In re J.R. CA5

Filed 12/7/20 In re J.R. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
In re J.R. et al, Persons Coming Under the
Juvenile Court Law.
MADERA COUNTY DEPARTMENT OF F081056
SOCIAL SERVICES/CHILD WELFARE
SERVICES, (Madera Super. Ct.
Nos. MJP018414, MJP018415,
Plaintiff and Respondent, MJP018416 & MJP018417)
v.
OPINION
C.R. et al.,
Defendants and Respondents;
J.R. et al.,
Appellants.
APPEAL from a judgment of the Superior Court of Madera County. Thomas L.
Bender, Judge.
Beth A. Sears, under appointment by the Court of Appeal, for Appellants.
Regina A. Garza, County Counsel, and Ann Hanson, Deputy County Counsel, for
Plaintiff and Respondent.
Richard L. Knight, under appointment by the Court of Appeal, for Defendant and
Respondent, S.R.
Gino de Solenni, under appointment by the Court of Appeal, for Defendant and
Respondent, C.R.
-ooOoo-
In this dependency case, four minor children appeal their dispositional orders.
They contend the court erred in finding that the Indian Child Welfare Act (25 U.S.C.
§ 1901 et seq; see also Welf. & Inst. Code, § 224 et seq.)1 (ICWA) does not apply and
erred in declining to order expedited placement under the Interstate Compact of the
Placement of Children (ICPC). Appellants’ mother, a respondent on appeal, agrees with
appellants as to the ICWA issues and seeks a conditional reversal as to that issue.
However, Mother argues the court’s placement rulings should be affirmed. The father of
appellants W.R., I.R., and J.R., joins in appellants’ arguments on both issues and seeks
reversal of the dispositional orders.
We conclude the ICWA finding must be set aside, but otherwise affirm the
dispositional orders.
FACTS
As of early November 2019, Mother S.R. (“Mother”) was incarcerated on for
committing several sex crimes against a minor. On November 2, 2019, a sheriff’s
detective and social worker conducted a walkthrough of Mother’s home. The social
worker located a methamphetamine pipe “full” of methamphetamine, along with a baggie
with more methamphetamine in a nightstand accessible to the children. The home was
“very dirty with trash,” and there was not enough food considering the size of the family.
Mother’s children, appellants R.B. (12 years old), W.R. (seven years old), and I.R.
(five years old) were placed into protective custody that afternoon.2 The children’s
maternal grandmother resides in Nevada. However, she was “in town” at the time of
removal, and the children were temporarily placed in her care after the Madera County
Social Services Department (“Department”) made arrangements for her housing. A
1All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
2 All ages are as of the time of removal in November 2019.
2.
fourth child, appellant J.R. (eight years old), was initially left in the care of a family
friend but was subsequently placed with maternal grandmother as well.
The Department held a team decision meeting on November 4, 2019. Mother
stated she “may have Cherokee ancestry,” but that she does not have a tribal registration
number.
Dependency Proceedings
On November 5, 2019, the Department filed a dependency petition (§ 300)
pertaining to all four children. The petition alleged each of the four children came within
the provisions of subdivisions (b) and (g) of section 300.
Initial Detention Hearing
An initial detention hearing was held on November 6, 2019. Carlos R. (“Father”)
appeared. Mother, who was in custody, was not transported to the hearing. The court
continued the hearing to the next morning and asked Father if he could attend. Father
said, “Yes, sir. I can.” However, Father did not appear at the hearing the next day.
Continued Detention Hearing
At the continued detention hearing on November 7, 2019, Mother told the court
she may have Cherokee “blood” on her father’s side of the family. She provided the
court with her father’s name, address, and phone number. Mother also said that her
paternal grandmother is a member of the Cherokee tribe. Mother provided the court with
her paternal grandmother’s name, address, and phone number. The court directed the
Department to follow up with paternal grandmother regarding her Indian ancestry.
Mother told the court she had been married to Father from 2009 to 2017. The
birthdates of J.R., W.R., and I.R. show they were all born during Mother’s marriage to
Father. The court found Carlos R. (“Father”)3 to be the presumed father of J.R., W.R.,
3 We will refer to Carlos R. as “Father” given that he is father to three of the four
children. The alleged fathers of R.B. have not appeared.
