Opinion
B293366 c/w B294138
08-08-2019
In re LITA R., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ENRIQUE R. et al., Defendants and Appellants.
Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant Enrique R. Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant Michelle R. Tarkian & Associates, and Arezoo Pichavi, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. DK08155) APPEAL from orders of the Superior Court of Los Angeles County. Stephen C. Marpet, Commissioner. Affirmed and conditionally remanded. Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant Enrique R. Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant Michelle R. Tarkian & Associates, and Arezoo Pichavi, for Plaintiff and Respondent.
* * * * * *
Michelle R. (mother) has six children, three of whom she had with Enrique R. (father). In 2014, the juvenile court exerted dependency jurisdiction over all six children. Of the three children mother and father share, the juvenile court placed the eldest two in a legal guardianship and terminated their parental rights over the youngest. In these consolidated appeals, mother argues that the juvenile court (1) wrongfully allowed the middle child to veto any visits with her, and (2) erred in denying her fourth petition to reinstate reunification services. Mother and father both argue that the trial court did not comply with the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901. We conclude that mother's first two arguments lack merit, but that the court did not comply with ICWA. Accordingly, we affirm with instructions for a limited remand.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Mother has six children—Lita (born June 2001), Enrique (born October 2003), Evelyn (born March 2006), Mathew (born October 2007), Skarlit (born October 2008), and Jade (born September 2009). Father is the presumed father of Lita, Enrique and Evelyn.
The father of the youngest three children was killed while these dependency proceedings were pending.
In October 2014, law enforcement executed a search warrant at mother's home based on suspected gang activity. At that time, mother was living with all six children and a "documented" gang member. The gang member would hit Enrique on the back of the head, would hit or slap Evelyn and Mathew on the forehead, and would slap Skarlit on the neck. The man would get into "yelling match[es]" with mother. Mother and the man kept loaded firearms in and around the house. Until just a month before the search, mother was living with the father of the youngest three children; they also had a tumultuous relationship, as they would argue and he once pushed her to the ground after she threatened him with a steel bar. The house itself was also a hazard: Its windows were broken and had large glass pieces dangling down; it was infested with roaches; and it had no running water.
II. Procedural Background
A. Operative allegations
In November 2014, the Los Angeles County Department of Children and Family Services (the Department) filed a petition asking the juvenile court to exert dependency jurisdiction over all six children based on (1) the gang member's "excessive" "physical abuse" of Enrique, Evelyn, Mathew and Skarlit and mother's failure to protect the children from that abuse (rendering jurisdiction appropriate under Welfare and Institutions Code section 300, subdivision (a), (b) and (j)), (2) mother's "history" of "engaging in violent altercations" with the father of the younger children (rendering jurisdiction appropriate under section 300, subdivisions (a) and (b)), (3) mother's leaving "two loaded firearms" "in the . . . home" and "within access of the children," thereby placing the children in a "detrimental and endangering situation" (rendering jurisdiction appropriate under section 300, subdivision (b)), and (4) the "hazardous, filthy and unsanitary [condition]" of the home (rendering jurisdiction appropriate under section 300, subdivision (b)).
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
B. Jurisdiction and disposition
In January 2015, the juvenile court sustained all of the allegations, declared the children to be dependents of the juvenile court, removed all six children from mother, and ordered the Department to provide mother with reunification services. The court also ordered mother to complete a case plan, which included a duty to complete anger management classes, parenting classes, individual counseling regarding domestic violence, and drug testing should the Department believe mother is under the influence. Father was not present for these proceedings, as he was serving a California prison sentence out-of-state.
C. Status review hearings
The juvenile court held status review hearings after 6 months, 12 months and 18 months. At the 18-month hearing in May 2016, the court found that mother was not in compliance with her case plan, terminated all reunification services, and set the matter for a permanency planning hearing.
