|
(Cite
as: 172 Cal.App.4th 1261, 92 Cal.Rptr.3d
80) |
Court
of Appeal, Third District, California.
In
re HOLLY B., a Person Coming Under the Juvenile Court Law.
Mono
County Department of Health and Human Services, Plaintiff and
Respondent,
v.
Cluster
B., Defendant and Appellant.
No.
C058116.
April
8, 2009.
Rehearing
Denied Apr. 23, 2009.
**81
Valerie E. Sopher, under appointment by the Court of Appeal, El Cerrito, for
Defendant and Appellant.
Marshall
S. Rudolph, County Counsel, Stacey Simon, Deputy County Counsel, for Plaintiff
and Respondent.
ROBIE,
J.
*1263
Cluster B., father of the minor, appeals from findings and orders made at a
status **82
review hearing and from an order granting respondent's petition for
modification. (Welf. & Inst.Code, FN1
?? 366.3, 388, 395.) Appellant contends the juvenile court abused its discretion
in granting the petition for modification brought by the Department of Health
and Human Services (the department) to rescind a prior order for a psychological
examination of the minor and thereby erred in finding the department provided
adequate services to the minor. Appellant also argues the court failed to comply
with the notice provisions of the Indian Child Welfare Act (ICWA). (25 U.S.C. ?
1901 et seq.) Because appellant lacks standing as to the former issues and the
latter issue is not cognizable in this appeal, we dismiss the
appeal.
FN1.
All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
FACTUAL
AND PROCEDURAL HISTORY
Due
to the limited scope of this appeal, an extensive recitation of the facts of the
dependency proceeding is unnecessary.
Suffice
it to say that the minor suffered severe neglect and physical abuse as early as
1994 at the hands of her biological mother, and was placed with appellant in
1998. Problems arose in 1999 and 2000 and eventually, in October 2004, the
department removed the 12-year-old minor from appellant's custody due to
physical abuse and a pattern of conduct toward the minor which inflicted serious
emotional damage upon her. The minor participated in three psychological
evaluations, one of which was done prior to removal.
In
May 2005, the court sustained the petition, finding the minor had suffered
emotional damage as a result of either parental conduct or inability of the
parent to provide adequate treatment. The court ordered reunification
*1264
services for appellant and the stepmother. Appellant failed to reunify and
court-ordered services were terminated in August 2006 although voluntary
services were provided.
Throughout
the dependency, the minor has had multiple placement changes, sometimes doing
well in the placement and sometimes not. In July 2006, a placement change
returned the minor to a former foster home but, after several months, problems
arose and the minor and another foster child ran away in October 2006. A new
placement was found, but by December 2006, there were concerns about the
stability of the placement and the minor was again placed in the home from which
she previously ran away. In late May 2007, the minor again ran away. The foster
family agency was no longer willing to work with the minor and described her
behavior as reactionary and impulsive. The agency said the minor was unwilling
to accept the consequences of her actions and recommended a complete
psychological evaluation to determine if she needed medication.
By
the June 15, 2007, status review hearing, the minor was still at large and the
court ordered a psychological evaluation for the minor to assist in determining
her proper placement. Before the next hearing on July 16, 2007, the minor had
returned and was placed in Southern California near her sister. County counsel
told the court the department was moving forward on the psychological
evaluation. The social worker informed the court the minor opposed the
evaluation, feeling she had been labeled, and did not want to participate in it.
The minor explained to the court why she had run away the second**83
time and why she was happier in her current foster home.
In
November 2007, the department filed a petition for modification of the order for
a psychological evaluation. The petition stated that, at the time the order was
made, the minor was a runaway and there was concern for her mental state,
however she had returned and had been stable in her current placement for
several months. The petition stated that another evaluation was not in the
minor's best interest because she had three prior evaluations, was trying to
recover from abuse and neglect and feel normal and the current foster parent saw
her as a normal teenager. In the social worker's view, an evaluation would
reinforce the view that something was wrong with the minor and would be
detrimental to her emotional well-being.
The
status review report in December 2007 detailed problems which had arisen in the
minor's current foster home which threatened the placement. However, the minor
said she did not want to move from the home. An addendum reported the minor had
continuing behavioral problems but remained in the placement.
*1265
Appellant did not appear at the combined status review and petition for
modification hearing. The court granted the petition for modification, deleting
the prior order for a psychological evaluation for the minor, and continued the
minor in long-term foster care, finding services provided to the minor were
adequate.
Additional
facts appear where necessary in the discussion below.
DISCUSSION
I
Appellant
Lacks Standing On The Petition For Modification
Appellant
contends the court erred in granting the department's petition for modification
of the order for a psychological evaluation of the minor because changed
circumstances were not shown and the order was not in the minor's best interest.
