Opinion
D072303
09-01-2017
H.J., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.
Dependency Legal Services of San Diego, Elizabeth Thornton and Berta Atkinson for Petitioner H.J. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Eliza Molk, Deputy County Counsel for Real Party in Interest San Diego County Health and Human Services Agency.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Diego County Super. Ct. No. EJ3994) PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section 366.26 hearing. Gary M. Bubis, Judge. Petition denied. Dependency Legal Services of San Diego, Elizabeth Thornton and Berta Atkinson for Petitioner H.J. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Eliza Molk, Deputy County Counsel for Real Party in Interest San Diego County Health and Human Services Agency.
H.J. seeks review of a juvenile court order setting a hearing under Welfare and Institutions Code section 366.26. He contends the juvenile court erred when it found that active efforts had been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts had proved unsuccessful. (25 U.S.C. § 1912(d); § 361.7, subd. (a).) H.J. also contends the court's finding that reasonable services were offered or provided to him is not supported by substantial evidence. We deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Cameron J. is the three-year-old son of H.J., father, and C.P., mother, (collectively, the family). H.J. and C.P. have a history of domestic violence, including violating criminal protective orders. C.P. has a history of mental health problems and psychiatric hospitalizations.
In February 2014, a month after Cameron's birth, the San Diego County Health and Human Services Agency (Agency) opened a voluntary services case with the parents. In April, C.P. threw a brick through H.J.'s window, which landed two feet away from Cameron's bassinet. She was arrested for that incident and for assaulting an elderly woman at a trolley station. H.J. obtained a five-year restraining order against C.P. and moved back to Arizona.
C.P. joined H.J. in Arizona and there were further reports of domestic violence. The family came to the attention of Arizona child protective services (CPS). In January 2015, CPS recommended that Cameron be placed in protective custody but was unable to locate the family, who had returned to California. CPS referred the matter to the Agency, but no action was taken at that time because the family's whereabouts were unknown.
In December 2015, the Agency received referrals concerning several altercations between the parents. The parents' roommate said police were called to the residence four times in two months because of the parents' fighting. C.P. was usually the aggressor and H.J. was "drinking a lot." On December 12, C.P. was holding Cameron, who was screaming, crying and reaching for H.J. and the roommate. C.P. put Cameron on the bed, rushed at H.J. and hit him in the face. C.P. reported that H.J. hit her in the face while Cameron was on the bed in the same room.
The Agency detained Cameron in protective custody. H.J. informed the social worker he was an enrolled member of the Navajo Nation and Cameron was eligible for membership. The Agency provided notice to the tribe.
The court ordered the Agency to provide reunification services to H.J. as soon as possible and provide liberal supervised visitation. The Agency set up a one-hour supervised visit once a week between H.J. and Cameron, and made referrals to Southern Indian Health Council and New Alternatives visitation center to provide additional visitation services. H.J. was appropriate during his visits with Cameron, who was happy to see his father. H.J. was receiving support services from Southern California American Indian Resource Center (SCAIR).
In February 2016, the juvenile court found that Cameron was at risk of serious harm due to his parents' history of domestic violence and removed him from the custody of his parents under a family reunification plan. H.J.'s case plan required him to obtain a domestic violence assessment and follow all recommendations, participate in general counseling and a parenting education program, and meet with a substance abuse specialist and comply with all recommendations. The court gave the Agency the discretion to lift the requirement for supervised visitation, allow overnight visits, and begin a 60-day trial visit with either parent, with notice to minor's counsel.
In reports prepared for the six-month review hearing, the social worker said H.J. started a domestic violence program in July 2016. H.J. was receiving therapy services through SCAIR. He had a parenting education coach during his visits with Cameron. The parenting coach said H.J. identified his son's developmental needs and had safe, loving and educational visits with his son. H.J. successfully completed a substance abuse treatment program at McAlister Institute.
At the six-month review hearing in August 2016, the court authorized H.J. to have unsupervised visitation in a public setting with Cameron. At a special hearing in September, the court ordered reasonable unsupervised visitation for both parents. At some point not specified in the record, H.J. began having unsupervised overnight visits with Cameron. The Agency was considering placing Cameron in H.J.'s care.
On January 5, 2017, H.J. was arrested after C.P. reported he assaulted her. According to C.P., H.J. came to her home to tell her he was sorry and she tried to push him out of the doorway. He then pushed her and hit her, causing the large bump on the back of her head. H.J. acknowledged he and C.P. had a confrontation. He said he was waiting at the trolley station when C.P. approached him and started kicking him in the left knee. He fell over and scraped his right knee. The area above his left knee was swollen and he had an abrasion on his right knee. H.J. said he had relapsed on alcohol.
