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In re L. J.

California Court of Appeal, Third District, Sacramento

May 1, 2013

In re L. J., a Person Coming Under the Juvenile Court Law.
v.
C. W. et al., Defendants and Appellants. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent,
v.
In re L. J., a Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent,
v.
C. W., Defendant and Appellant.

APPEALS from a judgment (orders) of the Superior Court of Sacramento County, Marlene E. Hertoghe, Referee. C071919 remanded with directions; C072166 dismissed, Super. Ct. No. JD231066

John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant C. W.

Marin Williamson, under appointment by the Court of Appeal, for Defendant and Appellant L. J.

John F. Whisenhunt, County Counsel, and Claire Van Dam, Deputy County Counsel, for Plaintiff and Respondent.

RAYE, P. J.

In this case, a juvenile court referee made an order terminating the parental rights of C.W. (father) and La.J. (mother) as to minor L.J. (Welf. & Inst. Code, § 366.26.) (Case No. C071919.) Both parents filed notice of appeal from that order. However, father simultaneously moved for rehearing or reconsideration of the order (§ 252; Code Civ. Proc., § 1008), [1] alleging the hearing proceeded in his absence despite his voice mail message to the court clerk advising that he would be late. The referee purported to grant the motion and to set aside the order. At a subsequent hearing attended by father, the referee made a new order purporting once again to terminate the parental rights of both parents. Father alone filed a notice of appeal from this order. (Case No. C072166.)

After receiving father’s notice of appeal from the second order, we requested letter briefs from the parties as to whether the first appeal was moot and consolidated the appeals on our own motion and. Having read and considered those briefs, we conclude that the appeal in case No. C071919 is not moot because the referee’s original order terminating parental rights was final and conclusive. We also conclude that because all acts done by the referee after issuing that order were void for lack of jurisdiction, the appeal in case No. C072166 must be dismissed.

On the merits, the parents contend that the matter must be remanded due to failure of compliance with the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). Mother, joined by father, also contends that the juvenile court abused its discretion by denying mother’s request for placement of the minor with the maternal grandmother. Respondent Sacramento County Department of Health and Human Services (the Department) disputes both contentions and asserts that the disentitlement doctrine bars the parents’ appeals because they actively concealed the minor’s whereabouts for over a year.

We conclude (1) the disentitlement doctrine does not apply; (2) assuming mother has standing to attack the denial of placement with the maternal grandmother, the court did not err by denying that placement; and (3) a limited ICWA remand is required. We reverse in case No. C071919 for further proceedings limited to ICWA and dismiss father’s appeal in case No. C072166.

FACTUAL AND PROCEDURAL BACKGROUND

On October 22, 2010, the Department filed a section 300 petition as to the minor, alleging the minor (born in early 2010) was at substantial risk of physical harm in that, while the minor was riding in mother’s car, mother physically abused the minor’s older half sibling D.J. The minor was also at substantial risk of physical harm, abuse, and/or neglect in that D.J. and the minor’s three siblings were adjudicated dependent children due to domestic violence between father and mother, and to mother’s substance abuse problem; as to the three siblings, family reunification services were terminated in May 2010. The parents had failed to maintain contact with the Department and had failed to make the minor available, insisting that she resided with relatives out of county.

In the Department’s application for a protective custody warrant, the social worker’s declaration contained the following information:

The minor’s three siblings were court-ordered to a permanent plan of adoption pending an upcoming section 366.26 hearing.

On October 18, 2010, the Department’s Division of Child Protective Services (CPS) received a referral alleging that on October 14, 2010, the minor’s maternal grandmother, Barbara J., had kicked the minor’s half sibling D.J. out of her home. D.J. stayed with a friend before being transported to the Children’s Receiving Home on October 17, 2010, where he was released to mother. Thereafter, the incident described in the section 300 petition occurred, and the court issued a protective custody warrant for him.[2] D.J. told the social worker that the minor’s parents were concealing the minor from CPS.

Mother reported to the social worker that the minor was with a relative in the Bay Area but would not disclose the relative’s name or location.

According to the family reunification social worker, mother was not complying with her substance abuse and domestic violence services, and had not returned the social worker’s calls in months.

Father had been booked and arrested on a no-bail warrant on October 17, 2010, and was to be released on October 22, 2010.

CalWORKs staff stated that mother had an active case, was receiving aid for the minor and D.J., and had been seen with the minor at the office the previous month.

