Vol. 16, No. 4: April 14, 2020 Written by: Stacie Hendrix (SH), Nancy Sariñana (NS), Margaret Lee (ML), Kristin Hallak (KH).
NEW DEPENDENCY CASELAW
De Facto Parent Status—Rule 5.502(10); WIC 387—Rule 5.565 In re Justin O.—published 3/2/20; Second Dist., Div. One Docket No. B287406; (2020) 45 Cal.App.5th 1006 Link to case: https://www.courts.ca.gov/opinions/documents/B287406.PDF
WHEN THE COURT CONSIDERS A DE FACTO PARENT (DFP) STATUS REQUEST, IT MUST ASSESS THE RELEVANT CRITERIA AND IDENTIFY ANY FACTUAL SUPPORT FOR ITS CONCLUSION. WHEN THE AGENCY FILES A WIC 387 PETITION, A HEARING ON THE MERITS IS MANDATORY.
Maternal grandmother (MGM) had adopted Shane, whose adoption home study indicated that Grandmother provided a safe, stable, loving home. Years later, Justin O. and his siblings David and Liam were born and eventually all were placed with MGM. The agency described all four children in MGM’s care as “special needs children.” When Justin was 4 years old, David was 3, and Liam was 1, the agency filed a WIC 387 petition against MGM, alleging she physically abused Justin. Before the court adjudicated the 387 petition, MGM requested de facto parent status but the court denied the motion, simply finding, “I don’t believe that she qualifies[.]” Regarding the 387 petition, the agency presented evidence that Justin gave inconsistent stories of how he incurred his bruises, he was a poor historian due to his young age and hyperactivity, and some of his bruises could have been caused by accidental injury. MGM and her counsel appeared at the hearing to contest the 387 petition. Counsel sought appointment and reported he represented MGM in another courtroom on a case “arising out of identical facts,” which involved MGM and her adoptive child, Shane. The court would not appoint counsel and refused to hear any evidence or argument before sustaining the 387 petition and ordering monitored visits for MGM. The court reasoned that because the matter was subject to a general placement order and the children were moving from “relative to relative,” the agency had discretion to remove the children from MGM to other relatives and MGM had no standing to argue. The court invited MGM to appeal, which she did.
Reversed. (I) When the court considers a request for DFP status, it must assess the relevant criteria and make factual findings to support its conclusion. The factors the court generally considers for determining DFP status include whether (1) the child is psychologically bonded to the adult, (2) the adult has assumed the role of a parent on a day-to-day basis for a substantial period of time, (3) the adult possesses information about the child unique from other participants in the process, (4) the adult has regularly attended juvenile court hearings, and (5) a future proceeding may result in an order permanently foreclosing any future contact between the adult and the child. (In re Bryan D. (2011) 199 Cal.App.4th 127, 141.) Here, the undisputed facts weigh heavily in favor of MGM’s DFP status. Moreover, while the agency argued at the 387 adjudication that MGM’s “unclean hands” deprived her of DFP status, that principle did not yet apply because, at the time of MGM’s DFP request, the court had not even adjudicated the 387 petition. (II) When the agency files a section 387 petition, the court must hold a hearing to make two findings: (A) whether the factual allegations are true; and (B) whether the allegation that the previous disposition has not been effective is true. (Cal. Rules of Court, rule 5.565(e)(1).) Moreover, a custodial relative has “standing to contest a supplemental petition…where the relative’s conduct and the removal of the minor(s) from the relative’s physical custody are at issue.” (In re Jonique W. (1994) 26 Cal.App.4th 685, 693.) However, a de facto parent has rights in addition to a custodial relative and may “participate as a full party to the contested hearing” concerning the de facto parent’s conduct. (Ibid., emphasis added.) “Although it is clear that de facto parents do not have all the substantive rights and preferences of legal parents or guardians, they have been afforded procedural rights in order to ‘assert and protect their own interest in the companionship, care, custody, and management of the child’ [citation], and to ‘ensure that all legitimate views, evidence, and interests are considered’ by the juvenile court in dependency proceedings.” (Ibid.) Here, the proceeding could hardly be characterized as a contested hearing to resolve factual disputes where the trial court refused to let MGM present evidence or argument nor allow MGM’s counsel to represent her. (ML)
ICWA—Inquiry and Notice
In re N.D. —published 3/16/2020; Second Dist., Div. Six Docket No. B300468; (2020) 46 Cal.App.5th 620 Link to case: https://www.courts.ca.gov/opinions/documents/B300468.PDF
WHEN THERE IS REASON TO BELIEVE THAT THE ICWA APPLIES, A DISPOSITION HEARING WHERE THE AGENCY IS SEEKING FOSTER CARE PLACEMENT OF MINORS SHALL NOT BE HELD UNTIL AT LEAST 10 DAYS AFTER RECEIPT OF THE ICWA NOTICE BY THE TRIBE
