Opinion
A168901
06-17-2024
In re J.H., a Person Coming Under the Juvenile Court Law. v. J.H., Defendant and Appellant. DEL NORTE COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Order Filed Date: 7/2/2024.
(Del Norte County Super. Ct. No. JVSQ-2016-6128)
ORDER MODIFYING OPINION AND DENYING REHEARING
Fujisaki, Acting P.J.
Fujisaki, Acting P.J., Petrou, J., and Rodriguez, J. participated in the decision.
It is ordered that the opinion filed herein on June 17, 2024, be modified as follows:
1. On page 14, last sentence of the first paragraph, which began on the prior page, replace "her" with "an", creating a sentence that reads:
While we acknowledge J.H.'s concerns about whether an agency can conduct an adequate assessment of a proposed tribal customary adoption without certain information, the statutory language does not appear to support an interpretation that a two-step section 366.26 hearing is never permissible.
There is no change in the judgment. Appellant's petition for rehearing is denied.
Petrou, J.
Defendant J.H. (mother) appeals from an order under Welfare and Institutions Code section 366.26 selecting a tribal customary adoption as the permanent plan for the minor, an Indian child. She also contends the court erred in denying her request for a continuance of the section 366.26 hearing. We affirm.
All undesignated statutory references are to the Welfare and Institutions Code.
Because the mother and the minor share the same initials, we will refer to the mother as "J.H." and the minor as "minor."
Background
The pending dependency matter has been ongoing since 2016, when the then-two-year-old minor and her siblings were detained due to their parents' ongoing domestic violence and substance abuse. J.H. was initially successful with her case plan, and in 2017 the minor and her siblings were returned to J.H.'s care. The minor and her siblings were again detained in 2018 and, thereafter, J.H. struggled to meet her case plan. She had repeated positive drug tests and the Del Norte County Department of Health and Human Services (the department) reported J.H. utilized visitation to undermine the foster families and reunification efforts. J.H.'s visitation with the minor was terminated in 2020, and the court ordered a permanent plan of legal guardianship for the minor.
We do not discuss the father or the minor's siblings in detail because they are not parties to this appeal.
Throughout the course of the dependency, the minor struggled with her mental health and often displayed intense and lengthy behavioral outbursts. As a result of these struggles, the minor transitioned through ten foster homes before her final placement. In 2023, her eleventh foster family and the minor informed the department they desired a more permanent plan of adoption. The department and the Yurok Tribe (Tribe) recommended to the court a tribal customary adoption, a unique permanent plan option for Indian children which provides the permanency of adoption without requiring the termination of parental rights. The court identified tribal customary adoption as the minor's permanent plan, and J.H. challenges that order on appeal.
Initial Petition
In May 2016, the department filed a petition alleging the minor came within the jurisdiction of the juvenile court under section 300 based on her parents' history of domestic violence and substance abuse. At the detention hearing, a representative from the Tribe was present, and the minor was identified as an Indian child under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; ICWA). The court found the petition true and, following a period of reunification services, returned the minor to J.H.'s custody with family maintenance services, which included in relevant part ongoing mental health services and ongoing drug testing.
During the period of family maintenance services, J.H. was arrested for a domestic violence incident with the father. Shortly thereafter, she was evicted for unsanitary living conditions. The department also received reports of unsanitary living conditions at J.H.'s temporary home, drug use by the parents and the minor's half-siblings, and additional acts of domestic violence.
In light of the drug use allegations, the court ordered J.H. to take a hair follicle test. She refused to do so, but submitted to a urine test, which was positive for methamphetamine. J.H. continued to struggle with substance abuse and admitted using substances to cope when "overwhelmed and stressed."
Second Petition
In December 2018, the department filed a supplemental petition based on J.H.'s chronic substance abuse and failure to comply with mental health services. The court again ordered the minor detained. The court sustained the petition and found that the previous disposition had not been effective.
