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A.C. v. Super, Ct.

A.C. v. Super, Ct.
12:03:2008



A.C. v. Super, Ct.



Filed 11/17/08 A.C. v. Super, Ct. CA6



NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SIXTH APPELLATE DISTRICT



A.C., et al.,



Petitioners,



v.



THE SUPERIOR COURT OF SANTA CLARA COUNTY,



Respondent,



SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDRENS SERVICES,



Real Party in Interest.



H033433



(Santa Clara County



Super. Ct. No. JD17722)



A.C., a two-year-old child, and her mother R.F. have filed writ petitions seeking review of a juvenile court order terminating reunification services and setting a hearing under Welfare and Institutions Code section 366.26.[1] ( 366.26, subd. (l); Cal. Rules of Court, rules 8.450-8.452.)[2] Both mother and child seek either return of the child to mothers custody or, in the alternative, the continuation of services, contending that there is insufficient evidence to support the finding that reasonable services were provided or offered. They also contend that the Department of Family and Childrens Services (the Department) failed to establish that return of A.C. to her mother would create a substantial risk of detriment to her safety, protection, or physical or emotional wellbeing. They further contend that the juvenile court abused its discretion in reducing mothers visits with the child. Lastly, mother separately contends that the Department failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.). Although we will deny the writ petitions for the reasons stated below, we observe that mother may file a section 388 petition setting forth any change of circumstances or new evidence that may support her request for additional reunification services, including but not limited to a request for a second psychological evaluation, prior to the section 366.26 hearing which is currently set for December 22, 2008.



BACKGROUND



On January 5, 2007, then eight-month-old A.C. was placed into protective custody after mother attempted to assault a social worker and was detained by a sheriffs deputy at the maternal great-grandparents home. Mother had been receiving voluntary services since December 1, 2006, as she had been diagnosed with postpartum depression and Intermittent Explosive Disorder. Mother had been placed on a psychiatric hold on July 13, 2006, after attempting to run the father over with her car while the child was in the car, and taking 30 anti-depressant pills prescribed for her postpartum depression. She had been arrested on November 8, 2006, after threatening to kill the child and assaulting a peace officer outside the fathers residence. Mother admitted having a history of substance abuse, and the father had a history of alcohol abuse and domestic violence on the mother in the presence of the child. In addition, the fathers four older children had been declared dependent children of the court due to substance abuse and domestic violence on the part of their parents.



The Department filed a petition under section 300, subdivision (b) [failure to protect] on January 9, 2007, and a first amended petition on January 30, 2007. The juvenile court did not make any ICWA findings when it ordered the child detained following a hearing on January 10, 2007, which the maternal great-grandparents attended. Mother had stated that she may be a member of, or eligible for membership in, a Cherokee tribe. Father signed a declaration stating that he had no Indian ancestry as far as he knew. However, the paternal grandmother had informed the social worker for fathers four other children that her paternal grandparents, the childs great-great grandparents, had Hopi and Navajo Indian heritage.



On January 18, 2007, the Department sent ICWA notices to three Cherokee Tribes, two Navajo Tribes, and the Colorado River and the Hopi Tribal Councils, as well as to the Bureau of Indian Affairs. The notices stated that mother claimed Cherokee heritage and that the father claimed Navajo and Hopi heritage. The notices included the name and birthplace of the maternal grandfather, and the name and current state residency of the paternal grandmother.



The jurisdiction/disposition hearing was held on March 26, 2007. Mother and the father were present with their attorneys, and the maternal grandmother and great-grandfather were also present. The court admitted the social workers reports for the hearings and two addendums into evidence, and both parents submitted the matter on that basis. The reports recommended that the child be placed out of the home and that both parents receive family reunification services. Mother was receiving mental health medication and therapy, and had been referred to a domestic-violence-victims program and a parenting-without-violence program. She had weekly supervised visits with the child and was drug testing. All the noticed Indian tribes, except for the Colorado River Tribal Council, had sent letters stating that the child was not eligible for membership in their tribes.



The court found that the ICWA did not apply and that the allegations in the first amended petition were true. The court declared the child to be a dependent child of the court, placed the child with her godparents in Merced, and ordered reunification services for both parents.



The social workers interim review report dated May 9, 2007, stated that mother had enrolled in and was attending a domestic-violence-victims group and was visiting the child. However, mother had missed some scheduled mental health therapy appointments and parenting-without-violence group sessions, and she had not obtained a drug assessment or scheduled a psychological evaluation. The father had not started his case plan. The child was thriving in her placement. Following a hearing, the court ordered all previous orders to remain in effect.



