Sacramento County Department of Health & Human Services v. C.W.

Filed 5/1/13; part. pub. 5/31/13 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re L. J., a Person Coming Under the Juvenile Court C071919
Law.
SACRAMENTO COUNTY DEPARTMENT OF (Super. Ct. No. JD231066)
HEALTH AND HUMAN SERVICES,
Plaintiff and Respondent,
v.
C. W. et al.,
Defendants and Appellants.
In re L. J., a Person Coming Under the Juvenile Court C072166
Law.
SACRAMENTO COUNTY DEPARTMENT OF (Super. Ct. No. JD231066)
HEALTH AND HUMAN SERVICES,
Plaintiff and Respondent,
v.
C. W.,
Defendant and Appellant.
1
In this case, a juvenile court referee made an order terminating the parental rights
of C.W. (father) and La.J. (mother) as to minor L.J. (Welf. & Inst. Code, § 366.26.)
(Case No. C071919.) Both parents filed notice of appeal from that order. However,
father simultaneously moved for rehearing or reconsideration of the order (§ 252; Code
Civ. Proc., § 1008),1 alleging the hearing proceeded in his absence despite his voice mail
message to the court clerk advising that he would be late. The referee purported to grant
the motion and to set aside the order. At a subsequent hearing attended by father, the
referee made a new order purporting once again to terminate the parental rights of both
parents. Father alone filed a notice of appeal from this order. (Case No. C072166.)
After receiving father‟s notice of appeal from the second order, we requested letter
briefs from the parties as to whether the first appeal was moot and consolidated the
appeals on our own motion and. Having read and considered those briefs, we conclude
that the appeal in case No. C071919 is not moot because the referee‟s original order
terminating parental rights was final and conclusive. We also conclude that because all
acts done by the referee after issuing that order were void for lack of jurisdiction, the
appeal in case No. C072166 must be dismissed.
On the merits, the parents contend that the matter must be remanded due to failure
of compliance with the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.).
Mother, joined by father, also contends that the juvenile court abused its discretion by
denying mother‟s request for placement of the minor with the maternal grandmother.
Respondent Sacramento County Department of Health and Human Services (the
Department) disputes both contentions and asserts that the disentitlement doctrine bars
the parents‟ appeals because they actively concealed the minor‟s whereabouts for over a
year.
1 Undesignated section references are to the Welfare and Institutions Code.
2
We conclude (1) the disentitlement doctrine does not apply; (2) assuming mother
has standing to attack the denial of placement with the maternal grandmother, the court
did not err by denying that placement; and (3) a limited ICWA remand is required. We
reverse in case No. C071919 for further proceedings limited to ICWA and dismiss
father‟s appeal in case No. C072166.
FACTUAL AND PROCEDURAL BACKGROUND
On October 22, 2010, the Department filed a section 300 petition as to the minor,
alleging the minor (born in early 2010) was at substantial risk of physical harm in that,
while the minor was riding in mother‟s car, mother physically abused the minor‟s older
half sibling D.J. The minor was also at substantial risk of physical harm, abuse, and/or
neglect in that D.J. and the minor‟s three siblings were adjudicated dependent children
due to domestic violence between father and mother, and to mother‟s substance abuse
problem; as to the three siblings, family reunification services were terminated in May
2010. The parents had failed to maintain contact with the Department and had failed to
make the minor available, insisting that she resided with relatives out of county.
In the Department‟s application for a protective custody warrant, the social
worker‟s declaration contained the following information:
The minor‟s three siblings were court-ordered to a permanent plan of adoption
pending an upcoming section 366.26 hearing.
On October 18, 2010, the Department‟s Division of Child Protective Services
(CPS) received a referral alleging that on October 14, 2010, the minor‟s maternal
grandmother, Barbara J., had kicked the minor‟s half sibling D.J. out of her home. D.J.
stayed with a friend before being transported to the Children‟s Receiving Home on
October 17, 2010, where he was released to mother. Thereafter, the incident described in
the section 300 petition occurred, and the court issued a protective custody warrant for
3
him.2 D.J. told the social worker that the minor‟s parents were concealing the minor
from CPS.
Mother reported to the social worker that the minor was with a relative in the Bay
Area but would not disclose the relative‟s name or location.
According to the family reunification social worker, mother was not complying
with her substance abuse and domestic violence services, and had not returned the social
worker‟s calls in months.
Father had been booked and arrested on a no-bail warrant on October 17, 2010,
and was to be released on October 22, 2010.
CalWORKs staff stated that mother had an active case, was receiving aid for the
minor and D.J., and had been seen with the minor at the office the previous month.
A protective warrant was issued. A detention report, filed thereafter on
October 27, 2010, contained additional information. Father was released from custody
but remained on informal probation until September 11, 2013. The social worker
attempted twice on October 22, 2010, to execute the warrant for the minor at the
residence where father lived with the paternal grandmother, Patricia B.; the home
appeared “closed up,” and notices were left there for the parents. On October 23, 2010,
the social worker attempted to execute the warrant at the home of the maternal
grandmother, Barbara J.; again, the home appeared “closed up,” and a notice was left for
mother inside the screen door. Up until October 19, 2010, the social worker had been in
emergency telephone contact with mother; mother would not provide an address, saying
she was homeless and was going to different hotels. On and after October 20, 2010, the
2 According to the Sacramento County Sheriff‟s Department, mother claimed D.J.
punched her in the head because he was trying to jump out of the car and run away; she
had an eye injury consistent with this allegation. The officer concluded mother did not
cause D.J.‟s injury.
