Opinion
F080116
01-16-2020
CARRIE M., Petitioner, v. THE SUPERIOR COURT OF TULARE COUNTY, Respondent; TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.
Carrie M., in pro. per., for Petitioner. No appearance for Respondent. No appearance for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. JJV066296D, JJV066296E, JJV066296F)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Robin L. Wolfe, Judge. Carrie M., in pro. per., for Petitioner. No appearance for Respondent. No appearance for Real Party in Interest.
Before Levy, Acting P.J., Peña, J. and Smith, J.
-ooOoo-
Petitioner Carrie M. (mother), in propria persona, seeks an extraordinary writ under California Rules of Court, rule 8.450, directing the juvenile court to return her children, five-year-old Carlos R., three-year-old Daisy R. and one-year-old R.R., to her custody. At a combined status review/dispositional hearing on October 7, 2019, the court terminated mother's reunification services for Carlos and Daisy, denied her reunification services for R.R. and set a Welfare and Institutions Code section 366.26 hearing for February 3, 2020, as to all three children. Daisy and R.R. are "Indian" children as defined by the Indian Child Welfare Act (25 U.S.C., § 1901 et seq. (ICWA)). (25 U.S.C. § 1903(4).) Mother contends social workers from the Tulare County Human Services Agency (agency) violated several provisions of the ICWA in removing Daisy from her custody. She asks this court to review her case for "improper removal, active efforts and improper placement." We deny the petition.
Statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL SUMMARY
On July 11, 2018, social worker Karina V. contacted mother and Keith R., Daisy's father, in response to a report mother made approximately two weeks before that Keith raped her. Mother was using methamphetamine and alcohol and there was no electricity in the home. Karina observed mother was restless and unfocused with slurred and rapid speech. Keith avoided eye contact with Karina but was able to answer questions clearly. He said he and Daisy were registered tribal members of the Tule River Tribe.
Actually, Keith was a registered member and Daisy was enrolled. Her membership was pending.
Mother admitted using methamphetamine but said she stopped using two weeks before when she found out she was five months pregnant. She said she participated in multiple drug treatment programs, the most recent being five years before. She knew all there was to know about drug recovery and did not need supportive services. She denied Keith sexually assaulted her and did not believe he would hurt Daisy. She admitted she and Keith engaged in domestic violence in the past but not in Daisy's presence.
Keith also admitted using methamphetamine and marijuana. He stopped using drugs two weeks before. He had never participated in drug treatment and was only willing to do so if mother requested it. He denied sexually assaulting mother or engaging in domestic violence with her. He was arrested several weeks before for domestic violence but released without being charged. According to the police report, mother's forehead, ears and neck were red.
The parents refused to drug test but agreed to a family safety plan in which Daisy would remain in the care of paternal relatives, Antonia and Manuel L., pending the agency's disposition of the referral. The following day, the parents tested positive for methamphetamine.
The agency discovered mother had five other children who were not in her custody, ranging in age from four to 16. The 16-year-old lived with her paternal grandmother, the 12-, nine- and six-year-olds lived with their father and the four-year-old, Carlos R., was living with the maternal aunt, Roxanne S., who had been caring for him for three years. She did not have legal guardianship of him; only a verbal agreement authorizing her to have custody of him. On June 29, 2018, the police responded to Roxanne's home to investigate a report of physical and emotional abuse. As the officer was approaching the home, she could hear Roxanne yelling, "I f****** hate you. What do you want? Sit the f*** down and eat your f****** food." It sounded as if Carlos was crying and the officer heard him say, "Ouch, don't hit me" and then heard a thump. The officer saw three small indentations on Carlos's arm, which appeared to be nail marks as if somebody clawed into his left forearm. When asked who scratched him, Carlos responded "mama," a reference to Roxanne. Roxanne had untreated mental illness and was overwhelmed with caring for Carlos. She said mother had not seen Carlos for a year and his biological father, Brian R., had not seen him for several years. Brian had an extensive criminal history and was on parole.
