IN RE BRANDON G.

No. F074884.

In re BRANDON G., et al., Persons Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. G.G., Defendant and Appellant.

Court of Appeals of California, Fifth District.


Attorney(s) appearing for the Case

Richard L. Knight , under appointment by the Court of Appeal, for Defendant and Appellant.

John P. Doering , County Counsel, and Carrie M. Stephens , Deputy County Counsel, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

GOMES, J.

G.G. (father) appeals from the juvenile court's order issued during a post-permanency plan review hearing (Welf. & Inst. Code, § 366.3)1 that denied his request to allow his sons, Brandon G. and Pablo G. (collectively the boys), to visit him in Mexico. On appeal, father contends (1) the juvenile court abused its discretion when it denied his visitation request, and (2) the failure to inquire into whether the boys' mother, Maria Erika G. (mother), has any Indian heritage, as required for purposes of the Indian Child Welfare Act (ICWA) (25 U.S.C. §§ 1901 et seq.), requires remand. Finding no merit to father's contentions, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Mother and father were born in Mexico, while the boys were born in San Jose, California — Brandon in March 2001 and Pablo in January 2002. Mother left when the boys were infants and was not involved in their lives.2 Father moved the boys to Michoacan, Mexico in 2009, where they lived with father and his girlfriend. The boys did not attend school there.

In December 2013, father sent the boys to California to live with his paternal cousin, Lilliana. Lilliana thought she would have them for only a few months, but she filed for legal guardianship after being pressured by relatives and so she could enroll them in school and obtain medical care for them. After being awarded temporary guardianship in April 2014, Lilliana decided not to go forward with the guardianship proceeding as she was not willing to commit to the boys long term.

In July 2014, the Stanislaus County Community Services Agency (Agency) received a referral that the boys had been left without any provision for support. Lilliana told the social worker investigating the referral that she no longer was willing or able to take guardianship of the boys. Both boys reported being physically abused by father and his girlfriend. Thirteen-year-old Brandon said that father kicked him in his stomach when he got into a "little trouble," but when he got into "big trouble" father hit him on the side of his body and his legs with sticks and extension cords, leaving marks and bruises. Brandon remembered a time when father beat him so badly he was unable to get out of bed. Brandon did not like father's girlfriend because she too was abusive; she also kicked him in his stomach area and left marks and bruises. Once Brandon reported to Mexican police that father had hit him and left a large bruise on his thigh; the police told father he would serve jail time if he continued to hit the boys. Brandon had spoken with father twice since being in Lilliana's care; he did not feel safe with father and did not wish to return to his care.

Pablo told the social worker that father worked a lot and when he returned home, his girlfriend would lie about how bad the boys had been so they would get into trouble. According to Pablo, both father and his girlfriend hit the boys with cables, extension cords, shoes, pipes and seat belts. The boys were always locked in the house and would sit in their rooms wondering if father would take out his frustrations on them when he returned home by physically abusing them. Pablo said the abuse happened weekly, but not every day, and some weeks were worse than others. Pablo feared for his life most of the time because men came around the home with guns looking for father. Pablo did not believe father cared for them and he did not feel safe with either father or his girlfriend.

In August 2014, the boys were taken into protective custody and placed in a foster home. The Agency filed a petition alleging they came within the provisions of section 300, subdivision (b), based on the boys' abuse by father and his girlfriend, and subdivision (g), based on father's inability to make appropriate arrangements for the boys' care and that mother's whereabouts were unknown. The social worker had not established contact with mother or father so, as indicated on the ICWA-010 forms attached to the petition, an Indian child inquiry had not been made.

Father was not present at the detention hearing. County counsel informed the court the social worker had contacted father and read him the petition in Spanish, but she did not think he was asked if he had any Native American ancestry. The boys were detained, and a jurisdiction and disposition hearing set.

In a report prepared for the October 2014 combined jurisdiction and disposition hearing, the social worker stated that ICWA did not apply as father claimed to have no Native American ancestry. The boys reported being fearful of father and his girlfriend due to the abuse they had endured. They enjoyed living in their foster home and wanted to remain there until they turned 18. The boys did not want to talk to father because he always asked for money and cussed at them. The Agency recommended that father receive family reunification services through "DIF" in Michoacan, Mexico.

