Read our latest dependency legal newsletter. In this issue, we review new dependency case law including In re R.F., In re Josiah T., In re S.G., and In re Scarlett V.
Due process; WIC 364
In re R.F.
Filed 10/29/2021; Cert. for publ. 11/10/2021; Fourth Dist., Div. Two Docket No. E076526; 71 Cal.App.5th 459
FATHER’S DUE PROCESS RIGHTS WERE VIOLATED WHEN THE NOTICE REQUIREMENTS OF SECTION 364 WERE CIRCUMVENTED AND JURISDICTION WAS TERMINATED WITH ANCILLARY EXIT ORDERS ISSUED PURSUANT TO A LOCAL COURT “APPROVAL PACKET” PROCESS WITH A NON-APPEARANCE REVIEW HEARING AND HE WAS NOT GIVEN PROPER NOTICE OR AN OPPORTUNITY TO BE HEARD.
In April 2020 the agency received a referral alleging drug use by father and general neglect of R.F. and L.F. by father. In June 2020 the Agency obtained a warrant detaining the children from father and filed a petition. At the detention hearing the children were detained from father, and he was ordered to have monitored visits once a week for two hours minimum, with appropriate relatives serving as the monitor. At the jurisdiction/disposition hearing in October, the agency informed the court that father was not engaged in services, and mother was engaged in programs and would finish in November. They recommended dismissing the case by “approval packet” once mother completed her family maintenance case plan. The court sustained the petition against father, removed the children from his custody, and ordered monitored visits once weekly for two hours minimum, with relatives being able to monitor. The court set a six-month review hearing. The court authorized the agency to dismiss the case with an approval packet and family law orders. On December 14, a minute order was entered for a non-appearance review hearing to “Dismiss and Discharge” and indicated that the parties’ attorneys were noticed on December 10, 2020, by email. The minute order indicated that mother had completed her programs and other current family circumstances, and that the agency recommended dismissing the case. The minute order was initialed by the juvenile court judge on January 15, 2021. On the same day, the mother was awarded sole physical and legal custody of the children, with father having monitored visitation a minimum of one time a week for two hours, every other week, supervised by a professional monitor paid for by father. Father appealed.
Reversed. The juvenile court violated father’s due process rights to notice and an opportunity to be heard by dismissing the dependency proceeding and issuing custody and visitation orders by way of an “approval packet” and nonappearance hearing. At the disposition hearing, the court set a six-month review hearing under section 364. Section 364 states that the court shall advise the parties of the hearing date and of their right to be present and represented by counsel. Also, the agency is to file a report describing the family’s circumstances at least 10 calendar days before the hearing. Only after conducting the review hearing and considering any evidence presented shall the court determine whether continued supervision is necessary. The juvenile court did not follow the statutory requirements here because it allowed the dismissal of the case with an “approval packet” and non-appearance review hearing. A parent in dependency has the due process rights to notice and an opportunity to be heard. If a noncustodial parent requests an evidentiary hearing before the court makes custody and visitation orders, then the hearing must be held. By following the local court authorized “approval packet” process, the requirements of section 364 were circumvented. Additionally, father was not provided notice of the proceedings, and so had no meaningful opportunity to be heard and request an evidentiary hearing. The only evidence of possible notice is that the attorneys were noticed by email four days prior, but there is no information as to what that notice entailed and if father ever consented to email notice. A dependency court is authorized to issue exit orders for custody and visitation when terminating jurisdiction, and those orders remain in place unless a family court modifies them by finding that there has been a significant change in circumstances and that the modification is in the best interest of the minor. Harmless error analysis applies, and it is reasonably probable that the juvenile court would not have limited father’s visitation and required a professional monitor if father had received notice of the non-appearance review hearing and had an opportunity to object and be heard on the issue of limiting his visitation. Thus, the error is prejudicial and the order terminating jurisdiction and its ancillary exit orders are reversed. (KH)
ICWA—WIC 224.2
In re Josiah T.
