In re A.C., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. MICHAEL C., Defendant and Appellant.
No. D066943
Fourth Dist., Div. One.
Aug. 17, 2015.
239 Cal.App.4th 641
[CERTIFIED FOR PARTIAL PUBLICATION*]
Joanne D. Willis Newton, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
Opinion
HUFFMAN, J.—Michael C. (Father) appeals a juvenile court judgment terminating his parental rights to his minor daughter A.C. (the child), and selecting adoption as her permanent plan. (
Father also seeks review, by way of designating his appeal to be a writ proceeding, of certain of the juvenile court’s earlier orders from the 12-month
Accordingly, Father now asks this court to consider whether the 12-month referral hearing orders are still reviewable because they failed to meet the standards of the
We shall determine that there was no adequate showing in support of Father’s claims of ineffective assistance of counsel, and further, he has forfeited the substantive arguments he now raises about the orders made at the 12-month review hearing. Even if we were to consider those claims on a writ basis, we would find them meritless, as we will explain (pt. I, post).
Turning to Father’s current challenges to the judgment that terminated his parental rights and selected adoption as the permanent plan for the child, we do not find any prejudicial error or abuse of discretion occurred. The judgment is supported by substantial evidence, and we affirm. (See fn. 1, post.)
FACTUAL AND PROCEDURAL BACKGROUND
In a previous appeal of the juvenile court’s jurisdictional orders under
A. Jurisdiction and Disposition
As set forth in our prior opinion, the child was born in 2005 and was the subject of an earlier dependency proceeding when she was two years old. She
Additional reports of the parents’ domestic violence and drug use were made to the Agency in 2010 and 2011, resulting in more investigations. In May 2011, Father obtained a restraining order against Mother, who had suffered a psychotic episode.
In November 2011, police were called to the home when Mother threatened to kill Father. She was arrested and incarcerated, and Father obtained a criminal protective order against Mother that precluded her from seeing the child or Father. The expiration date of the protective order was November 2014. The Agency closed the investigation based on the issuance of the protective order and Father’s agreement to protect the child from Mother. Additional referrals were made to the Agency in April through October 2012 that the child was displaying inappropriate sexual behavior at school, and she said Father hit her and Mother was at their home with a shotgun.
In November 2012, the Agency filed a petition in the juvenile court under
During the child’s intake interview at school in November 2012, she acted inappropriately and gave alarming answers to the social worker’s questions. For example, she told the social worker that a demon had made her watch pornographic images on the computer and said that the demon was going to make her kill her parents and herself. She told the interviewer that Father told
When the social worker interviewed Father, he gave conflicting statements about the child’s absence from school, and what he, Mother and the child had been doing. Father declined to drug test. At some point, Father had obtained dismissal of one or more of the protective orders preventing Mother from contacting him or the child.
The child was detained in out-of-home care pending the next hearing and a psychological evaluation was ordered. Father was granted liberal supervised visits and Mother was to have reasonable supervised visits. A court-appointed special advocate (CASA) volunteer was appointed in November 2012. The court found that ICWA applied and ordered the Agency to provide notice to Fathеr’s tribe, the Chickasaw Nation (the tribe), which was permitted to intervene. The tribe’s representative, Regena Frye, provided a declaration stating that the child was a member (7/256 Indian heritage), as was Father, and the tribe agreed with her out-of-home placement.
The December 2012 report of the child’s psychologist’s evaluation included accounts of her erratic behavior and statements (“I’m a werewolf” or vampire) that the evaluator observed and that were described by others. The child had been diagnosed with hyperactivity (attention deficit hyperactivity disorder; ADHD) and was taking medication for it, and more serious mental illness was a possibility. In January 2013, the Agency amended the petition to add an allegation under
At the contested jurisdictional hearing in March 2013, Father testified that the child had been in therapy since she was three years old to address Mother’s absence from her life. Father agreed that he should not allow Mother to see the child until a court determined that Mother could do so. Testimony from the Agency’s social worker, the ICWA tribal representative Frye, and the evaluating psychologist was taken. The court made findings declaring the child to be a dependent child, removing her from Father’s care, placing her in foster care and finding detriment to place her with Mother. In August 2013, the court found beyond a reasonable doubt that, based on Fryе’s declaration and trial testimony, continued care of the child by her parents was likely to result in serious emotional or physical damage and that there was good cause to depart from the placement preferences set forth in the ICWA. The court also found by clear and convincing evidence that active efforts had been made to provide remedial services and rehabilitative programs to prevent the breakup of an Indian family, but that those efforts had
Our prior opinion found no error in the jurisdictional orders. We rejected Father’s challenges to the sufficiency of the evidence to support the court’s dispositional order (mainly, whether there were reasonable alternatives to removal). We noted that the child had been exposed to domestic violence between her parents, and thе evidence was sufficient to support the court’s finding that there were no reasonable means to protect her without removing her from Father’s custody.
