In re J.H. CA5 ( 2021 )

Filed 1/4/21 In re J.H. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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 THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re J.H., a Person Coming Under the Juvenile
Court Law.
TUOLUMNE COUNTY DEPARTMENT OF F081238
SOCIAL SERVICES,
(Super. Ct. No. JV8090)
Plaintiff and Respondent,
v. OPINION
D.H.,
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Tuolumne County. Donald I.
Segerstrom, Jr., Judge.
David M. Yorton, Jr., under appointment by the Court of Appeal, for Defendant
and Appellant.
Sarah Carrillo, County Counsel, and Maria Sullivan, Deputy County Counsel, for
Plaintiff and Respondent.
-ooOoo-
* Before Smith, Acting P.J., Meehan, J. and DeSantos, J.
D.H. (father) appeals from an order terminating his reunification services at the
six-month review hearing regarding his now 18-month-old son, J.H., arguing he was not
provided with reasonable reunification services. (Welf. & Inst. Code, § 366.21,
subd. (e).)1 He also challenges the finding the Indian Child Welfare Act (ICWA) (25
U.S.C. § 1901 et seq.) did not apply. We affirm the order terminating reunification
services but reverse the finding ICWA did not apply.
FACTUAL AND PROCEDURAL BACKGROUND
Three-month-old J.H. (the baby) was taken into protective custody in
October 2019, when social workers investigating a referral found father and his
girlfriend, H.P., the baby’s mother (mother), both of whom were 19 years old, along with
the baby, staying in a home filled with garbage, swarming with flies, and without
electricity. Father, who admitted he would test dirty, was arrested for violating
probation. Mother tested presumptive positive for methamphetamine, amphetamine,
marijuana and MDMA. Two adults living in the home told the social workers father beat
mother every day. Mother, however, denied any domestic violence, stating it was not the
social worker’s “ ‘business or concern.’ ”
The Petition and Detention Hearing
The Tulare County Health and Human Services Department (Department) filed a
petition alleging the baby came within the provisions of section 300, subdivision (b)(1)
based on the home’s unsafe and unsanitary condition, domestic violence, and the parents’
substance abuse. The detention report stated the Department would ask the parents about
their Native American ancestry, but in mother’s juvenile probation case and father’s prior
juvenile dependency case, both were found not to be Indian children under ICWA. The
baby was placed in a foster home.
1 Undesignated statutory references are to the Welfare and Institutions Code.
2.
Mother and father were present at the October 11, 2019 detention hearing. Father
completed an ICWA-020 “Parental Notification of Indian Status” form, stating he may
have Indian ancestry and Choctaw and Creek were the possible tribes. Mother completed
the same form, stating she had no known Indian ancestry. The juvenile court did not
conduct any inquiry of the parents regarding ICWA at the hearing but found the baby
may be an Indian child. The juvenile court ordered the baby detained.
On October 15, 2019, the Department mailed an ICWA-030 “Notice of Child
Custody Proceeding for Indian Child” (the ICWA notice) to three Choctaw tribes and
five Creek tribes, notifying them of the jurisdiction hearing. The ICWA notice provided
father’s name, birth date and place of birth. It stated that he was homeless and listed a
mailing address. It listed the tribe or band as Choctaw and Creek. The ICWA notice also
provided paternal grandmother’s name, birth date and place of birth. Paternal
grandmother’s current address was listed as homeless and a mailing address was
provided. Choctaw and Creek were listed as her tribe or band. For paternal grandfather,
his name was listed along with his current address as “WASHINGTON STATE”; no
further information was known about him and “DOES NOT APPLY” was listed under
“Tribe or band, and location.” Paternal great-grandmother’s name and birth date were
listed; her current address was listed as “GENERAL DELIVERY COLUMBIA, CA
95310,” and her tribe or band was unknown.
The Jurisdiction Hearing
In the report for the jurisdiction hearing, the social worker stated ICWA does or
may apply. Father had completed the ICWA notice, which the Department mailed to all
appropriate tribes and government agencies. A continuance of the jurisdiction hearing
was required, however, because the notices were not mailed in time to give 10 days’
notice of the hearing.
The social worker met with the parents prior to the detention hearing. The parents
wanted to “do whatever it took” to get the baby back. The social worker explained
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dependency drug court (DDC) to the parents. Father was interested, but mother did not
want to participate although she was amenable to attending 12-step meetings. The social
worker provided a list of 12-step meetings and blank attendance cards for them to return.
The parents were living with paternal great-grandmother; the social worker was
concerned because father was removed from paternal great-grandmother’s care as a child.
The social worker gave them bus passes. Father wanted his aunt (paternal great-aunt)
assessed for placement.
After the detention hearing, the social worker met with the parents to discuss
visitation. The social worker suggested they come to the office the following morning
and she would attempt to set up a visit for that day. When the parents came to the office
the following day, they were informed a visit had been arranged for later that morning.
Mother tested negative for substances, while father stated he would test prior to the visit.
They had not attended any 12-step meetings, as they lost the schedule. They were
provided a second copy.
