In re D.L. CA2/2 ( 2023 )

Filed 5/17/23 In re D.L. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re D.L., a Person Coming B319995
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 20LJJP00019)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
DAVON L. et al.,
Defendants and
Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Donald A. Buddle, Jr., Judge. Conditionally
reversed with directions.
Benjamin Ekenes, under appointment by the Court of
Appeal, for Defendant and Appellant Davon L.
Maureen L. Keaney, under appointment by the Court of
Appeal, for Defendant and Appellant Sarah T.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, William D. Thetford and Stephen
Watson, Deputy County Counsel, for Plaintiff and Respondent.
******
Davon L. (father) (born September 2004) and Sarah T.
(mother) (born November 2004) separately appeal from the
juvenile court’s order terminating their parental rights to D.L.
(born December 2019) pursuant to Welfare and Institutions Code
section 366.26. The parents were both 15 years old at the time of
D.L.’s birth. Father contends that the juvenile court should have
appointed a guardian ad litem for him as a matter of law; that he
was not properly noticed for the section 366.26 hearing; that the
juvenile court erred in failing to determine if he was D.L.’s
biological or presumed father; that the juvenile court improperly
determined that he had been granted reasonable services at the
six-month review hearing; and that the Los Angeles County
Department of Children and Family Services (DCFS) failed to
conduct a sufficient initial inquiry under the Indian Child
Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and
California’s equivalent law (Welf. & Inst. Code, § 224 et seq.).1
Mother asserts no independent claim of error but contends
that if the order terminating parental rights as to father is
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise noted.
2
reversed, this court should also reverse the order terminating her
parental rights.
DCFS concedes the matter should be remanded with
direction to the juvenile court to determine if father is D.L.’s
biological father. DCFS also requests this court conditionally
affirm the order terminating parental rights and remand with
direction to the juvenile court to order DCFS to conduct a further
ICWA inquiry. We find that conditional reversal with a limited
remand to determine father’s status and comply with ICWA is
appropriate in this case.
COMBINED FACTUAL AND PROCEDURAL
BACKGROUND
The family
Father and mother were both 15 years old at the time the
proceedings commenced. Father was a prior dependent of the
juvenile court and has been incarcerated since the time of D.L.’s
birth and throughout the proceedings.
Mother too has an extensive child welfare history as a
minor. She also had a criminal history with the juvenile
delinquency court system. During these proceedings, she was on
probation for fighting and had experienced many suspensions
and school expulsions for uncontrolled anger and instances of
peer fighting. At the time of D.L.’s birth, mother was residing
with the paternal grandmother (PGM).
Petition and Detention
On December 6, 2019, DCFS received a referral alleging
mother, who had not received prenatal care, tested positive for
marijuana when she gave birth to D.L. The test results showed
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high levels of marijuana. DCFS did not then detain D.L. from
mother.
On December 12, 2019, a DCFS social worker made an
unannounced visit at PGM’s home. Mother admitted to smoking
marijuana while pregnant with D.L. and identified father as
D.L.’s biological father. Mother had been in a relationship with
father for about two years. She and father would often run away
together. Mother would run away mainly because she did not get
along with maternal grandmother (MGM).
Father was incarcerated continuously since September 19,
2019. Mother explained that father was one of four who had been
involved in seven robberies of different liquor stores. Father shot
at a cashier but did not hit him. The gun father used did not
belong to him, but law enforcement found the gun during a
search of father’s home. Father told mother he committed the
crimes so that they would have money for the baby. Mother
hoped father would come out of jail a changed person.
Mother admitted being on probation, acknowledging she
was in a fight and stole the phone of the girl that she assaulted.
Mother saw her actions were wrong and wanted to change in
order to be a positive influence for her baby. Mother was open to
services.
On December 16, 2019, a DCFS social worker met with
father at Barry J. Nidorf Juvenile Hall. Father believed he was
D.L.’s biological father. When informed that mother tested
positive for marijuana at the time of D.L.’s birth, father became
visibly upset and asked if the baby was okay. He said he would
speak with mother and make sure she was no longer using
marijuana now that she had the baby. Father appeared
comfortable talking with the social worker. He seemingly
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understood the conversation and appeared to be developmentally
on target as evidenced by his level of communication.
Father reported being charged with five armed robberies
and two attempted murders. Father said he would not be
released until after he turned 18 years old. While incarcerated,
father intended to focus on school so he could get a good job to
support D.L. when he was released. Father claimed his
relationship with mother was good, and they spoke on the phone
frequently. Mother could not visit him, however, because she was
a minor.
PGM was also interviewed and admitted she had cases
with DCFS due to past drug use. PGM also had a criminal
history. She reported being drug free for over seven years and
credited DCFS for her sobriety and current stability. Mother had
been living with PGM since mother learned she was pregnant.
PGM said she was in the process of obtaining legal guardianship
over mother. She was concerned mother would leave her home
with no real plan. The social worker asked to be informed if
mother left the home and to be kept informed about the status of
the guardianship.
A children and family team meeting (CFT meeting) was
held on January 2, 2020. Mother was unable to share
information regarding the infant’s schedule and was unaware of
any of D.L.’s developmental milestones. Mother had been
spending time with friends and leaving D.L. with PGM, who was
primarily caring for D.L. Because mother had no direct
parenting responsibility with D.L. and was desirous of “running
the streets and hanging with her friends,” the social worker
spoke with PGM about the possibility of a guardianship. PGM
was uncertain about what she needed to do or whether DCFS
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would support PGM in seeking legal guardianship. A parenting
class for both mother and PGM was suggested. Mother and PGM
were also informed of “Project Fatherhood,” a program for father
to participate in when he was released from jail.
At a second meeting on January 3, 2020, the social worker
informed mother that the case would be promoted to a family
maintenance case and it would be requested that mother drug
test. As a condition of the family maintenance arrangement,
DCFS would ask that mother and D.L. remain in the care of
PGM. However, DCFS informed mother that were D.L. to be
detained, PGM would not be approved due to her extensive
history with DCFS. Paternal aunt Monique S. was identified as a
potential placement of D.L.
On January 10, 2020, DCFS filed a section 300 petition on
behalf of D.L. The petition alleged that the child was a person
described under section 300, subdivision (b) because she was born
with a positive toxicology for marijuana; mother had a history of
substance abuse and was a current abuser of marijuana and
alcohol; and father knew or should have known of mother’s
substance abuse and failed to take action to protect the child.
DCFS attempted to notify father of the detention hearing
by telephone, but was informed father was not permitted to take
a telephone call. The custody officer that answered agreed to
provide father with the social worker’s contact information.
The detention hearing was held on January 13, 2020.
Father was not present, and the court was informed of father’s
detention at Barry J. Nidorf Juvenile Hall and was provided with
the address of the facility.
Mother was present and completed a parentage
questionnaire. Mother believed father was D.L.’s father, though
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he was not present at the child’s birth; he did not sign the birth
certificate or other paperwork naming him as D.L.’s father; he
and mother were not married or in a registered domestic
partnership at either the time of the child’s conception or birth;
and he and mother were not living together at the time of the
child’s conception and birth. Mother said father openly held
himself out as D.L.’s parent and had received the child into his
home. No paternity tests had been conducted. The parentage
form also noted that father was incarcerated at juvenile hall.
The court deferred its decision on parentage until father’s
appearance.
