In re Adam R.
Filed 9/18/13 In re Adam R. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re ADAM R., A Person
Coming Under the Juvenile Court Law.
B244683
(Los Angeles County
Super. Ct. No. CK43032)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
AXEL R.,
Defendant and Appellant.
APPEAL from an
order of the Superior Court of
County, Sherri Sobel, Juvenile Court Referee. Affirmed.
Anne E.
Fragasso, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F.
Krattli, Office of the County Counsel, James M. Owens, Assistant County Counsel
and Kimberly A. Roura, Deputy County Counsel for Plaintiff and Respondent.
Appellant Axel R. (Father) appeals
the juvenile court order terminating parental
rights to his son Adam R. We affirm.
A. Detention
Lara R.
(Mother) is the mother of three children, including Adam.
Mother tested positive for cocaine and opiates.
After his release from the hospital, Adam was placed with foster parents
Cecilia and Ricardo C.
Interviewed by
the caseworker, Mother admitted using methamphetamine in the past, but denied
having used drugs during the prior three years and denied ever using cocaine or
opiates.
history of drug use, he had been clean for three years and was willing to care
for the baby.
title="">[3] Father reported that he suspected Mother had
used drugs five months earlier, but that cocaine and opiates had never been her
drugs of choice. He was willing to care
for Adam, but did not have a stable residence.
He said he was residing with friends and using his mother’s address as
his mailing address. His mother reported
that Father had been working and doing well for the past three years.
Prior to the
“Statement Regarding Parentage†form, which stated that he believed he was
Adam’s father and requested that the court enter a judgment of parentage and
find him to the presumed father. The
form stated that he had lived with Mother at the time of Adam’s birth and had
had a romantic relationship with her off and on for four to five years. The form further stated that Mother had said
he was the baby’s father.
At the September
15, 2010
detention hearing, the court found Adam to be an Indian child within the
meaning of the Indian Child Welfare Act
(25 U.S.C. § 1901 et seq., (ICWA)), as both he and Mother were registered
members of the Fort Peck Assiniboine and Sioux Tribe (the Tribe). The court ordered Adam detained, specifically
finding that “active efforts were made to prevent or eliminate the breakup of
this Indian family.†The court confirmed
that Mother and Father were living together at the time of Adam’s birth. The court stated that Father was “[d]eclared
under 505.â€
title="">[5] The court appointed counsel for Father and
instructed the Department of Children and Family Services (DCFS) to prepare a
complete evaluation of Father. The court
ordered drug testing for both parents and a drug treatment program for Mother.
B. Jurisdiction
and Disposition
Interviewed
prior to the jurisdictional hearing, Mother again denied any current use of
drugs. Father also stated she had not
been using drugs. Mother and Father both
stated that Father had not been using drugs for some time. Mother reported that Father helped her pay
rent and buy food for the children.
Father and Mother both stated that they were attempting to work on their
relationship and get back together. The
caseworker could not confirm Father’s residence. DCFS recommended that Mother, but not Father,
be provided reunification services. At a
hearing on October 6, 2010, the court ordered DCFS to provide
both parents parenting classes.
In October
2010, the paternal grandmother reported that Father had not lived with her for
more than two years and that she did not know where he was living. Father stated that he currently lived with
“friends,†but planned to move in with the paternal grandmother once he got
custody of Adam. He refused to provide
any other information about where he was living, saying the caseworker did not
need to know. The hospital retested the
specimen provided by Mother at the time of Adam’s birth and confirmed the
presence of cocaine and opiates. Father
tested negative for drug use in September and October 2010. Mother tested negative on September 24, but
did not appear for tests scheduled on September 28 and October 5.
In November
2010, the foster mother reported that both parents had smelled of alcohol at
one visit. Father had additional
negative drug tests in October and November.
Mother had not appeared for tests scheduled on October 19 and November
8. Complaining that she had been unable
to visit Adam due to transportation costs, Mother made an appointment to see
the caseworker on November 1 to obtain a bus pass, but Father called and left a
message that she would not be able to keep that appointment. The caseworker visited Mother at the address
she had provided to deliver the bus pass.
