In re K.R

Filed 4/26/06 In re K.R. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Alison R. appeals from the order terminating her parental rights to her son K.R. and placing him for adoption. (Welf. & Inst. Code, §§ 366.26, 395.)[1] Mother asserts that the juvenile court committed reversible error by failing to make inquiry regarding the applicability of the Indian Child Welfare Act (ICWA or Act) after being provided with information suggesting that the Act might apply.

BACKGROUND

On November 14, 2002, the San Benito County Health and Human Services Agency (Agency) filed an amended petition on behalf of 15-month-old K.R., alleging that he came within the provisions of section 300, subdivision (b) [failure to protect].[2] Facts alleged in support of the petition included that in September, when mother left the child unsupervised, he fell in the family hot tub and nearly drowned, that mother had a substance abuse problem that affected her ability to adequately parent her child, and that mother and the maternal grandmother endangered the child by engaging in verbal and physical altercations in his presence. The child was not detained.

On December 9, 2002, following a contested hearing, the juvenile court took jurisdiction over the child, who was to remain in mother's custody. Mother was ordered to undergo a psychological evaluation. The report prepared for this hearing stated that the ICWA did not apply.

On January 23, 2003, the Agency filed a subsequent petition, pursuant to section 342,[3] after the child was placed in protective custody. The petition alleged continued domestic violence between the mother and the grandmother, with law enforcement being called to their home 11 times over the past few months. The petition also alleged that mother appeared to be suffering from a drug-induced psychosis that affected her ability to parent the child, that she was hearing voices, and that she had driven with the child sitting on her lap.

At the jurisdiction hearing on March 17, 2003, the court found the allegations of the subsequent petition true. The report of the psychological evaluation of mother had been filed with the court. The psychologist, Dr. Finnberg, opined that mother was suffering from a severe personality disorder, although mother's drug use prevented further evaluation of the potential of a major mental disorder. The psychologist concluded mother had a serious drug problem and recommended residential drug treatment. Mother denied having a drug problem.

A few weeks later, on April 7, 2003, a second subsequent petition was filed, alleging that the child's father was unable to provide regular care for him due to an ongoing substance abuse problem.

On April 21, 2003, a combined jurisdiction/disposition hearing was held. Both parents submitted on the report and the juvenile court adopted the recommended findings and orders, including family reunification services for both parents. Reports prepared by the Agency stated the ICWA did not apply.

At the three-month review hearing on July 14, 2003, services were continued for both parents, although they had made little progress on their case plans. The social worker reported that mother was homeless and continued to have altercations with her mother. She had not followed through with a residential drug treatment program or counseling. Father had not stayed in contact with the Agency and had little interest in the child, visiting only twice in the past three months.

By the six-month review hearing on October 20, 2003, mother had made better progress and was in a residential drug treatment program. The court ordered the child returned to mother's physical custody, with family maintenance services. The court terminated reunification services to father.

Then mother had a relapse and on December 2, 2003, the child was again placed in protective custody. A supplemental petition was filed pursuant to section 387,[4] alleging that the prior disposition had not been effective in protecting the child due to mother's continued substance abuse while in the residential treatment program.[5]

The report prepared for the disposition hearing noted that mother was back in a residential treatment program and had a strong bond with the child. Therefore, further reunification services were recommended with the child continuing in out-of-home placement. At the hearing on December 29, 2003, the juvenile court expressed grave concern over mother's conduct and her ability to control her behavior, but ordered further reunification services.

Over the course of the next several months, mother completed the residential treatment program and was complying with services. The Agency recommended return of the child to her with family maintenance services provided. On April 5, 2004, the court returned the child to mother under a family maintenance plan.

The report prepared in September 2004 for the six-month status review hearing noted mother's struggles with her sobriety and with parenting. Mother did not show up for the scheduled court hearing on October 4, and had not been in contact with her attorney. The hearing was continued to October 18, 2004, but mother again failed to appear. The social worker informed the court that the Agency had received numerous referrals about mother and that apparently she had absconded with the child.

By the end of October 2004, a second supplemental petition was filed alleging that the previous disposition had not been effective in protecting the child. The child had been located and detained.

A contested jurisdiction hearing was held on January 31, 2005. The juvenile court sustained allegations concerning mother's failure to comply with her case plan and failure to appear in court as ordered. At the contested disposition hearing on March 21, 2005, the court followed the recommendations of the Agency, terminating reunification services to mother and setting a selection and implementation hearing, pursuant to section 366.26.

In the report prepared for the section 366.26 hearing, both the Agency and the State Department of Social Services (who prepared the actual adoption assessment) recommended adoption. Both agencies concluded that the ICWA did not apply. The reports described the child as doing well, with a strong and healthy attachment to his foster parents, with whom he had been placed for a total of 12 months. This family was interested in adopting him.[6]

At the contested selection and implementation hearing on July 18, 2005, attorney Douglas Tsuchiya appeared, stating that he had recently been retained by the maternal grandmother, Nancy O., and that he was contemplating filing a motion to intervene on behalf of the grandmother. He stated that he needed first to discuss several issues with her, including the ICWA. The juvenile court allowed Mr. Tsuchiya to remain in the courtroom, even though his client was not a party to the proceeding. The hearing proceeded with testimony from the social worker. The court then terminated parental rights and ordered adoption as the permanent plan for the child. Mother timely appeals.

DISCUSSION

On appeal, mother contends that the juvenile court committed reversible error by failing to make any inquiry regarding the applicability of the ICWA after being provided with information suggesting that the Act might apply.

Factual Background

At the section 366.26 hearing, the social worker brought to the court's attention the fact that an additional attorney was present in the courtroom, appearing on behalf of a grandparent. The attorney, Douglas Tsuchiya, stated that he was retained one court day before (the preceding Friday) to represent the maternal grandmother, Nancy O. Mr. Tsuchiya stated: â€