Opinion
A128925
08-31-2011
In re A.G., a Person Coming Under the Juvenile Court Law. SOLANO COUNTY HEALTH AND SOCIAL SERVICES DEPARTMENT, Plaintiff and Respondent, v. J.G. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. J37171)
In late November 2009, 10-year-old A.G., told friends at her elementary school she was being sexually abused by her 16-year-old half-brother, C.T. Two of her classmates reported concerns to a school staff teacher. The teacher's referral led to police interviews with A.G. and C.T., a SART (Sexual Assault Response Team) examination of A.G., and eventually to the initiation of criminal proceedings against C.T. and these dependency proceedings on behalf of A.G.
In this appeal, J.G. (Father) and O.G. (Mother) challenge the dispositional order entered by the Solano County Superior Court, Juvenile Division, ordering A.G.'s removal from their physical custody.
Both parents challenge the underlying jurisdictional finding that A.G. was a child described by Welfare and Institutions Code, section 300, subdivision (c), and the dispositional finding by clear and convincing evidence under section 361, subdivision (c)(3), that it was necessary to remove A.G. from her parent's custody to protect her emotional health. Mother also challenges a finding that the Solano County Health and Social Services Department (Department) made reasonable efforts to provide reunification services, objects to the reasonableness of her reunification case plan, and claims the Department failed to comply with notice requirements of the Indian Child Welfare Act (ICWA). (See 25 U.S. § 1901 et seq.) As discussed below, we affirm the dispositional order, concluding that the challenged findings are supported by substantial evidence, that Mother's case plan was reasonable under the circumstances, and that Mother's ICWA claims are moot.
Further statutory references are to the Welfare and Institutions Code unless otherwise specified.
BACKGROUND
Father and Mother have two biological children, A.G. (born November 1999) and J.G. (born April 2002). Mother has another, older son, C.T. (born August 1993), through a former marriage. Father is a sergeant in the U.S. Army. Since August 2006, the parents and these three minors have lived in military residential family housing located on Travis Air Force Base (Travis).
Another child from Mother's previous marriage—her oldest son C.T.-2—is no longer a minor and was not living with the family when this proceeding began in December 2009.
The Department filed its initial petition on December 31, 2009, under section 300, subdivisions (b), (c), (d), and (j). The gist of the allegations under section 300, subdivisions (b), (c), and (d) were: A.G. had been repeatedly sexually molested since 2005 by C.T., the SART examination of A.G. was "conclusive for sexual assault," and Father and Mother knew or reasonably should have known of the abuse, but failed to protect A.G.; in 2002, A.G. had been sexually molested by C.T.-2 (see fn. 2, ante), and the parents had similarly failed to protect A.G.; and, Father and Mother had placed A.G. at substantial risk of emotional harm or damage because they had not addressed her extensive sexual abuse trauma, in that they had failed to follow through with mental health appointments, did not believe her disclosures regarding the sexual abuse, blamed her for C.T.'s current incarceration, and had allowed C.T.-2 to return to the home after the disclosure of his sexual abuse in 2002. The allegation under section 300, subdivision (j) stated A.G.'s younger brother, J.G., was at risk of sexual abuse because the parents had failed to protect A.G. from such abuse by her older half-brothers, C.T. and C.T.-2.
A.G. and J.G. were not detained initially. Although the detention report recommended detention, the juvenile court, at the first hearing on January 4, 2010, did not follow this recommendation. The court stated it would "put [that matter] over to the trial management conference and give the parents a chance to get themselves organized and support these two younger children in their home." The court noted the parents were in a "difficult" position, as it was also important for them to support C.T. in his upcoming delinquency petition.
Later in January 2010, the Department filed a motion for a protective order to prevent a second SART examination of A.G. A report submitted in support of the motion noted the parents had attempted to schedule a second examination, stating the nurse who conducted the first examination did not have enough experience and the examination had not been done correctly. The attempt was unsuccessful because hospital staff contacted Detective Rob Lenke, the investigating officer for the Fairfield Police Department (FPD), who said FPD had not given the authorization necessary for a second examination. At a hearing on January 21, 2010, the juvenile court granted the motion, telling the parents that "from this point on you're . . . on notice that I don't want you to do anything that would be seen as undermining your confidence in what [A.G.] has said."
At the continued detention hearing held the following week, the Department again argued for detention, "based on information [it was] receiving from various sources" that the parents were "intentionally or unintentionally . . . causing [A.G.] to be concerned about the statements that she had made during the MDIC interview[] and during the course of the investigation." The court declined to order detention at that time, again expressing sympathy for the parents' "difficult situation." The court said it would have ordered detention had there been a clear showing the parents were acting intentionally, but even if their conduct was "accidental, concerns continue[d] to be raised [and] there's a possibility of detention." The court concluded by telling the parents it would direct the Department to "meet with [them] and counsel [them] in terms of what it is [they were] doing . . . even if it's unintentional[]. It's not good for [A.G.] and if it continues, I will be detaining her." The court noted it was continuing the detention hearing for two weeks, "to give the situation a chance to improve," and advised the parents not to "be defensive" in meeting with the Department, but to "listen . . . and accept it and then change whatever it is you need to change, okay."
A.G. was initially interviewed at Rainbow Children's Center in Vacaville, a Multidisciplinary Interview Center (MDIC) providing a neutral and nonthreatening environment for interviewing child victims of sexual abuse and observing and recording their statements.
On February 10, 2010, the juvenile court asked county counsel if the Department had met with the parents "about being able to support all their children," received an affirmative reply, and commented to the parents that "you're expected, as difficult as it may seem, to support both [A.G. and C.T.]," despite their being on "opposite sides of each other legally . . . ." "You have to be very careful about what you say and do [and if] you're not able to support both children in this process, then I have to take action." Neither the parents nor their counsel made any comment at this point, and the court continued the detention matter.
At the continued detention hearing on March 3, 2010, the juvenile court asked for an update regarding "detention issues," and there was some discussion among counsel that contact between A.G. and C.T. had possibly occurred. The court again expressed concern about the parents having to "walk a very fine line" in their attempts to support both children, and continued the detention matter again due to "little continuing concerns from the very beginning about" their handling of this "complicated" task. Finally, on March 24, the court determined the detention issue could be taken off calendar.
In its initial report prepared for the jurisdictional hearing, completed in mid-April 2010, the Department recommended A.G. and J.G. remain in the home under a plan of family maintenance services. However, on May 12, during the contested jurisdictional hearing, the Department filed an amended petition, which restated the original allegations and added new allegations under section 300, subdivisions (b) and (c). The new allegations essentially stated that, despite being cautioned in February 2010 "not to discuss the case in the presence of or within earshot of the children," the parents continued "taking actions to encourage or force [A.G.] to re-tell and/or recant her prior disclosure of sexual abuse" and continued to make her "feel guilty about her disclosure." In addition, the parents "openly continue[d] to state that they do not believe [A.G.'s] disclosure of sexual abuse."
