Opinion
B329638
04-08-2024
In re J.P., a Person Coming Under the Juvenile Court Law. v. JOSE P., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Jane B. Winer, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 22CCJP02453A Cathy J. Ostiller, Judge. Affirmed.
Jane B. Winer, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
LUI, P. J.
Jose P. (Father) appeals a juvenile court order made at the six-month review hearing for his son J.P. (Welf. & Inst. Code, § 366.21, subd. (e).) Father argues that (1) he did not receive reasonable services; (2) he should be able to live in the home of J.P.'s caregiver; and (3) the Indian Child Welfare Act (ICWA) inquiry was inadequate.
Undesignated statutory references are to the Welfare and Institutions Code.
Father has not shown reversible error. First, he rebuffed the social worker's efforts to reach him for five months and refused to engage in services. Second, Father cannot live with J.P. until he obeys court orders. Third, Father can obtain relief from the juvenile court by asking it to lead a further ICWA inquiry in this continuing proceeding. We affirm.
FACTS AND PROCEDURAL HISTORY
J.P. was born in 2018 to Father and A.V. (Mother). In June 2022, Los Angeles County Department of Children and Family Services (DCFS) took J.P. into protective custody when Mother was arrested while driving a stolen vehicle. J.P., age three, was riding unsecured in the car at the time of her arrest.
DCFS filed a petition alleging that Mother endangered J.P. by transporting him unrestrained in a stolen vehicle, then giving police false information about her identity. Her failure to protect J.P. placed him at risk of serious physical harm. There were no allegations against Father.
Because Mother and Father were incarcerated and could not protect J.P., the court made emergency detention findings. J.P. was placed with his paternal grandmother (PGM). PGM told DCFS that Mother and Father were gang members. Mother agreed that she was a gang member on probation for grand theft.
At the detention hearing in July 2022, Mother denied the allegations. Father, a presumed parent, submitted to the court's jurisdiction. He denied Indian ancestry. The court found a prima facie case and removed J.P. from both parents. They were given monitored visits.
PGM was questioned in court and denied Indian ancestry. When asked by a social worker (CSW), Mother denied Indian heritage. She signed a Parental Notification of Indian Status denying tribal membership or Indian ancestry. The court found no reason to know J.P. is an Indian child and ordered his parents to advise DCFS, their attorneys, and the court of any new information relating to Indian status.
The record showed that Mother's criminal history began at age 15. Father had a similarly extensive history of arrests since age 15 and was incarcerated for carrying a loaded gun in public, threatening crime with intent to terrorize, disobeying court orders, violating a gang injunction, car theft, trespassing, and drug crimes.
In the jurisdiction report, Mother conceded that she drove J.P. in a stolen car, unrestrained, because she lacked a car seat. Father and Mother called J.P. regularly. J.P. was happy to speak to them and was upset when the jail operator stated that the calls must end. In August 2022, Mother was sentenced to 120 days in jail, and Father expected to be released from incarceration in several months.
The court adjudicated the petition on September 2, 2022. Father attended the hearing, in custody. The court sustained the allegation against Mother. J.P. was declared a dependent and removed from parental custody. The court ordered reunification services and monitored visits. After DCFS noted that Father was in custody for much of J.P.'s life and engaged in violent crimes, the court ordered individual counseling to "address incarceration and [its] impact on the child, parenting and substance abuse."
When Father was released from custody in October 2022, he met CSW to discuss resources and case plan requirements. For the next five months, CSW sought Father's phone number and address. PGM denied knowing it, though he called regularly to speak to J.P. CSW asked Mother for Father's number; Mother did not provide it but said she was "trying to motivate father to get in contact" with CSW. She said Father needed to "sober up" but denied that he was using drugs. When Father texted CSW on February 1, 2023, she requested an update on his counseling and visits with J.P. Father did not reply to CSW.
In a March 2023 status review report, DCFS wrote that J.P. remained with PGM, where his uncles and aunt also live. He was happy and comfortable there. He had monitored visits and phone calls with Mother and Father.