Published 11/8/2021; Second Dist., Div. Eight Docket No. B311213; 71 Cal.App.5th 388
THE DUTY OF FURTHER INQUIRY UNDER ICWA IS TRIGGERED BY AFFIRMATIVE STATEMENTS OF A RELATIVE THAT THE CHILD MAY HAVE INDIAN ANCESTRY EVEN IF THAT RELATIVE DECLINES TO PROVIDE ADDITIONAL INFORMATION AND LATER DENIES ANCESTRY
After Josiah’s birth, the juvenile court found there was no reason to know Josiah was an Indian child with respect to mother, based on a previous finding in Josiah’s siblings’ case, but failed to inquire as to father’s Indian ancestry. Father’s whereabouts then became unknown. Throughout the reunification period, the agency was in communication with four paternal relatives and never asked them about father’s Indian ancestry. Eighteen months after the petition was filed, a social worker asked paternal grandmother about potential Indian ancestry, and she disclosed Cherokee ancestry “through her grandmother.” The social worker did not ask any other relatives, contact the tribe, or contact the Bureau of Indian Affairs to gather more information about Josiah’s potential Cherokee tribal membership or eligibility. Seven months later, a different social worker asked paternal grandmother about her Indian ancestry, to which she denied any Indian ancestry. The social worker did not attempt to clarify the recent denial of Indian ancestry with her initial Cherokee disclosure. Additionally, the social worker did not include the initial Cherokee ancestry disclosure to the court in any report. One year later, in the permanency planning stage, the social worker only included paternal grandmother’s later statement that she did not have Indian ancestry. The juvenile court subsequently terminated parents’ parental rights as to Josiah. Mother appealed.
Conditionally reversed and remanded with instructions. Substantial evidence does not support the finding that ICWA does not apply in this case. Pursuant to section 224.2, the juvenile court and the agency have an ongoing duty to inquire if a child is an Indian child. (WIC 224.2, subd. (a).) This duty is divided into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to send ICWA notice. The agency failed to make an adequate initial inquiry into Josiah’s Indian status when the agency failed to ask available, cooperative relatives about Indian ancestry until the 18-month review hearing. Further, once paternal grandmother disclosed possible Indian ancestry, the agency failed to make an adequate further inquiry into Josiah’s possible Indian ancestry. Even though the paternal grandmother had limited information, she disclosed Cherokee ancestry “through her grandmother,” which is specific enough to create a “reason to believe” Josiah had Indian ancestry and triggered a duty of further investigation. The agency was at that point required to interview relatives, contact the Bureau of Indian Affairs, and contact the tribes for further information “as soon as practicable,” none of which was done. Even though paternal grandmother later denied having Indian ancestry, this does not absolve the agency of their duty of further inquiry; a mere change in reporting does not relieve them of their duty to investigate the agency without some “effort to clarify” the relative’s claim. Additionally, the agency violated its duty to provide ongoing updates to the court regarding its ICWA investigation when it failed to inform the court of paternal grandmother’s initial Cherokee ancestry disclosure, and only provided information about her denial of Indian ancestry in a report one year later. This was particularly egregious when the agency requested that the court make ICWA findings in the interim without providing the court with all the information regarding their investigation. (MG)
Mootness; Restraining Orders—WIC 213.5
In re S.G.
Published 11/15/21; Second Dist., Div. One Docket No. B307988; 71 Cal.App.5th 654
MOTHER’S APPEAL WAS NOT RENDERED MOOT BY THE JUVENILE COURT’S SUBSEQUENT TERMINATION OF JURISDICTION FROM WHICH 5 SHE DID NOT APPEAL, BUT THE EVIDENCE DOES NOT SUPPORT THE ISSUANCE OF A RESTRAINING ORDER
In 2011, mother and father separated. S.G. was one year old and sibling L.C. was not yet born. Between 2011 and 2019, both mother and father made allegations of physical and emotional abuse against the other parent in at least eight referrals to the child welfare agency; all were deemed unfounded or inconclusive. Both parents also made numerous allegations in family court that the other parent was unfit. Mother also filed approximately 13 requests for a temporary restraining order (“TRO”) against father in the same period. The family court granted some temporary orders, but consistently found no evidence to support a permanent order. In November 2019, mother filed another request for a TRO in family court alleging father invaded her privacy, gathered information on her movements that “terrified her,” and that he had come to her home yelling, cursing, and banging on her windows after she picked up S.G. from school sick when he could not be reached. A TRO was granted. Subsequently, dependency proceedings were initiated. The detention report included the incident alleged in the recent TRO and contained statements by mother realleging past domestic violence by father. There were also statements from S.G. corroborating the November 2019 incident and some past domestic violence perpetrated by father. The trial court denied mother’s request for a permanent restraining order, citing the long history of custody disputes, pattern of each parent calling in referrals on the other parent, and statements by the children’s family law attorney that there was no evidence supporting the parents’ allegations against each other but that there was evidence of mother coaching the children. The juvenile court also took jurisdiction over the children under section 300, subdivision (c). Mother appealed the denial of the restraining order. While the appeal was pending, the juvenile court terminated jurisdiction and granted both parents joint legal and physical custody. Mother did not appeal that order.
