Filed 4/3/14 In re J.S. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re J.S., Jr., a Person Coming Under the B250808
Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK83807)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
J.S., Sr.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County, Margaret
Henry, Judge. Affirmed in part; reversed in part and remanded with directions.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance by Plaintiff and Respondent.
Aida Aslanian, under appointment by the Court of Appeal, for Minor.
*********
J.S., Sr. (father) appeals the juvenile court’s orders denying his petition pursuant to
Welfare and Institutions Code section 3881 and terminating his parental rights to his
minor son J.S., Jr. (J.S.). Father contends the court abused its discretion because he
demonstrated both changed circumstances and that it was in the best interests of J.S. to
grant the petition, reinstate services and liberalize visitation so that he could reunify with
J.S. Father also contends the juvenile court failed to comply with the notice requirements
of the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. § 1901 et seq.) We agree
that ICWA notice was inadequate and therefore conditionally reverse the order
terminating parental rights and remand with directions to the juvenile court to order the
Los Angeles Department of Children and Family Services to make reasonable inquiry
regarding possible Indian ancestry, and to re-serve all requisite ICWA notices. We
otherwise affirm the juvenile court’s orders.
FACTUAL AND PROCEDURAL BACKGROUND
J.S. first came to the attention of the Department in August 2010, as a newborn,
when D.W. (mother), was placed in juvenile hall and failed to make plans for his care.
The court ordered J.S. removed from mother’s custody and placed with father. J.S.
remained in father’s care for almost a year. Mother failed to reunify with J.S. and her
reunification services were terminated in April 2011.
In October 2011, several emergency referrals were made to the Department
alleging general neglect of J.S. by P.S. (paternal grandmother), as well as possible sexual
abuse. It was determined father had been incarcerated on a robbery conviction and had
left J.S. in the care of paternal grandmother.
The Department filed a petition pursuant to section 300, subdivisions (b) and (g),
alleging, as to father, that father was incarcerated and failed to protect and to make
appropriate provisions for J.S.’s support by leaving him in the care and custody of
paternal grandmother, despite the fact she was regularly under the influence of marijuana
1 All further undesignated section references are to the Welfare and Institutions
Code.
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while caring for J.S., and had a criminal record for use and possession of controlled
substances.
Initial interviews with the family members, including paternal grandmother who
admitted to suffering from depression and back problems and regularly medicating with
marijuana pursuant to a prescription, supported concerns by the Department about J.S.’s
safety in paternal grandmother’s home. Mother, who had lived for over a year with J.S.
and paternal grandmother (in violation of the court’s removal order concerning mother),
reported that paternal grandmother regularly smoked marijuana in front of J.S. and had
driven drunk with him in the car. The Department reported that in light of mother’s prior
failure to reunify with J.S., he could not be placed in her care. Father remained
incarcerated. The Department detained J.S.
The detention report referenced that, in the initial dependency proceeding opened
in 2010, notice was given to the United Keetoowah Band of Cherokee Indians and the
United States Department of Interior, Bureau of Indian Affairs (BIA), and that, from
responses received March 3, 2011, and February 28, 2011, respectively, it was
determined J.S. was not an Indian child. Attachments A and B were identified in the
report as consisting of the relevant notices and responses, but those attachments are not
contained in the record.
At the detention hearing on November 7, 2011, the juvenile court found a prima
facie case for detaining J.S. and ordered him removed from father’s custody. The court
also ordered the Department to make appropriate inquiry and investigate the claim of
possible Indian heritage and provide the court with a report of the investigation detailing
who was interviewed and the dates and places of birth of relevant relatives as far back as
could be ascertained. J.S. was placed with a foster family, Mr. and Mrs. D., in mid-
November 2011.
In the jurisdiction and disposition report, the Department reiterated its reference
from the detention report concerning the ICWA notices sent in the earlier proceedings.
The Department further reported that paternal grandmother had no information regarding
her claim of Cherokee heritage, other than to provide the first and last names of her father
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and her great-grandmother. She told the Department to speak with her sister, U.S., for
possible additional biographical and family information. The Department reported that
efforts to speak with paternal grandmother’s sister had not yet been successful.
Telephone messages had apparently not been returned. As with the detention report, the
earlier notices and responses were referenced but not attached, and exist nowhere in the
record.
Both father and mother signed Parental Notification of Indian Status forms
denying any Indian heritage to the best of their knowledge.
At the pretrial conference hearing on December 2, 2011, the court inquired about
ICWA notices. Counsel for the Department reminded the court it had found notice
adequate on April 29, 2011, in the earlier proceeding. The court responded by
acknowledging that father had filed a form denying Indian heritage. Counsel for the
Department stated the Cherokee heritage claim had come from the paternal grandmother.
