Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Jane Cardoza, Judge. Super. Ct. No. 06CEJ300034
Kenneth K. Taniguchi, Public Defender and Lourdes Arellano, Senior Defense Attorney, for Petitioner.
No appearance for Respondent.
Dennis A. Marshall, County Counsel and William G. Smith, Deputy County Counsel, for Real Party in Interest.
Before Vartabedian, A.P.J., Wiseman, J., and Cornell, J.
OPINION
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.450 & 8.452) to vacate the orders of the juvenile court issued at a contested 18-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his son A. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
Petitioner and Cecelia, a married couple, are the parents of two young sons, C. and A. Cecelia is a member of a federally recognized American Indian Tribe (Tribe). In addition, Cecelia has two daughters from another relationship who, in January 1996, at the ages of 8 years and 11 months respectively, were ordered removed from Cecelia’s custody by the Shasta County juvenile court pursuant to allegations Cecelia struck the oldest daughter in the face with a closed fist and often left the children with their maternal grandmother. The Shasta County juvenile court (juvenile court) ordered Cecelia to participate in reunifications services, including drug treatment, but Cecelia did not comply. Consequently, in January 1997, the juvenile court appointed the girls’ maternal grandmother as their guardian and dismissed dependency.
Cecelia did not seek extraordinary writ relief.
In 2004, Cecelia gave birth to petitioner’s son C. who tested positive for methamphetamine. The Shasta County Department of Social Services (Shasta County department) left C. in Cecelia’s care because she agreed to participate in community-based substance abuse treatment. However, Cecelia refused treatment. Consequently, petitioner took C. to live with him in Coalinga.
In December 2005, Cecelia gave birth to A. A. and Cecelia tested positive for methamphetamine, alcohol, opiates and prescription medication. At the time of A.’s birth, petitioner and Cecelia were separated. Cecelia was living in Shasta County and petitioner was living in Coalinga in Fresno County with then 19-month-old C. Following his birth, A. was placed on methadone and admitted to the neonatal intensive care unit for observation and management of withdrawal symptoms. He was also exhibiting signs of Fetal Alcohol Syndrome.
Cecelia admitted drinking alcohol and taking prescription medication while pregnant with A. but denied any other drug usage. She told the social worker that petitioner was going to take A. home with him and that she did not want to participate in services or raise A.
Petitioner stated he repeatedly asked Cecelia to stop abusing drugs and alcohol and was shocked to hear of A.’s condition. He stated he wanted to take custody of A. but could not care for a medically fragile child at that time and did not have anyone who could help him. Consequently, he agreed A. should be placed temporarily in foster care.
Following its investigation, the department filed a petition on A.’s behalf, alleging Cecelia’s substance abuse placed him at risk of harm. (§ 300, subds. (b) & (j).) Since no one from Cecelia or petitioner’s families offered to assume custody of A., the Shasta County department placed him in foster care on a reservation in Shasta County.
The juvenile court ordered A. detained and set the jurisdictional hearing for mid-January 2006. Meanwhile, the Shasta County department notified Cecelia’s Tribe of the dependency proceedings pursuant to the Indian Child Welfare Act (ICWA).
25 U.S.C. § 1901 et seq.
The jurisdictional hearing originally set for January 2006 was continued several times, in part because Cecelia and petitioner had reconciled and Cecelia was in the process of relocating to Coalinga to live with him. Apparently, they visited A. for the first time in early February.
The jurisdictional hearing was conducted in late February 2006. The juvenile court exercised dependency jurisdiction and ordered the case transferred to Fresno County for disposition. In late March 2006, the Fresno County juvenile court (hereafter juvenile court) accepted the case and set the dispositional hearing for late April 2006.
Meanwhile, A. was placed in a foster home in Fresno County. Though the foster mother was not a relative or affiliated with Cecelia’s Tribe, the Tribe would later find good cause existed to overcome the tribal placement preference and A. would remain with her throughout these proceedings. In addition, A. was medically examined in February 2006 and taken off of methadone. According to the Fresno County Department of Children and Family Services (Fresno County department) in its dispositional report, A. appeared to be physically healthy and developing in an age appropriate manner. It is unclear from the record whether A.’s provisional diagnosis of Fetal Alcohol Syndrome was ruled out because it is not mentioned again.
In April 2006, the juvenile court continued the dispositional hearing and ordered both parents to submit to a hair follicle test, the results of which were negative
Petitioner and Cecelia had settled into petitioner’s two-bedroom house in Coalinga. Petitioner worked full-time and Cecelia took care of C. Petitioner supported Cecelia in her efforts to maintain sobriety and both wanted to reunify with A. and were willing to participate in any recommended services.
