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

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA


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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 gave the Agency discretion to expand visitation with concurrence of the children's attorney.

Michael had three subsequent visits: Four hours on April 9, 2010, four hours on April 11, and two hours on May 1. His girlfriend, her mother, and employees of the Indian Health Council and the Southern Indian Health Council were available to provide transportation. In August the social worker reported Michael had had two more visits.

At the 12-month hearing on August 3, 2010, Michael testified he lived on the Campo Reservation, and the children lived on the La Jolla Reservation, which was two hours away. He said he had visited only about seven times in the past six months and explained he had not visited more often because he did not have a car. He acknowledged he had not been taking advantage of available transportation, but maintained he had not seen the children more frequently because he had no ride.

The social worker recommended the children stay in their current placement. He said Michael had participated in services, but was unable or unwilling to implement what he had learned or to put the children's needs ahead of his own. He testified Michael had an available support system, but had not used it for transportation, visiting only twice in the preceding two months.

After considering the evidence and argument, the court found active efforts had been made to prevent the breakup of the Indian family and reasonable services had been provided. It found Michael had made substantive progress with the provisions of his case plan, but it would be detrimental to place the children with either parent. It continued services to the 18-month date and continued the children in relative placement.

DISCUSSION

I

Michael contends the court erred by finding returning the children to his custody would be detrimental. He also argues substantial evidence does not support finding he was provided or offered reasonable services or that the Agency had made active efforts to prevent the breakup of his Indian family.

A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) " ' " ' "The rule is clear that the power of the appellate courts begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact." ' " ' " (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1227, citations omitted.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court.' [Citation.]" (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Section 366.21, subdivision (f), provides that at the 12-month hearing:

"The court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment. . . ."

Substantial evidence was presented to show returning the children to Michael's custody would cause a substantial risk of detriment. Michael had not lived with Rose and the children since the children were very young. During the first several months of their dependencies he was incarcerated and had no contact with them. Then he did not visit them as much as he was allowed and visited only once between February 18 and March 24, 2010. From the time of the six-month review hearing on March 25 and the 12-month hearing on August 3, he visited only five times. Despite the fact that transportation was available to him from his girlfriend, her mother, and employees of the Indian Health Council and the Southern Indian Health Council, he told the relative caregiver it was too difficult for him to visit because he had no car. By the time of the 12-month hearing, his telephone calls to the children had been decreasing. Michael did not put the children's needs above his own. He minimized their health issues, including their problems with asthma, and said he did not think they needed any therapy. Michael did not show error by the court finding returning the children to his custody would create a substantial risk of detriment to the children.

He also did not show the court erred by finding he was offered or provided reasonable services. In determining the sufficiency of reunification services, the role of the appellate court is to decide "whether the record discloses substantial evidence which supports the juvenile court's finding that reasonable services were provided or offered." (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) The standard is not that the best possible services were provided, but that reasonable services were provided under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)

Michael argues the Agency's efforts to help him with transportation for visits were insufficient. He objects that because visits were scheduled for two-hour and four-hour blocks of time, he had to rely on others to give whole days to assist him, and the Agency brought the children to him on only one occasion. He complains the Agency simply waited for him to contact people to arrange for transportation. Michael's argument is unfounded. It was Michael's responsibility to make some effort to see the children. At the six-month hearing, the court told Michael it was concerned with his failure to maintain consistent visitation and contact with the children and advised him to take more initiative. The court stated at the hearing:

"What that means, sir, is you need to pick it up. . . . I'm not trying to lecture you. . . . But you do need to increase your efforts. If you do, I think you are going to find that you are going to be able to see the kids more and that you are going to have a lot more discretions, but from your end, I think there's a general feeling, and I know I feel there needs to be more effort on your part. So I am just letting you know."

The court was explaining to Michael that he needed to show his children were important enough to him that he would take the initiative to visit them. Michael needed to develop relationships with them and put into practice what he had learned from parenting instruction. He, however, did not increase his visitation in spite of the fact that he had several resources to call upon for help with transportation. He has not shown his services were inadequate in any way.

Likewise, Michael also has not shown the court erred by finding by clear and convincing evidence the Agency had made adequate efforts to prevent the breakup of the Indian family. ICWA requires:

"(d) Any 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).)

In In re Michael G. (1998) 63 Cal.App.4th 700, 712, this court stated the Agency has the burden to prove by the standard of clear and convincing evidence that active efforts were made to prevent the breakup of the Indian family. Under ICWA, services must include the use of available resources of the extended family, the tribe, Indian social services agencies and Indian care givers. In In re Michael G., supra, at page 714, this court ruled 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."

Substantial evidence supports the finding that active efforts within the meaning of ICWA were made to prevent the breakup of this Indian family. Michael received parenting training through classes and in-home instruction. The social worker worked with him to secure transportation for him to visit the children and held a Team Decision Meeting to go over his transportation options, including resources at Indian Health Council and Southern Indian Health Council. Yet Michael asked the social worker from Indian Health Council for help with transportation only one time and never asked the Southern Indian Health Council for help. He did not make use of the resources available to him. Substantial evidence supports the finding by clear and convincing evidence that active efforts were made to prevent the breakup of the Indian family.

II

Michael asserts the court erred by not requiring expert Indian testimony to support the finding it would be detrimental to return the children within the meaning of ICWA. He, however, has forfeited this argument by not raising it in the juvenile court.

"A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court." (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.) A "reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] [¶] . . . [¶] Dependency matters are not exempt from this rule." (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.) Forfeiture applies to claims of statutory error and to claims of violations of fundamental constitutional rights. (In re Seaton (2004) 34 Cal.4th 193, 198.)

During the 12-month hearing, Michael did not object to the lack of expert Indian testimony. He has thus forfeited the issue. Moreover, expert testimony was not required because the court continued the reunification period to the 18-month date. It did not schedule a section 366.26 hearing. Qualified expert testimony is required to support a finding that continued custody of an Indian child with the parent or Indian custodian is likely to result in serious emotional or physical damage to the child if the Indian child is placed in foster care. (25 U.S.C. § 1912(e).) Qualified expert testimony is also required to support a determination that continued custody of an Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child if parental rights are terminated. (25 U.S.C. § 1912(d) & (f).)

The court did not order the children placed in foster care, refer the matter to a section 366.26 hearing or terminate parental rights. Instead, it continued the reunification period to the 18-month date. The requirements of 25 United States Code section 1912(d), (e) and (f), for expert testimony, do not apply.

DISPOSITION

The orders are affirmed.

WE CONCUR:

NARES, J.

IRION, J.


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