Appellant further contends that by failing to have the minor participate in a
psychological evaluation, the department failed to provide the minor adequate
services. Finally he contends substantial evidence does not support the juvenile
court's finding to the contrary. Respondent contends appellant lacks standing to
raise these issues.
[1][2][3][4]
Generally, a parent who is aggrieved by an order after judgment in a juvenile
dependency proceeding may take an appeal from that order. (? 395.) ?To be
aggrieved, a party must have a legally cognizable immediate and substantial
interest which is injuriously affected by the court's decision. A nominal
interest or remote consequence of the ruling does not satisfy this requirement.?
(In
re Carissa G.
(1999) 76 Cal.App.4th 731, 734, 90 Cal.Rptr.2d 561.) The mere fact that a parent
takes a position on an issue in a dependency case does not alone constitute a
sufficient reason to establish standing to challenge an adverse ruling on the
issue. (Id.
at p. 736, 90 Cal.Rptr.2d 561.) Issues which do not affect the parent's own
rights may not be raised in the parent's appeal. (In
re Vanessa Z.
(1994) 23 Cal.App.4th 258, 261, 28 Cal.Rptr.2d 313; In
re Devin M.
(1997) 58 Cal.App.4th 1538, 1541, 68 Cal.Rptr.2d 666.) A parent's interest is in
reunification and in maintaining a parent-child relationship. (Devin
M.,
at p. 1541, 68 Cal.Rptr.2d 666.)
[5]
Here, the purpose of the psychological evaluation was to assess the minor and
provide information to the department to assist it in determining what level of
placement might be appropriate for her **84
in light of the fact that she had twice run away from her foster placement. The
process of assessment and evaluation by the department in selecting a specific
placement for the minor does not directly affect any legally cognizable interest
personal to *1266
appellant. Accordingly, appellant lacks standing to assert whether the court
abused its discretion in rescinding the order for the psychological evaluation.
Because the failure to proceed with the evaluation is the sole basis for
appellant's substantial evidence challenge to the court's finding that the
department provided adequate services to the minor, appellant lacks standing to
raise that issue as well.
The
cases relied upon by appellant do not compel a different result. In each of the
cases, the minor's right to counsel and the parent's interest in maintaining a
parent-child relationship were involved. (In
re Patricia E.
(1985) 174 Cal.App.3d 1, 6, 219 Cal.Rptr. 783 [appeal of order denying return to
father raising minor's right to independent counsel]; In
re Ann S.
(1982) 137 Cal.App.3d 148, 150, 188 Cal.Rptr. 1 [appeal of denial of minor's
motion for new counsel at a removal hearing]; In
re David C.
(1984) 152 Cal.App.3d 1189, 1206, 200 Cal.Rptr. 115 [appeal of termination of
parental rights raising adequacy of minor's counsel].)
II
The
Indian Child Welfare Act Is Not Cognizable In This Appeal
Appellant
contends that the department was on notice that the minor may be an Indian child
because the minor's mother claimed Cherokee heritage on the face page of her
petitions for modification filed in July and September 2007. FN2
FN2.
The detention report filed in October 2004 indicated the ICWA did not apply. The
first suggestion of Indian heritage is a vague reference in a psychological
evaluation in May 2005 where the minor is referred to as being of Caucasian and
Native American descent. In documents filed with this court, appellant has also
belatedly claimed Indian heritage.
[6][7][8]
The ICWA protects the interests of Indian children and promotes the stability
and security of Indian tribes by establishing minimum standards for, and
permitting tribal participation in, dependency actions. (25 U.S.C. ?? 1901,
1902, 1903(1), 1911(c), 1912.) The substantive provisions of the ICWA apply to
the minor's placement in adoption and foster care and to other hearings, such as
termination of parental rights, which affect the minor's status. It does not
apply to related issues affecting the minor such as paternity, child support or,
as in this case, a ruling on a petition for modification which affects only the
information available to the department in making its decisions. (See 25 U.S.C.
?? 1912(e) & (f), 1915; Cal. Rules of Court, rules 5.480, 5.484, 5.485; see,
e.g., State
ex rel. Department of Human Services v. Jojola
(1983) 99 N.M. 500, 502 [660 P.2d 590, 592].)
[9]
*1267
The ICWA is not implicated in the orders appealed from and, unlike noncompliance
with orders placing a child in foster care or terminating parental rights,
failure to comply with the ICWA notice provisions has no impact upon the court's
orders. Accordingly, any failure to comply with the ICWA is not cognizable in
this appeal and this court can provide no appellate remedy for error, if
any.
[10]
Respondent has filed two motions asking this court to take additional evidence
and/
DISPOSITION
Respondent's
motions for judicial notice or taking of additional evidence are denied. The
appeal is dismissed.
We
concur: SCOTLAND, P.J., and BLEASE, J.