In re H.P. CA3 ( 2024 )

Filed 1/8/24 In re H.P. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Yolo)
----
In re H.P., a Person Coming Under the Juvenile Court C097469
Law.
YOLO COUNTY HEALTH AND HUMAN (Super. Ct. No. JV2022109)
SERVICES AGENCY,
Plaintiff and Respondent,
v.
C.P. et al.,
Defendants and Appellants.
Appellants C.P. (mother) and V.P. (father) (collectively parents) appeal from
various juvenile court orders relating to the dependency of minor H.P.
Mother filed a notice of appeal from the juvenile court’s October 26, 2022
jurisdictional and dispositional orders. Mother also filed a notice of appeal on
1
February 6, 2023, purporting to appeal from the juvenile court’s November 9, 20221
orders authorizing ongoing hair follicle testing and transitioning the minor into the care
of the maternal grandmother, and from the December 7, 2022 “[d]ispositional order and
case plan.” But mother’s notice of appeal is not timely as to the November 9, 2022
orders since her notice of appeal was not filed within the requisite 60 days. (Cal. Rules
of Court, rule 8.406.) Accordingly, we shall dismiss her appeal from those orders.
Mother’s notice of appeal is timely as to the December 7, 2022 review hearing at which a
case plan was adopted. Her sole contention on appeal is that the juvenile court and
respondent Yolo County Health and Human Services Agency (Agency) failed to comply
with the inquiry and notice requirements of the Indian Child Welfare Act of 1978
(ICWA) (25 U.S.C. § 1901 et seq.).
Father filed a timely notice of appeal from the juvenile court’s October 26, 2022
dispositional orders, contending the juvenile court improperly bypassed him for
reunification services. Father also joins in mother’s argument that the juvenile court and
Agency failed to comply with the ICWA.
We agree with respondent that the ICWA argument is premature because the
juvenile court has yet to make an ICWA finding; we therefore dismiss mother’s
remaining appeals. We disagree with father’s contention that he was improperly
bypassed for reunification services and affirm the juvenile court’s October 26, 2022
orders and judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We provide an abbreviated summary of the facts, with an emphasis on the facts
relevant to father’s contention that he was improperly bypassed for reunification services
1 Mother’s notice of appeal actually indicates she is appealing from November 9,
2023 orders, but reference to 2023 is clearly unintentional since the notice was filed nine
months before that date.
2
and omitting most facts relating only to mother. The facts related to the ICWA are
included in our discussion of that issue.
The Agency obtained a protective custody warrant after the premature newborn’s
meconium test was positive for critical levels of THC and mother had continued use of
prescribed oxycodone throughout her pregnancy. Mother also had mental health issues
and parents’ had a history of failing to reunify with their children. Mother reported being
diagnosed with schizophrenia but claimed it was only to receive Supplemental Security
Income benefits and avoid homelessness, and she reported no mental health symptoms.
Father denied mother had any mental health concerns. Parents were married and saw
each other daily, but they did not live together. Father was mother’s in-home support
services provider and spending five to six hours each day caring for mother’s general
needs.
In July 2022, the Agency filed a Welfare and Institutions Code2 section 300
petition on behalf of the minor, alleging parents’ failure or inability to protect the minor
generally and due to mental illness, developmental disability, or substance abuse. Under
the failure to protect provisions, the petition factually alleged: (1) mother has a history of
untreated “mental health issues from which she has failed and/or refused to rehabilitate[]
and which impair her ability to provide adequate care and supervision,” including
diagnoses of schizophrenia, depression, anxiety, and bipolar disorder, that she is not
currently taking any medications, and that her mental health issues were the primary
concern in two previous dependency cases involving the minor’s siblings, V.H. and G.P.;
(2) the minor is at risk due to father’s inability or unwillingness to protect her from
mother’s mental health issues because he refuses to acknowledge mother’s mental health
issues and allows mother to be the minor’s primary caregiver. The petition further
2 Undesignated statutory references are to the Welfare and Institutions Code.
3
alleged that father had failed to complete reunification services in sibling V.H.’s
dependency case and had been bypassed for reunification services in sibling G.P.’s
dependency case due to father’s alcohol abuse and his domestic violence with mother.