In a detention and jurisdictional addendum report filed with the amended petition, the Department changed its recommendation and requested the court detain A.G. and J.G. pending completion of the jurisdictional and dispositional hearings. On May 13, 2010, the juvenile court directed that A.G. be placed temporarily with Christine Barton, a family friend. Four days later, the court formally detained both A.G. and J.G.
Mother, who was present when the court made this ruling, became upset and ran out of the courtroom, yelling, "You are one twisted bitch"—a remark Father explained had been directed to the assigned social worker Josita Camacho and not to the court.
On May 21, 2010, the juvenile court dismissed the original petition and proceeded with the jurisdictional hearing on the amended petition. The court resumed the contested jurisdictional hearing. At the conclusion of the hearing on June 1, the court declined to sustain any of the pleaded allegations. It found A.G., but not J.G., to be a subject to the court's dependency jurisdiction pursuant to an allegation under section 300, subdivision (c), which was amended to conform to proof. Specifically, the court found A.G. was "suffering, or is at substantial risk of suffering, serious emotional damage evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others because the child has no parent or guardian capable of providing appropriate care [in that her] parents [were unable to] provide appropriate care, support, and treatment for both [her] and her brother [C.T.]."
In an addendum dispositional report filed June 14, 2010, the Department recommended that A.G. be continued in out-of-home care and that Father and Mother be provided reunification services. On June 24, the juvenile court adopted these recommendations.
These appeals, subsequently consolidated, followed. (See § 395.)
DISCUSSION
A. The Jurisdictional Finding Under Section 300, Subdivision (c)
1. Introduction
On June 1, 2010, the court delivered its jurisdictional ruling. It initially gave its "bottom line" ruling, finding A.G. was a person described by section 300, subdivision (c), on "the specific grounds . . . she suffered from severe emotional damage, the anxiety, depression, withdrawal, or untoward aggression [and] she has no parent capable of providing appropriate care." The court emphasized it was not the parent's actions that caused A.G.'s emotional suffering, but their "inability to provide appropriate care."With respect to A.G.'s "emotional damage," the court found C.T. did sexually molest her over a period of years.
Subdivision (c) of section 300 provides for dependency jurisdiction when a "child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent . . . or who has no parent . . . capable of providing appropriate care." (§ 300, subd. (c), italics added.) As discussed above, the Department's amended allegations under subdivision (c) of section 300 focused on the parents' conduct as a cause of A.G.'s serious emotional damage, stating for example that "the court directed the parents to meet with the social worker to discuss 'unintentional actions that interfere with this case.' " Despite "being clearly cautioned" by the Department not to discuss the case "in the presence of or within earshot of the children," the parents had "continue[d] taking actions to encourage or force [A.G.] to re-tell and/or recant her prior disclosure of sexual abuse by her brother and continue[d] to make [A.G.] feel guilty about her disclosure . . . plac[ing] [A.G.] at substantial risk of emotional abuse." The juvenile court thus made the distinction that its only sustained finding was based on the alternate ground not pleaded. That is, A.G. was suffering or at substantial risk of suffering serious emotional damage and had no parent presently "capable of providing appropriate care." (§ 300, subd. (c).)
The court returned to the subject of its jurisdictional finding as it set the dispositional hearing. Restating its prior emphasis, the court stated it had not sustained any of the pleaded allegations under section 300, subdivision (c). It went on to elaborate the "factual basis" for its alternate finding. The court noted "the parents [were] not making good choices with respect to treatment on their own[, f]or example, the second SART exam . . . although not intentionally a bad decision in terms of what's best for [A.G.], [was] totally inappropriate . . . ." The parents additionally seemed unable to "relate very well" with "people making appointments and getting their needs known appropriately." The court deemed it emblematic of their inability to provide an "appropriate level of care that [A.G.] needs in order to make it through this successfully," that the parents' provider of mental health services, the Family Advocacy program (FA), had found it necessary to "put in place" "special rules" to manage the family's appointments for individual and family therapy. Finally, the court found the parents' "understandable need[] to provide support for [C.T.] interfere[d] with their ability to provide appropriate care on their own for [A.G.]."
In its written jurisdictional findings and order filed the next day, the juvenile court stated: "[t]he child is suffering, or is at substantial risk of suffering, serious emotional damage evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others because the child has no parent or guardian capable of providing appropriate care. [Her] parents cannot provide appropriate care, support and treatment for both [A.G.] and her brother [C.T.]"
In its oral ruling, the juvenile court additionally expressed negative findings— concerning what the Department had not proved by a preponderance of the evidence. (See In re Veronica G. (2007) 157 Cal.App.4th 179, 185 (Veronica G.).) In particular, the evidence did not prove the allegations under section 300, subdivisions (b) and (d), that A.G. had been molested in 2002 by the oldest brother, C.T.-2, or that Father and Mother knew or reasonably should have known of the subsequent, ongoing abuse of A.G. by C.T. The court did not regard A.G.'s symptoms as "definitive enough so that [they] should have known . . . she was being molested." The court further found the evidence did not prove the parents had not addressed A.G.'s sexual abuse trauma—as alleged under section 300, subdivision (b)—either because they had failed to follow through with her mental health appointments and because they had allowed C.T.-2 to return to the home, despite his alleged abuse of A.G. in 2002. Although there was "confusion over one or two appointments, [the parents] in general . . . kept most of [A.G.'s mental health] appointments." The court finally found the evidence had not proved the allegations under section 300, subdivision (b), to the effect that Father and Mother did not believe A.G.'s original disclosure of sexual abuse, that they blamed A.G. for C.T.'s incarceration, or that they had encouraged or forced A.G. to recant her disclosure. It was "clear" to the court there was "turmoil in the home," but there were "questions about what happened," and the evidence failed to provide a basis for jurisdiction under section 300, subdivision (b).
J.G., in the absence of any jurisdictional findings on his behalf, was returned to Father and Mother's custody on June 2, 2010. A.G., however, remained in out-of-home care pending the dispositional hearing.
2. Specificity of the Jurisdictional Finding
We agree with Mother, as discussed above, that the juvenile court did not sustain any of the allegations pleaded under section 300, subdivision (c), but rather formulated its own finding to conform to proof. Mother objects that, since the court did not sustain as true any of the ultimate facts actually pleaded, it was required to make a "specific" finding regarding the factual basis of its jurisdiction. Mother urges the court's finding lacks this requisite specificity. She reasons the court's oral ruling and its written findings were expressed differently, such that she cannot discern the finding's "precise factual basis." Mother deems the sustained jurisdictional finding to be too vague to satisfy constitutional due process. In her view, the discrepancies in the oral and written findings, taken together with all the pleaded ultimate facts the court failed to sustain, render it "difficult, if not impossible" for the parents to know what they needed to do to reunify with A.G., and deprived them of their "constitutional right to meaningful appellate review."