Mothers psychological evaluation was attached to the social workers interim review report dated June 18, 2007. Michael B. Jones, Ph.D., had evaluated mother on May 11, 2007. Dr. Jones found little evidence to support mothers prior diagnosis of Intermittent Explosive Disorder and Postpartum Depression. However, Dr. Jones diagnosed mother as having Adjustment Disorder with Depressed Mood (mild), Borderline Personality Disorder and Antisocial Personality Disorder. Mother had acknowledged that she had severe and repeated problems with anger and poor judgment. Dr. Jones found mothers reunification service plan to be appropriate, but also found it unlikely that mother will benefit sufficiently from any services within the time frame mandated by law. Following a hearing on June 19, 2007, the court ordered mother to complete an advanced domestic-violence-victims support group, and ordered all other orders to remain in effect. The court denied a request to order a second psychological evaluation for mother.[3]



On July 12, 2007, the childs maternal great-grandparents filed a section 388 petition seeking placement of the child with them. A hearing on the petition was held in conjunction with the six-month review hearing on November 29, 2007. The social workers report and addendums for the hearing recommended that the section 388 petition be denied and that services continue for mother, but that services for the father be terminated. Mother was pregnant. She had missed some meetings of her parenting-without-violence program, some of her drug tests, and some therapy sessions in September 2007, and had not provided the social worker with sufficient documentation verifying that her treating physician had recommended two weeks of bed rest during that time due to mother having been in an automobile accident. Although mother had been visiting consistently with the child, communicating consistently with the social worker, and demonstrating an effort to comply with her case plan, maternal family members had not been following court orders regarding visitation. Following the November 29, 2007 hearing, the court denied the section 388 petition without prejudice, continued the child in her out-of-county placement, and continued family reunification services for both parents.



On December 24, 2007, the maternal great-grandparents filed a new section 388 petition and a request for de facto parent status. The court denied the section 388 petition but set a hearing on the request for de facto parent status. Counsel for the child filed opposition to the request for de facto parent status.



Mother gave birth to a baby girl in January 2008, and the child was placed into protective custody a few days after her birth.[4] The child was then placed with A.C. in the same out-of-county home.



On January 14, 2008, the social worker filed a section 388 petition seeking termination of services for A.C.s father. The petition alleged that the father had not complied with any aspects of his case plan and had not visited with the child for three weeks. Following a hearing on January 24, 2008, which the maternal great-grandparents attended, the court denied their request for de facto parent status and set a hearing on the social workers section 388 petition for March 19, 2008. At the March 19, 2008 hearing, the court continued the hearing on the section 388 petition, ordered one of mothers now twice-weekly visits with her children to be in San Jose and the other in Merced where the children resided, and ordered that the 12-month hearing for A.C. be combined with the jurisdictional/dispositional hearing for mothers newborn child.



On May 5, 2008, the parties stipulated that the combined hearing needed to be placed on the long cause calendar, so the court continued the matter to June 30, 2008.



The social workers report and addendums for the combined hearing recommended that services be terminated for both A.C.s mother and father. Mother had been the victim of a criminal threat by an alleged gang member on September 24, 2007, and, although she had reported it to the police, she had not reported it to the social worker or to her parenting-without-violence group. Mother last saw her counselor on March 6, 2008, but she did not tell the social worker that she had stopped going and she had not reported that she needed financial assistance to continue the counseling. On March 10, 2008, mother cancelled her visits with her children for the week, stating that she did not have any transportation. She tested positive for opiates on March 26, 2008. Although mother presented a prescription bottle for Vicodin, she did not provide documentation to show the reason for the prescription. Mother missed her April 16, 2008 meeting with the social worker, but was transported for a supervised out-of-county visit later that morning. Mother had a black eye and told the social worker that she had been assaulted and robbed at a light rail station parking lot the night before, but that she had not reported the incident to the police. The social worker believed that mother had not made substantial progress and that there was no likelihood or probability that she would be able to reunify with A.C. at the end of the reunification period. A.C. was healthy, happy, and content in her placement, and had developed a bond with her foster parents.



The combined hearing was held over eight days between July 1 and July 17, 2008. Dr. Martin Williams, a licensed psychologist, testified on mothers behalf, and his report was admitted into evidence. Before testing and interviewing mother at her familys request, Dr. Williams interviewed various family members, and reviewed Dr. Joness evaluation and the various police and social workers reports given to him by the family members. All family members Dr. Williams interviewed agreed that mother had no history of intentional or obvious child endangerment. Mother had been suffering from postpartum depression and had been living in an allegedly abusive relationship when she did the things that brought her to the attention of the police. When Dr. Williams evaluated mother, she was no longer taking medication for depression and her manner and her test scores indicated that she was not depressed.



Dr. Williams interviewed and conducted MMPI-2 and MCMI-III tests with mother in February 2008.[5] Although Dr. Jones found the MMPI-2 test he conducted with mother to be invalid because mother was concealing problems, Dr. Williams found the test he conducted to be valid. Based on his MMPI-2 test, Dr. Williams found that mother did not suffer from a diagnosable, treatable condition along the lines of the depressive disorder, anxiety disorder, psychotic disorder, [or] bipolar disorder. Therefore, Dr. Williams did not find any psychiatric disorder that would make mother an unfit parent.



Dr. Williams also found the MCMI-III test he conducted to be valid. Using that test Dr. Williams found mother to have a histrionic personality disorder, which is an approach to life characterized by emotionality, possibly attention seeking, dependency. However, such a disorder does not affect a persons parenting ability and the test did not show that mother had an antisocial or borderline personality disorder as Dr. Jones found. Dr. Williams believes that his findings are different from Dr. Joness findings because Dr. Jones seemed to give more weight to mothers records, whereas Dr. Williams gave more weight to mothers psychological testing. In addition, Dr. Jones placed a great deal of weight on the spousal abuse risk assessment, which Dr. Williams considered inappropriate for use with mother. As the test is marketed by the test publisher as a method for assessing possible violence by men toward women, it was inappropriate for Dr. Jones to use mothers test results to predict possible violence by mother toward her children.



