Zane s. v. Superior Court

Filed 10/30/06 Zane s. v. Superior Court CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

ORIGINAL PROCEEDING; petition for extraordinary writ. Writ denied with directions.

________

Zane E. Smith, in pro. per. for Petitioner.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Judith A. Luby, Deputy County Counsel for Real Party in Interest.

Children’s Law Center and Janna K. Eccleston for Minors Dori S. and Angel S.

_________

Zane S., father of dependent daughters Dori S. and Angel S., petitions for extraordinary writ review of orders setting a permanency planning hearing and terminating reunification services. (Welf. & Inst. Code, §§ 366.22 and 366.26,^[1] rule 38.1.) We deny the writ, but we also instruct the juvenile court to ensure that the Los Angeles County Department of Children and Family Services (DCFS) has complied fully with the notice provisions of the Indian Child Welfare Act (ICWA) in title 25 of the United States Code, section 1912, subdivision (a) before proceeding with the scheduled permanency planning hearing.

BACKGROUND

Mother Tomeka C. is not a party to this appeal. Yet because her interactions with DCFS have dominated the agency’s decisions regarding the children from the time they were removed from her custody to the present, we find it necessary to briefly review this history along with the evidence in the record pertaining to father.

Dori S. (born in August 1995) and Angel S. (born in August 1996) are daughters of both mother and father. A third child, D. P. (born in November 1991), is the son of mother and a different father and is not a party to this appeal. On November 15, 2004, all three children were removed from mother’s custody based on DCFS’s allegations of child neglect and endangerment. In particular, DCFS reported that mother had a history of abusing marijuana, and that she prevented the children from attending school and locked them in their house, which had several boarded up windows and was heated by an open flame from the stove. Mother believed that she and her family were threatened, followed, and stalked by various identified or unidentified persons. She refused DCFS assistance.

The DCFS caseworkers reported their concern that the children faced danger from being locked in a house with an open flame and with boarded up or barred windows. They also concluded that mother needed a mental health assessment. They detained the children and requested that a section 300 petition be filed on their behalf.

The DCFS detention report, dated November 18, 2004, reviewed the family’s earlier history involving DCFS. The children previously had been removed from mother’s custody temporarily because of her drug use, but had been returned in June 2001. Later, there were repeated allegations of mother’s physical or emotional abuse and general neglect of the children. In each of the eight reported incidents, which spanned the period from June 2001 to March 2004, DCFS investigated, found the allegations to be unfounded, and found the children well cared for. In five of these eight incidents, father was known or believed by DCFS to be the reporting party, alleging abuse by mother. In one incident in November 2003, mother reported father for general neglect. In a February 2004 investigation, mother said that she was in the process of moving to a shelter because of father’s harassment. Father, when interviewed by DCFS before the children’s detention, announced his intention to get custody of them and to take mother to court, lengthily recounted his disagreement with mother over taking the children out of school, and referred to mother as a “prostitute” who is “crazy” and needs help. In November 2004, mother said that the two daughters had not been in father’s presence since July 4, 2004, though she claimed that father was always free to visit. Father claimed that mother refused to let him see his daughters and only allowed him to talk to them by telephone.

At the section 300 hearing, the juvenile court granted the DCFS petition, finding substantial danger to the children’s physical and emotional health if they were not removed from mother’s home. The court ordered the parents not to discuss the case and the petition allegations with the children and ordered DCFS to provide the parents with family reunification services and to refer mother and father for parenting classes and individual and family counseling. The court allowed father and mother monitored visits.

Following father’s indication to DCFS interviewers that he might be part Blackfoot, the detention report noted that “[t]he Indian Child Welfare Act does or may apply.” At the section 300 hearing, the court ordered DCFS to “investigate possible American Indian Heritage[,]” notify the federal Bureau of Indian Affairs and the Blackfoot tribe, and contact father’s relatives about the possible tribal affiliation. Later, in December 2004, DCFS interviewed father regarding his possible American Indian heritage, and father again stated his belief that he had Blackfoot ancestry, though he could not provide details on the ancestor or on geographical location. DCFS noted in its December 15, 2004 Jurisdiction/Disposition Report that father agreed to get this information and send it to DCFS.

In the December report, DCFS reported on the parents’ criminal history. Father admitted to selling and using drugs during high school and to past gang affiliation, including participating in founding the Crips. But he claimed all that was behind him, and that he now mentored youth on how to avoid the dangers of the streets. Since 1982, he had been charged with growing marijuana, spousal battery, and resisting a peace officer. He promised to undergo drug tests on demand, but he admitted to having smoked marijuana within the past month.

