In re C.C.

Filed 6/17/08 In re C.C. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Merced County. Harry L. Jacobs, Commissioner.

Linda K. Harvie, under appointment by the Court of Appeal, for Defendant and Appellant.

James N. Fincher, County Counsel, and James B. Tarhalla, Deputy County Counsel, for Plaintiff and Respondent.

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Laurie S. appeals from an order terminating her parental rights (Welf. & Inst. Code,  366.26) to her son C.C.^[1] She contends the court erred when it denied her request for a continuance of the termination proceedings in order to file a section 388 modification request. She also claims respondent Merced County Human Services Agency (agency) supplied insufficient family information to enable Indian tribes to investigate and resolve whether C.C. was an Indian child for purposes of the Indian Child Welfare Act (ICWA; 25 U.S.C.  1901 et seq.). On review, we will conditionally reverse the termination order for a limited remand related to ICWA compliance. Otherwise, we affirm.

PROCEDURAL AND FACTUAL HISTORY

In August 2006, the Merced County Superior Court adjudged one-and-a-half year old C.C. a dependent child and removed him from appellants custody due to her untreated substance abuse problem. Appellant, who was in her early forties, began using drugs, including methamphetamine, as a teenager. However, she minimized her problem as well as the effects it had on her and her family.

Her situation came to the agencys attention when her teenage daughter gave birth and both appellants daughter and grandchild tested positive for methamphetamine. When told of this, appellant admitted she would test positive as well. I have used that stuff too. Notably, she used methamphetamine with a neighbor who watched C.C. while appellant was at work. She believed she could stop using drugs without outside help and considered herself to be only a recreational drug user.

Despite 12 months of reasonable reunification services, appellant made minimal progress toward alleviating or mitigating the causes of C.C.s out-of-home placement. At best, she participated in a drug and alcohol assessment and submitted to random drug screens. However, she did not pursue recommended treatment and her drug tests were consistently positive for amphetamine or methamphetamine. The one program she eventually entered in June 2007 discharged her the following month due to her lack of attendance. She also missed close to one-half of her scheduled visits with C.C.

On the figurative eve of the courts 12-month review hearing, appellant gave birth to her third child whom the agency detained based on appellants noncompliance with court-ordered services in C.C.s case and her drug abuse throughout her pregnancy. At the same time, wardship proceedings for appellants teenager daughter were scheduled for dismissal; however, appellant was unavailable to provide her a permanent home. After the newborns detention, appellant acknowledged to social workers, apparently for the first time, that she had a drug problem and needed help to treat it.

The court conducted its status review in C.C.s case as well as a detention hearing for appellants teenager and newborn in late August 2007. According to the courts minute order, it heard sworn testimony from appellant and admitted exhibits described as Mothers exhibit #1-Letter from Group Leader; #2-Attendance Sheets. The record on appeal does not include a reporters transcript of the hearing or copies of appellants exhibits.

In addition to formally detaining the teenager and newborn, the court made a series of findings and orders as to C.C. Having found appellant failed to regularly participate and make substantive progress in her treatment plan, the court terminated appellants services as to C.C. and reduced her visits with him to once a month. The court also made a finding that ICWA did not apply. In addition, it set a November 26, 2007 hearing to select and implement a permanent plan for C.C. and gave appellant notice of her writ remedy under section 366.26, subdivision (l).

Appellant did not seek writ review of the trial courts findings and orders.

A month and a half later, the same court officer conducted an uncontested jurisdictional/dispositional hearing in the case of appellants teenage and infant daughters. The court exercised its dependency jurisdiction over both girls and removed them from appellants custody subject to additional reunification services. The agencys evidence in support of the courts decision established that in September 2007 the mother was regularly participating in services to treat her drug abuse and was testing negatively for drugs but her progress to that point was marginal.

In advance of the selection and implementation hearing for C.C., the agency prepared a 366.26 WIC Report in which it recommended that the court find the child adoptable and terminate parental rights. C.C. lived in the same foster home since his July 2006 detention and his foster family was committed to adopting him. Since C.C.s detention and over the following 15 months, appellant visited him for a total of approximately 14 hours.

