Opinion
H047377
03-24-2020
In re K.S., a Person Coming Under the Juvenile Court Law. SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. D.S., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 19JU00135)
In this appeal, D.S. (Mother) asks us to reverse a juvenile court order issued by the court pursuant to section 361.5 of the Welfare and Institutions Code denying her reunification services with respect to her son, K.S., born May 2019. At the October 2019 dispositional hearing in this matter, the trial court bypassed Mother for reunification services in accordance with subdivisions (b)(10) and (b)(11) of section 361.5. Under those provisions, the court is not required to offer reunification services to a parent if the court has previously terminated reunification services or parental rights with respect to a sibling or half sibling of the child and the parent "has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling . . . ." (§ 361.5, subd. (b)(10) & (11).) Mother argues that the juvenile court erred in finding that she had not made reasonable efforts to treat the issues that lead to the court terminating services for, and her parental rights over, K.S.'s half sibling. We conclude the record sufficiently supports the court's determination and resulting bypass order.
All future statutory references are to the Welfare and Institutions Code.
The parties agree the proceedings did not fully comply with the Indian Child Welfare Act (25 U.S.C. § 1901, et seq.) (ICWA), as the Pomo tribe did not receive notice under the Act, despite Mother's contention that K.S. is, or may be, a member of the Pomo tribe. We will remand the matter to the trial court for the purpose of complying with ICWA.
I. FACTUAL AND PROCEDURAL BACKGROUND
As the parties agree there was insufficient notice under ICWA, we focus our discussion of the factual and procedural history on the order bypassing Mother for reunification services. We will address the facts and procedure related to the ICWA issue in section II(B), post.
K.S, the minor who is the subject of these proceedings, was detained by the Family and Children's Services Division of the Human Services Department of Santa Cruz County (the Department) in May 2019, following a report by a mandated reporter of concerns about Mother's ability to care for K.S. Although both Mother and K.S. had negative toxicology tests following K.S.'s birth, Mother had tested positive for methamphetamine and marijuana during her pregnancy with K.S.; she received no prenatal care, was homeless, and had mental health issues which raised concerns that K.S. was at risk in her care.
According to the first amended dependency petition filed in July 2019, which was ultimately sustained by the juvenile court, K.S. came within the jurisdiction of the court under subdivisions (b)(1) and (j) of section 300 for a variety of reasons. Relevant to this appeal, the Department alleged Mother suffered from "unstable and untreated mental health issues" that impaired her ability to care for K.S., including a history that included "suicide ideation, harming others, anger outbursts and aggressive behavior," all of which put K.S. at risk of physical harm. The petition also alleged that Mother abused controlled substances, including during her pregnancy, having tested positive for methamphetamine about six weeks before K.S.'s birth, which also put K.S. at substantial risk of serious harm. Finally, Mother had a child, S.F., removed from her custody in 2012 due to substance abuse and Mother's unstable and untreated mental health issues; Mother was not able to reunify with S.F., who was subsequently adopted.
The petition alleged K.S.'s father, C.S. (Father), was not able to protect K.S. from Mother's behavior, and also that he abused controlled substances and alcohol. C.S. has not appealed the trial court's orders. He submitted on the information contained in the Department's Jurisdiction/Disposition report filed in June 2019.
K.S. is the only child shared between Mother and Father; Father was not the parent of S.F.
In its initial jurisdiction/disposition report, pursuant to section 361.5, subdivision (b)(10) and (11), the Department recommended that Mother not be offered reunification services with K.S., based on her failure to reunify with S.F. in 2012. In the case involving S.F., the Department alleged Mother's "untreated mental health issues significantly impair[ed] her ability to parent and protect her newborn child [S.F.]." During her pregnancy in 2011 and 2012, the Department received several reports expressing concern for Mother's ability to care for S.F. In October 2011, Mother tested positive at Dominican Hospital for methamphetamine. Mother was admitted into the behavioral health unit (BHU) at Dominican in November 2011, and placed on a "5150 hold" for suicidal ideation; during that hold, Mother tested positive for methamphetamine and THC. In February 2012, Mother presented to Dominican for seizures and "health issues," and in March 2012 again presented at the BHU reporting suicidal and homicidal ideation, for which she was placed on another 5150 hold. Mother gave birth to S.F. in April 2012; the baby tested positive for marijuana. Mother did not seek prenatal care until one month before giving birth to S.F.; the hospital had given her multiple referrals for prenatal care and housing resources, but Mother refused.