In the decision on which Mother chiefly relies in support of her argument, this court noted that the juvenile court's jurisdictional findings should state ultimate facts as opposed to conclusions of law or evidentiary facts, although it was sufficient to sustain as true ultimate facts properly pleaded. (See In re J. T. (1974) 40 Cal.App.3d 633, 639-641 (J. T.).) Further, due process requires the court's findings memorialize its decision in a manner sufficient both to apprise the litigants of the reasons for its decision and to provide a basis for review. (Id. at pp. 641-642.) In that case, we held the juvenile court's findings were inadequate under these principles, when they stated only that the father had " 'evidence[d] ineffectuality in assuming the care . . . of the minors,' " and the mother had " 'evidence[d] immaturity and . . . a pattern of behavior in her daily living habits and child-care . . . inimical' " to the minors' best interests, and when the underlying jurisdictional allegations were equally "conclusory" and devoid of ultimate facts. (Id. at pp. 639-642.)
We have summarized above the juvenile court's sustained jurisdictional finding in this case, made pursuant to section 300, subdivision (c). The finding essentially presents the ultimate facts of a family in crisis, in which one minor, C.T., stood accused of sexually abusing his younger half-sister, A.G., that had caused A.G. to suffer serious emotional damage as to which Father and Mother had shown themselves unable to provide appropriate care. As such, we see nothing that resembles the conclusory statements of parental "ineffectuality" and "immaturity" that we found lacking in the jurisdictional findings made in J. T., supra, 40 Cal.App.3d 633.
Moreover, we do not agree there is any significant discrepancy between the oral and written expressions of the sustained jurisdictional finding in this case. Both clearly found A.G. was suffering from, or at substantial risk of suffering, serious emotional damage, and Father and Mother were unable to provide her care appropriate to her special needs under the circumstances. The juvenile court additionally elaborated upon specific factual bases for this finding at the conclusion of its oral ruling. That is, Father and Mother had made one treatment choice—their attempt to schedule a second SART examination—that, if not an intentionally "bad decision" was, nonetheless, "totally inappropriate." Further, their pursuit of appropriate care for A.G. was hampered not only by their inability to "relate very well" with their services providers, but also by their "understandable," but necessary conflicting need to provide support for C.T.
Mother suggests the "lack of clarity" of the sustained jurisdictional finding was further muddied by subsequent events—that is, the Department inaccurately expressed the sustained jurisdictional finding in a report it later prepared for the dispositional hearing, and the court's own dispositional findings subsequently articulated "another variation" of the facts. Our concern, however, is the adequacy of the jurisdictional finding.
We conclude the court's jurisdictional finding under section 300, subdivision (c), is a "specific" statement of ultimate fact sufficient to satisfy constitutional due process, both to apprise the parents of the reasons for the juvenile court's decision and to provide a basis for meaningful appellate review.
3. Evidence Supporting the Jurisdictional Finding
Father and Mother each challenge the sufficiency of the evidence to support the juvenile court's sustained jurisdictional finding. Mother contends there was no substantial evidence that A.G.'s "problems" amounted to "serious emotional damage" within the meaning of section 300, subdivision (c). Father urges there was no substantial evidence he and Mother were not "capable of providing appropriate care" within the meaning of section 300, subdivision (c). Both parents object there was no evidence of "causation"—that is, that their inability to provide appropriate care or other offending conduct caused A.G.'s emotional suffering.
Our review is limited to an examination of the record, resolving all conflicts and drawing all reasonable inferences in support of the court's judgment, to determine whether substantial evidence supports the challenged finding. (Veronica G., supra, 157 Cal.App.4th at p. 185.) We thus summarize the pertinent evidence in the light most favorable to the juvenile court's ruling. (Ibid.)
The Department reported two prior dependency proceedings: one in 2002 in the state of Washington, involving sexual abuse of A.G. by the family's oldest child, C.T.-2 (see fn. 2, ante), and a 2006 proceeding in Contra Costa County involving allegations of physical and emotional abuse of C.T. by Mother. In the 2002 proceeding, C.T.-2 had been placed in foster care, but was later allowed to return home.
Detective Lenke of the FPD described receiving a referral from the Department in early December 2009—following A.G.'s disclosure of sexual abuse to friends at school. He interviewed A.G. at her elementary school on Travis and then conducted her to a SART examination at North Bay Medical Center in Fairfield, and to an MDIC interview at Rainbow Children's Center in Vacaville. In Lenke's opinion, A.G.'s statements were highly sexualized for her age—an indication she was "very aware and very exposed" to an environment of sexual abuse.
Later the same day, December 2, 2009, Detective Lenke interviewed C.T., who told him Mother had advised him A.G. was a "liar" who had "been making things up [about] someone climbing in her bedroom window." In this interview, C.T. eventually admitted to sexually molesting A.G. on one occasion about two months earlier, when he had broken up with his girlfriend and had "one too many" drinks. Officers arrested C.T. at that point and escorted him to Solano County Juvenile Hall. Lenke testified C.T. had subsequently been remanded for trial as an adult.
On December 2, 2009, A.G. appeared to Detective Lenke to be "open, articulate, [and] happy." In subsequent interviews, however, conducted by police and social workers, A.G.'s demeanor changed. She was observed to be "vague" and "guarded," and not forthcoming in her responses. In one interview conducted in January 2010, A.G. told a social worker her parents had told her to say "only good things."
Detective Lenke testified that when he first had contact with Father on December 2, 2009, the latter expressed concern about whether A.G. and C.T. were telling the truth. Father said both children "tend[ed] to lie . . . and he wasn't sure how he could believe" A.G.'s reported disclosures.
Later, when police executed a search warrant of the family home, Detective Lenke said Father became "very concerned" about the seizure of his laptop computer, which investigators needed to check because one of A.G.'s disclosures was that C.T. had forced her to watch pornography and had taken photographs of her. The officer who supervised the search testified that Father became very animated about the seizure, yelling and throwing up his arms, claiming the laptop contained classified material. According to Lenke, Father insisted he needed to retain the laptop because he was involved in several criminal investigations within the military and he was required to use the laptop to report electronically to his commanding officer each afternoon. Another FPD officer, Detective Jim Carden, who had examined the laptop after its seizure, testified that he found personnel documents issued by the U.S. Army to Father, but no other "Army related" or classified documents. This officer also learned Father had been placed on an "administrative type of profile," in which he could check in with his commanding officer by telephone as well as e-mail, and he further had no security clearance for classified material.
A U.S. Army personnel document and an unclassified e-mail indicates that in November 2009 Father was transferred from duty with a "heavy boat" company at Mare Island to duty with a "sustainment brigade" headquartered in Riverside, California. His duty station was his home of residence in military family housing on Travis. Father was to report his status each weekday by e-mail (evidently by means of any personal computer), and to report any change in status or "serious issue" by telephone.
A.G.'s SART examination was only partially completed on December 2, 2009, due to her discomfort with some of the procedures. The examining nurse told Father to return within a week to complete the examination. The followup was delayed until December 16, however.
Detective Lenke was present when Father brought A.G. to the medical center to complete her SART examination on December 16, 2009. Father told Lenke he had been advised by their attorney not to allow A.G. to participate in the examination and not to talk to officers any further about the case. A.G. presented a letter to the examining nurse, which she said Father and her attorney had advised her to provide whenever questioned about the case. The letter, dated December 14, 2010, had been signed by A.G., J.G., and Father, and stated A.G. and J.G. were "not to speak to anyone" regarding the "ongoing investigation," including police investigators and Department social workers. It further stated A.G. and J.G. had the "right to remain silent" and were "invoking that right," and that Father or an attorney, Izaak Schwaiger, were to be immediately notified and present before either of the children could be questioned. Lenke contacted Schwaiger, who said he had not written or authorized the letter, and had consulted with Father, but had not advised them to refuse to cooperate with the investigation.
