In re E.L. CA2/6

• Court: California Court of Appeal
• Decided: February 27, 2025
• Docket: B316261A
• Status: Unpublished

Opinion

Filed 2/27/25 In re E.L. CA2/6 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT DIVISION SIX

In re E.L. et al., Minors. 2d Juv. No. B316261 (Super. Ct. No. T000117) (Ventura County)

AIDA R., OPINION ON TRANSFER Petitioner and Respondent, FROM THE SUPREME COURT v.

E.O. et al.,

Objectors and Appellants.

This is an appeal from an order terminating parental rights of both parents pursuant to Probate Code1 section 1516.5. In our original opinion, we affirmed the judgment. In doing so we took post-judgment evidence under Code of Civil Procedure section 909 and concluded that the deficiency in the investigation pursuant to the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; Welf. & Inst. Code, § 224.2.) (ICWA) was harmless error. Our Supreme

1 All further statutory references are to the Probate Code

unless otherwise stated. Court remanded the matter to us with directions to vacate our decision and reconsider the cause in light of In re Kenneth D. (2024) 16 Cal.5th 1087 (Kenneth D.) and In re Dezi C. (2024) 16 Cal.5th 1112 (Dezi C.). In light of those cases, we conditionally reverse and remand to the trial court for a sufficient ICWA investigation. FACTS D.L. (Mother) is the biological mother of four children: E.L. (Child 1); E.R.O., (Child 2); L.O. (Child 3); and E.O.O. (Child 4). E.O. (Father) is the presumed father of Child 1 and the biological father of the other children. Aida R. met the children when her nephew became friends with Child 1. In 2014, Mother asked Aida R. to help her care for Child 4. By 2016, Aida R. was caring for all the children. When the children’s paternal grandmother tried to take the children from Aida R.’s home without her consent, Aida R. filed for guardianship. On January 10, 2017, Aida R. was appointed legal guardian of the children. Originally Mother visited her children several times per week. By early 2017, Mother was visiting only once or twice per week. In March 2017, Aida R. stopped the visitation out of concern for the children’s safety. Mother responded by petitioning to terminate the guardianship. Mother’s petition was denied, and she was allowed contact only in writing. Since July 2019, Mother has written to the children only twice. In January 2015, Father began a two-year term in the Ventura County jail. His mother brought the children on visits every other week. Further incarceration ensued in state prisons in Wasco and Susanville beginning in January 2017. Father was released in August 2020. From January 2017, when Father went to state prison until his release, letters and phone calls were the only

2 contact with his children. Since Father’s release in August 2020, he has not contacted Aida R. to see his children. Ventura County Human Services Agency Report The Ventura County Human Services Agency (HSA) filed a report with the court. When interviewed by HSA, Child 1 said he knew that Aida R. wanted to adopt him and his siblings. HSA told Child 1 that because he was older than 12, he could not be adopted without his consent. Child 1 said he did not know how he felt about being adopted. He did not want Mother to be mad at him. He wanted to stay together with his siblings, so if they wanted to be adopted, he was willing to be adopted. Child 2 and Child 3 said they liked living with Aida R. and wanted to be adopted. The report concluded: “It appears that [Aida R.] has acted as the subject minors’ parent in every way since the subject minors began living with [Aida R.] in August of 2016. The subject minors deserve a safe, stable, and nurturing home environment, which the natural parents have been unable or unwilling to provide. [Aida R.] has addressed their special education needs as well as mental health needs consistently, and provides the love and support they need. Although the eldest sibling, [Child 1], has not agreed to be adopted, it is the opinion of [HSA] that it is in his best interest for him to be adopted. Furthermore, it is in the best interest of his half siblings . . . to be adopted regardless of [Child 1’s] choice. These children are in the best place they can be, and they [are] safe. They have no relationship with their parents. They need to know they are not going to be separated and they will have the stability and knowledge that they are in a forever home, when they are adopted.” Trial (a) Children The trial was conducted in October 2021. Three of the children testified. Child 4 did not testify.