4
social worker left multiple messages for mother on her cell phone informing her of the
October 27, 2010, court date; no calls were returned. There were no relatives to consider
for placement: Barbara J.‟s home had not passed a kinship evaluation, and Patricia B.
could not care for the minor due to poor health.
After the initial hearing on October 27, 2010, the matter was repeatedly continued
because the minor had not been located. On November 18, 2010, the juvenile court
removed the matter from calendar but informed the parents that the protective custody
warrant for the minor remained in effect.
On April 3, 2012, the minor was found in the custody of the parents, who claimed
they had not known there was a warrant out on the minor and had thought the case was
closed. The Department filed an amended section 300 petition, which added the
allegations that mother‟s reunification services as to D.J., and the parents‟ rights as to the
minor‟s three siblings, had been terminated.
Father filed a Judicial Council form ICWA-020 claiming Cherokee heritage.
Mother denied Indian ancestry.
At the initial hearing on April 6, 2012, the juvenile court found father was the
minor‟s presumed father and ordered him to complete the Indian ancestry questionnaire
(or “supplemental questionnaire”) and return it to the Department within two days.
On April 11, 2012, the juvenile court ordered the minor detained. The court
ordered father to complete and return the supplemental questionnaire “today.”
On April 23, 2012, ICWA paralegal Tony Ringor declared that because father had
not responded to any attempts to contact him, the three Cherokee tribes had been sent
only the limited information available to Ringor as to the parents‟ ancestry: the names,
addresses, and birth dates of the paternal and maternal grandmothers.
The Department‟s jurisdiction/disposition report recommended placement of the
minor outside the home and bypassing services to the parents (mother pursuant to
5
§ 361.5, subd. (b)(10), (11), & (13); father pursuant to § 361.5, subd. (b)(10) & (11)
only).
The report stated that the parents continued to claim they had been unaware there
was a warrant out for the minor. They denied all allegations of current substance abuse
and domestic violence.
If the minor was not returned to the parents, mother wanted her placed with the
maternal grandmother, Barbara J. The maternal grandmother wanted placement, and
father and other members of the family would support it. The kinship unit had approved
the maternal grandmother‟s home for placement as of April 10, 2012.
The maternal grandmother, a widow with four children and eight grandchildren,
had recently retired after 30 years at Kaiser Permanente. She lived alone in a three-
bedroom, two-bathroom home. She could use the maternal aunt to help with childcare if
needed. She was diabetic but indicated the condition was under control. She was willing
to adopt the minor or to serve as her legal guardian.
The social worker had “concerns” about this proposed placement. First, the
maternal grandmother did not call CPS after learning that CPS was looking for the minor,
apparently because she believed mother‟s story that the case was closed; the maternal
grandmother said she had no control over mother. Second, the maternal grandmother had
kicked D.J. out of her home; she had failed a kinship assessment as to him and had never
been assessed as to the minor‟s siblings. Third, her diabetes might not be under control:
the fire department was called to the maternal grandmother‟s home on February 18, 2012,
in response to a report that she was incoherent and might be having a “diabetic episode.”
On May 4, 2012, ICWA paralegal Ringor declared that one of the three Cherokee
tribes had returned a negative response and the other two had not yet responded.
6
On the same date, the juvenile court held a prejurisdictional status conference but
continued it because father was allegedly in the hospital.3 Noting that the Department
had not yet received father‟s supplemental questionnaire, the court reordered him to
comply with the prior order to complete and return the questionnaire. The court ordered
the Department to analyze whether services should be denied to the parents under
section 361.5, subdivision (b)(15).4
At the rescheduled prejurisdictional status conference on May 11, 2012, the
juvenile court asked father‟s counsel whether the information in Judicial Council form
ICWA-030 (the form sent to the tribes) was “complete and accurate.” Counsel said
“Yes.” Counsel also said, “As to [father] the information . . . that appears on the
ICWA 30 [sic] is correct.”
Father‟s counsel said father had completed the supplemental questionnaire and
“placed it in the mailbox downstairs.” The court observed that that mailbox was for the
use of court staff only, so anything placed there would not have reached the Department.
The court set an ICWA compliance hearing for July 13, 2012.
The parents requested placement with the maternal grandmother. The court
tentatively denied the request but promised to revisit the issue. The court expressed
concern that the maternal grandmother had failed a kinship screening as to D.J. and that
emergency services had been called to her home in February 2012. The court also noted
that because it needed to consider concurrent planning efforts, the maternal grandmother
should undergo an adoption home study as soon as possible.
3 From this point on, Referee Marlene Hertoghe presided over the case.
4 The Department concluded that this provision also applied because the parents
willfully abducted the minor and kept her whereabouts unknown from October 2010 to
April 2012.
7
On May 17, 2012, ICWA paralegal Ringor declared that the second of the three
Cherokee tribes had returned a negative response; the third had not yet responded.
The Department filed an addendum recommending placement of the minor with
the maternal grandmother. Her home had not been approved as to D.J. because D.J.‟s
father was living there, but he had since left.
At the pretrial jurisdiction/disposition conference on May 25, 2012, the juvenile
court noted that that as of the day before, the ICWA paralegal still had not received
father‟s supplemental questionnaire.
The court stated it was still concerned as to whether placement with the maternal
grandmother was consistent with the best interest of the minor, given “the need to
consider concurrent planning.” The court was also concerned about “the potential
protection issues” in that there was evidence a social worker had tried to serve the
protective custody warrant at the maternal grandmother‟s home, yet she now claimed she
did not know CPS was looking for the minor. The court reserved further consideration of
this issue for the jurisdiction/disposition hearing.
