Opinion
B168952 consolidated B165735.
11-21-2003
JACQUELINE E., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest. In re DANIEL V., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JACQUELINE E., Defendant and Appellant.
Mauricio Fusco for Petitioner. Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Respondent Superior Court. Lloyd W. Pellman, County Counsel, Robert Stevenson, Principal Deputy County Counsel and Jacklyn K. Louie, Deputy County Counsel, for Real Party in Interest and Plaintiff and Respondent. Law Offices of Anne E. Fragasso, Brenda Dabney and Lori Glazer for Minor.
INTRODUCTION
In Case No. B168952, Jacqueline E. seeks writ relief from the dependency courts July 18, 2003 order terminating family reunification services and setting the matter for a selection and implementation hearing (Welf. & Inst. Code, § 366.26 ) with respect to her son, Daniel V. (Cal. Rules of Court, rule 39.1B.) In Case No. B165735, Jacqueline E. appeals from the March 13, 2003 order denying her request to have Daniels placement changed from San Bernardino County to Los Angeles County. On October 8, 2003, we ordered these two matters consolidated. We deny the petition and affirm the order.
All statutory references hereinafter are to the Welfare and Institutions Code.
FACTS
Daniel, a dependent of the juvenile court, is the son of Jacqueline E. and Joseph V. Both parents suffer from bipolar disorder, a disability which impairs their ability to parent Daniel. Their parental rights over Daniels older brother, David V., previously were terminated. David has since been permanently placed.
Joseph V. is not a party to the writ petition or appeal.
After sustaining a section 300 petition filed by the San Bernardino Department of Children Services (SBDCS) on Daniels behalf, the juvenile court ordered reunification services for both parents, as well as monitored visits. SBDCS provided both parents "with case management, parenting education, psychological evaluations, referrals to psychotherapy, family counseling and transportation assistance."
During the course of the dependency proceedings, Jacqueline E. and Joseph V. moved from San Bernardino County to the City of Glendale in Los Angeles County. As a result, the juvenile court in San Bernardino County transferred all proceedings to Los Angeles County.
By the time of the initial 12-month review hearing (§ 366.21, subd. (f)) on March 13, 2003, Daniel had adjusted well in his foster home and had bonded to his foster parents. The Los Angeles County Department of Children and Family Services (DCFS) had provided the parents with bus tokens, referrals to mental health agencies in their area and monthly visits with their social workers.
The parents had not visited Daniel regularly since October 2002, however, and had visited him sporadically prior to October. The social worker in San Bernardino had made sure the parents understood they could call her to arrange visitation while the case was being transferred to Los Angeles. At no time did the parents call to arrange for visitation during the transfer period.
The parents had no telephone, making it difficult to schedule visits. Their new social worker in Los Angeles arranged a visit on February 15, 2003. This visit, which was monitored by the foster parents, went well. DCFS arranged to have future monitored visits take place at the DCFS Pomona office twice a month. This schedule was agreeable with the parents.
In DCFSs view, it was not in Daniels best interests to return him to his parents, in that they had not complied with the case plan or court orders. They also had not visited Daniel consistently. Their psychological evaluations "clearly indicate[d] that they need[ed] extensive mental health services before they [could] be considered able to parent their child." The social worker was unable to confirm Jacquelines claim that she was under the care of a doctor because Jacqueline had not given the doctor permission to discuss her case with the social worker. DCFS recommended that Daniel remain suitably placed, that family reunification services be terminated and that a permanent plan of adoption be developed.
On March 13, 2003, Jacquelines guardian ad litem asked the court to replace Daniel in Los Angeles County, in that the distance made it difficult for Jacqueline to visit him. Following much discussion, the trial court denied the request.
After numerous continuances, a contested section 366.21, subdivision (f), hearing was held on July 18, 2003. Daniel remained in the home of his foster parents. During this year-long placement, Daniel had bonded with them. He "[did] not know his birth parents or relatives."
The parents visits with Daniel had been sporadic and inconsistent. As a result, Jacqueline E. and Joseph V. had not developed a parental bond with Daniel. In addition, the parents had not attended to their mental health needs since Daniels removal from their care. Inasmuch as Jacqueline E. and Joseph V. also had failed to reunify with their son David and Jacquelines oldest son, Devin S., had been placed with paternal relatives, DCFS recommended that family reunification services be terminated and that a permanent plan of adoption be implemented.
The trial court found by clear and convincing evidence that the parents had complied only partially with the case plan and that their "failure to participate in and make substantive progress in court-ordered treatment constitutes prima facie evidence that return would be detrimental." The court rejected the parents challenge to the adequacy of the reunification services and determined that "theres clear and convincing evidence that reasonable efforts to reunify with the children have been made." The court terminated family reunification services and scheduled a section 366.26 hearing for November 14, 2003.
