Opinion
F073912
03-16-2017
In re DAMON J., a Person Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. HELEN C., et al., Defendants and Appellants.
Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant Helen C.. Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant Veronica J.. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CEJ300076-1 )
OPINION
APPEAL from orders of the Superior Court of Fresno County. Brian M. Arax and Timothy A. Kams, Judges. Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant Helen C.. Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant Veronica J.. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
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Helen C., the maternal grandmother and former legal guardian of Damon J., appeals from the juvenile court's order terminating her probate guardianship over Damon. Helen contends the juvenile court erred when it terminated her reunification services at the six-month review hearing and set a Welfare and Institutions Code section 366.26 hearing. She also challenges the juvenile court's finding that the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) does not apply. Damon's mother, Veronica J. (mother), who appeals from the juvenile court's order terminating her parental rights, joins in Helen's ICWA argument. Finding no merit to the parties' contentions, we affirm the orders terminating the probate guardianship and mother's parental rights.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
The probate court appointed Helen Damon's legal guardian in August 2014, when Damon was 19 months old. Seven months later, in March 2015, the Department filed a dependency petition on behalf of two-year-old Damon, alleging Damon was put at substantial risk of serious harm as Helen had a history of ongoing domestic violence with maternal grandfather Hector A. in Damon's presence, and was in contact with Hector in violation of a restraining order.
In June 2015, the juvenile court found the petition's allegations true, declared Damon a dependent child of the court, removed him from Helen's custody, placed him in foster care, and ordered reunification services for Helen and mother. Helen's case plan was comprised of parenting; evaluations for substance abuse and mental health, and any recommended treatment; random drug testing; and a domestic violence inventory and any recommended treatment.
Over the next six months, Helen made little progress in her services. She was assigned to a parenting class three times, but each time she was dropped from the class because she failed to attend. She entered substance abuse treatment at Dunamis, Inc. in April 2015, as the substance abuse evaluation recommended outpatient treatment, and chose to remain in treatment there even after the Department later stopped contracting with Dunamis and the social worker stressed to her that she must participate in a Department-approved program. Helen claimed she was attending an anger management class at Dunamis, and receiving mental health services there, but never provided the Department with a release of information so her participation and programs could be verified. Three of Helen's six drug tests were positive. Helen was visiting Damon once a week, but visits were therapeutically supervised due to concerns regarding her interactions with Damon. Damon appeared to enjoy the visits, which typically centered around food, but Helen had a difficult time engaging Damon in play.
Based on Helen's minimal progress in court-ordered services, the Department opined the prognosis for reunification was poor and it was unlikely Damon could be returned to Helen within the statutory time frame. While Helen reported she was participating in some services, such as outpatient substance abuse treatment and an unapproved parenting class, she failed to provide progress reports and had tested positive for methamphetamine. Helen had been advised several times that she was out of compliance with court-ordered services, as the programs she claimed to be attending were not Department-approved. Several attempts had been made to schedule a staffing with Helen, but she always had an excuse for not attending. According to the Department, Helen's lack of effort and communication showed she was unwilling or unable to complete services to ameliorate the conditions that led to Damon's removal from her care. For those reasons, the Department recommended terminating Helen's reunification services. The Department also recommended terminating mother's reunification services.
Neither Helen nor mother were present at the December 22, 2015 six-month review hearing. The juvenile court found mother had not made any progress in services and Helen's progress was minimal, terminated both Helen's and mother's reunification services, and set a section 366.26 hearing for April 2016. The juvenile court ordered writ rights to be mailed to mother and Helen by first class mail. The following day, the court clerk mailed the JV-820 Notice of Writ Rights to mother and Helen. Helen's notice, however, was mailed to an address other than the one she provided to the juvenile court on November 4, 2015. Helen did not pursue her writ rights.
In a report prepared for the section 366.26 hearing, the Department recommended a permanent plan of adoption for Damon, who was considered generally adoptable. Although Damon's current care provider did not wish to adopt, the Department believed it could find a family willing to adopt him. The Department opined that Damon did not have a parent/child relationship with either his mother or Helen. While they both consistently visited Damon, they failed to provide him with structure, nurture, challenge and engagement. Despite being told not to bring large amounts of food for Damon, food was the primary focus of each visit. Helen struggled finding activities for Damon and was not comfortable talking to him. In addition, neither mother nor Helen were aware of Damon's development even after being educated numerous times on his developmental level. Accordingly, the Department did not believe it would be detrimental to terminate parental rights.