Under section 361.5, subdivisions (b)(10) and (b)(11), the juvenile court can deny reunification services to a parent who has failed to reunify with another child, or whose parental rights to another child were terminated, if the court finds that the parent, "has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling . . . ." (§ 361.5, subd. (b)(10) & (11); R.T. v. Superior Court (2012) 202 Cal.App.4th 908, 914 (R.T.).)
The juvenile court in this case took judicial notice of portions of the record in S.F.'s dependency case.
"When a person, as a result of a mental health disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, professional person in charge of a facility designated by the county for evaluation and treatment, member of the attending staff, as defined by regulation, of a facility designated by the county for evaluation and treatment, designated members of a mobile crisis team, or professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody for a period of up to 72 hours for assessment, evaluation, and crisis intervention, or placement for evaluation and treatment in a facility designated by the county for evaluation and treatment and approved by the State Department of Health Care Services." (§ 5150, subd. (a).)
At the time S.F. was detained by the Department, Mother's criminal history included several arrests between 2007 and 2011 for prostitution, possession of a controlled substance, possession/purchase of cocaine base for sale, and the transport/sale of narcotics or controlled substances; Mother had had at least one felony conviction resulting in prison time. Mother reported to the social worker that she had diagnoses of schizophrenia and bipolar disorder, but was not currently taking any medication because she did not need it; she took Zoloft early in the pregnancy with S.F., but quit when she heard about possible birth defects on television.
Following the initial detention of S.F., the Department developed a case plan for Mother to follow, which required her to: participate in two court-ordered psychological evaluations and follow all recommendations made in the evaluations; participate in a psychotropic medication evaluation and follow all recommendations made in the evaluation; participate in therapy with a Department approved provider; participate in an anger management evaluation and follow all recommendations for treatment; successfully complete a parenting education program; work with a Department approved housing resource program to obtain and maintain appropriate housing; participate in drug and alcohol testing; and, complete a drug and alcohol assessment and follow all recommendations. At the dispositional hearing for S.F., the court ordered Mother to participate in all treatment requirements contained in the case plan.
Mother undertook the two court-ordered psychological evaluations. Mother first saw Richard Alloy, Ph.D. As part of Dr. Alloy's evaluation, he inquired about Mother's compliance with the case plan created by the Department: "Asked about the CPS plan, she said this involves drug testing, counseling, and this evaluation. As regards the drug testing, she says she has stayed clean and has found this easy to do. As regards the counseling, she says she is still looking for someone. She has been living at an SLE (sober living environment) for two months, paid for by CPS, and says the experience is 'fine.' " Mother reported having a prior history of psychological treatment; she went to counseling when she was 14 or 15 years old. She had several stays at the behavioral health unit, claiming she lied about being suicidal in order to have a place to stay. Mother's medical history included epilepsy and asthma; Dr. Alloy indicated Mother was taking prescribed medication for both. After administering several psychological tests, Dr. Alloy diagnosed Mother with the following, citing the DSM-IV-TR: "Depressive Disorder Not Otherwise Specified," "Probable Posttraumatic Stress Disorder Chronic," "Cannabis Dependence in Early Full Remission," "Amphetamine Dependence in Early Full Remission," "Neglect of Child," "Neglect of Child (as victim)," "Sexual Abuse of Child (as victim)," "History of Psychotic Disorder Not Otherwise Specified in Remission," "Rule out Cognitive Disorder Not Otherwise Specified due to traumatic brain injury, epilepsy, and chronic drug abuse," "Personality Disorder Not Otherwise Specified with Borderline, Antisocial, Dependent, Passive-Aggressive, Histrionic, and Compulsive features," "Epilepsy secondary to traumatic brain injury (age 12)," and "Asthma." He identified numerous "Psychosocial Stressors" in Mother's life, and indicated her "Global Assessment of Functioning" under the DSM-IV-TR as, "Major impairment in several areas, including work, family relations, judgment, thinking, and mood." Dr. Alloy opined that Mother suffered from a mental incapacity which rendered her unable to adequately care for and control S.F.; he also believed the incapacity rendered Mother incapable of using reunification services, an incapacity that he did not think would change within six months.
