Opinion
F084969
05-23-2023
In re ABIGAIL A., a Person Coming Under the Juvenile Court Law. v. J.A., Defendant and Appellant. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Ashley N. McGuire, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County No. 20CEJ300269-2 Todd D. Eilers, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel C. Cederborg, County Counsel, and Ashley N. McGuire, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT [*]
J.A. (mother) appeals the order, made pursuant to Welfare and Institutions Code section 366.26, terminating her parental rights and identifying adoption as the permanent plan for her now two-year-old daughter, Abigail A. Mother, an enrolled member of the Pascua Yaqui Tribe, contends there was insufficient evidence to support the juvenile court's finding that the Fresno County Department of Social Services (department) made active efforts to prevent the breakup of her Indian family as required by the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA). We affirm.
Statutory references are to the Welfare and Institutions Code unless indicated otherwise.
PROCEDURAL AND FACTUAL SUMMARY
1. Dependency Proceedings Through Disposition
Dependency proceedings regarding Abigail were initiated in December 2020. At that time, mother had an open dependency case regarding her then 13-year-old daughter, E.A., stemming from a serious rollover car accident that occurred in September 2020. Mother was then 29 weeks pregnant with Abigail. Charles, mother's husband and Abigail's father, was also in the car. E.A. was ejected from the car, lost consciousness, and sustained acute midline lower back pain and head pain. Mother tested positive for methamphetamine at the hospital.
The juvenile court denied mother reunification services regarding E.A. at a contested dispositional hearing in October 2021 and set a section 366.26 hearing. Mother challenged the court's orders by extraordinary writ petition (Cal. Rules of Court, rule 8.450), which we denied in J.A. v. Superior Court (Jan. 21, 2022, F083491) [nonpub. opn.]. On our own motion, we take judicial notice of our case file and opinion in case No. F083491. (Evid. Code, §§ 452, subd. (d), 459, subds. (a)-(c).)
While hospitalized, E.A. revealed that she was sexually abused by her uncle a couple of weeks before. She disclosed the abuse to mother but mother did not believe her. The department was contacted by a mandated reporter.
The department took E.A. into protective custody and filed a dependency petition, alleging she came within the juvenile court's dependency jurisdiction under section 300, subdivisions (a) (serious physical harm), (b)(1) (failure to protect), (c) (serious emotional damage) and (d) (sexual abuse). The department placed E.A. in foster care. The whereabouts of E.A.'s alleged father were unknown.
The juvenile court ordered E.A. detained, offered mother parenting classes, substance abuse, mental health and domestic violence assessments and recommended treatment and random drug testing pending its disposition of the case. The court set the matter for a jurisdiction/disposition hearing on October 14, 2020. Mother disclosed her Indian ancestry through the Pascua Yaqui Tribe of Arizona (the tribe).
The juvenile court adjudged E.A. a dependent child as alleged at the hearing on October 14, 2020, and set the disposition hearing for December 9, 2020.
Meanwhile, the tribe formally intervened in E.A.'s case and mother gave birth to Abigail.
On December 7, 2020, the department received a referral that Charles had an open child welfare case in Madera County regarding his other children. A home evaluation was conducted. The home did not meet the minimal requirements, however, the parents had adequate food and supplies. Abigail was not taken into protective custody at that time.
On December 8, 2020, mother and Charles left California with E.A. and Abigail and moved in with the maternal grandmother on a reservation in Arizona. They later admitted they were under the influence of methamphetamine when they left with the children. On December 10, the Arizona Department of Child Safety conducted a welfare check at the maternal grandmother's home. The parents were there with the children but refused to provide any information. The Arizona Department of Child Safety took E.A. and Abigail into protective custody.
Mother appeared before the Fresno County Juvenile Court via video for the disposition hearing on December 9, 2020, regarding E.A. and the court granted the tribe's request to intervene. The court continued the disposition hearing to February 10, 2021.
On December 17, 2020, the department conducted a team decision meeting by conference call regarding Abigail. Mother and Charles were present as were maternal relatives, social workers, the ICWA tribal representative, and the tribal attorney. Asked whether she was participating in services, mother said she would start the following day. The decision was made that Abigail would remain out of the home. Fresno County was given permission to place Abigail in foster care until the tribe could identify a tribal home. Abigail remained in the same foster care home throughout the proceedings.