When DCFS gathered information for the December 2004 report, various interviewees alleged various improper conduct by mother and father. Mother and father also sharply accused each other of conduct unsuitable for a parent. DCFS reported allegations that father hid guns around his house, had physically abused mother repeatedly, acted verbally abusive toward his relatives and intimidating toward others generally, hired people to follow mother out of intense jealousy, and violated the court’s order not to discuss the case with his daughters.

In a January 2005 supplemental report, DCFS noted, “The Indian Child Welfare Act does or may apply,” but added that father still had not provided additional information on his claimed American Indian heritage. But in another supplemental report prepared in late March, 2005, DCFS stated, “The Indian Child Welfare Act does not apply,” while still noting father’s ancestry claim and his failure to provide additional evidence. As late as July 27, 2005, DCFS’s reports still included the note about father’s ancestry claim, but later reports did not.

Father attended several court hearings on the children’s cases but missed others. In a March 2005 supplemental report, DCFS reiterated its recommendation that mother and father comply with the court-approved case plan, including random drug testing and participation in an approved drug assessment and treatment program, a counseling program for physical abuse, domestic violence, parenting education, and individual counseling, and family reunification services. DCFS expressed concern about the quality of father’s parental visits, noting that he attended scheduled visits but showed little interest in the children, instead “talk[ing] to the caregiver about being the founder of the ‘Crips’ street gang and his endeavors.” The report further warned, “There is no documentation that [father] is participating in any DCFS recommended programs . . . he said that he is not going to participate in any programs because, ‘I teach those things to teenagers, why should I have to go.’”

In a May 2005 report, DCFS further noted that in separate interviews in April, both daughters told a caseworker that father had talked to them about court matters and instructed them to say that they wanted to live with him. Father also told a caseworker that he was concerned that mother would reunite with the children and move away, and that he had hired a private attorney and would contact the district attorney about mother’s illegal acts. A caseworker later admonished father for discussing the court case with the children. A DCFS psychological specialist reported that the children described their father as an angry man. The specialist noted about father, “‘He tries to be intimidating, I couldn’t have family session [sic] with the children in the room because he is so aggressive. I don’t think custody should change from mother to father.’” A caseworker reported regarding a telephone conversation with father that father accused mother of trying “‘to set him up[,]’” repeated his earlier complaints about mother dressing her daughter inappropriately, said, “‘If she does anything to harm my babies I’ll see her in her grave[,]’” then abruptly hung up the phone. In July 2005, a DCFS official reported that father had had no contact with her and only sporadic contact with a fellow caseworker, always asking, “‘why can’t I have the girls?’” He failed to show up at two scheduled visits in May 2005. Father missed drug tests in April, May, and June 2005. DCFS found no significant evidence of father’s compliance with the family case plan or DCFS recommendations.

In August 2005, the juvenile court warned mother and father to comply with their case plan. In October 2005, a DCFS caseworker noted that father had contacted her only twice during the past supervision period and had confirmed receiving a letter from DCFS telling him that DCFS had made repeated unsuccessful efforts to contact him. The caseworker reported that father had shown no evidence of enrolling in any of the court-required programs. DCFS emphasized to both mother and father the importance of complying with the court’s orders.

In October 2005, DCFS changed the children’s placement after a gun violence incident at their caregiver’s home. The following month, father filed a petition pursuant to section 388 requesting that his daughters be placed in his home. In the petition, father claimed that he had a stable home, was a “very responsible” father, and did not use drugs. In an attached letter, he expressed his Christian values, his concern about his daughters’ education, character, and self-esteem, his love for his daughters, and his participation in their school activities. He mentioned that one of his daughters, whom he raised, had just completed college and was preparing for medical school.

In late 2005, DCFS reported that father was not engaging in court-ordered drug testing, individual counseling, or domestic violence education. Although father stated that he was unable to test because of his employment as a truck driver and his work hours, caseworkers usually found him at home when they called him during the day. Father admitted to physically abusing three of the four women with whom he had conceived children. DCFS concluded that father had not shown changed circumstances to justify placing his daughters with him.

In January 2006, DCFS interviewed father’s adult daughter who planned to study medicine. This daughter reported never having seen domestic violence between father and her mother and that father was always there for her financially and emotionally and helped her toward her career goals. The adult daughter called her father an excellent caregiver and felt that he would be for the two young daughters as well. A DCFS official also reported that father’s parental visits and telephone conversations were going smoothly, that the daughters really seemed to enjoy the visits, and that father recently had enrolled in a program to get him in compliance with the court’s orders. At a January 2006 hearing, the court noted that father’s section 388 petition was withdrawn. But the court allowed father unmonitored four-hour day visits with his daughters and ordered that after two consecutive clean drug tests, he could have overnight visits. Father was warned that if he failed to test, visits would go back to monitored.

