Terri M. v. Superior Court

Filed 6/3/08 Terri M. v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS for extraordinary writ. A. Rex Victor, Judge. Petition denied.

Gloria Gebbie, for Petitioner.

No appearance for Respondent.

Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Real Party in Interest.

Petitioner Terri M. (mother) filed a petition for extraordinary writ pursuant to California Rules of Court rule 8.452 (formerly rule 38.1( a)), challenging the juvenile courts order terminating reunification services as to her child, Melanie (the child) and setting a Welfare and Institutions Code^[1]section 366.26 hearing. On March 19, 2008, this court stayed the section 366.26 hearing, pending further order. We lift the stay.

Mother now argues that: 1) the juvenile court failed to comply with the notice requirements of the Indian Child Welfare Act (25 U.S.C.  1901 et seq.; ICWA); and 2) she did not receive reasonable reunification services since she was denied visitation with the child. We deny the writ petition.

FACTUAL AND PROCEDURAL BACKGROUND

On July 10, 2006, the Department of Childrens Services (the department) filed a petition on behalf of the child, who was 11 years old at the time. The petition alleged that the child came within section 300, subdivisions (b) (failure to protect), (c) (serious emotional damage), (g) (no provision for support), and (j) (abuse of sibling). Essentially, the petition alleged that mother had repeatedly exposed the child to domestic violence, which resulted in the child suffering emotional damage, that mother had a substance abuse problem, and that she had a history of inappropriately disciplining the child, including hitting her with a paddle. The petition also alleged that the childs siblings were previously adjudicated under section 300, and that mother physically abused one of the childs siblings. The allegations under subdivision (g) (no provision for support) only concerned the childs alleged father, who is not a party to this petition.

In the detention report, the social worker reported that, including the child, mother had seven children (the children) who were all subjects of the section 300 petition. (This writ petition only concerns the child.) Furthermore, there were prior substantiated referrals with the department on July 10, 2003, for emotional abuse, severe neglect, general neglect, and on August 12, 2002, for general neglect.

The detention hearing was held on July 11, 2006. Counsel for the children noted that the child and two of her siblings were refusing visits with mother at that time due to mothers continuous verbal abuse and constant pressure she put on them. The court found it was in the best interest for them not to have visitation, at least until the jurisdiction/disposition hearing. The court detained the child (and her siblings) in confidential placements. The court then asked mother if she had any Indian heritage. Mother said, Im not sure. My mom is over there if you want to ask her. The court asked mothers mother (the maternal grandmother) if there was any American Indian heritage, and she said, No. However, the same day, mother signed a JV-130 (Parental Notification of Indian Status) form indicating that she may be a member of, or eligible for membership in, the Cherokee tribe.^[2]

Jurisdiction/disposition Report and Hearing

The social worker filed a jurisdiction/disposition report recommending that the court declare the child a ward and that no reunification services be provided to mother. Furthermore, the social worker reported that on July 20, 2006, she talked to the maternal grandmother again, and she again denied any Native American ancestry. The maternal grandmother further stated that mothers father, Terry (the maternal grandfather), also had no Native American ancestry. Consequently, the social worker recommended that the court find that the child ICWA did not apply.

The social worker opined that the most significant problem in the family was that mother and her husband continued to participate in domestic violence and substance abuse in front of the children. The social worker reported that the children had been detained twice before once in Riverside County and once in San Bernardino County. Mother had completed reunification services twice, including parenting classes, substance abuse treatment and testing, therapy, and anger management, but apparently did not benefit from them. Mother continued to deny there were ever any problems.

At the jurisdictional/dispositional hearing on August 1, 2006, counsel for the department informed the court that mother stated there was possible Indian heritage, but noted that the maternal grandmother had denied Indian heritage. Counsel asked the court to get clarification from the maternal grandmother. The maternal grandmother then stated, I dont think there is, because her [mothers] grandmother on the fathers side had Indian in her. (Italics added.) The court asked the maternal grandmother if she knew her mother-in-law. The maternal grandmother said, Yeah. The court then asked if the mother-in-law ever said anything about being an Indian. The maternal grandmother said, No. The court stated it was going to find that there was no Indian heritage.

At a contested jurisdictional hearing on September 1, 2006, counsel for the department addressed the court as follows: I dont have an [ICWA] declaration. I am hopeful the Court does. We would also submit that into evidence. Triable [sic] notification was required, and were in the process of that. [] I understand there was a discussion on the record at the last hearing, which, Im sorry, I was not at. I didnt see a note regarding that. Mom, although, filled out a JV130 indicating she thought she had Indian heritage, named the Cherokee tribe. Maternal grandmother was interviewed, I believe, at Court, and the Court made a finding the children do not come within the [ICWA]. Theres no reasonable basis to find that the act applied. [] In the alternative, well be happy to go ahead even after juris and notify the tribe.

