Filed 4/6/22 M.S. v. Superior Court CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

M.S. (Mother) and S.F. (Father) petition this court for extraordinary relief after the juvenile court terminated reunification services with their daughter, S.F. (Minor) and set a hearing pursuant to Welfare and Institutions Code section 366.26.[1] Both parents contend the evidence does not support the trial court’s findings, and Father additionally contends the court failed to ensure compliance with the requirements of the Indian Child Welfare Act of 1978. (25 U.S.C. § 1901 et seq. (ICWA); see also Welf & Inst. Code, § 224 et seq.) We conditionally grant Father’s petition as to his ICWA claim, and otherwise deny the petitions on the merits.

FACTUAL AND PROCEDURAL BACKGROUND

1. Detention, Jurisdiction, Disposition, and Visitation

Minor was detained in April 2021, when she was eight months old. The Del Norte County Department of Health and Human Services (the Department) reported that in February 2021, Father was arrested for domestic violence and child endangerment after an incident in which he hit Mother in the eye. Afterward, he told a social worker he would commit suicide if Minor was removed from his custody. Mother was more afraid to be away from Father than she was of his acts of verbal and physical violence.

On April 4, 2021, during another of the couple’s frequent arguments, Father hit the trailer where the family lived, threw things around, and slapped Mother in the face while Minor was in their physical custody. He was arrested for domestic battery. (Pen. Code, § 243, subd. (e)(1).) Mother said she did not think Father should be in custody for “ ‘just slapping her’ when ‘it didn’t hurt that bad.’ ”

Mother told a social worker a few days later that she had no money whatsoever and only six or seven diapers left for Minor. The home contained marijuana paraphernalia, including live plants, and little or no provisions for Minor. The family was about to be evicted, and they had no plan to provide shelter for Minor thereafter.

Mother’s behavior during conversations with the social worker raised concerns about her mental health; she appeared to have difficulty concentrating and communicating her thoughts; she frequently went “of[f] topic” during conversations; she appeared depressed, expressed low self-worth, cried uncontrollably, and suddenly became angry; she was paranoid and suspicious during conversations; she refused to provide information about why her other child was no longer in her care; she reported hearing voices in her head; and when asked about reports that she believed Minor was demonically possessed she changed her tone to a “demonic tone” and stated that sometimes Minor told her to “shut up you fucking bitch.” (Capitalization removed.) The Department offered mental health care services to both parents, but they refused to participate.

During a home visit on April 7, 2021 at which police were present, Mother screamed about trauma she had undergone and police corruption, her moods shifted rapidly, she spoke in “rapid and constant speech that was hard to follow and hard to understand,” and she switched from an apparent state of mania to one of defeat. The family’s home was extremely dirty and had a strong unpleasant smell.

At the April 12, 2021 detention hearing, when Mother’s counsel expressed concern that Mother was not mentally capable of making the best decisions for herself, the juvenile court appointed a guardian ad litem to assist her.

According to the jurisdiction report, Mother and Father were in the process of being evicted from their home. They had been engaging in appropriate visitation with Minor. Both of them used marijuana.

The Department believed Mother and Father were unable to meet Minor’s basic needs because of their problems with substance abuse and mental health. According to the Department, Father was unwilling to engage in mental health services to address the anger that led him to assault Mother verbally and physically in Minor’s presence, and Mother had failed to protect Minor from being exposed to domestic violence.

At the April 26, 2021 jurisdiction hearing, Mother testified that she and Father were being evicted from their home because they had had “loud” arguments and others said they were “annoying.” She and Father used marijuana, but they did not smoke in the house on the advice of a pediatrician.

The juvenile court sustained allegations that Minor was at risk of serious physical harm, that Father and Mother failed to protect Minor, and that each parent had abused or neglected a half-sibling of Minor. The court assumed jurisdiction of Minor (§ 300) and ordered her to remain out of the parents’ custody.

At the May 10, 2021 dispositional hearing, the court removed Minor from the parents’ physical custody and ordered reunification services, including supervised visitation. As part of the case plan, Mother and Father were to complete the Incredible Years parenting program; attend and demonstrate progress in a domestic violence prevention program; stay free from illegal drugs and live free from drug dependency; complete a mental health assessment and comply with medical or psychological treatment; demonstrate that they were able to meet Minor’s physical, emotional and psychological needs; and provide regular and random clean drug tests upon request. To assist them in meeting these goals, the Department was to work with the parents and their support people, make referrals to community resources to meet the needs of Mother, Father, and Minor, and stay in contact with Mother and Father to assess their progress and counsel them.