At the visit later that day, father declined to provide a sample for a drug test, even
though he was told testing positive would not automatically exclude him from visiting.
Father waited in the parking lot while mother visited. At the end of the visit, father again
declined the social worker’s offer to test, but he came to the end of the visit to meet the
foster mother. Thereafter, mother visited regularly, but father did not attend any more
visits.
The social worker met with mother prior to her visit on October 18, 2019; mother
said father was sick and unable to come. Mother had not attended any 12-step meetings
because she lost the schedule. The social worker provided her with another schedule and
blank attendance cards. Mother said she had been sober since the baby was taken into
protective custody. She and father were still living with paternal great-grandmother but
wanted their own place. Mother agreed to participate in the DDC program, and the social
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worker gave her an October 30, 2019 intake date, as well as the drug intake coordinator’s
phone number so mother could set up random drug testing.
A child family team meeting was held on October 23, 2019. Two paternal great-
aunts and a paternal cousin attended along with mother. Father was not present; mother
said he “declined” to come. Mother was testing negative, visiting, and attending 12-step
meetings. Father, however, was not participating in visitation or Department
appointments, and was not drug testing. Concern was expressed about the couple living
with paternal great-grandmother, as the home did not have running water and was not a
sober home. Paternal great-grandmother was arrested in July 2019 on substance abuse
charges. At the end of the meeting, it was agreed that paternal great-aunt was the best
relative placement option and the baby was placed with her the following day.
Mother appeared at the November 5, 2019 jurisdiction hearing, but father did not,
although he was represented by counsel. After mother stated she woke father up for the
hearing, but he went back to bed, the juvenile court found he voluntarily absented himself
from the hearing. Mother submitted on the reports. The juvenile court found the
petition’s allegations true and set disposition for November 19, 2019.
The Disposition Hearing
In the disposition report, the Department recommended the baby be declared a
dependent and removed from parental custody. It further recommended the parents
participate in family reunification services, including DDC. The baby was born
prematurely at 33 weeks gestation. He had difficulty holding up his head, but the foster
parent did not notice any developmental concerns.
The social worker interviewed mother. She had a difficult childhood with
substance abusing parents and an abusive stepmother. She began using marijuana at age
13 and methamphetamine at age 15. From ages 13 to 18, she was in and out of group
homes and juvenile hall. Mother met father in juvenile hall when she was 14 years old,
but they did not start dating until she was 16. When the baby was born, father became
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paranoid that she was cheating on him, which she denied. She denied father was
physically abusive but said he screams and breaks things when he is mad. She was
frustrated that he would not participate with the Department; he told her he had “PTSD”
from the Department’s office. She asked him to come to visits and court dates, but he
refused.
Father had not made himself available since the detention hearing. Father did not
respond to the social worker’s text message asking to schedule an appointment to
complete his psychosocial information. Mother was attending all offered visits, but
father had not visited.
Five of the eight tribes had returned letters indicating the baby was not an enrolled
member or eligible for enrollment in those tribes.
Mother appeared at the November 19, 2019 disposition hearing, but father did not.
After mother confirmed father knew about the hearing, the juvenile court found father
had voluntarily absented himself from the hearing. Father’s attorney had unsuccessfully
tried to contact him. All parties submitted except father’s attorney, who took no position.
The juvenile court adopted the proposed findings and orders as well as the reunification
plan. The juvenile court found that while mother was making some progress, father “has
made no progress whatsoever.”
Father’s reunification services were comprised of three components: (1) mental
health services, including participating in any recommended counseling after a mental
health intake; (2) parenting education; and (3) substance abuse services, including a 12-
step program, substance abuse testing through the DDC treatment team, completing the
DDC substance abuse treatment program, and substance abuse counseling. The parents
were offered twice weekly visits totaling four hours per week.
6.
The Department’s Section 388 Petition and Hearing
On March 17, 2020,2 county counsel filed a section 388 petition on the
Department’s behalf asking to change the order directing the parents to review, sign and
comply with the case plan attached to the disposition report and instead issue an order
directing the parents to review, sign and comply with the revised case plan, dated
March 10. As changed circumstances, the Department asserted it received updated
information mother had previous involvement with domestic violence and father
expected to be incarcerated for six to 12 months, neither of which was addressed in the
case plan. As for best interest, the Department asserted the baby would benefit from
mother’s involvement in a domestic violence program, “as well as the father’s
involvement in the Geo Program and Nurturing Parenting Education Program that he may
participate in while incarcerated.”
The revised case plan, which was attached to the petition, added a service
objective for father that he agreed to contact the case managing social worker within
48 hours of his release from custody. Father’s client responsibilities consisted of: (1) the
“Geo Program,” which required father, “[w]hile incarcerated,” to submit a completed
application and, if approved, attend weekly meetings with his assigned case manager,
discuss his challenges with substance abuse in order to develop a treatment plan, and
participate in any recommended treatment or services; (2) parenting education, which
required father to participate in a parenting education program offered through
AmeriCorps, which would mail parenting education lessons to him that he was to
complete and return; and (3) substance abuse services, including complying with random
testing required by the Department, participating in the “Clean and Sober Experience”
(CASE) program while incarcerated, which included completing the required reading and
assignments in accordance with the program’s directives, and attending at least
2 Further references to dates are to dates in the year 2020.
7.
one Narcotics Anonymous/Alcoholics Anonymous (NA/AA) meeting per week. In
addition, father’s visits would be reduced to one in-person visit every two weeks.
