IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Siskiyou)
January 31, 2011
IN RE C.R. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SISKIYOU COUNTY HUMAN SERVICES DEPARTMENT, PLAINTIFF AND RESPONDENT,
B.R., DEFENDANT AND APPELLANT.
Super. Ct. Nos. SCSCJVSQ095085701 SCSCJVSQ095085801
The opinion of the court was delivered by: Hull , Acting P. J.
In re C.R.
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In case No. C062568, B.R., mother of minors C.R. and K.R., appeals from the juvenile court's jurisdictional findings and dispositional orders, contending: (1) the record fails to show proper notice was given under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)); (2) the court failed to obtain a valid waiver of mother's right to a contested jurisdictional hearing; and (3) substantial evidence does not support some of the court's findings and orders. (Welf. & Inst. Code, § 395; undesignated statutory references that follow are to the Welfare and Institutions Code.) In case No. C063776, mother appeals from the court's orders at the six-month review hearing. We consolidated the appeals on our own motion. We shall reverse and remand for further proceedings under ICWA, but with one exception shall reject mother's other contentions.
FACTS AND PROCEEDINGS
Case No. C062568
On May 12, 2009, Siskiyou County Human Services Department (the Department) filed petitions under section 300, subdivisions (b) and (g), as to C.R. (a female aged 11) and K.R. (a female aged 9). The petitions alleged:
Mother left the minors alone at home for a weekend while she went out drinking. Found intoxicated, she was arrested and incarcerated for child endangerment. The residence was filthy, with no phone and almost no food. Psychotropic medications were within the minors' reach. The minors had to burn candles while left alone. K.R. had been sick during the weekend, with only C.R. to care for her. C.R. said she did not want to live with mother anymore because she was tired of staying up every night until mother passed out from drinking. Mother denied or minimized the significance of these events. The minors had two different fathers, both living out of state.
The detention report further alleged: Mother claimed a friend was looking after the minors, but the friend and the minors denied it. The alleged fathers had not yet responded to contacts. The minors were at serious risk of harm in mother's care because she had left them in dangerous conditions and did not understand the risks; to regain custody safely, mother would need substance abuse counseling and treatment, parenting classes, a psychological evaluation and follow-up, general counseling, and attendance at AA/NA meetings. An ICWA inquiry was needed because the minors might be members of a Cherokee tribe.
At the detention hearing, mother testified that she had previously been married to both alleged fathers, and that her father was an enrolled member of a Cherokee tribe who lived in Oklahoma. The juvenile court found the alleged fathers to be presumed fathers, ordered the minors detained with visitation for mother, and directed an ICWA inquiry.
Subsequently, at mother's request, the juvenile court set a contested jurisdictional hearing on June 25, 2009.
The jurisdiction report, filed June 15, 2009, stated:
The minors were currently placed together in a certified foster home. The Department was investigating their alleged Indian ancestry.
Mother, who had a history of DUI's, said on May 15, 2009, that she would not stop drinking or attend AA meetings. She tested positive for alcohol metabolites on that date and three later dates, most recently on June 3, 2009. On June 10, 2009, she said she planned to attend AA meetings with her son, but had not yet documented doing so. She would discuss other programs or services only with an attorney present.
Mother had had supervised visitation with the minors, but missed several visits. When she visited, she discussed legal topics, though she was advised not to do so; the discussions upset the minors. One visit was terminated because she secretly brought unauthorized people along.
Both presumed fathers wanted custody of at least one minor. However, both admitted criminal records. One presumed father had a history with Child Protective Services, and the minors said the other presumed father hit one of the minors with a belt.
The Department recommended removing the minors from the custody of all parents and offering them reunification services.
At the jurisdiction hearing on June 25, 2009, mother appeared with counsel. The juvenile court stated: "I understand that although there was a request for a contested hearing, that may not be the case any longer." Mother's counsel replied: "That's correct. We were prepared to go forward with the contested hearing. Two of our witnesses are no shows today. And I've advised the mother of this and what possible outcomes there are, but she has asked to submit the case and begin services as quick as she can. [¶] So, we'll be submitting by way of a paper case . . . ."
