Opinion
B327180
01-17-2024
In re Cam. M. et al., Persons Coming Under the Juvenile Court Law. v. C.M., Defendant and Appellant. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Sarah Vesecky, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Nos. DK16318A, 18CCJP05290A Hernan D. Vera, Judge. Affirmed.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Sarah Vesecky, Senior Deputy County Counsel, for Plaintiff and Respondent.
MORI, J.
Father, C.M., appeals from a postpermanency planning review hearing concerning his children, Cam. M. and Cai. M. (collectively, the children). After efforts to reunite the children with their parents were terminated, a legal guardianship was established as the permanent plan for the children. Their maternal grandmother was appointed as their guardian. The juvenile court maintained jurisdiction over the children to enable the grandmother to obtain support services for the children, who were diagnosed with attention deficit hyperactivity disorder and autism. More than a year after permanent placement occurred, the juvenile court terminated its jurisdiction at the postpermanency hearing. Father argues the order terminating jurisdiction must be reversed because the court and the Los Angeles County Department of Children and Family Services (Department) did not comply with the inquiry duties of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related state law. We find the postpermanency hearing was not a child custody proceeding as defined by ICWA, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2016, the Department filed a section 300 petition alleging Cam. M. (born 2011) was at substantial risk of suffering serious physical harm due to father's and nonparty mother's history of engaging in violent altercations in Cam. M.'s presence. Father and mother each filed an ICWA-020 Parental Notification of Indian Status form denying Native American heritage. The juvenile court found it did not have reason to know ICWA applied to Cam. M's case. A few weeks later, the court declared Cam. M. a dependent and sustained the petition under Welfare and Institutions Code section 300. In August 2019, the juvenile court sustained a section 342 subsequent petition alleging father physically abused Cam. M. and engaged in violent behavior in Cam. M.'s presence. The Department was ordered to provide the parents with family reunification services.
All undesignated statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
While Cam. M.'s case was pending, the Department filed a section 300 petition on Cai. M.'s (born 2017) behalf alleging Cai. M. was at substantial risk of harm due to the parents engaging in violent altercations and father physically abusing Cam. M. Father and mother each filed ICWA-020 forms in Cai. M.'s case, again denying Native American heritage. At the adjudication hearing, the juvenile court found ICWA was inapplicable as to Cai. M. In November 2018, the court sustained the petition as to Cai. M., removed Cai. M. from parental custody, and ordered reunification services for both parents.
At the same hearing sustaining the petition as to Cai. M., the juvenile court found the parents were not in compliance with their case plan in Cam. M.'s case and terminated their reunification services therein. The court then set a section 366.26 hearing as to Cam. M. to select a permanent plan for him.
The juvenile court held the section 366.26 hearing for Cam. M. on November 20, 2019. The court selected legal guardianship as Cam. M.'s permanent plan and appointed his maternal grandmother as his legal guardian.
After terminating father's and mother's reunification services, the juvenile court held a section 366.26 hearing in Cai. M.'s case on May 14, 2021. As with Cam. M., the court selected legal guardianship as Cai. M.'s permanent plan and appointed maternal grandmother as his legal guardian. Father did not appeal from the court's orders or findings made at the section 366.26 hearing for either of the children.
After the legal guardianships were established, a postpermanency planning review hearing was set to terminate jurisdiction. The postpermanency hearing was continued multiple times to give the children and maternal grandmother the opportunity to obtain support services before the case was closed and Kinship Guardianship Assistance Payment (Kin-GAP) funding was provided. Maternal grandmother wanted support services for the children because Cam. M. was diagnosed with severe attention deficit hyperactivity disorder, and Cai. M. was diagnosed with autism. The court noted the legal guardianships already had been granted and continued to be the plan, and the case would be closed at the appropriate time.
When the juvenile court establishes a legal guardianship for a dependent child, the court "may continue jurisdiction over the child as a dependent child of the juvenile court or may terminate its dependency jurisdiction and retain jurisdiction over the child as a ward of the legal guardianship." (§ 366.3, subd. (a)(3).) "If, however, a relative or nonrelative extended family member of the child is appointed the legal guardian of the child and the guardian's home has been approved pursuant to [s]ection 16519.5 for at least six months, the court shall, except if the relative or nonrelative extended family member guardian objects, or upon a finding of exceptional circumstances, terminate its dependency jurisdiction and retain jurisdiction over the child as a ward of the guardianship." (Ibid.)
"The Kin-GAP program is a state program that provides ongoing funding for children who exit the dependency system to live with relative legal guardians. In order to receive funding under the program the county welfare agency must enter into a written binding agreement with the relative guardian and dependency jurisdiction must be terminated. (§§ 11386, 11387.)" (In re Priscilla D. (2015) 234 Cal.App.4th 1207, 1211, fn. 2.) .