The court found a prima facie case for removing D.L. from
the parents’ custody, but allowed the child to remain with mother
on the condition that she reside in the home of PGM. The court
ordered monitored visits for father once he was released from
custody.
Arraignment
Father was not transported to the arraignment hearing on
January 22, 2020, so the court continued the hearing to
February 14, 2020.
Father was present at the continued arraignment hearing
and was appointed legal counsel. He also filed a JV-505
statement regarding parentage (JV-505) in which he stated his
belief that he was D.L.’s parent and requested a judgment of
parentage. The JV-505 also stated that father had told paternal
grandparents that D.L. was his child and asked the court to find
he was the presumed father. Father did not check the box
indicating that the child had lived with him for any period of
time.
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Father also filed a JV-140 notification of mailing address
that provided his juvenile number and his mailing address at
Barry J. Nidorf Juvenile Hall. The juvenile court admonished
father that if his mailing address changed it was important that
the court, his attorney, and the social worker be notified. The
court said it would be sending notices to the address on father’s
JV-140 form, and the court could proceed even if father was not
present. The court asked if father understood the court’s
admonishments regarding his address, and father responded in
the affirmative.
The court then questioned father about his JV-505, asking
if he had received D.L. into his home. Father responded in the
affirmative. Father’s attorney interjected that father had been
incarcerated since before the child was born, which father
confirmed. Father’s attorney informed the court that father had
not yet met D.L., but the child was residing in the home of PGM,
where father resided before being incarcerated. The court then
deferred a decision on parentage, noting, “Mother is not here and
we may need to just explore this in a little more detail before I
can make a definitive parentage decision.” Father’s attorney did
not object.
Father’s attorney acknowledged it was impossible for father
to care for D.L., but asked the court to release the child to father.
DCFS objected, stating that, as an alleged father, father was not
entitled to custody, and he had several felony charges, including
attempted murder pending. The juvenile court did not grant
release to father at that time.
Jurisdiction/disposition report
Father was interviewed for the jurisdiction/disposition
report and indicated he did not know that mother was using
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drugs or alcohol while pregnant. Mother found out she was
pregnant when she was approximately three months into the
pregnancy; at that time mother and father began living together.
Father was incarcerated when mother was approximately eight
months pregnant and did not know if she started using
marijuana after that.
Father reported that while in juvenile hall he was actively
in school to earn a high school diploma. He was in the ninth
grade and was hoping to graduate so that, when released, he
could seek employment to support his family. Father admitted a
lengthy criminal history. His first arrest was for grand theft
auto, and he had three separate probation violations. He was
currently serving time for five armed robbery charges and two
charges of attempted murder. He did not expect to be sentenced
for a year. Father reported to have been diagnosed with
attention deficit hyperactivity disorder and oppositional defiance
disorder and was currently taking two medications for these
conditions.
Mother acknowledged smoking marijuana both before and
after she discovered she was pregnant. Mother reported feeling
stress about being pregnant and feeling even more stress after
father was incarcerated. Mother reported not knowing it was
“bad” to smoke during pregnancy. Mother said she was living in
PGM’s home after having been kicked out of MGM’s home.
Mother smoked marijuana since the age of 13. She began
smoking to self-medicate due to a strained relationship with
MGM. After the birth of D.L., mother continued to associate with
the same friends with whom she had a history of smoking
marijuana.
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Jurisdiction/disposition hearings
DCFS sent father notices of the February 24, 2020
jurisdiction hearing to PGM’s home and the Barry J. Nidorf
Juvenile Hall. Father was present with counsel. The court
continued the hearing to February 27, 2020.
Father was not present at the February 27, 2020 hearing
but was represented by counsel. Mother entered a no-contest
plea, and the juvenile court sustained the dependency petition
with minor amendments.
The court declared D.L. a dependent of the court, removed
the child from father’s custody, and allowed her to remain with
mother with family maintenance services in place. Enhancement
services were ordered for father.
Father was ordered to submit to random or on-demand
weekly drug and alcohol testing, complete a parenting program,
and participate in individual counseling. The court ordered
monitored visitation in compliance with the rules and regulations
of father’s place of incarceration.
Mother was ordered to complete a full drug and alcohol
program with weekly random or on-demand drug and alcohol
testing, a parenting program, and to participate in individual
counseling. The child’s release to mother was conditioned on
mother residing with PGM or at another DCFS-approved
location. The court set a six month review hearing for August 27,
2020.
Section 387 petition
On May 29, 2020, DCFS filed a petition for authorization to
remove D.L. from mother’s custody. Mother had failed to show
for any drug test, nor had she enrolled in parenting or individual
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counseling. Father was unable to enroll in any of the court-
ordered programs due to his incarceration.
On April 3, 2020, a DCFS social worker had made an
unannounced visit to PGM’s home and smelled a strong odor of
marijuana. The social worker found an open container of
prescription pills lying on the counter. Mother acknowledged not
having submitted to any drug test. She also refused to provide
information regarding an unidentified male in the house.
On April 29, 2020, PGM told the social worker that mother
was frequently out of the home. Mother confirmed she was still
not participating in drug testing or services. During a meeting
on May 11, 2020, mother reported she did not like being a mother
and felt she was not able to provide appropriate care for the child.
Mother made concerning statements regarding continued drug
use and being tired of parenting. PGM also reported that mother
would leave the home for days and leave the baby. When mother
was away, PGM would be unaware of mother’s whereabouts, and
mother would not check on the baby’s welfare. Mother was not
enrolled in school or any of the court-ordered programs.
DCFS asked the juvenile court to authorize D.L.’s removal
from mother, identifying PGM as a possible placement source.
PGM was completing the resource family approval (RFA)
application process.
The juvenile court ordered DCFS to remove D.L. from
mother’s custody. D.L. was then placed with paternal aunt
Monique S.
On June 2, 2020, DCFS filed a supplemental juvenile
dependency petition pursuant to section 387, alleging mother
would leave the home for days without making an appropriate
plan for D.L.’s ongoing care and supervision and failed to
11
maintain contact with the caregiver. The petition further alleged
that mother had failed to drug test and to participate in a
substance abuse program, parenting program, or individual
counseling.
The detention hearing was held on June 5, 2020. Neither
parent was present, but both were represented by counsel. The
juvenile court made detention findings as to mother and set the
matter for a hearing.
A dependency investigator (DI), who was investigating the
section 387 allegations, interviewed PGM on July 8, 2020. PGM
confirmed mother would leave D.L. in her care for days at a time
without telling PGM where she was going. Once mother was
away for an entire week. Since D.L. had been removed, mother
no longer lived with PGM. PGM wanted to help mother but could
not take responsibility for her because most of the time she did
not know where mother was.
In an interview with a paternal uncle on July 8, 2020, the
DI was told that mother had been leaving the child with PGM for
days at a time and began staying away for up to a week without
telling anyone where she was or when she would return.
In a July 9, 2020 interview, mother admitted she had left
PGM’s home without D.L. twice but said she always remained in
contact with PGM. When informed that PGM said otherwise,
mother stated that PGM was lying. Mother admitted she was not
drug testing or participating in programs.
Paternal aunt Monique S. advised that she was willing to
adopt D.L.
