as: 116 Cal.App.4th 856, 11 Cal.Rptr.3d 1)
of Appeal, Fourth District, Division 1, California.
SUPERIOR COURT of San Diego County, Respondent;
Diego County Health and Human Services Agency, Real Party in
Timothy A. Chandler, Alternate Public Defender, James J. McMahon and
Enriqueta Rico, Deputy Alternate Public Defenders, for Petitioner Alicia B.
No appearance for Respondent.
John J. Sansone, County Counsel, Susan Strom, Chief Deputy County
Counsel, and Janice J. Casillas, Deputy County Counsel, for Real
Party in Interest.
The San Diego County Health and Human Services Agency (HHSA)
took newborn Christopher K. into protective custody after his mother,
Alicia B., admitted she used methamphetamine in the week before
delivery and he tested positive for alcohol. The juvenile court
denied reunification services and set a permanent planning hearing.
Alicia seeks writ review. (Welf. & Inst.Code § 366.26,
); Cal. Rules of Court, rule 39.1B.) [FN1]
She claims the court erred by not placing Christopher with
Susan S., his maternal grandmother, and by finding the Indian
Child Welfare Act of 1978 (the ICWA) (25 U.S.C. § 1901
et seq.) did
not apply. We issued an order to show cause, HHSA
responded, and the parties waived oral argument. We review the
petition on the merits and deny it.
All statutory references are to the Welfare and Institutions Code
and all rule references are to the California Rules of
PROCEDURAL AND FACTUAL BACKGROUND
In July 2003 Alicia gave birth to Christopher, her sixth
[FN2] She admitted methamphetamine use the week before and the
day before delivery. *860
Alicia tested positive for methamphetamine, and **3
Christopher tested positive for ethanol (alcohol).
Alicia's three oldest children became dependents of the court in
1999 on allegations of neglect. (§
300, subd. (b).) A permanent plan of legal guardianship was
selected, and the children were placed in guardianship with Susan,
the maternal grandmother. Alicia gave birth to twin boys, who
were removed from her custody on allegations of abuse or
neglect of a sibling. (§
300, subd. (j).) After six months of services, Alicia's parental
rights were terminated and the twins were later adopted.
On July 22 HHSA filed a petition on Christopher's behalf,
alleging Alicia's substance abuse rendered her unable to provide regular
care for him and put him at substantial risk of
300, subd. (b).)
Alicia told a social worker that she had Indian ancestry
through her mother, who was registered with a tribe in
Butte, Montana. Alicia did not have any other information about
the tribe or affiliation. At the detention hearing, the court
ordered HHSA to notify the Blackfeet and Cherokee tribes.
Alicia also told a social worker that she wanted Christopher
placed with Susan, who also requested the placement. On August
7 HHSA initiated an evaluation of Susan for possible placement
of Christopher with her. Susan was listed twice as a
suspect on the state Child Abuse Index, which prompted HHSA
to undertake a detailed review of its child protective services
records regarding Susan. Susan had eight referrals involving her own
children, one of which was substantiated.
[FN3] Susan also had seven referrals involving her care of
her grandchildren (see fn. 2, ante
), one of which was substantiated for general neglect. In
that incident, Susan's four-year-old granddaughter was in the bathtub, found
a razor and attempted to shave her legs; the granddaughter
cut herself and was treated at the hospital. The social
worker reported that Susan did not meet the placement requirements
because she had a previous substantiated case with child protective
In 1979 a petition was filed on behalf of Alicia,
then two years old, and her three-month-old brother, alleging medical
On September 17 Alicia appeared with counsel at the jurisdiction
hearing, which Susan also attended. The court found the Indian
tribes had been given appropriate notice of the proceedings and
that the ICWA did not apply. [FN4]
Alicia asked for a trial.
In her report for the jurisdiction hearing, the social worker
informed the court she had sent notices by certified mail
to the Blackfeet Tribe, the Eastern Band of Cherokee Tribe,
the United Keetoowah Band of Cherokee Tribe, the Cherokee Nation
of Oklahoma, and the Bureau of Indian Affairs (BIA). The
social worker received responses from the Blackfeet Tribe and the
Eastern Band of Cherokee Tribe that Christopher was not an
Indian child under the ICWA. She received no response from
the other two tribes or from the BIA. Attached to
the social worker's report were copies of the proofs of
certified mail and return receipts for the four tribes noticed
and the BIA, and the responses from the two tribes
On October 6 Susan telephoned the social worker and left
a voice mail message, stating she was going to end
her efforts to have Christopher placed *861
with her. A transcript of the message read in part:
"This is the hardest thing I've ever had to do,
I really wanted this baby but I think you were
right, the best thing for him would be to go
with the family that adopted the twins."
