Opinion
F075660
02-26-2018
In re C.P., et al., Persons Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. A.G., Defendant and Appellant.
Kristin B. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 517803, 517804, 517805, 517806, 517807)
OPINION
APPEAL from orders of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge. Kristin B. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
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A.G. (mother) appeals from the juvenile court's orders declaring her five daughters dependents of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (g), removing them from her custody pursuant to section 361, subdivision (c), and granting her family reunification services. On appeal, mother contends the jurisdictional findings and removal order are not supported by substantial evidence. She also contends the juvenile court erred in finding that active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, as required by the Indian Child Welfare Act (ICWA), 25 United States Code section 1901 et seq. We reject mother's contentions and affirm the juvenile court's findings and orders.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Mother lived with her five daughters in Modesto. At the time of detention, her oldest daughter, C.P., was 13 years old., T.P. was 11 years old, N.P. was eight years old, A.P. was three years old, and K.P. was 23 months old. David P. (father), the children's presumed father, had been incarcerated since September 2015.
David is not a party to this appeal.
The family came to the attention of the Stanislaus County Community Services Agency (Agency) when the Agency received a referral of general neglect on November 4, 2016. It was reported that T., who is autistic, had been attending school lately very dirty, both in her body and clothing. The school washed her clothes for her and provided her with clothing. T. had complained of dental pain and had not seen a dentist. On the date of the referral, T. was reported to have a "bad gash" on her foot that was caked with dirt. Mother said T. stepped on a piece of metal at a park, but T. said it was in the house. Mother did not want to clean the wound, as she had a weak stomach and did not want to cause T. more pain, and she had not taken T. to a doctor. T. would put foreign objects in her mouth; she once swallowed a whole bottle of pills and had to be taken to the emergency room. T. had taken a bullet to school and on another day, she had a pill in her pocket. Another reporting party saw T.'s little sister outside with no clothes on and her diaper hanging down to her ankles. The family's water pipe reportedly had been broken for a week.
The family had 13 prior child protective services referrals, one of which was substantiated for general neglect. That referral stemmed from a probation search of the family's home in March 2015. Methamphetamine, marijuana, and a pill bottle that contained heroin and razor blades were found in the home within the children's reach. Father was arrested and charged with, among other things, willful cruelty to a child (Pen. Code, § 273a, subd. (a)). Father was convicted and sentenced to six years in prison. Mother told social workers that father had been staying with them for a couple weeks, she was not aware that there were drugs in the home, and she did not do drugs or keep them in her home. The referral was closed, as mother was not interested in services and the situation had stabilized.
On November 10, 2016, the social worker spoke with staff at the Modesto school district who informed her that C. and N. were "SARB'ed" (School Attendance Review Board) during the last school year for non-attendance. C. was on a one-month short-term home study until December 1, 2016, as mother reported having a hard time getting her to attend school and peers were bothering her.
The social worker attempted to see T. at her school, but T. had not been at school all week and had 16 absences since school started in August. The social worker interviewed N. at her school. N. was dressed appropriately for the weather, but her clothes were ill-fitting, she was not well groomed, and she had a strong odor that suggested she had not showered. N. said she felt safe at home, and she had enough food to eat and clean clothes. N. denied that mother left the children alone at home. N. said that the children shower daily and the water pipe was not broken.
N. told the social worker that T. cut her foot on a broom 12 days ago when she was playing barefoot. Mother did not take her to the doctor; instead, she cleaned the foot and put cream on the cut. When T. cut her foot the year before on a "big piece of glass," mother took T. to the doctor, who gave T. stitches. T. would put pennies in her mouth, which N. and C. would remove. Once T. took her grandmother's pills and was taken to the emergency room for a seizure. T. took two bullets to school that she found on the floor at home. N. said there were no guns in the home, but there were bullets on the floor throughout the home.
The social worker made an unannounced visit of the family's home on November 14, 2016. At first mother told the social worker she was getting ready to leave and had things to do, but she eventually agreed to speak with the social worker outside the home. Mother refused to allow the social worker inside, as the house was not completely clean as a water pipe broke the week before and she was behind on the laundry. All of the children were there. Mother attempted to keep them inside the house, but the younger children continued to go in and out.
The social worker noted the outside of the home was in a disorderly state. A drain pipe was falling off the roof; there were stuffed animals on the roof; and paint was chipping. Garbage was piled near the entrance of the gate with a plastic bag hanging on a post filled with plastic bottles, and there was litter throughout the front yard. The children were playing on a broken stroller that was in the front yard. A broken down vehicle with front-end damage was parked in front of the home; the three-, eight- and 11-year old children were climbing on the vehicle's hood and roof. A torn couch with the cushions pulled apart and a vacuum cleaner were outside the fence.
Mother told the social worker that T. cut her foot about a week before when she stepped on a torn piece of recycled can at the park. T.'s foot bled slightly and the blood dried on her foot. Mother took T. to the emergency room, but left due to the long wait and because T. was "acting up." Mother said she bought medicine and butterfly style bandages, both of which she applied to the foot. Mother said the wound was "closed and healed mostly." Mother was going to take T. to urgent care that evening. About three months before, T. cut her foot on a piece of glass at the park while at a birthday party. Mother took T. to the doctor and she received stitches. Mother said she took T. to Western Dental a couple months before, where T. was x-rayed and referred to Salida Dental. Mother, however, had not scheduled an appointment as she needed transportation.
