In re A.M. CA2/6

Filed 8/17/23 In re A.M. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

In re A.M., A Person Coming 2d Juv. No. B324392
Under the Juvenile Court Law. (Super. Ct. No. 21JV00072)
(Santa Barbara County)

SANTA BARBARA
DEPARTMENT OF SOCIAL
SERVICES,

Plaintiff and Respondent,

v.

F.N.,

Defendant and Appellant.

F.N. (mother) appeals the juvenile court’s orders
terminating her parental rights to her minor child, A.M. (Welf. &
Inst. Code, § 366.26.)1 She contends she had a due process right

1 All statutory references are to the Welfare and

Institutions Code unless otherwise specified.
to testify at the section 366.26 hearing and that the court erred
by proceeding in her absence. Mother forfeited this claim,
however, by failing to appear at the duly noticed section 366.26
hearing and asserting her right to testify.
Mother also asserts that the juvenile court and Santa
Barbara County Child Welfare Services (CWS) failed to comply
with their duties of inquiry under the Indian Child Welfare Act
(25 U.S.C. § 1901 et seq.; ICWA) and related California law.
Mother specifically challenges their failure to ask the maternal
grandfather and certain paternal extended family members
whether A.M. is or may be an Indian child. (See § 224.2, subd.
(b).)
In response to our request for supplemental briefing,2
mother now concedes that CWS did not have an expanded duty of
initial inquiry under ICWA because A.M. was taken into
protective custody pursuant to a warrant under section 340,
subdivision (b). (See In re Robert F. (2023) 90 Cal.App.5th 492,
500-502; In re Ja.O. (2023) 91 Cal.App.5th 672, 677-680.) We
conclude that mother's claim fails notwithstanding her
concession. We affirm.
FACTS AND PROCEDURAL BACKGROUND
In December 2020, CWS received a referral claiming that
mother and P.M. (father) were homeless and were leaving four-
year-old A.M. unsupervised while they used drugs. CWS
provided drug treatment services for both parents, but when

2 We requested that mother’s counsel address in

supplemental briefing “the effect, if any, of In re Robert F. (2023)
90 Cal.App.5th 492, on the argument that the respondent agency
was required to inquire with extended family members about
A.M.s ‘Indian status’ as part of its duty of initial inquiry. . . .”

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father failed to consistently participate, CWS obtained a
protective custody warrant, detained A.M. and filed a juvenile
dependency petition alleging parents’ failure to protect A.M.
(§ 300, subd. (b)(1)) and mother’s abuse of a sibling (id., subd. (j))
because mother previously had lost her parental rights to A.M.’s
older half-sibling.
Detention Hearing
At the initial detention hearing, the juvenile court found
that A.M. came within the provisions of section 300 and placed
the child with mother.
CWS subsequently amended the dependency petition to
add a count under section 300, subdivision (g) -- no provision for
support -- given that father’s location was unknown. CWS
recommended that A.M. be declared a dependent and remain in
mother’s care with family maintenance services.
Jurisdiction/Disposition Hearings
At the jurisdiction and disposition hearing, CWS reported
that because mother had recently admitted to using drugs while
caring for A.M., and had tested positive for methamphetamine,
CWS intended to seek a warrant to remove A.M. from mother’s
custody and requested a continuance. The juvenile court granted
the continuance. CWS obtained the warrant, removed A.M. from
mother’s custody and filed a second amended petition.
On April 29, 2021, the juvenile court sustained the petition,
and at the May 2021 disposition hearing ordered mother to
participate in reunification services. The father was located and
appeared in October 2021, was determined to be a presumed
father and was also ordered to participate in reunification
services.