The contested jurisdictional/dispositional hearing took place on November 25. After
the court made a true finding on Christopher's petition, the
court took judicial notice of the findings and orders in
the dependency case files of his siblings. Social worker Carmen
Gibson testified that Susan was not an appropriate placement because
of her child protective services history with her own children
and the substantiated referral regarding the shaving incident. Gibson considered
Susan's voice mail message on October 6 in forming her
opinion. Gibson did not receive any other communications from Susan
about Christopher's placement after October 6. Gibson already had decided
to recommend against placing Christopher **4
with Susan before she received the October 6 message.
In her testimony, Susan acknowledged her October 6 voice mail
message, but said she now wanted Christopher to be placed
with her. Susan said that sometime after October 6 she
left the social worker a message requesting that Christopher be
placed with her. Susan testified she left the October 6
voice mail message because an HHSA supervisor had told her
that if she continued with her efforts to have Christopher
placed with her, HHSA would remove her other three
grandchildren from her home. Susan explained she had received a
telephone call from a female supervisor about two days before
October 6, but she did not know the supervisor's name.
[FN5] Susan felt threatened by the supervisor's call.
Susan's mother, Barbara U., with whom Susan lived, testified she
heard part of the conversation with the HHSA supervisor on
a speaker telephone.
Susan also testified about the shaving incident involving her granddaughter,
explaining that she had just moved that day and that
her granddaughter found a razor on the bathroom windowsill. Susan
had not seen the razor on the windowsill. When she
discovered that her granddaughter had injured herself, Susan immediately telephoned
the social worker and took her granddaughter to the emergency
Susan spent $900 purchasing items for a nursery for Christopher.
In rebuttal, social worker Gibson testified she never threatened Susan
about anything in this case and specifically, that she never
telephoned Susan, her mother or Alicia threatening to remove the
guardianship children. Gibson had no knowledge that her supervisor, Michael
Weinrick, or any other HHSA supervisor, had contacted Susan about
Christopher's placement. To have *862
Christopher placed with Susan would have required the approval of
a section chief because of Susan's substantiated referral. Gibson did
not request such a waiver because a request would indicate
that she favored placing Christopher with Susan and believed it
would be a good placement. Gibson did not believe this
would be a good placement for Christopher.
The court declared Christopher a dependent, removed him from parental
custody, placed him in licensed out-of-home care, ordered that no
reunification services be provided to Alicia pursuant to section 361.5,
subdivision (b)(10), and set a section 366.26 hearing. In choosing
not to place Christopher with Susan, the court noted it
was disturbing that Susan had not visited Christopher for more
than two months, and it was in Christopher's best interests
to remain in his current placement, a "safe place" where
he had been for four months. The court also did
not believe that Susan had received a threatening telephone call
from an HHSA supervisor.
Alicia contends the court erred by not placing Christopher with
Susan. The contention is without merit.
When a child is removed from his or her parents'
custody under section 361, the juvenile court places the care,
custody, control, and conduct of the child under the social
worker's supervision. (§
361.2, subd. (e).) The social worker may
place the child in several locations, including the approved home
of a relative. (§
361.2, subds. (e)(1)-(8).) Relatives who request placement of a dependent
child are given preferential consideration. (§
361.3, subd. (a).) In determining whether to place the child
with the requesting relative, the court and social worker consider
the factors enumerated in section 361.3, subdivision (a).
[FN6] The linchpin of a section 361.3 analysis is *863
whether placement with a relative is in the best interests
of the minor. (In
re Stephanie M.
(1994) 7 Cal.4th 295, 321, 27 Cal.Rptr.2d 595, 867 P.2d
Those factors are: "(1) The best interest of the child,
including special physical, psychological, educational, medical, or emotional needs. [¶]
(2) The wishes of the parent, the relative, and child,
if appropriate. [¶]
(3) The provisions of Part 6 (commencing with Section 7950)
of Division 12 of the Family Code regarding relative placement.
