S.D. v. Superior Court CA1/3 ( 2022 )

Filed 12/23/22 S.D. v. Superior Court CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION THREE
S.D.,
Petitioner,
v.
THE SUPERIOR COURT OF A166363
CONTRA COSTA COUNTY,
(Contra Costa County
Respondent;
Super. Ct. No. MSJ21-00052)
CONTRA COSTA COUNTY
CHILDREN AND FAMILY
SERVICES BUREAU,
Real Party in Interest.
S.D. (Father), father of minor C.D., petitions for extraordinary relief
pursuant to California Rules of Court, rule 8.452, after the juvenile court
terminated family reunification services and scheduled a Welfare and
Institutions Code1 section 366.26 permanency planning hearing. Father
contends: (1) the Contra Costa County Children and Family Services Bureau
(Bureau) failed to comply with the notice requirements of the Indian Child
Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.); and (2) the court
1 Further unspecified section references are to the Welfare and
Institutions Code.
1
abused its discretion in terminating reunification services and setting the
section 366.26 hearing. Father also requests a stay of the section 366.26
hearing until this petition is resolved. We deny the petition and request for a
stay.
FACTUAL AND PROCEDURAL BACKGROUND
On February 11, 2021, the Bureau filed a section 300 petition alleging
that then-newborn C.D. was at risk of harm in the care of his mother, B.B.
(Mother), because of her chronic and untreated substance abuse. The Bureau
alleged that Mother used heroin regularly and throughout her pregnancy;
both she and C.D. tested positive for amphetamines and opiates at the child’s
birth; and C.D. was born addicted to opioids and displayed withdrawal
symptoms. Father allegedly used methamphetamine and alcohol regularly
and made multiple unsuccessful attempts to complete substance abuse
treatment.
In its detention report, the Bureau reported that Father indicated he
had Native American ancestry. Father lacked a stable living situation and
was living on food stamps and Medi-Cal benefits. He and Mother had been
friends for years but were not in a relationship. Mother told the Bureau she
was unsure if Father would be involved in C.D.’s life.
At the detention hearing, the juvenile court ordered C.D.’s detention.
The court also found that Father was the child’s presumed father and that
“there is reason to believe” C.D. was an Indian child.
In March 2021, Father filed a Parental Notification of Indian Status
form (ICWA-020), stating he was a member of a federally recognized Indian
tribe. He listed the name of his tribe as “Arctic Slope Regional Corporation”
(ASRC) and the tribe’s location as “Barrow.” The Bureau later reported that
a social worker contacted ASRC, asking for the name of a tribal
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representative she could contact. The Bureau further reported that C.D. had
been released from the hospital and that visitation had been arranged, but
Father missed his first visit with C.D.
The jurisdiction hearing was continued several times while the Bureau
attempted to obtain more ICWA information. In its June 2021 memorandum,
the Bureau reported that Father was a stockholder in ASRC and a
descendant of a resident of the Native Village of Barrow (NVB), and that a
completed Notice of Child Custody Proceeding for Indian Child form (ICWA-
030) had been mailed to ASRC, the Iñupiat Community of the Arctic Slope
(ICAS), the California Department of Social Services Office of Tribal Affairs,
and the Bureau of Indian Affairs (BIA). According to the Bureau, it was
“clear that [C.D.] is eligible to become a stockholder in the ASRC like his
father.” The Bureau was in communication with Marie Ahsoak, Social
Service Director of ICAS, informing her of the dependency proceedings, the
date of the jurisdiction hearing, and the child’s and Father’s personal
information. Ahsoak said she would “continue to research a tribe for this
child” and provided information on how to enroll Father and the child in
ASRC. The Bureau was also in contact with Marilee Gatten, Social Services
Family Advocate for NVB, who instructed the Bureau to submit membership
applications on behalf of Father and C.D.
In its jurisdiction report, the Bureau indicated that ICWA “does or may
apply,” as Father’s maternal grandfather was from NVB; Father was a
stockholder at large in ASRC; C.D. was eligible for membership in ASRC; and
Father had requested that C.D. be enrolled in ASRC. The Bureau explained
that the NVB “handles its own ICWA cases,” and that Father was “getting
himself and [C.D.] enrolled as members of” NVB and ASRC.