Paternal grandmother and a paternal aunt were present at the hearing and advised the
court their parents were deceased, and they had no additional information to provide the
court. The court made a finding ICWA did not apply and continued the jurisdiction and
disposition hearing to December 16, 2011.
At the jurisdiction and disposition hearing, the Department filed a first amended
petition that substantially restated the original count b-1, b-2, and g-1 allegations. The
amended petition also added the following allegation as count b-3: “The [child’s] father
[violated] the previous court order by leaving the child . . . in the care of mother . . . in the
home of paternal grandmother. . . . The father’s inappropriate plan endangered the
child’s physical health and safety, created a detrimental home environment and placed
the child at risk of physical harm and damage.”
Father submitted on the Department’s report and mother plead no contest to the
amended petition.
The court dismissed the original petition and sustained the amended petition as to
all three counts pursuant to section 300, subdivision (b), and dismissed the count g-1
allegation in the interest of justice. Father was ordered to complete a parenting class and
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to participate in counseling to address case issues. Father was granted monitored
visitation. Mother was also granted services and monitored visitation, despite having
previously failed to reunify with J.S. in the earlier proceeding.
In the six-month status review report, the Department reported J.S. interacted well
with Mrs. D. and her biological children, and appeared to be “thriving” in the placement.
Mrs. D. told the social worker J.S. was an “easygoing child” who hardly ever cried. It
was noted Mrs. D. had expressed her desire to adopt J.S. The report further indicated
father was released from prison on March 29, 2012, had completed 30 hours of a
parenting class while incarcerated, had started counseling upon his release and was
starting to visit with J.S. Mrs. D. reported the visits went well and father acted
appropriately. Father’s counselor informed the Department it was too early to comment
on father’s progress or prognosis.
At the review hearing in June 2012, the court found both mother and father to be
in partial compliance with their respective case plans and granted the Department
discretion to liberalize the monitored visitation.
In September 2012, the Department reported father had been arrested again and
was housed at the North County Correctional Facility. Mother had also been arrested and
was in custody.
In preparation for the 12-month review hearing, the Department reported father
had been released on November 6, 2012, and had contacted the Department about his
case. Father told the social worker he would do everything necessary to reunite with his
son, would look for a part-time job and would re-enroll in counseling sessions. It was
further reported J.S. was continuing to do well in the home of Mr. and Mrs. D., that their
biological children were “very loving” towards J.S., and J.S. had started to call Mrs. D.
“ ‘mommy.’ ” At the time of the report, mother’s whereabouts were unknown and she
was reported as noncompliant with her case plan.
By the time of the January 4, 2013 review hearing, father was once again found to
be only in partial compliance with his case plan. Father’s arrest had interrupted his visits
with J.S., as well as his counseling sessions. The Department reported that father’s
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inability “to maintain a crime free lifestyle” had resulted in continuing noncompliance
with the case plan and hampered the development of a quality bond with J.S. Mother’s
whereabouts remained unknown. The Department recommended the termination of
services for both mother and father. The court terminated reunifications services for both
father and mother on January 4, 2013.
The Department submitted a last minute information for the court in preparation
for the February 1, 2013 progress hearing that noted, among other things, that Mr. and
Mrs. D. had an approved home study.
Due to the emergency medical leave of the social worker handling the case, the
Department requested a delay in the setting of the permanency planning hearing pursuant
to section 366.26 to allow for completion of the requisite report. The hearing was
scheduled for July 12, 2013.
On July 10, 2013, father filed a section 388 petition requesting reinstatement of
services, liberalized visitation, and to take the section 366.26 hearing off calendar.
Father’s therapist submitted a letter explaining he had been attending, since March 25,
2013, twice weekly counseling sessions that he was paying for himself. The counselor
stated father “for the most part is consistent with treatment.” The counselor noted
father’s “therapy prognosis seems good.” The court continued the permanency planning
hearing to August 1, 2013, and set the same date as the hearing on father’s petition. The
court ordered the Department to respond to father’s petition.
The July 12, 2013 status report stated J.S. was “demonstrating comfort and
satisfaction in the home” of the D. family; that J.S. was bonded to his prospective
adoptive family; and that adoption by Mr. and Mrs. D. remained in the best interests of
the child.
The section 366.26 report stated the home study for Mr. and Mrs. D. had been
approved almost two years earlier and therefore a supplement was required.
The Department’s written response to father’s petition stated that father had been
forthcoming about his past behavior and expressed a strong desire to make amends and
reunify with J.S. The Department acknowledged father’s criminal history and his failure
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to show motivation to comply with court-ordered services until after the court terminated
services in January 2013. But, the Department said father had recently shown a
“tremendous” effort to reunify despite a limited support system, and therefore the
Department recommended granting father’s petition.
