In re Destiny B.

Filed 7/19/06 In re Destiny B. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from judgments of the Superior Court of San Diego County and petition for writ of habeas corpus, Peter E. Riddle, Judge. (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Petition granted and judgment reversed with directions.

K.B. challenges the custody status of her children, Destiny B. and U.B. by petition for writ of habeas corpus and appeals the judgments terminating parental rights under Welfare and Institutions Code section 366.26.^[1] K.B. maintains the court did not comply with provisions of the Indian Child Welfare Act, Title 25 United States Code section 1901 et seq. (ICWA) and applicable state law. The Agency and minors' counsel concede there was noncompliance with the ICWA. In her appeal, K.B. also contends the court erred when it denied her motion for a continuance of the section 366.26 hearing. We remand the case for compliance with the ICWA but otherwise find no error.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2004, the San Diego County Health and Human Services Agency (the Agency) removed Destiny, then age 18 months and U.B., age three, (together, children) and their four older siblings^[2] from K.B.'s custody.^[3] The Agency filed petitions under section 300, subdivisions (b) and (j), alleging the children were at substantial risk of serious physical harm or illness because of grossly unsuitable living conditions, K.B.'s use of marijuana and methamphetamine, and her physical abuse of a sibling.

The family had a history of referrals to child protective services. The Agency substantiated allegations of maltreatment, emotional abuse and neglect. The children's father was abusive and violent with K.B., and the children and their siblings were exposed to the parents' altercations. K.B. admitted using methamphetamine and said she heard voices. Three of the older siblings described injuries inflicted on them by K.B., including facial scratches, and bruises and cuts from being slammed into a wall and hit with a belt, hand, or telephone cord. They asserted K.B. also hit the youngest children and once threw U.B. into a wall.

At the jurisdiction/disposition hearing in December 2004, K.B. submitted on the Agency recommendations. The court declared Destiny and U.B. dependents of the juvenile court, removed them from parental custody and placed them in foster care. In December, the social worker suspended K.B.'s visitation after she became irate during a supervised visit with the children and their siblings. The social worker sought and obtained a restraining order after K.B. threatened to kill her. K.B.'s whereabouts were unknown until June 2005, when she was arrested on charges of burglary, vandalism, arson, assault, and being under the influence and possession of drugs.

In June 2005, at the six-month review hearing, K.B. informed the court that she was on supervised probation and would soon enter a residential substance abuse treatment program. The court found that K.B. failed to visit or contact the children for six months and made no progress with her case plan. The court terminated reunification services and set a hearing under section 366.26 to select a permanent plan for the children.

K.B. was detained in July 2005 and incarcerated until November. After her release, she visited with the children in December and saw them again in January 2006 for a bonding study. Although U.B. initially believed K.B. was an aunt, the children were comfortable with her and their visits were pleasant. Based on his observations of the children's interactions with K.B., the psychologist conducting the bonding study concluded that Destiny and U.B. shared a mild bond with their mother.

In January 2006, at the contested permanency plan hearing, the social worker testified that the children's relative caregiver was willing to adopt them. Two of the children's older siblings also lived in the home. Based on the children's age, developmental level, and the sibling bond, the social worker identified six other families willing to adopt the children together. He opined the children did not have a beneficial relationship with either parent.

Because of a lack of time, the court continued the hearing to allow K.B. the opportunity to testify without interruption. When the hearing resumed one week later, K.B.'s counsel requested a continuance because K.B. had been in an automobile accident the previous day. She wanted to testify but was medicated, disoriented and having difficulty focusing. The Agency opposed the motion for a continuance, stating K.B. had visited the children only twice in one year and any continuance was contrary to their best interests. To accommodate K.B.'s desire not to testify under the influence of pain medication and to avoid any due process concerns, county counsel proposed the court accept K.B.'s stipulated testimony.

The court found county counsel's argument persuasive and denied K.B.'s request for a continuance. K.B.'s attorney reiterated that K.B. wanted to testify but felt she was incapable of testifying at that time. After a brief recess, the court accepted the stipulation that, were K.B. to testify, she would state that she loved her children, they were happy to see her and affectionate during visitation, and she wanted the children and all their siblings to live together. K.B. offered no other affirmative evidence. The court found that Destiny and U.B were adoptable, selected adoption as their permanent plan, and terminated parental rights.

ICWA Matters

When the case began, K.B. completed a paternity questionnaire. In it, she stated the children's father had American Indian heritage but she did not know the name of his tribe or band. At the detention hearing, K.B.'s counsel asserted the ICWA applied because both mother and father had American Indian heritage. A social worker later reported K.B. and her family were members of the "Youngblood" tribe. In December 2004, the Agency sent notice to the Bureau of Indian Affairs (BIA). The BIA responded with a form letter stating that it was returning notice because it contained insufficient information to substantiate membership in any federally recognized tribe.

