In re Alyssa M.

Filed 7/3/07 In re Alyssa M. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County. Joan Carney, Juvenile Court Referee. Reversed and remanded.

Kate M. Chandler, under appointment by the Court of Appeal, for Appellant.

Raymond G. Fortner, Jr., County Counsel, William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for Defendants and Respondents.

* * * * * *

Minor and appellant Alyssa M. appeals from the juvenile courts order terminating jurisdiction over her. She contends that the juvenile court abused its discretion by terminating jurisdiction without any showing that the Los Angeles County Department of Children and Family Services (Department) had complied with Welfare and Institutions Code section 391,^[1]by failing to require the Department to comply with the notice requirements of the Indian Child Welfare Act (ICWA) and by failing to appoint separate counsel for her and her brother, Joshua M.

We reverse. We conclude that the juvenile court abused its discretion by terminating jurisdiction over Alyssa without prior notice to her, without her presence in the courtroom and without any showing by the Department that it had provided her with any of the services set forth in section 391, subdivision (b). We further conclude that the matter must be remanded for the independent reason that the Department did not demonstrate it provided proper notice under the ICWA. We do not, however, find that separate counsel was required for Alyssa and her brother.

FACTUAL AND PROCEDURAL BACKGROUND

Alyssa was born in September 1988 and Joshua was born in May 1990. They lived with their mother, Leslie M. (Mother), who told them that their father was Michael S. (Father). Alyssa believed that the last time she saw Father she was three years old and he was raping Mother, while Joshua had no recollection of him. Mother maintained that she left him because he was abusive. Alyssa and Joshua had previously been removed from Mothers care between 2000 and 2002 when they resided in Texas. Five child abuse investigations had also been conducted in California between June 2004 and November 2005.

On November 21, 2005, Mother arrived at a hospital emergency room requesting a psychiatric evaluation. The Department received a referral about the minors. In an interview with a social worker, Alyssa reported that Mother had moved the family around and that they had lived with various friends and relatives. Recently, Alyssa had moved to Canada with a friends family, but was deported in September when Mother declined to sign the appropriate papers. Mother upset Alyssa by often yelling at her and calling her names. According to Alyssa and Joshua, Mother behaved well when not with a boyfriend and when taking her medication regularly. But once Mother started dating someone, she would generally stop taking her medication and start abusing drugs and alcohol. Both Alyssa and Joshua asked to be taken into protective custody.

The Department filed a dependency petition on November 28, 2005, alleging that Alyssa and Joshua were persons described under section 300, subdivisions (a), (b), (c) and (g). The petition alleged that they were at risk by reason of Mothers mental and emotional problems, substance abuse, emotional abuse and failure to provide appropriate care and support. The juvenile court detained both Alyssa and Joshua at the detention hearing.

According to the Departments jurisdiction/disposition report, the minors were placed together and were doing well. Alyssa feared that Mother might sabotage the placement because she had begun calling frequently and verbally abusing Alyssa. The report characterized both minors as being parentified due to concern about their mothers ongoing altered state while under the influence of prescription drugs and alcohol. The Department had not yet located Father, but the maternal grandmother stated that Mother and Father were married. The maternal grandmother also told the Department that the family has Cherokee heritage. In view of that information, the Department sought additional time to provide the notices required by the ICWA.

At the December 19, 2005 hearing, the juvenile court ordered the Department to investigate the maternal grandmothers assertion of Cherokee heritage. The court further declared Father to be the minors alleged father.

The Departments January 18, 2006 review report indicated that the minors remained in foster care and that Mother was making harassing telephone calls to them. The Department also reported that it had received return receipts from the Bureau of Indian Affairs, the Cherokee Nation of Oklahoma and the United Keetoowah Band of Cherokee Indians in Oklahoma. The last group reported that there was no evidence that the minors were descendants from anyone on the Keetoowah Roll. None of the notices sent by the Department were provided to the juvenile court. At the January 18, 2006 hearing, the juvenile court found that the minors were not Indian children as that term is used in the ICWA.

The juvenile court adjudicated the petition on February 15, 2006. On the basis of documentary evidence submitted without argument, the juvenile court sustained the petition as pled. It proceeded to disposition and declared the children dependents of the court pursuant to section 300, subdivisions (a), (b), (c) and (g). Mother received reunification services and was permitted monitored visitation; the minors were ordered to be in conjoint and individual counseling. The Department had not yet located Father, though at least two incorrect individuals with the same name had been contacted.