3 Child 1 testified that he was 14 years old. He had been living with Aida R. and her family for about five years and considered them to be his family. He testified to having a normal mother-and- son relationship with Aida R. At that time, he had not seen Mother or Father for about two years and had only received one letter from each since seeing them. Child 1 wanted to be adopted by Aida R. Child 2 testified that she was 10 years old. She had been living with Aida R. and her family for about five years. She viewed them as her family and Aida R. as a mother. She had not seen Mother in two years and Father in six or seven years except to visit him in jail. Child 2 also wanted to be adopted by Aida R. Child 3 testified that she was also 10 years old. She had also been living with Aida R. and her family for five years and calls Aida R. “mom.” Child 3 testified to feeling safer with Aida R. and wanted to be adopted. (b) Aida R. Aida R. testified that when the children first came to her, they did not relate to each other as siblings. Instead, they took care of each other as parents would do. The children’s bond as siblings has grown since being in her care. Aida R. discussed with the children what would happen if they were not adopted. She assured them that they would not go back to family services but would remain with her as their legal guardian. Aida R. described how the children’s mental health and behavior have progressed. (c) Father Father testified that he is wiser and more mature than the man who went to prison. He earned his GED while in prison and received vocational training in facility maintenance and repair. He learned plumbing, tile, and fixture repair. Father uses these skills in his current job as a handyman. While in prison he obtained

4 certificates for attending classes in health education, alternatives to violence, “criminal thinking,” anger management, and substance abuse. He attended weekly meetings of Alcoholics Anonymous and Narcotics Anonymous. Father said he is compliant with the conditions of parole, including monthly drug testing. Father said he had not contacted Aida R. to see his children since he was released from prison in August 2020. He claimed he did not do so upon the advice of his attorney. Father said he knew that he would have his day in court. He said the last time he saw his children in person was in January 2017 before he went to prison in Wasco. Father said his goal was to have his children placed in his care as soon as possible. He did not have a timeline because he did not know the process. Father believed it had been beneficial for the children to stay with Aida R. for the last five years, where they had been thriving. (d) Mother Mother did not testify at the hearing. On October 6, 2021, the trial court interrupted Aida R.’s testimony to note for the record that Mother had abruptly left the courtroom. Mother’s counsel explained that Mother left because she “had to catch an earlier bus.” Mother did not appear on October 7 or 8 for the next two days of trial. Mother’s counsel told the court that Mother was ill. On the final day of trial, October 8, Mother’s counsel requested a continuance. The court denied the request. The parties rested and the matter was continued to October 12. Mother appeared on October 12, 2021, stated she had been ill, and asked the trial court to reopen the evidence so she could testify. Aida R., Father, and the children objected. The court denied the motion, stating Mother had failed to show good cause.

5 DISCUSSION I. Statutory Authority and Standard of Review Section 1516.5, subdivision (a) provides: “A proceeding to have a child declared free from the custody and control of one or both parents may be brought . . . in an adoption action, or in a separate action filed for that purpose, if all of the following requirements are satisfied: “(1) One or both parents do not have the legal custody of the child. “(2) The child has been in the physical custody of the guardian for a period of not less than two years. “(3) The court finds that the child would benefit from being adopted by his or her guardian. In making this determination, the court shall consider all factors relating to the best interest of the child, including, but not limited to, the nature and extent of the relationship between all of the following: “(A) The child and the birth parent. “(B) The child and the guardian, including family members of the guardian. “(C) The child and any siblings or half siblings.” Section 1516.5 “requires the court to consider ‘all factors relating to the best interest of the child,’ . . . includ[ing] the circumstances leading to guardianship, the parent’s efforts to maintain contact with the child, any exigencies that might hamper those efforts, and other evidence of commitment to parental responsibilities.” (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1132.) (Ann. S.) Section 1516.5 does not require, however, a showing of parental unfitness or that terminating parental rights is the least detrimental alternative for the child. (In re Noreen G. (2010) 181 Cal.App.4th 1359, 1383.)