In a report prepared for the six-month review hearing, the social worker opined the ICWA did not apply because K.B. was unable to identify the father's tribe and she had initially told a social worker that she did not have American Indian heritage. The court found that proper notice was made and, as no response from any tribe or the BIA was received within the required time, the ICWA did not apply.

In her petition for writ of habeas corpus, K.B. submits declarations from her mother, Connie F., and grandmother, Hazel F. Hazel declares that her maiden name is Youngblood and that her father and maternal grandfather were Cherokee, and provides other pertinent family information. Connie declares that she informed two social workers of the family's Cherokee ancestry at the time each was assigned to the case.

On May 16, 2006, we ordered the petition for the writ of habeas corpus to be considered at the same time as this appeal. We directed the Agency to file a separate response to the petition at the same time it filed its respondent's brief in this appeal, which it did. On July 19, 2006, we granted K.B.'s request to consolidate the petition for writ of habeas corpus with this appeal.

DISCUSSION

I

In her appeal, K.B. contends the juvenile court unreasonably denied her request for a continuance of the section 366.26 hearing, and violated her due process rights to testify and assist in her defense.

The Agency maintains the court did not abuse its discretion. It contends K.B. did not meet the threshold requirement under section 352 to show the continuance was not contrary to the children's best interests, and she did not show good cause for a continuance because she was able to understand the proceedings, communicate with counsel, and assist in her defense. The Agency asserts K.B. forfeited consideration of her due process claim on appeal by not raising it at trial. Finally, the Agency argues that error, if any, was harmless because it was not reasonably probable K.B. would have obtained a more favorable result had she testified at the section 366.26 hearing.

When the state seeks to curtail or terminate a parent's fundamental interest in the companionship, care, custody, and management of his or her children, the ensuing judicial proceeding must be "fundamentally fair." (Lassiter v. Department of Social Service (1981) 452 U.S. 18, 33 (Lassiter).) In such proceedings, an opportunity to be heard " ' "must be granted at a meaningful time and in a meaningful manner.'' [Citation.]' " (In re Joshua M. (1998) 66 Cal.App.4th 458, 471; see Cal. Rules of Court,^[4] rule 1412(j)(4) [right to present evidence].) A parent is also entitled to be represented by appointed counsel, to timely receive a copy of the social worker's report, and to have an opportunity to cross-examine witnesses. (§ 317, subd. (b); rule 1412(h)(1)(B); In re Matthew P. (1999) 71 Cal.App.4th 841, 851; In re Arturo A. (1992) 8 Cal.App.4th 229, 238; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1660.)

As a general rule, a party may not assert new theories in the appellate court, which were not raised at the trial court level. (Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1489.) A constitutional question must be raised at the earliest opportunity or it will be deemed waived. (In re Marriage of Christie (1994) 28 Cal.App.4th 849, 865.)

Here, K.B. did not challenge at trial the court's denial of her request for a continuance as a violation of her due process rights. The record shows that county counsel proposed the parties stipulate to K.B.'s testimony "so no due process violations occur." Even after county counsel indicated her concern about the constitutional implications of the court's denial of K.B.'s request for a continuance, K.B.'s attorney did not object to the denied continuance on due process grounds. Instead, she met with other counsel, agreed on K.B.'s stipulated testimony, and presented it to the court. The court then accepted the stipulated testimony.

Even were the issue not forfeited, we would reject K.B.'s claim that the denial of her request for a continuance of the section 366.26 hearing violated her procedural due process rights. K.B. was represented by counsel throughout the proceedings. (Lassiter, supra, 452 U.S. at pp. 31-34; In re O.S. (2002) 102 Cal.App.4th 1402, 1407.) She had notice and an opportunity to be heard, and was present during the proceedings. (In re B.G. (1974) 11 Cal.3d 679, 688-689.) In November 2005, at K.B.'s request, the court scheduled the contested section 366.26 hearing to allow time for parent-child and parent-sibling bonding studies to be completed. The court received the bonding studies in evidence on January 17, 2006. On that day, K.B. had the opportunity to confront and cross-examine the witnesses testifying in favor of termination of parental rights. (In re Amy M. (1991) 232 Cal.App.3d 849, 864.) On January 24, K.B., through counsel, presented "[her] side of the story" in stipulated testimony and closing argument. (In re Malinda S. (1990) 51 Cal.3d 368, 383.)

Given the due process protections afforded K.B., the status of the case and the court's prior findings and orders, the risk of an erroneous decision by the court concerning the custody status of the children was minimal. (Lassiter, supra, 452 U.S. at p. 27, citing Mathews v. Eldridge (1976) 242 U.S. 319, 335; see Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256 [the "precise and demanding substantive and procedural requirements the petitioning agency must have satisfied before it can propose termination of parental rights are carefully calculated to constrain judicial discretion, diminish the risk of erroneous findings of parental inadequacy and detriment to the child, and otherwise protect the legitimate interests of the parents."].) Under these circumstances, we conclude the court did not violate K.B.'s right to due process when it denied her motion for a continuance.