The juvenile court ordered a hearing on the petition, which was held on April 7.
Father appeared from the jail via video conference, while mother was not present. When
father’s attorney asked father if he received the revised plan, father replied he received it,
signed it and sent it back to the judge. Father reported mother had four more days of
inpatient treatment. Mother’s attorney did not know if mother objected to the revised
case plan, as she had not had contact with mother. The juvenile court ordered father’s
plan modified and continued the hearing as to mother. Father’s attorney asked father if
he received any of the packets to work on; father responded he received them “last
night.” The juvenile court granted the petition as to father and reserved ruling on the
petition as to mother.
Neither father nor mother appeared at the continued hearing on April 14. The
social worker confirmed father had been released from jail, but the juvenile court
believed his criminal case had not been adjudicated. While mother’s attorney had not
had any contact with mother, the social worker had, and the social worker said mother
did not object to modifying the case plan. Mother’s attorney was fine with the
modification if mother was. The juvenile court ordered mother’s case plan modified to
include domestic violence counseling.
The Six-Month Review Hearing
The Department’s report for the six-month review hearing recommended
terminating both parents’ services and setting a section 366.26 hearing. It further
recommended the juvenile court find the baby was not an Indian child as described by
ICWA.
During the review period, father had limited contact with the Department. On
January 8, a high-risk probation search was conducted at paternal great-grandmother’s
home, where the parents were living. Father was arrested and booked into jail, where he
8.
remained for most of the review period. He was released from jail on April 7. Father did
not contact the Department upon his release, but the social worker made in-person
contact with father at paternal great-grandmother’s home on April 21. Father was
sentenced the day before on three charges with consecutive sentences totaling one year in
jail, with credit for 90 days, and he was required to complete six months of residential
treatment. Father told the social worker he would be returning to jail on May 4.
Mother relapsed at the beginning of the review period after maintaining a brief
period of sobriety. She was at paternal great-grandmother’s home during the January 8
probation search; she had significant bruising, which mother said was from father hitting
her and throwing a very hot burrito at her face, as well as red sores from
methamphetamine use. Mother subsequently entered residential treatment and graduated
from the program on April 11. She then entered a shelter, but she left the shelter on
April 16 and reconnected with father. The two were living with paternal great-
grandmother. Mother had not resumed engaging with outpatient DDC services, and she
tested positive for amphetamine and methamphetamine on April 22.
As of the writing of the report, father had not signed his case plan. On January 13,
the social worker met with father at the jail to review his case plan and engage him in
services. Father’s immediate concern, however, was where mother was and how she was
doing. The social worker reminded him the focus of the meeting was to help him reunify
with his son. Father asked if visitation could be arranged. The social worker confirmed
it could be arranged with the baby; father interrupted and stated, “ ‘but what about with
[mother]?’ ” Father denied seeing any bruises on mother’s faces and if there were some,
it could have been from sex because “ ‘she liked it rough.’ ” Father later said the bruises
may have come from his sister “ ‘beating’ [mother] following her infidelity.” Father
admitted he and mother usually argue more when they use illicit substances and their
arguments occasionally became violent. Father then said their relationship “was none of
the social worker’s business.” At that point, jail staff ended the visit as time was up.
9.
The social worker next met with father at the jail on February 10, after he called to
report he remembered why mother had marks on her face. The social worker provided
father with the case plan to sign, but he refused to sign it as he wanted more time to
review it. Father attempted to blame mother’s bruises on poison oak and stated the baby
was placed into protective custody because they were living at a home where other
people were using illicit substances and engaging in domestic violence. Father said he
and mother hid in the bushes to protect the baby from the raid. The social worker
reminded father the baby was placed into protective custody due to their substances use
and domestic violence. The social worker asked what services father had been
participating in while in custody. He said he asked to participate in NA/AA meetings and
parenting classes offered through the jail.
The social worker next met with father on April 21, at paternal great-
grandmother’s home. Father said he was released from jail four days ago, but paternal
great-grandmother said he had been out for about two weeks. Asked why he never
reached out to the Department to engage in services, father said he was waiting for the
right time to call because the social worker did not respond to his calls. The social
worker, however, noted she had received only one phone call from father the entire
review period, on February 10. Father was asked to provide a urine sample; father said
he was clean but could not provide a sample. The social worker asked the parents to
come to the Department the following day to provide a urine sample. The next day,
father stated he could not provide a urine sample. A swab test was conducted, which
indicated he was positive for amphetamines and methamphetamine. Father left the
Department’s office before the social worker could meet with him.