The juvenile court found the allegations of the section 300 petitions true as to both subdivisions (b) and (g). The court directed the parents to give the Department the information it needed to carry out an ICWA inquiry. The court also ordered mediation of dispositional issues. Finally, the court set a contested disposition hearing on July 31, 2009.
After the jurisdictional hearing, mother signed a mediation agreement obliging her to participate in alcohol and drug assessment, follow recommended treatment, visit the minors twice a week, continue individual counseling, take prescribed medication, attend parenting classes, and go to at least three 12-step meetings a week.
The disposition report, filed July 10, 2009, stated:
ICWA appeared inapplicable: all noticed tribes had responded and none had stated the minors were members or eligible for membership.
The minors were doing well in placement. Mother was seeing them in supervised visits, which were going better than they had gone before.
Mother still lived in the apartment from which the minors were removed, but said she had been trying to clean it up. She claimed she was dating a man who was in recovery and supported her efforts to get sober. However, she had not documented attendance at 12-step meetings. Out of eight tests mother had undergone since the jurisdiction hearing, three were positive for alcohol and the rest were dilute. According to a physician's note admitted in evidence at the dispositional hearing, her medications required her to drink copious amounts of water.
Mother wanted the minors returned to her immediately under a family maintenance plan; she said she was willing to participate in court-ordered services. Both fathers had histories of substance abuse and violence.
The Department recommended that the minors be declared dependents of the juvenile court and removed from the parents' custody, with reunification services to be offered them.
At the contested dispositional hearing on July 31, 2009, the juvenile court received into evidence a letter dated the day before from a counselor at Siskiyou County Office of Alcohol and Drug Treatment Services, stating: (1) mother had been assessed that day and diagnosed with alcohol dependence in early remission; (2) she had been referred to Next Step Intensive Outpatient Treatment, and staff would contact her for admission to the program; (3) she had been referred to Recovery 101 while awaiting admission to Next Step; (4) she was to continue attending AA meetings. The court also received into evidence an exhibit documenting mother's attendance at 25 to 30 AA/NA meetings.
C.R. testified in chambers as follows:
She would not want to live with either presumed father. She would "love" to have the juvenile court return her to mother; she wanted to live with mother and K.R.
She did not tell the social workers that she had had no idea where mother was at the time of detention; she knew exactly where mother was. Mother did not drink "that often," but only "sometimes," and not "a lot." C.R. did not say she was tired of waiting up every night for mother to pass out from drinking; she just said she was tired of mother's drinking.
K.R. testified in chambers that she wished she could live with her father and with mother.
Jennifer Moody, the social worker assigned to the case, testified that K.R.'s father had a history of physically abusing C.R. She had discussed "to a limited extent" with the minors their wish to return to mother's home; she did not recall why that did not appear in her report.
Mother testified as follows:
She left K.R.'s father because he was abusive with her and the minors, used methamphetamine, and was facing criminal drug charges. She left C.R.'s father because he was abusive and alcoholic and went to prison for assaulting one of the minors.
She acknowledged her dependence on alcohol. She was going to AA meetings. She planned to attend Next Step and Recovery 101. She was continuing with individual counseling and psychiatric sessions. She was up to date with her medications.
Asked if her alcohol use was still a problem as to regaining custody of the minors, she answered: "I believe it was an issue at the time that the children were detained, yes. I do not see it as an issue now because I am taking the steps I need to take to fix the problem." She was ready to have the minors returned to her.
After hearing argument, the juvenile court found and ruled:
1. Given the fathers' history of physically abusing minors, it would be detrimental to the minors to place either one with her respective father.
2. It would be traumatic to the minors to place them separately.
3. Clear and convincing evidence showed that there would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minors if they were returned home at this time, and no reasonable means existed to protect their physical health without removing them from the parents' physical custody.