3.
and I.R. As for R.B., Mother said his father was either a man named John R. or a man
named Walter, whose last name she did not know.
Placement Changes
In the days that followed the detention hearing, maternal grandmother returned to
Nevada, and J.R. and W.R. were moved into a foster home. R.B. was moved to a
nonrelative, extended family member.4 I.R. was in the care of an individual named
Vickie A.
November 14, 2019 Hearing
At a hearing on November 14, 2019, the court reminded the Department to contact
maternal grandfather and maternal great-grandmother regarding Cherokee ancestry. The
court also directed the Department to assess maternal grandfather for possible temporary
placement.
Jurisdictional Hearing
An initial jurisdictional hearing was held on December 3, 2019. The parties and
the court discussed several issues before continuing the jurisdictional hearing to
December 10, 2019. The court directed the Department to assess Father and to place the
children with him “if it’s appropriate.” If placement is deemed not appropriate, the
Department needed to set up a visitation plan for Father.
At the continued hearing on December 10, 2019, Mother and Father submitted on
the Department’s report and waived their right to a contested hearing. The court found
the allegations of the petition true and set a dispositional hearing.
The Department informed the court that it planned to place J.R. and W.R. with
Father on December 16, 2019. The Department planned to place I.R. with Father at a
4 Nonrelative extended family members are adult caregivers who have an
established familial relationship with a relative of the child, or a familial/mentoring
relationship with the child. (§ 362.7.)
4.
later date, after J.R. and W.R. had adjusted to the new placement. R.B. was still placed
with a nonrelative, extended family member and no change in placement was needed.
Maternal grandmother told the court that she wanted placement of I.R. and R.B.
The court noted that she lived out of state, which maternal grandmother acknowledged.
The court asked, “How is that going to work?” Maternal grandmother replied, “I would
have to bring them back.” The court said it would not place I.R. out of state.
Later, Mother’s counsel objected to placement with Father. Counsel argued that
Father should have to drug test before obtaining placement. Counsel also contended that
Father had been convicted of terroristic threats and misdemeanor domestic violence
against Mother yet had not completed any domestic violence classes.
Father said he quit his job to be a “full-time parent.” The court asked Father what
his source of income would be. Father replied, “Right now I’m trying – going back to
school. It’s not really real stable, but I’m trying to get a job….” Father’s wife worked
full time and said she made enough to support them.
The court noted that it needed to determine whether or not ICWA applies. The
court told counsel for the Department that it need to “make sure on the ICWA issue
because we [have] got a dispo[sitional hearing].” The court said that someone in the
Department “needs to get on top of that,” and “[t]hat needs to be done now.” The
Department indicated that the children’s maternal grandfather “is the person to which
ICWA might attach, and he’s the one that the Department cannot get ahold of right now.”
The court observed that the children’s paternal great-grandmother “still hasn’t been
talked to.”
Initial Dispositional Hearing
At the initial dispositional hearing on December 19, 2019, the Department
requested a continuance. The court agreed to continue the hearing to January 9, 2019.
However, the court stated that it was “disappointed” that the continuance was necessary.
5.
The court noted that the Department should have followed up on ICWA-related issues
back in November.
Events of January 2020
On January 6, 2020, the Department informed the court that Father had been
arrested two days prior for a parole violation. The violation concerned acts of domestic
violence Father allegedly committed against his current wife. The Department
“anticipated” that Father would be serving “a significant period of time in prison.” Due
to these recent developments, the Department was not prepared to make a
recommendation as to disposition and requested a four-week continuance.
On January 6, 2020, the Department sent ICWA notices to the Cherokee Nation,
Eastern Band of Cherokee Indians, and the United Keetowah Band of Cherokee. The
notices indicated that the address of maternal grandmother, Debbie B., was not known.
The notices also left her tribal membership information blank.
A social worker interviewed Father on January 7, 2020. Father said his children
wanted to live with his current wife. Father also provided the name and telephone
number of his aunt, Linda P., and his ex-wife, Frances O. for placement.
On January 8, 2020, the Department filed a supplemental dependency petition
(§ 342) based on the allegations of domestic violence against Father and his subsequent
incarceration.
At a hearing on January 9, 2020, the court granted a continuance of the
dispositional hearing to February 26, 2020. The court proceeded to conduct a detention
hearing on the supplemental petition.
