Opinion
B301975
09-21-2020
In re ISRAEL B., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ROSALINDA B., Defendant and Appellant.
Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kim Nemoy, Acting Assistant County Counsel, and Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent, Los Angeles County Department of Children and Family Services.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DK08460A) APPEAL from an order of the Superior Court of Los Angeles County, Kristen Byrdsong, Judge Pro Tempore. Affirmed. Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kim Nemoy, Acting Assistant County Counsel, and Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent, Los Angeles County Department of Children and Family Services.
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A juvenile court terminated Rosalinda B. (mother)'s parental rights over her eight-year-old son, Israel. In appealing this order, mother argues that the court (1) wrongly denied her the right to testify, even though she opted to forgo her right to do so, and (2) wrongly found that the Los Angeles County Department of Children and Family Services (the Department) complied with its duty to investigate under the Indian Child Welfare Act (ICWA), Welfare and Institutions Code section 224.2 ; In re Michael V. (2016) 3 Cal.App.5th 225, 233. Neither argument has merit, so we affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
I. The Family
Mother and Israel B. (father) are the parents of Israel. Israel was born in 2011. He suffers from autism.
Mother has other children who have been the subject of other appeals before this court. (Los Angeles Cty. Dept. of Children & Family Servs. v. Travis P. (In re Paris B.) (May 19, 2016, B267177) 2016 Cal.App. Unpub. LEXIS 3656 [nonpub. opn.]; Paris J. v. Travis P. (In re Paris J. and Faith B.) (Dec. 19, 2019, B297543) 2019 Cal.App. Unpub. LEXIS 8449 [nonpub. opn.].) Father is not involved in this appeal.
II. Initial Exertion of Dependency Jurisdiction
In February 2015, the juvenile court exercised dependency jurisdiction over Israel on the basis of (1) mother's history of methamphetamine use and recent use of marijuana in the presence of Israel and her other children, (2) mother's practice of allowing her boyfriend, Travis P., to have "unlimited access" to Israel while Travis used illicit drugs, (3) mother's mental and emotional problems, which include a diagnosis of bipolar disorder with psychotic features, and (4) father's history and current use of marijuana.
III. Reunification Period
From February 2015 until March 2018, the Department offered mother reunification services.
In March 2016, the juvenile court rescinded its February 2015 order removing Israel from mother's custody and ordered him back with mother. As soon as Israel was back in her custody, mother removed him from his special education services, was seen "being very rough" with him and lied to the Department. The Department re-detained Israel in May 2016, and the juvenile court in August 2016 made supplemental findings that mother had failed to comply with court orders designed to ensure Israel received the necessary services. When the Department took custody of the children, mother remarked, "I don't give a shit if [the social worker] takes my kids."
Mother did not visit Israel for five straight months. When asked why, she said the court had not ordered her to do so.
By the end of the reunification period, mother had completed the classes and counseling called for by her case plan, but had not changed her behaviors that placed Israel at risk of harm in the first place.
IV. Termination of Parental Rights
In October 2019, the juvenile court held a hearing on whether to terminate mother's parental rights over Israel. Although the court had ordered mother to be present, she appeared only by telephone. When mother indicated she wanted to testify, the juvenile court told her that it could not "accept testimony over the phone" because it would interfere with the court's ability to "see the credibility" when being "cross-examin[ed]." However, the court offered to continue the hearing so mother could appear in person to testify. Mother rejected the court's offer in favor of having her attorney argue. Mother's attorney urged that the beneficial parent-child exception applied. The trial court ruled that the exception did not apply, found Israel to be adoptable, and terminated mother's parental rights.
V. Appeal
Mother filed this timely appeal.
