In re Lisa T.
In re Lisa T.
Filed 8/20/08 In re Lisa T. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
In re LISA T. et al., Persons Coming Under the Juvenile Court Law. | |
SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Plaintiff and Respondent,
v.
LISA T.,
Defendant and Appellant. |
C056943
(Super. Ct. Nos. JD223887, JD223888, JD223889) |
Appellant, the mother of the minors, appeals following a 12-month review hearing at which the minors were ordered into out-of-home placement with a goal of guardianship for two of the minors and emancipation for the third minor. (Welf. & Inst. Code,[1] 395.) Appellant contends she was not provided reasonable reunification services. She also claims that there was insufficient inquiry regarding Indian heritage under the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) as to the father of one of the minors. Finally, appellant maintains the juvenile court erred by failing to order visitation. Concluding appellant is grasping at straws and none of these claims is meritorious, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2006, juvenile dependency proceedings were initiated concerning the minors - Lisa T. (age 7), Dominique T. (age 9), and Crystal T. (age 14) - based on domestic violence in the home between appellant and L.T. (the father of the two younger minors) as well as other allegations that were later dismissed. In September 2006, the domestic violence allegations as contained in an amended petition were sustained after a contested jurisdictional hearing. Appellant was ordered to refrain from the use of alcohol and controlled substances and was granted reunification services.
According to the six-month review report, another domestic violence incident occurred between appellant and L.T. in early September. Later that month, appellant gave birth to another child.[2] Meanwhile, in July 2006, appellants therapist reported that, based on appellants resistance to services and denial of issues, he believed she was not amenable to services. He recommended that appellant undergo a thorough psychiatric evaluation by a board certified psychiatrist for psychotropic medi[c]ation for likelihood of mood disturbance. In October 2006, the case plan was updated to include this requirement.
According to the social workers review report in April 2007, appellant entered a safe house in January, where she engaged in an intensive domestic violence program and consistently visited the minors. However, after she graduated from the program, she was arrested on an outstanding warrant and did not engage in individual counseling as recommended by the program after her release. Furthermore, appellants visitation with the minors was sporadic except when she was in the program.
According to the social worker, appellant and L.T. had gone to great lengths to hide their continuing relationship from the Department of Health and Human Services (the department). The social worker noted: It is evident when [appellant] is under the influence of the father because she suddenly misses visits with the [minors] without calling to cancel[,] she no-shows for scheduled appointments that she requested with the [social worker,] she does not return her phone messages[,] she disengages from services[,] and she gives far-fetched excuses, or is nondescript in telling why she has been missing and out of contact. This behavior is exactly the opposite of what [appellant] displayed during the weeks she was out of contact with the father. The social worker recommended that reunification services be terminated and that the juvenile court order long-term placement for the minors, with guardianship the goal for Lisa T. and Dominique T. and emancipation the goal for Crystal T.
The matters were set for a contested review hearing, and appellant filed a pretrial statement, in which she contested the reasonableness of services because there was no evidence she had been provided an evaluation for medication. The social worker filed an addendum reporting that, in December 2006, appellant was advised to self-refer to the Adult Access Team, which would provide her a mental health assessment and all mental health services, including medication. Appellant was provided the telephone number for the Adult Access Team and was directed by her therapist and the social worker to contact them. The social worker recalled that appellant mentioned she had access to services through another medical provider and that she would use the referral from the social worker as a backup.[3]
In July 2007, appellant called the social worker, stating she was desperate and depressed and that she wanted a medication evaluation. The social worker attempted to contact appellant by telephone and, when this proved unsuccessful, she went to appellants apartment, where she heard movement inside but no one answered the door. The social worker left her business card on the door and on appellants vehicle. Appellant called the social worker a week later and reported that she was in a safe house and had left the father for good. The social worker again gave appellant the telephone number for Adult Access Team and told her to contact them for an assessment. When the social worker attempted to meet with appellant three days later, appellant had left the safe house without notice. Appellant did not attend a visit a few days later that had been specially arranged and did not contact the social worker.
