Opinion
B231865
10-31-2011
In re P.M., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.V., Defendant and Appellant.
Helen H. Yee, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Melinda White-Svec, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK71769)
APPEAL from an order of the Superior Court of Los Angeles County. Marguerite D. Downing, Judge. Affirmed.
Helen H. Yee, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Melinda White-Svec, Deputy County Counsel, for Plaintiff and Respondent.
Appellant J.V. (father) appeals from the juvenile court order terminating his parental rights to his minor son, P.M., pursuant to Welfare and Institutions Code section 366.26. Father contends the juvenile court order must be reversed because the juvenile court failed to find by clear and convincing evidence that returning P.M. to his care would be detrimental to P.M. Father also argues that the notices sent pursuant to the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) were deficient and therefore incapable of supporting the court's determination that ICWA was inapplicable. We affirm.
All further undesignated section references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL BACKGROUND
P.M. came to the attention of the Los Angeles County Department of Children and Family Services (the Department) in February 2008 upon referral from a hospital worker who reported that P.M. had been born 10 weeks premature and tested positive for methamphetamine and barbiturates. During an interview with a Department social worker, M.M. (mother) admitted to substance abuse. Mother also told the social worker she believed father was incarcerated but she was not in contact with him, and she was unaware of the whereabouts of the respective fathers of her other two sons. Mother was the custodial parent, living at the time with her mother, a former drug user. The Department removed P.M. and his two older half brothers from mother's custody; placing the older boys in a foster home while P.M. remained on a hospital hold, to receive necessary treatment in the neonatal intensive care unit.
The record of these dependency proceedings is detailed and contains information and orders regarding the mother of P.M. and two half siblings, persons who are not parties to this appeal. We limit our summary of the facts and procedural background to those matters pertinent to our discussion of the termination of father's parental rights.
On February 27, 2008, the Department filed a petition pursuant to section 300, subdivisions (a), (b), (g) and (j), alleging as to P.M. that he was at substantial risk of serious physical injury or illness resulting from mother's substance abuse and father's failure to provide regular care, among other allegations. Father was identified as an alleged father, whereabouts unknown.
At the detention hearing, mother notified the court she may have Yaqui or Apache Indian heritage. Father had not been located and was not present. The court ordered the children detained and the Department to provide reunification services to mother, to perform due diligence as to the whereabouts of all three alleged fathers and to serve the requisite ICWA notices.
The Department filed a first amended petition in March 2008, which restricted the operative allegations against father to a failure to provide care for P.M. in violation of section 300, subdivisions (b) and (g). In the jurisdiction and disposition report, the Department reported that father was incarcerated at the state prison in Lancaster on charges of burglary and various parole violations, with a recommendation that no reunification services be provided as his anticipated period of incarceration exceeded six months. It also noted that father had an extensive arrest record, including felony narcotics-related convictions. The Department provided father with notice of the proceedings and arranged a telephonic interview.
After speaking with father, the Department filed a supplemental report with the court summarizing the information obtained during the interview. Father claimed not to have known about P.M., although he had lived with mother through September 2007 while mother was pregnant. He expressed a desire to visit with his son. Father explained that he had been in the foster care system as a child and did not want that for his son. However, father had not had any contact with P.M. or made any contact or inquiries to mother about him, telephonic or otherwise. The Department maintained its position that reunification services not be provided to father.
The Department served ICWA notices in March 2008, identifying that P.M. may have possible membership rights in the Apache, Cherokee, Blackfeet and/or Yaqui Indian Tribes through his maternal grandparents.
On May 21, 2008, the court sustained the amended petition, as further modified by the parties during mediation. The court found, by clear and convincing evidence, that there was a substantial risk of detriment to P.M. if custody were returned to mother. Father was not transferred from prison to the dependency court in time for the hearing. Therefore, the court continued the adjudication of the petition as to father to July 2008.
Father was "present in custody" with counsel, making his first appearance in the proceeding on September 16, 2008. The court clarified on the record that the operative allegations against father had, by mediation, been limited to a violation of section 300, subdivision (g) based on the fact that father's incarceration rendered him unable to provide for P.M. Father executed a waiver form, waiving his right to a trial on the petition and submitted to the court on the Department's report and the amended language of the petition. The court sustained the amended petition against father. Father also denied any Indian heritage and requested blood testing to establish paternity. The court ordered a Human Leukocyte Antigen (HLA) test to be performed and continued the disposition hearing to November 19, 2008, to allow for completion of the testing.
Father was released from prison in October 2008 and contacted the Department. He visited once with P.M. at the Department's offices on October 7, 2008. The social worker reported that father acted appropriately with the child and that father was staying at a sober living facility since his release from prison.
