In re David B. CA2/4 ( 2024 )

Filed 2/22/24 In re David B. CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re DAVID B., a Person B329813
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No. 20CCJP05098A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
V.B.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lisa Brackelmanns, Judge Pro Tempore.
Conditionally affirmed and remanded with instructions.
Marissa Coffey, under appointment by the Court of Appeal,
for Defendant and Appellant.
Amir Pichvai, for Plaintiff and Respondent.
______________________________________________
Mother, V.B., appeals from an order terminating her
parental rights over her son, David B., at a Welfare and
Institutions Code section 366.261 hearing. She contends the
order must be reversed because the Department did not provide
notice of the proceedings to her conservator and the trial court
abused its discretion by denying her request to continue the
hearing. We conclude any error in failing to provide notice to
mother’s conservator was harmless beyond a reasonable doubt
and that the court did not abuse its discretion.
Mother also argues the Department of Children and Family
Services (Department) did not comply with its initial inquiry duty
under the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.
§ 1901 et seq.) and related California law. The Department
agrees, as do we, that the requirements imposed by ICWA were
not satisfied. Accordingly, we conditionally affirm the order and
remand the matter to ensure compliance with ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
A. Detention
In September 2020, a few days after mother gave birth to
David, the Department received a referral alleging mother was
under a “L[anterman] P[etris] S[hort] conservatorship” due to her
1 All statutory references are to the Welfare and Institutions
Code.
2
“severe” mental health condition. Mother’s conservator at the
time was a public guardian, but the public guardian informed a
social worker there was a court hearing set for October 14, 2020,
to see if David’s maternal grandfather would be appointed
mother’s conservator.
It was reported mother suffered from schizophrenia and
had a history of methamphetamine addiction. Mother allegedly
was delusional, hearing voices, and not coherent. Because of
mother’s “cognitive and functional impairment[s],” it was
reported mother was unable to care for herself or her newborn
child. Mother allegedly had “psychotic and paranoia episodes
very often.” Her psychiatrist explained, “[Mother] ‘[r]equires 24/7
supervision if she is with [David]’” and added mother could be a
danger to others if she did not take her medication.
A few days later, the Department filed a section 300
petition on David’s behalf alleging mother’s mental and
emotional issues and substance abuse placed David at risk of
serious harm.2 The ICWA-010(A) inquiry form attached to the
petition indicated mother and her public guardian stated David
had no known Indian ancestry. After the detention hearing,
where the juvenile court detained David in shelter care, maternal
grandfather was appointed mother’s conservator.
Mother, maternal grandfather, and mother’s counsel
appeared for mother’s arraignment in early November 2020. The
matter was continued to the following day to allow mother’s
counsel to speak with mother and maternal grandfather. The
2 The petition additionally alleged David’s half-sibling, E.V., was
a prior dependent of the juvenile court due to mother’s substance
abuse. In August 2016, the juvenile court terminated jurisdiction over
E.V. with sole legal and physical custody granted to E.V.’s father and
monitored visits ordered for mother.
3
next day, the juvenile court conducted a hearing and determined
mother did not need a guardian ad litem to proceed with the
dependency hearings. The court further inquired whether
mother had any “American Indian heritage,” to which mother’s
counsel replied, “[N]o, she does not.” An ICWA-020 parental
notification of Indian status form was also filed by mother’s
counsel on mother’s behalf indicating she did not have any Indian
ancestry. The court found ICWA did not apply to mother. In
addition, nonparty J.D. was found to be David’s alleged father.
David remained detained in shelter care and monitored visitation
was ordered for mother.
B. Jurisdiction and Disposition Report and Hearing
David was later placed with his maternal great aunt, R.C.
Mother was living with maternal grandfather, who reported that
he took care of mother “‘24/7.’” The social worker interviewed
mother about the petition’s allegations, and mother claimed, “‘I
just have stress and anxiety. I don’t see things, not me. Someone
is doing this to me. I know people can do this to me through the
internet. . . . I do hear voices they ask me for money. They ask
me that if when my mom dies am I willing to give the voices
money [sic].’” Mother further stated she had been put on “‘many
5150 holds . . . because of the drugs’” and confirmed she had a
long history of methamphetamine use. Mother visited with
David, but David’s caregiver, R.C., expressed mother would not
engage with the child and appeared to be disconnected during
visits.