The district attorney's office declined to file charges against H.J. On January 27, 2017, C.P. obtained a restraining order from family court and listed Cameron as a protected individual. Because of the family court restraining order, the Agency suspended all visitation between Cameron and H.J. pending further order of the juvenile court.
H.J. entered a sober living facility. He was testing clean and working on maintaining his sobriety. H.J.'s domestic violence provider said H.J. had been doing well up to November 2016, but his attendance decreased considerably since then. He did not take any responsibility for the January domestic violence incident and blamed C.P. for his arrest.
On February 28, 2017, on H.J.'s application, the juvenile court modified the restraining order by removing Cameron as a protected person, and ordered the Agency to provide supervised visitation to H.J. The court began a 12-month review hearing in March, but declared a mistrial because a notice of the hearing was not provided to the Indian tribal representative. The 12-month review hearing was rescheduled for June 1, approximately four weeks before the 18-month hearing date.
In April, C.P. was arrested after she went to H.J.'s school, verbally threatened him, and spread blood on the walls, saying, "I stabbed our baby." (C.P.'s statement was not true.) Later in the month, C.P. was involuntarily hospitalized after threatening to stab strangers with a large fork. In May, a service provider reported that C.P. was "completely manic and delusional."
At the 12-month review hearing, the evidence showed that H.J. had maintained regular contact with the social worker and consistently visited Cameron. He reported he was sober and had returned to his 52-week domestic violence treatment program. H.J. attended 18 group sessions between July 21, 2016, and June 1, 2017. The provider said H.J. showed insight into the effects of domestic violence on his son and was meeting expectations. H.J. did not comply with recommended substance abuse treatment. He left the sober living facility one day and did not return. The director of the program said, "I want to advocate for [H.J.] because he adores his son and that has been his focus, but he needs to do better with communication and his recovery. ... He could use coping and living skills, he needs some support, sober living would definitely help."
The social worker testified H.J. had not completed his case plan. H.J. visited Cameron regularly, without any concerns. H.J.'s last positive test for alcohol use was in January 2017.
The juvenile court found there was not a substantial probability Cameron would be returned to either parent by the 18-month review date and terminated family reunification services. The court acknowledged H.J. had made a good faith effort with services and encouraged the tribe to provide additional services to him. The court found, by clear and convincing evidence, that active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and those efforts were unsuccessful (active efforts finding). The court found that reasonable services were offered or provided to the family to facilitate the safe return of the child to his home (reasonable services finding).
H.J. petitioned for review of the juvenile court's order under California Rules of Court, rule 8.452. He requests that this court reverse the order setting a section 366.26 hearing. This court issued an order to show cause, the Agency responded and the parties waived oral argument. This court denied H.J.'s motion to stay the section 366.26 hearing.
DISCUSSION
H.J. contends the juvenile court erred in finding that active efforts had been made and that these efforts had proved unsuccessful. (25 U.S.C. § 1912(d).) He argues reversal of the order terminating reunification services is required because there is not substantial evidence to support a reasonable services finding. (§ 366.21, subd. (f)(1)(A).)
A
Relevant Legal Framework
1. Active Efforts
Congress enacted the Indian Child Welfare Act (ICWA) in 1978 "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.) ICWA provides that any party seeking foster care placement or termination of parental rights of an Indian child must first 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); § 361.7.)
Federal regulations (25 C.F.R. § 23.2 (2016)) define 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 or parents or Indian custodian 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 [t]ribe and should be conducted in partnership with the Indian child and the Indian child's parents, extended family members, Indian custodians, and [t]ribe. Active efforts are to be tailored to the facts and circumstances of the case and may include, for example:
(1) Conducting a comprehensive assessment of the circumstances of the Indian child's family, with a focus on safe reunification as the most desirable goal;
(2) Identifying appropriate services and helping the parents to overcome barriers, including actively assisting the parents in obtaining such services;
(3) Identifying, notifying, and inviting representatives of the Indian child's [t]ribe to participate in providing support and services to the Indian child's family and in family team meetings, permanency planning, and resolution of placement issues;
(4) Conducting or causing to be conducted a diligent search for the Indian child's extended family members, and contacting and consulting with extended family members to provide family structure and support for the Indian child and the Indian child's parents;
(5) Offering and employing all available and culturally appropriate family preservation strategies and facilitating the use of remedial and rehabilitative services provided by the child's [t]ribe;
(6) Taking steps to keep siblings together whenever possible;
(7) Supporting regular visits with parents or Indian custodians in the most natural setting possible as well as trial home visits of the Indian child during any period of removal, consistent with the need to ensure the health, safety, and welfare of the child;
(8) Identifying community resources including housing, financial, transportation, mental health, substance abuse, and peer support services and actively assisting the Indian child's parents or, when appropriate, the child's family, in utilizing and accessing those resources;
(9) Monitoring progress and participation in services;
(10) Considering alternative ways to address the needs of the Indian child's parents and, where appropriate, the family, if the optimum services do not exist or are not available;
(11) Providing post-reunification services and monitoring."
