IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
January 12, 2012
IN RE J.B., A PERSON COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
E.H., DEFENDANT AND APPELLANT.
(Super. Ct. No. JD230036)
The opinion of the court was delivered by: Hull, Acting P. J.
In re J.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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
E.H., father of the minor, appeals from orders terminating his parental rights. (Welf. & Inst. Code, §§ 366.26, 395; further undesignated statutory references are to the Welfare and Institutions Code.) Appellant contends the juvenile court erred by failing to accede to the tribe's recommendation that he be afforded services in an attempt to preserve the Indian family. We affirm.
The infant minor was detained shortly after birth in August 2009 due to the mother's substance abuse. At the detention hearing, the mother identified two possible alleged fathers, A.C. and appellant. A.C. was excluded by a paternity test. The Department of Health and Human Services (Department) conducted a due diligence search as to appellant. The mother and the maternal grandparents had no information on appellant's whereabouts and the search did not produce positive results.
The maternal grandfather is a registered member of the Cherokee Nation. Notice of the proceedings was sent to the tribe and the tribe intervened.
The juvenile court sustained the petition and ordered services for the mother. The mother minimally participated in services for the first six months and the social worker initially recommended termination of services. However, after a delay of several months pending a contested hearing, the social worker changed the recommendation to provide further services.
Four days before the combined six and 12-month review hearings in August 2010, appellant appeared in court for the first time. The court found he was an alleged father and set a paternity hearing. At the combined review hearings, the court terminated the mother's services, found there had been active efforts to prevent the breakup of the Indian family, and set a section 366.26 hearing. In September 2010, the court found appellant was the biological father.
The social worker's report for the section 366.26 hearing, filed in November 2010, stated the Cherokee Nation recommended that appellant be given 90 days of services to reunify and if he was unable to do so, then the tribe supported adoption of the minor by the current caretaker. Appellant had not visited the minor at all since appearing in the case. The report concluded the minor was likely to be adopted and would benefit from the stability of a permanent home.
In December 2010, appellant filed a motion to return to disposition, alleging lack of due diligence in attempting to locate him. He also filed a petition for modification seeking placement of the minor or reunification services.
An addendum report included a declaration by an Indian expert which reiterated the tribe's recommendation that services be provided to appellant. However, the declaration also stated active efforts had been made, that continued care by the parents of the minor was likely to result in serious emotional or physical damage to the minor, and that clear and convincing evidence supported the minor's out of home placement.
At the motion hearing in January 2011, the court denied the motion to return to disposition, finding there had been due diligence in trying to locate appellant. Addressing the petition for modification, appellant testified about his current circumstances in Oregon and his ability to provide for the minor. Appellant stated he tried to keep in contact with the mother but she would not return his calls. He said he had seen the minor only once, when the mother was visiting. He further testified that, although the mother told him the minor was not his child, appellant always had a "gut" feeling that he was.
The adoptions social worker testified she did not support the minor being placed with appellant. She stated appellant would need to be assessed to get reunification services. The social worker testified the minor had been in the same placement for about 18 months.
The court stated there was no evidence appellant was an inappropriate parent. However, the court believed appellant was aware the mother was pregnant with the child and that it was probably his child. The court stated that the mother's refusal to speak with him did not excuse appellant from coming forward to establish parenthood and to raise the minor. The court further stated that appellant should have known about the mother's substance abuse, which led to the minor's detention, but again did nothing until recently when he provided the court with a paternity test. The court found appellant had no relationship with the minor. The court further found there was a change in circumstances in that appellant had come forward, but found that providing services and delaying permanency simply because the biological father appeared late in the proceedings was not in the minor's best interests and denied the petition for modification. The court continued the section 366.26 hearing.
A second addendum stated that the mother called the social worker and said that appellant knew the minor was his child and had been placed in foster care. The mother said she was living with the father's sister when the minor was detained. The mother further stated she called appellant and asked him to step up and help her get custody of the minor, i.e., if he got custody he would turn the minor over to the mother. The mother said appellant agreed to this plan. The mother said she was coming forward now because she believed appellant would take the minor to Mexico.
In a third addendum, the social worker attempted to clarify the Cherokee Nation's position. The tribal representative told the social worker the tribe did not oppose a traditional adoption, however, the representative again recommended a 90-day period of reunification for appellant to comply with the active efforts requirement. The tribal representative was not advocating placement of the minor with appellant due to drug concerns and the lack of an investigation of his circumstances.
At the contested section 366.26 hearing, the foster mother testified about her ongoing connection to the Cherokee tribes. She also testified that the minor's grandfather had regular contact with him. She stated that when the mother was pregnant with the minor, the mother told her in appellant's presence that appellant was the father of her child.
