In re P.T. CA2/1 ( 2023 )

Filed 10/31/23 In re P.T. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 ONE
In re P.T., a Person Coming Under B325094, B326409
the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 19CJP04357)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
TARA S.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Gabriela H. Shapiro, Judge Pro Tempore. Affirmed.
William Hook, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, Kimberly Roura, Deputy County
Counsel, for Plaintiff and Respondent.
___________________________________
Tara S. (mother) appeals from a juvenile court’s post-
judgment orders after the court concluded that mother’s son,
P.T., was a dependent under Welfare and Institutions Code
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section 300. Mother contends the Los Angeles County
Department of Children and Family Services (DCFS or the
department) and the juvenile court failed to conduct the inquiry
required by the Indian Child Welfare Act of 1978 (ICWA) (25
U.S.C. § 1901 et seq.) and the Welfare and Institutions Code.
She further contends the court abused its discretion in denying
her request for a continuance. We disagree with both contentions
and thus affirm the order.
BACKGROUND
A. Dispositional Proceedings
On July 10, 2019, DCFS filed a petition under section 300
alleging dependency jurisdiction over P.T. after a sibling was
found in a home where a police raid discovered a large amount of
cocaine. DCFS contended P.T. was at risk of harm because
mother had left the sibling with the child’s godfather for weeks at
a time, and the godfather was engaged in criminal drug activity
while the sibling was there. In an amended petition, DCFS
alleged mother and P.T.’s father (father) had a history of
domestic violence. The court found the allegations to be true and
assumed jurisdiction over the matter. At the conclusion of the
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Unspecified statutory references are to the Welfare and
Institutions Code.
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disposition hearing on October 10, 2019, the court declared P.T. a
dependent, placed him with the paternal grandmother, and
ordered mother to participate in reunification services consisting
of a domestic violence support group, random drug testing,
individual therapy, and monitored visits.
On February 23, 2022, the court held a 24-month review
hearing, at the conclusion of which it found that mother had
made no substantial progress toward alleviating the causes
necessitating P.T.’s placement. The court terminated
reunification services and scheduled a section 366.26 permanency
hearing.
For the permanency hearing, the paternal grandmother
reported there had been ongoing issues with mother, including
mother being upset that the grandmother was unwilling to lie
about the visitation. She was unwilling to monitor visits for
mother after the case closed, and instead planned to pursue a
restraining order. The grandmother did not believe anyone else
would be willing to monitor visits.
Mother reported there were no friends or relatives who
could monitor visits due to the distance to P.T.’s placement, and
the maternal grandmother could not monitor visits outside of the
home because she was older. Mother said she did not understand
why “everything [was] put on [her]” to make a plan for monitored
visits after the case closed, and said the case should not close
without a plan in place. Mother wanted P.T. placed with the
maternal grandmother so she could visit in the home. Mother
said she could not afford a monitor, and stated she wanted the
court to explore other options. Mother also wanted a halfway
point for visits.
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On November 15, 2022, the court held a section 366.26
hearing. DCFS and P.T.’s counsel both requested that the court
terminate dependency jurisdiction with an order putting P.T. into
legal guardianship with the paternal grandmother. They also
requested that mother receive visits monitored by a paid
provider.
Mother opposed legal guardianship on the ground that the
paternal grandmother was an unsuitable guardian. She
requested that the court retain jurisdiction, in part because she
could not afford to pay a visitation monitor, and thus needed
DCFS to continue monitoring visitation until some other solution
was found or until she was granted unmonitored visits.
Mother also requested that the court continue the hearing
for a couple weeks so she could find an appropriate monitor.
The court found that the paternal grandmother had
provided appropriate care for the child and ordered legal
guardianship with her as his permanent plan. The court found
that mother’s visitation issue was not an appropriate basis for
continued jurisdiction, and therefore declined to retain
jurisdiction.
The court found that mother refused to allow a babysitter
to monitor visitation, and due to mother’s past behavior there
were no other willing monitors. Specifically, the paternal
grandmother could not monitor due to an interpersonal conflict
with mother and a stay-away order. The court stated, “The
biggest issue that I see is that there is no other relative or
individual the mother has proffered who can provide visitation at
this time, and monitor on behalf of the mother.”
