R.C. v. Superior Court

Filed 12/8/08 R.C. v. Superior Court 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sutter)

----

Petitioner R.C., father of the minors A.-Y.C. and

J.C., seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court made at the dispositional hearing denying him reunification services and setting a Welfare and Institutions Code section 366.26 hearing (further section references are to the Welfare and Institutions Code unless otherwise specified). Petitioner also requests a stay of proceedings in the respondent court. We shall deny the petition, rendering moot the request for a stay.

FACTUAL BACKGROUND

This case began in 2003 in Sacramento County where the minors seven siblings were removed from parental custody and extensive services were provided to address both the parents substance abuse problems and their inadequate parenting, which included handcuffing the oldest child to her bed after she attempted suicide, and permitting the other children to hit and kick her.^[1] The siblings were returned to parental custody and the Sacramento County court terminated the dependency in December 2005.

In April 2006, police were called to a domestic incident at a gas station and found petitioner, extremely intoxicated, chasing the oldest child. Petitioner had hit the child. The minors mother, who had been driving the car, was catatonic, lethargic, and speaking slowly. The car had no adequate room or restraints for the eight children.

The Department of Human Services (DHS) detained the eight siblings following the mothers arrest for child endangerment. Petitioner had completed substance abuse treatment programs in the prior dependency but continued to drink, leading to the siblings redetention.

After the siblings jurisdictional hearing, both petitioner and the mother participated in psychological evaluations, which concluded they had personality disorders rendering them unable to benefit from reunification services. One evaluation noted petitioner continued to physically abuse his children despite participating in anger management and parenting classes. At the dispositional hearing in October 2006, the court denied services to petitioner pursuant to section 361.5, subdivision (b)(13).

The siblings case was pending a section 366.26 hearing when A.-Y. was born in March 2007. DHS removed A.-Y. from parental custody shortly after birth, alleging the mother was seeking pain medication after delivery, which was not medically indicated; the parents prior substance abuse had resulted in redetention of the siblings; and services in the siblings case had been denied. A.-Y. was eligible for membership in the Cherokee tribe, and the tribe intervened in the proceedings pursuant to the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.). A.-Y.s jurisdictional hearing was continued a number of times, trailing the siblings section 366.26 hearing.

In March 2008, J. was born in Nevada and, after issuance of a custody warrant, was also detained. The parents admitted they attempted to hide J.s birth from DHS.

A hearing on a petition for modification as to the siblings commenced April 1, 2008, along with their section 366.26 hearing. Various service providers testified that petitioner had participated in services after the siblings redetention. Petitioner attended parenting classes; completed a substance abuse treatment program; submitted to drug tests, which were negative; and was involved in both individual and couples counseling. His counselor believed that petitioner had changed; he was no longer drinking partly due to health concerns and, as a result, there had been no domestic violence. The counselor did not see that either parent displayed the personality disorders diagnosed in the prior psychological examinations. Dr. W., who had evaluated both parents, described the personality disorders as learned behavior which is not susceptible to being cured, although it may ease with age. Dr. W. reevaluated petitioner in August 2007 and was of the opinion that he was making progress in his services, but was not asked about returning the siblings to his care. In Dr. W.s opinion in 2006 and currently, it would be damaging to the siblings to return them to petitioners custody although petitioner made progress since the 2006 evaluation. Petitioner testified about the services in which he participated and his sobriety. He also discussed his supervised visits with the siblings. The siblings social worker testified she was aware that petitioner was participating in services, but she based her recommendations on the parents historical inability to apply services or benefit from them. The social worker felt the mother had made no progress because she had no real comprehension of the situation and did not accept responsibility; she simply wanted to have more children. No services other than visitation were offered. The social worker testified there was less concern that the parents could care for a newborn, but the basic pattern of neglect and abuse would eventually recur. The social worker stated that despite years of service, the mother recently made statements showing her total lack of insight into what the siblings suffered from poor parenting.

At the conclusion of the testimony on April 10, 2008, the juvenile court denied the petition for modification, finding the parents had made progress but it was not in the best interests of the siblings to modify the court orders. The court also made jurisdictional findings as to A.-Y. and formally ordered J. detained but noted that, based on the evidence, the parents had made progress and might be entitled to services as to J.

