IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
December 27, 2010
IN RE A.B., A PERSON COMING UNDER THE JUVENILE COURT LAW.
SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
V.C. ET AL., DEFENDANTS AND APPELLANTS.
(Super. Ct. No. JD226645)
The opinion of the court was delivered by: Hull, Acting P. J.
In re A.B.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appellants, the father and mother of the minor, appeal following the six-month review hearing. (Welf. & Inst. Code, § 395; further undesignated statutory references are to this code.) Appellants claim the court erred in applying provisions of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) We affirm the juvenile court's orders.
FACTS AND PROCEEDINGS
In November 2007, a dependency petition was filed by the Sacramento County Department of Health and Human Services (Department), which, as later amended, alleged appellants were unable to provide adequate care for the eight-month-old minor, who was medically fragile, and they had mental health and cognitive deficiencies that impaired their ability to parent. According to the jurisdictional report, the minor had been deprived of oxygen during her birth, causing brain damage and developmental delays, and she had a tube inserted in her stomach to assist her in obtaining adequate nutrition. She was being seen by numerous medical specialists and an occupational therapist, as well as receiving services from the Alta Regional Center.
Appellants had signed a voluntary placement agreement following the minor's birth and were provided voluntary services, including substance abuse treatment and a parenting education class. At the time that the voluntary placement was due to expire, appellants were homeless and had been uncooperative in attempts to assist them in obtaining housing. In addition, they had refused to participate in mental health assessments, and the mother stopped participating in substance abuse treatment after approximately one month.
Appellants both reported Indian heritage. The father claimed Sioux, Iroquois and Seneca ancestry, and the mother reported ancestry with the Pomo, Pit River, Wailaki and Round Valley tribes. Notice was sent to 52 tribes on December 4, 2007, for the December 21, 2007, hearing with information about appellants' Indian relatives. At the hearing on December 21, the matter was continued for three weeks because not all of the return receipts had come back from the tribes.
Subsequently, the Department reported that the minor was eligible for enrollment with the Round Valley Indian Tribes (Round Valley Tribe). The parties agreed there had been compliance with ICWA notice requirements.
On January 29, 2008, the Department sent letters to all of the possible tribes, referring to the prior ICWA notice and providing the maternal great-great-grandmother's married name and her date and place of death.
The jurisdictional hearing took place on February 1, 2008. The mother's attorney informed the juvenile court that the Round Valley Tribe intended to intervene once the minor was enrolled. The allegations in the amended petition were sustained, and the court ordered the parents to comply with the case plan and to participate in counseling as arranged by the social worker to address a variety of specified issues. In addition, the mother was ordered to submit to a psychological evaluation for the purpose of tailoring her services. The juvenile court set the matter for an interim hearing and ordered notice to the Round Valley Tribe to give it an opportunity to be heard on whether the minor was an Indian child.
At the interim hearing in March 2008, a representative of the Round Valley Tribe appeared and informed the juvenile court that the minor was an Indian child in relationship to the tribe. The court declared the minor an Indian child and, after noting the other tribes that received notice had either determined the minor was not eligible for membership or had not responded, found the only tribe entitled to receive future notice was the Round Valley Tribe.
Although the social worker had submitted a referral for the mother's psychological evaluation prior to the dispositional hearing, she later discovered that the referral was never received. The social worker contacted several providers in order to schedule the evaluation as expeditiously as possible.
However, at a hearing in April 2008, the mother complained that her psychological evaluation failed to make recommendations for services, and the Department agreed that a new evaluation was necessary. The Department also requested that the father be ordered to complete a psychological evaluation, to which the father objected. The juvenile court ordered a new evaluation for the mother and deferred the issue of whether to order a psychological evaluation of the father until he completed a mental health "assessment."
The mother's psychological evaluation found that she had cognitive delays and dependent personality traits, and recommended that she participate in an array of services, including an independent living skills program, individual counseling, and instruction and information about the minor's physical disabilities and development. The social worker submitted an updated case plan, which incorporated these recommendations. The mother's case plan also included an independent living skills program. The social worker again recommended that the father undergo a complete psychological evaluation to tailor services for him.
At a hearing in May 2008, the juvenile court declined to order a psychological evaluation of the father at his request, leaving the remaining components of the case plan in place. At the request of the Round Valley Tribe, the Department was ordered to consult with its representative when selecting an individual counselor for the mother.
By the six-month review, the minor continued to be seen by numerous specialists and service providers to address her many medical problems. She had "made significant developmental and physical improvements" while in foster care, and her regional center case manager felt the foster parent's "excellent care" had allowed her to progress as she had.