At a hearing on November 8, 2021, the Department informed the juvenile court that at a recent visit, both parents became violent toward members of its staff, throwing toys at them, throwing a cup full of ice at an aide, and “yelling and cussing and screaming,” all in front of Minor. The Department asked the juvenile court to reduce the visitation time from five hours a week to a minimum of one and a half hours a week and asked to have the visits be monitored by video, rather than in person, to avoid both the need for the Department’s staff to be in the same room as the parents and the risk that Minor would be exposed to further violence. Mother and Father were present at the hearing and did not dispute the Department’s version of events. The trial court granted the Department’s request.

2. Six-Month Review and Termination of Reunification Services

The six-month status review hearing took place on January 10, 2022.

The evidence showed that Mother and Father visited Minor regularly. Father was constantly on the phone during visitation, and he sometimes interrupted Mother’s interactions with Minor. Father would often speak angrily to Mother in front of Minor. During one visit, the social worker saw Father “yelling and cussing” at Mother. Minor did not respond to this behavior, “almost as if it was a normal thing.” One visit was ended early because of aggressive behavior between the parents. A visit on September 9, 2021 was ended early because Father became verbally aggressive toward Department staff.

Father had completed the Incredible Years parenting program. His drug tests were positive for THC and alcohol on occasion. He had completed a mental health assessment, but he did not follow through with any follow-up appointments, and he did not answer any phone calls from the mental health program after the initial assessment.

A psychologist who evaluated Mother concluded that, although she loved Minor, there was no “ready solution,” because Mother blamed “the system,” was “narcissistically enraged,” disavowed responsibility, and blamed others. He characterized her thinking as “ ‘highly biased [and] unbalanced.’ ” He diagnosed Mother as having a moderate to severe alcohol-related disorder, although it was not clear whether she was currently drinking, as well as dependence on cannabis. He thought both Mother and Father would benefit from drug and alcohol treatment, mental health treatment, and individual parenting training. While the psychologist did not recommend “categorically” against reunification, he described both parents as “fairly hapless and incapable of a sustained, minimally competent parenting effort.”

Mother was actively engaged in visiting Minor, was attentive to her, and appeared to have genuine love for her. She had participated in an online domestic violence program. She completed the Incredible Years parenting program. She completed the psychological assessment, but after the assessment, Mother did not respond to phone calls from “mental health,” and she was discharged from the program for noncompliance. Mother sometimes became “loud and verbally aggressive” during child and family team meetings.

Mother’s drug tests were consistently positive for THC and occasionally positive for alcohol, but they showed no drugs such as heroin or methamphetamine. The social worker had referred Mother for a substance abuse program, but Mother did not respond to the program’s efforts to contact her.

The social worker assigned to the case had seen no change in the behavior of Mother or Father during the eight months of the dependency.

The Department had given Mother contact information for a hotel that could provide housing. The family had two dogs, and the hotel did not allow dogs. Mother and Father found another hotel where they could live with their dogs.

The Department had offered transportation assistance to the parents, such as money for gasoline, paying for their vehicle registration, and offering a ride to the psychological assessment.

Mother testified the Department had done nothing to help her find a job, and that the benefits she had received were limited to $45 dollar cards for phones and $35 a month for gasoline. She and Father had been evicted from their home and were staying in a hotel. She testified she had completed a parenting class and 16 weeks of anger management.

Mother denied that Father was physically aggressive toward her, saying he was merely “boisterous” and “loud,” and she said he was never aggressive toward Minor. She did not think domestic violence was a reason Minor was taken from her, and she did not believe she and Father had an unhealthy relationship. She acknowledged that Father had pled no contest to committing domestic violence, but said the no contest plea “is not guilty.”

At the conclusion of his direct examination of Mother, her attorney asked her, “If the judge gave you a little bit more time, would you cooperate 100 percent with the social workers to try to get your child back?” Rather than answering in the affirmative, Mother replied, “I would not subject myself to the clinical services manager,” and she went on to recount the reasons for her negative views of her.

The juvenile court explained that it could not find there was a likelihood of reunification if services were extended past six months and terminated reunification services. In so doing, it found that the Department had provided reasonable services to Mother and Father, that each parent had made minimal progress toward alleviating the causes necessitating placement, and that returning Minor to either parent would create a substantial risk to her safety, protection, or physical emotional well-being. It ordered a hearing section 366.26 hearing to select a permanent plan for Minor.

