C.T. v. Superior Court
Filed 6/14/13 C.T. v. Superior Court CA1/3
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
THREE
>
C.T., and M.W., Petitioners, v. THE SUPERIOR COURT OF SAN MATEO COUNTY, Respondent; SAN MATEO COUNTY HUMAN SERVICES AGENCY, E.W., Real Parties in Interest. | A138123 (San Mateo County Super. Ct. No. 81955) |
C.T.
and M.W., the parents of baby E., petition under rule 8.452 of the California Rules
of Court to vacate an order setting a selection and implementation hearing
pursuant to Welfare and Institutions Code section 366.26.
additional reunification services
after the 12-month review hearing, that there was insufficient evidence that E.
would be at substantial risk if returned to Mother’s care, and that she was not
offered adequate reunification services.
She also contends the court erred when it found the child welfare agency
made active efforts to reunify the family as required by the
§ 1912 et seq. (ICWA, or the Act)) and complied with the ICWA’s
preferences for placement with an Indian family. Father, like Mother, alleges inadequate
reunification services under the ICWA and violation of the ICWA’s placement
preferences without good cause.
The
order setting the section 366.26 hearing is supported by substantial evidence
and complies with the ICWA, so we deny both petitions on their merits.
E. was born prematurely at Lucille Packard Children’s
Hospital on December 3, 2011. The same day he was admitted to the neonatal
intensive care unit and referred to the
County Children and Family Services Agency (the Agency). The referral to the Agency reported that
Mother is developmentally delayed and has a history of drug and alcohol
abuse. Her multiple diagnoses include
personality disorder with volatile explosive behavior pattern, “major
depressive disorder vs. mood disorder not otherwise specified,†impulsive
control disorder, borderline personality, and mild mental retardation. She also suffers from diabetes. Mother is a client of the Golden Gate
Regional Center (Regional Center), which provides her with housing and 24-hour
in-home supported living care through Hope Supported Living.
On
November 30, 2011, Mother was hospitalized for diabetes and out-of-control
behavior. On December 2, the day before
E. was born, the staff at Mother’s supported living apartment expressed
reservations about her ability to safely care for a newborn baby. Their concerns focused on her impulsivity and
rage, as well as her refusal to manage her diabetes care despite the in-home
assistance she received. Mother’s
medical social worker reported that Father is alcoholic and lives with his
family in San Francisco. Mother and
Father have a history of domestic violence.
Mother frequently fought with her supported living staff and sometimes
left for extended periods to look for Father in San Francisco without notifying
her caregivers.
On
December 12, an Agency case worker attended a meeting with Mother’s case
manager, Olen Simon, and her other service providers. Simon reported that the Regional Center had
been providing services to Mother for six years and over the most recent four
years she had been in and out of psychiatric hospitals, including a locked
facility. Mother had lived in the
supported living apartment for two years and had been evicted from two
apartments for loud and volatile behavior.
According to the detention report, “Mr. Simon stated, ‘[Mother] is
narcissistic and self absorbed. I am
concerned about the child’s health and well being under [her] care.’ Mr. Simon stated that the mother is ‘mentally
challenged.’ He stated, ‘There are all
kinds of red flags. The worst case is
grabbing or throwing the baby. Today she
was grabbing the keys to the van. What
if the baby was at home?’ Mr. Simon
stated that the mother cannot control herself.â€
Simon also said Mother refused to see a psychiatrist or take
psychotropic medication. He felt that
she “ ‘does not have the skills to be a parent. She lacks emotional skills. I do not know if she will be able to
recognize if the baby is ill or if the baby is not feeding properly. She will fight with the staff all the
time. She will never
change.’ â€
Registered
nurse Doreen Canton, another of Mother’s service providers, had “grave
concerns†that a crying infant would set mother off and she might shake the
baby. Further, Mother was “in denial
with her diabetes.†Hope Supported
Living administrator Oscar Omoragbon said Father drank heavily and that police
had responded to fights between Mother and Father at Mother’s apartment. Omoragbon feared for the baby because Mother
was impulsive and prone to rages.
Omoragbon and Canton had concerns about placing E. with Mother even with
the services she received and 24 hour-supervision through her supported living
program.
Father
is of Navajo descent through his mother and E. is eligible for enrollment in
the Navajo tribe. He told E.’s case
worker that he lives with and helps care for his mother (Grandmother) in San
Francisco. She is diabetic and has knee
problems. Father is also the primary
caretaker for his brother, who has serious health problems. Father said that his own medical problems and
caretaking responsibilities for Grandmother kept him in San Francisco three to
four days a week and that he could not be with Mother every day. On December 15, 2011, Father reported that Grandmother
was willing to care for E. and he wanted the Department to explore her as a
possible placement.
On
December 16, 2011, the Agency filed a dependency petition alleging both
parents’ failure to protect E. from harm.
(§ 300, subd. (b).) The petition
alleged that Mother’s mental, emotional and medical instability placed E. at a
substantial risk of harm and that she refused to participate in multiple
services offered to address her own needs and help her adequately care for her
baby. In addition, Mother “regularly
exhibits oppositional and explosive conduct toward the staff at the supported
living facility where she resides, and engages in altercations with the alleged
father . . . when he comes to visit her there.â€
The
petition alleged that Father has “a criminal background that includes drug and
alcohol-related convictions, engages in altercations with the mother. . . in
her home, and has been arrested twice within the last four months for public
intoxication while visiting here there.
