Opinion
D059984
08-18-2011
VANESSA S., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Diego County Super. Ct. No. NJ13659A)
PROCEEDINGS for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Michael J. Imhoff, Commissioner. Petition denied; request for stay denied.
Vanessa S. seeks writ review of juvenile court orders setting a Welfare and Institutions Code section 366.26 hearing regarding her daughter, Alexis S. She contends the juvenile court erred by finding that active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of her Indian family under the requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). We deny the petition.
Statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Alexis was taken into protective custody in May 2007 because of domestic violence between Vanessa and her boyfriend. The San Diego County Health and Human Services Agency (the Agency) petitioned on Alexis's behalf under section 300, subdivision (a). Vanessa stated she had Cherokee Indian heritage. In May 2007, and, after Vanessa supplied more information in January 2009, the Agency sent ICWA notice to the Cherokee tribal entities and to the Bureau of Indian Affairs. Based on the responses received, at hearings in August 2007 and in June 2009, the court found ICWA did not apply.
The court found the allegations of the petition to be true, ordered Alexis placed in foster care and ordered Vanessa to participate in reunification services. Vanessa's case plan included individual therapy, a domestic violence victims' group, a psychological evaluation, a medication evaluation, parenting classes and participation in a support group for adults who had been molested as children. Alexis had behavior problems in foster care and during the first six months, she was moved to five different placements because she defied her caregivers and was aggressive toward other children.
Vanessa did not participate in reunification services during the first four months of Alexis's dependency. In August 2007 she gave birth to her second child, and he was taken into protective custody. After the child's birth, Vanessa began to engage in services and visited both children. At the six-month review hearing in January 2008, the court continued services.
This child later died of complications from pneumonia while in foster care.
By the 12-month hearing, Vanessa had stopped participating in the domestic violence group, was inconsistent in attending therapy and her visits became supervised again. At the 12-month hearing in November 2008, the court terminated her services and set a section 366.26 hearing.
Meanwhile, Alexis's aggressive behavior had decreased substantially. In February 2009 she moved to the foster home of Chris and Ron G. (the G.'s). They reported they had no concerns about her behavior. Alexis thrived in the G.'s home and they wanted to adopt her. She had a close relationship with them and with their eight-year-old daughter, whom she referred to as her sister.
At a contested section 366.26 hearing in August 2009, the court terminated parental rights and referred Alexis for adoption.
Vanessa appealed the order terminating her parental rights. In October 2009, while the appeal was pending, she gave birth to twin sons. The twins were taken into protective custody and dependency proceedings were initiated. The G.'s took Alexis to visit Vanessa at the residential treatment center where she was living and they had telephone contact as well. In March 2010 the G.'s neighbors received anonymous letters claiming Alexis was being abused and sexually molested by the G.'s. Investigation revealed the claims were unfounded. The G.'s suspected Vanessa was responsible for the letters and decided to suspend contact.
In June 2010 this court reversed the order terminating parental rights and remanded the matter to the juvenile court for the limited purpose of conducting further investigation into Vanessa's claim of Cherokee heritage and to provide proper ICWA notice. The court found the Agency had not performed an adequate investigation into Vanessa's claim of Indian ancestry, and, thus, the ICWA notices had lacked significant information to determine whether Alexis was an Indian child. The court directed that if Alexis were determined to be an Indian child to proceed in conformity with ICWA. (In re Alexis S. (June 18, 2010, D056003) [nonpub. opn.].)
The Agency inquired further into Vanessa's claims of Indian heritage and again sent ICWA notice. In August 2010 the Cherokee Nation (the Tribe) informed the Agency that Alexis and the twins were eligible for enrollment in the Tribe. Based on this information, the juvenile court found Alexis is an Indian child within the meaning of ICWA. It set a new dispositional hearing, ordered the Agency to make active efforts to prevent the breakup of the Indian family in accordance with ICWA requirements, ordered visitation between Alexis and Vanessa and authorized appointing a therapist to facilitate the visitation.
Meanwhile Vanessa had completed her residential program and moved to a transitional program. In August 2010 the twins were placed with her.
It was planned that Alexis and Vanessa would begin resuming contact by Vanessa writing Alexis a letter, which the social worker would read to her. In January 2011 the social worker read Vanessa's first letter to Alexis, showed her the photographs Vanessa had enclosed and asked her if she would like to see Vanessa. Alexis said she would. Later in January, Alexis began therapy. The therapist advised it would take about four sessions to build rapport before she would recommend a visit.
After several therapy sessions, Alexis's therapist said Alexis did not want to talk about Vanessa during therapy. The therapist stated she believed reinstating visits would place Alexis at risk of emotional harm. The social worker also recommended not resuming visits. She opined that visits with Vanessa would disrupt Alexis's sense of stability and confuse her. Alexis had lived with the G.'s for two years. She had thrived in their home, and they wanted to adopt her. Alexis asked them, "When are you going to adopt me so that I don't have to move again?" She said she wanted to stay with "her mommy and daddy and sister forever." Alexis's therapist said if the court ordered visitation, the visits should be in a highly supervised setting.