Mother said that T. was previously diagnosed with mental retardation, but she was reassessed and diagnosed with autism. T. had received speech services through Sierra Vista. T. was always putting objects in her mouth. One time, T. was taken to the emergency room after swallowing some medication that she found in her maternal grandmother's purse. Another time T. was transported to the hospital after swallowing maternal grandmother's "anti-psychotic" medications that were bubble packed.
Mother rented the home and the family had lived there for about a year. Mother recently lost her job due to lack of childcare. Mother denied any previous or current drug abuse. At first she agreed to drug test, but when the social worker asked her to test that day, mother refused stating she would drug test another day.
The social worker interviewed C., who said she felt safe at home, received enough food, and had clean clothes. C. denied that mother used marijuana or alcohol. C. said the broken water pipe had been fixed. C. said she and her siblings showered daily and the house was clean. C. denied there were guns or bullets in the house.
T. would not speak to the social worker and ran off throughout the yard. T. came outside in a pair of legging style pants but no shirt or shoes. Mother took her inside the house and put a shirt on her. T. did not appear to listen to mother and ran away from her; T. climbed on the vehicle and went outside the fenced yard. The social worker spoke briefly with N., who said she was doing well. Her appearance was the same as when the social worker visited her at school.
The two youngest girls were outside the house wearing only diapers that appeared to be full, as they were sagging. They both had runny noses and dirt on their faces and bodies. Three-year-old A. ran throughout the yard and climbed on the vehicle.
The social worker discussed the safety concerns with mother, and told her about the family resource center and family maintenance services. Mother admitted she needed help, but she did not like to ask for it and she was not sure if she was open to services. Mother said she had dental paperwork on T. inside the house, but she did not want to go get it and said she would provide it the next time the social worker met with her.
The social worker and her supervisor returned to the family's home on November 21, 2016. Mother was not at home; C. and N. said that mother walked to the store to buy diapers and would be right back. When mother returned shortly thereafter, the supervisor discussed the Agency's concerns with mother and offered her family maintenance services. Mother said that her "finances were down" and she had two job offers, but she did not have childcare for T. Father's family would not help her and maternal grandmother had schizophrenia. Mother said she took T. to Western Dental and was referred to Salida Dental, but she did not have transportation to Salida Dental. Mother said she was looking for a new house; she knew she needed help with housing and childcare. Mother refused to drug test, stating she did not use drugs and "doesn't feel like she needs to prove it." Mother refused to allow them into the home, as the house was messy. Mother agreed they could return in a couple hours, so she would have time to clean up.
When the social worker and her supervisor returned, mother allowed them into the home but said she really had not done any cleaning. The home was noted to be extremely unkempt and deplorable. Mother stated the refrigerator was in the backyard, but she would not allow them to see it. Mother said she would work on cleaning up the house. Mother agreed to have the children stay with a family member or friend within the next 24 hours while she cleaned up the house, except for T., as mother said she would not be able to find anyone to watch her due to her negative behaviors. The social worker and supervisor said they would check with mother the next day to see where the children were staying and return in two days to check on mother's progress. Mother thought she could have the house cleaned in two days. It was explained to mother that if the house was not significantly cleaner, the Agency might have to make a higher level recommendation for the children. Mother agreed to drug test in two days and to receive family maintenance services.
The social worker and her supervisor returned to mother's home the following day after mother told the social worker over the telephone that she could not find someone to watch the children, but she had made "significant progress" on the house. The social worker noted the house was "slightly cleaned up" from the prior day. The social worker and supervisor advised mother to continue looking for a place for the children to stay and continue cleaning the house, and they would return the following day to reassess the situation.
When they came back the next day, mother said that C., K., and A. were at maternal great-grandmother's house, and she was going to take N. there later. Mother had made significant progress in cleaning the house, however there was still a strong odor in the house, the bathtub was extremely dirty, and mother refused to allow them into the backyard to see the refrigerator. Mother agreed to drug test and admitted she smoked marijuana, for which she tested positive. Mother said she would allow the social worker to see the refrigerator the following week. Mother again agreed to voluntary family maintenance services after being told she would have random drug tests and services would be put in place to help her. Mother was advised that when the social worker returned, she would need to see the food and refrigerator, check on the house (including the odor and bathtub), and the children would need to be in school in clean clothing. Mother agreed. Mother signed a safety plan that included the "danger facts" of marijuana use, and maintaining a safe and healthy living environment for the children, and used maternal great-grandmother and aunt as support. Mother agreed to refrain from smoking marijuana and to participate in family maintenance services.
The social worker and supervisor saw C., K., and A., at the maternal great-grandmother's home. The children appeared well-groomed. Maternal great-grandmother and aunt reported they were mother's support, and they would occasionally check on her and the children.