Furthermore, the father suffers from multiple medical conditions, and
significant caregiving responsibilities for his own mother and brother.†The Agency’s petition concluded that Father’s
“physical incapacity, ongoing alcohol abuse problem, and his lack of consistent
availability to care for the child places the child at substantial risk of
harm.â€
On
December 19, 2011, the juvenile court ordered E. detained, ordered that Mother
undergo a medical evaluation, and set a jurisdictional hearing for January 25,
2012. The Agency recommended that E. be
declared a dependent child of the juvenile court in out-of-home placement and
that both parents receive reunification services. E. was discharged from the hospital on
January 7 and placed in a foster home for medically fragile infants.
On
May 29, 2012, the Agency filed an amended petition alleging concerns remained
about Mother’s ability to adequately care for E. despite the services being
provided to her. Mother was not properly
treating her diabetes, which put her own health and life at risk, and required
direction on safely holding and caring for the baby during visits.
A
contested jurisdiction/disposition hearing was held over three days between May
24 and June 15, 2012. At the conclusion
of the hearing the court sustained the petition, declared E. a dependent child,
and found by clear and convincing
evidence that placing him with his parents would be contrary to his
welfare. The court further found by
clear and convincing evidence that E. was or might be an Indian child, that
continued physical custody with his parents was likely to cause serious
emotional or physical damage, and that active efforts were made to provide
services to prevent the breakup of an Indian family. No Indian foster homes had been located in
San Mateo County, so the court found good cause to place E. in a non-Indian
foster home.
The
court ordered Father to refrain from using drugs or alcohol and to participate
in a mental health evaluation, ordered supervised visitation with both parents,
encouraged increased visitation, and approved the Agency’s case plan. Mother’s case plan included
services, visitation, parenting education, psychiatric therapy and other
recommended mental health treatment including a psychotropic medical evaluation
and attending all medical appointments and following the doctors’
recommendations. Father’s case plan
included domestic violence and substance abuse services (including drug
testing, assessment and treatment), counseling, parenting education, and
maintaining sobriety. He was ordered to
provide the names of Indian relatives for potential placement.
Both
parents appealed the jurisdictional order.
Their appeals are before this court in case No. A135812. We take judicial notice of the records and
briefs in that appeal.
name="_ftnref2" title="">[2]
The
Because
these writs are taken from orders made at the joint six and 12-month review
hearing, we will primarily restrict our discussion to the evidence considered
in that hearing. On November 30, 2012,
the Agency filed its report for the review hearing set for December 12, 2012. Mother was attending parenting classes,
individual therapy, and supervised visitation.
Father spent most Tuesdays and Thursdays visiting with E. at Mother’s
assisted living home and was attending parenting and anger management classes. Dyad therapist Betty Loyola reported that
Mother was becoming more conscious of handling E. gently and learning to be
aware of his cues. She had attended
seven therapeutic parenting classes with E., including two
observational/assessment sessions, three collateral sessions and two dyadic/assessment
sessions with Loyola. Mother sometimes
handled the baby roughly, but she was making some minor positive changes and
seemed receptive and highly motivated.
Mother had also attended 21 individual therapy sessions and was making
some progress on reducing impulsive behaviors and regulating her emotions. She also attended a weekly life skills group
and a “Living Experience†class.
Although she was taking her medications in front of supported living
staff, her diabetes was not under control.
E.’s
foster mother reported on November 28, 2012, that Mother was sometimes
argumentative with the supported living staff and asked for visits to start
later because she likes to sleep in. She
also noticed that Mother did not consistently make E.’s medical appointments,
and that the baby did not smile when Mother greeted him.
In
January 2012, a social worker asked Grandmother about her interest in having
contact with E., and gave her contact information for E.’s case worker. Some eleven months later, on November 27,
2012, Mother told the Agency she would provide a letter from Grandmother
stating that Grandmother would like to care for E..
Mr.
Simon, Mother’s Regional Center case manager, reported incidents of Mother and
Father screaming at each other, but he concluded that “everything seemed to be
going fairly well.†Father was attending
Alcoholics Anonymous (AA) meetings, parent education and anger management
classes, but had cancelled two appointments for a psychological evaluation.
The
Agency’s report observed that reunification services were “slow to beginâ€
during the five months that preceded the jurisdiction and disposition
hearing. Mother’s health had been an
ongoing concern, and she had only started to consistently manage her diabetes medication
within the past two months. Father had
also been slow to access services and only recently began to attend anger
management classes.
Lynette
Mose, an ICWA social worker with Navajo Children and Family Services, said
there were no Navajo homes available for placement in the Bay Area. Mose agreed with the reporting social worker
that E. should be placed in a local, non-Indian foster home so that his parents
could continue to visit him. Because
there was no guarantee that a Navajo or other Native American adoptive home
could be found if reunification failed, and in order to minimize future
placement changes, Mose felt that a local fost/adopt placement would be
preferable to a regular foster placement.
In a
December 5, 2012, addendum report, the Agency recommended that family reunification
services be terminated. Although both
parents had accessed services and worked to ameliorate the reasons for E.’s
removal, the Agency believed he could not safely be returned to their care
within the 12 months specified under section 361.5 for children under the age
of three.