One-month old twins were detained from parents and placed in a foster home. At the detention hearing, the father reported he had Native American ancestry through his paternal grandmother, though he was unable to identify a specific tribe. The jurisdiction report indicated that the agency “obtained ancestry information” including names and dates of birth for father and his paternal relatives, and that father was mailed an ICWA questionnaire. The disposition report indicated that ICWA “does or may apply.” Both parents were contacted for the report and both indicated they had Native American ancestry without specifying a tribe. The recommendation was for the twins to remain in foster care. At disposition, the juvenile court removed the twins from the custody of both parents but did not rule on whether ICWA applied or if the notice requirements were met. Father appealed. Conditionally reversed. The agency has a continuing duty to inquire if the ICWA applies, and if there is reason to believe that the minor might be an Indian child the agency must “make further inquiry” into the minor’s status “as soon as practicable.” (WIC 224.2, subds. (c), (d) & (e).) The agency must send ICWA notices to any identified tribe. (WIC 224.3, subd. (a)(3) & (5).) When there is reason to know that a minor is an Indian child as described by the ICWA, and the proceeding is an “involuntary proceeding” where “foster care placement” is a possible option, the agency must comply with notice requirements, and the disposition shall not be held until at least 10 days after the receipt of ICWA notice. (25 U.S.C. § 1912(a).) When no specific tribe has been identified, the agency must at least send notice to the Bureau of Indian Affairs. ICWA notice requirements do not apply when the minors are only removed from one parent and placed with their other parent. (KH)
Substantial Detriment—WIC 366.22
M.G. v. Superior Court—published 3/16/20; Fourth Dist., Div. Three Docket No.: G058611; (2020) 46 Cal.App.5th 646 Link to case: https://www.courts.ca.gov/opinions/documents/G058611.PDF
ABSENT SUFFICIENT EVIDENCE OF SUBSTANTIAL DETRIMENT IF THE CHILDREN ARE RETURNED TO A PARENT, THE JUVENILE COURT MUST RETURN THE CHILDREN AT A STATUTORY REVIEW HEARING; MERE SPECULATION OF A LACK OF INSIGHT IS NOT ENOUGH TO ESTABLISH DETRIMENT.
A.G. and C.G. were detained due to allegations that mother abused drugs and engaged in domestic violence with father and her boyfriend, P.B., that father was incarcerated due to drug and domestic violence offenses, and that mother was neglecting the children’s medical needs. The petition was sustained, the children removed from both parents, and parents were granted reunification services. The reunification period spanned a full 18 months. During that time, both mother and father actively participated in all programs, consistently visited the children, and maintained sobriety. Mother had restraining orders protecting her from both father and P.B. Maternal aunt, the children’s caretaker, reported to CSW that mother had brought father and P.B. (separately) to some of her visits. Mother admitted on at least one occasion to bringing P.B. for 10 minutes. Parents’ therapists and service providers consistently reported positive progress by the parents and no concerns regarding their parenting or visitation with the children. During the 12-month hearing, the agency requested that services continue for parents to find adequate housing, and that parents be allowed to visit together as the restraining order had expired; all parties agreed, and the court granted this request. At the initial 18-month review hearing in June 2019, the agency recommended termination of reunification. Mother had completed most of her programs, continued to test clean, and visits were still going well. The CSW described mother’s visits as poor and said she needed to reenroll in counseling. The agency also expressed concern that mother was still in a relationship with P.B. and wanted to live with him. The restraining order between mother and P.B. had been modified to allow peaceful contact. The agency said father was compliant with services and had very positive comments from providers. For numerous reasons, the 18-month review hearing was continued many times for over a year and did not commence until July 2019. In that time, mother and father were told by the social worker they could visit together, then that permission was revoked based on incidents where the parents disagreed; on one such instance mother called the police to report father said he would not allow her to see the children. No domestic violence incidents were reported. Mother was granted some overnight visits and father had unmonitored day visits. After the start of trial in July 2019, a mistrial was declared, and the final 18-month contested hearing was not completed until October 2019—39 months after initial removal. The CSW, therapist, father, mother, and the children testified. All witnesses testified that visits were positive; father and mother testified that they received conflicting instructions from the CSW about whether they should visit together. The children testified they wanted to live with either parent, but that the maternal aunt instructed them to say they wanted to live with her. Mother’s therapist testified she had no concerns regarding mother’s parenting, that mother was not a risk to her children, that she had ended her relationship with P.B., and that it was difficult to communicate with the CSW. The CSW testified she was concerned about mother’s lack of insight. The juvenile court terminated reunification services and set a section 366.26 hearing. The court found that although mother and father had made substantial progress in their programs, there was a lack of insight by both parents and a risk that mother could again lose her sobriety because of her ongoing friendship with P.B. Mother and father filed statutory writ petitions.