On April 13, 2006, the Department indicated that Father had been located in Kingman, Arizona and had contacted the Department. He denied the dependency petitions allegations, which included that he had been involved in violent confrontations with Mother. He stated that Mother had taken the minors from him over 13 years ago and that he had searched for them unsuccessfully since that time. An ex-girlfriend of Fathers corroborated his account.

The juvenile court appointed counsel for Father on May 1, 2006. It also directed the social worker to advise Alyssa and Joshua that Father had been located, that he denied all the charges asserted by Mother and that he would like to see them. It ordered that the children participate in therapy to address these developments. The therapist reported that the minors were hurt and angry when they learned that Mother may have lied to them about Father and stated they wanted to see Father.

Alyssa and Joshua met Father in court on May 5, 2006. The juvenile court ordered monitored visitation for Father, giving the Department discretion to liberalize visitation, and ordered conjoint therapy for Father and the minors.

Father filed a section 388 petition on May 18, 2006, in which he sought to set aside the paternity findings and sustained allegations against him on the basis that he had not received notice of the proceedings. He declared that he married Mother before Alyssa and Joshua were born and that Mother disappeared with the minors in 1992. He further declared he had never been violent toward Mother.

By May 31, 2006, the minors and Father had participated in four therapy sessions together. Alyssa and Joshua were anxious for the school year to finish so they could move to Arizona with Father. They were frustrated that the Department would not let them travel with Father to see relatives in San Diego. Alyssa also stated that she no longer believed she had seen Father rape Mother; rather, she believed that Mothers comments about Father had influenced her memory. At a May 31, 2006 hearing, the juvenile court permitted Father overnight visitation with the minors and set a hearing date for Fathers section 388 petition.

On June 12, 2006, Fathers counsel notified the juvenile court that the minors had been removed from their placement. The court granted Father an extended visit from June 15 (the last day of school) to June 20 (the hearing date of the section 388 petition).

The Departments report for the section 388 hearing indicated that it could find nothing to substantiate Mothers allegations of domestic violence by Father. The Department learned that Father had three other children with two women and that he had developed a strong relationship with two of the children. Though Alyssa and Joshua desired to move to Arizona with Father, the Department recommended continued supervision because it had not yet been able to evaluate Fathers living situation, it had not yet received complete live scan results, Father had little experience raising children, his relationship with the minors was very new and the minors were still dealing with multiple difficult issues in therapy.

At the June 20, 2006 hearing, the juvenile court granted Fathers section 388 petition. It found Father to be Alyssa and Joshuas presumed father, struck the dependency petitions allegations relating to Father and declared him nonoffending. The court also allowed the minors a 30-day extended visit with Father in Arizona under the courtesy supervision of Arizona Childrens Protective Services (ACPS) in Mojave County. Father indicated at the hearing that he had been to ACPS to initiate services, but ACPS needed a written court order to do so. The juvenile court further ordered an expedited report pursuant to the Interstate Compact on the Placement of Children (ICPC) on Father in Arizona.

In its July 26, 2006 six-month review report, the Department stated that Alyssa and Joshua remained on an extended visit with Father. The ICPC had begun, though the minors did not qualify for an expedited ICPC. Alyssa and Joshua were continuing to participate in weekly therapy via telephone, which their therapist characterized as less than optimal for the work that the minors needed. The Department expressed some concerns with Alyssa and Joshuas placement with Father, as he had separated from his current wife and he and the minors were residing with his mother. Father was also about to start a new job, possibly in Idaho. In addition, Father and the minors exhibited some strain among them over trivial issues. Overall, however, Alyssa and Joshua wanted to continue to live with Father.

At the July 26, 2006 hearing, the juvenile court extended the minors visit with Father for an additional 30 days. One month later, the Department reported that it could not recommend that Alyssa and Joshua be granted any further out-of-state visitation with Father, primarily because Arizona had denied Fathers home study due to his failure to follow through with the ICPC requirements. Essentially, Father had failed to turn in the required paperwork. In addition, the Department deemed Fathers living situation unstable, as he had recently moved back in with his wife from whom he had separated twice since Alyssa and Joshua came to live with him. Father was also having serious financial problems. Though the Departments report stated that Father had changed jobs three times and almost moved out of state for work twice during the last five months, Father indicated that he had been employed at the same job during that period.

Over the Departments objection, the juvenile court ordered an additional 30-day visit at the August 23, 2006 hearing. The juvenile court admonished Father to settle down for the minors sake, finish his paperwork and refrain from irritating the social worker. It set the matter for hearing on September 18, 2006, and ordered Father and Joshua to appear if the ICPC was still not approved; no appearances were required if the ICPC had been approved.