A contested disposition hearing was held over multiple days in March and April 2019. At that time, the Tribe formally intervened in the dependency proceedings. The Tribe asserted J.H. was entitled to services and "active efforts" had not been made to avoid the breakup of an Indian family, as required by ICWA. Conversely, the department recommended services be terminated for J.H. and requested the court schedule a section 366.26 hearing to select and implement a permanent plan for the minor.
Following the hearing, the court found by clear and convincing evidence that "active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of this Indian family," and those efforts were unsuccessful. The court also found J.H. had received more than 18 months of court-ordered services, the maximum allowed under the Welfare and Institutions Code, and "further reunification services would not be in [the minor's] best interests." The court set the matter for a section 366.26 hearing to determine a permanent plan for the minor.
The Tribe and J.H. filed writ petitions challenging the court's finding that "active efforts" were made to avoid the breakup of an Indian family as required by statute. (See J.H. v. Superior Court (Mar. 4, 2020, A157108) [nonpub. opn.].) This court denied the petitions. (Ibid.)
At the time of the section 366.26 hearing, minor was residing in a "nonrelated, non-tribal Resource Family Approved home." The department requested the minor remain in her placement until an appropriate guardian could be identified, and the Tribe agreed with this recommendation.
Following the section 366.26 hearing, the court ordered a permanent plan of legal guardianship. The court also terminated J.H.'s visitation as "detrimental to the [minor's] physical or emotional well-being."
Post-Permanency Proceedings
The court held numerous post-permanency hearings to locate an appropriate placement for the minor. As noted in an application for psychotropic medication for the minor, the minor lost numerous placements due to aggression, sexually inappropriate behavior, and learning challenges.
At an October 2020 post-permanency review, the minor's Court Appointed Special Advocate (CASA) recommended the minor remain in her then current out-of-county resource home. The minor, who was seven years old at the time, was in her sixth placement within a five-year period. The Tribe's social worker agreed with the recommendation-even though the minor was not supported in connecting to her racial and ethnic heritage- because the focus was on stabilizing the minor's behavioral issues.
In advance of the 18-month post permanency review hearing, the department again recommended the minor remain in her current placement until a guardian could be identified. The court subsequently adopted these recommendations, finding "[t]he plan of placement in foster care with a permanent plan of legal guardianship is appropriate and ordered."
In advance of a June 2021 post permanency review hearing, CASA recommended the minor be adopted by her then-current foster parent, who indicated a desire for a tribal customary adoption of the minor. While the foster parent was not an ICWA preferred placement, the Tribe was consulted and agreed due to the minor's individualized and special needs. Pursuant to the department's recommendation for a new section 366.26 hearing to select and implement a revised permanent plan, the court scheduled a new hearing and noted the existing permanent plan may no longer be appropriate. After the hearing was scheduled, the foster parent requested the minor be placed in another home due to extreme behavioral outbursts.
The minor then transitioned between multiple new placements. At the time of its September 2021 report, CASA noted the minor, then eight years old, was in her tenth placement since being detained five years earlier. The department reverted to its prior recommendation of out-of-home placement until a legal guardian could be identified. The court thus vacated the section 366.26 hearing and continued the prior placement order.
In advance of a November 2021 status review hearing, the department stated the minor's new placement was interested in a tribal customary adoption. However, the department recommended the court maintain the current placement order. The court agreed with the department and did not revise the existing placement order.
Another review hearing was scheduled for April 2022. The department recommended the minor's permanent plan be an out-of-home placement until a legal guardian or adoptive parent could be identified. The minor's placement continued to express an interest in a tribal customary adoption. CASA recommended the minor remain in her then-current placement with a revised permanent plan of tribal customary adoption.
At the review hearing, J.H. stated she had not seen the minor for over two years, wanted the minor returned to her custody, and "[the] system has messed my kids up." The Tribe submitted on the matter. The court continued the minor's placement and identified the permanent plan as "Legal Guardianship or Tribal Customary Adoption, once a legal guardian or adoptive home is identified."