The contested jurisdiction/disposition hearing took place on June 1, 2012.
Father testified that the parents did not realize there was a warrant out for the
minor because her case came up together with the ongoing cases of her siblings, on which
the parents were focused. When they heard that the minor‟s case was removed from
calendar, they concluded it had been dropped. The minor was living with an aunt in the
Bay Area for most of the time she was supposedly missing.
Father claimed he and mother had no relationship now. He was homeless but
looking for housing, and had been employed for three weeks. He claimed he was doing
visitation and services insofar as he had been given them. He denied domestic violence
or current substance abuse by himself or mother. Placement with the maternal
grandmother was acceptable to him.
8
Mother‟s counsel and the minor‟s counsel also supported placement with the
maternal grandmother.
The juvenile court bypassed reunification services to mother under the provisions
of section 361.5, subdivision (b)(10), (11), (13), and (15) and to father under
section 361.5, subdivision (b)(10), (11), and (15), and set a section 366.26 hearing on
August 17, 2012.
The court again denied placement with the maternal grandmother but noted, “the
Department can continue to assess this [and t]he grandmother is certainly free to get an
adoption home study[.]” The court acknowledged the statutory preference for relative
placement (§ 361.3), but found that it would not be in the minor‟s best interest for the
following reasons: (1) the maternal grandmother knew of the warrant for the minor and
frustrated its execution, which also put her credibility in question; (2) when the maternal
grandmother had care of D.J., things had gone wrong; (3) the maternal grandmother‟s
state of health was still undetermined; and (4) given the impending section 366.26
hearing, preferential consideration must go to a home that could adopt the minor.
The ICWA paralegal filed an informational memorandum on July 5, 2012, which
stated that the last of the Cherokee tribes had returned a negative response.
At a combined ICWA compliance hearing and section 366.26 status review
hearing on July 13, 2012, the juvenile court found the minor was not an Indian child.
At a placement hearing on July 20, 2012, the juvenile court observed that the
Department was now pursuing placement in the home of one of the minor‟s siblings who
had been adopted. County counsel said the minor had not yet been placed there because
the home did not currently qualify as an adoptive home (the prospective foster parents
had given up their foster-care license after adopting the minor‟s sibling) or an NREFM
(nonrelative extended family member) placement; the Department was investigating how
to get approval for the placement. The minor‟s counsel supported the Department‟s
9
recommendation. Father‟s and mother‟s counsel objected but did not offer argument or
propose alternatives.
Noting that the maternal grandmother was present, the court invited her to “talk to
the Court.”5 The maternal grandmother stated:
A CPS investigative social worker came to the maternal grandmother‟s home
before the minor was detained but did not mention that she had a warrant for the minor.
She said only that she was there “to look in on the well care [sic] of Baby [L.]”
D.J.‟s allegations that the maternal grandmother beat him and that she was a drug
addict were false. Nevertheless, even though he had lied about her, she loved him and
still took care of him.
Her diabetes was not a problem. Her doctor had given her a “bill of health.”
She loved all of her grandchildren and fought for the chance to take care of them;
being retired, she could easily take care of the minor. It was painful to her that all of
mother‟s children had been “taken away.”
The juvenile court replied that the maternal grandmother‟s claim that the CPS
social worker had not mentioned a warrant conflicted with the social worker‟s statement
that she had been there attempting to execute a warrant, which is part of an investigative
social worker‟s job. The court was concerned about “the willingness to cooperate with
CPS, with the Court, and ensure that . . . the baby is kept safe from her parents.” The
social worker‟s statement created an inference that the maternal grandmother had been
“less than cooperative” in a case where the minor was absent from the court‟s jurisdiction
with an outstanding protective custody warrant “for a very considerable period of time.”
5 The court did not place her under oath.
10
D.J.‟s statements indicated that he might have suffered inappropriate corporal
punishment from several relatives, including the maternal grandmother, and that there
was a lack of “appropriate care in the home.”6
It mattered that law enforcement had been called to the maternal grandmother‟s
home due to concerns about her health because the minor was “in need of a forever home
now.” If the court placed the minor with the maternal grandmother, it would take a year
or so to determine whether the minor could stabilize there and whether the concerns
about the maternal grandmother‟s health and D.J.‟s allegations were unfounded. But the
minor had already waited a long time for stability and permanence.
For all of these reasons, it was in the minor‟s best interest to proceed with
placement in a home that did not have the “difficulties” apparent in the maternal
grandmother‟s home.
The Department‟s section 366.26 report, filed August 7, 2012, recommended
termination of parental rights and adoption. The minor was generally adoptable. The
Department still planned to place her with her adopted sibling once the caretakers had
updated their foster care license. Their visitation with the minor had gone well. They
were eager to take her into their home and to provide permanency through adoption.
On the morning of August 17, 2012, the juvenile court held a section 366.26
hearing. Neither parent was present. Father‟s counsel, who did not know why father was
absent, requested a continuance, but the court denied the request for lack of good cause.
Over the objection of the parents‟ counsel, the court ordered the termination of parental
rights and a permanent plan of adoption.
On August 21, 2012, the juvenile court entered its order in writing.0
On August 23, 2012, father‟s counsel filed a notice of appeal from the order.
6 The court observed that D.J. had alleged his uncle had beaten him after learning that
D.J. is homosexual.