Additional facts relevant to the specific contentions raised by Jacqueline E. will be incorporated into the legal discussion below.
CONTENTIONS
Writ Petition
Jacqueline E. contends the dependency court committed reversible error in finding that DCFS had provided her with reasonable reunification services. She further contends the court committed reversible error when it failed to ensure that the notice requirements under the Indian Child Welfare Act (ICWA) were followed. We disagree.
Appeal
Jacqueline E. asserts that the dependency court abused its discretion in failing to order Daniel placed in Los Angeles County in order to facilitate reunification. She also asserts that the courts orders must be reversed because DCFS and the court failed to comply with the notice requirements of ICWA. We again disagree.
DISCUSSION
Reunification Services
Jacqueline E. seeks writ relief from the dependency courts July 18, 2002 order terminating reunification services and scheduling a selection and implementation hearing. She maintains that her case was unique, in that she was restricted under a conservatorship for the first several months of the reunification period, the transfer of her case to Los Angeles resulted in a disruption of reunification services and DCFS refused to place the child close to her to facilitate reunification. Jacqueline E. maintains that under these circumstances, DCFS was required to do more than provide referrals and bus tokens. She asserts that "[t]here were no attempts documented to provide mother with referrals to placement facilities that house parents with mental health issues with their children and . . . no attempt to provide for meaningful visitation."
In its September 30, 2002 status review report, SBDCS noted that "[a]lthough there are independent living programs for families with mental illness that will accept children, parents dont want to participate in these programs." Jacqueline cannot now be heard to complain that she was not given referrals for programs in which she refused to participate.
Jacquelines assertion that DCFS failed to provide for meaningful visitation appears to stem from her belief that DCFS was required to place Daniel closer to her after she moved to Glendale. Jacqueline cites no authority, and we are aware of none, that would have permitted DCFS to remove Daniel from his long-term placement in San Bernardino County and place him anew in Los Angeles County absent a court order authorizing it to do so. The propriety of the trial courts order denying her request is discussed below.
Inasmuch as Daniel was under the age of three at the time of his initial removal, Jacqueline E. was entitled to only six months of reunification services. (§ 361.5, subd. (a)(2).) She received more than 17 months of services, however. The record discloses that DCFS provided her with those reunification services necessary to enable her to reunify with Daniel. Her inability to reunify is attributable solely to her failure to comply with those requirements necessary to regain custody of her son. Jacqueline E.s lack of compliance with the case plan is indicative of her inability to care for Daniel. In the absence of progress in resolving the problems that led to removal, the dependency court properly terminated family reunification services.
Order Denying Request to Re-place Daniel in Los Angeles County
Section 361.2, subdivision (f)(1), provides that "[i]f the child is taken from the physical custody of the childs parent or guardian and unless the child is placed with relatives, the child shall be placed in foster care in the county of residence of the childs parent or guardian in order to facilitate reunification of the family." Subdivision (f)(3) provides that "[n]othing in this section shall be interpreted as requiring multiple disruptions of the childs placement corresponding to frequent changes of residence by the parent or guardian. In determining whether the child should be moved, the social worker shall take into consideration the potential harmful effects of disrupting the placement of the child and the parents or guardians reason for the move."
Inasmuch as the juvenile court was not making a placement, subdivision (f)(2), (4) and (5), were inapplicable, as the trial court noted.
At the time Daniel was detained, Jacqueline E. was living in San Bernardino County. In accordance with section 361.2, subdivision (f)(1), SBDCS properly placed him in San Bernardino County. That the parents subsequently moved to Glendale did not transform Daniels placement to an out-of-county one. The parents decision to move out of San Bernardino County and into Los Angeles County did not entitle them automatically to have their son replaced in their new county of residence simply for their convenience.
Jacqueline E. moved to Glendale to be with her husband, who had moved to Glendale to be nearer to his job. Before doing so, Jacqueline E. should have considered the impact her move would have on her ability to visit with Daniel. To be sure, the distance would, and did, prove to be an impediment to visitation. This situation is of Jacquelines own making, however. While we are mindful that visitation is essential when attempting to regain custody of a child, the best interests of the child in disrupting his current placement must be considered paramount.
