In re J.R.
Filed 2/4/13
In re J.R. 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NOT TO
BE PUBLISHED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opinion has not been certified for publication or ordered published for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
(Sacramento)
----
In re J.R., a Person Coming Under the
Juvenile Court Law.
SACRAMENTO COUNTY DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
Plaintiff
and Respondent,
v.
R.R.,
Defendant
and Appellant.
C070260
(Super. Ct. No. JD215812)
R.R., father
of the minor, appeals from orders sustaining the
petition, removing the minor from father’s custody,
and returning to a permanent plan of long-term foster care. ( ADDIN BA xc <@st> xl 31 s YCQJFO000001 xpl 1 l
"Welf. & Inst. Code, §§ 387, 395" Welf. & Inst. Code, §§ 387, 395; statutory
references that follow are to the ADDIN BA xc
<@ost> xl 29 s YCQJFO000012 xpl 2 l "Welfare and Institutions
Code" Welfare and Institutions Code unless otherwise noted.) Appellant contends there was insufficient
evidence to support both the jurisdictional findings of the supplemental
petition and the order removing the minor from his custody. Appellant further asserts there was a failure
to comply with the notice provisions of the
"25 U.S.C. § 1901, et seq." 25 U.S.C. § 1901, et seq.). We conclude appellant is procedurally barred
from raising the ICWA issue and that substantial evidence supports the juvenile
court’s findings and orders and affirm the orders.
Facts
and Proceedings
J.R., then one year old, was first detained in May 1999
in Los Angeles County. The parents had a
history of violence and appellant is developmentally delayed and an Alta Regional Center client (Alta). After
12 months of services, mother’s services were terminated and the case was
transferred to Sacramento County to facilitate services for appellant. By March 2001, the case was transferred back
to Los Angeles County, the minor was placed with mother, and jurisdiction was
terminated in October 2001.
September 2004 alleging mother caused the death of a sibling, thereby placing
the minor at risk. The minor was
detained and eventually placed with the paternal grandmother.
At the disposition hearing in December 2004, the court
denied reunification services to mother and ordered services for
appellant. The minor was in therapy with
serious emotional and mental health issues. At the six-month review hearing, the court
ordered further services for appellant.
The social worker filed a petition to transfer the case
to Sacramento County because appellant and the minor resided there. The court transferred the case and Sacramento County accepted the transfer in September 2005.
At the 12-month review hearing in December 2005, the
court terminated appellant’s services and set a ADDIN BA xc
<@osdv> xl 14 s YCQJFO000013 l "section 366.26" section 366.26 hearing.
At the ADDIN BA xc
<@$osdv> xl 14 s YCQJFO000013 section 366.26 hearing, the court ordered a permanent plan
of long-term placement for the minor.
The review reports from the Sacramento County Department
of Health and Human Services (Department) in 2006 and 2007 indicated the minor
had ongoing emotional problems. By
September 2007, the paternal grandmother was no longer able to care for the
minor due to his behavior and he was removed from her care. The minor had very serious behavioral
problems and was placed in a residential treatment facility.
During 2008 and 2009, the minor remained in the level 14
group home, showing slow improvement in his behavior and coping skills. Appellant visited the minor regularly.
In January 2010, appellant filed a petition for
modification seeking placement of the minor or renewed services. The court granted the petition, ordering
renewed services for appellant.
In March 2010, the minor moved to a level 9 group
home. The review report in September
2010 stated the minor was emotionally immature, manipulative, demanded
attention, shifted blame to others, saw himself as a victim, and continued to
have emotional outbursts. The minor was
morbidly obese, although he had recently lost weight when he participated in a
martial arts class. The report stated
appellant was easily controlled by the minor and placing the minor with
appellant was not in the minor’s best interests due to appellant’s skill
deficits. The minor was capable of
performing at or above grade level in school but struggled somewhat due to his
inability or unwillingness to focus. He
attended school regularly and had few behavioral problems. The minor was now visiting appellant on
weekends, but the Department had concerns about appropriate parenting and the
minor’s manipulation.
