Opinion
A156943
02-18-2020
In re M.P., et al., Persons Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. S.P., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J18-00408, J18-00409, J1800410, J1800411)
S.P. (mother) appeals from six-month status review orders in juvenile dependency cases filed on behalf of her four youngest children, who were all under 10 when dependency petitions were filed. (Welf. & Inst. Code § 366.21, subd. (e).) Mother also appeals from an order denying her petition for return of the children based on changed circumstances. (§ 388.) Mother contends that the juvenile court erred by refusing to return the children to her custody, finding that mother was afforded reasonable reunification services, denying mother unsupervised visits, and failing to comply with the Indian Child Welfare Act (ICWA).
Subsequent statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We affirm the appealed orders in the cases pertaining to mother's three daughters, M.P., Mar.P., and Mor.P. In the case pertaining to mother's youngest child, Felipe P., there is still no disposition because Felipe is missing. Accordingly, the appeal mother filed in Felipe's case is not ripe and must be dismissed.
FACTUAL AND PROCEDURAL HISTORY
I. Background
On the morning of April 3, 2018, Antioch police went to mother's home to execute a probation search warrant on mother's then 17-year-old son, Sa.G. , who was a suspect in a strong-arm robbery. When officers arrived, mother was not home. They arrested Sa.G. and then made an "immediate referral" to Contra Costa County Children and Family Services (the Bureau) on behalf of Sa.G. and his half-siblings, nine-year-old twins, M.P. and Mar.P., their eight-year-old sister Mor.P., and Felipe P., who was three. The officers were concerned that mother's home was unsafe due to poor living conditions and recent criminal activity.
According to the police referral, uninhabitable conditions at mother's home included: animal feces smeared on the walls, in the bedrooms and the garage; open alcohol containers and hypodermic needles within reach of the children; trash and debris throughout the house; and a front entrance covered with plywood instead of a front door. Water service to the home had to be turned on with tools that were found in the garage, there was electricity but no heat, and the children's bedrooms were filthy, with a stained mattress and no bed linens.
Police also reported a spate of criminal activity at the home and by people who resided there. Mother's adult son, Se.G., had recently been arrested for attempted murder. Mother had a pending warrant for making criminal threats against a neighbor who she allegedly knocked out and threatened to " 'gun-down.' " She also had a recent arrest for being an ex-felon in possession of a firearm. In addition, her father-in-law (the paternal grandfather of the younger children) had overdosed in the home and was a suspected heroin addict. The police described other incidents at the home, including a call for help from mother when Se.G. was threatening her with a loaded gun, and a previous search of the home when police found a " 'fully loaded pump action shotgun' " under a mattress in mother's bedroom.
The Bureau social worker interviewed the three girls at the police station. They reported that their maternal grandmother and paternal grandfather lived with them, but their father, F.P. (father), lived in Oakland. The girls said that when the police arrived that morning, the twins were sleeping on the couch because someone else was in their bed. Their little brother Felipe was thought to be with mother. The girls also reported that they had enough to eat at home, they were enrolled in school, and when they got in trouble at home, they were put into "time out." The social worker attempted to contact mother at a number mother had provided, but her call was answered by a supervisor at mother's work who said that mother was not available to talk. Later that day, mother went to the police station looking for her girls and was placed under arrest.
On April 4, 2018, the social worker interviewed mother, who immediately inquired about the well-being of the girls. After explaining the emergency placement process, the social worker asked the whereabouts of Felipe. Mother said he was with father in Oakland. She explained that she and father were getting divorced, she did not know his address but could find it by driving there, and she had his phone number in her phone, but it was broken. When the social worker asked if father would be an appropriate caregiver for the girls, mother responded that he would be overwhelmed if he had four children in his house, he had a history of alcohol and substance abuse, and he suffered from a seizure disorder. Mother also reported that their daughter Mar.P. has Turner Syndrome, which requires daily shots and regular medical monitoring.
During her interview, mother claimed the officer who reported her to the Bureau had been harassing her and disputed several facts reported by the police. She denied that her father-in-law (Mr. P.) overdosed in the home or that he lived there, explaining that Mr. P. had diabetes and spent time at the house because she was his caretaker. Mother admitted that, in October 2017, a man had overdosed in her home, but he was not a relative and mother had not even known he was there. Regarding the front door, mother explained that after the police kicked it in for the third time, she stopped repairing it. Mother denied calling the police for assistance when her son threatened her with a gun, and she denied knowing about the loaded shotgun found under her mattress. She also reported that a charge against her for possession of a firearm had been dropped. Mother told the social worker that her mother (Ms. H.) spent time at the house watching mother's children, but she did not live there. Ms. H. lived with another family and did not have room to accommodate the girls.
