Opinion
A153127
06-27-2018
In re J.H., a Person Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. B.H., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J16-01070)
B.H. (Father) appeals from the juvenile court's order following the six-month review hearing. Father alleges the juvenile court improperly included a finding of reasonable services that was neither reflected in its oral pronouncement nor the minute order, and the Contra Costa County Children & Family Services Bureau (Bureau) failed to comply with the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) notice requirements. We affirm the order.
I. BACKGROUND
In late November 2016, the Bureau filed a petition pursuant to Welfare and Institutions Code section 300, subdivision (b)(1) (substantial risk of serious physical harm) to establish dependency jurisdiction over minor based on his mother's (mother) chronic substance abuse problems and untreated mental health issues, including diagnoses of depression and anxiety. Following the detention hearing, the juvenile court ordered minor removed from mother's custody but allowed minor to remain in Father's custody.
At the disposition hearing, the court ordered Father to submit to a drug test because of his alleged history of substance abuse. Father refused to be tested and left the courthouse with minor. The minor was subsequently detained from Father.
The Bureau filed a subsequent petition, which alleged Father placed minor at substantial risk of physical harm as a result of his failure to adequately supervise and protect minor by (1) failing to abide by a court order to submit to a drug test; (2) fleeing the court with minor; (3) failing to cooperate with the social worker and law enforcement; and (4) allowing mother, from whom minor was detained, into the family home with the intent to leave minor solely in her care. The court sustained the allegations and ordered reunification services. These reunification services included general counseling and substance abuse testing.
In August 2017, the court conducted a six-month review hearing. The status review report filed by the Bureau recommended returning minor to Father and establishing a family maintenance plan. The report noted Father had engaged in mental health services through Kaiser Foundation Hospitals (Kaiser). During the reporting period, Father attended two in-person sessions and three telephone sessions. He also consistently tested negative on his random drug testing after first having three no shows and one positive test. During a team meeting at the end of July 2017, the Bureau informed Father it was considering recommending family maintenance provided mother did not reside in the family home.
Though the status report recommended returning minor to Father and establishing family maintenance, the court did not adopt the Bureau's recommendation as to Father, but instead scheduled a contested hearing for October 2017. During the hearing, the court received testimony from the paternal aunt, the Bureau, and Father. Father testified in part he attempted to obtain more frequent therapy, but Kaiser limited his therapy to once per month. The social worker testified Father's therapist recommended Father participate in group therapy. The social worker further testified she was unaware of Father doing so, while Father testified he was never instructed to attend group therapy.
At the conclusion of the hearing, the court commented Father failed to appreciate the risk posed by mother, "and it should not have taken basically five months for this mother to have left that home." The court further noted Father "attended very few therapy sessions. [The social worker] testified that his therapist recommended that he participate in group therapy, which he did not do. . . . [¶] In all fairness to [Father], it appears that Kaiser only provides monthly therapy sessions. Although the evidence is also that he hasn't had ongoing therapy sessions in person since I believe it's July. There have been some phone conversations." The court noted it was unclear why therapy "basically ended."
When evaluating whether to terminate services or continue them to a 12-month review hearing, the court expressed concerns regarding Father's "sparse and sporadic" therapy and the Bureau's delay in requiring mother to leave the family home. Based on all these considerations, the juvenile court found "by clear and convincing evidence that there is a substantial probability of return if this is extended to the 12 months" but found it necessary to increase therapy to address Father's codependency issues. The court then informed counsel it needed corrected recommendations consistent with its findings and rulings. Counsel for minor proposed circulating corrected recommendations among counsel and then submitting them to the court. The court accepted that proposal.
The subsequent minute order set the 12-month review and modified visitation, but did not contain any other orders. Thereafter, the court entered a written order after hearing which found, in part, "by clear and convincing evidence that the [Bureau] has provided or offered reasonable services to the parents which were designed to aid the parents in overcoming the problems which led to the initial removal and continued custody of the child." Father timely appealed.
II. DISCUSSION
On appeal, Father asserts (1) the Bureau failed to comply with ICWA notice requirements; and (2) the juvenile court failed to make requisite findings regarding the adequacy of services. We address each argument in turn. A. ICWA
Father contends the court erred by failing to require the Bureau to send ICWA notice to the Blackfoot and Mohawk tribes. He argues the initial ICWA-010 form and ICWA-related information in the detention report are sufficient to trigger notice requirements.