Neither parent was at the contested review hearing. Appellants attorney argued that providing appellant with a telephone number to set up a medication evaluation did not constitute reasonable services.
The juvenile court concluded that reasonable services had been provided and adopted the recommendations of the social worker for termination of reunification services and out-of-home placement of the minors with a goal of guardianship for Lisa T. and Dominique T. and emancipation for Crystal T.
DISCUSSION
I
Reasonable Services
Appellant argues reunification services were not reasonable because the social workers efforts to refer her for a medication assessment were inadequate. She is mistaken.
The purpose of reunification services is to correct the conditions that led to removal so that the dependent child can be returned home. (In re Joanna Y. (1992) 8 Cal.App.4th 433, 438.) The social worker must make a good faith effort to provide reasonable services responding to the unique needs of each family in spite of the difficulties of doing so or the prospects of success. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777; see In re Kristin W. (1990) 222 Cal.App.3d 234, 254.) [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 . . . . (In re Riva M. (1991) 235 Cal.App.3d 403, 414, italics omitted.)
In evaluating the reasonableness of services, [t]he 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.) In addition, [r]eunification services are voluntary, and cannot be forced on an unwilling or indifferent parent. (In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1220.)
A juvenile courts finding regarding reasonable services is subject to review for substantial evidence. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010.)
Turning to the present matter, appellant acknowledges that the social worker made efforts to refer her for an evaluation for medication, but contends it took the social worker too long to make the referral after the therapist recommended it. Yet appellant did not claim that services had been inadequate at the six-month review hearing, which occurred approximately three months after the therapists report recommending a medication evaluation. Her failure to raise an objection at that juncture forfeited any claim regarding the delay preceding the hearing. (See In re Dakota S. (2000)85 Cal.App.4th 494, 501-502.)
The requirement for a medication evaluation was added to the case plan at the six-month review hearing, and the social worker gave appellant referral information less than two months later. This is not an inordinate period of time, particularly as appellant went in and out of contact with her service providers and the social worker at various times throughout the reunification period depending on the status of her relationship with L.T. Moreover, despite the social workers repeated attempts to refer appellant for the evaluation, appellant never utilized the referral information she was provided. Under these circumstances, the juvenile court was warranted in concluding it was appellants failure to follow through rather than any lack of effort on the part of the social worker that prevented the medication evaluation from being completed.
Appellant also contends it is unclear whether the Adult Access Team had board-certified psychiatrists, as recommended by her therapist. As appellants therapist encouraged her to follow through with the referral to the Adult Access Team, it is reasonable to infer that the referral met his recommendations. In any case, appellant never utilized the referral nor did she contend that her failure to do so was due to the qualifications of the staff therapists there. Thus, her complaints about the reasonableness of services in this regard are specious.
II
ICWA Notice
Appellant claims the ICWA was violated because the record does not establish that inquiry was made of Crystals father regarding his Indian heritage. We reject this claim as well.
The ICWA was enacted to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children in . . . homes which will reflect the unique values of Indian culture . . . . (In re Levi U. (2000) 78 Cal.App.4th 191, 195, citing 25 U.S.C. 1902.) The court and the social services agency have an affirmative and continuing duty to inquire whether a child for whom a petition . . . has been[] filed is or may be an Indian child in all dependency proceedings . . . if the child is at risk of entering foster care or is in foster care. ( 224.3, subd. (a).)
Here, Crystals father never personally appeared in the dependency proceedings. At the detention hearing, the juvenile court ordered the social worker and the attorney for Crystals father to inquire of him regarding any Indian heritage, and he was contacted in another state approximately two months later after being released from prison. The record provides no basis to suspect that the social worker disregarded the courts order to inquire about the fathers Indian heritage at that time, and neither the social worker nor the attorney for Crystals father suggested he had Indian heritage. To the contrary, the social worker subsequently reported the ICWA did not apply. Under these circumstances, we will not assume the social worker failed to make the inquiry ordered by the court and required by law. (In re Gerardo A. (2004) 119 Cal.App.4th 988, 994-995.)