4. The minors' current foster home placement was necessary and appropriate.
5. The minors were not Indian children within the meaning of ICWA.
6. All three parents would receive reunification services.
7. A six-month review hearing was scheduled on December 7, 2009.
Case No. C063776
The six-month review report, filed November 25, 2009, recommended continuing the minors' out-of-home placement and the parents' reunification services and setting the matter for a 12-month review hearing on May 10, 2010. As relevant to this appeal, it stated:
The minors continued to do well in their foster home, and the foster parents would consider guardianship or adoption should reunification fail. However, the minors still wanted to live with mother.
Mother had stayed in contact with the Department and had maintained a pleasant attitude, but had also shown a pattern of unhealthy relationships during the last six months. She married R., who had supposedly helped her maintain sobriety, but he stole her Social Security check and left her. On September 4, 2009, she attended a visit with the minors looking beaten up; she claimed someone had picked a fight with her adult son E., and then attacked her. On October 1, 2009, mother said R. and E. had broken into her apartment and stolen things. On another occasion, mother had a black eye when she visited the minors; she had been staying with an ex-husband, G. (not the father of either minor), against whom she had once had a restraining order.
On November 8, 2009, E. reported to the Siskiyou County Sheriff's Office that mother broke into his residence, wrestled with him on the ground, and stabbed him in the forearm. Mother denied that the incident happened.
After moving out of her apartment, mother lived with and reportedly helped care for an elderly man for a couple of months, but said she left because she could not stay sober there. On November 18, 2009, she said she had been living with a friend, "Pastor M[.]," for a month and half; she had stayed sober, was receiving Social Security, and was looking for an apartment.
Mother's progress on her case plan was "moderate." Her therapist stated mother had made "limited" progress in counseling. She had not yet begun a parenting program: she rejected one facility because her ex-husband R. worked there, and had backed out of another program because her counselor would have been a man and the program was too costly. She had proved attendance at two 12-step meetings per week from late July to mid-November, but she was supposed to be attending three per week; she said she had lost attendance slips when her wallet was stolen. She claimed she had participated in a drug and alcohol assessment, and had been removed from the Next Step waiting list "because of [her] medications" but had been asked to participate in other programs; however, the Department had been unable to verify these claims. She had drug tested as required and had not tested positive for alcohol or other substances, but all samples had been too dilute for processing (supposedly because her medications required her to drink a lot of water).
The Department was still concerned about whether mother could recognize the dangers her substance abuse and violent relationships posed to the minors. She had not admitted abusing alcohol until two months before the writing of the report; she had still not found stable housing; she had come to visits with the minors while injured from fights; she had allegedly stabbed her adult son; and she continued to be involved with her ex-husband G.
At the contested six-month review hearing on December 17, 2009, social worker Moody and mother testified.
Citing mother's case plan objective to "obtain resources to meet the needs of your children and to provide a safe home," mother's counsel asked Moody whether the Department had helped mother find housing; Moody said it had not. Moody had not inquired into the criminal history of mother's adult son or independently tried to assess the veracity of his charges against her.
Mother testified as follows:
She had reduced her therapy sessions from twice a month to once a month because the extra sessions had not accomplished much; her therapist had indicated she was doing well. She would be willing to do a self-study parenting program at home.
She was found inappropriate for Next Step because most participants were drug addicts, and because she had to take medications, which were not permitted in the program. She took lithium, Depakote, and Elavil for bipolar disorder, post-traumatic stress disorder, anxiety, and depression; her diagnosis went back almost 20 years, after she was abused as a child and suffered a severe head injury. She had signed a release to permit the alcohol and drug services staff to talk to the Department.
She had been doing programs including "lifestyle skills, Recovery 101, contract group" four days a week, until the previous week. Staff then contacted her about substituting a once-a-week program called Double Take, which she would be willing to do.
The Department had not helped her get housing. A case manager at "behavioral health" was trying to do so. She was looking in an area where one of the minors was in school, but it was hard to look during the holidays.
She was staying with a friend, M.H. or "Pastor M[.]," whom she had known for almost a year, in his two-bedroom house. No one else lived there. They did not have a romantic relationship.