Father had presented with slurred and incoherent speech while speaking with the social
worker a few days before the petition was filed and admitted that he had taken no
measures to address the issues from the siblings’ cases, which the Agency alleged placed
the minor at risk.
The section 300 petition further alleged, under the provision for abuse of sibling,
that sibling V.H. had been “placed into protective custody due, in part, to . . . mother’s
untreated mental health [issues] and her inability to provide adequate care of the sibling
due to those mental health issues,” parents’ domestic violence, and “father’s untreated
alcohol issues.” The petition alleged parents had been offered reunification services but
failed to reunify. Reunification services were terminated, and V.H. was placed in a
guardianship in September 2018. The section 300 petition further alleged, under the
provision for abuse of sibling, that thereafter, sibling G.P. had been “placed into
protective custody . . . due, in part, to . . . mother’s untreated mental health [issues],
father’s failure to protect,”3 and “parents’ failure to reunify with [V.H.]” Parents were
not offered reunification services in that case and parental rights were terminated in July
2019.4 The juvenile court set the matter for a combined jurisdiction/disposition hearing.
The Agency’s jurisdiction/disposition report recommended bypassing parents for
reunification services based on their failure to reunify with the minor’s siblings, and
3 It was subsequently reported that, although the Agency had alleged father’s failure
to protect the sibling G.P. from mother’s mental health issues, that allegation was not
sustained by the juvenile court in that case.
4 The petition also alleged mother had failed to reunify with a half sibling and had
her parental rights to that half sibling terminated in 2009.
4
setting a section 366.26 hearing. In addition to other information about parents, the
report included a summary of an August 2022 interview with father during which the
social worker had questioned father about his substance use. Father reported he was
“drinking less” but also reported that he drinks alone and “ ‘of course’ he uses
marijuana.” He explained “that marijuana is his cigarette and he is not able to stop
using.” He had not been to any classes about alcohol use or participated in a 12-step
program. He reported he was living part time with mother and denied any domestic
violence between he and mother for the past five or six years. In a subsequent interview,
father admitted to being an alcoholic and agreed to participate in substance abuse
treatment and anger management groups.
In an addendum to the jurisdiction/disposition report, the Agency reported that
parents had moved into a home together. On September 9, 2022, the social worker made
an unannounced visit to parents’ home. After multiple knocks, father opened the door
and a strong odor of marijuana smoke came from the doorway. Father quickly closed the
door but reopened it after the social worker knocked again. The social worker reported
that the home smelled strongly of marijuana and was full of smoke. The social worker
reviewed with father “the referrals made to services, including [a] substance use
assessment, random drug testing, and anger management.” Father stated he had not
started any services and the social worker advised “that CommuniCare reported [father]
had an intake for [a] substance use assessment on September 21, 2022. [Father] stated
that he could not remember when his appointment was scheduled.” The social worker
noted that father appeared at the time to “be under the influence of marijuana, with slow
speech and very red eyes. [Father] received the referral list and signed the receipt.” The
social worker advised that “parents need[ed] to follow through with the substance use
assessment[s] and random testing and abstain from smoking marijuana.”
Two social workers made another unannounced visit to parents’ home on
September 20, 2022. It was discovered during that meeting that father had not attended
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an earlier scheduled intake appointment at CommuniCare but was still scheduled for
September 21, 2022. After father reported that he had not signed up for random testing,
the social workers advised him that he needed to do so and to complete the substance
abuse assessment, start anger management services, and continue attending visitation.
Father reported he did not know when he last used alcohol, recalling only that it had been
“a long time” ago, but acknowledged he had been using marijuana. During a telephone
interview 10 days later, he reported he last used alcohol over two years prior and had
stopped using marijuana a month and a half ago. He confirmed he had been on a
SCRAM bracelet in the past, which he wore for a year.
