Opinion
A133960
02-08-2012
In re VICTORIA G., A Person Coming Under the Juvenile Court Law. CATHY H., Petitioner, v. THE SUPERIOR COURT OF DEL NORTE COUNTY, Respondent; DEL NORTE COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Del Norte County Super. Ct. No. JVSQ 10-6043)
Cathy H. (mother), the mother of Victoria G., filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, after the superior court set a hearing pursuant to section 366.26 of the Welfare and Institutions Code. She maintains that the Del Norte County Department of Health and Human Services (the department) did not provide her with reasonable reunification services and that the superior court erred when it proceeded with the 18-month review hearing without the participation of the Asa' Carsarmuit Tribe of Alaska (the Asa' Carsarmuit Tribe). We conclude that the lower court properly set a hearing pursuant to section 366.26 and deny mother's petition for an extraordinary writ.
All further unspecified code sections refer to the Welfare and Institutions Code.
BACKGROUND
William D. (father) and mother are the parents of Victoria. On March 30, 2010, the department filed a petition pursuant to section 300, subdivisions (b), (g), and (j), alleging, among other things, that Victoria was at substantial risk of harm due to the chronic substance abuse problems of mother and father. The petition also stated that mother had her parental rights terminated after failed reunification efforts with regard to two other children. On April 1, 2010, the court held a detention hearing and placed Victoria under the care, custody, and control of the department.
The department filed its jurisdiction report on April 22, 2010. The report stated that mother might be a member of the Asa' Carsarmuit Tribe, and that father stated that his ancestry was with the Comanche Tribe of Oklahoma but that he was not currently an enrolled member. The report pointed out that mother and father have a history of substance abuse and mother has two children that are in permanent placement. The report indicated that mother has a criminal history that includes several charges for willful cruelty to a child and spousal abuse. The report stated that mother continues to engage in domestic violence in the presence of Victoria. The juvenile court took jurisdiction over Victoria in April 2010.
Notice of the dependency proceedings were provided to the Asa' Carsarmuit Tribe and Comanche Nation. The Asa' Carsarmuit Tribe wrote a letter on May 25, 2010, stating that Victoria was not enrolled in the tribe but that she would be eligible for tribal enrollment.
The department filed its disposition report on May 26, 2010. The department recommended that Victoria be declared a dependent and that her mother and father be offered family reunification services. The report indicated that the Asa' Carsarmuit Tribe expressed a desire to appear telephonically at the disposition hearing. The report set forth the case plan for mother, which included the objectives that mother stay sober and show an ability to live free from alcohol, that mother stay free from illegal drugs, that mother comply with all required drug tests, that mother attend and demonstrate progress in a county certified domestic violence prevention plan, and that mother comply with medical or psychological treatment. The plan stated that mother had been referred to Men Experiencing Non-Abusive Directions and Women Experiencing Non-Abusive Directions (MEND/WEND) for a domestic violence assessment. The Department also referred mother to United Indian Health Services (UIHS) for mental health counseling to address issues of grief and loss. The plan required mother to submit to random drug testing when directed by her UIHS counselor or social worker, and to attend seven 12-Step meetings per week and provide documentation to a substance abuse counselor. It also required her to attend outpatient substance abuse treatment at UIHS, which was to include one-to-one counseling once a week and participation in three groups per week. The groups were Strengthening the Spirit, Red Road to Wellbriety, and Talking Circle/Women's Support Group.
On September 1, 2010, the department filed its interim review report. The report stated that on May 6, 2010, mother was arrested as a codefendant for possession of a controlled substance for sale and possession of a dangerous substance. The social worker indicated that mother was making progress on the service objectives in her case plan. The report stated that mother's participation in the UIHS services had been "irregular but it appear[ed] that she [had] a trusting and open therapeutic relationship" with her counselor. The social worker had received no documentation of any 12-step meetings attended by mother and only one result of a drug test. Mother, according to the report, had routinely failed to submit to weekly scheduled drug testing at UIHS and to all the requests for random drug tests made by the social worker.
The department filed its six-month status review report on November 17, 2010. The report noted that mother had attended two individual counseling sessions and participated less than 50 percent with the alcohol and other drug services (AOD) outlined within her treatment plan. Despite financial assistance from the department, mother had failed to complete her intake and assessment with MEND/WEND's Child Abuse Prevention Treatment (CAPT) program. The social worker noted the following: "The department is aware that the treatment recommendation of UIHS AOD programs has recommended that an in-patient treatment would be the most beneficial option for [mother] at this time and that finding funding to pay for this is going to be challenging and a lengthy process. At a recent social worker contact with [mother], we discussed this change in recommendation and [mother] was encouraged to fully participate with the available out-patient services offered at UIHS until funding could be accessed to cover in-patient treatment program."