The dispositional hearing was continued several more times and conducted in August 2006. Meanwhile, the court found ICWA applied and recognized the Tribe’s right to intervene. In addition, the Fresno County department reported that the Shasta County department had not initiated any service referrals for petitioner and Cecelia because of Cecelia’s relocation in February. Consequently, in April 2006, the Fresno County department (hereafter department) referred them for parenting as well as mental health and substance abuse assessments and recommended treatment.
In May 2006, petitioner and Cecelia completed their substance abuse assessments. During her assessment, Cecelia acknowledged a history of regular drug and alcohol use but reported she had not used either for the previous three months. Given her history, the assessor recommended she complete intensive inpatient drug treatment.
In early June, the department reviewed Cecelia’s assessment and recommended a 90-day inpatient program, which would allow C. to reside with her. Cecelia entered inpatient drug treatment in mid-July with C. From April through mid-June 2006, she spot tested for the department prior to visitation with A. and tested negative for drugs.
Petitioner denied any history of drug or alcohol abuse and there was no evidence he was not being forthright. Consequently, no services were recommended for him.
By the time of the contested dispositional hearing, petitioner and Cecelia were committed to maintaining their marriage and reunifying with A. Petitioner filed a motion seeking A.’s return to his custody and Cecelia asked to have A. placed with her at the treatment facility where she had completed 43 days of treatment and was making good progress. She was expected to complete 90 days of treatment in mid-October 2006.
Cecelia’s substance abuse counselor endorsed her request to have A. placed with her in a letter, adding that if A. were placed with Cecelia, it might benefit her to complete an additional three months of treatment. The additional time would allow Cecelia to continue in recovery while bonding with A. in a safe and stable environment. However, the Tribe recommended against placing A. in either petitioner or Cecelia’s custody. The Tribe also found good cause to modify the tribal placement preference because Cecelia’s mother could not take custody of A. and the Tribe had not been able to locate any other relative or Indian foster home willing to assume custody.
On August 23, 2006, the juvenile court conducted a contested dispositional hearing and ordered A. removed from petitioner and Cecelia’s custody. The court also ordered a plan of reunification, which required each to complete a parenting course and a mental health evaluation and Cecelia to complete substance abuse treatment and submit to random drug testing. Petitioner had already completed a mental health assessment and, according to the therapist, he did not require mental health services. The court also ordered the department to assess the parents for unsupervised visits and granted the department discretion to place A. with Cecelia at the residential facility. The court set the six-month review hearing for September 11, 2006, less than a month away.
In anticipation of the September review hearing, the department reviewed Cecelia’s progress and concluded she needed an additional 90 days of treatment beyond her scheduled completion date of October 2006. Its reasoning was that if she only completed 90 days of treatment, she would have to attend intensive outpatient treatment four times a week. In addition, parenting and random drug testing, which were part of inpatient treatment, would also become outpatient services. Because Cecelia suffered seizures and could not drive, she would have difficulty accessing the services.
The department reported that petitioner and Cecelia regularly visited with A. and were responsive to him and that their prognosis for reunification was good. Consequently, the department recommended the court continue to provide them reunification services and requested discretion to arrange unsupervised visitation. The department also recommended the court refer A. for services through Exceptional Parents Unlimited (EPU) and Central Valley Rehabilitation Center (CVRC) because of his drug exposure.
The six-month review hearing scheduled for September was continued several times over the ensuing months and conducted in December 2006 as a contested hearing. Meanwhile, in October, petitioner and Cecelia along with C. and A. completed an attachment assessment. The therapist reported that A. presented with flat affect and did not seek comfort from his parents. Both parents appeared motivated to parent A. and were aware that A. could have difficulty attaching because of his multiple placements. The therapist concluded Cecelia’s ability to remain clean and sober was pivotal in determining whether A.’s need for stability and security within the family could be met. The therapist recommended the family participate in therapy to build an attachment, Cecelia complete an additional 90 days of substance abuse treatment, and A. be referred to CVRC for services. The family began attachment therapy in late October 2006.
In November 2006, Cecelia left the treatment facility but returned four days later. She admitted drinking alcohol the first few days she was out. As a result, she was required to complete four more months of treatment. Cecelia left the program again in early December because C. was injured at the facility child care center. Cecelia refused to return to treatment, claiming she completed the required 90 days on inpatient treatment and only needed outpatient treatment.
