In re L.L. CA2/1

Filed 3/28/23 In re L.L. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re L.L., A Person Coming Under B318779, B320802
the Juvenile Court Law.
_________________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 18CCJP06654A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
LISA L.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Debra R. Archuleta, Judge. Affirmed.
Jill Smith, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy,
Assistant County Counsel, and William D. Thetford, Principal
Deputy County Counsel, for Plaintiff and Respondent.
Lisa L. (Mother) appeals from the juvenile court’s January 18,
2022 order denying her Welfare and Institutions Code section 3881
petition without a hearing. Through the petition, Mother sought
custody of her then four-year-old daughter, L.L., or alternatively,
six additional months of reunification services and liberalized
visitation. Mother contends that the court erred in summarily
denying her petition because she made a prima facie showing of
changed circumstances, including her enrollment in a residential
substance abuse treatment program, and that the proposed order
would be in L.L.’s best interests. Mother contends further that
the Department of Children and Family Services (DCFS) and the
juvenile court failed to discharge their respective initial inquiry
duties under California law implementing the Indian Child Welfare
Act (ICWA) (25 U.S.C. § 1901 et seq.), and that these failures
require reversal of the court’s finding that ICWA does not apply in
this case. Specifically, Mother argues that DCFS failed to interview
available extended family members concerning L.L.’s heritage, and
that the court failed to instruct the parties on the record that they
must disclose any subsequently obtained information relevant to
the ICWA inquiry.
Mother also appeals the juvenile court’s March 22, 2022
orders appointing paternal grandmother and paternal
great-grandmother as L.L.’s legal guardians and terminating
dependency jurisdiction, relying exclusively on her claims
concerning the section 388 petition and alleged ICWA errors as
grounds for reversal.
We agree that Mother has made laudable progress in
alleviating the concerns that gave rise to this case. The record
1 Unless otherwise specified, subsequent statutory references
are to the Welfare & Institutions Code.
2
discloses, however, that much of that progress occurred after
the juvenile court denied Mother’s section 388 petition. Mother is
free to file a new petition detailing her additional progress, but we
cannot conclude that the court abused its discretion in summarily
denying the January 2022 petition on the then-existing record.
We conclude further that the ICWA inquiry errors alleged here
were harmless. Accordingly, we affirm the juvenile court’s orders.
FACTUAL AND PROCEDURAL SUMMARY2
A. Overview
On October 10, 2018, law enforcement arrested Mother
for walking in the middle of traffic backwards while holding
then 10-month-old L.L. The officers hospitalized Mother
pursuant to section 51503 and placed L.L. in the care of her
father, C.W. (Father). On October 16, 2018, DCFS filed a
section 300 petition concerning L.L. alleging that Mother’s
“mental and emotional problems”—which included a diagnosis
of schizoaffective and bipolar disorders—and her purported abuse
of marijuana and benzodiazepine placed L.L. at risk of serious
2 We limit our summary to the facts and procedural
history relevant to the issues Mother raises on appeal. Father
is not a party to this appeal, and we therefore discuss his
involvement in the dependency proceedings only to the extent
relevant to Mother’s claims.
3 Section 5150 authorizes law enforcement to take into
custody for up to 72 hours “a person [who], as a result of a
mental health disorder, is a danger to others, or to themselves.”
(§ 5150.) Law enforcement previously had placed Mother on
a section 5150 hold on September 26, 2018, because she had
“active suicidal thoughts.” The hospital prescribed Mother
medication and discharged her on October 8, 2018, two days
prior to the October 10, 2018 incident.
3
physical harm. The following day, the juvenile court held a
detention hearing at which it ordered L.L. to remain in Father’s
care and granted Mother monitored visitation.