A substance abuse counselor at UIHS wrote a letter dated November 15, 2010, to the department regarding mother. The letter disclosed that mother was not compliant with the UIHS substance abuse program. The counselor recommended that mother be placed in a primary residential treatment facility for 90 days. The counselor inquired as to whether the department could help pay for this treatment. The counselor emphasized that mother did not keep her appointments to talk to the counselor about the residential placement.
The substance abuse counselor at UIHS wrote another letter to the department on January 18, 2011. She stated that mother entered Trillium House, a residential treatment program, on January 11, 2011, but left the program the following day. Mother reported to the counselor that she had a medical condition and that she would return to Trillium House once she had healed from her staff infection.
On May 19, 2011, the department filed its 12-month status review report. The social worker stated that mother completed 60 days at Trillium House on May 2, 2011. She returned to her home and was continuing to receive aftercare services from Tillium House. She was also attending 12-step meetings daily and submitting to drug testing three times per week. The report noted that mother had finally completed her intake and assessment at MEND/WEND's CAPT programs and had been attending weekly groups since early April 2011.
On November 1, 2011, the department filed its 18-month status review report and recommended that the court terminate mother's reunification services (and terminate reunification services for father). The social worker wrote that during the last reporting period, mother had been in jail several times for producing a "dirty" test during her scheduled testing pursuant to Proposition 36. As a result of mother's arrest on May 6, 2010, mother had been placed on probation and ordered to complete services and requirements pursuant to Proposition 36 and her probation. Mother's most recent arrest for a positive drug test was October 7, 2011.
The report explained that mother had been unable to maintain her sobriety and had been unable to attend her services because she had been frequently incarcerated for having "dirty" drug tests. Mother was terminated from MEND/WEND on September 8, 2011, because of her excessive absences. According to the MEND/WEND instructor, mother " 'struggles with addiction and has relapsed and has been incarcerated while enrolled in the CAPT program. [She] also has difficulty addressing the extent to which her addiction is abusive to her children. To be successful in the CAPT program she will need intensive support to remain clean and sober. She will also need to address issues of extreme trauma in her past and its effect on her current situation.' "
The counselor at UIHS, Annie McLennan, stated that mother did not attend her sessions when her drug tests came back positive or when she was incarcerated. She further reported that she "feels [mother] needs help beyond" her ability to provide and mentioned that she "thought it was a good idea if [mother] got engaged in mental health services." The department noted that it had recently provided mother with a mental health referral and mother had made an appointment. In addition to referrals to services, the department stressed that it had provided mother with food vouchers, phone minutes, bus passes, rent assistance, and money for power bills.
The court held the 18-month review hearing on November 4, 2011. The minute order indicates that representatives of the Asa' Carsarmuit Tribe participated telephonically. Mother requested a contested hearing and the order stated that the Asa' Carsarmuit Tribe would appear at the hearing telephonically; the order included the phone number for the tribe. The minute order specified that the court set the contested hearing for 9:00 a.m. on November 30, 2011.
The juvenile court held a contested disposition hearing at 9:00 a.m. on November 30, 2011. At the beginning of the hearing, the court attempted to telephone the Asa' Carsarmuit Tribe to permit it to participate telephonically. The clerk called two different phone numbers and there was no answer at either number. Counsel for the department told the court that the Asa' Carsarmuit Tribe did have notice of the hearing. Counsel for mother stated that he wanted to wait until the tribe was available. The court agreed to have the clerk call the Asa' Carsarmuit Tribe at 15-minute intervals for one hour.
After one hour, at 10:00 a.m., the clerk reported that the Asa' Carsamuit Tribe was called eight times but there was no answer. The court stated: "We've been trying for an hour to reach [the Asa' Carsarmuit Tribe]. So it does not appear that the Asa' Carsarmuit Tribe will be making an appearance today. They were in contact by telephone on November the 4th at the time that today's hearing was set."