On April 5, 2018, the Bureau filed petitions on behalf of the three girls and Felipe, alleging they came within the juvenile court's jurisdiction under section 300, subdivision (b)(1). The detention hearing was scheduled for April 6. In its detention/jurisdiction report, the Bureau described the incidents that precipitated the petitions and provided additional information about the family. There were 11 prior referrals to social services, dating back to 2002, but none of them had been sustained. Mother had a history of arrests and convictions from 1995 to 2018, which included felonies and violent crimes. Her most recent conviction was in June 2013 for grand theft. Father had "an extensive criminal history from 1990 to 2018," which included theft and drug offenses, domestic violence, and willful cruelty to a child.
At an April 6 detention hearing, mother reported that her home was being "redone" and requested a contest. She also reported that father was living in San Francisco. She said she did not know the address but that the home belonged to father's mother and provided a telephone number. During a break in the proceeding, the Bureau called the number, but nobody answered. The court detained all four children, issued a warrant for Felipe to be retrieved from father in San Francisco, and continued the matter to April 9. A transcript of the April 9 hearing is not included in the record, but a different judge ordered again that the children be detained.
On May 10, 2018, the court held a contested jurisdiction hearing. County Counsel reported that Felipe was still missing, and mother continued to maintain that she did not have a way to contact father. Meanwhile, the girls had started school at a location that was supposed to be confidential, but somehow family members discovered it and went to the school to drop off items for the girls. The children's attorney reported that during a recent meeting with the girls, they spontaneously told her that Felipe and father were in Las Vegas. Mother's counsel then informed the court that mother had learned that father and Mr. P. had moved to Las Vegas and took Felipe with them, and that she had shared this news with the girls during a supervised visit. Counsel stated further that mother heard about the move from her brother-in-law, whose phone number would be provided to the social worker, but that was the only contact information she had to offer.
During the jurisdiction hearing, mother admitted allegations in the children's amended petitions that she "endangered the children by maintaining a home" that was (1) "uninhabitable, hazardous, and declared uninhabitable," and (2) "laden with criminal activity and dangerous traumatic situations." She admitted the truth of facts alleged in support of the amended petitions, including that: her home was dirty, with garbage strewn around and animal feces in the front entry; her home had no functional front door; police arrested her for child endangerment because of the condition of her home; the home was "red tagged by Antioch police and declared uninhabitable"; "[a] recent probation inspection found a fully loaded pump action shot gun in a place accessible to the children"; and mother and her neighbor had a "mutual physical altercation" on mother's property.
The juvenile court sustained allegations in the amended petitions, exercised jurisdiction over the children, and continued the cases for disposition.
II. Disposition
In a June 2018 disposition report, the Bureau recommended that the court adjudge the children dependents and provide mother with reunification services. The three girls were together in foster care and the whereabouts of Felipe was still unknown, although he was believed to be with father.
The disposition report contains details about the family's prior child welfare history dating back to when mother was married to the father of her older boys. There were multiple referrals for caretaker incapacity and neglect, but formal action was never taken. In 2017, the Bureau investigated a referral regarding possible abuse of Felipe, who was brought to the hospital by mother for treatment of a four to five-inch blister across his buttocks. The investigation was closed after it was determined the injury was caused by accidental ingestion of chocolate ex-lax and the Bureau determined that "mother appeared to be providing the minimum sufficient level of care for all of her children." Regarding its current investigation, the Bureau reported that mother's "home was the subject of repeated police raids and intrusions with the door being kicked in and police charging in with guns drawn. These incidents were in relation to the two sons of [mother] who lived in the home . . . who have been chronically involved in criminal activities. While living in the home both sons have committed a variety of crimes including attempted murder."
Regarding the family's background, the Bureau reported that mother graduated high school, attended specialty education schools and became a medical assistant and a phlebotomist. She divorced the father of her two older children while he was in prison serving a nine-year sentence. Subsequently she married father, who had been a friend since high school. They had four children, the three girls and Felipe, and lived together for several years. Mother went to work, and father was a stay-at-home father, but he failed to get the kids to school and appointments. At some point, the couple divorced, but they continued to co-parent and had an on-again-off-again relationship. After that, mother relied on her son Sa.G. to help with the housework and children, but he became increasingly unavailable due to criminal arrests. Mother felt that she had maintained a good, clean home for her children, although she acknowledged that she had a hard time managing a puppy that the family got for Christmas.
The Bureau reported that mother had many strengths. She was a working professional, who had a large home in a good neighborhood, maintained vehicles, and "worked at a high level for many years." Her daughters were "pleasant, playful, intelligent and well mannered." During supervised visits, mother was "appropriate and loving," and "very maternal." However, mother also had a "chronic history of minimizing problems" and of "tolerating" unsafe situations, which included: chronic lack of school compliance; a tolerance of criminal activity and denial of criminal behavior committed by mother, her two husbands, and her two oldest children; allowing Felipe to be with father in disregard of court orders; failure to acknowledge or accept responsibility for the condition of her home; and an "out of control lifestyle," as illustrated by the recent fight with a neighbor who filed a report accusing mother of threatening to shoot her. Of these problems, the Bureau was particularly concerned about mother's tolerance of criminal activity and disregard for the court order to retrieve Felipe from father.