The continued disposition hearing was held as to father on November 19, 2008. Father did not make a formal request for custody, but did express interest in visiting with his son. Based on the results of the HLA test and a request by the Department, the court found father to be the presumed father of P.M. and ordered reunification services. Father was ordered to take a parenting class and comply with the terms of his parole, and he was allowed monitored visitation with P.M. The court made a finding, under the preponderance of evidence standard, that return of P.M. to his "parents" created a substantial risk of detriment.
Shortly before the review hearing in the spring of 2009, the Department reported that father's whereabouts were again unknown, having been designated a parolee at large since at least December 2008. He had not kept in contact with the Department or visited with P.M. Father was located sometime in April 2009, held in county custody on parole violations.
In June 2009, the Department began investigation of a new complaint of abuse against mother arising from an incident in which P.M. returned home with a contusion on his face resembling a handprint after a visit with mother. The Department was unable to locate father's whereabouts, as he had apparently been released from Men's Central Jail. The court ordered the review hearing put over to August.
On August 11, 2009, father again appeared "present in custody" as he had been re-arrested and was incarcerated at the Pitchess Detention Center in Castaic. The Department reported that a social worker met with father upon learning of his whereabouts, provided him a contact number to call collect if necessary, and discussed arrangements for father to participate in a parenting class at the prison consistent with the case plan.
Following father's release in mid-September 2009, he met with a Department social worker to discuss completing his parenting class at a local high school and to arrange weekly monitored visits with P.M. at the Department offices. The Department recommended that services be continued for father pursuant to section 366.25. Father appeared with counsel at the October 16, 2009 hearing. The court ordered the continuation of services and set a further hearing for March 2010.
The court terminated mother's reunification services in December 2009 based on evidence submitted by the Department that mother had begun a relationship with a man previously convicted of child cruelty, P.M. had received a contusion on his face that resembled a handprint while in her care, mother's visitation had become sporadic, and she had missed several drug tests. The court delayed setting the permanency planning hearing as to P.M. pending completion of a further review hearing for father.
In March 2010, the Department reported that father had once again been arrested on narcotics charges and had not made any progress during the period of supervision on his case plan. It was also noted that before being taken back into custody, father had only sporadic visitation with P.M. He had visited once with his new girlfriend, was touching her inappropriately during the visit and chose to leave when so advised instead of completing his visitation time. Father had also made excuses about traveling to the visits despite the Department having given him bus passes. The Department recommended that father's reunification services be terminated.
At the March 1, 2010 hearing, father appeared "in custody" with counsel and requested that his sister, a resident of Tennessee, be considered for placement as an adoptive parent of P.M. The court ordered the Department to perform the necessary review.
In a supplemental report prepared for the March 24 hearing, the Department reported that father remained in custody and that a social worker had visited with him about the case status. The social worker agreed to forward a letter from father to P.M. The Department reiterated its recommendation to terminate reunification services because of father's continued incarceration and his failure to complete his case plan despite being given a reasonable period of services and having been ordered to only comply with his parole and take a parenting class.
On March 24, 2010, the court terminated reunification services for father. The court found that father had failed to comply with his case plan, was back in custody and that, based on a preponderance of evidence, there was a substantial risk of detriment in returning P.M. to his "parents." The court also notified the parties of their rights to file a writ and set the permanency planning hearing. Father's sister subsequently withdrew herself, for personal reasons, from consideration as a prospective adoptive parent.
During this same period, mother filed an appeal of the termination of her parental rights as to P.M.'s half brothers (case No. B224855), contending there had been defects in the ICWA notices--errors in the biographical data relating to mother's relatives that formed the basis of her claim of Indian heritage. Mother and the Department stipulated to a resolution and dismissal of that appeal with the Department agreeing to serve a new round of corrected notices. The second round of ICWA notices was served by the Department sometime in September 2010, and responses were received indicating that no tribe believed intervention in the proceedings was warranted. At the October 27, 2010 hearing, father was present "in custody" with counsel when the court made a new finding of ICWA inapplicability based on the corrected ICWA notices and responses thereto. Father raised no objection to that finding.
Throughout the period of detention, the Department consistently reported that P.M. was being well cared-for in the home of his caregivers and prospective adoptive parents. The prospective adoptive parents had agreed to be considered as adoptive parents for P.M.'s two older half brothers as well. The social worker reported that P.M. interacted positively with his siblings, and had bonded to them as well as his caregivers, whom he called "mommy" and "daddy." The Department's reports demonstrate P.M.'s caregivers were providing a loving and nurturing home. They were granted permission to take all three children on a five-day cruise to Catalina and Mexico. In sum, the reports were positive as to the plan for permanent placement and indicated a risk of detriment to P.M. if he were to be removed from the only home he had ever known.
