Opinion
A132058
08-04-2011
GLORIA F., Petitioner, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; SAN FRANCISCO HUMAN SERVICES AGENCY et al., Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(City & County of San Francisco Super. Ct. No. JD09-3267)
Gloria F. (mother) seeks review by extraordinary writ of the juvenile court's May 5, 2011 order terminating reunification services as to her son, Tristan F., and setting a Welfare and Institutions Code section 366.26 hearing. Mother argues: (1) the court's finding that returning Tristan to her care would be detrimental is not supported by substantial evidence; (2) that substantial evidence does not support the court's finding that the San Francisco Human Services Agency (Agency) provided reasonable reunification services; (3) that the court erred by failing to order additional services, pursuant to section 366.22, subdivision (b); and (4) that the court was required, under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.), to find that the Agency made active efforts to prevent the breakup of an Indian family. Mother also requests a stay of the section 366.26 hearing. We deny the petition and the request for a stay.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
Section 300 Petition
On September 29, 2009, the Agency filed a section 300 petition on behalf of Tristan, who was seven years old at the time. The petition alleged mother's failure to protect Tristan (§ 300, subd. (b)), on the grounds that mother was unable to provide adequate care because of untreated mental illness, substance abuse, and anger management problems. The petition was initiated after the police were called on September 25, 2009, when mother was walking down the street with Tristan while "severely intoxicated" and "totally out of control." Mother was physically and verbally combative with police officers who arrived at the scene. She later admitted resisting arrest. The petition states that mother has a criminal history dating back to 2003, that Tristan had previously been declared a court dependent, and that there have been nine previous dependency referrals involving alcohol abuse, domestic violence, and physical abuse and neglect. According to the petition, mother has also "educationally neglected" Tristan. Finally, the petition states that Tristan's alleged father has been unable to protect him from mother's abuse and has a history of domestic violence with mother.
The alleged father apparently has been deported to Ireland. Because he is not involved in the instant proceedings, the alleged father is not further referenced in our opinion.
Detention Report & Hearing
The detention report was written by social worker Karla Veal. Veal reported that, on September 25, 2009, a concerned citizen reported mother was severely intoxicated and walking in and out of traffic with a young child. When police arrived, mother was combative and used profanity in front of Tristan, despite being warned that her behavior was upsetting to him. Tristan informed the officers that "[mother] swears a lot and that [she] drinks sometimes but not as much as she used to." A police report was attached to the detention report. Mother admitted two prior arrests, occurring in 2003 and 2005. The report indicated that Tristan had been previously detained in January, 2009, due to allegations of physical abuse and neglect by mother. He had been returned to mother, who engaged in some voluntary services. The report also indicates: "The Indian Child Welfare Act does or may apply. [¶] . . . [¶] The mother reports that she is full blood Shu Swap [sic]from Canada but that her tribe is not federally recognized."
An addendum detention report indicated that the social worker had spoken with the arresting officer, who confirmed that mother was arrested for public intoxication and resisting arrest. The officer stated that mother's record revealed she had previously been arrested for driving under the influence. The social worker also interviewed Tristan, who stated he was aware that mother was drunk on September 25 because he had seen her drunk before. Tristan also stated that he "takes care of himself by cooking and arranging a ride to school when his mother is drunk.
On September 30, 2009, the court ordered Tristan detained in foster care.
Jurisdiction Report and Determination
In the jurisdiction/disposition report, filed November 16, 2009, a new social worker, Vicki Saltzer-Lamb, wrote: "When she was 10, [mother] was gang-raped by her three teenaged brothers and went to live with her maternal uncle. She left his home when she was 16 and has been on her own since that time. . . . [¶] . . . [¶] In 9/07, the mother filed a report alleging that the father was sexually molesting Tristan. . . . [¶] On 1/09, [mother] was arrested and charged with [c]hild [c]ruelty after she allegedly physically assaulted Tristan and left him alone at home while she was intoxicated."
The report indicated that mother began inconsistently attending therapy in March 2009. Mother was diagnosed with an adjustment disorder and had been prescribed Effexor, which she had not been taking. Saltzer-Lamb wrote: "[M]other adamantly denies that she has a problem with alcohol, states she has stopped drinking and is not interested in participating in treatment." The report noted that mother and Tristan were visiting weekly and would soon begin therapeutic visitation. The social worker indicated that mother had been referred for a substance abuse evaluation and random testing. The report concluded: "There is a need for Court intervention and placement, and return of the child would be detrimental to the safety, protection, or emotional or physical well being of the child because: The mother has an alcohol abuse problem and mental health issues for which she is not being currently . . . treat[ed]."