On
December 12, the date set for the combined six and 12-month review hearing, the
court authorized overnight visits with Mother and continued the contested
hearing to January 25, 2013. On January
23, 2013, the agency filed a second addendum report with an attached letter
from Polly Gloudemans, Mother’s public health nurse. Gloudemans reported that Mother was very
loving and affectionate towards E., but refused to meet with her or take her
diabetes medications. Mother’s physician
reported that her ability to take care of her health was “limited at best†and
lab tests showed a significant worsening of her diabetes control. Because of the severe consequences of
diabetes, including diabetic coma, kidney failure, blindness and limb
amputation, Gloudemans warned that Mother’s failure to manage her disease
presented a risk to E.’s safety.
Therapist
Dr. Stephanie Coates reported that Mother had made progress in using positive
self-talk to manage her impulses and emotions around E., and in her level of
insight. Dr. Coates was Mother’s
individual therapist, so she had not observed Mother interact with E..
The
January 23 addendum included Mr. Omoragbon’s report on the first two nights in
his young life, December 21 and 24, E. visited overnight with Mother. On the first visit Mother became upset when
Father had to leave, so she asked that E. be taken back to his foster
home. However, she settled down
afterward and the visit “went fine.†The
second visit did not go as well. Mother
had difficulty with E.’s crying and responded by telling him to “ ‘shut
up’ †and “ ‘shut the fuck up.’ †She again asked to end the visit early so she
could go look for Father. Also attached
to Omoragbon’s report were visitation observation records prepared by Mother’s
parenting coach, Anabel Zepeda, and therapist Loyola, both of whom testified at
the review hearing as discussed below.
The
Agency continued to recommend termination of services. The addendum report explained: “The mother has made progress, most notably
in her ability to not react when she gets angry. However, she continues to interpret parenting
advice as criticism, becoming defensive and unable to put into acting what she
is hearing. In addition, as Ms. Zepeda
stated the mother is not engaged with E. during visits, choosing to put him to
sleep or strap him into a car seat so that he is quiet and she can relax. Further, there have been at least two
incidents where the mother told E. to ‘shut up’ when he was crying, unable to recognize
his cues and respond to his needs. As
Ms. Loyola stated, ‘this therapist is highly concerned of the child’s emotional
well-being as evidence of his recent change of behavior when in the care of the
mom,’ especially her unwillingness to respond to E.’s cues. To the mother’s credit she has set limits
with the father and has not allowed him into the home when he is drinking. However, she continues to want to look for
him to put E. second to her need to locate the father. As there have been a number of incidents
where the mother has failed to respond to E.’s cues appropriately, thus putting
him at risk, continuing reunification services would be detrimental to his
well-being.†Father had visited E.
consistently and attended eight anger management sessions, but had not
completed court-ordered services, continued to drink, and refused to attend
substance abuse programs or undergo a
Loyola
testified at the January 25 hearing that she had been Mother’s child-parent
therapist since October 2012 and also facilitated Mother’s hands-on parenting
group. Mother was occasionally
inappropriate in the parenting group, engaging with other parents but not
attending to E.. She had made little
progress toward responding appropriately to E.’s needs and recognizing when his
behavior “triggered†her. E.’s affect
had become flatter and he was fussier around Mother since visitation increased
and overnight visits began in December.
After the first overnight visit, Mother asked Loyola “if it was okay to
ask the social worker if she cannot have [E.] for New Year’s Eve because she
didn’t want to be home with the fucking crying baby.†Despite her earlier progress, Mother recently
seemed overwhelmed and on one occasion slapped E.’s hand when he threw his
bottle.
Loyola
was initially optimistic about the possibility that Mother could reunify with
E., but by the January 25 hearing she no longer thought Mother would be capable
of gaining custody within six months.
Mother was motivated, but lacked the requisite awareness to meet E.’s
needs, be emotionally available to him, and make him feel safe and secure. Although Loyola cared very much about Mother,
she recommended termination of overnight and unsupervised visits and that E. be
placed in a fost-adopt home as soon as possible.
Apple
Family Works (Apple) contracts with the Regional Center to assist its clients
with their parenting skills. Apple Works
health educator Anabel Zepeda supervised visitation and helped Mother with her
parenting skills for a little over a year.
Zepeda testified that Mother had shown some improvement and that she
took care of E., sometimes with prompting and sometimes on her own. For example, sometimes Mother recognized when
E. was not feeding properly and sometimes she did not seem to know there was a
problem. At times she could comfort him,
but sometimes Zepeda needed to prompt her to do so. Mother picks E. up appropriately “for the
most part,†but at other times she needed instruction to handle him
safely. She had improved her ability to
maintain a safe environment for E., but here, too, she sometimes required
prompting. Mother’s volatility and
ability to control her emotions had improved “a lot.â€
However,
Zepeda had not seen as much progress over the previous three or four weeks as
in the past. Like Loyola, she said E.’s
mood and energy level had dropped since Christmas. The change coincided with E.’s overnight
visits with Mother, but also with his being sick and changes in his diet. Asked whether Mother would be able to
successfully provide for E.’s safety if given six more months of services,
Zepeda responded: “I definitely think mom will continue to make improvement
because she has shown for this year that she can improve. [¶] I cannot say
that she will be where she needs to be in six months. Because that will be being unrealistic. I cannot answer that question. But I know that she can continue improving in
six months.†Zepeda testified that Mother’s
interest in being a parent “fluctuates.â€
Mr.
