Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK60699. Marilyn Mordetzky, Juvenile Court Referee.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.
Robert E. Kalunian, Acting County Counsel, James M. Owens, Assistant County Counsel, and Fred Klink, Senior Deputy County Counsel, for Plaintiff and Respondent.
MALLANO, P. J.
T.W. (Mother) appeals from a December 3, 2008 order terminating her reunification services with her son, M.M. (Child), when the court adjudicated the third subsequent petition (Welf. & Inst. Code, § 342) after the dependency matter had been pending for over two years. Mother fails to establish any abuse of discretion in the termination of reunification services, and we affirm that portion of the order. But because of insufficient compliance with the notice provisions of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. §§ 1901–1952), we reverse the portion of the December 3, 2008 order incorporating an earlier finding that ICWA does not apply.
Unspecified statutory references are to the Welfare and Institutions Code.
BACKGROUND
Mother, aged 17, and Child (born in Oct. 2005) lived with the maternal grandmother. M.M., Sr. (Father), did not live with Mother. According to Mother, during her one-year relationship with Father, and during her pregnancy, he beat, choked, pushed, punched, and tortured Mother. Father harassed Mother at her school and her job; he also threatened to kill Mother and her family. After Child was born, Father threatened to kill Child if he was not allowed to have him. According to Mother, Father was an active gang member and did not regularly take prescribed medication for a diagnosis of bipolar disorder. In December 2005, Father went to the family law court and obtained an order for unmonitored weekend visitation; the same court later granted Mother a restraining order against Father.
In February 2006, Child was detained from Father and placed with Mother. At the February 2006 detention hearing, Mother was afforded family maintenance services and Father was afforded reunification services. The court ordered the Los Angeles County Department of Children and Family Services (DCFS) to provide Mother with referrals for parent education and domestic violence counseling for victims. Mother was ordered to serve Father with the family law court restraining order, but the juvenile court also directed that Father was to have no contact with Mother pending further court order. Father was afforded monitored visits at the DCFS office. DCFS was ordered to provide Father with referrals for parent education, individual counseling, and mental health and domestic violence counseling.
In February 2006, Father indicated that he may have Cherokee ancestry through the paternal great grandmother, and the court ordered DCFS to notify the Cherokee tribes and the Bureau of Indian Affairs (BIA). In March 2006, DCFS contacted the paternal great grandmother, who sounded very sick and was unable to speak with the social worker at that time. The paternal great grandmother requested that she speak with the social worker at another time; the social worker left messages for the next four days, but the paternal great grandmother did not return the calls. DCFS also attempted to contact the paternal grandmother, but the telephone number that DCFS had for her was disconnected. Nevertheless, in March 2006, DCFS sent notices of the proceedings to three Cherokee tribes and the BIA; the only information set out in the notices about the paternal great grandmother was her name and the name of her husband, the paternal great grandfather. The notices also contained the name and birthdate of the paternal grandmother, and the names, birthdates, and birthplaces of the parents and Child.
Each of the three Cherokee tribes responded to the notice, stating the Child will not be considered an Indian child in relation to the tribe based on the information provided by DCFS. On June 6, 2006, the juvenile court found that the case did not fall within ICWA.
In preparation for the jurisdiction and disposition hearing, DCFS interviewed Father, who denied the violent and abusive incidents alleged by Mother. According to Father, Mother would not let him see Child because she was getting back at him for breaking up with Mother and going back to his former girlfriend. Father claimed that it was Mother and her new boyfriend who instigated altercations and violence. Father admitted that when he was younger he was in a gang, but he was no longer in a gang. Father was working, going to church, and changing his life. Father also said that he was not diagnosed as bipolar, but had a learning disability for which he was not prescribed any medication.
At the jurisdiction and disposition hearing on October 11, 2006, the parents waived their rights and submitted the matter. The court declared Child a dependent of the juvenile court pursuant to section 300, subdivision (b) (failure to protect), based on the parents’ continuing history of domestic violence. Child was placed in Mother’s home. The parents were ordered to participate in the same services ordered at the detention hearing. Father was afforded monitored visits, with discretion for DCFS to liberalize his visits.
