Opinion
A119727
8-19-2008
In re DAVID H., a Person Coming Under the Juvenile Court Law. NAPA COUNTY HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. KAREN F., Defendant and Appellant.
Not to be Published
Karen F. (Mother) appeals from an order issued at the six-month review hearing of this dependency action, which continued David H.s removal from her home. We affirm the courts finding that returning David to Mothers care on September 24, 2007 was likely to cause David emotional or physical damage. We conclude the finding that the social services agency provided active efforts to prevent the breakup of the Indian family between the July 11 dispositional hearing and the September 24 six-month review hearing is not supported by substantial evidence.
BACKGROUND
We incorporate by reference the background section of our opinion in appeal number A118968, which we file concurrently with this opinion.
On July 19, 2007, the Napa County Department of Health and Human Services (Agency) referred Mother to Linda Bancke for a psychological evaluation, which had been ordered by the court on July 11. When Mother attempted to arrange an appointment, she learned that Bancke was on an extended vacation until early September. Mother searched for and located an American Indian psychiatrist who could perform the evaluation, Dr. Art Martinez, and asked the Agency to hire him to do so. The Agency refused. On August 6, 2007, Mother filed a motion asking the court to order the Agency to hire Dr. Martinez to perform the evaluation. The motion was not heard until September 24. In the beginning of September, Mother started weekly sessions with Bancke, which were scheduled to continue until late November or early December, at which time Bancke would prepare her evaluation.
In its six-month status report, the Agency wrote that Mothers anger management counselor, Louis Crosthwaite, was concerned that Mother was still not taking responsibility for causing David harm. He said Mother continued to insist that the Agency exaggerated the injuries David suffered in January. Mothers current therapist, Joel Levitt, reported that Mother had little insight and had a hard time looking at things from a different point of view. He stated that Mother seemed willing to change, but he doubted whether she could maintain any changes. He was open to providing family therapy to Mother and David sometime in the future, but did not think Mother would benefit from family therapy at that time (August 13, 2007).
Mother had two three-hour visits a week with David. Some visits went smoothly, with Mother and David talking and playing games. During other visits, both became very upset. David did not like Mothers church and Mother became angry over his behavior in church, causing him to cry. Mother also got upset when David told the visit coach he did not want to attend the church anymore, which caused David to cry, in turn causing Mother to cry. Mother argued with the social worker during a visit and accused the visit coaches and others in the public location of being the social workers "plants."
The social worker wrote that Mother did not seem to feel that she needed services, referring to them as hoops she had to jump through. "The mother continues to state that the Department is not helping her, and that the undersigned is lying about things that she says. The mother continues to behave in ways that upset the minor at visits, and exacerbate his mood." The social worker recommended six more months of reunification services.
After several continuances, the six-month hearing took place on September 24, 2007. The Cherokee Nations ICWA representative, Nicole Allison, recommended Davids immediate return to Mothers care with family maintenance services, including in-home services and family counseling and an early review hearing within 60 days of the September 24 hearing. She faulted the Agency for not having provided transitional services after the July 11 hearing. The CASA representative recommended a transition toward reunification with unsupervised visits and some family therapy and an early review hearing. Minors counsel likewise endorsed an early review hearing, but opposed Davids immediate return to the home.
The court continued Davids removal and scheduled a 12-month review hearing for February 2008, with an oral review hearing on December 4, 2007. The court found the Agency had made reasonable efforts to return David home and active efforts to prevent the breakup of the Indian family, which were unsuccessful; found Mother had made moderate progress toward resolving the problems that had led to Davids removal; and found by a preponderance of evidence there would be a substantial danger to Davids physical health if he were returned to Mothers care and by clear and convincing evidence it was likely that his return would cause him serious emotional or physical damage. The court ordered continued reunification services for Mother.
DISCUSSION
We review questions of law de novo and factual findings for substantial evidence. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800-801; Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) "In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible. Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact." (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.)
I. Risk of Harm Justifying Davids Continued Removal
A juvenile court cannot order the foster care placement of an Indian child unless it finds by clear and convincing evidence, which includes the testimony of a qualified ICWA expert witness, 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." (25 U.S.C. § 1912(e); Welf. & Inst. Code, § 361.7, subd. (c) ; Cal. Rules of Court, former rule 5.664(j) [eff. Jan. 1, 2007 and repealed eff. Jan. 1, 2008]; see rule 5.484(a) [eff. Jan. 1, 2008].) The Agency concedes that this standard applied at the six-month review hearing: that is, in order to continue Davids removal, the court had to find by clear and convincing evidence that returning him to Mothers custody was likely to cause him serious emotional or physical damage.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
All rule references are to the California Rules of Court.