DISCUSSION
I. Failure to Allow Mother to Testify
Mother argues that the trial court erred in not allowing her to testify at the hearing on the termination of her parental rights. Her argument lacks merit for three reasons. First, she has waived her right to raise this argument. The juvenile court offered her a way to testify (by continuing the hearing so she could be physically present) and she declined that offer; she cannot now complain that she was denied the right to testify. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212 ["[W]hen a party by its own conduct induces the commission of error, [she] may not claim on appeal that the judgment should be reversed because of that error."].) Second, a juvenile court has discretion whether to allow telephonic testimony (In re Nada R. (2001) 89 Cal.App.4th 1166, 1176; People v. Endsley (2018) 28 Cal.App.5th 93, 104; accord, Davis v. Superior Court (2020) 50 Cal.App.5th 607, 616-618 [trial court errs when, in violation of local rules, it categorically denies telephonic appearances when local rules grant discretion on such matters]: see Cal. Rules of Court, rule 3.670(f)(3) [granting courts discretion to "permit a party to appear by telephone at a hearing, conference, or [other enumerated proceeding] if the court determines that a telephone appearance is appropriate"]), and mother has not shown that the court abused that discretion here in expressing a preference for in-person testimony and offering mother a viable option for providing such testimony. Mother cites In re J.S. (2017) 10 Cal.App.5th 1071, in support of her position, but that case merely held that the juvenile court errs when it precludes a testifying parent from testifying about unquestionably relevant matters. (Id. at p. 1081.) Here, the juvenile court never precluded mother from testifying. Third, any error was otherwise harmless. (E.g., In re Brenda M. (2008) 160 Cal.App.4th 772, 777 [applying harmless error test when juvenile court regulates testimony].) It is harmless because mother never proffered the substance of her testimony, and without that, she cannot carry her burden of showing that a different ruling on the termination of her parental rights was reasonably probable. (People v. Watson (1956) 46 Cal.2d 818, 836; see also Evid. Code, § 354.)
To the extent mother is challenging the juvenile court's finding that she did not qualify for the beneficial parent-child relationship, that challenge fails. The beneficial parent-child exception applies—and precludes a juvenile court from terminating parental rights—if (1) "the parent[] ha[s] maintained regular visitation and contact with the child," and (2) "the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) Substantial evidence supports the juvenile court's finding that mother did not prove she maintained regular visitation and contact with Israel. (In re Breanna S. (2017) 8 Cal.App.5th 636, 646-647.) She went several months-long stints without visiting him at all, and then blamed her disinterest on the juvenile court for not requiring visits. Mother argues that her limited visits should not be counted against her, and for support cites In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538. But Brandon C. took into account limits on visitation imposed by the court, not a parent's failure to take advantage of the visits provided for by the court. The court also did not abuse its discretion in concluding that Israel would not benefit from continuing the relationship with mother. This element of the exception requires a parent to "show [that] [(1)] he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment between child and parent" and (2) "the child would suffer detriment if his . . . relationship with the parent were terminated." (In re C.F. (2011) 193 Cal.App.4th 549, 555.) Here, Israel has been in the custody of others for over five of his less than nine years on this earth; what is more, except for the two months when mother regained custody and that ended with more abuse, mother's visits in the last five and a half years have all been monitored. In short, she has not occupied a parental role. The child would also not "suffer detriment" if his relationship with mother was severed. Mother had "no[] bond[]" with Israel, in contrast to the bond he had with his caretakers. Mother's attitude that she did not "give a shit" if Israel was taken from her vividly illustrates why Israel would not be worse off with a caretaker other than mother.
II. ICWA
Mother also argues that the order terminating her parental rights must be reversed because the juvenile court did not comply with ICWA. Although the court made its ICWA ruling in May 2015, that ruling may be challenged now. (In re N.G. (2018) 27 Cal.App.5th 474, 485.) 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.) In so doing, we "'"presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order." [Citation.]'" (In re Charlotte V. (2016) 6 Cal.App.5th 51, 57, citing In re I.W. (2009) 180 Cal.App.4th 1517, 1525.) Alleged violations of ICWA's notice requirement are subject to harmless error review. (In re E.R. (2016) 244 Cal.App.4th 866, 878.)