This refers to The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th rev. ed. 2000). (See In re Drake M. (2012) 211 Cal.App.4th 754, 765.)
Mark Burdick, Ph.D., conducted the second evaluation. He reviewed Mother's prior child welfare history in 2011 and 2012, noting there were three reports to the Department during her pregnancy with S.F., as discussed ante. In addition to Mother's child welfare history, Dr. Burdick reviewed her criminal history between 2007 and 2011, which included three convictions, the most recent being a misdemeanor charge in 2010 for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). Dr. Burdick interviewed Mother; during the interview she denied having suicidal or homicidal ideations, but admitted that she "put herself into foreseeable harmful living situations in her past." While she had no present hallucinations or delusions, Mother "confirmed past psychotic episodes." Dr. Burdick also interviewed Lori Ciaramel, the director of Evolving Door SLE, and Briana Kahoano, Mother's drug and alcohol counselor. Ciaramel indicated Mother was absent without leave from the SLE at the time of the interview. Ciaramel opined that Mother did not care about herself; she only cared about S.F.'s father, noting Mother left the SLE to care for the father without bringing her seizure medication with her. Kahoano was under the impression Mother was still "maintaining in the SLE" when she spoke to Dr. Burdick; she also believed Mother was "doing course work" and "[g]oing to meetings," having been sober for two months.
After administering several psychological tests, Dr. Burdick, citing the DSM-IV, diagnosed Mother with: "Adult Antisocial Behavior," "Mood Disorder (... with psychotic features by history)," "Polysubstance Dependency (institutional remission ...)," "Parent/Child relationship (by history ...)," "Academic Problem," "Personality disorder (NOS)," "Borderline Intellectual Capacity," "Seizures (reported by client)," "Neglect of Child," "Occupational Problem," and, "Partner Relational Problem." He opined that Mother's mental incapacity rendered her incapable of utilizing reunification services, noting it was unlikely Mother could "create meaningful committed relationships with [S.F.], given her history of personality disorder, attachment problems, lower cognitive functioning, lower adaptive functioning, and 'at risk' features . . . ." Dr. Burdick indicated Mother was not compliant with the plan set out for her by the Department.
The juvenile court ultimately determined, by clear and convincing evidence, that Mother suffered from a mental disability, as described in Family Code section 7827, that rendered her incapable of adequately caring for or controlling S.F., or utilizing the Department's reunification services; moreover, the court found her disability made it unlikely Mother could care for S.F. after 12 months even if she received reunification services. Finding that reunification services were not in S.F.'s best interests, the court terminated such services to Mother. In doing so, the court found, "[t]he extent of progress made toward alleviating or mitigating the causes necessitating placement by the mother has been minimal . . . ." In 2013, the court terminated Mother's parental rights over S.F., who was then placed for adoption.
" 'Mentally disabled' as used in this section means that a parent or parents suffer a mental incapacity or disorder that renders the parent or parents unable to care for and control the child adequately." (Fam. Code, § 7827, subd. (a).)
Relevant to K.S., Mother came to the attention of the Department in April 2019, when it received a report that Mother, who was 33 weeks pregnant, was using methamphetamines daily during the pregnancy and had not received prenatal care. At the time of the initial report, Mother tested positive for methamphetamines and marijuana. Mother was referred to Janus Perinatal, with whom she made a plan for treatment. However, she was not able to complete treatment with Janus; she left because she believed other patients in the program were trying to kill her.