D. Father's petition to modify
In March 2017, father filed a petition to modify the juvenile court's order setting the matter for a permanency planning hearing on the ground that he had never received proper notice of the dependency proceeding. In April and June 2017, the court granted father's petition, ordered the Department to provide him six months of reunification services, and ordered him to complete a case plan. Six months later, in December 2017, the court found that father had not complied with his case plan, terminated further reunification services and again set the matter for a permanency planning hearing.
E. Mother's petitions to modify
Mother filed four petitions to modify the juvenile court's order terminating her reunification services—one in December 2016, a second in May 2017, a third in June 2018, and a fourth in October 2018. The juvenile court denied the first two without a hearing, the third after a September 2018 hearing, and the fourth without a hearing.
F. Permanency planning
After denying mother's final petition to modify, the juvenile court in October 2018 held the permanency planning hearing regarding Lita, Enrique and Evelyn. The court terminated mother's and father's parental rights over Evelyn, but ordered legal guardianships for Lita and Enrique.
The court also held a hearing regarding Jade, ordering her permanent plan to be a legal guardianship. On April 5, 2018, the court had previously terminated mother's parental rights over Mathew and Skarlit and ordered them placed for adoption.
G. Appeal
Mother and father each filed timely notices of appeal.
DISCUSSION
I. Improper Delegation of Veto Power Over Visitation
Mother argues that the juvenile court improperly delegated to Enrique the power to decide whether any visitation would occur. We independently review the legal question whether a juvenile court has unconstitutionally delegated its judicial power (see In re Taylor (2015) 60 Cal.4th 1019, 1035 [constitutional questions reviewed de novo]), but review orders setting the terms of visitation for an abuse of discretion (In re Brittany C. (2011) 191 Cal.App.4th 1343, 1356).
A. Pertinent facts
Mother's January 2015 case plan specified that mother was to have monitored visits with her children "at least twice a week," with each visit to be "[two] hours in duration."
Mother did not fully avail herself of her right to visitation. Instead, she was "inconsistent" and "sporadic[]" in her visits, often canceling at the last minute and without notice. In the early months of the reunification period, Lita and Enrique refused to visit with mother. At the Department's urging, Lita eventually started to attend visits.
Enrique, however, was steadfast in declining visits.
In August 2015, Enrique explained his reasons—namely, (1) that mother's "missed visits in the past" and her failure to "call regularly" made him "feel[] like it is not important to visit her" and (2) that mother would "make him feel guilty" for living with a foster family rather than with blood relatives.
Hoping to bridge that gap of mistrust, the juvenile court in August 2015 ordered the Department to set up visitations attended by mother, Enrique and Enrique's therapist. The Department set up five such meetings. Mother was a "no show" for the first three scheduled meetings. When asked by the Department how she thought her failure to attend made Enrique feel, she replied, "How should I know" and added, "Enrique needs therapy and he would have his therapy session" no matter what, "so [her attendance] didn't really matter." Mother attended the last two meetings, but continued to "place the blame on others as if she had no fault in her children being removed" and "appeared to want sympathy from Enrique." Because "Enrique felt anxious and anger [sic] over having to attend . . . additional therapy session[s] with his mother when she was not even making an effort to be there," and because Enrique's behavior in his foster placement "worsened" before and after the five scheduled sessions but became "stable and positive" once the last of those sessions was over, both the therapist and the Department felt that further "therapeutic visits" were not "in the best interest of Enrique." In an October 2015 order, the court ordered the Department to set up appropriate family conjoint counseling for mother with Lita and Enrique.
When, in March 2016, Enrique explained to mother his desire not to have any visits with her, mother replied that she would "just leave [him] in the foster home and [would] not try to get [him] back." Mother's willingness to give up on him made Enrique "feel sad and upset."
At no point did mother object to Enrique's refusal to visit her.