At the subsequent December 6, 2018 jurisdiction hearing,
the court dismissed the petition’s allegations concerning Mother’s
drug abuse, but sustained the allegations concerning Mother’s
mental health issues. The court also issued a case plan for Mother
requiring that she participate in parenting education, individual
counseling, and a psychiatric evaluation; take all prescribed
psychotropic medication; and submit to 10 random drug tests,
with a full treatment program upon a missed or positive test.4
On March 29, 2019, the juvenile court authorized L.L.’s
removal from Father, in response to allegations that he was abusing
marijuana and had permitted Mother to have unmonitored contact
with L.L. On April 2, 2019, DCFS filed a supplemental petition
pursuant to section 387 on the basis of these allegations. At the
subsequent April 3, 2019 hearing, the juvenile court approved
DCFS’s placement of L.L. in the care of paternal grandmother
and paternal great-grandmother. L.L. remained in that placement
throughout the ensuing dependency proceedings.
At the November 5, 2019 six-month status review hearing,
the juvenile court found that Mother had not made substantial
progress with her case plan. Although Mother had enrolled in an
outpatient substance abuse program, she attended only sporadically
and continued using marijuana. She was not consistent in
submitting to random drug testing. In addition, Mother had failed
to participate in individual counseling for the month leading up to
4 Although the juvenile court reissued Mother’s December 6,
2018 case plan on May 14, 2019, the court did not materially alter
the plan’s terms.
4
the hearing, and Mother’s therapist reported that she did not
appear to be making progress in her treatment goals. Finally,
notwithstanding Mother’s completion of a parenting class and her
twice-weekly visits with L.L., Mother told DCFS that “she was not
ready for [L.L.] to return to her care because [she was] ‘tired.’ ” The
juvenile court therefore ordered further reunification services and
set the 12-month review hearing for May 5, 2020. Due in part to
the Covid-19 pandemic, the court continued the 12-month review
hearing to December 8, 2020.
At the December 8 hearing, the juvenile court again found
that Mother’s compliance with her case plan “ha[d] been below
adequate.” Since the six-month status review, Mother had
demonstrated improved consistency in participating in mental
health services and increased motivation to comply with her
medication regimen; however, she sometimes forgot to take
her prescriptions. Mother reliably participated in outpatient
substance abuse counseling sessions, but she did not comply
consistently with the drug testing portion of the program. And
although Mother continued to visit L.L., she did so less frequently—
visiting only once per week, rather than the four times per week
permitted—and did not always appear for scheduled visits. The
court therefore concluded that it “[did not] think that [there was]
a likely date [by] which the child may be returned and safely
maintained in the family home,” and ordered that L.L. “continue
in the out-of-home placement” with paternal grandmother
and paternal great-grandmother. The court then terminated
reunification services and set a section 366.26 hearing for
March 30, 2021. The court subsequently continued the
section 366.26 hearing several times due to changes in L.L.’s
recommended permanent plan, finally scheduling the hearing
for March 2, 2022.
5
On December 1, 2021, approximately four months prior
to the scheduled March 2, 2022 section 366.26 hearing, Mother
entered residential substance abuse treatment. Due to the
Covid-19 pandemic, the program limited Mother’s visitation with
L.L. to video chat. Mother participated in 15-minute video visits
with L.L. four times during the week and occasionally on weekends.
DCFS reported that the visits went well.
On January 11, 2022—while living at the residential
treatment center—Mother filed a section 388 petition requesting
that the juvenile court either return L.L. to Mother’s care or
grant six additional months of reunification services, along with
liberalized visitation. In support of her requests, Mother argued
that her circumstances had changed because “[i]n addition to
previously completing a parenting program . . . , [she] ha[d] been
receiving mental health treatment . . . , outpatient substance
use treatment . . . since 5/22/2020 . . . , and subsequently enrolled
in an inpatient treatment program.” Mother argued further
that she “ha[d] been able to decrease her depressive symptoms
with utilizing coping skills over the past year[,] . . . ha[d] made
progress in treatment[,] and [had] obtain[ed] employment on her
own.” Mother also noted that her “marijuana use ha[d] decreased
consistently.” Finally, Mother asserted that her history of
successful once-a-week visits with L.L. demonstrated that the
requested relief would be in the child’s best interests.
On January 18, 2022, the juvenile court denied the petition,
concluding that Mother had failed to make a prima facie showing
of changed circumstances or that the proposed order would be in
L.L.’s best interests.