Mothers counsel stated: Mother thinks that the maternal grandfather had Cherokee heritage. Counsel for the department replied that, out of an abundance of caution, she would be more comfortable in notifying the tribe. The court responded, I think were fine. The departments counsel then said, Okay. Well do that. Finally, the court said, All right. So, Ill just hold off the finding on Indian heritage. (The only apparent references to ICWA were in the departments reports filed on February 23, 2007, and August 23, 2007. Both reports stated that ICWA did not apply.)

Based on a settlement by the parties, the court sustained a single allegation under section 300, subdivision (b), that mother has exposed minors to family violence, and is unable to meet the minors emotional and physical needs. The court declared the child a ward of the court and ordered mother to participate in reunification services. Counsel for the department then inquired about visitation, reminding the court that it had previously ordered that visitation with mother was detrimental to the child. Counsel then requested the court to order supervised visitation upon mothers therapists evaluation that the child was ready for visits. The visits would be at a frequency that was approved by the social worker, therapist, and the court. After some objection by mothers counsel, the court agreed to order monthly visitation in a therapeutic setting. The court then set a six-month review hearing for March 1, 2007.

Six-monthStatus Review and Hearing

The social worker filed a six-month review report on February 23, 2007. The social worker reported that the child strongly indicated she did not want to reunify with mother and that she wanted no contact at all with her. The child referred to mother by her first name. The social worker opined that it would be extremely detrimental to return the child to mothers custody, since she was unwilling to go. The child was doing exceptionally well in her placement and wanted to be adopted by her foster parents. The foster parents had likewise indicated their desire to adopt her.

The social worker reported that mother had participated in services and completed the case plan objectives. However, the social worker was greatly concerned because she still had not seen any real change in mothers behavior and attitudes. Mother refused to take responsibility for her actions and felt that others were to blame for the childs removal. The social worker could not recommend that the child be returned to mothers custody until mother concentrated on her behavior that had caused her children to be dependents of the court three times.

The six-month hearing was held on March 1, 2007. Counsel for the department requested the court to suspend visitation with the child until it received a report from the childs therapist about the detriment to the child of having visitation with mother. The court agreed and trailed the matter to March 16, 2007.

On March 2, 2007, the childs therapist, Patricia Nevel, met with the child for their fourth therapy session. In a letter to the social worker, Nevel stated that the child was extremely anxious after the prior days court hearing. The child was adamant about not wanting to visit mother. The child described mother as violent, and she expressed fear that she would be beaten again and that mother could kill her. The child told Nevel she heard mothers husband (the childs stepfather) tell mother that he could kill the children and bury them in the backyard. Nevel observed that the child was quite expressive and strong in her statements, and that the child had no bond with mother. Nevel opined that the child had been severely traumatized by her past experience with mother. Nevel concluded that it was not clear that visitation at this time would be beneficial in any way.

At the hearing on March 16, 2007, the social worker submitted the letter from Nevel into evidence. The court continued the matter to May 3, 2007.

At the hearing on May 3, 2007, counsel for the department asked the court to find visitation between mother and the child detrimental. Mother argued for visitation in a therapeutic setting. The social worker stated that the child was still opposed to seeing mother, but that she was working on that issue with her therapist. The court then made clear that neither the child nor the therapist had the legal authority to decide when visits were appropriate, but it was a decision for the court. The court stated it was going to order six more months of reunification services and proposed that both mother and the child submit reports from therapists regarding visitation. After considering both reports, the court would make a decision about whether or not to order visitation, and under what circumstances it would order visitation. The court stated that if the child refused to participate, all it could do was make the orders and encourage. All parties agreed to the proposal. The court then found that visitation, at that time, was detrimental, and suspended it pending further order. The court scheduled a hearing in six weeks, at which time it would consider the recommendations from the therapists and make a further determination about visitation.