A. Mootness
Mother argues that her challenges to the six-month review order continuing removal have not been mooted by Davids February 2008 return to Mothers care because, if David is again removed from her care during this dependency proceeding, the court will have to determine whether she has already received the maximum period of services allowable under the dependency scheme or whether she is eligible to receive additional services. (See § 361.5, subd. (a)(3).) She cites cases approving the extension of services beyond the statutory 18-month maximum where a parent did not receive reasonable services throughout the 18-month reunification period. (See In re Brequia Y. (1997) 57 Cal.App.4th 1060, 1067-1068.) She argues that if this court concludes either that she did not receive reasonable services or that David should have been returned in September 2007, she could be eligible to receive additional services in the event David is ever again removed from her care. (See Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 162, 166-167.) We conclude Mother has raised a facially reasonable argument that a determination on the merits of this appeal could substantially affect her rights in the future. Therefore, we shall decide the appeal on the merits.
B. Standard of Proof
The record is not entirely clear about whether the court applied the correct standard of proof in finding detriment if David were returned to Mothers care. At the September 24, 2007 hearing, the court found that "County Counsel has met its burden by demonstrating by preponderance of the evidence that it would be detrimental to return the child to [Mothers] home." Preponderance of the evidence is the correct standard under section 366.21, subdivision (e), which applied to Davids case; however, as explained above, the standard of proof under the ICWA, which also applied, was clear and convincing evidence. Deputy county counsel said during oral argument that the governing standard was the preponderance standard and did not mention the ICWA clear and convincing standard.
On the other hand, the Agencys trial brief for the September 24, 2007 hearing included an ICWA section, where the Agency asked the court to confirm its July 11, 2007 finding that continued custody with the mother was likely to cause David serious emotional or physical damage. The Agencys six-month status review report asked the court to make that finding by clear and convincing evidence. The court said during the hearing that it had read both the trial brief and the six-month report. Most importantly, the courts written order, signed and filed on the day of the hearing, includes a finding that the "child is an Indian child, and, by clear and convincing evidence, continued physical custody with the mother is likely to cause serious emotional or physical damage," as well as a finding of detriment by a preponderance of the evidence as required by section 366.21, subdivision (e).
In short, the written order includes a finding of detriment by clear and convincing evidence as required by the ICWA, but the courts oral finding of detriment was by a preponderance of the evidence. The circumstances do not allow us to resolve this conflict in the record in favor of the written finding. (See People v. Smith (1983) 33 Cal.3d 596, 599; In re Aryanna C. (2005) 132 Cal.App.4th 1234, 1241 & fn. 5.) Therefore, we shall assume that the court only found detriment by a preponderance of the evidence. In other words, the court failed to make the required finding by clear and convincing evidence.
Mother cites cases in which appellate courts have refused to imply missing findings and have instead remanded for the trial court to make the findings in the first instance. We do not find any of those cases analogous to the one before us. In David B. v. Superior Court (2004) 123 Cal.App.4th 768, 796-797, the trial court erroneously abdicated its responsibility to make findings and instead deferred to the social service agencys determination that the minor could not safely be returned to her fathers custody—a determination the appellate court concluded there was insufficient evidence to support. In In re M.V. (2006) 146 Cal.App.4th 1048, 1059-1060, the appellate court found the lower courts findings so inadequate as to prevent meaningful review: "[T]he findings before us are not sufficient to support a finding of changed circumstances or a finding that the proposed change was in M.V.s best interests. Our conclusion is bolstered by the absence of any indication on the record that the court understood the necessity of finding that the agency had the burden of proving by a preponderance of the evidence that changed circumstances existed and that the proposed change was in M.V.s best interests."
