Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. J517284A Laura J. Birkmeyer, Judge.
IRION, J.
Steven T. appeals the court's order terminating reunification services at the six-month review hearing. He also challenges the finding the Indian Child Welfare Act, 25 United States Code section 1901 et seq. (ICWA), did not apply. We affirm the order terminating reunification services, but reverse the finding that ICWA did not apply.
FACTUAL AND PROCEDURAL BACKGROUND
D.H., now age 12, is the son of Steven T. and S.M. In October 2008 the San Diego County Health and Human Services Agency (the Agency) detained D.H. in protective custody, alleging S.M. had physically abused D.H. and exposed him to violent confrontations between herself and a boyfriend. (Welf. & Inst. Code, § 300, subds. (a) & (b).)
S.M. does not appeal and is mentioned only where relevant to this opinion.
Unless otherwise indicated, statutory references are to the Welfare and Institutions Code.
The Agency located Steven in prison in Oklahoma. As of January 2009, Steven had been in prison for six years after committing mayhem. He expected to be released in 2019. Steven requested a court-appointed attorney and asked to correspond with D.H., whom he had not seen in six years. After reviewing a 1999 child support order, the court determined Steven was an adjudicated father. The Agency told the court Steven could participate in services in prison and that the social worker would inquire about available services at the facility.
The Agency reported D.H. was a victim of physical and sexual abuse, and had been exposed to domestic violence and drug use. S.M. had a criminal history, including residential burglary. On one occasion she used D.H. to climb through a window and unlock the door of a home she intended to burglarize. When removed from the home, D.H. was suicidal. He did not want to visit his mother or return to her care. D.H. told the social worker he was "tired of being treated like an animal" and "just wanted to be adopted."
On February 5, 2009, the court sustained the section 300 petition and placed D.H. with a maternal aunt. The Agency had not prepared a case plan for Steven. His attorney stated he would not oppose the Agency's submitting a case plan ex parte. The Agency did not submit a case plan for Steven to the court. The court deferred a finding on ICWA.
We describe the factual background relevant to ICWA in part B of this opinion.
On July 9, 2009, the social worker prepared a report for the six-month review hearing that was scheduled for July 27. She stated D.H.'s aunt was helping him adjust and cope with his circumstances. D.H. no longer displayed problematic behaviors and knew he could stay with his aunt as long as was necessary. The social worker mailed a prison parenting packet to Steven on July 7. She stated Steven was unavailable to participate in reunification services. The social worker recommended the court find that reasonable services were provided to Steven and terminate his services.
On September 11, 2009, the parties submitted on the social worker's report and did not submit affirmative evidence. The court found there was not a substantial probability D.H. would be returned to Steven's physical custody within six months and terminated reunification services. The court stated it could not order the prison to provide services to Steven and found that reasonable services were offered or provided to him.
The court continued S.M.'s services to the 12-month hearing date.
A
REASONABLE SERVICES
Steven contends the court erred when it terminated his services because the Agency did not offer or provide reasonable reunification services to him (reasonable services finding) during the review period.
The Agency concedes the reasonable services finding is not supported by substantial evidence. The Agency argues in view of Steven's circumstances the error was harmless, and the court did not err when it terminated his reunification services.
Section 361.5, subdivision (e)(1), sets forth the requirements for an order of reasonable reunification services to an incarcerated parent. It provides:
"If the parent or guardian is incarcerated or institutionalized, the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child.... In determining the content of reasonable services, the court shall consider the particular barriers to an incarcerated or otherwise institutionalized parent's access to those court-mandated services and ability to maintain contact with his or her child, and shall document this information in the child's case plan. Reunification services are subject to the applicable time limitations imposed in subdivision (a). Services may include, but shall not be limited to, all of the following:
"(A) Maintaining contact between the parent and child through collect telephone calls. [¶] (B) Transportation services, where appropriate. [¶] (C) Visitation services, where appropriate. [¶] (D) Reasonable services to extended family members or foster parents providing care for the child if the services are not detrimental to the child.
"An incarcerated parent may be required to attend counseling, parenting classes, or vocational training programs as part of the reunification service plan if actual access to these services is provided. The social worker shall document in the child's case plan the particular barriers to an incarcerated or institutionalized parent's access to those court-mandated services and ability to maintain contact with his or her child."
The Agency must make a good faith effort to develop and implement a reunification plan tailored to meet the family's needs. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 810.) The adequacy of reunification services and the Agency's efforts are judged according to the circumstances of each case. (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.) The standard is not whether the services provided were the best that might be provided in an ideal world but whether services were reasonable under the circumstances. (In re Misako R.(1991) 2 Cal.App.4th 538, 547.) At the six-month review hearing, the Agency has the burden to show by clear and convincing evidence that it offered or provided reasonable reunification services to the parent. (§§ 366.21, subd. (e), 366, subd. (a)(1)(B); Cal. Rules of Court, rule 5.710.)
As the Agency acknowledges, there is clear error in this case with respect to the Agency's obligations to offer or provide reasonable reunification services to Steven as required by section 361.5, subdivision (e). We also agree with Steven's argument the court abused its discretion when it determined it could not order the institution to provide services to Steven rather than ordering the social worker to determine whether there were any services available to Steven at the institution. (Ibid.) The record therefore does not support the court's reasonable services finding as to Steven.