On January 29, 2010, mother submitted to the allegations of the petition at the jurisdiction and disposition hearing. The court adjudged Tristan to be a dependant of the juvenile court and ordered supervised visitation and reunification services for mother. The court adopted the Agency's proposed reunification plan, which provided: "[T]o be considered for reunification, the mother must complete the following service plan: [¶] 1. That the mother complete an outpatient drug/alcohol treatment program which includes counseling and testing, and that she not terminate the program without the approval of the Child Welfare Worker. (This program must have a strong alcohol abuse focus.) That the mother undergo a psychological evaluation and follow any recommended treatment. . . . [¶] 2. Individual therapy. [¶] 3. That the mother remain under the care of a qualified mental health professional and comply with the mental health professional's recommendations for psychotherapy and/or prescribed medication. [¶] 4. That the mother sign necessary consents to release information, in order to evaluate her compliance with the reunification services. [¶] 5. That the mother visit the child on a regular basis prior to reunification and maintain other contact and involvement, as arranged by the Child Welfare Worker."
Six-Month Review
The six-month review report, filed by the Agency on July 7, 2010, recommended that reunification services for mother be continued for an additional six months. The new social worker assigned to the case, Tommy Pazhempallil, indicated, in his report, that mother had completed a psychological evaluation and was under the care of a therapist. The therapist reported that mother had missed some sessions. The report also stated: "The mother is diagnosed with PTSD both in early development and as an adult after becoming a victim of sexual abuse. She has [a] long history of alcohol abuse with prior DUI convictions. She [also has a] diagnosis of Borderline Personality Disorder on Axis II. [¶] . . . [¶] The mother denies any addiction problems."
Pazhempallil wrote: "The mother has not fully utilized therapeutic visitation services to her advantage to gain effective parenting skills. She cancelled several therapeutic visitation sessions scheduled for 1/20/10, 1/27/10, 2/3/10, 2/17/10, 2/18/10, 2/24/10, 2/16/10, 3/1/10 for numerous reasons including being busy with moving, sick or having to work." Accordingly, visits were reduced to once a week. The report continued: "Tristan attends therapy every Tuesday. According to his therapist . . . [he] is showing more maturity and is thriving with all the support and care from his foster parents. . . . [¶] . . . [¶] The minor and his mother have been visiting weekly."
The report indicated that mother started an outpatient substance abuse treatment program, at the IRIS Center, and then quit in January 2010. The report observed: "[M]other was again referred for out-patient program, but did not further provide the Agency any proof of enrollment in any program. The mother stopped random testing after her last testing on 1/25/10. The mother did not follow-through with subsequent referrals for drug testing on 3/3/10 and again on 5/5/10. While she was testing prior to 1/25/10, the mother tested positive for marijuana five times."
At the review hearing, on August 4, 2010, the juvenile court renewed Tristan's dependency status and ordered services to continue.
12-Month Review Report
The 12-month review hearing was originally calendared for December 1, 2010. The status review report, filed on November 15, 2010, recommended that reunification services be terminated. The report noted that mother had "made progress in keeping therapeutic visits [with Tristan] regularly and had been demonstrating appropriate parenting skills during visits." But, the foster mother reported that "the minor came back from a few of these visits on Thursdays confused and anxious recounting stories and conversations [with] mother . . . . It has been reported that during one of the visits, the mother made the minor believe that when the police arrested her she was beaten up by the police, who also hurt her and stole her stuff. On another visit, Tristan came back believing that his foster mother and attorney want to keep him in foster care because they are getting paid."
The report noted that mother had resumed weekly drug testing after August 17, 2010. However, three out of the 12 tests had been positive for marijuana. The report also observed: "It is unknown to the Agency, if the mother has worked through her alcoholism . . . . The mother adamantly denies that she has a problem with alcohol and states that she has stopped drinking." The report states: "[A] case manager at Lee Woodward [Counseling Center] on 11/10/10 verified on the phone that the mother had just started out patient treatment at [that] agency effective 10/13/10, and she has been attending groups. The Agency has not received any detailed information or verification of the mother's requirements for participation or her attendance in out-patient services at Lee Woodward. According to [the case manager], the mother had specifically instructed Lee Woodward not to provide any written verification of mother's participation."
With respect to mother's progress on her mental health issues, the report noted: "Tenderloin [Mental Health] Clinic staff verified that the mother did not keep her 8/31/10 intake appointment for psychiatric services. The mother later informed the Agency that she had rescheduled her intake appointment for 10/18/10, and again for 10/29/10, but [she] did not follow through with the appointment. On 11/8/10, the mother called again [to] report she has been scheduled for an assessment appointment on 11/17/10. The mother has not followed-through with the referral given to her for mental health services in a timely manner." The report also stated that mother had not provided her consent to release information from the Clinic to the Agency. However, mother had been attending regularly therapy sessions with a marriage and family therapist (MFT).