6 The trial court’s findings are reviewed under the clear and convincing evidence standard. (Ann S., supra, 45 Cal.4th at p. 1127, fn. 9.) The question is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.) In conducting our review, we must view the record in a light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in evidence, and drawn reasonable inferences from the evidence. (Id. at pp. 1011-1012.) Here the first two elements of section 1516.5 – the parents do not have legal custody over the children and the children have been in the physical custody of the guardian for not less than two years – are undisputed. The only issue is the best interest of the children. II. Substantial Evidence and Abuse of Discretion Father contends the trial court’s order is not supported by substantial evidence and constitutes an abuse of discretion. The evidence shows that for more than five years Aida R. has provided a loving, nurturing, and stable home for the children. The children’s parents have been unable or unwilling to provide such a home. The children now view Aida R. and her family as their family. They want to be adopted by Aida R. That alone is sufficient to support the trial court’s order. Father challenges the conclusion of the HSA report that Mother and he have no relationship with their children. Father points to biweekly visits with the children while he was in jail and correspondence with the children while he was in prison. Suffice it to say that biweekly visits to jail and correspondence with the children while Father was in prison do not constitute the parent- child relationship the children need.

7 Father points out that our Supreme Court in Ann S. required the trial court to consider exigent circumstances. (Ann S., supra, 45 Cal.4th at p. 1132.) Father claims his incarceration constitutes an exigent circumstance. If so, it is a circumstance of Father’s own making. At one time, Father chose criminality over being a responsible parent. We are quite sure the trial court considered Father’s incarceration in deciding to order the termination of his parental rights. Father points out that HSA did not interview him for its report. But Father was in prison when the report was made. More importantly, Father, with the guidance of his counsel, testified at trial. Father does not suggest what he could have said to HSA that he could not have said at trial. Father points out that HSA could not recommend adoption for Child 1 because Child 1 was over 12 years old and able to make his own decision regarding his adoption. In fact, Child 1 testified at trial that he wanted to be adopted. Father has by his own account made great progress in becoming a responsible member of society. This is commendable. But that progress does not make up for the more than five years he spent away from his children due to his own choices. Father attempts to convince us otherwise by viewing the evidence in a light most favorable to himself. But that is not how we view the evidence. We view the evidence in a light most favorable to the judgment. (Conservatorship of O.B., supra, 9 Cal.5th at pp. 1011- 1012.) Father points to no evidence that would compel the trial court to conclude his relationship with his children, to the extent such a relationship exists, is more important than providing a stable and nurturing home with Aida R. through adoption. It is Aida R., not Father, who has been a parent to the children since 2016.

8 III. Denial of Mother’s Request to Testify Mother contends the trial court abused its discretion in denying her request to reopen the evidence to allow her to testify. In denying Mother’s request, the trial court stated that Mother failed to show good cause for her absence. In its order the court said: “With respect to the respondent mother, . . . her absence from court, as reflected in the record, was noteworthy. She abruptly left without prior notice during the testimony of the first witness (unflattering testimony about her) and was thereafter absent throughout the majority of the proceeding, without any compelling justification.” In other words, the trial court did not believe Mother was prevented from attending the hearing by illness. The court’s disbelief in Mother’s excuse is well supported. Mother began her absence by leaving the hearing without good cause; that is, to catch an earlier bus. Mother cannot absent herself from the hearing without good cause and expect the court to reopen the evidence portion of the trial so she can testify at her convenience. Moreover, Mother made no offer of proof. When faced with the prospect of permanently losing custody of her children, she left the hearing to catch an earlier bus. No testimony that Mother could possibly give speaks more eloquently than that. IV. ICWA Mother contends the trial court failed to comply with ICWA. ICWA provides in part: “In 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 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

9 proceedings and of their right of intervention.” (25 U.S.C. § 1912(a).) An “Indian child” is “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership of an Indian tribe.” (25 U.S.C. § 1903(4).) ICWA does not itself impose a duty to inquire whether a child is an Indian child. That duty is imposed by federal regulation. (25 C.F.R. § 23.107(a).) In Welfare and Institutions Code section 224.2, California has enacted a statute that parallels the federal regulations. Welfare and Institutions Code section 224.2, subdivision (c) provides in part: “At the commencement of the hearing, the court shall ask each party to the proceeding and all other interested persons present whether the child is, or may be, an Indian child, whether they know or have reason to know that the child is an Indian child, and where the child, the parents, or Indian custodian are domiciled, as defined in Section 224.1. Inquiry shall also be made at the first appearance in court of each party or interested person who was not present at the first hearing on the petition. The inquiry and responses shall occur on the record. The court shall instruct the parties and persons present to inform the court if they subsequently receive information that provides reason to know the child is, or may be, an Indian child.” Welfare and Institutions Code section 224.2, subdivision (d) lists six circumstances, any one of which constitutes reason to know. The only circumstance that is potentially applicable here is in subdivision (d)(1): “A person having an interest in the child, including . . . a member of the child’s extended family informs the court that the child is an Indian child.” Welfare and Institutions Code section 224.2, subdivision (e) provides in part: “If the court, social worker, or probation officer