In advance of a November 2022 status review hearing, CASA noted the minor had again changed placements and was in her eleventh placement in six years. As with the two prior placements, this placement indicated an interest in exploring a tribal customary adoption. Both CASA and the department recommended the minor remain in her current placement with no change to the existing placement order. The court adopted these recommendations and ordered the minor to remain in her current placement with no change to the permanent plan.
In April 2023, CASA noted both the existing placement and the minor were interested in adoption, and it recommended the minor's existing placement be provided with information about a tribal customary adoption. It requested the Tribe's social worker offer recommendations about possible support for out-of-county placements. The department requested the court set a new section 366.26 hearing because the current placement expressed a desire to adopt the minor. At the subsequent May 2023 review hearing, the Tribe stated it was submitting on the department and CASA reports and supported the adoption. While J.H. was not present at the hearing, her counsel agreed with the court entering the orders presented by the department. The court continued the existing permanent plan but scheduled a new section 366.26 hearing.
At the September 11, 2023 section 366.26 hearing, neither J.H. nor the Tribe's representative was present, although counsel for J.H. was present. The court continued the section 366.26 hearing to allow a representative for the Tribe to appear and provide its position on the adoption.
At the subsequent September 18, 2023 hearing, the Tribe stated it was in support of the recommendation and submitted. It had been waiting to receive the section 366.26 report and would be filing the tribal customary adoption order within the month. J.H. objected to a tribal customary adoption. She asserted her ICWA rights had been violated, requested new counsel, and asked for a continuance. J.H. also raised various objections to the adoption based on alleged lack of communication from the Tribe and recent progress she has made to address the causes of the dependency. The court denied J.H.'s requests.
Following the section 366.26 hearing, the court entered an order identifying the minor's permanent plan to be tribal customary adoption as created by the Tribe. The court continued the section 366.26 hearing to January 2024 to allow for receipt of the Tribe's tribal customary adoption order. J.H. subsequently appealed.
Discussion
On appeal, J.H. contends the court abused its discretion in ordering a permanent plan of tribal customary adoption. She further asserts the court erred in denying her request for a continuance under both section 352 and ICWA.
I. Timing of Tribal Customary Adoption Order
J.H. argues reversal is required because the juvenile court, at the time of the September 2023 section 366.26 hearing, had not yet received a tribal customary adoption order from the Tribe, an assessment of the terms of a tribal customary adoption, and an evaluation of whether the foster family was willing to agree to those terms. We disagree.
At the section 366.26 hearing, J.H. did not object to the selection of tribal customary on the basis that the court had not yet received the tribal customary adoption order from the Tribe. Generally,"' "[a]n appellate court will ordinarily not consider procedural defects or erroneous rulings in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method." '" (In re G.C. (2013) 216 Cal.App.4th 1391, 1398.) The forfeiture doctrine has been applied in dependency proceedings in a wide variety of contexts, including compliance with the statutory requirements for tribal customary adoptions. (Id. at p. 1399.) However, even if the issue were not forfeited, any error in identifying tribal customary adoption as the permanent plan at the September section 366.26 hearing was harmless as discussed in Part I.C.
A. Statutory Framework
Under section 366.26, the juvenile court selects from permanent plans including adoption, legal guardianship, long-term foster care, and, where applicable, tribal customary adoption. (§ 366.26, subds. (b)(1)-(b)(7).)
"A' "tribal customary adoption"' is an 'adoption by and through the tribal custom, traditions, or law of an Indian child's tribe,' which does not require termination of parental rights." (In re I.P. (2014) 226 Cal.App.4th 1516, 1525.) A tribal customary adoption provides Indian children with an" 'alternative to a standard adoption and protects both the Tribe's and the child's interests in maintaining tribal membership by formalizing an adoption by an individual selected by the Tribe without terminating parental rights.'" (Ibid.) In a tribal customary adoption, "the adoptive parents may be ordered to provide the child with opportunities to participate in tribal culture." (Ibid.)" 'Tribal customary adoption is intended to provide an Indian child with the same stability and permanency as traditional adoption under state law without the termination of parental rights, which is contrary to the cultural beliefs of many Native American tribes.'" (In re A.S. (2018) 28 Cal.App.5th 131, 143.)