The Department received another report regarding Mother following K.S.'s birth in May 2019. At the time, both Mother and K.S. had negative toxicology tests. Mother became the subject of a psychological evaluation while in the hospital because she reported that she did not stay at Janus because the people there were trying to kill her. She said people were also trying to kill her at the homeless shelter she was staying at following Janus. The outcome of the psychological assessment was that Mother suffered from "paranoid ideas." In speaking with a social worker at the hospital, Mother denied any mental health history, claiming she did not need a counselor because she did not need assistance with her mental health.
Although Mother tested positive for methamphetamines a short time before K.S.'s birth, at the hospital following his birth she claimed she had been clean for four months. Father reported having seen Mother use methamphetamines in April 2019. Mother declined additional services from Janus following K.S.'s birth.
Based on the Department's May 2019 petition, the juvenile court detained K.S. The Department recommended bypassing Mother for reunification services based on the court's previous termination of services and parental rights in S.F.'s case. Mother opposed the recommendation and sought a contested hearing. Pending the hearing, the court allowed Mother supervised visitation with K.S.; Mother was also accepted into Family Preservation Court.
According to the County of Santa Cruz Health Services Agency website, "The Family Preservation Court (FPC) program is a voluntary, court-supervised, comprehensive treatment program for parents who have children involved in the dependency court system and Family and Children's Services (also known as Child Welfare). [¶] . . .[¶] Participants engage in treatment, parenting education, and regular court appearances. They also have the opportunity to receive family therapy and home visits through Child Welfare's Leaps & Bounds program to promote parent-child well-being." (Family Preservation Court (2020) County of Santa Cruz Health Services Agency <https://www.santacruzhealth.org/HSAHome/HSADivisions/BehavioralHealth/SubstanceUseDisordersServices/FamilyPreservationCourt.aspx> [as of March 23, 2020], archived at <https://perma.cc/QW3P-SEGJ>.)
The juvenile court set the contested dispositional hearing in October 2019. The Department provided the court a written update shortly before the hearing. Mother attended visitation consistently with no reported problems. She also maintained sobriety while participating in Family Preservation Court. Mother had been referred to anger management counseling, but had not yet obtained services, as she reported she had not heard from the program. She had been receiving counseling services for over one month, in which she addressed her sobriety and her anger management. Mother was also receiving "Integrated Behavioral Health" every other week; the provider did not provide an update to the Department prior to it submitting the report to the court. The Department continued to recommend bypassing services to Mother.
At the jurisdiction/disposition hearing, Mother and Father appeared with appointed counsel; the attorney appointed to represent K.S. also appeared, as did counsel for the Department. The Department submitted on the reports and evidence filed with the Court; neither parent's attorney sought to cross-examine the social workers assigned to the matter. Both the Department and the attorney appointed to represent K.S. recommended bypassing Mother for reunification services.
Mother was the only witness to testify at the hearing. Before doing so, Mother offered four exhibits into evidence, which the juvenile court admitted. The first was a letter from the service coordinator with the Substance Use Disorder Services program at the County of Santa Cruz Health Services Agency; the coordinator confirmed Mother had engaged in outpatient services since early July 2019, attending three groups per week: Seeking Safety, Dual Diagnosis, and Recovery Group. Mother was "fully engaged" in those groups, "receptive to materials presented and supportive of her peers. She has been working on anger management skills, recognizing her triggers, and applying safe coping skills. She has also been working on relapse prevention how to create more safety in her daily life." Mother had "connected to Integrated Behavioral Health for individual therapy and [had] the option of receiving a medication evaluation as well." The coordinator stated, "Over the past month and a half, I have seen clear motivation from [Mother] to do whatever she can to unify with her son," such that the coordinator hoped Mother would receive family reunification services. Mother's exhibits confirmed Mother attended two assessment sessions for individual therapy, as well as NA/AA meetings, and various meetings at her SLE. The general manager of the SLE provided a letter describing the "structured environment" of the SLE, and indicating Mother was complying with all of the program's rules. The manager noted, "I have known [Mother] for 10 years and have watched a phenomenal difference. Not only in her attitude but can see that she has been working on her anger issues as well. She has shown this change in her case plan as well as here in our facility. [Mother] has proved to me that she can follow rules and has gone above and beyond as well as [Father] with what they've achieved. They both are immersed in their recovery and both have commitments in meetings."