Father answered the door. He
denied that Mother was there, although a security guard had just informed the
caseworker he had seen her go in with Father.
left a message stating she knew Mother was there. Father returned the call and cursed the
caseworker for “calling [him] a liar.â€
The next day, Mother called the caseworker to apologize for their
behavior on the day of the visit. She
did not, however, provide an adequate explanation for why she had not come to
the door or spoken with the caseworker.
DCFS continued to recommend that Father not be provided reunification
services.
On November
15, the court sustained the following jurisdictional findings: “[Mother] has a history of illicit drug
abuse, including amphetamine and methamphetamine, [and] is a current abuser of
cocaine and opiates which renders [her] unable to provide regular care and
supervision of the children. [Mother]
abused illicit drugs during [her] pregnancy with [Adam]. On 09/10/2010, [Mother] had a positive
toxicology screen for cocaine and opiates at the time of [Adam’s] birth. [Mother] has a criminal history of a
conviction of Use/Under the Influence of Controlled Substance. The children Angel and Jessica are former
dependents of the Juvenile Court due to [Mother’s] illicit drug abuse. Such illicit drug abuse by [Mother]
endanger[s] the children’s physical and emotional health and safety and places
the children at risk of physical and emotional harm, damage and danger.â€
Father was requesting placement. His
counsel stated he did not have stable housing and expected his mother to help
him. The court continued the disposition
hearing to another day because the Tribe had not yet provided its position. The court warned Father that Adam would not
be placed with the grandmother because she clearly did not want the
responsibility of his care, and that it was unlikely Adam would be placed with
Father because he appeared to be residing with Mother.
In December
2010, the caseworker reported that Mother had not appeared for drug tests on
November 19 and December 2, and that she had not visited Adam for a month. Father had consistently tested negative. After repeatedly refusing to state where he
was living, he admitted he was living with Mother. He had been visiting Adam, but did not do
anything to care for him, such as feeding or changing diapers. Father tried to cover up Mother’s lack of
visitation, telling the caseworker they were visiting together, although that
was not true. Father became hostile and
uncooperative when the foster mother cancelled a visit due to severe weather
and the caseworker attempted to reschedule.
Mother reported her belief that Father was attempting to get custody of
Adam in order to secure a relationship with her. The Tribe informed DCFS in writing that it
was in support of continuing Adam’s placement with the foster parents.
At the
December 29, 2010 hearing, the court reviewed the December report and informed
Father’s counsel it was disinclined to provide him services since he had been
uncooperative with the caseworker and was clearly living with Mother. Counsel requested that the matter be put over
for a contest. At the January 11, 2011
dispositional hearing, the court changed its mind and ordered reunification
services for Father.
name="_ftnref8" title="">[8] Father was to participate in a hands-on
parenting class for infants and an anger management program, and to continue
drug testing until he had 10 consecutive clean tests. The court granted Father two monitored visits
per week. The court permitted Father to
retain his right to make education and medical decisions on behalf of Adam.
C. Reunification
Period
In
April 2011, the caseworker reported that Father had not appeared at three
scheduled drug tests. He was visiting
only once a week and had rejected the foster mother’s offer to accommodate a
second regular weekly visit by bringing the child closer to him. Father told the caseworker he would be
providing case progress information to his attorney, not to the caseworker. Further, although Father was evasive with the
caseworker about his residence, he admitted to Arizona child protective
services that he continued to live with Mother.
stated that Father would need to continue to test until he had ten clean tests
in a row with no missed tests.
In July 2011,
the caseworker reported Father continued to visit Adam at least once a week and
had begun to feed and change him but did not ask the foster mother about his
medical condition or developmental needs.
appearances, Father continued to live with Mother. As Father denied that Mother had a drug abuse
problem, the caseworker was concerned that Adam would be subject to abuse if
released to Father. DCFS recommended
termination of reunification services.
At the August 8 six-month review hearing, the court, finding that Father
had made consistent and regular contact with Adam and significant progress in
resolving the problems that led to Adam’s removal, continued reunification services. The court ordered Father to attend Al-Anon
meetings twice per week and counseling.
The court changed visitation to three times per week.
In November
2011, the caseworker reported that while Father had tested negative on some
occasions, he had failed to appear at other scheduled drug tests. He was attending Al-Anon meetings, but only
once a week. He had not attended any of
Adam’s medical or therapy appointments.