Regarding the criminal activity, the Bureau pointed out that mother's eldest children followed the criminal path of their parents, committing crimes as minors and adults, which included "shootings and assaults." Mother's "loss of control of her family situation," tolerance of ongoing criminal activity by her sons, and tolerance of her sons and other people in the home, created an "unsafe environment." And yet, mother told the social worker that she felt neither of her sons had committed any crimes, and that all of their arrests and incarcerations were either misunderstandings or "set up by Antioch Police who targeted her."
Regarding Felipe, the Bureau reported that father had lived at mother's home part-time before the dependency cases were filed, and it expressed concern that mother showed "no signs of alarm or inquiry" about the fact that Felipe was missing. According to the report, "[t]he idea that she does not know where the child is cannot be held as truthful. The Bureau would assert that she very clearly does know where this child is and is withholding that information from the Bureau and the Court." The Bureau also reported that mother had been informed that if she was withholding information about Felipe "willfully," her case could not "move forward in any meaningful way."
Mother opposed the Bureau's disposition recommendation and the matter was continued to August for a contest. Meanwhile, mother reported that she intended to relocate to Alameda County, and a meeting was held in July 2018 to discuss her plans. At the meeting, mother was angry about the disposition recommendation to provide reunification services instead of family maintenance services. She refused to answer the social worker's questions about the location of her new residence and when she was moving. Instead, she told another person in the room that she had a plan and was waiting for an " 'application to go through.' " Mother wanted to know about her " 'rights,' " and how she could get her children back without participating in a service plan. The team also discussed the fact that the court might find that mother was accountable for the fact that Felipe was still missing.
In a supplemental report to the court, the Bureau advised that, after the July 2018 meeting, mother would not answer the social worker's calls or provide a current mailing address. The social worker believed that mother had been in contact with father, citing a supervised visit when the caseworker saw mother and the girls "Skyping" with Felipe and heard the girls say that Felipe was in Los Angeles with father. Also, during a visit at the girls' foster home, the children told the social worker that they talked to Felipe on the phone during visits with mother. The girls also said that their brother Sa.G. was out of jail and living with mother.
A contested disposition hearing was held on August 2, 2018. Mother shared her plan to move to Alameda County and have her public benefits transferred there. The children's counsel expressed concern about mother's refusal to provide information about Felipe and that she was setting a bad example for the girls by lying and disregarding court orders. The court advised mother that it believed she was being deceptive about Felipe's whereabouts and was likely hiding the boy with a man that the court considered to be dangerous. It followed the Bureau's recommendation to adjudge the girls dependents and provide mother reunification services. It ordered that mother's visits had to be supervised and were to take place twice a month at the Bureau.
Mother's approved case plan required her to participate in individual counseling and complete a parenting education class. Her "objectives" were to comply with all court orders, obtain and maintain a suitable residence, develop a positive support system, comply with her visitation plan, be a consistently appropriate and adequate parent, cooperate with the social worker, and accept responsibility for her actions. The six-month status review was set for January 24, 2019.
III. The Reunification Period and Status Review
On December 6, 2018, mother filed a petition under section 388 for a change in the court's disposition order to require that the girls be returned to her custody. Mother alleged her request was based on the following "new information": She had relocated to Oakland, where she had a lease for a four-bedroom home; her adult sons were aware they could not live in the home or use the address for any reason; she was no longer caring for Mr. P.; she began taking a parenting course prior to disposition and completed the course "right after" her case plan was adopted; she found a therapist in Alameda County, whom she loved and who helped her realize that she was not responsible for the choices and behaviors of her adult sons; she secured employment at "Dublin Parking"; and she had both a daycare option and family support in Oakland.
In a January 2019 status report, the Bureau confirmed some facts reported in mother's section 388 petition, but nevertheless recommended that the girls remain dependents with continued reunification services to mother. The Bureau also requested that the dependency cases be transferred to Alameda County. According to the report, the girls were doing well in their foster home placement and at school, but they missed their mother and brothers. Felipe was still missing. A warrant for father's arrest was issued in October 2018. Mother had declined to cooperate when the social worker sought identifying information about father to facilitate issuance of the warrant.
The Bureau reported that mother had a part-time job in Oakland, where she had signed a lease for a four-bedroom home. She had some furnishings and bedding for the girls, but she was staying with friends until the girls were returned to her. She completed her parenting course, was participating in therapy and "demonstrated some behavior changes." During therapy, mother acknowledged that, prior to the dependency, she had been overwhelmed and struggled to manage work, the dangerous behaviors of her older sons, and caring for her younger children. Mother told the social worker that the older boys were both incarcerated, had not lived with her for almost a year, and would not be allowed to live in the Oakland home, which was for her and the girls. Mother had consistent, positive visits with the girls and clearly loved them. She stated that she was willing to make changes in her life, but she wanted the dependency cases closed as soon as possible.