Our prior opinion next rejected Father’s second assertion, which claimed there was no substantial evidence in support of the court’s finding that the Agency had made “active efforts” to prevent the breakup of his Indian family. (See pt. IC.2, post, on similar issue.)
B. Six-month Review Hearing
In June 2013, the child had been placed with an nonrelative extended family member (NREFM), who is Native American (the caregiver) and who lives in Oceanside. The child was doing well and enjoyed visiting with Father, who lived in Clairemont. He was in individual counseling (with Dr. Matthews), working on his issues of impulse control, bad judgment, and anger management. He was learning to accept responsibility for setting poor boundaries and enabling Mother, and for putting the child in danger.
The tribe offered the child and her caregiver services, and notified the Agency that in its view, the Agency was fulfilling ICWA requirements by placing her in a Native American home.
Through August 2013, Father had unsupervised visits with the child. In September 2013, the child told the caregiver that Father took her to his house during a weekend visit, when Mother was there, but he told her not to tell anyone. The child was having “meltdowns” at school and her teacher thought she was under stress, possibly because Father was telling her too much about his problems. Dr. Matthews saw Father briefly in mid-October, when he made
At the six-month reviеw hearing in October 2013, the court found the Agency had made active efforts, as defined in ICWA, to prevent the breakup of the Indian family, but those efforts had not been successful. The court continued Father’s reunification services. He agreed to have a psychological evaluation, which was conducted in December 2013. The examiner, Dr. O’Meara, agreed Father loved the child, but questioned whether Father’s fair-to-poor judgment and minimal motivation to participate in services would hinder successful reunification. Dr. O’Meara believed that Father would require six to nine more months of therapy for anxiety and depression, to improve his functioning.
Beginning in November 2013, Father notified the social worker that he did not want to carry out visitation with the child at the place that the Agency had arranged, the north central visitation center. He felt that the child should not be exposed to the center’s environment, or to that of a facility like Polinsky. Father had one visit with the child on December 15, which his sister supervised. He lived with his sister off and on.
On January 13, 2014, the caregiver returned a call from Father, but when Mother answered the telephone, the caregiver hung up. When Father spoke to the social worker on January 16, 2014, he told her that it was very difficult for him to visit because of distance, transportation, and his work schedule. The social worker offered him visits at another facility (Levant), or recommended that he go to Oceanside where the child was placed. He missed several visits during the period between February and April 2014, which upsеt the child.
C. Termination of Reunification Services at 12-month Review and Referral Hearing; Writ Request and Appellate Dismissal
The 12-month review hearing had been set in August 2013 but was continued until April 2014. In the status review report of November 7, 2013, the Agency recommended terminating reunification services. The social worker, Ms. Keeling, described the difficulties that the Agency had in arranging Father’s visitation with the child, once supervised visitation was required as of October 2013. He did not want to have the child go to visitation centers. The Agency gave him bus passes but it had canceled about five visits.
While the 12-month review hearing was still pending in January 2014, Father brought a motion requesting that these proceedings be transferred to
At the April 2014 hearing, the court received Agency addendum reports dated December 17, 2013, and January 22 and April 11, 2014, as well as previous reports and the CASA’s report dated November 7, 2013. Although the court had a telephone call made to the tribe’s representative, there was no answer, and the court stated there was not much more the court could do about that. Father testified he visited the child regularly at the Levant facility, on Tuesdays, and he telephoned her almost every day. He said he took parenting classes on his own initiative and would do so again, but the Agency had only offered him therapy. Father testified that he understood the child could not have contact with Mother, as it was bad for the child’s mental health.