She had been clean and sober for six months, but could not give an exact sobriety date. She denied drinking when she was staying with the elderly man a few months earlier, or telling Moody that she had done so. Any time she had drunk in the last six months, she was probably living at her old apartment.
The sheriff's office did not contact her about her son's charges; she tried to contact them. Asked whether she had told them she was living with her "boyfriend" M.H. and his brother, she denied that she called M.H. her boyfriend or saying his brother lived with them; she could not discuss the case further because she was "taking it to trial."
She was still in contact with her ex-husband G. She had not tried to address their domestic violence issues because she was "not going to do anything to patch up an already-ended marriage."
Mother's counsel requested the minors' immediate return to her under a family maintenance plan. The Department opposed the request, citing mother's lack of appropriate housing, limited progress in therapy, and failure to begin certain programs.
The juvenile court found:
"One thing I want to note is it's obvious that we cannot return the children now because there isn't adequate housing. And the Department is not able to, nor are they required to provide financial resources to a parent for purposes of housing. So, the court does not see that as a flaw in the Department's handling of the case in any way.
"It is concerning that [mother] has indicated a couple of reasons why she hasn't engaged in parenting class. One of those the court finds difficult to accept as an adequate reason, which is, according to the report, that she's unwilling to take parenting advice from a man. And she has further indicated to the social worker that she would reconsider the possibility of participating in a parenting class through the Yreka Family Resource Center, but hasn't followed through with either doing that or providing information as to why she has not. So, the court also finds that the Department has done what it needs to do in terms of offering appropriate services in that regard."
The court adopted the Department's recommended findings and orders, including the continued placement of the minors in their foster home and the continued provision of reunification services to mother (and the fathers).
Indian Child Welfare Act
Mother points out a fundamental ICWA problem: the record on appeal does not contain copies of the notice sent to the tribes. The Department properly concedes that this omission requires reversal. (§ 224.2, subd. (c); Tina L. v. Superior Court (2008) 163 Cal.App.4th 262, 266-267.) We shall reverse and remand for further ICWA proceedings.
The record contains copies of the tribes' negative responses to the ICWA notice. But to find that those responses justified the juvenile court's ruling, we would have to know that the notice the tribes received was legally sufficient. On this record, we cannot know that.
The presumption that official duty was regularly performed (Evid. Code, § 664) cannot salvage the court's ruling. Although mother claimed Indian ancestry through her father, the only tribe's response that mentions his name also states that his date of birth is unknown. Since the grandfather's birth date was required information under ICWA (Welf. & Inst. Code, § 224.2, subd. (a)(5)(C)), the Department's failure to provide it is prima facie evidence that official duty was not regularly performed.
On remand, the juvenile court shall require the Department to furnish the court with copies of the notice sent to the tribes. If, after inspecting this material, the court determines that the notice given was legally adequate, the court shall reinstate its ruling that ICWA does not apply. If the court determines the notice was not legally adequate, the court shall direct the Department to re-notice the tribes and shall vacate all subsequent orders until ICWA has been fully complied with.
Mother's Remaining Contentions
For the guidance of the juvenile court and the parties on remand, we address mother's remaining contentions. As will appear, all but one lack merit.
A. Failure to obtain a waiver of mother's right to a contested jurisdictional hearing (case No. C062568)
Mother contends the juvenile court violated her right to due process when it failed to advise her of her right to a contested jurisdictional hearing and to obtain her personal waiver on the record. Any error was harmless beyond a reasonable doubt.
After the juvenile court asked whether the jurisdictional hearing would be contested (as per mother's prior request), mother's counsel stated: (1) the witnesses he had meant to call had not appeared; (2) he had advised mother of her options; (3) she had asked to submit the case on the Department's reports and begin services as quickly as possible. Mother remained silent.
Later in the hearing, mother's counsel stated: "I believe that she has told me she's been more comfortable with my representation than with prior representations that she's had. And we haven't had any breakdown of communication. And she's been forthwith [sic] with the facts that she needs to move this case forward. So, I believe her representation with me is solid." Asked by the court for comment, mother said: "No. He's correct."
