In re F.V. CA3 ( 2022 )

Filed 8/3/22 In re F.V. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
In re F.V. et al., Persons Coming Under the Juvenile C095017
Court Law.
SAN JOAQUIN COUNTY HUMAN SERVICES (Super. Ct. No. STK-JD-DP-
AGENCY, 2021-0000070)
Plaintiff and Respondent,
v.
C.V.,
Defendant and Appellant.
C.V. (mother) appeals from the juvenile court’s dispositional findings and orders.
(Welf. & Inst. Code, § 395.)1 She contends the San Joaquin County Human Services
Agency (Agency) and the juvenile court failed to comply with the inquiry requirements
1 Undesignated statutory references are to the Welfare and Institutions Code.
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of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) because the Agency
did not contact extended family members to inquire about the ICWA. She further
contends the juvenile court lacked jurisdiction to condition modification of its visitation
order concerning the minor, F.V.,2 upon mother’s completion of substance abuse
treatment and counseling.
We conclude that the ICWA issue is premature, and the juvenile court did not err
in its visitation order. Accordingly, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because the issues on appeal are limited, we dispense with a detailed recitation of
the underlying facts and procedure.
On February 22, 2021, the Agency filed a section 300 petition on behalf of the
minors F.V. (born October 2011) and M.N. (born September 2015) alleging the minors
came within the provision of section 300, subdivision (b), failure to protect;
subdivision (c), serious emotional damage; and subdivision (g), no provision for support.
In the detention report, the social worker reported that there was no reason to believe F.V.
was an Indian child as defined by the ICWA because both mother and F.V.’s father,
A.V., stated there was no Native American ancestry in their respective families. As to
M.N., the social worker reported that M.N.’s father, J.N., reported possible Native
American ancestry through his paternal line. The social worker reported that father J.N.
completed an ICWA-010 form, and an ICWA-030 form would be completed after the
petition was filed.
At the February 23, 2021, detention hearing, the juvenile court found A.V. was the
presumed father of F.V., and J.N. was the alleged father of M.N., pending paternity
testing. The court then ordered the minors detained in protective custody. The court
2 The minor is referred to as both F.V. and F.F. in the record. We will use F.V.
throughout this opinion for consistency.
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inquired and advised mother and father of F.V. about the Native American heritage
requirements and directed them to complete the ICWA-020 forms. The court then
directed the Agency to arrange visitation for mother and A.V. The court subsequently
found J.N. was the biological father of M.N. and directed the Agency to arrange
visitation. At the jurisdictional hearing on March 9, 2021, the parties submitted on the
petition, which was amended in court. The court directed the Agency to place F.V. with
A.V. on an in-home visit. At the continued jurisdiction hearing on May 11, 2021, the
court found the allegations of the petition true as to mother and took jurisdiction over the
minors.
On March 10, 2021, ICWA-020 forms completed by A.V. and mother were filed
with the juvenile court, stating that they each had no Native American ancestry. The
Agency’s jurisdiction report again stated that J.N. told the social worker about possible
Navajo ancestry through his paternal line. But on June 3, 2021, the Agency filed the
ICWA-020 form completed by J.N. in which he indicated he had no Native American
ancestry.
On July 16, 2021, the Agency filed a disposition report, reporting that there was
no reason to know the minors were Indian children within the meaning of the ICWA,
based on the parents’ signed ICWA-020 forms. The Agency’s report did not list any
further efforts to contact relatives about any possible Native American heritage. The
report showed that F.V. was placed with her father, A.V., on March 9, 2021. The Agency
noted that A.V. was the nonoffending parent and recommended dismissal of the juvenile
court’s jurisdiction over F.V. The Agency recommended that full physical custody of the
minor be awarded to A.V. with supervised visitation to mother with the minor and joint
legal custody, as outlined in the attached proposed custody orders. The report showed
that M.N. was placed with the paternal grandmother, who was willing to take legal
guardianship, but was not willing to adopt the minor should reunification fail, and the
Agency submitted a family finding referral for M.N.
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The disposition report showed that mother was offered a reunification case plan
that consisted of substance abuse treatment, compliance with court orders, obtaining
stable housing, parenting education classes, and individual counseling. Mother’s
therapist reported concerns, after the initial intake session, that mother appeared to still be
using drugs. The therapist did not believe mother was ready to participate in therapy and
was concerned that mother continued to maintain a relationship that included domestic
violence. The report showed that, despite referrals to services, mother was not
consistently engaging in those services.
At the August 24, 2021, dispositional hearing, the parties discussed mother’s
visitation with F.V., since the Agency recommended terminating jurisdiction and issuing
custody orders for that minor. Counsel for father A.V. requested supervised visitation
occur once a week because the minor did not want to visit with mother and because
mother did not engage in services. Mother opposed the weekly visitation schedule
proposed by father A.V. and noted that she spoke with F.V. on the phone “pretty often.”