The Agency reported that in addition to a referral for anger management, the
Agency had referred father for random drug testing at CommuniCare on August 23,
2022. An additional referral was sent on September 9, 2022. Father was also referred for
a substance use assessment through CommuniCare. In a second addendum report, the
Agency provided and summarized 11 police reports documenting law enforcement
contact with parents between September 2019 and July 2022. The Agency continued to
recommend the juvenile court sustain the allegations in the petition, declare the minor a
dependent child of the court, order the minor removed from parental custody, and bypass
parents for reunification services pursuant to section 361.5, subdivision (b)(10) and
(b)(11).
The juvenile court held a combined jurisdiction/disposition hearing on October 26,
2022. The social worker, mother, and father testified, including testimony about the
efforts parents had made, or not made, to address the Agency’s concerns. The Agency
then argued that both parents should be bypassed for reunification services. In making
this argument, the Agency argued that father’s domestic violence and alcohol abuse were
concerns in sibling V.H.’s earlier case and father continues to drink alcohol and use
marijuana heavily, had “failed to engage in substance abuse treatment services,” and
failed to complete anger management services.
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Mother’s counsel twice emphasized that it was the Agency’s burden to not only
prove the basis for the bypass of reunification services, but that parents had not made
reasonable efforts to address the issues in the siblings’ cases. Counsel argued mother had
made reasonable efforts to address the previous issues. Father’s counsel acknowledged
that “one of the concerns that was raised at the prior case and during this one is [father’s]
use of illicit substances and/or alcohol at the time his case was closed” but argued that he
“was doing the best that he could” in engaging “in some form of support and
encouragement” for sobriety. Father’s counsel argued that his efforts were reasonable
and, in any event, reunification services would be in the minor’s best interests because
the minor was very young and father had, at times, shown some insight in anger
management and his need to address his substance abuse. With respect to disposition, the
minor’s counsel noted that father had not done much to address his substance abuse and
was still actively using alcohol and marijuana. Arguing that both parents had serious
mental health, domestic violence, and substance abuse issues, the minor’s counsel
requested parents be bypassed for reunification services.
The juvenile court sustained the allegations in the petition and then turned to
disposition. It first discussed whether the minor should be returned home to parents and
concluded that parents’ mental health, substance abuse, and other concerns from the
siblings’ cases had not been sufficiently addressed so as to allow the court to return the
minor to parents’ home. It then turned to the provision of reunification services and
concluded that mother had made reasonable efforts to address the reasons the minor’s
siblings had been removed but that father had not. It bypassed father for reunification
services but ordered services be provided to mother. It adopted a reunification case plan
at the subsequent December 7, 2022 hearing.
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DISCUSSION
I
Denial Of Reunification Services For Father
Father contends the juvenile court’s order denying services under section 361.5 is
not supported by substantial evidence because (1) the required connection of reasons for
prior and current removal was not shown, and (2) the juvenile court improperly shifted to
him the burden of proof regarding the reasonableness of his efforts to treat the problems
resulting in the minor’s siblings’ cases. We disagree with father on both points.
When a child is removed from the parent’s home, reunification services may be
offered to the parent “ ‘in an effort to eliminate the conditions leading to loss of custody
and facilitate reunification of parent and child. This furthers the goal of preservation of
family, whenever possible. [Citation.]’ [Citations.] Section 361.5, subdivision (b) sets
forth certain exceptions—also called reunification bypass provisions—to this ‘general
mandate of providing reunification services.’ ” (In re Allison J. (2010) 190 Cal.App.4th
1106, 1112.) “When the court determines a bypass provision applies, the general rule
favoring reunification is replaced with a legislative presumption that reunification
services would be ‘ “an unwise use of governmental resources.” ’ ” (Ibid.)