The court did not ask mother whether she understood and waived her rights to a contested jurisdictional hearing. The record does not contain a written waiver form. The court did not state on the record, before adopting the recommended findings and orders, that mother had knowingly and intelligently waived her rights.
If a parent denies the allegations of a section 300 petition, the juvenile court must hold a contested hearing on them. (§ 355; Cal. Rules of Court, rule 5.684(a); further references to rules are to the California Rules of Court.) But even if the parent does not contest the allegations, the court must advise the parent of the parent's rights to receive a hearing on the issues raised by the petition, to assert any privilege against self-incrimination, to confront and cross-examine witnesses, and to compel witnesses' attendance. (Rule 5.682(b).) If, after being so advised, the parent wishes to admit the allegations, the court must find and state on the record that the parent has knowingly and intelligently waived his or her rights. (Rule 5.682(c), (e), (f).) Here, the court did not follow these procedures.
Because the due process rights protected by these rules implicate a parent's fundamental right to care for and have custody of his or her child, it is error of constitutional dimension to accept a waiver of the right to a contested jurisdictional hearing based only on counsel's representations. (In re Monique T. (1992) 2 Cal.App.4th 1372, 1377; see In re Patricia T. (2001) 91 Cal.App.4th 400, 404; In re Tommy E. (1992) 7 Cal.App.4th 1234, 1237.) Where such error occurred, we may affirm only if the error is harmless beyond a reasonable doubt. (Monique T., at p. 1377, citing Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711] (Chapman).)
Relying on Judith P. v. Superior Court (2002) 102 Cal.App.4th 535 (Judith P.), mother asserts, contrary to In re Monique T., that the error here is structural and reversible per se. (See Arizona v. Fulminante (1991) 499 U.S. 279 [113 L.Ed.2d 302].) Judith P. is inapposite.
In Judith P., supra, 102 Cal.App.4th 535, a hearing was scheduled to consider terminating the mother's reunification services. The agency prepared a status report in advance, but failed to serve it on the mother until the day of the hearing. Lacking timely notice of the report, she could not rebut its allegations, and without rebuttal, those allegations dictated the outcome of the hearing. Thus, the due process violation rendered the proceedings fundamentally unfair. (Id. at pp. 539-540, 553-558.) But here, mother knew the allegations of the section 300 petitions well before the jurisdictional hearing, and she still had the chance to show at the dispositional hearing that she should regain custody of the minors. Thus, the juvenile court's error did not render the proceedings fundamentally unfair as in Judith P.
Moreover, as mother concedes, our Supreme Court has repeatedly held in decisions postdating Judith P. that the structural error doctrine and its standard of automatic reversal should not be "imported wholesale, or unthinkingly, [from criminal law] into the quite different context of dependency cases" (In re James F. (2008) 42 Cal.4th 901, 916), because the rights and protections afforded parents, the procedural mechanisms, the standards of proof, and the paramount importance of the child's welfare have no analogue in criminal law. (Id. at pp. 917-919 & fn. 2 [disapproving appellate decision that found error reversible per se]; In re Celine R. (2003) 31 Cal.4th 45, 59-60 [same].)
Under the Chapman standard, the juvenile court's failure to obtain mother's personal, knowing, and intelligent waiver was harmless beyond a reasonable doubt.
First, we see no possibility that mother would have refused to waive her rights had the juvenile court advised her of them. She sat silently while counsel, in effect, waived her rights on her behalf; then she endorsed his statement that she was satisfied with his representation of her. By this conduct, she ratified counsel's waiver of a contested hearing.
Furthermore, mother has not shown how she could have successfully contested jurisdiction. She could not have disputed that the minors were found in a filthy and unsafe residence with no adult on the premises, while she was elsewhere in a state of intoxication. Those facts were enough to justify jurisdiction.