The social worker checked with N.'s and T.'s school on November 28, 2016, and was told they were both at school, they appeared clean, and they were wearing clean clothes. The social worker also made an unannounced visit to the family's home. Mother was there with all the children, except T. who was not home from school. Mother admitted she had not cleaned the refrigerator and allowed the social worker into the backyard to see it. The refrigerator contained a minimal amount of food and was extremely dirty with old spoiled food spilled throughout. There was a lot of garbage in the backyard and an old large pool was leaning against the fence. Inside the home, mother had made progress vacuuming the carpet, cleaning the bathtub, and steam-cleaning the carpets in an effort to eliminate the odor. Mother had rented a large dumpster that was in the front yard which was full of items. Mother had put a Christmas tree was up in the living room. The social worker told mother she would contact her in the next few days, as she needed to sign a medical release form and be drug tested.
Two social workers made another unannounced home visit on December 2, 2016. When they arrived, the social workers noted that mother, K., and A., were entering the front yard through the backyard gate. Mother said she "was getting ready to leave to go handle some business[,]" and said the social workers were "bullying her, showing up for no reason, and wanting her to do all this stuff and she cleaned up her house and drug tested previously." Mother refused to drug test and said she would not drug test anymore. Mother said she did not receive help from the schools or the maternal great-grandmother and aunt. Mother said she left a voicemail for the social worker a couple days before with a different contact number, as her current telephone number was not working, but the social worker said she had not received any voicemail messages from mother. Mother was not able to produce the new contact number.
Mother told the social workers she was planning on leaving Stanislaus County sometime in January, but refused to tell them where she might go. Family maintenance services were discussed related to how they would be implemented if mother moved. Mother knew she needed help and she was not saying that she would not participate in voluntary services. Mother signed a medical release form so the social workers could confirm T.'s dental appointment with Western Dental. The social workers noted that mother's eyes appeared constricted, and A. and K. appeared unkempt.
The social worker spoke with Western Dental on December 5, 2016. T. was the only child for whom they had records. T. was seen in January 2016 for a visual exam and was referred that month to Salida Dental for T. to have 14 cavities filled.
On December 6, 2016, social workers obtained a protective custody warrant to detain the children. The three school-aged children, T., N. and C., were picked up at their schools and transported to mother's home to get the two youngest children. Shortly after their arrival, mother drove up in a vehicle alone. Mother approached the county vehicle and yelled that the social workers were "kidnapping" the children. The social worker asked mother where A. and K. were, as they were not with mother when she arrived. Mother said she "needed to leave" to pick them up and refused to disclose their location. Mother walked toward the home. The social worker did not see where mother went, as she was helping another social worker contain the older children, who were trying to get out of the vehicle. The social worker heard mother on the telephone and saw her come out of the backyard through the side gate holding A. and K. The social worker did not know if the two were home alone, either inside the home or in the backyard. A. and K. were taken into protective custody.
Mother continued to yell and be hostile. She related that father was a gang member, asserted it was illegal to drug test for marijuana, and the social workers were going to place the children with a child molester. Mother yelled that the social worker had no business contacting father to inform him of the investigation, as she had a no contact order, but mother also admitted she was accepting father's telephone calls and allowing the children to speak to him. Mother made "odd" comments that the social worker was discussing other cases with her and the supervisor had referenced "sex trafficking" around her home. When the deputies who were with the social workers put gloves on their hands, mother told them, in a hostile voice, "they can take off their gloves because she is not into being anal probed." During the drive to foster care, C. stated that she did not feel it was right for her and her siblings to be living in the home in the condition it was in when the investigation began.
The Agency filed a petition under section 300, subdivision (b), alleging the children were at substantial risk of serious physical harm or illness as a result of mother's failure to adequately supervise or protect the children, failure to provide them with adequate food, clothing, shelter, or medical treatment, and inability to provide regular care due to substance abuse. Specifically, the petition alleged that mother neglected the children's safety and well-being as evidenced by mother's failure to obtain medical and dental care for T. and T.'s excessive school absences; mother had unresolved substance abuse issues that included marijuana use; father used illegal drugs, had a criminal history that included domestic violence, robbery, attempted murder, and willful cruelty to a child, and was incarcerated with a release date in 2018; the condition of the home posed a risk or danger to the children; and the family had a substantiated child abuse investigation for general neglect in 2015. The petition also alleged the children came within the provision of section 300, subdivision (g), based on father's inability to provide care and support due to his incarceration.
At the December 9, 2016 detention hearing, mother notified the juvenile court that she was a registered member of the Choctaw Nation of Oklahoma and the children were not yet registered. The juvenile court found that ICWA might apply to the proceedings, ordered the children detained, and set a jurisdiction hearing for January 3, 2017.
In its report prepared for the jurisdiction hearing, the Agency recommended that the children be removed from parental custody and reunification services be provided to mother but not father based on the length of his prison sentence. Mother reported that she began using marijuana when she was 19 years old, but had stopped using for about three years. She began using marijuana again a year before to manage back pain that resulted from a car accident, as pain medication made her drowsy. Mother said that things went downhill after father went to prison. She lost her job because she did not have a babysitter. T. started having seizures and had to be taken to Oakland Children's Hospital. Mother's car engine blew after several trips there. Mother needed help but found it very hard to ask and the situation became mentally draining. Mother wanted to find a better way to deal with her back injury besides marijuana.
