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In Re A.L., A Person Coming Under the Juvenile Court Law. v. M.L.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR


December 22, 2010

IN RE A.L., A PERSON COMING UNDER THE JUVENILE COURT LAW.
SONOMA COUNTY HUMAN SERVICES DEPARTMENT, PLAINTIFF AND RESPONDENT,
v.
M.L., ET AL. DEFENDANTS AND APPELLANTS.

Sonoma County Super. Ct. No. 27675J

The opinion of the court was delivered by: Rivera, J.

In re A.L. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A.L. (Minor) and his mother M.L. (Mother) appeal orders voluntarily committing Minor to a locked psychiatric hospital facility and restricting Mother's right to control Minor's psychotropic medications. Mother and Minor contend on appeal that the Sonoma County Human Services Department (the Department) failed to comply with the requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). Minor also contends he was not afforded the appropriate procedural protections to ensure his commitment was voluntary. We shall affirm the orders.

I. BACKGROUND

Minor is now 17 years old. A petition pursuant to Welfare and Institutions Code*fn1 section 300 was filed in March 2004, alleging that Minor, then 11 years old, had been diagnosed with major depressive disorder, posttraumatic stress disorder, obsessive compulsive disorder, Tourette's syndrome, attention deficient hyperactivity disorder, and anxiety disorder, and that he was in need of residential mental health treatment. According to the petition, Minor had been hospitalized in psychiatric facilities at least twice, and had exhibited "aggressive, self injurious, and psychotic behaviors including suicidal ideation and statements, auditory and visual hallucinations, property damage, fire starting, attempting to light himself on fire, physical assaults on others, illegal drug use and refusal to take prescribed psychotropic medications." His father A.L. (Father)*fn2 was in jail. According to an assessment by the Department, Mother had a history of mental health issues and was unable to meet Minor's special needs.

On March 25, 2004, the day after Minor was detained, Father told a social worker he might have some Native American heritage, but did not know the details. Mother said she might have "Indian heritage, Cherokee," but she did not have the paperwork. Minor was attending "Indian health" under Medi-Cal. At the detention hearing on March 29, 2004, the juvenile court found ICWA might apply.

The jurisdiction/disposition report stated that Minor might be an Indian child with the Cherokee Nation of Oklahoma. According to the report, Mother had said on March 29, 2004, that her family had Native American ancestry. The social worker had "obtained all known family history from [Mother] and notification was made to the BIA [Bureau of Indian Affairs] and the Cherokee Nation of Oklahoma." No response had yet been received. At a May 18, 2004, jurisdiction hearing, the juvenile court found the allegations of the petition true, and again found that ICWA might apply.

The Department had sent the Cherokee Nation of Oklahoma and the BIA notice of the proceedings by certified mail. According to the cover letter, Mother had claimed affiliation with the Cherokee Nation of Oklahoma. The enclosed notice of involuntary child custody proceeding involving an Indian child and request for confirmation of child's status as Indian included names used by Mother and the names of her parents and two of her grandparents. The documentation indicated Father did not have tribal affiliation, and the Mother's tribal affiliation was Cherokee Indian and that she claimed ancestry from Oklahoma. An ancestor chart, containing information about Minor's parents, maternal grandparents, and other maternal ancestors dating back to the 18th century, was included.

The Department's report for the six-month status review hearing indicated that the Cherokee Nation had advised the Department that Minor "[would] not be considered an 'Indian Child' in relationship to the Cherokee Nation."*fn3 The report did not note what response, if any, the BIA had given. The Department asked the juvenile court to find ICWA did not apply. Mother submitted on the proposed findings, and sought further consideration only of the issue of visitation. Father's counsel indicated that he would speak with Father, who was incarcerated, and inform the court of any objections Father had; he did not subsequently lodge any objection. On November 18, 2004, the juvenile court found ICWA did not apply to the case.

A report for the 12-month review hearing, filed in July 2005, reiterated that ICWA did not apply to the case. On July 25, 2005, the juvenile court terminated reunification services as to Father and continued them as to Mother.

The status review report prepared for the November 1, 2005, 18-month review hearing recommended that reunification services be terminated for Mother, concluding that Mother could not provide appropriate parenting for Minor because of her own mental health issues and Minor's behavioral problems. The report stated that ICWA did not apply. The juvenile court terminated reunification services as to Mother and approved a permanent plan of a planned permanent living arrangement in residential care, with a goal of a less restrictive foster care setting.

