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In Re D.G.H. et al., Persons Coming Under the Juvenile Court v. C.H

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Butte


February 16, 2011

IN RE D.G.H. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. BUTTE COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES, PLAINTIFF AND RESPONDENT,
v.
C.H., DEFENDANT AND APPELLANT.

(Super. Ct. Nos. J34345, J34346, J34347, J34348)

The opinion of the court was delivered by: Butz ,j.

In re D.H. CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

C.H., mother of the minors, appeals from the permanency hearing orders. (Welf. & Inst. Code, §§ 366.21, subd. (f), 395.)*fn1 Mother raises several contentions relating to the substantive provisions of the Indian Child Welfare Act of 1978 (the ICWA) (25 U.S.C. 1901 et seq.) as interpreted in California statutes and rules. (§§ 224-224.6; Cal. Rules of Court, rules 5.480-5.487.*fn2 ) We shall affirm.

FACTUAL BACKGROUND

The minors, D.G.H. (aged 14), D.D.H. (aged 11), J.H. (aged seven), and D.K.H. (aged four), were removed from the father's custody in September 2008 due to physical abuse. The minors are Indian children and were placed in a Tyme Maidu tribal approved foster home. Mother was unable to care for the minors due to lack of stable housing, a history of substance abuse and short-term memory problems resulting from a stroke. The juvenile court sustained the petitions.

The report for the dispositional hearing recommended continued foster care and services for the parents. The report noted the minors did well with the father until his health began to fail and he asked for assistance from the Butte County Department of Employment and Social Services (the Department). The Department questioned whether the minors could be cared for by mother due to the effects of her stroke and recommended a psychological evaluation to determine if she had the ability to care for the minors in the long term. The parents were referred to therapy, which the father completed and mother did not. The two younger minors were in counseling at Feather River Tribal Health (FRTH) and mother received services there. Mother had liberal visitation but often did not attend and was difficult to contact. The Indian expert report agreed with the Department's recommendation, noting mother was not a viable placement due to unresolved substance abuse issues. In an addendum, the expert stated the two older minors, D.G.H. and D.D.H., should be returned to the father. At the dispositional hearing, the juvenile court ordered D.G.H. and D.D.H. returned to the father, while the two younger minors, J.H. and D.K.H., remained in foster care with a service plan for the parents. The tribe had been involved with the case and formally intervened after the dispositional hearing.

The report for the six-month review hearing recommended continuing services for mother. The father died and D.G.H. and D.D.H. were moved to a relative placement. During the review period, mother's housing remained unstable and she gave birth to a fifth child. Mother was unable to recognize abusive behavior by her boyfriend and had not yet attended the required domestic violence program. Mother did attend a weekend parent education class dealing with discipline but had not participated in a parent support group. Mother often forgot scheduled visits with J.H. and D.K.H. and the schedule was adjusted many times to try to accommodate her. D.G.H. and D.D.H. refused scheduled visits with mother.

At the review hearing, the court maintained the minors' placements and ordered further services for mother, including a psychological evaluation to determine an appropriate treatment program. The case plan required mother to participate in counseling, domestic violence and anger control programs and parenting classes through FRTH. She was also to submit to the psychological evaluation and follow any recommendations of the evaluator.

Mother completed the psychological evaluation which concluded she had mild cognitive impairments and memory dysfunction. The evaluation report stated that the memory problems intensified following mother's stroke and she was likely continuing to experience the effects of that brain damage. The report indicated that mother's substance abuse contributed to, and was possibly the source of, her cognitive impairments. Further, her abilities were found to be limited by her borderline intelligence level. The report stated it was important to assess how mother's specific cognitive impairments might impact her ability to learn and parent as the impairments could seriously interfere with her ability to understand, retain and apply information. The report noted that mother denied psychological problems and had limited understanding of how to meet the minors' emotional needs. The report recommended a neuropsychological evaluation of mother to determine the extent and type of brain damage she had incurred. The report further indicated mother would benefit from ongoing counseling on domestic violence issues and, if her psychological symptoms intensified or if she was willing to admit to psychological distress, she should be evaluated by a mental health professional to determine what other services might benefit her.