In November 2006, DCFS reported that Father’s visits were going well, Child was developing a bond with him, and he had the “potential to be a ‘great father.’” It also appeared to DCFS that Mother and Father were getting along well and were spending time together. According to Father, he and Mother met at a hotel in December 2006 and were intimate.
In January 2007, Father picked up Child for an unmonitored visit and was riding on the highway in a car with Child, the paternal grandmother and her three-year old daughter, when Mother, following Father in her own car, threw an object at Father’s car. DCFS removed Child from Mother’s custody, placed him in foster care with nonrelatives, and filed a subsequent petition (§§ 342, 300, subd. (b)). At the detention hearing, DCFS was ordered to provide the parents family reunification services; Mother was afforded monitored visitation. In February 2007, DCFS reported that Child cried hysterically when Mother held him during visits. Mother cried during the visits as she attempted to console Child.
At the time of the contested jurisdiction and disposition hearing on the subsequent petition in February 2007, Mother had recently begun attending anger management and domestic violence counseling and was scheduled to begin a parenting class that day. Mother denied throwing anything at Father’s car, denied that Child had a history of crying during her visits, and denied that she objected to Father’s unmonitored visits. The court found Mother not to be credible and sustained the subsequent petition, declaring Child a dependent of the juvenile court under section 300, subdivision (b), based on Mother’s throwing an object at a car in which Father and Child were passengers and endangering their lives. The court removed Child from Mother’s custody and ordered reunification services, to include domestic violence counseling and anger management. The parents’ visitation was to be monitored.
In April 2007, DCFS reported that Child was doing well in foster care and was also in a better mood during weekly two-hour visits with Mother. Child was “more ‘bonded’ with his mother,” and “threw a ‘tantrum’ as he cried for his mother... while preparing to leave” the visits. At a hearing on April 11, 2007, the court ordered Mother and Father into conjoint or couples counseling and increased their visits to twice a week.
By April 2007, Mother had completed eight of 21 domestic violence sessions. At the time of the May 7, 2007 review hearing, Mother had successfully completed her anger management classes and she and Father were enrolled in joint counseling. DCFS reported that Child was happy and content during monitored visits with Mother. The court found that the parents were in compliance with the case plan, continued reunification services, and ordered that the parents’ visits were to be unmonitored but they were not to visit at the same time.
Although Mother missed some visits in July 2007 because of alleged car problems, DCFS recommended in August 2007 that Child be returned to the parents under a shared custody arrangement and with family maintenance services, and the court so ordered at the August 15, 2007 hearing. The parents were also ordered to complete parenting education and domestic violence counseling.
In January 2008, Child was detained and placed with Father. A second subsequent petition was filed, based on an incident after a custody exchange in December 2007. The exchange was rescheduled to the next day because the parents engaged in an argument after Mother’s boyfriend became hostile and aggressive. As Father and Child were riding in the paternal grandmother’s car to return home, Mother drove her car alongside them. Mother’s boyfriend threw an object, shattering the window of Father’s car and showering Child’s hair with glass fragments. Mother and her boyfriend denied the incident occurred.
At the detention hearing, Child was detained from Mother, who was afforded family reunification services and monitored visitation every two weeks. In a February 19, 2008 status review report, DCFS noted that Mother expressed her desire that Child not visit with Father and the paternal grandmother. Mother also made allegations against Father which DCFS was not able to substantiate, including claims that Father had held her hostage and threatened to kill her. DCFS recommended a psychological examination of Mother to help determine whether she has an emotional condition that would interfere with her ability to provide a safe home for Child.