The results of the completed SART examination reported that sexual abuse of A.G. was "highly suspected." Damage to the hymen and anal dilation were consistent with A.G.'s original disclosure of sexual abuse. Consistent with these results, the parties stipulated at the outset of the jurisdictional hearing, on April 27, 2010, that C.T. had repeatedly sexually molested A.G. over an extended period of time, in the sense that A.G. had "experienced . . . particular things" including oral copulation, sexual intercourse, and digital penetration.
The Department reported an event in late January 2010, in which the parents contacted military police at Travis to secure a written statement by A.G., whom they said wanted to "confess" inaccuracies in her original disclosure of sexual abuse. Ms. Camacho, the assigned social worker, said A.G. did not deny her disclosure of sexual abuse generally, but eventually told her trial counsel about certain inaccuracies: C.T. had forced her to watch pornography on the "big computer" and not on Father's laptop computer; C.T. had not taken photographs of her or posted photographs of her on the Internet; and, C.T. had not penetrated her with a vibrator. A.G. appeared to be particularly concerned that Father's laptop be returned to him.
Diane Foster was a clinical social worker for the FA program at Travis, who had been assigned in early December 2009 to provide family therapy for Father, Mother, A.G. and J.G. She worked in conjunction with the therapists who provided individual therapy for each of these four family members. Foster said a therapist usually joined her in the initial family therapy sessions, which were "stressful" because Father and Mother did not appear to believe A.G.'s disclosure of sexual abuse. The parents had made progress, however, in the intervening weeks, and Foster thought they believed A.G.'s disclosure "on some level." In Foster's opinion, both parents wanted to support both A.G. and C.T., but were very "conflicted."
The initial jurisdictional report stated Foster and the individual therapists discussed the family's case at monthly FA staff meetings. There appeared to be a consensus the parents were "limited in their ability to manage the stress" of their situation.
A Department social worker who conducted the initial interviews with Father and Mother testified that neither believed A.G.'s disclosures at that time—Father commented A.G. had been lying and stealing, and Mother said it was not in C.T.'s "nature" to molest A.G.
In its jurisdictional addendum report filed on May 12, 2010, the Department said there had been concerns throughout the case the parents did not believe A.G.'s disclosures and failed to understand either the trauma she had suffered over four years of sexual abuse or the stress she was experiencing as a result of C.T.'s incarceration. A.G.'s attempts to recant—to "make things better"—and other behavior indicated the parents were continuing to have inappropriate discussions where she could overhear them, concerning their own stress over marital, financial, and legal issues engendered by the criminal proceeding against C.T.
Mother reported to Camacho on May 4, 2010, that A.G. had told Mother and Ronnie, a friend of Mother's, that she had "made it all up." Mother expressed relief that A.G. was now telling the truth. Two days later, Mother told Camacho she did not want A.G. to "testify" and did not want her to speak with Detective Lenke because A.G. was afraid of him.
Camacho reported discussions she had with A.G.'s elementary school teacher, who reported A.G. was failing most subjects and not doing well in school. A.G. had told the teacher that Father and Mother had been selling tools and jewelry to pay for C.T.'s criminal defense attorney. The parents did not seem supportive of A.G.'s academic performance—they did not ensure she completed her homework and had not followed through with her recommendation that A.G. obtain a tutor or join a homework study group. Father had told the teacher A.G. was "just lazy" and declined to have A.G. evaluated for special education services. The teacher, Laurie Bailey, testified she was additionally concerned about A.G. because she had observed A.G. crying at school, and she otherwise appeared "withdrawn," wearing a coat even when the weather was warm.
Kim Huerta, a social worker who interviewed A.G. on May 7, 2010, reported A.G. had said it was "really embarrassing"—she had told some lies about C.T., but finally had "told the truth" to Mother and Mother's friend Ronnie the previous week. A.G. explained that her change of story came after both Mother and Ronnie had accused her of lying and she began to cry and "broke." A.G. believed that, as a result, she would "not have to go to court anymore and [C.T. would] be coming home soon." Huerta said that in her experience, young victims of sexual abuse often "recant[ed] when things change at home," and in her opinion A.G. had similarly "change[d] her story" because of the stress at home following C.T.'s arrest.
Camacho spoke with A.G.s individual therapist on May 11, 2010, and reported the therapist said her change of story was "predictable" and motivated by her desire "to help [C.T.] get out of jail." A.G. simply wanted "this to all go away." In his last session with A.G., she had not denied her original disclosure of sexual abuse, but said she wanted things to "get better." A.G.'s therapist had earlier reported that, even at her young age, A.G. had "different" views of sexuality and relationships with boys, and that she "continue[d] to struggle with responsibility and guilt" over C.T.'s arrest and the Department's intervention.
On May 12, 2010, a Department social worker participated in a conference call with Foster and two other FA staff members at Travis, concerning a family therapy session conducted the previous day. Father, Mother, A.G., and J.G. were present in this session. When Father was asked what was the biggest problem in his life, Foster observed A.G. to clasp her hands and mutter, "[D]on't say me." Father responded by saying, among other things, that A.G. was a "problem" and the "the reason" the family had to participate in services. He said A.G. had failed to learn lessons he had given her about "honesty and telling the truth." Foster testified that A.G. quietly responded at this point by agreeing and referring to herself in the third person stating, "Yep, that's right, [A.] doesn't tell the truth." In contrast, Father said J.G. was not a problem, but was "perfect." During this conference call, the social worker also learned that Mother, in an individual therapy session on May 5, had said she "knew [A.G.] was lying all along . . . ."
Clark Jackson, Chief of the FA program at Travis, testified that the family was referred to FA on December 2, 2009. When he first spoke with Father on December 15, the latter was disappointed and upset when he was informed there was nothing that could be done to prevent A.G.'s completion of the SART examination, which had been scheduled for the following day. Jackson said it was necessary for the family to attend five weekly sessions at FA—a weekly family therapy session with Foster and four individual therapy sessions for Father, Mother, A.G., and J.G, respectively. Jackson related an event in December 2009, in which A.G. had been a "no show" for her weekly individual therapy session, and Father later spoke to administrative staff at the FA front desk, in an effort to have the facility's record of this "no show" changed to "cancelled." Jackson felt it necessary to intervene "to bring about a corrective experience," and subsequently gave an assistant the task of being the "conduit" or manager of the family's appointments. Jackson stated the FA staff met regularly about the family's sessions, and he currently had a "high level of concern" because the parents had initially questioned A.G.'s integrity in her presence and described her as a "problem," and, although they had expressed disbelief in A.G.'s original disclosure of sexual abuse, they had readily expressed their belief in her change of story.