11
On the same date, father‟s counsel filed a “Notice of Motion and Motion for
Reconsideration Pursuant to Code of Civil Procedure Section 1008.” The motion also
cited Welfare and Institutions Code section 252, which provides in part: “At any time
prior to the expiration of 10 days after service of a written copy of the order and findings
of a referee, a minor or his or her parent or guardian . . . may apply to the juvenile court
for a rehearing.”7
The motion asserted that, unknown to counsel at the time of the hearing, father had
called the courthouse and left a voice mail message with the court clerk at 8:44 a.m.,
advising he would be late to court. Father requested a rehearing so that he could be
present for the proceedings and participate in the section 366.26 hearing.
On August 24, 2012, Referee Hertoghe set the motion for reconsideration for
hearing on August 31, 2012.
At the hearing on August 31, 2012 (at which father was present, but not mother),
Referee Hertoghe granted reconsideration, set aside the order terminating parental rights,
and set a contested section 366.26 hearing on September 11, 2012.8
On September 5, 2012, mother, in propria persona, filed a notice of appeal from
the August 17, 2012, order terminating parental rights.
On September 11, 2012, Referee Hertoghe held a contested section 366.26
hearing. The parents were present. Neither presented evidence, but both made unsworn
7 Section 252 also provides: “If all of the proceedings before the referee have been taken
down by an official reporter, the judge of the juvenile court may, after reading the
transcript of those proceedings, grant or deny the application.” (Italics added.) Father‟s
motion did not quote this portion of the statute.
8 All counsel submitted on the motion without argument. No counsel mentioned that
father had filed a notice of appeal from the August 17, 2012, order or that section 252
requires a juvenile court judge to consider an application for rehearing of a juvenile court
referee‟s order.
12
statements (having been advised that the court would not consider such statements as
evidence). The parents‟ counsel argued that termination of the parents‟ relationships with
the minor would be detrimental to her. Referee Hertoghe once again ordered the
termination of parental rights.
Father alone filed a notice of appeal from the second order terminating parental
rights.
DISCUSSION
I
Respondent contends that the disentitlement doctrine bars this appeal. We
disagree.
“ „The disentitlement doctrine has been applied to deprive a party of the right to
present a defense as a result of the litigant‟s violation of the processes of the court,
withholding of evidence, defaulting on court-imposed obligations, disobeying court
orders, or other actions justifying a judgment of default. [Citation.] The case for
application of the doctrine is most evident where . . . the party is a fugitive who refuses to
comply with court orders or make an appearance despite being given notice and an
opportunity to appear and be heard. [Citation.]‟ ” (In re Kamelia S. (2000)
82 Cal.App.4th 1224, 1229 (Kamelia S.).) Though typically applied against fugitives
from the courts, disentitlement may also be imposed on a nonfugitive party “who has
signaled by his conduct that he will only accept a decision in his favor” and will frustrate
any attempt to enforce a judgment against him. (Polanski v. Superior Court (2009)
180 Cal.App.4th 507, 532 (Polanski); see also In re Marriage of Hofer (2012)
208 Cal.App.4th 454.)
The doctrine is “not an automatic rule but a discretionary tool of the courts that
may only be applied when the balance of all equitable concerns leads the court to
conclude that it is a proper sanction for a party‟s flight.” (Polanski, supra,
180 Cal.App.4th at p. 533.) “In a noncriminal context, courts routinely decline to
13
disentitle litigants on the basis of contempt, fugitive status, or noncompliance with court
orders when the issues raised by the litigant entail interests beyond the personal of the
individual petitioner, such as the welfare of minor children . . . .” (Id. at p. 536.)
The Department asserts that because the parents absconded with the minor and
concealed her from the courts for over a year, they are disentitled to pursue this appeal—
even though their misconduct ended in April 2012, they have submitted themselves and
the minor to the juvenile court‟s jurisdiction since then, and the minor is no longer in
their custody. We disagree.
The Department relies only on Kamelia S., supra, 82 Cal.App.4th 1224, while
acknowledging the case is distinguishable. Indeed it is. In Kamelia S., the appellant
father absconded with the minor while his appeal from the juvenile court’s order
removing her from his custody and placing her in foster care was pending, and the
whereabouts of the father and the minor were unknown when the appellate court
considered the case. (Id. at p. 1226.) In other words, at the very moment appellant
sought a hearing, he “ „[stood] in an attitude of contempt to legal orders and processes of
the courts of this state.‟ [Citation.]” (Id. at p. 1229.) That is not this case.
We conclude that “the balance of all equitable concerns” (Polanski, supra,
180 Cal.App.4th at p. 533) does not justify applying the disentitlement doctrine here.
II
Having determined that the parents may pursue their appeals, we must decide
which appeal(s). We conclude that the operative appeals are those in case No. C071919,
because the order from which those appeals were taken—the first order terminating
parental rights—was not set aside in the manner required by law, and thus became final
and conclusive. Therefore, the court‟s second order terminating parental rights, from
which father‟s appeal in case No. C072166 is taken, was void, and that appeal must be
dismissed.
14
“Any order of the court permanently terminating parental rights under this section
shall be conclusive and binding upon the child [and] upon the parent or parents . . . .
After making the order, the juvenile court shall have no power to set aside, change, or
modify it, except as provided in paragraph (2)[9], but nothing in this section shall be
construed to limit the right to appeal the order.” (§ 366.26, subd. (i)(1).) Thus, once the
order of August 17, 2012, became final, the juvenile court could not set it aside. (In re
R.S. (2009) 179 Cal.App.4th 1137, 1152 (R.S.).)