The permanency hearing report stated mother had again changed residences and recommended further services for her so she could establish her own home. Visits with D.K.H. and J.H. were moved from the tribal office to the Department's office since it was within walking distance of mother's current home and it was hoped that she would attend more regularly. To facilitate increased contact and interaction with mother, D.K.H. and J.H. were enrolled in a school closer to mother's home so she could volunteer in their classes and see them more often. Mother did not take advantage of this opportunity. Both D.K.H. and J.H. were having behavioral problems and were being scheduled for counseling. The two older minors refused to leave their relative placement or to attend formal visitation. Mother said she was participating in the domestic violence groups but the provider had not supplied a progress report to the social worker. Mother was referred to parenting classes at FRTH but only completed half the class and was rereferred. Mother tested positive for alcohol and marijuana on November 16, 2009. As a result, subsequent visits with D.K.H. and J.H. were closely monitored. Because mother had resumed substance abuse, had not completed services and did not visit regularly, the social worker concluded J.H. and D.K.H. would not be safe in mother's care. Accordingly, the Department could not recommend that the court return the minors to her. The plan attached to the report continued the requirements for domestic violence counseling and parenting through FRTH and substance abuse treatment with testing.

At the permanency hearing in January 2010, the primary issue was whether there had been active efforts to provide remedial services to mother. The current social worker testified mother was referred for a psychological evaluation whose purpose was to determine whether mother would be able to participate in the plan or whether she had too much memory loss to benefit from services. The evaluation recommended neurological testing but no such testing occurred. The social worker did not see the need for neurological testing because the memory loss appeared to arise from mother's stroke and substance abuse and, regardless of the cause, services would have to deal with the fact of the memory loss. Since mother's symptoms had not intensified, further psychological evaluation was not needed. The social worker did not review the evaluation with the service providers, but sent a copy to the tribal representative. Mother continued to participate and make some progress in services at FRTH which included domestic violence classes, counseling and substance abuse treatment. Mother had been in a parenting class but did not complete it due to the birth of her fifth child and was scheduled to start another class although she had done some weekend parenting classes. The social worker noted that mother did have one test positive for THC and alcohol but had tested clean thereafter. She discussed the positive test with the tribal health worker. The social worker testified that she spent 40 to 50 percent of her time on this case. She was in daily communication with the tribe, offered rides and bus passes to mother, moved the minors to a new school so mother could volunteer there and moved visits to Department offices to facilitate visitation and avoid transportation problems. The social worker further testified she worked closely with mother, the tribe and FRTH, referring mother to services, discussing the referrals with her and following up with the providers regarding her participation. The social worker stated that while mother was "doing okay" in services she did not think the minors would return to mother's care. Nonetheless, the social worker felt that further services could be helpful to mother even if the minors did not return home.

In argument, mother's counsel asserted that the evidence did not support a finding of active efforts because the recommendations of the psychological evaluation were not followed; counsel requested an extension of services. Minors' counsel noted that the proposed findings and orders incorrectly referred to "reasonable services" rather than "active efforts" and argued there had been no active efforts after the psychological evaluation was completed. The tribal representative agreed that it did not appear the Department made active efforts in providing mother services. County counsel argued there were active efforts and asked to modify the prepared orders to include the phrase "active efforts." The court granted the modification and adopted the findings and orders as modified, continuing services. The court noted that the psychologist who performed the evaluation concluded mother might not benefit from services and had concerns about whether mother's cognitive limitations would interfere with her understanding but was unable to make a definite determination that she could not benefit without a neurological evaluation. The court found the case plan to be appropriate and that the Department made active efforts to safely return the minors home and to finalize their permanent placement. No one objected to the form of the findings and orders.

DISCUSSION

I

Mother contends the court failed (1) to find "that active efforts [were] made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful" (§ 361.7, subd. (a); rule 5.484(c)); (2) to consider "whether active efforts were made in a manner consistent with the prevailing social and cultural standards and way of life of the Indian child's tribe" (rule 5.484(a), (c); see § 361.7, subd. (b)); and (3) to state the proper standard when finding active efforts had been made.

At the outset, we observe that no one, including the tribal representative, made any objections to the form of the findings and orders or argues that the findings and orders should contain specific language with the exception of the modification of the "reasonable services" phrase to one including "active efforts." To the extent that mother's arguments attack the language of the findings and orders, the challenge is forfeited for failure to assert the matter in the juvenile court. (In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502; In re Christopher B. (1996) 43 Cal.App.4th 551, 558.)