Father did not participate in any of the services that were part of the original case
plan. Father did not visit the baby until he requested visits on February 10. He had
two visits at the jail on February 28 and March 13, but in-person visits were suspended
on March 18 due to COVID-19. Father had a video visit with the baby on April 8, but
10.
since then, he had not contacted either the Department or paternal great-aunt to arrange
for in-person or video visits. The social worker noted father demonstrated little
motivation to reunify with the baby. Instead, he continued his lifestyle of using illicit
substances and participating in illegal activities, which resulted in his incarceration.
Moreover, despite the Department’s attempts to engage father in services, he
demonstrated no insight into why the baby was placed into protective custody.
Letters from the three tribes that had not previously responded were attached to
the report. The letters indicated the baby was not an enrolled member or eligible for
enrollment in their tribes.
A contested review hearing was held on May 29; father was present in custody.
The Department submitted on the reports, as did the baby’s counsel. Mother testified on
her own behalf. Since she left inpatient treatment, she watched around five NA/AA
online meetings since in-person meetings were not being held. Mother was living with
paternal great-grandmother but hoped to move out soon. She was high and drunk when
she told the social worker on January 8 that father hit her. She left the shelter and went
back to father because she did not want to be at the shelter and alone. When she came
back to the shelter, they would not let her back in due to the coronavirus and told her to
get her stuff and leave. She had nowhere else to go so she called father and asked if she
could come over.
Father’s attorney called the social worker to testify. She took over the case in
January and understood father was “pretty uninvolved in the beginning stages of the
case.” She was present when father was arrested in January and contacted him at the jail
on January 13 to introduce herself, review the case plan, and see what services were
available in the jail. She did not bring the case plan with her, but she talked with father
about the case plan components, which at that time was a DDC case plan. When she met
with father in February, she brought the original case plan with her, but she did not have
a copy to leave with him. The social worker did not think he had a copy of the case plan
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with him in jail. The case plan was modified in April to provide services that were
available to father in jail. The modified plan was delivered to him in jail, but she never
got a signed copy back.
According to the social worker, the components of the modified case plan were
participation in NA or AA meetings and enrolling in both the “GEO program,” which
was alternative-to-violence education, and a domestic violence program. When asked if
she verified these components were available to father in jail before modifying the case
plan, the social worker responded he was able to enroll in the “GEO” and domestic
violence programs while in jail, but he could not participate in them until he was
released; these programs would be monitored by probation. He could participate in NA
and AA meetings while in jail. The social worker did not know father’s “out date” when
she modified father’s case plan, but she believed it was before the six-month review
hearing as father and his family told her he would be released sometime in April. She did
not verify that with the jail, however, and she did not know father would have to return to
jail after April. The social worker confirmed at trial the section 388 petition indicated the
Department knew father would be incarcerated for six to 12 months.
Father did not talk about wanting to visit the baby until the social worker’s
February visit to the jail. He had never visited to that point. Father’s court-ordered visits
were twice weekly for a total of four hours, but visits at the jail were set up for one 30-
minute visit every other week. He had two visits at the jail, on February 28 and
March 13, before the jail suspended them due to the coronavirus. After father’s release
from jail on April 7, he did not contact the Department to set up visitation, although he
reached out to the caregiver and had a video visit on April 8. That was father’s last visit
with the baby.
Sometime after April 22, the social worker saw father once at paternal great-
grandmother’s house to advise he and mother of the recommendation to terminate
services. The discussion upset father and the conversation ended when father went inside
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the house. During that contact, father said he was going back into custody on May 4.
The Department had not offered father any visits since he returned to custody as the
Department was not doing in-person visits at the jail due to the coronavirus. When asked
if there was an alternative to in-person visits at the jail, the social worker responded it
was challenging at the baby’s age and she did not know that a phone call visit was
appropriate. The social worker was not aware video visitation was available at the jail
during coronavirus, and she denied the Department’s position was to suspend visits for
every incarcerated parent during coronavirus. The social worker admitted there were
other alternatives available, such as video visitation mentioned by mother’s attorney, but
it was “kind of case-by-case basis if visitation is occurring or not right now” at the jail.
On cross-examination, the social worker testified father’s initial case plan was not
appropriate given his incarceration, so the Department modified the case plan to what he
could do in the jail. Father did not participate in his initial case plan because he “has
been pretty unavailable to Child Welfare Services through the entirety of the case.” The
social worker explained: “He’s difficult to contact. He does not reach out to contact us.
He lacks insight of why [the baby] was brought into care, so it’s been challenging to
engage him in services.” He did not engage in any case plan services before he went to
jail or sign the case plan because he did not come to court. He only appeared when he
was in custody.
Father initially was set up for twice weekly visits, but he was taken off the
schedule because he never showed up. The Department’s policy in that circumstance is
to take the parent off the schedule, so the child is not transported for a visit that does not
occur. To get back on the schedule, the parent needs to reach out to the Department.
Father did not do so until she visited him in jail in February, when she set up visits.
When he got out of jail, he did not contact the social worker to set up visits. When father
did visit, there were no concerns.
13.