At the end of thе 12-month hearing, the court made findings by clear and convincing evidence that the Agency had made active efforts to provide Father with remedial services and rehabilitative programs, reasonably designed to prevent the breakup of the Indian family. However, Father did not make substantive progress with the provisions of his case plan, the services were not successful, and they were terminated. The court found “beyond a reasonable doubt” that it would create a substantial risk of detriment to the child’s physical and emotional well-being to return her to Father’s custody. Placement was continued with the caregiver. The court referred the matter to a section 366.26 selection and implementation hearing.
At the close of the hearing, the court requеsted that Father’s counsel advise him of his writ rights to challenge the findings. Father, through his attorney of record at the time (Dependency Legal Group of San Diego, conflict parent office), filed a notice of intent to file a writ petition on April 17, 2014.
The case was transferred to the Dependency Legal Group’s writ and research office, as shown by an association of counsel for the writ proceeding, filed on May 14. Attorney Amanda Gonzales of that office subsequently served a letter on all parties notifying them that she had reviewed the record and transcript of these proceedings and consulted with trial counsel, had not found any arguably meritorious issues, and thus she would not be filing a writ petition on Father’s behalf. She mailed Father a blank form with instructions, “Petitiоn for Extraordinary Writ” (Judicial Council form JV-825), so he could proceed in propria persona if desired. The record does not indicate that he did so.
This court dismissed the notice of intent to file a writ petition, based on counsel’s representations, on May 23, 2014. (In re A.C. (May 23, 2014, D065793), app. dism.)
For the section 366.26 hearing held on October 22, 2014, the court received, without objection, the Agency’s Adoption Assessment dated August 7, 2014 (
The social worker reviewed the files which showed the child continued to have difficulties with impulsivity and the caregiver and psychiatrist were trying to stabilize her ADHD medication. Her medical condition was being monitored weekly, due to changes in her medication regime. The child told the authoring social worker that she wanted to remain in the caregiver’s home, calling her “Mom.” After some preliminary adjustment difficulties, the child had developed close relationships with other foster children who had come to the caregiver’s home. The Agency referred the family to a special treatment program.
The Adoption Assessment found the child was adoptable due to her good health, sociability, рersonality, and on-target developmental characteristics. She wanted to be adopted, and her caregiver was willing to participate in the home study process. Other such approved adoptive families in San Diego were known to be willing to adopt a child with like characteristics. The Adoption Assessment concluded that it would not be detrimental to terminate parental rights.
The court also received into evidence a CASA report dated August 7, 2014, stating that the child (almost nine years old at the time) had expressed a preference to her for remaining with her caregiver, rather than returning home to Father. The CASA believed that the Agency had continued to provide transportation tokens to Father, but he nevertheless did not visit the child whеre she lived. Overall, the child had made marked improvements in her behavior and demeanor since the time the CASA worker met her at Polinsky (around Nov. 2012). According to the CASA worker, the child had received consistent parenting from her caregiver. The court also received the October 22 declaration of the tribe’s ICWA social worker, Andrea Richards, supporting the current plan.
An October 22, 2014 addendum report described an October 2 voicemail that Father left for the social worker, which was the second time he had
At the permanency planning hearing, the court noted that substantial compliance with notice requirements to Mother had been made, and she had not appeared in the proceedings since 2013. The court heard Richards’s telephonic testimony about her background and review of the child’s records. Father testified that he spoke to the child every day on the phone, and said that he had been able to manage her ADHD medication when he was in charge, and he did not believe that the Agency and the caregiver were able to do so properly. He was not sure whether the Agency had tried to give him bus tokens, and he was not sure how to get tо Oceanside.
The court ruled that by clear and convincing evidence, the Agency showed it had made active efforts to provide Father with those remedial services and rehabilitative programs designed to prevent breakup of an Indian family, but such efforts were unsuccessful. Based on the testimony and declaration of Richards and other evidence, the court found beyond a reasonable doubt that it would be detrimental to award custody of the child to Father, as it would likely result in serious emotional or physical damage to her. The court further found it was likely that the child would be adopted if all parental rights were terminated.
In addition, the court ruled that the exception found in
DISCUSSION
Before we reach the merits of Father’s challenges to the judgment terminating parental rights and ordering adoption as the child’s permanent plan, we address the validity of Father’s contentions that the juvenile court wrongfully terminated his reunification services at the 12-month review hearing, and acted without sufficient evidentiary support. This will require consideration of Father’s claims that he received ineffective assistance of counsel in thаt respect, and further, that these reunification issues are now reviewable because the juvenile court failed to advise him personally of his appeal and
We then turn to his substantive challenges to the judgment that terminated his parental rights and selected adoption as the child’s permanent plan.
