Opinion
A119571
6-24-2008
In re KEIFER G., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. KIEF G., Defendant and Appellant.
Not to be Published
Kief G. appeals the juvenile courts order terminating parental rights to his son Keifer G., pursuant to Welfare and Institutions Code, section 366.26. Appellant contends the juvenile courts order should be reversed on three grounds: (1) respondents efforts to provide remedial services and rehabilitative programs to prevent the breakup of a Native American family were inadequate under section 361.7; (2) respondent failed to show beyond a reasonable doubt that continued custody of Keifer by appellant is likely to result in serious emotional or physical damage to the child, pursuant to section 366.26, subdivision (c)(2)(B)(ii); and, (3) appellant demonstrated that he maintained regular visitation with his son and that the minor would benefit from a continuing relationship with appellant, pursuant to section 366.26, subdivision (c)(1)(B)(i). We conclude the juvenile courts order terminating appellants parental rights is adequately supported by the record and therefore affirm.
Further statutory references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL BACKGROUND
In a prior case, Kief G. v. Superior Court (July 24, 2007, A117368 [nonpub. opn.]), appellant petitioned this court for writ relief from the juvenile courts order terminating reunification services and setting a permanent plan hearing on May 30, 2007. Upon receipt of the writ petition, we issued an order to show cause and stayed the section 366.26 hearing until we determined the merits of the petition. Ultimately, we denied the petition for writ relief, dissolved our stay of the section 366.26 hearing, and remanded for further proceedings. (See Kief G. v. Superior Court, supra, A117368.)
We incorporate by reference the facts and procedural background set forth in Kief G. v. Superior Court, supra, A117368, summarizing the history of proceedings in this matter to the point at which the juvenile court terminated appellants reunification services. Following termination of reunification services, respondent San Francisco County Department Of Human Services ("Department") filed a section 366.26 report on March 15, 2007. The report stated that Keifer G. exhibits "developmental and emotional delays [] consistent with pre-natal exposure to drugs and alcohol," is delayed in his language development and "becomes easily frustrated when not understood," in which case "he can tantrum for hours." The report states that "child and father have a relationship and a bond. Child clearly knows who dad is and at time[s] will be very glad to see him and at other times not want to see him."
The report also includes an assessment of the identified prospective adoptive family. The report states the "husband is California Native, his wife is non-Native," and that they have been licensed foster parents for the past three years through the American Indian Child Resource Center and are active in the Native Community. It notes Keifer has been in their home for the past 18 months and opines that the family "has demonstrated they are capable of meeting the needs of the child and that they can locate resources and follow through with services."
The reports assessment on appellant was positive in certain respects, stating that "he clearly loves and cares for his children [and] has worked hard to maintain his sobriety and his employment and a clean and sober living situation." It also notes appellant has maintained "fairly consistent contact/visits with his son in a supervised setting." On a more negative note, however, the report also states that appellant "continues his relationship with the mother of the child, who is homeless and continues to use drugs and alcohol. Sometimes he is too busy looking for her and caring for her that he [is] losing sight of everything else."
Regarding Keifer, the report notes he continues to bond to his prospective adoptive family, but adds that he "exhibits signs of confusion that manifest in terms of tantrums, with the continued weekly visits with father. Visits have been suspended for a one month time period to allow child to calm down and continue bonding with caretakers and then re-introduce father to him." The report states caretakers are ready to adopt, their home study is complete, and they are willing to enter a post adoption contact agreement with father. The report concludes that termination of parental rights and adoption is the proposed plan.
Sometime after March 15, 2007, visitation between appellant and his son resumed but did not prove successful. On April 25, 2007, the Department filed an ex-parte application under section 388 to terminate all visitations. The application stated that during the month-long suspension of visitation agreed to by appellant, Keifers behavior improved: He was going to bed with less fuss, sleeping all night without climbing out of bed, eating properly, and exhibiting less aggressive behavior with other children. According to the ex-parte application, Keifer relapsed after visitation resumed and "is back to taking hours to go to bed, [] throwing extreme temper tantrums, not wanting to eat, hopping out of his bed, hitting other children, [and] not letting other children sit near foster mother." The application stated that during the weekend after Keifers last visit with appellant on April 19, 2007, Keifers behavior was "horrible": Keifer was unable to sleep in his own room because he was hitting and throwing things at his little foster "brother," and the "tantrums and constant whining and crawling all over the foster mother got to everyone and the stress is destroying the family."