The Department reported in April 2006 that Minor was at a level 14 residential treatment program, and that he tended to act out frequently, including missing class without permission, assaulting staff, throwing objects at staff, urinating on the play structure, attempting to swallow staples, spitting, and making sexual comments and gestures in class. He continued to have contact and visitation with Mother. Minor was continued in his placement.

Minor was returned to Mother's care in August 2007 for a trial home visit, after graduating from the residential treatment program. In December of that year, he was removed from Mother's home and placed in a children's home after he began refusing to take his psychotropic medications consistently, and later brandished a knife blade at Mother in a threatening manner, then left the house. He had been having thoughts of death and of harming himself.

Minor was returned to Mother's care in February 2008. Approximately a month later, he shot his seven-year-old niece in the stomach with an air pistol, and the following day "terrorized his mother and niece by raging around the house and attempting to break down the door to the bedroom where his mother and niece had taken refuge." He was again taken to the children's home. In April 2008, he was hospitalized at a psychiatric hospital for self-injurious gestures and suicidal ideation, and returned to the children's home six days later. Two days later, he threatened staff and residents of the children's home with a metal broom handle. He was taken to juvenile hall, and five days later released and placed at the residential treatment facility he had previously attended.

According to a report for a November 2008 review hearing, while at the residential treatment facility, Minor experienced suicidal ideation, heard voices telling him to harm himself, injured himself, had tantrums, and swore at staff.

Minor was moved to another residential treatment facility, closer to Mother, in February 2009. He was restrained on several occasions for being out of control, and on the last occasion "smashed his face into the pavement fifteen times," and displayed disorientation and hallucinations. He was hospitalized in March 2009, and the residential treatment facility gave notice that it could not maintain Minor safely because of his strong reaction to restraints. Because Minor generally did well in Mother's care, the Department decided to place him with Mother after his release and to provide a variety of services, including therapeutic behavioral services, medication management, and individual and family therapy. In March 2009, two weeks after being placed with Mother, Minor took her car keys and drove off. He crashed the car and sustained serious injuries to his back, shoulder, and leg. After his hospitalization, he was again released to Mother, to remain until he had recovered enough to be placed at a residential treatment facility. In the next four days, he twice escaped in his wheelchair and was returned. He was then taken to the children's home at which he had previously been placed.

In April 2009, while at the children's home, Minor left the facility on foot; when staff followed him he yelled at them, threw rocks, and brandished a branch in a threatening manner. Minor was arrested, taken to juvenile hall, and charged with assault with a deadly weapon.

A social worker spoke with a representative of several other facilities. Facilities in Florida and Pennsylvania accepted Minor for placement. Another facility, the Harbor View Adolescent Center, in Long Beach, California, (Harbor View) expected to have an opening soon, and was willing to accept Minor for placement if he was willing to enter its locked psychiatric hospital unit for observation for a two- or three-month period.

At a permanency planning review hearing on June 2, 2009, Minor's counsel noted that Minor was not receiving treatment in juvenile hall, and that juvenile hall was not an appropriate placement for him. She and Minor's public defender had advised Minor that it would be best to be placed at Harbor View voluntarily, as it would give the court and counsel more flexibility than if a conservatorship were established, and had told Minor he was "in control of which path [was] best for him." Minor's public defender likewise argued that it would not be in Minor's best interest to be placed out of state or to remain in juvenile hall, and that he was probably not eligible for a conservatorship. The Department's counsel reported that the options immediately available were Harbor View, with either a voluntary agreement or a conservatorship if appropriate, or placement out of state. Minor responded, "I know it's not an option . . . [but] I definitely want to be home. I don't want to be in a locked facility or be in juvenile. I just want to be home. But I know it's not an option right now"; and he acknowledged that his own behavior was the reason he could not return home. He also said that if a place at a more local facility were available, he would prefer to go there; but if one were not available, he would agree to go to Harbor View. The matter was continued for a week.