On August 1, 2013, the court heard father’s section 388 petition. Father did not
offer any live testimony, but relied solely on the petition. Father’s counsel argued that
father established both of the prongs required to obtain relief under section 388. Counsel
said father, since termination of his reunification services in January 2013, had returned
to therapy on his own initiative and had been in therapy since June 2013 seeking to
address case issues, primarily parenting goals and skills. Father was paying for the
counseling himself. Father had also consistently been visiting with J.S. and the visits
were going well. Counsel argued it was in the best interests of J.S. to maintain a
relationship with his biological father and have a chance to reunify.
Counsel for J.S. opposed the petition. Counsel argued J.S. had been in his current
placement for over a year and a half and had developed a strong bond with his caregivers.
Counsel conceded father’s visits with J.S. went well but that father had claimed he would
change before, and had failed to do so. Counsel said the record did not support that it
would be in the best interests of J.S. to grant the petition.
The juvenile court denied father’s petition, explaining: “The report just goes over
what I knew from the first time the case came in. I gave the father a chance when the
first petition was filed. And at that time I did not need to place with father, didn’t need to
go to that step, but he did make the same arguments to me that he had a football
scholarship and blew it. He was going to change everything, going to be different. I’m
just hearing the exact same thing now that I heard before[.] No, I don’t believe it. [¶] It
definitely would not be in the child’s best interest, so I don’t see that [father]
changed. . . . Hopefully, with therapy he could change, but it would not be in the child’s
best interest to be moved after a year and a half with the same family regarding
somebody else as his mother as he does.”
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The court proceeded with the permanency planning hearing. Mother’s
whereabouts remained unknown at the time. Counsel for mother asserted an objection on
her behalf to the termination of her parental rights. Father contended the parent-child
exception applied and therefore termination of his rights would be improper.
The court stated it had read and considered the reports and evidence. The court
found clear and convincing evidence supported a finding J.S. was adoptable and
terminated mother’s and father’s parental rights. The court found no exception applied
and that it would be detrimental to J.S. to return him to the custody of his biological
parents. The court ordered J.S. freed for adoption, found adoption to be the preferred
permanent plan, and Mr. and Mrs. D. to be the prospective adoptive parents.
This appeal followed. On October 31, 2013, this court received a letter from
counsel for the Department that it would not be opposing father’s appeal relative to the
section 388 petition since the Department had not opposed the petition in the juvenile
court. This court subsequently granted a request for appointment of appellate counsel for
the minor as the responding party to father’s appeal.
On November 26, 2013, counsel for the Department sent another letter brief,
supported by a declaration of counsel, stating the Department’s position that it agreed
ICWA notice was required based on counsel’s review of the relevant case files which did
not disclose any prior notices served, or responses received, in the earlier proceeding, nor
any record the court made ICWA findings in that proceeding. The Department requested,
in the event the court affirmed on the section 388 issue, a limited reversal and remand for
the purpose of allowing the Department to properly effectuate ICWA notice.
DISCUSSION
1. The Section 388 Petition
Father contends the juvenile court erred in denying his section 3882 petition.
2 Section 388, subdivision (a)(1) provides in relevant part: “Any parent or other
person having an interest in a child who is a dependent child of the juvenile court . . .
may, upon grounds of change of circumstance or new evidence, petition the court in the
same action . . . for a hearing to change, modify, or set aside any order of court
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Resolution of a section 388 petition is committed to the sound discretion of the juvenile
court, and a ruling will not be overturned on appeal “in the absence of a clear abuse of
discretion.” (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) “ ‘ “The appropriate test
for abuse of discretion is whether the [juvenile] court exceeded the bounds of reason.
When two or more inferences can reasonably be deduced from the facts, the reviewing
court has no authority to substitute its decision for that of the [juvenile] court.” ’
[Citations.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
The gist of father’s petition was that the section 366.26 hearing should have been
delayed, and the court should have granted father renewed reunification services and
liberalized visitation so that he could continue to forge a bond with J.S. and ultimately
reunify with him. “For a parent ‘to revive the reunification issue,’ the parent must prove
that circumstances have changed such that reunification is in the child’s best interest.”
(In re D.R. (2011) 193 Cal.App.4th 1494, 1512.) Once reunification services to a parent
have been terminated, the parent’s “interest in the care, custody and companionship of
the child [is] no longer paramount.” (In re Stephanie M., supra, 7 Cal.4th at p. 317;
accord, In re Angel B. (2002) 97 Cal.App.4th 454, 464.) Instead, the court’s focus, given
the stage of the proceedings, is on the dependent child’s need for stability and
permanency. (Ibid.; see also In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
Here, father had been given reasonable time and appropriate services to maintain
and strengthen his role as a parent. Following the filing of the initial petition, the court
placed J.S. with father. Father nonetheless continued to engage in criminal behavior,
precipitating the circumstances that brought about the filing of the current petition.