In light of the foregoing evidence, we disagree with Mother's contention there was no substantial evidence to support the juvenile court's finding that A.G. "suffer[ed], or [was] at substantial risk of suffering, serious emotional damage evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others . . . ." (§ 300, subd. (c).) Although a psychological evaluation or an assessment by A.G.'s individual therapist would certainly have been helpful in this regard, nothing in section 300, subdivision (c), requires such evidence to prove "serious emotional damage." In our view, the evidence presented by the Department was sufficient to draw a reasonable inference that A.G. suffered from "serious emotional damage" characterized by "withdrawal."
The evidence showed A.G. was a victim of ongoing serious sexual abuse by her older half-brother for a period of several years that ended shortly after her 10th birthday. The evidence of the extent and severity of this abuse—together with the reasonable inference to draw concerning the damaging effect of such abuse on a young child's mental health—is alone sufficient to distinguish A.G.'s case from the minors described in the decisions cited by Mother that found insufficient evidence of serious emotional damage. (See, e.g., Nahid H. v. Superior Court (1997) 53 Cal.App.4th 1051, 1070.)
In addition, A.G. in her initial interviews in early December 2009, was observed to be "open, articulate, [and] happy." Yet after living in the home in the weeks following C.T.'s arrest,—a time during which her therapist noted she continued to struggle with guilt over the effects of her disclosure—A.G.'s demeanor changed to one that was "guarded" and not forthcoming. Her elementary school teacher observed A.G. become withdrawn, often hiding herself in a coat regardless of the weather. Her academic performance deteriorated such that she was failing in most subjects. We conclude there is substantial evidence to support the finding of "serious emotional damage" under section 300, subdivision (c).
Both Father and Mother cite particularly to In re Alexander K. (1993) 14 Cal.App.4th 549 (Alexander K.), in support of the claim there was no substantial evidence of conduct on their part supporting a jurisdictional finding under section 300, subdivision (c). Mother reasons the decision in Alexander K. requires "causation between [A.G.'s] withdrawn behavior and the parents' inability to provide appropriate care." Father similarly urges that the analysis of section 300, subdivision (c), in Alexander K. requires evidence of abusive, neglectful, or exploitive parental misconduct that causes any of the serious symptoms described in the statute.
The situation in Alexander K., involved alleged offending parental conduct that resulted in the minor's serious emotional damage. (See Alexander K., supra, 14 Cal.App.4th at pp. 557-559.) Hence, the reviewing court in that case stated that proof of such an allegation under section 300, subdivision (c), required proof of "offending parental conduct," "causation," and resulting in "serious emotional harm." (Alexander K., supra, at p. 557.) Jurisdiction under section 300, subdivision (c), however, is appropriate not only in this situation, but also when a child is shown to have "serious emotional damage" and the parents are not "capable of providing appropriate care." (§ 300, subd. (c); see fn. 5, ante.)As we have noted, the juvenile court in this case explicitly sustained its jurisdictional finding on this alternate statutory ground. Thus, unlike the situation in Alexander K., it was not necessary to prove that offending parental conduct was the cause of A.G.'s serious emotional damage. As the court in Alexander K., observed, section 300, subdivision (c), permits judicial intervention not only when parental conduct can be shown to have caused a child's serious emotional damage, but also when a "child is suffering serious emotional damage due to no parental fault or neglect, but the . . . parents are unable themselves to provide adequate mental health treatment." (Alexander K., supra, at p. 557, italics added.)
The only remaining issue is whether there is substantial evidence to support the juvenile court's finding that Father and Mother were not "capable of providing appropriate care." (§ 300, subd. (c).) Father notes the evidence showed the parents had arranged and had followed through with mental health treatment for A.G.—with the exception of one missed appointment—in the form of individual and family therapy sessions at FA. Father suggests that, since the court did not find this treatment to be inadequate in addressing A.G.'s emotional damage, the evidence failed to establish the parents' inability to provide adequate treatment on their own. He further challenges the adequacy of specific facts recited by the court in support of its determination the parents were incapable of providing appropriate care—that is, the parents' attempt to schedule a second SART examination and their inability to relate well with their mental health providers and make their needs known appropriately. In Father's view, such facts showed only "run-of-the-mill" parenting errors that were insufficient to show an incapacity to provide appropriate care.
We first note the operative statutory language describes a situation in which there is "no parent . . . capable of providing appropriate care." (§ 300, subd. (c).) While providing adequate mental health treatment is undoubtedly a component, it is not necessarily the only aspect of appropriate care. Father's reference to his and Mother's "run-of-the-mill" errors overlooks one of more critical facts recited by the juvenile court in support of its finding—that the parents' "[need] to provide support" for C.T. interfered with their "ability to provide appropriate care" for A.G. It is clear to us the court's use of "appropriate care" in this context refers not to adequate mental health treatment, but to Father and Mother's ability to provide A.G. with support in the home that was appropriate to address the serious emotional damage she was suffering as a result of C.T.'s sexual abuse.
This construction is supported by the subsequent language of section 300, subdivision (c), which uses "adequate mental health treatment" in a more limited context, providing that "[n]o child shall be found to be a person described by this subsection if the willful failure of the parent . . . to provide adequate mental health treatment is based on a sincerely held religious belief and if a less intrusive judicial intervention is available." (§ 300, subd. (c).)
As summarized above, the evidence showed that Father and Mother expressed to police, social workers, and their therapists their initial disbelief of A.G.'s disclosure. Father's actions to forestall completion of the SART examination on December 16, 2009, by invoking A.G.'s "right to remain silent," evidenced a greater concern for C.T.'s potential criminal liability than any desire to verify A.G.'s disclosure. Even after the parents were advised that the SART examination results showed sexual abuse of A.G. was "highly suspected," their attempt to schedule a second SART examination showed more their mistrust of the results of the first examination, as opposed to any concern that these results were consistent with, and supported, A.G.'s disclosure.
In the early stages of the proceeding, Father appeared to be far more preoccupied with the seizure of his laptop computer—to the point that he falsely claimed it contained classified material—than with how he might best support his 10-year-old daughter following her disclosure of years of sexual abuse by a family member. Whether or not it was Father's intention, this preoccupation became known to A.G., whose primary concern in seeking to clarify details of her disclosure in January 2010 was evidently to secure the return of the laptop to Father.
The parents' chief concern over A.G.'s "confession" in January 2010 was to have it recorded by the authorities. Later, when A.G. "broke" in early May 2010, and said she had "made it all up," Mother expressed relief that A.G. was finally telling the truth. In contrast, A.G.'s therapist reported that such a recantation was predictable and A.G., in a recent session, had not so much denied her original disclosure as she had expressed a desire that C.T. be released and that the whole problem "go away." Later in May, Father expressed doubts about A.G.'s honesty and integrity in a family therapy session. A.G., who was present, was by then so demoralized she sought to distance herself from herself, stating quietly, "Yep, that's right, [A.] doesn't tell the truth." The head of FA expressed deep concern over the parents' continuing expressions of disbelief in A.G.'s disclosure, in contrast with their readiness to accept her efforts to recant.