An addendum report discussed appellant’s services, noting
that, as an Alta client, appellant continued to receive support services and
that he was referred to additional services to assist him in parenting and
nutritional education. The social worker
stated that appellant was deficient in his ability to apply the knowledge
acquired from service providers. The
minor was not actively participating in therapy and manipulated appellant with
tantrums and tears. Further, the minor
was aggressive to the point of abuse of appellant to get his way. The addendum concluded that the Department
could not recommend placing the minor in appellant’s home. Notwithstanding this conclusion, the court
ordered the minor returned to appellant in January 2011.
A Court Appointed Special Advocate (CASA) report in April
2011 stated that, in meetings, the minor spoke over, or for, appellant. The minor was in the fifth grade with
fluctuating attendance and very poor grades.
A concurrent review report stated that appellant deferred
to the minor in confusing situations.
The minor had gained additional weight since placement; however,
appellant avoided discussing the subject with the minor because “it upsets
him.†At school, the minor appeared to
be angrier since placement with appellant and his negative behavior
increased. The minor had to be
restrained once at school for an angry outburst but thereafter his behavior was
more positive. Therapy sessions were
replaced by a Wrap Around (WRAP) program.
The minor admitted he had anger management issues and engaged in verbal
altercations with appellant. The minor
was parentified and tended to take on responsibilities he felt appellant did
not handle properly. Although intensive
services were being provided to support and maintain the placement, both
appellant and the minor were resistant to services. Appellant was unable to incorporate skills he
learned into the daily challenges of raising the minor and refused to assert
himself as a disciplinarian. Overall, there
had been no progress since the minor returned to appellant. The report concluded that neither appellant
nor the paternal grandmother could care for the minor and it was not in the
minor’s best interest to remain in the home.
A second CASA report stated that, in late April 2011, the
minor wanted to leave appellant’s home and return to his last group home. The Department placed the minor in respite
care. Within two days, the minor
returned home, admitting he manipulated the situation. The CASA report further stated that both the
minor and appellant needed to work on anger management, coping skills and
communication and appellant needed to work on parenting. The CASA report recommended leaving the minor
in the home.
The social worker’s report of May 2011 discussed the
minor’s brief removal and return, noting that services and support were in
place, plans were made but no progress had occurred. There was ongoing resistance to services
although the WRAP team continued to try to find appropriate solutions and
programs acceptable to both appellant and the minor. The social worker’s attempts to work with the
team and appellant were fraught with discord due to appellant’s attempts to
manipulate circumstances to his benefit.
Again, the Department concluded there had been no progress and, somewhat
resignedly, indicated services would continue to be provided while the minor
was in appellant’s home. The court
ordered services to continue.
By June 2011, the CASA reported there were ongoing issues
over the minor’s weight loss efforts which led the minor to again request
removal. The CASA felt the minor saw the
group home as less restrictive and was concerned the minor was trying to
manipulate the WRAP team.
A supplemental report in July 2011 catalogued the minor’s
complaints about appellant’s parenting, including shouting and physical
altercations, one of which resulted in appellant biting the minor. Appellant denied or minimized the minor’s
concerns. The minor continued to act in
a parental role when circumstances were challenging and appellant behaved like
the minor’s peer, rather than a parent, to avoid confrontation. Appellant overindulged the minor by giving
him expensive things to such an extent that appellant did not always have money
to pay bills. The social worker saw the
family as deficient in skills and unwilling to commit to any program which
required effort, instead ignoring, rejecting, or terminating services.
In September 2011, the Department filed a supplemental
petition to remove the 13-year-old minor from appellant’s home, alleging
appellant failed to provide a safe home and meet the minor’s medical and mental
health needs. Both the minor and
appellant reported ongoing conflict in the home; the most recent incident
involved a knife. The minor stated he no
longer felt safe in the home and refused to return. Although there were conflicting reports about
what happened in the most recent incident, both appellant and the minor agreed
that the minor had threatened suicide with a knife and the minor’s behavior had
escalated out of control. The minor
expressed frustration because appellant was not able to adequately parent him,
was not supportive of his weight loss attempts, and could not meet the minor’s
needs because he had trouble meeting his own needs. Appellant said he had stopped taking his own
medications because he was afraid to sleep with the minor in the house.
The October 2011 review report stated that, following the
minor’s removal, appellant told the social worker to leave him alone. The minor was placed in a foster home. In contrast to the struggles the minor had
with his feelings and emotions when in appellant’s care, in foster care he was
more at ease and less agitated. The
minor’s school vice principal told the social worker there was a decline in the
minor’s character and affect after he was placed with appellant and felt that
removal was in the minor’s best interests.