Section 366.24 sets forth the procedures to institute a tribal customary adoption. If the tribal assessment report for the section 366.26 hearing discusses a tribal customary adoption option and the tribe agrees it is appropriate, then the tribe conducts a home study prior to approval of the tribal customary adoption placement. (§§ 366.21, subd. (i)(1)(H), 366.24, subds. (b), (c)(1)-(3).) If the tribe agrees with the tribal customary adoption following this assessment, it must prepare and submit a tribal customary adoption order to the court. (§§ 366.21, subd. (i)(1)(H), 366.24, subd. (c)(6).) This assessment report and submission of the order from the tribe should be completed prior to the section 366.26 hearing. (§§ 366.21, subd. (i)(1)(H), 366.24, subd. (c)(6).)" 'However, if it is not and the Tribe has identified [tribal customary adoption] as the desired permanent placement plan, the juvenile court may continue the selection and implementation hearing for up to 120 days to permit the Tribe to complete the process for [the tribal customary adoption] and file the [tribal customary adoption] order with the juvenile court. (§ 366.24, subd. (c)(6).) The juvenile court has discretion to continue the hearing for an additional 60 days to complete the [tribal customary adoption] process. (§ 366.24, subd. (c)(6).) At the selection and implementation hearing the parties may present evidence to the Tribe on the [tribal customary adoption] and the minor's best interest. (§ 366.24, subd. (c)(7).) Once the juvenile court affords full faith and credit to the [tribal customary adoption] order the child is eligible for [tribal customary adoption] placement. (§ 366.24, subd. (c)(8).)'" (In re I.P., supra, 226 Cal.App.4th at pp. 1525-1526.)
B. Section 366.26 Hearing
J.H. contends the juvenile court erred by ordering a permanent plan of tribal customary adoption without first obtaining the Tribe's tribal customary adoption order including the terms of any proposed modification of parental rights and whether those are in the minor's best interest, the foster family's agreement to such terms, and whether the adoption would likely be granted under the customary practices, traditions, or law of the Tribe.
Therefore, the appeal before us does not present a substantive challenge to the appropriateness of a tribal customary adoption as the minor's permanent plan, but rather a procedural challenge-i.e., whether the Tribe had to submit the tribal customary adoption order before the court could identify tribal customary adoption as the minor's permanent plan.
The statutes governing selection and implementation hearings and tribal customary adoptions do not specifically address this question of timing. Section 366.26, subdivision (b) requires courts to "read and consider" certain reports before making "findings and orders" on a minor's permanent plan. Sections 366.21 and 366.22 then provide that the agency supervising the minor-in advance of a section 366.26 hearing-must "prepare an assessment" that includes, among other items, "[a] preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or legal guardian, including the prospective tribal customary adoptive parent," "an assessment of the likelihood that the child will be adopted," "[w]hether tribal customary adoption would or would not be detrimental to the Indian child," and "[w]hether the Indian child cannot or should not be returned to the home of the Indian parent." (§ 366.21, subd. (i)(1)(H); §366.22, subd. (c)(1)(G); see also § 366.25, subd. (b)(1)(G) [same].) Notably absent from this statutory scheme is any requirement that courts review materials prepared under section 366.24-i.e., the provision governing tribal customary adoptions that discusses the tribe's duty to conduct a home study and background check and prepare a tribal customary adoption order-in advance of a section 366.26 hearing.
The statute references review of reports specified in sections 361.5, 366.21, 366.22, and 366.25. (§ 366.26, subd. (b).)