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The Bureau further reported that Father “made progress in addressing
problematic aspects of his past such as substance abuse and a criminal
record,” but he had “not been able to drug test due to the time intensive
nature of his work for a moving company.” The Bureau reported that the
quality of Father’s visits with C.D. was “satisfactory” but that Father had
missed numerous visits over the review period.
The contested jurisdiction hearing was held in August 2021. Father
pleaded no contest to an amended petition, and the juvenile court sustained a
count under section 300, subdivision (b), that C.D. was at substantial risk of
harm due to Father’s chronic, untreated substance abuse. Mother did not
appear at the hearing, and the court sustained the petition’s allegations as to
her under section 300, subdivision (b). During the hearing, the court made a
telephone call to NVP family advocate Gatten and left her a message.
In October 2021, the Bureau reported that C.D. had been placed with
his paternal uncle, who was “in the process of becoming a certified Resource
Family.” C.D. was transitioning well to the new placement. Although
Father’s visits were reportedly going well, he had missed or cancelled two
visits and had not completed any drug testing. The Bureau continued to
recommend reunification services for both parents.
In November 2021, the Bureau reported Gatten had determined that
both Father and C.D. were eligible to become enrolled members of NVB. On
September 8, 2021, the Bureau submitted enrollment applications (along
with supporting documentation, such as a birth certificate and Social
Security card) on behalf of C.D. to ASRC and on behalf of C.D. and Father to
NVB. The Bureau informed Gatten of the date of the next hearing, as well as
the Bureau’s efforts to place C.D. with his paternal uncle, “who is both an
enrolled member of [NVB] and a member of ASRC.”
4
The disposition hearing took place on November 8, 2021. The parties
stipulated to the admission of a declaration from an ICWA expert. In her
declaration, ICWA expert Geni Cowan opined that it would be detrimental to
place C.D. in the custody of either parent, and that placement with the child’s
paternal uncle was a preferred placement under ICWA, “as it maintains the
Native family relations and affords the child an opportunity to be raised and
taught the ways of his indigenous heritage.” According to Cowan, the Bureau
sufficiently addressed the requirements of ICWA by “providing active efforts
and pursuing options for appropriate relative placement.”
The juvenile court found C.D. to be a person described by section 300,
subdivision (b), and adjudged him a dependent of the court. Finding by clear
and convincing evidence that C.D.’s placement with either parent would be
detrimental to the child’s safety, protection, or physical or emotional well-
being, the court ordered C.D.’s placement out of the parents’ home, with
reunification services for the parents. Father’s case plan consisted of
parenting education and random drug testing. The matter was continued for
an interim review in December 2021, and a six-month review in April 2022.
In December 2021, the Bureau reported that a Thanksgiving visit
between C.D. and Father had gone well. However, Father had four missed
drug tests, which he attributed to his work schedule. The Bureau indicated it
was attempting to accommodate Father’s work schedule by referring him for
drug tests on evenings and weekends.
In advance of the six-month review hearing, the Bureau filed a status
report recommending termination of reunification services. The report
indicated that paternal uncle had completed the “Resource Family Approval”
process, was a registered member of NVB, and was “firm in asserting his
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intention to provide the child with permanency through adoption.” C.D. was
“doing exceptionally well” in the home of paternal uncle.
Regarding ICWA, the Bureau reported that a social worker had
contacted NVB regarding the status of Father’s and C.D.’s enrollment
applications, and a response was still pending. The Bureau provided notice
of the six-month review hearing to NVB by certified mail, with return receipt
requested.
The Bureau further reported that “neither parent has made any
notable progress in addressing the issues that necessitated child welfare
intervention.” Mother had not made contact with the Bureau or participated
in any visitation with C.D., and Father had “not engaged in any services”
including submission to “substance abuse testing or enroll[ment] in parenting
classes despite receipt of a referral” from the Bureau. The Bureau had
attempted to accommodate Father’s work schedule by changing his drug
testing schedule and providing him with a referral for virtual parenting
classes in the evenings, but Father was still unable to comply with his case
plan objectives, saying he was “ ‘too tired at the end of the day to remember
to test.’ ” Father had six “quality visits” with C.D. in April and May 2021, but
several other visits were cancelled due to Father’s failure to show or inability
to confirm visits in advance. The Bureau found that despite Father’s
“contention that he desires visitation with his son to build their relationship
and demonstrate his ability to care for the child, his lack of engagement and
continuously prioritizing his work hours over his visits are inconsistent with
those assertions.”