California statutory law provides, "[w]hat 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).)
If a state or federal law provides a higher level of protection to the rights to the parent of an Indian child, the higher standard shall prevail. (25 U.S.C. § 1921; § 224, subd. (d) [applying higher standard of protection to the rights of the child's Indian tribe as well as to the parent].) 2. Reasonable Efforts
The juvenile court is required to determine whether reasonable services were offered or provided to facilitate the safe return of the child to his or her home. (§§ 361.5, subd. (a), 366.21, subd. (f)(1)(A); 42 U.S.C. § 629a(a)(7)(A).) To support a reasonable services finding, "the record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult." (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) Visitation is an essential component of a reunification plan. (In re Mark L. (2001) 94 Cal.App.4th 573, 580.)
The "adequacy of reunification plans and the reasonableness of the [Agency's] efforts are judged according to the circumstances of each case." (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.) "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." (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
B
Standard of Review
It is well established that an appellate court reviews the juvenile court's reasonable services finding for substantial evidence. (Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1346; In re Julie M. (1999) 69 Cal.App.4th 41, 46; Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 625-626; In re Christina L. (1992) 3 Cal.App.4th 404, 414.) Under the substantial evidence standard, we review the evidence most favorably to the prevailing party and indulge in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R., supra, 2 Cal.App.4th at p. 545.)
The parties disagree on the standard of review for a finding of active efforts. The Agency contends the appellate courts review a finding of active efforts for substantial evidence. (In re A.A. (2008) 167 Cal.App.4th 1292, 1319; In re Michael G. (1998) 63 Cal.App.4th 700, 708, 715-716.) In arguing the appropriate standard is a mixed question of law and fact, H.J. relies on In re K.B. (2009) 173 Cal.App.4th 1275, 1286 (K.B.). In K.B., a division of this court stated "[w]hether active efforts were made is a mixed question of law and fact. [Citation.] We can determine what services were provided by reference to the record. Whether those services constituted 'active efforts' within the meaning of section 361.7 is a question of law which we decide independently." (Ibid.)
This court, without directly addressing the issue, has subsequently applied both the mixed standard of review and the substantial evidence standard of review in determining whether active efforts were made. (In re A.L. (2015) 243 Cal.App.4th 628, 638-639 [applying a mixed question of law and fact]; In re A.C. (2015) 239 Cal.App.4th 641, 656-657 (A.C.) [applying substantial evidence standard of review].)
In C.F. v. Superior Court (2014) 230 Cal.App.4th 227, 238-239 (C.F.), the reviewing court addressed the inconsistent standards among appellate courts for reviewing an active efforts finding. The C.F. court saw no basis to depart from the substantial evidence rule. (Ibid.) We agree with C.F. Without discussion, K.B., departed from the substantial evidence standard of review adopted by this court in 1998 (Michael G., supra, 63 Cal.App.4th at pp. 708, 715-716), and instead "relied on Alaska law to conclude that whether active efforts had been made was a mixed question of law and fact that should be decided independently" (C.F., supra, 230 Cal.App.4th at p. 239). We believe the better approach, consistent with established case law, is to apply the substantial evidence standard of review to determine whether the court erred in finding that active efforts had been made to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.
C
There Is Substantial Evidence to Support the Court's Findings
H.J. contends the Agency did not make active efforts to provide meaningful visitation services to him, thus unreasonably foreclosing family reunification. He argues he did not receive any visitation for a month, and his visits were then limited to one 90-minute visit per week until the 12-month review hearing. H.J. complains that the Agency, instead of taking affirmative steps to resolve a family court order prohibiting him from having any contact with his son, passively waited for a month before taking any steps to provide visitation. He also asserts the Agency was required to, but did not, file a section 388 petition to change the court's order for unsupervised visitation to supervised visitation.