On August 27, 2020, the juvenile court sustained the
section 387 petition with a minor amendment, ordering DCFS to
provide reunification services to mother and father. Father’s case
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plan required him to submit to on-demand drug tests and
complete a full drug program if any test was missed or positive,
complete a parenting program, participate in family preservation
services and individual counseling, and comply with all orders of
the criminal court and probation department. Father was
granted monitored visits.
The court set a hearing pursuant to section 366.26,
subdivision (e) for March 1, 2021.
Six-month status report and hearing
At the time of the six-month status hearing, mother was
living with MGM. Father remained incarcerated.
Paternal aunt Monique S. had not begun the RFA process,
nor had she participated in counseling or a parenting class. In
December 2020, Monique S. complained she could not live her life
because she had to care for D.L. During an unannounced visit to
Monique S.’s home on December 27, 2020, the social worker
observed marijuana and a bong inside the home, which was filled
with marijuana smoke.
On January 28, 2021, D.L. was removed from Monique S.
and placed in the home of Ms. L., who was willing to provide care
for D.L., but not on a long-term basis.
Due to father’s incarceration, he could not be referred to
random or on-demand drug or alcohol testing. On October 23,
2020, DCFS sent father referrals for parenting classes. Due to
his incarceration, father was not eligible to receive family
preservation services.
During the period of review, the social worker mailed
father monthly contact letters to which father did not contact the
social worker or otherwise respond. Father had not provided
DCFS with information regarding enrollment in, or completion
13
of, services. Father had not visited with D.L. due to his
incarceration.
Mother was not in compliance with the court-ordered case
plan and had been terminated from a drug program for lack of
cooperation and attendance.
DCFS recommended termination of family reunification
services and that a section 366.26 hearing be set.
Attached to DCFS’s report was a “Notice of Review
Hearing—Juvenile” showing notice to father of the March 1, 2021
review hearing. Also attached was a proof of service indicating
that it was mailed to father, but not the address to which it was
mailed.
Father did not attend the March 1, 2021 review hearing.
His attorney was present. The court continued the hearing to
March 17, 2021. Counsel was ordered to notice their clients of
the continued hearing date.
Father did not attend the continued review hearing but
was represented by counsel. The juvenile court found notice of
the proceedings was proper and admitted DCFS’s report into
evidence. Father offered no evidence and did not object to notice.
The child’s attorney joined with DCFS to request termination of
reunification services.
Counsel noted father had not participated in any services
and made no effort to contact DCFS despite DCFS’s efforts to
contact father. DCFS argued that there was no substantial
likelihood D.L. would be returned to either parent if the parents
were given an additional six months of services. Mother’s
attorney argued the opposite. Father’s attorney informed the
juvenile court that she had no contact with father so had no
direction from him, but objected to terminating father’s services.
14
The juvenile court found continued jurisdiction was
necessary because the conditions that justified jurisdiction still
existed. It also found that DCFS had provided reasonable
services, and both parents failed to participate regularly or make
substantial progress in their case plans. The court terminated
family reunification services and set a section 366.26 hearing for
July 15, 2021.
Writ petition
Father was mailed notice of the need to challenge the
section 366.21, subdivision (e) findings and orders by way of writ
petition. On March 18, 2021, a notice of intent to file writ
petition to challenge the termination of services and the setting of
the section 366.26 hearing was filed. Father’s court-appointed
attorney filed a letter pursuant to Glen C. v. Superior Court
(2000) 78 Cal.App.4th 570, 585.2 The proceeding was deemed a
nonoperative writ on May 13, 2021. (D.L. v. Superior Court
(May 13, 2021, B311230) [nonpub. order].)
Status reports
In July 2021, DCFS reported that D.L. remained placed
with Ms. L., with whom the child was developing a strong bond.
During visits to the home, the social worker observed the child
walking, running, and attempting to speak; she was comfortable
2 In Glen C. v. Superior Court, supra, 78 Cal.App.4th at page
585, the court held that it was a father’s burden to prove by a
preponderance of the evidence that he was a presumed father.
Because there was insufficient evidence in the record that the
father was a presumed father, he was not entitled to
reunification services. (Id. at p. 586.) Father’s extraordinary
writ challenging the juvenile court order terminating
reunification services was therefore denied.
15
in the home and the caregiver reported that she was doing well.
Adoption was identified as the permanent plan.
Father remained incarcerated, did not contact DCFS for
visits or phone calls, and had no virtual or in-person contact with
D.L.
During the reporting period, mother had in-person
monitored visits with D.L. MGM expressed interest in adopting
D.L. and was sent a letter outlining the RFA application process.
Thereafter, MGM withdrew her application. DCFS reported it
was therefore focusing on adoption by Ms. L. as D.L.’s permanent
plan.
During a July 19, 2021 CFT meeting, mother requested
that D.L. be placed with MGM. DCFS again referred MGM to
the RFA process. MGM again withdrew her application because
she did not have a valid identification card. MGM reported that
she had an appointment to get an identification card and would
resume the RFA process at that time.
For the September 17, 2021 status review hearing, DCFS
sent notice to father’s place of incarceration. Father did not
attend the review hearing. The juvenile court found notice
proper and set another review hearing for March 17, 2022.
Section 366.26 reports and hearing
DCFS’s report for the October 15, 2021 section 366.26
hearing indicated father was transferred to Dorothy Kirby Center
in Commerce, California. DCFS then personally served father
with notice of the October 15, 2021 section 366.26 hearing.
Father attended the October 15, 2021 hearing via WebEx
and was represented by counsel. Father’s counsel informed the
juvenile court that father wanted paternal great aunt, Robyn J.,
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assessed for placement. DCFS was then ordered to assess
Robyn J. for placement.
Father’s attorney did not object to notice. The juvenile
court found notice was proper and ordered DCFS to provide
notice of the next hearing. Father’s attorney asked that the
record reflect that father could appear for the continued hearing
via WebEx, which the court granted. The section 366.26 hearing
was continued to January 18, 2022.
On November 3, 2021, Robyn J. informed the court that she
was pregnant and therefore not a candidate for placement.
DCFS had no update on MGM’s RFA process. A CFT meeting
was scheduled with mother and MGM to discuss the RFA and
possible placement of the child with MGM, but mother and MGM
did not attend. In December 2021, DCFS was unable to contact
MGM’s RFA coordinator. Therefore, DCFS was unable to place
D.L. with MGM and continued to recommend adoption by Ms. L.
On January 3, 2022, DCFS mailed the parties courtesy
notice via first class mail.
Father did not attend the January 18, 2022 section 366.26
hearing but was represented by counsel. The juvenile court
found notice proper and continued the hearing to February 17,
2022.
Notice of the February 17, 2022 hearing was sent to father
at his place of incarceration. Father did not attend the hearing
but was represented by counsel. The juvenile court continued the
hearing at the request of DCFS and with the consent of all
parties to March 17, 2022.
Notice of the March 17, 2022 hearing was mailed to father
at the Dorothy Kirby Center on March 1, 2022.
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Father did not attend the March 17, 2022 hearing but was
represented by counsel, who represented to the court that father
was not present because he was incarcerated. The court found
notice proper. The court set another review hearing for
September 19, 2022, continued the section 366.26 hearing to
April 18, 2022, and ordered courtesy notice.
On April 13, 2022, DCFS sent father notice of the April 18,
2022 hearing at his place of incarceration via first class mail.