J.P. was playful, cheerful, and bonded with PGM but had anxiety and sleep disturbances. He was reported to have tantrums, be upset after parental phone calls, express anger toward them, and bit or hit PGM. While being transported for a supervised visit, J.P. pointed at police cars, said he was scared when Mother was arrested, and asked if she would be arrested again. At a visit in January 2023, J.P. suddenly became upset and refused to talk or interact with Mother. He appeared to be randomly triggered and could not verbalize the cause of his anger. He struggled with separation anxiety.
CSW documented that she gave Mother and Father referrals to community resources, monitored their compliance with the case plan, and provided assistance. Mother participated in therapy, disclaimed a relationship with Father, and said she wanted to focus on improving her life and reunifying with J.P. CSW felt that Father posed a risk to Mother's rehabilitation while they coparented J.P.
CSW informed Father of case requirements in October 2022; advised him to sign up for medical benefits to receive therapy; offered transportation assistance; and showed him how to contact agencies. CSW verified that he received the links she sent. She was unable to contact Father after their initial meeting. PGM said Father was homeless; she supervised his phone calls several times a week and he saw J.P. every week. CSW opined that he "demonstrated no change in his behavior or understanding of case issues."
On March 3, 2023, the court ordered Father to make himself available to CSW and submit to a drug test. It ordered DCFS to assess Father's request to move into PGM's home and have unmonitored and overnight visits.
CSW met with Father, who felt no responsibility for the dependency proceeding. CSW explained that his incarceration meant he could not protect or care for J.P.; Father responded that J.P. suffered due to the DCFS case. CSW encouraged Father to be positive with J.P. and not to discuss case issues or make promises. Father agreed to participate in a parenting program and "continue participating in monitored family time, until further progress is made with understanding case issues, and how his incarceration has affected [J.P.]"
Father denied being on probation or drug use. He lacked stable employment, did not apply for medical insurance, or enroll in services. CSW gave him a bus pass and resources for therapy and parenting programs. Father had an intake appointment with a service provider on March 14, 2023, but was a no-show.
DCFS was concerned about Father's proposed move into PGM's home. He did not enroll in court-ordered services, utilize resources he was offered, or communicate with CSW for five months. He believed that the DCFS case was the only factor negatively impacting his relationship with J.P., without acknowledging that his incarceration affected their bond. Counseling would give him insight into the impact of his recidivism on J.P.'s well-being.
The six-month review hearing was held on March 21, 2023. Father argued that he should be able to live with PGM and J.P., as a nonoffending parent who consistently visited his child. He conceded that he did not obey the court's orders, but asserted that DCFS failed to show that it "really tried to actively assist him in getting into the individual counseling." There was no showing that he abuses drugs or poses a risk to J.P. DCFS noted the court's concerns about Father's history of gang involvement, incarceration, and drug abuse, which had yet to be addressed in counseling.
The court ruled that Father must participate in services before moving in with J.P. and PGM. The parents were in partial compliance with the case plan; returning J.P. to their custody would create a substantial risk of detriment. The court found that DCFS made "reasonable efforts to return the child to a safe home and to complete whatever steps are necessary to finalize the permanent plan." It continued reunification services, giving DCFS discretion to allow Father to move into PGM's home on condition that he comply with his case plan and have a negative drug test.
DISCUSSION
1. Reasonable Reunification Services
If a child is not returned to parental custody at the six-month hearing, the court must "determine by clear and convincing evidence whether reasonable services that were designed to aid the parent . . . have been provided or offered to the parent." (§ 366.21, subd. (e)(8).) We review the court's finding under the substantial evidence standard, drawing all legitimate inferences in support of the court's determination. (Serena M. v. Superior Court (2020) 52 Cal.App.5th 659, 674.)
"To support a finding that reasonable services were offered or provided to the parent, 'the record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult." (In re A.G. (2017) 12 Cal.App.5th 994, 1001.)" '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.'" (Ibid.)
The court ordered counseling for Father to address "incarceration and its impact on the child, parenting and substance abuse." CSW met with Father when he was released from custody in October 2022, discussed the need for counseling, advised Father to sign up for benefits, offered transportation assistance, and showed him how to contact agencies. Father received the links CSW sent to him. CSW later tried to reach Father, but he refused to contact her until the court ordered it. Father did not begin counseling and denied responsibility for the dependency proceeding, though his incarceration left him unable to care for J.P. at detention.