In its September 2006 report, the Department noted that Father had asked for a continuance of the hearing both to ensure that the ICPC was complete and because repeated trips from Arizona had created a financial strain on him. With respect to the ICPC, it had not been timely reopened because the juvenile courts minute order did not specifically direct that it be reopened. Moreover, ACPS had requested that Father provide a letter stating that he would cooperate with and be cordial to the social workers. Father complied with this request, but shortly thereafter, ACPS learned that Father had listed his home for sale. After ACPS explained to Father that he would need to write another letter concerning the possible move, Father took his home off the market.

The report also stated that Alyssa was frustrated because she and Father had been fighting a lot, primarily about her concern over Fathers potential move to Idaho for work. She was also confused because she did not know whether to stay with Father or return to California. She hoped to attend college, and thought that remaining with Father might jeopardize that goal because of his instability. Father, too, expressed frustration with Alyssas not wanting to follow his rules: Nobody, just a week out of 18, who thinks she knows everything, is going to come into my house and tell me the way things are going to be. This is my house and theyre my rules. Theyre non-negotiable, period. Father believed that Alyssa used the threat of moving to California as leverage to try to manipulate him and that she would be foreclosed from using this tactic if the case were closed.

At the September 18, 2006 hearing, neither the minors nor Father appeared in court. The Department expressed concern about Alyssas extended visit on the basis of the information contained in the report, while Alyssas counsel characterized the conflict as momentary tension and requested an extension of the 30-day visit. The juvenile court initiated the concept of terminating jurisdiction over Alyssa so that she and Father could work it out. Counsel for Father then requested that the juvenile court terminate jurisdiction. The Department objected and Alyssas counsel expressed no opinion about the request, except to note that the social worker tended to overdramatize the conflict between Alyssa and Father. The juvenile court terminated jurisdiction over Alyssa. It permitted Joshua to remain on an additional 30-day visit and recommended that the Arizona ICPC be reopened.^[2]

Alyssa timely appealed.

DISCUSSION

Alyssa challenges the order terminating jurisdiction over her on three independent grounds. We agree that the trial court abused its discretion in terminating jurisdiction without ensuring that the requirements of section 391 were satisfied and that the failure to comply with ICWAs notice requirements also requires that the matter be remanded. We do not find that there was any actual conflict between Alyssa and Joshua requiring the appointment of separate counsel.

I. The Juvenile Court Abused Its Discretion by Terminating Jurisdiction Over Alyssa When She Reached the Age of Majority.

Although the juvenile court may not acquire jurisdiction over anyone who has already reached age 18, once it has obtained jurisdiction over a minor it may retain jurisdiction up to age 21. ( 303; In re Holly H. (2002) 104 Cal.App.4th 1324, 1330.) Conversely, under section 390, the dependency petition may be dismissed any time before a minor reaches age 21 if the court finds that the interests of justice and the welfare of the minor require the dismissal, and that theparent or guardian of the minor is not in need of treatment or rehabilitation. (In re Holly H., supra, at p. 1330.)

In 2000, the Legislature added section 391 in response to concerns that dependent children who had reached the age of 18 were being removed from the dependency system before they had adequate skills or resources to support themselves, and evidence that 45 percent of these young persons became homeless within a year after leaving the foster care system. [Citation.] (In re Holly H., supra, 104 Cal.App.4th at pp. 13301331.) Section 391 provides: At any hearing to terminate jurisdiction over a dependent child who has reached the age of majority the county welfare department shall do both of the following: [] (a) Ensure that the child is present in court, unless the child does not wish to appear in court . . . . [] (b) Submit a report verifying that the following information, documents, and services have been provided to the child: [] (1) Written information concerning the childs dependency case, including his or her family history and placement history, the whereabouts of any siblings under the jurisdiction of the juvenile court . . . and the date on which the jurisdiction of the juvenile court would be terminated. [] (2) The following documents, where applicable: social security card, certified birth certificate, . . . identification card, as described in Section 13000 of the Vehicle Code . . . and proof of citizenship or residence. [] (3) Assistance in completing an application for Medi-Cal or assistance in obtaining other health insurance; referral to transitional housing, if available, or assistance in securing other housing; and assistance in obtaining employment or other financial support. [] (4) Assistance in applying for admission to college or to a vocational training program or other educational institution and in obtaining financial aid, where appropriate. [] (5) Assistance in maintaining relationships with individuals who are important to a child . . . based on the childs best interests. Under subdivision (c), [t]he court may continue jurisdiction if it finds that the county welfare department has not met the requirements of subdivision (b) and that termination of jurisdiction would be harmful to the best interests of the child. ( 391, subd. (c).) Subdivision (c) further provides that [t]his section shall not be construed to limit the discretion of the juvenile court to continue jurisdiction for other reasons. (Ibid.)

