Opinion
A132680
01-23-2012
In re A.T., a Person Coming Under the Juvenile Court Law. DEL NORTE COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Appellant, v. JAMIE K., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JVSQ116021)
The Del Norte County Department of Health and Human Services (the Department) appeals the juvenile court's dispositional order granting Jamie K. (mother) reunification services for her daughter, A.T. The Department contends the court erred by failing to apply the bypass provision set forth in Welfare and Institutions Code section 361.5, subdivision (b)(10).
Unless otherwise noted, all further statutory references are to the Welfare and Institutions Code.
Section 361.5, subdivision (b)(10) provides in relevant part: "[r]eunification services need not be provided to a parent . . . described in this subdivision when the court finds, by clear and convincing evidence, any of the following: . . . That the court ordered termination of reunification services for any . . . half siblings of the child because the parent . . . failed to reunify with the . . . half sibling after the . . . half sibling had been removed from that parent . . . and that parent . . . is the same parent . . . described in subdivision (a) and that, according to the findings of the court, this parent . . . has not subsequently made a reasonable effort to treat the problems that led to removal of the . . . half sibling of that child from that parent. . . ."
Matthew B. (father) is not a party to this appeal and is mentioned only where relevant to the issues raised in mother's appeal. (In re V.F. (2007) 157 Cal.App.4th 962, 966, fn. 2, superseded by statute on other grounds as stated in In re Adrianna P. (2008) 166 Cal.App.4th 44, 5758.)
We agree and reverse. We conclude the court abused its discretion by granting mother reunification services in light of the termination of reunification services in mother's previous cases, combined with her failure to make a reasonable effort to remedy the problems leading to the removal of those children from her custody and the absence of evidence supporting a finding that reunification would be in A.T.'s best interest. (§ 361.5, subd. (b)(10).)
FACTUAL AND PROCEDURAL BACKGROUND
A.T. was born in 2003. She and mother are enrolled members of the Yurok Tribe (Tribe). In February 2011, the Department filed a section 300 petition alleging mother and father's substance abuse problems prevented them from caring for A.T. The petition further alleged: (1) mother left A.T. with a caretaker who was unable to meet A.T.'s needs; (2) mother's whereabouts were unknown; (3) she had "lost custody of five . . . of [A.T.'s] half-siblings[;]" and (4) these half-siblings were in guardianships. (§ 300, subds. (b), (g), (j).)
The Department located mother and served her with a copy of the petition. It told her that the detention hearing was set for that day and offered to provide her with transportation to the hearing. Although mother stated she "could get a ride" to the detention hearing, she did not appear and "failed to contact the Department regarding visitation with [A.T.]." The court detained A.T. and the parties submitted to jurisdiction. The court declared A.T. a dependent of the court, finding all of the allegations in the petition true except the allegation that mother's whereabouts were unknown.
In its March 16, 2011 disposition report, the Department recommended providing reunification services for father, but not for mother. The Department noted mother "failed to reunify with any of her five children in previous court cases and has not contacted the Department since the filing of this case to inquire about her daughter or to arrange for visits. [Father] . . . cannot remember the last time [mother] visited with her daughter. Based on [mother]'s past failure to reunify and her lack of contact with the Department since the petition was filed . . . the Department is recommending no reunification services be provided to her. In the case of V.P. [A.T.'s half sibling], the Department did not offer services to [mother] based on her failure to participate in or complete any Court ordered case plan in her other four children's cases." The Department noted it had been unable to contact mother by phone but had mailed her a letter on March 15, 2011 "requesting a call if she is interested in setting up visits with [A.T.]"
In a supplemental disposition report, the Department summarized the court cases involving A.T.'s half siblings:
• Dwayne and Victor K. were removed from mother's care in 1999; the court terminated reunification services and placed the children in guardianship after mother failed to attend substance abuse counseling, parenting classes, did not visit the children consistently, did not attend individual counseling sessions, and declined to take drug tests.
• T-T. K. was detained in 2001 and mother initially declined to participate in reunification services. Later, the Department offered "services to [mother] in which she did reunify with [T-T. K.] and the case was closed. Shortly
after the case was closed a relative of [T-T. K.] was granted legal guardianship based on [mother's] substance abuse and lack of proper care for the child."
• Nathaniel P. was detained in 2005. The court terminated reunification services based on mother's failure to drug test, her positive drug tests, her inconsistent attendance at parenting classes, and her failure to visit Nathaniel consistently. Mother did not "attend any scheduled services" despite being offered a voluntary case plan. V.P. was detained in 2006 after she "was born positive for methamphetamine." The court denied reunification services "based on [mother's] non-compliance in her previous children's [c]ourt cases."