On July 13, 2018, the agency decided to seek a protective custody warrant for Daisy after conferring with the parents, paternal relatives and Tule River Family and Social Services Coordinator, Vincent B. Daisy was to stay with Antonia and Manuel, who are tribal members, under a family safety plan until the protective custody warrant was signed and served. The children were taken into protective custody on July 18, 2018, and placed in foster care. The agency filed a dependency petition seeking the children's removal under section 300, subdivisions (b)(1) and (j) based on allegations of domestic violence, substance abuse and neglect.
The juvenile court conducted the detention hearing on the petition on July 19, 2018. Mother, Keith and Brian appeared and were appointed counsel. Vincent, also present, advised the court that Daisy was an enrolled tribal member, but that Carlos was not. Brian explained he was an enrolled member of the Lipan Apache Tribe in Texas, but the tribe was not federally recognized. Vincent stated they were looking for a tribal-approved home. The court found Daisy was an Indian child and the ICWA applied to her. The court ordered services for Keith but not mother. Vincent stated the tribe may offer mother services and her attorney requested the agency tell her which services it wanted her to complete. The court set the jurisdictional hearing for August 23.
In a conversation the following week with social worker Amanda D., mother disputed the agency's representation of the family's circumstances. She did not believe the agency had properly investigated the facts and social workers Karina and Jennie P. misrepresented her, Keith and Roxanne's conduct.
By August 23, 2018, Daisy had been placed with tribal custodians, Rose and Vicente G., on the reservation in a home approved by the Tule River Tribe. Carlos was placed in a foster home and the children had twice weekly visits. Counsel requested a contested jurisdictional hearing, which the court set for September 20 but ultimately conducted in November.
The agency filed a jurisdiction/disposition report in August 2018, recommending the juvenile court sustain the dependency petition and grant mother six months of reunification services to include a substance abuse assessment, random drug testing, domestic violence treatment and parenting education. The agency identified the reasonable and active efforts it made to prevent the children's removal from mother's custody: crisis intervention, spot testing, a substance abuse assessment, and a team decision making meeting. However, those services were not successful in eliminating the need to remove them.
On November 13, 2018, the agency filed a supplemental report. Attached was a letter from Loleta Garfield, ICWA expert witness from the Tule River Tribe. Garfield advised the court that Keith was participating in services on the reservation. Although mother was banned from the reservation, the tribe was allowing her to participate in services on the reservation with Keith. They remained in a relationship and were making strong attempts to comply with the case plan and received a lot of support from their tribal social worker. They were also aware that any future substance abuse incidents could result in "negative results" with their newborn, due the following month. Garfield recommended the court return Daisy to Keith's physical custody once he completed his case plan which "may include" substance abuse, domestic violence, parenting and individual and group counseling.
Also attached was a letter from Lisa Graham, substance abuse program coordinator with the Tule River Indian Health Center, Inc., dated November 9, 2018, stating that mother entered a 90-day outpatient substance abuse treatment program in August 2018 and was actively participating in treatment and appeared to be gaining the necessary tools and insight to maintain her sobriety. She was also enrolled in the domestic violence treatment program through the Central California Family Crisis Center and a parenting education program through the Parenting Network.
By November 2018, mother and Keith were actively participating in all of the services recommended by the agency. They attended every scheduled supervised visit and had one unsupervised visit which went extremely well. They were residing in a one-bedroom apartment with a roommate and her children and planned to find a residence of their own. The agency recommended a minimum of eight hours of unsupervised visitation with the children on a weekly basis.
On November 15, 2018, after mother and Keith waived a hearing on jurisdiction, the juvenile court adjudged the children dependents under section 300, subdivisions (b) and (j), and set the matter for disposition.
On November 26, 2018, mother gave birth to R.R. and identified Keith as her father. Neither she nor R.R. tested positive for drugs, but mother stated she used methamphetamine early in her pregnancy. She and R.R. were healthy, and the parents were doing well in their services plan. Consequently, the agency decided not to file a petition seeking her removal. The tribe denied the parents' request to enroll R.R. in the tribe because Keith did not maintain residency on the reservation prior to her birth. They were appealing the tribe's decision.
