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In Re A.J. et al., Persons Coming Under the Juvenile Court v. Angelina J

April 9, 2013


(Super. Ct. Nos. 09 JV SQ 2785601, 09 JV SQ 2825001, 11 JV SQ 2875001)

The opinion of the court was delivered by: Nicholson , J.

In re A.J. CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This appeal arises from proceedings following a limited reversal of orders terminating parental rights and remand for compliance with the notice provisions of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) As a result of new inquiry and notice by the Shasta County Health and Human Services Agency (Agency), a tribe was located, the minors were enrolled in the tribe and parental rights were again terminated. (Welf. & Inst. Code, §§ 224.2, 366.26 [further undesignated statutory references are to this code].) Mother, Angelina J., appeals, challenging the juvenile court's findings on active efforts, placement preferences and serious emotional and physical damage to the minors if returned to parental custody. Appellant further argues the Indian child exception to termination should have applied and that all prior orders should be invalidated due to failure to comply with the ICWA. Appellant also contends that none of these claims were forfeited and, if they were, then counsel provided inadequate representation. We affirm.


Appellant was arrested for domestic violence in December 2008. The Agency filed a petition to detain one-year-old A.J. in January 2009 due to parental substance abuse, anger and mental health problems. The juvenile court ordered reunification services for both parents. Eva J. was born in November 2009 and removed from parental custody. Reunification services continued to be provided; however, the parents made little progress, testing positive for drugs and alcohol, failing to attend programs and continuing to engage in domestic violence. In April 2010, the juvenile court terminated services as to A.J., denied services for Eva. J., and set a section 366.26 hearing for both minors. While the hearing was pending and appellant was in custody, appellant gave birth to E.J. who was detained and placed with his siblings. The juvenile court denied services for E.J. in February 2011 and set a section 366.26 hearing. The same day, parental rights were terminated as to A.J. and Eva J. Parental rights were terminated as to E.J. in June 2011.

The parents appealed the termination orders in case Nos. C067484 and C068578. The appeals challenged the inquiry and adequacy of notice under ICWA. Respondent conceded there were some problems with ICWA compliance and this court reversed both appeals for the limited purpose of compliance with ICWA notice and, if a tribe was identified, for a new section 366.26 hearing.

The status review report in February 2012 stated both parents had been released from prison. One of father's conditions of parole was to have no contact with appellant. However, both gave the same address as their residence and in November 2011 both were involved in a violent incident serious enough to result in a police report. In January 2012, an arrest warrant issued for father. Father and appellant were living together in their car at a truck stop. Appellant planned to enter a drug treatment program. The minors remained placed together in an adoptive home and were doing well in the placement. The parents had not visited or had contact with the minors for over a year, with the exception of father's single visit with E.J. Prior to their incarcerations, the parents' visits had been reduced due to erratic attendance and troubling conduct. Neither parent made any attempt to maintain a relationship with any of the minors.

As a result of the limited remand in the prior appeals, the Agency conducted further inquiry about the family's Indian heritage and discovered the maternal grandmother now claimed ancestry in the Potawatomi tribe among others. New notice was sent to all relevant tribes. The Citizen Potawatomi Nation (CPN) contacted the Agency in October 2011 and, as a result, the social worker completed applications for the minors for tribal membership in the CPN, the tribe intervened and tribal membership for the three minors was finally granted in March 2012.

Following the first contact with CPN, the social worker maintained a connection with CPN's tribal enrollment specialist, Tasha Alves, and with CPN's ICWA tribal representative and case manager, Laurie Clark, to provide information on the case and to assure that the Agency did what was necessary to maintain the minors' tribal connection. The prospective adoptive parents introduced the minors to their Indian cultural heritage by teaching songs in the tribal language, securing a book on important cultural beliefs, and taking A.J. to a multicultural event to expose her to Native American culture.