The social worker believed there was a substantial risk of detriment if the baby
were returned to father, as during the short time father was out of custody, he “was in
substance use,” living with paternal great-grandmother in a home that was not safe for a
child, lacked insight into why the baby came into care and could not articulate the
unhealthy relationship he had with mother. The social worker did not think there was a
substantial probability the baby could be returned to father if the court ordered six more
months of services due to father’s pattern of behavior when he was out of custody—he
would live with paternal great-grandmother and resume drug use, and there was no
change or insight.
The social worker did not explain to father why the visits stopped in March and
she was not sure if anyone else did. Father told the social worker he did not participate in
NA or AA meetings at the jail.
In closing argument, father’s attorney argued the Department did not offer father
reasonable services given his incarcerated status. While father asked for visits in January
and February, they were not provided until the end of February, and when the jail ended
in-person visits, the Department did not investigate alternatives. The attorney further
argued no one went over the modified case plan with father or followed up on it, and
while the case plan was supposed to be specific to the resources available at the jail, two
of the three components were not available to him until he was released from custody. In
addition, no one followed up on whether NA or AA meetings were offered at the jail
during the coronavirus pandemic. Finally, the six-month report did not discuss father’s
progress in the modified case plan, and instead discussed his lack of progress in the initial
case plan.
In response, county counsel argued the Department offered father reasonable
services since the start of the case, but he simply chose not to engage in them. Father
could have started visits in January, but he did not take the opportunity to do so, and
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instead waited until February to request them. County counsel further argued the
Department could not force father to do the services it was offering.
The juvenile court took the matter under submission and issued its ruling at a
June 2 hearing. In ruling on whether the Department showed by clear and convincing
evidence father was offered reasonable services because the services were not tailored to
his situation in jail, the juvenile court noted there was a significant period of time father
was out of custody and “not only did he not participate, he had almost no contact at all
with Social Services.” The juvenile court found by clear and convincing evidence the
Department offered reasonable services to father and he chose not to participate in them,
explaining: “There’s significant case law to the point that the Department can offer
services, but it can’t make the parent participate. And the question is whether … the
services that were offered were reasonable. And the Court finds that they were.”
The juvenile court further found father made no progress in alleviating or
mitigating the causes necessitating placement, and the only service he indicated any
interest in was when he asked in February to visit the baby. While the Department made
efforts to provide visits, shortly thereafter the coronavirus pandemic hit and all visitation
stopped, which was not the Department’s fault. The juvenile court noted it had issued an
order requiring the Department to “go through each individual case and try and tailor the
services as best as possible to the parents.” The juvenile court again stated it found the
Department offered father reasonable services.
With respect to whether there was a substantial probability the baby may be
returned to father by the 12-month review hearing, it was clear to the juvenile court father
had made absolutely no progress, and based on his absolute lack of interest and failure to
participate in the services that were offered to him when he was out of custody, there was
no chance the baby would be returned to him by the 12-month mark. The juvenile court,
however, found there was a substantial probability the baby may be returned to mother.
15.
The juvenile court continued mother’s services for an additional six months but
terminated father’s services.
DISCUSSION
I. Reasonableness of Services
Father contends the order terminating his reunification services must be reversed
because substantial evidence does not support the finding he was offered reasonable
services. Specifically, he argues his services were unreasonable because it was
impossible to comply with the majority of the modified case plan’s requirements, as he
was unable to access two of the three requirements while incarcerated, and the
Department failed to discuss the modified plan’s requirements with him or verify his
release date to ensure he could comply with them before the six-month review hearing.
Father further argues the social worker failed to provide him with court-ordered
visitation.
A. Legal Background
The purpose of reunification services is to place the parent in a position to gain
custody of the child. (In re Karla C. (2010) 186 Cal.App.4th 1236, 1244.) To that end,
the Department must devise a reunification plan tailored to the unique needs of the family
and make a good faith effort to help the parent access the services the plan provides. (In
re Riva M. (1991) 235 Cal.App.3d 403, 414.) “The adequacy of reunification plans and
the reasonableness of the [Department’s] efforts are judged according to the
circumstances of each case.” (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158,
1164.)
The reasonableness of reunification services is assessed by its two components—
content and implementation. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1362.)
The content of the plan or, in other words, the nature of the services offered, is reasonable
if it properly identifies the family’s problems and offers services targeting those
problems. (In re Riva M., supra, 235 Cal.App.3d at p. 414.) The implementation of
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the services plan is reasonable if the supervising agency maintains reasonable contact
with the offending parent and makes reasonable efforts to assist in areas where
compliance is difficult. (Ibid.)
By statute, the juvenile court may not terminate a parent’s reunification services at
the six-month review hearing if it finds “reasonable services have not been provided” to
the parent. (§ 366.21, subd. (e).) Thus, if the juvenile court finds reasonable services
have been provided, it may terminate a parent’s reunification services. Moreover, the
juvenile court may refer the matter for a section 366.26 hearing if it finds by “clear and
convincing evidence that reasonable services have been provided or offered” to the
parent. (§ 366.21, subd. (g)(1) & (2).) While the juvenile court did not set a
section 366.26 hearing since it continued mother’s services, the juvenile court found by
clear and convincing evidence father had been offered reasonable services. (See Katie V.
v. Superior Court (2005) 130 Cal.App.4th 586, 595 [at the six-month review hearing, the
Department must prove it provided reasonable reunification services by clear and
convincing evidence]; In re Monica C. (1995) 31 Cal.App.4th 296, 306.)