(4) Placement of siblings and half-siblings in the same home,
if that placement is found to be in the best
interest of each of the children as provided in Section
(5) The good moral character of the relative and any
other adult living in the home, including whether any individual
residing in the home has a prior history of violent
criminal acts or has been responsible for acts of child
abuse or neglect. [¶]
nature and duration of the relationship between the child and
the relative, and the relative's desire to care for the
(7) The ability of the relative to do the following:
(A) Provide a safe, secure, and stable environment for the
(B) Exercise proper and effective care and control of the
(C) Provide a home and the necessities of life for
the child. [¶]
(D) Protect the child from his or her parents. [¶]
(E) Facilitate court-ordered reunification efforts with the parents. [¶]
(F) Facilitate visitation with the child's other relatives. [¶]
(G) Facilitate implementation of all elements of the case plan.
(H) Provide legal permanence for the child if reunification fails.
(I) Arrange for appropriate and safe child care, as necessary.
(8) The safety of the relative's home ...." (§
361.3, subd. (a).)
We review a juvenile court's custody
placement orders under the abuse of discretion standard of review; the
court is given wide discretion and its determination will not be disturbed
absent a manifest showing of abuse. (In
re Luke L. (1996) 44
Cal.App.4th 670, 680, 52 Cal.Rptr.2d 53; In
re Sarah S. (1996)
43 Cal.App.4th 274, 286, 50 Cal.Rptr.2d 503; In
re Robert L. (1993)
21 Cal.App.4th 1057, 1067, 24 Cal.Rptr.2d 654.) "Broad deference
must be shown to the trial judge. The reviewing court should interfere
only ' "if we
find that under all the evidence, viewed most favorably in support of
the trial court's action, no judge could reasonably have made the order
that he did." [Citations.]' [Citation.]" (In
re Robert L., supra,
21 Cal.App.4th at p. 1065, 24 Cal.Rptr.2d 654.)
As Christopher's grandmother,
Susan was eligible for preferential consideration as a relative placement
under section 361.3. However, preferential consideration under section
361.3 "does not create an evidentiary presumption in favor of a relative,
but merely places the relative at the head of the line when the court
is determining which placement is in the child's best interests."
(In re Sarah S.,
supra, 43 Cal.App.4th
at p. 286, 50 Cal.Rptr.2d 503.) In other words, when a child is
taken from his parents' care and requires placement outside the home,
section 361.3 assures an interested relative that his or her application
for placement will be considered before a stranger's request. (Id.
at p. 285, 50 Cal.Rptr.2d 503; see also § 361.3, subd.
(c), which states: "For purposes of this section ... '[p]referential
consideration' means that the relative seeking placement shall be the
first placement to be considered and investigated.")
The issue for the juvenile court in this case was
whether, considering the suitability of Susan's home and the best
interests of Christopher, placement with Susan was appropriate. (§
361.3, subd.(a); In
re Stephanie M., supra,
7 Cal.4th at p. 321, 27 Cal.Rptr.2d 595, 867 P.2d
706.) The record shows
that HHSA evaluated Susan in a timely manner and provided
the results **6
of its investigation to the court. In reaching its decision,
the court properly stated its reasons for denying placement of
Christopher with Susan. (§
366.3, subd. (e).)
From our review of the record,
we conclude that the juvenile court's decision denying placement of Christopher
with Susan was well within its *864
discretion. In evaluating Susan, HHSA discovered she had a history
with child protective services, including a substantiated referral of
neglect with another grandchild in her care. When determining whether
placement with a relative is appropriate, the social worker and the court
must consider whether the relative has a history of child abuse or neglect.
(§ 361.3, subd. (a)(5).) Moreover, the court was concerned
with Susan's failure to visit Christopher for two months. In the
meantime, Christopher was doing well in a "safe place."
The court also considered Susan's voice mail message stating she
no longer wanted to be considered and her later decision
to again seek placement. The court did not believe Susan's
explanation that she had received a threatening call from an
HHSA supervisor. Our job is not to reweigh the evidence.
The juvenile court, sitting as trier of fact, heard the
witnesses testifying and was in a better position than we
are to adjudge their testimony.