“As relevant here, services may be denied if the [juvenile] court finds by clear and
convincing evidence either ‘[t]hat the court ordered termination of reunification services
for any . . . siblings of the child because the parent . . . failed to reunify with the . . .
sibling[s] after the . . . sibling had been removed from that parent . . . and that, according
to the findings of the court, this parent . . . has not subsequently made a reasonable effort
to treat the problems that led to removal of the . . . sibling of that child from that
parent . . . .’ or ‘[t]hat the parental rights of a parent over any . . . sibling of the child had
been permanently severed, and this parent is the same parent described in [section 361.5,]
subdivision (a), and that, according to the findings of the court, this parent has not
subsequently made a reasonable effort to treat the problems that led to removal of the . . .
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sibling of that child from the parent.’ (§ 361.5, subd. (b)(10) & (11).)” (K.C. v. Superior
Court (2010) 182 Cal.App.4th 1388, 1393.)
We review the juvenile court’s order denying reunification services under section
361.5, subdivision (b) for substantial evidence. (R.T. v. Superior Court (2012)
202 Cal.App.4th 908, 913-914 & fn. 3; Conservatorship of O.B. (2020) 9 Cal.5th 989,
995-996.)
A
Problems That Led To The Removal Of H.P.’s Siblings
Father contends the required connection between the prior and current reasons for
removal are not present in this case because the jurisdictional allegations relating to
father in sibling V.H.’s case were based on his domestic violence, and the jurisdictional
allegations relating to father in sibling G.P.’s case were based on father’s general neglect
of V.H. due to domestic violence. He argues that domestic violence was not an ongoing
concern in the instant case and that, although substance abuse services were ordered in
sibling V.H.’s case, the Agency had not alleged a separate count that father was unable to
care for V.H. as a result of his substance abuse. Thus, he argues that the Agency’s
decision not to separately allege father’s failure or inability to provide regular care due to
substance abuse for V.H. and, likewise, for the minor, results in a failure of proof “ ‘that
father received services in the prior case for the problems manifest in the present case.’ ”
There is, however, no requirement that the “ ‘problems that led to removal’ ” must
be alleged in the prior petitions resulting in removal. (In re Lana S. (2012)
207 Cal.App.4th 94, 108.) As explained in In re Lana S., it is sufficient if the problem
preventing reunification was a “substantial component” of the previous service plan.
(Ibid.) Thus, in In re Lana S., mother’s drug abuse could be considered, even though it
had not been alleged in previous petitions. (Ibid.)
Father argues the Agency’s failure to provide a copy of father’s reunification plan
in V.H.’s case is fatal to meeting its burden to show that father’s substance abuse was a
9
problem leading to V.H.’s removal. While the reunification plan was not provided, the
Agency did present other evidence that father’s substance abuse was, at least in part, a
basis for V.H.’s continued removal and it established that the substance abuse services he
was provided were a substantial component of his case plan. The Agency submitted a
detention report, a combined jurisdiction/disposition report, two addendum reports,
attachments to those reports, and some testimonial evidence to establish the problems that
had led to the removal of V.H. and G.P., and father’s efforts (or lack thereof) in treating
those problems. At the Agency’s request, the juvenile court also took judicial notice of
the records in the siblings’ cases and the Agency provided a summary of those records. 5
The records reflected that V.H. had been ordered removed from parental custody
in November 2016 and it is apparent that, in addition to mother’s mental health and
father’s domestic violence issues, father’s substance abuse was of concern in that case
and the Agency’s efforts to address it were detailed in the report. Indeed, one of the
section 300 petition allegations stated mother had been evicted from her apartment due to
father showing up at the apartment and pounding on the door, being intoxicated, and
having “loud arguments” there. Father’s alcohol use had also resulted in his
incarceration, after having been placed on probation for a domestic violence offense.
Parents had been ordered to participate in counseling, a domestic violence program,
parenting education, substance abuse testing, and substance abuse assessments.
