Opinion
C042139.
7-31-2003
In re ISABELLA D. et al., Persons Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. RAINBOW H., Defendant and Appellant.
Rainbow H., mother of the minors, appeals from the orders entered at a postpermanency review hearing requiring the Department of Health and Human Services (DHHS) to offer her six months of additional services. (Welf. & Inst. Code, § 366.3, subds. (d), (e).) Appellant contends the court failed to insure DHHS complied with the notice provisions of the Indian Child Welfare Act (ICWA). Appellant further contends the court erred in finding DHHS had provided reasonable services to her and in failing to return the minors to her custody. We reverse.
Further undesignated section references are to the Welfare and Institutions Code.
FACTS
DHHS filed petitions in May 1999 alleging the minors, Isabella, age 4; Angelique, age 6; and Leticia, age 7, were at risk of physical abuse in appellants care, but did not detain the minors at that time. At the initial hearing, appellant claimed Oneida Indian heritage and the court ordered DHHS to comply with the notice provisions of ICWA. The social workers jurisdictional report of June 1999 stated that notices were sent to the Oneida Tribal Counsel and the Bureau of Indian Affairs. Appellant was referred to services.
In June 1999, DHHS filed supplemental petitions (§ 387) and removed all three minors from appellants custody based upon ongoing physical abuse by appellant and her boyfriend. At the detention hearing on July 1, 1999, the maternal grandmother informed the court she was an enrolled member of the Minnesota Chippewa tribe through her mother and that appellant was an enrolled member of the Oneida tribe through the maternal grandmothers father. In the opinion of the maternal grandmother, the minors would not be eligible for enrollment in the Oneida tribe because their proportion of Oneida blood was too low. Counsel for the father of Leticia and Angelique stated the father said he may have Indian heritage through his mother but he did not know what tribe. The court ordered DHHS to provide notice to the Oneida and Chippewa tribes.
The court found the petitions true, adopted a reunification plan for appellant and continued the minors in foster care. The plan included a psychological evaluation for appellant. In the psychological evaluation, appellant disclosed that her father was a member of the Omaha tribe of Nebraska. This fact was never explicitly brought to the attention of the court and the court never ordered notice to be sent to this tribe.
The social workers report for the six-month review hearing stated that appellant was "a registered member of the Oneida tribe of Indians in Wisconsin. However, all three minors have been certified by the Oneida tribe of Indians of Wisconsin as not meeting standards to be recognized by the tribe or to be enrolled in the tribe, as their proportion of Oneida blood is unknown." Subsequent reports reiterated this information. DHHS provided the court with letters from the Oneida tribe indicating that the minors were not enrolled or recognized by the tribe as being Oneida Indians.
Appellants participation in services during the 12-month reunification period was minimal although she visited the minors fairly regularly. All three minors showed emotional and behavioral problems from being subjected to physical abuse and neglect in appellants care. In July 2000, the court terminated reunification services.
The minors were assessed as not adoptable and their caretaker was unwilling to accept guardianship. At the section 366.26 hearing in November 2000, the court adopted a permanent plan of long-term foster care.
The minors continued to do well in the structured, nurturing environment of the foster home with occasional visits from appellant. At a postpermanency review in November 2001, appellant represented that she was in Alcoholics Anonymous (AA) and had become involved with the Oneida tribe. She acknowledged that the minors were not eligible for tribal membership because they did not have the appropriate blood percentage but believed the tribe had changed the required percentage and was going to try to enroll them. The court wanted new notice sent to the Oneida tribe but also asked that appellant have the tribe contact DHHS to determine whether the minors were now eligible for membership and whether the tribe intended to intervene.
According to an addendum report filed in January 2002, the social worker had not had contact with appellant since the last review hearing when appellant indicated she was participating in services at the Indian Bureau, although appellants counsel informed the social worker those services were complete. The social worker also reported that the Oneida tribe had been renoticed based upon appellants information that the criteria for enrollment may have changed. At the review hearing, the court questioned the social worker, who confirmed that notice had been sent to the Oneida tribe; she had the return receipt which established the notice was received, but she had not yet had any response. The court continued the minors in long-term foster care.
Subsequent to the review hearing, appellant filed a petition for modification (§ 388) seeking to reopen reunification services (§ 366.3, subd. (e)). Appellant alleged she had been attending parenting classes and AA meetings and was caring for her son, who was 16 months old and not a dependent child. She alleged the modification was in the minors best interests because they were currently in long-term foster care and she wanted to demonstrate she could provide a stable home. There were no allegations that appellant had resolved the anger management issues that led to the minors abuse, nor did she indicate the status of her relationship with her boyfriend and coabuser.
The court granted the petition and ordered DHHS to submit a case plan for appellant. The social worker sent a memo to the court stating: "The case plan includes drug/alcohol testing and counseling." However, no counseling was specified in the plan submitted to the court.