Pazhempallil wrote that he "met with the mother in person every month and made phone contacts regularly. During these contacts, the mother was reminded about her responsibilities and court ordered requirements for reunification." The report contained the following assessment: "Despite many services offered to the mother, over a period of several years, including during the last 12 months of reunification, the mother's underlying problems of substance abuse and need for mental health treatment services has not been addressed. The mother has the tendency to choose the services that she wants and refuse services she does [not] consider as important. Her denial about her problems, and resistance to substance abuse treatment services and mental health treatment have prevented her from fully utilizing these services in a timely manner. Her recent positive tests for marijuana, three times in October 2010, raises serious concerns about her efforts to remain clean and sober. [¶] . . . [¶] At this time of twelve months into reunification, the mother has made only minimal progress towards her reunification goals. She has not made any serious effort towards resolving substance abuse issues and mental health treatment needs. . . . The mother continues to avoid participation in required services in a timely manner and she engages in finding reasons or excuses for not participating each time. [¶] [Mother's] explosive anger issues continue to impede her ability to maintain healthy interpersonal relationships. Incidents reported by service providers and situations experienced by the undersigned indicate that the mother can become angry very easily, resulting in serious conflicts and verbal confrontations with others. Given her history and current stressors, it is very difficult for her to be effective with regard to parenting. " The report noted that an adoptive home study was in progress.
The court continued the 12-month review hearing after appointing new counsel to represent mother.
Mother's Motion to Change Visitation
On January 3, 2011, mother asked the court to modify its visitation order to allow for unsupervised visitation. The court denied mother's motion. Participation by the Simpcw First Nation
On January 26, 2011, the chief of the Simpcw First Nation (the Nation) wrote a letter to the court, which stated: "Please be advised that [Tristan] is a registered member of the Simpcw First Nation and a Canadian citizen. As such, our Nation has an interest in the planning for any child from this community. [¶] . . . [¶] While our band has no interest in disrupting Tristan's life, we do wish to be advised and involved in any planning affecting him. We believe that it is essential that [he] be aware of his heritage and be permitted to maintain links to his culture, community and extended family."
The Nation is one of seven Indian Bands within the Secwepemc Nation in British Columbia.
Mother filed a motion to continue the 12-month review hearing so that the Nation's interest could be evaluated. Mother conceded that ICWA did not apply because the Nation is not a federally recognized tribe. Nonetheless, Mother argued that ICWA standards should be used in Tristan's case as "a best practices guide." The court continued the 12-month review hearing to April 4, 2011, and set a hearing in the interim to determine ICWA applicability.
The Nation also filed a motion to dismiss the dependency petition so that proceedings could be initiated in a Canadian court. In the alternative, it sought to participate in the dependency proceedings, pursuant to section 306.6.
Section 306.6, subdivision (a), provides: "In a dependency proceeding involving a child who would otherwise be an Indian child, based on the definition contained in paragraph (4) of Section 1903 of [ICWA], but is not an Indian child based on status of the child's tribe, as defined in paragraph (8) of Section 1903 of [ICWA], the court may permit the tribe from which the child is descended to participate in the proceeding upon request of the tribe." Section 306.6, subdivision (d), provides in relevant part: "This section is intended to assist the court in making decisions that are in the best interest of the child by permitting a tribe . . . to inform the court and parties to the proceeding about placement options for the child within the child's extended family or the tribal community, services and programs available to the child and the child's parents as Indians, and other unique interests the child or the child's parents may have as Indians. This section shall not be construed to make [ICWA], or any state law implementing [ICWA], applicable to the proceedings . . . ." (Italics added.)
On March 24, 2011, the juvenile court denied the Nation's motion to dismiss, but granted its motion to participate. The court also concluded that ICWA does not apply because the Nation is not recognized by the United States federal government. (See In re Wanomi P. (1989) 216 Cal.App.3d 156, 159, 166-168, 171 [juvenile court erred in concluding ICWA applied to child born to mother who is member of Canadian Indian tribe].)
Termination of Nontherapeutic Supervised Visitation
Tristan's counsel notified the court that "[he] continues to receive information that the mother is behaving inappropriately during her supervised visits." Specifically, counsel noted that the visitation supervisor informed him that "during the visit on January 29, 2011 [mother] promised Tristan 20,000 dollars from a lawsuit against MUNI. The lawsuit is far from being resolved. Tristan was very excited and spent much of the weekend obsessing about the money. In spite of previous admonitions, mother continues to have discussions with Tristan during the Saturday visits that are disruptive and harmful to her son." Thereafter, the court suspended supervised visitation. Therapeutic supervised visitation remained ongoing.