Between the January 18 denial of her petition and the
scheduled March 2 section 366.26 hearing, Mother completed
60 days of residential substance abuse treatment. Following her
6
release from the treatment facility on January 29, 2022, Mother
began visiting L.L. Monday through Friday for three hours in the
evening. DCFS reported that the visits went well: Mother would
take L.L. to the park, help L.L. with homework, or do arts and
crafts projects with L.L.
At the March 2, 2022 hearing, Mother introduced six exhibits
reflecting, inter alia, her completion of residential substance abuse
treatment, as well as her substantial volunteer service and positive
participation as an “elder” in the residential program. The juvenile
court determined that it could not order a permanent plan for L.L.
at the hearing because the materials submitted by DCFS did not
adequately document the caregivers’ recent decision to pursue
legal guardianship of L.L., rather than adoption.5 The court
therefore continued the section 366.26 hearing to March 22, 2022.
The court did, however, grant in part Mother’s request to allow
her unmonitored visits with L.L., permitting two of Mother’s four
weekly visits to proceed unmonitored.
On March 22, 2022, the juvenile court held the continued
section 366.26 hearing. Mother objected orally to DCFS’s proposed
plan of legal guardianship. She also requested that, if the court
nonetheless granted guardianship, she be permitted to conduct
all visits with L.L. unmonitored and be granted overnight visits.
Mother did not, however, file a new section 388 petition in advance
of the hearing. The juvenile court granted legal guardianship of
5 The record discloses that paternal grandmother and
paternal great-grandmother vacillated between pursuing adoption
and legal guardianship. They explained that, originally, they
believed they must pursue adoption to prevent another family
from adopting L.L. Their ultimate preference, however, was
to pursue legal guardianship to allow Mother and Father the
possibility of reunifying with L.L. in the future.
7
L.L. to paternal grandmother and paternal great-grandmother. It
also granted Mother’s request for unmonitored visits and granted
discretion to L.L.’s legal guardians to permit overnight visits.
Finally, the court terminated dependency jurisdiction over L.L.
B. ICWA Proceedings
Throughout the underlying dependency proceedings, Mother
and Father represented repeatedly that they have no Native
American Indian heritage. The ICWA Child Inquiry Attachment
(Judicial Council Forms, form ICWA-010(A) (ICWA-010(A) form))
appended to the October 16, 2018 section 300 petition reflects that
a DCFS social worker interviewed Father and Mother prior to
the petition’s filing, and that both parents “denied ICWA” in those
interviews.
In addition, both parents submitted parental notification
of Indian status forms in which they checked the box indicating
that they “have no Indian ancestry as far as [they] know” (Judicial
Council Forms, form ICWA-020). The juvenile court also confirmed
on the record during the October 17, 2018 detention hearing—at
which both Mother and Father appeared—that “both parents
indicate no Native American ancestry.”
Based on this information, the juvenile court determined
that it “[did] not have a reason to know” that L.L. was “an Indian
[c]hild, as defined under ICWA, and [did] not order notice to any
tribe or the [Bureau of Indian Affairs].” The court’s October 17,
2018 minute order directed the parents “to keep [DCFS], their
[a]ttorney[s,] and the [c]ourt aware of any new information relating
to possible ICWA status.” The court did not, however, inform the
parents orally during the October 17 hearing of the requirement to
provide updated ICWA information.
8
On April 2, 2019, in connection with preparation of its
supplemental section 387 petition, DCFS again interviewed
Father concerning any known Indian ancestry. The ICWA-010(A)
form appended to the supplemental petition reflects that, during
the interview, Father reiterated his prior representation that L.L.
“has no known Indian ancestry.” And on December 8, 2020, the
juvenile court confirmed its prior finding that there was no reason
to know that L.L. was an Indian child, as defined under ICWA.
Finally, the record reflects that, over the course of the
dependency proceedings, DCFS had contact with extended maternal
and paternal relatives, including paternal grandmother, paternal
great-grandmother, paternal grandfather, maternal grandmother,
maternal aunt, and maternal uncle. DCFS concedes that it did not
interview these relatives concerning L.L.’s heritage.
