In re David H.

• Decision Date: 19 August 2008
• Docket Number: No. A118968.,A118968.
• Citation: 165 Cal.App.4th 1626,82 Cal. Rptr. 3d 81
• Court: California Court of Appeals Court of Appeals
• Parties: In re DAVID H., a Person Coming Under the Juvenile Court Law. NAPA COUNTY HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. KAREN F., Defendant and Appellant.

165 Cal.App.4th 1626

82 Cal. Rptr. 3d 81

In re DAVID H., a Person Coming Under the Juvenile Court Law.

NAPA COUNTY HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. KAREN F., Defendant and Appellant.

No. A118968.

Court of Appeals of California, First District, Division Five.

August 19, 2008.

Law Office of Gradstein & Gorman and Seth F. Gorman for Defendant and Appellant.

Robert Westmeyer, County Counsel, and Carrie R. Gallagher, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

REARDON, J.^*

On June 12, 2007, the juvenile court set aside the jurisdictional and dispositional orders in this dependency case because of conceded errors in complying with the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.). The court then found there were exceptional circumstances to continue David H.'s detention and set new jurisdictional and dispositional hearings. On July 11, the court sustained jurisdiction and continued the minor's removal from his mother's home. In February 2008, David H. was returned to his mother's care. Consequently, certain claims initially raised by appellant are now abandoned or deemed moot. As to the balance of issues, we affirm.

BACKGROUND

On January 7, 2007, appellant Karen F. (Mother) hit her son David (born 1999) with an electrical cord and belt 21 times.¹ David had bruises, red marks, welts, and broken skin on his arms, back and chest and he told a social worker Mother had hit him in the past. Respondent Napa County Health and Human Services (Agency) placed David in protective custody, and Mother was arrested. Mother immediately informed the Agency she was a member of the Cherokee Nation.

On January 11, 2007, the Agency filed a petition pursuant to Welfare and Institutions Code section 300, subdivision (a),² alleging David had suffered, or there was a serious risk he would suffer, serious physical harm inflicted nonaccidentally by Mother. The court detained David on January 11. On January 31, the Agency sent ICWA notice to three Cherokee tribes and the Bureau of Indian Affairs.

At a February 6, 2007 jurisdictional hearing, Mother submitted on the social worker's reports, waiving her right to an evidentiary hearing. The court sustained the petition, but made no ICWA findings.

After a March 14 and 15, 2007 contested disposition hearing, the court found that ICWA "does or may apply," that the Agency had made reasonable efforts to return David home and active efforts to prevent the breakup of the Indian family, that Mother had made minimal progress toward resolving the problems that led to David's removal, that by clear and convincing evidence there would be a substantial danger to David's physical health if he were returned to Mother's care, and that his return would likely cause him serious emotional or physical damage. The court continued David's removal from Mother's care and ordered reunification services for Mother, including a parenting class, an anger management class, therapy, a psychotropic medication evaluation, and a medical assessment for her menopause symptoms. The court ordered a minimum of two 2-hour visits a week between Mother and David.

Mother appealed from the disposition order. She argued there were multiple violations of ICWA in the proceedings, including inadequate notice to the Cherokee Nation of the jurisdiction and disposition hearings, lack of ICWA expert testimony, inadequate active efforts to prevent the breakup of the Indian family, failure to comply with ICWA placement preferences, and failure to advise Mother of her ICWA rights. She also argued the court's finding of detriment that prevented David's return to Mother's home was not supported by substantial evidence under the legal standards of ICWA or California dependency law. She asked this court to reverse the jurisdictional and dispositional orders and remand for new jurisdictional and dispositional hearings.

Meanwhile, on May 8, 2007, in the juvenile court, the Agency filed a number of documents regarding its contacts with the Cherokee Nation and David's status as an Indian child. In a letter dated January 24, the Cherokee Nation (Tribe) informed the Agency that David was an Indian child because Mother was a member of the Tribe. The letter was mailed to the Agency's correct address but was written to the attention of a former director of the Agency and apparently was never received by the social worker assigned to David's case. On March 16, the social worker received a telephone message from the Tribe's ICWA representative, Nicole Allison, requesting information about the case. The social worker did not follow up nor did she pass on the message to the social worker who took over David's case. Allison, the social worker, her supervisor, and deputy county counsel exchanged phone messages until Allison at last made contact with the social worker and deputy county counsel on May 2. Allison then sent deputy county counsel a copy of the January 24 letter by facsimile transmission, confirming David's status as an Indian child. The Tribe formally intervened in the dependency proceeding on May 15.