Mother stated her father was willing to take placement of J.R. and W.R., but social
workers said he could not have placement because he did not have bunk beds.
Minors’ counsel informed the court that the Department had “initiated an ICPC for
placement out of state” with grandmother in Nevada. Minors’ counsel said the court
“could order an expedited ICPC” so that the court would have the information it needed
6.
for the dispositional hearing. The court replied, “I’m not going to do that” and said that
the requisite information could (and should) be in “the report” without an expedited
ICPC. The court said it would not order an expedited ICPC because the recommendation
of the Department was unknown, and it was also unknown whether “people are going to
be waiving FR” (family reunification services). The court observed that “they” can still
“work on it” – meaning work on the ICPC process.
Mother indicated she wanted her children placed with her aunt, who lived out of
state.
The court expressed frustration that the Department had not ensured that Mother
could have visits with I.R.
Disposition Report
The Department filed a jurisdiction/disposition report on February 4, 2020. The
report indicated that each of the four children were placed in separate foster homes. Each
of the children had been exhibiting sexualized behaviors.
The report indicated that the Department had eliminated paternal grandfather,
Craig B., as a potential placement because of “the constant presence of a person in [the]
home whom the Department identified [as] a danger to the safety of the children.”
The report also indicated the following:
“There are two relatives in Nevada who are interested with
placement [sic] the children with them, Grandmother Debbie [] and aunt
Karen [S.] [Social Worker] Forige has informed [Debbie and Karen] of the
information that will be needed to [sic] Interstate Compact of the Placement
of Children (ICPC). As soon these [sic] documents from the relatives are
receive by the Department, it will be sent to Nevada Child Protective
Services.”
The Department also indicated in the report that it would “continue to search” for
an adoptive home for the children should reunification efforts fail. The Department
would “exercise due diligence” in identifying and locating relatives and mentors as
mandated by Assembly Bill 938 and sections 309 and 628.
7.
Continued Disposition Hearing
On February 6, 2020, the disposition hearing was continued to February 20, 2020.
On February 20, 2020, the court conducted a jurisdictional hearing as to the
supplemental petition, and a dispositional hearing. Mother and Father submitted on the
detention and jurisdiction reports.
Mother informed the court that she was still incarcerated but had obtained her
“parenting class certificate and [her] domestic violence certificate and [her] substance
abuse certificate.”
I.R.’s caretaker said I.R. missed her brothers. Minor’s counsel told the court that
the four children, who were in four separate foster homes, wanted to live together with
their aunt in Nevada. The court replied, “That’s always an option. They’re always doing
concurrent plan [sic].” Minors’ counsel then requested that the court “order that the
evaluations start taking place out of Nevada.” The court declined to issue such an order.
Counsel for the Department said he was planning to ask the social worker to start
the ICPC process and begin the evaluation. Counsel said that since the case had now
proceeded past jurisdiction and disposition, “we should at least start the process.” The
court replied, “All right. Well, there’s your answer. Thanks, everybody.”
In its written dispositional orders, the court found that ICWA did not apply
because Mother and Father had “completed and filed form ICWA-020 … and … denied
that [he/she] has any Indian heritage.”
All four minor children have appealed the court’s dispositional order.5 Their
notices of appeal reference the dispositional order with the notation: “Court did not order
ICPC – Interstate Compact.”
5 Father has joined in the arguments appellants raise on appeal. Mother joins
appellants as to their arguments concerning ICWA-related issues. However, she argues
the court did not err with regards to ICPC and relative placement issues.
8.
DISCUSSION
I. The Department Failed to Comply with California Statutes Concerning
ICWA Compliance
A. Law
1. Duties of Inquiry and Further Inquiry
The Department has an affirmative and continuing duty to inquire if any child for
which a dependency petition has been filed is an Indian child. (§ 224.2, subd. (a).) The
Department must ask the child, parents, legal guardian, extended family members, and
others, whether the child is an Indian child. (Id., subd. (b).)
a. “Reason to know” and “Reason to believe”
If the Department comes to have “reason to know” the child is an Indian child, it
must send ICWA notices to the child’s tribe (§ 224.2, subd. (f)), and the court must
conduct the proceedings as if the child is an Indian child, until it is determined otherwise.