DHS reports on J.s jurisdictional issues reiterated that the mother had attempted to hide the fact of the minors birth, and the parents were denied services in the siblings case. The report stated the mother refused to sign paperwork for medical coverage for the minor. The foster mother reported J. showed signs of possible hearing impairment and potential developmental delays.

At the hearing on April 29, 2008, the court made jurisdictional findings as to J., stating concerns about the mothers refusal to sign papers to facilitate medical coverage. The court also made various rulings on permanent plans for the siblings, terminating parental rights as to five of them. In addressing the disposition in A.-Y.s case, the court was concerned about whether the progress made by the parents would facilitate a safe environment for the minor. The court was unable to make findings to deny services at that time, and continued the case for a DHS report which would consider the services in which the parents had participated since the siblings redetention.

An addendum report for A.-Y. stated that she recently developed seizures and was to have a neurological consultation to investigate the matter. A proposed service plan was attached to the report. The disposition report for J. stated that he had medical issues, including possible seizures and developmental delays. The report also stated that, despite the prior dependencies and psychological evaluations, the mother has never acknowledged there were problems or need for treatment.

In May 2008, the court adjudged A.-Y. a dependent and continued the hearing for a case plan, again stating concern that DHS reports ignored evidence of the parents progress.

An addendum report in June 2008 recommended that no services be offered to the parents. For the first time, DHS discussed the services in which the parents had participated on their own. It also reported the following: Both minors appeared to have a seizure disorder, and A.-Y. had a breath holding disorder while J. had a hearing loss and was at risk for developmental delays. During an observed visit in the parents home, the parents appeared to be unaware of risk situations, such as climbing over baby gates while holding the minors, and had the television on throughout the visit. A social worker who supervised 15 months of parental visits with A.-Y. reported that she did not observe appropriate parenting behavior due, in part, to the parents excessive reliance on food to appease or bribe the minor, and saw no improvement over time. A foster agency social worker, who supervised parental visits with the siblings, stated that visits continued to show the parents lack of parenting skills, including petitioners inability to intervene to prevent chaotic visits and the mothers inability to engage the siblings. A second foster agency social worker, who also observed sibling visits, said that the parents were unable to interact with the younger children because they fail to read or react to the childrens cues; but the social worker saw some progress in their parenting of the older children. The report concluded the parents had not gained the skills needed to parent these minors.

Further contested dispositional hearings for both A.-Y. and J. commenced July 10, 2008. J.s foster mother testified that J.s seizures had decreased in frequency and that she informed the parents of his medical appointments and knew of no reason why they could not attend those appointments. According to the neurologist, testing to determine J.s exact medical condition and treatment was ongoing. The visit supervisors testified consistently with their prior letters, citing the lack of intervention by the parents at sibling visits; inability to engage the younger children; the need for the supervisor to intervene in order to control the childrens behaviors; the need for dual supervision of the sibling visits to prevent harm to the children; and problems with statements made to the siblings which led to their acting out. One social worker, who supervised sibling visits for years, stated that the parents were better able to interact with the minors but their parenting skills had not improved. The social worker questioned the parents ability to care for the minors when they were able to deal with the siblings only in a supervised setting. Another social worker said recent sibling visits had been better with fewer children and petitioner had shown some progress in parenting. There was testimony the parents had continued their services and were doing well. A foster agency social worker and A.-Y.s foster mother both testified they observed A.-Y.s seizures which were separate from breath holding incidents. The foster agency told the parents about A.-Y.s breath holding spells and gave them information on the disorder. However, the parents later minimized A.-Y.s seizures as breath holding spells, not understanding, despite explanation from the foster care nurse, that both conditions existed. The parties stipulated that no services were provided to the parents by DHS since the birth of A.-Y. The social worker testified she was aware of the programs the parents were in and felt they were doing the best they could. She stated that petitioners sobriety was positive but it did not necessarily translate into application of adequate parenting skills as they related to young children. The social worker opined there was a continued risk of harm to the minors based on the prior psychological evaluation which stated the parents were unable to benefit from services; the prior history of extensive services and redetention of the siblings; the apparent lack of benefit in parenting from the services in which the parents engaged on their own; and the seriousness of the problems the parents have had in the past. The social worker was also concerned because the parents were in denial about the minors medical issues although they had been told of their rights to attend medical appointments, and they might not be responsive to emergencies.