A. Pertinent facts
In December 2014 and again in January 2015, mother filled out Indian Status Forms (ICWA-020 and ICWA-030) indicating that she may have "Cherokee" ancestry through mother's now-deceased "grandfather." The juvenile court ordered the Department to "follow up with . . . mother." Just over a week later, the Department contacted mother's mother (that is, Israel's maternal grandmother (MGM)) to ask about mother's maternal grandfather, but MGM refused to speak with the Department. In March 2015, mother told the Department that her paternal grandfather had Cherokee heritage. The Department contacted mother's father (that is, Israel's maternal grandfather) to ask about mother's paternal grandfather, and confirmed that both he and mother's paternal grandmother may have Cherokee ancestry. On the basis of this information, the Department gave notice to all three Cherokee tribes, the Department of the Interior and the Bureau of Indian Affairs containing the information in the Department's possession. The three Cherokee tribes responded that Israel was not an "Indian child." Based on these responses, the juvenile court in May 2015 found that "ICWA does not apply." At no point after that finding did mother present to the juvenile court any information that would call that finding into question.
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 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.) ["The court and the agency must act upon information received from any source, not just the parent . . ."].) 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, superseded by statute on another point as stated in In re B.E. (2020) 46 Cal.App.5th 932, 940), 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; In re B.H. (2015) 241 Cal.App.4th 603, 608, superseded by statute on another point as stated in In re A.M. (2020) 47 Cal.App.5th 303, 322; In re C.Y. (2012) 208 Cal.App.4th 34, 42), or if the persons who might have additional information are deceased (In re J.D. (2010) 189 Cal.App.4th 118, 123), or refuse to talk to the Department (In re K.M. (2009) 172 Cal.App.4th 115, 119 (In re K.M.)). (See generally In re Hunter M. (2011) 200 Cal.App.4th 1454, 1468 [no duty to investigate further where no contact information was provided for only relative with any information].) Put differently, the Department "has the obligation to make a meaningful effort to locate and interview extended family members to obtain whatever information they may have as to the child's possible Indian status." (In re K.R., at p. 709.)
Substantial evidence supports the conclusion that the juvenile court and the Department satisfied ICWA's duty to inquire. Upon mother's report of possible Cherokee heritage through mother's "grandfather," the Department spoke to both of mother's parents: Mother's father confirmed the possible Cherokee heritage of mother's paternal grandfather, and MGM refused to speak to the Department on mother's orders. The Department then gave notice to the three Cherokee tribes containing the information regarding the two relatives—mother's paternal grandmother and mother's paternal grandfather—who may have Cherokee heritage. Each tribe responded that Israel was not an "Indian child." On these facts, the Department discharged its statutory duty to investigate and notify.
Mother raises what boils down to two arguments to the contrary.
First, mother asserts that the Department did not properly investigate mother's claim of Cherokee heritage because the Department "interviewed" MGM, "but the record reflects no discussion with her of [mother's] family's American Indian heritage." This assertion either misreads or misrepresents the record. Either way, mother's assertion is not well taken. The Department did interview MGM and tried to ask her about the family's American Indian heritage, but mother had instructed MGM not to answer the Department's questions. If a local agency discharges its ICWA duty to investigate by following up on all pertinent leads, even if those leads lead to a "dead end" due to an interviewee's refusal to cooperate (In re K.M., supra, 172 Cal.App.4th at p. 119), that agency certainly discharges its duty to investigate where, as here, it is the parent who turns a lead into a "dead end" by instructing the interviewee not to provide information. Mother now asserts for the first time on appeal and after the termination of parental rights, that the Department did not do enough and should have periodically checked back with MGM presumably to see if mother's instructions not to cooperate had changed. Mother provides no authority for her proposition that the Department has a "continuing duty to inquire" (§ 224.2, subd. (a)) after the initial duty of inquiry is discharged. The duty to make further inquiry is triggered only if the court or the Department receives information from another source which suggests that the child may be an Indian child (§ 224.2, subds. (b)-(d); Cal. Rules of Court, rule 5.481(a)(4); In re Aaliyah G. (2003) 109 Cal.App.4th 939, 941-942), and neither mother nor MGM ever disclosed such information to the Department or the court below.