Addendum Status Review Report
On March 16, 2011, the Agency filed an addendum status review report, in which the Agency continued to recommend termination of reunification services. The Agency noted that mother had continued to refuse to authorize the release of information to the Nation or from Lee Woodward. The Agency had also not received any verification from the Tenderloin Clinic showing that mother had participated in mental health treatment services. The Agency concluded: "[M]other has not completed an out-patient drug/alcohol treatment program during the reunification period. Given her extensive history of alcoholism and arrests for public drunkenness and DUI, her recent engagement in treatment services at Lee Woodward during the last four months has been minimal to address her long history of alcoholism."
The addendum report also noted that Tristan had suffered anxiety and confusion after recent visits with mother. For example, he was told that he would soon be going to live with his maternal uncle in British Columbia. The report concluded: "[Mother's] inconsistent and inadequate progress towards reunification, presents a high risk level for further abuse or neglect if the minor is returned to the mother. [Mother's] mental health and substance abuse problems also remain unaddressed leading to her inability to cope with situational stressors, crises or problems that will arise while parenting a minor."
Contested 12-Month/18-Month Review Hearing
The contested 12-month and 18-month review hearing was held over the course of several days in April and May 2011.
Tristan's counsel called the psychologist who conducted an evaluation of mother, in December 2009. The evaluation report was admitted into evidence. Dr. Holden testified that, given mother's apparent lack of compliance with therapy at that time, "it would be supremely difficult for her to overcome [her emotional impairments] to a significant degree." Dr. Holden also testified that mother would need long-term external support and structure to experience less stress.
The social worker, Pazhempallil, testified regarding the reunification services offered and mother's progress under the plan. He stated that mother had failed to submit to drug testing between January 25, 2010 and August 17, 2010. When mother stopped drug testing, Pazhempallil met with her and reminded her of the requirement. Mother told him that she was too busy seeking employment and could not find the time for testing. She resumed testing consistently on August 25, 2010. Since that time she had never tested positive for alcohol.
Pazhempallil testified that mother had discontinued outpatient treatment at the IRIS Center, after complaining that the program was incompatible with her work schedule. He met with her to remind her of the reunification requirements and provided her with a list of 17 alternative outpatient centers in May 2010. Ultimately, he was informed that mother began outpatient treatment at Lee Woodward in approximately October 2010. He also testified that one of the requirements of mother's reunification plan was that she provide her consent for the release of information from Lee Woodward to the Agency. However, Pazhempallil had never received a valid release. He did receive a copy of a release from mother's attorney in March 2011, but stated it had expired by the time he received it. He had spoken with a case manager at Lee Woodward but was told that mother had given specific instructions not to share "any documentation or verification."
Pazhempallil also testified that mother's nontherapeutic supervised visits with Tristan at the Bayview Family Resource Center had been terminated because of concerns regarding the interactions. It was reported by the foster parents that Tristan displayed anxiety and confusion after those visits. Supervised therapeutic visitation remained ongoing and productive. Unsupervised visitation was considered at one point, but was not approved because of mother's behavior during supervised visits and her lack of progress towards reunification.
Pazhempallil testified that mother had never spoken to him about wanting to engage in Native American services. He was unable to participate in a conference call with the Nation because mother did not sign the appropriate releases. He also testified that he had identified a possible permanent placement for Tristan with a family of Secwepemc heritage.
Pazhempallil did not consider mother's weekly therapy with a MFT to satisfy the reunification plan because she was required to receive a medication evaluation and follow up on any recommendation for medication. In his opinion, receiving therapy alone was insufficient. Pazhempallil concluded that reunification services should be terminated because "mother has not utilized [such services], within a reasonable period of time, to work towards reunification goals . . . ."
Saltzer-Lamb testified that she probably would have developed a different case plan if the Nation was a recognized tribe under ICWA. She had, however, contacted Friendship House, which provides services to Native Americans, to inquire regarding services and had been told that it did not provide outpatient services. She prepared the reunification plan and understood it to require mother to be under the care of a qualified medical provider in order to receive prescribed medication. Mother was seeing a psychiatrist and taking prescription medication at the time the reunification plan was developed. Saltzer-Lamb assumed that mother understood she needed to be under a psychiatrist's care to obtain medication.
The director of operations for the Dry Dock, Alexandra Blacis, testified for mother. Dry Dock hosts 12-step meetings. Blacis testified that mother began attending Alcoholics Anonymous (AA) meetings in March 2010. She testified: "I saw her almost every day . . . ." She further testified: "[Mother has] grown in leaps and bounds. She doesn't explode anymore. . . . [S]he's got a calmness about her. When we discussed the case and her feelings about it she's analytical and calm whereas early on she was a little bit volatile. So there's been a tremendous amount of growth . . . ." Mother had become a sponsor and served as secretary at several AA meetings a week. Mother told Blacis that she had relapsed on one occasion.
