In re B.P.

Filed 10/26/06 In re B.P. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed.

Samantha P., the mother of B.P., appeals following the juvenile dependency court's six-month review hearing held pursuant to Welfare and Institutions Code section 366.21. She contends the court erred by finding she received reasonable reunification services and by finding the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) did not apply. She also contends the court and the San Diego County Health and Human Services Agency (the Agency) had a duty to review the birth records of B.P.'s father, D.P.,^[1] and obtain information necessary to provide ICWA notice. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2005, when B.P. was two years old, the Agency filed a dependency petition. The petition alleged that on July 17 Samantha was found passed out in her apartment after B.P. was found wandering unsupervised around the apartment complex. When roused, she had slurred speech and an unsteady gait and was unable to stand without propping herself up. She admitted drinking one-half pint of vodka and passing out while B.P. was in her care, binge drinking for three or four days, and having an alcohol abuse problem. On several occasions beginning on April 1 B.P. was observed wandering unsupervised around the apartment complex and, at least once, he wandered into the street, requiring oncoming traffic to take evasive action to avoid hitting him.

B.P. was first detained in Polinsky Children's Center and then in a foster home. At the October 2005 jurisdictional and dispositional hearing, Samantha submitted on the Agency's reports. The court entered true findings, declared B.P. a dependent, and placed him with a relative.

At the March 2006 six-month review hearing, Samantha's counsel submitted on the Agency's report. The report recommended the dependency and reunification services continue. The report also recommended the court make the following findings: The Agency "complied with the case plan by making reasonable efforts to make it possible for [B.P.] to safely return home and to complete whatever steps are necessary to finalize [his] permanent placement;" by clear and convincing evidence, his return to Samantha's custody "would create a substantial risk of detriment to [his] physical or emotional well-being;" "reasonable efforts [were] being made to make and finalize the permanency plan . . . for [B.P.];" he was "being provided adequate and reasonable services;" Samantha had made substantive progress with her case plan and, based on that progress, it appeared B.P. would be returned home by the 12-month review hearing. The court adopted the recommendations in the report.

DISCUSSION

I. SERVICES

A. Facts

In November 2001 Samantha was convicted of driving under the influence. When B.P. was born in November 2002 she tested positive for methamphetamine and admitted smoking marijuana. In July 2003 she completed the KIVA drug and alcohol treatment program. She participated in numerous programs offered through KIVA and the Children's Learning Center, including substance abuse education, relapse prevention classes, and life skills education.

On July 18, 2005, the day after B.P. was detained in this case, Samantha told the social worker she had called treatment centers and was planning to go to the Serenity drug treatment program that day to schedule an intake appointment. The social worker gave her a list of drug treatment programs.

At the July 20, 2005 detention hearing, the court ordered liberal, supervised visitation and gave the social worker discretion to lift the supervision requirement with the concurrence of B.P.'s counsel. It referred Samantha for a Substance Abuse Recovery Management System (SARMS) evaluation.

According to the jurisdictional and dispositional report, Samantha said she had used or experimented with marijuana and crystal methamphetamine, but preferred alcohol.^[2] She recognized she needed help to overcome her relapse. She said she had resumed attending Alcoholics Anonymous meetings and taking her prescribed antidepressant medication and was willing to accept any services and referrals the Agency provided. The social worker gave her a packet of referrals to service providers. Samantha said she was already calling providers. Despite a 2002 arrest for domestic violence and D.P.'s report of domestic violence on July 17, 2005, she said there was "very little domestic violence" in their relationship. She could not explain why she signed a domestic violence prevention plan presented by the Agency on April 15. The social worker recommended Samantha participate in a domestic violence program for victims, SARMS, random drug testing, a psychological evaluation, a psychotropic medication evaluation, individual counseling with a TERM-approved provider, an intensive family preservation program, and parenting education.