At an uncontested dispositional hearing in December 2018, the juvenile court ordered Carlos and Daisy removed from parental custody. As to Daisy, the court found active efforts were made to prevent the breakup of the Indian family, but such efforts were unsuccessful based on Garfield's written declaration. The court also found the agency complied with the placement preferences for Indian children under the ICWA. The court ordered mother and Keith to participate in domestic violence, parenting, and substance abuse services. The court denied Brian services, including visitation, because he did not have a bond with Carlos and set a six-month review hearing for May 30, 2019.
In January 2019, the parents successfully graduated from outpatient drug treatment through the Tule River Tribe and obtained a four-bedroom home on tribal-owned land. The agency began receiving anonymous reports that the parents were spending time with known drug users. They denied the reports, claiming they were false allegations made out of spite. However, they also stopped drug testing and were dropped from the domestic violence treatment for noncompliance.
Erroneously identified as January 2018 in the report.
In April 2019, at a team decision making meeting, mother admitted relapsing in January and April 2019 and Keith admitted relapsing in March 2019. In addition, law enforcement was called to their home on multiple occasions for domestic violence disputes. On May 8, 2019, the agency took R.R. into protective custody and placed her with the adult daughter of Daisy's caregivers. An ICWA social worker was present when R.R. was removed, and the tribe approved of her placement. The agency filed a dependency petition on R.R.'s behalf, seeking her removal under section 300, subdivisions (b) and (j).
On May 9, 2019, the juvenile court found ICWA applied to R.R. and ordered her detained. At the jurisdictional hearing later that month, the court adjudged her a dependent child and set her dispositional hearing for July 11, 2019, along with a contested six-month review hearing as to Daisy and Carlos. The hearing was continued and conducted on October 7, 2019. Meanwhile, though mother completed a domestic violence program and was participating in a parenting program, she continued to use methamphetamine.
The agency recommended the juvenile court terminate mother's reunification services as to Daisy and Carlos, terminate Keith's reunification services as to Daisy and deny both parents reunification services as to R.R. under section 361.5, subdivision (b)(10) and (13) and set a section 366.26 hearing. The ICWA expert, Elizabeth Morales, concurred mother and Keith's neglectful and abusive parenting behaviors placed R.R. at risk of child abuse and neglect and necessitated her removal from parental custody. Morales also opined the active efforts made by the agency, ie., domestic violence assessment and treatment, substance abuse assessment and treatment, parenting education, case management and child/parent/sibling visitation, were unsuccessful in eliminating the risk to R.R. and in preventing her removal.
On October 7, 2019, the juvenile court conducted a dispositional hearing as to R.R. and a six-month review hearing as to Daisy and Carlos. Mother's attorney asked for more time to do better in drug testing but otherwise submitted on the agency's recommendation to terminate reunification services. Keith's attorney did not present any evidence. Minors' counsel asked the court to follow the agency's recommendation. She advised the court that Carlos regarded his foster parents as parental figures rather than mother. The court terminated mother and Keith's reunification services. As to the denial of reunification services, mother's attorney objected for the record, noting that she previously completed all of her services, but otherwise submitted the matter for the court's decision. The court denied the parents reunification services under section 361.5, subdivisions (b)(10) and (13), and set the section 366.26 hearing for February 3, 2020.
The juvenile court also heard evidence on Brian's modification petition requesting services to reunify with Carlos and denied it. --------
DISCUSSION
Dependency statutes were enacted to protect abused and neglected children. (§ 202, subd. (a).) When an Indian child is involved, the ICWA imposes federal standards a state court must follow when removing an Indian child from his or her family. Congress has defined "Indian child" for these purposes as "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).) Mother acknowledges only Daisy and R.R. are Indian children, subject to the ICWA. She contends the agency violated the ICWA by placing Daisy in foster care upon her initial removal in July 2018 and not making active efforts to prevent both children's removal. We disagree.
Mother Forfeited Her Claim Daisy Was Improperly Removed by the Agency in July 2018
On July 13, 2018, the agency conducted a team decision making meeting with mother and Keith, Vincent B. (the tribal social worker), and Antonia, the paternal relative. It was decided at that meeting that Daisy would be placed with Antonia and Manuel under a safety plan until a protective custody order was signed and served. However, Antonia and Manuel did not clear for emergency placement because of their prior criminal history. Consequently, the agency submitted a request on July 18 for expedited emergency placement of Daisy with family friends, Rose and Vicente, who are members of the Tule River Tribe. The agency took Daisy into protective custody on July 19 and placed her with Rose and Vicente on July 27, where she remained throughout these proceedings. In that brief interim period, she was temporarily placed in foster care.