B. Analysis
When a child is removed from his or her parent, the juvenile court in most instances must order the Department to provide reunification services to the parents (§ 361.5, subd. (a)), and those services must include "visitation between the parent . . . and the child" (§ 362.1, subd. (a)(1)(A)). "Visitation is a necessary and integral component of any reunification plan." (In re S.H. (2003) 111 Cal.App.4th 310, 317 (In re S.H.).) A juvenile court has a responsibility "to ensure [that] regular parent-child visitation occurs" (ibid.), and the court may not delegate "the power to decide whether any visitation occurs" to social workers, to therapists or to the child himself (id. at pp. 317-318; In re Julie M. (1999) 69 Cal.App.4th 41, 46, 51; In re Korbin Z. (2016) 3 Cal.App.5th 511, 516-517; In re Hunter S. (2006) 142 Cal.App.4th 1497, 1504-1505 (Hunter S.)). As long as the juvenile court's visitation order does not expressly or implicitly grant a child a "veto power" over visits, the fact that a child refuses to attend certain visits does not constitute an impermissible delegation, at least without proof that the court failed to act when the child's refusals were brought to its attention. (In re Sofia M. (2018) 24 Cal.App.5th 1038, 1046 (Sofia M.); In re S.H., at pp. 317-319.)
Applying this standard, the juvenile court did not improperly delegate to Enrique the power to veto visitation with mother. The court's order did not expressly confer any such veto power, as it required two-hour visits at least twice a week. And when Enrique initially voiced his objections to visitation during the early portion of the reunification period, the court ordered—and the Department arranged—visitation to occur in a therapeutic setting. Mother then unapologetically blew off more than half of those visits. What is more, although the court ordered further therapeutic counseling, mother never raised with the court the failure to schedule that counseling or issue of Enrique's further refusals to attend regular visits.
Mother raises what boils down to two arguments in response. First, she argues that at least one case predating Sofia M., supra, required a court to "enforce its visitation order" notwithstanding a child's refusal to attend visits. (Hunter S., supra, 142 Cal.App.4th at p. 1505.) Sofia M. rejected this earlier rule, reasoning that "the propriety of [a visitation] order" is "distinct" from its "enforcement" and that the prior case was incorrect "[t]o the extent" it suggests that the juvenile "court errs when the child refuses a proper visitation order." (Sofia M., supra, 24 Cal.App.5th at p. 1046.) Sofia M. instead placed the onus on the parent to bring the child's refusals to the court's attention, at which point the court must make "reasonable efforts" to secure visitation. (Id. at pp. 1046-1047.) We agree with Sofia M.'s approach. Mother goes on to argue that Sofia M.'s rule should not apply where, as here, the permanent plan for the child is legal guardianship rather than adoption because legal guardianship will not cut off all contact between the parent and child and thus still provides an opportunity for the parent to "repair her relationship" with the child. Nothing in Sofia M.'s holding or rationale calls for defining the right to visitation differently depending on what permanent plan the juvenile court might or might not adopt months or years later. Further, mother's conduct and attitude toward visiting Enrique evinces disinterest, not an intent to repair her relationship with him.
Second, mother contends that the court did not comply with Sofia M.'s mandate that it make "reasonable efforts" to encourage visitation because the five therapeutic visits the court ordered were "illusory." This contention is legally and factually unsupported. Legally, it misreads Sofia M., which obligates the court to make "reasonable efforts" once the parent objects to the child's refusal to visit. (Sofia M., supra, 24 Cal.App.5th at p. 1047.) Mother never objected. Factually, the court's efforts were reasonable. When monitored visitation did not work in light of Enrique's anger toward mother, the court ordered visits in the presence of Enrique's therapists. What caused these visits to be unsuccessful was mother's failure to attend the first three sessions, and her cavalier attitude toward her non-attendance only cemented Enrique's resentment toward her.
II. Improper Denial of Mother's Fourth Petition To Modify Without a Hearing
Mother asserts that the juvenile court erred in summarily denying her fourth petition to modify the court's order terminating reunification services. We review the summary denial of a petition for modification for an abuse of discretion. (In re Angel B. (2002) 97 Cal.App.4th 454, 460 (Angel B.).)