The report stated that extensive services had not been successful in
reducing the risk in the home and recommended termination of reunification
services with a permanent plan of long-term foster care with a goal of
guardianship.
The jurisdiction/disposition report said appellant
believed that he could take care of the minor.
Appellant explained that, after the recent knife incident, he disposed
of all the knives in the home by putting them in a locked dumpster. Appellant believed the minor wanted to be
removed because appellant could not buy enough “stuff†for him and that the
minor took advantage of him: stealing
his credit card to buy games, selling games bought for him, and using the
satellite television to view pornography.
Appellant said the minor forged a note to the school to avoid his
special diet and was often awake until early morning playing video games. Appellant described a physical altercation
between the minor and himself in August 2011 which resulted in his biting the
minor.
The minor now told the social worker he wanted to return
home. The minor believed he was
responsible for the removal because he was angry and frustrated with all the
programs he had to attend. The minor
also said he wanted to return to his last group home because he perceived that
less would be required of him there. He
said he pulled a knife and threatened to harm himself because he did not get
his way. He admitted he had learned no
new skills or developed any new tools to help him with his behavior while
living with appellant.
The program manager for the WRAP team stated he had
contact with the family five days a week and provided emergency services seven
days a week. He said that appellant
wanted the minor’s approval and tried to get it by buying him things which the
minor then sold. He told the social
worker that appellant had difficulty applying concepts to changing situations
but had made some progress. The program
manager estimated that appellant would need at least another year of intensive
services to provide basic care for the minor.
The vice principal of the minor’s school stated the minor
appeared happier since removal. She also
said that the minor behaved more like a parent than the father did.
The minor was currently in a foster home and said he was
benefitting from the guidance of the foster parents. The minor was behind academically, but was
completing homework and had no behavioral problems at school.
The social worker reported that both appellant and the
minor agreed that the minor picked up a knife, brought it to his wrist, and
appellant took the knife away. The
father and the minor both placed responsibility for the minor’s behavior on the
minor. This recent event was the latest
of several verbal altercations which escalated to physical confrontations. The minor was the dominant individual in the
relationship and appellant admitted the minor manipulated him. The social worker concluded the minor would
be at risk of abuse or neglect if returned to appellant’s care and that
appellant had not benefitted from the intensive and extensive services provided
during the dependency proceedings.
The October 2011 CASA report said that the minor’s
attempts to be controlling were handled appropriately by the foster father and
the minor responded well to him. The
CASA believed that, despite the minor’s expressed desire to return to the level
9 group home, the current foster placement was a good match for him.
At the contested hearing in December 2011, the parties
presented no evidence beyond the several reports which were filed. The court sustained the supplemental
petition, removed the minor from appellant’s custody, and placed him in foster
care with a specific goal of guardianship.
The court explained that, while the minor had special needs, appellant
had his own special needs and the question was whether appellant had the
ability to parent the minor. The court
found that appellant did not have the skills necessary to parent a special
needs child.
Additional facts appear where relevant in the following
discussion.
Discussion
I
Indian Child Welfare Act
Appellant contends the juvenile court failed to comply
with ICWA notice requirements.
In the first dependency, Los Angeles County established
that the minor and mother were eligible for membership in the Choctaw Nation
but were not enrolled. In December 2000,
after the case was transferred, the tribe informed the Sacramento Superior
Court that it declined to intervene although it wanted to monitor the
case. When the case was transferred back
to Los Angeles County, an Indian expert appointed by the court indicated the
tribe would intervene. The tribe did
intervene in July 2001 and expressed support of reunification for the minor’s
sibling prior to termination of dependency jurisdiction as to the minor in
October 2001.
Los Angeles County sent notice of the second dependency
proceedings in September 2004 to the Choctaw Nation. After receiving notice of the
jurisdiction/disposition hearing, the tribe responded in November 2004 that
they had made numerous attempts to get mother and the minor enrolled without
any response from the family.
Accordingly, the tribe declined to make any formal recommendations
regarding the new proceeding. The Indian
expert reported that the tribe would not intervene. At the disposition hearing in December 2004,
the Los Angeles County Superior Court found the case was not an ICWA case based
on the November 2004 letter from the tribe.