Simon testified that Mother receives housing and 24-hour in-home care
supervision and daily living assistance from the Regional Center and parenting
assistance from Apple. Mother was no
longer assaulting the supportive living staff or Father and she had stopped
leaving the apartment to go look for Father in San Francisco without telling
staff. She was better at being patient,
holding E. safely, and diapering, but she needed to improve in caring for the baby
on her own and understanding his coming milestones. Simon felt that, with the Regional Center
services already in place and a slight increase in parenting services from
Apple, Mother would eventually be ready to care for E. However, he could not say that it would
happen within six months. Simon
testified that Father has good parenting skills, is affectionate, and meets
E.’s emotional needs.
The
Agency filed a third addendum report on January 30, 2013. Five pages entitled “Description of Episode or
Behavior,†dated from mid-October to mid-December, 2012, and 84 pages of “Daily
Progress Notes†were appended and discussed in the report. The addendum’s author noted that “when the
visit is considered unsupervised, and with only Hope Supported Living staff
present, the mother uses profanity and excessive force directed at the child,â€
and numerous such episodes were said to be described in the attached
records. Also discussed were a
distressing number of instances of Mother ignoring and neglecting E. while he
cried. On several occasions Father was
in the home and intoxicated. There were
several reported episodes of domestic violence that included Mother throwing
objects and Father leaving the home with a bruised face.
One
of the more egregious episodes occurred on January 21, when Mother became
frustrated with E.’s crying and threw a toy, which hit him in the face. On January 8th, staff asked Mother to pick
the baby up after he had been crying for five minutes. Mother complied, but when E. rejected the
water and juice she offered she put him back down “forcefully†and shook him
“very hard.†Staff tried to stop her,
but she told them to shut up and told the baby to “shut the funk [sic] up.†On December 31,2012, E. started crying when
the foster parent left after dropping him off at Mother’s home. Mother “plop[ped] him down [and] told him to
‘shut his fucken ass up.’ †Later
during the same visit she told the crying baby, “if you don’t shut the fuck up
I’ll [throw] your ass in the creek.’ â€
On other occasions Mother expressed dismay at having to take care of the
baby or asked that he be picked up before the end of a visit. Sometimes she neglected him, ignored his
needs, or was inappropriately rough with him.
The
hearing resumed again on February 1, 2013.
Simon clarified his January 25th testimony by explaining that Mother
would not be able to reunify with E. in six months if services were to end
then, but that she could do so if the services continued after E. was placed
with her. Simon had only observed Mother
and E. together three or four times in the preceding six months, but he
communicated frequently with Zepeda, Loyola and other service providers. It was his opinion that the recent addendum
report overstated the severity of the incidents it described. He thought Mother should receive another six
months of services based on the possibility that her behavior would improve,
although he had not seen improvement over the prior six months except for her
reduced volatility and could not say that her behavior would change if given
another six months.
At
the conclusion of the February 1 hearing, the court granted a request by E.’s
attorney to terminate overnight and unsupervised visits. E. was placed in a fost-adopt home on
February 5, 2013.
On
February 25 the Agency filed its final addendum report. Supervised visits were going well and had
been stable since the February 1 hearing.
Sometimes Mother needed a lot of prompting in regards to E.’s care and
safety, and on other visits needed little or none. She sometimes accepted Zepeda’s prompting but
sometimes was more resistant to it.
Zepeda reported that Mother was not confrontational with her, but that
the supported living staff told her Mother’s demeanor changed when Zepeda
left. Mother and Father sometimes argued
in front of E.
Father
visited E. regularly and was supportive of Mother, but he was not assertive and
often took a “ ‘back seat’ †to her.
He was attending AA meetings and anger management classes but had not
completed the court-ordered psychological evaluation and was still
drinking.
The
final sessions of the review hearing were held on February 27 and March 1,
2013. Larry Bogatz, Mother’s case worker
for the previous seven months, testified that there was no substantial
probability of her reunification with E. within six months. Dr. Coates, Mother’s individual therapist,
had been helping Mother chart and manage her medication, develop a plan to help
her manage her impulses and defiant behavior, and develop social skills and
interact with others. Dr. Coates also
referred Mother to other mental health services. Mother was better at managing her impulses
and behavior, but made minimal improvement in managing her medications and
developing social skills. She was
keeping a medication chart and taking some of her medicine but refused to take
one prescription medication. She
attended individual and dyad therapy and had attended 12 parenting
classes. She infrequently attended E.’s
medical appointments, but his occupational therapy was done at her house and
she attended those appointments. There
had been reports of domestic violence
within the previous six months.
Bogatz
was asked about the Agency’s consideration of Grandmother as a possible
caretaker. He said that although
Grandmother inquired at one point, she was ruled out because of her limited
ability to care for herself in light of her age and health problems. Moreover, Father lived with Grandmother and
continued to drink to the point of intoxication, “[s]o it wasn’t a
consideration we were willing to under[take].â€
Father also provided care for Grandmother, her elderly sister, and his
ill brother, who also lived with Grandmother “[s]o we have four people in the
home that are really unable to care for a toddler. So based on that assessment, we didn’t really
go any further.â€
In
November 2012 Grandmother wrote to the Agency and said she would be willing to
care for E.
title="">[3] The Agency did not pursue this as a
possibility because it already knew about her health problems. Mother told the Agency that she did not want
E. placed with Grandmother.
Bogatz
did not believe Mother could reunify with E. within six months. He explained: “Mother has no–there’s not an
attachment, there’s no bond with the child.