As a result of Cecelia’s refusal to be treated, the department met with petitioner in December 2006 and asked him what he would do if Cecelia failed to reunify and he was granted custody of A. He stated he would follow court orders and did not want his children taken away. While the social worker was in the process of explaining to petitioner that he still had unsupervised visitation and asked him what his work schedule was, Cecelia joined the meeting and stated, “What, is Jose to leave me and C. at home?” The social worker explained that both petitioner and Cecelia were in reunification and that they would be viewed separately. The social worker also noted that petitioner became quiet in Cecelia’s presence and that his demeanor changed. When the social worker asked Cecelia what she would do if petitioner reunified with A. and she did not, she stated, “You’re not going to make my husband flip a coin and choose between the children and me.” She stated that she and petitioner were a family unit and that they were going to stay together.
In late December 2006, the juvenile court conducted the contested six-month review hearing and found petitioner and Cecelia were provided reasonable services but made only moderate progress. The court ordered the department to continue providing services and set the 12-month review hearing for February 2007.
The February hearing was continued, and over the ensuing months, the department vacillated on whether services should be continued. On the one hand, petitioner successfully completed the parenting course, the final component of his reunification plan. However, because the parenting evaluator was unable to assess whether petitioner had the ability to protect A., the evaluator suggested petitioner participate in a specialized parenting class through EPU.
Cecelia, on the other hand, was unwilling to commit to further inpatient drug treatment. She was readmitted to an inpatient facility in early March 2007 but stayed only 10 days. In addition, Cecelia displayed difficulty responding appropriately to A. during attachment counseling and A., who was attached to his foster mother, was anxious and disengaged during his sessions with Cecelia. As a result, the therapist recommended, in her quarterly report covering October 2006 through February 2007, A. either be reunited with his family or placed in a permanent placement as soon as possible to avoid future mental health problems.
In April 2007, the caseworker met with petitioner alone and advised him that if the court terminated Cecelia’s services, A. could be returned to his custody and he and Cecelia would have to separate. Petitioner stated that would be difficult because C. was attached to Cecelia and that Cecelia took care of C. while he worked. Petitioner also stated that he did not have any immediate family close by to assist him. The caseworker also told petitioner that if reunification services were terminated for both parents, the Tribe would intervene and place A. with one of Cecelia’s family members in Shasta County. Petitioner agreed that should be the plan if services were terminated. Following the conversation, the caseworker consulted with the tribal representative to confirm the Tribe would intervene if reunification failed.
The 12-month review was a contested hearing conducted on May 14, 2007, on the issue of reasonableness of services offered by the department. The case worker testified that the only additional service she considered for petitioner was increased visitation but did not increase it because she did not know petitioner’s work schedule and because Cecelia was living in his home. Had Cecelia not been in the home, the caseworker would not have hesitated to return A. to petitioner’s custody. She knew child care was a problem for petitioner but did not offer any assistance with day care. She did not refer petitioner for services through EPU and CRVR because it was not written on the minute orders. Finally, she testified, petitioner began attachment therapy with Cecelia but the focus soon turned to Cecelia since she was the primary caregiver. Consequently, petitioner stopped attending believing the therapy was closed to him. When Cecelia’s progress declined, no effort was made to help petitioner resume attachment therapy. Finally, the case worker testified A. was no longer considered a medically fragile child and the foster mother was not committed to a permanent plan.
During argument, county counsel reminded the court the case was approaching the 18-month limitation on reunification services, which would fall in June 2007. County counsel argued the department struggled to help the family reunify but that petitioner relied on Cecelia to care for the children and that his involvement had been minimal. Consequently, A. was not attached to him. Minor’s counsel concurred, adding that petitioner had known for many months that Cecelia was not meeting her plan requirements and still took a “wait and see approach” to reunification.
At the conclusion of the hearing, the court found Cecelia was provided reasonable services and terminated them for her. However, the court found petitioner was not provided reasonable services and ordered the department to refer him for attachment therapy, assess child care options for him and assess arranging visitation closer to his home. The court also ordered the department to refer A. for EPU and CVRC services and to notify petitioner of the EPU appointments and allow him to participate in the CVRC assessment. The court set the 18-month review hearing for June 11, 2007. Cecelia did not appeal from the court’s order terminating her reunification services.
On May 18, the caseworker faxed a referral to EPU and followed up on June 5. The caseworker was informed that there were 25 referrals before petitioner’s and it would be difficult to determine when home visitation services would be available for him.