The social worker also interviewed maternal grandfather.
Maternal grandfather stated there had “been so many
hospitalizations. Countless times” “because of the amount of
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drugs she consumed so the [doctors] probably thought she was
trying to [commit] suicide.” Maternal grandfather revealed
mother told him the voices she heard wanted her to relapse.
At the adjudication hearing in January 2021, the juvenile
court sustained the petition as pled. David was declared a
dependent and removed from parental custody. The juvenile
court ordered the Department to provide reunification services to
mother. Visitation was ordered to remain monitored.
C. Six-Month Review Period
Mother continued residing with maternal grandfather and
was in partial compliance with her case plan. During this period,
mother was hospitalized multiple times due to
methamphetamine use and experiencing “psychotic and paranoia
episodes.” Mother told the social worker she was hearing voices
in her head urging her to use methamphetamine and was having
recurring thoughts of using the drug again.
Mother was dropped from her court-ordered programs due
to her hospitalizations. When not hospitalized, mother was
compliant with her visitation, although she only visited for one to
two hours. While mother at times appeared coherent at visits,
David’s caregiver stated in most instances mother appeared slow
in processing information and looked sedated.
At the six-month review hearing in August 2021, the
juvenile court found mother was in partial compliance with her
case plan and continued reunification services.
5
D. 12-Month Review Period
In October 2021, J.D. was found to be David’s biological
father. The juvenile court ordered reunification services for J.D.
and found ICWA did not apply to him.
During this review period, mother experienced consecutive
hospitalizations for her mental health that precluded her from
completing her case plan. The social worker was unable to
contact mother during this period. Further, mother was unable
to visit David regularly due to her hospitalizations. For visits
that did occur, R.C. reported mother visited for only 20 to 30
minutes and rarely was able to meet David’s needs. R.C.
indicated mother continued lacking parenting skills “due to being
withdrawn and having difficulty making functional and rational
choices to increase her bonding.” R.C. stated that during a visit,
mother secretly gave David a Cheeto that caused David to start
choking. R.C. had to quickly remove the Cheeto from David’s
throat “as [mother] sat there with a blank stare.” R.C. believed
maternal grandfather was not ensuring mother was complying
with her medications.
At the 12-month review hearing in November 2021, the
juvenile court found the parents’ compliance with their case plans
was not substantial, but their services were continued.
E. 18-Month Review Period
Mother was again hospitalized multiple times for her
mental health issues and made little progress with her court-
ordered case plan. Mother’s visits were inconsistent and lasted
only 20 to 30 minutes each. R.C. continued reporting mother
lacked parenting skills and was hearing voices. The Department
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assessed there was a high risk of harm to David’s physical and
emotional health if returned to mother’s custody.
At the 18-month review hearing in June 2022, the juvenile
court determined mother’s progress in her case plan was
unsubstantial and terminated her reunification services. As to
J.D., his reunification services were continued for four months.
Because R.C. and her husband were unable to provide a
permanent home for David, he was placed with a paternal uncle
and his fiancé in September 2022. Concerning ICWA, in January
2023, R.C. told the Department her family did not have any
Indian heritage. At a review hearing in early October 2022, at
which neither mother nor maternal grandfather appeared, J.D.’s
reunification services were terminated. The court then set a
section 366.26 hearing for January 31, 2023, to select and
implement a permanent plan for David.
F. Section 366.26 Hearings
The Department subsequently served mother with notice of
the section 366.26 hearing by certified mail, return receipt
requested. The Department’s report for the hearing was not
attached to the notice.
Mother was present at the section 366.26 hearing on
January 31, 2023, without maternal grandfather. The juvenile
court asked mother’s counsel whether counsel had any objection
to the court finding notice of the hearing was proper. Mother’s
counsel had no objection. The Department informed the court
additional time was needed to obtain all adoption readiness
documents. The court continued the matter to May 1, 2023, to
allow the Department to complete the adoption assessment and
ordered mother back for the continued hearing.