Father did not attend the April 18, 2022 section 366.26
hearing but he was represented by counsel. The court found
notice proper, and father’s attorney did not object to notice.
Father’s attorney stated, “On behalf of [father], I would ask
for a continuance. [Father] is under the age of 18 and is in
custody. . . . Typically, [father] is made available via WebEx and
is able to call into court. However, that is not the case today. I
do note that [father] might be at a different facility than he has
been previously. [¶] I have tried reaching out to his parole
officer and [have] not been able to speak to her. So I would ask
that the matter be continued briefly so that he be able to appear.”
Counsel objected to going forward with the hearing that day and
to terminating father’s parental rights. Counsel stated she had
no direction from father but did not think that she would be
asking to set it for a contest. Counsel stated that based on her
review of the case, she was not certain there was a basis for
father to set the matter for a contest.
Mother’s attorney asked the juvenile court to continue the
hearing and set it for contest, stating that, since her release from
a rehabilitation program, mother had been visiting D.L. every
Thursday for three hours. Counsel added that mother would be
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asserting the beneficial parent-child relationship exception to
termination of parental rights.
D.L.’s attorney objected to mother’s and father’s requests to
continue the hearing, noting that at the last hearing there had
been no request for father to appear at this one. Counsel also
noted that DCFS’s reports did not support mother’s claim of
consistent visits or a bond necessary to support the beneficial
parent-child relationship exception to termination of parental
rights.
DCFS also objected to mother’s and father’s requests to
continue the hearing, noting that Penal Code section 2625
entitled father to request to be transported to the hearing from
his place of incarceration; however, such a request had to be
made when the hearing was set. No prior request was made.
County counsel also noted that father was an alleged father,
which meant that he had no right to contest the section 366.26
hearing or request a continuance for the purpose of contesting
termination of parental rights. Father’s counsel did not seek to
elevate father’s paternity status or otherwise address the issue of
father’s status.
The juvenile court denied mother’s and father’s requests to
continue the hearing. D.L.’s attorney asked the court to
terminate parental rights. Mother and father objected, arguing
that legal guardianship was a more appropriate plan.
The juvenile court found that notice was proper, D.L. was
adoptable, there were no legal impediments to adoption, and no
exception to termination of parental rights applied. The court
then terminated parental rights.
On April 18, 2022, mother filed a notice of appeal. On
May 18, 2022, father filed a notice of appeal.
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DISCUSSION
I. Guardian ad litem
A. Sua sponte appointment of a guardian ad litem
was not required
Father first argues the order terminating parental rights
and all prior orders must be vacated due to the juvenile court’s
failure to sua sponte appoint a guardian ad litem for father.
Father argues that the court’s failure to appoint a guardian ad
litem rendered the proceedings fundamentally unfair.
Father relies on Code of Civil Procedure section 372. Code
of Civil Procedure section 372, subdivision (a)(1) provides
generally that “[w]hen a minor . . . is a party, that person shall
appear either by a guardian or conservator of the estate or by a
guardian ad litem appointed by the court . . . .” However,
subdivision (c) of the statute provides, in relevant part:
“Notwithstanding subdivision (a), a minor may appear in court
without a guardian ad litem in the following proceedings if the
minor is a parent of the child who is the subject of the
proceedings: [¶] . . . [¶] (B) Dependency proceedings pursuant
to Chapter 2 (commencing with Section 200) of Part 1 of Division
2 of the Welfare and Institutions Code.” However, “[i]f the court
finds that the minor parent is unable to understand the nature of
the proceedings or to assist counsel in preparing the case, the
court shall, upon its own motion . . . , appoint a guardian ad
litem.” (Code Civ. Proc., § 372, subd. (c)(2).)
Father acknowledges that subdivision (c) was added to
Code of Civil Procedure section 372 in 2008. (Stats. 2008,
ch. 181, § 1.) However, he argues that subdivision (c) of Code of
Civil Procedure section 372 did not relieve the juvenile court of
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its sua sponte duty to appoint a guardian ad litem for him.
Father contends that pursuant to subdivision (a), the court is
required to sua sponte appoint a guardian ad litem for a minor
parent, and subdivision (c) is applicable only if the minor parent
objects to the appointment of a guardian ad litem or requests to
appear without a guardian ad litem.
We disagree with father’s interpretation of Code of Civil
Procedure section 372, which would render subdivision (c)
meaningless. We cannot interpret Code of Civil Procedure
section 372 as requiring appointment of a guardian ad litem for a
minor parent in a dependency proceeding when subdivision (c)
expressly makes such appointment discretionary. (Thornburg v.
Superior Court (2006) 138 Cal.App.4th 43, 49 [canons of statutory
construction “‘generally preclude judicial construction that
renders part of the statute “meaningless or inoperative”’”].) Code
of Civil Procedure section 372, subdivision (c)(1) expressly states
that it applies “[n]otwithstanding subdivision (a).” Thus, to the
extent that subdivision (a) conflicts with subdivision (c),
subdivision (a) is inapplicable. (See Arias v. Superior Court
(2009) 46 Cal.4th 969, 983 [holding that a “notwithstanding”
clause renders provisions of law that conflict with the statute’s
provisions inapplicable].) Code of Civil Procedure section 372,
subdivision (a)’s mandate is thus inapplicable in dependency
proceedings in which a minor is a parent of the child who is the
subject of the proceedings.
Our interpretation of Code of Civil Procedure section 372,
subdivision (c) is bolstered by a similar provision found in the
Welfare and Institutions Code. Section 326.7 of the Welfare and
Institutions Code provides that “[a]ppointment of a guardian ad
litem shall not be required for a minor who is a parent of the
21
child who is the subject of the dependency petition, unless the
minor parent is unable to understand the nature of the
proceedings or to assist counsel in preparing the case.”3 An
interpretation of Code of Civil Procedure section 372 requiring a
juvenile court to appoint a guardian ad litem would create a
conflict with this provision of the Welfare and Institutions Code.
We must, “‘“where reasonably possible, harmonize statutes,
reconcile seeming inconsistencies in them, and construe them to
give force and effect to all of their provisions.”’” (State Dept. of
Public Health v. Superior Court (2015) 60 Cal.4th 940, 955.)
Therefore, contrary to father’s proposed interpretation, we
interpret Code of Civil Procedure section 372 to be consistent
with Welfare and Institutions Code section 326.7.4
Father cites several cases that predate the addition of
subdivision (c) to Code of Civil Procedure section 372 and the
enactment of Welfare and Institutions Code section 326.7. In re
James F. (2008) 42 Cal.4th 901, 904-905 (James F.) involved the
question of whether a juvenile court’s error in failing to appoint a
guardian ad litem for a minor parent was subject to a harmless
error analysis. James F. did not involve a minor parent, but
3 Section 326.7 became effective January 1, 2009. (Stats.
2008, ch. 181 § 3.)
4 Family Code section 7635, subdivision (b) also provides that
“[a]ppointment of a guardian ad litem shall not be required for a
minor who is a parent of the child who is the subject of [a]
petition to establish parental relationship, unless the minor
parent is unable to understand the nature of the proceedings or
to assist counsel in preparing the case.” Our interpretation of
Code of Civil Procedure section 372 also harmonizes with this
Family Code provision.