• In a previous case regarding A.T., the court offered mother six months of reunification services, including drug and alcohol counseling, parenting classes, weekly drug testing and visitation. Mother did not "attend alcohol and other drug [counseling], did not attend the parenting classes, did not submit to drug testing . . . and requested one visit with her daughter, which she was a no call/no show for." The court terminated reunification services in 2005.
Before the disposition hearing, Indian Child Welfare Act expert Richard England submitted a report describing mother's "extensive history" with the Department "over many years." England noted the Department had "been providing services to the family without much resolve bringing them to their current circumstances" and had "tried to work with both parents over the years to ensure that they were part of the case plan." England stated mother "had not followed through with meeting with the social workers on what's best for [A.T.]" and had "not been able to put forth the effort that it takes to be what her daughter needs. . . . This lack of concern and action is not culturally appropriate or acceptable from a tribal and community perspective. [Mother] has continued putting her wants and addictions before her daughter."
England noted mother had "lost four of her children over the last ten years and seems to be still leading the same lifestyle that brought those circumstances about . . . she has not seemed to access or seek out the appropriate help and services that could potentially allow her the opportunity to be reunited with her daughter. . . ." England opined mother "has not been able to provide her children with the right care, environment, or home for a number of years and this seems to continue to be the case."
After numerous continuances, the court held the disposition hearing in May 2011. Mother was present for the first time in the case, in custody. England testified returning A.T. to either parent would damage her psychologically, physically, and emotionally. In contrast to his report, however, England opined reunification services were appropriate for mother. When asked whether he felt the Department had provided "active efforts" to prevent the breakup of the Indian family before removing A.T., England explained he had a "concern . . . that if we didn't offer services that it didn't meet active efforts." England interpreted "active efforts" to mean "a phone call, a referral for services . . . that sort of contact versus actually going out and communicating with the person and actually trying to get them to the services, putting time and effort and energy into taking them to the service or . . . doing something more along those lines."
25 United States Code section 1912, subdivision (d) provides: "Any 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." Section 361 imposes a similar requirement.
England explained that he amended his report because his concern "was that in future cases if we had a situation like this that I didn't want to set a precedent and not offer somebody the services to be able to try and reunify." England conceded, however, that he and the Department tried to contact mother but were unsuccessful. He also acknowledged he did not realize the Department met with mother before the detention hearing and offered to transport her to the hearing. England testified the Department's act of going to mother's home and offering to provide transportation to the detention hearing was an "active effort" but not "active efforts." Finally, England conceded he had recommended not providing mother with reunification services for V.P. and there had "been minimal effort on [mother's] part to engage services" for any of her children.
England's amended report is not part of the appellate record.
Social worker Cindy Farren described her attempts to contact mother, including calling her, writing her letters, and sending her all of the reports and notices of hearings. Farren stated that none of the mail she sent to mother had been returned. Farren noted she had spoken to the Tribe about mother and about placements for A.T. and had tried, diligently, to locate Tribe members with whom to place A.T. Farren explained that the Tribe wanted to offer reunification services to mother, but did not specify what it considered "active efforts." Instead, the Tribe "said . . . [it] wanted [the Department] to offer [mother] services."
Farren testified that in a prior case involving A.T., mother received six months of reunification services but "did not attend any of the services provided" and did not visit A.T. Farren also testified mother had been arrested three times since 2008 for substance-abuse related crimes. When asked what length of time mother would need to complete a case plan if she were offered services, Farren testified "it would be quite a bit of time involved . . . [I]t would require [D]epartment time to . . . go pick her up and make sure she goes to each and every service that's provided based . . . on her history."
At the conclusion of the Department's case, the Tribe argued, among other things, there was not clear or convincing evidence of "active efforts to prevent the breakup of the Indian family. . . ." The court rejected that argument, stating, "I am not really ready to grant your motion to say that there's been no active efforts. . . . [B]ased upon what I've heard . . . from everybody involved in this matter . . . we have to make a finding that . . . the active efforts by the [D]epartment have not been successful . . . rather than to say no active — insufficient active efforts or unreasonable active efforts."
After finding the Department had made "active efforts," the court ordered 12 months of reunification services for mother and father. The court noted "[e]fforts in the past have been made to provide remedial services, which were not successful, in establishing engaging rehabilitative programs designed to prevent the breakup of the Indian family. As indicated, those efforts have proved to be unsuccessful both as to . . . mother as well as father." The court also found mother had "a history of extensive abusive and chronic use of drugs or alcohol and has further refused in the past to comply with a program of drug and alcohol treatment as described in this case [and] on at least five prior occasions even though those programs were available and accessible. . . . Up until this time, the extended progress for alleviating and mitigating the cause of necessitating placement in foster care has been by the mother insufficient. . . ."