Writs granted. The juvenile court erred by setting a WIC 366.26 hearing and terminating reunification services as there was no evidence supporting the court’s decision or the court’s finding of substantial risk of detriment. The underlying policy goal in dependency is family preservation. At every statutory review hearing, there is a statutory presumption that the children will be returned to parental custody. The burden is on the agency to prove by a preponderance that return would create a substantial risk of detriment to the children’s physical or emotional well-being. This is a fairly high standard; detriment does not simply mean the parent is less than ideal or that they are less capable than the foster parent or relative caregiver. Here the agency and the court failed to articulate specific reasons or evidence supporting their assessment that substantial risk of detriment existed, simply citing the parents’ alleged lack of insight. “The failure to ‘internalize’ general parenting skills is simply too vague to constitute substantial, credible evidence of detriment.” (citing Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738.) The evidence showed parents participated in and made substantive progress in their service plans and showed up early and regularly for visitation. The CSW gave the parents confusing directives regarding their visitation and interaction with each other. There was no evidence that either parent posed a risk to their children. The speculative testimony of the CSW, the CSW’s minimization of the parents’ progress, and the court’s willingness to accept the CSW’s assessment was dismaying. Likewise, there was no basis for the lengthy duration of the case well past the 18-month date. The children deserved a timely resolution of the custody issues and the parents deserved the well-earned recognition of their progress towards reunification. The juvenile court is directed to vacate the section 366.26 hearing and hold a new 18-month hearing as soon as possible. (SH)
Right to Counsel—WIC 317
In re Andrew M. —published 3/20/20; Second Dist., Div. Three Docket No.: B294704; (2020) 46 Cal.App.5th 859 Link to case: https://www.courts.ca.gov/opinions/documents/B294704.PDF
THE JUVENILE COURT MUST APPOINT COUNSEL FOR PRESUMED PARENTS WHO ARE INCARCERATED UNLESS THE PARENT KNOWINGLY AND INTELLIGENTLY WAIVES THE RIGHT TO COUNSEL
Father had custody of Andrew and his older sibling E.M. when he was arrested. The children were detained. E.M. was the subject of a prior petition and thus father already had counsel appointed on E.M.’s case. Andrew was a new baby, and this was his first detention. Since father was incarcerated, the arraignment was continued for him to be brought to court and no counsel was appointed at the initial hearing. The arraignment and jurisdictional hearings were subsequently continued many times. For each hearing, father sent in the appropriate JV-451 form waiving his appearance, but also requested counsel be appointed on his behalf six out of nine times he sent the JV-451. At the jurisdictional hearing, a year following the filing of the petition, the court still did not appoint counsel for father, found him to be a biological father, and adjudicated the petition. Father appealed.