In In re A.S., supra, 28 Cal.App.5th 131, the Fourth District Court of Appeal considered the interplay of sections 366.26 and 366.24 when assessing at what stage parents are entitled to present evidence to the tribe on a proposed tribal customary adoption. (Id. at p. 145.) The court concluded that sections 366.24 and 366.26, together, "contemplate a two-part selection and implementation hearing. At the initial hearing the court selects tribal customary adoption as the permanent plan; at the continued hearing, the court addresses the specific tribal customary adoption order, and determines whether to afford it full faith and credit." (In re A.S., at p. 146.) The court explained this two-step process allowed parents "to communicate with the tribe before it adopts the tribal customary adoption order so that the tribe may consider the parents' evidence in developing the order and completing the tribal adoption." (Id. at p. 147.) The court therefore found unavailing the parents' argument that they were denied due process because the court selected tribal customary adoption as the permanent plan before they were allowed to present evidence to the tribe regarding their children's best interests. (Id. at p. 145.)
County Letter No. 10-47, published in 2010 by the State Department of Social Services, also describes a two-part hearing: "If reunification services are terminated, once the tribe and social worker indicate that tribal customary adoption is the preferred plan, the court considers tribal customary adoption as the permanent plan at the section 366.26 hearing. [Citation.] If the court determines that tribal customary adoption is the appropriate permanent plan, the court continues the hearing for the tribe to conduct its part of the section 366.24 process." (In re A.S., at p. 146, citing All-County Letter, §§ 1.6(b) & 1.6(e) <http://www.cdss.ca.gov/lettersnotices/ entres/getinfo/acl/2010/10-47.pdf>.) While In re A.S. noted the All-County Letter supported its interpretation of a two-hearing process, it criticized the letter for diminishing parents' due process rights by only allowing parental input at the second hearing. (In re A.S., at p. 148.) The timing of parental input is not at issue here.
J.H. asserts In re A.S. was wrongly decided because courts cannot assess whether a tribal customary adoption serves the minor's best interest without first receiving the Tribe's assessment and tribal customary adoption order. Nor, she asserts, is it rational to use an initial section 366.26 hearing merely as a mechanism for parental input on the potential tribal customary adoption. She contends the statutes would have clearly specified a two-step selection and implementation hearing if the Legislature had intended such an approach.
To support her argument, J.H. relies on In re A.M. (2013) 215 Cal.App.4th 339, In re I.P., supra, 226 Cal.App.4th 1516, In re Sadie S. (2015) 241 Cal.App.4th 1289, and In re H.R. (2012) 208 Cal.App.4th 751. Those cases state the tribe's assessment and its submission of a tribal customary adoption order should occur before the section 366.26 hearing. (In re A.M., at p. 348; In re H.R., at p. 760; In re I.P., at p. 1526; In re Sadie S., at p. 1296.) But those cases also acknowledge that courts may continue the section 366.26 hearing for a tribe "to complete the process for [a tribal customary adoption] and file the [tribal customary adoption] order with the juvenile court." (In re A.M., at p. 348; see also In re H.R., at p. 760 ["juvenile court 'may continue' a hearing under section 366.26 to provide a tribe recommending tribal customary adoption sufficient time to conduct the required home study and produce a tribal customary adoption order."]; In re I.P., at p. 1526 [same]; In re Sadie S., at p. 1296 [same].) And they are silent as to whether the court may order the permanent plan of tribal customary adoption while also continuing the hearing.
Here, the court received and considered the department's adoption assessment prior to setting the minor's permanent plan at the September section 366.26 hearing. The court also confirmed at the section 366.26 hearing that the Tribe agreed to a tribal customary adoption as the minor's permanent plan and provided J.H. with the opportunity to testify and articulate her objections to the proposed permanent plan. The court then identified tribal customary adoption as the minor's permanent plan and continued the section 366.26 hearing for approximately 120 days to allow the Tribe to complete its review and submit the tribal customary adoption order for the court's consideration. While we acknowledge J.H.'s concerns about whether an agency can conduct an adequate assessment of a proposed tribal customary adoption without certain information, the statutory language does not appear to support her interpretation that a two-step section 366.26 hearing is never permissible.