Affirmed. Although mother did not appeal the termination of jurisdiction, her appeal is not moot. Examinations of mootness require the reviewing court to consider, on a fact-specific basis, whether it can provide the appellant with any effective relief. Some cases have established a broad rule which states that when a juvenile court terminates jurisdiction and a party does not appeal that termination, their earlier appeals are rendered moot. This is not always the case, and this court disagrees with such a broad rule as first outlined in In re Michelle M. (1992) 8 Cal.App.4th 326, followed in several subsequent opinions, and as cited in the dissent. Code of Civil Procedure sections 43 and 906 authorize a 6 reviewing court to affirm, reverse, or modify any judgment appealed from, and to order the lower court to enter a new order or to initiate further proceedings. Thus, the order of the reviewing court, contained in the remittitur, revests the lower court with the limited jurisdiction necessary to carry out the reviewing court’s directions. Here, the order terminating jurisdiction and granting the parents joint custody does not supersede or conflict with the order denying the restraining order. Under Code of Civil Procedure sections 43 and 906, therefore, this court can provide effective relief were it to reverse the lower court’s ruling and order a restraining order to be issued. On the merits, the juvenile court did not abuse its discretion in denying the restraining order. Section 213.5 does not require a petitioner to show that a person has previously attacked or assaulted a person, it is enough to show that restrained person “disturbed the peace” of the petitioner, or that failure to grant the restraining order would jeopardize the safety of petitioner. The standard of review for a failure of proof at trial is whether the evidence is uncontroverted and unimpeached and whether it compels a finding in favor of the appellant as a matter of law. Here, the evidence was controverted. Mother and father had different accounts of the November 2019 incident and past alleged domestic violence. In addition, the juvenile court found mother less credible and that she had been coaching the children. In addition, there is a 10-year history of parents making false accusations against each other. Therefore, the evidence does not compel a finding in favor of mother. In addition, the juvenile court did not use the incorrect legal standard for evaluating restraining orders under section 213.5, but even if it had, the outcome would not have been more favorable to mother based on the facts. (SH)
SIJ Findings; Cal. Code Civ. Proc. 155
In re Scarlett V.
Published 12/8/2021; Second Dist., Div. Seven Docket No. B311089
IF SUFFICIENT EVIDENCE SUPPORTS SIJ FINDINGS UNDER CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 155, SUBDIVISION (B), THE JUVENILE COURT MUST MAKE THE REQUISITE SIJ FINDINGS—SUCH A FINDING IS MANDATORY AND NOT DISCRETIONARY.
The child was born in Honduras in 2013 and moved to the United States in 2015. Both her parents were undocumented. The family came to the attention of the 7 agency due to domestic violence between the child’s parents. The agency filed a petition under Welfare and Institutions Code section 300, subdivisions (a) and (b). In October 2019, the juvenile court sustained the petition. The child was removed from her father and released to her mother. Mother received family maintenance services and father received enhancement services. On February 8, 2021, during a section 364 review hearing, the child filed a request with the juvenile court for SIJ findings under California Code of Civil Procedure, section 155. The juvenile court denied the request, stating, “it’s discretionary and the court decided not to.” On February 17, 2021, the child renewed her request for SIJ findings, to which the court responded, “You argued it, I made my ruling. We’re not here for that.” The child timely appealed.
Reversed. Under the current law, a child is eligible for SIJ status if: (1) the child is a dependent of a juvenile court; (2) the child cannot reunify with one or both parents due to abuse, neglect, abandonment, or a similar basis found under state law; and (3) it is not in the child’s best interest to return to his or her home country or the home country of his or her parents. The Court found the child met all three criteria. The child was previously declared a dependent, the child was removed at disposition from the father due to acts of domestic violence and father’s denial that he had abused the mother, and it would not be in the child’s best interest to return to a country she had limited contact and no memory of. The juvenile court erred in believing it had discretion in making SIJ findings regardless of the evidence presented. If sufficient evidence exists, the juvenile court must make the requisite SIJ findings—it is mandatory, not discretionary. (MO)
Our newsletter is issued by the Children’s Law Center of California on the second and fourth Tuesday of each month . Written by: Stacie Hendrix (SH), Nancy Sariñana (NS), Margaret Lee (ML), Kristin Hallak (KH), Michael Ono (MO), Ann-Marissa Cook (AMC), Stanley Wu (SW), and Meghan Grim (MG)