On February 15, 2023, the juvenile court held a postpermanency review hearing. The Department's counsel clarified at the outset of the hearing the case had been kept open because the maternal grandmother needed additional services for the children, but the case was now ready to be closed with KinGAP funding. Father's counsel requested a continuance to file a section 388 petition. The court observed the case had been open for more than four years and it had denied section 388 petitions from father in late 2022. The court denied the request for a continuance. Then, the court terminated jurisdiction over the children with Kin-GAP funding in place.
Father filed a section 388 petition in each of the children's cases in 2022, requesting the court grant him overnight visits and family counseling. At the hearing for the petitions in late 2022, father also asked that his reunification services be reinstated if the children were not returned to father's care.
Father timely appealed from the orders and findings made at the postpermanency review hearing.
DISCUSSION
A. Governing Law
ICWA requires notice to Indian tribes in any involuntary proceeding in state court to place a child in foster care or to terminate parental rights "where the court knows or has reason to know that an Indian child is involved." (25 U.S.C. § 1912(a).) The California Legislature has enacted provisions that affirm ICWA's purposes (§ 224, subd. (a)) and mandate compliance with ICWA "'[i]n all Indian child custody proceedings.'" (In re Isaiah W. (2016) 1 Cal.5th 1, 9 (Isaiah W.); see § 224.4 ["The Indian child's tribe and Indian custodian have the right to intervene at any point in an Indian child custody proceeding"]; 25 U.S.C. § 1903(1) [ICWA applies to any "'child custody proceeding'" involving an Indian child].)
When applicable, ICWA imposes on the juvenile court and the Department "an affirmative and continuing duty to inquire whether a child for whom a petition under [s]ection 300 . . . may be or has been filed, is or may be an Indian child." (§ 224.2, subd. (a); see also Isaiah W., supra, 1 Cal.5th at pp. 9, 11-12.) The Department's "duty to inquire begins with the initial contact, including, but not limited to, asking the party reporting child abuse or neglect whether the party has any information that the child may be an Indian child." (§ 224.2, subd. (a).) "'In addition, "[f]ederal regulations require state courts to ask each participant 'at the commencement' of a child custody proceeding 'whether the participant knows or has reason to know that the child is an Indian child.' (25 C.F.R. § 23.107(a) (2022).)"'" (In re N.F. (2023) 95 Cal.App.5th 170, 176 (N.F.).) If the Department or juvenile court has reason to know an Indian child is involved in a dependency action, notice pursuant to ICWA must be sent to the pertinent tribe(s). (In re D.F. (2020) 55 Cal.App.5th 558, 568.)
"Although ICWA empowers an Indian child's tribe to intervene in any 'Indian child custody proceeding,' (§§ 224, subd. (b), 224.4; see 25 U.S.C. § 1911(c)), it is not implicated in every dependency case in which the child may have some degree of Native American heritage." (In re A.T. (2021) 63 Cal.App.5th 267, 274, fn. omitted.) "Notice to the tribes and other ICWA procedures must be provided only if the case is a 'child custody proceeding.'" (In re W.B. (2012) 55 Cal.4th 30, 57-58.)
Under California law, a "'child custody proceeding'" is "a hearing during a juvenile court proceeding . . . involving an Indian child . . . that may culminate in one of the following outcomes: [¶] (A) Foster care placement . . . [¶] (B) Termination of parental rights . . . [¶] (C) Preadoptive placement . . . [¶] (D) Adoptive placement." (§ 224.1, subd. (d)(1).) "'Foster care placement'" includes "removal of an Indian child from their parent . . . for placement in a foster home, institution, or the home of a guardian . . ., in which the parent . . . may not have the child returned upon demand, but in which parental rights have not been terminated." (Id., subd. (d)(1)(A).) Where there is reason to know that an Indian child is involved, ICWA notice must be provided "for hearings that may culminate in an order for foster care placement, termination of parental rights, preadoptive placement, or adoptive placement." (§ 224.3, subd. (a).) Additionally, "[w]henever an Indian child is removed from a foster care home or institution, guardianship, or adoptive placement for the purpose of further foster care, guardianship, or adoptive placement, placement of the child shall be in accordance with [ICWA]." (§ 224, subd. (b).)
Determining whether the postpermanency review hearing constitutes a child custody proceeding, as defined by and subject to ICWA, is reviewed de novo. (Isaiah W., supra, 1 Cal.5th at pp. 9-10; In re A.T., supra, 63 Cal.App.5th at p. 273.)
