Opinion
C059526.
7-13-2009
In re N. C. et al., Persons Coming Under the Juvenile Court Law. YUBA COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, Plaintiff and Respondent, v. CHRISTI H., Defendant and Appellant.
Not to be Published
Christi H., mother of the minors, appeals from orders terminating her reunification services. (Welf. & Inst. Code, §§ 366.21, subd. (f); 395 [further undesignated statutory references are to the Welfare and Institutions Code].) Appellant contends the juvenile court erred in finding that reasonable services were provided to her and that Health and Human Services (HHS) had complied with the notice provisions of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) We reverse so that HHS can demonstrate compliance with the notice provisions of the ICWA.
FACTS
The minors, N.C., age two, and S.C., age four, were detained in April 2007 due to a combination of appellants substance abuse, physical abuse of the minors by the parents and domestic violence in the home. Appellant claimed Cherokee, Choctaw and Chickasaw heritage.
HHS sent notice of the proceedings to seven federally registered tribes including the Cherokee Nation, the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee Indians, the Choctaw Nation of Oklahoma, the Jena Band of Choctaw Indians, the Mississippi Band of Choctaw Indians and the Chickasaw Nation. In addition to information about appellant, the maternal grandmother, the maternal great-grandmother and the maternal great-great-grandmother, the notice also included the name of Molinda Pearl Dove, identified only as "relative," with an enrollment number. The connection of this individual to appellants family was not explained. Receipts for certified mail showing mailing of the notice were filed with the court but the return receipts, if any, showing delivery of the notice, were not.
Having received a response from one tribe, HHS sent a second notice to the remaining six tribes prior to the disposition hearing. This notice omitted information on the maternal great-great-grandmother and Molinda Pearl Dove. Again, only the receipts showing mailing of the notices were filed with the court. Negative responses regarding the minors status as Indian children were received from four of the tribes.
The disposition hearing report stated appellant admitted a five-year history of substance abuse and had tested positive in April and May 2007. Residential treatment for her substance abuse problem was recommended. Appellant failed to go to the first program when a bed was available. She eventually did enter the program but left after six days because she was taking Vicodin while having dental work done and could not meet the program rules. The dentist confirmed that Vicodin was not originally prescribed but appellant refused to take anything else and asked for more after the dental work resolved her problem. The social worker noted appellant chose Vicodin over her treatment program. Appellant did not follow up the referral for therapy, believing she did not need it or substance abuse treatment. The report concluded appellant spent time manipulating the service providers instead of engaging in the services to which she was referred. The court adopted the recommended service plan in June 2007 and found HHS had given notice to the Indian tribes as required.
Appellant began to engage in therapy, parenting classes and a second substance abuse treatment and was living in transitional housing. In October 2007, appellant was discharged from her substance abuse program for absences but was re-referred and accepted back into the program on condition she have no unexcused absences. Because appellant had expressed willingness to change and fully engage in services, the social worker recommended additional services be provided to her. At the six-month review hearing in November 2007, the court ordered further services for appellant.
According to the review report for the permanency hearing, appellant stopped participating in therapy and parenting after the six-month review hearing and had further absences from the substance abuse treatment program which resulted in discharge from that program and loss of her subsidized housing. Appellant moved to Merced to stay with a sister and was referred to programs there. Appellant participated sporadically in programs in Merced until early January when she stopped attending at all. The social worker had difficulty in locating and maintaining contact with appellant. The report concluded appellant had failed to comply with the service plan and recommended termination of services.