Mother also provided the logs from her court-ordered supervised visitation with K.S., reflecting her consistent participation, as well as her positive interaction with K.S. during the visits, including feeding K.S., changing his diaper, playing with him, and hugging and kissing him.
In her testimony, Mother admitted that her parental rights over S.F. were terminated; she discussed her attempts to rectify the problems that lead to the termination. While Mother had used methamphetamines during her pregnancy with K.S., at the time of the hearing she had six months of sobriety; she was participating in Family Preservation Court, attending outpatient groups three times per week, and going to meetings four times per week.
Regarding her mental health, Mother testified she did not believe she needed mental health services, and thus did not participate in services until after K.S.'s birth and detention; she only started participating in such services because the Department said she had to, and she is willing to do what it takes to get K.S. back. Mother began working with an individual counselor, who she had seen three or four times at the time of the hearing, noting they were "still working out the kinks with starting to trust each other." She was also seeking a counselor for anger issues; she did not begin with this counselor until August 2019. Mother denied receiving a diagnosis from previous mental health providers; she recalled receiving psychological evaluations in 2012, but claimed they never gave her counseling. She confirmed her belief that people at the Janus program threatened to kill her while she was staying there during her pregnancy with K.S., but denied making the same claim about people at the homeless shelter where she was residing.
When asked what was different now versus at the time of S.F.'s birth, Mother stated, "The other case I didn't really have anybody to support me. The person I was with [S.F.'s father] would basically trip me every time I tried to make a move to move forward, but now I have somebody [Father] who steps with me instead of against me, and every time I am starting to feel down or I think I can't do this anymore I have somebody there to tell me it's okay, we got this, we can do it. Which is a big difference compared to where I was. [¶] And now I am going to counseling which helps a lot when I start getting depressed or start getting angry because of how hard it is for me to do these things. I have vision problems, trying to read is really hard, and trying to get around is really hard. 99 times out of 100 I have to have him help me walk through a store, but I still manage to get up and go to these groups and do everything they are telling me to do over and over again. [¶] I still manage to make it through the hurdles as hard as they are. I want my son back. He deserves to have his mom raise him and not some stranger. I love my baby. I am sorry for my mistakes, but I want my boy, please." Mother confirmed that she is committed to participating in reunification services if ordered by the court.
At the end of the hearing, the trial court sustained the allegations of the amended petition and determined that it would be contrary to K.S.'s welfare to remain in the parents' home. The court found that Mother had made "minimal progress towards . . . mitigating the causes necessitating initial placement of the child in out-of-home care. There's been little or no compliance with the existing case plan to date." While the court believed that Mother was honest in saying she was doing everything possible to reunify with K.S., including making progress in dealing with her sobriety and surrounding herself with a "better group of support people," the court nevertheless found Mother to be in denial regarding her mental health issues, noting she had "no understanding of those mental health issues or concerns"—concerns that formed the basis for the termination of reunification services with S.F. The court found by clear and convincing evidence that the Department met its burden under sections 361.5, subdivision (b)(10) and (11) to prove that reunification services were previously provided with respect to S.F., Mother had been unable to reunify, and Mother had not made any reasonable efforts since that time to deal with the underlying mental health issues. The court "[did] not find by clear and convincing evidence that it would be in the child's best interest for reunification services to be offered to mom." Thus, the court denied Mother reunification services. It authorized her to have supervised visitation with K.S. one time per month, informing both parents that failure to comply successfully with the provisions of the case plan within six months could result in an order to develop a permanent plan for K.S.
The court ordered reunification services and visitation with K.S. to Father.
Mother timely noticed her appeal. (§ 395, subd. (a)(1); In re A.L. (2014) 224 Cal.App.4th 354, 361; In re Daniel K. (1998) 61 Cal.App.4th 661, 667.)