22
involved an incompetent parent who suffered from numerous
emotional and mental problems. (Id. at p. 905.) The juvenile
court appropriately appointed a guardian ad litem for the
incompetent father, but made the appointment without
explaining to the parent the nature and purpose of a guardian ad
litem, and without giving the parent the opportunity to be heard
in opposition to the appointment. (Id. at p. 911.) DCFS conceded
the error. (Ibid.) The James F. court concluded that “a juvenile
court’s error in the process used for appointment of a guardian ad
litem for a parent in a dependency proceeding is a form of trial
error that is amenable to harmless error analysis.” (Id. at
pp. 918-919.) The case does not suggest that appointment of a
guardian ad litem was necessary or required in this matter.
In re D.D. (2006) 144 Cal.App.4th 646, 648 (D.D.), involved
a father who was 17 years old when a dependency petition was
filed on behalf of his two-month-old child. The father did not
appear at the detention hearing or jurisdiction hearing and was
not appointed an attorney or a guardian ad litem. (Id. at p. 650.)
The jurisdiction reports indicated the father’s whereabouts were
unknown, and he was receiving government payments due to a
developmental disability. (Id. at p. 651.) During the six-month
review period, both parents were arrested and incarcerated for
probation violations. (Id. at pp. 651-652.) However, upon his
release the father appeared at a section 366.21 review hearing
and was appointed an attorney and guardian ad litem. (Id. at
p. 652.) After the juvenile court terminated reunification
services, the father appealed, arguing that the juvenile court
erred in failing to appoint a guardian ad litem or an attorney for
him at the detention or jurisdictional hearings. (Ibid.) Relying
on subdivision (a) of Code of Civil Procedure section 372, the D.D.
23
court concluded that the juvenile court had an obligation to
appoint a guardian ad litem for a minor who was a party to an
action. Despite the father’s failure to appear at the early
hearings in the matter, the D.D. court held that the proceedings
were fundamentally unfair, due to the fact that the father had
neither an attorney nor a guardian ad litem to represent him,
and vacated all findings subsequent to the detention hearing.
(D.D., at pp. 654-655.)
The amendment to Code of Civil Procedure section 372
adding subdivision (c) occurred subsequent to the D.D. decision,
as did the addition of section 326.7. Thus, the D.D. court could
not have considered it, nor did the D.D. court consider the
provision of the Family Codes discussed above. The case does not
suggest that appointment of a guardian ad litem was mandatory
in this matter under the current law.
In re M.F. (2008) 161 Cal.App.4th 673, 676 (M.F.), involved
a mother who was 14 years old when she gave birth to the minor.
The petition alleged that the mother had been subjected to
ongoing sexual abuse by her stepfather, which resulted in the
mother’s pregnancy. The child and the mother were the subjects
of two separate dependency proceedings. The mother failed to
reunify with the child. The mother was not appointed a guardian
ad litem until the section 366.26 hearing. After her parental
rights were terminated, she argued on appeal that the juvenile
court erred by failing to appoint her a guardian ad litem earlier
in the proceedings. (M.F., at p. 678.) The M.F. court agreed,
relying on Code of Civil Procedure section 372, subdivision (a).
(M.F., at p. 678.)
Rejecting mother’s argument that the error was
jurisdictional, the M.F. court performed a harmless error analysis
24
and concluded that the mother’s rights had been compromised at
key hearings as a result of the court’s failure to appoint a
guardian ad litem. (M.F., supra, 161 Cal.App.4th at pp. 680-681.)
The court thus vacated the order terminating parental rights and
all prior orders and remanded the matter to conduct a new
jurisdictional hearing. (Id. at p. 683.)
The subsequent enactment of Code of Civil Procedure
section 372, subdivision (c), as well as Welfare and Institutions
Code section 326.7, renders M.F. unpersuasive. We conclude that
the juvenile court was not required to appoint a guardian ad
litem in this matter.5
B. Father was able to understand the proceedings
Under Code of Civil Procedure section 372, subdivision (c),
and Welfare and Institutions Code section 326.7, the juvenile
court is not required to appoint a guardian ad litem unless the
juvenile court determines that the minor parent is unable to
understand the nature of the proceedings or assist counsel in
preparing the case. There was no evidence that father fell under
5 We reject father’s argument that Code of Civil Procedure
section 372, subdivision (c) violates the due process clause of the
Fourteenth Amendment to the United States Constitution, as
well as article I, section 7 of the California Constitution. Father
provides only broad arguments that the lack of a requirement to
appoint a guardian ad litem for a minor parent in every
proceeding is simply unfair. Father fails to draw parallels to
relevant case law or any decisional law suggesting that such a
law is unconstitutional. The current statutory scheme permits
appointment of a guardian ad litem if necessary, but it is not
required. Father has failed to draw our attention to any legal
authority suggesting this procedure is unconstitutional.
25
either of these two categories. In fact, the opposite appeared to
be the case.
When father was first interviewed in custody, he made
appropriate eye contact with the social worker and was
“cooperative and forthcoming.” He did not appear to be
uncomfortable communicating with the social worker and “his
answers appeared to be genuine.” The social worker noted that
“father appeared to be developmentally on target as evidenced by
his level of conversation.” Father showed appropriate concern for
mother and the baby upon learning that the baby had tested
positive for marijuana at birth.
Father’s appointed attorney did not inform the court of any
difficulty communicating with father, nor did the attorney ever
request the appointment of a guardian ad litem.
During father’s arraignment, father filed a JV-505 that
requested a judgment of parentage as well as a JV-140. The
juvenile court discussed these documents with father, who
indicated that he understood the court’s admonishments. The
court had no reason to believe father did not understand the
proceedings, thus its failure to appoint a guardian ad litem was
not error.6
II. Failure to determine father’s status as presumed or
biological father
On February 14, 2020, father filed a JV-505 requesting a
judgment of parentage. DCFS concedes that the JV-505 required
the court to determine whether father was D.L.’s biological father
and presumed parent. (Cal. Rules of Court, rule 5.635(h); In re
6 Because we have determined that the court’s failure to
appoint a guardian ad litem was not error, we decline to address
father’s arguments that such error was prejudicial.
26
Baby Boy V. (2006) 140 Cal.App.4th 1108, 1118.) DCFS further
concedes that the court’s failure to do so was error. (In re B.C.
(2012) 205 Cal.App.4th 1306, 1313.) We accept the parties’
agreement on this point and agree the juvenile court’s failure to
make a finding as to parentage was error.
DCFS further concedes that the court’s failure to determine
if father was D.L.’s biological father was prejudicial to the extent
that it deprived D.L. of the medical history of her family and any
possible determination that she was an Indian child. For all
other purposes, DCFS argues, the court’s failure to make a
finding as to father’s status was harmless error. We agree. (See
James F., supra, 42 Cal.4th at p. 918 [if the outcome of a
proceeding has not been affected by judicial error, such error is
harmless and does not require reversal].)
Setting aside issues of medical history and possible Indian
heritage, father argues that the court’s failure to determine his
parentage was prejudicial because, had father been elevated to
presumed father status, he could have requested that the child be
“placed” with him. Father argues that although he was
incarcerated, he could have arranged for D.L.’s temporary care
during his incarceration, including with PGM. Thus, father
argues, he could have avoided having D.L. removed from his
custody.