At the start of the November 26, 2007 selection and implementation hearing, appellants trial counsel requested a continuance. She added:

It was our intention to file a JV180 [request to modify a prior order] in this matter. We had an appointment scheduled on the 2nd of November to do that. My client apparently forgot. [] She did provide me this morning with a whole bunch of information that would be helpful in such a motion. So we would be requesting time to do that.

C.C.s counsel and county counsel on behalf of the agency objected. The former argued:

[I]t appears to me they had plenty of time to get this stuff together at this point.

The latter added Thats not good cause to continue.

The court agreed but permitted appellant to take the witness stand in support of the continuance. Appellant testified:

[The appointment] skipped my mind because I was busy trying to get my case together for daughter and for my son. And by the time I realized I missed the appointment, it was too late to get in and make another appointment.

She realized her mistake [j]ust last week. She did not call her attorney to schedule another appointment because I knew I couldnt get in.

Asked about her statement that she was busy, appellant replied:

Yes, Ive begun going every day. I just finished my drug and alcohol classes. All I have left is the parenting and Ill graduate The Center. I also went to a drug court assessment.

So Ive just been and working 40 hours too. Ive just been preoccupied with trying to do all this stuff. I do meetings every day, if I can. And I have been Ive only missed a couple days, Thanksgiving was one of them, and last night, when I was putting all that paperwork together. But I go to NA every day. I also chair one five days a week. Plus, I finished my drug and alcohol classes. I only have eight parenting left, and then I graduate The Center.

The court in turn called a sidebar conference which was not reported. It then permitted counsel to resume questioning her client. Appellants attorney had no further questions nor did she have any further witnesses to present on the continuance request. She as well as the other attorneys submitted the issue. The court denied the continuance request, finding no good cause had been shown.

Moving forward with the selection and implementation hearing, the court granted appellants request to make a statement. Appellant asked for another chance to reunify with C.C. and promised to do whatever the court wanted her to do. Thereafter, the court found C.C. adoptable and terminated parental rights.

DISCUSSION

I. CONTINUANCE TO FILE A SECTION 388 REQUEST

Appellant contends the court denied her the right to file a modification request ( 388) when it rejected her motion to continue the section 366.26 hearing. She also suggests it was error for her attorney not to simply request a contested hearing which, in appellants view, would have entitled her to the sought-after continuance. Alternatively, appellant argues her desire to file a section 388 request constituted good cause for a continuance and therefore the court abused its discretion by denying her motion. On review, we disagree.

The court did not violate appellants right under section 388 to request a change in the courts orders. Rather, appellant has only herself to blame. She had a scheduled appointment for November 2, 2007, with her attorney, apparently for the purpose of preparing a section 388 request. However, appellant forgot about and missed her appointment. According to her testimony, appellant realized her mistake a week before the section 366.26 hearing. However, she took no action. Although she allegedly provided her attorney with a whole bunch of information on the morning of the section 366.26 hearing, the record is silent as to why she could not have provided that information to her attorney in advance of the hearing in order to prepare a section 388 request.

In addition, appellants trial counsel is not to be faulted. We interpret appellants criticism that the attorney should have requested a contested section 366.26 hearing as little more than a suggestion that counsel should have essentially lied to the court in order to buy more time. While we are familiar with the practice of requested contested hearings based on our review of other dependency proceedings, we do not condone resorting to such a practice, if done for purposes of delay or obfuscation. Indeed, when an attorney makes such a request, the court properly may inquire of counsel the scope of contest and/or the witness(es) counsel intends to call. Had that been the case here and counsel as an officer of the court explained her intent to file a section 388 request, the court still could have required a good cause showing as to why, given that appellant received notice three months earlier of the section 366.26 hearing date, she had not as yet filed her request. Forgetting her appointment three-plus weeks earlier and not pursuing the matter once she realized her mistake is not good cause.

This leads us to appellants alternative argument that her plan to file a section 388 request amounted to good cause for a continuance. We strongly question appellants effort to isolate her desire to file a section 388 request from her inaction to date.

