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In Re Seth R. et al., Persons Coming Under the Juvenile Court v. Michael R

December 13, 2010

IN RE SETH R. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
MICHAEL R., DEFENDANT AND APPELLANT.



(Super. Ct. No. EJ3081A-B) APPEAL from orders of the Superior Court of San Diego County, Michael J. Martindill, Juvenile Court Referee. Affirmed.

The opinion of the court was delivered by: Benke, Acting P. J.

In re Seth R. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Michael R. appeals juvenile court orders made at a 12-month review hearing continuing his children, Seth R. and Sonny R., as dependents of the court in relative care. He contends the court erred by finding returning the children to his custody would be detrimental. He also asserts substantial evidence does not support finding that he was provided or offered reasonable services, or that the San Diego County Health and Human Services Agency (the Agency) made active efforts to prevent the breakup of his Indian family. In addition, he maintains the court erred by not requiring expert testimony to support the finding it would be detrimental to return the children within the meaning of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

On April 13, 2009, the Agency petitioned under Welfare and Institutions Code*fn1 section 300, subdivision (b), on behalf of three-year-old Seth and one-year-old Sonny, alleging they were at substantial risk because their mother, Rose H., cut her wrists, talked of committing suicide and abused drugs. Michael was at a conservation center, where he was serving a term for a parole violation. He declined to start services until his release. He had no contact with the children.

Rose was hospitalized in a psychiatric unit and when released entered residential substance abuse treatment. She soon left the program. She told the social worker she and Michael had had domestic violence incidents in the past when they drank alcohol together.

Rose said she was affiliated with the Morongo Indian Tribe, the paternal grandfather was affiliated with the La Jolla Tribe and the paternal grandmother with the Campo Tribe. Phillip Powers, an Indian expert witness, stated Michael is a member of the La Jolla Band of Luiseno Indians and the children are eligible to enroll in this tribe. Mr. Powers recommended the children be declared dependents of the court and opined active efforts had been made to provide services to prevent the breakup of the Indian family, and custody with the parents presented a substantial risk of serious harm.

On June 8, 2009, the court found the allegations of the petitions to be true, declared the children dependents of the court and placed them in foster care. It found it would be detrimental to place them with Michael. The court noted it had considered Mr. Powers' declaration and found ICWA applied and active efforts had been made to prevent the breakup of the Indian family.

For the six-month review hearing, the social worker reported the children were living with tribal relatives on the La Jolla Reservation. Rose continued to use drugs and/or alcohol and missed drug tests. She began counseling and signed up for parenting classes, but did not follow through.

Michael was released from custody in September 2009. He began a parenting class and was compliant with his parole conditions. Visits were arranged at the Rincon Reservation. The social worker reported that during visits, Michael was loving and attentive, but although he was allowed more visitation, he visited only one day on weekends. At a Team Decision Meeting in February 2010, he was authorized to have four hours of weekly visitation, but between February 18 and March 24 he visited just one time. He telephoned about once each week. He said it was difficult to visit because he had no car. Several alternatives for help with transportation were outlined for him.

Michael said he had not lived with Rose and the children since Seth was two years old and Sonny was about five months old. In March 2010 the children underwent developmental evaluations. At the time of the evaluations, Seth was three years and ten months old; Sonny was two years and two months old. The social worker was concerned the children were withdrawn and depressed, but they tested within normal developmental limits. The evaluator recommended Sonny continue with behavior therapy and Seth continue to participate in a structured preschool and therapy. The social worker reported Seth had severe dental decay and both children had asthma and required breathing treatments.

At the six-month review hearing on March 25, 2010, the court continued the children in relative care. It found active efforts had been made to prevent the breakup of the Indian family, reasonable services had been provided, and Michael had made some progress, but Rose had not made progress. It directed Michael to participate actively in visitation and ...


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