The social worker testified that she was assigned A.C.s case in April 2007. A.C. was detained due to mothers mental instability and her history of being a victim of domestic violence while A.C. was present. Mothers case plan included a parent orientation, a 52-week parenting-without-violence program, counseling to address domestic violence and childhood issues, a psychological evaluation, a medication evaluation, random drug testing, a drug and alcohol assessment, and a domestic-violence support group. Mother has a history of intermittent compliance with her case plan. She completed her parent orientation, her psychological evaluation, and her drug and alcohol assessment, and she was drug testing. Her supervised visits were increased, and the social worker had been looking to change the visits to unsupervised. Mother completed a domestic-violence-victims support group program and two advanced domestic-violence-victims support group programs, and the most recent evaluation states that mother did make some progress in the classes. Mother participated in her 52-week parenting-without-violence program, but missed classes and made slow progress. She started counseling late, then stopped going to her therapist and did not restart with a new counselor until some time later.



The social worker changed her recommendation from continuing services for mother to terminating services after she learned that mother stopped going to counseling again in March 2008. Mother did restart counseling in early May 2008. However, mother still has not provided documentation to support her claim that she did not participate in any aspect of her case plan for two weeks in September 2007 because her treating physician recommended bed rest after her car accident. Mother had a positive drug test one time for opiates on March 26, 2008, although she claimed that she had been taking prescription Vicodin which was prescribed for her in mid-January 2008. Mother missed drug tests or tested on incorrect dates 13 or 14 times prior to June 30, 2008, and these are all considered administrative positive drug tests. Mother took about a month to give the social worker the visitation plan, which included her safety plan, that mother needed to provide before she could move from supervised to unsupervised visitation. Mother made a police report about a criminal threat incident involving an alleged gang member in September 2007 but she did not report the incident to the social worker, and she did not make a police report about the April 2008 mugging incident. The social worker later learned that mother claimed that she was mugged by a gang member during the April 2008 incident, but mother did not report this to the social worker at the time. Mothers response to the incident showed that when mother had an opportunity to follow her safety plan, she did not do so.



The facilitator of mothers 52-week parenting-without-violence program reported to the social worker that mother was starting to backslide. She advised the social worker not to move mother to unsupervised visits. She reported that mother has struggled severely with internalizing the information appropriately from the class, particularly around basic ages and stages of child development, having empathy for the child. Mother has satisfied the classroom requirements of the program but needs to participate in an exit interview in order to complete the program. Although the social worker informed mother that the facilitator offered to have an exit interview where she would observe mother with A.C., mother has not made the required arrangements. The facilitator has also recommended that mother take follow-up classes; mother was stumped when she was asked near the end of the 52-week program what she would have done if her child had been with her during the April 2008 mugging incident.



In the social workers opinion, there is a substantial risk of danger to A.C. if she were to be returned to mother as mother has not moved to unsupervised visitation and mother has not demonstrated that she has made sufficient progress in her case plan to where A.C. would be safe in her care. Mother is still lacking empathy for the child, is still struggling with safety planning, and still has some work to do on recognizing red flag behaviors in abusive relationships. Mothers visits with A.C. are appropriate and positive, but the child has not demonstrated a closeness or bond with mother. The social worker agrees with some aspects of Dr. Williamss evaluation, but does not agree with his opinion that mother does not have an antisocial personality disorder. The social worker also has some concerns about Dr. Williamss evaluation, as she was not able to discuss mother with him and she thinks that mothers family members gave him biased information.



Mother testified that she was prescribed Zoloft by her obstetrician/gynecologist in June 2006. She stopped taking the medication when she was hospitalized for 24 hours in July 2006. The hospitalization occurred after she took 30 Zoloft pills following a physical confrontation with A.C.s father in A.C.s presence during a visit. In September 2006, she called the police after A.C.s father hit her in the face at his residence when she would not let him remove A.C. from her car. In November 2006, she was arrested for assault and resisting arrest at the fathers home when she refused an officers request to step out of her car while A.C. was in the car and then resisted arrest. She pleaded no contest to the resulting charges and she and A.C.s father ended their relationship. There have been no incidents of domestic violence since that time. She is still on probation because she has not received a certificate for completing her parenting-without-violence class. The facilitator of the class told her in May 2008 that she needs to return for a final test session in order to complete the program. She has otherwise complied with her probation conditions.



Mother believes that both she and A.C. are victims of, and are affected by, domestic violence. She admitted that she would threaten the childs father by using the child. In her domestic violence classes she learned about the different types of domestic violence, the cycle of violence, boundaries, and the signs of a potential abuser. She also learned about parenting her children. She developed a safety plan during her advance support group sessions. The first step of her plan is that she should call the police if she is the victim of an assault. However, when she told her advance support group about the April 2008 mugging incident, they all agreed with her decision to not call the police because she thought the assailant was a gang member.