On March 3, 2011, the permanency planning hearing was finally held pursuant to section 366.26. The Department reiterated that P.M.'s caregivers had been approved to adopt P.M., as well as his two half brothers. The Department further reported that father was incarcerated at the North Kern County State Prison with an expected release date in May 2012. Father waived his right to attend the hearing, allowing his counsel to represent him. Father objected generally to the termination of parental rights but did not raise any specific ground for objection. The court made another finding it would be detrimental to return P.M. to his "parents" and found by clear and convincing evidence that P.M. was adoptable. The court terminated father's and mother's respective parental rights to P.M. This appeal followed.
DISCUSSION
As we explain, we find any error by the juvenile court in failing to state that its findings of detriment rested on clear and convincing evidence was harmless beyond a reasonable doubt. We also reject father's argument concerning the ICWA notices.
1. Finding of Detriment
Before parental rights may be terminated, there must be a finding, under a clear and convincing evidence standard, of detriment to the child if custody were returned to the offending parent (formerly referred to as "parental unfitness"). (Santosky v. Kramer (1982) 455 U.S. 745, 769; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 255-256 (Cynthia D.).) In concluding that California's statutory scheme for dependency proceedings comports with due process as expressed in Santosky, our Supreme Court explained that the "number and quality of the judicial findings that are necessary preconditions to termination convey very powerfully to the fact finder the subjective certainty about parental unfitness and detriment required before the court may even consider ending the relationship between natural parent and child." (Cynthia D., supra, at p. 256.) Father contends the record discloses no express finding under the clear and convincing evidentiary standard and reversal of the termination order is thus required.
Father is correct insofar as he points out that the juvenile court should have used the clear and convincing evidence standard when it concluded it would be detrimental to P.M. to return him to his parents. (In re P.A. (2007) 155 Cal.App.4th 1197, 1212.) Father's argument that reversal is mandatory, however, lacks merit because the error was harmless beyond a reasonable doubt. (Chapman v. State of California (1967) 386 U.S. 18, 24; see also In re J.F. (2011) 196 Cal.App.4th 321, 326 [evaluating prejudice where due process violations occurred]; In re Mark A. (2007) 156 Cal.App.4th 1124, 1144-1146 [acknowledging that weight of California authority applies Chapman harmless error analysis to federal constitutional questions raised in dependency proceedings].)
Applying a clear and convincing standard, no reasonable trier of fact could have found that a return of P.M. to father's custody would not have created a substantial risk of detriment. Father was repeatedly incarcerated throughout the reunification period. Father failed to comply with his case plan. He neither satisfied the terms of his parole nor completed a parenting class. He failed to inform the Department of his whereabouts. He failed to regularly visit P.M., and his visitation when it occurred was inappropriate. Father's actions throughout the proceedings demonstrated a lack of care for P.M. and demonstrated a complete absence of effort to reunify with P.M. Father never had custody of P.M. or even unmonitored visits and never showed that he could appropriately care for P.M. Additionally, throughout the 18-plus months of reunification services provided to father, the court made repeated findings of detriment, which were overwhelmingly supported by the record. Father has made no showing that if the court had articulated the correct burden of proof, the result would have been different. In short, father does not show reversal is warranted.
In supplemental briefs, the parties dispute whether father forfeited his argument that reversal is warranted because the juvenile court applied an incorrect burden of proof. Although father did not raise that issue in the trial court, it is not forfeited. (In re Frank R. (2011) 192 Cal.App.4th 532, 539; In re Gladys L. (2006) 141 Cal.App.4th 845, 849.) The appellate court in In re P.A., supra, 155 Cal.App.4th at pages 1207-1209 concluded a parent may forfeit notice-related issues by failing to raise them in the juvenile court and by submitting to the jurisdiction of the juvenile court notwithstanding deficient notice. The In re P.A. court, however, considered the issue of detriment on the merits, and did not hold that a parent may forfeit the argument that the juvenile court failed to make an appropriate detriment finding. (Id. at pp. 1210-1212.)
2. The ICWA Notices
Father also contends reversal is warranted because the ICWA notices were deficient. We disagree.
Father denied any Indian heritage. The sole basis for potential ICWA applicability was through mother's relatives. Mother and the Department agreed to resolve her claim of deficiencies in the original ICWA notices by serving corrected notices. Responses were received from the relevant tribes indicating no interest in intervening to assert tribal membership based on mother's ancestors. Father nonetheless claims that additional errors were made in the second round of notices, primarily that some information about mother's relatives was omitted in the corrected notices (that had been contained in the original notices) and that there was a spelling error as to one name.