We review a decision to terminate a dependency for an abuse of discretion. (In re Holly H., supra, 104 Cal.App.4th at p. 1327; In re Robert L. (1998) 68 Cal.App.4th 789, 793.) Alyssa contends that the trial court abused its discretion by making no effort to have her in court for the termination hearing and failing to confirm that the Department provided her with the requisite documents and available services. On appeal, the Department continues to maintain the position it took below against termination. Indeed, after the juvenile court suggested termination, Father was the only party who specifically requested that the court terminate jurisdiction over Alyssa. The burden of proof on the issue of termination rests with the party seeking to terminate jurisdiction . . . . (In re Tamika C. (2005) 131 Cal.App.4th 1153, 1160.)

We conclude that Alyssas best interest was not served by terminating jurisdiction over her. (See In re Robert L., supra, 68 Cal.App.4th at p. 793 [in determining whether to terminate dependency, the issue to be addressed is the best interest of the child].) Preliminarily, we do not believe that the juvenile court properly exercised its discretion to terminate jurisdiction over Alyssa in her absence and without prior notice of the intended disposition. (See 391, subd. (a).) Furthermore, there was no showing that the Department had offered Alyssa assistance with any of the matters specified by section 391, subdivision (b). Rather, the Departments last report in September 2006 indicated that Alyssa was uncertain as to whether she could continue to live with Father and that she hoped to go to college. But there was no indication that Alyssa had been provided with any documents that would be necessary for her to live on her own, any services that would enable her to obtain housing or any assistance in applying for college or any other type of vocational training. Indeed, the report did not even indicate whether Alyssa had finished high school.

Balanced against these considerations was Fathers assertion that if the case were closed, Alyssa would not be able to use the option of returning to California as leverage to manipulate him. Fathers desire to gain the upper hand in his relationship with Alyssa did not come close to meeting his burden to show that termination was in Alyssas best interest. These circumstances are akin to those in In re Tamika C., supra, 131 Cal.App.4th 1153, where the appellate court reversed an order terminating dependency over an 18-year-old because the juvenile court placed more emphasis on the Departments financial concerns than the minors interest in finishing high school. (Id. at p. 1168.) On the other hand, these circumstances are unlike those in In re Holly H., supra, 104 Cal.App.4th at page 1337, where the appellate court affirmed the juvenile courts terminating dependency over a 19-year-old because the Department demonstrated its compliance with section 391 and, despite some need for continued assistance, the dependent had consistently refused the services offered to her. Here, the record does not indicate what, if any, of the services outlined in section 391, subdivision (b), were ever offered to Alyssa.

We recognize that Alyssa was subject to dependency jurisdiction for a relatively short time, particularly when compared to the minors in either In re Tamika C. or In re Holly H. Nonetheless, as the author of section 391 pointed out, this was a critical time in Alyssas life: [E]very year in California, thousands of youth in foster care reach the age of 18, and suddenly are left to their own devices. Most are not adequately equipped for more than basic survival. Often they lack a high school diploma, have no job skills, and many have no place to live. Yet they are expected to become productive members of society. The odds are against them and many become homeless, become involved in crime, or once again become the responsibility of the state. [Citation.] (In re Tamika C., supra, 131 Cal.App.4th at p. 1161.) It was not in Alyssas best interest to terminate jurisdiction over her without notice, without her presence at the hearing and with no assurance that she had been provided assistance from the Department in accordance with section 391, subdivision (b).

II. The ICWA Notice Was Defective.

Alyssa further contends that, regardless of whether the juvenile court properly exercised its discretion in ordering jurisdiction terminated, the termination order is void in any event by reason of the Departments failure to provide the juvenile court with copies of the ICWA notices. The Department concedes that it failed to submit copies of the notices to the juvenile court and that, therefore, the juvenile court had no basis on which to conclude that the ICWA notice was proper and that the ICWA did not apply. (See In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906907 [ICWA notice not proper where evidence of notice is social workers statement that notice was sent and the documents submitted to the court are incomplete]; In re Jennifer A. (2002) 103 Cal.App.4th 692, 702703 [same].)