The court asked if mother’s counsel was aware of anyone
who would be an appropriate monitor, and counsel responded
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that mother had “people in her life who might be able to do it,”
such as her parents and “other friends and family members who
might be able to do it,” and said, “so I think that we should try to
put in place another monitor.”
The court found that reunification services had been
terminated eight months before the current hearing, and mother
still had no definitive information on any potential monitor
despite ongoing discussions among the parties on the matter.
The court therefore denied a continuance on the ground
that mother’s inability to find an appropriate monitor was not
good cause to delay P.T.’s permanency plan.
The court terminated jurisdiction and issued exit orders
naming the paternal grandmother as P.T.’s legal guardian and
granting mother visitation with a paid monitor.
B. ICWA Proceedings
DCFS attached to its section 300 petition an “Indian Child
Inquiry Attachment,” California Judicial Council form ICWA-
010(A), stating that an “Indian child inquiry [was] made.” The
social worker who filled out the form checked the box next to the
words, “The child may have Indian ancestry,” and noted on the
form that “The mother reported the child might have Indian
Ancestry[.]” In its July 10, 2019 report for the detention hearing,
DCFS noted that mother had stated “[ICWA] may apply,” that
P.T. may be Cherokee, and that DCFS had been unable to contact
father. On her “Parental Notification of Indian Status” form,
California Judicial Council form ICWA-020, mother checked the
box next to “I may have Indian ancestry” and wrote in “Blackfoot
& Cherokee” next to “Name of tribe(s).” The record contains no
ICWA-020 form for father.
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Both mother and father appeared at the detention hearing,
where mother again asserted that “she has American Indian
ancestry Blackfoot and Cherokee,” but that she was not a
registered member of “either of those tribes.” In response to the
juvenile court’s inquiry, mother stated she believed her great-
grandfather, whom she identified as “George” and who was
deceased, had been a registered member of a tribe. The juvenile
court inquired whether mother “know[s] anyone in [her] family
who might have more information regarding American Indian
ancestry.” Mother responded, “Not at the moment.” The juvenile
court then ordered DCFS “to do further investigation with the
mother and any relatives regarding American Indian ancestry
with those two tribes and notice to, well, the two Cherokee tribes
and the Blackfoot tribe or tribes.”
Father told the court P.T. may also have American Indian
ancestry through his “great, great, great grandmother,”
Josephine R., but he did not know what tribe. When asked if he
“kn[e]w anybody who might know any further information
regarding Indian heritage,” father responded, “I’ll probably have
to get back at you . . . .” On the record, the juvenile court
deferred ICWA findings pending DCFS’s inquiry. In its minute
order regarding the hearing, the juvenile court stated, “The Court
does not have a reason to know that ICWA applies as to Mother,”
“Department to do further investigation regarding ICWA,” and
“Tribes to be noticed.”
DCFS detailed its ICWA inquiry status in a report to the
juvenile court in advance of the jurisdiction and disposition
hearing, scheduled for August 21, 2019. DCFS reported that it
followed up with mother and father on July 23, 2019. Mother
“confirmed her claim of having Native American [a]ncestry,” but
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“declined to provide further relative information.” Father
“confirmed his claim of having Native American [a]ncestry,”
“declined to provide further information, and denied knowing
what tribe his relatives belonged to.” On July 27, 2019, DCFS
sent notice to “the Secretary of the Interior and the respective
Cherokee and Blackfoot tribes via Certified Mail . . . .” Responses
from both the Blackfeet Tribe and the Eastern Band of Cherokee
Indians stated that Princeton was not eligible for enrollment and
was not an “Indian Child” under ICWA. The record contains no
responses from the other noticed entities.
After a hearing on August 21, 2019, the juvenile court
entered a minute order stating: “The court does not have a
reason to know that this is an Indian Child, as defined under
ICWA, and does not order notice to any tribe or the [Bureau of
Indian Affairs]. Parents are to keep [DCFS], their Attorney and
the Court aware of any new information relating to possible
ICWA status. ICWA-020, the Parental Notification of Indian
Status is signed and filed.”
At jurisdiction and disposition hearings in September and
October 2019, the juvenile court sustained DCFS’s petition as to
both mother and father, ordered that P.T. continue to be detained
from his parents, and ordered family reunification services. The
only notation regarding ICWA in the minute order from the
disposition hearing is “No ICWA.”
