Filed 2/7/23 M.C. v. Superior Court CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
M.C., C096846
Petitioner, (Super. Ct. No. STK-JD-DP-
2020-0000422)
v.
THE SUPERIOR COURT OF SAN JOAQUIN
COUNTY,
Respondent;
SAN JOAQUIN COUNTY HUMAN SERVICES
AGENCY et al.,
Real Parties in Interest.
Petitioner M.C., mother of the dependent minor, seeks an extraordinary writ to
vacate orders of the juvenile court terminating her reunification services and setting a
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hearing pursuant to Welfare and Institutions Code section 366.26.1 (Cal. Rules of Court,
rule 8.452.)2 Petitioner contends the respondent juvenile court failed to properly conduct
a hearing on her request for new appointed counsel. She also contends that the inquiry
made into the minor’s potential Indian heritage was insufficient and failed to comply with
the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901, et seq.) We issued a stay of
the section 366.26 hearing in the respondent juvenile court pending resolution of this writ
petition and shall now issue a peremptory writ of mandate directing the respondent
juvenile court to vacate the ICWA findings and conduct further proceedings to determine
whether the ICWA inquiry and notice requirements have been met. We reject
petitioner’s remaining contention.
We dispense with a detailed recitation of the underlying facts as they are
unnecessary to our resolution of the issues. Instead, we discuss the relevant facts where
necessary in our discussion of the issues.
DISCUSSION
I
Request for New Appointed Counsel
Petitioner’s counsel contends the petition must be granted to provide further
hearing on petitioner’s August 17, 2022 request for new appointed counsel. Petitioner’s
counsel expressly “does not claim that on this record the Respondent Court should have
granted the . . . motion.” Instead, counsel argues the respondent juvenile court
mishandled the motion and a new hearing should be conducted “if Mother still wishes it.”
As an initial matter, it is troubling that petitioner’s counsel is apparently unaware
of petitioner’s wishes with respect to the instant petition. Although counsel is authorized
1 Undesignated section references are to the Welfare and Institutions Code.
2 Further undesignated rule references are to the California Rules of Court.
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to file a notice of intent on behalf of a party, the notice must be authorized by the party
intending to file the petition and the party must have authorized counsel to file the notice
on his, her, or their behalf. (Rule 8.450(e)(3); Jonathan M. v. Superior Court (1995)
39 Cal.App.4th 1826, 1830.) A petition may be dismissed in the absence of a showing
that the parent consented to, or authorized the filing of, the petition. (Guillermo G. v.
Superior Court (1995) 33 Cal.App.4th 1168, 1172; Suzanne J. v. Superior Court (1996)
46 Cal.App.4th 785, 788; Janice J. v. Superior Court (1997) 55 Cal.App.4th 690, 691-
692.) Here, petitioner did not, herself, file the notice of intent to file the writ petition nor
did she verify the petition. Instead, counsel signed and filed the notice of intent and
signed the verification of the petition. This court has not been provided with any
documentation that shows that petitioner authorized the filing of the notice of intent, the
filing of the instant petition for extraordinary relief, or the assertion of the issues
contained in the petition. The petition might reasonably be dismissed based on lack of
this documentation coupled with counsel’s apparent lack of knowledge of petitioner’s
wishes. We have nevertheless elected to assume, in this instance, that counsel had the
necessary authority to sign and file the notice of intent and verify and file the petition.
But counsel is cautioned that understanding the needs and wishes of the client is critical
to providing effective appellate advocacy. With that said, we turn to the merits of
counsel’s contention.
In a dependency proceeding, the parents have a statutory and a due process right to
competent counsel. (§ 317.5; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150, 1153,
fn. 6.) When counsel is appointed, the parents must have some mechanism for
challenging the representation when they perceive inadequacy. Otherwise, the right to
counsel is meaningless. Thus, juvenile courts, relying on the Marsden model, have
permitted the parents to air their complaints about current counsel and request
appointment of new counsel. (People v. Marsden (1970) 2 Cal.3d 118, 123-124.) An
exhaustive Marsden hearing is not required in a dependency action. It is only necessary
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that the juvenile court “make some inquiry into the nature of the complaints against the
attorney.” (In re James S. (1991) 227 Cal.App.3d 930, 935, fn. 13.)
Here, the respondent juvenile court did make the required inquiry. At the start of
the August 17, 2022 hearing, in a closed session, petitioner’s counsel (Deputy Public
Defender Rose M. Cardoso) indicated that petitioner was making a Marsden motion
because petitioner was dissatisfied with her previously assigned attorney (Deputy Public
Defender Jennifer A. Windt) and her office’s representation. The respondent juvenile
court asked petitioner to explain her reasons. Petitioner then explained that attorney
Windt had not responded to her messages or to her attempts to determine what she should
do to regain custody of the minor and that no one at the office had returned her calls. In
response to the court’s questioning, petitioner indicated she did not have any issues with
attorney Cardoso (who had been responsive) and was satisfied with her continued
representation, although she maintained she did not think the public defender’s office was
“doing any justice” in not responding to her calls. The respondent juvenile court denied
her motion.