Reversed with directions. The juvenile court erred in not appointing counsel for father and such error was not harmless. When a county agency is recommending out of home care, the juvenile court is required to appoint counsel for indigent parents (or guardians) under WIC 317 unless the parent or guardian has made a knowing and intelligent waiver of that right. The indigent parent typically has to appear and request counsel or otherwise communicate to the court their desire for counsel to be appointed. For incarcerated parents however, Penal Code section 2625 requires that the parent be present for the jurisdictional hearing and represented by counsel in order for the juvenile court to adjudicate the section 300 petition. A parent may waive their appearance at the jurisdictional hearing but must still be represented by counsel. Here, father consistently returned the JV-451 form indicating his desire to waive his appearance, but also checked the box requesting appointment of counsel six of nine times he returned the form, including on the date of actual trial in November 2018. The agency’s arguments in other cases that parents had waived their right to participate are inapposite here, as those cases involved parents who were not incarcerated. The juvenile court knew father had never been arraigned and his waiver of his appearance was not a knowing and intelligent waiver of the right to counsel. The error is not harmless because had father been appointed an attorney, he likely could have argued for presumed father status which would have afforded him different rights and obligations as a legal parent. (SH)
Denial of Reunification Services—WIC 361.5(b)(13)
In re B.E.—published 3/23/20; Fourth Dist., Div. Three Docket No. G058062 Link to case: https://www.courts.ca.gov/opinions/documents/G058062.PDF
THE WIC 361.5(b)(13) BYBASS PROVISION DOES NOT APPLY TO “PASSIVE RESISTANCE” WHERE DESPITE PARTICPATION IN COURT ORDERED DRUG TREATMENT A PARENT RELAPSES.
Mother and father had an extensive history of drug abuse, treatments, and relapses, and more than one dependency proceeding precipitated by their drug use. During the first proceeding the oldest child was declared a dependent due to the parents’ possession of heroin and methamphetamine. The parents went through substance abuse treatment and maintained sobriety for over three years; they reunified with their child. A second petition was filed regarding the eldest and middle child due to father being found under the influence of drugs and mother being found unresponsive in her vehicle due to a possible overdose. The children were removed, and the parents were again given reunification services, including substance abuse treatment; two years later they successfully reunified
with their children. Soon thereafter the parents relapsed again but while they entered a residential drug treatment program, they left the children with family friends pursuant to a safety plan. A week after successfully completing the treatment program father and mother relapsed. The third proceeding was prompted when a hypodermic needle was found under the sofa in the family home, wrapped in a blanket. When the agency inspected the home, they found the house appeared clean, well-organized, adequately furnished, and stocked with ample food. Given the parents’ past history and recent relapse, however, the agency again detained the children and filed a petition. Throughout the course of the underlying proceedings, both parents participated in all of the services recommended by the social worker. The court found the allegations to be true but denied the agency’s request to bypass reunification services pursuant to WIC 361.5 subdivision (b)(13). The agency and the children appealed, contending that the parents’ repeated relapses amount to what has come to be known as passive resistance.
Affirmed. The issue in this case concerns the meaning of the word “resisted” in section 361.5 (b)(13). This is not a case of active resistance (refusal to participate), but rather what case law has referred to as passive resistance. A line of cases previously interpreted subdivision (b)(13) to apply to passive resistance where despite participation in court ordered drug treatment the parent continues to abuse drugs or alcohol thereby demonstrating an inability to use the skills and behaviors taught in the program to maintain a sober life. Under the previous line of cases, resistance equals relapse, even if a parent only relapsed one time. If the Legislature intended “resisted” to mean relapse it would have expressly stated such or it could have simply applied a bypass where the parent was ordered to treatment in the past three years and subsequently became the subject of a new case involving drug use. What the Legislature meant by “resisted” is active resistance, not passive resistance. Resistance amounts to a demonstrated unwillingness to change. Because relapse is a normal part of recovery, it is not fruitless to offer services to a parent who genuinely made an effort to achieve sobriety but slipped up on the road to recovery. (NS)
ICWA—Inquiry; WIC 224.2(e)
In re D.S. – filed 3/18/2020; published 3/24/2020; Fourth Dist., Div. One Docket No. D076517 Link to case: https://www.courts.ca.gov/opinions/documents/D076517.PDF
AS LONG AS THE AGENCY FOLLOWS THE PROCEDURE IN SECTION 224.2(e), FURTHER INQUIRY UNDER ICWA IS PROPER AND ADEQUATE
A petition was filed on behalf of D.S., alleging that his father was deceased, his mother previously caused the death of his sibling, and his paternal aunt, who had been providing care since father’s death and was found to be a presumed mother, could no longer care for him. D.S. was placed in out of home care. The juvenile court found that the ICWA may apply because aunt indicated father may have Native American ancestry. Mother denied Native American ancestry. In its report for the jurisdiction and disposition hearing, the agency said it had reason to believe ICWA did not apply based on their inquiry. The agency spoke with the aunt, who contacted D.S.’s great grandmother, who told her that D.S.’s great-great-great-great grandmother had Sioux and Blackfeet ancestry. The aunt also reported that she and D.S.’s great grandmother had never lived on a reservation or been enrolled in a tribe, and she indicated that she did not believe D.S. was an Indian child and there was no further information. The agency’s ICWA specialist reached out to multiple Sioux and Blackfeet tribes. One tribe indicated D.S. was not a member, two agreed to check their records, one indicated formal ICWA notice was needed, and eight other tribes were unable to be reached despite multiple attempts. At the jurisdiction hearing the juvenile court found the agency made reasonable inquiry and that ICWA did not apply. The petition was sustained, and D.S. was placed in a foster home. Mother appealed.