In March 2007, when she was evaluated by Dr. Jones, she was sad, confused, angry, and upset. She did not want to cooperate with Dr. Jones and did not feel comfortable with him. Since that time, she has tried to work on her case plan and has been doing very well. She cooperated with Dr. Williams for his evaluation and did not feel uncomfortable with him.



Around March 2007, mother had intimate relations with a man she met at a birthday party on the same night she met him and has not seen the man since that night; the man might be the father of her youngest child. She was in a car accident at the end of August 2007. She tried to get a note from the doctor who recommended bed rest, but the doctor no longer works at the hospital she went to. She tested positive for Vicodin in March 2008 because she was taking it for the cramps she felt after having an IUD inserted. She has not been able to track down the doctor who performed the procedure in order to obtain the requested documentation for the prescription. She stopped going to therapy in early March 2008 but returned in May 2008 after receiving funding for the therapy.



She would like to have both of her daughters returned to her. She does not believe that she would have any substantial difficulties in caring for both of them. She plans to move to Fremont where she has a Section 8 housing voucher, more job opportunities and available daycare. She has a support system in place that includes her extended family members.



Dr. Jones testified that he was asked in May 2007 to evaluate mothers mental and emotional functioning and her ability to establish and maintain healthy relationships and to not involve A.C. in domestic violence. He was also asked what services he felt mother may benefit from to support reunification with the child. He talked to the social worker, mother, and family members. The tests he administered to mother indicated that she was not being completely honest with him. He used the child abuse potential inventory, the MCMI, the MMPI, and the spousal assault risk assessment guide. Although the spousal assault risk assessment guide is normed on men, it is still predictive of future violence when used on women. Even if he eliminated the findings of the spousal assault risk assessment guide, his overall findings would not change.



Dr. Jones found mother to have mild depression due to removal of the child, the involvement of the Department, the childs placement in a non-relative home, and their minimal contact. He also found mother to have borderline personality disorder and antisocial personality disorder. Mother has a history of problems with school, aggressive behavior toward family members and lying that started before the age of 15. Based on his diagnoses, and depending on the stated goals, individual therapy would be a long process for mother.



In Dr. Joness opinion, there were problems with Dr. Williamss evaluation. Although Dr. Williams made some legitimate criticisms of Dr. Joness evaluation, Dr. Williamss evaluation reads like a rebuttal to that evaluation rather than like a stand-alone clinical evaluation. Dr. Williamss evaluation does not include the general observation and background information that a typical psychological evaluation includes. It does not include descriptions of the test results or mothers clinical history; it just includes Dr. Williamss conclusions. In addition, Dr. Williams did not address the risk factors that are crucial to an assessment of risk, and did not address mothers history of violence, her history of substance abuse, or her exposure to domestic violence as a child.



Leonard Norwitz, mothers counselor, testified that he began seeing mother in January 2008. He saw her seven to eight times before a scheduled court hearing in early March 2008, after which she cancelled some appointments. He did not see anything during those early sessions to corroborate Dr. Joness report that mother has either a personality disorder or a depressive disorder of some kind. When mother began coming to see him again in early May 2008, he was surprised to learn that there had been no change in the disposition of her case. Mother told him that she was benefiting from her case plan.



Mother told Norwitz that she had postpartum depression after the birth of A.C. but not after the birth of her youngest child. She told him that she was given to outbursts on occasion up until the previous year. She told him about her April 2008 mugging incident. He does not remember mothers explanation of how she handled the matter other than it was not what he would have done and not what her social workers expected her to do. Mother is distrustful of her social workers.



Norwitz considered Dr. Williamss report as one responding to Dr. Joness report rather as a general evaluation. Dr. Williamss conclusions coincide with Norwitzs own because he and Dr. Williams saw mother at different stages of the dependency proceeding than when Dr. Jones saw her. [I]f youre seeing somebody thats really depressed or miserable, its quite possible that later they might not be. He has told mothers social workers that he could find no evidence that mother is depressed and mother states that she is not currently in a domestic violence relationship. He believes mother needs additional counseling only until her childrens cases are resolved or if they are not returned to her. He does not believe mother needs counseling to help her to not act out in ways that would be harmful to her children. He does not believe that mother would pose any danger to her children if they are returned to her.



Mothers maternal cousin R.M. testified that she attended meetings with mother, other family members and the social workers in February 2008. R.M. got the impression, based on A.C.s social workers body language and facial expressions, that the social worker did not like mothers family. The social worker did not follow the guidelines of the meetings; she raised her voice, spoke out of turn and spoke over other people. She did not appear to be supportive of mother the way the other social workers were, and she walked out of one meeting, which caused that meeting to end. Mother got upset during one meeting also, and left it and did not return. Based on what R.M. observed during the meetings, it would not surprise her to find out that mother did not trust A.C.s social worker.



After all the witnesses testified, counsel for the Department argued to the court that the children would be at risk if they were returned to mother as mother has not consistently complied with all aspects of her case plan, particularly regarding drug testing, counseling and therapy. In addition, mothers credibility has been undermined because her testimony in court is inconsistent with police and social workers reports. Mothers counsel argued that although there was sufficient conduct to support the removal of A.C. from mothers care, mother has substantially complied with her case plan. She worked on what she thought she was supposed to work on. And mothers only real positive drug test was the one for Vicodin, for which she had a prescription. Counsel for A.C. argued that mother complied with her case plan and that the child should be returned to mother. The court took the matter under submission.