Here, the respondent juvenile court permitted petitioner to present her complaints
about counsel’s representation. Petitioner does not contend that the respondent juvenile
court erred in not granting her request and appointing new counsel at the hearing. We
conclude the respondent juvenile court made an adequate inquiry into petitioner’s
complaints and a new hearing on petitioner’s August 17, 2022 request is not required.
II
ICWA Compliance
Petitioner also contends that further inquiry of relatives and family members about
the minor’s potential Indian heritage is necessary to meet the requirements of the ICWA.
With this, we agree.
At the commencement of this dependency case in 2014, petitioner and the minor’s
father stated they had no known Indian heritage, signing ICWA-020 forms to that effect.
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The Los Angeles County Superior Court found the case was not governed by the ICWA
at the February 7, 2014 detention hearing, based on the parents’ early representations.
Thereafter, however, the Los Angeles County Department of Children and Family
Services (Department) reported that petitioner was not raised by her natural parents.
Petitioner never knew her father, and her mother died when she was four years old. She
was raised by her maternal grandmother. The minor’s father lived with various relatives
from the time he was very young until the age of 13, when he did live with his father.
These facts raise concern that petitioner’s and the minor’s father’s claims of no Indian
heritage may not have been fully informed. Yet, it does not appear the Los Angeles
County Superior Court required the Department make any further inquiries of parents’
known relatives, nor does it appear the Department made any such inquiries over the
nearly seven years this dependency case remained in Los Angeles County.
By the time this case was transferred to the respondent juvenile court in October
2020, the Legislature had amended the ICWA laws to expressly require an agency ask
known family members about possible Indian ancestry under circumstances such as those
present in this case. “Under [the] ICWA as amended, the Department and juvenile court
have ‘three distinct duties.’ [Citations.] The first duty is the initial ‘duty’ of the
Department and the juvenile court ‘to inquire whether [a] child is an Indian child.’
(§ 224.2, subds. (a) & (b).) The Department discharges this duty chiefly by ‘asking’
family members ‘whether the child is, or may be, an Indian child.’ (Id., subd. (b).) This
includes inquiring of not only the child’s parents, but also others, including but not
limited to, ‘extended family members.’ (Ibid.)” (In re Dezi C. (2022) 79 Cal.App.5th
769, 780, review granted Sept. 21, 2022, S275578.) In the current case, it does not
appear the Department fulfilled those requirements prior to the transfer, nor does it
appear the San Joaquin County Human Services Agency (Agency) made further inquiries
of relatives after the case was transferred to San Joaquin County.
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The juvenile court and the social services department have an affirmative and
continuing duty, beginning at initial contact and continuing throughout the pendency of
the proceedings, to inquire whether a child who is subject to the proceedings is, or may
be, an Indian child. (Rule 5.481(a); § 224.2, subd. (a).) The Agency contends there was
no error here because the Department asked and both parents denied Indian ancestry.
The Agency asserts there was nothing in the record to suggest that parents may be ill-
informed or incorrect in their denial of Indian ancestry. With this we must disagree.
Although parents denied knowledge of any Indian ancestry, the Department subsequently
discovered that the minor’s parents were not raised by their parents. They very well may
not have been fully aware of the ancestry of their parents. Yet, neither the Department
nor the Agency made any effort to inquire of any other relatives about possible Indian
heritage.
Recently, the California Supreme Court granted review in In re Dezi C. and we
anticipate further clarification on this issue. (In re Dezi C., supra, 79 Cal.App.5th at
pp. 779-782, rev. granted.) Until such time, we must apply the analytical framework set
forth by the California Supreme Court in In re A.R. for assessing harm and conclude the
failure to make any ICWA inquiry of other accessible relatives was not harmless.
(In re A.R. (2021) 11 Cal.5th 234, 252-254.) The parents in this case may not have had
even the usual access to family lineage information, and the intent underlying the ICWA
and related California law is to protect third party rights. Accordingly, we must grant the
petition to assure compliance with the ICWA.
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DISPOSITION
Let a peremptory writ of mandate issue directing respondent juvenile court to (1)
vacate the finding that the ICWA inquiry and notice provisions were satisfied and that the
ICWA does not apply, and (2) order the Agency to conduct further inquiry regarding
petitioner’s and the minor’s father’s ancestry, including reasonable efforts to inquire of
parents’ relatives. The respondent juvenile court is then directed to enter updated ICWA
findings prior to proceeding with a section 366.26 hearing. The petition for extraordinary
writ is denied as to the remaining issue. Having served its purpose, the stay previously
issued by this court on December 9, 2022, is vacated. This decision is final forthwith as
to this court. (Rule 8.490(b)(2)(A).)
/s/
ROBIE, Acting P.J.
We concur:
/s/
KRAUSE, J.
/s/
BOULWARE EURIE, J.
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