The review report stated the social worker had called the tribe about
enrollment but received no response. At
a review hearing in June 2005, the court reiterated that this was not an ICWA
case. The order transferring the case
from Los Angeles County to Sacramento County also stated the case was not an
ICWA case.
In September 2005, following the transfer to Sacramento
County, the tribe requested a status update on the case. The Department sent a new notice of the
proceedings to the Choctaw Nation in November 2005 and attached the tribe’s
letter of December 2000. Thereafter, the
Department and the court treated the case as an ICWA case. The tribe expressed support of the
Department’s plan of guardianship with the paternal grandparents in the spring
of 2007, although the plan was not ordered because the minor was removed from
the paternal grandmother in the fall of 2007.
Copies of orders entered in the case were sent to the tribe during 2007.
In December 2007, the Department filed a motion to modify
the prior finding that ICWA applied to the case. The motion stated that neither the mother nor
the minor were enrolled, thus, the minor did not meet the definition of an
Indian child within the meaning of ICWA.
The motion was served on the tribe six days prior to the scheduled
hearing. At the hearing on the motion,
the court found the minor was not an Indian child, although eligible, and no
further notice need be provided to the tribe.
The tribe did not appear at the hearing.
However, a copy of the order was served on the tribe. Copies of orders in the case continued to be
sent to the tribe until September 2010.
Appellant argues the tribe did not have adequate notice
of the motion and hearing because the tribe did not receive the notice 10 days
before the hearing as required by section 224.2, subdivision (d).
While, as amply demonstrated by cases cited by appellant,
parents can challenge lack of notice of the proceedings at any time, it is less
clear that, once a tribe has notice of the proceedings and has participated in
them, that a parent may still assert the tribe’s right to proper notice of a
hearing in the ongoing proceedings. ( ADDIN BA xc <@cs> xl 47 s YCQJFO000003 xhfl Rep
xpl 1 l "In re Marinna J.
90 Cal.App.4th 731"
90 Cal.App.4th 731, 739.)
Even assuming appellant has standing to challenge the
validity of the order on notice grounds, he is not asserting that the tribe did
not have notice of the proceedings, but only that a time requirement, the
10-day rule, as to a single hearing was not met. The relevant order was entered in December
2007 without objection and has long been final.
Appellant has forfeited the challenge by failing to assert it by a
timely appeal. ( ADDIN BA xc <@cs> xl 46 s YCQJFO000004 xhfl Rep
xpl 1 l "In re Daniel K.
61 Cal.App.4th 661"
61 Cal.App.4th 661, 667; ADDIN BA xc
<@cs> xl 60 s YCQJFO000005 xhfl Rep xpl 1 l "
43 Cal.App.4th 400"
43 Cal.App.4th 400, 404-405.)
In any case, failure to comply with the 10-day rule is
not jurisdictional and is subject to harmless error analysis. ( ADDIN BA xc <@cs> xl 58 s YCQJFO000006 xhfl Rep
xpl 1 l "In re Antoinette S.
104 Cal.App.4th 1401"
104 Cal.App.4th 1401, 1410-1411.)
Where the tribe has participated in the proceedings or expressly
indicated it does not intend to do so, errors in notice are harmless. ( ADDIN BA xc <@cs> xl 49 s YCQJFO000007 xhfl Rep
xpl 1 l "In re Kahlen W.
233 Cal.App.3d. 1414"
233 Cal.App.3d 1414, 1424.)
Here, the tribe had notice of the proceedings and, while
not considering the minor an Indian child because neither he nor the mother
were enrolled, nonetheless, expressed opinions on court actions when asked to
do so. The tribe had notice of the
motion hearing and was served a copy of the order. It made no effort, despite being served with
ongoing orders, to object to the order or assert its interest in the
proceedings or the minor. Failure to
comply with the 10-day rule was harmless error.
II
Sufficiency of the
Evidence
Appellant contends the evidence is insufficient to
support the allegations of the supplemental petition that placement with him
was ineffective in rehabilitating or protecting the minor. Appellant further argues that the evidence
was insufficient to support the order removing the minor.
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--that is, evidence which is reasonable, credible and
of solid value--to support the conclusion of the trier of fact. ( ADDIN BA xc <@cs> xl 42 s YCQJFO000008 xhfl Rep
xpl 1 l "In re Angelia P.
