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

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


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