In re Shane P. CA2/4 ( 2023 )

Filed 5/26/23 In re Shane P. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re Shane P., a Person Coming B319182
Under Juvenile Court Law.
(Los Angeles County
Super. Ct. No. DK18397A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
A.P.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
Rudolph A. Diaz, Judge. Affirmed in part; remanded with directions in part.
Law Office of Marissa Coffey and Marissa Coffey, under appointment
by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy, Assistant
County Counsel, and David Michael Miller, Deputy County Counsel, for
Plaintiff and Respondent.
INTRODUCTION
The only disputed issue in this appeal is whether the juvenile court
erred by not entering a visitation order appellant-mother A.P. failed to
request.1 We conclude it did not err.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Court Removes Shane From Mother
In July 2016, DCFS filed a petition under Welfare and Institutions
Code section 300, subdivision (b)(1),2 on behalf of Shane (born June 2006),
alleging that Mother’s mental and emotional problems rendered her unable
to provide regular care and supervision for the child. In August 2016, Mother
filed an ICWA-020 form, indicating potential Cherokee ancestry. Also
included in the record is a form containing handwritten notes stating Mother
potentially had both Cherokee and Blackfoot ancestry. In August 2016,
DCFS mailed ICWA notices to the Bureau of Indian Affairs, the Blackfeet
Tribe of Montana, the United Keetowah Band of Cherokee Indians in
Oklahoma, the Cherokee Nation, and the Eastern Band of Cherokee Indians.
In September 2016, the court sustained the petition, declared Shane to
be a dependent of the court, and removed him from Mother. The court
1 The other issue in this appeal is whether the juvenile court erred in
finding the Indian Child Welfare Act (ICWA) inapplicable when respondent
Los Angeles County Department of Children and Family Services (DCFS)
failed to send out proper ICWA notices to the tribes in which Mother was
potentially a member. DCFS agrees there is no evidence in the record
showing it ever sent proper ICWA notices and therefore concedes the
propriety of a remand “for compliance with the ICWA inquiry and notice
provisions.” We agree.
2 Undesignated statutory references are to the Welfare and Institutions
Code.
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granted Mother monitored visits, three times a week, two hours per visit,
with DCFS being given discretion to liberalize. Mother was permitted daily,
monitored telephone contact with Shane.
Mother appealed the court’s jurisdictional and dispositional orders,
arguing insufficient evidence supported them. (L.A. Cty. Dep’t of Children &
Family Servs. v. A.P. (In re S.P.) (2018) 2018 Cal.App.Unpub. LEXIS 209, *1.)
She also contended the notices sent by DCFS to the various tribes were
inadequate. (Ibid.) In an unpublished opinion, we affirmed the jurisdictional
and dispositional orders but agreed the ICWA notices were deficient and
“remanded to the juvenile court with directions to comply with the inquiry
and notice provisions of the ICWA.” (Id. at pp. *14–*15.) After remand, the
court ordered DCFS to “give proper ICWA notice” and to “submit the
completed proper ICWA notice” with the next supplemental report. The
parties agree there is no evidence DCFS complied with the court’s order.
B. The Court Terminates Reunification Services and Establishes a
Legal Guardianship
At an October 2018 review hearing held under section 366.22, the court
terminated Mother’s reunification services and set a hearing under section
366.26. The court indicated Mother’s visits would be “minimum twice a
week, three hours,” scheduled around Shane’s educational and medical needs.
The court added the visits should include an “appropriate monitor” and
ordered DCFS to provide a “written visitation schedule.” The court also
found ICWA inapplicable.
In June 2019, the court established a legal guardianship for Shane.
The court’s order included a written visitation schedule for Mother:
“Monitored visits one time per week, Tuesdays, after school until 5:30, [and]
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when school is not in session[,] visits are 2:00 to 5:30.” The order specified
where pick-ups and drop-offs were to occur and provided Mother would be
permitted 15-minute phone calls with Shane, thrice weekly, between 6:30
p.m. and 7:00 p.m.
In May 2020, it was reported Mother’s visits with Shane were
“postponed” due to the COVID-19 pandemic. In February 2021, DCFS
reported Mother had “infrequent” visits with Shane due to COVID-19.
Mother still called him, and he stated he enjoyed the calls, but was
“sometimes annoyed.”
C. Shane Refuses Visits
In April 2021, DCFS reported Shane visited Mother monthly due to
“pandemic constraints of online schooling and lack of staff to transport Shane
to visit with his mother.” Shane stated that “the current schedule is okay
with him.” However, in August 2021, DCFS reported, after visiting with
Mother in March 2021, “Shane has declined wanting to have visits with his
mother.” DCFS “inquired monthly” whether Shane wanted to visit, and
Shane declined, stating he did not like the way Mother spoke to him on the
phone, and the visits were “boring.” Shane rejected DCFS’s suggestion of
reducing the duration of the visit and had no suggestions of his own on how
to improve the visits. DCFS noted Shane maintained “weekly telephonic
contact,” although the frequency appeared to be declining. Shane’s refusal to
visit Mother continued through February 2022.