The combined jurisdiction and disposition hearing was held on October 3 and 14, 2014. Father did not appear at either hearing. On October 3, 2014, the juvenile court found that ICWA did not apply and continued the hearing to October 14, 2014, to give father time to receive the report. At the October 14 hearing, father's attorney objected to the petition and submitted on the report, as she had not been able to reach father despite leaving messages for him. The juvenile court found the petition's allegations true, took jurisdiction over the boys, removed them from parental custody, denied reunification services to mother, and granted reunification services to father. Father was given once weekly in-person visits if he returned to Stanislaus County, as well as contact by telephone and letter.

Father's services were continued at the April 2015 six-month review hearing. In a report prepared for the hearing, the social worker noted the boys had adjusted well to their placement and established a healthy bond with the foster family. The boys told the social worker they did not feel comfortable speaking to father on a regular basis and only wanted to speak to him every couple months; they wanted a social worker present as they did not want to talk to father alone. Father told the social worker he understood the boys' position. The boys were uncomfortable speaking with father's girlfriend due to her past treatment of them.

The boys spoke with father in December 2014 and March 2015. During the March call, the boys told father they wanted to remain in foster care because they felt it was best for them, but they were interested in continued visitation. Brandon told father he did not want to reunify with him because he did not want to live with father's girlfriend. The boys looked forward to visiting father if came to the United States. According to the social worker, the boys did not want to reunify with father because they felt their past history was too challenging to overcome. They did not feel that father and his girlfriend had the capacity to properly care for them or provide a safe environment, but they hoped that with counseling, they could establish some type of relationship with them.

In a report prepared for the 12-month review hearing, the Agency recommended that the juvenile court terminate reunification services and establish a plan of long term foster care. In March or April 2015, father moved to another city in Michoacan, Mexico, with his parents, siblings, girlfriend, and daughter. In July 2015, father's girlfriend left him and took their daughter. Father had not completed his case plan and did not believe his girlfriend mistreated the boys.

The boys were in the same home with care providers who were committed to them and were willing to have the boys continue living with them under a plan of long term foster care. The boys wanted to continue having telephone contact with father once every other month, and were open to in-person visits if father came to the United States. The boys had calls with father in June and August 2015, which went well. The foster mother reported the boys had a really hard time with the phone calls — they displayed nervous tendencies and Pablo had a hard time sleeping. The boys resented father for choosing his girlfriend over them. When the social worker told father of the boys' resentment, father responded that his girlfriend left him so she was no longer living with him, although he did not believe she mistreated them. Father said he was okay with the boys staying in long term foster care if they wished, as long as he continued to have contact with them. A third phone call took place in October 2015. Father asked the boys for more phone contact, but they did not respond. After the call ended, the social worker asked the boys about father's request; the boys said they would think about it, but in the meantime they wanted the schedule to remain the same.

Father appeared telephonically at the November 2015 12-month review hearing. Father's attorney stated father was going to submit on the report, but he had a few requests, including that he wanted more visits, he wanted to be able to visit the boys in California, and he wanted the boys to be able to visit him in Mexico if he were able to pay for it. County counsel did not object to father having a minimum of once a month telephone contact, which could be increased if the boys wanted more contact, and pointed out that the case plan provided for monthly in-person visits if father were in Stanislaus County. With respect to the boys visiting father in Mexico, County counsel asked that father file a motion if he had the funds to finance a trip, so the parties could get the specifics of the request, including passports and travel, as well as "the wishes of the boys at that time." The juvenile court found that made sense, and added that, in its opinion, since the boys had not been able to improve their relationship with father, father would be better off spending his money to come there for a visit rather than expecting the boys to travel to Mexico.

The juvenile court terminated father's reunification services, found there was not a compelling reason to set a section 366.26 hearing, and ordered foster care with the current care providers as the permanent plan. The juvenile court approved the case plan, which provided father with a minimum of one visit per month if he came to Stanislaus County, and amended the visitation order to provide that father and the boys have a minimum of one telephone contact per month, as well as contact by letters.

Thereafter, the juvenile court, as required by the governing statutes (see § 366.3, subd. (h)), held regular status review hearings. Prior to the first hearing in May 2016, the Agency reported the boys were doing well in their foster home. Father had telephone contact with the boys in December 2015 and January 2016, but the boys declined contact in November 2015, and February and March 2016. Brandon contacted the social worker on March 24, 2016; he was having symptoms of anxiety related to the phone visits and was not comfortable participating in them. The Agency continued to recommend long-term foster care as the permanent plan. Father did not appear at the hearing. The juvenile court adopted the Agency's findings and recommendations; father's visitation order remained the same.