Mother testified and acknowledged she had an alcohol problem. She testified that she quit treatment at the IRIS Center for several reasons. First, she did not feel comfortable and safe there. She also lost her disability income and the IRIS schedule interfered with her ability to work. Mother was told that she would not get her son back if she was homeless. Mother told the social worker she wanted to go to Friendship House for treatment of her alcohol problem. Because the Friendship House in San Francisco only offered residential services, mother continued to ask for a referral to a different program. Mother was referred to Lee Woodward in August 2010. She was put on a wait list and began treatment in October 2010. Mother testified that the program was "awesome" and she would be graduating in April 2011.
Mother had experience with the Friendship House in Canada, where she had received help for her alcohol abuse. She relapsed after she left.
Mother began attending AA meetings in February 2010. She had one relapse, in July 2010, when she had one beer. Mother said she had not had a drink since. Mother testified that she did not smoke marijuana. She only tested positive for marijuana because she had been in the same room with a former boyfriend who smoked it.
Mother had also been attending weekly therapy. However, she was not seeing a psychiatrist. She testified: "I saw a psychiatrist at the Tenderloin outpatient clinic per the CPS worker's suggestion. He and I went to the intake which was quite extensive, and . . . eventually I saw a psychiatrist and he said he was not prepared to see me because I was already under the care of a mental health worker . . . ."
Aaron Conroy, the clinical coordinator for the Native American Health Center, testified as an expert witness on the issue of whether reasonable services had been provided. Conroy testified that "Native Americans do better in culturally appropriate treatment . . . ." He testified that reasonable services were not offered to mother because they were not tailored to her specific needs. Specifically, Conroy testified: "At the minimum I feel like that [mother] should have been referred to the Native American Health Center for culturally appropriate treatment." He stated: "[M]y opinion is culturally appropriate services are what is reasonable." He conceded that he had not been informed of the full extent of services the Agency had offered mother.
Challenged Ruling
After argument, the court indicated on the record: "I will follow the recommendation of the Agency in this case. I don't do it happily, but I believe the evidence requires this result." The juvenile court found that return of Tristan to mother would create a substantial risk of detriment. The court said: "The facts upon which [I base] the decision that his return would be detrimental are generally a failure of the mother . . . to consistently participate in her treatment programs; more particularly her refusal to release information to the Agency, to the tribe and the band, her refusal to meet with the social worker, misrepresenting facts to Tristan during visits, her use of marijuana." The court concluded that there was no substantial possibility of return. The court also found that the Agency had provided reasonable services to mother. Reunification services were terminated and a section 366.26 hearing was scheduled for August 31, 2011. This writ proceeding followed.
II. DISCUSSION
In her writ petition, mother argues: (1) that substantial evidence does not support the court's finding that returning Tristan to her care would be detrimental; (2) that substantial evidence does not support the court's finding that the Agency provided reasonable reunification services; (3) that the court erred by failing to order additional services, pursuant to section 366.22, subdivision (b); and (4) that the court was required to find that the Agency made active efforts to prevent the breakup of an Indian family. None of her arguments has merit. A. Statutory Background
"At the dispositional hearing, and at each review hearing prior to permanency planning, there is a statutory presumption that the child will be returned to parental custody. At the dispositional hearing, the burden is on the state to prove, by clear and convincing evidence, that removal of the child from the parent's custody is necessary. At 6-, 12-, and 18-month review hearings the juvenile court must return the child to the custody of the parent unless it determines, by a preponderance of the evidence, that return of the child would create a substantial risk of detriment to the child's physical or emotional well-being. [Citations.]" (In re Marilyn H. (1993) 5 Cal.4th 295, 308.)
Here, the 12-month review hearing was repeatedly continued so that it was not concluded until approximately 19 months after Tristan had been removed from mother's custody. In such a situation, the hearing must be deemed an 18-month hearing, which is governed by section 366.22. (Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1508-1509 (Denny H.).)
Section 366.22, subdivision (a), provides, in relevant part: "When a case has been continued pursuant to paragraph (1) of subdivision (g) of Section 366.21, the permanency review hearing shall occur within 18 months after the date the child was originally removed from the physical custody of his or her parent or legal guardian. The court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment. . . . The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. In making its determination, the court shall review and consider the social worker's report and recommendations and the report and recommendations of any child advocate appointed pursuant to Section 356.5; shall consider the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which he or she availed himself or herself of services provided, taking into account the particular barriers of an incarcerated or institutionalized parent or legal guardian's access to those court-mandated services and ability to maintain contact with his or her child; and shall make appropriate findings pursuant to subdivision (a) of Section 366." (Italics added.)