Father’s argument fails for several reasons. First, father
was treated throughout the proceedings as if he were a presumed
father. He was granted reunification services and PGM was
considered for placement. Despite father’s failure to elevate to
the status of presumed or biological father during the
proceedings, the juvenile court ordered DCFS to consider father’s
relatives for placement. When DCFS removed D.L. from
27
mother’s custody, D.L. was placed with paternal aunt Monique.
The juvenile court also accepted father’s request that the court
place D.L. with paternal great aunt Robyn J., ordering DCFS to
assess placement with this paternal relative. Robyn J. ultimately
was not able to accept the child. DCFS attempted to assist PGM
in going through the RFA process. PGM did not complete the
process, thus DCFS was not able to place the child with PGM.
Although D.L. did not find long-term placement with a paternal
relative, the lack of an official finding regarding father’s status
did not prevent the court from considering paternal relatives
requested by father.
Father argues that the child would not need to have been
removed from him because he could have arranged for the child
to stay with PGM. In making this argument, father ignores the
facts in the record showing that D.L. was initially allowed to
remain with mother in PGM’s home. However, the child was
removed from PGM’s home due to unsafe conditions. PGM was
frequently not at home, and on one unannounced visit the home
smelled of marijuana and there was an unidentified male in the
home. DCFS eventually had to remove D.L. from the home.
Thus, father’s claim of prejudice on this point is unpersuasive.
Finally, father was incarcerated before D.L.’s birth and
throughout the proceedings for five armed robberies and two
attempted murders. Father did not deny the crimes of which he
was accused. Thus, even if father had been elevated to presumed
or biological father status, the child would not have been placed
with father. Father was aware that he was not likely to be
released until after he reached the age of 18. Under the
circumstances, the juvenile court did not err in denying
placement with father and seeking permanency for the child.
28
We conclude that the juvenile court’s error in failing to
determine father’s parentage was prejudicial only to the extent
that it denied D.L. access to her family’s medical history and
potential history of Indian heritage. As explained in more detail
below, we therefore conditionally reverse the matter and remand
for a finding as to father’s parental status.
III. Reasonable services to father
Father next argues that the juvenile court erred in finding
that, at the six-month review hearing, DCFS had provided
reasonable services to father. Father argues that the record as a
whole does not contain substantial evidence from which a
reasonable trier of fact could have found that DCFS provided
father with such reasonable services.
As DCFS counters, a reasonable services finding made in
conjunction with the termination of reunification services and the
setting of a section 366.26 hearing is not appealable and must be
challenged by extraordinary writ. (§ 366.26, subd. (l); Cal. Rules
of Court, rule 8.452; In re Tabitha W. (2006) 143 Cal.App.4th 811,
815-816.) Father’s trial counsel filed a notice of intent to file writ
petition to challenge the termination of family reunification
services, but the matter was dismissed as a nonoperative writ.
(D.L. v. Superior Court (May 13, 2021, B311230) [nonpub. order].)
Father argues that the juvenile court’s failure to appoint
father a guardian ad litem impacted his ability to properly
challenge the reasonable services finding at the section 366.26
hearing. As set forth above, the juvenile court did not err in
failing to provide a guardian ad litem. We therefore reject this
argument.
Father further argues that counsel’s failure to properly
challenge the reasonable services finding via a petition for
29
extraordinary writ was the product of ineffective assistance of
counsel and therefore may be raised in this appeal. (Citing In re
S. D. (2002) 99 Cal.App.4th 1068, 1071.) Father argues that by
not raising an objection to DCFS’s reasonable services claim at
the six-month review hearing, trial counsel rendered ineffective
assistance of counsel. Father’s claim is belied by the record,
which shows that his counsel objected to the order terminating
father’s reunification services, which would have included the
reasonable services finding. Father’s trial counsel also filed the
notice of intent to file writ petition. An extraordinary writ was
filed, challenging the termination of reunification services.7
Therefore, father’s argument has no basis. Father fails to
elaborate on the reasons for his ineffective assistance claim,
therefore we decline to discuss them.
Finally, we note that any error or ineffective assistance was
not prejudicial, as father could not show that DCFS failed to
provide reasonable services. The record shows that DCFS
provided father with relevant materials and attempted to contact
him regarding reunification services. Father did not return the
social worker’s calls or letters or provide any evidence that he
7 To the extent that father believed it was ineffective
assistance of counsel for the attorney that represented him in the
writ proceeding to file a letter pursuant to Glen C. v. Superior
Court, supra, 78 Cal.App.4th 570, father’s remedy was a petition
for review in the Supreme Court. (Cal. Rules of Court, rule
8.500(a).) Father may not raise issues in this appeal that
challenge the validity of a prior appealable order. (In re
Meranda P. (1997) 56 Cal.App.4th 1143, 1151.)
30
had attempted to engage in any services.8 In addition, father
points to no evidence showing that, had he been granted an
additional six months of reunification services, the child would
have been returned to him. Father was incarcerated and
admitted that he would remain incarcerated for several years.
Continued reunification services would not have changed this.
Thus, father cannot show prejudice from the termination of his
reunification services.
Father has failed to show that his present challenge to the
reasonable services finding is proper or that prejudicial error
occurred.
IV. Notice of the continued section 366.26 hearing
Father next argues that the order terminating parental
rights must be reversed because the notice provided to father of
8 Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158,
cited by father, is distinguishable. In Robin V., the incarcerated
father wrote six letters to his social worker, who only wrote two
in response, asking the father what programs he was involved in.
In addition, the social worker never reviewed the father’s plan
with him or gave him advice on programs he could or should be
doing. The incarcerated father had requested parenting
materials, which the social worker never provided. Here, in
contrast, the social worker attempted to engage with father and
provide support, but father did not respond to the social worker.
The social worker wrote father monthly contact letters and
provided father with referrals for parenting classes. Father
never responded. The social worker attempted to reach father by
telephone, but was informed that father could not receive
telephone calls. The social worker left a return telephone
number, but father never returned the telephone call. Thus,
contrary to Robin V., there is no reason to find that reunification
services to the incarcerated parent were unreasonable.
31
the section 366.26 hearing was not reasonable, denying father his
right to due process of law.
The section 366.26 hearing was initially set for July 15,
2021. At the hearing, the juvenile court found that notice was
not adequate and continued the hearing to October 15, 2021.
DCFS personally served father a copy of the notice of the
October 15, 2021 section 366.26 hearing. At the October 15, 2021
hearing, father was present and the juvenile court found service
proper. The hearing was continued several more times. On
March 17, 2022, at the continued hearing, father was not present
but was represented by counsel. The court again continued the
section 366.26 hearing to April 18, 2022. The court ordered that
the parents be provided courtesy notice of the April 18, 2022
section 366.26 hearing.
On April 13, 2022, five days before the April 18, 2022
hearing, DCFS sent father notice of the April 18, 2022 continued
hearing via first class mail. Notice was sent to father’s then-
current place of incarceration at Dorothy Kirby Center in
Commerce, California. Father did not attend the April 18, 2022
section 366.26 hearing. However, his counsel was present.
Father claims that notice was insufficient because courtesy
notice was mailed to him on April 13, 2022, five days before the
April 18, 2022 hearing, via first class mail. Father admits that
once the court makes the initial finding that notice has been
properly given to the parent, notice of a continued section 366.26
hearing may be provided by first class mail to the last known
address of the parent. (§ 294, subd. (d).) However, father claims
that such notice was not reasonably calculated to provide him
adequate notice. Father argues that DCFS was required to give
him notice of the continued section 366.26 hearing date within a
32
reasonable time period prior to the continued hearing date.