B. The Postpermanency Hearing was Not an Indian Child Custody Proceeding
Father appeals from the February 15, 2023, postpermanency review hearing. Father's sole contention is that the Department failed in its duty of initial inquiry because it did not ask several paternal and maternal relatives whether the children are or may be Indian children. The Department contends the hearing was not an Indian child custody proceeding so ICWA's notice requirements were not applicable. Father did not file any opposition or response to this argument. We agree with the Department.
"ICWA notice must 'be provided for hearings that may culminate in an order for foster care placement, termination of parental rights, preadoptive placement, or adoptive placement.'" (N.F., supra, 95 Cal.App.5th at p. 180; see also In re W.B., supra, 55 Cal.4th at p. 58 ["A case qualifies as a 'child custody proceeding' if it will involve action taken to terminate parental rights or to place an Indian child in foster care or in an adoptive or preadoptive home or institution. (25 U.S.C. § 1903(1))"].) In N.F., supra, 95 Cal.App.5th at p. 174, N.F. was removed from mother's custody, and mother failed to reunify with him. The juvenile court set a section 366.26 hearing and "selected legal guardianship as N.F.'s permanent plan," appointing his uncle as his legal guardian. (Id. at p. 175.) Almost a year later, mother filed a section 388 postpermanency petition seeking reinstatement of reunification services and a "'cha[nc]e to live together [with N.F.],'" which the court denied. (Ibid.) Mother appealed from the order and findings made at the hearing on her postpermanency petition. (Id. at p. 178.) She sought to reverse the court's legal guardianship order on the ground the court and Department failed to comply with their duty of inquiry under ICWA. (Ibid.)
Our colleagues in Division Three held, "ICWA did not apply to the postpermanency hearing on mother's section 388 petition because it was not an Indian child custody proceeding." (Id. at p. 180.) The proceeding could not culminate in "foster care placement-including guardianship placement-termination of parental rights, preadoptive placement, or adoptive placement." (Id. at p. 180.) Legal guardianship was already established for N.F. at the section 366.26 hearing, not at the postpermanency hearing from which mother appealed. (Id. at p. 178.) Moreover, mother was seeking to have N.F. returned to her care, and ICWA is not appliable when parents seek return of a child to their own care. (Id. at p. 180, citing In re A.T., supra, 63 Cal.App.5th at p. 274 [ICWA not implicated in a proceeding when dependent child is placed with a parent]; see also In re K.L. (2018) 27 Cal.App.5th 332, 335 [minor placed with father was not placed in "'foster care'" and proceeding was not a "'child custody proceeding'" within the meaning of ICWA].)
In this case, the juvenile court already selected legal guardianship as the children's permanent plan and appointed grandmother as the legal guardian for Cam. M. in 2019 and for Cai. M. in 2021. (See N.F., supra, 95 Cal.App.5th at p. 180.) Father did not timely appeal from the juvenile court's orders establishing the legal guardianships. (§ 395, subd. (a)(1); Cal. Rules of Court, rule 8.406, subd. (a)(1).) The only purpose of the postpermanency review hearing in 2023 was to close the case as was required for Kin-GAP funding. The children's grandmother previously requested the case remain open so that support services for the children could be put in place.
Prior to the postpermanency hearing, father did not file or serve notice of any request to be considered at the hearing. The only request he made at the postpermanency hearing was for a continuance to file an additional section 388 petition, which was denied. Father did not offer any reason why another section 388 petition was appropriate, especially in light of the fact that his recent 388 petition to obtain reinstatement of reunification services had been denied. There was no discussion of removing the children from their guardianship at any point at the postpermanency hearing. Even if father had then or later requested the children be returned to him, like the mother in N.F., that would not have qualified as an Indian child custody proceeding. (N.F., supra, 95 Cal.App.5th at p. 180; see also In re A.T., supra, 63 Cal.App.5th at p. 274.) "'Foster care placement,'" as defined by ICWA, does not include placement with a parent. (In re K.L., supra, 27 Cal.App.5th at p. 336.) Accordingly, the postpermanency review hearing was not an Indian child custody proceeding. (§ 224.1, subd. (d)(1); see also 25 U.S.C. § 1903(1).)
Father does not raise any claim of error concerning the juvenile court's denial of his continuance request.
Based on the foregoing, father fails to show ICWA or related state law applied to the postpermanency review hearing under the circumstances presented in this case. Compliance with ICWA, therefore, was not required.
DISPOSITION
The order terminating jurisdiction is affirmed.
WE CONCUR: CURREY, P. J., ZUKIN, J.