7
After David was placed with his paternal caregivers in
September 2022, mother did not have any visits until February
2023. The paternal caregivers did not have mother’s contact
information and incorrectly believed mother’s visitation rights
were terminated. Mother also stated she did not have the
caregivers’ contact information but wanted visits. When visits
resumed, it was reported mother still did not engage with David
and instead followed maternal grandfather while he followed
David. The Department attempted to address these issues with
mother and maternal grandfather via text message in March
2023 but did not receive a response.
The Department served notice of a review hearing set for
April 3, 2023, on mother and maternal grandfather. Neither
appeared at the hearing, and the juvenile court ordered adoption
as the permanent plan for David. Notice of the May 1, 2023,
section 366.26 hearing was then sent to mother by first-class mail
at maternal grandfather’s residence.
Neither mother nor maternal grandfather were present at
the May 1, 2023, hearing. Mother’s counsel explained he was not
able to contact mother but “did speak with the maternal
grandfather, who indicated mother may be in an inpatient drug
program.” Mother’s counsel requested a continuance to make
further efforts to reach mother but admitted, “I concede notice is
proper.” The court denied the continuance request. Mother’s
counsel then argued the parental benefit exception to adoption
applied and requested a plan of legal guardianship be ordered.
The court determined no exception to adoption applied and
terminated parentals rights. Lastly, the court found there was
no reason to know David was an Indian child as defined under
ICWA.
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Mother timely appealed the order.
DISCUSSION
A. Any Failure to Give Mother’s Conservator Notice of,
or Require Her Conservator to Appear for, the
Section 366.26 Proceedings was Harmless Beyond a
Reasonable Doubt
Mother asserts notice to her of the section 366.26
proceedings was improper because her conservator, maternal
grandfather, did not get notice of the hearings and was not
provided with copies of the Department’s section 366.26 reports.
Further, mother asserts the juvenile court should have ordered
mother’s conservator to appear for the proceedings but did not do
so. The Department argues, in pertinent part, that any failure to
give notice to mother’s conservator or require him to be present
for the proceedings was harmless beyond a reasonable doubt. We
agree with the Department.
Until parental rights are terminated, parents are entitled
to notice at each step of the juvenile proceedings as a matter of
statute and due process. (§ 294; In re DeJohn B. (2000) 84
Cal.App.4th 100, 106.) Notice must be reasonably calculated to
apprise the parent of the pendency of the action and afford the
parent an opportunity to present any objections. (In re Daniel S.
(2004) 115 Cal.App.4th 903, 909 (Daniel S.).) Additionally, a
failure to provide parents with a copy of the social worker’s report
that the juvenile court will rely on in coming to a decision is a
denial of due process. (In re Crystal J. (1993) 12 Cal.App.4th 407,
413.) However, errors in notice do not automatically require
reversal. (Daniel S. at p. 912.) We review such errors to
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determine whether they are harmless beyond a reasonable doubt.
(Id. at pp. 912–913.)
Furthermore, “when a dependency court is informed that a
conservator has been appointed for a party, the dependency court
also has a sua sponte obligation either to appoint a [guardian ad
litem] for that party or to order that the party shall appear
through his or her conservator.” (In re A.C. (2008) 166
Cal.App.4th 146, 155.) But the failure to appoint a guardian ad
litem or to compel a parent’s conservator to appear does not
violate due process rights and is subject to the harmless error
standard. (Id. at pp. 148, 157 [we do not set aside the judgment
unless a different result would have been probable had the error
not occurred].)
The record does not show maternal grandfather was served
with notice of the section 366.26 hearings or provided with copies
of the Department’s reports prepared for the proceedings.
However, when asked by the juvenile court whether there was
any objection to finding notice of the January 31, 2023, hearing
was proper, mother’s counsel affirmatively stated there was none.