(Citing In re Phillip F. (2000) 78 Cal.App.4th 250, 258 [notice
inadequate when mailed to mother’s former address after she had
notified the court of her new address]; In re Julian L. (1998) 67
Cal.App.4th 204, 208 [mother’s waiver of her appearance for a
permanency planning hearing did not apply to the continued
hearing].) Father points out that the United States Postal
Service Web site indicates that first class mail is delivered within
one to five business days.9 Father argues that notice via first
class mail a mere five days before the hearing, two of which fell
on a weekend, was not a reasonable period of time prior to the
hearing date, thus violating father’s right to procedural due
process of law. (U.S. Const., 14th Amend.)
Father fails to provide evidence of the date he received the
mailed notice. As the cited website indicates, the notice could
have arrived anywhere between one to five days. Under the
circumstances, absent indication from father that notice was not,
in fact, received in a timely manner, we decline to find the first
class mail service inadequate.
Father argues that the juvenile court erred in declining
father’s counsel’s request to continue the section 366.26 hearing
because DCFS did not provide father with adequate notice of the
continued hearing. First, father has not shown that notice was
inadequate under the circumstances of this case. Further, father
has failed to show that a continuance was proper under the
circumstances.
9 In support of this fact, father cites the Web site
[as of May 17,
2023], archived at .
33
A juvenile court may only grant a continuance if it is not
contrary to the best interests of the child. (§ 352, subd. (a)(1);
Cal. Rules of Court, rule 5.550(a)(1).) In addition, a juvenile
court may only grant a continuance for good cause shown and for
a period proven necessary. (§ 352, subd. (a)(2); Cal. Rules of
court, rule 5.550, subd. (a)(2).) “In considering a request for a
continuance, the court must ‘give substantial weight to a minor’s
need for prompt resolution of his or her custody status, the need
to provide children with stable environments, and the damage to
a minor of prolonged temporary placements.’” (In re J.I. (2003)
108 Cal.App.4th 903, 912, disapproved on other grounds in
Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) A
juvenile court’s denial of a request for continuance is reviewed for
abuse of discretion. (In re Karla C. (2003) 113 Cal.App.4th 166,
180.)
As set forth above, father failed to show that notice was
unreasonable. In addition, he fails to show that there was good
cause for a continuance or that such a continuance was in D.L.’s
best interest. Father’s attorney conceded at the hearing that
there did not appear to be a basis for contesting DCFS’s
recommendation to terminate parental rights. No error occurred.
V. ICWA investigation
Finally, father argues that the ICWA inquiry in this matter
was insufficient. Due to the trial court’s failure to determine
whether father was a presumed or biological father, an initial
inquiry of father’s family members was not triggered. (In re E.G.
(2009) 170 Cal.App.4th 1530, 1532-1533 [“Until biological
paternity is established, an alleged father’s claims of Indian
heritage do not trigger any ICWA notice requirement . . . .”].)
Father argues that the matter must be reversed for a
34
determination of father’s biological status and, if the court finds
father to be D.L.’s biological father, it should direct DCFS to
conduct an initial ICWA inquiry of D.L.’s known and extended
family members as required by section 224.2, subdivision (b). (In
re Baby Boy V., supra, 140 Cal.App.4th at p. 1119.)
DCFS concedes that the record reflects that not all
maternal extended family members were asked if D.L. was or
could be an Indian child and that the matter should be remanded
for further inquiry for that reason. DCFS also suggests that, if
on remand the juvenile court finds father to be D.L.’s biological
father, the further initial inquiry should include available
paternal extended family members.
A. Applicable law
ICWA and related California statutes reflect the
Legislature’s intent “to protect the best interests of Indian
children and to promote the stability and security of Indian tribes
and families by the establishment of minimum Federal standards
for the removal of Indian children from their families.” (25
U.S.C. § 1902; see In re K.R. (2018) 20 Cal.App.5th 701, 706,
fn. 3.) An “Indian child” is defined as any unmarried person
under the age of 18 who is either a member of an Indian tribe or
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); Welf.
& Inst. Code, § 224.1, subds. (a), (b).)
“Because it typically is not self-evident whether a child is
an Indian child, both federal and state law mandate certain
inquiries to be made in each case. These requirements are
sometimes collectively referred to as the duty of initial inquiry.”
(In re Benjamin M. (2021) 70 Cal.App.5th 735, 741
(Benjamin M.).) “The duty to inquire begins with the initial
35
contact, including, but not limited to, asking the party reporting
child abuse or neglect whether the party has any information
that the child may be an Indian child.” (§ 224.2, subd. (a).) The
court and child welfare department “have an affirmative and
continuing duty” to inquire whether a child for whom a petition
under section 300 may be or has been filed may be an Indian
child. (Ibid.)
Under California law, the child welfare department’s initial
duty of inquiry includes, but is not limited to, “asking the child,
parents, legal guardian, Indian custodian, extended family
members, others who have an interest in the child, and the party
reporting child abuse or neglect, whether the child is, or may be,
an Indian child and where the child, the parents, or Indian
custodian is domiciled.” (§ 224.2, subd. (b).) Under ICWA, the
term “extended family member” is “defined by the law or custom
of the Indian child’s tribe or, in the absence of such law or
custom, shall be a person who has reached the age of eighteen
and who is the Indian child’s grandparent, aunt or uncle, brother
or sister, brother-in-law or sister-in-law, niece or nephew, first or
second cousin, or stepparent.” (25 U.S.C. § 1903(2).)
The juvenile court must also inquire at each participant’s
first appearance in court whether the participant knows or has
reason to know that the child is an Indian child. (§ 224.2, subd.
(c).) In addition, the juvenile court must instruct the parties to
inform the court if they subsequently receive information that
provides reason to know the child is an Indian child. (Ibid.)
If the “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.’ ([§ 224.2], subd. (e), italics
36
added.) [I]f 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.)
B. Conditional reversal and remand
The parties agree that DCFS and the juvenile court
violated ICWA and California’s equivalent law by not asking
certain relatives about the child’s potential status as an Indian
child. The parties also agree that the juvenile court failed to
determine father’s status as a biological parent. Because we have
determined that the error in determining father’s status is
prejudicial only as to the ICWA issue, we address the two
together.
The California Supreme Court is currently reviewing
several opinions of the Court of Appeal addressing how prejudice
should be addressed where, as here, there is ICWA initial inquiry
error. Under the test we use for assessing prejudice, which is set
forth in In re Dezi C. (2022) 79 Cal.App.5th 769, 774, review
granted, Sept. 21, 2022, S275578 (Dezi C.), the parents have not
carried their burden of showing that “the record contains
information suggesting a reason to believe that the child[] at
issue may be [an] ‘Indian child.’” Were there no agreement as to
ICWA error and request for a remand, we would apply Dezi C.
and affirm the order terminating parental rights.
37
In our view, however, the parties’ agreement and request
alters the calculus. We are not required to accept the parties’
agreement on this issue. (E.g., People v. Alvarado (1982) 133
Cal.App.3d 1003, 1021.) Instead, we must ask: Is it appropriate
to accede to the parties’ request for a remand?