At the six-month review hearing, the juvenile court found that “[n]otice
has been given as required by law.” The court set a contested review hearing
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for June 6, 2022. The hearing was later continued to August 11, 2022, while
Father’s tribal enrollment application was pending.
At the continued hearing on August 11, the juvenile court noted on the
record that it had received a letter from NVB indicating that C.D. was now a
registered member of the tribe. Accordingly, the court found “reason to
know” that C.D. was an Indian child. The court telephoned NVB and left a
message before ordering “[o]ut of abundance of caution” that the matter be
continued as the court awaited a response from NVB as to whether it wished
to participate. The court continued the contested review hearing to August
29, 2022. The court also directed the Bureau to send written notice of the
hearing to NVB and to include in the notice a Zoom video conferencing link so
that the tribe could participate either in person or virtually.
On August 15, 2022, the Bureau served NVB with written notice of the
contested review hearing. The notice included a Zoom link for virtual
participation. The proof of service indicated that notice was served by both
email and certified mail, with return receipt requested, to Shelley Kaleak,
Social Services Director of NVB.2 The Bureau received a signed return
receipt showing acceptance by NVB on August 23, 2022.
Meanwhile, the juvenile court continued the review hearing to October
10, 2022. The Bureau filed an updated status review report maintaining its
recommendation of termination of both parents’ services. Although Father
and C.D. had three visits that went “exceptionally well,” Father had not
engaged in any services, stating he was too tired or busy to participate in
drug testing or parenting classes. On August 16, 2022, Father agreed to
submit to an on-demand drug test on August 18, but later told the social
2 The notice was also electronically served on Daira Pico at an NVB
email address.
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worker his work schedule made him miss the test. However, the social
worker learned from Father’s employer that Father had not been employed
since July 22, 2022, which negated that claim. The employer also told the
social worker he had been willing to accommodate Father’s schedule, but
Father would often request time off at the last minute.
Given the passage of time, the review hearing scheduled for October 10,
2022, became a contested six, twelve, and eighteen-month review. At the
hearing, the Bureau informed the juvenile court that NVB acknowledged
receipt of the hearing notice but asked the Bureau not to serve notice on
Kaleak because she no longer worked for the tribe. The Bureau’s counsel
noted that at the time of the hearing, Kaleak was still listed as NVB’s
designated agent for service of process, and the tribe did not respond to a
request for the name of the person to whom future notice should be mailed.
The court found there was sufficient notice to NVB and proceeded with the
review hearing.
Father testified about his relationship with C.D. and explained that his
inconsistent visitation was due to cancellations by paternal uncle and
himself, transportation issues getting to Sacramento County where paternal
uncle lived, and bad communication. Father asked the juvenile court for
more time so he could participate in an in-patient drug treatment program.
The juvenile court adopted the Bureau’s recommendations and
terminated reunification services to both parents. The court found that the
Bureau had made active efforts to facilitate visitation, drug testing, and drug
treatment, that Father had made efforts to visit C.D. but that the visitations
were not consistent, and that it was Father’s responsibility to give sufficient
notice to his employer to request time off work. The court found beyond a
reasonable doubt that custody with either parent was likely to cause serious
8
physical or emotional damage to C.D. and set the section 366.26 hearing for
February 6, 2023.