The Bureau acknowledged mother's progress but continued to highlight two concerns. First, Felipe was still missing. Mother's claim that she did not know his whereabouts was not credible and was concerning because Felipe was with a man whose criminal background included convictions for drug offenses, DUI, domestic violence and willful cruelty to a child. Second, mother's two older sons had turned her Antioch home into a " 'drug house,' " which was often raided by police, and the Bureau was concerned that mother would allow those sons to live at the Oakland house. Nevertheless, the Bureau opined that, as mother continued with therapy, she could demonstrate her ability to maintain a safe home for the girls. In the meantime, it recommended that the dependency cases be transferred to Alameda County since mother had established residency in Oakland. The Bureau also recommended that "mother continue in Family Reunification Services with the goal of participating in unsupervised visits and moving towards Family Maintenance and the children returning home."
In February 2019, the Bureau filed a supplement report updating the court about recent events. The social worker reported that she talked to mother about the fact that Felipe was still missing, and mother said she was not concerned about Felipe's safety because father was " 'a great dad.' " The social worker was bothered by this remark in light of father's criminal history and the fact that mother claimed she had not seen Felipe in more than 10 months. The Bureau provided the court with copies of water and electricity bills for mother's Oakland home, a letter from mother's therapist indicating that mother was actively engaged in therapy, and an email from the Oakland Housing Authority confirming that mother continued to qualify for Section 8 Housing so long as her children were not permanently removed from her care.
Mother's motion to augment the appellate record with this report is granted. --------
IV. The Juvenile Court Rulings
The six-month review was held on February 14, 2019 in conjunction with a hearing on mother's section 388 petition. After the parties stated appearances and the County summarized its recommendations, the court inquired about Felipe and was told there was no new information about his status. County counsel reported that mother was refusing to discuss the matter with the social worker. The children's counsel, who opposed mother's section 388 petition, stated that the concern was not limited to the fact that mother did not know where Felipe was but also that she was not worried about him.
The court sought clarification about the timing of the most recent contact with father. County counsel responded that the Skype phone call that occurred prior to disposition was the only confirmed communication, but also let the court know that the girls had made statements in front of the social worker, which suggested they had been told not to talk about their father. Mother's brother and aunt were in the courtroom and the court asked them for information about Felipe. Both said they did not know where he was and that they were worried.
Then mother's counsel argued in support of the section 388 petition requesting return of the girls. Counsel argued that mother's substantial progress on her case plan was sufficient to overcome the court's concerns regarding a risk of detriment, and then counsel stated: "It's my understanding the court has a feeling that the girls cannot be returned until Felipe is found. [Mother] cannot control [father]. She does not know where he is. She does not have contact with his relatives. He is not on Facebook." Counsel offered to help mother get a restraining order but pointed out it could not be served because father's whereabouts were unknown.
Then mother addressed the court directly. She denied saying she was not concerned about Felipe. She clarified that she had said only that father had never "put his hands on any of [her] kids" and she did not believe he would harm them. Mother stated that she worried about all of her kids, and she knew that they loved and missed her. She requested "a chance with unsupervised visits," pointing out that supervised visits went well. She acknowledged that in the past she had allowed herself to get "sucked up" helping other people but said that she now had more insight and understood she could only deal with her own problems and the well-being of her kids. Mother stated that her last contact with father was when she received a "random" call from him during a supervised visit. She put him on speaker so he could talk to his daughters and then asked him to call her back later. Father called mother later that same day, told her he consulted a lawyer who said he had no obligation to contact mother again, and that was the last conversation they had.
The court heard further argument and then announced its rulings. It denied mother's section 388 petition, finding that it would not benefit the children. The court also denied the motion to transfer these cases to Alameda County, reasoning that the court was very familiar with this family and that it would be unfair to transfer the cases at this stage. Then the court found that the girls continued to face a high risk of harm, specifying three distinct concerns. First, the court stated that mother, "whom I do not trust for a second," would allow the girls to see their older brothers, which "would be dangerous." Second, mother's new house was in good condition because nobody was living there, but the court believed that it would "be right back into the same condition" as her Antioch house. Third, the court was very concerned about Felipe. The court stated: "I totally, totally find mother not credible. I think she knows exactly where this man is that she's lived with and known since she was young, and has had the violent relationship with . . ." The court opined that the reason mother was not worried and the reason she was lying to the court was because she knew exactly where Felipe and father were. The court also stated that mother's claim she and father suddenly decided to stop communicating with each other was "pretty unbelievable." For these reasons, the court denied mother's section 388 petition and followed the Bureau recommendations to continue the dependency cases and reunification efforts with mother.