The department filed a petition on Abigail's behalf, alleging she was a minor described under section 300, subdivision (b)(1) (failure to protect) and (j) (abuse of a sibling). It was subsequently amended to allege counts under subdivision (a) (serious physical harm) and (d) (sexual abuse). The tribe moved to intervene in Abigail's case.
Mother and Charles completed mental health assessments in January and February 2021, respectively, and were recommended for treatment.
On February 10, 2021, the juvenile court granted the tribe's request to intervene in Abigail's case, continued the disposition hearing as to E.A. to March 17, 2021, and set a jurisdiction/disposition hearing as to Abigail for the same date.
In reports prepared for the jurisdiction/disposition hearing, the department recommended the juvenile court deny mother services to reunify with E.A. and Abigail under section 361.5, subdivision (b)(6) because of the severe sexual abuse and physical harm E.A. suffered and under subdivision (b)(15) because mother abducted E.A. and Abigail. It also recommended the court deny mother services in Abigail's case under subdivision (b)(7) because it was recommending denial of services to E.A. under subdivision (b)(6). It recommended the court deny Charles services under subdivision (b)(15) and E.A.'s alleged father under section 361.5, subdivision (a).
On March 17, 2021, the juvenile court set a contested jurisdiction/disposition hearing as to Abigail on June 29, 2021, and a settlement conference on June 14. The court set a contested disposition hearing as to E.A. for June 29.
At the settlement conference on June 14, 2021, mother submitted on jurisdiction as to Abigail and the tribe did not object. The juvenile court sustained the allegations as to her. Mother contested the denial of reunification services, however, and the tribe joined. The court confirmed the contested disposition hearing, which was conducted on October 27, 2021.
2. The Contested Disposition Hearing; October 27, 2021
Mother's attorney submitted certificates of courses mother completed through the Sierra Tribal Consortium (STC). She completed an Eating Smart, Being Active class on July 22, 2021, a 12-week Fatherhood is Sacred, Motherhood is Sacred Program on August 4, 2021, a 90-Day Alcohol and Other Drug Abuse Recovery Program, a 12-week Healthy Relationships Program, a 12-week Positive Indian Parenting Program and a 12-week Anger Management Program on August 26, 2021. The court attached the certificates to the department's addendum report.
Mother testified she contacted the STC for help with her substance abuse problem and attended their 90-day residential program. She completed classes in relapse prevention and the 12-step program as part of the substance abuse program. She attended weekly "Wellbriety" meetings to maintain her sobriety. She also participated in mental health therapy. She learned better parenting skills, how to be more patient, especially when dealing with a teenager, how to nurture a baby and to be culturally appropriate. She gave May 27, 2021, as her sobriety date. She had not used marijuana since then. She learned to look for physical cues that she was getting angry and learned methods to process rather than act on her anger.
Mother regularly visited E.A. once a week and Abigail twice a week with supervision. She asked for increased visitation but was told there was a wait list and it was impossible to add any more visits. Mother believed E.A. and Abigail were strongly bonded to her. She also believed offering her reunification services was in the children's best interests because it was her first child welfare case and she wanted a chance to be a mother to Abigail. She also wanted to rebuild her bond with E.A. She acknowledged it was a bad decision to go to Arizona, which she attributed to her methamphetamine use.
Social worker Cheryl O'Conner testified mother had five positive drug test results for marijuana since August 22, 2021. Her last positive result was on September 13, 2021. There was no pattern to her THC levels; they went up and down. She tested eight times subsequent to September 13, all with negative results. Although Charles entered a drug treatment program, the department was concerned that he continued to use drugs.
The juvenile court found mother lacked credibility regarding her sobriety and was concerned about the parents' continuing drug use. The court was unwilling to risk a repeat of the accident that occurred in September 2020, stating, "[I]f these children were ever ultimately returned to [their parents], I can't risk what happened last year in an accident like that. I'm just not going to put it on my [conscience]." The court found ICWA applied and that active efforts had been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and those efforts proved unsuccessful. The court ordered the children removed from parental custody, denied the parents reunification services as recommended and ordered twice monthly supervised visits. A section 366.26 hearing was set for February 23, 2022.
Mother filed an extraordinary writ petition (case No. F083491), challenging the juvenile court's orders removing E.A. and Abigail from her custody and denying her reunification services. She did not challenge the court's active efforts finding. We denied her petition.