At the March 4, 2008 hearing, Mother submitted the subsequent petition on the basis of the DCFS reports, and the court sustained the petition, finding that Child was a dependent of the court pursuant to section 300, subdivision (b), based on the December 2007 incident. The court also ordered a psychological evaluation of Mother, Father, and the maternal and paternal grandparents, and deferred making a disposition order until receipt of the evaluation. The court also informed the parents that “in six months we will be at a point where we will have to terminate jurisdiction if... the mother is not able to reunify with her child. I would have to close it with a family law order. [¶]... I believe both of these parents have already gone through the 18-month time for reunification services. [¶] So I’m telling the both of you, six months is very important because at that point in time if the child is not with a parent, then I will have to terminate reunification services and possibly make a permanent plan for [Child]. That could be long-term foster care, guardianship or adoption.”
According to the April 7, 2008 report of psychologist Clive Kennedy, Mother’s approach to the testing “revealed an effort to present a socially acceptable appearance or a resistance to admitting personal shortcomings. In fact, her level of defensiveness was so great; it rendered the results somewhat unreliable.” Because of Father’s second or third grade reading level, he was not administered any psychological tests. Kennedy concluded, “Consistent with many custody seeking parents, it is apparent both parents were poor historians. It is unlikely they have never tried alcohol or other drugs and it makes it difficult to trust other aspects of their story....” Although Kennedy found no evidence of a psychiatric disorder “that alone would justify limiting [Mother’s] custody or access to [Child],” there were also “indications that [Mother] blamed much of her problems on others.... And despite the poor reliability of the testing results, there were indications [of] personality traits that contribute to [Mother’s] being so invested in the fight with [Father] that she would sacrifice her son’s welfare to get back at him. It remains unclear to what extent this chaotic scenario is partly related to [Mother’s] boyfriend. During the session, he was reported to have been present at the office.”
At the disposition hearing on April 22, 2008, DCFS recommended that Mother receive no further reunification services. Mother’s counsel objected but stated, “[I]f I feel the need to, I’ll file a 388 to clear it up.” The court then asked Mother, “[D]o you understand that the Department is not providing you reunification services?” Mother answered, “Yes.” The court then removed Child from Mother’s custody and placed him with Father. The court ordered that no reunification services be provided to Mother but noted that DCFS agreed to assist her with individual counseling to address case issues, including poor impulse control and poor choices. Mother was afforded monitored visits and DCFS was ordered to assist the parents with transportation funds to facilitate visits. The April 22, 2008 minute order stated that DCFS had complied with the case plan by making reasonable efforts to enable Child’s safe return home.
On April 24, 2008, Father was arrested and pleaded guilty to possession of cocaine for sale and sentenced to two years in prison. Father made arrangements for Child to live with the paternal grandmother while he was in custody and until he was released from prison, which could occur as early as March 2009. Father claimed that he was innocent and that he was not in possession of drugs found in the bushes at his grandmother’s home. He received a call that his grandmother was gravely ill and had just arrived at his grandmother’s home when the police drove up and searched everyone. Drugs were found in the bushes near where he was standing. According to Father, he took the plea deal to avoid a possible eight years in prison if convicted; with the plea, he could spend only eight months in prison. Father told DCFS that he will no longer associate with anyone in his grandmother’s neighborhood, and now that she was gone, he had no reason to return to that neighborhood. Father expressed sadness about his situation and that he would be away from his son.
In July 2008, the paternal grandmother noticed that Child was favoring one of his legs and squirming in his seat when he returned from a visit with Mother. Child said that Mother hit him on his buttocks with a belt and a hairbrush and that Mother’s boyfriend had a gun and said that he was going to shoot Father. The paternal grandmother made a police report, and the police officer confirmed that Child’s buttocks were swollen and bruised. Mother denied hitting Child.
Over Mother’s objection, in September 2008, the court ordered that her visits be in a DCFS office with a DCFS monitor. The court also found that DCFS had provided reasonable reunification services.