We review the juvenile court’s reasonable services finding for substantial
evidence, i.e., evidence that is reasonable, credible and of solid value. (T.J. v. Superior
Court (2018) 21 Cal.App.5th 1229, 1238.) In doing so, we must account for the clear and
convincing standard of proof. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.)
The question before us is “whether the record as a whole contains substantial evidence
from which a reasonable fact finder could have found it highly probable that the fact was
true.” (Ibid.) We “view the record in the light most favorable to the prevailing party
below and give appropriate deference to how the trier of fact may have evaluated the
credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable
inferences from the evidence.” (Id. at pp. 1011–1012.)
17.
B. Forfeiture
The Department contends father forfeited his claim that the modified case plan
was inadequate because it included services that were not available to him at the jail. We
agree.
The reunification plan’s content is set forth at the disposition hearing and may be
subsequently modified. (§ 361.5, subd. (a).) A parent seeking to challenge the content of
the reunification plan must do so by direct appeal from the juvenile court’s order
approving the case plan or by filing a section 388 petition to modify it. (In re Julie M.
(1999) 69 Cal.App.4th 41, 47.) Failure to do so forfeits the issue for appellate review.
(Ibid.) A parent seeking to challenge the agency’s efforts to implement the case plan may
do so by a timely appeal from the juvenile court’s finding services were reasonable.
In this case, father challenges the content of the modified case plan, which was
ordered into effect when the juvenile court granted the Department’s section 388 petition
as to father on April 7. Father, however, did not object to the modified case plan at the
hearing on the section 388 petition; moreover, he informed the juvenile court he had
received the plan, signed it and returned it to the judge. Based on this, the juvenile court
granted the section 388 petition modifying father’s plan. No appeal was taken from that
order.
Reunification is a collaborative effort and a parent is presumed capable of
complying with a reasonable services plan. (In re Christina L. (1992) 3 Cal.App.4th 404,
415.) Consequently, the parent is responsible for communicating with the agency and
participating in the reunification process. (In re Raymond R. (1994) 26 Cal.App.4th 436,
441.) If father felt during the reunification period that his services were inadequate, he
“had the assistance of counsel to seek guidance from the juvenile court in formulating a
better plan.” (Christina L., supra, 3 Cal.App.4th at p. 416.) A parent may not “wait
silently by until the final reunification review hearing to seek an extended reunification
period based on a perceived inadequacy in the reunification services occurring long
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before that hearing.” (Los Angeles County Dept. of Children etc. Services v. Superior
Court (1997) 60 Cal.App.4th 1088, 1093.)
Father’s claim of error—that the modified case plan adopted on April 7 required
him to complete services he could not participate in while incarcerated—deals directly
with the content of the case plan adopted at the section 388 hearing. As such, the issue is
not cognizable in this appeal. (In re Julie M., supra, 69 Cal.App.4th at p. 47.)
C. Reasonable Services Were Provided
With respect to implementation of father’s case plans, father asserts the social
worker failed to discuss the modified case plan’s requirements with him, assist him with
accessing services, and provide him with court-ordered visitation while incarcerated.
Father contends two of the three case plan components were not available to father
during his incarceration. As the Department points out, while the social worker agreed to
this assertion at the review hearing, the record shows this was not the case. The modified
case plan included three elements—substance abuse treatment, parenting education, and
domestic violence counseling. Each of these elements had one or more specific
components. For substance abuse treatment, father was to enroll in the CASE program
and attend at least one NA/AA meeting per week. Father agreed NA/AA meetings were
available in the jail, but he did not attend them. The parenting education component
required father to complete packets that were mailed to him and return them by mail.
Father admitted at the April 7 hearing that he received the packets in the mail; apparently,
he did not complete them. The third component, the “GEO” program, stated father
would submit a completed application, but he apparently did not do so. While father
complains that the social worker did not discuss the modified case plan’s components
with him, he acknowledged receiving the plan and he knew what was required of him.
Father simply did not participate.
The modified case plan required father to contact the social worker within
48 hours of his release from custody. Although father was released from jail on April 7,
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apparently after the hearing on the section 388 petition, father did not contact the social
worker. Instead, he returned to his familiar pattern of living with paternal great-
grandmother, abusing substances, and actively avoiding contact with the Department.
The problem here was not the Department’s failure to offer father services, but rather his
failure to engage in them or even to come to court and visit his son, unless he was in
custody.