At a February 17, 2022 review hearing, Mother’s counsel informed the
court Mother was “not getting in-person visits” and requested a “written
visitation schedule.” Shane’s counsel asked the court to consider Shane’s
wishes because he was almost 16 years old, and requested the court “keep
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things as is.” The court ordered “visitation remains unchanged,” but gave
DCFS “discretion to liberalize.” The court noted Shane had made significant
progress over the last couple of years and while the court did not want to
discourage contact between Shane and Mother, the court understood visits
were “not very pleasant for him at times.” The court remarked: “Maybe
shorter contact may be appropriate. I’ll leave that to the Department’s
discretion.” The minute order from the hearing stated: “MOTHER[’]S VISITS
REMAIN IN FFE”3 and “DEPT HAS DISCRETION TO LIBERALIZE[]
VISITS.” Mother timely appealed.
DISCUSSION
A. The Court Did Not Err in Reaffirming Its Visitation Order
At the February 17, 2022 hearing, Mother’s counsel informed the court
Mother was “not getting in-person visits” and requested a “written visitation
schedule.” After the court ordered its previous visitation order would remain
in full force and effect, it hypothesized shorter visits might encourage Shane
to agree to visitation, but declined to order shorter visits, leaving the decision
to DCFS’s discretion. Mother argues in doing so, the court erred because it
“[t]acitly delegated to Shane and the DCFS to determine if and when
visitation took place.” Mother also argues the court erred by not considering
other potential orders that could have encouraged Shane to agree to visit.
We discern no error.
We find instructive the case of In re Sofia M. (2018) 24 Cal.App.5th
1038. There, a 12-month review hearing occurred three months after the
dependent teenager had begun refusing to visit with her mother, and the
3 Presumably, FFE stands for “full force and effect.”
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mother’s counsel asked the court for “‘the visits outlined in’” a previous order.
(Id. at p. 1043.) The court granted the request. (Ibid.) But visits still did not
occur. (Ibid.) On appeal, the mother contended the court erred by failing to
“enforce its visitation order.” (Id. at p. 1044.) The appellate court rejected
the contention, holding the juvenile court had properly ordered visitation.
(Id. at p. 1046.) The appellate court stated if the mother had wanted a
different order that would encourage the child to agree to visitation, it was
“the parent’s burden to request a specific type of enforcement, or a specific
change to the visitation order. Absent a request, it is not the court’s burden
to sua sponte come up with a solution to the intractable problem of a child’s
steadfast refusal to visit a parent. Trial judges are not mental health
experts, nor child behavior experts.” (Ibid.) In other words, “[t]he court does
not err by failing to do that which it is not requested to do.” (Ibid.)
Mother asks us to “[c]ompare” the efforts made by the juvenile court
here with the orders made by the juvenile court in In re S.H. (2003) 111
Cal.App.4th 310 to encourage visitation, and suggests the court here “shirked
its duties” by failing to make such orders. We disagree. S.H. does not
require a juvenile court to consider visitation orders the parties did not
request. The fact that the juvenile court in S.H. made orders Mother
considers “helpful” has no bearing on whether the juvenile court in this case
erred by not issuing such orders.
Here, Mother’s only request to the juvenile court was to issue a written
visitation schedule. The court granted her request by reiterating that the
previous schedule it had issued remained in full force and effect. Far from
delegating to Shane or DCFS the power to determine if and when visits
would occur, the court ordered visits would occur “one time per week,
Tuesdays, after school until 5:30, [and] when school is not in session[,] visits
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are 2:00 to 5:30.” In this case, the court order provides visitation must take
place and gives DCFS the ability to liberalize visitation. The order does not
allow Shane or DCFS to do away with the visitation. To the extent Mother
wanted the court to consider other orders to encourage Shane to agree to this
schedule, the burden was on her to make a specific request. She did not. We
agree with Sofia M. The juvenile court did not err by failing to do what it
was not requested to do.
B. Remand for ICWA Compliance Is Warranted
After our remand in 2018, the juvenile court ordered DCFS to “give
proper ICWA notice” and to “submit the completed proper ICWA notice” with
the next supplemental report. Both parties agree there is no evidence DCFS
complied with this order. Nevertheless, in October 2018, the court found
ICWA inapplicable.
On appeal, Mother asks us to remand and order the juvenile court “to
comply with the January 11, 2018 remand instructions of this Court of
Appeal” and “to also include proper inquiry of all available relatives under
the ICWA.” In its appellate brief, DCFS “concedes this issue and requests
the Court conditionally affirm the juvenile court’s visitation orders but
remand the matter to the juvenile court for compliance with the ICWA
inquiry and notice provisions.” We agree remand is warranted.
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DISPOSITION
The court’s February 17, 2022 order is conditionally affirmed. This
matter is remanded to the juvenile court with directions to order DCFS to
comply with the inquiry and notice provisions under ICWA and its related
California statutes. DCFS shall thereafter inform the juvenile court of its
actions and findings. The court shall hold a hearing to determine whether
the ICWA inquiry and notice requirements have been satisfied and whether
Shane is an Indian child. If the court finds he is an Indian child, it shall
proceed in conformity with ICWA and related California law. Mother shall be
notified of all hearings related to this remand and shall have the right to
appear and be represented by counsel.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ZUKIN, J.*
We concur:
CURREY, Acting P. J.
MORI, J.
* Judgeof the Los Angeles County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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