In October 2008, a third subsequent petition was filed based on Mother’s hitting Child with a belt and a hairbrush and on Father’s arrest and sentence to prison. According to an October 31, 2008 jurisdiction/disposition report, “[M]other’s anger outburst towards the child has made the child fearful and reluctant to visit with the mother without someone else being present. Although the mother has attended counseling services her most recent behavior towards the child [does not indicate] that counseling has helped the mother with controlling her anger outbursts.” Mother told DCFS on more than one occasion that she does not have an anger management problem and that she does not need counseling. DCFS’s report also noted that Child was happy and well cared for by his paternal grandmother.
As to Mother’s visitation, DCFS reported that Mother has had a substantial opportunity to visit but has not availed herself of it, and “it is uncertain as to her level of commitment to the child at this time. The child is observed to be indifferent towards his mother at this time and it is unclear how the child’s relationship with his mother has been affected by the current allegation....”
On December 3, 2008, Mother was not present for the hearing on the third subsequent petition. The court sustained the allegations pertaining to both parents and declared Child a dependent of the court pursuant to section 300, subdivision (b). The court removed Child from Mother’s custody and placed Child in Father’s home on condition that Father and Child reside in the home of the paternal grandmother. Father was also ordered to attend parent education and a drug rehabilitation program with random testing.
Mother was afforded monitored visits but no reunification services, the court stating, “No reunification services be provided to the mother, as the mother is out of reunification time.” Mother appealed from the December 3, 2008 order, challenging the termination of reunification services and the adequacy of ICWA notice.
DISCUSSION
A. Termination of Reunification Services
Noting that services were continued for Father on December 3, 2008, Mother contends that the juvenile court abused its discretion in terminating her reunification services, claiming that she had only 14 months of services (from February 2007 to April 2008), and that the services were inadequate because they did not specifically address the new issue of her physical abuse of Child, which finding was sustained in the third subsequent petition. We conclude that Mother fails to establish the juvenile court abused its discretion in terminating her reunification services.
“[T]he presumptive rule for children under the age of three on the date of initial removal is that ‘court-ordered services shall not exceed a period of six months from the date the child entered foster care’ (§ 361.5, subd. (a)(2); see In re Christina A. (2001) 91 Cal.App.4th 1153, 1160–1161).” (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 174–175.) Nevertheless, “the juvenile court has the discretion to terminate the reunification services of a parent at any time after it has ordered them, depending on the circumstances presented.” (In re Aryanna C. (2005) 132 Cal.App.4th 1234, 1242.) “The main purpose of limiting the period of reunification in a dependency proceeding is to afford the child stability and permanency where reunification is unlikely within the statutory time limits. (§§ 361.5, 366.21....)” (In re Alanna A. (2005) 135 Cal.App.4th 555, 566.) “In deciding whether to terminate the services of one parent who has failed to participate or make progress toward reunification, the court is not constrained by a consideration of the other parent’s participation in services.” (In re Jesse W. (2007) 157 Cal.App.4th 49, 60.)
The “child welfare services” addressed in section 361.5 include both reunification and maintenance services. (Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 165.) The period for reunification is not “tolled” during the time a child is returned home and receiving family maintenance services. (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 308.) And “a finding of jurisdiction on a subsequent petition should not automatically trigger a new period of reunification services.” (In re Barbara P. (1994) 30 Cal.App.4th 926, 933.)
Under the foregoing authorities, we conclude that Mother was afforded “child welfare services” from the date she was given referrals by DCFS for parent education and domestic violence counseling pursuant to the February 2006 order, until April 22, 2008, when the court told Mother that her services were being terminated except for individual counseling to address her poor impulse control and transportation funds to facilitate visitation. Within the foregoing time period (from February to May 2007), Mother also began and completed anger management classes. It was not until December 3, 2008, that all reunification services were terminated. Accordingly, Mother received a total of over two years of child welfare services.