The time when that order became final is determined by sections 250, 252, and
254, which deal with juvenile court referees‟ orders and the means of rehearing them. As
we shall explain, because father did not follow the required procedure for seeking and
obtaining rehearing of the referee‟s order, it became final 10 days after notice of the order
was served on the parties—that is, on or around August 31, the date when the referee
purported to set the order aside.
“Except as provided in Section 251[10], all orders of a referee other than those
specified in Section 249 [i.e., an order removing a minor from his or her home] shall
become immediately effective, subject also to the right of review as hereinafter provided,
and shall continue in full force and effect until vacated or modified upon rehearing by
order of the judge of the juvenile court. In a case in which an order of a referee becomes
effective without approval of a judge of the juvenile court, it becomes final on the
expiration of the time allowed by Section 252 for application for rehearing, if application
9 Paragraph (2), which deals with tribal customary adoption orders, is inapplicable here.
10 Welfare and Institutions Code section 251 provides that the judge or presiding judge
of the juvenile court may establish requirements that a referee‟s order must be expressly
approved by a judge of the juvenile court before becoming effective. This has not been
done in Sacramento County. (Cf. Super. Ct. Sacramento County, Local Rules, ch. 7
[juvenile dependency court].) We judicially notice the Superior Court of Sacramento
County, Local Rules. (Evid. Code, § 452, subd. (e).)
15
therefor is not made within such time and if the judge of the juvenile court has not within
such time ordered a rehearing pursuant to Section 253.” (§ 250, italics added; see In re
Clifford C. (1997) 15 Cal.4th 1085, 1093.)
“At any time prior to the expiration of 10 days after service of a written copy of
the order and findings of a referee, a . . . parent . . . may apply to the juvenile court for a
rehearing. That application may be directed to all or to any specified part of the order or
findings, and shall contain a statement of the reasons the rehearing is requested. If all of
the proceedings before the referee have been taken down by an official reporter, the judge
of the juvenile court may, after reading the transcript of those proceedings, grant or deny
the application. If proceedings before the referee have not been taken down by an
official reporter, the application shall be granted as of right. . . .” (§ 252, italics added.)
“All rehearings of matters heard before a referee shall be before a judge of the
juvenile court and shall be conducted de novo.” (§ 254, italics added.)
Here, the referee orally ordered the termination of parental rights on August 17,
2012. On August 20, 2012, the court clerk notified the parents in writing of their right to
appeal. On August 21, 2012, the referee entered her order in writing.11 On August 23,
2012, father simultaneously filed his notice of appeal and “motion for reconsideration”
(or rehearing).12
11 The record does not show why the written order was entered one day after the court
clerk‟s notice of the right to appeal, which should have been accompanied by a copy of
the court‟s written order. (Cal. Rules of Court, rule 5.538(b).) But it does not matter for
the resolution of the procedural issues here whether August 20 or August 21 is taken as
the date that starts the running of the 10-day period under Welfare and Institutions Code
section 252.
12 A timely notice of appeal divests the lower court of jurisdiction to take any further
action in the case. (In re Marriage of Varner (1998) 68 Cal.App.4th 932, 936.) That rule
does not apply here, however, because father‟s notice of appeal was premature.
16
Father‟s motion did not specify that it must be heard by a judge of the juvenile
court. His quotation of section 252 omitted the sentence that says so. Nor did the motion
cite section 254, which likewise provides that only a judge of the juvenile court can
rehear a referee‟s orders. Thus, by omission, the motion misled the referee into
overlooking the required procedure for rehearing her order.13
The referee purported to hear and grant father‟s motion and to set aside her order
terminating parental rights within the 10-day time frame required by section 252. But
under sections 252 and 254, only a judge of the juvenile court had the authority to do so.
The referee‟s actions, done without subject matter jurisdiction, were void. (See
Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288.) Since they were void,
not merely voidable, the parties‟ consent to the referee‟s acts or waiver of any
jurisdictional defect did not create jurisdiction, and we may consider the issue de novo.
(People v. Williams (1999) 77 Cal.App.4th 436, 447.)
“In matters heard by a referee not acting as a temporary judge, a notice of appeal must
be filed within 60 days after the referee‟s order becomes final under [California Rules of
Court,] rule 5.540(c).” (Cal. Rules of Court, rule 8.406(a)(2), italics added.)
Rule 5.540(c) provides: “An order of a referee becomes final 10 calendar days after
service of a copy of the order and findings under [California Rules of Court,] rule 5.538,
if an application for rehearing has not been made within that time or if the judge of the
juvenile court has not within the 10 days ordered a rehearing on the judge‟s own motion
under [California Rules of Court,] rule 5.542.”
By filing the notice of appeal only three days after the court clerk (presumably) served a
copy of the referee‟s order on the parties, father purported to appeal from an order that
had not yet become final. We may, and we do, treat father‟s notice of appeal as if filed
timely, so as to preserve his right to appeal. (Cf. Cal. Rules of Court, rule 8.104(d).) But
because it was premature, it did not divest the juvenile court of jurisdiction.
13 We also note that the Superior Court of Sacramento County, Local Rules mandate the
use of a specified form for an application for rehearing of a referee‟s order and state that
“the court will not accept for filing an application that does not utilize the form as the
first page of the application.” (Super. Ct. Sacramento County, Local Rules, rule 7.26(c).)
No such form appears in the record.