DISCUSSION
"As a general rule, reunification services are offered to parents whose children are removed from their custody in an effort to eliminate the conditions leading to loss of custody and facilitate reunification of parent and child. This furthers the goal of preservation of family, whenever possible. [Citation.]" (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478 (Baby Boy H.); In re Allison J. (2010) 190 Cal.App.4th 1106, 1112.) Section 361.5, subdivision (b) sets forth certain exceptions — called reunification bypass provisions — to this "general mandate of providing reunification services[.]" (In re Joshua M. (1998) 66 Cal.App.4th 458, 470 (Joshua M.).) "Section 361.5, subdivision (b) 'reflects the Legislature's desire to provide services to parents only where those services will facilitate the return of children to parental custody.'" (Allison J., supra, 190 Cal.App.4th at p. 1112, quoting Joshua M., supra, 66 Cal.App.4th at p. 470.) In section 361.5, subdivision (b), the Legislature "recognize[d] that it may be fruitless to provide reunification services under certain circumstances. [Citation.]" (Baby Boy H., supra, 63 Cal.App.4th at p. 478.) When the court determines a bypass provision applies, the general rule favoring reunification is replaced with a legislative presumption that reunification services would be "'an unwise use of governmental resources.' [Citation.]" (In re Ethan N. (2004) 122 Cal.App.4th 55, 65, quoting Baby Boy H., supra, 63 Cal.App.4th at p. 478.)
Section 361.5, subdivision (b)(10) is a reunification bypass provision. Pursuant to that statute, "[r]eunification services need not be provided to a parent . . . when the court finds, by clear and convincing evidence, any of the following: . . . That the court ordered termination of reunification services for any . . . half siblings of the child because the parent . . . failed to reunify with the . . . half sibling after the . . . half sibling had been removed from that parent . . . and that parent . . . is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent . . . has not subsequently made a reasonable effort to treat the problems that led to removal of the . . . half sibling of that child from that parent[.]" Therefore, "[t]o apply section 361.5, subdivision (b)(10) . . . the juvenile court must find both that (1) the parent previously failed to reunify with a sibling [or half sibling] and (2) the parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling [or half sibling]. [Citations.]" (In re Albert T. (2006) 144 Cal.App.4th 207, 217, fn. omitted.)
Here, the court ordered reunification services for mother over the Department's objection and against its recommendation, apparently concluding the exception to reunification services set forth in section 361.5, subdivision (b)(10) did not apply. We review the court's order awarding reunification services for abuse of discretion. (In re N.M. (2003) 108 Cal.App.4th 845.) "A juvenile court's dispositional orders, including those respecting reunification services, are subject to that court's broad discretion. To reverse such an order, a reviewing court must find a clear abuse of discretion. [Citation.]" (In re N.M., at p. 852.)
The Department contends it satisfied the first prong of section 361.5, subdivision (b)(10), specifically that mother failed to reunify with A.T.'s half siblings. Mother and the Tribe do not contend otherwise, perhaps in light of the undisputed evidence presented at the jurisdiction hearing that mother failed to reunify with A.T.'s half siblings and failed to reunify with A.T. in a prior case. In at least one of mother's prior dependency cases, the court did not offer reunification services, presumably based on section 361.5, subdivision (b)(10).
The Tribe, however contends the Department did not satisfy the second prong of section 361.5, subdivision (b)(10) — i.e., that the Department did not demonstrate mother failed to make a reasonable effort to treat the problems leading to the removal of A.T.'s half siblings. The Tribe notes that mother's "last failure at reunification" was in 2006 and claims there was no evidence she had not made a reasonable effort to treat the problems leading to the removal of A.T.'s half siblings in "the ensuing five years."
We disagree. Here, there was clear and convincing evidence — indeed overwhelming evidence — mother made no effort whatsoever to treat the problems leading to the removal of A.T.'s half siblings. (§ 361.5, subd. (b)(10).) Mother had an "extensive history" with the Department spanning over a decade. Her first involvement with the Department came in 1999, when her sons, Dwayne and Victor, were removed from her custody. The court terminated reunification services after she failed to attend mandated substance abuse counseling, parenting classes, and declined to visit the children consistently and take drug tests. In 2005, the court detained Nathaniel P. and terminated reunification services for the same reasons, and when the Department voluntarily offered mother a case plan, she did not participate in any of the services. That same year, the court detained A.T. and terminated reunification services because mother did not participate in drug and alcohol counseling, did not visit A.T., and declined to submit to drug tests. The following year, in 2006, the court detained V.P. after she was born positive for methamphetamine; the court did not offer mother reunification services based on "non-compliance in her previous children's [c]ourt cases."