On May 25, the department referred petitioner for attachment therapy but not to the therapist who had previously counseled the family. Because the court’s order specifically required a referral to the prior therapist, petitioner and A. were not assessed until July 26.
On May 31, a social worker assessed petitioner’s home, which was clean and orderly. The social worker found no evidence of alcohol or drug use in the home. Cecelia was there but stated she planned to remain only two more weeks after which she and C. would relocate to a home on the reservation. She explained she was vacating the home so that A. could be returned to petitioner’s care.
The 18-month review hearing was continued and ultimately conducted in August 2007. Meanwhile, the therapist submitted the attachment assessment in which she reported that A. was distressed during the assessment and did not accept soothing from petitioner. In addition, petitioner and A. did not display mutual engagement activities and petitioner was unable to read A.’s emotional cues or respond appropriately to his needs. Further, while A. turned his body away and folded his arms when petitioner tried to hold him, A. displayed referencing and engagement activities with the foster mother, using her as his reference base. The therapist reported that petitioner continued to demonstrate confusion regarding his commitment to A. and did not demonstrate any strength that could be built upon. The therapist recommended A. be placed in long-term placement as soon as possible to reduce attachment difficulties. The foster mother stated that she was willing to provide a permanent plan for then 20-month-old A. who, by this time had been in her care since four months of age. On July 27, 2007, Cecelia vacated the family home.
In an addendum report, the department reported that petitioner made significant progress in completing his court ordered services but that there was sufficient detriment to warrant continued dependency. The department recommended that the court terminate reunification services since the 18-month limitation on services had expired. The department also reported that the Tribe was exploring possible placement options for A. with an aunt, uncle or maternal grandmother and that the tribe may have to consider permanent placement with extended family, which incorporates members who are not related to the family.
On August 22, 2007, the court convened the contested 18-month review hearing. The case worker testified that from the date of the 12-month review hearing in May until Cecelia left in July, she and petitioner had supervised visits with A. even though petitioner knew he could have unsupervised visitation without Cecelia. She also testified that attachment had been a departmental concern all along and that attachment therapy was the only service petitioner needed in order to reunify. However, she did not refer him for attachment therapy because the therapist did not recommend it. She also stated that foster mother had decided to adopt A. but that placement with the foster mother was not ICWA approved.
Following testimony, petitioner’s attorney argued nothing had changed since the court’s finding petitioner was denied reasonable services. Specifically, she cited the department’s delay in referring petitioner for the attachment assessment, its failure to arrange unsupervised visitation after Cecelia left and its inability to provide him EPU services. For the same reasons, his attorney argued, the court could not find the department made active efforts to prevent the breakup of the family as required under ICWA.
At the conclusion of the hearing, the court found active efforts were made and reasonable services provided but not before remarking that A.’s bond to his foster mother made the case “extremely difficult.” The court also noted petitioner’s ambivalence about A. as evidenced by his allowing Cecelia to remain in the home even after her services were terminated. The court was also struck by the therapist’s impressions and the lack of showing A. could bond with petitioner even if services were continued. The court concluded the department could have referred petitioner for the attachment assessment sooner but stated it could not ignore the therapist’s findings. To do so and order a change in A.’s placement would be, in the court’s opinion, a cruel experiment. In light of its observations and findings, the court terminated petitioner’s reunification services and set a section 366.26 hearing to implement a permanent plan. This petition ensued.
DISCUSSION
Petitioner argues the juvenile court erred in finding the department provided him reasonable services and made active efforts to preserve the family. Rather, he contends, the department failed him by not arranging attachment therapy, timely referring him for EPU services, investigating daycare options, and increasing visitation. The department’s inaction, he contends, prevented him from bonding with A. and undermined his ability to reunify with him. Further, because the evidence does not support the court’s reasonable services and active efforts findings, the court’s order terminating services is erroneous and must be vacated. We disagree.
Where the juvenile court can not safely return the child to parental custody by the 18-month review hearing, the court must set a section 366.26 hearing to implement a permanent plan. (§ 366.22, subd. (a).) Notwithstanding this statutory mandate, the juvenile court may exercise its discretion and continue reunification services beyond the 18-month review hearing if it finds reasonable services were not provided. (Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 167.)
On a challenge to the reasonableness of services, we confine our review to that period following the last final adjudication that reasonable services were provided. Since the juvenile court’s reasonable services finding made at the six-month review hearing in December 2006 is final and binding, our review is limited to services provided from December 2006 until the 18-month review hearing in August 2007.
Further, in reviewing the evidence, we determine whether substantial evidence supports the court's finding. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) We also consider the totality of the services provided, recognizing that 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.” (Id. at p. 547.)