(id., subd. (i)(1).) Such “reason to know” exists if any of the following are true:
“(1) A person having an interest in the child, including the child, an
officer of the court, a tribe, an Indian organization, a public or private
agency, or a member of the child’s extended family informs the court that
the child is an Indian child.
“(2) The residence or domicile of the child, the child’s parents, or
Indian custodian is on a reservation or in an Alaska Native village.
“(3) Any participant in the proceeding, officer of the court, Indian
tribe, Indian organization, or agency informs the court that it has discovered
information indicating that the child is an Indian child.
“(4) The child who is the subject of the proceeding gives the court
reason to know that the child is an Indian child.
“(5) The court is informed that the child is or has been a ward of a
tribal court.
“(6) The court is informed that either parent or the child possess an
identification card indicating membership or citizenship in an Indian tribe.”
(Id., subd. (d).)
9.
If, however, the Department only has “reason to believe” that the child is an Indian
child, it must conduct something referred to as “further inquiry.” (former § 224.2,
subd. (e).)6 The Department must conduct the “further inquiry … as soon as
practicable.” (Ibid.)
Further inquiry includes, but is not limited to:
“(1) Interviewing the parents, Indian custodian, and extended family
members to gather the information required in paragraph (5) of subdivision
(a) of Section 224.3.
“(2) Contacting the Bureau of Indian Affairs and the State
Department of Social Services for assistance in identifying the names and
contact information of the tribes in which the child may be a member, or
eligible for membership in, and contacting the tribes and any other person
that may reasonably be expected to have information regarding the child’s
membership status or eligibility.
“(3) Contacting the tribe or tribes and any other person that may
reasonably be expected to have information regarding the child’s
membership, citizenship status, or eligibility. Contact with a tribe shall, at
a minimum, include telephone, facsimile, or electronic mail contact to each
tribe’s designated agent for receipt of notices under the federal Indian Child
Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.). Contact with a tribe
shall include sharing information identified by the tribe as necessary for the
tribe to make a membership or eligibility determination, as well as
information on the current status of the child and the case.” (former
§ 224.2, subd. (e)(1)-(3).)
If, after further inquiry, the Department still does not have “reason to know” the
child is an Indian child, the court may find that ICWA does not apply. (§ 224.2,
subd. (i)(2).) This finding is subject to reversal for insufficient evidence. (Ibid.)
2. ICWA Notices
As mentioned above, the Department must send ICWA notices if it has reason to
know the child is an Indian child. (§ 224.2, subd. (f) & § 224.3, subd. (a).) The notices
Section 224.2, was recently amended to provide that “reason to believe” exists
6
when there is information “that indicates, but does not establish,” the grounds for “reason
to know” set forth in subdivision (d).)
10.
must contain certain information listed by statute, including the names of certain
relatives. (See § 224.3, subd. (a)(5).)
B. Analysis
1. Further Inquiry
Appellants claim that here, the Department had a duty to perform the “further
inquiry” described in section 224.2, subdivision (e). Appellants contend the Department
failed to perform that duty, observing that, as of the disposition hearing on December 19,
2019, the Department had yet to interview maternal great-grandmother.
Clearly, the Department had a duty to interview maternal great-grandmother.
Mother said maternal great-grandmother was an enrolled member of a tribe. Thus, she
would clearly be a “person … reasonably … expected to have information regarding the
child’s membership status or eligibility.” (former § 224.2, subd. (e)(2).) Yet, the
Department cites no evidence of any information it obtained from maternal great-
grandmother, such as her confirmation of Mother’s claim that she is enrolled in a tribe, or
clarification that she actually is not an enrolled member.
The Department responds by citing a comment from its counsel at the
December 19, 2019, indicating maternal great-grandmother was “going to give all her
relevant information” later that day.7 However, the record does not explain whether that
anticipated exchange of information actually occurred or, more importantly, what
information she provided. In no way can this brief reference constitute substantial
evidence that the Department actually interviewed maternal great-grandmother to obtain
7The court responded by asking, “[W]hy did it take so long?” The court
continued,
“I mean, we are, like, six weeks into this thing. I just don’t understand why
it takes six weeks when we have the information at the initial hearing, why
the Department isn’t on top of that, contacting her, determining if this is
ICWA, giving the notice. This is how things get messed up, how we get
reversed, and it just causes problems, and frankly, I don’t understand that,
and that needs to be straightened out with the Department.”