Mother contends the agency manipulated her into signing the safety plan under the threat of arrest and then reneged on its agreement to place Daisy with Antonia and Manuel, placing her instead in a foster home, which caused Daisy emotional distress. Mother also contends the allegations on which the agency relied to remove Daisy were unfounded.
We conclude mother forfeited any objection she had to the basis for Daisy's removal and the manner in which it was accomplished, including Daisy's temporary placement in a nontribal foster home, by failing to raise it in the juvenile court. "[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.] [¶] Dependency matters are not exempt from this rule." (In re S.B. (2004) 32 Cal.4th 1287, 1293.)
The safety plan was developed, and Daisy was placed in foster care in July 2018. The allegations against mother were sustained at the jurisdictional hearing in November and the court exercised its dependency jurisdiction over Daisy in December 2018. At no time did mother complain about Daisy's removal and placement while appearing before the juvenile court. Nor did she challenge the agency's allegations or placement decisions or the court's jurisdictional findings by appealing from the dispositional findings and orders. Consequently, she has forfeited these issues for our review.
Further, even if mother were not barred from raising these issues, the evidence supports the agency's actions and the court's rulings. The tribe was involved at the inception of this case and complied with ICWA's placement preferences. 25 USC section 1915(b) of the ICWA, which sets forth the foster care or preadoptive placement preferences, provides:
"Any child accepted for foster care or preadoptive placement shall be placed in the least restrictive setting which most approximates a family and in which his special needs, if any, may be met. The child shall also be placed within reasonable proximity to his or her home, taking into account any special needs of the child. In any foster care or preadoptive placement, a preference shall be given, in the absence of good cause to the contrary, to a placement with—
"(i) a member of the Indian child's extended family;
"(ii) a foster home licensed, approved, or specified by the Indian child's tribe;
"(iii) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or
"(iv) an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs."
Here, Daisy was placed with tribal members, Rose and Vicente, in an ICWA home certified by the Tule River Tribe. The Agency Made Active Efforts to Prevent Daisy and R.R.'s Removal
Mother contends social workers Karina and Jennie violated the ICWA while taking Daisy into protective custody because they did not make active efforts to prevent her removal. Mother does not explain, however, what the social workers could have done to ensure active efforts were made to prevent Daisy's removal. She asks this court to review the social workers' conduct for improper removal and active efforts.
The ICWA requires that "[a]ny party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law 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(d).) The ICWA establishes that "[n]o foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." (25 U.S.C. § 1912(e).) The ICWA defines a "foster care placement" as "any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated." (25 U.S.C. § 1903(1)(i).)
Section 361.7 specifically incorporates the "active efforts" provision of the ICWA, requiring the juvenile court to find active efforts were made, but were unsuccessful, when "a party [is] seeking an involuntary foster care placement of, or termination of parental rights over," an Indian child. (§ 361.7, subd. (a).) "What constitutes active efforts shall be assessed on a case-by-case basis. The 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." (§ 361.7, subd. (b).)
In the case of an Indian child, section 361, subdivision (c)(6) requires the juvenile court to also find, based on the testimony of a " 'qualified expert witness[,]' " that "continued custody of the child by the parent ... is likely to result in serious emotional or physical damage to the child[.]" In addition, section 361, subdivision (e) requires the juvenile court to determine, in the case of an Indian child, "whether active efforts ... as required in Section 361.7 were made and ... proved unsuccessful. The court shall state the facts on which the decision to remove the minor is based." If the child is not an Indian child, the court must determine whether reasonable efforts were made to prevent or eliminate the need for removing the child. (§ 361, subd. (e).)
We review the juvenile court's removal order for substantial evidence, bearing in mind the heightened burden of proof. (In re Henry V. (2004) 119 Cal.App.4th 522, 529.) We also apply the substantial evidence standard of review to determine whether active efforts were made to provide services and programs designed to prevent the breakup of an Indian family. (In re A.A. (2008) 167 Cal.App.4th 1292, 1319.)