DISCUSSION
A. ICWA Notice
“ ‘ICWA establishes minimum federal standards, both procedural and
substantive, governing the removal of Indian children from their families’
[citations], and ‘[w]hen ICWA applies, the Indian tribe has a right to
intervene in or exercise jurisdiction over the proceeding.’ ” (In re E.C. (2022)
85 Cal.App.5th 123, 138.) California has adopted various procedural and
substantive provisions of ICWA. (Id. at pp. 138–139.) Juvenile courts and
child protective agencies have “ ‘ “an affirmative and continuing duty to
inquire” whether a child for whom a section 300 petition has been filed is or
may be an Indian child.’ ” (Id. at p. 140.)3
“ ‘ICWA also imposes a duty to provide notice of the proceedings to the
pertinent Indian tribes. [Citations.] Notice enables the tribes “to determine
whether the child involved in a dependency proceeding is an Indian child
and, if so, whether to intervene in, or exercise jurisdiction over, the
matter.” ’ ” (E.C., supra, 85 Cal.App.5th at p. 140.)
Father contends the Bureau’s notice to NVB of the contested six,
twelve, and eighteen-month hearing was not ICWA-compliant because once
the Bureau learned that Kaleak no longer worked for NVB, the Bureau failed
to either serve notice on NVB’s tribal chairperson pursuant to section 224.3,
3 An “ ‘Indian child’ ” means “any unmarried person who is under age
eighteen and is either (a) a member of an Indian tribe or (b) is eligible for
membership in an Indian tribe and is the biological child of a member of an
Indian tribe.” (25 U.S.C. § 1903(4); accord, § 224.1, subd. (a).) There is no
dispute in this case that the juvenile court properly found C.D. was an Indian
child with NVB as his tribe.
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subdivision (a)(2), or seek BIA’s assistance pursuant to 25 Code of Federal
Regulations part 23.105. We are not persuaded, as Father’s reliance on these
authorities is misplaced.
Section 224.3 indicates in relevant part that, when an Indian child is
involved in an Indian Child custody proceeding as described in section 224.1,
subdivision (d)(1), notice of the proceeding must be sent by registered or
certified mail with return receipt requested and “shall be to the tribal
chairperson, unless the tribe has designated another agent for service.”
(§ 224.3, subd. (a)(1), (2).)4 Section 224.1, subdivision (d)(1), defines an
“ ‘Indian child custody proceeding’ ” as including a hearing during a juvenile
court proceeding brought under the Welfare and Institutions Code, Probate
Code, or Family Code, involving an Indian child, that may culminate in foster
care placement, termination of parental rights, preadoptive placement, or
adoptive placement.
Here, Father is challenging the notice provided for a contested six,
twelve, and eighteen-month review hearing under sections 366.21
(dependency status review hearing) and 366.22 (permanency review hearing
after continuance). Pursuant to sections 366.21 and 366.22, when a juvenile
court removes a child from the parents, the court must hold periodic review
hearings at six months, twelve months, and eighteen months. Generally
4 Notice must be sent to “[a]ll tribes of which the child may be a member
or citizen, or eligible for membership or citizenship” unless the tribe has
determined that the child is not a member or citizen or eligible for
membership or citizenship, or the juvenile court has made a determination as
to which tribe is the child’s tribe in accordance with section 224.1, after which
notice need only be sent to the Indian child’s tribe. (§ 224.3,
subd. (a)(3)(A)(i)–(ii).) Father does not challenge the juvenile court’s
determination that NVB was C.D.’s tribe for purposes of providing ICWA
notice.
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speaking, these review hearings may culminate in one of several possible
outcomes: return of the child to the parents; continued reunification services;
or termination of services and scheduling of a section 366.26 hearing.
(§§ 366.21, subds. (e)–(h), 366.22, subds. (a)–(b).) As such, a six, twelve, or
eighteen-month review hearing is not one which “may culminate in an order
for foster care placement, termination of parental rights, preadoptive
placement, or adoptive placement” for purposes of sections 224.1 and 224.3.
(§ 224.3, subds. (a) & (b).) Accordingly, section 224.3’s notice provisions did
not apply to the hearing in question.
