018)
28 Cal.App.5th 577, 599.)
II. ICWA error
Father, joined by mother, contends that the juvenile court
erred in finding it had no reason to know that the children were
Indian children. DCFS acknowledges that the amendments to
sections 224.2 and 224.3 that went into effect on January 1, 2019
apply to this case because the section 366.26 hearing occurred in
November 2019. (See In re A.M. (2020) 47 Cal.App.5th 303, 320.)
The juvenile court is mandated by section 224.2,
subdivision (c) to ask each participant present at the first
appearance in court “whether the participant knows or has
reason to know that the child is an Indian child” and to “instruct
the parties to inform the court if they subsequently receive
information that provides reason to know the child is an Indian
child.” The court did just that at the detention hearing.
The juvenile court correctly found that it did not have
reason to know that brother and baby were Indian children.
None of the six criteria listed in section 224.2, subdivision (d)3
3 Section 224.2, subdivision (d) reads: “There is reason to
know a child involved in a proceeding is an Indian child under
any of the following circumstances: [¶] (1) A person having an
interest in the child, including the child, an officer of the court, a
tribe, an Indian organization, a public or private agency, or a
member of the child's extended family informs the court that the
child is an Indian child. [¶] (2) The residence or domicile of the
child, the child's parents, or Indian custodian is on a reservation
or in an Alaska Native village. [¶] (3) Any participant in the
proceeding, officer of the court, Indian tribe, Indian organization,
or agency informs the court that it has discovered information
15
were present to give the court reason to know that brother and
baby were Indian children.
Nonetheless, that finding did not eliminate the duty of
further inquiry. The juvenile court has a duty of inquiry even as
late as the section 366.26 hearing. (In re Isaiah W. (2016)
1 Cal.5th 1, 11.) Also, under the amended statute, the juvenile
court “shall make further inquiry regarding the possible Indian
status of the child” (§ 224.2, subd. (e)) if there is “reason to
believe” that an Indian child is involved in a proceeding” (§ 224.2,
subd. (e), italics added). Here, paternal grandmother stated that
the children’s third and fourth great grandmothers were
registered tribal members. Although that information did not
establish any of the criteria necessary to mandate tribal notice,
which is triggered if “there is a reason to know” (§ 224.2, subd.
(f)), the information certainly gave the juvenile court and DCFS
reason to believe that Indian children were involved. An extended
family’s statement can provide more than a “ ‘vague, attenuated
and speculative’ ” tribal connection. (In re Austin J. (2020)
47 Cal.App.5th 870, 888.) Paternal grandmother confirmed that
she had ancestors who were tribal members and that she and
father were qualified to be registered members. Given this
confirmation, the duty of inquiry persisted. We reject DCFS’s
contention that “as a practical matter, any further inquiry would
indicating that the child is an Indian child. [¶] (4) The child who
is the subject of the proceeding gives the court reason to know
that the child is an Indian child. [¶] (5) The court is informed
that the child is or has been a ward of a tribal court. [¶] (6) The
court is informed that either parent or the child possess an
identification card indicating membership or citizenship in an
Indian tribe.”
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not provide the court with additional information.” Although
paternal grandmother stated she was pretty much the only
person in the family with information, she also stated that there
was a great aunt. DCFS was obligated at a minimum to inquire
about the information paternal grandmother obtained from great
aunt, or to contact great aunt directly, and to inquire of any other
extended members of father’s family. (See § 224.2, subd. (e); In re
A.M., supra, 47 Cal.App.5th 303, 322–323.)
DCFS relied on the juvenile court’s finding that it did not
have reason to know brother and baby were Indian children to
shirk its responsibility of further inquiry. However, immediately
after making its reason to know finding, the juvenile court stated
that DCFS “can follow up with additional information and, if they
deem it appropriate, walk it on prior to noticing any Indian
tribes.” DCFS never followed up.
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DISPOSITION
The order terminating parental rights is conditionally
affirmed. We order a limited remand with directions to the trial
court to comply with ICWA and with Welfare and Institutions
Code sections 224.2 and 224.3 for inquiry and subsequent notice
if Indian heritage is indicated. If, after proper inquiry and notice,
the relevant tribes do not respond or respond that the children
are not Indian children within the meaning of ICWA, the order
terminating parental rights shall immediately be reinstated. If
any tribe determines that the children are Indian children, the
parents may petition the court to invalidate the termination of
parental rights upon a showing that such action violated ICWA.
NOT TO BE PUBLISHED.
DHANIDINA, J.
We concur:
EDMON, P. J.
LAVIN, J.
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