A. Pertinent facts
1. First petition
On December 7, 2016, mother filed her first petition to modify the court's order terminating reunification services. In her petition, she argued that she was entitled to a reinstatement of those services because she had "completed and obtained all necessary classes [and] requirements requested."
The juvenile court summarily denied the petition, finding that there had been no change in circumstances and that reinstating reunification services would not be in the best interests of the children.
2. Second petition
On May 26, 2017, mother filed her second petition to modify. This motion also sought to modify the court's order terminating reunification services, and argued that mother was "compliant with mental health services and continues to work on [her sobriety] and drug abuse education."
The court summarily denied the petition after "not find[ing] a change of circumstances to justify the mother's . . . petition."
3. Third petition
On June 28, 2018, mother filed a third petition to modify the court's order terminating reunification services. In support of this petition, mother (1) cited her completion of a six-month drug and alcohol program, her completion of parenting classes, her completion of anger management classes, her completion of 24 domestic violence classes, her completion of the "NAMI Basics Education 6-Week Program," and her completion of the Family Program at the L.A. Center for Drug & Alcohol Abuse, (2) attached exhibits documenting her completion of these programs, (3) cited her enrollment in individual counseling, and (4) attached letters of reference from counselors and friends.
The court set mother's petition for a hearing after finding a "change of circumstance sufficient enough to . . . have a hearing."
The court heard mother's motion on September 11, 2018. At the hearing, the court noted that mother had "complied with a lot of [her] case plan," but found that it was not in the children's best interest to restart reunification. In so ruling, the court cited the "significant period of time" that the children have "been out of mother's life" and her lack of any "continuous and ongoing" "contact" with the children.
4. Fourth petition
Just 23 days after the court's denial of her third petition to modify, mother filed her fourth petition on October 4, 2018. In that petition, she again sought to modify the court's order terminating reunification services on the basis of "new character letters, an updated progress report from" one of the substance abuse programs, and "an updated Narcotics Anonymous sign in sheet."
The court summarily denied the petition, finding "[no] sufficient change of circumstance" and that reinstating reunification would "not [be] in the minors' best interest."
B. Analysis
Section 388 authorizes "[a]ny parent" of a child subject to a juvenile court's dependency jurisdiction to, "upon grounds of change of circumstance . . ., petition the court . . . for a hearing to change, modify, or set aside any order of court previously made." (§ 388, subd. (a)(1).) Among its other uses, section 388 can be used as "an 'escape mechanism' when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528 (Kimberly F.).) To establish entitlement to relief under section 388, the petitioning parent must show: (1) "a change of circumstances" and (2) that the "modification of the prior order would be in the best interests of the minor child[ren]." (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) With respect to the first element, "the petitioner must show changed, not changing, circumstances." (In re Mickel O. (2011) 197 Cal.App.4th 586, 615.) With respect to the second element, the court must consider the petitioner's showing as to "(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of the relative bonds between the dependent children to both parent and caretaker; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (Kimberly F., at p. 532.) Where, as here, the court has terminated reunification services and the child has been in the caregiver's "custody . . . over a significant period, the child's need for continuity and stability assumes an increasingly important role." (Angel B., supra, 97 Cal.App.4th at p. 464.)
The petitioning parent is entitled to a hearing on her petition if she makes a "'"prima facie showing"'"—that is, if she alleges facts that, if accepted as true and liberally construed, demonstrate "'probable cause'" to believe she could prevail in obtaining a modification. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432 (Aljamie D.); In re Zachary G. (1999) 77 Cal.App.4th 799, 806; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413-1414 (Jeremy W.).) Put differently, a petition may be summarily denied only if the petition fails to "'"present[] any evidence"'" of a change in circumstance or that a modification of the prior order would be in the children's best interest. (Aljamie D., at p. 432; Jeremy W., at pp. 1413-1414.)