And [Mother] is still – let me say that she loves E., but it’s not an
unconditional love. She puts her own
needs, which are not mental health [sic] necessarily, ahead of the
child’s.†Mother had complied with her
reunification plan to the best of her ability, but had not improved
sufficiently to safely care for E. For
that to happen, she would have to be able to put his needs ahead of her own and
Father’s, be able to nurture and interact with him, and no longer seek to
terminate their visits early.
Bogatz
observed eight or nine of Father’s visits with E.. When Father was available he was nurturing
and positive, but he would defer to Mother and did not interact with E.
actively when Bogatz was there. On two
or three visits he brought alcohol or was intoxicated, and in January staff
arrived at Mother’s home to find Father drunk and the apartment smelling of
marijuana.
Father
had been attending AA meetings since October 29, 2012, and he participated in
the dyad therapy with Ms. Loyola. But he
had not complied with either the alcohol and drug assessment or substance
testing requirements of his plan, and he was still drinking to
intoxication.
The
Agency planned to work with the Navajo tribal representative to find a suitable
placement for E. His fost/adopt home was
not an Indian home and his foster parent knew he might be moved for that
reason.
Mother
also testified. She denied that she
threw a toy at E. or said she did not want to be home with him on New Year’s
Eve. There was only one occasion when
she asked the social worker to pick E. up early from a visit, and that was
because she was overwhelmed by “court stuff†and did not want him to see her
upset. She once “tapped†on his hand
when he threw his bottle at her ankle, but she never slapped him. She also denied that she put E. in a car seat
or walker to keep him from moving around, and she did not believe she handled
him roughly. She also never left for San
Francisco to look for Father without notifying her supportive living
staff.
Asked
about her relationship with Polly Gloudemans, the public health nurse, Mother
said Gloudemans lied about her not taking her medications and that “I wasn’t
really getting the help that I really was supposed to be getting from her.†She asked for a different public health nurse
but was told no others were available.
Mother told Mr. Bogatz that she did not want E. placed with Grandmother
because she wanted him to live with her.
But if E. could not live with Mother, she had no objection to his
placement with Grandmother. But
fost/adopt social worker Lee Baker testified that on February 6, 2013, Mother
said she did not feel E. should be placed with Grandmother “because she was in
her 70’s, and she had knee problems and because she couldn’t keep up with
life.â€
Father
testified that he had a little arthritis but no medical condition that would
prevent him from caring for E. He only
drinks socially, “once in a great while.â€
Bogatz gave him a referral for a psychological evaluation, but the
person he met with gave him some forms that he did not understand, so he
refused to sign them. He never made a
new appointment for an evaluation “because I really didn’t know what the point
was to that anyway.â€
Father
attended an anger management class because Mother’s cousin lied and said he was
hitting Mother so the police put him in jail.
Father denied that he initially told the social worker he did not want
custody or that Grandmother was not capable of caring for E..
Robin
Palmer, a graduate student intern, had been assigned to E.’s case for two
months. She testified that before the
hearing Loyola told her that Mother said she did not want to work with Loyola
anymore. On rebuttal, Mother said she
didn’t want to work with Loyola because she felt Loyola lied and betrayed her
on the stand. Mother did not remember
telling Lee Baker that E. should not live with Grandmother.
ICWA
social worker Lynette Mose is a member of the Navajo tribe. Taking into account Navajo cultural norms and
child-rearing practices, Mose believed that placement with either parent was
likely to result in serious physical or emotional damage. Mose believed that Mother, but not Father,
received sufficient reunification services to satisfy ICWA’s active efforts requirement. She did agree that providing Father bus
passes would qualify as an item of active efforts.
Mose
further testified that failure to follow up on Grandmother’s recent interest in
custody was not in compliance with the ICWA.
Mose did not speak with Grandmother because she “was informed by a
previous state worker that the paternal grandmother was ruled out by the state
worker.†The Navajo tribe approved E.’s
current placement, but continued to look for an Indian home.
Called
by E.’s attorney for rebuttal, Bogatz testified that he provided bus passes and
Clipper cards to both parents and made Father appointments for a psychological
evaluation and substance abuse testing and assessment.
The
court found Loyola, Zepeda, Omoragbon, Bogatz, Mose, Palmer and Baker were
credible witnesses. However, it rejected
Mose’s definition of active efforts, and for that reason disagreed with her
opinion that active efforts were not made with respect to Father.
Further,
“[a]s it relates to mother’s testimony, regrettably, and I don’t say this
lightly, but I did not find mother’s testimony to be credible. When she was asked questions concerning
contrary evidence, her explanations were not credible. . . .
[¶] As it relates to father, regrettably the Court did not find his
testimony to be credible. There was a
great deal – it seems to the Court on both mother and father some degree of
unionization going on, and in any event when faced with the facts as related in
the various social studies reports. So I
say that not easily, you know. I well
appreciate how significant every one of these cases are, and in particular of
course this case. But I did not find
mother and father’s testimony to be credible.
The social studies reports are replete with mother’s conduct.
[¶] The Court found the logs to be particularly compelling that were
introduced into evidence in this case. [¶] As it relates to the issue of
reasonable and active efforts, the Court finds again and as [its] factual basis
the testimony of the witnesses as well as the social studies reports that there
were reasonable efforts and active efforts made in this
case. . . .â€
The
court found there was no substantial probability that E. would be returned to
his parents within 18 months of removal and found by clear and convincing
evidence that returning him to their physical custody would risk substantial
detriment to his physical and emotional well-being. Pursuant to ICWA, the court further found
by clear and convincing evidence that physical custody by the parents was
likely to cause E. serious emotional or physical damage and that it was beyond
a reasonable doubt there was a substantial risk of emotional or physical harm
were E. returned to them.