In In re Marquis D. (1995) 38 Cal.App.4th 1813 and In re V.F. (2007) 157 Cal.App.4th 962, the trial courts committed the same error — erroneously evaluating the request for custody by a noncustodial parent (i.e., a parent who did not have custody of the minor at the time of the events giving rise to government intervention) under the statutory provision covering removal of the minor from the care of the custodial parent (i.e., the parent having custody of the child at the time of the triggering events). While the findings under the separate statutes are similar, the appellate courts declined to imply findings. The court in In re Marquis D. wrote: "It is not [ ] clear on the record that the trial court even considered the statutory provision applicable to Rodneys request that the children be placed with him. We are not satisfied on this record that the trial court adequately explored whether placing the children with Rodney would be detrimental to them within the meaning of section 361.2, subdivision (a) or that implied findings are warranted. [Citation.] [¶] Moreover, even if we were to conclude the court considered the correct code provision, we would be reluctant to imply the court made a finding of detriment based on the evidence presented." (In re Marquis D., supra, 38 Cal.App.4th at p. 1825.) Even though the court in In re V.F. was presented with a stronger factual record, it declined to imply findings: "Although this record arguably would support a finding that placement with Scott would be detrimental to the children, we believe the better practice is to remand the matter to the trial court where that court has not considered the facts within the appropriate statutory provision. . . . [¶] We also recognize that different issues, evidence and argument may arise at trial depending on the applicable statute. When the proceedings take place under an appropriate statute, even one requiring similar findings, the parties are not afforded the opportunity to tailor their case to the correct statute, and the trial court cannot fulfill its responsibility to make findings of fact within the provisions of that statute. [Citation.]" (In re V.F., supra, 157 Cal.App.4th at p. 973.) None of these cases presented circumstances like those before us.
Here, the trial court heard evidence and argument on the question of detriment (i.e., whether continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child), commented on the matter, and made a finding of detriment, albeit by a preponderance of the evidence. Mother does not contend the question of detriment is different under ICWA and the Welfare and Institutions Code; only the standards of proof are different. The record here is adequate to allow us to determine whether failure to apply the correct standard of proof was harmless. We conclude it was; this was not a close case. (Cf. In re Marquis D., supra, 38 Cal.App.4th at p. 1827 ["this is certainly not the clear-cut case in which an appellate court may imply such a finding"].
C. Substantial Evidence
We conclude there is substantial evidence demonstrating by the clear and convincing standard of proof that returning David to Mothers care on September 24, 2007 was likely to result in serious emotional or physical damage to David.
At the July 11, 2007 hearing, ICWA expert and licensed social worker Kathryn Manness testified that David would experience emotional trauma and possible permanent biochemical changes to his brain if he were returned to Mothers care without certain preconditions, including family therapy. As of the September 24, 2007 hearing, family therapy had not commenced. Manness also opined that Mother needed parent-child interactive therapy in order to learn appropriate disciplinary techniques for David, who was an extremely challenging child. Mothers former therapist, Cathy Parker, agreed that Mother needed training in specific, simple parenting techniques and that she was not able to adapt the general information provided in parenting classes to her concrete interactions with David. Mother had not received this specialized parenting training.
There was also evidence that Mothers commitment to reform had faltered. Her new therapist, Joel Levitt, reported that Mother had little insight and had a hard time looking at things from a different point of view. He said that Mother seemed willing to change, but he doubted whether she could maintain any changes. He was open to providing family therapy to Mother and David sometime in the future, but did not think Mother would benefit from family therapy at that time. He wanted to keep seeing Mother for at least six months. Mothers anger management counselor, Louis Crosthwaite, said he was concerned that Mother was not taking responsibility for causing David harm. The social worker wrote that Mother did not seem to feel that she needed services. "The mother continues to state that the Department is not helping her, and that the undersigned is lying about things that she says. The mother continues to behave in ways that upset the minor at visits, and exacerbate his mood." Finally, the court observed that Mothers demeanor on the witness stand suggested that she had not incorporated the positive disciplinary techniques she had been taught.
The court can take into account past conduct to assess a current risk of harm. (In re Benjamin D. (1991) 227 Cal.App.3d 1464, 1469.) Moreover, "[f]acts which show the threat of future physical injury to a minor are necessarily cumulative." (Id. at p. 1470.) The severity of the January 7, 2007 beating and Mothers admission that she had repeatedly hit David with a belt for discipline before January 2007 demonstrated that without proper preparation David faced a substantial risk of serious physical harm in Mothers custody, particularly in light of his own challenging behavior. The June 26, 2007 incident when Mother banged on the door and windows of the foster home, the reports of Mothers service providers (Levitt and Crosthwaite) that Mother was not accepting responsibility for her conduct, and Mothers volatile or hostile interactions with persons involved in the dependency tended to demonstrate that Mother had not developed the skills or insight to prevent a recurrence of her violent disciplinary measures. Finally, Mother had not received the recommended services to prepare her to appropriately discipline David and David had not received the services he needed to forestall serious emotional damage upon his return to Mothers care. A likelihood of harm was established by clear and convincing evidence.