"Absent extraordinary circumstances, the 18-month review hearing constitutes a critical juncture at which 'the court must return children to their parents and thereby achieve the goal of family preservation or terminate services and proceed to devising a permanent plan for the children.' [Citations.] . . . [T]he juvenile law's purpose is 'to ensure the well-being of children whose parents are unable or incapable of caring for them by affording them another stable and permanent home within a definite time period. Although the goal of the juvenile law is to reunite children with their parents whenever possible, this reunification must be accomplished within 18 months from the time the child is originally taken from his or her parents' custody. [Citation.] This strict time frame, in turn, is a recognition that a child's needs for a permanent and stable home cannot be postponed for an extended period without significant detriment.' " (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 596.) Only in extraordinary circumstances will reunification services be continued beyond the 18-month review hearing. (Ibid.; In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1798-1799.) B. Substantial Evidence Supports the Court's Detriment Finding
Mother first argues that substantial evidence does not support the juvenile court's finding that returning Tristan to her care would create a substantial risk of detriment. When we review the juvenile court's findings for substantial evidence, "[w]e do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. [Citation.]" (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) We uphold the court's findings "if [they are] supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence. [Citation.]" (Ibid.)
"At the 18-month review hearing the dependent child must be returned to his or her parents unless it would be detrimental to do so; further, the burden is on the state to show such detriment." (Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748, italics & fn. omitted.) Under section 366.22, subdivision (a), a parent's failure to comply with the reunification plan creates a rebuttable presumption that return of custody would create a substantial risk of detriment to the child. (See In re Heather B. (1992) 9 Cal.App.4th 535, 561 [construing same language in § 366.21, subd. (f)].) This presumption can be rebutted with evidence that the parent would not pose a risk of harm to the child. (Id. at p. 562 ["upon the introduction of any contrary evidence [the presumption] has no further effect in the action"].)
Tristan was removed from mother's custody, in large part, because of her alcohol abuse and her inability to care for him when drinking. Mother testified, at the review hearing, that she was days away from completing a substance abuse treatment program at Lee Woodward and had been sober for approximately 10 months. Mother also points out that she has never tested positive for alcohol during the dependency and has consistently attended AA meetings and weekly therapy. It is true that the juvenile law does not require parents to be perfect. (See David B. v. Superior Court (2004) 123 Cal.App.4th 768, 790 ["[w]e are looking for passing grades here, not straight A's"].) However, in David B. , "[the father] did virtually everything [the social services agency] requested of him, and then some." (Id. at p. 772.) We cannot say the same here. We applaud mother's efforts to acknowledge her alcoholism and begin turning her life around. But, the record, viewed in the light most favorable to the judgment, contains substantial evidence of a substantial risk of detriment if Tristan was returned to mother.
We note that, in making her argument, mother repeatedly cites to exhibits attached to the trial brief she submitted before the contested hearing. At the contested hearing itself, none of these unauthenticated exhibits were admitted into evidence. We only consider the evidence before the juvenile court.
The reunification plan required completion of an outpatient substance abuse treatment program. There is no evidence in the record that mother completed such a program—despite having had more than 18 months to do so. Mother quit the first outpatient program she entered in January 2010. She then did not begin the outpatient treatment program at Lee Woodward until October 2010. She also failed to submit to drug tests between January 25, 2010 and August 17, 2010, and tested positive for marijuana on numerous occasions throughout the dependency. Finally, mother also refused to authorize release of information from Lee Woodward to the Agency, as specifically required by the reunification plan.
Mother's counsel stated, during closing argument, that mother had graduated from the Lee Woodward program as of May 5, 2011. This is not evidence.
Mother asserts that she cannot be faulted for her delayed engagement in outpatient treatment because she repeatedly told the social worker that the IRIS program was interfering with her ability to work. She also testified that Lee Woodward put her on a waitlist. The court's findings suggest it did not believe the delay to be wholly unattributable to mother—possibly because mother had been provided with a list of 17 alternative outpatient centers in May 2010. Mother's lapse in treatment is especially troubling given her history of relapse. Mother admits that she relapsed during the time she was not in treatment and not testing. It can be inferred that mother's relapse was actually more serious than mother testified because she failed to submit to drug testing for over six months. Her lapse in treatment and testing occurred at a time of stress and upheaval. Stress is not unlikely to reoccur when parenting a child. The court could legitimately question mother's ability to maintain sobriety if Tristan were returned to her care. Mother's efforts, while commendable, do not negate the substantial evidence in the record supporting the court's finding of detriment. C. Substantial Evidence Supports the Court's Finding that the Agency Provided Reasonable Services
Tristan was also removed from mother's custody because of her untreated mental health issues. The Agency contends that she did not comply with the reunification plan's requirement that she be under the care of a psychiatrist. We agree with mother that the reunification plan did not make clear that psychiatric care was necessarily required. Because the court's finding of detriment is supported by substantial evidence on the substance abuse issue alone, we need not address the issue further.