Finally, as already suggested, mother's failure to contest jurisdiction did not foreclose the possibility of a favorable outcome because it did not prevent her from vigorously contesting the Department's proposed disposition.
Under all the circumstances, the juvenile court's failure to obtain a knowing and intelligent personal waiver of mother's right to a contested jurisdictional hearing was harmless beyond a reasonable doubt.
B. No substantial evidence to support the juvenile court's jurisdictional finding under section 300, subdivision (g) (case No. C062568)
Mother contends the juvenile court erred at the jurisdictional hearing by finding that the petitions' allegations under section 300, subdivision (g), were true. We agree.
Under section 300, subdivision (g) (no provision for support), the petitions incorporated by reference the facts alleged under subdivision (b) (failure to protect), including mother's incarceration for child endangerment; it did not allege any other facts. However, by the time of the jurisdictional hearing, mother had been released from custody. A finding of prior incarceration is insufficient to support a true finding under section 300, subdivision (g). (In re J.O. (2009) 178 Cal.App.4th 139, 153; In re Aaron S. (1991) 228 Cal.App.3d 202, 204.) And, as mother points out, there was no evidence she had left the minors without support at any time other than the occasion which led to their detention.
Thus, insufficient evidence supported the court's finding as to section 300, subdivision (g). On remand, the court is directed to delete this finding.
C. No substantial evidence that out-of-home placement was necessary (case No. C062568)
Mother contends the trial court erred at the dispositional hearing by ordering the minors placed out of her custody because there was insufficient evidence that they could not have been safely returned to her under a family maintenance plan. We disagree.
"Before the court may order a child physically removed from his or her parent, it must find, by clear and convincing evidence, that the child would be at substantial risk of harm if it returned home and that there are no reasonable means by which the child can be protected without removal. [Citations.] The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. (§ 361, subd. (c)(1).) The parent need not be dangerous and the child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child. [Citations.] In this regard, the court may consider the parent's past conduct as well as present circumstances. [Citation.]" (In re Cole C. (2009) 174 Cal.App.4th 900, 917 (Cole C.).)
"Before the court removes a child from parental custody, it must find there are no reasonable means by which the child's physical health can be protected without removal. (§ 361, subd. (c)(1).) Although the court must consider alternatives to removal, it has broad discretion in making a dispositional order. (Ibid.)" (Cole C., supra, 174 Cal.App.4th at p. 918.)
We review a challenge to the sufficiency of the evidence to support a dispositional finding under the substantial evidence standard, resolving all evidentiary disputes in favor of the court's rulings and drawing all reasonable inferences to support them. (Cole C., supra, 174 Cal.App.4th at pp. 915-916; In re Alexis E. (2009) 171 Cal.App.4th 438, 451-452.)
Here, the juvenile court found at the jurisdictional hearing that mother went drinking, abandoning the minors in a filthy home with little or no food, no telephone, and potentially dangerous medications within reach, and that in mother's absence, 11-year-old C.R. was forced to care for her ailing younger sister. The court could reasonably have concluded that so long as mother did not acknowledge and address her alcohol problem--the apparent cause of both the state of the home and mother's readiness to disregard the minors' needs--there was a grave risk these conditions would recur.
Just after the minors were detained, mother said she saw no reason to stop drinking or go to 12-step meetings. She thereafter tested positive for alcohol metabolites four times. Though she had changed her mind by the time of the dispositional hearing, she had done little to prove she meant what she now said: she had undergone an alcohol and drug assessment only a day before the hearing, had not yet obtained a negative test result, and had not begun treatment. Nevertheless, she testified that her drinking was no longer a cause for concern or a reason she should not get the minors back immediately. Given the longstanding nature of her problem, the juvenile court could reasonably have found that her premature confidence proved she was in denial. (See In re Cliffton B. (2000) 81 Cal.App.4th 415, 423.)
Mother asserts she was "in compliance with her service plan." Like her testimony at the hearing, this is at best an overstatement. But even if she had done more by the time of the hearing, under the substantial evidence standard of review, this would not compel reversal of the order removing the minors from her custody.