The children first were separated into two foster homes, but T.'s foster parents could not manage her behavior and asked that she be moved. The children were then placed together in another foster home, but they too could not manage T. T. and C. were placed with a maternal cousin, but the cousin also could not manage T., who did not understand the word "no" and would scream and cry. The cousin demanded that the social worker pick up T. that day.
The social worker was unable to find a placement for T., so the cousin dropped T. off at the Agency and the Agency rented a hotel room from December 10 to 16, 2016, where T. stayed with various social workers while a placement was sought. During the stay in the hotel, T. was taken to the emergency room after she ingested a metallic foreign object. T.'s behaviors included taking off all her clothes, trying to drink hand sanitizer, falling while jumping between beds and sustaining a gash to her nose, attempting to spread her feces around the room and eat it, and repeatedly blowing her nose into her hands and eating her own snot. T. had marks on her legs and a sore on her left foot that could have been foot fungus that had eaten away at her skin. The social workers who were watching T. sought guidance and techniques from T.'s teachers. For example, when T. began throwing things around the hotel room, she was told that if she broke things, mother would have to pay for them. T. understood and stopped her behavior.
On December 16, 2016, T. was placed in a group home. By the end of December, C. had been moved to the same foster home as the other three siblings.
T. was a regional center client. Her case was deactivated in October 2010 due to lack of participation in services and no contact from her parents. T.'s case was reactivated in December 2016, after Agency involvement, and she was being assessed for services. T., a sixth grader, had an Individualized Educational Plan (IEP) and was in a special education class. C., N., and K. appeared to be developmentally on target. N., who was in second grade, was being assessed for special education. A. was experiencing some developmental delays and was being referred to the regional center for an assessment.
On December 9, 2016, mother was given referrals for individual counseling, parenting classes, and substance abuse assessment and treatment. Mother completed her substance abuse assessment on December 20 and a drug test - she tested positive for marijuana. According to the assessor, mother did not meet "medical necessity," but the assessor recommended she be referred for a hair follicle test. Mother had an intake appointment scheduled with Sierra Vista on January 10, 2017.
At the January 3, 2017 jurisdiction hearing, the matter was continued and set for a combined jurisdiction and disposition hearing on February 6. On January 25, the Choctaw Nation of Oklahoma filed a notice of intervention through its representative, Amber Scott, in which it asked the juvenile court to accept its intervention in the case. Scott informed the juvenile court that the children were eligible for enrollment in the tribe and mother was an enrolled member, and the tribe would not assume jurisdiction, but reserved its right to do so.
Subsequent references to dates are to dates in 2017.
In an addendum report, the social worker stated that he met with mother on January 25, after she visited the children at the Agency, and reviewed the case plan with her. This included the recommendations that resulted from her substance abuse assessment, part of which was to complete a 12-step program. Mother was informed that she might still have to complete random drug tests to comply with her case plan. The social worker received results of mother's hair follicle test - she tested positive for marijuana, but negative for all other controlled substances.
The social worker spoke with mother on February 2; mother told him she was looking for housing, but no landlord would rent to her because of a past eviction. Mother said she would stay at a family shelter temporarily if it meant return of the children. Mother was attending 12-step classes, but she was applying for jobs which might interfere with them. The social worker contacted Sierra Vista and was told mother did not appear for her February 1 intake appointment, but she rescheduled it for the next possible opening on February 27.
At the February 6 hearing, the matter was set for a contested hearing on March 7. Scott appeared telephonically on behalf of the Choctaw Nation. The juvenile court noted that ICWA applied and there would need to be an ICWA expert on the case, which Scott said she would provide.
On February 14, Scott's affidavit was filed, in which she declared, among other things, that she was employed by the Choctaw Nation as an ICWA social worker, whose duties included intervening in cases that involve Choctaw children placed in third party custody, monitoring those cases for ICWA compliance, participating in court hearings, and making referrals for families; she had knowledge of social and cultural differences in "the Native communities and practices in the Choctaw tribe"; she had experience in delivering services to Indian children and families, and knowledge of prevailing social and cultural standards of the Indian community; and she was the Choctaw Nation's ICWA social worker assigned to the case. She further declared that the children were Native American children with a relationship to the Choctaw Nation, and mother was an enrolled member. Scott opined as follows: (1) based on her knowledge of Indian culture and the current information in the case, that "active efforts have been made to provide remedial services and rehabilitation programs designed to prevent the break-up of the Indian family and those efforts have been unsuccessful"; and (2) there was clear and convincing evidence that continued parental custody was likely to cause the children serious emotional and physical damage. As a result, the Choctaw Nation agreed the children should remain in the state's custody.
T. was doing very well in her placement. T. had a dental exam on February 10, but was unable to have x-rays taken without sedation. A referral had been made to a surgery center.