The June 2002 review report again stated the Oneida tribe had concluded the minors did not meet standards to be recognized by the tribe or to be enrolled in the tribe, as their proportion of Oneida blood was unknown. Appellant was attending weekly supervised visits with the minors and was testing negative. Appellant had not yet provided documentation of the services in which she had participated through the Indian Bureau and had married the man whose physical abuse of the minors led to their detention.
At the July 10, 2002, hearing, appellant raised the question of reasonableness of services provided to her since no counseling referral had been made. The court directed DHHS to meet with appellant and her husband and make a recommendation concerning services for him. The court also ordered that appellant be referred for individual counseling.
Subsequent reports in August 2002 stated DHHS had provided testing and counseling services to appellant and testing services to her husband. Appellant had started therapy and documented her participation in parenting classes and substance abuse support but not completion of the parenting class. The social worker felt appellant had made fair progress but remained concerned that appellant still had not progressed to unsupervised or overnight visits, was living with the coabuser of the minors and did not have a stable home for evaluation.
At the review hearing, the parties again discussed the reasonableness of the services provided to appellant. Ultimately the court accepted a stipulation by the parties to offer appellant additional services and ordered six months more services. At the hearing, the court declined to make a "lack of reasonable services finding[]" because there had been no objection to the case plan as adopted and appellant had received services commensurate with the plan.
DISCUSSION
I
Appellant raises several contentions relating to notice to the various named tribes pursuant to the ICWA.
a. Appellant contends the court failed to insure compliance with the ICWA notice requirements in that there is nothing in the record which demonstrates that notice was sent to either the Omaha or the Chippewa tribes and that notice to the Oneida tribe was inadequate.
The ICWA protects the interests of Indian children, i.e., those who are members of an Indian tribe or who are eligible for membership in an Indian tribe, and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) The juvenile court and DHHS have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 1439(d).) If, after the petition is filed, the court "knows or has reason to know that an Indian child is involved," notice of the pending proceeding and the right to intervene must be sent to the tribe or the Bureau of Indian Affairs if the tribal affiliation is not known. (25 U.S.C. § 1912(a); Cal. Rules of Court, rule 1439(f).)
No notice was required for Leticia and Angeliques fathers possible tribal affiliation because the information was too vague. (In re O.K. (2003) 106 Cal.App.4th 152, 156-157.) However, the court was certainly aware that the minors might be Indian children of either the Oneida or Chippewa tribes and ordered notice of the proceedings be given to each of the tribes.
The social workers report states notice was sent to the Oneida tribe. Absent evidence to the contrary, and coupled with the presumption that the duty to send notice was properly performed (Evid. Code, § 664), the report constitutes substantial evidence that DHHS complied with the notice requirements of the ICWA as to the Oneida tribe. (In re Jeffrey A. (2002) 103 Cal.App.4th 1103, 1108.)
However, the record contains no suggestion that notice was sent to the Minnesota Chippewa tribe, thus the notice provisions of the ICWA were violated as to that tribe and prejudicial error resulted. (In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740.) We note that the juvenile court may not have had probable cause to believe the Omaha tribe was involved since appellant did not disclose the minors Omaha ancestry to the court or the welfare agency. (Cal. Rules of Court, rule 1439(d)(2); see In re O.K., supra, 106 Cal.App.4th at p. 156.) However, the potential affiliation is now known and as respondent concedes, notice to the Omaha tribe is appropriate as well. Reversal of the juvenile court orders is required to permit notice and the opportunity for the tribes to intervene.
Absent information that any other Chippewa tribe was involved, notice to this tribe alone is sufficient since it is the tribe in which the maternal grandmother said she was enrolled.
b. Appellant argues the notice to the Oneida tribe was defective because the record does not include copies of the notice or proof it was sent by registered mail.
It is true that this court has suggested that "to satisfy the notice provisions of the [ICWA] and to provide a proper record for the juvenile court and appellate courts, [a social service agency] should follow a two-step procedure" of sending proper notice to all possible tribal affiliations and filing with the court copies of the notices, the return receipts and any correspondence from the tribes. (In re Marinna J., supra, 90 Cal.App.4th at pp. 739-740, fn. 4; see also In re H. A. (2002) 103 Cal.App.4th 1206, 1214-1215; In re Jennifer A. (2002) 103 Cal.App.4th 692, 702-703; In re Asia L. (2003) 107 Cal.App.4th 498, 507-508.) However, while this practice would head off numerous appellate complaints of noncompliance with the ICWA, the second step of this procedure is not required by the ICWA or by California Rules of Court, rule 1439. The Guidelines for State Courts; Indian Child Custody Proceedings (44 Fed.Reg. 67584 et seq.) (Nov. 1979) (Guidelines), which are advisory only, would require copies of notices and return receipts or other proof of service to be filed with the court. (Guidelines, 44 Fed.Reg. 67584-67595.) These Guidelines have not been adopted in California as a mandatory requirement. Absent a challenge in the juvenile court to the statements in the social workers report, litigation of which could provide a more complete record, we presume the proper notices were properly sent. (Evid. Code, § 664.)
c. Appellant asserts that, because the Oneida tribe did not explicitly state the minors were not "eligible for enrollment," the ICWA may still apply.