In February 2006, father reported to DCFS that he was feeling serious stress over property and financial difficulties, particularly a threatened foreclosure of his house. He said that he could not both work and complete court-ordered programs. Father repeatedly claimed to be attending court-ordered counseling and classes, but never enrolled, even though the program allowed him to volunteer his special skills in lieu of payment. During February 2006, father had one successful parental visit, but did not show up for another visit. He had three negative drug tests but missed a test in January. Father complained that DCFS was ruining his life and livelihood. He never initiated four-hour visits because he said he could not afford to pick up his daughters. The girls’ caregiver reported that father told them that he was going to lose everything because of DCFS and the courts. At a hearing in late February, the court ordered DCFS to facilitate father’s visits, including providing transportation funds.

In a six-month status review report from June 2006, DCFS reported that father had not drug tested since March. The report noted father’s history of not complying with court orders and his case plan. Father showed his caseworker a certificate of completion of a parenting program, but had made no progress on other aspects of his case plan and said he could not. Father had not maintained consistent contact with DCFS, and DCFS had difficulty contacting him. When contacted, father made various excuses for why he could not drug test.

After the June status review hearing was continued, on July 27, 2006, the juvenile court found both mother and father in only partial and insufficient compliance with the case plan. The court terminated family reunification services, noting that parents were already way past the 18-month deadline for such services. The court set a date for a permanent placement hearing under section 366. 26.

Father attended this hearing, but left before the end of the hearing. The next day, he filed a notice of appeal of the “Termination of Rights (Parental) and all orders of the court.” On August 7, an attorney with the California Appellate Project submitted a brief memorandum noting that she had discussed this notice of appeal with this court’s chief administrative officer and requested that it be treated as a notice of intent to seek a special writ under California Rules of Court Rules 38 and 38.1. On August 30, 2006, father, without the assistance of an attorney, filed a petition for extraordinary writ “To Reunifie the Rights or to restore the Father’s Parental Rights to Unify him with his children at the completion of his tasks ordered by the courts.” Father checked boxes on the form noting that the relief sought was from the setting of the section 366.26 hearing and seeking an order that reunification services be continued. No further explanation or argument was provided.

DISCUSSION

Because father included no further discussion, explanation, or argument whatsoever beyond the form petition he filed, which was itself sparsely filled out, we would be justified in rejecting his petition outright. (See Cheryl S. v. Superior Court (1996) 51 Cal.App.4th 1000, 1005 [outlining the required ingredients of a sufficient petition for an extraordinary writ and threatening dismissal where attorneys file grossly inadequate petitions].) But in recognition of the importance of the right at stake and the critical stage of these dependency proceedings, we will treat father’s petition as though it were adequate and review the record for error. Moreover, DCFS filed a thorough responding brief that acknowledges the inadequacy of notice under the ICWA in this case, and we also must address that issue.

We review an order terminating reunification services for abuse of discretion. (In re Brequia Y. (1997) 57 Cal.App. 1060, 1068.) For a court to abuse its discretion in this context, its determination must be arbitrary, capricious, or patently absurd. (In re Mark V. (1986) 177 Cal.App.3d 754, 759.) We should reverse the lower court’s termination order only if after reviewing all the evidence in the light most favorable to the trial court’s decision, we conclude that no judge reasonably could have arrived at that decision. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067, superseded by statute on another ground as stated in Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.) We note that reunification services need not be perfect, but only reasonable under the circumstances. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) In reviewing the reasonableness of such services, we indulge in all reasonable inferences in support of the judgment. (Ibid.) We also presume that a petitioner has some capacity to achieve the case plan’s reunification goals. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) Reunification services are voluntary and cannot be forced on an indifferent or unwilling parent, and it is not the DCFS’s duty to take a parent by the hand and escort him to required classes or counseling sessions. (In re Christina L. (1992) 3 Cal.App.4th 404, 414-415.)