While a parent could challenge the adequacy of that assessment, including an agency's evaluation of a proposed tribal customary adoption, J.H. has not challenged the substance of the department's assessment in this appeal.
Moreover, we note the statutory obligation to afford full faith and credit to the tribal customary adoption order does not divest the juvenile court of its discretion to select the most appropriate permanent plan. (See, e.g., In re H.R., supra, 208 Cal.App.4th at p. 765 ["As reflected throughout the statute, the reference to full faith and credit does not remove the court's authority to make the final determination of the appropriate permanent plan."]; In re Sadie S., supra, 241 Cal.App.4th at p. 1296 ["[t]he requirement that the court afford the [tribal customary adoption] order full faith and credit does not place a restriction on the court's discretion to select the most appropriate permanent plan."].) And the court retains jurisdiction to modify its orders, even after granting full faith and credit to a tribal customary adoption order, until the final adoption decree is issued. (See, e.g., In re J.Y. (2018) 30 Cal.App.5th 712, 720 [juvenile court entitled to modify tribal customary adoption order even after initially granting the order full faith and credit].)
Regardless, we need not resolve whether the trial court is allowed to identify tribal customary adoption as the permanent plan prior to receipt of the tribal customary adoption order because, under the facts of this case, any error was harmless.
C. Any Error was Harmless
In challenging the juvenile court's alleged procedural error, J.H. must demonstrate" 'a reasonable probability that . . . she would have enjoyed a more favorable result in the absence of the error.'" (In re G.C. (2013) 216 Cal.App.4th 1391, 1400.) She has failed to do so.
Tribal customary adoption had been discussed as a potential permanent plan for the minor since June 2021. The minor's two prior placements expressed interest in tribal customary adoptions, and the Tribe had indicated its willingness to pursue that option. Moreover, the court's order following an April 2022 review hearing identified "Legal Guardianship or Tribal Customary Adoption" as the minor's permanent plan. (Italics added.) Accordingly, the September section 366.26 hearing did not meaningfully "alter the juvenile court's determination regarding the appropriate permanent plan (which had already been determined to be tribal customary adoption) or otherwise affect [J.H.'s] interest in her legal status with respect to the minor." (See In re J.Y., supra, 30 Cal.App.5th at p. 718.)
While J.H. identifies information she contends was missing from the record at the September hearing (e.g., the terms of the tribal customary adoption, whether the foster family agreed with the terms of the adoption, whether the adoption was likely to be granted), her brief is notably silent as to whether any such omissions were corrected at the continued hearing in January. And J.H. has not provided any record of those continued proceedings for this court's review. (See Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502 ["[f]ailure to provide an adequate record on an issue requires that the issue be resolved against [appellant]"].) Nor does she explain why the court would have ordered a different permanent plan for the minor at the January hearing had it waited to identify a permanent plan. (See Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 557 ["appellant must show not only that error occurred but that it is likely to have affected the outcome."].)
The record before us shows the Tribe and department agreed on the appropriateness of a tribal customary adoption, both the minor and the foster family desired adoption in lieu of guardianship, and tribal customary adoption is the preferred permanent plan for this Indian child. (See In re H.R., supra, 208 Cal.App.4th at pp. 763-764.) Nothing in the record indicates that the court's identification of tribal customary adoption as the permanent plan at the September hearing impacted J.H.'s rights or limited the court's ability to order an appropriate permanent plan at the continued January hearing.
Accordingly, J.H. has failed to demonstrate any harm because of the alleged error.
II. The Court did not Abuse its Discretion in Denying J.H.'s Request for a Continuance
J.H. next asserts the court abused its discretion in denying her request for a continuance under section 352 and ICWA. We disagree.
A. Section 352
"Continuances shall be granted only upon a showing of good cause ...." (§ 352, subd. (a)(2).) We review the juvenile court's decision to deny a continuance for abuse of discretion. (In re Karla C. (2003) 113 Cal.App.4th 166, 180 ["Discretion is abused when a decision is arbitrary, capricious or patently absurd and results in a manifest miscarriage of justice."].)