Mother and Helen were not present at the April 2016 section 366.26 hearing. The juvenile court found they were given proper notice of that hearing. The Department requested a continuance so it could file a motion to terminate the legal guardianship. The juvenile court granted the continuance and set the motion to terminate the guardianship for trial, as Helen's attorney said Helen was communicating with him fairly regularly and would want a trial. The juvenile court set a combined section 366.26 hearing and trial on the motion to terminate for May 31, 2016, with a settlement conference to be held on May 17.
Subsequent references to dates are to dates in 2016.
The Department served a notice of motion and motion to terminate the probate guardianship on Helen and mother on May 13. The Department brought the motion pursuant to section 728, and asserted termination of Helen's probate guardianship was in Damon's best interests, as demonstrated in the Department's report prepared for the section 366.26 hearing.
Helen did not appear at the May 17 settlement conference. Helen's attorney had not identified any issues for trial, as Helen did not respond to a letter he sent asking her to contact him and advising her she needed to be present at the settlement conference. The attorney asked to confirm the matter for a contested trial on May 31. Mother, who was present in custody, asked for a contested section 366.26 hearing on the issue of the beneficial relationship exception. The juvenile court confirmed both the section 366.26 hearing and motion to terminate the guardianship for May 31.
Helen did not appear at the May 31 hearing, although mother was present in custody. Helen's attorney entered an objection to the recommendation, but did not have any argument, witnesses or evidence to present. He had attempted to contact Helen, but she had not responded and had not been in contact with him for several months. County counsel asked the juvenile court to grant the motion to terminate the probate guardianship, find Damon adoptable, order adoption as the permanent plan, and terminate parental rights. The juvenile court granted the motion to terminate the probate guardianship and turned to the section 366.26 hearing. Mother's attorney asked the juvenile court not to terminate parental rights due to mother's beneficial relationship with Damon. The juvenile court was not persuaded by mother's attorney's argument and adopted the findings and orders contained in the Department's report, including termination of parental rights and ordering a permanent plan of adoption.
DISCUSSION
Termination of Reunification Services
As Damon's guardian under the Probate Code, Helen was entitled to receive reunification services. (In re Merrick V. (2004) 122 Cal.App.4th 235, 249-250 (Merrick V.) Helen received six months of reunification services before the juvenile court terminated them at the December 2015 review hearing and set a section 366.26 hearing after also terminating mother's services.
On appeal from the May 2016 order terminating the probate guardianship, Helen challenges the following findings by the juvenile court made at the December 2015 hearing: (1) there was not a substantial probability she could reunite with Damon if given an additional six months of services; (2) she failed to participate regularly and make substantive progress in services; and (3) she was offered reasonable services. Helen, however, did not file a petition for extraordinary writ to challenge the termination of services, as required by section 366.26, subd. (l)(1). She nevertheless asserts she may raise these issues because the court clerk mailed the written notice of the requirement to file a writ petition to the wrong address. (§ 366.26, subd. (l)(3)(A) [if a party is not present when the juvenile court sets a section 366.26 hearing, the clerk is required to provide written notice of the requirement of filing a petition for extraordinary writ review by first-class mail to the party's last known address]; In re Albert A. (2016) 243 Cal.App.4th 1220, 1235 ["when a parent is not properly advised of his or her right to challenge the setting order by extraordinary writ, and consequently the parent does not timely file a writ petition, good cause exists to consider issues relating to the setting hearing in an appeal from an order terminating parental rights"].)
The Department does not contend that Helen was properly served with notice of her writ rights. Instead, it contends Helen forfeited her argument that reunification services were terminated erroneously because she did not raise the issue below at subsequent hearings. It also argues that even if we do not deem the argument forfeited, substantial evidence supports the juvenile court's findings.
We need not decide whether Helen can properly raise these issues here or the merits of her argument that the juvenile court erred in terminating her reunification services because Helen has failed to challenge the juvenile court's order terminating the probate guardianship.