While our conclusion in most cases would compel reversal of the reasonable services finding and require the Agency to offer or provide reunification services to the parent for another six months, Steven cannot show he was prejudiced by the error. (Cal. Const., art. VI, § 13.) There is ample evidence in the record to support the court's finding there was no reasonable probability of reunification within the next six-month time period. Steven had been convicted of a violent felony. He has been incarcerated since D.H. was approximately five years old and will not be released until D.H. is 20 or 21 years old. There is nothing in the record to show Steven maintained any contact with D.H. during his incarceration, or remembered him on his birthday or holidays. When detained, D.H. did not ask for Steven.
Under some state statutes, including Oklahoma, offenses similar to mayhem exist, such as assault with intent to maim, maiming, and malicious disfigurement. (21 Okl.St.Ann. § 751; 56 CJS Mayhem § 2, fn. 3; State v. Bates (1981) 628 P.2d 383.)
In view of D.H.'s age, if he wishes to have contact with Steven, D.H. can make that request through his guardian ad litem.
A judgment may not be reversed on appeal unless the reviewing court, after examining the entire cause, concludes the error caused a "miscarriage of justice." (Cal. Const., art VI, § 13.) We conclude there is no reasonable probability of reunification within the statutory time frame; thus, the error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
B
ICWA
Steven contends the court erroneously found that D.H. was not an Indian child within the meaning of ICWA (ICWA finding). He contends the Agency should have provided notice to the Bureau of Indian Affairs (BIA), the Blackfoot Tribes, and the various federally recognized tribes in Alabama.
ICWA protects the interests of Indian children, their tribes and families by establishing minimum federal standards for proceedings involving foster care placement or termination of parental rights. (25 U.S.C. § 1912; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421; In re Julian B. (2000) 82 Cal.App.4th 1337, 1344.)
Under California law, a social worker must provide notice in accordance with section 224.2, subdivision (a)(5), if he or she knows or has reason to know that an Indian child is involved. (§ 224.3, subd. (d).) The circumstances that may provide reason to know the child is an Indian child exists when, as relevant here, a member of the child's extended family provides information suggesting one or more of the child's great-grandparents are or were a member of a tribe. (§ 224.3, subd. (b)(1).)
Steven stated his family was affiliated with the Blackfoot tribe and his great-grandfather was "full Indian." He asked the social worker to contact his mother for more information. Steven's mother stated D.H.'s great-grandfather was "Blackfeet Indian of Alabama" and provided other information about his life. S.M. initially denied Indian heritage. Later, she told the social worker a relative informed her that a great-grandmother was "full blown Cherokee." S.M. provided the great-grandmother's name and other information to the social worker. A maternal aunt told the social worker the family had heard rumors about their Indian heritage but any heritage "would probably go 10 generations back." The families did not live in a predominantly Indian community, participate in Indian culture or ceremonies, or receive tribal services or benefits. At a special hearing in June 2009, on the recommendation of the social worker, the court found there was not reason to know D.H. was an Indian child and the Agency was not required to provide notice pursuant to ICWA.
This case is similar to In re Damian C. (2009) 178 Cal.App.4th 192 (Damian C.), in which this court concluded that information suggesting the child had Indian heritage, even though it was contradicted by information stating the child did not have Indian heritage, was sufficient to trigger notice requirements, as directed by section 224.3. (Damian C. at p. 199.) This court held that "circumstances that may provide reason to know the child is an Indian child include... 'information suggesting the child is an Indian child' [citation]." (Ibid.), and remanded the case to the trial court with directions to vacate its ICWA finding and to instruct the Agency to complete ICWA inquiry and notice. (Id. at p. 200.)
The information Steven and S.M. provided to the Agency suggests a great-grandparent is or was a member of a tribe. (§ 224.3, subd. (b)(1); Damian C., supra, 178 Cal.App.4th at p. 199.) The determination of tribal membership is a tribal matter (§ 224.3, subd. (e)(1)), thus we remand the matter to the trial court with directions to vacate its finding the children are not Indian children within the meaning of ICWA, and order the Agency to provide notice to the BIA and the Cherokee and Blackfeet tribes. (§§ 224.2, 224.3, subd. (d).) Unless otherwise directed by the BIA, we do not believe it is necessary to notice all the federally-recognized tribes in Alabama, as father requests, or the "Blackfoot" tribe, which is not a federally-recognized tribe. (<http://www.childsworld.ca.gov/res/pdf/cdsstribes.pdf [as of May 27, 2010].)
Although we conclude the matter must be remanded with directions to ensure ICWA compliance, we decline to reverse the six-month status review orders. There is not yet a sufficient showing D.H. is an Indian child. (25 U.S.C. § 1903; § 224.1, subd. (a).) "If after proper inquiry and notice a tribe determines [D.H.] is an Indian child, the tribe, a parent or [D.H.] may petition the court to invalidate an action of placement in foster care or termination of parental rights 'upon a showing that such action violated any provision of sections [1911, 1912, and 1913].' (25 U.S.C. § 1914.)" (Damian C., supra, 178 Cal.App.4th at pp. 199-200.)
The record shows that D.H. was placed with a member of his extended family in accordance with ICWA placement preferences. (25 U.S.C § 1915.)
DISPOSITION
The order terminating reunification services is affirmed. The matter is remanded to the trial court with directions to vacate its finding ICWA does not apply and to instruct the Agency to complete ICWA notice in accordance with section 224.2, subdivision (a)(5). (§ 224.3, subd. (d)).
I CONCUR: McDONALD, J.
I CONCUR IN PART A. I CONCUR IN THE RESULT IN PART B.
HUFFMAN, Acting P. J.