In addition, we agree with other appellate courts that, in the absence of any evidence or an assertion on appeal that inquiry would have produced information triggering a duty to provide ICWA notice, a claim that there has been inadequate ICWA inquiry of a parent amounts to nothing more than trifling with the courts. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431; see In re N.E. (2008) 160 Cal.App.4th 766, 770; In re H.B. (2008) 161 Cal.App.4th 115, 119; but see In re J.N. (2006) 138 Cal.App.4th 450, 460-461 [matter remanded for further inquiry when both parents appeared in court but record reflected inquiry of only one parent].) Parents cannot spring the matter [of alleged inadequate ICWA inquiry] for the first time on appeal without at least showing their hands. Parents unable to reunify with their children have already caused the children serious harm; the rules do not permit them to cause additional unwarranted delay and hardship, without any showing whatsoever that the interests protected by the ICWA are implicated in any way. (In re Rebecca R., at p. 1431.)
For the forgoing reasons, we reject appellants far-fetched claim regarding the adequacy of inquiry under the ICWA.
III
Visitation Order
Appellant contends the juvenile court erred by failing to order visitation when it adopted the social workers recommendation for long-term placement of the minors. We agree with the department that the courts previous visitation order remained in effect.
When guardianship or long-term foster care is selected as the permanent plan at a section 366.26 hearing, the juvenile court is required to order visitation with the parents unless it finds that visitation would be detrimental to the childs physical or emotional well-being. ( 366.26, subd. (c)(4)(C).) Although the juvenile courts long-term placement orders, here, occurred without a section 366.26 hearing (see 366.21, subd. (g)(3) [ 366.26 hearing need not be set if clear and convincing evidence supports child not adoptable and no one willing to accept guardianship]), there is no reasonable basis for restricting parental visitation based on the abbreviated procedural avenue employed by the court.
The department does not contend otherwise, but instead maintains that the juvenile courts previous visitation order remained in effect following the hearing at which appellants reunification services were terminated. The record in this matter contains the juvenile courts standing order, which states that, prior to the termination of dependency jurisdiction, all previous dispositional orders shall remain in full force and effect unless otherwise ordered. At the dispositional hearing, the court ordered regular visitation
. . . consistent with the childrens well[-]being and left it to the department to determine the time, place, manner, frequency, and length of visits, as well as the issue of supervision. We agree with the department that, as dependency jurisdiction was not terminated in this matter, this visitation order remained in effect.
In appellants reply brief, she acknowledges that the order for visitation may have remained unchanged and claims instead that the order was not specific enough to define her visitation rights. She provides no legal authority in support of this argument, and we conclude it is without merit.
In fashioning a visitation order, the court may delegate the responsibility of managing the details of visitation - including time, place, and manner - but not the decision whether visitation will occur. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374.) In In re Moriah T., this court upheld an order entered at an 18-month review hearing for the father to visit regularly with the children consistent with the[ir] well-being . . . and at the discretion of [the social services agency] as to time, place, and manner. (Id. at p. 1371.) Because the juvenile courts order mandated regular visitation, the social services agency was not given absolute discretion to decide whether visits would occur. (Ibid.) We concluded it was not an improper delegation of authority to allow the social services agency to determine the frequency and length of visits when the order provided for regular visitation. (Id. at pp. 1376-1377; but see In re M.R. (2005) 132 Cal.App.4th 269, 274-275; In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.)
The visitation order in the present matter, like the order in In re Moriah T., called for regular visitation consistent with the minors well-being and left details as to time, place and manner, as well as frequency, duration and supervision, to the discretion of the department. Appellant did not seek more specificity or otherwise object to this order at any time during the dependency proceedings, and she continues to have recourse to the juvenile court if she believes her visitation with the minors is being limited improperly. Accordingly, she is not entitled to relief.
DISPOSITION
The juvenile courts orders are affirmed.
ROBIE , J.
We concur:
DAVIS, Acting P.J.
NICHOLSON , J.
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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
[2] This child was later made a dependent of the juvenile court, but is not a subject of this appeal.
[3] Appellant later maintained that the social worker had misunderstood her.
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