Next, mother argues that substantial evidence does not support the court's finding that the Agency provided her with reasonable services. We could pass the question entirely, because, at the 18-month hearing, the court is not required to extend services even if it finds reasonable services have not been provided. (§ 366.22, subd. (a).) "At the critical juncture of the 18-month hearing, the authority of the juvenile court to set a section 366.26 hearing is not conditioned on a reasonable services finding. In mandatory, unequivocal terms, section 366.22, subdivision (a) states that if the minor is not returned to parental custody at the 18-month review, 'the court shall order that a hearing be held pursuant to Section 366.26 . . . . The hearing shall be held no later than 120 days from the date of the permanency review hearing. The court shall also order termination of reunification services to the parent . . . . The court shall determine whether reasonable services have been offered or provided to the parent . . . .' " (Denny H., supra, 131 Cal.App.4th at p. 1511, italics omitted.)
In any event, even if we were to agree that a finding of reasonable services was a prerequisite to ordering a section 366.26 hearing (see In re Daniel G. (1994) 25 Cal.App.4th 1205, 1214), the juvenile court's reasonable services finding is supported by substantial evidence. "In reviewing the reasonableness of the services provided, this court must view the evidence in a light most favorable to the respondent. We must indulge in all legitimate and reasonable inferences to uphold the verdict. If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed. [Citations.]" (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
" '[T]he focus of reunification services is to remedy those problems which led to the removal of the children.' [Citation.] A reunification plan must be tailored to the particular individual and family, addressing the unique facts of that family. [Citation.] A social services agency is required to make a good faith effort to address the parent's problems through services, to maintain reasonable contact with the parent during the course of the plan, and to make reasonable efforts to assist the parent in areas where compliance proves difficult. [Citation.] However, in most cases more services might have been provided and the services provided are often imperfect. [Citation.] '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.' [Citation.]" (Katie V. v. Superior Court, supra, 130 Cal.App.4th at pp. 598-599.)
Substantial evidence supports the court's finding that the Agency provided reasonable services. The Agency identified mother's substance abuse problem and referred mother for drug testing shortly after Tristan was detained. The Agency also referred mother to outpatient substance abuse treatment. The Agency gave mother a bus pass to ensure her ability to attend treatment and visitation. The Agency monitored mother's reunification efforts by meeting regularly with her in person and making regular phone contact. When mother stopped drug testing and quit the IRIS program, the social worker met with her and reminded her of the reunification requirements. The social worker also gave mother the addresses of 17 other outpatient programs. When mother refused to sign the consent forms required for the release of information to the Agency, the social worker spoke to mother about it and forwarded the forms to her attorney. These services were reasonable and addressed the issues pertinent to Tristan's dependency.
In fact, mother received 18 months of services, which may have been more services than she was entitled to receive. Mother did not begin consistently participating in outpatient substance abuse treatment until October 2010. Had the 12-month review been held, as originally scheduled on December 1, 2010, the juvenile court very well could have found that mother had failed to participate regularly and make substantial progress in the reunification plan, that she had received reasonable services, and that there was not a substantial probability Tristan would be returned to her within six months. (§ 366.21, subd. (f).) If it had made such findings at the 12-month review hearing, the court could have terminated services at that juncture and set a section 366.26 hearing, as the Agency had recommended. (Ibid.)But, because the 12-month review hearing was repeatedly continued, mother received an additional six months of services before the issue was considered.
Mother argues that because she identified herself as a Shuswap Indian, the Agency was required to provide "a more culturally appropriate case plan." Essentially, she argues that the only reasonable service plan would have included a referral to either Friendship House or the Native American Health Center. "Under the ICWA . . . the court shall take into account 'the prevailing social and cultural conditions and away of life of the Indian child's tribe. [Reunification services] shall also involve and use the available resources of the extended family, the tribe, Indian social service agencies and individual Indian care givers.' [Citations.]" (In re Michael G. (1998) 63 Cal.App.4th 700, 714, italics added.) Mother cites no authority in support of her argument that the ICWA standards should apply despite the fact that the Nation is not federally recognized. And we know of none.
In any event, the Agency contacted Friendship House on mother's behalf and was informed, as Mother confirmed in her own testimony, that Friendship House did not offer outpatient substance abuse services. In a perfect world, the Agency would have been informed that the Native American Health Center offered such services. But, Saltzer-Lamb clearly testified that she was unaware of the availability of these services. We cannot conclude that this fact makes the services that were offered by the Agency unreasonable. As the juvenile court properly noted, it is speculative to assume that mother would have engaged in treatment sooner or more effectively if she had been referred to Friendship House or the Native American Health Center. Mother herself testified that the substance abuse program she was referred to, Lee Woodward, was "awesome." The juvenile court's reasonable services finding is supported by substantial evidence. D. Section 366.22, Subdivision (b), Does Not Apply
In fact, mother testified that she had engaged in "culturally appropriate" substance abuse treatment in Canada, but she relapsed after leaving treatment.