C. Notices of Appeal
Mother timely appealed the juvenile court’s January 18, 2022
denial of her section 388 petition, as well as the court’s March 22,
2022 orders appointing legal guardians for L.L. and terminating
dependency jurisdiction. We consolidated the appeals for purposes
of argument and decision.6
6 In its respondent’s brief filed prior to the consolidation,
DCFS argues that Mother’s purported failure to appeal the
March 22, 2022 orders rendered moot the remainder of her
appeal. DCFS now appears to recognize that Mother did appeal
the March 22 orders, and it omits the mootness argument from
its post-consolidation respondent’s brief. To avoid any doubt, we
note that Mother’s appeals are not moot. We can provide Mother
effective relief by (1) reversing the January 18 and March 22
orders, and (2) directing the juvenile court to hold a hearing on
the section 388 petition, to order further ICWA compliance, or
9
DISCUSSION
Mother contends that we must reverse the juvenile court’s
March 22, 2022 orders appointing legal guardians for L.L. and
terminating dependency jurisdiction because (1) the court erred
in denying her section 388 petition without a hearing, and
(2) DCFS and the court failed to discharge their respective ICWA
initial inquiry duties. Mother contends further that, in light of
these errors, we must reverse the court’s January 18, 2022 order
denying the section 388 petition and remand the matter for ICWA
compliance.
We review the court’s summary denial of the section 388
petition for abuse of discretion (In re Angel B. (2002) 97 Cal.App.4th
454, 460), and because the material facts are undisputed, “ ‘ “we
review independently whether ICWA requirements have been
satisfied.” ’ [Citation.]” (In re J.K. (2022) 83 Cal.App.5th 498, 504.)
A. The Juvenile Court Acted Within Its Discretion
When It Summarily Denied Mother’s Section 388
Petition
Mother contends that the court abused its discretion by
denying her section 388 petition without a hearing. We disagree.
Section 388 allows a parent or other person with an interest
in a dependent child to petition the court for a hearing to change,
modify, or set aside any previous order on the grounds of change of
circumstance or new evidence. (§ 388.) The petition “shall set forth
in concise language any change of circumstance or new evidence
both. (See, e.g., In re D.P. (2023) 14 Cal.5th 266, 277 [“[A] case is
not moot where a court can provide the plaintiff with ‘ “effective
relief.” ’ [Citation.] In this context, relief is effective when it ‘can
have a practical, tangible impact on the parties’ conduct or legal
status.’ ”].)
10
that is alleged to require the change of order or termination of
jurisdiction.” (Ibid.)
The parent seeking modification must “ ‘make a prima facie
showing to trigger the right to proceed by way of a full hearing.
[Citation.]’ [Citations.]” (In re Anthony W. (2001) 87 Cal.App.4th
246, 250.) This showing has two prongs: A parent must
demonstrate (1) a genuine change of circumstances or new evidence,
and (2) that revocation of the prior order would be in the best
interests of the child. (Ibid.) “ The prima facie requirement is not
met unless the facts alleged, if supported by evidence given credit
at the [requested] hearing, would sustain a favorable decision on
the petition.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
Mother failed to make the necessary showing. With respect
to the first prong, the record as a whole reflects that Mother
was in the process of changing at the time the court denied her
petition, not that she had completed a significant change. (See
In re Mickel O. (2011) 197 Cal.App.4th 586, 615 [“the [section 388]
petitioner must show changed, not changing, circumstances,”
italics omitted].) Although Mother had obtained employment
and demonstrated improved consistency in managing her mental
health, she had entered residential substance abuse treatment
only six weeks prior to filing her petition and had not yet completed
the program. Mother’s laudable progress thus reflected changing,
rather than changed, circumstances—a fact that distinguishes
her case from the authorities on which she relies. (See In re N.F.
(2021) 68 Cal.App.5th 112, 119 [affirming juvenile court’s decision
to conduct section 388 hearing, but ultimately to deny the petition,
where petitioner had completed a 90-day residential treatment
program five months prior to filing the petition]; In re Aljamie D.
(2000) 84 Cal.App.4th 424, 432 [reversing denial of section 388
petition without a hearing because, inter alia, petitioner had tested
11
clean in weekly random drug tests for over two years prior to
filing the petition].)