The March 2012 report for the section 366.26 hearing and a permanent plan review recommended termination of parental rights and a permanent plan of adoption. The report stated the tribe had not yet stated a position on adoption or placement. The minors remained together in an adoptive home. The caretakers were prepared to provide experiences which would connect the minors with both their Indian and African American heritages. The Agency concluded the minors were likely to be adopted in a reasonable time either by the current caretakers or another family. The report also contained recommended findings for the permanent plan review hearing.

At the combined section 366.26 and permanent plan review hearing in April 2012, the parties stipulated to using a written declaration instead of testimony from the Indian expert selected by the tribe, Laurie Clark. Clark's declaration stated she was employed by the CPN as a case manager for the tribe's FireLodge Children and Family Services department. Clark had reviewed the placement information provided to her and believed the Agency tried, without success, to place the minors with family. Given the lapse of time, she was of the opinion that it was in the minors' best interests to remain together and that the current placement was appropriate in that the foster family appeared to meet the minors' needs and was making an effort to assist the minors in recognizing their cultural heritage. The CPN had no objection to the minors moving toward permanency in the current placement.

The declaration discussed CPN community standards relating to domestic violence, substance abuse, and mental health treatment. The tribe did not condone domestic violence and would remove children from exposure to it. Further, before a child would be returned, the parents had to work toward education, counseling, and development of ways to deal with potentially violent situations. The CPN also did not condone exposing children to substance abuse. Parents were expected to have the capacity to care for their children without impairment. The CPN supported participation in mental health treatment and expected parents to work diligently in treatment to achieve recovery and be able to meet the needs of their children. Clark reviewed the documents regarding the services provided to the parents and opined that the Agency made active efforts to prevent the breakup of the Indian family and that the efforts were unsuccessful. She stated that the court had found services were "reasonable" but noted that the CPN looked to Agency actions which included locating service providers and assisting the family with services and transportation rather than to court findings to assess active efforts.

Clark was convinced that, both at the time of removal and currently, continued custody of the minors by the parents was likely to result in serious emotional or physical damage to the minors. The parents had significant domestic violence and mental health problems and had reasonably attainable goals in the case plans. However, appellant had chosen to discontinue mental health services and psychiatric medications, leave substance abuse treatment, and continue to test positive for multiple substances. Father discontinued his psychiatric medications and tested positive for drugs. Neither parent made visitation a priority and Clark was concerned that continued visitation could prove more damaging to the minors than no visitation. She recognized that the Agency provided full services when A.J. was removed and for a period after Eva J.'s removal but the family continued to deteriorate during the reunification period due to parental resistance and failure to comply with the service plans. The minors had made intellectual and emotional progress in their foster placement and would likely suffer serious emotional or physical damage if returned to the home because the parents lacked the determination to commit to a drug and violence free home.

Clark and counsel for the CPN were present by telephone at the hearing. Clark testified the CPN supported termination of parental rights.

Appellant's counsel made an offer of proof that appellant had participated in substance abuse treatment after her release from prison, attended AA and NA, was in compliance with the terms of her probation, attended a Parent-to-Parent program and was testing clean. Appellant's documents showed she began an outpatient drug treatment program in January 2012 and was continuing to participate in April 2012, showing her commitment to recovery. She had several negative drug tests and was attending relapse prevention groups. Counsel argued appellant's efforts showed a change in circumstances although counsel admitted there was little evidence on the best interests of the minors, and asked the court to consider the parent-child bond in determining whether termination was in the minors' best interests. The Agency objected to any oral motion to modify pursuant to section 388. When the court inquired, Clark said the CPN had nothing further.

The court denied the oral petition for modification finding it was not in the minors' best interests. The court found appellant's efforts to stabilize her life came too late for the minors, who deserved permanency. The court found the minors were adoptable and terminated parental rights. The minutes of the hearing indicate that at this point, the court adopted and executed the section 366.26 orders as found in Judicial Council form JV-320. Included in the form is a finding beyond a reasonable doubt that continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child. The court then adopted the Agency's recommended findings and orders for the permanency review hearing which included a finding by clear and convincing evidence that ICWA did apply and that continued custody with the parent was likely to cause the Indian children serious emotional or physical damage.*fn1 ...

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