In completing its review, the court followed most of the Bureau's recommendations. It found, among other things, that the Bureau provided or offered mother reasonable reunification services, and that returning the children to mother's custody would create a substantial risk of detriment to their safety, protection or well-being. It also found that mother made "significant" albeit "partial" progress toward alleviating or mitigating the problems that led to the removal of the children. However, the court did not follow the Bureau's recommendation regarding visitation. The Bureau had requested authority to permit unsupervised visits and consecutive overnight visits for a maximum of 30 days. Instead, the court ordered that mother's visits "must" be supervised and that visits would be for a minimum of one hour four times a month.
Mother's counsel objected that continuing supervised visitation would deprive mother of an adequate opportunity to reunify. The court responded that unsupervised visits would be "high-risk" for the girls, explaining: "I don't know who [mother] would subject them to because I don't believe her." Mother's counsel stated that even some minimal amount of unsupervised time with the girls would be a way for mother to earn the court's trust. However, the court stated it needed more information to give it confidence that the girls would be safe with mother. It suggested that mother's therapist could provide relevant input and also stated that "mother could always help us a great deal when she lets us know where Felipe is so we can make sure the boy is safe." Reiterating that mother's visits "must" be supervised, the court stated: "When one doesn't trust, there's nothing I can do about that."
At the conclusion of the hearing, the court addressed mother's family, stating: "Now, you're her family out there. [¶] You want to help her? [¶] You find Felipe, you find this father—you help her." Mother's brother responded to this suggestion by asking whether finding Felipe would mean the children could then be reunified with their family. The judge interpreted this question as an indication that mother's brother might know where Felipe was, and when she suggested as much the brother walked out of the courtroom. The next review hearing was set for March 28, 2019.
DISCUSSION
I. The Court Was Not Required to Return the Girls to Mother's Custody
Mother contends the girls should have been returned to her custody at the six-month review hearing for two independent reasons. First, she argues that the evidence does not support the court's finding that returning the girls to mother would create a substantial risk of detriment to their safety or well-being. Second, mother contends that the court abused its discretion by denying her section 388 petition.
A. The Risk of Detriment Finding
At the six-month review hearing, the juvenile court must "order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.21, subd. (e).) We review a substantial risk of detriment finding under the substantial evidence standard. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.)
In reviewing a risk-of-detriment finding, we look for evidence of a "substantial" risk, such that returning the child to parental custody "represents some danger to [the child's] physical or emotional well-being." (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 788.) Pertinent factors include the extent to which the parent participated in reunification services (§ 366.22, subd. (a); Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748), and the efforts or progress the parent made toward eliminating the conditions that led to the out-of-home placement. (§ 366.22, subd. (a); In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1142.)
In the present case, Mother contends that substantial evidence does not support the risk of detriment findings because she complied fully with her case plan and rectified the problems that led to the dependencies, and the fact that Felipe was still missing did not put her daughters at risk. We disagree with these contentions.
The record shows that mother did make commendable progress toward completing her two service requirements; she completed her parenting class and was actively engaged in therapy. But there is also substantial evidence that mother's efforts to reach her plan objectives were only partial. She had obtained a suitable residence but had not yet demonstrated she could maintain it. She felt that she was benefiting from therapy, but she had yet to accept personal responsibility for the dangerous environment at her Antioch home, claiming instead that her only misstep was trying to help other people with their problems. Moreover, the Bureau reported that mother continued to be uncooperative, particularly in their efforts to search for Felipe.
Mother contends erroneously that "[t]he sole reason given for not returning the girls to the mother was that Felipe's whereabouts remained unknown." As discussed in our background summary, the court gave three distinct reasons for its ruling: mother could not be trusted to protect the girls from exposure to their older brothers; mother had not demonstrated she could maintain good conditions at her new home; and mother was not being truthful with the court as to what she knew about Felipe. On this last point, the court's concern was not just that Felipe was missing, but that there was evidence suggesting that he was not safe with father and yet mother was being uncooperative and dishonest with the court and the Bureau.
Mother contends further that, because the law mandates that dependent children be treated as individuals, any risk Felipe may face because he is with father "does not translate to a risk to the girls from the mother." We agree with this proposition as far as it goes. Here, however, the court made a specific adverse credibility finding about mother herself; it was not blaming mother for father's conduct but for her own dishonesty and refusal to cooperate with the Bureau in its effort to locate her young son. It was these concerns about mother herself that the court cited as one of three reasons for finding a risk of detriment to the girls. (Compare A.T. v. Superior Court (2017) 10 Cal.App.5th 314, 325-326 [the court's obligation to afford individualized treatment to minors under the court's jurisdiction should not be discharged by invoking categorical rules or general policy concerns.].)
Challenging another aspect of the court's ruling, mother contends that the concern her adult sons would resume living with her was pure speculation, unsupported by any evidence. "In fact," mother argues, her sons were incarcerated, had not lived with her in "over one year," and she had made it clear to the Bureau that she "would not allow them to return to her home." This argument is not persuasive. According to an August 2018 report, the girls had disclosed that their brother Sa.G. was out of jail and living with mother. Five months later, in January 2019, the Bureau reported that mother had stated that her sons had not lived with her for almost a year, which was not consistent with information the girls had provided. Mother also told the social worker that her sons were "currently" incarcerated, but she may have contemplated that they could be released soon because she attempted to assure the social worker that she would not allow them to live in her home. Neither the Bureau nor the court was convinced by that assurance.