According to the social workers delivered service log filed with the court as a first addendum to the review report, the social worker told appellant in late November 2007 that she would have to leave transitional housing. At that time the social worker also discussed appellants options for places to stay in the area and her need to be re-assessed for another outpatient program. Appellant chose to move to Merced and stay with her sister, and the social worker gave her referrals for services in the area. In February 2008, appellant left a voicemail message saying she wanted to return to Marysville but did not have a telephone number for the social worker to call her back. Appellant did not contact the social worker for a month. By April 2008, the maternal grandmother thought appellant had returned to Merced. According to reports the social worker received, appellant attended substance abuse treatment in Merced for about a month and stopped participating in early January 2008. The social worker contacted the paternal grandmother in an attempt to locate appellant but the paternal grandmother had not seen appellant in a week. In May 2008, the social worker discovered appellant had been arrested in February 2008 and again in May 2008. The log shows appellant occasionally left messages for the social worker from November 2007 to June 2008 but generally did not provide any means for the social worker to contact her. In June 2008, appellant left a voicemail message that she had cleared her issues with the court in Merced, was going to begin a new substance abuse program and re-start parenting classes. The next day appellant called to arrange a visit with the minors.
A second addendum gave information on appellants visits after she moved to Merced. Appellant attended only one visit from December 2007 until she returned to Marysville in June 2008. Thereafter, she attended only half of the scheduled visits. From February 2008 through April 2008, the social worker was unable to locate appellant to arrange visits.
At the review hearing, the social worker testified about the events leading to appellants decision to move to Merced and that she referred appellant to services there. Once in Merced, appellant left voice messages for the social worker about difficulty in scheduling visits due to her program requirements but did not provide a telephone number for the social worker to call her back. At one point, appellant called to tell the social worker she was returning to Marysville and left a telephone number, but it proved to be incorrect. The social worker tried to contact appellant through the maternal grandmother. From March 2008 to mid-June 2008, the social worker received no voicemail messages from appellant. In response to the courts questioning, the social worker said it was her practice to make an effort to log every call or voicemail in the delivered service log but was unable to say that she had logged every one.
Appellant testified she asked for a different substance abuse program when she was forced to leave transitional housing because the one she had been in was not "the program for her." She blamed the absences which led to her discharge from the program on the difficult bus schedules. After moving to Merced, appellant stayed for a few weeks with her sister but was asked to leave when money became an issue. Appellant then stayed with the paternal grandmother for about a month. She informed the social worker of the move by voicemail message, knowing the social worker had phone numbers for the maternal and the paternal grandmothers and assuming the social workers would call them to contact her. For a period of time she moved back and forth from Merced to Marysville and called the social worker twice a week to tell her that she had no residence and was trying to follow the case plan but could not. She also spoke to the social worker in January to tell her of the ongoing residence problems. Appellant testified she stopped going to services because she was spending all her time trying to find a place to stay.
At the conclusion of the testimony, the court found reasonable services were provided but appellant failed to comply with the plan and had made no progress in addressing the issues which led to removal of the minors. The court terminated appellants services.
DISCUSSION
I
Appellant argues reversal is required for failure to comply with the notice provisions of the ICWA.
The ICWA protects the interests of Indian children 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.) 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. (25 U.S.C. §§ 1912, 224.2; Cal. Rules of Court, rule 5.481(b).) Failure to comply with the notice provisions and determine whether the ICWA applies is prejudicial error. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424; In re Desiree F. (2000) 83 Cal.App.4th 460, 472.)
State statutes, federal regulations and the federal guidelines on Indian child custody proceedings all specify the contents of the notice to be sent to the tribe in order to inform the tribe of the proceedings and assist the tribe in determining if the child is a member or eligible for membership. (§ 224.2; 25 C.F.R. § 23.11(a), (d), (e); 44 Fed.Reg. (11-26-79) No. 228, B.5, p. 67588.) If known, the agency should provide the name and date of birth of the child; the tribe in which membership is claimed; the names, birthdates, and places of birth and death, current addresses and tribal enrollment numbers of the parents, grandparents and great grandparents as this information will assist the tribe in making its determination of whether the child is eligible for membership and whether to intervene. (§ 224.2; 25 C.F.R. § 23.11(a), (d), (e); 44 Fed.Reg. (11-26-79) No. 228, B.5, p. 67588; In re D.T. (2003) 113 Cal.App.4th 1449, 1454-1455.)