More to the point, review hearings under sections 366.21 and 366.22
are subject to notice under a different statutory section. “For any hearing
that does not meet the definition of an Indian child custody proceeding set
forth in Section 224.1, or is not an emergency proceeding, notice to the child’s
parents, Indian custodian, and tribe shall be sent in accordance with Sections
292, 293, and 295.” (§ 224.3, subd. (g).) Section 293—which governs “notice
of the review hearings held pursuant to Section 366.21, 366.22, or 366.25”—
states in relevant part that notice must be served on a known Indian child’s
tribe by first-class mail addressed to the last known address of the person to
be noticed, by personal service, or by electronic service pursuant to section
212.5. (§ 292, subds. (a)(6), (e).) The Bureau complied with these
requirements by serving notice of the October 10, 2022, review hearing on
Kaleak, NVB’s designated agent for service, by certified mail.
Although it was revealed at the hearing that Kaleak was no longer
employed with NVB, the record is unclear whether her employment ended
before or after the date of service of the notice in question. More importantly,
there is no dispute that service of the notice resulted in actual notice to NVB
of the October 10, 2022, hearing, as it was apparently this notice that
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precipitated the communication that Kaleak no longer worked for NVB.
Thus, the Bureau complied, if not technically then substantially, with the
applicable ICWA notice provisions to give the tribe actual notice of the review
hearing. (See In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421–1422
[recognizing cases holding that technical compliance is not required where
there has been substantial compliance with ICWA notice provisions resulting
in actual notice to tribe].)
Section 224.3, subdivision (a)(2), did not require that additional notice
be given to NVB’s chairperson. As discussed, section 224.3’s notice provisions
do not apply here because a review hearing under sections 366.21 or 366.22 is
not one which may culminate in foster care placement, termination of
parental rights, preadoptive placement, or adoptive placement. (§ 224.3,
subd. (a).) But even if section 224.3 did apply, the statute, reasonably
construed, requires that notice be given to a tribe’s chairperson when the
tribe lacks a designated agent for service of process. Kaleak’s cessation of
employment with NVB at an unspecified time does not demonstrate that the
tribe lacked a designated agent for service of process at the time the notice in
question was served.5
25 Code of Federal Regulations, part 23.105, does not compel a
different conclusion. That regulation states in relevant part: “If you do not
have accurate contact information for a Tribe, or the Tribe contacted fails to
5 We also observe that notice was served electronically on Daira Pico of
NVB. We take judicial notice sua sponte (Evid. Code, §§ 452, subds. (c), (h),
459) that Pico is currently listed on BIA’s “ICWA Designated Agents Listing”
for NVB. (See https://www.bia.gov/bia/ois/dhs/icwa/agents-
listing/locations/native-village-of-barrow-inupiat-traditional-government [as
of Dec. 23, 2022].) Section 293, subdivision (e), allows for electronic service
pursuant to section 212.5, and Father does not contend that electronic service
under section 212.5 was improper in this case.
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respond to written inquiries, you should seek assistance in contacting the
Indian Tribe from the BIA local or regional office or the BIA’s Central Office
in Washington, DC.” (25 C.F.R. § 23.105(c).) In other words, the regulation
advises those who cannot make contact with a tribe to seek BIA’s assistance.
Here, the Bureau and NVB were in regular contact throughout the
dependency proceedings. Accordingly, BIA’s assistance was not necessary to
effectuate service of the hearing notice on NVB.
Father’s case authorities are likewise inapposite. In In re Nikki R.
(2003) 106 Cal.App.4th 844, the record contained “no evidence” that the child
welfare agency “made any effort to elicit information about [the child’s]
Indian heritage,” and furthermore, the information that the agency gave to
BIA and the Cherokee Nation omitted critical information. (Id. at pp. 849–
851.) In the other cases cited by Father, the child welfare agencies and the
juvenile courts similarly failed to make adequate inquiries into whether the
dependent children were Indian children. (Dwayne P. v. Superior Court
(2002) 103 Cal.App.4th 247, 257–258; In re Marinna J. (2001) 90 Cal.App.4th
731, 739.) Such lack of effort stands in sharp contrast to the situation here,
where the record discloses that the Bureau actively sought to determine that
C.D. was an Indian child, successfully arranged for C.D.’s enrollment in NVB,
and then complied with section 293 in giving NVB notice of the review
hearing.
Finally, Father contends the Bureau improperly assumed that NVB did
not want to participate in the contested review hearing and that the tribe had
sufficient information to make the decision of whether or not to intervene.