In re Angelia P. (1981) 28 Cal.3d 908, 924; ADDIN BA xc
<@cs> xl 47 s YCQJFO000009 xhfl Rep xpl 1 l "In re Jason L.
222 Cal.App.3d 1206" In
re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination we recognize
that all conflicts are to be resolved in favor of the prevailing party and that
issues of fact and credibility are questions for the trier of fact. ( ADDIN BA xc <@$cs> xl 48 s YCQJFO000009 xhfl Rep
xpl 1 In re Jason L., supra, 222 Cal.App.3d at
p. 1214; ADDIN BA xc <@cs> xl 43 s
YCQJFO000010 xhfl Rep xpl 1 l "In re Steve W.
217 Cal.App.3d 10" In
re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the
evidence when assessing the sufficiency of the evidence. ( ADDIN BA xc <@cs> xl 48 s YCQJFO000011 xhfl Rep
xpl 1 l "In re Stephanie M.
295" In re Stephanie M. (1994) 7 Cal.4th 295,
318-319.)
A. The
Supplemental Petition
The supplemental petition sustained by the court
alleged: (1) The previous disposition
was not effective in the rehabilitation or protection of the child because
appellant failed to provide a safe home for the minor and he was unable to meet
the minor’s special needs; (2) Both the minor and appellant reported ongoing
conflict in the home and that, in the most recent incident, a knife was
involved; (3) The minor no longer felt physically safe in the home and refused
to return home; and (4) Appellant was not willing to consent to respite
care.
Prior to placement in appellant’s care, the minor was
showing slow improvement in his behavior and coping skills and was making some
progress in losing weight. The minor was
able to control appellant through manipulation and aggression. He struggled academically due to his lack of
focus and was not participating in therapy.
Within four months of his placement with appellant, the
minor’s attendance at school was fluctuating, and his grades were poor. He appeared to be angrier at school and his
negative behavior increased to the point of needing restraint. The minor was not merely manipulating
appellant, but acting in a parental role.
The minor engaged in verbal and physical altercations with appellant,
culminating in the knife incident. The
minor had gained weight and appellant would not discuss the subject with him. Both the minor and appellant were resistant
to services. The minor began to ask to
return to the group home and complained that appellant could not meet his
needs.
It was clear that appellant was unable to benefit from
the intensive services to provide direction, structure, and parental guidance
to the minor. The reports were clear
that, far from rehabilitating and protecting the minor, placement with
appellant had increased the risks to the minor’s health due, in part, to the
growing number of physical altercations.
Further, the minor’s behavioral issues had escalated and his academic
performance had deteriorated. Appellant
was completely unable to meet the minor’s special health, mental, and emotional
needs. There was ample evidence to
sustain the allegations of the
B. Removal
To support an order removing a child from parental
custody, the court must find clear and convincing evidence “[t]here is or would
be a substantial danger to the physical health, safety, protection or physical
or emotional well-being of the minor if the minor were returned home, and there
are no reasonable means by which the minor’s physical health can be protected
without removing the minor from the minor’s parent’s . . . physical
custody.†( ADDIN BA xc
<@osdv> xl 19 s YCQJFO000017 xpl 1 l "§ 361, subd.
(c)(1)" § 361, subd. (c)(1).)
As previously discussed, the minor’s frustration with
appellant’s inability to parent him resulted in increasingly serious physical
altercations between them. Further, the
minor’s behavior was escalating and appellant could not apply skills learned
from the intensive services to deal with the minor. Once removed, the minor’s behavior at school
stabilized and his attempts to control the foster father were met with
appropriate parental techniques which the minor accepted. As the minor told the social worker,
appellant could not parent him and had trouble meeting his own needs. Appellant’s solutions to the minor’s behavioral
issues, such as not taking his own medication because he was afraid to sleep
with the minor in the house and throwing away all the knives, showed that
appellant’s concrete thinking and inability to adapt the skills he was learning
left him unable to deal with the daily challenges the minor presented. Even with WRAP intensive services, appellant
would need at least a year before he would be able to manage basic care for the
minor. Appellant simply could not
provide for the minor’s physical and emotional well-being and allowed the minor
to do as he pleased. Substantial
evidence supports the juvenile court’s order removing the minor from
appellant’s custody.
Disposition
The orders of the juvenile court are affirmed.
HULL ,
Acting P. J.
We concur:
BUTZ , J.
MURRAY , J.