The contested hearing was continued from March 7 to March 20, as Scott was not provided with a copy of an addendum report. The juvenile court attached to the hearing's minute order a copy of an email exchange between the social worker and Scott. Scott informed the social worker that the tribe did not practice tribal customary adoption and it was satisfied with the children's current non-ICWA placements, as there were no Choctaw foster families in California.
At the March 20 hearing, the juvenile court noted that the Choctaw Nation had intervened in the case and there was a report from the ICWA expert, Scott. The juvenile court telephoned Scott at the outset of the hearing, but Scott did not answer. The parties agreed to proceed based on Scott's declaration, without her actually testifying, and to proceed with the hearing even if she was not available. The juvenile court noted that ICWA clearly applied to the proceedings. County counsel asked the court to find good cause to deviate from the ICWA placement preference, since the tribe agreed with the current non-ICWA placement. County counsel also made an offer of proof that the placement specialist would testify regarding problems that had arisen regarding setting up visits. In addition, the Agency was willing to strike certain section 300, subdivision (b), allegations in the petition, and amend the visitation portion of the case plan.
During a break in the proceedings, the juvenile court was able to reach Scott, who was told that the parties had stipulated that the court could consider her affidavit without the need for live testimony.
Mother's attorney submitted a written offer of proof, which the court accepted. It stated that mother smoked marijuana to manage her back pain rather than take prescribed narcotics. Her washing machine was broken and she was trying to hand wash clothes. T. liked to take her shoes off and stepped on a piece of recycled can in the park. Mother took her to the emergency room, but left because T. became "very agitated." Mother applied a home remedy that a doctor recommended when T. previously cut her foot, a liquid bandage, and mother thought it was healing, but T. pulled the liquid bandage off and reinjured her foot. T. had an appointment for dental surgery, but the person who agreed to transport them cancelled at the last minute and mother was unable to arrange alternate transportation on short notice.
Mother said she was trying her best to clean the home, but she needed more time. Mother felt pressured by the social worker and her supervisor. Mother believed the maternal great-grandmother would be contacted as part of the safety plan. Mother denied having any drug-related charges; while she was arrested as a juvenile, she was never charged. Mother also denied telling the social worker she would leave Stanislaus County with the children. Mother was working full-time in Rancho Cordova and looking for permanent housing that would accommodate the family.
After the parties submitted without argument, the juvenile court found the petition true as amended and the children were persons described by section 300, subdivisions (b) and (g). The court adjudged the children dependents, found that active efforts had been made to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family, but the efforts were unsuccessful, as shown by the offer and provision of voluntary family maintenance services that were not successful. The court removed the children from parental custody, finding by clear and convincing evidence there was a substantial risk of detriment to the children if they were returned to parental care, and continued parental custody would likely cause the Indian children serious emotional and physical damage. The court found the Agency had communicated with the Choctaw Nation and while the children's placements did not meet the ICWA preferred placement preferences, the Choctaw Nation agreed good cause existed to deviate from the ICWA preferred placements.
The court denied reunification services to father and granted them to mother. Mother's services included completion of a parenting program, random drug testing, and completion of a substance abuse assessment and following any recommended treatment. Mother was allowed to visit T. in her group home weekly and the other girls a minimum of one hour per week. The visits were to be supervised, which the social worker had discretion to move to unsupervised visits.
DISCUSSION
I. Jurisdiction
Mother contends there is insufficient evidence to uphold the jurisdictional findings under section 300, subdivision (b) as to her because there is no evidence that the children had suffered, or were at substantial risk of suffering, serious harm or illness while in her care. We disagree.
When the sufficiency of the evidence to support a finding or order is challenged on appeal, we review the record to determine if substantial evidence supports the conclusion of the trier of fact. In doing so, we review the record in the light most favorable to the court's determinations and draw all reasonable inferences in support of the court's findings and orders. (In re I.J. (2013) 56 Cal.4th 766, 773.)
Section 300, subdivision (b)(1) applies when the "child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of the parent . . . to adequately supervise or protect the child, or . . . by the willful or negligent failure of the parent . . . to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent . . . to provide regular care for the child due to the parent's . . . substance abuse." A finding under section 300, subdivision (b)(1) requires three elements: "(1) one or more of the statutorily-specified omissions in providing care for the child ...; (2) causation; and (3) 'serious physical harm or illness' to the minor, or a 'substantial risk' of such harm or illness." (In re Joaquin C. (2017) 15 Cal.App.5th 537, 561; In re R.T. (2017) 3 Cal.5th 622, 626-628.)
The " 'basic question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.' " (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.) Evidence of past events may be probative in assessing the current conditions "if circumstances existing at the time of the hearing make it likely the children will suffer the same type of 'serious physical harm or illness' in the future." (In re Janet T. (2001) 93 Cal.App.4th 377, 388.)