According to A.G.'s elementary school teacher, A.G. had become withdrawn and had been seen crying, telling the teacher her parents were selling their possessions in an effort to fund C.T.'s criminal defense. Although A.G. had begun to fail most of her subjects, Father and Mother had not attempted to help her with schoolwork. Father said A.G. was "just lazy" and declined efforts to obtain tutoring or special classes for her.
It is true the juvenile court found the evidence had not shown Father and Mother did not believe A.G.'s original disclosure of sexual abuse, nor that they blamed A.G. for C.T.'s incarceration, nor that they had encouraged or forced A.G. to recant her disclosure. However, the court emphasized the evidence of these facts was insufficient to the extent the Department sought to establish jurisdiction under section 300, subdivision (b). In other words, the proof of these facts was not sufficient to show that A.G. was at substantial risk of suffering "serious physical harm or illness, as a result of the failure or inability of . . . her parent[s] to adequately supervise or protect [her]." (§ 300, subd. (b).)
In our view, the foregoing evidence was still relevant in the context of determining that Father and Mother were not "capable of providing appropriate care," under section 300, subdivision (c). We conclude, moreover, that this evidence provides substantial support for the court's finding to that effort, particularly in that Father's and Mother's efforts to support C.T. in his criminal proceedings had interfered with their ability to provide support for A.G. at home and at school that was appropriate in light of the serious emotional damage she had suffered as a result of C.T.'s sexual abuse. The parents may not have intentionally sought to encourage A.G. to recant her original disclosure, and they may not have intended that she overhear their expressions of disbelief, or their worries engendered by C.T.'s criminal proceeding. Nevertheless, the evidence shows that their disbelief and worries were somehow communicated to and incorporated by A. G. in the home, to her evident distress. It further shows Father and Mother were evidently not capable of remedying this problem by providing her with support appropriate for her circumstances. B. The "Removal Finding" Under Section 361, Subdivision (c)(3)
1. Introduction
"A dependent child may not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence" of the circumstances detailed in one or more of the enumerated subparagraphs of section 361, subdivision (c). (§ 361, subd. (c).)
At the conclusion of the dispositional hearing on June 24, 2010, the juvenile court ruled that it intended to follow the Department's recommendations—that A.G. remain in out-of-home care and that reunification services be provided to Father and Mother. In its written dispositional findings and orders, filed June 28, 2010, the court found there was clear and convincing evidence of the circumstances set out in section 361, subdivision (c)(3). In effect, it found A.G. was a "minor . . . suffering severe emotional damage, as indicated by extreme anxiety, depression, withdrawal, or untoward aggressive behavior toward . . . herself or others, and there [was] no reasonable means by which [her] emotional health [could] be protected without removing the minor from the physical custody of . . . her parent . . . ." (§ 361, subd. (c)(3).)
The juvenile court also found there was clear and convincing evidence of the circumstances set out in section 361, subdivision (c)(1)—essentially, that "there [was] or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of [A.G.] if [she] were returned home, and there [were] no reasonable means by which [her] physical health [could] be protected without removing [her] from [her] parent's . . . physical custody." (§ 361, subd. (c)(1).) This appears to have been a clerical error made in the preparation of the Judicial Council forms that the court signed and filed on June 24, 2010, as its formal dispositional findings and orders. The court's sole jurisdictional finding was made under section 300, subdivision (c), and its correlative removal finding is expressed in section 361, subdivision (c)(3). There is no indication in the record that the Department recommended an additional removal finding under section 361, subdivision (c)(1), either in its reports or argument. To the contrary, in its evaluation in the addendum dispositional report, filed on June 14, 2010, the Department focused on the parents' inability to protect A.G.'s "emotional needs," reflecting the language of section 361, subdivision (c)(3). Accordingly, we focus on the sufficiency of the court's dispositional finding under section 361, subdivision (c)(3).
On July 13, 2010, the juvenile court filed "Additional Findings After Contested Dispositional Hearing." These included a finding that the "family ha[d] suffered a series of emotionally traumatic events." These events began when "[A.G.] alleged that her older brother had been continually molesting her for years." As a result, C.T. was "arrested, jailed, and eventually charged in criminal court with serious crimes." Father and Mother "investigated bail but could not raise sufficient funds to pay it." Police officers "removed [A.G.] from school, caused her to be medically examined and interviewed without her parents' knowledge, consent and presence," "withheld information from [Father] as to the nature of the investigation and denied [10-year old A.G.] the comfort of her father's presence during the examination," "denied [Father] access to his house while it was being searched," and "searched, seized and removed property without his permission." "Authorities withheld much information from the parents," and the Department "intervened, requested removal, and eventually convinced the court to remove [A.G. and J.G.] from the household." The Department "required the family to attend daily or almost daily counseling sessions that included both individual and as a family counseling," and "obtained releases of information and [submitted] confidential statements and observations" at the jurisdictional hearing. These disclosures "damaged the parents' trust in their [therapist-patient] relationship[s]" such that Father and Mother replaced the family therapist. "Many of the parents' attempts to bring information to the attention of the authorities, to find out what happened, to exercise some control over their daughter's medical examination, and to arrange for and participate in counseling were . . . scrutinized, criticized, and eventually used against them," and "[s]ome of their emotional reactions to the traumatic events also came to the attention of the authorities and were similarly treated."
The juvenile court emphasized the actions of the Department, mental health providers, the attorneys, and the police officers investigating C.T.'s criminal case were neither "improper or even unusual," although it recognized such actions could have "traumatic impact" on family members having to deal with them. The court found, nevertheless, that in "the context of those traumatic events, the parents communicate to [A.G.] that she is the cause of the problems and that she holds the key to their resolution." While the court expressed sympathy for the parents' circumstances, it found it did not matter whether the parents did "not intend for [A.G.] to receive that message or even [whether] they ha[d] good motives guiding their conduct." The court found the parents "ha[d] made insufficient progress" to permit it either "to dismiss jurisdiction or return [A.G.] to their care with family maintenance services."
2. Evidence Supporting the Removal Finding
Both parents contend there was not substantial evidence to support the dispositional finding under section 361, subdivision (c)(3), which was necessary to order A.G.'s removal from their physical custody.
Father points to the jurisdictional findings, in which the juvenile court ruled there was not a preponderance of evidence to find the parent's conduct had caused A.G.'s "turmoil," and urges the additional evidence subsequently produced at the dispositional hearing—which he largely regards as "subjective" opinions expressed by the social worker—was not sufficient to show by the clear and convincing evidence standard of proof that there were no reasonable means to protect A.G.'s emotional health other than to remove her from parental custody. He further objects to the court's additional finding, that the parents had not made sufficient progress to return A.G. to her home immediately under family maintenance supervision. According to Father, the Department not only failed in its burden of proof, but sought to disrupt the "family's right to remain together" for an improper purpose—to "insulate" A.G. in order to ensure she gave the "correct" testimony in C.T.'s criminal proceeding.
Father objects to the Department's rejection of A.G.'s placement with either her paternal grandmother or the family friend with whom A.G. had been placed briefly in May 2010, because both had expressed disbelief in the veracity of A.G.'s original disclosure of sexual abuse.