Father reported he no longer resided with Mother and was not in a
relationship with her. He said he did
not need her help caring for the child, but at the same time, did not
understand why she should not be permitted to care for Adam. DCFS again recommended termination of
reunification services for Father and recommended adoption by the foster
parents as the permanent plan. The Tribe
reported that it had been unable to locate a suitable family for Adam within
the Tribe. Because Adam had bonded with
his foster family with whom he had lived his entire life, the Tribe found the
permanent plan of adoption by the foster family to be appropriate.
At the
12-month review hearing on December 5, 2011, the court found that Father had
consistently and regularly visited Adam and made significant progress in
resolving the problems that led to his removal from home and set an 18-month
review hearing. The court specifically
found that despite the missed tests, Father had submitted sufficient clean drug
tests in a row and no longer needed to test.
Father was instructed to continue to attend Al-Anon meetings once per
week.
In March 2012,
the caseworker reported that Father had secured a suitable apartment. She made an unannounced visit in February and
did not see any evidence that Mother lived there.
the shower was running when Father opened the door. Father insisted the person in the shower was
not Mother, but a short time later, Mother came out of the bathroom. During this visit, the caseworker stressed
that contact with Mother would pose safety concerns for Adam. Father stated he could not keep them
apart. During this period, Father
continued to regularly visit Adam, but did not inquire about his medical or
developmental needs or attempt to attend any of his medical or therapy
appointments. He did not provide the
caseworker a plan for caring for Adam when he was at work. The caseworker expressed concern that he
would be unable to properly care for Adam.
The Tribe continued to support the recommendation to terminate
reunification services for Father, terminate parental rights, and free Adam for
adoption by the foster parents.
At the hearing
on March 8, 2012, the court ordered an updated report on Father’s
compliance. In April 2012, the
caseworker reported that Father had attended one of Adam’s therapy sessions,
but had not asked any questions about the treatment. He still had not provided the caseworker a
plan for Adam’s care when he was at work.
The caseworker expressed the opinion that Father was not prepared to
care for a child with Adam’s special needs.
Father testified that he had missed three visits when he was sick, when he did
not have transportation funds, and when the foster mother took Adam on an
outing. He stated he had attended one therapy
session and would be willing to take Adam to his appointments at the Regional
Center. He further stated he had made
daycare arrangements for the boy. He had
not, however, taken a parenting class for infants and had stopped going to
Al-Anon meetings. The court terminated
reunification services and set a hearing under section 366.26 to consider
termination of parental rights. The
court found that although Father “mostly did what was asked of him,†he would
be unable to protect the child from Mother.
The court found “by a preponderance of the evidence,†that return would
create a substantial risk of danger to the physical or emotional well-being of
the child.
On September
17, 2012, Father filed a section 388 petition requesting the court to order Adam
placed with him. He stated he had been
participating in a new series of classes covering fatherhood, job readiness,
healthy relationships and money management.
The court ordered a hearing on the petition for October 2, the same day
as the section 366.26 hearing. At the
hearing, Father testified he was not in a relationship with Mother and would be
able to protect him from her. The court
denied the section 388 petition, finding insufficient changed circumstances to
justify a change in the court’s prior orders.
The court found by clear and convincing evidence that Adam was
adoptable. The court further found that
active efforts had been made to prevent or eliminate the breakup of the Indian
family and stated on the record:
“[B]eyond a reasonable doubt it would be detrimental to return [Adam] to
either parent.†The minute order stated
that “[r]eturn of [Adam] to either of the parents at this time would likely
result in either severe emotional or severe physical harm to the [child].†The court ordered parental rights over Adam
terminated. Father appealed.
Section
1912(f) of title 25 United States Code provides: “No termination of parental rights may be
ordered in [proceedings involving Indian children] in the absence of a
determination, supported by evidence beyond a reasonable doubt, including
testimony of qualified expert witnesses, 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.â€
Father contends the order terminating parental rights must be reversed
because the court failed to make the requisite finding under ICWA, and that the
evidence was insufficient to establish beyond a reasonable doubt that Adam
would suffer serious emotional or physical damage if Father were given custody
of him.