The juvenile court did not abuse its discretion in summarily denying mother's fourth petition to modify. Because the court had denied her third petition just 23 days earlier following a hearing, the appropriate question is: Had mother in the fourth petition made a prima facie showing that the intervening 23 days had produced a change of circumstance or altered what would be in the best interest of the children? (See In re Marcelo B. (2012) 209 Cal.App.4th 635, 642 [measuring change in circumstance based on parent's prior progress].) The juvenile court ruled, "No," and did not abuse its discretion in so ruling. The documentation mother submitted in support of her fourth motion showed that she had attended an additional 10 Narcotics Anonymous meetings and had two additional negative drug tests since the prior hearing denying her third petition to modify, and her character letters either came from people who had submitted letters in support of her third petition or from friends. Even if we assume that this minimal showing constituted prima facie evidence of a changed circumstance, there was no evidence that anything in the intervening 23 days rendered the reinstatement of reunification services in the best interest of the children. Nothing in mother's petition addressed the long period of time the children had been out of her custody or her inconsistent visitation with them, and thus nothing in her petition could have altered the court's recent conclusion that restarting reunification was not in the children's best interests based on these concerns.
Mother effectively urges us to weigh the evidence differently by asking to credit her perseverance in completing her case plan and her declaration that she has learned from her past mistakes, but we may not do so when reviewing for an abuse of discretion. (Kizer v. Tristar Risk Management (2017) 13 Cal.App.5th 830, 844.) She also limits her argument on appeal to Lita, the eldest child. But doing so only weakens her argument, as Lita turned 18 years old while this appeal was pending and thus is presumptively less in need of the juvenile court's intervention. (See In re Holly H. (2002) 104 Cal.App.4th 1324, 1330 [recognizing power of court to dismiss jurisdiction over children who turn 18].)
III. ICWA Error
Mother and father contend that the juvenile court erred because it did not comply with ICWA. In assessing whether a court has complied with ICWA, we review the record for substantial evidence. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.)
A. Pertinent facts
1. As to mother
When mother first appeared in juvenile court on November 4, 2014, she filled out a written ICWA-020 form; in it, she declared that "[o]ne or more of [her] parents, grandparents, or other lineal ancestors is or was a member of a federally recognized tribe." Mother said her ancestors belonged to an "unk[nown] [R]eservation in Arizona," and named the children's "maternal great-great grandfather [Leo G.]" as an "ancestor[]" who might have more information.
At the hearing on November 4, 2014, the court asked the children's maternal grandmother and maternal great grandmother about possible Indian heritage. The maternal great grandmother replied that her "brother in law" might know more, but reported that she did not have his phone number. The court ordered the Department to interview the maternal great grandmother, the maternal great-great grandfather and the maternal grandmother "regarding American Indian ancestry" and to notice the appropriate tribes.
The Department contacted the maternal grandmother, who said she believes she has "American Indian Heritage (Dakota)." The Department left two phone messages for the maternal great grandmother, but did not receive a response to either message. The Department made no efforts to contact the maternal great-great grandfather. The Department undertook no further efforts after concluding that the "'Dakota' tribe is not a federally recognized tribe."
At the jurisdictional and dispositional hearing in January 2015, the juvenile court determined that "the Court does not have a reason to know that . . . an Indian child" was involved in this case.
2. As to father
When father first appeared in this case in 2017, neither the juvenile court nor the Department asked father about any possible Indian heritage.
B. Analysis
ICWA was enacted to curtail "the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement." (Miss. Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32.) Under ICWA and the California statutes our Legislature enacted to implement it (§§ 224-224.6), a juvenile court—and, as its delegate, the Department—have (1) a duty to investigate whether a child is an "Indian child" and, if the court "knows or has reason to know" that he or she is, (2) a duty to notify the child's parent and either the Indian child's tribe or, if the tribe is unknown, the Secretary of the Interior and the Bureau of Indian Affairs. (25 U.S.C. § 1912, subd. (a); see also 25 U.S.C. § 1903(11); §§ 224.2, subd. (d)(4) & 224.3, subds. (a), (c) & (d); Cal. Rules of Court, rule 5.481(a).) Once notified, the tribe then decides whether the child is, in fact, an "Indian child"—that is, a child who (1) is "a member of an Indian tribe," or (2) "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); §§ 224.1, subd. (a) & 224.3, subd. (a)(3); In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165.)