Generally, [t]he juvenile courts failure to secure compliance with the notice provisions of the [ICWA] is prejudicial error. [Citation.] (In re Marinna J. (2001) 90 Cal.App.4th 731, 739, fn. omitted.) The Department asserts that the error does not require reversal and remand in this case, however, because both the termination of jurisdiction and Alyssas turning age 18 have rendered the issue moot. We disagree. In addition to the strict notice requirements to an Indian childs tribe (25 U.S.C. 1912), the ICWAs procedural protections include the right of an Indian childs tribe to intervene in the state proceedings or assume jurisdiction (25 U.S.C. 1911(b) & (c)) and the right to petition to invalidate prior state court orders not in compliance with the ICWA (25 U.S.C. 1914). In particular, 25 U.S.C. section 1914 provides: Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian childs tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title. In view of this provision, subsequent events cannot be deemed to affect an Indian childs tribes right to petition to invalidate any state court order made without proper notice. (See In re Jennifer A., supra, 103 Cal.App.4th at p. 709 [absence of proper ICWA notice required reversal of court orders declaring the minor a dependent child, removing her from her mothers custody and placing her in her fathers custody]; In re Desiree F. (2000) 83 Cal.App.4th 460, 471472 [absence of proper ICWA notice required reversal of jurisdictional findings, foster care placement, order terminating parental rights and institution of adoption proceedings].)

While we agree that the absence of proper ICWA notice may potentially affect all prior orders made in this case, we will follow our disposition in In re Brooke C. (2005) 127 Cal.App.4th 377. There, we acknowledged a split of authority as to whether a violation of the ICWA constitutes jurisdictional error and followed the majority of cases holding that only an order terminating parental rights is subject to automatic reversal for an ICWA violation. (In re Brooke C., supra, at pp. 384385.) We concluded in In re Brooke C., as we do here: The lack of statutory notice nonetheless requires a limited remand to the juvenile court for the Department to comply with the notice requirements of the ICWA, with directions to the juvenile court depending on the outcome of such notice. If, after proper notice is given under the ICWA, [Alyssa] is determined not to be an Indian child and the ICWA does not apply, prior defective notice becomes harmless error. [Citation.] In this event, no basis exists to attack a prior order because of failure to comply with the ICWA. . . . Alternatively, after proper notice under the ICWA, if [Alyssa] is determined to be an Indian child and the ICWA applies to these proceedings, [a party specified by 25 U.S.C. 1914] can then petition the juvenile court to invalidate orders which violated title 25 United States Code sections 1911, 1912 and 1913. [Citations.] (In re Brooke C., supra, at p. 385.)

III. Separate Counsel for Alyssa and Joshua Was Not Required.

In In re Celine R. (2003)31 Cal.4th 45, 50, the Supreme Court concluded that one attorney may be appointed to represent all siblings in a dependency case unless, at the time of appointment, an actual conflict of interest exists among them or it appears from circumstances specific to the case that it is reasonably likely an actual conflict will arise. Following the initial appointment, the juvenile court must relieve counsel from the joint representation when, but only when, an actual conflict of interest arises. (Ibid.; see also Rules Prof. Conduct, rule 3310(C)(2).)

Alyssa contends that minors counsel had an actual conflict of interest because she and Joshua were in different positions to the extent that her relationship with Father was having tensions while Joshuas relationship was stable. We fail to see how this difference created an actual conflict of interest. Indeed, even the existence of multi-sibling permanent plans do[es] not necessarily involve an actual conflict of interest. (Carroll v. Superior Court (2002) 101 Cal.App.4th 1423, 1429.) Moreover, a theoretical potential conflict of interest is not enough to require the appointment of separate counsel. (Ibid.) Only if the best interest of one minor conflict with the best interest of one or more siblings does an actual conflict of interest exist. (Id. at p. 1430.)

[T]he obligation of counsel for a dependent minor is to pursue whatever is in the minors best interest. (In re Candida S. (1992) 7 Cal.App.4th 1240, 1253.) Assuming that it was in Alyssas best interest to return to California, while it was in Joshuas best interest to remain with Father, no actual conflict would arise from minors counsel advocating for different placements that served the best interest of each minor. (Id. at pp. 12521254 [no actual conflict where counsel represented multiple siblings in different placements, some of whom wanted visitation with each other and some who did not].) Accordingly, there was no basis for the juvenile court to appoint separate counsel for Alyssa and Joshua.

DISPOSITION

The order terminating jurisdiction over Alyssa is reversed and the matter is remanded with directions to the juvenile court to require the Department to comply with section 391 and to provide proper notice under the ICWA.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________, Acting P. J.

DOI TODD

We concur:

_______________________, J.

ASHMANN-GERST

_______________________, J.

CHAVEZ

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^[1] Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.

^[2] We granted the Departments request to take judicial notice of a November 7, 2006 minute order reflecting the juvenile courts termination of jurisdiction over Joshua.