Prior to the next review hearing in October 2016, the Agency reported the boys had both declined phone visits with father and none had taken place since the last hearing. While a phone visit was attempted in June 2016, the call was unsuccessful because the phone number on record was a wrong number. In September 2016, the social worker spoke with the boys about phone visits. Fourteen-year-old Pablo had mixed feelings about speaking with father; he became emotional while speaking with the social worker, as the phone calls caused him to recall unpleasant memories. Pablo appeared to struggle with his feelings about the contact and wanted to postpone calls, as he recognized they had a negative effect on his behaviors. Fifteen-year-old Brandon continued to decline phone visits. The Agency recommended the boys remain in their current placement.

Father appeared telephonically at the October 2016 review hearing. Father's attorney commented to the juvenile court that while the report addressed phone calls and the boys' feelings about them, father wanted to have phone calls with the boys and "he says that one of them has actually told him he would like to go to Mexico to visit his father on vacation." County counsel responded that the Agency had set up visits every month, but the boys did not want to participate in them. The juvenile court responded that according to the report, the boys had some fears about the phone calls with father because things did not go well when they were living with him. The juvenile court believed the social worker had encouraged the boys to participate in calls and discussed that with them at least once a month, and if either or both boys wanted to have phone calls, they would be arranged. The juvenile court added that given the history, it would not authorize either boy to go to Mexico for a visit and if father wanted face-to-face contact, he would have to come to Stanislaus County. Father raised other issues, which the juvenile court addressed.

The juvenile court allowed father to make a brief statement. Father stated that he only had an opportunity to speak to one of the boys and when he wanted to speak to the other, he was told he was not available. The juvenile court explained the problem to him — the boys were not very anxious to speak with him because they had not gotten over the things that had happened — and the court could only instruct the social worker to encourage the boys to speak with him. The juvenile court continued the boys in their permanent plan and set a review hearing for April 2017.

DISCUSSION

Visitation

Father contends the juvenile court abused its discretion when it denied his request to allow the boys to visit him in Mexico. We disagree.

Generally, visitation between a parent and child who is in foster care should be as frequent as possible, consistent with the child's well-being. (§ 362.1, subd. (a)(1)(A).) The juvenile court may deny visitation if it would be detrimental to the child. (In re Mark L. (2001) 94 Cal.App.4th 573, 580.) Here, father was granted visitation, but wanted the juvenile court to expand its visitation order to include visits in Mexico. We review this issue, as in all issues of visitation, for an abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Julie M. (1999) 69 Cal.App.4th 41, 48-51.)

The only evidence father points to that supports allowing the boys to visit father in Mexico is (1) the statement his attorney made at the hearing that one of the boys told father he wanted to visit father in Mexico, and (2) Brandon's statement during an interview while being evaluated by his school for special education services that "he misses his family in Mexico and that he would like to go back. It was more familiar to him and he could work and make money." Assuming the boys had stated they wanted to visit father in Mexico, the juvenile court did not exceed the bounds of reason when it denied father's request.

The boys had not seen father in person for three years. While in father's care, they were physically abused by father and his girlfriend, locked in the house, and prevented from attending school. Throughout the two years of the juvenile court case, father was allowed to have in-person visits with the boys if he came to California, but father never availed himself of the opportunity. While telephone visits were offered, the visits were sporadic, either because the boys declined to speak with father, or father could not be reached. At the time of the October 2016 review hearing, the boys had not spoken to father for nine months. Brandon continued to refuse to speak with father, and while Pablo had shown an interest in doing so, the calls caused him to recall unpleasant memories and had a negative effect on his behavior. Moreover, there was nothing to suggest that father's behavior had changed; significantly, father had not completed the most important aspects of his case plan, namely anger management treatment and counseling to address child abuse.

Based on this evidence, the juvenile court reasonably could conclude that it would not be in the boys' best interest to have their first face-to-face visit with father occur in Mexico. (In re J.N. (2006) 138 Cal.App.4th 450, 459 (J.N.) ["The best interests of the child is certainly a factor the court can look to in exercising its discretion to permit or deny visitation."].) Father contends the juvenile court erred in failing to take the boys' desires into account. But the juvenile court did so and determined that the boys were not in fact eager to visit father due to the abuse they endured. The juvenile court did not abuse its discretion in not allowing the boys to visit father in Mexico.