The children were removed from mother's physical custody and formally ordered removed principally because of her ongoing methamphetamine use. Daisy was taken from mother and Keith's physical custody in July 2018 by social workers Karina and Jennie because the parents were using methamphetamine and engaging in domestic violence. The decision to take Daisy into protective custody was made following a meeting at which mother as well as Vincent B., the tribal family and social services coordinator, were present. Carlos was removed from his maternal aunt, Roxanne, who was mistreating him. He had lived with her for three years. The children were placed separately because they had not been raised together. Daisy was placed in a tribal-approved home.
At the dispositional hearing in December 2018, the juvenile court removed Daisy and Carlos from mother's custody after finding they were at a substantial risk of danger if returned to her custody and there were no alternative means to prevent their removal. As to Daisy, the court also found the agency made active efforts to prevent her removal but the efforts proved unsuccessful. The court relied on the written statement of Garfield, the ICWA expert, who stated mother was participating in services on the reservation with Keith and they had the support of the tribal social worker. It appears, based on the letter from Graham, the substance abuse coordinator with the Tulare River Indian Health Center, Inc., that mother was participating in outpatient drug treatment on the reservation and domestic violence and parenting classes through county-approved programs. The court also found that the agency complied with the placement preferences for Indian children under the ICWA.
At no time did mother challenge the agency's recommendation to remove Daisy and Carlos by challenging its evidence. She did not do so by requesting a contested dispositional hearing or raise a claim of insufficient evidence by appealing the juvenile court's dispositional findings and orders. Consequently, mother forfeited her right to challenge the juvenile court's dispositional findings and orders, including its finding the agency made active efforts, by failing to appeal. (In re A.L. (2015) 243 Cal.App.4th 628, 639-640.) In any event, substantial evidence supports the juvenile court's active efforts finding.
The tribe formally intervened in August 2018 and participated in the provision of services to mother. Garfield opined that the services provided took the culture into consideration and that it was appropriate to remove Daisy from mother because of her drug use and neglect. Mother's ongoing drug use and neglect also support the juvenile court's order removing Carlos. Although he was not subjected to the domestic violence in the home, he was physically abused by Roxanne, whom mother chose to place him with although she was unfit to care for him.
In November 2018, while mother was participating in reunification services, she gave birth to R.R. She used methamphetamine early in her pregnancy but was doing so well in her services plan that the agency allowed R.R. to remain in her custody. However, by January 2019, mother had relapsed, and she and Keith were engaging in domestic violence. In May 2019, with an ICWA social worker present, the agency took R.R. into protective custody and placed her in a tribal-approved home. Although the resource parent was not a member of the Tule River Tribe, the parent had lived among Yokut tribal members, was familiar with the Yokut Tribe culture, customs and traditions and was willing to support R.R.'s relationship with her siblings.
In October 2019, the juvenile court found the agency made active efforts to prevent R.R.'s removal and denied mother reunification services. By that time, mother had received nearly 15 months of services provided by the agency and the tribe to assist her with substance abuse, domestic violence and parenting. However, she continued to use methamphetamine and engage in domestic violence. The ICWA expert, Morales, opined active efforts were made to prevent R.R.'s removal and it would be detrimental to return her to mother's custody. As mother's attorney could not refute evidence of her ongoing drug use, he objected for the record but submitted the matter for the court's decision. He did not argue the agency failed to make active efforts.
In light of all of the evidence in the record of the agency's efforts, as well as expert opinion the agency satisfied the ICWA's active efforts requirement, we conclude substantial evidence supports the juvenile court's finding the agency made active efforts in the circumstances of this case "to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family," but its efforts were unsuccessful. (§ 361.7, subd. (a).)
We conclude the agency complied with the ICWA in its removal and placement of Daisy and R.R. Since mother does not challenge the juvenile court's orders denying her reunification services as to R.R. and terminating reunification services as to Daisy and Carlos, we do not address them. We affirm the court's order setting a section 366.26 hearing as to all three children and deny the petition.
DISPOSITION
The petition for extraordinary writ is denied. This court's opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A) of the California Rules of Court.