The
court set a section selection and implementation hearing for June 17 and 18,
2013. Mother and Father filed separate
timely writ petitions.
Return Within 18 Months
Mother
contends the court should have extended her reunification period by six months
because there was a substantial probability E. would be returned to her care
within the maximum statutory time. She also claims the evidence was
insufficient to show that placing E. with her would create a substantial risk
to his safety and well-being or be likely to result in serious emotional or
physical damage. Neither contention is supported by the
record.
Court-ordered
reunification services may be extended to a maximum of 18 months from the date
a child was originally removed from a parent’s custody, but only if the court
finds a substantial probability that the child will be returned to the parent
within the extended period or that reasonable services have not been
provided. (§§ 361.5, subd. (a)(3),
366.21, subd. (g)(1).) We review the
court’s finding to determine whether it is supported by substantial
evidence. We resolve all conflicts in
the evidence in favor of the juvenile court’s ruling and draw all legitimate
inferences in its favor. (
Cal.App.4th 965, 969.) Mother has the
burden to show the evidence was not sufficient to support the court’s findings
and order. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on
another ground in Renee J. v. Superior
Court (2001) 26 Cal.4th 735, 748, fn. 6.)
To
find a substantial probability the child will be returned within the extended
reunification period, the court must find the parent has: (1) consistently and regularly visited with
the child; (2) made significant progress in resolving the problems that led to
the child’s removal; and (3) demonstrated the capacity and ability to complete
the objectives of her treatment plan and to provide for the child’s safety,
protection, and physical and emotional well-being. (§ 366.21, subd. (g)(1);
rule 5.715(b)(4)(A).)
Here,
there was substantial evidence that Mother had not satisfied the second and
third criteria for an extension of services.
By the 12-month review hearing Mother demonstrated little ability to
manage her worsening diabetes, leaving herself vulnerable to severe medical
consequences and, as the public nurse testified, putting E.’s safety at
risk. Ms. Zepeda, Mr. Omoragbon, and
Ms. Loyola reported numerous occasions when mother failed to respond to E.’s
cues, ignored or responded to his crying with profanity, restrained him in a
car seat or walker rather than attend to his needs, and used inappropriate
physical force.
Loyola
was also concerned about Mother’s inability to respond appropriately to E.’s
cues. She testified that Mother had made
little progress in this or in recognizing when she was “triggered†by the
baby’s behavior, and lacked the awareness she needed to meet E.’s needs, be
emotionally available to him, and make him feel safe and secure. Loyola’s initial optimism about reunification
had disappeared by the hearing, and she no longer believed Mother could gain
custody of E. within six months.
Similarly, Zepeda believed Mother would continue to improve with
additional services, but that it would be unrealistic to predict she could
reunify within six months. While Mr.
Simon was somewhat more positive about Mother’s prospect to acquire the
abilities she needed to care for E., he, too, agreed that this would not
necessarily happen within six months.
Mr. Bogatz was unequivocal that it would not. The incident reports and daily progress
reports attached to the Agency’s January 30 addendum report provide concrete
illustrations of the concerns voiced by these multiple service providers.
It is
clear that Mother loves E., and that she has made progress in addressing her
volatility, regulating her emotions, and beginning to develop skills necessary
to raise a child. But the record also
shows that her progress was intermittent and marked by the kind of setbacks
that could lead the court to reasonably conclude that Mother's ability to put
E.'s needs ahead of her own would never achieve permanence. Ample evidence supports the trial court’s
finding that Mother would not be capable of safely caring for E. if offered six
more months of reunification services.
Services
Mother
also disputes the court’s finding that the services provided to her were
adequate. An appellate court’s “sole
task on review is to determine whether the record discloses substantial
evidence which supports the juvenile court’s finding that reasonable services
were provided or offered.†(
Cal.App.4th 758, 762.) Reasonable
services aid the parent in overcoming the problems that led to the initial
removal and continuing custody.
(§ 366.21, subd. (f).) In
reviewing whether reunification services are reasonable, we recognize that in
most cases more services could have been provided, and that the services that
were provided are not often perfect. (
Cal.App.4th at p. 969.) The standard is
not whether they were perfect, but whether they were reasonable under the
circumstances. (Ibid.)
The
evidence outlined above shows that Mother was provided with extensive services
designed to address the medical, emotional, and developmental issues that
impair her ability to provide E. with a safe and appropriate home. Indeed, Mother expressly concedes that “in
some respect [she] had some very good services,†although she raises the
peculiar complaint that some of those services were
“attributable. . . . to†the Regional Center rather than
provided directly by the Agency—a distinction that makes no difference in
assessing whether the services she was provided with were reasonable.