Where a petition is sustained based on several allegations, each allegation need not independently support jurisdiction; the court can take jurisdiction on evidence of a "pattern of behavior" resulting in a substantial risk of harm to the children. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1650.) Here, considering the allegations concerning the deplorable conditions of the home, mother's neglect of T.'s medical and dental needs, mother's failure to supervise the children, and the excessive school absences of the school-aged children, we find substantial record evidence to support the juvenile court's conclusion. (See In re Cheryl E. (1984) 161 Cal.App.3d 587, 600 [we consider all the allegations in the petition in the context and as a whole in reviewing the trial court's findings].) There was substantial evidence of a pattern of behavior that put the children at risk of physical harm.
The home's unsafe and unsanitary condition, both inside and out, placed the younger children and T. at risk of physical harm, as they could not protect themselves from the dangers in and around the home. By mother's own statements, T. was known to take off her shoes, which resulted in T. having two serious lacerations to her feet, one of which occurred at home. Mother compounded the problem by not following through with proper medical care. Moreover, she failed to seek treatment for T.'s 14 cavities for 11 months, although T. had complained of dental pain. The two younger children were seen running around the yard without shoes and climbing on the broken vehicle. Mother appeared either incapable or unwilling to exercise supervisory control over the children, who ran rampant while mother spoke with the social workers. In addition, the school-aged children were not attending school regularly, and mother failed to provide the children with adequate clothing and ensure they had good hygiene. Although mother was offered voluntary family maintenance and she attempted to clean up the home, ultimately she refused to participate in services to rectify the problems and said she was leaving the county.
While mother asserts there is no evidence the cut became infected or the failure to seek medical or dental treatment resulted in any lasting harm to T., the court is not required to wait until a significant risk becomes a serious injury before assuming jurisdiction and acting to protect the child. (In re Heather A. (1996) 52 Cal.App.4th 183, 194-196; In re Michael S. (1981) 127 Cal.App.3d 348, 357-358.)
When viewed as a whole, the evidence shows mother's continual difficulty with providing adequate supervision and adequate clothing and medical treatment, that placed the children in danger. For the younger children and T., these dangers included being injured while playing in the house or yard, or wandering off into the neighborhood. The younger children's ages and T.'s special needs rendered them helpless to protect themselves, and deserving of special protection. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824 (Rocco M.).) For children of such tender years, "the absence of adequate supervision and care poses an inherent risk to their physical health and safety." (Ibid.) As for 13-year-old C. and eight-year-old N., they were also at risk of harm due to mother's lack of supervision and apparent disinterest in obtaining medical care for the children. Together the evidence supporting the allegations demonstrated a pattern of pervasive and sustained neglect of the children that ranged from failing to provide the basics of food, clothing, and shelter, to medical and dental care, to simple supervision, that justified the court's jurisdiction over the children.
Mother argues the substance abuse allegations do not support the exertion of dependency jurisdiction because there is no evidence she was a substance abuser or that her marijuana use resulted in physical harm to the children, citing In re Drake M. (2012) 211 Cal.App.4th 754. Even so, the inability of these further facts to support a jurisdictional finding does not in any way undermine our conclusion that there is sufficient evidence to support jurisdiction due to mother's failure to supervise, protect, and provide for the children. One basis for jurisdiction is enough. (In re A.F. (2016) 3 Cal.App.5th 283, 289.)
II. Disposition
Mother challenges both the juvenile court's removal order and its finding, required by ICWA, that active efforts were made to prevent the breakup of her family and these efforts proved unsuccessful. (25 U.S.C. § 1912(d); § 361.7, subd. (a).) Specifically, she argues that there is no evidence that the children suffered any harm while in her care and criticizes the Agency for not offering her services or assistance with transportation and cleaning her home.
It is undisputed that ICWA applied to this case. The purpose of ICWA is twofold: "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families . . . ." (25 U.S.C. § 1902.) To that end, it requires that any party initiating proceedings that would separate an Indian child from his or her family establish that active efforts were made to preserve the family unit that proved unsuccessful. Specifically, ICWA provides: "Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." (25 U.S.C. § 1912(d).)
Section 361, subdivision (c) prohibits the juvenile court from removing a child from parental custody unless it finds by clear and convincing evidence any of five circumstances listed in paragraphs (1) to (5). (§ 361, subd. (c).) The pertinent circumstance here is contained in paragraph (1), which provides in relevant part: "There is or would be a substantial danger to the physical . . . well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody." (§ 361, subd. (c)(1).)
In the case of an Indian child, section 361, subdivision (c)(6) requires the juvenile court to also find, based on the testimony of a " 'qualified expert witness[,]' " that "continued custody of the child by the parent . . . is likely to result in serious emotional or physical damage to the child[.]" In addition, section 361, subdivision (e) requires the juvenile court to determine, in the case of an Indian child, "whether active efforts as required by Section 361.7 were made and . . . proved unsuccessful. The court shall state the facts on which the decision to remove the minor is based."
If the dependency proceeding does not involve an Indian child, the juvenile court must "make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home or, if the minor is removed for one of the reasons stated in paragraph (5) of subdivision (c), whether it was reasonable under the circumstances not to make any of those efforts . . . ." (§ 361, subd. (e).)