The Agency had referred father for an alcohol and drug assessment, an outpatient
treatment program, and a walk-in intake appointment that he eventually attended in May
2017. Although he began participating in the substance abuse program recommended
after his intake appointment, he attended only one group session in August 2017 and then
5 The juvenile court took judicial notice of siblings V.H.’s and G.P.’s case files, as
well as the half sibling A.L.’s case file. A.L. was mother’s older child for whom parental
rights had been terminated.
10
stopped attending. In October 2017, father agreed to re-engage in substance abuse
treatment after reporting that he “used to drink two-thirty six packs per day [sic]” but had
reduced his consumption to rewarding himself with about two beers on an occasion. He
denied using any other drugs except for marijuana. Father was re-referred to complete an
assessment, but father did not attend the scheduled assessment. Father’s drug abuse
testing was inconsistent⸺he failed to show for several substance abuse tests, tested
positive for THC in several tests, and tested negative in several other tests. Additionally,
after being discharged from his parenting education class for failure to attend, the
program social worker reported concerns about father’s sobriety. Father had also arrived
at a visit with the minor appearing to have “ ‘had a drink before the visit,’ ” resulting in
the caregiver ending the visit.
Thereafter, father did not participate in the newly required substance abuse
assessment, although he had recently provided one clean drug test. The juvenile court
ordered reunification services in V.H.’s case terminated and V.H. was placed in a plan of
guardianship. These records established that father’s substance abuse was an ongoing
concern in V.H.’s case, substance abuse treatment was a substantial component of his
case plan, and his substance abuse was at least part of the reason for V.H.’s continued
removal from father’s custody.
Likewise, the evidence also established that father’s ongoing substance abuse
continued to be a major concern and a barrier to maintaining custody of the minor in the
instant case.
The petition filed on behalf of the minor alleged parents’ failure or inability to
protect the minor generally and also due to parents’ mental illness, developmental
disability, or substance abuse. In this regard, the petition did not distinguish between
mother’s and father’s mental health or substance abuse issues. The petition factually
alleged father had been slurring and incoherent during his conversation with the social
worker and the social worker’s report elaborated that “father has a long history of
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substance abuse,” “describes himself as an alcoholic[,] and has stated that he continues to
use alcohol.” He also self-reported that he regularly uses marijuana and “cannot stop
using marijuana for any period longer than two weeks.” During visits to parents’ home,
father was unable to remember when his assessment was scheduled, appeared to be under
the influence of marijuana, and opened the door revealing heavy marijuana smoke.
Father was also reportedly intoxicated during several of the 11 domestic disturbance calls
over the four years between the termination of services in V.H.’s case and the disposition
in the minor’s case. Finally, the Agency expressed the opinion in the
jurisdiction/disposition report that it would be unsafe to return the minor to parents
because neither had addressed their mental health, anger management, and substance
abuse related needs. Indeed, the juvenile court cited parents’ continued mental health and
substance abuse issues as the reasons the minor could not be returned to parents’ home.
We find the evidence supports the finding that father’s untreated substance abuse
issues were similarly at the root of both his failure to reunify with sibling V.H. and the
problems manifest and necessitating removal in the instant matter. (Conservatorship of
O.B., supra, 9 Cal.5th at pp. 995-996.) Father suffers from substance abuse issues that
interfere with his ability to parent the minor and that prevented him from reunifying with
sibling V.H. Because we find present the required connection of problems between the
previous case involving sibling V.H. and this one, supporting the bypass of reunification
services pursuant to section 361.5, subdivision (b)(10), we need not also address the
evidence to support bypass pursuant to section 361.5, subdivision (b)(11) based on the
connection to the problems in the previous case involving sibling G.P.
B
Burden Of Proof
Father also contends the juvenile court misallocated the burden of proof when
deciding whether father had subsequently made reasonable efforts to treat the problems
leading to the siblings’ removal.
12
The juvenile court concluded, “[Father] does indeed have quite a bit going in his
life. He has made some efforts in particular with regard to the couples’ counseling, but
the [c]ourt does not find that he made sufficient evidence to qualify for that exception.”