The minor’s counsel confirmed that F.V. did not want to visit with mother. Because the
recommendation was to dismiss F.V. from the dependency proceeding, it was suggested
that the court allow F.V. to visit with mother during one of M.N.’s scheduled supervised
visits. None of the parties objected to the dismissal of F.V. from the dependency
proceeding. The court adopted the Agency’s proposed findings and orders as outlined in
the disposition report, which included the custody orders attached to the report. The
court ordered physical and primary custody of F.V. to father A.V. and joint legal custody
of the minor to both mother and A.V., dismissing the minor from the dependency. In
order to facilitate supervision of mother’s visits with F.V., the court ordered that visits
between F.V. and mother occur weekly during mother’s supervised visit with M.N. The
order provides, “Mother’s visits will remain supervised/ or monitored until she provides
proof of successful completion of: [a substance abuse] treatment program and 20 weeks
of individual counseling.”
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At the September 1, 2021, placement hearing, the juvenile court was informed that
the paternal grandmother was not cooperating with having M.N. assessed for services and
transporting the minor to visits. The court was informed that paternal grandmother said
that she was no longer able to provide care for the minor. After explanation of the court’s
expectations, the court acknowledged the paternal grandmother’s misunderstanding as to
her role in the dependency and continued M.N. in that placement. The court made no
findings related to the ICWA.
Mother timely appealed.
DISCUSSION
I
ICWA Inquiry
Mother contends that the dispositional order must be reversed due to
noncompliance with the inquiry and notice requirements of the ICWA despite a reason to
believe the minor, M.N., was an Indian child based on the initial representation of the
minor’s father, J.N., that he may have Native American ancestry. The Agency contends
that any error in its failure to inquire among relatives about possible Native American
ancestry was harmless because the minor was placed with the paternal grandmother. As
we shall explain, the ICWA issue is premature and we will affirm the dispositional order.
“The ICWA protects the interests of Indian children and promotes the stability and
security of Indian tribes by establishing minimum standards for removal of Indian
children from their families, and by permitting tribal participation in dependency
proceedings. (See 25 U.S.C. § 1902; In re Levi U. (2000) 78 Cal.App.4th 191, 195-196.)
A major purpose of the ICWA is to protect ‘Indian children who are members of or are
eligible for membership in an Indian tribe.’ (25 U.S.C. § 1901(3).)” (In re A.W. (2019)
38 Cal.App.5th 655, 662.) The ICWA defines an “ ‘Indian child’ ” as a child who “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).) The
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juvenile court and the Agency have an affirmative and continuing duty, beginning at
initial contact, to inquire whether a child who is subject to the proceedings is, or may be,
an Indian child. (Cal. Rules of Court, rule 5.481(a); § 224.2, subd. (a).)
Section 224.2, subdivision (e) provides that if the court or social worker has
reason to believe that an Indian child is involved in a proceeding, the court or social
worker shall, as soon as practicable, make further inquiry regarding the possible Indian
status of the child. As relevant here, further inquiry includes interviewing the parents,
Indian custodian, and extended family members to gather the information required in
paragraph (5) of subdivision (a) of Section 224.3.3 (§ 224.2, subd. (e).)
“[S]ection 224.2 creates three distinct duties regarding ICWA in dependency
proceedings. First, from the Agency’s initial contact with a minor and his [or her] family,
the statute imposes a duty of inquiry to ask all involved persons whether the child may be
an Indian child. (§ 224.2, subds. (a), (b).) Second, if that initial inquiry creates a ‘reason
to believe’ the child is an Indian child, then the Agency ‘shall make further inquiry
regarding the possible Indian status of the child, and shall make that inquiry as soon as
practicable.’ (Id., subd. (e), italics added.) Third, if that further inquiry results in a
reason to know the child is an Indian child, then the formal notice requirements of
section 224.3 apply. (See § 224.2, subd. (c) [court is obligated to inquire at the first
appearance whether anyone ‘knows or has reason to know that the child is an Indian
child’]; id., subd. (d) [defining circumstances that establish a ‘reason to know’ a child is
an Indian child]; § 224.3 [ICWA notice is required if there is a ‘reason to know’ a child is
an Indian child as defined under § 224.2, subd. (d)].)” (In re D.S. (2020) 46 Cal.App.5th
1041, 1052.) “The juvenile court must determine whether proper notice was given under
3 Section 224.3, subdivision (a)(5) includes the name, birth date, and birthplace of the
Indian child, if known; the name of the Indian tribe; and the names and other identifying
information of the Indian child’s biological parents, grandparents, and great-
grandparents, if known.