Father also takes issue with the Bureau's failure to contact mother's biological grandfather. In response, the Bureau filed a motion to augment the record with (1) a memorandum stating the Bureau conducted a search and could not locate mother's biological grandfather as part of its ICWA inquiry; and (2) a portion of a certified reporter's transcript confirming the juvenile court's prior finding that ICWA does not apply. Father opposes the motion to augment as violating the general rule that appeals assess error based solely on those matters before the juvenile court at the time of its ruling. However, courts have held a social services agency may cure an ICWA notice defect while an appeal is pending. (See, e.g., In re A.B. (2008) 164 Cal.App.4th 832, 841.) Augmentation of the record is consistent with the strong public policy of expeditiously resolving a minor's issues on appeal, and particularly appropriate when "admission of the evidence . . . would promote the finality of the judgment and prevent further delay." (Ibid.; Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 867.) Accordingly, we grant the Bureau's motion to augment.
1. Relevant Factual Background
In mid-November 2016, the Bureau filed the Welfare and Institutions Code section 300 petition along with an ICWA-010 form. That form noted minor may be a member or eligible for membership in the Blackfoot, Navajo, and Mohawk tribes. However, the form did not identify the source of that information. Around the same time, the Bureau also filed a detention/jurisdiction report. That report noted the Bureau had spoken with mother, who asserted minor's maternal grandmother has Blackfoot or Mohawk heritage and the maternal grandfather has Navajo heritage. The report noted the Bureau prepared the ICWA-010 form with this information. Father stated he did not have any Native American heritage.
Shortly thereafter, mother signed and filed an ICWA-020 form, which stated she is "or may be a member of, or eligible for membership in, a federally recognized Indian tribe." However, she did not identify any specific tribes in the subsequent section. Father also completed an ICWA-020 form stating he had " 'no Indian ancestry.' " A few months later, mother informed the Bureau she may have Native American ancestry but could not identify any specific tribes. The Bureau then contacted the maternal grandmother, who informed the Bureau she was " 'part Navajo.' " The maternal grandmother was unaware of any other family member who may have additional information. The Bureau also spoke with the maternal grandfather, who stated he had no Native American heritage. Nor could he provide information for any other relative who may have additional information. The Bureau was unable to obtain any information from the maternal or paternal great-grandmothers or great-grandfathers.
The Bureau subsequently prepared an ICWA-030 form and provided notice to the Colorado River Indian Tribes, Navajo Nation, Ramah Navajo School Board, Inc., and BIA Navajo Region. No notice was provided to the Blackfoot or Mohawk tribes.
2. Analysis
"ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes and families by establishing certain minimum federal standards in juvenile dependency cases." (In re Shane G. (2008) 166 Cal.App.4th 1532, 1538.) As part of its structure, ICWA imposes a notice requirement: "In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." (25 U.S.C. § 1912, subd. (a).) Likewise, California has adopted a parallel provision: "If the court, a social worker, or probation officer knows or has reason to know that an Indian child is involved, any notice sent in an Indian child custody proceeding under this code shall be sent to the minor's parents or legal guardian, Indian custodian, if any, and the minor's tribe . . . ." (Welf. & Inst. Code, § 224.2, subd. (a).)
" 'The determination of a child's Indian status is up to the tribe; therefore, the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement.' [Citation.] [Welfare and Institutions Code] Section 224.3, subdivision (a) places an 'affirmative and continuing duty' on the court and county welfare department in a dependency proceeding to 'inquire whether a child . . . is or may be an Indian child . . . .' Thus, if the court or social worker knows or has reason to know that an Indian child is involved, 'the social worker . . . is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members . . . and contacting the tribes and any other person that reasonably can be expected to have information regarding the child's membership status or eligibility.' ([Welf. & Inst. Code,] § 224.3, subd. (c).)" (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1466.)
However, a vague, attenuated, or speculative assertion of possible tribal ancestry does not necessarily trigger ICWA's protections. (In re Hunter W., supra, 200 Cal.App.4th at p. 1468 [no duty to inquire further when mother said she "may have Indian heritage through her father," but could not identify a tribe or a relative who was a tribe member, and could not identify others who knew more].) Whether there is reason to know an Indian child is involved in a juvenile proceeding depends on the nature and specificity of available information as well as the credibility of the source of information and the basis of the source's knowledge. (See B.H. v. People ex rel. X.H. (Colo. 2006) 138 P.3d 299, 303.) "We review a court's ICWA findings for substantial evidence." (In re Hunter W., at p. 1467.) If there is insufficient reason to believe the child is an Indian child, notice need not be given. (In re Shane G., supra, 166 Cal.App.4th at p. 1538.)