Affirmed. Section 224.2 sets out three distinct duties regarding ICWA. First, the agency must make an initial inquiry of all persons involved with the minor whether the minor is an Indian child when first making contact with the family. (WIC 224.2, subds. (a), (b).) Second, the agency must make further inquiry if the first inquiry establishes a “reason to believe” the minor is an Indian child. (Id., subd. (e).) Third, formal ICWA notice under section 224.3 must be provided if the further inquiry results in a reason to know the minor is an Indian child. Here, the issue is whether the agency’s actions under their further inquiry were adequate. When there is reason to believe a minor might be an Indian child, the agency must interview the parents, Indian custodian, and extended family members to gather information, contact the Bureau of Indian Affairs and State Department of Social Services for assistance in obtaining names and contact information of specific tribes the minor may be affiliated with, and finally contact the identified tribes or any person reasonably expected to have information regarding the minor’s tribal membership, citizenship status, or eligibility. (WIC 224.2, subds. (e)(1), (2), (3).) The agency is to share information with the tribe to determine membership or eligibility status of the minor. Here, the agency completed an adequate further inquiry given the limited information the aunt provided and exercised due diligence to identify and work with the tribes, resulting in there being no reason to believe or know ICWA applied. (KH)
RFA; Criminal Exemption—WIC 361.4; 16519.5
In re C.P.—published 3/26/20; Fourth Dist., Div. Two Docket No.: E072671 Link to case: https://www.courts.ca.gov/opinions/documents/E072671.PDF
AN ABSOLUTE STATUTORY BAR TO PLACEMENT BECAUSE OF A CRIMINAL CONVICTION CAN BE UNCONSTITUTIONAL IF THE INDIVIDUAL HAS A PARENTAL RELATIONSHIP WITH THE CHILD.
At the time of C.P.’s detention he had been living with mother in the home of the maternal grandparents. Almost immediately the grandparents started the resource family approval (RFA) process to have C.P. placed in their care. Eventually, mother failed to reunify and moved out state. C.P. was initially placed with a foster family, but then placed in a group home under a planned permanent living arrangement. The grandparents remained involved throughout, including attending child and family team meetings for C.P. and at one point being designated the educational rights holders. Initially visits with C.P, were monitored and grandparents drove two-hours every week for the visits. The visits progressed to unmonitored and then to overnight extended visits. A criminal background check revealed that the grandfather had a 1991 misdemeanor conviction under Penal Code section 273d (willfully inflicting upon a child inhuman corporal punishment or an injury resulting in a traumatic condition), which under Health and Safety Code section 1522 prohibits exemption for a resource family applicant. Grandfather had his name removed from the Child Abuse Central Index the charge dismissed. Nevertheless, 18 months after C.P. was initially detained the agency issued grandfather a Notice of Action regarding the Criminal Record Exemption Decision stating that the grandparents’ RFA application must be denied because of grandfather’s conviction. C.P. repeatedly expressed wanting to live with his grandparents, wanting to go home, and confirming that home meant his grandparents’ house. The court appointed counsel for the grandparents to address whether grandfather’s criminal conviction precluded the court from exercising independent judgment regarding C.P.’s placement. The agency argued that placement with the grandparents without a criminal record clearance or exemption was barred by statute, the conviction was nonexemptible, and dismissal of the conviction did not render the conviction a nullity or exemptible for purposes of determining whether placement of C.P. would be permissible. The grandparents recognized that the juvenile court did not have the authority to order placement of C.P. with the grandparents, but the agency had abused its discretion in denying the grandfather’s exemption, and requested the juvenile court to order the agency to reevaluate the request. The court denied the grandparents request to be reassessed.