Meanwhile, appellants' progress in services had been "difficult." The mother's referral to the independent living skills program was delayed until June 2008 because a payment contract was being arranged with the service provider. Although the foster parent had initially allowed appellants into her home to participate in services, she withdrew her consent due to their "constant and harassing telephone calls" and their accusations that she changed or cancelled the minor's medical appointments for her own convenience. Appellants had difficulty communicating with the social worker without becoming agitated and yelling, and their conversations were often replete with complaints, accusations and threats that they would call their attorneys. Although appellants participated in most of the minor's medical appointments and services, there were concerns that their negative interactions might lead providers to discontinue services.
In an addendum report, the social worker explained that the parents had not been referred to individual counseling until after their mental health evaluations were completed because the evaluations were needed to clearly identify the issues to be addressed. Counseling was further delayed when the court ordered the Department to consult with the representative of the Round Valley Tribe when selecting the mother's therapist. By the six-month review, appellants had completed 13 counseling sessions through a Native American health center. They also were receiving comprehensive self-reliance training services, which included transportation to services and visits.
At the six-month review hearing, which occurred in September 2008, the service provider from the independent living skills program testified that appellants began receiving services from the program in mid-August. The service provider felt the mother would need at least six months to meet her treatment goals, which was typical for the clients he worked with.
Appellants' therapist testified that appellants had made progress in therapy.
The juvenile court found that "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family" and that appellants had made substantial progress. Accordingly, the court ordered additional reunification services for appellants.
I Active Efforts
Appellants claim there was insufficient evidence to support the juvenile court's finding at the six-month review hearing that active efforts had been made to prevent the breakup of the Indian family in compliance with the ICWA because there was a delay in providing services and the prevailing social and cultural standards of the Round Valley Tribe were not considered. We conclude this claim is not appealable. Before a child may be placed in foster care (and before parental rights may be terminated), the juvenile court must be satisfied 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 the present matter, the juvenile court made a finding to this effect at the six-month review hearing and continued reunification services. As neither party argues to the contrary, we will assume without deciding that a review hearing in a dependency matter in which a child is continued in foster care involves a foster care placement for purposes of the ICWA. (See § 366, subd. (a)(1)(A); In re S.B. (2005) 130 Cal.App.4th 1148, 1166.)
Section 395, subdivision (a)(1) provides that, in dependency matters, the judgment and orders made after the judgment are appealable. In Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147 (Melinda K.), the appellate court cited section 395 in holding that a reasonable services finding is not appealable when services are continued, because a party may not appeal a finding "in the absence of an adverse order resulting from that finding." (Melinda K., at pp. 1153-1154.) Recognizing that a non-appealable finding "may later become part of the factual basis for a subsequent appealable order" and yet be non-appealable at that time due to untimeliness (id. at p. 1156), the appellate court held "a petition for writ of mandate is the appropriate method by which to challenge a finding made by a juvenile court at a review hearing which does not result in an appealable order" (id. at p. 1157).
On appeal, appellants do not contest any of the orders made at the six-month review hearing. Instead, the mother urges us not to follow Melinda K., claiming she "has no other opportunity to challenge the reasonableness of services provided in the first six months." But, as we have just discussed, Melinda K. addressed this concern, designating a petition for writ of mandate as the appropriate vehicle for raising such challenges.
The mother's efforts to distinguish Melinda K. are unavailing. She notes that, in that case, the challenge was to the adequacy of services to the child, without explaining how this distinction is relevant to whether the finding is appealable. She also suggests that Melinda K. is distinguishable based on the adequacy of the services provided in that case. This, too, is irrelevant to whether the finding is subject to review by appeal.
The mother argues that, unlike in Melinda K., an adverse order resulted from the juvenile court's finding here, in that the minor was continued in out-of-home care. But in Melinda K., the child was continued in placement. (Melinda K., supra, 116 Cal.App.4th at p. 1152.) In any event, the mother does not cite any authority, nor are we aware of any, requiring that a child be returned to parental care at a review hearing following a finding that the active efforts requirement was not satisfied.
The mother points out that, in Melinda K., the appellate court noted it would have reached a different conclusion had the juvenile court found that returning the child to the parent would be detrimental because she failed to avail herself of the services offered. (Melinda K., supra, 116 Cal.App.4th at p. 1154.) The court reasoned that, under those circumstances, the "order that the minor not be returned to mother would be premised on [the court's] finding that reasonable services had been provided." (Ibid.) But, just as in Melinda K., the juvenile court here "made no finding of detriment based on [appellants'] participation or lack of participation in court-ordered services." (Id. at p. 1156.) In fact--as in Malinda K. (ibid.)--the juvenile court found that appellants had participated regularly and made substantive progress in services, and that they had made substantial progress toward alleviating or mitigating the causes necessitating the minor's out-of-home placement.