When the Department detained A.T. in early 2011, mother had not made any effort — let alone a reasonable one — to try to correct the problems leading to the removal of A.T.'s half siblings. Mother declined to attend the detention hearing and did not request visitation with A.T. — she appeared for the first time in the case at the disposition hearing, in custody. At the disposition hearing, the social worker testified mother had been arrested in 2008, 2009, and 2010 for substance-abuse related crimes. Additionally, England, the ICWA expert, opined mother had consistently put her "wants and addictions" before A.T.'s needs and "ha[d] not been able to put forth the effort" to properly care for A.T. England stated mother was "still leading the same lifestyle that brought those circumstances about" the removal of A.T.'s half siblings and did not "access or seek out the appropriate help and services that could potentially allow her the opportunity to be reunited with her daughter. . . ." Clearly, mother's dependence on drugs was a problem leading to the removal of her children and she made no effort to remedy that problem.
The court itself noted mother's failure to treat the problems leading to the removal of her children. The court determined mother had "a history of extensive abusive and chronic use of drugs or alcohol and has further refused in the past to comply with a program of drug and alcohol treatment as described in this case [and] on at least five prior occasions even though those programs were available and accessible. . . . [^] Up until this time, the extended progress for alleviating and mitigating the cause of necessitating placement in foster care has been by the mother insufficient. . . ."
We are mindful that "[t]he 'no reasonable effort' clause provides a means of mitigating a harsh rule that would allow the court to deny services based only upon the parent's prior failure to reunify with the child's sibling 'when the parent had in fact, in the meantime, worked toward correcting the underlying problems.'" (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 97 (Cheryl P.), quoting In re Harmony B. (2005) 125 Cal.App.4th 831, 842.) The "'reasonable effort to treat'" standard under section 361.5, subdivision (b)(10) "is not synonymous with 'cure'" (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464) but to be reasonable, the parent's efforts must be more than "lackadaisical or half-hearted[.]" (Cheryl P., supra, 139 Cal.App.4th at p. 99.) Here, mother made no effort, let alone a reasonable effort, to correct the problems underlying the removal of her children.
As the Tribe concedes, the court ordered that reunification services should be provided without making any finding, by clear and convincing evidence, that reunification was in A.T.'s best interests pursuant to section 361.5, subdivision (c). The court did not state a reason why it would be in A.T.'s best interest to attempt a pointless effort at reunification while delaying a permanent disposition. There was no evidence in the record to support such a finding, particularly where England testified at the disposition hearing that returning A.T. to mother's care would damage her psychologically, physically, and emotionally. It was mother's burden to demonstrate reunification was in A.T.'s best interest and she failed to do so. (See, e.g., In re Ethan N., supra, 122 Cal.App.4th at p. 66.)
The court may have ordered reunification services because England felt such services were appropriate. England's opinion that services should be offered to mother was based on his fear that not offering mother services would "set a precedent" in future cases and would preclude the court from offering "somebody the services to be able to try and reunify." The court determined the Department made "active efforts" within the meaning of 25 United States Code section 1912, subdivision (d) and other relevant statutes. Neither mother nor the Tribe challenges this finding on appeal.
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We conclude the Department met its burden to prove, by clear and convincing evidence, that mother had not made a reasonable effort to treat the problems that led to the removal of her children. Mother's history and conduct in the current case gave the court ample reason to deny reunification services pursuant to section 361.5, subdivision (b)(10). Mother's failure to reunify in numerous other instances, combined with her chronic drug use, meant it was an abuse of discretion to order reunification services for A.T. where there was no evidence reunification would be in her best interest. (§ 361.5, subd. (b)(10), (c).)
We reject the Tribe's contention that reunification services were mandatory under section 361.5, subdivision (e)(1), which provides, "[i]f the parent . . . is incarcerated . . . the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child" and lists factors the court should consider when determining detriment. In In re Jasmine C. (1999) 70 Cal.App.4th 71, 76-77, the court considered — and rejected — this argument. The court explained section 361.5, subdivision (b) "contains numerous grounds on which the juvenile court may deny reunification services to any parent, incarcerated or not. Subdivision (e) of that same section, which applies only to an incarcerated or institutionalized parent, contemplates services absent any of the possible disqualifying grounds listed in the earlier subdivision (b)." (In re Jasmine C., supra, 70 Cal.App.4th at p. 77.) The Tribe does not argue In re Jasmine C. was wrongly decided. Here, the record supports the denial of reunification services pursuant to section 361.5, subdivision (b)(10), rendering section 361.5, subdivision (e)(1) inapplicable.
We are not persuaded by the Tribe's claim that the court impliedly awarded reunification services because it determined England was not a "qualified expert witness" pursuant to 25 United States Code section 1912, subdivision (e). That statute provides, "[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." The problem with this argument is the parties stipulated to England's qualifications as an "expert in the placement of Yurok children" and the court impliedly accepted the stipulation.
DISPOSITION
The dispositional order granting mother reunification services is reversed. The matter is remanded to the juvenile court with directions to prepare a new order denying mother reunification services pursuant to section 361.5, subdivision (b)(10).
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Jones, P.J.
We concur:
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Needham, J.
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Bruiniers, J.