At the close of testimony and argument, the court acknowledged that, after the siblings hearings, during which the parents had presented evidence of services in which they participated on their own, the court was ready to place the minors with the parents but did not know then whether they had benefited from the services. The court addressed some of the evidence, stating that it did not place great weight on the claim the minors had special needs. Noting the report of the observed visit in the parents home was heavy handed, the court did wonder why the television was on throughout the visit, or at all, and noted that stepping over a baby gate holding a child did present a danger. Considering both the services in Sacramento County and those the parents obtained on their own, the court found active efforts required by ICWA were made but were unsuccessful given that the siblings were redetained within four months of the dismissal of the first dependency and the parents had no idea how to care for their children. The court also found Dr. W.s current opinion was it would still be detrimental and a risk of harm to the minors remained if they were returned home.

Accordingly, the court denied services to the parents ( 361.5, subds. (b)(2) & (b)(13)) and set a section 366.26 hearing as to both children.

DISCUSSION

I

Petitioner contends there was insufficient evidence to support the juvenile courts jurisdictional findings as to the two minors. Asserting that his two years of sobriety and the lack of evidence of domestic violence demonstrated the conditions relating to the siblings no longer remained, and that the court initially indicated its intent to return J. to parental custody, petitioner argues that the court improperly shifted the burden to the parents to show they were not a risk to the minors, and that the prior acts of neglect were not enough to show a present risk of harm to the minors.

When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing, the reviewing court must determine if there is any substantial evidence (evidence that is reasonable, credible and of solid value) to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, we resolve in favor of the prevailing party any conflicts in the evidence because the trier of fact, not the reviewing court, is the judge of the credibility of the evidence. (In re Jason L., supra, 222 Cal.App.3d at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) Thus, we may not reweigh the evidence when assessing its sufficiency. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

When A.-Y. was detained, there was an issue concerning the mothers continued substance abuse. Both parents had relapsed into substance abuse after completing more than two years of services and reunifying with the siblings. The substance abuse had directly placed the siblings at risk of physical harm, and petitioner had engaged in violent conduct as to one sibling. Services were denied to the parents after two psychological evaluations for each parent stated they were unable to benefit from services.

J. was born a year after A.-Y. was detained but prior to her jurisdictional hearing. Both parents had participated in ongoing services, including therapy expected to improve their judgment and insight on issues related to their children. Nevertheless, they went to Nevada for J.s birth and subsequently tried to hide the fact of his birth, and the mother refused to sign paperwork to facilitate medical coverage for J. in foster care.

Based on all the evidence, the juvenile court reasonably could conclude that, although the parents had been in services and their substance abuse did not appear to be a current problem, the parents inability to use appropriate judgment in the minors care continued to present a risk of harm to both minors.

In sum, substantial evidence supports the juvenile courts finding that both minors came within the provisions of section 300, subdivision (b) because there was a substantial risk that the child[ren would] suffer[] serious physical harm or illness[] as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the child . . . . ( 300, subd. (b).)

II

Petitioner contends that because DHS neither offered nor provided any services to him at any time after the siblings were removed, there were no active efforts to prevent the breakup of the Indian family as required by section 361.7 and 25 United States Code section 1912(d); thus, the juvenile court could not find that there was compliance with the substantive provisions of ICWA.

ICWA protects the interests of Indian children and promotes stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. 1901, 1902, 1903(1), 1911(c), 1912.) Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. (25 U.S.C. 1912(d); 361.7, subd. (a).) In promulgating subdivision (d) of section 1912, Congress sought solely to rectify the nonprovision of any services to Indian families. (In re Michael G. (1998) 63 Cal.App.4th 700, 711.)

What constitutes active efforts shall be assessed on a case-by-case basis. ( 361.7, subd. (b).) When active efforts were made to provide services relating to one sibling group removed from parental custody, ICWA does not require provision of duplicative services relating to subsequent siblings who are later removed from the parents. (Letitia V. v. Superior Court (2000) 81 Cal.App.4th 1009, 1016 (hereafter Letitia V.).) Active efforts require only that timely and affirmative steps be taken to avoid the breakup of Indian families whenever possible by providing services designed to remedy problems which might lead to severance of the parent-child relationship. (Ibid.) While Letitia V. and cases cited therein generally dealt with parents who refuse to participate in or complete services (see id. at pp. 1016-1017), the principles stated in Letitia V. apply equally to parents who have been found unable to benefit from services despite their continued efforts to engage in services. Congress intended there should be some attempt to preserve Indian families by resolving problems placing children at risk. It could not have intended that agencies continue to provide services over and over to parents, regardless of their lack of progress or ability to benefit from such services.