DISCUSSION

1. Reunification Services

Both Mother and Father contend the Department did not provide adequate reunification services. When a child under the age of three has been removed from parental custody, the court ordinarily must order reunification services for at least six months from the dispositional hearing. (§ 361.5, subd. (a)(1)(B).) The court may not terminate reunification services and set a hearing to terminate parental rights unless it finds, by clear and convincing evidence, that reasonable reunification services have been provided or offered. (§ 366.21, subd. (g)(4); Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1345.) The adequacy of the reunification plan and the reasonableness of the Department’s efforts are judged based on the circumstances of the case. (Amanda H., at p. 1345.) “ ‘[T]he record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the courts of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult . . . . ’ ” (Ibid.) “ ‘The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances.’ ” (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1426.) We review a finding of reasonable services to determine whether there is substantial evidence from which the trier of fact could make the finding by clear and convincing evidence. (T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1239–1240.)

Mother contends the Department failed to comply with its obligation to provide reasonable reunification services. She acknowledges that she “made some mistakes,” but points out that she participated in a parenting class, a domestic violence class, family team meetings, and screening for drugs and alcohol, and that she submitted to a psychological evaluation and mental health assessment. She goes on to argue that she “does not believe that she received sufficient services to help her reunite with her daughter, and she is willing to do whatever she can, if given more time and adequate services,” to reunite with Minor. But the only deficiency she identifies in the Department’s efforts is what she characterizes as “lax” efforts to assist the family in finding adequate housing.

Father similarly contends he complied with the case plan and argues he received inadequate services. He points out that the Department expressed concerns about his interactions with Mother, and argues that because he was not referred to “any form of communication therapy,” his services were inadequate to address the problems leading to the dependency.

Neither of these arguments is persuasive. The primary reasons Minor was removed from Mother and Father are because they exposed her to verbal and physical domestic violence, and because of concerns that the parents’ problems with mental health and substance abuse rendered them unable to meet Minor’s basic needs. The record indicates they were evicted from their home as a result of Father’s disruptive behavior. While it appears the Department’s efforts to assist them in finding new housing were limited to giving them contact information for a hotel that did not allow dogs, it also appears the parents were able to find housing at another hotel where dogs were allowed. The Department made some efforts, and the parents were able to resolve this problem. Crucially, Mother makes no claim the Department did not provide resources to help the family address the issues of domestic violence and mental health that underlay the dependency. And while Mother participated in some of these services, she did not participate completely and did not adequately address the underlying problem.

We are no more persuaded by Father’s contention that he did not receive “communication therapy.” The record shows Father failed to attend follow-up appointments after his mental health assessment and did not answer phone calls from “Mental Health.” He participated in a parenting program and a domestic violence program, but continued to be verbally abusive and aggressive toward Mother. The services he was offered or received were designed to address the problems that brought about the dependency, and Father has not shown that “communication therapy” was necessary in addition to the other services the Department made available.

II. ICWA Inquiry

Father also argues the record does not show the Department complied with its duty of inquiry under ICWA. On this point, we agree with him.

At the outset of the dependency, Father told the social worker he believed he had Cherokee ancestry on both sides of his family but that he did not have an enrollment card or enrollment number. He filled out a form stating his grandmother, whom he named, was a member of the Cherokee tribe in Tulsa, Oklahoma. At the April 12, 2021 detention hearing, the juvenile court directed the Department to conduct further inquiry into the matter.

Father later told the social worker family stories suggesting he had Indian or, more specifically, Cherokee heritage on both sides of his family. The Department explained in the jurisdiction report that it had been unable to reach Father’s grandparents and that it would complete further ICWA inquiry and provide notice to any identified tribes and the Bureau of Indian Affairs (BIA) if required. There is no indication that the Department conducted further inquiry into the matter. The May 7, 2021 disposition report states without elaboration that ICWA did not apply, and the juvenile court so found and did not order further inquiry.

“ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes and families by establishing certain minimum federal standards in juvenile dependency cases. [Citations.] ICWA defines an Indian child as any unmarried person who is under age 18 and is either (1) a member of an Indian tribe, or (2) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4).) [¶] When a court ‘knows or has reason to know that an Indian child is involved’ in a juvenile dependency proceeding, a duty arises under ICWA to give the Indian child’s tribe notice of the pending proceedings and its right to intervene. [Citations.] Alternatively, if there is insufficient reason to believe a child is an Indian child, notice need not be given. [Citations.]” (In re Shane G. (2008) 166 Cal.App.4th 1532, 1538; see In re Damian C. (2009) 178 Cal.App.4th 192, 196; see also § 224 et seq., Cal. Rules of Court, rule 5.480 et seq.)