While our focus is on the events and circumstances from December 2006 on, dependency cases have a momentum that pervades the proceedings from detention and spills over into each review period. In this case, for example, A. was detained at a time when his parents were separated. Cecelia did not want to raise him and petitioner could not take care of him because A. was then medically fragile. Within several months, petitioner and Cecelia were reconciled and living as an intact family with C. Only then, did they initiate contact with A. through visitation. So, any attachment they could have initiated at that time was forfeited essentially because of their fractured relationship. Attachment and petitioner’s relationship with Cecelia remained issues throughout. Nevertheless, petitioner and Cecelia each committed to reunifying with A. and, for all practical purposes, maintained a stable family home. Petitioner worked and Cecelia successfully completed an initial 90-day period of drug treatment. Additionally, it should be noted that not once during these entire proceedings did Cecelia test positive for drugs. However, around November 2006, she began a series of self-discharges from treatment and ultimately refused to return. Petitioner, meanwhile, was well on his way to completing his court-ordered services and had been advised that Cecelia’s noncompliance placed his entire family at risk.
Petitioner completed a parenting course but left doubt in the parenting instructor’s mind as to whether he could successfully parent. Consequently, the instructor recommended him for an EPU evaluation that did not occur. He also participated initially in attachment therapy but quit going when the focus of the therapy turned to Cecelia. It appears his work schedule prevented him from fully participating and he apparently misunderstood that he could continue in therapy. Nevertheless, petitioner was advised again in April 2007 that if reunification services were terminated, A. would not be placed with him. Meanwhile, A. was becoming increasingly attached to his foster mother and disengaged from petitioner and Cecelia.
When in May 2007 the juvenile court found petitioner had not been provided reasonable services, it directed the department to refer petitioner for attachment therapy and EPU services. Though there was a several month delay in completing the attachment assessment, the therapist did not recommend attachment therapy, concluding petitioner had no strengths on which to build. While that observation was never clarified, one has to wonder if the therapist was echoing the reservations the parenting instructor had expressed back in January 2007 when she recommended EPU services for petitioner. However, since the backlog of referrals for EPU services prevented petitioner from receiving services before the 18-month review hearing, that too remains unknown.
Given the evidence as set forth above, we conclude substantial evidence supports the juvenile court’s reasonable services finding, given petitioner’s reliance on Cecelia to be A.’s caregiver and refusal to pursue reunification on his own. He knew he could not have custody of A. if Cecelia’s services were terminated yet he remained with her even after that occurred. He knew attachment was an issue yet he chose supervised visitation with A. and Cecelia versus unsupervised extended visitation with A. alone. The court concluded, and the record bears it out, that petitioner was hesitant and possibly unable to care for A. by himself. In the end, he banked on having a complete reunification and it failed.
That said, the department could certainly have done more. For example, the department could have referred petitioner for EPU services many months before it did. However, there is no evidence that EPU services would have improved petitioner’s parenting skills or caused A. to attach. Further, the department could have more aggressively monitored petitioner’s participation in attachment therapy. However, again, there is no reason to believe, given petitioner’s reliance on Cecelia as the primary caregiver, that he would have facilitated a bond.
As stated earlier, reunification services need only be reasonable under the circumstances and, in this case, we conclude they were. Consequently, we find no error in the court’s finding petitioner was provided reasonable services or abuse of its discretion in refusing to continue services.
Though we affirm the juvenile court’s reasonable services finding, this case compels the following observation. Another ground for exercising juvenile court discretion in extending reunification services beyond 18 months is the best interests of the child. (Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 167.) Considering the potential that the Tribe would intervene and remove A. from his non-ICWA approved foster home, it seems to us an argument could be made that A.’s best interest lie in reunifying with his intact biological family perhaps under a plan of family maintenance. However, because A.’s best interest was not argued as a ground for exercising court discretion, the issue is not before us and we can not review it.
Finally, we need not address whether the juvenile court erred in finding, as required by ICWA, that active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and that the efforts were unsuccessful. (25 U.S.C. 1912, subd. (d); § 361.7.) “Active efforts” is not a required finding at the 18-month review hearing but rather at the hearing to terminate parental rights over the Indian child. (Ibid.) We find no error on this record.
Although the court is not required to make the “active efforts” finding at the 18-month review hearing, we believe making the finding at the hearing setting the section 366.26 hearing, as respondent did, is the better practice. (See In re Michael G. (1998) 63 Cal.App.4th 700, 712; fn. 9.)
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.