At the May 1, 2023, hearing, mother’s counsel expressly conceded
notice was proper.3 A party’s failure to object to lack of notice
forfeits the issue on appeal. (In re Sabrina H. (2007) 149
Cal.App.4th 1403, 1419; In re P.A. (2007) 155 Cal.App.4th 1197,
1209–1210.) Nevertheless, as the Department does not assert
mother forfeited the issues regarding notice she raises, we reach
the merits of mother’s arguments.
3 Given that mother’s counsel conceded notice was proper and
stated counsel had spoken with maternal grandfather before the
hearing, the court could have reasonably inferred maternal
grandfather had actual notice of the hearing. (See In re Desiree M.
(2010) 181 Cal.App.4th 329, 335.)
10
Mother cites to Daniel S., supra, 115 Cal.App.4th 903, in
contending the failure to properly notice maternal grandfather
was prejudicial. In Daniel S., the child was placed in protective
custody after the mother, “a chronic paranoid schizophrenic,”
“was placed on a section 5150 hold because she was considered a
danger to herself and others.” (Id. at p. 908.) After a temporary
conservatorship was established over the mother, the juvenile
court appointed a guardian ad litem for her. (Id. at pp. 909, 911,
fn. 7.) Thereafter, the juvenile court sustained the petition
against mother at the jurisdiction and disposition hearing. (Id. at
p. 909.)
The mother appealed, arguing the jurisdiction and
disposition orders had to be reversed because she was not
properly noticed. (Daniel S., supra, 115 Cal.App.4th at p. 909.)
The appellate court held the social services agency did not have
to serve the mother with notice, given her mental state. (Id. at
p. 911.) Instead, notice of the proceedings should have been
served on the mother’s temporary conservator, and thus, she was
not properly notified of the hearing. (Id. at pp. 911–912.)
However, the failure to provide notice to the mother’s conservator
was harmless beyond a reasonable doubt because the result of
the hearing would have been the same. (Id. at p. 914.) “There
was simply no defense to the petition and no alternative but to
remove [the child] from [the mother’s] care.” (Ibid.) At the time
of the hearing, she was still hospitalized and could not care for
herself or anyone else, and she was not stabilizing on her
medication. (Ibid.)
Here, mother contends that unlike in Daniel S., the failure
to notice maternal grandfather was prejudicial because maternal
grandfather could have ensured mother appeared, or could have
11
appeared himself and explained mother’s absence, if he was
properly noticed. Even if we assume it was error not to provide
maternal grandfather with notice of the hearings or copies of the
Department’s reports, or to otherwise require maternal
grandfather to appear, mother does not show reversal of the
order terminating her parental rights is required. The main
issues at a section 366.26 hearing are whether the child is likely
to be adopted and whether there is a statutory exception to
adoption. The evidence supported the finding David was likely to
be adopted, as the paternal caregivers he was placed with were
attached to David and wanted to pursue adoption. And David
was observed to be well-bonded with the paternal caregivers and
referred to them as “‘mom’” and “‘dad.’”
Once the juvenile court finds it is likely the child will be
adopted, section 366.26, subdivision (c)(1), requires termination
of parental rights unless an exception in subdivision (c)(1)(A) or
(c)(1)(B) applies. One of these is the parental benefit exception,
which mother’s counsel argued applied at the May 1, 2023,
hearing. (§ 366.26, subd. (c)(1)(B)(i).) In order to establish this
exception applies, a parent must prove three elements:
(1) “regular visitation and contact with the child, taking into
account the extent of visitation permitted”; (2) that “the child has
a substantial, positive, emotional attachment to the parent—the
kind of attachment implying that the child would benefit from
continuing the relationship”; and (3) that terminating the parent-
child attachment “would be detrimental to the child even when
balanced against the countervailing benefit of a new, adoptive
home.” (In re Caden C. (2021) 11 Cal.5th 614, 636.)
The record shows mother could not have established the
parental benefit exception in this case, and neither mother’s nor
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maternal grandfather’s appearance would have changed this
result. Mother’s visitation throughout the duration of the case
was sporadic and inconsistent. When mother did have visits, she
did not engage with David and was largely unable to meet his
needs. During the 12-month and 18-month review periods,
mother visited for only 20 to 30 minutes and appeared
withdrawn. Mother’s counsel did not object to any of the
Department’s evidence at the May 1, 2023, hearing. Nor was the
evidence contradicted. Moreover, nothing in mother’s history of
visits suggests she formed a connection with David sufficient to
warrant finding the termination of parental rights would be
detrimental to David.