The ex-parte application also included a letter from Simone Taylor, a family clinician with the family organization Through the Looking Glass, who stated she had been working with the prospective adoptive family since September 2006 and had observed "Keifers difficult behaviors" at first hand. Ms. Taylor stated that when weekly visits were suspended for a month she observed Keifer grow "calmer, more regulated in his affect and emotions." Also, Keifers sleeping difficulties declined, he was eating regularly, and "his frustration tolerance was higher and his speech was more intelligible." Ms. Taylor recommended that if the court mandated visitation with appellant it should be no more than once per month, stating: "Because there have been other times when visits with biological father were missed and there was an improvement in Keifers demeanor, as well as the above-mentioned period without visitations, I believe this would be in the best interest of Keifers physical and psychological development and well being." After a hearing on the ex-parte application on April 30, 2007, visitation was suspended pending a hearing on May 14, 2007. Following a section 388 hearing on that date, the juvenile court terminated all visitations between appellant and Keifer.
Subsequent to the May 14, 2007 hearing, a section 366.26 permanency hearing was held on October 12, 2007. The court considered declarations from two experts in ICWA matters. Myron L. Standing Bear, an enrolled member of the Oglala Lakota Sioux Tribe located in Pine Ridge, South Dakota, and approved by that tribe as an expert witness in the matter of Keifers final placement. Standing Bear states he met with foster parents and observed "firm, patient, gentle and affirming redirection" to Keifer while he was in "tantrum mode." He added that Keifer "identifies both foster parents as `Mom & Dad and is very attached to both foster parents and children in the home."
Standing Bear reported that he spoke with a tribal representative on ICWA ("Indian Child Welfare Act") matters who reported to him that Keifer is eligible for membership with the Oglala Sioux Tribe, and that the tribe supports Keifers adoption by his current foster parents. Standing Bear stated that Keifers mother is currently living on the streets of San Francisco and using heroin. Regarding his home visit with appellant, Standing Bear stated, "This witness observed the father to be very panicky, scattered with his thought and speech patterns, and was unable to remain focused on the conversation, jumping from one subject to another in a very rapid manner. The father discussed in detail the feeling of his being pressured (from the supervising Social Worker) and overwhelmed with changing the childs diaper and losing control of the child who ran into on-coming traffic. The father stated `I didnt know what to do. . . . Father feels once the child is placed back with him everything will be O.K. and fall into place." Standing Bear stated Keifers current placement meets the requirements for placement of an Indian child under the ICWA and section 361.31. He opined that Keifers placement with appellant would likely result in serious emotional or physical damage to the child, and recommended that Keifer be placed for adoption with the current foster parents according to the wishes of the tribe.
The court also received opinion testimony from Joe Rodriguez, a Montana attorney and non-enrolled descendent of the Yaqui and Tohono Oodham Tribes of Arizona and Northern Mexico who lives on the Northern Cheyenne Reservation in Montana and is married to an enrolled member of the tribe with four children, all enrolled members as well. The Department offered Rodriguez as its expert witness in ICWA matters. Based on his review of the file, Rodriguez declared that in his opinion "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of [this Native American] family." He further opined, "Despite the Fathers efforts to stabilize his lifestyle, he has not demonstrated the capability to provide the child with a safe and secure home, nor the ability to successfully access the special education and developmental resources which the child requires." Like Standing Bear, Rodriguez stated that in his opinion Keifer would likely suffer serious emotional or physical damage if custody was returned to appellant.
On October 15, 2007, the juvenile court entered its section 366.26 order terminating appellants parental rights and referring Keifer for adoption. The court found beyond a reasonable doubt that continued custody of the child by appellant is likely to result in serious emotional or physical damage to the child. The court also found by clear and convincing evidence that the Department made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and these efforts were unsuccessful. Appellant filed a timely notice of appeal on October 29, 2007.
