In re M.C. CA4/3 ( 2024 )

Filed 9/12/24 In re M.C. CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re M.C., a Person Coming Under
the Juvenile Court Law.
ORANGE COUNTY SOCIAL G064088
SERVICES AGENCY,
(Super. Ct. No. 21DP0066)
Plaintiff and Respondent,
OPINION
v.
A.C.,
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County,
Joseph Kang, Judge. Affirmed.
Tracy M. De Soto, under appointment by the Court of Appeal, for
Defendant and Appellant.
Leon J. Page, County Counsel, Debbie Torrez and Deborah B.
Morse, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minor.
* * *
A.C. (Mother) is before us a second time on appeal from an order
terminating her parental rights. In the first appeal, we conditionally reversed
the order, after concluding respondent Orange County Social Services Agency
(SSA) failed to comply with the California Indian Child Welfare Act (ICWA)
by not inquiring of several maternal relatives. We remanded the matter to
the juvenile court for the limited purpose of allowing SSA to comply with
ICWA. (Orange County Social Services Agency v. A.C. (Aug. 1, 2023,
G062205) [nonpub. opn.].)
Following remand, the juvenile court held a hearing where it
accepted evidence of additional ICWA inquiries. Mother was not present, but
her counsel was present. After considering the evidence and hearing
arguments, the court found ICWA did not apply, and affirmed the order
terminating parental rights. Mother appeals, arguing the order must be
reversed because she did not receive notice of the hearing. We conclude any
notice error was harmless, and accordingly, affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I.
PRIOR APPEAL
The factual background of the case can be found in our prior
opinion. (See Orange County Social Services Agency v. A.C. (Aug. 1, 2023,
G062205) [nonpub. opn.].) As to ICWA, Mother repeatedly denied Native
American Indian heritage to various social workers and to the court.
Although Mother provided no names of any relatives for social workers to
interview about the applicability of ICWA, a social worker was able to contact
Mother’s sister, who reported the family did not have any Native American
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Indian heritage. SSA did not attempt to contact Mother’s father or brother,
although Mother had reported she was in contact with them as part of her
drug rehabilitation program. (Ibid.) As to the alleged father, Mother stated
he did not have any Native American Indian heritage. Although Mother
provided the alleged father’s contact information, a social worker could not
contact him by phone. The social worker also drove to the physical address
she was provided, but a resident informed her that no one by the alleged
father’s name lived in the home. (Ibid.) On this record, we concluded SSA
failed to comply with the initial inquiry requirement because it made no
attempt to contact the maternal grandfather or uncle. We remanded the
matter for the limited purpose of allowing SSA to comply with ICWA. (Ibid.)
II.
POST-REMAND PROCEEDINGS
After remand, SSA prepared a new Welfare & Institutions Code
section 366.261 report (the report). SSA reported that on April 4, 2024, a
social worker inquired of the maternal grandfather, maternal uncle, and
maternal cousin. All three denied any Native American Indian heritage. On
April 5, 2024, a social worker spoke with the maternal aunt, who denied any
Native American Indian heritage in the maternal side of the family. SSA
noted that Mother had not visited the minor for approximately a year, and
had not been in contact with SSA. A social worker also unsuccessfully tried to
contact Mother. The report noted that Mother recently had been arrested for
possession of a controlled substance, and there was a hearing on the charge
scheduled for March 8, 2024.
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All further statutory references are to the Welfare and
Institutions Code, unless otherwise stated.
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At a hearing on February 27, 2024, the juvenile court accepted
the new report. Mother’s counsel objected to the termination of parental
rights, but did not raise any objection to notice or the applicability of ICWA.
After considering the report, the court found Mother had received proper
notice and that ICWA does not apply. It terminated parental rights and
ordered the minor to be placed for adoption.
DISCUSSION
Mother contends the juvenile court’s order must be reversed
because her due process rights were violated when SSA failed to notify her of
the ICWA hearing. She cites cases holding that the failure to properly notice
a selection and implementation hearing is a structural error. However,
Mother misinterprets the limited remand. The case was not remanded for a
new section 366.26 hearing, but to cure an ICWA error. (See In re Terrance B.
(2006) 144 Cal.App.4th 965, 972 [“The remittitur defined the scope of the
juvenile court’s jurisdiction by ordering the court to reinstate the judgment
terminating parental rights, thereby foreclosing the right to a new selection
and implementation hearing, if ICWA did not apply.”]; In re Francisco W.
(2006) 139 Cal.App.4th 695, 707 [“Curing the ICWA error is distinct and
separate from the section 366.26 protections”].) Thus, the cited cases are
inapplicable.
Nevertheless, in In re Justin S. (2007) 150 Cal.App.5th 1426(Justin S.), the appellate court concluded that following a limited remand for
compliance with ICWA noticing provisions to Indian tribes, “the appellant-
parent must be given the opportunity to participate in the proceedings on
remand” with the assistance of counsel. (Id. at p. 1436.) The Justin S. court
distinguished a similar case on the basis that, “when the juvenile court
conducted the ICWA compliance hearing, the parents were represented by
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counsel, who, presumably, had received notice of the remand proceedings.”
(Id. at p. 1434.) Here, SSA attempted to contact Mother, and her counsel was
present at the ICWA hearing. Thus, it can be inferred counsel received notice
of the remand proceedings. Accordingly, Mother received all notice she was
due under caselaw.
In any event, any notice error is harmless. (See In re Dezi C.
(Aug. 19, 2024, No. S275578) __ Cal.5th __, at fn. 11 [2024 Cal. LEXIS 4636]
(Dezi C.).) [ICWA error reviewed for prejudice under People v. Watson (1956)
46 Cal.2d 818].) Substantial evidence supports the juvenile court’s finding
that the inquiry was adequate and ICWA does not apply. (See In re Dezi C.,
supra, __ Cal.5th __ [2024 Cal. LEXIS 4636] [following remand, “the juvenile
court’s finding regarding the adequacy of the inquiry and ICWA’s
applicability is subject to a deferential standard of review”].) Mother has
consistently and repeatedly denied Native American Indian heritage. SSA
also inquired of numerous relatives, including the maternal grandfather and
maternal uncle, who were specifically noted in our prior opinion, and all
denied any Native American Indian ancestry. Mother does not suggest any
other relative who should be queried. Nor does she proffer any evidence
suggesting there may be Native American Indian ancestry in her family.
Thus, nothing suggests that had Mother been properly notified about the
ICWA hearing, the juvenile court would have made different ICWA findings.
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DISPOSITION
The juvenile court’s order terminating parental rights over M.C.
is affirmed.
DELANEY, J.
WE CONCUR:
GOETHALS, ACTING P. J.
MOTOIKE, J.
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