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ICWA and whether ICWA applies to the proceedings.” (In re E.W. (2009)
170 Cal.App.4th 396, 403.)
Here, father J.N. initially indicated to the social worker that he may have Indian
ancestry. Several months later, father J.N. completed an ICWA-020 form stating he had
no Native American ancestry. There is no indication in any of the Agency’s reports that
the Agency undertook any further ICWA inquiry of known relatives. However, because
the juvenile court made no ICWA ruling at or before the challenged dispositional hearing
as to whether the ICWA applied to the proceedings, mother’s ICWA claim is premature.
That is, the ICWA issues are not ripe for review.
“ ‘Ripeness’ refers to the requirements of a current controversy.” (City of Santa
Monica v. Stewart (2005) 126 Cal.App.4th 43, 59.) An issue is not ripe for review unless
and until it is “sufficiently concrete to allow judicial resolution even in the absence of a
precise factual context.” (Pacific Legal Foundation v. California Coastal Com. (1982)
33 Cal.3d 158, 170; see id. at pp. 170-172.) Mother contends that because the juvenile
court ordered M.N.’s removal at disposition without finding “ ‘active efforts’ ” to prevent
removal had been made, the disposition order is necessarily premised on an implied
finding that the ICWA did not apply. But she cites no authority to support her position.
We decline mother’s invitation to assess the adequacy of the ICWA inquiry and noticing
process because the minor’s dependency case is ongoing. Any perceived deficiencies
with the ICWA inquiry and noticing may still be resolved during the normal course of the
dependency proceedings. (See, e.g., In re M.R. (2017) 7 Cal.App.5th 886, 904 [the
ICWA claim was premature where no final ICWA ruling made at dispositional hearing].)
Although this issue is not yet ripe, we note that the Agency and juvenile court should
ensure that the ICWA inquiry is properly completed and the required findings are made
as the case advances.
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II
Visitation Order
Mother contends the juvenile court lacked jurisdiction to issue an order dismissing
the minor, F.V., from the dependency but requiring mother to complete a substance abuse
treatment program and individual counseling before visitation would be unsupervised.
Specifically, she contends “[t]he juvenile court lacked jurisdiction to condition the family
court’s ability to modify its custody or visitation order on mother’s completion of
services.” We disagree with mother’s characterization of the order.
In crafting an exit order at the termination of dependency proceedings, a juvenile
court may issue custody and visitation orders (§ 362.4, subd. (a)), as well as collateral
orders regarding such things as counseling or parenting classes that the juvenile court
determines, in its broad discretion, would serve the child’s interest. (In re Chantal S.
(1996) 13 Cal.4th 196, 204; In re Cole Y. (2015) 233 Cal.App.4th 1444, 1456 (Cole Y.).)
The family court enforces such orders following the termination of juvenile court
jurisdiction. (See § 362.4, subds. (a) & (b).) But the family court has authority under
section 302, subdivision (d) to modify or terminate such juvenile court orders, if “the
[family] court finds . . . there has been a significant change of circumstances since the
juvenile court issued the order and modification of the order is in the best interests of the
child.” (§ 302, subd. (d).)
Mother cites Cole Y. for the proposition that a juvenile court does not have
authority to limit the family court’s ability to modify such an order, contending that the
order in this case is comparable. But in Cole Y. the juvenile court order expressly
conditioned the family court’s ability to modify the juvenile court’s custody and
visitation order on the parent completing counseling. (Cole Y., supra, 233 Cal.App.4th at
p. 1451 [juvenile court order on review provided that “ ‘in order to modify the [juvenile]
court’s orders, . . . [the] Father will have to complete . . . a full drug program with weekly
testing, a parenting program and individual counseling’ ”].) In contrast, the custody order
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here does not explicitly limit the family court’s modification of the order. The order
provides, “Mother’s visits will remain supervised/ or monitored until she provides proof
of successful completion of: [a substance abuse] treatment program and 20 weeks of
individual counseling.” Contrary to mother’s characterization of the order, the order
cannot be construed as placing a condition or limitation on the family court’s authority to
modify it. Mother remains free to seek a modification of the order based on “a
significant change of circumstances” that is in F.V.’s best interests. (§ 302, subd. (d).)
Thus, the family court remains free to modify or terminate the exit order based on its own
findings of changed circumstances and the child’s best interest. (See Heidi S. v. David H.
(2016) 1 Cal.App.5th 1150, 1164.) Nothing in the order expressly prohibits or limits
these paths to modification. Accordingly, we reject mother’s contention.
DISPOSITION
The orders of the juvenile court are affirmed.
/s/
HOCH, J.
We concur:
/s/
HULL, Acting P. J.
/s/
DUARTE, J.
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