Indeed,
Mother’s main complaint seems to center upon a lack of coordination and
communication among her various service providers. Specifically, she asserts the Agency should
have, but did not, obtain and provide her previous psychological records to her
social worker and therapists; that dyad
therapy should have started sooner, lasted longer, and involved more direction
from her case worker; and that neither
Bogatz nor Zepeda communicated adequately with her therapists. Mother also faults the Agency because her
primary care doctor was a general practitioner and psychiatrist, while she
now—apparently for the first time—says that an endocrinologist or internist
would have been “better equipped to handle her concerns and care.†Finally, Mother complains the Agency should
have done more to investigate why things went downhill when her overnight
visits with E. began, by “adjusting the visitation schedule, working with the
dyad therapist, taking the baby to the pediatrician to assess for illness,
giving the baby a chance to adjust to the new diet, and supporting the mother
with services to assist with the additional stress she was
feeling. . . .â€
None
of these alleged shortcomings indicate services were inadequate. Mother was provided with multiple, intensive
means of assistance that included around-the-clock supported living; individual
and dyad therapy, parenting classes and parenting coaching; psychiatric and
medical care, including a visiting nurse to help her learn to manage her
diabetes care; and supervised visitation.
Could her services have been more ideally coordinated? Possibly.
Could more have been done?
Conceivably, although much was done.
But perfection, as we have said before, is not the test. Mother was offered extensive support services
designed to overcome the problems that led to E.’s removal from her care. Ample evidence supports the court’s finding
that the services provided to Mother satisfy section 366.21, subdivision (f)’s,
standard of reasonableness.
Under ICWA and California law, “[a]ny party seeking to effect
a foster care placement of, or termination of parental rights to, an Indian
child under State law shall satisfy the court that active efforts have been
made to provide remedial services and rehabilitative programs designed to
prevent the breakup of the Indian family and that these efforts have proved
unsuccessful.†(25 U.S.C.
§ 1912(d); § 361.7, subd.
(a).) Mother and Father contend there
was insufficient evidence that the Agency provided such efforts. We disagree.
“Active efforts are essentially equivalent to reasonable
efforts to provide or offer reunification services in a non-ICWA case and must
likewise be tailored to the circumstances of the case.†(In re
Adoption of Hannah S. (2006) 142 Cal.App.4th 988, 998; In re Michael G. (1998) 63 Cal.App.4th 700, 713–714.) “What constitutes active efforts shall be
assessed on a case-by-case basis. The
active efforts shall be made in a manner that takes into account the prevailing
social and cultural values, conditions, and way of life of the Indian child’s
tribe. Active efforts shall utilize the
available resources of the Indian child’s extended family, tribe, tribal and
other Indian social service agencies, and individual Indian caregiver service
providers.†(§ 361.7, subd.
(b).) Thus, “while the court must make a
separate finding under section 1912(d), the standards in assessing whether
‘active efforts’ were made to prevent the breakup of the Indian family, and
whether reasonable services under state law were provided, are essentially
undifferentiable. Under the ICWA,
however, the court shall also take into account ‘the prevailing social and
cultural conditions and way of life of the Indian child’s tribe.’ †(In re
Michael G., supra, 63 Cal.App.4th
at p. 714; see also In re A.A. (2008)
167 Cal.App.4th 1292, 1317-1318; Letitia
V. v. Superior Court (2000) 81 Cal.App.4th 1009, 1016.)
Here,
whether reviewed for substantial evidence (In
re Michael G., supra, 63
Cal.App.4th at pp. 715-716) or independently to the extent the question
presents a mixed question of law and fact (see In re K.B. (2009) 173 Cal.App.4th 1275, 1286), the record supports
the court’s finding that services fulfilled the ICWA requirements. As to Mother, the panoply of services
discussed in relation to the reasonable services issue satisfies us that active
efforts were made in compliance with the ICWA.
Mother complains that the court did not expressly state the clear and
convincing standard of proof in finding active efforts (see
Cal.App.4th at p. 997; 25 U.S.C. § 1912(d)), but on this record the result
could have been no different under any standard.
Father
received fewer services. But here, too,
the record contains sufficient evidence to support the court’s ruling. Father was given bus passes and Clipper cards
so he could travel from his home in San Francisco to San Mateo to visit E. and
access services. In San Mateo he
attended parent education classes and dyad therapy with Mother as well as anger
management and domestic abuse classes.
Father maintains he participated in these services “mostly through his
own effort,†but the record does not compel that conclusion, and the trial
court (who explicitly found that Father’s testimony was not credible)
reasonably disagreed. Moreover, Father
was offered additional reunification services but refused to participate in
them. Mr. Bogatz scheduled three
appointments for Father’s psychological evaluation, at least one of which
Father failed to attend and another at which he refused to sign the forms
required for the evaluation. Bogatz also
made at least two appointments for Father for substance abuse testing and
assessment, which Father also failed to attend.
Social worker Katherine Odle made additional referrals for assessment
and testing. The record supports the
court’s determination that active efforts were made as to both parents.
finding of good cause to deviate from the ICWA’s preference that a child be
placed with an Indian caregiver. Here,
too, the record belies their position.
Absent good cause to the contrary, ICWA “mandates that
adoptive placements be made preferentially with (1) members of the child’s extended
family, (2) other members of the same tribe, or (3) other Indian families. [Citation.]
25 United States Code section 1915(b) states a similar preference for
any Indian child accepted for foster care or preadoptive placement, in the
absence of good cause to the contrary.
In this way, ICWA seeks to protect the rights of the Indian child as an
Indian and the rights of the Indian community and tribe in retaining its
children in its society. [Citation.]