Reversed and remanded. The statutory scheme places an absolute bar on C.P. ever being placed with the grandparents, based solely on grandfather’s conviction and not on any individualized determination of the grandparents’ circumstances; therefore, it may violate the grandparents right to due process. Absent the absolute bar, the agency is required to consider certain factors, including the nature of the crime and whether it involved violence or a threat of violence to others. Had the agency considered the factors it is possible they could have found the grandfather’s conviction to be exemptible. Disqualifying an adult who shares a parental bond with a child from ever having the child placed in their care is
a violation of their constitutional right to due process. If the grandparents share a parental relationship with C.P., due process requires the agency to assess the grandparents’ request for a criminal records exemption on an individualized basis. The trial court is to take evidence and make factual findings about whether grandparents’ relationship with C.P. is that of a parental relationship. If a parental relationship exists, the agency is to reassess the grandparents request for a criminal records exemption on an individualized basis. (NS)
ICWA—Inquiry and Notice
In re A.M. —filed 3/5/2020; Cert. for Partial Publ. 4/2/2020; Fourth Dist., Div. Two Docket No. E073805 Link to case: https://www.courts.ca.gov/opinions/documents/E073805.PDF
VAGUE INFORMATION ABOUT POSSIBLE NATIVE AMERICAN ANCESTRY WITH NOTHING MORE IS ENOUGH TO TRIGGER THE OBLIGATION FOR FURTHER INQUIRY BUT NOT THE OBLIGATION TO NOTICE
On December 5, 2017, a petition was filed on behalf of A.M. and his sibling, J.T. Mother indicated that she was “unsure” if she had Native American ancestry but denied that either her or the minors were registered with a tribe. On mother’s ICWA-020 form she checked that she was or may be a member of an “unknown” Indian tribe, that her relatives had ancestry, and wrote “MGF” and “MGA.” The maternal grandparents were deceased. The minors were detained at the detention hearing and the juvenile court found that ICWA may apply. On December 15, 2017 the agency filed ICWA notice as to both minors. On December 29, 2017, the Bureau of Indian Affairs acknowledged receipt of the ICWA notices and indicated that insufficient information was provided to determine tribal affiliation. On December 21, 2017, mother told the agency social worker that she was told she has Blackfoot and Cherokee ancestry, was not registered, but that she planned to enroll. At the February 15, 2018 contested jurisdictional and dispositional hearing, the juvenile court found the agency had completed sufficient ICWA inquiry and that ICWA may apply. On July 10, 2018, Mother reported that she “may have Blackfoot Tribe ancestry” but was not registered. As no further information was provided, the agency recommended a finding that ICWA did not apply. On August 15, 2018, the juvenile court found ICWA did not apply. The juvenile court again found ICWA did not apply at the February 9, 2019 12-month review hearing and set a section 26 hearing. The agency reported in its 26 report that no new information was provided about Indian ancestry, and the juvenile court terminated parental rights at the September 6, 2019 26 hearing. Mother appealed.
Affirmed. There are two separate requirements to ICWA: the obligation to conduct further inquiry to determine if notice is required, and the obligation to provide notice to a tribe. Notice is only required when the court knows or has reason to know the minor is an Indian child. Under federal regulations first promulgated in 2016, there is “reason to know” a minor is an Indian child if any participant in the proceeding, officer of the court, Indian tribe, Indian organization, agency, or the minor herself informs the court that the minor is an Indian child or that they have discovered information that the minor is an Indian child, the home of the minor, their parent, or their Indian custodian is on a reservation, the minor is or has been a ward of a Tribal court, or either parent or the minor has an identification card indicating Tribal membership. (25 C.F.R. § 23.107 (c).) Prior to the federal regulations, state law stated there was a “reason to know” a minor was an Indian child if a person having interest in the minor provided information suggesting they were an Indian child. (Former WIC 224.3, subd. (b)(1).) This former provision required very little before ICWA notice was required. AB 3176 became effective January 1, 2019, and the Welfare and Institutions Code now conforms to the same definition of “reason to know.” (WIC 224.2, subd. (d).) There is an ongoing duty to inquire about Indian ancestry, and if the agency has reason to believe the minor may be an Indian child they must make further inquiry. (WIC 224.2, subd. (e).) If ICWA notice is required, the notices must include, if known, the names, birthplaces, dates of birth, and Tribal enrollment information of parents and direct lineal ancestors such as grandparents. (25 C.F.R. § 23.111(d)(3); (WIC 224.3, subd. (a)(5)(C).) In this case, the ICWA