3. The Section 366.26 Hearing; September 7, 2022
In its report for the section 366.26 hearing, the department recommended the juvenile court terminate parental rights and free Abigail to be adopted by her foster parents who are Indian although not through a federally recognized tribe. They were committed to maintaining contact with the ICWA representative and ensuring Abigail maintained her tribal roots. The tribe supported termination of parental rights and adoption. As to E.A., who was placed in a short-term residential treatment program, the department recommended a permanent plan of long-term foster care. The department did not believe terminating parental rights would have a detrimental effect on Abigail with respect to E.A. because she did not have an established sibling relationship with her.
Although the parents visited Abigail, the department did not believe they had a parent/child relationship with her. Abigail cried throughout the visits and appeared uncomfortable with them. She was happy once reunited with her prospective adoptive mother and clung to her following visits. In February and twice in March 2022, the parents missed three consecutive visits and were removed from the visitation schedule. Around this same time, the prospective adoptive mother reported Abigail cried all the way home and had nightmares after visits. Her mental state improved once visitation stopped. The parents resumed visitation on June 15, 2022, however, the visit was terminated early after mother became confrontational with Charles and Abigail became distressed. Abigail did not attend the next three weekly visits. According to the prospective adoptive mother, Abigail would not allow herself to be buckled into her car seat to go to visits and cried" 'no.'" She visited with her parents on August 3, 2022, but had a difficult time and was held by the visitation monitor. When mother attempted to hold her, she turned to the side and hugged the staff member. That was their last visit.
On February 23, 2022, the juvenile court set a contested section 366.26 hearing on June 8, 2022, as to Abigail only. Mother's attorney filed a statement of contested issues, arguing termination of mother's parental rights would be detrimental because she and Abigail had a beneficial parent-child relationship and it would substantially interfere with Abigail's relationship with E.A. The hearing was continued to September 7, 2022, so that Richard England, the ICWA qualified expert witness, could testify.
England testified he reviewed the department's reports, including the case notes. He opined there was evidence beyond a reasonable doubt that the parents' continued custody of Abigail would subject her to serious physical damage. He based his opinion on their lengthy history of methamphetamine use, domestic violence and neglect and unwillingness to work with the department and the tribe. The tribe was also concerned about their inability to protect Abigail given the circumstances of the rollover car accident. He believed active efforts had been made to prevent the breakup of the Indian family because the parents had ample opportunity to engage in reunification services beginning with E.A.'s case. The tribe was also in agreement with Abigail's placement and adoption by her foster parents.
On cross-examination by mother's attorney, England testified he knew mother engaged in reunification services but did not believe that she did everything required of her. He did not review the transcript of mother's testimony at the disposition hearing regarding mother's active efforts to participate in services. He was aware the children were registered members of the tribe. He was also aware the prospective adoptive parents were not members of the tribe but had spoken to the tribal representative who felt confident they would help the children maintain their tribal connection. He did not know if there was a plan to keep the children in contact. He believed that was something to be decided by the family, tribe and department.
Mother testified the department did not communicate with her after the disposition hearing. No one from the department expressed any concern about the girls being placed separately. Mother believed it was important for them to have a continuing relationship. Abigail cried at the beginning of visits but left smiling. She let mother kiss her on the cheek or hug her goodbye and she squeezed mother's neck hard. She completed services through the STC and continued to participate in mental health therapy and "Wellbriety" through the Fresno American Indian Health Project. She was also employed by the city college part time as a drug and alcohol counselor for the Indian community.
Social worker Mayly Vang testified about mother's missed visits and her difficulty getting in touch with mother. During a phone call regarding the June 15, 2022, visit and the parents' confrontational behavior, mother hung up on her and she had not been able to get in touch with her since.
Mother's attorney argued mother opposed a traditional adoption but would not be opposed to a customary adoption, given her Indian ancestry and culture. He also argued England's testimony was insufficient to show Abigail would suffer severe emotional or physical damage in mother's custody because England was not provided evidence of mother's progress in services presented at the dispositional hearing. There was also no plan to ensure that the children would continue to participate in the tribe's culture. Mother's attorney also argued that it would be detrimental to Abigail to terminate mother's parental rights because Abigail was bonded to mother and to E.A. Customary adoption would better serve Abigail's best interest by preserving her relationship with mother and E.A. and her connection to her tribal roots.
The juvenile court terminated parental rights, finding Abigail was likely to be adopted and the beneficial parent-child relationship and sibling relationship exceptions to adoption did not apply. The court also found that continued custody by the parents was likely to result in severe emotional or physical damage, the department made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of an Indian family and those efforts proved unsuccessful and the department made reasonable efforts to return Abigail to a safe home.