Father was granted services, but failed to fully complete his case plan, and, as the
Department conceded, did not appear to show any motivation to comply until after
services were terminated in January 2013. The law is well established that “[t]he parent
previously made or to terminate the jurisdiction of the court. The petition shall be
verified and . . . shall state the petitioner’s relationship to or interest in the child . . . and
shall set forth in concise language any change of circumstance or new evidence that is
alleged to require the change of order or termination of jurisdiction.”
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is given a reasonable period of time to reunify and, if unsuccessful, the child’s interest in
permanency and stability takes priority.” (In re Marilyn H., supra, 5 Cal.4th at p. 309;
see also In re D.R., supra, 193 Cal.App.4th at p. 1513 [“Once a case has advanced to the
permanency planning stage, it is important not only to seek an appropriate permanent
solution, but also to implement that solution promptly to minimize the time the child is in
legal limbo.”].)
The juvenile court did not abuse its discretion in finding it was not in J.S.’s best
interest to delay the permanency planning hearing and reinstate reunification services to
father for some indefinite period of time. J.S., just shy of his third birthday at the time of
the hearing, had been in the care of Mr. and Mrs. D. for almost two years and was
thriving in that placement. The caregivers wanted to adopt and had been approved to do
so, with the exception of needing to complete supplemental paperwork supportive of the
originally approved home study. The record shows father had started to make some
commendable efforts to get his life on the right track since his release from prison. But,
nothing in the record supports a finding the court abused its discretion in denying the
petition.
2. ICWA Notice
The notice requirements of ICWA serve the salient purpose of protecting Indian
children and providing a mechanism for the maintenance of tribal and familial ties for
those Indian children faced with the prospect of placement in the foster care system.
(25 U.S.C. § 1901; see also In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) The
threshold of information necessary to trigger ICWA notice requirements is low. (In re
Gabriel G. (2012) 206 Cal.App.4th 1160, 1165 [ICWA triggered where mother denied
heritage, but father claimed possible Cherokee tribal membership through paternal
grandfather, with no biographical data other than grandfather’s name].)
At the December 2, 2011 pretrial conference, the juvenile court found ICWA did
not apply. We review the juvenile court’s ruling for substantial evidence. (In re J.T.
(2007) 154 Cal.App.4th 986, 991.) Substantial compliance with the notice provisions of
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ICWA may be sufficient in certain circumstances. (In re Christopher I. (2003) 106
Cal.App.4th 533, 566; accord, In re I.G. (2005) 133 Cal.App.4th 1246, 1252.)
There is nothing in the record here to determine whether notices were ever served,
or whether any purported notices served in the earlier proceeding complied, substantially
or otherwise, with ICWA. There were discussions on the record asserting notice had
been previously given and that the BIA and the United Keetoowah Band of Cherokee
Indians in Oklahoma had been served and responses showed J.S. was not an Indian child,
but nothing is in the record showing those notices, what information was contained in
them, proof of mailing or any of the responses. The Department submitted a letter brief,
supported by a declaration of counsel, stating that a review of the earlier file did not
reveal copies of any such notices or responses.
Paternal grandmother’s identification of potential Cherokee heritage, even though
it consisted of minimal family information, was sufficient to trigger ICWA notice
requirements. (In re Gabriel G., supra, 206 Cal.App.4th at p. 1165.) Requisite notices
had to be served. (In re Desiree F., supra, 83 Cal.App.4th at pp. 469-470 [the statute, as
well as cases interpreting ICWA, “unequivocally require” actual notice to the tribe of
both the proceedings and of the right to intervene].) Whether the Department served
some form of notice in the earlier proceeding or not (of which there is apparently no
documentation), proper notice must be effectuated here, as the Department concedes.
We therefore conditionally reverse the August 1, 2013 order terminating parental
rights and remand for the limited purpose of allowing the Department to make and
document reasonable inquiry regarding J.S.’s possible Indian heritage and to re-serve all
requisite ICWA notices. In the event no timely response is received or responses indicate
J.S. is not an Indian child within the meaning of ICWA, the juvenile court shall reinstate
the order terminating parental rights. If responses are received raising a substantial
question J.S. is an Indian child, the court shall hold further proceedings consistent with
the statutory scheme.
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DISPOSITION
The juvenile court’s August 1, 2013 order denying father’s section 388 petition is
affirmed. We conditionally reverse the court’s August 1, 2013 order terminating parental
rights and remand with directions to the juvenile court to order the Department to make
and document reasonable inquiry regarding possible Indian ancestry, and to re-serve all
requisite ICWA notices. If, after receiving proper notice, no timely response is received
or no tribe indicates J.S. is an Indian child within the meaning of ICWA, then the juvenile
court shall reinstate its order terminating parental rights. If however, any response raises
a substantial question the child is an Indian child, the juvenile court shall hold further
proceedings consistent with the statutory scheme.
GRIMES, J.
We concur:
BIGELOW, P. J.
FLIER, J.
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