Counsel for mother stated that mother wanted the Asa' Carsarmuit Tribe to be present. The court responded: "Today's hearing is to determine whether reunification services should continue or not. And the matter be—and/or the matter be set for a [section 366.26] hearing. And so because the hearing doesn't directly concern itself with the outcome of the—of what the [section 366.26] hearing would be, I would think that that would be where the tribe's input would be of the most value. Right now it's simply to reunify or set it for a [section 366.26] hearing. [¶] So I think that at this point with the tribe having been given notice and not being in contact that we can go ahead."
Social worker Heather Friedrich testified. She reported that mother had only two sessions after the department referred mother to UIHS for mental health counseling. Friedrich spoke with mother in October 2011 and asked her if there was anything else that would help her with her sobriety, and mother mentioned medication. Friedrich asked her if she wanted a mental health referral, and she indicated that she did. The counselor at UIHS, McLennan, believed medication would be helpful; McLennan also recommended mental health services through the county for mother. Friedrich admitted that mother had complied with her plan in the respect that she had accessed services.
Counsel for mother asked Friedrich whether it was true that mother had not received mental health services and medication and counsel asserted that mother needed these the most. Friedrich responded that she was not sure mother needed mental health services and medication the most but the department had offered mother mental health services; mother had accessed those services on only two occasions during the period of March 2010 until April 2011. When asked whether mother's mental health issues had been addressed, Friedrich responded: "I believe it's been addressed in her AOD groups also because there is a counseling component to those groups. It may not have been fully addressed, but she did have opportunities."
Friedrich acknowledged that mother interacted "very well" with Victoria and that she was connected to her daughter. When mother was not incarcerated, she visited Victoria regularly and Victoria looked forward to her visits with her mother.
Friedrich testified that in addition to mother's inability to remain sober, mother did not recognize the impact of her drug abuse on Victoria. Mother told the social worker that she did not feel that Victoria should have been detained in the first place.
Friedrich stated that mother was offered the Road to Wellbriety through UIHS and that program "integrates the traditions and cultures of native persons and it discusses the intergenerational trauma that Native Americans have endured." It addresses issues of grief and loss to Native American people. She also was offered Talking Circle, which practiced meditation and included discussions of issues related to sobriety. Friedrich repeated that mother had individual counseling sessions with McLennan once per week, which had been ongoing since the beginning of the case plan. She testified that she was not aware of any complaints by mother to the department that her mental health services through UIHS were inadequate. To the contrary, Friedrich declared that mother told her that she liked the services through UIHS. Mother also reported to Friedrich that she had a good relationship with McLennan.
Mother testified that she was terminated from MEND/WEND in September 2011 because of her absences that were caused by her incarceration. Mother stated that she struggled with the issues related to her other children and the circumstances surrounding the loss of her other children. She remarked that the therapy in MEND/WEND was confrontational and therefore she was not comfortable with this group. She claimed that medication would help her with her anxiety and cravings. She added, "And it's just an option that I would like to try." She declared that she did not know how to access this type of help. She admitted that she never mentioned medication to Friedrich prior to one month before this hearing. She also acknowledged that she had an alcohol problem and said that she last drank "[l]ast week." She also admitted that she was addicted to drugs. She disclosed that the last time she had methamphetamine was "[a]bout three weeks ago." She stated that she lost her other two children because of her addictions.
At the end of the hearing, the court explained: "We are at the 18-month point. And so the question is, first of all, have they given it the 18 months of effort that is required. And if we have, then all that remains is can this child return home right now or should we terminate reunification services. We're down to those options by law.
"And I do find that there—that they may not have been perfect services that were offered, but that's rarely available in any case. I do feel that adequate and sufficient services have been provided or offered. And so I—we're at the point then of the 18-month deadline, either go home now or terminate services.
"And at this point with relapse happening, I don't see that we can return this child home today. And so I'm going to have to follow the recommendation as set out in the report."
The court, among other things, found that the department had complied with the case plan by making a reasonable effort to return Victoria to a safe home "through the provision of reasonable services designed to aid in overcoming the problems that led to the initial removal and continued custody of the child and by making reasonable efforts to complete steps necessary to finalize permanent placement." The court ordered Victoria to remain a dependent of the court; it terminated family reunification services for both mother and father. The court set the section 366.26 hearing for March 2, 2012.
Mother filed a petition for extraordinary writ in this court.