11.
the required information, such as her tribal enrollment information. (See former § 224.2,
subd. (e)(1). See also § 224.3, subd. (a)(5)(C).) Indeed, the record suggests the opposite:
that this interview may not have occurred. The ICWA notices the Department sent out
mere weeks later said, “No information available” in the space for maternal great-
grandmother’s address. There is no explanation in the record as to why this basic
information would not have been obtained if the Department indeed spoke with maternal
great-grandmother on December 19, 2019 as anticipated.8 Nor is there explanation as to
why, if the interview did occur, the information obtained thereby was not provided to the
court.
Consequently, there is insufficient evidence the Department complied with its duty
of further inquiry under section 224.2.
2. ICWA Notices
Appellants also find fault with the ICWA notices themselves. Appellants observe
that the notices indicated the addresses for maternal grandfather and maternal great-
grandmother were “unknown” when, in fact, Mother had provided those addresses in
open court on November 7, 2019. The Department does not even address this clear
deficiency in the ICWA notices.
California law requires that ICWA notices contain all known addresses of the
child’s great-grandparents. (§ 224.3, subd. (a)(5)(C).) Mother provided maternal great-
grandmother’s address in open court, yet the ICWA notices omitted this information.
This clearly violates the statutory mandates of section 224.3.
The Department claims that on the day of the jurisdiction/disposition hearing,
Mother filed a “new” ICWA-020 form and denied having “any Indian heritage.” The
8
The absence of this information is even more perplexing, given that Mother
provided it in open court on November 7, 2019.
12.
Department does not cite to the record in support of this contention and has therefore
forfeited it.9 (See Cal. Rules of Court, rule 8.204(a)(1)(C).)
II. The Court did not Abuse its Discretion in Declining to Order Expedited
Placement Under the ICPC
Appellants next contend the court shirked its duty to oversee timely consideration
of their placement under section 361.3. Mother and the Department claim appellants lack
standing to raise this claim; and that the court did not abuse its discretion.
A. Standing
“ ‘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.]’ [Citation.]” (In re J.Y. (2018) 30 Cal.App.5th 712, 717.)
Mother argues her children lack standing to appeal. The Department joins in
Mother’s argument on this point.
First, Mother contends that because the Department was indeed investigating
relative placement, the children “cannot show they have been prejudiced by the juvenile
court’s decision.” However, that is an argument on the merits of the appeal, in that it is a
9 Earlier in its brief, the Department quoted the following sentence from Mother’s
brief: “On February 20, 2020, the juvenile court found that [Mother] filed a Parental
Notification of Indian Status (form “ICWA-020”) indicating she had no Indian heritage.
[Citation.])” But this does not contain the Department’s novel claim on page 6 of its
brief that Mother filed an ICWA-020 form on the day of the jurisdiction/disposition
hearing. Thus, the Department has made an independent representation to this court that
Mother indeed filed an ICWA-020 on the day of the jurisdiction/disposition hearing
indicating she has no Indian ancestry.
Additionally, the Department does not cite to any substantial evidence supporting
the court’s finding regarding the purported ICWA-020 form indicating no Indian
heritage.
13.
contention that no prejudicial error occurred. To determine whether appellants have
standing, we ask whether they have a “substantial interest” at stake in the court’s ruling.
Clearly, they do. (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1053 [“a child has a
legally cognizable interest in his or her placement with a relative”].) The fact that their
argument for reversal may ultimately prove meritless due to lack of prejudice is a
different question. “Any other approach would improperly conflate standing to appeal
with the merits.” (In re Catherine H. (2002) 102 Cal.App.4th 1284, 1294.)
Next, Mother contends that “it is the relatives in Nevada who are the theoretically
injured parties….” However, the fact that such relatives may have appellate standing
does not negate the children’s own standing. “ ‘Where the interests of two parties
interweave, either party has standing to litigate issues that have a[n] impact upon the
related interests….’ ” (In re Caitlin B. (2000) 78 Cal.App.4th 1190, 1193.) This is not a
case where one party is claiming errors on appeal “which only affect another party who
did not appeal. [Citations.]” (In re Crystal J. (2001) 92 Cal.App.4th 186, 189, italics
added.) The children are asserting their own legally cognizable interest in placement
with a relative. (In re Esperanza C., supra, 165 Cal.App.4th at p. 1053.)