Mother asserts the minors' wishes to return to her custody should have carried substantial weight, especially since C.R. was almost 12 by the time of the dispositional hearing and a 12-year-old's preference can defeat an adoption recommendation. (§ 366.26, subd. (c)(1)(B)(ii).) Since this case was not at that stage, the cited statute is irrelevant. In any event, the juvenile court did not disregard the minors' wishes: it took them into account by ordering reunification services for mother.
Mother has not shown grounds for reversal of the dispositional orders.
D. Insufficient evidence that reasonable services were provided (case No. C063776)
Mother contends the juvenile court erred at the six-month review hearing by finding the Department had provided her with reasonable services. She claims the Department did not do so because it did not help her find housing. We disagree.
If the child is not returned to the parent at the six-month review hearing, the juvenile court "shall 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 . . . ." (§ 366.21, subd. (e).) The court must make this finding by clear and convincing evidence. (§ 366.21, subd. (g)(1); In re Alanna A. (2005) 135 Cal.App.4th 555, 564.) On appeal, however, we must decide only whether substantial evidence supports the juvenile court's finding. (In re Alvin R. (2003) 108 Cal.App.4th 962, 971; In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.)
"Services will be found reasonable if the Department has 'identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult . . . .'" (In re Alvin R., supra, 108 Cal.App.4th at pp. 972-973; accord, Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1345.) "[T]he mere fact that more services could have been provided does not render the Department's efforts unreasonable." (In re Alvin R., supra, 108 Cal.App.4th at p. 973.)
Citing the disposition report's "Service Objective" that she was to "[o]btain resources to meet the needs of [her] children and to provide a safe home" (italics added), mother asserts, as she did below, that this language obliged the Department to provide her "a housing assistance plan, including funding if necessary." This is not a reasonable interpretation of the provision, which merely states the obvious: to get the minors back, mother must be able to give them a safe home. This provision does not facially require the Department to provide mother a "housing assistance plan," let alone "funding" for such a plan. Furthermore, mother cites no evidence to controvert the juvenile court's finding that the Department lacked the resources to provide such assistance.
Moreover, we do not see how any "housing assistance plan" by the Department could have solved the basic problem: mother's lack of insight into what it meant to "provide a safe home" for the minors. Mother could have done this by cleaning up her original apartment, as she said she was trying to do after the dispositional hearing. Instead, she moved from place to place, apparently motivated more by her own concerns than by any thought about how to meet the minors' needs. Her belief that she could accommodate the minors in her current situation--a two-bedroom house belonging to an unrelated male "friend" (and possibly shared also with his brother)--showed that she simply did not grasp what sort of housing she needed to provide for her children.
Mother relies on In re P.C. (2008) 165 Cal.App.4th 98. Her reliance is misplaced. The court there held that where a mother's parental rights were terminated even though (1) she had completed her case plan, and (2) the only impediment to regaining custody of her children was her lack of housing, and (3) she had worked steadily but could not find affordable housing in an expensive area, and (4) the agency had failed to assist her to do so, the mother was entitled to reversal because she had not received reasonable services. (Id. at pp. 99-100.) Except for the fourth point, none of these facts exist in our case.
As of the six-month review hearing, mother had not come close to completing her case plan. As the juvenile court expressly found, there was an impediment to mother's regaining immediate custody of the minors aside from housing--her unreasonable failure to begin parenting classes. She had not worked steadily or at all. Finally, her parental rights were not terminated or even jeopardized: on the contrary, the court continued her services for another six months. In re P.C. is thus inapposite.
Also inapposite is In re G.S.R. (2008) 159 Cal.App.4th 1202, on which mother also relies. The juvenile court there improperly terminated a non-offending, non-custodial presumed father's parental rights without finding that he was an unfit parent. (Id. at pp. 1210-1211.) The court also improperly penalized him for his poverty, denying him custody only because he could not afford suitable housing. (Id. at pp. 1212-1213.) On the latter point, the appellate court mused in dictum that it made no sense to subsidize a child's care by paying foster parents rather than by financially assisting a presumed father who was willing and able to care for the minors. (Id. at p. 1215.)
