In Re Michael G.
OPINION
Appellants Gina L. and Clyde G. appeal from a juvenile court judgment terminating their parental rights and choosing adoption as the
FACTUAL AND PROCEDURAL BACKGROUND
Gina has a long history with child protective services. In addition to Larissa and Michael, she has five other children. The youngest three were declared dependents due to emotional and physical abuse. Gina failed to reunify with them and they were in confidential placement. Gina‘s primary parenting problem is apparently the inability to control her anger. She served prison time fоr child abuse and was on probation when this case began.
Twins Larissa and Michael were born prematurely on August 23, 1994, to Gina and Clyde, a registered Navajo Indian. The children, both of whom had medical problems, were detained and placed in foster care upon their release from the hospital. Dependency petitions were filed on September 6, alleging abuse and neglect of the twins’ half brother, Gina‘s son Rick L. Amended petitions filed on September 30 added allegations that Gina and Clyde engaged in violent confrontations, Clyde drank to excess, and Gina abused her daughter Megan L. and her husband‘s grandson Richard J.2
Department‘s September 1994 report noted Clyde had a history of arrests for public drunkenness and disorderly conduct, and he and Gina had a history of domestic violence. Further, the social worker believed Gina‘s “past violence and continued volatility and immaturity . . . continue to place all her children at risk for abuse and neglect.” On September 24, 1994, Department devised reunification plans for the parents requiring Gina to attend therapy and both parents to attend parent education and domestic violence programs. Clyde was also required to undergo a rehabilitation program and submit to chemical testing. The parents were allowed supervised visitation.
In October 1994 Gina and Clyde submitted on the count alleged in the original petition, and the court dismissed the remaining counts with an agreement it could consider them in rendering a dispositional order. The court declared Michael and Larissa dependents in December 1994 and placed them in confidential foster care. In January 1995 Department devised new reunification plans, deleting the domestic violence and drug treatment and testing components3 and requiring Gina and Clyde to participate in individual and couples therapy and parenting classes. If they showed no improvement in plan compliance in three months, they were to begin chemical testing. The parents were provided with a list of community resource referrals.
According to June and July 1995 reports prepared for the six-month review hearing, Gina had been “very sporadic regarding compliance with her reunification plan.” She threatened the social worker and her therapist. Gina attended therapy irregularly, and her therapist reported she had “deteriorated substantially” in the past months and behaved eratically. The therapist agreed with the family‘s “treatment team” that it “`is in the best interest of all of Gina‘s children that they be placed in permanent foster care.‘”
Gina infrequently visited the twins. When she did visit, her interaction with the children varied from failing to remove them from their strollers or car seats to holding them and changing their diapers. Gina‘s relationship with Clyde was volatile and included fights for which the police were summoned. In December 1994 Gina spent a week in jail for hitting Clyde with a hammer. Gina and Clyde screamed at each other at a May 1995 visit with the children. Gina had not benefited from an anger management class, and the psychologist who conducted it, Dr. Phillip F. Wroblewski, characterized her as “a very disturbed (and disturbing) woman who presented issues that are more appropriate for individual therapy with a therapist who specializes in treating the borderline personality disorder.” Gina began a parenting class in April 1995, but her progress was unknown.
Clyde‘s progress in his reunification plan was “extremely inconsistent.” According to the social workеr, “in many respects, the father‘s behavior is alarming.” Clyde appeared for counseling with alcohol on his breath and once tried to remove Michael from his stroller without unbuckling the strap. He had not attended therapy, visited the children only sporadically and was terminated from an anger management class for excessive absences. When he did attend, his behavior was grossly inappropriate. For instance, Clyde flirted with women and once took off his shirt, baring his chest. Wroblewski
At the time of the July 19, 1995, six-month review hearing, Clyde was incarcerated in San Diego on robbery and other charges. He produced evidence he had attended two 12-step meetings and two parenting classes in custody. The court ordered that Gina‘s visitation would begin when she demonstrated progress with her reunification plan, particularly the therapy component. Clyde‘s visitation would begin when he was released from jail and demonstrated progress in his reunification plan. It set a 12-month review hearing for January 1996 and ordered the parents to comply with modified reunification plans requiring treatment for substance abuse and chemical testing.