Further, the court did not abuse its discretion. The juvenile court may continue a dependency hearing at the request of a parent for good cause, provided that any continuance is not contrary to the best interests of the child. (§ 352, subd. (a); rule 1422 (a)(1).) In considering the child's interests, the court must give substantial weight to the child's needs for a stable environment and the prompt resolution of his or her custody status, and damage to the child from prolonged temporary placements. (Ibid.) Courts have interpreted this policy as expressly discouraging continuances. (See, e.g., In re Emily L. (1989) 212 Cal.App.3d 734, 743; Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1241-1244 [continuances in dependency proceedings are intended to be difficult to obtain].)

The court's denial of a request for continuance will not be overturned on appeal absent an abuse of discretion. (See In re Angela R. (1989) 212 Cal.App.3d 257, 265-266.) An abuse of discretion occurs when the court's decision is arbitrary, capricious or patently absurd, and results in a manifest miscarriage of justice. (In re Karla C. (2003) 113 Cal.App.4th 166, 179-180.)

"A [section 366].26 hearing is concerned only with the long-term placement plan for the [children], the preferred alternative being adoption and termination of parental rights." (In re Ninfa S. (1998) 62 Cal.App.4th 808, 811.) The issues at a section 366.26 hearing are limited to whether the child is adoptable and whether termination of parental rights would be detrimental to the child under one of the exceptions enumerated in section 366.26, subdivision (c)(1). (Ibid.)

K.B. did not participate in reunification services and she did not visit or contact the children from December 2004 to December 2005. The children barely knew her. The court had received evidence showing that a psychologist concluded the children shared only a "slight bond" with their mother and a "mild bond" with their siblings. Considering K.B.'s yearlong disengagement from the reunification process and from her children, her availability to testify should she so choose, and the children's interest in stability, security and the prompt resolution of their custody status, the court did not abuse its discretion when it denied K.B.'s request for a continuance.

II

In the consolidated petition for writ of habeas corpus and appeal, K.B. contends the court and the Agency did not comply with the requirements of the ICWA and applicable state law. K.B. maintains these errors include: not inquiring into father's American Indian heritage (rule 1439; 44 Fed.Reg. 67584, 67588 (Nov. 26, 1979) Guidelines for State Courts; Indian Child Custody Proceedings (Guidelines); In re Louis S. (2004) 117 Cal.App.4th 622, 630); inaccurately reporting to the court and the BIA the results of the Agency's inquiries into K.B.'s American Indian heritage; not providing proper notice to the BIA and the child's prospective tribe or tribes of the hearings (25 U.S.C. § 1912(a); rule 1439(f); Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 257, fn. 6; In re Desiree F. (2000) 83 Cal.App.4th 460, 470); and not filing with the court the proof of registered or certified mail and the return receipts of notice sent to the BIA. (Rule 1439(f)(1).) K.B. requests we vacate the judgment terminating parental rights and direct the juvenile court to comply with applicable provisions of the ICWA and state law.

The Agency and minors' counsel concede there was noncompliance with the ICWA, and we agree. (See In re A.U. (July 12, 2006 D047847) __Cal.App.4th __, __ [2006 Cal.App. Lexis 1073, 27-37]; In re I.G. (2005) 133 Cal.App.4th 1246, 1254-1255; see also In re Francisco W. (2006) 139 Cal.App.4th 695.) Given the parties' concessions, we conclude no useful purpose could reasonably be served by issuing an order to show cause or by plenary consideration of the matter (People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7) and grant the relief requested.

DISPOSITION

The judgment terminating parental rights is reversed and the case is remanded to the juvenile court with directions to order the Agency to inquire into the children's American Indian heritage and comply with the notice provisions of the ICWA, the relevant case law interpreting the ICWA, and rule 1439, and to file all required documentation with the juvenile court for its inspection. If, after proper notice, a tribe claims Destiny and U.B. are Indian children within the meaning of the ICWA, the juvenile court shall proceed in conformity with all provisions of the ICWA and applicable state law. If no tribe claims the children are Indian children, the juvenile court

shall reinstate its findings and orders terminating parental rights. (See In re Francisco W., supra, 139 Cal.App.4th at p. 711.)

O'ROURKE, J.

WE CONCUR:

HALLER, Acting P. J.

McINTYRE, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Real Estate Lawyers.

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

^[2] This appeal concerns only Destiny and U.B.

^[3] The children's father is not a party to this appeal.

^[4] All rule references are to the California Rules of Court.