Hearings Regarding Visitation

The next hearing was held on July 16, 2007. The department maintained that visitation was detrimental and referred to letters from Nevel dated March 2, 2007 and June 19, 2007. The court found that mother had failed to make substantive progress in her treatment plan and continued the child as a dependent of the court. It continued the matter to the 12-month hearing on January 15, 2008. The court then turned to the issue of visitation, stating that it had read the documents submitted, including a letter dated July 12, 2007, from Nevel. The July 12, 2007, letter stated that the child was articulate about her feelings concerning growing up in an abusive environment with mother and her stepfather. Nevel stated that there had been no change in the childs feelings about visitation, and that she still became anxious when the topic was discussed. Nevel further reported that, during a therapy session on May 24, 2007, the child became visibly upset when she saw a person in the waiting room whom she thought was mother. Nevel stated that the child remained frightened of any contact with mother. The child still felt she would be vulnerable and in a position of harm and was adamantly opposed to visitation. Nevel concluded it would be detrimental for the child to have any forced visitation with mother. The departments counsel argued that the main obstacle to reunification between mother and the child was that the child was extremely fearful of family circumstances. She had been removed from custody at least three times. Based on the facts and circumstances of the case, the family history, and Nevels report, the department requested the court to find that visits between mother and the child were detrimental. Mother still argued for visitation, under any circumstances that the department deemed best. Mothers counsel asked the court to consider Nevels letter with caution, since Nevel was the therapist who was trying to help the child and had to maintain her trust. Mothers counsel told the court not to put it on the therapist since she just did her job and said visitation would be detrimental. He then stated that mother had not been afforded visitation since the beginning of the case and that it was time. Mothers counsel ultimately requested the court to grant visitation in a therapeutic setting.

The court responded that it agreed with mothers position regarding how it should view the therapists report. However, the court stated that mother was to blame for where she was at, and noted that the child had been removed on three prior occasions. The court opined that mother treated the child like a piece of furniture, not as a child. The court stated that her treatment of the child was offensive and that she failed dismally in protecting the child. The court said it did not blame the child for being scared to death of mother, and that it would be scared too. The court candidly stated that it doubted there would ever be a reconciliation and that it would not want the child back in mothers home. The court noted that mother apparently did not control the stepfather and that she allowed trauma in the home. The court then found that visitation remained detrimental at that time, but advised that it eventually wanted some therapeutic visitation, and it would look a lot harder at it in September. The court then set a hearing for September 10.

12-month Status Review Report and Hearing

The social worker filed a status review report recommending that reunification services be terminated and a section 366.26 hearing be set. The social worker reported that the child continued to state she did not want any contact with mother, and the mere mention of mothers name caused her to become terrified and paranoid. The child recently told the social worker that she had nightmares that mother kidnapped her from her placement during the night. The therapist was working on these issues with the child. The child continued to thrive in her current placement and stated that she felt safe, loved, and secure there. She referred to her foster parents as Mom and Dad. The social worker was convinced that returning the child to mothers custody would be extremely detrimental.

On September 10, 2007, the court held a brief hearing and decided not to make any changes regarding visitation. The court continued the hearing to September 21, 2007.

The social worker filed an addendum report on September 20, 2007 and attached a copy of another letter from Nevel, dated September 20, 2007. The letter stated that there had been no change in the childs feelings regarding visitation. The child continued to refer to mother by her first name and to express fear that she would be physically harmed if she had contact with her. Nevel concluded that it would be detrimental to the child to have any forced visitation with mother when the child was still adamantly opposed. The child felt that she was too vulnerable and fearful for her safety to have contact with mother, but said she would as an adult. The social worker noted that the child was able to emotionally separate herself from mother, while some of the childs siblings had formed a trauma bond (an unhealthy bond) with them.

On December 4, 2007, a contested 12-month hearing was held. The court admitted into evidence the 12-month review report and addendum report, including the letter from Nevel dated September 20, 2007. After hearing testimony from mother, the social worker, and the childs foster mother, the court concluded it would be cruel and unconscionable to drag a child, kicking and screaming, into a room to visit with a parent she adamantly said she did not want to visit. The court noted that the foster parent and the social worker had encouraged the child to participate in visitation. The therapist had tried to persuade and facilitate conjoint therapy. However, the child still refused. The court stated: [S]o absent force, I see no alternative but not to have visitations. The court stated that force would be completely inappropriate and traumatizing, noting that the child already had nightmares about mother kidnapping her. The court remarked that it was just dum[b]founded that mother could not tell the court how long she had been separated from the child whom she professed to love and want to be with. The court then noted that mother had completed some components of her case plan but had not benefitted from them. The court found it would be detrimental to return the child to mother. The court found that reasonable services had been provided and commented that it found it difficult to imagine what more could be done to achieve reunification with the child. The court noted mothers resistance and refusal to see that anyone else was correct except her. The court then terminated reunification services and set a section 366.26 hearing. The court finally found that visitation was detrimental to the child and stated that the previous order suspending visitation remained in full force and effect pending the outcome of the section 366.26 hearing.