The psychologist who evaluated Alexis said because of the instability Alexis had experienced in the past, she had fairly low self-esteem and a fear that she would lose her stability. The psychologist said it would be extremely damaging to Alexis to have contact with Vanessa and would expose her to stress and trauma.
Vanessa wrote more letters to Alexis. Alexis responded to two letters, but did not want to respond to the others and did not want to take the letters home, but had her therapist keep them in a special box.
The Agency followed up with the necessary paperwork to allow Alexis to be enrolled in the Tribe. In February 2011 the Tribe informed the Agency that Alexis had been enrolled as a member. In March the Tribe moved to intervene in the proceedings.
The social worker met with Alexis and Mrs. G. and she explained to Alexis that she has Cherokee heritage. Mrs. G. was enthusiastic about helping Alexis understand her heritage, and the social worker provided Mrs. G.'s contact telephone number to the Tribe's social worker.
At the disposition hearing in June 2011, Phillip Powers, who was an enrolled Cherokee and had qualified as an expert for ICWA purposes, offered his opinion that the Agency had made active efforts to prevent the breakup of the Indian family within the meaning of ICWA by providing services to Vanessa. He said Vanessa was not an Indian person and therefore standard services were sufficient, and offering Alexis counseling to prepare her for resuming visits was absolutely consistent with the prevailing cultural and social conditions and way of the Tribe. Powers testified that returning Alexis to parental care would present a substantial risk of danger of severe physical and emotional harm, and there was good cause to deviate from the placement preferences of ICWA. He said Alexis had had behavioral problems and numerous placements before she was placed with the G.'s, and it would be detrimental to move her from their home.
After considering the evidence and argument by counsel and the Tribe's social worker, the court found by clear and convincing evidence that continuing Alexis in parental custody was likely to result in serious harm, and there was good cause to deviate from ICWA placement preferences. The court found active efforts had been made to provide services and programs to prevent the breakup of the Indian family, but the efforts had not been successful. The court set a section 366.26 hearing.
Vanessa petitions for review of the court's orders. (§ 366.26, subd. (l); Cal. Rules of Court, rule 8.452.) This court issued an order to show cause, the Agency responded and the parties waived oral argument.
DISCUSSION
Vanessa contends the juvenile court erred by finding active efforts were made to prevent the breakup of Alexis's Indian family according to ICWA requirements.
We note that Vanessa does not challenge the court's determination that good cause existed to deviate from the placement preferences under ICWA as listed in section 361.31, subdivision (b), and to continue Alexis's placement with the G.'s. (§ 361.31, subd. (h).)
Congress enacted ICWA in 1978 "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families . . . ." (25 U.S.C. § 1902.) An Indian child is " . . . any 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; . . . ." (25 U.S.C. § 1903(4).) Section 1911 of ICWA provides a tribe may intervene in state court dependency proceedings concerning Indian children. (25 U.S.C. § 1911(c).) Notice to the tribe provides it the opportunity to exercise its right to intervene. (In re Junious M. (1983) 144 Cal.App.3d 786, 790-791.)
ICWA and California law provide that any party seeking foster care placement or termination of parental rights of an Indian child shall satisfy the court that "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." (25 U.S.C. § 1912, subd. (d); § 361.7, subd. (b); see also Cal. Rules of Court, rule 5.484(c).) Section 361.7, subdivision (b), states "[w]hat constitutes active efforts shall be assessed on a case-by-case basis."
Rule references are to the California Rules of Court.
In In re Michael G. (1998) 63 Cal.App.4th 700, 712, this court ruled the Agency has the burden to prove by the standard of clear and convincing evidence that active efforts were made to prevent the breakup of the Indian family. The court stated the "standards in assessing whether 'active efforts' were made to prevent the breakup of the Indian family, and whether reasonable services under state law were provided, are essentially undifferentiable." (Id at p. 714; see also In re C.B. (2010) 190 Cal.App.4th 102, 134; Adoption of Hannah S. (2006) 142 Cal.App.4th 988, 998.)
Rule 5.484(c) states that efforts to provide services must include pursuing steps to secure tribal membership for a child if the child is eligible for membership. Under ICWA and state law, services must include the use of available resources of the extended family, the tribe, Indian social services agencies and Indian caregivers. (In re Michael G., supra, 63 Cal.App.4th at p. 714; § 361.7, subd. (b).) Section 361.7, subdivision (b) specifies:
"[t]he active efforts shall be made in a manner that takes into account the prevailing social and cultural values, conditions, and way of life of the Indian child's tribe. Active efforts shall utilize the available resources of the Indian child's extended family, tribe, tribal and other Indian social service agencies, and individual Indian caregiver service providers."
"Whether active efforts were made is a mixed question of law and fact." (In re K.B. (2009) 173 Cal.App.4th 1275, 1286.) The reviewing court determines the services that were provided by reference to the record. "Whether those services constituted 'active efforts' within the meaning of section 361.7 is a question of law which we decide independently." (Id. at p. 1286.)