Mother contends she or maternal grandfather could have
objected to the interruption in visitation she experienced after
David was placed with the paternal caregivers if mother or
maternal grandfather were present for the hearing. However,
mother stops short of claiming such an objection would have
impacted the juvenile court’s analysis of the parental benefit
exception. The record shows that once visits resumed, the quality
of visits continued to be poor as mother was still not engaging
with David. Perhaps this is why mother’s counsel, who spoke
with maternal grandfather before the hearing, did not raise an
objection based upon the interruption in visits.
Based on the foregoing, any error in the Department failing
to give maternal grandfather notice of the section 366.26
hearings, to provide copies of the section 366.26 reports, or to
compel maternal grandfather to appear was harmless beyond a
reasonable doubt. (Daniel S., supra, 115 Cal.App.4th at p. 914;
see also In re James F. (2008) 42 Cal.4th 901, 918 [reversal not
13
required where outcome of proceeding not affected by lack of
notice].)
B. The Juvenile Court Did Not Abuse its Discretion in
Denying the Request to Continue the Section 366.26
Hearing
Next, mother argues the trial court abused its discretion in
denying her counsel’s request for a continuance at the May 1,
2023, hearing. We disagree.
“Section 352 provides that courts may ‘continue any
hearing’ under the dependency law ‘beyond the time limit within
which the hearing is otherwise required to be held’ (§ 352,
subd. (a)(1)), provided there is ‘good cause’ (id., subd. (a)(2)) and a
continuance would not be ‘contrary to the interest of the minor’
(id., subd. (a)(1)). In evaluating the minor’s interest, the court
‘shall give substantial weight to a minor’s need for prompt
resolution of his or her custody status, the need to provide
children with stable environments, and the damage to a minor of
prolonged temporary placements.’” (Michael G. v. Superior Court
(2023) 14 Cal.5th 609, 632.) We review the juvenile court’s
decision to deny a continuance for abuse of discretion. (In re D.Y.
(2018) 26 Cal.App.5th 1044, 1056.) A court abuses its discretion
when its decision is arbitrary, capricious, or patently absurd and
results in a manifest miscarriage of justice. (Ibid.) “‘The
appropriate test for abuse of discretion is whether the trial court
exceeded the bounds of reason. When two or more inferences can
reasonably be deduced from the facts, the reviewing court has no
authority to substitute its decision for that of the trial court.’
[Citation.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 318–319.)
14
At the May 1, 2023, hearing, after informing the juvenile
court maternal grandfather indicated mother may be in an
inpatient drug program, mother’s counsel requested a
continuance “out of an abundance of caution” so that counsel
could make further efforts to “discuss with mother the
recommendations for today and obtain any information about . . .
progress in programs.” Counsel did not identify any other basis
for a continuance. Mother’s counsel conceded notice for the
hearing was proper, and mother offers no explanation as to why
any other information maternal grandfather had about mother’s
whereabouts could not have been shared with counsel prior to the
hearing.
Although mother asserts she “would likely have appeared”
for a continued hearing date and testified about interruptions in
her visitation and her bond with David, as discussed above,
mother does not establish her testimony would have changed the
outcome of the hearing. Mother’s counsel did not explain to the
juvenile court how mother’s testimony would establish an
exception to adoption, such that the court should further delay
David’s permanent placement. The juvenile court acted within
its discretion in deciding the need for prompt resolution and
providing David with a stable environment outweighed mother’s
request for a continuance. Under these circumstances, the
juvenile court’s decision to proceed with the section 366.26
hearing without mother present was not arbitrary, capricious, or
patently absurd.
C. Further ICWA Inquiry was Required in this Case
Mother argues the Department failed to fulfill its duty of
initial inquiry required by ICWA, as it did not inquire of several
15
known and available maternal relatives about potential Indian
heritage. The Department concedes further inquiry into David’s
ancestry is necessary.