I
12-MONTH REVIEW HEARING ORDERS
A. Introduction; Substantive Claims
After Father filed his request for review of the 12-month review hearing orders that terminated his reunification services, his appointed attorney reviewed the file but found no meritorious issues. She notified this court that no writ petition would be filed pursuant to
As a substitute or renewal of that avenue of review, Father contends that we should treat his appeal as a writ petition and examine the merits of the decision to terminate his reunification services and set a permanency planning hearing. (
As the first claimed violation of the evidentiary standards of ICWA, Father cites to
As the second claimed violation of ICWA, Father cites to
B. Cognizability of Current Request for Treatment as Writ Proceeding; Forfeiture
Before discussing any details of the claimed shortcomings of the 12-month review hearing orders under the evidentiary standards of ICWA, we examine the bases for Father’s claim that he has not forfeited such claims at this stage of the process. “The forfeiture doctrine has been applied in dependency proceedings in a wide variety of contexts, including cases involving failures to obtain various statutorily required reports [citation]; failure to object to the adequacy of an adoption assessment [citations]; failure to request an alternative placement [citation]; and failure to requirе expert testimony and to make the required findings using the beyond-a-reasonable-doubt standard as mandated by ICWA [citation].” (In re G.C. (2013) 216 Cal.App.4th 1391, 1398-1399 [157 Cal.Rptr.3d 826]; but see Jennifer T. v. Superior Court (2007) 159 Cal.App.4th 254 [71 Cal.Rptr.3d 293] [purported appeal of order terminating reunification services and setting permanency plan hearing treated as petition for writ of mandate].)
If the courts nevertheless consider an argument that could have been deemed forfeited, a harmless error standard will apply if the claimed violation was not one involving the fundamental jurisdiction of the court to act, but was statutory in nature. (In re Riva M. (1991) 235 Cal.App.3d 403, 412 [286 Cal.Rptr. 592]; see In re S.B. (2005) 130 Cal.App.4th 1148, 1162 [30 Cal.Rptr.3d 726] [“any failure to comply with a higher state standard, above and beyond what the ICWA itself requires, must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error”].)
Father next argues that his appointed appellate counsel’s activities in reviewing the file, but deciding not to pursue a writ petition, amounted to ineffective representation that fell below an objective standard of reasonableness. (People v. Weaver (2001) 26 Cal.4th 876, 925 [111 Cal.Rptr.2d 2, 29 P.3d 103].) Further, he attempts to show there was a reasonable probability that absent counsel’s deficiencies, the result would have been different. (Id.) In that light, we could conclude that Father, through counsel, was afforded an adequate opportunity to obtain review of the 12-month referral orders, even though he disagrees with the result. However, giving due weight to his contentions that he received only ineffective assistance, we look to the merits of the claimed errors.
C. Nature of Claims; Harmless Error
1. ICWA Detriment
Father claims the “ICWA detriment” finding at the 12-month review hearing was made without required expert evidence support. (See
In his reply brief, Father cites to the Bureau of Indian Affairs, Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, 80 Federal Register 10146-10159 (Feb. 25, 2015) (BIA Guidelines) now providing that “these guidelines should be applied in all proceedings and stages of a proceeding in which the Act is or becomes applicable.” (Id. at p. 10150, § A.l.)
As of the March 2013 dispositional hearing, the tribe’s representative agreed that removal from Father’s custody was then in the child’s best interests. Since June 2013, the child had been placed with the current caregiver, in an ICWA approved home, with the approval of the tribe. The Agency thus showed its support for efforts to retain the child’s tribal ties and cultural heritage. (See In re Desiree F. (2000) 83 Cal.App.4th 460, 469 [99 Cal.Rptr.2d 688].) As of January 2014, when Father’s motion requested that the proceedings be transferred to tribal court, the tribe declined to accept the transfer.
In March 2014, the tribe’s ICWA social worker Richards was assigned to the case, and the recommendations did not change. At the April 2014 review hearing, the court noted that an attempt had been made to obtain information from the tribal representative by telephone, but only a recording responded and there was not much else the court could do at that point. The court stated that there had been delay in getting to the 12-month review hearing because the request to transfer to tribal court had to be resolved, and it was denied in March 2014.