As appellant, father had "the duty to present error affirmatively by an adequate record." (In re D.W. (2011) 193 Cal.App.4th 413, 417.) Father does not explain or provide any credible support for why his assertion of error as to information regarding mother's relatives should be trusted as more accurate than the information mother and the Department apparently agreed to include in the second round of notices. Father has not shown that the tribal authorities, in receipt of both sets of notices, were unable to adequately assess whether or not P.M. had any basis for membership based on P.M.'s maternal bloodlines. (Id. at pp. 417-418 [father claiming ICWA notice error based on minor misspellings and name omissions in mother's relatives' names insufficient to warrant reversal].) Father therefore fails to show reversal is warranted.
DISPOSITION
The order of the juvenile court terminating father's parental rights is affirmed.
FLIER, J. I CONCUR:
RUBIN, ACTING P. J.
Grimes, J., Concurring
There is no doubt whatsoever that the evidence before the dependency court was clear and convincing, unequivocally supported the court's finding of detriment, and provided a lawful foundation for the order terminating parental rights. In addition, by failing to object in the dependency court, father forfeited his right to seek appellate review of the sufficiency of the evidentiary basis for the order terminating his parental rights, and this court could have exercised our discretion to refuse to consider that claim.
There is no dispute father did not raise his due process objection in the dependency court. Father concedes this point. Father was represented by appointed counsel, was apprised of the allegations against him, stipulated to the court's sustaining of the petition against him, and participated in the proceedings for over 18 months with full knowledge of the court's detriment findings without stating any objection. Ordinarily, an appellate court will not consider "a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected." (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted, superseded by statute on other grounds as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962; In re Sheena K. (2007) 40 Cal.4th 875, 880-881; In re Dakota H. (2005) 132 Cal.App.4th 212, 222 [forfeiture rule "intended to prevent a party from standing by silently until the conclusion of the proceedings"].)
An appellate court nonetheless retains discretion to consider forfeited issues, but such discretion should be exercised "rarely and only in cases presenting an important legal issue." (In re S.B., supra, 32 Cal.4th at p. 1293.) In dependency proceedings, this "discretion must be exercised with special care . . . ." (Ibid., italics added.) This is so because dependency proceedings concern the well-being of children, where "considerations such as permanency and stability are of paramount importance." (Ibid.; see also In re Wilford J. (2005) 131 Cal.App.4th 742, 754 [parent's participation in subsequent proceedings without objecting to court's violation of fundamental right to adequate notice of jurisdictional hearing forfeited the defective notice claim on appeal].)
While a constitutional challenge may, on an appropriate record, provide a sound basis for excusing a forfeiture, we are not required to consider every constitutional challenge that has been forfeited. (In re S.B., supra, 32 Cal.4th at p. 1293; In re Sheena K., supra, 40 Cal.4th at p. 887, fn. 7.) The propriety of determining whether the forfeiture should be excused continues to rest in the discretion of the reviewing court. (In re P.A. (2007) 155 Cal.App.4th 1197, 1210 ["the rule is that an appellate court may review an error despite a party's failure to raise it below if due process rights are involved"].)
Father contends his forfeiture is properly excused because his due process rights were violated by the court's failure to use the requisite evidentiary standard in making its finding of detriment before terminating his parental rights. In so arguing, father relies on cases in which the reviewing court excused a parent's forfeiture in order to consider the constitutional issue. However, none of those cases alters the fundamental rule that an appellate court's decision to excuse a forfeiture is discretionary. Moreover, the cases cited are factually distinguishable from the record in this proceeding.
For instance, in In re Gladys L. (2006) 141 Cal.App.4th 845, the court reversed an order terminating the parental rights of a presumed father that was not predicated on a clear and convincing detriment finding, rejecting the Department's contention the father's due process claim had been forfeited. The presumed father there had been both noncustodial and nonoffending. (Id. at p. 847.) The Department had never alleged the father was unfit on any basis, nor was there any adjudication of that issue at any point in the proceeding. (Id. at p. 848.) When the father appeared at the permanency planning hearing (after almost a three-year absence) and requested visitation to reestablish a parental relationship, the dependency court denied the request and terminated parental rights, despite the lack of any finding of detriment. The termination order was properly reversed as the father was never provided "notice of specific charges and an opportunity to respond to the charges against him." (Ibid.)