Father's brief lists the referrals and assistance he received from CSW.
"[I]t is not the court's role to force a parent to participate in services. 'It is . . . well established that "[r]eunification services are voluntary, and cannot be forced on an unwilling or indifferent parent." '" (In re Nolan W. (2009) 45 Cal.4th 1217, 1233.) Indeed, "there is no 'requirement that a social worker take the parent by the hand and escort him or her to and through classes or counseling sessions.'" (Ibid.) "While reunification is the preferred outcome when it serves the interests of both parent and child, no interest is well served by compelling inadequate parents to shoulder responsibilities they are unwilling to accept or unable to discharge." (Id. at p. 1234.)
Under the circumstances, DCFS made reasonable efforts for Father, who had notice of the court order, received referrals to services, then avoided efforts to assist him. He resisted counseling because he did not feel responsible that J.P. had to be taken into DCFS custody. After being ordered to meet with CSW in 2023, Father missed his scheduled service intake appointment. DCFS could not force Father to engage in services.
Father complains that DCFS did not help him secure housing or employment; he was promised bus passes for transport, but no "assistance was actually provided during the review period." Plainly, CSW could not give Father hotel vouchers or bus passes when he refused to call her or use referrals to obtain services he now claims he lacked. The court could reasonably infer that Father had a phone to contact CSW and service providers because he (1) called J.P. Regularly, (2) answered a call from J.P. during a monitored visit, and (3) texted CSW from "my phone" on February 1, 2023. He received a bus pass once he contacted CSW in March 2023. Father's failure to engage in services lies squarely on his own shoulders.
2. Refusal to Let Father Live with PGM
The court refused to return J.P. to Father because it would create a substantial detriment to his safety, protection or physical or emotional well-being. (§ 366.21, subd. (e)(1).) Father's failure to cooperate with DCFS, avail himself of referrals, or participate in counseling to address his history of crime and incarceration support the court's detriment finding. Father made no progress at all. (Ibid.) He cannot circumvent the detriment finding by moving in with PGM and J.P. but must first demonstrate a commitment to change by going to counseling.
3. ICWA
ICWA establishes standards for removing an Indian child from parental custody. An "Indian child" is "either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C.S. § 1903(4); Welf. & Inst. Code, § 224.1, subd. (a).) "[I]f the child is not a tribe member, and the mother and the biological father are not tribe members, the child simply is not an Indian child." (In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520.) We review ICWA findings for substantial evidence. (In re A.M. (2020) 47 Cal.App.5th 303, 314.)
Father did not claim membership in a tribe or assert that J.P. is eligible for membership. (25 U.S.C.S. § 1903(4).) When Mother, Father, and PGM denied Indian heritage, the court found no reason to know that J.P. is an Indian child. Father now argues that no one inquired of PGM, aunts, or uncles. He is mistaken as to PGM: She was questioned in court at the outset of the case, with a Spanish-language interpreter, and denied Indian ancestry.
Further inquiry may yet be done. There is a continuing duty to ask the parents, guardian, extended family members and others if the child is, or may be, Indian. (§ 224.2, subds. (a), (b).) Action is taken if the court receives information giving reason to believe that the child is Indian. (Id., subd. (i)(2).)
Father has appealed the six-month review hearing order. At this early stage, "there will necessarily be further dependency proceedings in the juvenile court (at which continuing ICWA duties apply)," and "we are not in a position to micromanage" ICWA inquiries, which must be led by the juvenile court. (In re Baby Girl M. (2022) 83 Cal.App.5th 635, 638, 639; In re S.H. (2022) 82 Cal.App.5th 166, 179 ["So long as proceedings are ongoing and all parties recognize the continuing duty of ICWA inquiry, both the Agency and the juvenile court have an adequate opportunity to fulfill those statutory duties"].) Father can obtain relief from the juvenile court by identifying relatives having information relevant to the ICWA inquiry. (S.H. at p. 179 [all participants, including parents and counsel, have a good faith duty to determine if the child is Indian].) So far, Father has remained silent instead of providing necessary information.
DISPOSITION
The order is affirmed.
We concur: CHAVEZ, J., HOFFSTADT, J.