In any event, although a court may continue any dependency hearing, it can grant a continuance only upon a showing of good cause and provided the continuance is not contrary to the interest of the dependency child. ( 352, subd. (a).) Here, appellant did not address C.C.s interests in her motion to the court.

Meanwhile, the court was undoubtedly aware that as of the section 366.26 phase of the proceedings, the focus had shifted from family reunification efforts, which appellant apparently intended to seek a new, to C.C.s interest in a permanent and stable placement. (In re Marilyn H. (1993) 5 Cal.4th 295, 309. In fact, there is a rebuttable presumption that continued foster care, if not adoption, is in the best interests of the child. (Id. at p. 302.) Because we review the denial of a continuance motion for abuse of discretion (In re C.P. (1985) 165 Cal.App.3d 270, 274), we conclude on this record that the court did not abuse its discretion by denying appellants request.

II. ICWA

Background

The day before the agency initiated C.C.s dependency in July 2006, a social worker asked appellant if she had any Native American heritage. She replied: I dont think so, but along [sic] time ago my father said something about Cherokee or Iroquis. Thats not a fact though so I dont think so. Two weeks later, another social worker repeated the same question to appellant who replied No. Not that I could say for sure. Maybe Iroquis or Cherokee.

The whereabouts of the man whom appellant alleged was C.C.s father were then unknown. Asked if that man had any Native American Indian heritage, appellant answered that she did not know. Although the agency later located the man, the record is silent regarding any Indian heritage inquiry made by the agency of him.^[2]

The agency served notice of the proceedings on Cherokee and Iroquis Indian tribes as well as the Bureau of Indian Affairs and appellant. In spaces provided on the notice form for identifying information about the maternal grandparents and great-grandparents, the word Unknown was typed. The record is silent regarding why such information was unknown. There is also no record that appellant who was served a copy of the notice ever disputed the use of the word unknown. We note in this regard the record contains but one reporters transcript, that being the transcript of the November 2007 hearing at which the court denied appellants continuance motion and terminated parental rights to C.C. Appellant never sought to augment the record with reporters transcripts from earlier hearings, which may have clarified the issue one way or the other.

By the time the court terminated services for appellant in August 2007, there was ample documentation that the tribes had been served at least once with notice and many of them had responded in the negative. Some of the tribes who responded with the caveat that their responses were based only on the information provided.

Other references in the record to possible Indian heritage emerged in connection with the dependencies of appellants daughters. According to an August 27, 2007 detention report, appellant denied having any Native American Heritage. One month later, she told another social worker: I was told my dads mother was full-blooded Cherokee. Appellant also stated she believed her family also had Iroquis heritage.

Once again, the agency served notice on the Cherokee and Iroquis Indian tribes, as well as the Bureau of Indian Affairs. Although it attempted service on appellant, there is no evidence on this record that she received the notice. Notably, this time in the spaces provided on the notice form for identifying information about the maternal grandparents and great-grandparents, the words Information not provided by parent appear.

According to the agencys Jurisdiction/Disposition Report for appellants daughters, appellant stated she did not speak with her siblings or her parents for some time and did not have any of their contact information. She and her siblings had been separated when she was 12 years old, approximately 30 years earlier, a separation which she attributed to her fathers prison commitment and her mothers inability to provide care.

Issues

Appellant faults the court for finding ICWA did not apply to C.C. because: the agency did not supply identifying information about his maternal grandparents and great-grandparents; and there was no evidence that the agency or the court asked the alleged father about his heritage. In addition, appellant contends the court erred by not ordering the agency to send updated notice based on her statement to the social worker in her daughters case that she was told her fathers mother was full-blooded Cherokee.

Discussion

August 2007 finding that ICWA did not apply

Appellants attempt to set aside the courts August 2007 finding that ICWA did not apply is untimely. The courts finding is already final and therefore is no longer subject to this courts review.