On the record in this case, we find no indication that DCFS’s reunification services were anything less than reasonable. They also were offered for 20 months, longer than the 18-month maximum normally allowed under section 366.21, subdivision (g)(1). The record gives no sign that additional time for more reunification services would significantly change the situation. For despite DCFS officials repeatedly emphasizing to him the importance of case plan compliance, father repeatedly failed to avail himself of the services that were offered, and persistently expressed his attitude that he should not have to meet the requirements of the DCFS case plan. Although father always had excuses -- work hours, impending foreclosure -- for why he could not fulfill these requirements within the time allowed under section 366.21, subdivision (g)(1), his uncorroborated assertions do not overcome the presumption that he should have been capable of complying more fully with the case plan. As such, the juvenile court did not abuse its discretion by terminating father’s reunification services.

We also note that DCFS repeatedly had trouble contacting father. It is “the obligation of the parent to communicate with the Department and participate in the reunification process.” (In re Raymond R. (1994) 26 Cal.App.4th 436.) Even if the best he could do was to give a fuller, more convincing explanation for why he could not comply in a timely manner, it was father’s duty to maintain regular communication with DCFS. He did not.

We also find no error in the trial court’s determination that the daughters would face a substantial risk of physical or emotional harm if they were left in father’s care. The failure of a parent to participate regularly in court-ordered programs constitutes prima facie evidence that the return of children to the parent would be detrimental. (§ 366.22, subd. (a).) We review the juvenile court’s determination on this issue using the deferential substantial evidence standard. (Angela S. v. Superior Court, supra, 36 Cal.App.4th at p. 763.) We resolve all evidentiary conflicts in favor of the court’s order. (Elijah R. v. Superior Court, supra, 66 Cal.App.4th at p. 969.)

Although father offered certain evidence to show that it would be appropriate to give him custody of his daughters, the record contains extensive evidence suggesting otherwise, in addition to the presumption of unsuitability from his failure to undergo court-ordered treatment, classes, and counseling. Thus there is substantial evidence to support the juvenile court’s determination, and we will not disturb it.

We now turn to the issue of compliance with the federal ICWA that DCFS raises. When there is reason to know that a dependency proceeding involves an Indian child, the responsible agency must notify the federal Bureau of Indian Affairs and the child’s tribe, if known, of the pending proceedings by registered mail, return receipt requested. (In re Brooke C. (2005) 127 Cal.App.4th 377, 383-384.) This notice must include the name of the child’s Indian ancestor and any other identifying information, if known, and no proceeding to terminate parental rights is to be held until at least ten days after receipt of this notice. (Ibid.; see also 25 U.S.C. § 1912, subd. (a); 25 C.F.R. § 23.11(c)(12)(2003).) If notice is not given according to these federal statutory requirements, then the dependency court’s order is voidable. (In re Brooke C., at p. 384; 25 U.S.C. § 1914.) This notice requirement applies even if a child’s Indian ancestry is uncertain. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422.) Because federal statutory requirements under ICWA protect the rights of Indian tribes and children along with parents, a parent’s failure to raise the notice issue does not waive it. (In re Marinna J. (2001) 90 Cal.App.4th 731, 735-736.) DCFS acknowledges that father’s indication of possible Blackfoot heritage was sufficient to trigger these notice requirements under the ICWA.

We agree with decisions of the Court of Appeal holding that failure to give proper notice under the ICWA is not jurisdictional error. (In re Brooke C., supra, 127 Cal.App.4th at p. 384; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1409-1411.) As such, the only order that would be reversible for failure to give notice would be an order terminating parental rights under section 366.26. (In re Brooke C., supra, 127 Cal.App.4th at p. 385.) Because no such order has issued in this case, all other court orders remain in effect. (See ibid.) “The lack of statutory notice nonetheless requires a limited remand to the juvenile court for the Department to comply with the notice requirements of the ICWA, with directions to the juvenile court depending on the outcome of such notice.” (Ibid.) If after appropriate notice the daughters are determined not to be Indian children, then all orders, including a termination of parental rights, will stand. (See ibid.) If the ICWA is found to apply to the daughters, then father may petition the juvenile court to invalidate any orders that were contrary to the ICWA. (See ibid.)

DISPOSITION

The petition for an extraordinary writ is denied. Respondent court shall require DCFS to comply with the notice provisions in 25 United States Code section 1912, subdivision (a) before conducting a hearing in this case pursuant to section 366.26. The juvenile court shall continue the section 366.26 hearing as necessary to allow time for compliance with the ICWA’s notice requirements. After such proper notice, if the daughters in this case are found to be subject to ICWA requirements, DCFS and the juvenile court shall comply with the terms of that act, and father will be entitled to petition the juvenile court to invalidate any existing orders which violated 25 United States Code sections 1911, 1912, and 1913.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, Acting P.J.

VOGEL, J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line attorney.

^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise specified.