DISCUSSION
I. Reasonable Services
Mother contends that the department failed to provide her with reasonable services. She maintains that she has used the services offered to her but the record shows that she needed additional services not provided to her. Specifically, mother points to the statement by McLennan, her counselor at UIHS, that mother needed "help beyond" her ability to provide and McLennan's belief that mother should become engaged in county mental health services and be provided medication. Mother also emphasizes that the group instructor at MEND/WEND stated that mother needed " 'to address issues of extreme trauma in her past and its effect on her current situation.' " Mother argues that she was unable to get the psychological services and medication she needed through UIHS or the county.
Reunification services are generally limited to a total of 18 months. (§§ 361.5, subd. (a)(3) & 366.22, subd. (a); see also Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1015.) At each status review hearing, the court must determine "[t]he extent of the agency's compliance with the case plan in making reasonable efforts . . . to return the child to a safe home . . . ." (§ 366, subd. (a)(1)(B).) The court must also determine whether reasonable services were offered or provided to the parent. (§ 366.21, subd. (e); Cal. Rules of Court, rule 5.708(e).)
Under section 361.7, subdivision (a), when the department is seeking termination of parental rights over "an Indian child[,]" the department "shall provide evidence to 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." "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).)
Mother does not contend that the "active efforts" requirement of section 366.26 was not satisfied. We therefore need not address this issue. We note, however, that the record supports a finding that active efforts were made.
Whether active efforts were made is a mixed question of law and fact. (In re K.B. (2009) 173 Cal.App.4th 1275, 1286.) Whether the services provided constitute active efforts within the meaning of section 361.7 is a question of law. (Ibid.)
Here, the social worker helped mother by making reasonable efforts to assist her in the areas of her plan where compliance was difficult. The social worker kept in touch with mother and provided her with financial assistance, bus passes, transportation, and referrals to services. The record establishes that the department "did more than merely draw up a reunification plan" and it did not leave it entirely to mother "to use her own resources to bring it to fruition." (In re K.B., supra, 173 Cal.App.4th at p. 1287.) As in the situation in In re K.B., the department provided mother "with the resources necessary to achieve the goals of her case plan[,]" which satisfied the " 'active efforts' " requirement. (Ibid., fn. omitted.)
"Only where there is clear and convincing evidence [that reasonable services have been] provided or offered . . . may the court order a section 366.26 hearing." (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1165.) On appeal, "[t]he applicable standard of review is sufficiency of the evidence." (Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 625-626.) When determining whether substantial evidence is present, we do not resolve conflicts in the evidence, pass on the credibility of witnesses, or determine where the preponderance of the evidence lies. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) We merely determine if there is any substantial evidence, contradicted or not, which will support the conclusion of the trier of fact. (Ibid.) Substantial evidence is "reasonable, credible evidence of solid value such that a reasonable trier of fact could make the findings challenged . . . ." (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.) The burden is on the petitioner to show the evidence is insufficient to support the trial court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
"The adequacy of reunification plans and the reasonableness of [the department's] efforts are judged according to the circumstances of each case. [Citation.] Moreover, [the department] must make a good faith effort to develop and implement a family reunification plan. [Citation.] '[T]he record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult . . . .' [Citation.]" (Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1345.) The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
In the present case, the court made Victoria a dependent of the court because mother's substance abuse and issues of domestic violence created a situation where Victoria was at substantial risk of harm. The department set forth the problems leading to dependency in its reports. The department offered culturally sensitive services designed to remedy these specific problems.
The reunification plan outlined objectives for mother. The plan provided for private mental health counseling through UIHS and participation in Strengthening the Spirit, Red Road to Wellbriety, and the Talking Circle/Women's Support Group. The plan also required attendance at a 12-step meeting. In addition to these services, the department also made arrangements for mother to attend a 60-day inpatient substance abuse treatment program.
Mother does not allege that the department did not maintain reasonable contact with her or that it did not make reasonable efforts to help her comply with the plan. Indeed, the record shows that Friedrich met with mother at least twice a month when mother was not incarcerated and that the previous social worker met with mother once a week for a period of time to support her case plan. Furthermore, the department provided mother with financial assistance, bus passes, transportation, rides, referrals to services, visitation, and a social services aide. Thus, the department made reasonable efforts to assist mother in areas where compliance proved difficult.
Mother never objected to the plan until one month before the 18-month status review hearing. In fact, Friedrich testified that mother had told her that she liked the services through UIHS and that she was comfortable there. Mother also reported that she had a good relationship with McLennan, her counselor.