DISCUSSION
1. Active Efforts: Legal Standard
"ICWA provides that any party seeking foster care placement or termination of parental rights of an Indian child must first 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).)" (In re A.L. (2015) 243 Cal.App.4th 628, 638; see also § 361.7, subd. (a) ["a party seeking ... termination of parental rights over, an Indian child 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"]; § 366.26, subd. (c)(2)(B)(i) ["The court shall not terminate parental rights if: [¶] ... [¶] (B) In the case of an Indian child: [¶] (i) At the hearing terminating parental rights, the court has found that active efforts were not made as required in Section 361.7."].)
"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 services agencies, and individual Indian caregiver service providers." (§ 361.7, subd. (b).)
We 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.)
2. Substantial Evidence Supports the Juvenile Court's Active Efforts Finding
Mother contends the juvenile court's active efforts finding was error because the department "divested itself of the obligation to provide reunification services at the dispositional hearing," even though the tribe argued against the denial of services. She further argues England's testimony at the section 366.26 hearing was insufficient to support the finding because he relied on the department's reports to formulate his opinion regarding active efforts rather than conduct his own investigation. She suggests several online resources he could have consulted in formulating his opinion.
Respondent contends the appeal should be dismissed because the juvenile court made the active efforts finding at the dispositional hearing, which mother did not challenge in her extraordinary writ petition. Therefore, respondent argues, she forfeited the right to challenge the finding on this appeal. Respondent further argues the department was not required to facilitate ongoing reunification services for mother following the dispositional hearing because the court denied her reunification services and, even if such a requirement existed, mother failed to identify any additional services that would have assisted her in reunifying.
We note, as a preliminary matter, that mother's issue regarding reunification services as framed misstates the department's obligation. The department has no obligation apart from a court order to "provide reunification services at a dispositional hearing" or anytime thereafter. Further, where the juvenile court denies a parent reunification services and sets a section 366.26 hearing, as occurred here, the appellate remedy is to file an extraordinary writ petition. Mother filed an extraordinary writ petition, challenging the denial of services order, which we upheld. That order is now final and binding and not subject to review on this appeal. (In re Anthony B. (1999) 72 Cal.App.4th 1017, 1022.) Consequently, mother is now barred from arguing that the department was required to provide her services subsequent to the dispositional hearing with the exception of visitation.
Further, mother did not challenge the juvenile court's active efforts finding in her writ petition. Nor did her attorney raise the issue at the section 366.26 hearing. Nevertheless, section 366.26, subdivision (c)(2)(B)(i) forbids the court from terminating parental rights for an Indian child if the court finds that active efforts were not made as required in section 361.7. This provision "explicitly allows the issue [of whether the department made active efforts] to be addressed at the permanency planning hearing" held under section 366.26, even though the court would have already addressed the issue at a prior hearing. (See In re A.L., supra, 243 Cal.App.4th at p. 641.) Further, section 361.7 does not place any temporal limitation on the court's active efforts analysis at the section 366.26 hearing. (See § 361.7, subd. (a); see also In re A.L., at pp. 642-645 [considering the child welfare agency's conduct throughout the proceedings to determine whether it made active efforts for the purposes of §§ 361.7 and 366.26 subd. (c)(2)(B)(i)].) Consequently, the court's prior active efforts finding is relevant to the analysis required by section 366.26, subdivision (c)(2)(B)(i).
We conclude substantial evidence supports the juvenile court's active efforts finding made at the section 366.26 hearing. The tribe was at all times involved with Abigail's case by virtue of its involvement with the family regarding E.A. A tribal social worker and tribal representative collaborated with the department's social workers regarding placement and provision of services. By the dispositional hearing, mother had completed various programs through the STC, including residential drug and alcohol treatment, and parenting and anger management programs. Even afterward, she continued to receive mental health therapy and participate in support meetings through the Fresno American Indian Health Project and the department continued to arrange visitation for her. Further, she fails to identify services that were available and not provided but were necessary for the court to find active efforts were made to prevent the breakup of her family. In addition, she does not assert that circumstances changed subsequent to the dispositional hearing that invalidated the court's initial active efforts finding. Thus, we affirm the court's active efforts finding.
DISPOSITION
The juvenile court's order terminating parental rights is affirmed.
[*] Before Levy, Acting P. J., Detjen, J. and Franson, J.