Contrary to Mother’s assertion that it is mere speculation that the prior services addressed the “new issue” in the third subsequent petition of physical abuse of Child, we conclude that on the instant record the juvenile court reasonably could have concluded that the services provided to Mother were adequate and addressed the issue of parental physical abuse of children. Mother had participated in parenting, anger management, and domestic violence programs; the court reasonably could have inferred that these programs contained components on proper discipline techniques for children, parental impulse control, and anger management. There was no evidence that the services did not address the issue of child abuse by a parent.
Mother’s reliance on In re Michael S. (1987) 188 Cal.App.3d 1448 (Michael S.) is misplaced, as that case involved conduct of sexual abuse, which is not at issue here. In Michael S., the children were initially removed from the mother due to her physical abuse; she was afforded parenting classes and individual counseling to address anger management. A supplemental petition was sustained containing allegations of sexual abuse of the children by the mother’s boyfriend and the mother’s knowledge of the molestation, but no further reunification services were ordered. The Court of Appeal reversed the order, explaining that “[a]lthough the conduct in the instant case, i.e., the physical abuse in June 1983 and the sexual abuse in July 1984, is not as dissimilar as that discussed above [comparing a ‘dirty house’ case to one involving physical abuse], to the extent earlier efforts at reunification were directed to helping mother learn to control her temper and to handle a very active child, described by some as a ‘holy terror,’ those skills would not necessarily ensure that mother could effectively deal with the sexual abuse of her children by her live-in companion who had, in fact, fathered the youngest of the children being abused.” (Michael S., at p. 1465.)
Unlike the situation in Michael S., the skills taught in Mother’s parenting and anger management classes would likely directly involve, or translate easily to, issues of physical abuse of children. Further, the standard “is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances.” (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) “[T]he mere fact that more services could have been provided does not render the Department’s efforts unreasonable.” (In re Alvin R. (2003) 108 Cal.App.4th 962, 973.) We conclude that substantial evidence supports the juvenile court’s finding that reasonable services had been provided to Mother.
In addition to the finding that the services already provided were reasonable, the juvenile court also could have concluded that Mother was not amenable to further services. Mother told DCFS that she did not have an anger management problem and did not need counseling. DCFS noted in October 2008 that Mother’s counseling sessions had not helped her to control her outbursts of anger and the psychologist found Mother resistant to admitting personal shortcomings. In light of the foregoing evidence, we conclude that the juvenile court did not abuse its discretion in terminating her services on December 3, 2008.
Because we conclude that the juvenile court did not abuse its discretion in terminating services, we need not address DCFS’s contention that Mother forfeited the point by not raising the issue of further services on December 3, 2008.
B. ICWA Notice
DCFS does not challenge Mother’s contentions that the notices were inadequate in that the notices did not contain all available information about the paternal relatives, including their birthdates and birthplaces, and that the tribes were thus unable to conduct a meaningful investigation as to whether Child was eligible for membership. We agree with Mother that the notices were inadequate. DCFS never discussed the family’s Cherokee ancestry with the paternal grandmother, even though Child was placed in her home in 2007. Our record thus shows that not all available information about Child’s Indian ancestry may have been included in the notices to the tribes and the BIA.
DCFS maintains, however, that notice under the ICWA was not required in this case because on December 3, 2008, Child remained placed in Father’s custody, and DCFS was not seeking placement in foster care, so the proceeding was not a “child custody proceeding” within the meaning of the ICWA. In the alternative, DCFS argues that any error in failing to provide proper notices earlier in the case, when Child was in foster care, was harmless in December 2008 because Child was then placed with the only relatives through whom he could claim Indian ancestry: his paternal grandmother and Father.
DCFS’s claim that the ICWA does not apply here because Child is placed with Father is without merit. “The ICWA permits a tribe to intervene at any point in state court child custody proceedings.” (In re Desiree F. (2000) 83 Cal.App.4th 460, 473.) The ICWA requirements “inure to the benefit of the Indian tribes and the child and consequently are not subject to waiver by a parent.” (In re P.A. (2007) 155 Cal.App.4th 1197, 1210.)