The juvenile court continued: “I don’t find he has made those reasonable efforts. There
may be reasons for that, but I just don’t find that he has made sufficient reasonable efforts
to qualify for that exception to bypass.” Father reads these comments as demonstrating
that the juvenile court shifted the burden of proof to him to show that he qualified for an
exception to a bypass provision, rather than requiring the Agency establish that a bypass
exception to providing reunification services applied. We disagree.
Read in its entirety, and considering mother’s counsel having twice emphasized
the Agency’s burden of proof, the juvenile court’s ruling appears to be simply an
inartfully expressed conclusion that father had not made reasonable efforts to treat his
prior issues, without regard to any reference to burdens of proof. Moreover, any possible
misallocation of the burden of proof was not prejudicial here. It is clear that the juvenile
court understood it had to determine if father had made “reasonable efforts” and
concluded he had not. While the juvenile court expressed that mother’s efforts were a
“close call,” the only efforts it found father had made were with regard to couple’s
counseling. It did not find father made any effort at all to address his substance abuse
issues. Thus, it is not reasonably probable that, had the juvenile court expressly
considered whether the Agency had presented clear and convincing evidence that father
had not subsequently made a reasonable effort to treat the problems that led to the
siblings’ removal, rather than possibly considering whether father had shown he had
made reasonable effort, the juvenile court would have ordered that father receive
reunification services. (See People v. Watson (1956) 46 Cal.2d 818, 836.) We find no
reversible error.
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II
The ICWA
Prior to the detention hearing, the Agency reported it had asked mother, father,
and the maternal grandmother if they were aware of any Native American ancestry. The
maternal grandmother reported Cherokee ancestry and Cherokee was listed on the
ICWA-010, although the maternal grandmother also noted that she knew the minor’s
siblings, V.H. and G.P., were not Indian children within the meaning of the ICWA.
Father reported that he had heritage from Mexico and confirmed that the information
obtained in sibling V.H.’s case was correct. In November 2016, in sibling V.H.’s case,
mother had reported Cherokee ancestry and father had reported possible heritage with the
Yaqui Nation and the Chichimica tribe (which was not a federally recognized tribe). At
that time, father completed an ICWA-030 form with the assistance of the paternal aunt,
Patricia P., and the Agency noticed the Yaqui and Cherokee tribes. In February 2017, the
Agency received responses from all three Cherokee tribes that they would not be
intervening. The juvenile court found V.H. not to be an Indian child. In July 2018 in
sibling G.P.’s case, mother denied any Native American ancestry on behalf of herself and
father. The juvenile court found G.P. not to be an Indian child. Recognizing that “this is
a subsequent child, requiring a new inquiry,” the Agency reported it “will continue
efforts to inquire about Native American heritage.”
In its jurisdiction/disposition report and addendum thereto, the Agency reported
that mother had previously denied Native American ancestry but, based on the
information it had received from the maternal grandmother and father, it had contacted,
and later sent the ICWA notice via certified mail, to all three Cherokee tribes, the Pasqua
Yaqui tribe, and the Bureau of Indian Affairs. All four tribes responded that the minor is
not an Indian child or eligible for membership.
Although the juvenile court checked the box in the dispositional findings and
orders indicating the social worker had inquired of parents and the maternal grandmother
14
whether the minor might be an Indian child, it did not make any findings about the
applicability of the ICWA at or before the October 26, 2022 disposition hearing or the
December 7, 2022 review hearing from which parents appeal.
Parents now complain that the juvenile court failed to make its own inquiry of
parents upon parents’ first appearance, failed to order parents to complete parental
notification of Indian status forms in the instant case (ICWA-020), and failed to instruct
the parties to inform the court if they subsequently received information providing reason
to know the minor is an Indian child. (§ 224.2, subd. (c); Cal. Rules of Court, rule
5.481(a)(2)(c).) Parents also contend the Agency failed in its initial inquiry by not
inquiring about Native American ancestry from other extended family members for
whom it had some possible contact information, including the maternal grandfather,
paternal grandmother, paternal grandfather, and several paternal aunts. Finally, they
contend the ICWA notices sent to the tribes were missing some familial information they
believe was likely within the knowledge of the grandparents or parents. We agree with
the Agency that these ICWA claims on appeal are premature.