On August 11, 2005, Samantha was admitted to SARMS. That day, she had a positive test for marijuana. Although she was originally slated for outpatient treatment, she acknowledged she needed a higher level of care. She agreed to enter and complete residential treatment, attend five 12-step meetings each week until she entered residential treatment, submit verifications of meeting attendance by the first and 16th of the month, submit to random tests for alcohol and drugs, and maintain weekly contact with her recovery specialist. On August 24 she completed her intake appointment for residential treatment and was placed on a waiting list. On August 25 she had another positive test for marijuana. On August 26 she was told to retest, but did not. She did not submit verification of attending 12-step meetings or maintain weekly contact with her recovery specialist. On September 27 she pleaded guilty to child endangerment. She was placed on probation.

At the October 5, 2005 jurisdictional and dispositional hearing, the court gave the social worker discretion to expand visits to overnights with the concurrence of B.P.'s counsel. It also gave the social worker discretion to commence a 60-day trial visit, with the concurrence of B.P.'s counsel and upon completion of a psychological evaluation and favorable input from the therapist. The court ordered the Agency to provide services consistent with the case plan and ordered Samantha to comply with the plan. The case plan required that she submit to a psychological evaluation with a TERM-approved and selected provider; participate and make progress in individual therapy with a TERM-approved therapist; participate in medication evaluation and monitoring if recommended by the psychological evaluation; participate in all aspects of SARMS, including outpatient or inpatient drug treatment, counseling, and substance abuse testing; complete an assessment for an approved domestic violence program and complete the program if deemed appropriate; complete an approved parenting education program; and complete an approved anger management education program if deemed appropriate by the therapist or social worker.

On October 17, 2005, Samantha was admitted to the Family Recovery Center treatment program. On October 24 she had a negative test, but on October 27 she tested positive for alcohol. On December 28 she began individual therapy. On January 10, 2006, she drug tested, but the specimen was too diluted to yield a valid negative result. On January 12 the court found she was in compliance with SARMS and no further SARMS review hearings were necessary.

On February 16, 2006, Samantha's therapist reported she had attended six sessions, was "fully engaged and participatory," was "able to demonstrate good parenting and coping skills," and "appear[ed] capable of making and sustaining necessary changes." The therapist concluded Samantha was "dedicated to her sobriety, the therapeutic process, and focused on being a good parent."

According to the six-month review report, the Agency had submitted a referral for a psychological evaluation, but no psychologist had been assigned. The Agency had given Samantha monthly bus passes. She visited B.P. regularly at his relative placement. He appeared to enjoy the visits, which remained supervised. Samantha had inquired about having expanded, unsupervised visits. The social worker was considering allowing visitation at the Family Recovery Center, but it was in Oceanside, while three-year-old B.P. lived in San Diego and attended Head Start in Imperial Beach, where his relative caretaker worked.^[3] Because the long trip would be a hardship for such a young child, the social worker suggested more extensive visits might be possible when Samantha earned longer passes from the Family Recovery Center. The social worker noted Samantha's compliance with SARMS fluctuated, her progress in the Family Recovery Center program had been slow, and she "appear[ed] to need a great deal of assistance and support in everyday functioning" and to maintain her sobriety. Samantha called the Agency almost daily to inquire about the status of various services.

The six-month review report stated the criminal court had ordered Samantha to participate in a 52-week parenting course as a condition of probation. Samantha asked the Agency to pay for the course. This was against Agency policy, so the social worker gave her a telephone number to inquire about free and reduced-cost classes. The social worker later learned Samantha's court-appointed criminal attorney could ask the criminal court to waive the course fee. The social worker apparently relayed this information to Samantha.

By the time of the six-month review hearing on March 16, 2006, Samantha had recently graduated to the second phase of the four-phase Family Recovery Center program. She was doing well and all of her drug tests had been negative. She was attending classes in various areas including domestic violence and anger management. She had attended 30 parent education classes and spent 24 hours at the child development center. On the day of the hearing, she submitted attendance sheets for 12-step meetings.

B. Discussion

Samantha contends the court erred by finding she received reasonable reunification services and that such a finding cannot be implied. She argues she did not receive referrals for required services, including a domestic violence assessment; there was no reasonable explanation for the lack of referrals and delays in providing services, particularly the psychological evaluation; and the social worker failed to help her obtain expanded and unsupervised visitation. She also complains the social worker's report did not tell her where she stood with respect to completing most of the components of the case plan, in that it did not say whether her therapist was TERM-approved, whether the social worker asked the therapist if anger management treatment were necessary, and whether the plan would be satisfied by domestic violence classes and anger management workshops at the Family Recovery Center, the parenting course at the Family Recovery Center, and the parenting course required by the criminal court.