As to the second prong, Mother relies solely on her
once-a-week, in-person visits with L.L. as evidence that her
request would be in the child’s best interests. But earlier in
the dependency proceedings, Mother had been visiting L.L.
twice per week. Mother’s petition therefore reflected a decrease
in visitation, rather than progress in working toward the four
visits per week permitted by Mother’s case plan. And Mother’s
enrollment in residential substance abuse treatment—which we
reiterate was commendable—restricted her ability to visit L.L.
in person. Moreover, Mother’s petition fails to address any of the
remaining considerations relevant to the “best interests” inquiry,
including “the seriousness of the reason for the dependency in the
first place” (see In re Kimberly F. (1997) 56 Cal.App.4th 519, 530)
and the “length of time [L.L.] has been in the dependency system
in relationship to the parental bond.” (See id. at p. 531.) These
factors counsel against granting Mother’s petition: DCFS filed this
case because of a serious safety issue; L.L. was only 10 months old
when DCFS initiated the proceedings in October 2018; and since
March 2019, L.L. has resided with paternal grandmother and
paternal great-grandmother.
On appeal, Mother argues that, following the court’s
denial of her petition, she made further significant progress
in achieving sobriety and in building a strong bond with L.L.
She points to, inter alia, her completion of residential substance
abuse treatment and her successful unmonitored visits with L.L.
We agree that the record reflects laudable progress by Mother. In
general, however, we review the correctness of an order as of the
time it was made. (See In re Josiah Z. (2005) 36 Cal.4th 664, 676
[“an appellate court should not consider postjudgment evidence
12
going to the merits of an appeal and introduced for the purposes
of attacking the trial court’s judgment”]; In re Zeth S. (2003) 31
Cal.4th 396, 405.) And although Mother argued at the section
366.26 hearing that the court should return L.L. to her custody,
Mother did not file an updated section 388 petition describing the
additional changed circumstances. (See In re Caden C. (2021) 11
Cal.5th 614, 630 [contrasting section 388, which permits the return
of a child to a parent’s custody, with “the section 366.26 hearing,
[at which] the question before the court is decidedly not whether
the parent may resume custody of the child”].)
We therefore agree with DCFS that, should Mother wish
to challenge the legal guardianship order on the basis of evidence
postdating her original petition, she may file a new section 388
petition. (See In re Priscilla D. (2015) 234 Cal.App.4th 1207, 1210
[concluding that “a legal guardianship can be terminated by a
parent under section 388”].)
Accordingly, we conclude that the juvenile court did not abuse
its discretion in denying Mother’s section 388 petition on the record
then before it.
B. The ICWA Inquiry Errors Were Harmless
Mother contends that DCFS failed to interview available
extended family members concerning L.L.’s heritage, as required
by California law implementing ICWA. (See § 224.2, subds. (a)
& (b); Cal. Rules of Court, rule 5.481 (a)(1) [when DCFS seeks
a guardianship or preadoptive placement, it “must ask the child,
if the child is old enough, and the parents, . . . extended family
members, [and] others who have an interest in the child . . .
whether the child is or may be an Indian child”].) Mother
contends further that the juvenile court failed to discharge its
duty to instruct the parties at their first appearance “to inform
13
the court if they subsequently receive information that provides
reason to know the child is an Indian child.” (§ 224.2, subd. (c).)
DCFS concedes, and we agree, that DCFS and the court failed
to discharge their respective initial inquiry duties. We conclude,
however, that no prejudice resulted from the errors.
Although California law on the issue is unsettled,7 this
division consistently has rejected the argument that DCFS’s
failure to inquire of extended family members mandates automatic
reversal. (See In re S.S. (2022) 75 Cal.App.5th 575, 581 (S.S.);
In re Darian R. (2022) 75 Cal.App.5th 502, 504 (Darian R.); In re
A.C. (2022) 75 Cal.App.5th 1009, 1017 (A.C.).) Rather, our division
generally has evaluated this issue to determine whether “ ‘the
probability of obtaining meaningful information is reasonable
in the context of ICWA.’ ” (Darian R., supra, at p. 509, quoting
In re Benjamin M. (2021) 70 Cal.App.5th 735, 744.) In making this
determination, we have rejected “a wooden approach to prejudice”
(A.C., supra, at p. 1017), and refused to require further inquiry
when, based upon the particular circumstances revealed by the
record, it is apparent “that additional information would not have
been meaningful to the inquiry.” (Benjamin M., supra, at p. 743;
see, e.g., S.S., supra, at p. 582.)