On June 1, 2007,³ the Agency moved the juvenile court to set aside the jurisdictional and dispositional orders, advise Mother of her ICWA rights, and set a new jurisdictional and dispositional hearing on July 9. In an attached declaration, county counsel acknowledged the Agency had not given the Cherokee Nation 10 days' notice of the jurisdictional and dispositional hearings or any notice of the contested dispositional hearing, had not advised Mother of her ICWA rights, and had not provided ICWA expert testimony at the dispositional hearing.

A hearing on the Agency's June 1, 2007 motion took place on June 12. At the outset of the hearing, Mother made a Marsden⁴ motion seeking substitution of appointed counsel. Mother's attorney agreed that her relationship with Mother had irretrievably broken down since the first appeal was filed. The court granted the motion and appointed Daniel Chester as Mother's new attorney. Chester was not present at the hearing and was not informed of his appointment until the next day.

The court then proceeded to make a number of rulings at the hearing. The court found that David was an Indian child and that ICWA applied to the case. The court advised Mother of her rights under ICWA, and Mother affirmatively stated that she did not wish to waive any of her ICWA rights. The court granted the Agency's June 1 motion, set aside the jurisdictional and dispositional orders, and scheduled new jurisdictional and dispositional hearings for July 9. The court also found that exceptional circumstances existed to justify holding the dispositional hearing more than 60 days from the date David was first detained and extraordinary circumstances existed to justify temporary emergency custody of David for more than 90 days following his initial removal. Finally, the court scheduled a June 19 hearing on the question of whether Allison could testify as an expert on Cherokee customs and practices by telephone at the July 9 hearing.

Chester did not appear at the June 19, 2007 hearing, and apparently had not been notified of the hearing. Over Mother's objections, the court granted the Agency's request to have Allison testify by telephone.

In a June 20, 2007 letter, Chester requested a continuance of the July 9 hearing due to preexisting vacation plans. Chester was leaving on vacation June 29 and would not be returning to work until July 11. The court continued the hearing to July 13.

On June 21, 2007, the Agency requested a June 26 hearing to discuss the availability of its ICWA expert. At the June 26 hearing, deputy county counsel said the July 13 hearing date had to be changed for two reasons: first, the Agency's ICWA expert was not available on that date, and second, the six-month deadline to hold the dispositional hearing under section 352, subdivision (b) would expire on July 11.⁵ Chester then asked that the case be dismissed with David returned to Mother's custody. "There is no way we can have a hearing between now and July 11th." Because of his vacation schedule, "I don't see how we can go forward at this point without severely prejudicing her right to be represented by counsel of her choosing. She's very happy with me as her attorney, but there is no way I can do it before I return from vacation." Even if the court appointed different counsel for Mother Chester argued, no attorney could prepare for the hearing in just two weeks. Chester agreed there was no flexibility in the July 11 deadline and argued the only remedy was dismissal.

The court set the hearing to commence on July 11, 2007, with the understanding the hearing might continue into other dates. Chester asked the court to schedule a hearing on June 28 so he could request appointment of counsel to file a writ petition to prevent the hearing from proceeding. The court set the hearing and asked the parties to brief the issue of whether July 11 was an absolute deadline and, if so, what were the consequences of not meeting that deadline.

At the June 28 hearing, the court first heard argument and testimony on the Agency's application for a temporary restraining order against Mother. The Agency told the court Mother had gone to David's foster home, banged on the doors and windows, and yelled for David to come out. The court denied the restraining order because of insufficient evidence but admonished Mother not to go to David's placement unannounced.

On the issue of the date of the jurisdictional and dispositional order, the parties told the court the statute clearly required the hearing to be completed, and not just commenced, by July 11. Chester renewed his request for dismissal of the case. He also asked to be relieved as counsel because he could not prepare for the hearing by July 11, and he added that in any event the relationship between him and Mother had broken down to the point that he could no longer...