DISCUSSION
A. Active Efforts To Provide Remedial Services
Under California law implementing the ICWA, the termination of parental rights of a child with Indian ancestry is governed in part by section 361.7, which provides: "[A] party seeking . . . termination of parental rights over[] an Indian child shall provide evidence to the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." (§ 361.7, subd. (a) [italics added].) A court may not terminate the parental rights of an Indian child unless it finds clear and convincing evidence that the showing required by section 361.7 has been made. (§ 366.26, subd. (c)(2)(B)(i); In re Michael G. (1998) 63 Cal.App.4th 700, 712 [clear and convincing standard applies to trial courts "active efforts" determination].)
Appellant contends the juvenile court erred in finding the Department made active efforts to provide remedial services as required under section 361.7. We review "the findings of the juvenile court made pursuant to the ICWA" under the substantial evidence test. (In re Michael G., supra, 63 Cal.App.4th at pp. 715-716.)
"Active efforts are essentially equivalent to reasonable efforts to provide or offer reunification services in a non-ICWA case and must likewise be tailored to the circumstances of the case." (Adoption of Hannah S. (2006) 142 Cal.App.4th 988, 998; see also In re Michael G., supra, 63 Cal.App.4th at p. 714 [assessment of whether " `active efforts were made to prevent the breakup of the Indian family, and whether reasonable services under state law were provided, are essentially undifferentiable"].) Here, appellant does not dispute that the Department provided him with remedial services: Rather he contends the Departments efforts were not "active" because the Department belatedly developed a case plan and did not offer him reunification services until October 2005, 14 months after Keifer was taken into custody.
Any initial delay in providing services is not a basis for reversing the juvenile courts order in view of the substantial evidence that the Department made active efforts to provide suitably tailored reunification services over the duration of the section 300 proceedings. We summarized this evidence in Kief G. v. Superior Court, supra, A117368, as follows: "The record indicates the . . . case plan was substantially implemented by September 2006. The Status Review Report filed on September 26, 2006, states petitioner is living in the Twelve-Step clean and sober program, began attending the Morrisonia West substance abuse treatment in July 2006, and meets with a case manager as well as a counselor at Morrisonia West on a weekly basis. It also shows petitioner was referred to Talk Line in December 2005 regarding a parenting education program focusing on infant care, and was currently participating in such a class. It indicates petitioner had been visiting regularly with Keifer under supervision at the American Child Resource Center in Oakland on Thursday afternoons. It also indicated petitioner completed a psychological assessment on January 7, 2006. In addition, the Department also facilitated petitioners visits with Keifer at the American Child Resource Center by providing him with a transportation allowance to cover BART and bus expenses, and by picking him up and delivering him back to the bus or BART station after the scheduled visit. The Department also gave petitioner a monthly San Francisco transit pass to enable him to attend sobriety and parenting classes." (Kief G. v. Superior Court, supra, A117368 at p. 9.)
We remarked on the number of continuances in this case in appellants prior writ petition. We noted that in considering the requests for continuances, the trial court had to balance the competing interests of determining dependency matters expeditiously and its duty to ensure strict compliance with the notice provisions of the ICWA. We further noted that the Department had requested some but not all of the continuances, and that appellant had not objected to any of them. (Kief G. v. Superior Court, supra, A117368, at p. 7 and fn. 3.)
Also, the Departments expert Joe Rodriguez stated that in his opinion active efforts had been made to provide remedial services to father. In addition to the services listed above, he noted that appellant was referred " to Bay Area Children First in June 2006. Through this program, father was assigned a worker who met with him and the foster family and the child. In September 2006, father was able to have additional visits with the child on weekends, which was supervised by Bay Area Children First. However, concerns developed about the . . . impact the visits were having on the child, . . . [that] was not necessarily caused by inappropriate conduct by the father, although there were times when the father was not very engaged in the visits or the child would not interact with him." The record thus shows that the Department engaged in a broad array of active efforts designed to reunite appellant and his son. In sum, we conclude the juvenile courts finding that the Department made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family is supported by substantial evidence.