We conclude appellants have standing to challenge the dispositional orders as to
the placement issue they raise.
B. The Court did not Abuse its Discretion in Declining to Order an
Expedited ICPC Placement
When children are removed from the physical custody of their parents,
“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.” (Id., subd. (c)(1).)
“In determining whether placement with a relative is appropriate, the county social
worker and court shall consider, but shall not be limited to, consideration” of a number of
14.
statutorily enumerated factors. (§ 361.3, subd. (a).) First and foremost, the court
considers the best interest of the child. (Id., subd. (a)(1).) The court must also consider
the proximity of the placement to the parents and the ability of the relative to facilitate
court-ordered reunification efforts with the parents, which would include visitation. (Id.,
subds. (a)(3) & (a)(7)(E); Fam. Code, § 7950; In re Luke L. (1996) 44 Cal.App.4th 670,
680.)
California has adopted the ICPC, which governs the placement of dependents in
another state. (Fam. Code, § 7900; Cal. Rules of Court, Rule 5.616(a).) It provides that a
“sending agency” (e.g., the Department), “shall not send, bring, or cause to be sent or
brought into any other party state any child for placement in foster care or as a
preliminary to a possible adoption unless the sending agency complies with” several
requirements. (Fam. Code, § 7901, art. III, subd. (a).) The sending agency must provide
information to the appropriate agency of the receiving state (the “receiving agency”),
including certain information about the child, parents/legal guardian, proposed placement
and the reasons for pursuing interstate placement. (Id., subd. (b).) The sending agency
must receive notice from the receiving agency indicating that the proposed placement
“does not appear to be contrary to the interest of the child” before the child may be sent
to the receiving state. (Id., subd. (d).)
In certain circumstances, California dependency courts “may” designate a
proposed interstate placement as an “expedited placement.” (Cal. Rules of Court rule,
5.616(h) (“Rule 5.616”).) Doing so triggers a requirement that the ICPC administrator of
the receiving state must make a determination within 20 days as to whether the placement
is approved. (Rule 5.616(h)(5).)
Before ordering an expedited placement, the court must make several findings,
including that the child meets at least one of the following criteria:
1. It is an “unexpected dependency” due to the sudden or recent
incarceration, incapacitation, or death of a parent or guardian.
15.
2. The child is 4 years of age or younger.
3. The child is part of a group of siblings who will be placed together,
where one or more of the siblings in 4 years of age or younger.
4. The child, or one of the children in her or her sibling group, has a
substantial relationship with the proposed placement.
5. The child is in an emergency placement. (Rule 5.616(h)(2).)
Appellants contend the court erred in denying their request for an expedited
placement.
1. Standard of Review
We are not aware of any published decisions that establish an appellate standard of
review specific to orders denying expedited placements under the ICPC. Generally,
“placement orders are reviewed under the abuse of discretion standard; the court is given
wide discretion and its determination will not be disturbed absent a manifest showing of
abuse.” (In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1420-1421.) We see no reason
to depart from that standard here. Rule 5.616 provides that courts “may” order expedited
placement, which strongly suggests a discretionary decision. Therefore, we will apply
the abuse of discretion standard and ask whether the court’s decision “exceeded the
bounds of reason.” (Sabrina H., at p. 1421.)
2. Analysis
We conclude the court’s ruling did not exceed the bounds of reason. As noted
above, once the children were detained from Father’s care on January 6, 2020, the
Department was required to begin considering placing the children with a relative.
(§ 361.3.)10 The record showed that consideration began almost immediately. On
January 9, 2020, appellant’s counsel informed the court that the Department “initiated an
10 This duty was triggered earlier for R.B., who is not Father’s child. He was
removed from his Mother’s custody back on November 2, 2019. He was initially placed
with a relative – maternal grandmother. Later, he was moved to a nonrelative extended
family member. However, the record shows that the Department has begun investigating
placement with maternal relatives.
16.
ICPC for placement out of state in Nevada.” The disposition report dated February 6,
2020, indicated that the Department informed the two Nevada relatives interested in
placement “of the information that will be needed to [comply with the] Interstate
Compact of the Placement of Children (ICPC).” The report indicated that “as soon as
these documents from the relatives are receive by the Department, it will be sent to
Nevada Child Protective Services.”