On September 6, 1995, the court heard the Navajo Nation‘s request for a transfer of jurisdiction and Department‘s request for a change of placement to the home of the paternal aunt and uncle on the Navajo reservation in Arizona. Gina opposed the motions. The court concluded Gina lacked veto power over the transfer decision, transferred jurisdiction and ordered the children placed with the aunt and uncle.4
Gina appealed, and on March 7, 1996, we reversed the court‘s order insofar as it transferred jurisdiction and suspended Gina‘s visitation. As to the latter issue, we concluded that while the record established Gina‘s “serious personal deficiencies,” it contained insufficient evidence of “the impact of these characteristics on the minors.”5 We remanded for a hearing on the issue and ordered that the children remain in Arizona pending its outcome. (In re Larissa G. (1996) 43 Cal.App.4th 505, 515 [51 Cal.Rptr.2d 16].)
At a special hearing on June 6, 1996, the court was advised that Gina and Clyde were incarcerated in San Bernardino County. It vacated the previous transfer order, resumed dependency jurisdiction, reappointed counsel for the parents and set a 12-month review hearing, which at that point was beyond the 18-month date. The court noted “the issue of visitation is also to be
Department‘s July 1996 report for the 12-month review hearing noted Gina and Clyde were arrested in Barstow on March 20, 1996, and were incarcerated at the West Valley Detention Center in Rancho Cucamonga. Gina was charged with armed robbery, among other things; it is unclear whether Clyde was charged with the same offenses or arrested on a parole violation or outstanding warrants. They continued to maintain a relationship and were expecting another child in October 1996. Gina claimed to have completеd a parenting class in the detention center, but it was unverified. Gina‘s therapist reported she “had been consistent with therapy up until her arrest in [March 1996], was paying out of her own pocket, was making good strides, and had the potential to do good work, although she does not always have the best [judgment].”
Department had no record of Clyde completing a parenting course or attending therapy consistently, and on two occasions he arrived with alcohol on his breath. Clyde did not appear for chemical testing, and there were a number of outstanding warrants for his arrest.
Gina and Clyde appeared in custody at a 12-month review hearing on September 11, 1996. The court found by clear and convincing evidence that reasonable reunification services had been provided and return of the twins to the parents would be detrimental to them. Accordingly, it terminated services and set a hearing under
According to Department‘s December 1996 assessment report, Clyde returned to the Navajo Nation in October 1996. Two visits with Michael and Larissa did not go well. “[T]he children refused to go to [Clyde] at all and . . . Michael `seemed catatonic’ and did not make eye contact with him, while [Larissa] cried continuously. Apparently, during the second visit, Michael eventually allowed himself to be held on [Clyde‘s] knee, though he was not interactive with [Clyde]. [Larissa] remained distraught in the presence of [Clyde] and ran to her foster mother for comfort. . . . Furthermore, the children displayed anxious behavior after the visits.”
A three-day contested selection and implementation hearing began on February 21, 1997. Gina appeared in custody and Clyde appeared by telephone from Arizona. He testified that after his release from jail in late
Jennifer Koch, Department‘s social worker, testified that return of the twins to the parents would cause them serious physical or emotional harm. Lucinda Morris, a social worker with the ICWA program of the Navajo Nation Division of Social Services, testified that Clyde had visited the children on the reservation six times. Larissa rejected him, but Michael allowed himself to be held. After the visits, the children cried and refused to go to sleep in their own beds. Morris believed return of the children to the parents would be “extremely traumatizing.” She understood Clyde had outstanding criminal matters in California and thought he was “unable to make a responsible decision regarding the welfare of the children.” The twins were very close to their foster parents, who had been approved for adoption.