As for father’s contention he was not provided visitation while in jail in
accordance with his case plan, we note the standard for assessing whether reunification
services were adequate is not whether the services provided were ideal, but whether they
were reasonable given the circumstances in each case. “In almost all cases it will be true
that more services could have been provided more frequently and that the services
provided were imperfect. The standard is not whether the services provided were the best
that might be provided in an ideal world, but whether the services were reasonable under
the circumstances.” (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
Here, any failure to provide court-ordered visitation while father was in jail was
reasonable under the circumstances of this case. Father did not request visits with the
baby until February. The social worker scheduled the visits and they began within
two weeks. While the two visits father received took place every other week for
30 minutes, rather than twice a week for four hours as provided in the initial case plan,
that plan gave the social worker discretion to modify visits in the baby’s best interest and
dependent on the parent’s progress in services. Moreover, despite the social worker’s
testimony that visitation had never been modified, the modified case plan reduced
father’s visits to biweekly beginning March 10. Given this change and the baby’s young
age, it was not unreasonable to provide father visits at the jail less frequently and for a
shorter time than stated in the initial case plan.
When the jail suspended visits due to the coronavirus pandemic, father missed at
most one visit before he was released from custody on April 7. After that, he did not
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contact the social worker to arrange visits, either when he was out of custody or after he
returned to custody on May 4. Although the Department apparently could have arranged
for video visitation in the jail, that it did not do so is not unreasonable given the baby’s
age. As the Department asserts, an eight-month-old baby is not benefitting from or
substantially bonding with a parent during a video visit in a jail setting and 30 minutes of
participation is reaching, if not exceeding, the baby’s capacity, especially where the baby
had not visited with or even seen father for four months due to father’s refusal to visit,
and thus had no real relationship with him. Moreover, as the juvenile court noted, it had
ordered the Department to tailor the services as best as possible considering the
coronavirus pandemic. The evidence shows the Department did just that with respect to
father’s visits.
Based on the above, we find that substantial evidence supports the juvenile court’s
finding that the Department provided reasonable services to father. Father’s “real
problem was not a lack of services available but a lack of initiative to consistently take
advantage of the services that were offered.” (Angela S. v. Superior Court (1995) 36
Cal.App.4th 758, 763.)
II. ICWA
Father contends the court erroneously found the baby was not an Indian child
within the meaning of ICWA. He asserts the ICWA notice sent to the tribes failed to
include information father or his relatives may have been able to provide, but nothing in
the record shows that father’s relatives were interviewed or why the Department was
unable to provide the information.3 The Department concedes extended family members
3 Father also questions why the ICWA notice listed his mailing address as
357 Barretta St., Apt. A, Sonora. This address, however, was listed on the police report
of his October 8, 2019 arrest, and was the address used to mail him the dependency
petition on October 17, 2019.
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may not have been interviewed and therefore remand is required for further inquiry and
notice as required by ICWA.
ICWA requires notice to Indian tribes “in any involuntary proceeding in state
court to place a child in foster care or to terminate parental rights ‘where the court [or
social worker] knows or has reason to know that an Indian child is involved.’ ” (In re
Isaiah W. (2016) 1 Cal.5th 1, 8; 25 U.S.C. § 1912(a); accord, § 224.3, subd. (a).) The
tribe to which the child belongs, or in which the child may be eligible for membership,
must receive “notice of the pending proceedings and its right to intervene.” (In re
H.B. (2008) 161 Cal.App.4th 115, 120; accord, § 224.3, subd. (a)(3)(A).)
The juvenile court and the Department have an “affirmative and continuing duty to
inquire” whether a child in dependency proceedings “is or may be an Indian child.”
(§ 224.2, subd. (a).)4 If the court or social worker has “reason to believe” an Indian child
is involved, the social worker must, as soon as practicable, interview the parents and
extended family members to gather the information required to determine the possible
Indian status of the child. (§ 224.2, subd. (e)(1).)5 Further inquiry includes, but is not
4 We note that “[i]n 2016, new federal regulations were adopted concerning ICWA
compliance. [Citation.] Following the enactment of the federal regulations, California
made conforming amendments to its statutes, including portions of the Welfare and
Institutions Code related to ICWA notice and inquiry requirements. [Citations.] Those
changes became effective January 1, 2019 …, and govern here.” (In re D.S. (2020) 46
Cal.App.5th 1041, 1048.)
5 Section 224.2, subdivision (e)(1) provides: “If the court, social worker, or
probation officer has reason to believe that an Indian child is involved in a proceeding,
but does not have sufficient information to determine that there is reason to know that the
child is an Indian child, the court, social worker, or probation officer shall make further
inquiry regarding the possible Indian status of the child, and shall make that inquiry as
soon as practicable. [¶] (1) There is reason to believe a child involved in a proceeding is
an Indian child whenever the court, social worker, or probation officer has information
suggesting that either the parent of the child or the child is a member or may be eligible
for membership in an Indian tribe. Information suggesting membership or eligibility for
membership includes, but is not limited to, information that indicates, but does not
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limited to: (1) interviewing the parents, Indian custodian, and extended family members
to gather the information required in paragraph (5) of subdivision (a) of
section 224.3;6 (2) contacting the Bureau of Indian Affairs and the State Department of
Social Services for assistance in identifying the names and contact information of the
tribes in which the child may be a member, or eligible for membership; and
(3) contacting the tribe(s) and any other person that may reasonably be expected to have
information regarding the child’s membership, citizenship status, or eligibility. (§ 224.2,
subd. (e)(2).)