The reviewing court in In re James T. (1987) 190 Cal.App.3d 58 (James T.), characterized former section 361—in particular the provisions that set out the then existing circumstances under which a juvenile court could make a dispositional order directing a minor's removal—as including "only extreme cases of parental abuse or neglect." (James T., supra, at p. 65.) Citing this proposition, Mother argues the evidence presented at the dispositional hearing failed to rise to a level of "extreme" abuse or neglect justifying removal. In other respects, Mother's arguments are similar to Father's: the social worker's testimony comprised only a "subjective belief[]" regarding the parents' lack of progress in accepting A.G.'s original disclosure of sexual abuse, which was insufficient to prove the need for A.G.'s removal; the Department improperly sought to "preserve [A.G.'s] testimony" for C.T.'s criminal proceeding; and other evidence of the parents' actions, such as their decision to replace their family therapist, fell short of showing the type of misconduct requiring A.G.'s removal from the home. Mother, too, joins Father in complaining that the state of the evidence supported a determination to return A.G. to the home under a plan of family maintenance, but not a determination to continue A.G. in out-of-home custody.
On this point, Mother urges the juvenile court's reliance on the social worker's "unsupported subjective opinion"—in determining whether Mother had accepted A.G's original disclosure of sexual abuse—was not only insufficient to support the removal finding, but threatened Mother's constitutional due process rights. She cites Cynthia D. v. Superior Court (1993) 5 Cal.4th 242 for proposition that California's dependency scheme does not violate parents' rights of constitutional due process, in part, because it imposes a higher level of clear and convincing standard of proof for removal from the home. (Id. at pp. 253-254.) Mother reasons that the reliance on "such subjective value judgments" in making a removal determination undermines this statutory protection of her due process rights.
In reviewing the removal finding under section 361, subdivision (c)(3), we examine the record in the light most favorable to the juvenile court's ruling to determine whether there is substantial evidence from which a reasonable trier of fact could make the necessary finding under the clear and convincing standard of proof. (In re Mariah T. (2008) 159 Cal.App.4th 428, 441 (Mariah T.); see also In re Isayah C. (2004) 118 Cal.App.4th 684, 694-695.)
In making its determination, the juvenile court reviewed the Department's prior detention and jurisdictional/dispositional reports summarized above. In addition, the court considered a subsequent dispositional addendum prepared by Camacho,—who continued to be the assigned social worker—a report filed June 14, 2010, prepared by Camacho, as well as Camacho's testimony at the dispositional hearing.
Camacho reported she expected A.G. would "continue to struggle" in the upcoming school year as she had the previous school year, and said that her educational surrogate, appointed by the juvenile court on June 1, 2010, had requested A.G. be tested for special education classes—a request Father had previously declined to make.
Camacho reported a family therapy session that occurred a week after the jurisdictional hearing, on June 8. In this session, Father and Mother had "fired" Foster, accusing her of "backstabbing" and "betraying" them with her testimony during the jurisdictional hearing. Father told Foster it was her testimony "that kept [A.G.] in foster care." At this point, the parents' cursing and yelling apparently precipitated removal of A.G. and J.G. from the session to a waiting room. Father demanded to see the officer in charge in order to file a complaint.
Mother told Foster she did not want A.G. to know that J.G. had been returned to the home following the jurisdictional hearing. When Foster informed the parents that A.G. had been told of J.G.'s return by her individual therapist, the parents again started "screaming" and "berat[ed]" Foster.
Camacho testified Mother wanted to be the person who eventually informed A.G. of J.G.'s return home, that meanwhile she wanted to delay giving A.G. this information, and would "take her chances" that A.G. might feel lied to because she had not been told sooner. A.G.'s individual therapist, however, felt it was appropriate to inform A.G. in a therapeutic setting, and the two had been "able to work through [A.G.'s] feelings [about] being left in foster care [while] her sibling [was] returned home.
Foster stated this was not the first time the parents had spoken to her in such a manner. Her current assessment, after six months of family therapy, was that they had made no progress and had, in fact, " 'spiraled further out of control.' " Foster reported that she would continue providing family therapy until advised otherwise. According to Camacho, however, the parents subsequently obtained a new family therapist, and had their first session with her the week before the dispositional hearing.
With respect to A.G., her foster caregiver reported she was "adjusted" and "comfortable" in the home and had the support of two teenage foster children in the same home. A.G. had established a good rapport with the caregiver. A.G. had told Camacho she was "comfortable" in the foster placement. Camacho said the caregiver had reported that A.G. was exhibiting sexualized behavior, was working with A.G. to develop more "appropriate" behavior, and had passed on her observations to A.G.'s individual therapist.
A.G. otherwise made it clear to the juvenile court, through her trial counsel, that she did, nevertheless, desire to return home.
On the other hand, A.G. had not been observed to exhibit "any depressed type of demeanor" in her foster placement. As Camacho described it, the "big difference" with A.G. was that she had not been observed to exhibit "guilt or sadness" in her foster placement. This, in Camacho's opinion, indicated A.G. was currently in an environment free of the "looming stress" she had experienced at home before her removal. Camacho felt this was important because it was anticipated A.G. might be subpoenaed to testify in the preliminary hearing in C.T.'s criminal proceeding, scheduled for the following month. Camacho did not believe Father and Mother were capable of handling their emotional stress over the upcoming criminal proceedings, and at the same time "provid[e the] emotional support and stability" that A.G. needed during this time.
Camacho recommended A.G. be continued in out-of-home care for the time being, as it had been only a few weeks since the jurisdictional hearing and Father and Mother had demonstrated little or no progress in that brief period.
Viewing the foregoing evidence—as well as that included in the prior reports considered by the juvenile court—in the light most favorable to the court's ruling, we initially reject both parents' assertion that the Department was engaged in an improper purpose by seeking to "preserve" A.G.'s anticipated testimony at C.T.'s preliminary hearing, or to "insulate" her to ensure she gave the "correct" testimony. We draw only those reasonable inferences favorable to the court's ruling. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) The reasonable inference to be drawn from this evidence was that, regardless of whether A.G. was required to testify or not, her parents were undergoing a great deal of emotional stress at the time of the dispositional hearing, and that stress would continue at least until the outcome of C.T.'s preliminary hearing. The evidence indicated both that Father and Mother continued to exhibit volatile behaviors when subjected to such stress, and that such behaviors appeared to limit significantly their capacity to provide A.G. with the emotional support and nurturing she needed to handle her own emotional distress during this time.