The procedure for terminating a probate guardianship in a dependency proceeding is set forth in section 728 and California Rules of Court, rule 5.620(e). (In re Z.F. (2016) 248 Cal.App.4th 68, 73 (Z.F.).) The juvenile court may terminate a probate guardianship on the social service agency's motion at any stage in the dependency proceeding. (§ 728, subd. (a) [the hearing on a termination motion "may be held simultaneously with any regularly scheduled hearing held in proceedings to declare the minor a dependent child . . . , or at any subsequent hearing concerning the dependent child . . ."]; rule 5.620(e); In re Xavier R. (2011) 201 Cal.App.4th 1398, 1413 (Xavier R.) [recognizing that the juvenile court has authority to terminate a probate guardianship at any stage in the dependency proceedings]; Merrick V., supra, 122 Cal.App.4th at p. 253.) This includes after reunification services are offered to the guardian; there is no time limit on when a section 728 motion to terminate a probate guardianship may be made. (Xavier R., supra, 201 Cal.App.4th at pp. 1414-1415.) "The sole criterion for termination of a probate guardianship is whether termination is in the minor's best interests." (Id. at p. 1416; see also Z.F., supra, 248 Cal.App.4th at p. 73.)
Subsequent rule references are to the California Rules of Court.
Here, the juvenile court terminated Helen's probate guardianship after it terminated her reunification services. Helen does not challenge the order terminating the guardianship or argue termination was not in Damon's best interests. Instead she presumes, without citation to authority, that if the juvenile court erred in terminating her services, the order terminating the guardianship must be reversed. We disagree.
Since a probate guardianship may be terminated at any time during the dependency proceedings, even when a guardian is receiving reunification services, and is governed only by the child's best interests, whether a guardianship should be terminated is not dependent on the juvenile court's findings concerning reasonableness of services or substantial probability of return. Put another way, the juvenile court is not required to make findings concerning services to terminate a probate guardianship; instead, it must only find that termination is in the child's best interests. Here, the juvenile court terminated the guardianship after finding it was in Damon's best interests to do so. Since the guardianship has been terminated, Helen is no longer entitled to reunification services. Thus, unless Helen challenges the order terminating the guardianship and we determine that termination was improper, we have no power to order further services even if we agree the juvenile court erred in terminating them.
We must presume the order terminating the guardianship is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is Helen's burden, as the appellant, to raise claims of reversible error or other defect, and present argument and authority on each point made. (In re Sade C. (1996) 13 Cal.4th 952, 994.) Helen has failed to meet her burden, as she does not raise any appellate issue concerning the order terminating the guardianship or point to any legal authority to support her claim that reversal is required should we find the juvenile court erred in terminating her services. Given Helen's failure to challenge the finding that termination of the guardianship was in Damon's best interests, it is irrelevant whether the juvenile court erred in terminating her reunification services. As Helen has failed to show reversible error, we affirm the juvenile court's order terminating the guardianship.
ICWA Compliance
Notice under ICWA must be given "where the court knows or has reason to know that an Indian child is involved" in the dependency proceeding. (25 U.S.C. § 1912(a); see also § 224.2, subd. (a).) This means that an ICWA notice must be given where the court knows or has reason to believe that the child "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. § 1903(4).) As defined by law, an "Indian tribe" is "any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary [of the Interior] because of their status as Indians...." (25 U.S.C. § 1903(8); see § 224.1, subd. (a).) As noted by one court: "The Department of the Interior publishes a list of 'Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs' in the Federal Register, and the California Department of Social Services, Children and Family Services Division, publishes a list of tribes entitled to ICWA notice on its website." (In re J.T. (2007) 154 Cal.App.4th 986, 992 (J.T.).)
Here, Helen completed an ICWA-020 on which she claimed Apache heritage. The Department provided notice of the proceedings to eight federally recognized Apache tribes and the Bureau of Indian Affairs, and received proofs of service from every tribe and the BIA. In June 2015, the Department moved to declare ICWA inapplicable to the case. The Department had received responses from four of the tribes indicating Damon was not eligible for membership; the remaining four tribes had not yet responded. The juvenile court granted the motion at the June 2015 disposition hearing.
Notice was given to the following tribes: (1) Apache Tribe of Oklahoma; (2) Fort Sill Apache Tribe of Oklahoma; (3) Jicarilla Apache Nation; (4) Mescalero Apache Tribe; (5) San Carlos Apache Tribe; (6) Tonto Apache Tribe of Arizona; (7) White Mountain Apache Tribe; and (8) Yavapai-Apache Nation.
The Department later provided the juvenile court with responses from the remaining four tribes, all of which denied Damon was eligible for membership.