The Agency argues Samantha forfeited her right to challenge the lack of reasonable services by failing to do so at the six-month review hearing and forfeited her right to challenge the adequacy of services by not doing so at the hearing or during the reunification period. "If [Samantha] felt during the reunification period that the services offered her were inadequate, she had the assistance of counsel to seek guidance from the juvenile court in formulating a better plan." (In re Christina L. (1992) 3 Cal.App.4th 404, 416.) Furthermore, "[i]f it was [Samantha]'s position that [s]he did not receive certain services to which [s]he was entitled, [s]he should have cross-examined the social worker who prepared the report or introduced h[er] own evidence on the issue rather than submit on the report." (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 813.) Beginning at detention, Samantha was present and represented by counsel at every hearing. As noted above, she called the Agency almost daily to inquire about the status of various services. Indeed, she said she was "getting a lot of help at the [Family Recovery Center], and hope[d] to be reunified with [B.P.] soon." She had ample opportunity to complain about any delays, lack of referrals, inadequate assistance from the social worker, or lack of specificity in the report, but did not do so.

At the six-month review hearing, the court shall determine "[t]he extent of the agency's compliance with the case plan in making reasonable efforts to return the child to a safe home and to complete any steps necessary to finalize the permanent placement of the child . . . ." (Welf. & Inst. Code, § 366, subd. (a)(1)(B).) If the court does not return the child to the parent's physical custody, it must "determine whether reasonable services that were designed to aid the parent . . . in overcoming the problems that led to the initial removal and the continued custody of the child have been provided or offered to the parent . . . ." (Welf. & Inst. Code, § 366.21, subd. (e).) This determination should be based on clear and convincing evidence. (In re Alvin P. (2003) 108 Cal.App.4th 962, 971; Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 594-598.)

Here, the court found the Agency "complied with the case plan by making reasonable efforts to make it possible for [B.P.] to safely return home and to complete whatever steps are necessary to finalize [his] permanent placement," he was "being provided adequate and reasonable services," and, because Samantha had made substantive progress with her case plan, it appeared he would return home by the 12-month review hearing. These findings satisfied the requirement of Welfare and Institutions Code section 366, subdivision (a)(1)(B) and, taken together, impliedly satisfied the requirement of Welfare and Institutions Code 366.21, subdivision (e). (See In re Andrea G. (1990) 221 Cal.App.3d 547, 554-555 ["[t]here was ample evidence to imply" a finding of no substantial probability of return, it was "obvious from the record" the child would not be returned, and there was no prejudice to the parent from the lack of an express finding]; In re Corienna G. (1989) 213 Cal.App.3d 73, 83-85 [while the better practice is to make a determination on the record of no substantial probability of return, "[s]ubstantial evidence would amply have supported such a determination" and "no practical purpose . . . would be served" by reversing and remanding].) Here, it is obvious from the record reasonable services were provided or offered.

Samantha argues a timely psychological evaluation was critical because the evaluator's recommendations dictated whether a medication evaluation was necessary. Even before the jurisdictional and dispositional hearing, however, she told the social worker she had resumed taking her prescribed antidepressant medication and had made an appointment at County Mental Health for a medication evaluation. Furthermore, she had an inconclusive drug test as late as January 10, 2006. Without an assurance of sobriety, the value of a psychological evaluation might have been reduced.

Samantha asserts the social worker did not help her obtain expanded and unsupervised visits. The social worker, however, considered this matter carefully, but noted the problem in transporting B.P. the long distance to Samantha's residental treatment facility. She therefore suggested postponing more extensive visits until Samantha earned the right to leave her facility for longer periods. This suggestion was reasonable.