The Indian expert also testified. Her current opinion was that there was not enough evidence to support a finding of active efforts or that placement with the father would be detrimental to the minor pending services. She recommended appellant be provided services to determine whether or not placement was appropriate. She did not believe that the minor could be returned to appellant at once. Paradoxically, while the expert saw no evidence of detriment, she still did not want to see the minor returned until appellant had been provided services.
Appellant testified he entered a rehabilitation center while the mother was pregnant and has not used drugs since then. He completed the program in July 2009. Appellant further testified he had completed an anger management class in Oregon. He was now living with his family in Oregon. He was using drugs when he lived with the mother and knew she was also using drugs at that time.
After taking the matter under submission and reviewing the evidence, the court found that an active efforts finding was previously made at the six-month review hearing and no further finding was required, particularly in light of the prior ruling that denied appellant services. The court recognized that the Indian expert felt that active efforts were necessary for appellant and that he should have services. However, active efforts were made to find him. The court, noting the disagreement with the expert, found evidence beyond a reasonable doubt that continued custody of the minor by a parent was likely to result in serious emotional or physical damage. The court terminated parental rights and ordered the minor placed for adoption.
Appellant argues the court erred in failing to accede to the tribe's recommendation that he be provided services in order to comply with the ICWA requirement that active efforts to preserve the Indian family must be shown prior to termination of parental rights.
The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) When a child has been identified as an Indian child, the substantive provisions of the ICWA apply. (In re L.B. (2003) 110 Cal.App.4th 1420, 1427.) These provisions include a requirement that active efforts, which proved unsuccessful, have been made to preserve the Indian family prior to terminating parental rights. (25 U.S.C. 1912(d).) Active efforts means that the parent must be referred to services which are designed to address the problems which led to removal and which are culturally sensitive to the particular needs of an Indian parent. (In re Michael G. (1998) 63 Cal.App.4th 700, 713-714.)
In this case, the mother was referred to such services and, at the combined review hearing, the court found active efforts were made by the Department to preserve the Indian family.
However, as to appellant, the analysis is more involved. By the termination hearing, there was evidence that appellant was aware of the minor's birth. While he attempted to call the mother, he took no action to assert his paternity or seek custody even though he was aware of the mother's drug use. The evidence also supported the inference that appellant knew that the minor had been removed from the mother and was in foster care, yet he did not attempt to contact the Department. It was not until the mother contacted appellant, having herself failed to complete a reunification plan after 12 months of services and the two of them agreed on a plan to regain custody, that appellant appeared in court asserting paternity. He had no relationship with the minor and made little effort to establish one after he came forward.
"While under normal circumstances a father may wait months or years before inquiring into the existence of any children that may have resulted from his sexual encounters with a woman, a child in the dependency system requires a more time-critical response." (In re Zacharia D. (1993) 6 Cal.4th 435, 452.) Failure to act promptly risks losing the opportunity to have a relationship with the minor. (Ibid.)
Appellant did bring a motion to return to disposition and a petition for modification seeking reunification services. He was not successful for several reasons. The Department had exercised due diligence and inquiry in its efforts to find him. Further, appellant, like the father in Zacharia D., had no relationship with the minor and had done little to develop one. Moreover, appellant showed little motivation to act as a father and came forward, not because of the minor's need for a parent, but because the mother was facing loss of parental rights and prevailed upon him to assist her. (In re Zacharia D., supra, 6 Cal.4th at p. 455.)
Against this background, the tribe recommended delaying permanency and providing services to appellant, apparently in the belief that actual reunification services were required to satisfy the active efforts requirement. This is incorrect.
"The Act requires that active efforts be made to provide services, not that services be provided regardless of when a parent becomes available to receive those services." (In re William G. (2001) 89 Cal.App.4th 423, 428.) Where, as here, appellant chooses to absent himself from the proceedings during the reunification period, the Department's attempts to locate appellant and notify him of the proceedings satisfies the requirement of active efforts. (Ibid.)
In any case, "a juvenile court is not obligated to adopt the permanent plan designated by a child's tribe without conducting an independent assessment of detriment." (In re T.S. (2009) 175 Cal.App.4th 1031, 1040.) The court did conduct such an assessment and concluded that delay for services which were previously denied to appellant would not be in the minor's best interests. The juvenile court did not abuse its discretion in declining to follow the tribe's recommendation to delay permanency to provide services to appellant.
The orders of the juvenile court are affirmed.
We concur: MAURO, J. HOCH, J.
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