B. Continued Custody of Indian Child by Parent
Section 366.26 provides, "The court shall not terminate parental rights if . . . [i]n the case of an Indian child . . . [t]he court does not make a determination at the hearing terminating parental rights, supported by evidence beyond a reasonable doubt, including testimony of one or more `qualified expert witnesses[,] . . . that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child." (§ 366.26, subd. (c)(2)(B)(ii) [italics added].) Appellant contends the Department failed to make the requisite showing and therefore the juvenile court erred by terminating his parental rights. We review "the courts findings made pursuant to ICWA for supporting evidence which is `reasonable, credible and of solid value. (Citation.) We review the record in a light most favorable to the judgment and uphold the trial courts finding unless it can be said that no rational fact finder could reach the same conclusion. (Citation.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the courts finding or order. (Citation.)" (In re Barbara R. (2006) 137 Cal.App.4th 941, 950.)
Appellant attempts to meet his burden of production by emphasizing all the positive aspects of his rehabilitative efforts since the beginning of the case, such as entering a residential treatment program, submitting to random drug tests, maintaining his sobriety, and establishing and maintaining a relationship with his son. While appellant is to be commended on these efforts, his selective parsing of the record fails to address the considerable evidence upon which the court based its ruling. Viewing the entire record as we must, in the light most favorable to the judgment, we conclude it contains substantial credible evidence supporting the trial courts ICWA finding that appellants custody of Keifer would likely result in "serious emotional or physical damage to the child." (§ 366.26, subd. (c)(2)(B)(ii).)
In this regard, the juvenile courts finding must be supported by at least one qualified expert. (§ 366.26, subd. (c)(2)(B)(ii).) Here, the juvenile court recognized both Standing Bear and Rodriguez as ICWA experts and in that capacity they each offered the opinion that appellants continued custody of his son would likely result in serious emotional or physical damage to the child. In addition, the juvenile court heard testimony at the section 366.26 hearing from Rosetta White Mountain, the Departments child welfare worker in the case.
To the extent appellant challenges the scope of the evidence considered by the trial court, citing Adoption of Hannah S., supra 142 Cal.App.4th 988, any such challenge is meritless. There, mother sought to terminate incarcerated Indian fathers parental rights so that their Indian child could be adopted by her husband, the childs step father. (Id. at pp. 991-992.) On appeal, the court reversed the juvenile courts finding that mothers expert failed to show beyond a reasonable doubt that continued custody by the father would likely result in any serious emotional harm because it relied solely on the testimony of mothers expert witness and ignored all other record evidence in support of a finding that continued custody by father would likely result in serious emotional harm to the child. (Id. at pp. 999-1000.) Here, the juvenile court did not base its finding solely on expert ICWA testimony, but also on the social workers section 366.26 assessment and all its prior "findings, orders and judgments."
White Mountain stated that Keifer is "currently placed in a Native American home that is certified through the American Indian Child Resource Center in Oakland" and had been in the placement for over two years and is "thriving" and "doing very well" there. Also, she said Keifer refers to the prospective adoptive parents as "mom and dad" and identifies with them in a parent-child relationship. White Mountain also stated she had discussed with these prospective adoptive parents that Keifer might be autistic, and that they had followed through with a referral she gave them to have Keifer tested for that condition. White Mountain was of the opinion that the prospective adoptive mother "is very highly skilled in terms of her parenting abilities and her ability just to use a variety of techniques to calm this child, to redirect this child and just dealing with his various behaviors." Also, she noted that the last visit between appellant and Keifer was over four months ago, and although the visit itself went well, Keifer "had a very difficult time afterwards."
Furthermore, the record shows that although appellant loves his son, he has not succeeded in providing the stable environment and appropriate parenting Keifer experiences in the home of his prospective adoptive parents. Appellant has never been responsible for the care and protection of his son on a full time basis, and even in the structured environment of weekly supervised visitation, appellant failed to demonstrate the ability to care and protect Keifer. Indeed, as we noted in Kief G. v. Superior Court, supra, A117368, the results of appellants psychological evaluation of January 7, 2006, indicated he would be liable to relapse into alcohol abuse if faced with the stresses of parenting outside of a structured environment. (See Kief G. v. Superior Court, supra, A117368, at p. 5.) Also, we noted that in its Addendum Report of November 13, 2006, the Department reported that the therapist supervising appellants weekend visits with Keifer states he " `tries very hard in the visits but `appears to be burned out and is demonstrating `thought pattern disorders and cognitive problems because he does not remember Bouchers name, had trouble putting a diaper on Keifer, ignored staff directions to dilute juice before giving it to Keifer, and let go of Keifer as he watched for traffic while crossing the street." (See Kief G. v. Superior Court, supra, A117368, at p. 6.)