The juvenile court's determination that Sa.G. and Se.G. posed an ongoing risk to the girls was supported by substantial evidence that mother gave these men unbridled access to the Antioch home, which they used for criminal activities that seriously endangered the girls. Although there was evidence that mother was utilizing therapy to address her relationship with her older sons, there was also evidence that she continued to deny that they were dangerous and that she had not accepted personal responsibility for placing her daughters in a dangerous situation. Furthermore, although mother had a lease for a home in Oakland, she had not actually lived in the home herself. Thus, she had not demonstrated that she would or could control who else would be allowed to live there with her.
Finally, mother contends that the court's distrust of her does not justify the risk of detriment finding because it is based on speculation about possible future conduct and indicates that the court was punishing mother rather than following the statutory standard. This argument conflates two distinct issues. Concern about mother's future conduct was based on evidence of the conduct that led to this dependency. Thus, for example, the court's concern about whether mother would keep her home in a safe condition was based on undisputed evidence regarding the appalling condition of her Antioch home. The court's distrust of mother, by contrast, was based on the court's finding that mother was currently being dishonest with the social worker and the court. On appeal, we must accept that credibility finding by the trial judge who observed mother and interacted with her.
We agree with mother that it would be improper for the court to retain custody of the girls as a punishment for mother's failure to produce Felipe. We also acknowledge mother's evident strengths as a parent and the progress she made toward addressing the court's legitimate concerns. However, this record contains substantial evidence that returning the girls to mother's custody at the six-month hearing would have created a substantial risk of detriment to their safety or well-being and, on that basis, we affirm the court's ruling.
B. Mother's Section 388 Petition
Mother contends that the juvenile court erred by denying her section 388 petition to modify the disposition order by requiring that the girls be returned to mother's physical custody. "A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new or changed circumstances exist, and (2) the proposed change would promote the best interest of the child. [Citation.] The parent bears the burden to show both a ' "legitimate change of circumstances" ' and that undoing the prior order would be in the best interest of the child. [Citation.] The petition is addressed to the sound discretion of the juvenile court, and its decision will not be overturned on appeal in the absence of a clear abuse of discretion." (In re S.J. (2008) 167 Cal.App.4th 953, 959-960.)
In the present case, mother contends that the juvenile court abused its discretion because it denied her petition without explicitly discussing the two prongs of the statutorily required analysis for adjudicating a section 388 petition. Mother cites no authority requiring express findings. Furthermore, in denying mother's request to modify the disposition orders, the juvenile court did explicitly find that mother's proposal would not benefit the girls. This discretionary ruling was supported by evidence that returning the girls to mother's physical custody posed a substantial the risk of detriment to their safety and well-being.
Furthermore, mother, who carried the burden of proof with respect to her section 388 petition, fails to explain why her proposal would have promoted the best interests of the girls. She relies on evidence that she completed her parenting class, had successful visits and was engaged in therapy. These are significant accomplishments and mother should be commended for them. But the question here is whether the juvenile court abused its discretion by finding that it would be in the children's best interests to extend mother's reunification services rather than return the girls to her custody. Finding no such abuse, we affirm the court's ruling.
II. Mother's Reasonable Services Challenge is Forfeited and not Substantiated
At the six-month review hearing, if a dependent child is not returned to parental custody, the court must determine "whether reasonable services that were designed to aid the parent . . . in overcoming the problems that led to the initial removal and the continued custody of the child have been provided or offered to the parent." (§ 366.21, subd. (e)(8).)
Mother contends the juvenile court erred by finding she was provided with reasonable reunification services because the Bureau did not assist her in locating Felipe and because her visitation with the girls was too restrictive. The Bureau points out correctly that mother forfeited this claim because she did not raise it at the review hearing. " '[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]' [Citation.] In addition, '[g]eneral objections are insufficient to preserve issues for review. [Citation.] The objection must state the ground or grounds upon which the objection is based.' " (In re Daniel B. (2014) 231 Cal.App.4th 663, 672.) "Dependency cases are not exempt from this forfeiture doctrine. . . . Although forfeiture is not automatic, and the appellate court has discretion to excuse a party's failure to properly raise an issue in a timely fashion [citation], in dependency proceedings, where the well-being of the child and stability of placement is of paramount importance, that discretion 'should be exercised rarely and only in cases presenting an important legal issue.' " (In re Wilford J. (2005) 131 Cal.App.4th 742, 754.)