Balancing the benefits of maintaining
extended family relationships against
the best interests of the child is a critical element in the placement
decision. (§ 361.3, subd. (a)(1)-(8).) With the evidence discussed
above before the court, it is not surprising the juvenile court concluded
Susan's home was not suitable for Christopher. We realize the importance
of according relatives a "fair chance" to obtain custody. (Cesar
V. v. Superior Court
(2001) 91 Cal.App.4th 1023, 1033, 111 Cal.Rptr.2d 243.) At the same
time, however, the fundamental duty of the juvenile court is to "assure
the best interest of the child...." (In
re Stephanie M., supra,
7 Cal.4th at p. 321, 27 Cal.Rptr.2d 595, 867 P.2d 706.) We conclude
that the court properly rejected placement of Christopher with Susan.
There was no abuse of discretion.
Under the Indian Child Welfare Act
Alicia contends the court committed prejudicial error by finding the
ICWA did not apply because HHSA had not submitted enough
information to show the Indian tribes were properly noticed. We
conclude the proper procedures were not followed, but that there
was no prejudice.
In 1978 Congress enacted the ICWA "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 and the placement of such children in foster
care or adoptive homes which will reflect the unique values
of Indian culture."
(25 U.S.C. § 1902.)
"The ICWA confers on tribes
the right to intervene at any point in state court dependency proceedings.
'Of course, the tribe's right to assert *865
jurisdiction over the proceeding or to intervene in it is meaningless
if the tribe has no notice that the action is pending.' " (Dwayne
P. v. Superior Court
(2002) 103 Cal.App.4th 247, 253, 126 Cal.Rptr.2d 639, citations omitted.)
The ICWA sets forth specific notice requirements in Title 25 United
States Code section 1912(a), which provides in part:
any involuntary proceeding in a State court, where the court
knows or has reason to know that an Indian child
is involved, the party seeking the foster care placement of,
or termination of parental **7
rights to, an Indian child shall notify the parent or
Indian custodian and the Indian child's tribe, by registered mail
with return receipt requested, of the pending proceedings and of
their right of intervention. If the identity or location of
the parent or Indian custodian cannot be determined, such notice
shall be given to the Secretary [of the Interior] in
like manner, who shall have fifteen days after receipt to
provide the requisite notice to the parent or Indian custodian
and the tribe. No foster care placement or termination of
parental rights proceeding shall be held until at least ten
days after receipt of notice by the parent or Indian
custodian and the tribe...."
The BIA acts as the agent for the Secretary of
the Interior. (Dwayne
103 Cal.App.4th at p. 253, 126 Cal.Rptr.2d 639.)
The Indian tribe determines whether the child is an Indian
re Desiree F.
(2000) 83 Cal.App.4th 460, 470, 99 Cal.Rptr.2d 688.) "A tribe's
determination that the child is or is not a member
of or eligible for membership in the tribe is conclusive."
The notice sent to the BIA and/or
Indian tribes must contain enough information to be meaningful. (In
re Karla C. (2003)
113 Cal.App.4th 166, 175, 6 Cal.Rptr.3d 205.) To enable a court
to review whether sufficient information was supplied, HHSA must file
with the court the ICWA notice, return receipts, and responses received
from the BIA and tribes. (Id.
at pp. 175, 178-179, 6 Cal.Rptr.3d 205.)
Alicia is correct that HHSA did not file with the
juvenile court the notices it sent to the four tribes
and the BIA. (See fn. 4, ante.)
This was error. To resolve whether the tribes and/or the
BIA were supplied with all known relevant information, the court
must review the actual notices sent by HHSA. (In
re Karla C., supra,
113 Cal.App.4th at p. 178, 6 Cal.Rptr.3d 205.)
However, HHSA, concurrent with the filing of its response to
the petition, moved to augment the record on appeal to
include, among other things, copies of the state-approved notices it
sent to the four tribes and the BIA in *866
[FN7] (Rules 12(a)(1)(A), 12(a)(2), 39.2A (d).) Alicia filed timely opposition
to the request to augment, relying principally
re Zeth S.
(2003) 31 Cal.4th 396, 400, 2 Cal.Rptr.3d 683, 73 P.3d
541, which held a reviewing court generally may not "receive
and consider postjudgment evidence that was never before the juvenile
court, and rely on such evidence outside the record on
appeal to reverse" a judgment terminating parental rights.