Section 361.7 specifically incorporates the "active efforts" provision of ICWA, requiring the juvenile court to find that "active efforts [were] made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." (§ 361.7, subd. (a).) It also guides the juvenile court in determining whether active efforts were made: "What constitutes active efforts shall be assessed on a case-by-case basis. The active efforts shall be made in a manner that takes into account the prevailing social and cultural values, conditions, and way of life of the Indian child's tribe. Active efforts shall utilize the available resources of the Indian child's extended family, tribe, tribal and other Indian social service agencies, and individual Indian caregiver service providers." (§ 361.7, subd. (b).)
We review the juvenile court's removal order for substantial evidence, bearing in mind the heightened burden of proof. (In re Henry V. (2004) 119 Cal.App.4th 522, 529.) As for review of a finding that active efforts were made to provide services and programs designed to prevent the breakup of an Indian family, this court has used the substantial evidence standard of review in In re A.A. (2008) 167 Cal.App.4th 1292, 1319, an approach that was applied in C.F. v. Superior Court (2014) 230 Cal.App.4th 227, 238-239 (C.F.), and In re Michael G. (1998) 63 Cal.App.4th 700, 708, 715-716.
Mother urges us to follow In re K.B. (2009) 173 Cal.App.4th 1275 (K.B.), in which the court, citing to Alaska law, determined that an "active efforts" finding made at a hearing to terminate parental rights was a mixed question of law and fact that should be reviewed independently. (Id. at p. 1286.) The court stated elsewhere in the opinion, however, that if it were required to review the juvenile court's finding that active efforts were made prior to the disposition hearing, it would apply the substantial evidence rule. (Id. at p. 1283.) As we are reviewing a finding made at a disposition hearing, we apply the substantial evidence standard.
At the dispositional hearing, the juvenile court must decide whether the Indian child can be safely returned to parental custody and, if not, whether active efforts were made to prevent the child's removal.
Mother argues the removal order is not supported by substantial evidence because this is not an extreme case of parental abuse or neglect, and there is no evidence any of the children suffered harm while in her care. We disagree.
In determining whether to order a child removed from parental custody, the juvenile court is not required to find the child was harmed. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) The juvenile court only has to have some reason to believe that circumstances which place the child at a substantial risk of harm would continue in the future. (Rocco M., supra, 1 Cal.App.4th at p. 824.) The parent's level of denial is an appropriate factor to consider when determining the risk to the child if placed with the parent. Ultimately, the purpose of the removal statute is to avert harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536.)
Here, there is substantial evidence that returning the children to mother's custody would place them at a substantial risk of harm. Mother was providing the children with minimal care, as evidenced by the children's unkempt appearances, and their lack of clean, appropriate clothing. At the time of the hearing, mother did not have stable housing for the children, as she was homeless and living in her car. The three school-aged children had an excessive number of absences from school. Mother was aware that T. had behavioral issues, but took no apparent interest in resolving the problem by obtaining services through the regional center. Mother was aware that T. was prone to injury, yet failed to supervise her, and failed to take her to the dentist to have her cavities filled. The younger children ran around the yard unsupervised, where they could be injured.
In short, the evidence established that mother was not providing the children with the basic necessities of shelter, cleanliness, and education, and was not providing for T.'s medical needs on a consistent basis. Moreover, ICWA expert Scott opined that continued custody with mother was likely to cause the children serious emotional and physical damage. Under the circumstances, the court reasonably concluded it would not be safe to return the children until mother had benefited from intensive services to enable her to develop parenting skills and acquire techniques to properly care for the children.
This leaves the issue of whether active efforts were made to prevent the children's removal from mother's custody. Neither ICWA nor section 361.7 provides a definition of active efforts. (C.F., supra, 230 Cal.App.4th at p. 239; see 25 U.S.C. § 1912(d); cf. K.B., supra, 173 Cal.App.4th at p. 1287 [setting forth "a useful guideline" for distinguishing passive efforts from active efforts: " 'Passive efforts are where a plan is drawn up and the client must develop his or her own resources towards bringing it to fruition. Active efforts . . . [are] where the state caseworker takes the client through the steps of the plan rather than requiring that the plan be performed on its own' "].)
In 2015, however, the Bureau of Indian Affairs (BIA) issued guidelines which were intended to provide guidance to state courts and child welfare agencies implementing ICWA's provisions. (Department of the Interior, BIA, Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, 80 Fed.Reg. 10146 (Feb. 25, 2015) (Guidelines).) The Guidelines explain that "[a]ctive efforts are intended primarily to maintain and reunite an Indian child with his or her family or tribal community and constitute more than reasonable efforts" as required in most dependency cases. (Guidelines, p. 10150, ¶ A.2.) The Guidelines clarify that the active efforts requirement "begins from the moment the possibility arises that an agency case or investigation may result in the need for the Indian child to be placed outside the custody of either parent . . . in order to prevent removal." (Guidelines, p. 10152, ¶ B.1(a).) The party attempting to place an Indian child in foster care must also "demonstrate to the court that prior to, and until the commencement of, the proceeding, active efforts have been made to avoid the need to remove the Indian child from his or her parents . . . and show that those efforts have been unsuccessful." (Guidelines, p. 10156, ¶ D.2(a).)