We note that the holding in Melinda K. regarding the nonappealability of a reasonable services finding was "question[ed]" recently in In re T.G. (2010) 188 Cal.App.4th 687, 694. The court in In re T.G. relied on a California Supreme Court case holding that an order at a section 366.26 hearing continuing the matter for six months when a minor is adoptable but difficult to place (§ 366.26, subd. (c)(3)) is appealable. (In re S.B. (2009) 46 Cal.4th 529, 534.) However, in In re S.B., the finding that the child was adoptable resulted in an adverse order--that efforts be made to locate an appropriate adoptive family--and removed foster care as an option at the subsequent hearing. The Supreme Court, thus, concluded that the parties' interests were "substantially affected by [such] order." (Id. at p. 537.)
A reasonable services or active efforts finding, on the other hand, does not necessarily result in adverse orders. Here, it did not. Accordingly, we conclude the finding was not appealable. As we reject appellants' claim on this basis, we deny the Department's request for judicial notice of minute orders from two subsequent hearings, which pertain to a claim that is unnecessary for us to reach.
II Indian Child Welfare Act Notice
The father also maintains the ICWA notice was inadequate. We disagree.
Among the procedural safeguards included in the ICWA is a provision for notice, which states in part: "In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." (25 U.S.C. § 1912(a).)
The father makes several claims (in which the mother joins) regarding the adequacy of the ICWA notice provided in the present matter. His first contention is that none of the notices contained entirely accurate information regarding the minor's Indian heritage, in that the first notice was "admittedly inaccurate," and the letter that subsequently was sent out to correct the first notice was "in and of itself, not notice." The father provides no authority for his suggestion that when additional ICWA information is disclosed, the social services agency is obligated to convey the supplemental information to the tribes together with all previously disclosed ICWA information in one notice. The supplemental information sent by the Department identified the minor by name and date of birth, provided the date of the previous ICWA notice, and clearly delineated the corrections to the previous notice. If anything, this method likely made it easier for the tribes to determine whether the new ICWA information impacted the determination of whether the minor was an Indian child.
The father contends it is unreasonable to expect that the tribes would have saved and located the first ICWA notice when the subsequent letter was received a little more than one month later. But, in addition to providing identifying information about the minor and the date that the previous notice was sent, the Department's supplemental letter contained information on how to contact it with any questions. If any of the tribes were unable to locate the original ICWA notice, it is reasonable to assume they would have contacted the Department.
The father also complains that the notice was not timely because the original notice was not received by some of the tribes until less than 10 days before the hearing. However, contrary to the father's assertion, the juvenile court continued the matter three weeks because return receipts had not come back from some of the tribes. By the time of the subsequent hearing, all of the tribes had received notice at least 10 days before the hearing.
It is true that the supplemental letter containing corrected information was sent to the tribes only two days before the jurisdictional hearing. However, the information provided in the letter pertained to the minor's great-great-grandmother, who was "Pit River and Pomo Indian, part of the Round Valley Reservation." By the jurisdictional hearing, the minor's affiliation with the Round Valley Tribe had already been established. Moreover, the information provided in the letter pertained to the great-great-grandmother, whose name, date and place of birth and tribal affiliation, as well as information about her parents, were contained in the original notice to the tribes. The additional information in the supplemental letter consisted of the great-great-grandmother's married name and her date and place of death, information of a nature unlikely to unearth theretofore undiscovered tribal connections.
Finally, the father complains that, as the minor's membership in one tribe does not foreclose another tribe from intervening and participating in the proceedings (see 25 U.S.C. § 1903(5)), continued notice to all of the possible tribes was required until each tribe determined that the minor was not eligible for membership. But if "proper and adequate notice has been provided" and no response is received from a tribe within 60 days of receipt of that notice, the juvenile court "may determine that the [ICWA] does not apply." (§ 224.3, subd. (e)(3).) At an interim hearing occurring more than 60 days after all of the tribes received notice and only the Round Valley Tribe had responded that the minor was eligible for membership, the juvenile court made this determination, finding that the other tribes were not entitled to further notice. This finding was proper.
The juvenile court's orders are affirmed.
We concur: ROBIE, J. SCOTLAND, J.*fn1