The court filed its order after contested hearing on August 26, 2008. In relevant part, the court found by a preponderance of the evidence that return of A.C. to her parents would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. Return of A.C. to mother would be detrimental to the child because mother failed to participate regularly and make substantive progress in her court-ordered treatment programs, including that (1) she has not attended her exit interview for her 52-week parenting-without-violence class and she has not obtained her certificate of completion; (2) she had 14 administrative positive drug tests between December 11, 2007, and the end of June 2008; (3) she did not participate in any aspect of her case plan for a two week period in September 2007; (4) she has not provided written verification that she complied with her court-ordered medication evaluation; (5) she has inconsistently participated in individual therapy; (6) she was not completely honest during her court testimony and she has not been completely honest in some of her interactions with her social workers; and (7) reports from her domestic violence support groups and incidents involving gang members in September 2007 and April 2008 indicate that mother only sometimes understands the need for ongoing safety planning. The court further found by clear and convincing evidence that reasonable services had been offered and provided to mother which were designed to aid her to overcome the problems that led to removal of A.C. The court terminated services for both parents and set a section 366.26 hearing for December 22, 2008. Supervised visitation by mother was changed to two times per month.



In a statement of decision filed September 8, 2008,[6] the court stated in part: After consideration of all of the documentary evidence, as well as the testimonial evidence, the court finds that [the Department] met their burden and proved, by a preponderance of the evidence, that return of [the child] to the care of either of her parents would create a substantial risk of detriment to her safety, protection, and physical or emotional well-being. Based on the evidence presented, the court finds that the reunification services for both [parents] should be terminated. [] In reaching its decision, the court considered and found to be credible the testimony of [the social worker, who was] qualified as [an] expert witness[] in the risk assessment of dependent children. [The social worker] opined that [the child] would be at risk of physical or emotional harm, if she were to be returned to the care of her mother. . . . [The social worker based her opinion] on multiple contacts with the mother, . . . over the course of several months, thorough review of all documents submitted by [mothers] service providers, direct conversations with [mothers] service providers, discussions with the caretakers for [the child], and interview and interactions with [mothers] extended family members. The court further finds that [mother] was dishonest with [the social worker], with her therapist, Mr. Norwitz, and in some of her testimony before this court. [Mother] lied to the court when first asked about the alleged father of her youngest child . . . . [Mothers] ability to be truthful with the professionals she is working with is directly related to her ability to keep herself and her children safe from harm.



PROCEDURAL HISTORY



Trial counsel for the child filed a notice of appeal on September 4, 2008. Trial counsel for mother filed a notice of appeal on September 12, 2008. As a result, separate appellate counsel was appointed in the pending appeal (H033338) for the child and mother. The record on appeal was filed on September 25, 2008.



On October 6, 2008, appointed counsel for the child filed a request for relief from default (H033433) due to the failure to file a timely required notice of intent to file a rule 8.452 writ petition. In the request, counsel sought consideration of the writ petition on the merits or, alternatively, asked the court to consider the matter on the merits as a petition for writ of habeas corpus. Accompanying the request for relief from default was a petition for extraordinary writ that fully briefed the matter based on the record filed in the appeal (H033338).



On October 7, 2008, appointed counsel for mother filed a separate petition for writ of habeas corpus (H033443) contending that trial counsel rendered ineffective assistance by failing to file the required notice of intent to file a rule 8.452 writ petition. Appointed counsel for mother also filed a request in the appeal that this court treat the appeal (H033338) as a writ petition. Concurrent with the motion, counsel submitted a complete petition for extraordinary writ pursuant to rule 8.452 that was received in the appeal. Attached to the habeas petition was a declaration from trial counsel admitting that he erroneously filed the notice of appeal rather that the notice of intent to file the writ petition by mistake.



As juvenile dependency proceedings are most important proceedings involving children and their parents, this court granted the parties requests. On October 15, 2008, we filed an order granting the childs request for relief from default, stating that the petition for extraordinary writ accompanying the request would be considered on the merits pursuant to rules 8.450 to 8.452. The order also considered mothers petition for writ of habeas corpus as an application for relief from default, granted the application, and directed the clerk of the court to file mothers petition that had been received but not filed. We dismissed the appeal (H033338) as taken from a non-appealable order, ordered that mothers and the minors petitions be considered together, and stated that the record in the appeal (H033338) would be considered as the record in this writ proceeding (H033433). Lastly, we provided the Department 15 days to serve and file a response to the rule 8.452 writ petitions.



DISCUSSION



The Reunification Plan



The Parties Contentions



Mother and the child contend there is not sufficient evidence to support the courts finding that returning the child to mother would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. Mother and the child also contend that the Department failed to provide reasonable services under the case plan and that additional services should be provided. They argue that the case plan was based on Dr. Joness fundamentally flawed expert opinion, which fatally tainted the opinions of the social workers as to the mothers compliance with the plan and the progress in this case. The social worker conceded that mother substantially complied with her case plan. Dr. Williams and Norwitz both concluded that mother is not a risk or danger to A.C. And, the Department did not retest mother to get a current and accurate picture of mothers psychological functioning in light of these conclusions. Therefore, the Department did not carry its burden of showing that mother did not substantially comply with her case plan and that return of the child to mother would create a substantial risk of detriment.