[¶]
purposes at the outset of the act (see 25 U.S.C. § 1903), it did not define the
phrase ‘good cause’ as used in 25 United States Code section 1915 (Section
1915). Nevertheless, according to ICWA’s
legislative history, Congress, by its use of the term ‘good cause,’ explicitly
intended to provide state courts with flexibility in determining the placement
of an Indian child. [Citations.]†(Fresno
County Dept. of Children and Family Services v. Superior Court (2004)
122 Cal.App.4th 626, 641 (hereafter Fresno
County); see § 361.31.)
In California, guidance on the meaning of “good cause†is
provided by statute and rule of court.
Section 361.31, subdivision (h) authorizes the juvenile court to depart
from the ICWA placement preferences for good cause.
of factors relevant to the determination of good cause. It states:
“The court may deviate from the preference order only for good cause,
which may include the following considerations:
(A) The requests of the parent or
Indian custodian; (B) The requests of the Indian child, when of sufficient age;
(C) The extraordinary physical or emotional needs of the Indian child as
established by a qualified expert witness; or (D) The unavailability of
suitable families based on a documented diligent effort to identify families
meeting the preference criteria.†As
indicated by the permissive language, the court is not limited to the
enumerated considerations when it evaluates whether good cause exists to place
a child with a non-Indian caregiver. (
pp. 643-644.)
The good cause finding is reviewed for substantial evidence,
so our review “begins and ends with a determination as to whether or not there
is any substantial evidence, whether or not contradicted,
All conflicts must be resolved in favor of the respondent and all
legitimate inferences indulged in to uphold the decision, if possible. We may not reweigh or express an
evidence. [Citation.] In this regard, issues of fact and
credibility are matters for the trial court alone.†(Fresno
County, supra, 122 Cal.App.4th at p. 646.)
The
good cause finding here is supported by substantial evidence. Ms. Mose’s testimony establishes that ongoing
efforts were being made through the Navajo Children and Family Services to find
an Indian family to care for E., although none had been located by the
conclusion of the twelve month review hearing. As to the suggestion that he
could be placed with Grandmother, there was ample evidence she was not a
suitable caretaker. Father early on told
the Agency that his mother, in her 70’s and suffering from diabetes and hip
problems, was not capable of caring for the baby. Moreover, the Agency was understandably
unwilling to place E. in the same home as Father, whose continuing bouts of
intoxication were among the reasons E. was initially detained. Finally, the court was also entitled to take
into account Mother’s repeated statements, up until the last minute, that she
did not want E. to live with Grandmother.
(See § 361.31, subd. (e); rule 5.484(b)(2)(A).) On this record, the court properly found
there was good cause to depart from the ICWA’s preference for an Indian
placement.
Finally,
Mother asserts the court stated the wrong standard of proof when it found under
the ICWA that continued custody by the Indian parent is likely to result in
serious emotional or physical damage to the child. (25 U.S.C. § 1912(f); § 366.26,
subd. (c)(2)(B).) Mother correctly
points out that the court must make this finding beyond a reasonable doubt, and
that its oral and written ruling instead cites the clear and convincing
evidence standard. But while the court
cited the wrong standard, two points independently convince us its error does
not warrant reversal.
First,
the court also, and immediately, proceeded to find “beyond a reasonable doubt
that there is a substantial risk of emotional or physical harm if the child
returns to the custody of the parents.â€
Mother argues this finding is inadequate because the court did not
specify that the risk of harm was serious,
but the argument is meritless. Considering
the extensive and consistent problems of roughness and neglect chronicled by
Mother’s service providers in conjunction with Ms. Mose’s testimony that
custody by either parent was likely to result in serious physical or emotional
damage, there is no reasonable probability here that the court could have
determined the harm risked by leaving 15-month old E. in Mother’s care was less
than “serious.†(See In
re Jason L. (1990) 222 Cal.App.3d 1206, 1218
[failure to make findings regarding minor’s change of custody deemed harmless
where it is not reasonably probable the
finding would have been in favor of continued parental custody].)
Second, and in any event, section
1912(f) of the ICWA requires only that the risk of harm finding be made before
the court terminates parental rights.
While the finding may and generally is made at the referral hearing, it
need not be. As explained in
545, 554-555, “[t]he finding generally should be made at the final review
hearing at which a section 366.26 hearing is scheduled. If this finding was made, a court need not
readdress the issue at the section 366.26 hearing, unless the parent presents
evidence of changed circumstances or shows the finding was stale because the
period between the referral hearing and the section 366.26 hearing was
substantially longer than the 120-day statutory period. On the
other hand, if the ICWA section 1912(f) finding was not made at the final
review hearing and the court intends to terminate parental rights, the ICWA
section 1912(f) finding must be made at the section 366.26 hearing.†(Italics added.) The court in this case will have the
opportunity to revisit this finding at the section 366.26 hearing, so the
omission of an express section 1912(f) finding beyond a reasonable doubt at the
referral hearing presents no basis for reversal.
The order to show cause is discharged, and the
petitions for extraordinary writ are denied on the merits. (See § 366.26, subd. (
re Julie S. (1996) 48 Cal.App.4th 988, 990-991.) Our decision is final immediately. (rules 8.452(i) & 8.490(b).)
_________________________
Siggins,
J.
We concur:
_________________________
McGuiness, P.J.
_________________________
Jenkins, J.
Unless otherwise noted, all further statutory references are to the Welfare and
Institutions Code. References to rules
are to the California Rules of Court.
name="_ftn2" title=""> [2]
We also grant Mother’s application to augment the record to include Mother’s
hearing exhibits A through D.