The tribe indicated in its response letters that the minors were persons "whose proportion of Oneida Blood is UNKNOWN" and that they were "NOT ENROLLED." Since appellant was enrolled in the tribe and the tribe necessarily had records of appellants proportion of Oneida blood, the tribes response makes it clear that the proportion of Oneida blood in the minors due to appellants contribution was inadequate to make them eligible for enrollment. Both appellant and the maternal grandmother acknowledged this. It is also clear that the tribe had inadequate information about the fathers possible contribution and could not determine the complete proportion of Oneida blood. Absent such information, the Oneida tribe necessarily determined the minors were not enrolled or eligible for enrollment since a certain proportion of Oneida blood was required and the minors could not demonstrate they had that fraction. The tribes determination of the minors status was conclusive. (Cal. Rules of Court, rule 1439(g).)
d. Appellant notes that a second notice to the Oneida tribe was triggered in November 2001 and suggests that the notice may have been inadequate.
However, the record contains evidence that new notice was sent and that the social worker had return receipts but no response from the tribe. We will neither speculate nor presume inadequacy in the notices. Indeed, as noted above, we presume the function of sending notice to the tribe was properly done. (Evid. Code, § 664.) In re Jeffrey A., supra, 103 Cal.App.4th 1103, relied upon by appellant, is distinguishable on its facts since, in that case, the record disclosed that the document sent to the tribe was a "nondescript `request for verification." (Id. at p. 1108.) There is no indication in this case that an inadequate notice was sent.
II
Appellant contends the evidence does not support the courts finding that reasonable services were provided to appellant because the plan, adopted after the court granted her petition for modification, included counseling, and no counseling referral was made until five months later.
When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing evidence, the reviewing court must determine if there is any substantial evidence—that is, evidence which is reasonable, credible and of solid value—to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924, 171 Cal. Rptr. 637, 623 P.2d 198; In re Jason L. (1990) 222 Cal. App. 3d 1206, 1214, 272 Cal. Rptr. 316.) In making this determination, we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (In re Jason L., supra, at p. 1214; In re Steve W. (1990) 217 Cal. App. 3d 10, 16, 265 Cal. Rptr. 650.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319, 867 P.2d 706.)
While the social workers cover memo attached to the plan developed after appellants successful petition for modification mentioned counseling as an element of the plan, the plan itself did not include counseling—only substance abuse testing and parenting. Appellant did not seek to modify the case plan when it was proposed and may not attack any perceived deficiencies now. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811.)
It is unclear from the memo whether the counseling was individual counseling or substance abuse counseling. If the latter, it was rendered unnecessary due to appellants consistent negative tests, and no referral was required.
Appellant was referred to testing and had been attending a parenting class at the Indian Bureau. The services provided were precisely what was required under the plan. Thus, the services provided under the plan, as adopted, were reasonable. The fact that other services could or should have been provided under a more comprehensive plan in order to speed the minors return to appellants custody is not relevant to our review. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
In any case, appellant can demonstrate no prejudice from the courts failure to find reasonable services were not provided because the court did order additional services beyond the six-month time limit set by statute. (§ 366.3, subd. (e)(9), 4th par.) She is entitled to no other relief.
Appellant, citing section 366.26, subdivision (c)(2), suggests prejudice exists because the court must find reasonable services were provided before termination of parental rights. However, that section states, "The court shall not terminate parental rights if at each and every hearing at which the court was required to consider reasonable efforts or services, the court has found that reasonable efforts were not made or that reasonable services were not offered or provided." (Italics added.) Since the court has already made findings during the reunification period that reasonable services were provided, the section does not assist appellant. Under the circumstances here, prejudice based on this section would be speculative, at best.
III
Appellant contends the court erred in failing to return the minors to her custody. We disagree.
The presumption in postpermanency review hearings is "that continued care is in the best interests of the child." (§ 366.3, subd. (e)(9), 4th par.) However, at such review hearings, the court, with the safety of the minor a foremost consideration, does review the minors placement, the parents progress in mitigating the causes that necessitated foster care, and a likely date when the minor may be safely returned to the home. (& sect; 366.3, subd. (e).)
The evidence is clear that the minors could not safely return home. Appellant was married to the coperpetrator of the physical abuse inflicted on the minors. Neither appellant nor her husband had participated in anger management or other counseling designed to reduce the risk of harm to the minors. The fact that the child in her care was not a dependent is not dispositive either way on the issue of safety. The minors who are dependents suffered serious harm in appellants custody. She must demonstrate they will be safe if returned to her and has not done so.
DISPOSITION
The orders of the juvenile court are reversed and the matter is remanded to the juvenile court with directions to order DHHS to provide proper notice of the proceedings to the Chippewa and Omaha tribes under the ICWA. If, after receiving notice under the ICWA, no tribe indicates the minors are Indian children within the meaning of the ICWA, then the juvenile court shall reinstate the orders.
We concur: HULL, J., ROBIE, J.