Moreover, while the above quoted language found in section 361.7 and rule 5.484, which mother now insists should have been part of the juvenile court's findings, does apply to review hearings pursuant to rule 5.480(1), by the terms of both statute and rule, the specific findings required by the rule apply only when the juvenile court is ordering a foster care placement, not when the placement is a continuing one. (§ 361.7; rule 5.484.)*fn3

The appropriate findings for a review hearing are found in section 366, which governs periodic reviews and states, in relevant part: "(a)(1) The status of every dependent child in foster care shall be reviewed periodically as determined by the court but no less frequently than once every six months, as calculated from the date of the original dispositional hearing, until the hearing described in Section 366.26 is completed. The court shall consider the safety of the child and shall determine all of the following: [¶] . . . [¶] (B) The extent of the agency's compliance with the case plan in making reasonable efforts, or, in the case of an Indian child, active efforts as described in Section 361.7, to return the child to a safe home and to complete any steps necessary to finalize the permanent placement of the child . . . ." Thus, while active efforts must continue during the review period, the findings that must be made are only those required by section 366, not rule 5.484. In making its findings, the juvenile court articulated the proper standard pursuant to section 366. No error appears.

To the extent that mother's argument may be read to challenge the sufficiency of the evidence to support a finding of active efforts, the argument fails.

When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing, the reviewing court must determine if there is any substantial evidence--that is, evidence which is reasonable, credible and of solid value-- to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (In re Jason L., supra, 222 Cal.App.3dat p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

The evidence showed mother was referred to various services designed to address her domestic violence, substance abuse and parenting issues and that the services were available to her through FRTH. The social worker devoted much of her time to the case, maintaining daily contact with the tribe, following up referrals and reminding mother of services and visitation. Further the social worker changed the visitation site to a location closer to mother's home to reduce transportation problems and attempted to increase mother's interaction with the minors by moving them to a school where mother could volunteer. The social worker arranged for a psychological evaluation and instituted substance abuse treatment based on its recommendations. Mother, despite services, relapsed into substance abuse and had not completed her plan, leading the court to find it would be detrimental to return the minors home.

The court considered the evidence that the tribe was closely involved in the social worker's ongoing supervision of the case and that mother was receiving services from FRTH. The court could infer from the evidence before it that the plan and recommended services did take tribal culture into account. Substantial evidence supports the juvenile court's conclusion that the Department made active efforts to return the minors home, taking into account not only the values of mother's tribe but her own specific needs.

Mother argues active efforts should have included a neurological examination as recommended by the psychological evaluation. The purpose of the psychological evaluation was to determine whether mother could benefit from services and to identify what services might be useful to her reunification. The evaluation was inconclusive on the question of mother's ability to benefit and recommended the neurological evaluation to clarify that issue. The social worker, rather than seeking another evaluation, assumed mother would benefit from services that were tailored to take into account mother's memory problems and cognitive impairment and provided extensive support to mother to provide her the best opportunity to benefit from services. The lack of a neurological evaluation did not detract from the overall active efforts made by the Department. Mother benefitted from the social worker's decision that she could, with assistance, make progress from services. A neurological examination to determine the cause of her memory loss could not have resulted in a better outcome.

Having concluded substantial evidence supported the court's findings--that mother forfeited her challenge to the specific wording of the findings, that the requirement for findings set forth in rule 5.484 did not apply to this proceeding, and that the court applied the proper standard in finding active efforts--we need not address mother's arguments relating to prejudice or the implied finding doctrine.

II

Mother contends that continuation of the foster care placement required the juvenile court to find, based on expert testimony, that the continued custody of the two younger minors by mother was likely to result in serious emotional or physical damage to the minors. (§ 361.7, subd. (c); rule 5.484(a).)*fn4

This argument parallels the challenge to the finding of active efforts. As in that discussion, review of the statute and rule requiring expert evidence and specific findings shows that the requirements apply to hearings where an Indian child is removed from parental custody and placed in foster care. The orders here were made at a review hearing and are governed by section 366, which requires only that the juvenile court determine the continuing necessity for and appropriateness of the placement. (§ 366, subd. (a)(1)(A).)

In any case, no one challenged the lack of an expert and the issue has been forfeited. (In re K.B. (2009) 173 Cal.App.4th 1275, 1285, fn. 11.) We further observe that expert evidence was presented at the dispositional hearing with the appropriate finding that continued parental care was likely to result in serious emotional or physical damage. At the review hearing, the juvenile court found that the conditions which led to the assumption of jurisdiction continued to exist and that mother had not made sufficient progress in court-ordered treatment to mitigate the conditions. If an expert had testified at the review hearing, there is no reason to suppose the court's findings would have differed.

DISPOSITION

The orders of the juvenile court are affirmed.

We concur:

RAYE , P.J.

NICHOLSON ,J.


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