California Rules of Court, rule 5.481(b)(1) provides in pertinent part that “[i]f it is known or there is reason to know that an Indian child is involved in a proceeding listed in rule 5.480,... the social worker, petitioner, or... the court must send Notice of Child Custody Proceeding for Indian Child (form ICWA-030) to... the Indian child’s tribe....”
References to rules are to the California Rules of Court.
Rule 5.480 provides in pertinent part, “This chapter addressing the [ICWA]... applies to all proceedings involving Indian children that may result in an involuntary foster care placement;... declaration freeing a child from the custody and control of one or both parents; termination of parental rights; or adoptive placement, including: [¶] (1) Proceedings under Welfare and Institutions Code sections 300 et seq. and sections 601 and 602 et seq. in which the child is at risk of entering foster care or is in foster care, including detention hearings, jurisdiction hearings, disposition hearings, review hearings, hearings under section 366.26, and subsequent hearings affecting the status of the Indian child....”
Because a tribe has the right to intervene in a state court child custody proceeding involving an Indian child at any time, and because notice must be sent to the tribe when there is a proceeding “in which the child is at risk of entering foster care” (rule 5.480(1)), we conclude that the ICWA applied to this proceeding, notwithstanding Child’s current placement with his Father and paternal grandmother. Here, Father is incarcerated or will soon be paroled, and is still in the reunification period. The juvenile court has not yet determined a permanent plan for Child, and thus there is still a possibility that Child may enter foster care. Child is “at risk of entering foster care” within rule 5.480(1).
DCFS’s reliance on In re Alexis H. (2005) 132 Cal.App.4th 11 is unavailing because the court there expressly declined to decide the issue of the applicability of ICWA (Alexis H., at p. 14) and instead found that the inaccuracies in the notice as to the parents’ and the children’s names and birthdates were harmless error (id. at p. 16). The court reasoned that “[t]he Department did not pursue foster care or adoption, instead recommending from the beginning that the children remain with their mother. The court ordered reunification services for both parents, the hope of reunification services by definition being the family’s preservation. We are confident, however, that if the Department ever contemplates any additional action which might lead to foster care or adoption, it will ensure that the notices sent to the tribes contain complete and accurate information, including the names and birthplaces for the children and the names and accurate birthdates for mother and appellant.” (Ibid.)
Citing In re Brandon T. (2008) 164 Cal.App.4th 1400, DCFS argues that any error in failing to give proper ICWA notice was harmless. But the error in Brandon T. involved the failure to include all available information about a grandparent who did not claim any Indian heritage. Brandon T. is consistent with In re Cheyanne F. (2008) 164 Cal.App.4th 571, which held that the omission of information about the mother and her family was harmless error because the mother claimed no Indian ancestry. But Cheyanne F. also stated that “[d]eficiencies in an ICWA notice are generally prejudicial, but may be deemed harmless under some circumstances.” (Cheyanne F., at p. 577.) Accordingly, we apply the general rule and conclude that the errors here are not harmless.
The juvenile court’s finding that the ICWA does not apply was made in the June 2006 order and carried over into the December 3, 2008 order by a provision in the December 3, 2008 order giving full force and effect to all prior orders not in conflict with it. We therefore deem the December 3, 2008 order to include the June 2006 finding that the ICWA does not apply and reverse only that finding.
DISPOSITION
That part of the December 3, 2008 order determining that the Indian Child Welfare Act does not apply is reversed and the matter is remanded to the juvenile court with directions to order the Los Angeles County Department of Children and Family Services to comply with the notice provisions of the Indian Child Welfare Act and to file all required documentation with the juvenile court. If, after proper notice, a tribe claims that M.M. is an Indian child, the juvenile court shall proceed in conformity with all provisions of the Indian Child Welfare Act. If, on the other hand, no response is received, or no tribe claims that M.M. is an Indian child, that part of the order determining that the Indian Child Welfare Act does not apply shall be reinstated. In all other respects the December 3, 2008 order is affirmed.
We concur: ROTHSCHILD, J., CHANEY, J.