Mother claims that she availed herself of all the services but mother's participation in the UIHS services was "irregular." Once mother was arrested and was placed on probation, she was frequently incarcerated for having "dirty" drug tests and could not attend her services. Mother was terminated from MEND/WEND on September 8, 2011, because of her excessive absences.
Mother has not presented evidence that more mental health therapy or medication would result in her remaining sober. The instructor at MEND/WEND stated that mother needed to " 'address issues of extreme trauma in her past and its effect on her current situation[,]' " but the instructor did not suggest that mother's failure to address these problems was related to any deficiency in the services offered her.
The record establishes that the department was not advised by mother until one month prior to the 18-month hearing that she desired medication. McLennan told the department after the counseling ended that she believed medication would be helpful to mother and that mother should get involved in mental health services through the county, but the department was not obligated to provide mother with the best services possible. Mother had been offered mental health services and, as Friedrich stressed, mother had accessed the mental health services on only two occasions during the period of March 2010 until April 2011. There was no evidence that mother would benefit from medication and even mother testified that she simply "believed medication would help her with her anxiety and cravings" and added that it was "just an option" that she wanted to try. The department was not obligated to provide the services mother believed were best; rather the department had to provide services that were " 'reasonable under the circumstances.' " (In re T.G. (2010) 188 Cal.App.4th 687, 697.)
We agree with the juvenile court that the services offered mother may not have been "perfect," but the record establishes that they were reasonable under the circumstances. We conclude the record contains substantial evidence to support the juvenile court's finding that reasonable reunification services were offered or provided to mother.
II. Proceeding with the 18-Month Status Hearing
Mother contends that the lower court erred when it permitted the 18-month status hearing to proceed without the telephonic appearance of the Asa' Carsamuit Tribe. Mother cites no case to support this argument and simply cites California Rules of Court, rule 5.485.
California Rules of Court, rule 5.485 concerns the termination of parental rights. The 18-month status hearing did not result in the termination of parental rights and this rule is not relevant to the issue present here.
The Asa' Carsamuit Tribe has a right to intervene at any point in a dependency proceeding. (See 25 U.S.C.A. § 1911; § 224.4; Cal. Rules of Court, rules 5.482(e) & 5.534(i).) In the present case, the record does not show that the Asa' Carsamuit Tribe has intervened as a party and mother does not assert that it has. "If the tribe of the Indian child does not intervene as a party, the court may permit an individual affiliated with the tribe or, if requested by the tribe, a representative of a program operated by another tribe or Indian organization to" "[b]e present at the hearing . . . ." (Cal. Rules of Court, rule 5.534(i)(2)(A).)
Since the Asa' Carsamuit Tribe had not intervened and the juvenile court has the discretion under California Rules of Court, rule 5.534(i)(2)(a), to attend the hearing, mother is essentially arguing that the lower court should have continued the 18-month hearing to determine the reasons for the Asa' Carsamuit Tribe's failure to appear by telephone. The court grants continuances in a dependency matter only upon a showing of good cause by the requesting party; the court may not grant a continuance that is contrary to the child's interests. (§ 352, subd. (a); Renee S. v. Superior Court (1999) 76 Cal.App.4th 187, 196.) We review a denial of a continuance for an abuse of discretion. (In re Karla C. (2003) 113 Cal.App.4th 166, 180.)
In the present case, there is no allegation that the Asa' Carsamuit Tribe did not receive proper notice and, in fact, the tribe appeared telephonically at the hearing on November 4, 2011, where the court set the contested 18-month hearing for 9:00 a.m. on November 30, 2011. On November 30, between 9:00 a.m. and 10:00 a.m., the clerk made eight phone calls in an attempt to contact the tribe, but the phone calls went unanswered.
The juvenile court has no authority to compel the attendance of the Asa' Carsamuit Tribe at the 18-month hearing. The court properly concluded that the hearing should go forward without the tribe's participation because there was no dispute that the tribe had actual notice of the date and time of the hearing. Furthermore, mother presented no argument or evidence in the lower court or on appeal that a continuance was in Victoria's best interests.
We conclude that the trial court did not abuse its discretion in refusing to continue the hearing simply because the Asa' Carsamuit Tribe was not present despite the tribe's prior statement that it wished to appear telephonically. The tribe had actual notice of the hearing and the court took all reasonable steps to contact the tribe by telephone.
DISPOSITION
The petition for extraordinary writ is denied on the merits. Our decision is final as to this court immediately.
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Lambden, J.
We concur: ____________
Kline, P.J.
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Haerle, J.