Second, mother effectively contends that the juvenile court and the Department did not discharge their ICWA duties to investigate or notify because they did not act on information that mother has provided for the first time to this court. In a March 2020 declaration submitted to this court (but never to the juvenile court), mother reveals for the first time (1) her maternal grandfather's name, and (2) his possible affiliation with the "Pueblo" tribe. We reject this contention procedurally and on its merits.
Mother's contention fails procedurally because her declaration constitutes new evidence never presented to the juvenile court. It is not a proper subject of judicial notice (Evid. Code, §§ 459, 451, 452), and we decline to exercise our discretion to hear this new evidence for the first time on appeal because mother's decision to offer up this evidence for the first time half a decade later does not constitute "exceptional circumstances" and because hearing this new evidence will prolong—not end—these proceedings. (Code Civ. Proc., § 909; In re Zeth S. (2003) 31 Cal.4th 396, 405 (Zeth S.) [discretion to hear new evidence under section 909 "'should be exercised sparingly'" and only in "'exceptional circumstances,'" italics omitted]; Bombardier Recreational Products, Inc. v. Dow Chemical Canada ULC (2013) 216 Cal.App.4th 591, 605 ["Even when exceptional circumstances exist, appellate courts still are not to exercise their authority to make factual findings except where to do so will result in the litigation's termination, either by affirming the judgment or reserving and directing judgment be entered in favor of the appellant."].) Without mother's new evidence, there is no basis for her attack on the juvenile court's order.
With this new evidence, mother's request for judicial notice of what she calls an "Indian Census Roll" must be denied as irrelevant. This document purports to list the name "Robert Martinez"—the same name mother now says is her maternal grandfather (but without any proof that it is, in fact, the same "Robert Martinez" as her maternal grandfather)—as a member of the "Pueblo" tribe. But this document is submitted to us as an attachment to an unspecified "Outlook" e-mail account. Worse yet, mother's attorney relays her hearsay-based belief that the document came from a website called www.IndianAncestry.com that we take judicial notice does not exist. So even if this document were relevant, it is not a proper subject for judicial notice or, for that matter, admission into evidence given the absence of any information establishing that it is authentic.
Mother's contention also fails on its merits, even if we were to overlook the procedural deficiencies of mother's newly proffered evidence. That is because mother had access to this information—that is, the maternal grandfather's name—years ago: Either she knew that name (because most people know the names of their grandparents) or had access to that information (because mother could have asked her own mother, who would have certainly known her own father's name). Instead, however, mother decided not to provide the name herself and actively prevented the Department and the juvenile court from learning the name by telling her mother not to talk to the Department. On these facts, "allowing [mother] to raise these issues on appeal for the first time opens the door to gamesmanship, a practice that is particularly reprehensible in the juvenile dependency arena" "[g]iven the state's strong interest in the expeditiousness and finality" in this area. (In re Amber F. (2007) 150 Cal.App.4th 1152, 1156; Zeth S., supra, 31 Cal.4th at p. 412.) We are mindful that ICWA notice implicates the rights of the Indian tribes at issue (e.g., In re X.V. (2005) 132 Cal.App.4th 794, 802), and that those rights are not automatically forfeited by a parent's gamesmanship (e.g., Isaiah W. (2016) 1 Cal.5th 1, 13-14 [allowing parent to appeal an ICWA finding during a later appeal despite not raising it during an earlier appeal]), but courts have also recognized that there is a line past which they are "unwilling to further prolong the proceedings for another round of ICWA notices" (X.V., at p. 804). That line was crossed here. Mother waited until what is effectively the 13th hour (that is, after the juvenile court terminated her parental rights) to produce evidence she had (or had access to) all along and is now demanding a "do-over"; were we to grant her request, there would be no end to these proceedings, no end to the gamesmanship, and no finality and stability for Israel.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, P. J.
LUI /s/_________, J.
ASHMANN-GERST