Here, the record does not support that interviews of available
extended family members would yield new information likely to
bear on the ICWA inquiry. In addition to reflecting the parents’
7 “[T]here is currently a wide and varied split of authority
among the Courts of Appeal regarding the proper standard to
apply in determining the prejudicial effect” of ICWA error. (In
re Y.M. (2022) 82 Cal.App.5th 901, 911 (Y.M.).) The question of
the applicable standard presently is pending before the California
Supreme Court. (See In re Dezi C. (2022) 79 Cal.App.5th 769,
review granted Sept. 21, 2022, S275578.)
14
repeated denials of Indian heritage, the record discloses that both
parents remained in close contact with biological extended family
members. At various stages in the dependency proceedings, Mother
lived with her own mother, and Mother maintained a relationship
with her siblings. Similarly, Father lived with his parents and
one sibling, and also maintained a relationship with his other
siblings. Mother and Father “therefore presumably could have
asked [their extended family members] at any time whether [they]
knew of any possible Indian ancestry”—a fact that suggests that
DCFS interviews of extended family members would be unlikely
to produce new information meaningful to the ICWA inquiry.
(Y.M., supra, 82 Cal.App.5th at p. 917; accord, Darian R., supra, 75
Cal.App.5th at p. 510 [initial inquiry error harmless where, among
other factors, “[the] mother at various times lived with the relatives
she claims DCFS failed to interview”].)
Moreover, paternal grandmother and paternal
great-grandmother sought—and eventually obtained—legal
guardianship of L.L. ICWA directs that “preference shall be
given . . . to a placement with [¶] . . . [¶] . . . a member of the Indian
child’s extended family.” (25 U.S.C. § 1915, subds. (a) & (b)(i).)
Paternal grandmother and paternal great-grandmother thus
“presumably would have had a strong incentive to raise any Indian
ancestry in support of th[eir legal guardianship] goal,” yet they
did not do so. (Y.M., supra, 82 Cal.App.5th at pp. 917–918; accord,
S.S., supra, 75 Cal.App.5th at p. 582.) We therefore conclude that
DCFS’s inquiry error did not result in prejudice.
Nor was the juvenile court’s ICWA inquiry error prejudicial.
The court did not advise the parents during their first appearance
of the duty to disclose any newly acquired ICWA information;
however, the court did confirm the parents’ denials of Indian
heritage on the record and subsequently issued a written order
15
directing the parents to provide any updated ICWA information
to their attorneys, the court, and DCFS. Court-appointed counsel
represented the parents throughout the dependency proceedings,
and nothing in the record suggests any reason to doubt that the
parents’ attorneys would have been aware of, and ensured their
clients’ compliance with, the order. (See In re Daniel S. (2004) 115
Cal.App.4th 903, 915 [“in the absence of any evidence in the record
to the contrary, we assume the attorney discharged his duty and
spoke with [his client],” citing Evid. Code, § 664].)
We therefore conclude that the ICWA inquiry errors here
were harmless.
C. Mother’s Challenge to the March 22, 2022 Orders—
Which Depends Entirely on Her Other Claims—
Also Fails
In seeking reversal of the juvenile court’s March 22, 2022
orders, Mother relies exclusively on her arguments that (1) the
court erred in summarily denying her section 388 petition, and
(2) DCFS and the court each committed ICWA error. Because we
conclude that neither of the aforementioned errors is reversible, we
necessarily conclude that Mother’s challenge to the March 22 orders
also fails.
16
DISPOSITION
The juvenile court’s January 18, 2022 and March 22, 2022
orders are affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
WEINGART, J.
17