statutes changed during the course of the case. Under Isaiah W., the case is reviewed under the current ICWA statutes since mother appealed ICWA’s inapplicability underlying the termination of parental rights which took place on September 6, 2019. (Isaiah W. (2016) 1 Cal.5th 1.) Here, the information provided by mother did not rise to the level that the court had “reason to know” the minors were Indian children. Vague information or “family lore” that minors may have Indian ancestry is insufficient to require ICWA notice. The information mother provided was only sufficient to trigger the obligation of the agency to conduct further inquiry, including interviewing extended family members. The agency was unable to obtain further information, as the maternal grandparents were deceased and mother was raised in the foster care system and had no contact with biological relatives. There is no need for further inquiry if information giving a reason to believe a minor might be an Indian child has not been provided, or if those with any further information are deceased. Mother did not provide any further ICWA information when requested to do so multiple times. The agency’s ICWA inquiry was proper and complied with section 224.2. (KH)
NEW NON-DEPENDENCY CASELAW
Temporary Restraining Orders—WIC 213.5
In re L.W. —published 1/7/20; Second Dist., Div. Six Docket No. B294336; (2020) 44 Cal.App.5th 44 Link to case: https://www.courts.ca.gov/opinions/documents/B294336.PDF
ADVANCE NOTICE IS REQUIRED FOR A TEMPORARY RESTRAINING ORDER (TRO) ISSUED PURSUANT TO WIC 213.5(b)
L.W. was charged in a WIC 602 petition committing sexual battery against two minor females. Prior to adjudication, and without any prior notice to L.W. or his attorney, the juvenile court issued TROs against L.W. as to the two alleged victims pursuant to section 213.5(b), and later issued a three-year RO. L.W. appealed the issuance of the TRO that was granted without notice.
Reversed. WIC 213.5(b) states, “[a]fter a petition has been filed pursuant to Section 601 or 602 to declare a child a ward of the juvenile court, and until the time that the petition is dismissed or wardship is terminated, upon application in the manner provided by Section 527 of the Code of Civil Procedure […] the juvenile court may issue ex parte orders […] enjoining the child from contacting, threatening, stalking, or disturbing the peace of any person the court finds to be at risk from the conduct of the child, or with whom association would be detrimental to the child.” Although California Rules of Court Rule 5.630 states that a TRO may be issued without notice after consideration of all the documents in the application, the Rule cannot be interpreted to dispense with the requirements of WIC 213.5 which clearly mandates that applications must be made in the manner provided by Code of Civil Procedure (CCP) 527. CCP 527(c) in turn provides that a TRO shall not be granted without notice unless “great or irreparable injury” to the applicant would otherwise result and the applicant informed the opposing party at what time and where the application would be made or the applicant in good faith tried to do so. Here, because the sexual batteries alleged in the petition for the TRO occurred about two months prior to the request and the prosecution presented no evidence of an emergency nor made any attempt to give the appellant minor prior notice of its intent to seek a TRO, the court erred in issuing the TRO without notice. (ML)
Temporary Restraining orders—WIC 213.5
In re E.F. —published 2/13/20; Second Dist., Div. Two Docket No. B295755; (2020) 45 Cal.App.5th 216 Link to Case: https://www.courts.ca.gov/opinions/documents/B295755.PDF
ADVANCE NOTICE IS NOT REQUIRED FOR A TEMPORARY RESTRAINING ORDER (TRO) ISSUED PURSUANT TO WIC 213.5(b)
E.F. was charged with poisoning her classmate. The juvenile court entered a TRO pursuant to section 213.5(b), and, subsequently, a three-year RO., against E.F. The Minor appealed the issuance of the TRO without notice.
Affirmed and disagreed with the holding in In re L.W. that advance notice is required. The plain language of WIC 213.5(c)(1) expressly contemplates – and hence expressly authorizes — the granting of a TRO without notice. California Rules of Court, rule 5.630 states that a TRO may be issued without notice after consideration of all the documents in the application. While WIC 213.5 cross-references CCP 527, which does require advance notice, this is simply an ambiguity that must be resolved in favor of WIC 213.5’s explicit language that TROs may be issued “without notice.” TROs do not typically need advance notice because they are issued under more emergent circumstances, while longer-lasting restraining orders do need advance notice because they are typically issued under less pressing circumstances (usually because a TRO is already in place). Moreover, WIC 213.5’s plain language dispensing with advance notice requirements still affords due process as TROs are issued in advance of the RO hearing, the respondent receives notice of the application, and the respondent then has the opportunity to oppose the application at the hearing. (ML)