At the continued hearing on June 9, 2009, Minor's counsel stated that no bed was available at a more local facility, and that Minor did not want to go out of state. She said Minor was willing to go to Harbor View, that he had asked her what it would be like there, and that she had told him she did not know but that she thought it would be better for him than juvenile hall. The social worker said that although she had not seen Harbor View, she believed the locked facility was much like a psychiatric hospital. The court asked Minor if he was willing to be placed in Harbor View, and he said he was. The court found voluntary placement was appropriate and went on, "You are a voluntary patient there, but the Court is issuing an order to you and to the person in charge of the hospital that should you leave or demand to leave the facility, that you shall be returned back to this court forthwith. So if you don't want to stay there, you come back here; we figure out what to do. Make sense?" Minor replied, "Yes." The court also limited Mother's right to consent or withhold consent to psychotropic medication.

At a hearing on June 25, 2009, the juvenile court warned Minor that if Harbor View did not work out, the court would have to place him elsewhere, possibly out of state. Minor signed a "Voluntary Application for Inpatient or Outpatient Mental Health Services Pursuant to W & I Section 6552," stating that, with the advice of his attorneys, he voluntarily applied for treatment at Harbor View. The juvenile court found Minor had signed the application voluntarily, that he suffered from a mental disorder that might reasonably be expected to be cured or ameliorated by a course of treatment offered by Harbor View, that Minor wished to be placed there, and that no other available hospital, program, or facility might better serve his needs. The court ordered Minor placed at Harbor View and provided that if he demanded to leave Harbor View before being discharged, the superintendent or person in charge should contact the Department to arrange for Minor's return as soon as reasonably possible for a further dispositional hearing.

Mother has appealed from the order of June 9, 2009, and Minor has appealed from the orders of both June 9, 2009, and June 25, 2009.

II. DISCUSSION

A. ICWA Notice

Minor and Mother contend the ICWA notice was inadequate. In particular, they argue that the Department gave notice to only one of three federally recognized Cherokee tribes; that there is insufficient evidence that proper notice was given to either the Cherokee tribes or to the BIA; and that information on Father's ancestry should have been included in the notice.

"ICWA requires a court, if it 'knows or has reason to know that an Indian child is involved,' in any involuntary proceeding, to give notice to the Indian child's tribe of the pending proceedings and its right to intervene. (25 U.S.C. § 1912(a).)" (In re Aaliyah G. (2003) 109 Cal.App.4th 939, 941.)

The juvenile court made its finding that ICWA did not apply to the case in November 2004. The Department's reports after that time consistently reported that the court had found ICWA did not apply. During that time, no one suggested Minor had Indian ancestry based on descent in any tribe other than the Cherokee Nation of Oklahoma.

As we have explained, Father told a social worker early in the proceedings that he might have some Native American heritage, but did not know the details. Mother said she might have Cherokee heritage. These conversations took place on March 25, 2004. The jurisdiction report indicated that Minor might be an Indian child with the Cherokee Nation of Oklahoma, that Mother had said on March 29, 2004, that her family had Native American ancestry, and that a social worker "obtained all known family history" from her and notified the BIA and the Cherokee Nation of Oklahoma. The cover letter included in the notices stated that Mother claimed affiliation with the Cherokee Nation of Oklahoma, and the documentation indicated that Mother claimed Cherokee ancestry from Oklahoma. The notices were sent by certified mail, return receipt requested. Although the record does not contain the return receipts, it shows that the Cherokee Nation of Oklahoma replied that it would not consider Minor an Indian child in relationship to the tribe.*fn4

The question of the adequacy of ICWA notice is generally not forfeited by failure to raise it below. (In re Alice M. (2008) 161 Cal.App.4th 1189, 1195.) However, we will not reverse the juvenile court's judgment absent a miscarriage of justice. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430 (Rebecca R.).) No miscarriage of justice has been shown here. Although the investigation narrative simply reported that Mother said she might have "Indian heritage, Cherokee," a fair reading of the jurisdiction/disposition report and the ICWA notice suggests that in further conversations Mother reported that her Indian heritage was from the Cherokee Nation of Oklahoma, and the Cherokee Nation indisputably received the notice. At no point in the last six years, either below on or appeal, has Mother suggested that her heritage may be from another Cherokee tribe. Nothing has kept her from doing so. (See id. at p. 1431.) "In the absence of such a representation, the matter amounts to nothing more than trifling with the courts. [Citation.] The knowledge of any Indian connection is a matter wholly within the appealing parent's knowledge and disclosure is a matter entirely within the parent's present control. The ICWA is not a 'get out of jail free' card dealt to parents of non-Indian children, allowing them to avoid a termination order by withholding secret knowledge, keeping an extra ace up their sleeves. Parents cannot spring the matter for the first time on appeal without at least showing their hands. . . . [¶] The burden on an appealing parent to make an affirmative representation of Indian heritage is de minimis. In the absence of such a representation, there can be no prejudice and no miscarriage of justice requiring reversal." (Ibid.; see also In re N.E. (2008) 160 Cal.App.4th 766, 769-771 [no showing of prejudice from failure to inquire about Indian ancestry where father did not suggest he had Indian heritage]; In re H.B. (2008) 161 Cal.App.4th 115, 122.) In the circumstances, there is no reason to conclude there has been a miscarriage of justice.