Thus, there is ample evidence that the Department began the ICPC process quickly
after relative placement consideration became necessary for I.R., J.R. and W.R.
However, appellants argue the court should have ordered an expedited ICPC process.
The court declined to do so, observing that the Department can continue to work on the
ICPC process even if an expedited placement is not ordered. Moreover, at the time of the
court’s ruling, it was unknown whether “people are going to be waiving FR” (i.e., family
reunification services). The court was entirely correct to consider this factor in exercising
its discretion. When considering relative placement, courts must consider the proximity
of the placement to the parents and the ability of the relative to facilitate court-ordered
reunification efforts with the parents, which would include visitation. (§ 361.3,
subds. (a)(3) & (a)(7)(E); Fam. Code, § 7950; In re Luke L., supra, 44 Cal.App.4th at
p. 680.) Here, the relatives lived in another state, and placing the children with them
would likely frustrate these reunification efforts. The court reasonably concluded that
expedited placement was not appropriate, considering that it might not order placement
with the out-of-state relative at all if reunification services were ordered and visitation
provided to the parents. None of this exceeded the bounds of reason, and we will uphold
the trial court’s decision on this point.
Appellants note that they were eligible for expedited placement under the criteria
set forth in Rule 5.616(h)(2). However, this merely shows that the court could have
exercised its discretion differently by granting expedited placement. It does not establish
17.
that the court exceeded the bounds of reason by exercising its discretion in the way it did,
by denying the request for expedited placement.
Appellants contend that even if the court did not err in declining to order expedited
placement, the court improperly failed to direct the Department to initiate the ICPC
process for the maternal great aunt. But no such order was necessary, as the Department
had already begun the ICPC process.11
Appellants also point to the court’s comment that placement with the great-aunt
was “always an option.” They argue that consideration of relatives is not an option, it is
mandated by section 361.3. But the court was saying placement with the great-aunt was
a possibility, not that the Department could choose to not even consider the great-aunt for
placement. And on that point, the court was correct. The relative placement preference
is not a relative placement guarantee. (In re Joseph T. (2008) 163 Cal.App.4th 787, 798.)
Finally, appellants argue that the “out-right” rejection of maternal grandmother’s
request for placement was improper. Appellants argue that maternal grandmother’s
request moved her to the head of the line for placement of R.B. However, the record
shows the Department is considering her for placement and has requested ICPC-related
documents from her. And, as noted above, the court was within its discretion to decline
to expedite this process.
Appellants also cite section 16501.1, subdivision (d)(1) which requires that case
plans describe the children’s placement and reasons for the placement decision. The
statute also requires that the case plan first consider placement with relatives. (§ 16501.1,
11 Appellants argue the ICPC process had not yet begun. They point to a comment
from the Department’s counsel on February 20, 2020, saying the Department “should at
least start the process” (which suggests the process had not begun by February 20, 2020).
However, as was made clear by appellant’s counsel at the January 9, 2020, hearing, the
Department had already begun the ICPC process prior to counsel’s apparently mistaken
comment. In any event, counsel was clearly indicating that the Department would move
forward with the ICPC process, further showing that an express order to that effect was
unnecessary.
18.
subd. (d)(1).) Appellants observe that the case plan attached to the
jurisdiction/disposition report dated February 6, 2020, does not discuss placement with
relatives. We agree that omission is improper. (See § 16501.1, subd. (d)(1).) However,
the report to which the case plan was attached does discuss relative placement in several
places. While this discussion should have also been included in the case plan itself, we
cannot find that omission prejudicial given that it was included in the report.
DISPOSITION
The juvenile court’s finding that ICWA does not apply is reversed.
The matter is remanded to the juvenile court with directions to instruct the
Department to complete ICWA inquiry and proper notice. (See In re Damian C. (2009)
178 Cal.App.4th 192, 200.) In all other respects, the dispositional orders are affirmed.
(Ibid.) The court shall advise the parents of their petition rights under 25 United States
Code section 1914. (In re Damian C., at p. 200.)
POOCHIGIAN, Acting P.J.
WE CONCUR:
DETJEN, J.
SMITH, J.
19.