According to Father, the Bureau should have made “extra effort since the
minor was in fact a registered Indian child,” and should have given the tribe
copies of or access to all reports in the case. However, Father cites no
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supporting legal authorities and therefore forfeits these contentions. (See In
re A.C. (2017) 13 Cal.App.5th 661, 672–673 [appellate court may deem
arguments waived for failure to present supporting legal authority].)
In any event, we conclude the Bureau’s compliance with the notice
provisions of section 293 was reasonably calculated to give NVB sufficient
information and opportunity to participate in the proceedings, particularly in
light of the record as a whole. Not only did the Bureau give NVB notice of the
October 10, 2022, review hearing, but the Bureau was in regular contact with
NVB family advocate Gatten throughout the proceedings, providing her with
C.D.’s enrollment application and supporting documentation and keeping her
apprised of the status of the proceedings, including the child’s placement with
his paternal uncle—an enrolled member of NVB. Furthermore, given C.D.’s
status as a known Indian child, the Bureau will be required to give NVB
timely notice of the upcoming section 366.26 hearing (§ 224.3, subd. (a)),
which will provide NVB with another opportunity to intervene if it so desires.
For these reasons, we conclude the juvenile court did not err in
concluding that the Bureau complied with the applicable ICWA notice
provisions.
B. Request to Continue Permanency Review
Father contends the juvenile court abused its discretion in terminating
reunification services and setting a section 366.26 hearing because there was
evidence that Father had a good relationship with C.D. and that he wanted to
participate in substance abuse treatment but needed more time. We find no
abuse of discretion.
“If the child is not returned to a parent or legal guardian at the
permanency review hearing and the court determines by clear and convincing
evidence that the best interests of the child would be met by the provision of
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additional reunification services to a parent or legal guardian who is making
significant and consistent progress in a court-ordered residential substance
abuse treatment program, . . . the court may continue the case for up to six
months for a subsequent permanency review hearing, provided that the
hearing shall occur within 24 months of the date the child was originally
taken from the physical custody of his or her parent or legal guardian. The
court shall continue the case only if it finds that there is a substantial
probability that the child will be returned to the physical custody of his or her
parent or legal guardian and safely maintained in the home within the
extended period of time or that reasonable services have not been provided to
the parent or legal guardian.” (§ 366.22, subd. (b).)
By the time of the October 10, 2022, hearing, C.D. had been detained
for 20 months. Thus, assuming the statutory criteria were satisfied, the
juvenile court had discretion to continue the permanency planning hearing
and services to Father for an additional four months. (§ 366.22, subd. (b).)
However, on the record before us, the court reasonably concluded that a
further continuance was not justified. As recounted above, the record
contains substantial evidence that Father’s visitation with C.D. was not
consistent and that he did not make significant and consistent progress in
addressing his substance abuse or in attending parenting classes. The record
confirms that the Bureau made reasonable efforts to accommodate Father’s
work schedule so that he could participate in his case plan, and Father does
not contend otherwise.
Additionally, Father does not contend there was a substantial
probability that C.D. could be returned to his physical custody within the
time of the requested continuance as required under section 366.22,
subdivision (b). In order to make this determination, the juvenile court was
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“required to find” that Father consistently and regularly visited with C.D.,
that he made significant and consistent progress in resolving the problems
that led to the child’s removal, and that he demonstrated the capability and
ability to complete the objectives of Father’s substance abuse treatment plan.
(§ 366.22, subd. (b)(1)–(3).) Based on Father’s inconsistent visitation and lack
of drug testing, the court could reasonably conclude there was no substantial
probability that C.D. could be placed in Father’s physical custody if the
matter were continued for an additional four months.
For these reasons, we conclude the juvenile court did not abuse its
discretion in terminating reunification services and setting the section 366.26
hearing.
DISPOSITION
Father’s petition for extraordinary relief is denied. This opinion shall
become final immediately upon filing. (See Cal. Rules of Court, rules 8.452(i),
8.490(b)(2)(A).) Father’s request for a stay of the permanency planning
hearing is denied as moot.
FUJISAKI, J.
WE CONCUR:
TUCHER, P.J.
PETROU, J.
S.D. v. Superior Court (A166363)
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