A duty to inquire further into a child’s Indian status arises when there is reason to believe—but not enough information to know—that the child is an Indian child. (§ 224.2, subd. (e).) This circumstance may arise where the information suggests that either the parent or the child is a member of, or may be eligible for membership in, an Indian tribe. (§ 224.2, subd. (e)(1).) In such a case, further inquiry, including interviewing the child’s parents and extended family members and contacting the tribe or tribes and any other person who may reasonably be expected to have information about the child’s Indian status, is necessary. (§ 224.2, sub. (e)(2); see Cal. Rules of Court, rule 5.481(a)(4).) If the inquiry causes the social worker or court to know or have reason to know an Indian child is involved, the social worker must provide notice to any tribes of which the child may be a member or eligible for membership, or, if no tribe can be determined, to the BIA. (In re Isaiah W. (2016) 1 Cal.5th 1, 8 (Isaiah W.); §§ 224.2, subd. (a), 224.3, subd. (d).) We review the trial court’s findings as to whether proper ICWA notice was given under ICWA for substantial evidence. (In re D.N. (2013) 218 Cal.App.4th 1246, 1251.)

The case of In re Elizabeth M. (2018) 19 Cal.App.5th 768 (Elizabeth M.) is instructive in this matter. The mother there had reported her family was part Red Tail Indian, a tribe that was not federally recognized. The social services agency conducted no further investigation of the dependent children’s possible Indian ancestry. (Id. at p. 786.) The appellate court ruled the agency’s investigation was inadequate, concluding that when a parent or family member provides information about a child’s possible Indian ancestry, the agency has an “affirmative obligation to interview family members and others who could be expected to have relevant information concerning the child’s status” and the court has the “duty to ensure an appropriate inquiry has been conducted before concluding ICWA does not apply to the case.” (Ibid.) The case was therefore conditionally affirmed and remanded for the agency to “conduct a meaningful inquiry into [the] claim [of Indian ancestry], including making genuine efforts to locate family members who might have information bearing on [the children’s] possible Indian ancestry.” (Id. at p. 788; accord, In re Michael V. (2016) 3 Cal.App.5th 225, 235 [where mother reported Indian ancestry, agency had obligation to interview parents, Indian custodian, and extended family members]; In re Andrew S. (2016) 2 Cal.App.5th 536, 548 [further investigation required where agency did not contact his siblings or other extended family members of father who believed he might have Indian ancestry].)

Here, Father reported Cherokee ancestry and provided his grandmother’s name, and the only indication the Department carried out further inquiry is the cryptic statement that it had been unable to reach the grandparents but that it would carry out further inquiry. That statement suggests strongly that the Department had not yet explored all avenues of inquiry available to it. While it is possible the Department in fact made an adequate inquiry, this record does not reveal it. In the circumstances, we shall conditionally vacate the order so that the trial court can direct the Department either to show that it made an adequate inquiry into Father’s reported Indian ancestry or to conduct a further investigation into the matter. If further investigation produces additional information substantiating Father’s claim, notice must be provided to any tribe identified or, if a tribe cannot be determined, to the BIA in accordance with the provisions of ICWA. (See Isaiah W., supra, 1 Cal.5th at p. 8; In re Benjamin M. (2021) 70 Cal.App.5th 735, 746.)

DISPOSITION

The January 10, 2022 order terminating reunification services and setting a hearing pursuant to section 366.26 is conditionally vacated. The juvenile court shall direct the Department (1) to show that it made an adequate inquiry into Father’s reported Indian ancestry or (2) if it cannot make this showing, to investigate Father’s claims of Indian ancestry in accordance with ICWA and provide any required notice to a tribe or the BIA. If a tribe intervenes after proper inquiry and notice, the court shall proceed in accordance with the provisions of ICWA. If the Department’s investigation produces no additional information to substantiate Father’s claim, or if no tribe intervenes after receiving notice, the order shall be reinstated.

Except as set forth above, we deny on the merits the petitions of Mother and Father for extraordinary relief. (§ 366.26, subd. (l)(1)(C); Cal. Rules of Court, rule 8.452(h).) This decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)

TUCHER, P.J.

WE CONCUR:

FUJISAKI, J.

PETROU, J.

M.S. et al. v. Superior Court (A164365)

[1] All undesignated statutory references are to the Welfare and Institutions Code.