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 12-Month Review
At the 12-month review hearing, CWS reported father’s
whereabouts were unknown, and mother was not consistently
participating in drug testing and treatment or engaging in
medical or mental health care. On CWS’ recommendation the
juvenile court terminated services for both parents and set a
section 366.26 hearing.
Section 366.26 Hearings
Neither parent appeared at the initial section 366.26
hearing on August 18, 2022. Mother’s counsel stated that mother
“was supposed to be here,” and that mother had “assured”
counsel she would attend via Zoom. Counsel stated that mother
wished to set a contested hearing and confirmed she would give
notice to her client. CWS requested that mother file an offer of
proof.
In her offer of proof, mother claimed she could prove the
existence of a beneficial parent-child relationship under section
366.26, subdivision (c)(1)(B)(i). Mother planned to testify
regarding the nature of her visits with A.M. to establish that
relationship.
Mother appeared via Zoom at the continued section 366.26
hearing on September 13, 2022. The juvenile court denied her
counsel’s request to be relieved as mother’s counsel based on a
“breakdown in communication.” The court set a pretrial
conference for September 22, 2022 and ordered the mother to
appear. The mother did not appear at the pretrial conference.
Trial was set for September 29, 2022.
On the trial date, Mother was not present when the case
was called. CWS submitted its evidence and rested subject to
rebuttal. Mother’s counsel told the juvenile court that she
informed her client of the date and time of the trial and mother

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was “very well aware that it was at 10:00. . . . She knew of the
importance of the court date.” Counsel stated without mother “I
essentially don’t have a case to go forward.” Counsel then rested
without presenting any evidence or argument. The court found
by clear and convincing evidence that it is likely that A.M. will be
adopted and terminated all parental rights.
Sometime after the juvenile court ruled and concluded the
hearing and after the assigned social worker had left the
courthouse, the mother appeared via Zoom and the court recalled
the matter. Mother’s counsel informed the court that she had
explained the court’s ruling to mother and had advised mother of
her appellate rights. Counsel did not ask to reopen the case to
offer mother’s testimony or to argue that any exception to
termination applied. Counsel stated: “[M]y position is still the
same. . . . I’m still resting.” The court then advised mother of her
“right to appeal.”
FACTS RELEVANT TO ICWA
At the initial hearing in March 2021, mother signed an
ICWA-020 form indicating there was no indication A.M. was an
Indian3 child. In response to CWS’ and the juvenile court’s
inquiries, mother denied Native American ancestry and reported
she did not believe the alleged father had any Native American
ancestry. Later, the father reported to both CWS and the
juvenile court he did not believe he or his child had any Native
American ancestry.
Despite the child being placed with the maternal
grandparents since April 2021, they were not asked regarding the

3 “[B]ecause ICWA uses the term ‘Indian,’ we do the same

for consistency, even though we recognize that other terms, such
as ‘Native American’ or ‘indigenous,’ are preferred by many.” (In
re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)

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child’s Indian status until September 2022. The maternal
grandmother denied Indian heritage but because the maternal
grandfather was not home the social worker stated she would ask
the maternal grandfather “in person during her visit at the
placement.” Apparently that did not happen. The maternal aunt
and uncle also denied any Indian heritage.
Although CWS had contact with the paternal grandmother,
she was never asked regarding the child’s Indian status before
parental rights were terminated. After parental rights were
terminated, CWS attempted to reach the paternal grandmother
by telephone but the call could not be completed and the line
disconnected. 4 The paternal grandmother’s phone did not accept
text messages. Also after parental rights were terminated, CWS
contacted the maternal grandfather who reported no Native
American Ancestry.
DISCUSSION
Mother’s Right to Testify
Mother contends the order terminating her parental rights
must be reversed because she had a due process right to testify at
the section 366.26 hearing.
“[A] parent has a right to ‘due process’ at the hearing under
section 366.26 which results in the actual termination of parental
rights.” (In re Jeanette V. (1998) 68 Cal.App.4th 811, 816.)
Nonetheless, “[a]n appellate court ordinarily will not consider
challenges based on procedural defects or erroneous rulings
where an objection could have been but was not made in the trial
court. [Citation.] Dependency cases are not exempt from this

4 In the interest of promoting the finality of the juvenile

court judgment, we grant CWS’s unopposed motion, filed on
March 30, 2023, seeking to augment the record on appeal with
updated ICWA information.