ANALYSIS

I. There Was No ICWA Violation

Mother argues that the court failed to comply with the notice requirements of ICWA. She asserts that ICWA required that notice be provided to the Cherokee tribes. We conclude that the court had no reason to believe the child had Indian ancestry, and that the ICWA notice requirements were not triggered.

When a court knows or has reason to know that an Indian child is involved in a dependency proceeding, the childs tribe must be notified, or if the tribe is not known the BIA must be notified, of the pending proceeding and of the tribes right to intervene. (25 U.S.C.  1912(a).) The notice requirements are triggered even if the childs Indian status is uncertain and the court only has reason to believe the child might be an Indian child. (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1266-1267.)

Here, at the detention hearing on July 11, 2006, the court asked mother whether she had Indian heritage. Mother stated, Im not sure. My mom is over there if you want to ask her. The court then asked the maternal grandmother if there was any Indian heritage, and she said, No. However, the same day, mother signed a JV-130 form indicating that she may be a member of, or eligible for membership in, the Cherokee tribe.

On July 20, 2006, the social worker talked to the maternal grandmother again, and she again denied any Native American ancestry. The maternal grandmother also stated that mothers father, Terry (the maternal grandfather) had no Native American ancestry. Consequently, the social worker recommended that the court find that the ICWA did not apply.

At the jurisdiction/disposition hearing on August 1, 2006, counsel for the department informed the court that mother stated there was possible Indian heritage, but noted that the maternal grandmother denied Indian heritage. Counsel asked the court to get clarification from the maternal grandmother. The maternal grandmother then stated, I dont think there is, because her grandmother on the fathers side had Indian in her. (Italics added.) The court then asked the maternal grandmother if she knew her mother-in-law. The maternal grandmother said she did, but when the court asked if the mother-in-law ever said anything about being an Indian, the maternal grandmother said, No. The court then stated it was going to find there was no Indian heritage.

The record makes it clear that mother had no knowledge of any Indian heritage, and that she was entirely dependent on the maternal grandmother for any information in this regard. The maternal grandmother unequivocally denied Indian heritage twice. Subsequently, she mentioned that mothers paternal grandmother had Indian in her. However, when the court inquired further, the maternal grandmother said that the paternal grandmother had never said anything about being Indian. Thus, the court had no reason to believe that the child had Indian heritage, and the ICWA notice requirements were not triggered.

Mother points out that the departments counsel acknowledged, at the hearing on September 1, 2006, that notice was required. There is no record that notice was ever sent out. The statements of counsel at the September 1, 2006, hearing were as follows: I dont have an [ICWA] declaration. I am hopeful the Court does. We would also submit that into evidence. Triable [sic] notification was required, and were in the process of that. [] I understand there was a discussion on the record at the last hearing, which, Im sorry, I was not at. I didnt see a note regarding that. Mom, although, filled out a JV130 indicating she thought she had Indian heritage, named the Cherokee tribe. Maternal grandmother was interviewed, I believe, at Court, and the Court made a finding the children do not come within the [ICWA]. Theres no reasonable basis to find that the act applied. [] In the alternative, well be happy to go ahead even after juris and notify the tribe. (Italics added.) Mothers counsel interjected: Mother thinks that the maternal grandfather had Cherokee heritage. Counsel for the department stated that, out of an abundance of caution, she would be more comfortable in notifying the tribe. The court responded, I think were fine.

Essentially, there was no evidence of any Indian heritage presented at the September 1, 2006, hearing. Although mothers counsel stated that mother thought the maternal grandfather had Cherokee heritage, the maternal grandmother previously stated that the maternal grandfather had no Native American ancestry. In any case, the information provided by mother that she thought the maternal grandmother had Cherokee heritage was too vague and speculative to give the juvenile court any reason to believe [the child] might be [an] Indian child[]. (In re O.K. (2003) 106 Cal.App.4th 152, 157.)

We further note that, on appeal, mother has not even suggested that the child has any Indian heritage.

Based on the record, the court had no reason to believe that the child had any Indian heritage, and the notice requirements were not triggered. We conclude that there was no violation of ICWA.

II. There Was Substantial Evidence That Reasonable Reunification Services

Were Provided

Mother argues that she did not receive reasonable reunification services since she was improperly denied visitation. Mother asserts that the only reason the court never allowed visitation was the childs refusal to visit with her; she then argues that the refusal of a child to visit is not a permissible basis to deny visitation in and of itself. We conclude that the courts orders concerning visitation were reasonable and appropriate under the circumstances.