II. DISCUSSION
A. Substantial Evidence Supports the Trial Court's Bypass Order
Mother argues the trial court's order bypassing reunification services for her is not supported by substantial evidence. "There is a presumption in dependency cases that parents will receive reunification services. [Citation.] Section 361.5, subdivision (a) directs the juvenile court to order services whenever a child is removed from the custody of his or her parent unless the case is within the enumerated exceptions in section 361.5, subdivision (b). [Citation.]" (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 95 (Cheryl P.).) However, " '... as evidenced by section 361.5, subdivision (b), the Legislature recognizes that it may be fruitless to provide reunification services under certain circumstances. [Citation.] Once it is determined one of the situations outlined in subdivision (b) applies, the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources.' [Citation.]" (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744.) "The statutory sections authorizing denial of reunification services are sometimes referred to as 'bypass' provisions. [Citation.]" (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1121 (Jennifer S.).)
We review an order bypassing reunification services for substantial evidence. (Jennifer S., supra, 15 Cal.App.5th at p. 1121; Cheryl P., supra, 139 Cal.App.4th at p. 96.) "Under such circumstances, we do not make credibility determinations or reweigh the evidence. [Citations.] Rather, we 'review the entire record in the light most favorable to the trial court's findings to determine if there is substantial evidence in the record to support those findings.' [Citation.]" (Jennifer S., at p. 1121.)
Under section 361.5, subdivisions (b)(10) and (b)(11), the juvenile court can deny reunification services to a parent who has failed to reunify with another child, or whose parental rights to another child were terminated, if the court finds that the parent, "has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling . . . ." (§ 361.5, subd. (b)(10) & (11); R.T., supra, 202 Cal.App.4th at p. 914.) "The court shall not order reunification for a parent or guardian described in paragraph ... (10) [or] (11) ... of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c)(2).)
Here, Mother does not dispute that the Department met its burden to show the problems leading to the termination of reunification services and her parental rights over S.F. are the same problems that led to K.S.'s removal. Rather, she contends that she has made reasonable efforts to treat the problems that lead to S.F.'s removal, such that the record lacks substantial evidence to support the trial court's ruling to the contrary. "The reasonable effort requirement [of section 361.5, subdivision (b)(10) and (11)] focuses on the extent of a parent's efforts, not whether he or she has attained 'a certain level of progress.' [Citation.]" (R.T., supra, 202 Cal.App.4th at p. 914.) However, "reasonable effort" as used in subdivision (b)(10) and (b)(11) is "not synonymous with ' "cure." ' [Citation.]" (Jennifer S., supra, 15 Cal.App.5th at p. 1121.) The parents' efforts "must, however, be more than ' "lackadaisical or half-hearted." ' [Citation.]" (Ibid.)
While the "reasonable effort" standard does not require a complete cure of the problems that led to the failed reunification of a sibling or half-sibling, or termination of the parental rights for the sibling or half-sibling, it similarly does not mean "that any effort by a parent, even if clearly genuine, to address the problems leading to removal will constitute a reasonable effort and as such render these provisions inapplicable. It is certainly appropriate for the juvenile court to consider the duration, extent and context of the parent's efforts, as well as any other factors relating to the quality and quantity of those efforts, when evaluating the effort for reasonableness. And while the degree of progress is not the focus of the inquiry, a parent's progress, or lack of progress, both in the short and long term, may be considered to the extent it bears on the reasonableness of the effort made." (R.T., supra, 202 Cal.App.4th at p. 914, original italics; accord Jennifer S., supra, 15 Cal.App.5th at p. 1121.)
Mother contends that the juvenile court's order bypassing reunification services in this case was not supported by substantial evidence, arguing the Department had to show reunification would be "fruitless" pursuant to Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 750 (Deborah S.), and Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464. Mother believes the record shows she was making necessary efforts to address the issues that lead to S.F.'s removal, including having positive visitation with K.S., participating in voluntary drug testing, attending 12-step meetings, making progress in Family Preservation Court, and engaging in mental health services.
Under the substantial evidence standard of review, we must affirm the trial court's decision so long as substantial evidence supports its findings, regardless of whether there was also other evidence or reasonable inferences to support a contrary finding. (See In re Madison S. (2017) 15 Cal.App.5th 308, 318.) Thus, while the record does include evidence that Mother was making efforts to rectify some of the issues that lead to the termination of reunification services and her parental rights over S.F., we must consider whether the record contains substantial evidence to support the trial court's determination that Mother was not making reasonable efforts to address the mental health issues that were at the core of S.F.'s dependency action.