Nor do we consider the evidence to consist largely of "subjective" and unfounded opinions expressed by Camacho. Her opinions were informed by Foster's assessment of the parents' progress, by the foster caregiver's observations, the educational surrogate's input, and by interaction with A.G. herself, as well as other sources—including the paternal grandmother, who was by then visiting in the family home and had expressed disbelief in A.G.'s disclosure. Further, in the brief time since Father and Mother had "fired" Foster and obtained a new family therapist, there was no indication they had had an opportunity to make progress in their family relationships following Foster's assessment that they had been " 'spiraling out of control.' "
In its "additional" dispositional findings, summarized above, the juvenile court in this case carefully delineated its understanding of the significant stressors to which Father and Mother had been subjected by C.T.'s criminal proceeding, the police investigation, and the intervention into their lives by both the Department and the court. The court determined, that however well-intentioned they might have been in all their actions, the evidence, nevertheless, showed they had made "insufficient progress" to permit the court either to dismiss its jurisdiction or return A.G. immediately to their care with family maintenance services. The issue, in other words, was not whether the parents' conduct was blameworthy—it was simply that A.G. was a "minor . . . suffering severe emotional damage. . . and there [was] no reasonable means by which [her] emotional health [could] be protected" without continuing to keep her in out-of-home care at the time of the dispositional hearing. (§ 361, subd. (c)(3).)
We are satisfied there was substantial evidence by which a reasonable trier of fact could have made a challenged finding under section 300, subdivision (c), under the clear and convincing standard of proof. (Mariah T., supra, 159 Cal.App.4th at p. 441.) C. Reasonable Services
The juvenile court's dispositional findings included one to the effect that the Department had made reasonable efforts to return A.G. to a safe home by providing reasonable services designed to aid the parents in overcoming the problems that led to her initial removal. Mother challenges this finding, claiming the Department failed to ensure the family was provided with adequate therapy services because Foster—the family therapist—"was essentially serving as an investigator for the Department and putting its interests above her clients[']." Mother further contends the Department failed to give the parents a timely referral to an appropriate, "available" parenting class, failed to give them a referral they had requested—a support group for parents of sexually abused children, and failed to develop a safety plan regarding their "discussions in the home."
Mother additionally challenges the reasonableness of her reunification case plan, complaining it was "vague and non-specific" and lacked a "clear statement" of what she was expected to do to reunify with A.G.
Mother additionally complains that the case plan calls for her to complete an "overly broad" authorization for release of information by her mental health treatment providers. There is, however, nothing in the record to indicate that the juvenile court has had an opportunity to consider this objection in the first instance. Further, Mother objects to the fact that her prior release is not included in the record. Camacho testified, however, she had obtained such releases from the parents, and this testimony is sufficient to establish the fact. (See People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884-885.)
We review the finding of reasonable services to determine whether it is supported by substantial evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762; see In re Julie M. (1999) 69 Cal.App.4th 41, 46.) Services may be deemed reasonable when the case plan has identified the problems leading to the loss of custody, the Agency has offered services designed to remedy those problems, has maintained reasonable contact with the parents, and has made reasonable efforts to assist the parents in areas in which compliance has proven to be difficult. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.)
Here, Mother's case plan called for her to "show acceptance and support of the disclosure made by [A.G.]," not to allow contact between A.G. and C.T., and to "show [her] ability to understand [A.G's] feelings and give emotional support" by being "nurturing and supportive" during visitation. To accomplish these goals Mother was to participate in mental health services focusing on, among other things, setting appropriate limits, parenting a sexualized child, and understanding the effects of sexual abuse on young children. She was also to complete a parenting course, attend a parenting seminar in June 2010 focusing on "Parenting Children who have Multiple Impacts," and participate in family therapy sessions. In our view, this plan provides a clear statement of specific goals to remedy the problems leading to loss of custody, and offers services designed to achieve those goals.
With regard to Mother's complaint about Foster, the FA social worker assigned to provide family therapy, the record indicates in the prior dependency proceeding that originated in Contra Costa County, Father reported that the FA program at Travis was the "CPS of the military," and that noncompliance with that program was "not an option" for active military personnel. Mother herself subsequently reported she wanted to continue services at FA, saying "believe me, if we don't, they will get us." As such, it appears the Department cannot be faulted for referring the parents to FA, which in turn assigned Foster to handle their family therapy. Nor are we persuaded Foster was acting against Mother's interests on the Department's behalf. When Foster testified she noted she was doing so under subpoena, and was concerned about the possible negative impact it might have on her therapeutic relationship with Father and Mother.
With respect to the referral for parenting education, Camacho stated at the dispositional hearing the parents had enrolled in a class entitled "Parent Project Senior," but she felt it might not be appropriate as it focused on parenting children age 11 years or older. Father and Mother had assured Camacho the provider had said the class was appropriate, but as the provider was on vacation, Camacho had been unable to verify that information by the time of the hearing. A class that Camacho felt was more age appropriate did not begin until September, and she had been unable to locate another such class that the parents could begin immediately. Nor had she been able to identify other "parenting-type support groups" although she had been "searching the Bay Area." This testimony demonstrates reasonable efforts by Camacho to assist Mother in meeting her parenting education requirement, at least at the time of the dispositional hearing. The standard for services is not whether the Department could have provided better services in an ideal world, but whether the services were reasonable under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
In sum, we find no merit in Mother's objections to the reasonableness of her services and her case plan. D. ICWA Compliance
The initial petition alleged A.G. and her younger brother were, or might be, members of or eligible for membership in one of the Cherokee tribes. In January 2010, the Department sent notices with ancestry information provided by both parents to the Cherokee Nation of Oklahoma (CNO), the United Keetoowah Band of Cherokee Indians in Oklahoma, and the Eastern Band of Cherokee Indians in North Carolina. Two months later, the Department filed ICWA compliance documents, which included a letter from CNO requesting further ancestry information. In June 2010, the Department sent the three tribes additional notices.
Mother's final objection is that these notices were defective, primarily because of discrepancies in the ancestral information provided in each of the two rounds of notices and in comparison with the ancestral information provided in the earlier notices sent in 2006 by the Contra Costa Children and Family Services. She also objects there was no proof of the tribes' receipt of the second round of notices. She argues we must reverse and remand the matter on this issue with directions requiring the Department "to provide accurate information" about family relatives available from the record and from its investigation. Father adopts this contention by reference.
We need not consider these claims. On August 4, 2011, we granted a motion by the Department seeking to augment the record on appeal to include a minute order entered by the juvenile court on July 27, 2011, in which it terminated dependency jurisdiction and vacated further proceedings.
On August 17, 2011, on further consideration after Father and Mother filed opposition to the motion to augment, we vacated the August 4, 2011 augmentation order and deferred ruling to this opinion. We hereby grant the motion to augment for the limited purpose of considering Father and Mother's ICWA claims.
ICWA applies only when an "Indian child" is the subject of a "child custody proceeding," as these terms are defined by the Act. (See 25 U.S.C. §§ 1903, 1911.) The juvenile court, during the pendency of these consolidated appeals, has concluded A.G.'s dependency proceeding and terminated its dependency jurisdiction. We, on the other hand, have otherwise found no basis for a reversal that would require the juvenile court to retain its jurisdiction. Simply put, A.G. is no longer the subject of a "child custody proceeding." A reversal only for the purpose of requiring the Department to comply with ICWA could not provide A.G., Mother or Father, or any of the three Cherokee tribes with meaningful relief. Accordingly, we conclude Mother's contentions regarding ICWA notice are moot. (See In re Melissa R. (2009) 177 Cal.App.4th 24, 34.)
DISPOSITION
The dispositional order is affirmed.
Marchiano, P.J. We concur: Dondero, J. Banke, J.