II. Active Efforts to Prevent the Breakup of the Indian Family
"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." (25 U.S.C. § 1912(d); see also § 361.7, subd. (a); former rule 5.664(i)(4); rule 5.484(c).) The court must make an active efforts determination at each review hearing. (§ 366, subd. (a)(1)(B).) "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 childs tribe. Active efforts shall utilize the available resources of the Indian childs extended family, tribe, tribal and other Indian social service agencies, and individual Indian caregiver service providers." (§ 361.7, subd. (b); see also former rule 5.664(i)(4)(A), (B); rule 5.484(c)(1), (2).)
A. Forfeiture
The Agency argues that Mother forfeited her right to challenge the active efforts finding because she did not raise the issue at the six-month hearing. However, a court rule in effect at the time of the hearing provided: "Stipulation by the parent or Indian custodian or failure to object may waive the requirement of this [active efforts] finding only if the court is satisfied that the party has been fully advised of the requirements of the act and has knowingly, intelligently, and voluntarily waived them." (Former rule 5.664(i)(4); but see rule 5.484(c) [does not include same language].) The Agency does not cite any evidence that Mother affirmatively waived her right to an active efforts finding or stipulated that active efforts were made. Moreover, challenges to the sufficiency of the evidence to support a juvenile courts findings are never forfeited by a failure to object below. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1560-1561.)
B. Substantial Evidence
Mother cites the following omissions and delays as evidence that active efforts were not made to return David to her care: the initial five-month delay in providing any Indian-related services; the delay in obtaining a psychological evaluation; the delay in initiating family therapy; the delay in increasing visitation; the passivity of the social worker; the failure to involve Davids extended family in efforts to reunify Mother and David; and the delegation of control over phone contacts to the paternal aunt. We agree that the delays in obtaining a psychological evaluation for Mother and in initiating family therapy and increased visitation demonstrated that the Agency did not make active efforts throughout the relevant period.
1. Indian Services and Interference with Phone Contacts
We first address Mothers arguments that the Agency failed to provide sufficient Indian services.
It is undisputed that the Agency failed to provide Indian services during the first five months of the dependency case. However, once the Agency learned that David was an Indian child it made active efforts to identify and offer Indian services for Mother. On May 3, 2007, the social worker investigated Indian services and determined that two regional agencies (in Fairfield and Sacramento) could offer Mother services. The social worker referred Mother to those agencies and offered her transportation assistance. At Mothers request, the social worker attempted on June 5 to make appointments on Mothers behalf at the Sacramento Native American Agency, but was told that Mother had to call the agency personally. The social worker immediately relayed this information to Mother. On August 13, Mother asked the social worker to provide transportation so she could attend an appointment at the Sacramento agency on August 14. The Agency provided the transportation, but upon arrival the agency said it could not provide the mental health services Mother needed and it referred her to the Napa County mental health agency. Mother raises a reasonable argument that the Agency erred by failing to hire an American Indian psychiatrist to conduct her psychological evaluation, an issue we discuss further below. With that exception, however, nothing in the record suggests the Agency failed to provide Mother with available Indian services.
The Agency also made active efforts to involve the extended family in Davids care and to place David with a relative, pursuant to the Tribes requests when it first became involved in the case. On May 4, the Agency informed the Tribe that it would consider placement with the grandmother, who lived in Illinois and had expressed interest in adoption, or with other out-of-state relatives if the reunification plan proved unsuccessful. During the reunification period, David needed to remain in California so visitation and reunification efforts with Mother could continue. The Agency encouraged the grandmother to visit David in the meantime. David was placed with his paternal aunt, a member of Davids extended family, consistent with ICWA placement preferences. (25 U.S.C. § 1915(b).)
The record does not support Mothers claim that the Agency improperly delegated control over phone contacts to Davids paternal aunt. For two weeks, Mother did not receive her regular weekly phone call from David. The aunt explained to the social worker that David did not want to talk to Mother on those days. The social worker told the aunt she could encourage David to talk to Mother but could not force him to do so. Mother testified that as of the September 24 hearing the problem appeared to have been handled.