In In re Pedro N. (1995) 35 Cal.App.4th 183, 185 (Pedro N.), this court held a parent who fails to timely challenge a juvenile courts action regarding ICWA is foreclosed from raising ICWA notice issues once the courts ruling is final in a subsequent appeal. In so ruling, we specifically held we were only addressing the rights of the parent, not those of a tribe.

Appellant criticizes our holding, citing other appellate court rulings, including In re Marinna J. (2001) 90 Cal.App.4th 731 (Marinna J.). The Marinna J. court disagreed with Pedro N. on the theory it was inconsistent with the protections ICWA affords to the interests of Indian tribes. On this point, we differ. This court did not foreclose a tribes rights under ICWA on account of a parents appellate waiver. (Pedro N., supra, 35 Cal.App.4th at p. 185; see also In re Desiree F. (2000) 83 Cal.App.4th 460 [where this court reversed the denial of a tribes motion to intervene after a final order terminating parental rights and invalidated actions dating back to the outset of the dependency and taken in violation of ICWA].) Although appellant also challenges our reasoning as somehow disingenuous, the fact that she is foreclosed from complaining in this court in no way prevents her or anyone else, for that matter, from directly contacting any Indian tribe regarding possible tribal membership.

Also, to the extent appellant criticizes the absence of any inquiry made of C.C.s alleged father, she ignores the absence of proof that he was C.C.s biological father, a necessary element in order to be considered a parent under ICWA. (25 U.S.C.  1903(9).)

Updated Notice

Based on her statement to the social worker in her daughters case that her fathers mother was allegedly full-blooded Cherokee, appellant contends the court was on notice of her September 2007 claim.^[3] Therefore, in appellants view, the court should have ordered the agency to send updated notice regarding C.C.s dependency to the Cherokee tribes before proceeding with the section 366.26 hearing.

Unlike appellants challenge to the August 2007 finding that ICWA did not apply, her argument over updated notice is timely. It arose in the interim between the August and November proceedings in C.C.s case and thus is reviewable on this appeal.

It also appears appellant is correct that the court, as well as the agency, was on notice that appellant in September 2007 claimed her fathers mother was allegedly full-blooded Cherokee. Although this was in the context of the girls dependency, their dependency hinged at least in part, on C.C.s dependency and appellants failure to reunify with him.

Given the courts continuing and affirmative duty of inquiry on the issue of ICWA ( 224.3), appellants new information in her daughters case reasonably should have caused the court to at least ask questions. Those questions reasonably should have included: whether appellant previously provided the same information to the agency before it sent notice to the tribes of C.C.s dependency; if not, why not; did appellant having any identifying information about her paternal grandmother; and could this new information impact the courts recent determination that ICWA did not apply? Although it may be that the court conducted such an inquiry, the record is silent on these points. Accordingly, we will conditionally reverse the termination order for a limited remand under the terms set forth below.

DISPOSITION

The order terminating parental rights is reversed and the case is remanded to the superior court on the following limited basis. The superior court is hereby directed to assure that an inquiry is conducted pursuant to section 224.3, subdivisions (a) through (c) based on the mothers claim that she was told her fathers mother was full-blooded Cherokee. Having conducted that inquiry, if the court knows or has reason to know that C.C. is an Indian child, the court shall direct the agency to provide notice in accordance with section 224.2 and ICWA to the Bureau of Indian Affairs (BIA) and any identified tribes. In the event the BIA or any tribe responds by confirming that C.C. is or may be eligible for membership within 60 days of sending proper notice under ICWA and section 224.2, the court shall proceed accordingly and is hereby authorized to vacate, in whole or in part, any prior finding or order which is inconsistent with ICWA requirements. If there is no confirmation that C.C. is or may be eligible for Indian tribal membership within 60 days after proper and adequate notice has been served and received, the court shall reinstate the order terminating parental rights.

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* Before Cornell, A.P.J., Gomes, J., and Dawson, J.

^[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Notably, however, the man never appeared in these proceedings, questioned his paternity, and asked a social worker for paternity testing. Although the court ordered paternity testing, the man never tested. By the termination phase of the case, his whereabouts were again unknown.

^[3] The same bench officer presided over both C.C.s and the girls dependencies.