Next, mother argues that the juvenile court should have extended the provision of services beyond the 18-month review hearing. She relies on section 366.22, subdivision (b), which provides, in relevant part: "If the child is not returned to a parent or legal guardian at the permanency review hearing and the court determines by clear and convincing evidence that the best interests of the child would be met by the provision of additional reunification services to a parent or legal guardian who is making significant and consistent progress in a court-ordered residential substance abuse treatment program, or a parent recently discharged from incarceration or institutionalization and making significant and consistent progress in establishing a safe home for the child's return, the court may continue the case for up to six months for a subsequent permanency review hearing, provided that the hearing shall occur within 24 months of the date the child was originally taken from the physical custody of his or her parent or legal guardian." (Italics added.)
The italicized language was added effective January 1, 2011—before the ruling at issue in this case. (Stats. 2010, ch. 559, § 18.)
Mother acknowledges that the 2011 amendment makes section 366.22, subdivision (b), inapplicable to her because she has not been incarcerated, institutionalized, or in a residential substance abuse program. We have no choice but to decide this case under the statute in effect at the time of the juvenile court's ruling. (In re A.C. (2008) 169 Cal.App.4th 636, 642, fn. 6; In re A.G. (2008) 161 Cal.App.4th 664, 670 & fn. 2.) Mother was not eligible for an extension of services under section 366.22, subdivision (b). E. The Juvenile Court Did Not Need to Make an Active Efforts Finding
This is not a case that involves any extraordinary circumstance militating in favor of a continuance of the 18-month review hearing. (See In re Elizabeth R., supra, 35 Cal.App.4th at pp. 1777, 1787 [mentally ill mother hospitalized for all but five months of 18-month reunification period]; see also In re Daniel G., supra, 25 Cal.App.4th at p. 1209 [social services agency never spoke to mother]; In re Dino E. (1992) 6 Cal.App.4th 1768, 1773 [no reunification plan ever developed for father].)
In her final point, mother contends that the juvenile court's order must be reversed because the Agency did not make "active efforts" to provide services designed to prevent the breakup of the family. The "active efforts" requirement is located in section 361.7, subdivision (a), which provides: "a party seeking an involuntary foster care placement of, or termination of parental rights over, an Indian child shall provide evidence to 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." (Italics added; accord, 25 U.S.C. § 1912, subd. (d).)
The court made no "active efforts" finding because it had previously determined that ICWA did not apply. Mother concedes that determination was correct, but argues that "[t]he spirit and intent of ICWA," should nonetheless apply because the juvenile court allowed the Nation to participate pursuant to section 306.6.
We reject mother's unsupported argument. "[T]he statutory 'active efforts' requirements under federal and state statute apply only to an 'Indian child' as defined by ICWA. (25 U.S.C. §§ 1903(4), 1912(d); Welf. & Inst. Code, §§ 224.1, subd. (a), 361.7.)" (In re C.B. (2010) 190 Cal.App.4th 102, 135; see also In re A.C. (2007) 155 Cal.App.4th 282, 286-287 [§ 306.6 does not incorporate ICWA requirements for tribes not federally recognized].) "Section 306.6 [only] permits the court in a dependency action to allow a tribe which is not federally recognized to appear in the proceeding and present information to the court." (In re A.C., supra, 155 Cal.App.4th at p. 286, fn. omitted.) Section 306.6, subdivision (d), itself provides: "This section shall not be construed to make [ICWA], or any state law implementing [ICWA], applicable to the proceedings . . . ."
Mother misplaces her reliance on cases involving Indian children. (See Letitia V. v. Superior Court (2000) 81 Cal.App.4th 1009, 1014; In re Riva M. (1991) 235 Cal.App.3d 403, 411; A.M. v. State (Alaska 1995) 891 P.2d 815, 818, overruled on other grounds by In re S.A. (Alaska 1996) 912 P.2d 1235, 1241.)
The juvenile court did not err by terminating reunification services and setting a section 366.26 hearing without finding that the Agency had made "active efforts" to prevent the breakup of the family.
III. DISPOSITION
The writ petition is denied on the merits. The request for a stay is also denied. Because the section 366.26 hearing is set for August 31, 2011, our decision is immediately final as to this court. (Cal. Rules of Court, rule 8.490(b)(3).)
Bruiniers, J. We concur: Jones, P. J. Needham, J.