On appeal, J.H. raises a host of reasons for why she was entitled to a continuance of the September hearing. These arguments include: (1) her "ICWA rights have been violated . . . and are being violated," (2) she wanted to hire a new attorney, (3) she claimed to not have been receiving information from Child Welfare Services, (4) she wished to meet with her tribal counsel to discuss why a tribal customary adoption should not be ordered, (5) she "want[s] [her] kids back" and is "doing much better," and (6) the Tribe has not spoken with her or her children. None of these grounds constitute good cause for a continuance.
J.H. orally requested a continuance at the September 366.26 hearing. While courts may consider oral motions (see § 352, subd. (a)(3)), our review is limited to the grounds raised before the juvenile court. We do not consider the new arguments she raises on appeal that were not asserted below. (See In re A.B. (2014) 225 Cal.App.4th 1358, 1366.)
First, as discussed above, J.H. had been aware of the possibility of a tribal customary adoption as a permanent plan since 2021, when it was discussed as an option for the minor's two prior foster families. Likewise, the court identified tribal customary adoption as a potential permanent plan following a 2022 review hearing. The record thus shows a tribal customary adoption had been identified as a possible permanent plan for multiple years prior to the section 366.26 hearing.
Second, the court correctly noted J.H. failed to demonstrate any changed circumstances that would justify a delay in the section 366.26 hearing. Despite the court initially detaining the minor in 2016, J.H. had not made meaningful progress in the intervening seven years. As noted by the court, "[J.H.'s] acknowledged she's without adequate housing now, has not demonstrated through participation in all the various programs that she just hasn't followed through and done the things that she should have done. And now we're past the point - we're past the point of no return, so to speak." J.H. does not substantively argue the court erred in this assessment. (See In re A.C. (2017) 13 Cal.App.5th 661, 672 [" 'When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.' "].)
Third, the court conducted a Marsden hearing on J.H.'s request for new counsel. After considering J.H.'s concerns regarding the adequacy of her counsel's representation, the court denied her request. J.H. fails to identify any error in that ruling or explain why it would support a continuance. (See In re A.C., supra, 13 Cal.App.5th at p. 672.)
People v. Marsden (1970) 2 Cal.3d 118.
Finally, J.H. asserts a lack of notice. However, her counsel represented she had been contacting J.H.-at the phone number J.H. provided-to inform her about hearings. The court confirmed the department had J.H.'s current address, and the record indicates notices have been sent to that address.
In sum, J.H. has failed to demonstrate the court abused its discretion in denying her oral request for a continuance.
B. Continuance Under ICWA
J.H. also asserts the court violated her rights under ICWA by denying her request for a continuance. In response, the department contends the provisions of ICWA, generally, and section 224.3, in particular, are limited to a duty of inquiry and do not extend any rights in connection with section 366.26 hearings. The department's response ignores the express language of the statute, which imposes specific procedural requirements for substantive dependency proceedings. (See § 224.3, subd. (a) ["If the court, a social worker, or probation officer knows or has reason to know. . . that an Indian child is involved, notice . . . shall be provided for hearings that may culminate in an order for foster care placement, termination of parental rights, preadoptive placement, or adoptive placement ...."] (Italics added); § 224.3, subd. (d) ["A proceeding shall not be held until at least 10 days after receipt of notice by the parent .... [T]he parent, Indian custodian, or tribe shall, upon request, be granted up to 20 additional days to prepare for that proceeding.] (Italics added).)
That said, the facts of this matter do not justify reversal. The court did, in fact, continue the section 366.26 hearing to January 2024-a continuance of approximately 120 days, which is well beyond the 20 additional days parents may request under section 224.3, subdivision (d). While the court entered an initial section 366.26 order following the September hearing, as discussed above J.H. has not demonstrated any prejudice resulting from that order.
Disposition
The order is affirmed.
WE CONCUR: Fujisaki, Acting P.J., Rodriguez, J.