We conclude that the answer is “yes.” Although DCFS
requests a conditional affirmance, we believe that what they
seek, functionally, is a conditional reversal for the limited
purpose of determining father’s status and allowing DCFS to
satisfy its duty of initial inquiry under ICWA and thereby to
eliminate the ICWA “error” that the parties (and we) believe
exists. We recognize that the Courts of Appeal are deeply split on
whether to conditionally affirm or conditionally reverse in cases
where there is no stipulation (compare, e.g., In re J.K. (2022) 83
Cal.App.5th 498 [conditionally affirming] and In re Rylei S.
(2022) 81 Cal.App.5th 309 [same] with, e.g., In re D.B. (2022) 87
Cal.App.5th 239 [conditionally reversing] and In re E.V. (2022) 80
Cal.App.5th 691 [same]), but conclude that the functional effect of
what we are doing should control in cases where the parties are
agreeing to a limited remand following an order terminating
parental rights. (In re A.C. (2022) 86 Cal.App.5th 130 [accepting
stipulation, but issuing disposition as conditional reversal]; In re
Veronica G. (2007) 157 Cal.App.4th 179, 187.)
Our Legislature has defined for us when it is appropriate
for an appellate court to accede to the parties’ request to “reverse
or vacate a duly entered judgment upon an agreement or
stipulation of the parties”; specifically, we may do so only if we
find (1) “[t]here is no reasonable possibility that the interests of
nonparties or the public will be adversely affected by the
reversal,” and (2) “[t]he reasons of the parties for requesting
38
reversal outweigh the erosion of public trust that may result from
the nullification of a judgment and the risk that the availability
of stipulated reversal will reduce the incentive for pretrial
settlement.” (Code Civ. Proc., § 128, subd. (a)(8).)
Under these standards, conditional reversal with a limited
remand to determine father’s status and comply with ICWA is
appropriate in this case. The reasons for the remand request is a
practical one: It is not clear at this time what the test is for
assessing “prejudice” in cases where DCFS has not complied with
its ICWA duty of initial inquiry; the error in this case would be
prejudicial under some tests and not prejudicial under others; the
California Supreme Court is not likely to resolve this issue for
months, if not years; there is the possibility that a ruling by this
court affirming the termination of parental rights (due to absence
of “prejudice” from the ICWA error under the Dezi C. test) might
be undone months, if not years, from now when the Supreme
Court defines the proper test for “prejudice”; it is undisputed
that, in dependency proceedings “involv[ing] the well-being of
children,” “considerations such as permanency and stability are
of paramount importance” (In re S.B. (2004) 32 Cal.4th 1287,
1293, superseded by statute as stated in In re M.R. (2005) 132
Cal.App.4th 269, 273); and these considerations of permanency
and stability are better served by a remand to eliminate any
ICWA error now (and thereby to ensure that the order
terminating parental rights can be final sooner rather than later)
rather than rejecting remand and affirming (which leaves open
the possibility that the ICWA issue—and, depending on the
outcome of that issue, the entire case—will be re-opened months,
if not years, down the line). Given these considerations, there is
“no reasonable possibility” that the interests of the nonparties
39
(namely, the prospective adoptive parents and the Indian tribes)
“will be adversely affected by the reversal” because those
nonparties will benefit by the stability imparted by resolving the
ICWA issue now instead of at some point in the future. And the
permanency and stability imparted by a remand to resolve the
ICWA issue now also “outweigh[s] the erosion of public trust”
that arises from conditionally reversing the order terminating
parental rights. Indeed, the remand in this case enhances the
public trust by ensuring compliance with ICWA. We therefore
conditionally reverse the April 18, 2022 order terminating
parental rights, with specific directions to the trial court as set
forth below.
VI. Mother’s appeal
Mother makes no independent claim of error regarding the
order terminating her parental rights. However, she argues that
should this court reverse the order terminating father’s parental
rights, it should also reverse the order terminating her parental
rights. (Cal. Rules of Court, rule 5.725(f); In re Vincent S. (2001)
92 Cal.App.4th 1090, 1093; In re DeJohn B. (2000) 84
Cal.App.4th 100, 102.) DCFS does not oppose mother’s request.
DISPOSITION
It is ordered that the juvenile court’s April 18, 2022 order
terminating parental rights is hereby conditionally reversed. The
matter is remanded to the juvenile court with the following
directions:
1. The court shall determine father’s parental status;
2. DCFS shall make efforts to interview all available
extended family members regarding whether D.L. is or may be an
Indian child; including the extended family members on father’s
40
side if father is elevated to a status that qualifies for such
inquiry;
3. At a noticed hearing, with counsel for the parties
reappointed, the juvenile court shall make a finding regarding
ICWA’s applicability, determine whether DCFS has interviewed
all available extended family members, and proceed according to
sections 224.2 and 224.3, including, if required, ordering DCFS to
send notices with the above information to any appropriate tribes
in accordance with ICWA;
4. If based on the responses from the extended family
members the court finds there is no reason to believe D.L. is an
Indian child, or if no tribe or agency determines D.L. is an Indian
child after notice has been provided pursuant to ICWA, the order
terminating parental rights shall remain the order of the court.
If notices are sent and after the juvenile court receives responses
from the noticed tribes, it shall proceed in accordance with ICWA
if any tribe determines D.L. is an Indian child.
___________________________
CHAVEZ, J.
I concur:
_______________________________
HOFFSTADT, J.
41
In re D.L., B319995
ASHMANN-GERST, Acting P. J., Concurring in the Judgment.
I agree with the majority that this matter must be
conditionally reversed and remanded for compliance with the
Indian Child Welfare Act (ICWA), but I write separately to clarify
the basis for my opinion. As the majority notes, the juvenile
court’s failure to determine Devon L.’s (father) parentage status
was prejudicial “to the extent that it denied D.L. access to her
. . . potential history of Indian heritage.” (Maj. Opn., at p. 29; see
also id. at p. 37 [“we have determined that the error in
determining father’s status is prejudicial . . . as to the ICWA
issue”].) Despite finding the juvenile court’s order prejudicial, the
majority does not seem to reverse on that ground. Rather, they
find the parties’ agreement to be determinative. (Maj. Opn., at
p. 37 [“Were there no agreement as to ICWA error and request
for a remand, we would apply [In re Dezi C. (2022)
79 Cal.App.5th 769, review granted September 21, 2022,
S275578] and affirm the order terminating parental rights”].)
I agree with my colleagues to the extent they conclude that
the juvenile court’s failure to determine father’s parentage status
constitutes prejudicial ICWA error, under any standard of
prejudice.1 In my opinion, that finding alone compels reversal.
1 Numerous appellate courts have weighed in on the
consequence, in an appeal from an order terminating parental
rights, of a social services agency’s failure to conduct the required
initial ICWA inquiry. This has resulted in “a continuum of tests
for prejudice stemming from error in following California statutes
implementing ICWA.” (In re A.C. (2022) 75 Cal.App.5th 1009,
1011; see also In re Dezi C., supra, 79 Cal.App.5th at pp. 777–
778.)
(Cal. Const., art. VI, § 13; In re J.R. (2022) 82 Cal.App.5th 526,
531.) There is no reason to resort to the parties’ agreement that
the matter be conditionally reversed and remanded.
__________________________, Acting P. J.
ASHMANN-GERST
2