In doing so, we need not consider whether the Department has shown that reunification would be "fruitless." Certainly, Deborah S. does not require a separate showing that reunification services would be fruitless in light of substantial evidence that a parent failed to reunify with another child under section 361.5, subdivision (b)(10) or (11), and failed to make reasonable efforts to rectify the previous issues. Rather, Deborah S. states, "Section 361.5, subdivision (b) symbolizes the Legislature's recognition of the fact that it may be fruitless to provide reunification services under certain circumstances. [Citation.]" (Deborah S., supra, 43 Cal.App.4th at p. 750.) The appellate court then listed several of the provisions of section 361.5, subdivision (b) as examples of such circumstances, effectively indicating the Legislature already determined that the listed circumstances made reunification fruitless by their very nature, such that "the right to reunification services, outlined in section 361.5, subdivision (a), does not accrue to such an offending parent unless the court finds it would benefit the dependent child to pursue reunification services with that parent. Inherent in this subdivision appears to be a very real concern for the risk of recidivism by the parent despite reunification efforts." (Ibid.) Once the Department proves that the circumstances of section 361.5, subdivision (b)(10) and/or (11) apply, including the requirement that the parent has not made reasonable efforts to rectify the previous issues, it does not have to prove that reunification would be fruitless.
Of course, as clarified in Renee J. v. Superior Court, "[i]f the evidence suggests that despite a parent's substantial history of misconduct with prior children, there is a reasonable basis to conclude that the relationship with the current child could be saved, the courts should always attempt to do so. Courts must keep in mind that '[f]amily preservation, with the attendant reunification plan and reunification services, is the first priority when child dependency proceedings are commenced.' [Citation.] The failure of a parent to reunify with a prior child should never cause the court to reflexively deny that parent a meaningful chance to do so in a later case. To the contrary, the primary focus of the trial court must be to save troubled families, not merely to expedite the creation of what it might view as better ones." (Renee J. v. Superior Court, supra, 96 Cal.App.4th at p. 1464.) Thus, in evaluating whether a parent has made a "reasonable effort to treat" prior issues, the court is not looking for the parent to have been "cured." (Ibid.) Instead, as already discussed, the juvenile court must consider "the duration, extent and context of the parent's efforts, as well as any other factors relating to the quality and quantity of those efforts, when evaluating the effort for reasonableness." (R.T., supra, 202 Cal.App.4th at p. 914, italics omitted; accord Renee J. v. Superior Court, at p. 1464.)
While we agree that Mother's recent efforts are certainly laudable, we conclude that substantial evidence supports the court's bypass order with respect to Mother. While Mother was making progress in addressing her substance abuse issues, she began to do so only after K.S. was detained in 2019, with no evidence of any efforts to do so between 2012, when S.F. was detained, and K.S.'s detention. More importantly, there was substantial evidence that Mother had no appreciation or understanding for the significant mental health issues diagnosed in 2012 or earlier, which formed the basis for the court terminating reunification services for Mother relative to S.F. Mother denied ever having received a mental health diagnosis, and denied needing mental health services; the evidence from S.F.'s dependency action clearly revealed several diagnoses, both those determined by the two court-ordered psychological evaluations, and those reported by Mother to the Dominican Hospital staff during her stays at the BHU in 2011 and 2012. In 2019, the hospital assessed her as suffering from "paranoid ideas" based on her claims that people at Janus and the homeless shelter were trying to kill her. Despite this history, Mother agreed to participate in mental health services after K.S.'s detention only because the Department and/or court indicated she had to do so to reunite with K.S.; as with her substance abuse issues, Mother did not address her mental health issues in the lengthy period between S.F.'s dependency action and the instant case. It was appropriate for the juvenile court to consider the duration, extent, and context of Mother's efforts in evaluating whether her efforts were reasonable under section 361.5, subdivisions (b)(10) and (b)(11). (R.T., supra, 202 Cal.App.4th at p. 914.)