“ICWA was enacted to curtail ‘the separation of large
numbers of Indian children from their families and tribes
through adoption or foster care placement’ [citation], and ‘to
promote the stability and security of Indian tribes and families by
establishing . . . standards that a state court . . . must follow
before removing an Indian child from his or her family’
[citations].” (In re Dezi C. (2022) 79 Cal.App.5th 769, 780, review
granted Sept. 21, 2022, S275578 (Dezi C.).) Whether ICWA
applies depends on whether the child who is the subject of the
custody proceeding is an Indian child. (In re Abbigail A. (2016) 1
Cal.5th 83, 90.) Both ICWA4 and state statutory law define an
“Indian child” as a child who is either a member of an Indian
tribe or is eligible for membership in an Indian tribe and is the
biological child of a member of an Indian tribe. (25 U.S.C.
§ 1903(4); accord, § 224.1, subds. (a), (b).)
Under state law, the juvenile court and the Department
have “an affirmative and continuing duty to inquire whether a
child for whom a petition under Section 300 . . . may be or has
been filed, is or may be an Indian child.” (§ 224.2, subd. (a); see
In re Isaiah W. (2016) 1 Cal.5th 1, 9, 11–12.) The duty of inquiry
includes, but is not limited to, “asking the child, parents, legal
guardian, Indian custodian, extended family members, others
who have an interest in the child, and the party reporting child
abuse or neglect, whether the child is, or may be, an Indian
4 Our state Legislature incorporated ICWA’s requirements into
California statutory law in 2006. (In re Abbigail A., supra, 1 Cal.5th at
p. 91.)
16
child.”5 (§ 224.2, subds. (a), (b).) If this initial inquiry creates a
“reason to believe” a child is an Indian child, the Department is
required to “make further inquiry regarding the possible Indian
status of the child, and shall make that inquiry as soon as
practicable.” (§ 224.2, subd. (e); In re D.S. (2020) 46 Cal.App.5th
1041, 1052.) The juvenile court may find that a child is not an
Indian child if the agency’s “proper and adequate” inquiry and
due diligence reveals no “reason to know” the child is an Indian
child. (§ 224.2, subd. (i)(2); In re D.S., supra, 46 Cal.App.5th at
p. 1050.) “We review claims of inadequate inquiry into a child’s
Indian ancestry for substantial evidence.” (In re H.V. (2022) 75
Cal.App.5th 433, 438.)
Mother contends the Department failed to fulfill its duty of
initial inquiry required by ICWA and state law. The Department
concedes its inquiry efforts as to mother’s heritage were
insufficient, and we agree. Aside from asking mother, maternal
grandfather, and R.C. about possible Indian ancestry, the
Department failed to discuss mother’s heritage with any other
maternal relatives. ICWA requires social services agencies to ask
a child’s available extended family members whether the child is
or may be an Indian child. (§ 224.2, subd. (b).) The Department
did not ask any of the several maternal relatives it had contact
with or was aware of about David’s potential status as an Indian
child. The Department further concedes its inquiry error in this
case was prejudicial and further investigation into David’s Indian
ancestry is warranted. We agree and remand for the Department
5 “[E]xtended family members” include adults who are the child’s
“grandparent, aunt or uncle, brother or sister, brother-in-law or sister-
in-law, niece or nephew, first or second cousin, or stepparent.” (25
U.S.C. § 1903(2); § 224.1, subd. (c) [adopting federal definition].)
17
to conduct further investigation into David’s Indian ancestry
through mother.
DISPOSITION
The order terminating mother’s parental rights is
conditionally affirmed. The matter is remanded with instructions
to the Department and the juvenile court to conduct further
ICWA inquiry as soon as practicable. If that inquiry reveals
evidence of Native American heritage, then the Department and
the court must comply with the additional ICWA requirements,
including, if applicable, the notice requirements of section 224.3.
If it does not, then the order shall stand.
MORI, J.
We concur:
CURREY, P. J.
COLLINS, J.
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