“The juvenile court and the [Agency] have an affirmative and continuing duty,
beginning at initial contact, to inquire whether a child who is subject to the proceedings
is, or may be, an Indian child. (Cal. Rules of Court, rule 5.481(a); § 224.2, subd. (a).)”
(In re G.A. (2022) 81 Cal.App.5th 355, 360, review granted Oct. 12, 2022, S276056; see
also In re K.M. (2009) 172 Cal.App.4th 115, 118-119.) “[I]f that initial inquiry creates a
‘reason to believe’ the child is an Indian child, then the Agency ‘shall make further
inquiry regarding the possible Indian status of the child, and shall make that inquiry as
soon as practicable.’ ” (In re D.S. (2020) 46 Cal.App.5th 1041, 1052; italics omitted.)
Here, the Agency obtained some information about possible Native American
ancestry from the maternal grandmother and father. It gathered some familial
information and provided it to the relevant tribes. But at the time parents filed their
notices of appeal, the juvenile court had yet to determine whether the Agency (and
15
juvenile court) had complied with the inquiry and notice provisions of the ICWA or
whether the ICWA applies to the proceedings.
On appeal, we review the ICWA findings and orders for substantial evidence.
(See In re D.S., supra, 46 Cal.App.5th at p. 1051.) Here, because the juvenile court did
not make a finding on the subject, we have no ICWA findings and orders to review and
any remarks we would make on the adequacy of the ICWA compliance would be
advisory. (See People v. Buza (2018) 4 Cal.5th 658, 693 [“We . . . abide by . . . a
‘ “cardinal principle of judicial restraint—if it is not necessary to decide more, it is
necessary not to decide more” ’ ”].) In other words, because the juvenile court has not
yet made a final ruling at or before the challenged hearing as to whether the ICWA
applies to the proceedings, parents’ claim of ICWA error is premature. That is, any
ICWA issues are not yet ripe for review. “ ‘Ripeness’ refers to the requirements of a
current controversy.” (City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 59.)
An issue is not ripe for review unless and until it is “sufficiently concrete to allow judicial
resolution even in the absence of a precise factual context.” (Pacific Legal Foundation v.
California Coastal Com. (1982) 33 Cal.3d 158, 170; see id. at pp. 170-172.)
The minor’s dependency case is still ongoing, so these and any other perceived
deficiencies with the ICWA inquiry and noticing can and should be brought to the
juvenile court’s attention and may be resolved during the normal course of the ongoing
dependency proceedings. (See In re M.R. (2017) 7 Cal.App.5th 886, 904 [ICWA claim
was premature where no final ICWA ruling was made at dispositional hearing].) Indeed,
“ ‘[c]ounsel should not forget that they are officers of the court, and while it is their duty
to protect and defend the interests of their clients, the obligation is equally imperative to
aid the court in avoiding error and in determining the cause in accordance with justice
and the established rules of practice.’ ” (Williams v. Superior Court (1996)
46 Cal.App.4th 320, 330.) Counsel’s obligation to the court addresses mother’s retort
that waiting until the juvenile court has made an ICWA finding, and the issue is ripe for
16
review, “does not make sense . . . because the juvenile court may not do so in a timely
manner” and it “discourages parties from raising any such errors at the earliest
opportunity.” If at any time, a parties’ counsel becomes aware that the juvenile court has
failed to make necessary findings or orders, or that the agency has failed to make
adequate inquiry under the ICWA, it is the obligation of counsel to promptly bring such
matters to the attention of the juvenile court.
DISPOSITION
Mother’s appeals are dismissed. The juvenile court’s October 26, 2022 orders and
judgment are affirmed.
/s/
ROBIE, J.
We concur:
/s/
EARL, P. J.
/s/
BOULWARE EURIE, J.
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