Here, considering the duration, extent, and context of Mother's efforts, the record supports the trial court's finding that these efforts were not reasonable under section 361.5, subdivisions (b)(10) and (b)(11). Under these circumstances, the juvenile court could properly conclude Mother's efforts were "too little, too late." (R.T., supra, 202 Cal.App.4th at p. 915 [mother's receipt of one to two months' of services following child's removal was not sufficient under section 361.5]; accord Jennifer S., supra, 15 Cal.App.5th at p. 1124 ["the juvenile court correctly noted in this case, the parents 'have had years, years to address the problems that caused the first removals of their respective children.' We thus have no trouble finding support in the record for the court's related conclusion that father's minimal efforts at engaging in substance abuse treatment mere weeks before the June 2017 contested hearing were not a reasonable effort to treat this problem for purposes of subdivision (b)(10) bypass."]; Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 601 [father, whose parental rights had previously been terminated for three other children, did not admit to problems until dispositional hearing, waited until two weeks before hearing to end relationship with mother, whose substance abuse was primary cause of dependency, and only recently started attending substance abuse classes at his attorney's behest, such that bypass was appropriate.].)
In Appellant's Opening Brief, Mother seemingly makes arguments regarding section 361.5, subdivision (c), which precludes the juvenile court from ordering reunification services for a parent bypassed under section 361.5, subdivision (b), unless it finds by clear and convincing evidence that such an order would be in the child's best interest. Mother states the factors she believes the court must consider "[i]n assessing whether bypass is in the minor's best interests...." In response, the Department argues that Mother did not meet her burden under section 361.5, subdivision (c) to show reunification services would be in K.S.'s best interest, such that the trial court properly exercised its discretion denying Mother those services. In her reply brief, Mother confirms that she is not arguing that the court erred in its application of section 361.5, subdivision (c); her argument on appeal is that "the evidence does not support the juvenile court's finding she failed to make reasonable efforts to address the issues the resulted in the termination of her services in the earlier case, and the placement of her other child for adoption." Thus, our decision rests only on that issue.
B. ICWA Issues
Mother alleges the Department did not comply with ICWA after receiving information that ICWA might apply in this matter. Relevant to the appeal, in May 2019, Mother completed the Judicial Council form Parental Notification of Indian Status (ICWA-020), in which she alleged that K.S. is or may be a member of several federally recognized Indian tribes, including the Pomo tribe. Based on Mother's later in-court representations regarding her potential Indian heritage, the Department gave notice to at least 43 different tribes; however, on appeal, the Department concedes it did not give notice to the Pomo tribe(s). Thus, we will remand the matter to the trial court for the limited purpose of ensuring that proper ICWA notice has been given, and for compliance thereafter with ICWA's requirements as may be indicated. To the extent Mother believes there are additional family members from whom the Department should obtain information about K.S.'s status as an Indian child, she can raise those concerns in the remanded proceedings.
The court and the Department have a continuing duty to inquire whether a child for whom a petition has been filed under section 300 is or may be an Indian child, defined as an "unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (§§ 224.1, subd. (a), 224.2, subd. (a); 25 U.S.C. § 1903, subd. (4).) Where it is known that an Indian child is involved in a proceeding, notice pursuant to section 1912 of ICWA must be provided to the child's tribe. (§ 224.3, subd. (a).)
III. DISPOSITION
The order bypassing K.S. for reunification services is conditionally reversed, and the matter is remanded to the juvenile court with directions to order the Department to promptly comply with the notice provisions of ICWA, the relevant case law interpreting ICWA, and the views expressed in this opinion, and to file all required documentation with the juvenile court for the court's inspection. If, after proper notice, no tribe claims that K.S. is an Indian child, the order bypassing Mother for reunification services shall be reinstated. If any noticed tribe has determined that K.S. is an Indian child, the juvenile court shall proceed in conformity with all provisions of ICWA, the Welfare and Institutions Code, and the California Rules of Court.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Bamattre-Manoukian, J. /s/_________
Grover, J.