Another decision by Division Eight, without squarely addressing the forfeiture question, reversed a termination order against a noncustodial, nonoffending father where there had been no allegations or findings of detriment and the father's only apparent reason for being unable to obtain custody was his financial inability to secure appropriate housing. (See In re G.S.R. (2008) 159 Cal.App.4th 1202, 1211-1213.)
Similarly, in In re Frank R. (2011) 192 Cal.App.4th 532, the court reversed an order terminating the parental rights of a noncustodial, nonoffending, presumed father. The minor children there had come to the attention of the Department based on allegations of physical abuse by the mother. (Id. at p. 534.) Initial allegations against the noncustodial father for failure to provide for the children were dismissed by the court. Father was living in a motel and had serious financial problems. His income consisted primarily of supplemental disability payments from a work-related injury. (Id. at pp. 534-535.) The dependency proceedings went forward solely against the mother, although father was allowed visitation. At no point during the proceedings were specific allegations of unfitness re-alleged or sustained against father, nor did the court ever make any finding of detriment against father. (Id. at pp. 538-539.) Father's only apparent hurdles to parenting were poverty-related. Nevertheless, the dependency court terminated the father's parental rights. On such facts, Division Three reversed the order, noting its reluctance to apply the forfeiture rule "when it conflicts with due process." (Id. at p. 539.)
In contrast, father here was neither nonoffending nor denied notice of the charges against him or an opportunity to establish his parental fitness. He submitted to the court's jurisdiction and did not contest the court's sustaining of the amended petition against him under Welfare and Institutions Code section 300, subdivision (g). The court also made multiple findings of detriment against father throughout the course of the proceedings in which he participated. Father never requested custody of P.M. and showed little genuine interest in developing a relationship with P.M., despite having said he did not want P.M. to be raised in foster care. P.M. now has the chance to get out of the system, by adoption, so he can live with the only parents he has ever known, in a home in which he is thriving.
All further section references are to the Welfare and Institutions Code.
Father was provided over 18 months of reunification services, despite his repeated incarcerations and parole violations. He failed to make even minimal, credible progress on his case plan which had only required that he take a parenting class and comply with the terms of parole. He participated, with the assistance of counsel, in over two years of proceedings and appearances before the court, while the critical early years of P.M.'s development passed and P.M. bonded with his prospective adoptive parents. At no point in this lengthy process did father raise any objection, including at the section 366.26 hearing, that the court's findings of detriment were inadequate or would not support the termination of parental rights so P.M. could be adopted. Such an objection, timely made to the dependency court, would have allowed the court to clarify the bases of the court's rulings on the record and avoid any potential claim of ambiguity in the detriment findings.
The facts of this case are more akin to In re P.A., supra, 155 Cal.App.4th 1197. There, a noncustodial presumed father raised a due process claim following termination of his parental rights to his minor daughter, arguing he had not been provided notice and an opportunity to be heard at the jurisdiction and dispositional hearings, and that the court had never found him to be unfit. The father's whereabouts had not been determined throughout the first 18 months of the proceedings. He first appeared in the proceedings shortly before the section 366.26 hearing. (In re P.A., at pp. 1200-1203.) At that point, the father was appointed counsel and participated in the proceedings, but never raised an objection to notice, never requested reunification services, never filed a section 388 petition seeking modification of any of the court's rulings, and never otherwise challenged the court's authority to proceed with the section 366.26 hearing. (In re P.A., at p. 1209.)
In affirming the dependency court's termination of parental rights, the court applied the forfeiture rule, notwithstanding its conclusion that the Department's due diligence declaration was inadequate and that the proceedings "were defective as to [father] from the outset for want of proper notice." (In re P.A., supra, 155 Cal.App.4th at p. 1208.) Despite the father's constitutional claim, the court found the forfeiture rule appropriately applied because of the father's "persistent avoidance of responsibility for [the child] and his failure to seek any relief in the juvenile court." (Id. at p. 1210.) The court aptly explained that to allow the claim to be raised for the first time on appeal and to remand the matter for further proceedings at that late date "would achieve no purpose other than to delay permanence for [the child], a result we cannot countenance on this record." (Ibid.)
Similarly here, father chose to engage in conduct that repeatedly returned him to prison, failed to comply with his simple case plan despite being given an extended period of time to make some progress on the minimal requirements, failed to make reasonable efforts to stay in contact with P.M. or attempt to establish his parental fitness, and never challenged the dependency court's authority to proceed with the permanency planning hearing. Over this same period of time, P.M. was being well cared for in the stable home of a married couple willing and approved to adopt him and his two half brothers. On such a record, a refusal to excuse father's forfeiture is more than justified. GRIMES, J.