Daniel was detained when he was just one month old. In June 2002, when Daniel was six months old, SBDCS placed Daniel with his current foster parents, with whom he has remained. By the time of the March 13, 2003 hearing, Daniel had been with his foster family for nine months. DCFS reported that the "placement has been beneficial for Daniel as it has allowed him to be in the least restrictive environment possible and has given him the opportunity to be a part of [a] loving, caring family unit." Daniel "has developed a healthy, familial bond with his foster family." He was considered part of the family and had two older foster sisters, the biological daughters of his foster parents, as well as a foster grandmother who cared for him during the week.
Inasmuch as Daniel was quite young and had bonded with his foster family with whom he had been placed for more than half of his life and Jacqueline had not made great strides in resolving the conditions that led to removal of Daniel by the 12-month hearing and was inconsistent in her visits, the dependency court was well within its discretion in denying Jacqueline E.s request that Daniel be moved to a placement in Los Angeles County.
ICWA
ICWA "protects the interests of Indian children and promotes the stability and security of Indian tribes and families. Minimum federal standards, both substantive and procedural, effectuating these policies are set forth in the ICWA." (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) When an Indian child is involved in a dependency proceeding, "the party seeking termination of parental rights must, in relevant part, notify the Indian childs tribe of the pending proceedings and its right to intervene." (Ibid.) This notice "enables the tribe to investigate and determine whether the minor is an Indian child" and gives the tribe the opportunity to intervene. (Id . at p. 470.) Failure to provide the necessary notice requires invalidation of actions taken in violation of the ICWA. (Id. at p. 472; accord, Cal. Rules of Court, rule 1439; In re Samuel P. (2002) 99 Cal.App.4th 1259, 1265.)
The jurisdiction/disposition report noted that ICWA "does or may apply" and listed the tribe as "Sioux." The social worker who authored the report stated that "[a]s of the writing of this report, there is no new information available as to whether or not Daniel is ICWA eligible. However, in a previous report, dated January 26, 2000, on a full sibling named David V[.], it appeared that the child was NOT ICWA eligible. Father had named three tribes at that time, one being the Spirit Lake Sioux. It was this tribe that indicated that the child was not ICWA eligible." SBDCS requested the court to find that Daniel does not fall under ICWAs provisions.
At the 12-month review hearing held on July 18, 2003, counsel for the father advised the court that although the father was not listed on any tribal role, "he is a member of the Oglala Sioux, Apache Aztec Male Tribe, and that those people in that tribe should receive some type of notice under ICWA." The court, in turn, checked the earlier court files and determined that the ICWA issues had been dealt with thoroughly.
The court further stated "[t]hat the tribes mentioned by the father for possible membership were noticed. That there was a refusal to get involved and notice that the father was not entitled to registration with the Oglaga [sic] Sioux, and ICWA has been complied with and ICWA does not apply. [¶] Notices were found proper. They were registered certified mail. And in fact there was a[n Evidence Code section] 730 report by . . . the ICWA investigator. That report was filed, and there has been compliance with ICWA."
When the fathers guardian ad litem interjected "that was done in Davids case, Your Honor," the court replied, "That was done for David and Daniel. This was under the same case number, so its under the same case."
The dependency court was incorrect in stating that notice under the ICWA had been given with respect to David and Daniel. When the notices were sent to the tribes, Daniel had not yet been born. The question then becomes whether compliance with the notice requirements of the ICWA as to David relieved SBDCS and DCFS from complying with ICWA as to Daniel. We conclude that it did.
Although it has been held that "a previous determination that the minors siblings were not Indian children under the Act is not dispositive of the minors Indian status because `[a] determination of tribal membership is made on an individual basis" (In re Jonathan D. (2001) 92 Cal.App.4th 105, 111, quoting In re Desiree F., supra, 83 Cal.App.4th at p. 470), it is also well established that the law does not require futile acts (Civ. Code, § 3532; In re Catherine H. (2002) 102 Cal.App.4th 1284, 1293; Letitia V. v. Superior Court (2000) 81 Cal.App.4th 1009, 1016). In Davids case, the juvenile court determined that DCFS had complied with the notice requirements of ICWA and that David was not an Indian child with the meaning of ICWA. In light of this finding, which has long since become final, there was no basis for believing that Daniel was an Indian child within the meaning of ICWA, despite Joseph V.s claim of Indian heritage. Surely if David was not an Indian child for purposes of ICWA, Daniel, his full-blooded sibling, could not be either. Under these unique circumstances, the law did not require DCFS to go through the futile act of complying with the notice requirements of ICWA.
DISPOSITION
The petition for extraordinary writ is denied, and the March 13, 2003 order denying Jacqueline E.s request to change Daniels placement from San Bernardino County to Los Angeles County is affirmed.
We concur: VOGEL (MIRIAM A.), J. and MALLANO, J.