Mother appealed this order, claiming that DCFS failed to
conduct a reasonable investigation into P.T.’s Indian heritage.
We affirmed the order, holding that Indian ancestry or
heritage is not the test for being an Indian child as defined in
ICWA; to be an Indian child requires that the child be either a
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member of a tribe or a biological child of a member. (DCFS v.
Tara S. (In re P.T.) (July 23, 2020, B302043) [nonpub. opn.].)
At a section 366.26 hearing held on June 27, 2022, mother
told the court that her great-aunt might have further information
about possible Indian ancestry. The court ordered DCFS to
contact the great-aunt, who said it was possible “George N.,” her
father, belonged to a Cherokee or Blackfeet tribe. The social
worker subsequently mailed inquiry letters and followed up with
emails to the Blackfeet and Cherokee tribes.
At a section 366.26 hearing on August 23, 2022, the court
ordered the department to interview the paternal grandmother
regarding the family’s possible Indian ancestry.
Neither parent has ever indicated that she, he, or P.T. was
a member or a biological child of a member of a tribe.
DISCUSSION
A. Continuance
Mother contends the juvenile court abused its discretion by
denying her request for a continuance. We disagree.
Section 352 governs continuances in dependency
proceedings. It provides that “[u]pon request of counsel for the
parent, guardian, minor, or petitioner, the court may continue
any hearing under this chapter beyond the time limit within
which the hearing is otherwise required to be held . . . .”
Continuances are granted only upon a “showing of good cause,”
and only if it is not “contrary to the interest of the minor.” (§ 352,
subd. (a).) In considering the minor’s interests, the court must
“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.” (Ibid.)
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A juvenile court exercises broad control over dependency
proceedings (In re Kelly D. (2000) 82 Cal.App.4th 433, 439), and
the decision to grant or deny a requested continuance is
committed to that sound discretion (In re D.Y. (2018) 26
Cal.App.5th 1044, 1053). We will reverse a court’s exercise of
this discretion only upon a showing that it “ ‘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.’ ” (In re
Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Here, mother does not claim, and nothing in the record
suggests, that delaying the permanency hearing would have
made any material difference. The court terminated jurisdiction
eight months prior to the permanency hearing, and in that time
mother and DCFS had engaged in numerous conversations about
visitation. Yet in all that time mother not only identified no
viable candidate to monitor visitation, but also, she alienated
potential monitors. Mother made no representation at the
hearing that a monitor could in fact be identified. We therefore
conclude the court acted within its discretion in denying a
continuance to allow mother to find a monitor.
On appeal, mother makes no effort to identify any potential
monitor nor representation of willingness to find one, but argues
a continuance should have been granted to delay cessation of
DCFS-monitored visits. She argues this would have had no
impact on P.T.’s permanency plan because his placement with the
paternal grandmother would not change.
In essence, mother argues the hearing should have been
continued because a continuance would allow visitation to
continue. But her finding a monitor would also have allowed
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visitation to continue. The court acted well within its discretion
in deciding that the need for prompt resolution of P.T.’s custody
status and the need to provide him with a stable environment
outweighed mother’s need to avoid finding a visitation monitor.
B. ICWA
Mother contends that after the previous appeal, “new
information” provided by the maternal great-aunt gave a reason
to believe that P.T. was an Indian child, which triggered a duty of
further inquiry. She argues DCFS’s failure to make further
inquiry with extended family members was error. We disagree.
In the prior appeal, we held that the information DCFS
possessed before the June 27, 2022 section 366.26 hearing gave
rise to no further inquiry obligation. That holding is the law of
the case. (See Morohoshi v. Pacific Home (2004) 34 Cal.4th 482,
491 [“ ‘The decision of an appellate court, stating a rule of law
necessary to the decision of the case, conclusively establishes that
rule and makes it determinative of the rights of the same parties
in any subsequent . . . appeal in the same case’ ”].)
Nothing in the record suggests that after the prior appeal,
DCFS became aware of new information spurring further inquiry
duties.
Before the prior appeal, mother identified “George,” her
great-grandfather, as having possibly been a member of a tribe.
After the prior appeal, mother’s great-aunt identified “George
N.,” her father, as possibly having been a member. The record
before us gives no indication that George and George N. were
different individuals. Therefore, DCFS was under no obligation
to make further ICWA inquiries.
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DISPOSITION
The juvenile court’s orders are affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
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