The Guidelines list 15 examples of active efforts, which include, as pertinent here, "[i]dentifying appropriate services and helping the parents to overcome barriers, including actively assisting the parents in obtaining such services"; "[c]ompleting a comprehensive assessment of the circumstances of the Indian child's family, with a focus on safe reunification as the most desirable goal"; "[i]dentifying community resources including housing, financial, transportation, mental health, substance abuse, and peer support services and actively assisting the Indian child's parents . . . in utilizing and accessing those resources"; and "[m]onitoring progress and participation in services." (Guidelines, p. 10150, ¶ A.2.)
We note that new federal regulations governing ICWA became effective on December 12, 2016, four days after this case was filed, and therefore do not affect this stage of the proceedings, although they may apply should the case move to termination of parental rights. (25 U.S.C., § 1903(1); 25 C.F.R. §§ 23.2, 23.143.) The new regulation defines "active efforts" as "affirmative, active, thorough and timely efforts intended primarily to maintain or reunite an Indian child with his or her family. Where an agency is involved in the child-custody proceeding, active efforts must involve assisting the parent . . . through the steps of a case plan and with accessing or developing the resources necessary to satisfy the case plan. To the maximum extent possible, active efforts should be provided in a manner consistent with the prevailing social and cultural conditions and way of life of the Indian child's Tribe and should be conducted in partnership with the Indian child and the Indian child's parents. . . and Tribe. Active efforts are to be tailored to the facts and circumstances of the case . . . ." (25 C.F.R. § 23.2.) The regulation lists 11 examples of active efforts. (Ibid.)
In the present case, mother claims the Agency failed to make active efforts because it did not offer her "any service or assistance with her difficulties with transportation and with bringing the condition of the home up to the standard they required." She asserts the evidence instead shows the Agency made specific demands of mother to clean the home, but when she indicated she had difficulty complying with the demands due to the lack of child care, it did not give her any assistance and instead reiterated the demands and expected mother to execute the plan on her own. In addition, although she had made significant progress in cleaning the home, the Agency did not help her accomplish the cleaning or transport T. to the dentist. She claims that the Agency's safety plan of cleaning the home on her own was a "passive" rather than an "active" effort, and therefore insufficient to support an active efforts finding. We disagree.
When the social worker first met with mother, she was told about services available to her, including family maintenance services, but she was not sure she was open to them. Mother was again offered services when the social worker and her supervisor returned a week later. Mother's primary complaint was that she could not clean the house because she had to watch the children. Mother agreed with the social worker's suggestion to find a family or friend with whom the children could stay while she cleaned up the house, and said she could have the house clean within two days. The social workers checked on mother's progress over the next two days. Mother agreed to voluntary family maintenance services and the social workers worked with mother to create a safety plan to avoid the children's detention, which included refraining from smoking marijuana, drug testing, and maintaining a clean home.
The Agency only detained the children after mother refused to drug test, stated she planned to leave the county, and appeared to no longer be willing to participate in voluntary services. In addition, the Agency learned that T. had been referred to a surgery center to have 14 cavities filled 11 months before, but mother never took her. After detention, the Agency provided mother with referrals for individual counseling, parenting classes, and a substance abuse assessment and any recommended treatment. The Agency also provided bus passes to assist with transportation and rides to visit the children in their placement, although at one point, mother indicated she had her own transportation.
The Agency did not simply tell mother what to do and leave her to her own resources. It provided referrals to specific classes and services, paid for by the Agency, which were selected to address the problems that led to the children's detention. There is nothing in the record to suggest that mother had difficulty accessing these services; in fact, she completed the substance abuse assessment and hair follicle test, she attended 12-step classes, and while she did not appear for an intake appointment at Sierra Vista, she was able to reschedule it for the next available date.
Finally, as stated in her affidavit, ICWA expert Scott believed the Agency had made active efforts to avoid having to remove the children from their home, which were unsuccessful. Although mother asserts we should not give any weight to Scott's opinion because it is not supported by evidence in the record, we disagree, as the evidence shows the Agency did make active efforts that were unsuccessful.
Mother asserts the Agency should have done more to help her before the children were detained, such as assisting her in cleaning the house and transporting T. to the dentist. But it was not mother's failure to clean the house or take T. to the dentist that led to the children's removal. Instead, it was mother's uncooperative attitude and threat to leave the county. Mother does not identify any assistance the Agency could have offered to address her unwillingness to work with the Agency.
In light of all of the evidence in the record of the Agency's efforts, both before and after detention, as well as Scott's expert opinion that the Agency had satisfied ICWA's active efforts requirement, we conclude substantial evidence supports the juvenile court's finding that the Agency made active efforts in the circumstances of this case "to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family," but that these efforts had been unsuccessful. (§ 361.7, subd. (a); see C.F., supra, 230 Cal.App.4th at p. 239; see also 25 U.S.C., § 1912(d); Guidelines, ¶¶ A.2; B.1(a); D.2(a).)
DISPOSITION
The juvenile court's jurisdictional findings, and dispositional findings and orders, are affirmed.
/s/_________
GOMES, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
FRANSON, J.