The notices are (1) Request for Confirmation of Child's Status
as Indian, and (2) Notice of Involuntary Child Custody Proceeding
Involving an Indian Child. These forms are numbered "SOC 318"
and "SOC 319" and are promulgated by the State of
California Health and Welfare Agency for the benefit of county
agencies and are intended to conform with The Guidelines for
State Courts; Indian Child Custody Proceedings (44 Fed.Reg. 67584 (Nov.
26, 1979)). (In
re Karla C., supra,
113 Cal.App.4th at p. 176, 6 Cal.Rptr.3d 205.)
First, we note that Zeth
did not bar postjudgment evidence; it indicated an appellate court
could consider such evidence in extraordinary circumstances. (In
re Zeth S., supra,
31 Cal.4th at p. 400, 2 Cal.Rptr.3d 683, 73 P.3d
Second, we find Alicia's reliance on Zeth
is misplaced. Zeth
was an appeal of a judgment terminating parental rights, which
challenged the juvenile
court's finding that the beneficial relationship exception to adoption (§
366.26, subd. (c)(1)(A)) did not apply. (In
re Zeth S., supra,
31 Cal.4th at p. 403, 2 Cal.Rptr.3d 683, 73 P.3d
541.) Appellate counsel sought to **8
augment the record on appeal with postjudgment evidence that the
parent was currently interacting with the child, and that the
relative caretaker had felt pressured by the social services agency
to agree to adopt. (Id.
at pp. 403-404, 2 Cal.Rptr.3d 683, 73 P.3d 541.) [FN8]
The Supreme Court was concerned that the Court of Appeal
had taken what was essentially a substantial evidence issue and
used new evidence to revisit the "mother-child relationship ... a
settled matter which, by statutory directive, could not be reopened
for reconsideration by mother...." (Id.
at pp. 411-412, 2 Cal.Rptr.3d 683, 73 P.3d 541.) The
statutory scheme for juvenile dependency cases "does not authorize a
reviewing court to substitute its own judgment as to what
is in the child's best interests for the trial court's
determination in that regard.... This is particularly true where ...
[the postjudgment] evidence, in likelihood, would have been irrelevant and
excludable had it been known and presented to the trial
court in the first instance." (Id.
at p. 410, 2 Cal.Rptr.3d 683, 73 P.3d 541.)
31 Cal.4th at page 404, 2 Cal.Rptr.3d 683, 73 P.3d
541, the child's trial counsel joined the agency's position favoring
termination of parental rights, but the child's appellate counsel sided
with the parent after investigating the child's current circumstances.
Here, Alicia is not appealing
the termination of her parental rights; rather this is a rule 39.1B
writ proceeding in which she is raising an ICWA notice issue, which can
be raised at any time. (Dwayne
P., supra, 103 Cal.App.4th
at p. 260, 126 Cal.Rptr.2d 639.) Moreover, unlike the postjudgment
evidence at issue in Zeth
S., supra, 31 Cal.4th
396, 2 Cal.Rptr.3d 683, 73 P.3d 541, HHSA does not seek to augment *867
the appellate record with new
materials or evidence. The notices at issue were sent to the tribes
and the BIA in August 2003, which was before
the court ruled that the ICWA did not apply. HHSA's motion to augment
the record contains postjudgment evidence only in the sense that the ICWA
notices were filed in the superior court during the pendency of this writ
procedure. The ICWA notices themselves were not new. Further,
the ICWA notices are relevant and would have been admissible if they had
been timely presented below.
Finally, denying HHSA's motion to augment would be counterproductive to
"the state's strong interest in the expeditiousness and finality of
juvenile court dependency proceedings." (In
re Zeth S., supra,
31 Cal.4th at p. 412, 2 Cal.Rptr.3d 683, 73 P.3d
541.) Accordingly, we grant HHSA's motion to augment the
record on appeal.
augmented record shows that HHSA timely sent proper notice to the four
tribes and the BIA on state-approved forms. (See fn. 7, ante.)
Alicia has not shown that any relevant known information was excluded
on the forms or that the notices were defective. HHSA's error in
not timely filing copies of the notices with the court was therefore harmless.
The juvenile court's finding that the ICWA did not apply was premature,
but it was not prejudicial.
The petition is denied.
WE CONCUR: BENKE, Acting P.J., and IRION, J.
116 Cal.App.4th 856, 11 Cal.Rptr.3d 1, 04 Cal. Daily Op.
Serv. 2095, 2004 Daily Journal D.A.R. 3024