Helen contends the ICWA notices were legally inadequate because the Department failed to provide any notice to what she claims is a ninth federally-recognized Apache tribe, the Fort McDowell Yavapai Nation. The Department correctly points out that Helen did not provide any authority to support her claim that the Fort McDowell Yavapai Nation is an Apache tribe in her opening brief. In her reply brief, Helen asserts the "Fort McDowell Yavapai Nation was formerly the Fort McDowell Mohave-Apache Community of the Fort McDowell Indian Reservation, and is home to three different tribes, the Apache, the Mohave and the Yavapai[,]" and the tribe's enrollment ordinance provides that everyone who was " 'duly enrolled pursuant to the 1936 Fort McDowell Mohave-Apache Community Constitution and By-laws as of the date of the adoption of the 1999 Constitution is entitled to membership and is hereby an enrolled member of the Fort McDowell Yavapai Nation.' " She asserts that because Apaches might be members of the Fort McDowell Yavapai Nation and she claimed Apache heritage, the Department was required to give notice to the tribe. She contends that, because of this defect, the juvenile court erred in finding ICWA did not apply. In her brief, mother adopts and incorporates by references Helen's arguments that the Department failed to give proper notice under ICWA.
The Fort McDowell Yavapai Nation is a federally recognized Indian tribe and is identified as such in both the Federal Register and on the list of tribes entitled to ICWA notice published by the California Department of Social Services (DSS), Children and Family Services Division. (See 80 Fed.Reg. 1942 (Jan. 14, 2015); 81 Fed.Reg. 5019 (Jan. 29, 2016; http://www.childsworld.ca.gov/res/pdf/CDSSTribes.pdf (DSS directory).) But neither the federal nor the state directory identifies the Fort McDowell Yavapai Nation as being connected with the Apache tribe. In fact, the DSS directory lists the Fort McDowell Yavapai Nation under the tribal affiliation, "Yavapai." (DSS directory, at p. 53.) As we have stated, the Department gave notice to each of the eight federally recognized tribes identified in the DSS directory as having Apache affiliation. (DSS directory, at pp. 1-2.) Therefore, the ICWA notice was not defective.
On our own motion, we take judicial notice of the relevant pages of the Federal Register and the DSS directory of federally recognized Indian tribes, pursuant to Evidence Code sections 452, subdivision (c), and 459, subdivision (a). (In re N.M. (2008) 161 Cal.App.4th 253, 268, fn. 9; see also J.T., supra, 154 Cal.App.4th at pp. 992, 994, fn. 5.)
In support of her claim that the Fort McDowell Yavapai Nation is comprised, in part, of the Apache tribe, Helen cites to documents posted on two different Internet Web sites. Her reliance on, and citation to, this factual material that was not presented below is improper. (See People v. St. Martin (1970) 1 Cal.3d 524, 537-538 ["ordinarily matters not presented to the trial court and hence not a proper part of the record on appeal will not be considered on appeal"]; rule 8.204(a)(2)(C) [appellant's opening brief shall include "a summary of the significant facts limited to matters in the record "], italics added; cf. In re Zeth S. (2003) 31 Cal.4th 396, 399-400 [appellate court generally may not consider postjudgment evidence outside the record on appeal to reverse dependency court's order terminating parental rights].) To the extent that Helen is, by her citation to these Internet materials, implicitly asking this court to take judicial notice of them, we deny that implicit request. (See In re K.P. (2009) 175 Cal.App.4th 1, 5 [disregarding Internet information outside the appellate record purporting to indicate that parent's reported tribe might be affiliated with federally recognized Indian tribe; judicial notice not requested by appellants and judicial notice of material not before juvenile court would not be proper].)
Appellate courts, including our own, have declined litigants' requests for judicial notice of various articles and other materials found on the Internet that, generally, were not presented to the trial court. (See, e.g., Hartwell Corp. v. Superior Court (2002) 27 Cal.4th 256, 279, fn. 12 [Internet articles on state agency Web site]; County of Kern v. Workers' Comp. Appeals Bd. (2011) 200 Cal.App.4th 509, 519, fn. 6 [Internet sites purporting to show "that other cities and counties have adopted formal agreements officially acknowledging volunteer fire departments for purposes of workers' compensation"]; Conlan v. Shewry (2005) 131 Cal.App.4th 1354, 1364, fn. 5 [state auditor's report on Medi-Cal fraud posted on Internet].)
There was substantial evidence supporting the juvenile court's June 30, 2015 order finding that ICWA did not apply. Accordingly, appellants' challenges to the order fail and their requests that the permanency order be conditionally reversed because the ICWA notice was defective are denied.
DISPOSITION
The juvenile court's May 31, 2016 orders are affirmed.
/s/_________
GOMES, Acting P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
PEÑA, J.