In In re K.B., supra, 173 Cal.App.4th 1275, 1285, footnote 11, it was found not significant that a dispositional order was made without the benefit of “testimony ‘of a qualified expert witness, as defined in Section 224.6, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child,’ as required by section 361.7, subdivision (c).” In that case, since there was expert opinion evidence at the section 366.26 hеaring that return of custody to the parents would cause danger of serious harm to the children, and since the dispositional order had been supported by a finding of “substantial risk” to the children from return to parental custody, the appellate court said, “If the expert witness had testified at the disposition hearing, there is no reason to
Here too, even without expert witness testimony at the 12-month review hearing on an ICWA detriment finding, the record was adequate to support an implied finding of detriment to return, under аny standard. (
2. Sufficiency of “Active Reunification Efforts”
As the second claimed violation of ICWA at the 12-month review hearing, Father contends that the finding that “active reunification services” had been provided was defective under current ICWA standards. He cites to
In a footnote in our рrior opinion, we declined to address whether “the ‘active efforts’ requirement found in the [ICWA] and related state law is equivalent to the ‘reasonable efforts’ requirement applicable in non-ICWA juvenile dependency proceedings.” We said, “Even if there is a difference between the two standards, we conclude that the evidence presented in this case constitutes substantial evidence under both.” (See In re Michael G. (1998) 63 Cal.App.4th 700, 712, 715-716 [74 Cal.Rptr.2d 642] [substantial evidence standard used on appeal to evaluate the court’s findings of active efforts].)
Father now seems to argue that during the postjurisdictional phase of the proceedings, the Agency continued to fail to provide active reunification efforts directed toward him or toward Mother. The Agency had essentially lost contact with Mother after the initial investigation for the jurisdictional hearing. Mother was hospitalized at times for her mental illness, and by 2014, her attorney was relieved from representing her because of lost contact. Taken together, Father argues that these facts about the family showed he was struggling with anxiety and depression and was having difficulty in carrying out visitation between San Diego and Oceanside, and thus the situation required greater efforts and outreach by the Agency.
Even in light of the new guidelines information, the general principle still applies, that “[t]he adequacy of reunification plans and the reasonableness of [the Agency’s] efforts are judged according to the circumstances of each case.” (Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1345 [83 Cal.Rptr.3d 229].) The Agency “must make a good faith effort to develop and implement a family reunification plan. [Citation.] ‘[T]he 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 ....’” (Ibid.)
After taking jurisdiction, the Agency continued to do more than merely offer a paper plan to Father and wait for him to do something. It encouraged Father to continue to see a therapist at the San Diego American Indian Health Center, and offered drug testing and referrals to counseling, substancе abuse treatment, parenting classes and domestic violence services. The Agency attempted to accommodate Father’s preferences for where the visitation with the child should take place, although there were logistical difficulties on both sides. The Agency offered Father transportation tokens to Oceanside, but he still did not participate in visits.
When tribal representative Richards was appointed to the case in March 2014, the file indicated that ICWA requirements were being met through the placement in the caregiver’s home. The tribe consistently gave the court its opinion that continued custody by Father was likely to result in serious emotional or physical damage to the child, and termination of both parents’ rights was recommеnded, with adoption as the child’s permanent plan. By October 2014, the tribe acknowledged that active reunification
Even under a heightened standard for active reunification efforts, the evidence presented substantially supported the court’s 12-month review ruling terminating services. Under all the circumstances, Father cannot demonstrate material deficiencies in the reunification efforts directed toward him, or to Mother, nor that there was any undue prejudice resulting from the Agency’s actions. We therefore need not make a determination on whether appellate counsel’s performance was deficient in declining to file a writ to challenge the reunification efforts after the 12-month referral hearing. (People v. Sapp (2003) 31 Cal.4th 240, 263 [2 Cal.Rptr.3d 554, 73 P.3d 433].)
II
ISSUES ON TERMINATION OF PARENTAL RIGHTS AND PERMANENT PLAN OF ADOPTION*
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DISPOSITION
The judgment and orders are affirmed.
McConnell, P. J., and Benke, J., concurred.
*See footnote, ante, page 641.