To satisfy ICWA's duty to investigate, the juvenile court (and its delegate, the Department) "is required . . . to interview the child's parents, extended family members, . . . and any other person who can reasonably be expected to have information concerning the child's membership status or eligibility" in an Indian tribe. (In re Michael V. (2016) 3 Cal.App.5th 225, 233; In re Kadence P. (2015) 241 Cal.App.4th 1376, 1386; In re K.R. (2018) 20 Cal.App.5th 701, 706 (In re K.R.).) Because ICWA does not obligate the court or the Department "to cast about" for investigative leads (In re Levi U. (2000) 78 Cal.App.4th 191, 199), the court and Department satisfy their duty to inquire if the parents "fail[] to provide any information requiring follow[-]up" (In re S.B. (2005) 130 Cal.App.4th 1148, 1161), or if the persons who might have additional information are deceased (In re J.D. (2010) 189 Cal.App.4th 118, 125), or refuse to talk to the Department (In re K.M. (2009) 172 Cal.App.4th 115, 119.) But if there is a viable lead, the Department "has the obligation to make a meaningful effort to locate and interview . . . family members to obtain whatever information they may have as to the child's possible Indian status." (In re K.R., at p. 709.)
As the Department concedes, substantial evidence does not support the juvenile court's finding that it complied with ICWA's duty to investigate or its duty to notify. The Department contacted the maternal grandmother, made a perfunctory effort to contact the maternal great grandmother and made no effort to contact the maternal great-great grandfather. In the absence of evidence that the latter two were uncooperative, unavailable or unalive, the Department's investigation fell short. (In re J.M. (2012) 206 Cal.App.4th 375, 381 ["Thorough compliance with ICWA is required."].) The Department made no effort whatsoever to investigate father's Indian heritage, failing even to have father fill out an ICWA-020 form. Filling out this form is mandatory. (Cal. Rules of Court, rule 5.481(a)(2), (a)(3).) The Department's decision not to provide ICWA notice to any tribes because, in its view, "'Dakota' tribe is not a federally recognized tribe" overlooks that several federally recognized tribes either have "Dakota" in their names or are resident in either North or South Dakota (See 79 Fed. Reg. 4748 (Jan. 29, 2014), 80 Fed. Reg. 1942 (Jan. 14, 2015)) and that notice must in any event be given to the Bureau of Indian Affairs and the Secretary of the Interior when a child may have Indian heritage but the "identity . . . [of the] tribe cannot be determined" (25 U.S.C. § 1912(a)). The Department's overly literal construction of maternal grandmother's responses did not comply with ICWA's notice requirement.
Where, as here, the Department has not complied with its duty to investigate under ICWA, the remedy is not to reverse the order terminating parental rights and erecting legal guardianships because "there is not yet a sufficient showing that the child is, in fact, an Indian child within the meaning of ICWA." (In re Hunter W., (2011) 200 Cal.App.4th 1454, 1467.) Instead, the remedy is to "remand with instructions to ensure compliance with ICWA." (Ibid.)
DISPOSITION
The juvenile court's orders terminating parental rights as to Evelyn and ordering legal guardianships to Lita and Enrique are conditionally remanded, and the court is directed to properly comply with the inquiry and notice provisions of ICWA. If, after proper inquiry and notice, the court finds that any of these children is an Indian child, the court shall proceed in conformity with ICWA. Otherwise, the court's orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, P.J.
LUI /s/_________, J.
ASHMANN-GERST