In light of these principles, we reject mother's contention that the issue whether her reunification services were reasonable was preserved for review when her counsel made a general objection to the Bureau's recommendations. Alternatively, mother asks us to entertain her untimely challenge in accordance with In re S.B. (2004) 32 Cal.4th 1287, 1293. But that case does not control here because it involved a challenge to a visitation order that "presented an important issue of law" regarding the delegation of authority to decide whether a parent may visit a dependent child. (Id. at pp. 1293-1294) In any event, even if mother's claim was not forfeited, it fails on the merits.
" '[T]he focus of reunification services is to remedy those problems which led to the removal of the children.' [Citation.] A reunification plan must be tailored to the particular individual and family, addressing the unique facts of that family. [Citation.] A social services agency is required to make a good faith effort to address the parent's problems through services, to maintain reasonable contact with the parent during the course of the plan, and to make reasonable efforts to assist the parent in areas where compliance proves difficult. [Citation.] However, in most cases more services might have been provided and the services provided are often imperfect. [Citation.] '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.' " (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598-599.) We review a reasonable services finding for substantial evidence. (Id. at p. 598.)
Mother contends that her services were inadequate because the Bureau and court expected her to find Felipe but they did not give her services so she could accomplish this goal. We reject mother's premise that she was required to go out looking for Felipe. It is clear from this record that the Bureau and court believed that mother was withholding relevant information from the court and thus not complying with her case plan objective to cooperate with the Bureau and comply with court orders.
Mother's other argument is that her visitation order was too restrictive. "Visitation is an essential component of any reunification plan. [Citation.] To promote reunification, visitation must be as frequent as possible." (In re Alvin R. (2003) 108 Cal.App.4th 962, 972.) In this case, mother's visitation order, which was made at the disposition hearing, provided that mother was to have two-hour supervised visits twice a month. Mother did not appeal from the disposition order, but now she contends that the visitation component of her case plan was unreasonable because "visitation of four hours per month" was not designed to lead to reunification.
We find no evidence in this record that the visitation order impeded mother's progress during the first six months of reunification. The record shows that although the minimum visitation had been set at two visits a month, the Bureau had been providing mother with weekly visits. Supervised visits gave mother the opportunity to demonstrate her ability to be an appropriate and engaged parent, and she fully embraced that opportunity. Indeed, mother's successful visits provided crucial evidence supporting the decision to continue reunification efforts.
III. The Court Did Not Abuse Its Discretion by Restricting Mother's Visitation
By separate argument, mother contends that the visitation order that the court made for the second phase of the reunification period was unduly restrictive. The Bureau recommended that mother's visitation with the girls be "for a minimum of one hour two times per month and may be supervised," and it also requested authorization to arrange overnight visits for mother. The court modified this recommendation by increasing the number of visits from two to four times a month, ordering that visits "must" be supervised, and denying the Bureau's request for authority to arrange overnight visits.
As discussed above, visitation is a crucial component of a reunification plan. During the reunification period, visitation shall be as frequent as possible but must also be consistent with the child's well-being and must not jeopardize the child's safety. (§ 362.1, subd. (a)(1).) "One of the dependency court's responsibilities is to define the rights of the parties to visitation by balancing the rights of the parent with the best interests of the child." (In re R.R. (2010) 187 Cal.App.4th 1264, 1284; see also In re Megan B. (1991) 235 Cal.App.3d 942, 953.) "We review an order setting visitation terms for abuse of discretion. [Citations.] We will not disturb the order unless the trial court made an arbitrary, capricious, or patently absurd determination." (In re Brittany C. (2011) 191 Cal.App.4th 1343, 1356.)
Mother contends that the court abused its discretion here because the sole justification for keeping visitation supervised was that unsupervised visits would be "high-risk to the children," and yet there is no evidence in this record that "increased and liberalized visit[s]" would put the girls at risk. In contrast to her reasonable services challenge, mother did object to the supervision condition of her visitation order at the six-month review.
The court ordered that mother's visits had to be supervised because it did not trust mother, did not find her credible, and did not know what people or influences the girls would be subjected to if they were alone with mother in an unsupervised setting. There was substantial evidence to justify these concerns, despite mother's substantive progress toward achieving her plan objectives. Moreover, the court explicitly contemplated that mother could demonstrate through her participation in therapy that she was sufficiently trustworthy to move toward unsupervised visits. Absent this acknowledgement, an unconditional refusal to even consider authorizing unsupervised visits could well have been an abuse of discretion. However, we cannot say that the court made an arbitrary, capricious, or patently absurd determination by denying the Bureau authorization to afford mother unsupervised visits for the time-being. (See In re T.M. (2016) 4 Cal.App.5th 1214, 1220 [noting that "during reunification there will be subsequent hearings, and therefore ample opportunity for the juvenile court to revisit the appropriateness of visitation in light of new circumstances, including progress in individual counseling"].) Importantly, another review hearing was set for the end of the following month. We note too that the number and length of visits set by the court were only the "minimum" that the Bureau was required to provide. Under all the circumstances, we conclude the court did not abuse its discretion by ordering continued supervision for a discrete period during the reunification phase of the girls' cases.