17
Once the referee‟s original order terminating parental rights became final, the
juvenile court had no power to set it aside or to make a new order purporting to terminate
parental rights thereafter. (§ 366.26, subd. (i)(1); R.S., supra, 179 Cal.App.4th at
p. 1152.) Therefore, the referee‟s second order purporting to terminate parental rights
was also void. Father‟s appeal in case No. C072166, which is taken from that order, must
be dismissed.
III
Mother, joined by father, contends the juvenile court‟s denial of placement with
the maternal grandmother “must be reversed in view of the clear legislative preference
for relative placement.” Respondent replies that this contention is procedurally barred
and that the court did not abuse its discretion in denying the placement request. We
conclude the contention is properly before us but fails on the merits.
Procedural arguments
Respondent asserts (1) neither parent appealed from “the July 20, 2012 placement
order or any other placement order,” (2) appeal of “the June 1, 2012 relative placement
order is time barred,” (3) mother lacks standing to appeal “the July 20, 2012 order
regarding placement of the child because she had been bypassed for reunification services
at the disposition hearing and parental rights were terminated prior to appeal,” and
(4) mother forfeited the relative placement issue. These arguments are unpersuasive.
We agree with mother that the operative order is the order made at the July 20,
2012, placement hearing. At the earlier jurisdiction/disposition hearing, held on June 1,
2012, the juvenile court indicated that its ruling as to the maternal grandmother was not
final: “So I have carefully considered this, because I do think . . . the law contemplates
that children are better off in the home of a relative. The concerns noted in the original
jurisdictional report . . . in terms of the psychosocial background have not been answered
by simply hearing the kinship [sic] has approved the home. So the Department can
continue to assess this. The grandmother is certainly free to get an adoption home study,
18
but at this time the child needs to be placed in the home that is able and willing to
proceed with adoption.” (Italics added.) On July 20, 2012, the court heard from the
maternal grandmother on the concerns that had been raised against placement with her,
then definitively ruled against that placement. On our reading of the record, it is the later
ruling that settled the question.
Mother‟s pro se notice of appeal from the August 17, 2012, order terminating
parental rights purported to challenge orders going back to April 6, 2012. Construing the
notice of appeal liberally in favor of its sufficiency (cf. Cal. Rules of Court,
rule 8.100(a)(2)), we conclude the notice properly encompassed the order denying
placement with the maternal grandmother. Mother‟s notice of appeal was filed
September 5, 2012, within 60 days of the date the order was made. (Cal. Rules of Court,
rule 8.104(a).)
With respect to mother‟s standing to raise the placement issue, we conclude that
she has standing to challenge the order denying placement to the maternal grandmother
because a different order could have affected her ability to contest the termination of
parental rights.
“Not every party has standing to appeal every appealable order. Although
standing to appeal is construed liberally, and doubts are resolved in its favor, only a
person aggrieved by a decision may appeal. [Citations.] An aggrieved person, for this
purpose, is one whose rights or interests are injuriously affected by the decision in an
immediate and substantial way, and not as a nominal or remote consequence of the
decision. [Citations.] These rules apply with full force to appeals from dependency
proceedings. [Citation.]” (In re K.C. (2011) 52 Cal.4th 231, 236 (K.C.).)
“A parent‟s appeal from a judgment terminating parental rights confers standing to
appeal an order concerning the dependent child‟s placement only if the placement order‟s
reversal advances the parent‟s argument against terminating parental rights.” (K.C.,
supra, 52 Cal.4th at p. 238.)
19
In In re Esperanza C. (2008) 165 Cal.App.4th 1042 and In re H.G. (2006)
146 Cal.App.4th 1 (cited with approval in K.C., supra, 52 Cal.4th at pp. 237-238), the
reviewing courts held that parents had standing to appeal from orders concerning relative
placement because those orders could affect the ultimate question whether the parents‟
rights would be terminated. In H.G., a section 387 order removing the minor from the
grandparents‟ care “ha[d] the potential to alter the court‟s determination of the child‟s
best interests and the appropriate permanency plan for that child, and thus [might] affect
[the] parent[s‟] interest in [their] legal status with respect to the child.” (146 Cal.App.4th
at p. 10.) In Esperanza C., the court applied this reasoning to the denial of a section 388
petition seeking placement with the maternal great-uncle and his wife. (165 Cal.App.4th
at pp. 1050-1051, 1053-1054.) Both courts cited the “relative caregiver” exception to
adoption (§ 366.26, subd. (c)(1)(A)), which provides that if a child is living with a
relative who can serve as a legal guardian but is unwilling or unable to adopt, and
removal from the relative would be detrimental to the child‟s well-being, the juvenile
court should not terminate parental rights (Esperanza C., supra, 165 Cal.App.4th at
p. 1054; H.G., supra, 146 Cal.App.4th at p. 10 [§ 366.26, former subd. (c)(1)(D)]).
The maternal grandmother stated she would be willing to adopt the minor or to
serve as legal guardian. But it was never determined that she would be able to adopt
since she had not passed an adoption home study and her state of health remained
uncertain. Thus, had the minor been placed with her, the relative caregiver exception to
adoption might have applied, giving mother an argument against the termination of her
parental rights, which absent such placement she did not have. Mother was therefore
aggrieved by the order denying placement and has standing to challenge it. (K.C., supra,
52 Cal.4th at p. 238.)
Finally, we reject respondent‟s forfeiture claim. This contention rests only on the
fact that mother did not raise the relative caregiver exception to adoption at the
20
section 366.26 hearing. But since the minor had not been placed with the maternal
grandmother, mother could not have raised that exception to adoption.