Here, the Bureau reasonably omitted the Blackfoot and Mohawk tribes from its ICWA notice. Mother's initial claims of Blackfoot and Mohawk heritage through the maternal grandmother were contradicted upon further investigation. (See, e.g., In re N.M. (2008) 161 Cal.App.4th 253, 261-262, 267 [juvenile court found mother's claims of tribal affiliation not credible].) The maternal grandmother informed the Bureau she only had Navajo heritage. The Bureau also obtained information from the maternal grandfather, who denied having Native American heritage, and attempted to contact the great-grandfather. Accordingly, no further investigation or ICWA notice was required as to the Blackfoot and Mohawk tribes. (See In re O.K. (2003) 106 Cal.App.4th 152, 157; compare with In re Damian C. (2009) 178 Cal.App.4th 192, 199 [a family member's statements he had heard conflicting stories concerning whether the family had Indian heritage triggered a duty to further investigate and provide notice to the tribes].) While only a minimal showing is needed to trigger ICWA notice, mother's assertion of Blackfoot and Mohawk heritage remained attenuated, speculative, or vague following the Bureau's investigation. ICWA notice thus was not required. (In re Shane G., supra, 166 Cal.App.4th at p. 1539.) B. Reasonable Services Finding
The trial court's order following its six-month review hearing found that reasonable services had been provided to Father. However, neither the oral pronouncement of the court nor the minute order reflected such a finding. Father asserts this court should reverse the juvenile court's order finding he received reasonable reunification services. Specifically, Father argues the court's oral statements criticize the quality of the reunification services and suggest reasonable services were not provided. Father contends these oral statements must prevail over the order after hearing. In response, the Bureau contends Father's claim is forfeited because he failed to raise it below and, in any event, Father's claim lacks merit.
When a child is removed from parental custody, "the court must review the case at least once every six months to determine whether the child may be returned to the parents and whether reasonable reunification services have been afforded the family." (In re Daniel G. (1994) 25 Cal.App.4th 1205, 1210.) Welfare and Institutions Code section 366.21, subdivision (e)(8) states "the court shall determine whether reasonable services . . . have been provided or offered to the parent or legal guardian." (Italics added.) When it appears at the six-month review hearing that a parent has not been afforded reasonable reunification services, the remedy is to extend the reunification period and order continued services. (See In re Monica C. (1995) 31 Cal.App.4th 296, 310.)
Here, Father correctly notes the order after hearing finds reasonable services, but no such express finding was made either orally or in the minute order. However, we see no inherent conflict between the court's oral pronouncement and the order after hearing. At the hearing, the court noted Father declined to participate in recommended group therapy and failed to utilize the monthly therapy sessions offered by Kaiser. Testimony indicated Father only attended two in-person therapy sessions. While the court questioned why the Bureau was unconcerned with the "sparse and sporadic" therapy obtained by Father, it is unclear whether the court would have found the therapy "sparse and sporadic" had Father attended monthly in-person therapy and the recommended group therapy.
Regardless, we need not resolve whether the court erroneously held—or failed to hold—reasonable services were provided. In this case, the juvenile court ordered an additional six months of services—the same remedy it would have provided if Father had not been afforded reasonable services. (Welf. & Inst. Code, § 366.21, subd. (e)(3) ["If . . . the court finds there is a substantial probability that the child, who was under three years of age on the date of initial removal . . . , may be returned to his or her parent or legal guardian within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing."]; In re J.P. (2014) 229 Cal.App.4th 108, 121-122 ["Generally, the remedy for not offering or providing reasonable reunification services to a parent is an extension of reunification services to the next review hearing."].) Accordingly, even if we concluded the juvenile court failed to find reasonable services or found reasonable services were not provided, no further relief is available to Father beyond that already provided by the juvenile court.
We note services were terminated for Father at the 12-month review hearing. Accordingly, there is no issue regarding whether Father may be entitled to additional services beyond 18 months had reasonable services not been provided prior to the six-month review hearing. (Compare, e.g., In re Daniel G., supra, 25 Cal.App.4th at p. 1213 [juvenile court has discretion to extend reunification services beyond 18-month limitation period if it finds reasonable services had not been provided].)
III. DISPOSITION
The juvenile court's order following the six-month review hearing is affirmed.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Banke, J.