Here, the juvenile court considered not only the services in the siblings case but also the parents subsequent efforts, and found all the remedial efforts were unsuccessful in preventing the breakup of the Indian family because the parents did not benefit from the extensive services in which they engaged. Indeed, in the view of the tribe, the Sacramento County services alone were active efforts to avoid the breakup of the Indian family, but the parents parenting skills were still questionable.

Consequently, the juvenile court did not fail to comply with the substantive provisions of ICWA.

III

Petitioner asserts the court erred in denying him services pursuant to section 361.5, subdivisions (b)(2)^[2]and (b)(13). Because we need find only one valid ground for the denial of services, we limit our discussion to denial of services under subdivision (b)(13). (In re Jasmine C. (1999) 70 Cal.App.4th 71, 76.)

Section 361.5, subdivision (b)(13) permits the juvenile court to deny services to a parent if it finds [t]hat the parent . . . of the child has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the courts attention, or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan required by section 358.1 on at least two prior occasions, even though the programs identified were available and accessible.

The evidence showed petitioner had a history of alcohol abuse that was extensive, abusive, and chronic. The original removal of the siblings and their redetention were both based on petitioners alcohol abuse. The evidence also showed that by his intoxication in April 2006, which was within three years of filing both A.-Y.s petition in March 2007 and J.s petition in March 2008, petitioner resisted the prior court-ordered treatment in the siblings original case. (Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1010.)

Thus, the juvenile court properly found that petitioner came within the provisions of section 361.5, subdivision (b)(13).

IV

Petitioner argues that section 361.5, subdivision (b)(13) constitutes an unconstitutional denial of equal protection of the law because it lacks a bail out provision like that in section 361.5, subdivision (b)(11), which permits a parent whose parental rights regarding a minors sibling were terminated, to avoid the denial of services with respect to the minor by showing that following the termination of parental rights regarding the minors sibling, the parent made a reasonable effort to treat the problems that led to removal of the sibling from parental custody.

The contention fails because there exists a rational basis for the Legislature to treat differently a parent who has a history of extensive, abusive, and chronic use of alcohol or drugs and has resisted court-ordered treatment for the problem during a three-year period immediately prior to filing of a dependency petition, or has failed or refused to comply with an alcohol or drug treatment program in a case plan on at least two prior occasions. This is so because common experience has shown that extensive, abusive, and chronic parental drug or alcohol addiction has profoundly detrimental effects upon a child of the parent and that it is particularly difficult for such a parent to permanently overcome the addiction, i.e., not relapse when faced with challenges of ordinary life. Thus, the Legislature rationally could conclude the risk posed to a child by such a parents relapse into drug or alcohol addiction requires a different treatment of those who are clean and sober when the dependency dispositional hearing is held but who have resisted treatment for the problem during a three-year period immediately prior to filing of the dependency petition or have failed or refused to comply with a drug or alcohol case plan treatment program on at least two prior occasions. (See Kasler v. Lockyer (2000) 23 Cal.4th 472, 481-482 [[I]n areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. [Citations.] Where there are plausible reasons for [the classification] our inquiry is at an end.].)

V

Petitioner, presumably applying the reasonable efforts clause of section 361.5, subdivision (b)(11) to his case, argues there were insufficient facts to justify denial of services. Not so.

Facts developed over several months of hearings were sufficient to support a finding that the parents had, and continued to have, a serious inability to parent their children. The juvenile court reasonably could find that while they were making some improvements with the older children, the parents continued to show they did not recognize risky behavior and did not possess the basic techniques for interacting with their children and controlling their behavior. Simply stated, there was no evidence that reunification was in the best interests of the minors.

DISPOSITION

The petition is denied.

SCOTLAND , P. J.

We concur:

RAYE , J.

ROBIE , J.

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^[1] An eighth sibling was born in November 2004.

^[2] Section 361.5 subdivision (b)(2) states that reunification services need not be provided to a parent who is suffering from a mental disorder that renders the parent incapable of utilizing such services.