For all the above reasons, mother‟s challenge to the order denying placement with
the maternal grandmother is properly before us.
Substantive arguments
On the merits, however, we agree with respondent that mother has failed to show
error.
As the parties correctly state, the standard of review for placement orders is abuse
of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318 (Stephanie M.).) We may
overturn the juvenile court‟s determination only if it was arbitrary, capricious, or patently
absurd. (Ibid.) So far as the court drew reasonable inferences from the facts before it, we
cannot put aside its decision and substitute our own. (Id. at p. 319.)
If a minor is removed from his or her parents‟ custody, “preferential consideration
shall be given to a request by a relative of the child for placement of the child with the
relative.” (§ 361.3, subd. (a).) “Preferential consideration” means that “the relative
seeking placement shall be the first placement to be considered and investigated.”
(§ 361.3, subd. (c)(1).)
But the statute does not mandate such placement. Rather, it sets out a long but
nonexclusive list of factors that the juvenile court must consider “[i]n determining
whether placement with a relative is appropriate[.]” (§ 361.3, subd. (a)(1)-(8).) These
include, among others, “[t]he best interest of the child” (§ 361.3, subd. (a)(1)); “[t]he
good moral character of the relative . . . , including whether any individual residing in the
home has a prior history of violent criminal acts or has been responsible for acts of child
abuse or neglect” (§ 361.3, subd. (a)(5)); and “[t]he ability of the relative to do the
following: [¶] (A) Provide a safe, secure, and stable environment for the child. [¶]
(B) Exercise proper and effective care and control of the child. [¶] . . . [¶] (D) Protect
the child from his or her parents.” (§ 361.3, subd. (a)(7).)
21
Here, the juvenile court appropriately considered and investigated placement with
the maternal grandmother prior to disposition. However, at the jurisdiction/disposition
hearing the court made tentative findings adverse to the placement, based on all of the
statutory criteria we have quoted. The court found that the placement would not serve the
best interest of the child (§ 361.3, subd. (a)(1)) because (1) having been concealed from
the court for over a year by parents who would not be granted services, the child needed
permanence and stability as soon as possible, and (2) the grandmother‟s apparent
connivance in the parents‟ concealment raised doubts as to whether that need would be
well served by placement with her (§ 361.3, subd. (a)(7) (A), (B) & (D)); the unresolved
question whether the grandmother had mistreated the minor‟s half sibling or allowed
others to do so (§ 361.3, subd. (a)(5)); and the uncertainty about the grandmother‟s health
(§ 361.3, subd. (a)(7)(A), (B)). All of these concerns were supported by evidence in the
record. Nevertheless, the court urged the Department to continue investigating the
placement and recommended that the grandmother obtain an adoption home study. Thus,
the court had not ruled out the possibility that the grandmother could resolve the court‟s
concerns in her favor.
At the subsequent placement hearing, however, the Department recommended a
placement plan more likely to lead to early adoption. The grandmother had not obtained
an adoption home study or presented any further evidence to support placement with her.
The court reasonably found her oral responses to the allegations against her insufficient
to allay the court‟s doubts about the wisdom of placing the minor in her home. Indeed,
so far as she disputed the investigative social worker‟s claim that the social worker had
attempted to execute the protective custody warrant for the minor at the grandmother‟s
home, her assertions raised further doubts about her credibility and her ability or
willingness to protect the minor from the parents. Thus, the court had, if anything, less
reason than before to accept at face value the grandmother‟s claims of robust health and
her denial that she had mistreated the minor‟s half sibling.
22
Given these facts and the reasonable inferences the court drew from them, the
court‟s denial of placement with the maternal grandmother was not arbitrary, capricious,
or patently absurd. (Stephanie M., supra, 7 Cal.4th at p. 318.) The fact that the evidence
could be viewed more favorably to the proposed placement does not justify overturning
the court‟s order. (Id. at p. 319.)
IV
Father, joined by mother, contends the matter must be remanded due to a failure of
compliance with ICWA. We agree.
When the juvenile court knows or has reason to know that a child involved in a
dependency proceeding is an Indian child, ICWA requires that notice of the proceedings
be given to any federally recognized Indian tribe of which the child might be a member
or eligible for membership. (25 U.S.C. §§ 1903(8), 1912(a); In re Robert A. (2007)
147 Cal.App.4th 982, 989.) There is “an affirmative and continuing duty to inquire”
whether a child is or may be an Indian child. (Welf. & Inst. Code, § 224.3, subd. (a).)
Notice requirements are construed strictly. (Robert A., supra, 147 Cal.App.4th at p. 989.)
Where notice has been given, any error in notice is subject to harmless error review.
(Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784 (Nicole K.).)
Notice must include all of the following information, if known: the child‟s name,
birthplace, and birth date; the name of the tribe in which the child is enrolled or may be
eligible for enrollment; names and addresses (including former addresses) of the child‟s
parents, grandparents, great-grandparents, and other identifying information; and a copy
of the dependency petition. (25 C.F.R. § 23.11(d) (1)-(4); Welf. & Inst. Code, § 224.2,
subd. (a)(5)(A)-(D); In re D.W. (2011) 193 Cal.App.4th 413, 417.)
Because ICWA‟s primary purpose is to protect and preserve Indian tribes, a parent
does not forfeit a claim of ICWA notice violation by failing to raise it in the juvenile
court. (In re J.T. (2007) 154 Cal.App.4th 986, 991 (J.T.); Nicole K., supra,
23
146 Cal.App.4th at p. 783, fn. 1; In re Marinna J. (2001) 90 Cal.App.4th 731, 738-739
(Marinna J.).)