Samantha argues there is no indication she received a referral for a domestic violence assessment or that the social worker asked the therapist if anger management treatment was necessary. Samantha did, however, attend domestic violence and anger management classes at the Family Recovery Center. She contends it is unclear whether these classes would satisfy the case plan, whether her parenting courses at the Family Recovery Center or through the criminal court would satisfy the case plan, and whether her therapist was TERM-approved. Within two weeks after the petition was filed, the social worker gave her "an extensive packet of referrals to service providers in [her] area." If the services she was utilizing were not listed in the packet, it would have been easy enough for her to ask the Agency for clarification, as she was in frequent contact with the social worker.

Reunification services need not be "the best that might be provided in an ideal world, but [rather those] reasonable under the circumstances." (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) Here, as required, the Agency made "a good faith effort to develop and implement a family reunification plan [citation] with services tailored to suit [Samantha's] needs . . . [citation]." (Steve J. v. Superior Court, supra, 35 Cal.App.4th at p. 810.) It identified the problems that led to B.P.'s detention, offered services designed to remedy those problems, maintained contact with Samantha, and made reasonable efforts to assist her. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) Substantial evidence supports the reasonable services finding. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.)

II. ICWA

A. Facts

According to the detention report, D.P. "self-identifie[d] as a Native American," but [w]hen asked if he is a registered member of any Native American tribe, [he] reported that he was adopted as a child and stated that he 'has no idea' which tribe he is a member of just that he relates to 'being an Indian.'"^[4] At the detention hearing, the court found ICWA might apply. The social worker's jurisdictional and dispositional report stated, "The undersigned has spoken with a senior Adoptions Unit protective services worker regarding the sealed adoptions records of the father, [D.P.]. It appears that it is the Adoptions Unit's policy that all adoptions records remain sealed to ensure the confidentiality of the birth mother and father. While this social worker did attempt to argue the point that the father, [D.P.], is claiming that he may have Native American heritage passed down from his birth parents, Adoptions policy dictates that any privilege to confidentiality can only be waived at the request of the birth mother and/or birth father, it is not up to the adopted child to request the sealed information. The undersigned continues to look into the father's heritage and will report any new and/or relevant information to the Court as soon as it is received."

An addendum report written on August 25, 2005, stated, "[D.P.] claims that [his] birth parents may have been Native American but has no real basis [for] the belie[f]. . . . [T]he Agency's only burden was to provide [D.P.] with the telephone number for California Indian Legal Services, the telephone number of his attorney . . . , and encourage [D.P.] to utilize his attorney and the speciality legal [a]gency to assist him in locating his birth records." On August 16 the social worker called D.P.'s home telephone and cellular telephone and left messages with this "information and explicit directions" and requests that D.P. call back if the messages were unclear. He did not call back, but Samantha did. The social worker repeated the instructions and contact information to Samantha. Samantha said she would give D.P. the information and ask him to call the social worker with any questions. Samantha said she had saved the home telephone message for D.P. and he had the cellular telephone and could retrieve that message himself.

On August 29, 2005, the court found ICWA did not apply. The six-month review report stated ICWA did not apply. At six-month review hearing, no one objected to that statement and there was no discussion of ICWA.

B. Discussion

Samantha contends the court erred by finding ICWA did not apply, and the court and the Agency had a duty to review D.P.'s birth records and obtain information necessary to provide ICWA notice. She argues that at a minimum, notice to the Bureau of Indian Affairs was required.

The only information in the record that B.P. might have any Indian heritage were D.P.'s "self-identifi[cation]" as an Indian and the fact he "relat[ed] to 'being an Indian'," matters with "no real basis." While the showing required to trigger ICWA the notice requirement is minimal (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 258; In re Nikki R. (2003) 106 Cal.App.4th 844, 848), D.P.'s vague statements were not enough. Nor did they trigger any duty of the part of the court or the Agency to attempt to obtain access to D.P.'s birth records.

DISPOSITION

Judgment affirmed.

NARES, Acting P. J.

WE CONCUR:

AARON, J.

IRION, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^[1] Because D.P. does not appeal, we refer to him only in the discussion of the ICWA issues and as otherwise necessary.

^[2] She said she last used crystal methamphetamine in high school and last used marijuana before she found out she was pregnant with B.P. At the time she made this statement, she was 27 years old.

^[3] B.P. had mild developmental and speech delays. He received services for those delays at Head Start.

^[4] Samantha denied that she had any Indian heritage.