By the close of the hearing on May 20, 1997, Clyde was reportedly incarcerated for a parole violation. The court found by clear and convincing evidence that “[a]ctive efforts have been made to provide remedial servicеs and rehabilitative programs designed to prevent the breakup of the Indian family and these efforts have proved unsuccessful,” and that Michael and Larissa were adoptable and would not benefit from further contact with their parents. It also found beyond a reasonable doubt that the parents’ custody of the children would likely result in serious physical or emotional harm. The court terminated Gina‘s and Clyde‘s parental rights and found adoption was in the twins’ best interests.
On appeal, Gina and Clyde contend the finding required under
DISCUSSION
I
The ICWA
In adopting the ICWA in 1978, Congress declared: “[I]t is the policy of this Nation to protect the best interests of Indian children and to promote the
The United States Supreme Court explained in Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30, 36-37 [109 S.Ct. 1597, 1601-1602, 104 L.Ed.2d 29]: “At the heart of the ICWA are its provisions concerning jurisdiction over Indian child custody proceedings. Section 1911 lays out a dual jurisdictional scheme. . . . [¶] Various other provisions of ICWA Title I set procedural and substantive standards for those child custody proceedings that do take place in state court. . . . The most important substantive requirement imposed on state courts is that of § 1915(a), which, absent `good cause’ to the contrary, mandates that adoptive plaсements be made preferentially with (1) members of the child‘s extended family, (2) other members of the same tribe, or (3) other Indian families. [¶] The ICWA thus, in the words of the House Report accompanying it, `seeks to protect the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining its children in its society.’ [Citation.] It does so by establishing `a Federal policy that, where possible, an Indian child should remain in the Indian community,’ [citation] and by making sure that Indian child welfare determinations are not based on `a white, middle-class standard which, in many cases, forecloses placement with [an] Indian family.’ [Citation.]” (Fns. omitted.)
II
Standard of Proof
(1a) As noted earlier, subdivision (d) of
The insertion of a specific standard of proof in subdivision (f), but not in subdivision (d), of
The legislative history, of which we take judicial notice from K.N. v. State (Alaska 1993) 856 P.2d 468, 476, further belies the argument Congress
(3c) “Statutes must be given a fair and reasonable interpretation, with due regard to the language used and the purpоse sought to be accomplished.” (Home Depot, U.S.A., Inc. v. Contractors’ State License Bd. (1996) 41 Cal.App.4th 1592, 1601 [49 Cal.Rptr.2d 302].) (1d) In promulgating subdivision (d) of
Likewise, the Idaho Supreme Court has held that proof of reasonable rehabilitative efforts and their failure need not be beyond a reasonable doubt. In Matter of Baby Boy Doe (1995) 127 Idaho 452 [902 P.2d 477, 482], the court noted that the word “satisfy” in
Several other state courts have concluded proof beyond a reasonable doubt is required under subdivision (d) of
The federal law is aimed at ensuring the provision of reasonable reunification services by state child protective agencies before parental rights to an Indian child may be terminated. Similarly, a chief objective of California‘s dependency law is the preservation of the family whenever possible. (In re Matthew C. (1993) 6 Cal.4th 386, 391 [24 Cal.Rptr.2d 765, 862 P.2d 765].) “Thus, the [state] legislative scheme allows the ultimate termination of parental rights only after multiple findings of parental unfitness [and] ongoing reunificatiоn efforts[.] [Citations.]” (In re Daniel G. (1994) 25 Cal.App.4th 1205, 1210-1211 [31 Cal.Rptr.2d 75];
III
Insufficiency of Evidence
(4a) Gina and Clyde also challenge the adequacy of Department‘s remedial efforts.10 Speсifically, they assert virtually no services were provided by either Department or the Navajo Nation from the time the court ordered the case transferred to the nation in September 1995 to termination of reunification services in September 1996. Additionally, Gina contends the court erred in failing to hold a hearing regarding her visitation of the children after our remand on the issue. Department concedes services were imperfect but counters that “the parents’ failure to stay out of custody made providing them services that much more difficult and contributed significantly to the overwhelming body of evidence that active efforts and reunification services in this case were not likely to succeed or be productively participated in.”