This comports with ICWA expert Standing Bears more recent assessment that found appellant to be "very panicky, scattered with his thought and speech patterns, and [] unable to remain focused on the conversation, jumping from one subject to another in a very rapid manner" and his comments that "father discussed in detail the feeling of his being pressured (from the supervising Social Worker) and overwhelmed with changing the childs diaper and losing control of the child who ran into on-coming traffic." Additionally, it was the opinion of the Departments ICWA expert Rodriguez that despite appellants "efforts to stabilize his lifestyle, he has not demonstrated the capability to provide the child with a safe and secure home, nor the ability to successfully access the special education and developmental resources which the child requires." In sum, we conclude substantial evidence supports the juvenile courts finding that Keifer would likely suffer serious emotional or physical damage if his custody was returned to appellant.
C. Beneficial Relationship
Section 366.26 provides that where "it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption" unless there is "a compelling reason for determining that termination would be detrimental to the child due to [the fact that] [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) Appellant contends the "beneficial relationship" exception to termination of parental rights is applicable here. In In re Jasmine D. (2000) 78 Cal.App.4th 1339, we observed that because the juvenile courts beneficial relationship determination decides "which kind of custody is appropriate for the child . . . it is typically reviewable for abuse of discretion." (Id. at p. 1351.)
We also noted that although some courts review a juvenile courts beneficial relationship under the substantial evidence standard, "[t]he practical differences between the two standards of review are not significant." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
Appellant must shoulder a very heavy burden in order to establish an abuse of discretion in this context. As we stated in In re Jasmine D., supra, "when the court has not returned an adoptable child to the parents custody and has terminated reunification services, adoption becomes the presumptive permanent plan and parental rights should ordinarily be terminated at the section 366.26 hearing. The parent has the burden of proving that termination would be detrimental to the child under [the beneficial relationship exception]. (Citation.) The juvenile court may reject the parents claim simply by finding that the relationship maintained during visitation does not benefit the child significantly enough to outweigh the strong preference for adoption. . . . Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the childs needs, it is only in an extraordinary case that preservation of the parents rights will prevail over the Legislatures preference for adoptive placement." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
Moreover, whether the relationship maintained during visitation does not benefit the child significantly enough to outweigh the strong preference for adoption is decided " `on a case-by-case basis . . . tak[ing] into account many variables, including the age of the child, the portion of the childs life spent in the parents custody, the "positive" or "negative" effect of interaction between parent and child, and the childs particular needs. (Citation.) " (In re Jasmine D., supra, 78 Cal.App.4th at pp. 1349-1350, citing In re Zachary G. (1999) 77 Cal.App.4th 799, 811.) Here, appellant has never had custody of Keifer, who has been in care since his birth in August 2004. Appellant continues to reside in a residential aftercare facility, and has yet to demonstrate continued sobriety outside of this structured environment. Moreover, Keifers particular needs present a great parenting challenge to someone, like appellant, who has never been responsible for caring for Keifer on a full time basis—Keifer has continuing problems stemming from in-utero exposure to opiates and signs of severe drug withdrawal at birth, and presently exhibits behavioral problems that may be consistent with autism.
Furthermore, the record shows that the effect of the interaction between parent and child at this juncture is an extremely negative one for Keifer. Indeed, visitation had to be suspended and eventually terminated because of its destabilizing effects on Keifers sleeping and eating patterns and the resulting deterioration in his behavior and affect. By contrast, Ms. White Mountains observed that Keifer refers to the prospective adoptive parents as "mom and dad," is thriving in their care and identifies with them in a parent-child relationship. In addition both White Mountain and Standing Bear were of the opinion that the prospective adoptive parents were particularly adept in responding to the childs particular emotional needs. In sum, the juvenile court did not abuse its discretion in concluding that "[t]his is not the extraordinary case where an adoption should have been foreclosed" by the beneficial relationship exception. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1352.)
DISPOSITION
The juvenile courts order terminating appellants parental rights and referring Keifer for adoption is affirmed.
We concur:
McGuiness, P. J.
Siggins, J.