10 has reason to believe that an Indian child is involved in a proceeding, but does not have sufficient information to determine that there is a reason to know that the child is an Indian child, the court, social worker, or probation officer shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.” Mother filled out an ICWA-020 form, but it is not part of the record. At trial, Mother’s counsel represented that Mother had no Indian ancestry, and the trial court found that ICWA did not apply. Mother argues that ICWA is a substantial right, and her counsel may not waive a substantial right without her consent. (Citing In re Josiah Z. (2005) 36 Cal.4th 664, 678 [attorney not authorized to impair the child’s substantial rights].) Mother states the law correctly. Aida R. requested that we take additional evidence pursuant to Code of Civil Procedure section 909.2 The evidence consists of an ICWA-020 form completed and signed by Mother stating she is or

2 Code of Civil Procedure section 909 states: “In all cases

where trial by jury is not a matter of right or where trial by jury has been waived, the reviewing court may make factual determinations contrary to or in addition to those made by the trial court. The factual determinations may be based on the evidence adduced before the trial court either with or without the taking of evidence by the reviewing court. The reviewing court may for the purpose of making the factual determinations or for any other purpose in the interests of justice, take additional evidence of or concerning facts occurring at any time prior to the decision of the appeal, and may give or direct the entry of any judgment or order and may make any further or other order as the case may require. This section shall be liberally construed to the end among others that, where feasible, causes may be finally disposed of by a single appeal and without further proceedings in the trial court except where in the interests of justice a new trial is required on some or all of the issues.”

11 may be a member of the Tohono O’odham Nation, and letters from the tribe stating the children are not members of the tribe for the purposes of ICWA. Included is an affidavit from Aida R.’s attorney that she obtained the ICWA form from Mother’s trial attorney and the tribal letters from Aida R.’s trial attorney. Mother objected that taking such evidence on appeal is an inappropriate use of Code of Civil Procedure section 909. We granted Aida R.’s request on the ground that remand would unnecessarily delay the likelihood of an adoption and would achieve the same result. In Kenneth D., our Supreme Court held that except in extraordinary circumstances an appellate court may not consider evidence uncovered during a post-judgment inquiry to conclude the failure to conduct a proper inquiry was harmless. (Id. at p. 1107.) Instead, our Supreme Court held in Dezi C., supra, 16.Cal.5th, 1152, that failure to conduct a proper inquiry requires a conditional reversal. The majority in Kenneth D. did not specify what might constitute extraordinary circumstances. In a concurring opinion, Justice Groban, joined by Chief Justice Guerrero, suggested that our case is an example of such extraordinary circumstances. (Kenneth D., supra, 16 Cal.5th at p. 1109.) Aida R. requests that we treat the case as such and again affirm the judgment. We are reluctant to do so. Although we agree with the concurring opinion, we are concerned that were we to affirm the judgement there could be further delays. A concurring opinion is not authority for a reversal. (People v. Panighetti (2023) 95 Cal.App.5th 978, 1001.) The children have suffered delay enough. The most prudent course of action is to conditionally reverse and remand to the trial court.

12 DISPOSITION The judgment is conditionally reversed and remanded with instructions to conduct a sufficient ICWA inquiry as soon as possible. If the inquiry reveals evidence of Indian heritage, then the additional ICWA requirements must be complied with. If not, the judgment shall be reinstated forthwith. NOT TO BE PUBLISHED.

GILBERT, P. J. We concur:

YEGAN, J.

BALTODANO, J.

13 E.R.O. L.E.O. E.O.O. E.B.L.

14 Benjamin F. Coats, Judge

Superior Court County of Ventura

______________________________

Janette Freeman Cochran, under appointment by the Court of Appeal, for Objector and Appellant E.O. Christopher Blake, under appointment by the Court of Appeal, for Objector and Appellant D.L. Family Building, Tami A. Toumayan, Ted R. Youmans; Leslie A. Barry for Petitioner and Respondent Aida R.