The Department contends that reasonable services were provided to mother and that substantial evidence supports the courts finding that return of the child would create a substantial risk of detriment. The Department argues that it provided reasonable efforts to assist mother in completing her case plan and that a re-evaluation of mother was not required. The Department further argues that, while mothers participation in her case plan is laudable, there were critical elements of the case plan that mother either did not complete, or did not take full advantage of by making necessary behavioral changes.



The Law and the Standard of Review



Section 361.5, subdivision (a), generally mandates that reunification services are to be provided whenever a child is removed from the parents custody. (In re Luke L. (1996) 44 Cal.App.4th 670, 678 (Luke L.); Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 546.) Only where there is clear and convincing evidence the [Department] has provided or offered reasonable services may the court order a section 366.26 hearing. (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1165 (Robin V.); 366.21, subd. (g)(1).)



Special rules apply when the child is under the age of three years on the date of the initial removal from the custody of the parent. In that case, court-ordered services shall not exceed a period of six months from the date the child entered foster care. ( 361.5, subd. (a)(2).) At a six-month review hearing for a child who is under the age of three, if the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may terminate services and schedule a section 366.26 hearing. ( 366.21, subd. (e).) If, however, the court finds there is a substantial probability that the child . . . may be returned to his or her parent or legal guardian within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing. (Ibid., see also 361.5, subd. (a); rule 5.710(f)(1)(E).) At the 12-month permanency hearing, 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 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. ( 366.21, subd. (f).)



A reunification service plan must be tailored to fit the specific circumstances of each family and must be designed to eliminate those conditions that led to the juvenile courts jurisdictional findings. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777 (Dino E.); Luke L., supra, 44 Cal.App.4th at p. 678.) [T]he record should show that the [Department] 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 (such as helping provide transportation and offering more intensive rehabilitation services where others have failed). [Citation.] (Robin V., supra, 33 Cal.App.4th at p. 1165; see also In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006-1007; In re Alvin R. (2003) 108 Cal.App.4th 962, 972-973.)



The adequacy of reunification plans and the reasonableness of the [Departments] efforts are judged according to the circumstances of each case. (Robin V., supra, 33 Cal.App.4th at p. 1164.) The standard is not whether the services provided were the best that might have been provided in an ideal world, but whether they were reasonable under the circumstances. [Citation.] (In re Julie M. (1999) 69 Cal.App.4th 41, 48 (Julie M.); Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.)



On appeal, the applicable standard of review is sufficiency of the evidence. (Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 625-626; In re Monica C. (1995) 31 Cal.App.4th 296, 306.) In reviewing the reasonableness of the services provided, this court must view the evidence in a light most favorable to the [Department]. We must indulge in all legitimate and reasonable inferences to uphold the [juvenile courts findings]. If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed. (In re Misako R. (1991) 2 Cal.App.4th 538, 545; Monica C., supra, 31 Cal.App.4th at p. 306; Julie M., supra, 69 Cal.App.4th at p. 46.)



We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) The clear and convincing standard is for the edification and guidance of the juvenile court. It is not a standard for appellate review. (In re J.I. (2003) 108 Cal.App.4th 903, 911.) Thus, on appeal from a judgment required to be based upon clear and convincing evidence, the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondents evidence, however slight, and disregarding the appellants evidence, however strong. [Citation.] (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 881; In re J.I., supra, 108 Cal.App.4th at p. 911.)



Analysis



In this case, A.C. was removed from her mothers care and taken into protective custody because mother had attempted to assault a social worker and was detained by a sheriffs deputy. Mother also had a history of mental health, domestic violence, and substance abuse issues. The reunification services provided or offered mother took these specific circumstances into account. Mother was to participate in and complete a 52-week parenting without violence class, a program of counseling, a drug assessment, a psychological evaluation, a domestic violence victims group, and random drug testing. In addition, mother was to keep in contact with the social worker. Although mother and the child contend that the Department should have obtained an updated psychological evaluation of mother or modified the goals of mothers case plan after Norwitz, her counselor, informed the social worker that he could find no evidence that mother is depressed or is still in a domestic violence relationship, we find that the case plan appropriately addressed the circumstances that brought A.C. to the attention of the Department. (Dino E., supra, 6 Cal.App.4th at p. 1777; Luke L., supra, 44 Cal.App.4th at p. 678.) In addition, by failing to file a section 388 petition to modify the ordered service plan or to change the June 19, 2007 order denying a request for a second psychological evaluation, mother has waived any complaint that the plan as ordered was unreasonable. (Julie M., supra, 69 Cal.App.4th at p. 47; Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811.)