The statutory law does not define "active efforts," and no formula exists for distinguishing active efforts from efforts that are merely passive. (In re K.B., supra, 173 Cal.App.4th at pp. 1286-1287.) The following has been suggested, however, as a useful guideline:
" 'Passive efforts are where a plan is drawn up and the client must develop his or her own resources towards bringing it to fruition. Active efforts . . . is where the state caseworker takes the client through the steps of the plan rather than requiring that the plan be performed on its own.' " (Id. at p. 1287, quoting A.A. v. State (Alaska 1999) 982 P.2d 256, 261.)
We hold that here active efforts were made within the meaning of ICWA to prevent the breakup of this Indian family. Vanessa was provided with reunification services for 17 months, from May 2007 until November 2008. Her services plan included therapy, a domestic violence victims' group, a psychological evaluation, a medical evaluation, parenting classes and a support group for individuals who were molested as children. After the birth of her second child in August 2007, she began participating in services, including individual therapy, a domestic violence group and parenting education. She submitted to a psychological evaluation. She attempted to obtain employment and reported to the social worker that she was no longer involved with her abusive boyfriends. At the six-month hearing, the court continued services. However, Vanessa then stopped attending the domestic violence group and had inconsistent attendance at therapy sessions and the visits scheduled with Vanessa. She said she was seeing several psychiatrists, but that she could not remember their names or provide contact information. The fact that numerous services were offered to remedy the problems that had caused Alexis to be taken into protective custody and Vanessa was able to engage in these services for a time until she abandoned her efforts show the Agency provided active efforts to prevent the breakup of Alexis's Indian family, but the efforts were unsuccessful.
Active efforts resumed after the case was remanded for failure to perform an adequate investigation into Vanessa's claim of Cherokee heritage. The Agency inquired further into Vanessa's claim and provided more complete ICWA notice. When the Tribe notified the Agency that Alexis and her twin half brothers were eligible for enrollment, the Agency pursued enrollment for Alexis by applying for birth certificates for Alexis, Vanessa and the maternal grandfather and submitted the required registration documents to the Tribe. The social worker talked with Alexis and Mrs. G. about Alexis's Cherokee heritage and provided Mrs. G.'s contact information to the Tribal social worker. Mrs. G. expressed enthusiasm for the prospect of helping Alexis understand her heritage. When the court ordered visitation to resume, the social worker worked to facilitate contact between Vanessa and Alexis in a way that would minimize any emotional damage to Alexis, including following the suggestions of the psychologist who evaluated Alexis and of Alexis's therapist. The social worker encouraged Vanessa to write letters to Alexis to facilitate their renewed contact, and the social worker and the therapist read the letters to Alexis. These efforts constitute further evidence of active efforts to prevent the breakup of the Indian family.
Powers qualified as an expert witness in ICWA matters. He testified he was an enrolled Cherokee, was recognized by several courts in Southern California as an Indian expert witness, had testified previously in ICWA cases and had experience as a social worker delivering reunification and family services to Indian tribes. He stated that as a member of the Cherokee Tribe, he had a good understanding of the prevailing social and cultural conditions and way of life of the Tribe. He testified the efforts undertaken by the Agency in providing counseling to facilitate contact between Vanessa and Alexis were consistent with the Tribe's prevailing social and cultural values, conditions and way of life. He said it was his opinion that returning Alexis to parental care would present a substantial risk of emotional or physical harm to Alexis and there was good cause to deviate from ICWA placement preferences and to maintain Alexis in her current home with the G.'s. This expert testimony further supports the court's finding that active efforts were undertaken as required by ICWA.
Section 224.6, subdivision (a), states a "qualified expert witness" in an Indian child custody proceeding may include a social worker, sociologist, physician, psychologist, traditional tribal therapist and healer, tribal spiritual leader, tribal historian or tribal elder.
Section 224.6, subdivision (c), states that persons with the following characteristics are most likely to meet the requirements for a qualified expert witness in Indian child custody proceedings:
"(1) A member of the Indian child's tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childrearing practices.
"(2) Any expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childrearing practices within the Indian child's tribe.
"(3) A professional person having substantial education and experience in the area of his or her specialty."
The Tribe's social worker, who appeared at the hearing and took a position different from the court's decision to refer the case to a section 366.26 hearing, did not provide sworn testimony, but only argued in favor of reestablishing visitation. The court properly took into account this argument as well as the reports from the psychologist who evaluated Alexis and from Alexis's therapist who said that resuming visitation would be traumatic for Alexis. Vanessa's argument the court improperly weighed the Tribe's worker's argument with the reports and opinions of the psychologist who performed the psychological evaluation and of Alexis's therapist is unfounded.
The Agency provided 17 months of reunification services between May 2007 and November 2008 and it pursued Alexis's enrollment in the Cherokee Nation and educated Alexis and Mrs. G. about Alexis's Cherokee heritage. When the court ordered visitation reinstated between Vanessa and Alexis, it attempted to facilitate the visitation. We hold this record shows that active efforts were made within the meaning of ICWA to prevent the breakup of the Indian family.
DISPOSITION
The petition is denied. The request for stay is denied.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McINTYRE, J.