Mother seizes on this dictum, asserting that it makes no sense for the Department to subsidize foster care rather than to use its resources to help her find housing. But since there is no evidence before us as to the Department's resources, we will not second-guess the juvenile court's finding that the Department reasonably used the resources it had. In any event, as we have said already, mother's failure to provide appropriate housing for the minors was only one of the court's reasons for not returning them to her custody.
Lastly, mother relies on In re Victoria M. (1989) 207 Cal.App.3d 1317, decided under former Civil Code section 232. That decision, too, is inapposite. The court held that a developmentally disabled mother whose parental rights were terminated had not received reasonable services because the agency had not tailored its services to her special needs. Its failure to assist her in finding housing, despite her lack of income and the intellectual limitations that kept her from obtaining well-paid work on her own, was only one of the agency's failures in the case. (Victoria M., at pp. 1326-1330.) Here, mother is not developmentally disabled and her parental rights were not terminated.
Substantial evidence supported the juvenile court's finding that the Department offered reasonable services to mother.
E. The juvenile court's failure to order the Department to provide housing assistance to mother (case No. C063776)
In a related contention, mother asserts the juvenile court should have ordered the Department to provide her housing assistance, even if it did not include financial assistance. We disagree.
Section 366.21, subdivision (e), provides in part that at the six-month review hearing the juvenile court, "where relevant, shall order any additional services reasonably believed to facilitate the return of the child to the custody of his or her parent . . . ." However, as we have observed already, mother does not explain what sort of "assistance" by the Department would have made a difference to her ability to find and maintain suitable housing. The court could reasonably have concluded, in light of all the evidence, that ordering the Department to provide housing assistance would not have been likely to facilitate the minors' return to mother's custody.
F. Insufficient evidence that returning the minors to mother's custody would have been detrimental to them (case No. C063776)
Lastly, mother contends the juvenile court's finding that returning the minors to mother would be detrimental to them was not supported by substantial evidence. This claim borders on the frivolous.
"At the review hearing held six months after the initial dispositional hearing . . . , the court shall order the return of the child to the physical custody of his or her parent . . . unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent . . . 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. . . . In making its determination, the court shall review and consider the social worker's report and recommendations . . . [,] and shall consider the efforts or progress, or both, demonstrated by the parent . . . and the extent to which he or she availed himself or herself to [sic] services provided . . . ." (§ 366.21, subd. (e).)
We review the juvenile court's finding under the substantial evidence standard, construing the evidence most favorably to the court's ruling and resolving all conflicts in the evidence in favor of that ruling. (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400-1401.)
Here, the evidence in support of the juvenile court's finding includes not only mother's failure to provide appropriate housing for the minors and to begin the parenting classes required under her case plan, but also her repeated involvement with unsuitable male companions and her frequent involvement in violent confrontations (domestic and otherwise). Viewing this evidence most favorably to the court's ruling, as we must (In re Yvonne W., supra, 165 Cal.App.4th at pp. 1400-1401), it was not merely substantial but overwhelming evidence that returning the minors to mother's custody would have been detrimental to them. Mother's attacks on the strength of this evidence are not cognizable under substantial evidence review.
The matter is reversed and remanded for further proceedings under ICWA, as set out in part I of the Discussion. On remand, the juvenile court is directed to strike its finding in case No. C062568 that the allegations of the Department's section 300 petitions were true as to subdivision (g).
If the juvenile court finds, after examining the notice provided to the tribes, that it was legally sufficient, the court shall reinstate its ruling that ICWA does not apply, along with all further findings and orders (aside from the finding as to the allegations of the petitions under section 300, subdivision (g)). If the court finds that the notice originally given was legally insufficient, it shall vacate that ruling and require the Department to re-notice the tribes; it shall also vacate all further orders in the case until such time as ICWA has been complied with.
We concur: BUTZ , J. MAURO, J.
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