(5) To satisfy the requirements of subdivision (d) of
(6) While California law does not expressly require “active efforts” to preserve the family, it has been observed: “It is difficult, if not impossible, to exaggerate the importance of reunification in the dependency system. With but few exceptions, whenever a minor is removed from parental custody, the juvenile court is required to provide services to the parent for thе purpose of facilitating reunification of the family. [Citation.] Each reunification plan must be appropriate to the parent‘s circumstances. [Citation.] The plan should be specific and internally consistent, with the overall goal of resumption of a family relationship. [Citation.]” (In re Luke L. (1996) 44 Cal.App.4th 670, 678 [52 Cal.Rptr.2d 53].) “A `mechanical approach’ to a reunification plan is not what the Legislature intended: `[s]uch a plan must be appropriate for each family and be based on the unique facts relating to that family.’ [Citations.] The effort must be made to provide suitable services, in spite of the difficulties of doing so or the prospects of success.” (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777 [8 Cal.Rptr.2d 416].)
(4b) Thus, while the court must make a separate finding under
Gina and Clyde were entitled to child welfare services for a period not to exceed 12 months, unless extended for an additional 6 months upon an adequate showing that the objectives of the service plan could be achieved within the extended time period. (Former
In late June 1996, after the court resumed jurisdiction, Department located Gina and Clyde in jail. Incarcerated parents are entitled to counseling and other services which may be available (
Similarly, during the time jurisdiction was transferred to the nation, it offered neither parent any remedial services. Rather, its sole concern was admittedly placing the twins with a Navajo foster or adoptive family. The nation‘s social workers had no contact with Clyde or Gina throughout the reunification period because they lived in California. Morris, a nation social worker, testified the only reunification services she was aware of were provided by Department.
In sum, the parents received virtually nо services after the July 19, 1995, hearing. Department treated this case as if closed after the transfer of jurisdiction, even though Gina‘s appeal was pending, and the nation was apparently disinterested in the parents reunifying with their children. Neither Gina nor Clyde complained of inadequate services during the reunification period, but normally parents have the assistance of counsel to seek guidance from the juvenile court in formulating a better plan. (See In re Christina L. (1992) 3 Cal.App.4th 404 [4 Cal.Rptr.2d 680].) Here, it appears Gina and Clyde lost their court-appointed trial counsel in San Diego when jurisdiction was transferred, and there is no indication the nation appointed counsel for them. In contrast to the оrdinary case, they had no one to help protect their interests during much of the reunification period.
(7) In reviewing the findings of the trial court made pursuant to the ICWA, we must decide if the record contains supporting evidence which is reasonable, credible and of solid value. “Consequently we `employ the substantial evidence test by which we review the record in a light most favorable to the judgment and must uphold the trial court‘s findings unless it
In light of the parents’ serious problems and dim prospects of reunification, it is particularly tragic that more than three years after Department‘s intervention Larissa and Michael remain without the permanence and stability they deserve. Contrary to Department‘s position, though, the 12-month statutory reunification period is not reduced simply because parents are not expected to comply or succeed. (See In re Dino E., supra, 6 Cal.App.4th at p. 1777.) This predicament underscores the importance of making the findings required by subdivision (d) of
Another question not before us is when the finding under subdivision (d) of
DISPOSITION
The judgment is reversed and the matter remanded to the trial court for further proceedings consistent with the views еxpressed herein.
Kremer, P.J., and Haden, J.,* concurred.