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forfeiture doctrine. [Citations.] The purpose of the forfeiture rule
is to encourage parties to bring errors to the attention of the
juvenile court so that they may be corrected. [Citation.]
Although forfeiture is not automatic, and the appellate court has
discretion to excuse a party’s failure to properly raise an issue in
a timely fashion [citation], in dependency proceedings, where the
well-being of the child and stability of placement is of paramount
importance, that discretion ‘should be exercised rarely and only
in cases presenting an important legal issue.’ [Citation.]” (In re
Wilford J. (2005) 131 Cal.App.4th 742, 754 (Wilford J.); In re
Marriage of Binette (2018) 24 Cal.App.5th 1119, 1127 [failure to
request to testify forfeited right]; Mendoza v. Ramos (2010) 182
Cal.App.4th 680, 687 [same]; see People v. Evans (2008) 44
Cal.4th 590, 599-600 [right to testify forfeited where defense
counsel did not call defendant to testify, and defendant himself
did not ask to testify].)
Here, mother failed to appear when her case was called at
the section 366.26 hearing. Mother’s counsel stated she could not
proceed without mother’s testimony and rested her case. Counsel
did not request a continuance.
The juvenile court terminated mother’s parental rights, and
the social worker left the courthouse. After being informed that
mother was now present on Zoom, the court recalled the matter.
Neither mother nor her counsel asserted mother’s right to testify.
To the contrary, counsel stated: “[M]y position is still the same.
. . . I’m still resting.”
Under these circumstances, mother forfeited her right to
testify by failing to raise the issue in the juvenile court. We
decline to exercise our discretion to excuse that forfeiture. (See
Wilford J., supra, 131 Cal.App.4th at p. 754.)

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 ICWA
As indicated, mother concedes CWS did not have the duty
to inquire of extended family members because A.M. was
detained pursuant to a warrant under section 340. (See In re
Robert F., supra, 90 Cal.App.5th at pp. 497, 500, 504; see also In
re Ja.O., supra, 91 Cal.App.5th at pp. 677-681.) However, it
appears the children were not removed pursuant to section 340.
The social worker applied for a protective custody warrant under
both sections 306 and 340. The juvenile court issued a protective
custody order “pursuant to Welfare and Institutions Code § 306
and/or § 309.” The order is prepared on a form that contains a
section for warrants issued pursuant to sections 306 and 309, and
another for warrants issued pursuant to section 340. The box
corresponding to sections 306 and 309 is checked, while the box
corresponding to section 340 is left blank. Inexplicably, the
warrant itself only references section 340. Despite mother’s
concession, on this record we choose to address her original claim
that CWS and the juvenile court failed to comply with ICWA.
We generally review ICWA findings for substantial
evidence. (In re J.K. (2022) 83 Cal.App.5th 498, 504.) “Because
the material facts at issue are undisputed, “‘we review
independently whether ICWA requirements have been
satisfied.”’” (Ibid.)
ICWA defines an “‘Indian child’” as “any unmarried person
who is under age eighteen and is either (a) a member of an
Indian tribe or (b) is eligible for membership in an Indian tribe
and is the biological child of a member of an Indian tribe.” (25
U.S.C.S. § 1903(4) & (8); § 224.1, subd. (a).) The juvenile court
and county welfare department have an affirmative and
continuing duty to inquire whether a child subject to dependency

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proceedings is or may be an Indian child. (§ 224.2, subd. (a); Cal.
Rules of Court, rules 5.481(a) & 5.668(c).)
The continuing duty to inquire whether a child is or may be
an Indian child begins with the initial contact and obligates the
juvenile court and the child services agency to ask the child,
parents, extended family members, and others who have an
interest in the child, whether the child is, or may be, an Indian
child. (§ 224.2, subds. (a)-(c).)
Mother asserts CWS and the juvenile court failed to satisfy
their “duty of continuing inquiry” when they failed to ask the
maternal grandfather and the paternal grandparents regarding
Indian heritage. However, based upon the augmented record, the
maternal grandfather reported no Indian heritage and the
paternal grandmother could not be reached. There is nothing in
the record suggesting CWS ever had contact with or a telephone
number for the paternal grandfather. We conclude that on this
record there was no ICWA error because CWS eventually
satisfied its duty of inquiry and there is no reason to believe or
know the child is an Indian child.
DISPOSITION
The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED.

CODY, J.

We concur:

YEGAN, Acting P.J. BALTODANO, J.

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 Gustavo Lavayan, Judge
Arthur A. Garcia, Judge
Superior Court County of Santa Barbara
______________________________

Karen B. Stalter, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rachel Van Mullem, County Counsel, and Lisa A.
Rothstein, Senior Deputy County Counsel, for Plaintiff and
Respondent.

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