2. Psychological Evaluation, Family Therapy, and Visitation
At the July 11, 2007 jurisdictional and dispositional hearing, the Agencys ICWA expert (Kathryn Manness) and the Cherokee Nation ICWA representative (Nicole Allison) recommended the prompt provision of services to facilitate Davids return to Mothers care. Manness opined that Mother had taken steps (attending parenting and anger management classes, taking psychotropic medication, and regularly visiting David) that helped lay the groundwork for reunification. She made specific recommendations for services to facilitate reunification: family therapy and a particular form of parent-child interactive therapy that would coach the mother in disciplinary techniques as she interacted with David. Manness specifically stated the interactive therapy had proven useful for American Indian clients. Mothers former therapist, Cathy Parker, similarly recommended that Mother work with someone who could help her develop a specific plan of how to intervene with her son. Manness testified that the therapy she was recommending generally required 12 to 20 sessions. She specifically warned against delay: "Im not suggesting that reunification be postponed for a long period of time. What Im suggesting is that reunification be preceded by some family therapy."
Allison also opined that Mother had made significant progress in addressing the issues that led to Davids removal and, although she did not recommend Davids immediate return, she urged prompt action to facilitate reunification. "I would like to see the visitation slowly increased as appropriate over the next three months, and then Id like to see the child in the home for 90 days prior to the next court hearing." She added, "[T]he more visitations the child and the mom have together, the more they can build that bond, the more that David can see that . . . hes safe with his mom, and the more the mom can show the department that she can parent David in the appropriate manner." Mothers anger management counselor, Louis Crosthwaite, also testified that Mother had made significant progress, which included taking steps to end her social isolation by becoming involved in church activities. In his opinion, David could be safely returned as of the July 11 hearing.
No witness testified that transitional services (family therapy, parent-child interactive therapy, and increased visitation) should be deferred for as long as five months while a psychological assessment was completed. Although Parker recommended that Mother undergo a psychological evaluation to determine whether she could benefit from therapy, she did so in the context of discussing Mothers individual therapy. Parker recommended parent-child interactive therapy to train Mother in appropriate disciplinary methods and did not indicate that the interactive therapy should take place only after a psychological assessment. In light of the presumptive 12-month limit on reunification services, we could not reasonably infer that Parker was recommending that transitional services be delayed for as long as five months until a psychological assessment could be completed. Similarly, Levitts statement that Mother was not ready for family therapy cannot be understood as an endorsement of such a long delay in transitional services.
At the conclusion of the July 11, 2007 hearing, the court ordered Mother to undergo a psychological assessment, ordered family therapy to commence once recommended by a therapist who had individually counseled both Mother and David, and ordered visitation increased to a minimum of two three-hour visits a week. The six-month hearing was originally scheduled for August 30. As previously stated, the Agency referred Mother to a therapist who could not even begin an evaluation until early September. The Agency did not constructively follow up on Mothers identification of an alternative American Indian psychiatrist, refusing her request to hire him to conduct the psychological evaluation and sending him paperwork only to provide ongoing therapy. Neither family therapy nor parent-child interactive therapy was commenced in the meantime, nor was visitation further increased before or at the September 24 hearing.
At the September 24, 2007 six-month review hearing, Allison objected that her July 11 recommendation of a gradual transition to reunification, including unsupervised visitation, had not been carried out. The court itself questioned why unsupervised overnight visits had not commenced: "[W]hy no overnight visits? And I havent heard exactly why that hasnt happened, but I know it hasnt, and thats one thing I would like to see happen so that we are certain that you are at the point where you can handle this, and you can discipline your son in [an] appropriate manner."
We conclude that the courts finding that the Agency provided active efforts to prevent the breakup of the Indian family between the July 11 and September 24, 2007 hearing was not supported by substantial evidence because transitional services were delayed until the completion of a psychological evaluation, which was not scheduled to be completed until the end of the year. The juvenile court should take into consideration the inadequacy of services during this period if and when it considers whether Mother has received the maximum services available to her under the dependency scheme. (Cf. In re Dylan T. (1998) 65 Cal.App.4th 765, 775-776 [providing in disposition that "the previously ordered nonvisitation during [the mother]s incarceration shall not count against her in the courts evaluating reunification and making of further orders"].)
DISPOSITION
The September 24, 2007 order is affirmed in part and reversed in part. The finding that active efforts were provided to prevent the breakup of the Indian family between July 11 and September 24, 2007 is not supported by substantial evidence. The court should take into consideration the inadequacy of services during this period if and when it considers whether Mother has received the maximum services available to her under the dependency scheme. In all other respects, the order is affirmed.
We concur:
Jones, P. J.
Simons, J.