A. Standard of Review

[W]ith regard to the sufficiency of reunification services, our sole task on review is to determine whether the record discloses substantial evidence which supports the juvenile courts finding that reasonable services were provided or offered. [Citations.] (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) The standard is not whether the services provided were the best that might have been provided, but whether they were reasonable under the circumstances. [Citation.] (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.)

B. The Court Properly Suspended Visitation

Section 362.1, subdivision (a)(1)(A) provides that any order placing a child in foster care, and ordering reunification services, shall provide . . . . [] . . . for visitation between the parent or guardian and the child. Visitation shall be as frequent as possible, consistent with the well-being of the child. (Italics added.)

While visitation is a key element of reunification, the court must focus on the best interests of the children and on the elimination of conditions which led to the juvenile courts finding that the child has suffered, or is at risk of suffering, harm specified in section 300. [Citation.] This includes the possibility of adverse psychological consequences of an unwanted visit between mother and child. [Citation.] (In re Julie M. (1999) 69 Cal.App.4th 41, 50 (Julie M.).) [T]he court may appropriately rely upon an evaluation by treating therapists of the childrens emotional condition and evolving needs. [Citation.] (Id. at p. 51.)

Here, the courts orders regarding visitation were appropriate since they were clearly based on the well-being of the child. At the detention hearing, the court found it was in the childs best interest not to have visitation, at least until the jurisdictional/dispositional hearing, based on the childs refusal to visit, mothers verbal abuse, and the constant pressure mother put on the child. Then, at the jurisdictional/dispositional hearing, the court ordered monthly visitation in a therapeutic setting. However, the social worker subsequently reported that the child wanted no contact with mother and did not want to reunify with her. At the six-month review hearing, the court suspended visitation until it received a report from the childs therapist about the detriment to the child of having visitation with mother. The childs therapist, Patricia Nevel, reported that the child was adamant about not wanting to visit mother, since she feared she would be beaten and/or killed. Nevel opined that the child had been severely traumatized by her past experience with mother and concluded that visitation would not be beneficial. At the next hearing, the court proposed that both mother and the child submit reports from therapists regarding visitation for the court to consider. The parties agreed, so the court suspended visitation pending further order. The court also stated that, if the child still refused to visit, all it could do was make the visitation order and encourage her to participate. At the following hearing, the court stated it read the documents submitted (mother apparently did not submit a report from a therapist). Nevel reported that the child still became anxious when visitation was discussed and remained frightened of any contact with mother. Nevel concluded it would be detrimental to force the child to visit with mother. The court found that visitation remained detrimental at that time, but said it would examine the issue again. Prior to the 12-month status review hearing, Nevel wrote another letter stating that the child still felt too vulnerable and fearful of mother to have contact with her; thus, Nevel concluded it would be detrimental to the child to have any forced visitation when she was still adamantly opposed.

At the 12-month review hearing, after hearing testimony from mother, the social worker, and the childs foster mother, the court properly concluded that it would be cruel and unconscionable to drag a child into a room to visit with a parent she adamantly did not want to visit. The court noted that the foster parent and the social worker had encouraged the child to participate in visitation. The therapist had tried to facilitate conjoint therapy. The court stated that forcing the child to visit mother would be completely inappropriate and traumatizing. The court continued to suspend visitation, pending the outcome of the section 366.26 hearing.

The court clearly considered the childs best interests in refusing to force her to visit mother, of whom she was terrified. In view of the circumstances of the case, the childs strongly expressed desires, and the therapists recommendation, we conclude that there was substantial evidence to support the courts decision to suspend visitation.

Mother claims that the court improperly denied visitation because its decision was based only on the childs refusal to visit her. Mother relies upon Julie M. in support of her contention. However, Julie M. is distinguishable. In that case, the juvenile court gave the subject children the option to consent to, or refuse, any future visits with their mother. (Julie M., supra, 69 Cal.App.4th at p. 46.) The appellate court concluded that the juvenile court abused its discretion in giving the children absolute discretion to decide whether [the mother] could visit with them. The order essentially delegated judicial power to the children . . . . (Id. at pp. 48-49, italics added.) In the instant case, the court never delegated the decision about visitation to the child, although it did properly consider the childs wishes.

DISPOSITION

The writ petition is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

RICHLI

J.

MILLER

J.

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^[1] All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.

^[2] The date of signature is mistakenly shown as 06/11/06. Given the timeline, the mother meant 07/11/06. The record is not completely clear whether the JV-130 was signed before or after the detention hearing.