The child was removed from mothers care in January 2007, and the review hearing at issue here was held in July 2008. As part of mothers case plan, mother completed a domestic-violence-support group program and two advanced domestic-violence-support group programs. Mother also participated in her 52-week parenting-without-violence programs, but did not complete the program because she had not made arrangements for the final class, which would allow the facilitator to view mother with A.C, and had not obtained a certificate of completion. Mother stopped her original therapy program, and started counseling with Norwitz some time later. However, after a few sessions, mother stopped going to see Norwitz without informing the social worker or Norwitz that she did so due to financial issues. Mother failed to drug test on the days she was ordered to test 13 or 14 times, which constitute administrative positive tests. Although mother usually tested the day after she was ordered to test, to do so destroys the randomness of the tests. Mother regularly visited with A.C., but her visits were still supervised because mother failed to timely provide the social worker with her visitation plan, and the facilitator of mothers parenting-without-violence support group recommended that mother not be given unsupervised visitation. Mother could not document the reasons for her failure to comply with any aspect of her case plan for two weeks in September 2007 or the reason she tested positive for Vicodin in March 2008. In addition, mothers sexual conduct in March 2007, and the incidents with gang members in September 2007 and April 2008, indicate that mother has not learned from her case plan how her actions and behavior affect the safety, protection, and physical and emotional well-being of the child. This record amply supports the juvenile courts findings that mother was provided or offered reasonable services but that the return of A.C. to mothers care would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. Accordingly, based on this record, we cannot say that the juvenile court in this case erred in setting a section 366.26 hearing and terminating services.



However, this is a case where mother represents that she has made substantial progress in her reunification plan. She contends that she has attended enough classes to complete her 52-week parenting-without-violence program and that she just needs to attend a final class to receive her certificate. She had only one actual positive drug test, and that was for Vicodin. She has attended counseling sessions, and her counselor, Norwitz, testified that he did not find her to be a danger to her children. She has been consistently visiting the child and she obviously loves the child very much, and the childs counsel supports mothers request for additional services or return of the child. In addition, reunification services, including visitation, were ordered for mothers youngest child, and the children are placed in the same out-of county home. A second psychological evaluation of mother was requested and denied in June 2007, shortly after Dr. Joness evaluation was submitted, but the record does not state who requested it or why the court denied the request.



As we stated in Dino E., the juvenile court has discretion upon a showing of good cause to continue juvenile dependency hearings beyond the statutory 18-month review hearing. (Dino E., supra, 6 Cal.App.4th at p. 1779.) Pursuant to section 388, mother may file a petition, upon grounds of change of circumstance or new evidence, seeking additional reunification services, including but not limited to a request for a new psychological evaluation. Should mother file a section 388 petition, and should the juvenile court find that circumstances have changed after the reunification period that may justify a change in its order terminating services, and that a change in the order would be in the best interests of the child, the court may order an evidentiary hearing on the petition be held on or before the date of the scheduled section 366.26 hearing on December 22, 2008. Further, the court retains discretion to order a new psychological evaluation of the mother if that order is in the best interests of the child. (See, e.g., In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.); In re Kimberly F. (1997) 56 Cal.App.4th 519, 528-529.)



Visitation



Both mother and child contend that the juvenile court abused its discretion by reducing visitation from twice each week to twice each month. By decreasing visitation, the court ignored the mandate that instructs visits are to be as often as possible unless the visits themselves are detrimental to the child.



In any case in which the court orders that a hearing pursuant to Section 366.26 shall be held, . . . [t]he court shall continue to permit the parent or legal guardian to visit the child pending the hearing unless it finds that visitation would be detrimental to the child. ( 366.21, subd. (h).) [U]ntil the time the section 366.26 hearing is set, the parents interest in reunification is given precedence over the childs need for stability and permanency. (Marilyn H., supra, 5 Cal.4th at p. 310.) However, [o]nce reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability. (Id. at p. 309.) Therefore, although the juvenile court was required to permit continued visitation pending the section 366.26 hearing absent a finding that visitation would be detrimental to the child (In re David D. (1994) 28 Cal.App.4th 941, 954), the court was not required to order the continued visitation to be as often and/or for as long as the visitation ordered as part of the reunification plan.



Determinations regarding custody and visitation are committed to the sound discretion of the juvenile court, and the courts ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Megan B. (1991) 235 Cal.App.3d 942, 953.) The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. [Citations.] (Stephanie M., supra, 7 Cal.4th at pp. 318-319.)



On the record before us, we find that the court properly evaluated the evidence and, focusing on the need of the child for permanency and stability, determined that visitation twice a month was appropriate. A.C. was healthy, happy, and content in her placement, and she had formed a definite bond with her foster parents. Mother has had only supervised visits and, because the placement is out-of-county, transportation for the visits has had to be provided for either the child or mother. The reduction in visitation from twice each week to twice each month allows mother and child to have continued contact while reunification services continue for mothers youngest child and while the Department focuses on determining the recommended permanent plan for A.C. We cannot say that the trial courts order reducing visitation exceeded the bounds of reason.



ICWA



Mother contends that reversal is mandated because the Department failed to provide adequate ICWA notice. She argues that although the maternal grandmother participated in the proceedings, and the paternal grandmother indicated that the father had Indian Heritage, insufficient information was included on the ICWA notices sent to the tribes. The Department contends that there is no indication that any of the individuals contacted by the social worker had any additional relevant information.