The notice in this case did include extensive ancestor information, however, it also included the name and enrollment number of an individual simply described as "relative" with no indication how the person was connected to the minors whose tribal eligibility was in question. Without a link to the minors, inclusion of the unknown "relative" information was useless.
"Notice shall be sent by registered or certified mail with return receipt requested." (§ 224.2, subd. (a)(1).) "Proof of the notice, including copies of notices sent and all return receipts and responses received, shall be filed with the court in advance of the hearing . . . ." (§ 224.2, subd. (c); see also Cal. Rules of Court, rule 5.482(b).)
Here, HHS filed copies of the notices and the receipts for mailing but not the required return receipts. Four of the seven tribes responded to the notice and any error in failing to file the return receipts as to those tribes was harmless. However, three of the tribes did not respond and, in the absence of responses or return receipts, we cannot assume those tribes had notice of the dependency proceedings.
The juvenile court made findings both at the jurisdiction hearing and the disposition hearing that the notice requirements of the ICWA had been satisfied. However, the record does not support the findings since the first notice contained either inadequate information or information which was not related to these minors and no return receipts were filed to show proof of service. The second notice did not correct either of these deficiencies and actually had less ancestral information than the first notice. Reversal for notice in compliance with the ICWA is required.
II
Appellant further contends there was insufficient evidence that reasonable services were provided to her after she was required to leave the transitional housing because the social worker did not assist her in securing stable housing so that she could participate in her service plan.
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, 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; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) 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, 222 Cal.App.3d at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) 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.)
The evidence showed that the social worker discussed housing options with appellant when telling appellant that she could no longer reside in the transitional housing because she was discharged from the substance abuse treatment program. When appellant informed the social worker she was moving to Merced to live with her sister, the social worker referred appellant to programs in Merced which would satisfy her reunification plan. From that point in late November 2007 until appellant returned to Marysville in June 2008, there is conflicting evidence on several critical points including whether appellant told the social worker she needed help in securing housing, how frequently appellant called the social worker and either spoke to her or left voicemail messages and whether appellant was out of contact with the social worker for several months when appellant was moving back and forth from Merced to Marysville.
In making its findings, the juvenile court resolved the conflicts in the evidence adversely to appellant. (In re Jason L., supra, 222 Cal.App.3d at p. 1214.) This court may not reweigh the evidence. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.) Reasonable services were offered to appellant because the social worker addressed the housing issue when she knew it was a problem, referred appellant to services when it appeared that appellant had resolved her housing issue and thereafter was either unaware of any housing problem or unable to contact appellant to help her resolve it. Appellant suggests that her progress in reunification with the minors stopped when she lost her housing. It is apparent that appellants lack of progress in the substance abuse program resulted in the loss of housing. Thus, housing was only one aspect of appellants failure to comply with the service plan. Substantial evidence supports the juvenile courts finding that reasonable services were offered to appellant.
DISPOSITION
The orders terminating appellants services are reversed and the matter is remanded for the limited purpose of determining whether HHS complied with the notice provisions of the ICWA and whether ICWA applies in this case. If, after proper inquiry, the juvenile court determines that the tribes were properly noticed and there either was no response or the tribes determined that the minors are not Indian children, the orders shall be reinstated. If adequate notice was not given, the juvenile court shall order HHS to comply promptly with the notice provisions of the ICWA. Thereafter, if there is no response or if the tribes determine the minors are not Indian children, the orders shall be reinstated. However, if a tribe or tribes determine that the minors are Indian children or if information is presented to the juvenile court that affirmatively indicates the minor is an Indian child as defined by the ICWA and the court determines the ICWA applies to this case, the juvenile court shall conduct a new review hearing in conformance with all provisions of the ICWA.
We concur:
SCOTLAND, P. J.
ROBIE, J.