We also reject the contention that the ICWA notices were insufficient because they did not include information on Father's ancestry. As we have explained, Father told a social worker that he might have some Native American heritage, but did not know the details. This information was insufficient to trigger ICWA notice requirements. At the time the juvenile court determined ICWA did not apply to the case, California Rules of Court, former rule 1439(f)(5), provided that notice must be sent whenever there was reason to believe the child may be an Indian child.*fn5 The information provided by Father was too vague and speculative, however, to give the juvenile court reason to believe Minor was an Indian child by virtue of his paternal heritage. (See In re O.K. (2003) 106 Cal.App.4th 152, 155-157 [grandmother's statement that child "may have Indian in him" did not trigger requirement of ICWA notice]; In re Aaron R. (2005) 130 Cal.App.4th 697, 707 [grandmother's statement that she was member of Black Native American Association fell short of giving court reason to know minor might be Indian child]; see also In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520 [ICWA requires "more than a bare suggestion that a child might be an Indian child."].) As noted in In re Shane G. (2008) 166 Cal.App.4th 1532, 1538, "if there is insufficient reason to believe a child is an Indian child, notice need not be given." In light of the vague and uncertain nature of Father's statements, we reject the contention that the Department was required to give notice that Minor might have Indian heritage through Father.

B. Voluntariness of Commitment to Harbor View

Minor also contends his commitment to Harbor View lacked the protections necessary to ensure the commitment was voluntary. Minor was committed under section 6552, which provides in part: "A minor who has been declared to be within the jurisdiction of the juvenile court may, with the advice of counsel, make voluntary application for inpatient or outpatient mental health services in accordance with Section 5003. . . . [T]he juvenile court may authorize the minor to make such application if it is satisfied from the evidence before it that the minor suffers from a mental disorder which may reasonably be expected to be cured or ameliorated by a course of treatment offered by the hospital, facility or program in which the minor wishes to be placed; and that there is no other available hospital, program, or facility which might better serve the minor's medical needs and best interest. . . . [¶] If the minor is accepted as a voluntary patient, the juvenile court may issue an order to the minor and to the person in charge of the hospital, facility or program in which the minor is to be placed that should the minor leave or demand to leave the care or custody thereof prior to the time he is discharged by the superintendent or person in charge, he shall be returned forthwith to the juvenile court for a further dispositional hearing pursuant to the juvenile court law."

Minor argues that section 6552 does not make clear what advisements should be given to a child before he or she is asked to agree to a voluntary commitment, and asks us to clarify the standards for such commitments. In particular, he argues that he should have been advised of the expected treatment program, the extent of the loss of his liberty, and the nature and probable duration of the commitment.

Minor acknowledges in his opening brief, however, that he is no longer confined in Harbor View's locked treatment facility,*fn6 and the Attorney General argues that this issue is therefore moot. " 'It is well settled that an appellate court will decide only actual controversies. Consistent therewith, it has been said that an action which originally was based on a justiciable controversy cannot be maintained on appeal if the questions raised therein have become moot by subsequent acts or events. . . . [T]he appellate court cannot render opinions " '. . . upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.' " [Citations.]' [Citation.]" (Giles v. Horn (2002) 100 Cal.App.4th 206, 226-227.)

Minor contends we should not treat this issue as moot because he may be again asked to agree to a voluntary commitment or he might be returned to the facility unless his commitment is vacated. In the absence of any indication that those events will take place, we decline to issue an advisory opinion. As Minor is no longer in the locked facility to which he was voluntarily committed, we fail to see how we could grant any effectual relief. Accordingly, the issue is moot, and we will not reach its merits.

III. DISPOSITION

The orders appealed from are affirmed.

We concur:

RUVOLO, P.J.

REARDON, J.


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