Both the court and the Department have an affirmative and continuing duty to inquire whether a child for whom a section 300 petition has been filed is or may be an Indian child. ( 224.3; In re Nikki R. (2003) 106 Cal.App.4th 844, 849; In re N.E. (2008) 160 Cal.App.4th 766, 769.) An Indian child, within the meaning of the ICWA, is a child who is either a member of an Indian tribe, or is eligible for membership and is the biological child of a member. (25 U.S.C. 1903(4); 224.1, subd. (a).) Where a state court knows or has reason to know that an Indian child is involved in a section 300 proceeding, statutorily prescribed notice must be given to all tribes of which the child may be a member or eligible for membership. (25 U.S.C. 1912(a); 224.2, subd. (a)(3); In re Samuel P. (2002) 99 Cal.App.4th 1259, 1264.) At the time notice was originally sent in this case, the notice was required to be provided on form JV-135 (former Rule 5.664(f)), the form used in this case. The failure to comply with the notice requirements of the ICWA constitutes prejudicial error unless the tribe has participated in or indicated no interest in the proceedings. (In re Samuel P., supra, 99 Cal.App.4th at p. 1265.)



California courts have adopted the federal rules as guidelines for what should be included in proper notice under the ICWA. (In re Karla C. (2003) 113 Cal.App.4th 166, 175.) The notice must include the name, birthdate, and birthplace of the Indian child; his or her tribal affiliation; a copy of the dependency petition; the petitioners name; a statement of the right of the tribe to intervene in the proceeding; and information about the Indian childs biological mother, biological father, maternal and paternal grandparents and great-grandparents or Indian custodians, including maiden, married and former names or aliases, birthdates, places of birth and death, current and former addresses, tribal enrollment numbers, and/or other identifying information. (In re S.M. (2004) 118 Cal.App.4th 1108, 1116; 25 C.F.R. 23.11(a)-(d); see form ICWA-030.) Where the notice fails to include information on the person who is alleged to be the source of Indian heritage, the notice is inadequate because the tribes could not conduct a meaningful search with the information provided. (In re S.M., supra, 118 Cal.App.4th at p. 1116.) Notice is meaningless if no information or insufficient information is presented to the tribe. (Ibid.)



In this case, mother informed the social worker at the beginning of the proceedings that the maternal grandfather was 25 percent Cherokee. The maternal grandmother also participated in at least part of the proceedings and was in contact with the social worker. The ICWA notice listed the maternal grandfathers name, place of birth, and tribe, but gave no further information about him. The Department contends that there is no indication that mother and the maternal grandmother had any relevant information about the maternal grandfather. The social workers reports indicate that mother was removed at the age of eight months from the maternal grandmothers care due to domestic abuse by the maternal grandfather. No other information about the maternal grandfather is in the record, so we cannot say that either the mother or maternal grandmother could provide additional identifying information about the maternal grandfather. Nor has either mother or the child stated in their petitions what additional information is available to the Department that was not included in the ICWA notices. Accordingly, we cannot say that the ICWA notice regarding the maternal grandfather in this case was deficient.



The father denied having any Indian heritage. No other paternal relative participated in these proceedings. Although the paternal grandmother had indicated to the social worker involved with the fathers other children that father had Indian heritage, the record does not indicate that the paternal grandmother was in contact with the social worker in this case. Nor does the record indicate that the ICWA was found to apply to fathers other children. Accordingly, we cannot say that the ICWA notice was deficient regarding the paternal grandmother. Neither mother nor the child have shown that reversal of the juvenile courts order is warranted in this case.



DISPOSITION



The writ petitions are denied.




_______________________________________________________



Bamattre-Manoukian, ACTING P.J.



WE CONCUR:



__________________________



MIHARA, J.



_________________________



MCADAMS, J.



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A.C. v. Superior Court



H033433







[1] All further statutory references are to the Welfare and Institutions Code.



[2] All further rule references are to the Cal. Rules of Court.



[3] It is unclear from the record who requested the second psychological evaluation.



[4] Mother does not contest any orders relating to that child in her writ petition here.



[5] MMPI-2 stands for Minnesota Multiphase Personality Inventory, second revision. MCMI-III stands for Millon Clinical Multiaxal Inventory, third revision.



[6] The court stated that this statement of decision was intended to supplement, and not replace, the Order After Hearing signed by this court on August 26, 2008.





Description A.C., a two-year-old child, and her mother R.F. have filed writ petitions seeking review of a juvenile court order terminating reunification services and setting a hearing under Welfare and Institutions Code section 366.26.[1] ( 366.26, subd. (l); Cal. Rules of Court, rules 8.450-8.452.)[2] Both mother and child seek either return of the child to mothers custody or, in the alternative, the continuation of services, contending that there is insufficient evidence to support the finding that reasonable services were provided or offered. They also contend that the Department of Family and Childrens Services (the Department) failed to establish that return of A.C. to her mother would create a substantial risk of detriment to her safety, protection, or physical or emotional wellbeing. They further contend that the juvenile court abused its discretion in reducing mothers visits with the child. Lastly, mother separately contends that the Department failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.). Although Court deny the writ petitions for the reasons stated below, we observe that mother may file a section 388 petition setting forth any change of circumstances or new evidence that may support her request for additional reunification services, including but not limited to a request for a second psychological evaluation, prior to the section 366.26 hearing which is currently set for December 22, 2008.

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