In focusing his argument on visitation, H.J. implicitly acknowledges active efforts were made in other areas. The record shows that the Agency conducted a comprehensive assessment of the circumstances of the family, with a focus on safe reunification as the most desirable goal. It identified appropriate services and actively assisted him in obtaining such services. Tribal representatives were identified, notified and invited to participate in providing support and services. The Agency conducted a diligent search for family members, made referrals to facilitate the use of tribal remedial and rehabilitative services, and identified community resources for relevant services. The Agency monitored H.J.'s progress and participation in services. (25 C.F.R. § 23.2.) The record also shows the Agency utilized the available resources of Indian social service agencies and individual Indian caregiver service providers. (§ 361.7, subd. (b).) The record shows the Agency continued to do more than merely offer a paper plan to H.J. and wait for him to do something. (In re A.C., supra, 239 Cal.App.4th at p. 657.)
For visitation, federal regulations provide that active efforts include "[s]upporting regular visits with parents or Indian custodians in the most natural setting possible as well as trial home visits of the Indian child during any period of removal, consistent with the need to ensure the health, safety, and welfare of the child. (25 C.F.R. § 23.2(7).) Under state law, visitation must be as frequent as possible, consistent with the well-being of the child. "No visitation order shall jeopardize the safety of the child." (§ 362.1, subd. (a)(1).) H.J. implicitly acknowledges the visitation services he received from January 2016 to January 2017 met these standards.
In January 2017, H.J. and C.P. were involved in a violent altercation in which they both sustained injuries. H.J. acknowledged he had relapsed on alcohol. He was no longer regularly attending a domestic violence treatment program. In February, H.J. entered a sober living facility. At some point not specified in the record, H.J. left the facility and did not return, despite his need for continued support to maintain his sobriety.
Although the confusion caused by the family court restraining order was unfortunate, and the Agency should have filed a section 388 petition to modify the prior visitation order for unsupervised visits, there is substantial evidence to support the finding the Agency made active efforts to provide regular visitation, consistent with the need to ensure Cameron's health, safety, and welfare. (25 C.F.R. § 23.2(7).) Similarly, there is substantial evidence to support the finding the Agency provided reasonable visitation services, consistent with the well-being of the child. (§ 362.1, subd. (a).)
After a petition has been filed to declare a child a dependent of the juvenile court and until the time the petition is dismissed or dependency is terminated, the juvenile court has exclusive jurisdiction to issue ex parte orders related to domestic violence. (§ 213.5, subd. (a).)
On the initial reports and admissions of domestic violence and substance abuse, no court would have ordered the Agency to continue to provide unsupervised, overnight visitation between a parent and a three-year-old child. (§ 362.1, subd. (a).) H.J.'s assertion the Agency passively sat on its hands for a month is not supported by the record. The Agency filed a report on February 14, 2017, approximately two weeks after the family court restraining order was issued advising the juvenile court of the restraining order and asking the court to rule on H.J.'s visitation. A hearing was held on February 21, in which the Agency said it was in favor of providing supervised visitation to H.J. C.P. said she was willing to return to family court and have Cameron removed from the restraining order. The Agency and H.J. did not object to the plan. When C.P. did not handle the matter as promised, the juvenile court entered an order for supervised visitation on February 28.
H.J. contends the Agency did not make active efforts because it did not promote unsupervised visitation in view of the uniformly positive reports of his interactions with Cameron. The record shows H.J. was not participating in recommended substance abuse treatment. He did not substantially comply with a 52-week domestic violence treatment program. There is substantial evidence in the record to support the conclusion that unsupervised visitation would not ensure Cameron's health, safety and welfare. (25 C.F.R. § 23.2(7).) The fact the Agency assessed H.J.'s circumstances as presenting more of a risk to Cameron than H.J. believed it did does not mean the Agency failed to make active efforts to provide regular visitation.
The record also shows, and H.J. does not contend otherwise, that H.J. received services from both Indian and non-Indian providers, and those services were commensurate with the family reunification plan developed by the Agency. We conclude there is substantial evidence to support the findings that active efforts were made to provide services and programs to prevent the breakup of the Indian family (25 U.S.C. § 1912(d); § 361.7), and that reasonable services were offered or provided to facilitate the safe return of the child to his home. (§§ 361.5, subd. (a), 366.21, subd. (f)(1)(A); 42 U.S.C. § 629a(a)(7)(A).)
DISPOSITION
The petition is denied.
MCCONNELL, P. J. WE CONCUR: HUFFMAN, J. IRION, J.