The tribes never learned anything about father‟s ancestry other than the name,
address, and birth date of the paternal grandmother. Given this meager information, their
negative responses to the ICWA inquiry are unsurprising. But there is reason to think
more information might have been available if it had been diligently pursued.
The jurisdiction/disposition report shows that the social worker spoke to father by
telephone and in person. He gave her the names of the paternal great-grandmother (now
deceased); of his brother and sister, with whom he remained in contact; and of his second
cousin, a possible candidate for placement. The report also shows that the social worker
spoke by telephone to the paternal grandmother.14
It appears from the report that father and the paternal grandmother were
forthcoming in response to the social worker‟s inquiries. It does not appear, however,
that the social worker asked either of them about father‟s alleged Indian heritage, even
though the report mentions that claim. There is no evidence that the social worker
attempted to contact the other relatives whose names father had given her. Finally, it
does not appear that the social worker contacted the ICWA paralegal to give him the
information that she had obtained about father‟s family. (Even the name of the paternal
great-grandmother, which is required information for ICWA notice if known, was never
given to the tribes.) Given the living relatives that might reasonably have been expected
to have information relevant to father‟s claim of Indian ancestry, the social worker‟s
apparent failure to inquire further of father or the paternal grandmother, to contact
14 Respondent asserts that it would have been futile to try to get more information from
the paternal grandmother because she was hostile toward the Department during the
period when the minor‟s whereabouts were concealed. But the jurisdiction/disposition
report does not indicate that the paternal grandmother remained hostile to the Department
after it had located and detained the minor.
24
father‟s siblings and second cousin, or to provide those relatives‟ names and contact
information to the ICWA paralegal amounts to a failure to carry out the “affirmative and
continuing duty to inquire” imposed by ICWA. (§ 224.3, subd. (a).)
It is true, as respondent asserts, that father was not cooperative with the juvenile
court or the ICWA paralegal, and that his counsel told the court the information on the
ICWA notice form was correct. But because ICWA is intended to protect the interests of
the tribes, not those of the parents, neither father‟s misfeasance nor his counsel‟s
statement can defeat father‟s claim of ICWA notice violation or estop him from raising it
on appeal. (J.T., supra, 154 Cal.App.4th at p. 991; Nicole K., supra, 146 Cal.App.4th at
p. 783, fn. 1; Marinna J., supra, 90 Cal.App.4th at pp. 738-739.)
Respondent speculates at length that the social worker tried to obtain the required
information, but the persons she spoke to simply did not have it. But such speculation is
insufficient to establish that the Department fulfilled its duty of inquiry. Based on the
jurisdiction/disposition report, which is supposed to contain all information relevant to
the juvenile court‟s decision-making process, there is no evidence that the social worker
asked the persons she spoke to any questions about the family‟s alleged Indian ancestry,
or that she made any attempt to contact the other living family members whose names
she was given.
In light of the Department‟s failure to perform its duty of ICWA inquiry, we
cannot uphold the juvenile court‟s finding that ICWA did not apply. Therefore, we must
vacate the court‟s orders terminating parental rights and ordering a permanent plan of
adoption, and remand the matter for further ICWA proceedings.
DISPOSITION
In case No. C071919, the matter is remanded to the juvenile court with directions
to vacate its orders terminating parental rights and ordering a permanent plan of adoption,
and to renotice the tribes with any further information the Department may obtain
through a properly diligent inquiry. If the court finds, after the new notice has been
25
given, that ICWA has been complied with and does not apply, the court shall reinstate its
orders terminating parental rights and ordering a permanent plan of adoption. If the court
finds that ICWA applies, it shall proceed in accordance with ICWA.
In case No. C072166, father‟s appeal is dismissed.
RAYE , P. J.
We concur:
HULL , J.
MAURO , J.
26
Filed 5/31/13
CERTIFIED FOR PARTIAL PUBLICATION15
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re L. J., a Person Coming Under the Juvenile Court C071919
Law.
SACRAMENTO COUNTY DEPARTMENT OF
HEALTH AND HUMAN SERVICES, (Super. Ct. No. JD231066)
Plaintiff and Respondent, ORDER CERTIFYING
OPINION FOR PARTIAL
v. PUBLICATION
C. W. et al.,
Defendants and Appellants.
In re L. J., a Person Coming Under the Juvenile Court C072166
Law.
SACRAMENTO COUNTY DEPARTMENT OF
HEALTH AND HUMAN SERVICES, (Super. Ct. No. JD231066)
Plaintiff and Respondent,
v.
C. W.,
Defendant and Appellant.
15 Pursuant to California Rules of Court, rule 8.1110(b), this opinion is certified for
publication with the exception of parts III and IV.
27
APPEALS from a judgment (orders) of the Superior Court of Sacramento County,
Marlene E. Hertoghe, Referee. C071919 remanded with directions; C072166 dismissed.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and
Appellant C. W.
Marin Williamson, under appointment by the Court of Appeal, for Defendant and
Appellant L. J.
John F. Whisenhunt, County Counsel, and Claire Van Dam, Deputy County
Counsel, for Plaintiff and Respondent.
THE COURT:
The opinion in the above-entitled matters filed on May 1, 2013, was not certified
for publication in the Official Reports. For good cause it now appears that the opinion
should be partially published in the Official Reports and it is so ordered.
BY THE COURT:
RAYE , P. J.
HULL , J.
MAURO , J.
28