A protective warrant was issued. A detention report, filed thereafter on October 27, 2010, contained additional information. Father was released from custody but remained on informal probation until September 11, 2013. The social worker attempted twice on October 22, 2010, to execute the warrant for the minor at the residence where father lived with the paternal grandmother, Patricia B.; the home appeared “closed up, ” and notices were left there for the parents. On October 23, 2010, the social worker attempted to execute the warrant at the home of the maternal grandmother, Barbara J.; again, the home appeared “closed up, ” and a notice was left for mother inside the screen door. Up until October 19, 2010, the social worker had been in emergency telephone contact with mother; mother would not provide an address, saying she was homeless and was going to different hotels. On and after October 20, 2010, the social worker left multiple messages for mother on her cell phone informing her of the October 27, 2010, court date; no calls were returned. There were no relatives to consider for placement: Barbara J.’s home had not passed a kinship evaluation, and Patricia B. could not care for the minor due to poor health.

After the initial hearing on October 27, 2010, the matter was repeatedly continued because the minor had not been located. On November 18, 2010, the juvenile court removed the matter from calendar but informed the parents that the protective custody warrant for the minor remained in effect.

On April 3, 2012, the minor was found in the custody of the parents, who claimed they had not known there was a warrant out on the minor and had thought the case was closed. The Department filed an amended section 300 petition, which added the allegations that mother’s reunification services as to D.J., and the parents’ rights as to the minor’s three siblings, had been terminated.

Father filed a Judicial Council form ICWA-020 claiming Cherokee heritage. Mother denied Indian ancestry.

At the initial hearing on April 6, 2012, the juvenile court found father was the minor’s presumed father and ordered him to complete the Indian ancestry questionnaire (or “supplemental questionnaire”) and return it to the Department within two days.

On April 11, 2012, the juvenile court ordered the minor detained. The court ordered father to complete and return the supplemental questionnaire “today.”

On April 23, 2012, ICWA paralegal Tony Ringor declared that because father had not responded to any attempts to contact him, the three Cherokee tribes had been sent only the limited information available to Ringor as to the parents’ ancestry: the names, addresses, and birth dates of the paternal and maternal grandmothers.

The Department’s jurisdiction/disposition report recommended placement of the minor outside the home and bypassing services to the parents (mother pursuant to § 361.5, subd. (b)(10), (11), & (13); father pursuant to § 361.5, subd. (b)(10) & (11) only).

The report stated that the parents continued to claim they had been unaware there was a warrant out for the minor. They denied all allegations of current substance abuse and domestic violence.

If the minor was not returned to the parents, mother wanted her placed with the maternal grandmother, Barbara J. The maternal grandmother wanted placement, and father and other members of the family would support it. The kinship unit had approved the maternal grandmother’s home for placement as of April 10, 2012.

The maternal grandmother, a widow with four children and eight grandchildren, had recently retired after 30 years at Kaiser Permanente. She lived alone in a three-bedroom, two-bathroom home. She could use the maternal aunt to help with childcare if needed. She was diabetic but indicated the condition was under control. She was willing to adopt the minor or to serve as her legal guardian.

The social worker had “concerns” about this proposed placement. First, the maternal grandmother did not call CPS after learning that CPS was looking for the minor, apparently because she believed mother’s story that the case was closed; the maternal grandmother said she had no control over mother. Second, the maternal grandmother had kicked D.J. out of her home; she had failed a kinship assessment as to him and had never been assessed as to the minor’s siblings. Third, her diabetes might not be under control: the fire department was called to the maternal grandmother’s home on February 18, 2012, in response to a report that she was incoherent and might be having a “diabetic episode.”

On May 4, 2012, ICWA paralegal Ringor declared that one of the three Cherokee tribes had returned a negative response and the other two had not yet responded.

On the same date, the juvenile court held a prejurisdictional status conference but continued it because father was allegedly in the hospital.[3] Noting that the Department had not yet received father’s supplemental questionnaire, the court reordered him to comply with the prior order to complete and return the questionnaire. The court ordered the Department to analyze whether services should be denied to the parents under section 361.5, subdivision (b)(15).[4]

At the rescheduled prejurisdictional status conference on May 11, 2012, the juvenile court asked father’s counsel whether the information in Judicial Council form ICWA-030 (the form sent to the tribes) was “complete and accurate.” Counsel said “Yes.” Counsel also said, “As to [father] the information... that appears on the ICWA 30 [sic] is correct.”

Father’s counsel said father had completed the supplemental questionnaire and “placed it in the mailbox downstairs.” The court observed that that mailbox was for the use of court staff only, so anything placed there would not have reached the Department.

The court set an ICWA compliance hearing for July 13, 2012.

The parents requested placement with the maternal grandmother. The court tentatively denied the request but promised to revisit the issue. The court expressed concern that the maternal grandmother had failed a kinship screening as to D.J. and that emergency services had been called to her home in February 2012. The court also noted that because it needed to consider concurrent planning efforts, the maternal grandmother should undergo an adoption home study as soon as possible.

On May 17, 2012, ICWA paralegal Ringor declared that the second of the three Cherokee tribes had returned a negative ...


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