If the inquiry establishes a “reason to know” an Indian child is involved, notice
must be provided to the pertinent tribes. (§ 224.3, subds. (a), (b).) 7 ICWA notices “shall
include,” among other things, the identifying information for the child’s biological
parents, grandparents, and great-grandparents, to the extent known. (§ 224.3,
subd. (a)(5)(C).) The notices should “provide the Indian tribe with all available
establish, the existence of one or more of the grounds for reason to know enumerated in
paragraphs (1) to (6), inclusive, of subdivision (d).”
6 Section 224.3, subdivision (a)(5) lists the information to be included in an ICWA
notice, such as the name, birth date and birthplace of the Indian child, if known; the name
of the Indian tribe; and the names and other identifying information of the Indian child’s
biological parents, grandparents, and great-grandparents, if known.
7 Section 224.2, subdivision (d)(1) describes six circumstances providing reason to
know an Indian child is involved: “(1) A person having an interest in the child, including
the child, an officer of the court, a tribe, an Indian organization, a public or private
agency, or a member of the child’s extended family informs the court that the child is an
Indian child. [¶] (2) The residence or domicile of the child, the child’s parents, or Indian
custodian is on a reservation or in an Alaska Native village. [¶] (3) Any participant in the
proceeding, officer of the court, Indian tribe, Indian organization, or agency informs the
court that it has discovered information indicating that the child is an Indian child. [¶]
(4) The child who is the subject of the proceeding gives the court reason to know that the
child is an Indian child. [¶] (5) The court is informed that the child is or has been a ward
of a tribal court. [¶] (6) The court is informed that either parent or the child possess an
identification card indicating membership or citizenship in an Indian tribe.” (§ 224.2,
subd. (d).)
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information about the child’s ancestors, especially the ones with the alleged Indian
heritage.” (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.) The Department must
send notice of all hearings that may culminate in an order for foster care placement,
termination of parental rights, or preadoptive or adoptive placement, until the court
determines that ICWA does not apply. (§§ 224.2, subd. (i)(1), 224.3, subd. (b).)
The juvenile court may find ICWA does not apply when the Department’s further
inquiry and due diligence were “proper and adequate” and there is no “reason to know”
whether the child is an Indian child. (§ 224.2, subds. (i)(2), (g).) Even if the court makes
this finding, the Department and the court have a continuing duty under ICWA, and the
court “shall reverse its determination if it subsequently receives information providing
reason to believe that the child is an Indian child and order the social worker or probation
officer to conduct further inquiry.” (§ 224.2, subd. (i)(2).)
Here, the Department assumes father’s statement that he may have Cherokee or
Creek ancestry creates a reason to believe the baby may be an Indian child. In that
situation, as we have stated, the Department’s inquiry must include interviewing the
parents, Indian custodian, and extended family members to gather the information about
tribal affiliations and ancestral identifying information required for formal notice under
section 224.3. (§§ 224.2, subd. (e), 224.3, subd. (a)(5).) The Department concedes the
record shows it did not conduct such an inquiry. While the Department apparently
interviewed father, there is no indication the social worker attempted to contact father’s
extended family members, who were accessible to the Department, to gather the pertinent
ICWA information.
Cherokee and Creek tribes were provided with known identification information
concerning the baby, parents, paternal grandparents and paternal great-grandmother.
Although formal notice was not yet required, and the tribes did not identify any
additional information that was necessary to make a membership or eligibility
determination, we cannot know if any of father’s accessible relatives would have
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responded with ancestry information that would have assisted the tribes in determining
whether the baby is a member or eligible for membership.
Therefore, the juvenile court’s order finding that ICWA did not apply—based
on the court’s general adoption of the Department’s recommendations—was not
supported by substantial evidence. (§ 224.2, subd. (i)(2) [ICWA findings “subject to
reversal based on sufficiency of the evidence”]; In re Hunter W. (2011) 200 Cal.App.4th
1454, 1467 [reviewing ICWA findings for substantial evidence].) The court had no facts
on which to base an ICWA finding in the absence of information about the Department’s
investigation. (In re L.S. (2014) 230 Cal.App.4th 1183, 1198.)
On remand, the juvenile court shall ensure the Department further investigates
father’s claim of Indian ancestry. (§ 224.2, subds. (a), (e).) The court must then decide
whether the information amounts to “reason to know” that the baby is an Indian child,
thereby triggering the notice requirement. (25 U.S.C. § 1912(a); § 224.3, subds. (a), (b).)
DISPOSITION
The order terminating father’s reunification services is affirmed. The matter is
remanded for the juvenile court to vacate its finding that ICWA does not apply and to
(1) direct the Department to further investigate father’s claim of Indian ancestry and
(2) decide whether the inquiry reveals reason to know the baby is an Indian child. If the
court determines that there is reason to know the baby is an Indian child, the court shall
direct the Department to send notice to the pertinent tribe(s). After the Department
updates the juvenile court on its inquiry and responses from the tribe(s), the juvenile
court shall determine whether ICWA applies to the baby. If the juvenile court determines
ICWA applies, it shall proceed in conformity with ICWA and related California law.
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