IV. The Alleged Failure to Comply with The ICWA Does Not Require Reversal
Finally, mother contends the appealed orders must be reversed because the Bureau and court failed to comply with the ICWA. The ICWA implements a national policy to protect the best interests of Indian children and promote the stability and security of Indian tribes and families by establishing minimum federal standards for the removal of Indian children from their homes and the placement of these children in foster or adoptive homes that take account of the unique values of Indian culture. (In re Isiah W. (2016) 1 Cal.5th 1, 7-8.) These federal requirements have been incorporated into California's dependency statute. (In re J.L. (2017) 10 Cal.App.5th 913, 918.) Mother contends these ICWA standards should have been applied to her children's dependency cases.
A. Additional Background
On April 4, 2018, mother was asked about Native American heritage during her initial interview, and she stated that her deceased grandmother had Cherokee ancestry. Accordingly, the dependency petitions indicated that the children "may have Indian ancestry."
At the April 6, 2018 detention hearing, mother stated that her grandmother was Cherokee, and the court encouraged her to provide the Bureau with as much information as she could about her grandmother. The court found that the children may be Indian children and ordered the Bureau to comply with ICWA notice requirements.
On April 6, the Bureau filed an ICWA-020 "Parental Notification of Indian Status" form that mother had completed and signed. On the form, mother checked a box stating "I may have Indian ancestry" and wrote "Cherokee" as the name of the tribe. She did not check boxes that would have stated that she, her child, or any of her family, was a member, may be a member, or was eligible to be a member of a federally recognized tribe.
The June 2018 disposition report advised the court that the Bureau had provided mother with an ICWA-020 and that an "ICWA 30" was "being processed and investigated with due notification." The court did not make any ICWA findings at the disposition hearing held the following month. Subsequent status review reports filed by the Bureau did not provide any additional information about the status of its ICWA inquiry. Nor was the matter raised by anyone at the six-month review hearing.
The February 2019 status review order does not include a finding regarding ICWA compliance. However, the court set another review hearing for March 28, and the minute order from that hearing, which is part of the appellate record in these cases, indicates that a further hearing was scheduled for May 23, 2019, for the court to consider mother's contest to another set of Bureau recommendations and to address "ICWA compliance."
B. Analysis
Mother contends that all findings and orders from the six-month review must be reversed because the juvenile court did not make a finding that these children are not Indian. There are two parts to this argument. First, mother contends that the Bureau violated the ICWA by failing to provide notice of these proceedings to the Cherokee tribe, falsely claiming that it was still investigating the ICWA status of these cases. Second, mother posits that because the record shows that the Bureau and the court knew or had reason to know that these children may be Indian, they were required to comply with every provision of the ICWA, including its special out-of-home placement and active effort requirements, unless and until there was a definitive finding that the ICWA did not apply.
Mother's accusation that the Bureau lied about the status of its ICWA investigation is unfounded on this record; she points to no evidence the Bureau was only pretending to investigate her very general statement that she may have Cherokee ancestry. She also overlooks the minute order indicating that an ICWA compliance hearing was scheduled for May 2019, which is evidence that the Bureau would soon be expected to show the results of its ICWA investigation.
Mother's legal reasoning is also questionable. To be sure, the court and Bureau have an affirmative and continuing duty to inquire whether a child who is the subject of a dependency petition is or may be an Indian child. (§ 224.2, subd. (a).) However, provisions of the dependency law requiring the court to "treat the child as an Indian child" unless a contrary finding is made only come in to play when "there is a reason to know that the child is an Indian child." (§ 224.2, subd. (i)(1), italics added; see also Cal. Rules of Court, Rule 5.482(c)(2).) Circumstances that give reason to know that a child involved in a proceeding is an Indian child include: when a parent "informs the court that the child is an Indian child"; when a parent and/or child resides on a reservation; when the parent and/or child possesses "an identification card indicating [tribal] membership or citizenship." (§ 224.2, subd. (d)(1), (2) & (6).) A parent's statement that she has or may have some Indian ancestry falls short of establishing a reason to know that the child is an Indian child. In this regard, it is significant that mother did not check the box on the ICWA-020 to indicate that her children were eligible for membership in a federally recognized tribe.
Mother's statement about her possible Indian heritage certainly did require the Bureau to conduct further inquiry, but it did not require the court to treat these children as Indian children. We share the concern of mother's appellate counsel that the matter was not addressed more expeditiously. However, an ICWA compliance hearing was scheduled and likely conducted a few months after the six-month review. The record does not substantiate mother's claim that the alleged failure to comply with the ICWA warrants a conditional reversal and remand, which would significantly further delay these proceedings.
DISPOSITION
The appealed orders in cases J18-00408, J18-00409 and J18-0410 are affirmed. The appeal filed in case J18-00411 is dismissed.
/s/_________
TUCHER, J. WE CONCUR: /s/_________
STREETER, Acting P. J. /s/_________
BROWN, J.