The record
reflects that the court found “beyond a reasonable doubt†that it would be
“detrimental†to return Adam to either parent, and the minute order expressly
stated that return of Adam to either parent would “likely result in either
severe emotional or severe physical harm to the [child].†Although the court used the term
“detrimental†rather than “serious emotional or physical damage†at the
hearing, we find its statements on the record and in the minute order
sufficient to establish that the court applied the proper standard. Moreover, there was extensive evidence that
Adam would be subject to serious physical or emotional damage if returned to
Father. Mother was a long-term drug
user, whose drug abuse had led to the neglect of her two older children on
multiple occasions in the past. The fact
that she had drugs in her system when she gave birth to Adam, her refusals to
drug test during the reunification period, and her evasions of face-to-face
meetings with the caseworker supported the inference that she was continuing to
abuse drugs. Father continued to live
with Mother throughout the reunification period, despite multiple warnings that
he would be unable to obtain custody of Adam as long as did so. He overtly disagreed that leaving Adam in
Mother’s care would be inappropriate and admitted that he would be unable to
keep Mother from being with Adam. When
the caseworker visited Mother’s apartment and the apartment Father claimed was
his alone, Father and Mother were almost always together. Father had lost custody of older children
after leaving them in the care of neglectful drug addicted and alcoholic
mothers. Evidence that the nonoffending
parent will not protect the child from the parent whose conduct has been
expressly found to seriously endanger the child constitutes sufficient grounds
for the court to find that return of the child to the nonoffending parent would
constitute a risk of serious harm. (See,
e.g., In re Rico W. (1986) 179
Cal.App.3d 1169, 1177-1178 [mother’s attitude “convinced the court she did not
appreciate the necessity of keeping the children apart from [abusive husband]
and therefore could not be relied upon to live away from him if the children
were returned to her careâ€]; In re Vonda
M. (1987) 190 Cal.App.3d 753, 757 [“The more likely it is that the
offending parent will have further contact with the nonoffending parent, the
more the child’s welfare is jeopardized by being placed unsupervised with the
nonoffending parent.â€].) The court was
not obliged to credit Father’s last-minute claim that he would keep Mother
separated from Adam and make alternate provisions for his care. The court’s finding of detriment beyond a
reasonable doubt if custody of Adam were transferred to Father was supported by
substantial evidence.
Father
contends that section 1912(f) of title 25 United States Code requires qualified
expert witness testimony by an Indian or ICWA expert to support the court’s
findings, and points out that no such testimony was provided here. As explained in In re M.B. (2010) 182 Cal.App.4th 1496, the purpose of this
provision is to permit the parent “to offer a cultural perspective on [his or
her] conduct with his or her child to prevent the unwarranted interference with
the parent-child relationship due to cultural bias.†(Id.
at p. 1505.) Here, as in
any cultural evidence that his behavior . . . would be interpreted differently
in a cultural context . . . .†(
Accordingly, expert testimony concerning cultural practices would not
have been helpful.
The order
terminating parental rights is affirmed.
NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS
MANELLA,
J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
Adam was detained immediately
after birth and was initially known as “Baby Boy [R.]†Mother’s older children, Angel C. and Jessica
M., were living with other relatives at the time of Adam’s detention. Neither child is a subject of this appeal.
There were records of
unconfirmed referrals dating back to 1998, alleging that Angel was being
neglected due to Mother’s drug use. When
Mother’s daughter Jessica was born in 2000, Mother had tested positive for amphetamine
and methamphetamine. In October 2000,
the juvenile court sustained allegations that Mother had a long history of drug
abuse and had used amphetamine and methamphetamine during her pregnancy. The court also sustained allegations that
Angel’s father, Angel C., Sr., had engaged in domestic violence against Mother
and that Jessica’s alleged father, Juan M., was incarcerated and had a repeated
history of theft-related convictions.
Mother regained custody, and jurisdiction over Angel and Jessica was
terminated in September 2002. In March
2006, a caller alleged that Mother was abusing drugs again and neglecting the
minors, sleeping all day and leaving them to fend for themselves. In July 2006, a referral alleged that Mother
had left Jessica with her paternal grandmother for an indefinite period with no
provision for her care, and that Angel had been left without an adult caretaker
because Mother was in jail. In September
2007, Angel was taken into protective custody because Mother was again in jail,
and the neighbor who had been caring for him moved from the area.