ICWA Compliance

Father contends the juvenile court and Agency erred by failing to fulfill their duty of inquiry for ICWA purposes. Specifically, he contends the Agency failed to ask him, the paternal relatives, or the boys, whether mother had any American Indian heritage.

Section 224.3 and California Rules of Court, rule 5.481(a), impose upon both the juvenile court and the Agency "an affirmative and continuing duty to inquire" whether a dependent child is or may be an Indian child. The social worker must ask the child, if the child is old enough, and the parents, if the child has Indian heritage. (Cal. Rules of Court, rule 5.481(a)(1)). Upon a parent's first appearance in a dependency proceeding, the juvenile court must order the parent to complete a Parental Notification of Indian Status form, form ICWA-020. (Cal. Rules of Court, rule 5.481(a)(2)).

Here, while father apparently was asked whether he claimed any Indian heritage, as the social worker stated in the report prepared for the jurisdiction hearing that father did not claim any Native American ancestry, there is nothing in the record to indicate that anyone was asked the same thing concerning mother. Mother did not appear during the course of these proceedings and no maternal relatives were ever located. The record reveals, however, that mother was born in Mexico, she was 17 and 18 years old when the boys were born, and she left them when they were babies, telling father she wanted nothing to do with him or the boys. Therefore, the only source of information concerning mother's heritage would be father and the paternal relatives.

The Agency contends that any error in failing to inquire into mother's heritage is harmless, citing In re Rebecca R. (2006) 143 Cal.App.4th 1426 (Rebecca R.). We agree. Father makes no attempt to show that the boys would have been identified as Indian children if they, father or the paternal relatives had been asked about mother's heritage. There was evidence that mother lacked Indian ancestry, as she was born in Mexico.3 The boys were not likely to have information about mother's heritage, as they had not seen her since they were babies. Father, who did not claim Indian heritage for himself, does not indicate on appeal that either he or his relatives has any information that mother has Native American heritage. The record evidence suggests that the boys are not Indian children, and father gives us no basis for concluding that, if the matter were remanded to the dependency court, he, the boys, or his relatives would aver that mother has Indian heritage. These facts and circumstances establish that any error was harmless. (See In re H.B. (2008) 161 Cal.App.4th 115, 122; Rebecca R., supra, 143 Cal.App.4th at p. 1431.)

Father contends we are required to follow our decision in J.N., supra, 138 Cal.App.4th 450, and remand for ICWA inquiry. On this record, we find the case to be distinguishable. In J.N., the parent was never asked whether she had any Indian ancestry and the record contained no information to that effect. (Id. at p. 461 & fn. 6.) In those circumstances, we rejected harmless error analysis, "refus[ing] to speculate" about what the parent's response to an inquiry might be. (Id. at p. 461.) We did not say, however, that a harmless error analysis may never be employed when an inquiry is not made.

Here, father does not claim that he was not asked about whether he had American Indian heritage, as in J.N., but rather that no inquiry was made into mother's heritage. As father recognizes, mother and the maternal relatives are unavailable for inquiry. Father does not claim that either he, the boys, or any of his paternal relatives has any information that mother had American Indian heritage, and indeed the record suggests she does not, which provides a non-speculative basis for engaging in harmless error analysis. In this situation, "the matter amounts to nothing more than trifling with the courts." (Rebecca R., supra, 143 Cal.App.4th at p. 1431.) A remand for inquiry would be an empty formality, a waste of judicial resources, and detrimental to the boys' interest in stability. (Ibid. ["Parents unable to reunify with their children have already caused the children serious harm; the rules do not permit them to cause additional unwarranted delay and hardship, without any showing whatsoever that the interests protected by the ICWA are implicated in any way."].)

DISPOSITION

The juvenile court's orders are affirmed.

HILL, P.J. and LEVY, J., concurs.

FootNotes


1. Undesignated statutory references are to the Welfare and Institutions Code.
2. Mother was never located despite several absent parent searches and several attempts to serve her with notices of hearings.
3. ICWA applies only to federally-recognized American Indian tribes. (25 U.S.C. § 1903(8); In re Jonathon S. (2005) 129 Cal.App.4th 334, 338; In re Wanomi P. (1989) 216 Cal.App.3d 156, 166-168 [Canadian tribe is not a federally-recognized tribe under ICWA].)

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