R.M. v. SUPERIOR COURT OF CONTRA COSTA COUNTY

No. A150887.

R.M., Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU, Real Party in Interest. L.O., Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU, Real Party in Interest.

Court of Appeals of California, First District, Division One.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.115

MARGULIES, J.

R.M. (mother) and L.O. (father) petition this court for extraordinary review of a juvenile court order setting a hearing to select a permanent plan for their four children, J.O., I.O., Li.O., and C.O., under Welfare and Institutions Code section 366.26.1 Both parents contend the juvenile court erred by not making a finding regarding the applicability of the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) before setting the section 366.26 hearing. Father also asserts he did not receive adequate notice of status review hearing dates under section 366.21, and mother claims the juvenile court erred in (1) finding return of her youngest child would create a substantial risk of detriment to the child and (2) failing to find a substantial probability the child would be returned to her within 18 months.2 Real party in interest Contra Costa County Children & Family Services Bureau (Bureau) contends the ICWA issue is rendered moot by a juvenile court order issued after petitioners filed their writ petitions. After requesting supplemental briefing from father and mother, we conclude the petitions must be conditionally granted because the record does not contain sufficient information regarding any subsequent proceedings on ICWA compliance. We reject petitioners' remaining claims on the merits and otherwise affirm the court's order.

I. FACTUAL AND PROCEDURAL BACKGROUND

In early February 2016, the Bureau filed a petition pursuant to section 300, subdivisions (b) (failure to protect) and (j) (sibling abuse) to establish dependency jurisdiction over mother and father's four children based on allegations of domestic violence between mother and father and the parents' physical abuse of the children's older half siblings, A.C and M.A.3

As to father, the petition alleged he broke the family van's window with the children inside at Thanksgiving, and the children observed him punch mother in the chest while she was holding the youngest child in her arms on another occasion. As to mother, the petition alleged she hit the children's sibling in the face with a closed fist. The same day, she grabbed him by his ankles and pulled his feet from under him, causing him to fall down stairs and injure his finger. The petition further alleged mother had punched the children's sibling in the stomach, had failed to protect him from being punched and kicked by father, and had failed to protect another child from being stepped on the stomach by father until the child urinated on herself.

Shortly after the section 300 petition was filed, both parents filed forms indicating the children are or may be members of the Poarch Creek Band of Indians. At the detention hearing, the juvenile court ordered the children be placed in foster care.4 The court made a finding the children may be Indian children and the Bureau must provide notice to the tribe as required by law.

In March 2016, the Bureau filed an amended petition, alleging (1) father had a chronic and pervasive drug addiction that limits his ability to parent his children and (2) additional acts of physical abuse by father against mother and the children's sibling. Specifically, the petition alleged father had choked mother in front of the children, and father punched and kicked M.A. and stepped on her stomach with such force the child wet herself. Mother and father both pleaded no contest to the amended petition.

The report prepared by the Bureau social worker for the disposition hearing provided further details regarding the family's history of domestic violence. Per the initial referral, all children had seen father choke and hit mother. Father was abusive to all the children, but especially A.C., whom he has pushed to the ground and held down with his hand and foot. Mother's sister (maternal aunt) reported mother and father have a history of domestic violence and use drugs together. Mother and father would often remain high for several days, ignoring their children and letting the older children care for the "babies." Though maternal aunt had allowed mother to stay at her home on condition she take out a restraining order against father, mother maintained constant contact with father and refused to be responsible for her children.

When interviewed by a Bureau social worker, A.C. and M.A. both confirmed the abuse. A.C. said father punched, kicked, and battered him many times, he was terrified of father, and though mother had seen father abuse A.C., she did nothing to stop it, creating a feeling of extreme betrayal in A.C. A.C. also said he had seen father punch, kick, and choke mother. M.A. confirmed father had knocked her down, stepped on her stomach and pressed down until she urinated on herself. She also stated she had seen father physically abuse mother many times and said she feared him because she believes he is dangerous.

At the dispositional hearing in May 2016, the court established jurisdiction over the children, adopted the recommendations of the Bureau, and ordered reunification services for the parents.

The case plan adopted at disposition provided, among other things, both parents must refrain from further instances of domestic violence, and enter and successfully complete a drug treatment program, a domestic violence counseling program, and individual counseling.

In October 2016, the court initiated the six-month review hearing, which was continued twice. At the January 2017 review hearing, the court terminated reunification services for father as to the four children based on father's "utter and complete failure to engage in services including the very basics of visiting his children." The court noted, "Father has essentially dropped off and is not even bothering to visit at this point." At the 12-month review hearing, the court terminated reunification services for mother and set a permanency planning hearing.

II. DISCUSSION

A. Father's Notice of Hearings

Prior to any juvenile dependency status review hearing, notice must be provided to the presumed father and any attorney not present at the time a hearing was set by the court. (§§ 366.21, subd. (b), 293, subd. (a).) The notice must be served by mail not earlier than 30 days, nor later than 15 days, before the hearing. (§ 293, subd. (c).)

Father contends there is "no indication in the record" he received notice of future hearings after the initial six-month review hearing on October 24, 2016, including hearings held on November 17, 2016, January 18, 2017, February 9, 2017, and March 6, 2017. He asks the court to remand the case for proper notice "so that he may appear and raise any issues on the hearing conducted pursuant to [Welfare and Institutions] Code Section 366.21 that he may have."

Due process requires parents in dependency proceedings be given notice reasonably calculated to apprise them an action is pending and allow them an opportunity to defend. (In re J.H. (2007) 158 Cal.App.4th 174, 182.) Though parents must receive notice at each step of a dependency proceeding, they do not necessarily have to be renoticed each time a hearing is continued. (See In re Phillip F. (2000) 78 Cal.App.4th 250, 258-259 (Phillip F.).) In Phillip F., the court held failure to provide written notice of a continued section 366.26 hearing did not require reversal because the court could reasonably infer that even though the parent was not present at the hearing, she had received actual notice of the continuance from her counsel, consistent with counsel's statutory obligation to provide competent representation. (Phillip F., at pp. 258-259.)

Here, father was present at the beginning of the six-month status review hearing on October 24, 2016, but failed to return when his case was recalled later that same morning. Father's counsel was present, however, and the court continued the hearing to November. Father failed to appear for any further hearings, but his attorney was present at both the continued November and January review hearings. At the January 18, 2017 hearing, his counsel submitted on the Bureau's section 388 petitions seeking termination of father's reunification services. The court ordered services terminated for father as to all four children, and father's counsel waived any irregularities with the order and waived her appearance at the next hearing, a continuance regarding mother's reunification services.

As in Phillip F., it is reasonable to infer father had actual notice of the continued hearings regarding his own reunification services because his counsel was present at the October and November hearings at which the continuances were ordered, and we presume father's counsel notified her client of the new hearing dates consistent with her duty to provide adequate representation. (Phillip F., supra, 78 Cal.App.4th at pp. 258-259.) Father does not contend he did not have actual notice, nor that failure to renotice the hearings violated his due process rights. (See id. at p. 260.) Moreover, father was present at the initial six-month hearing on October 24, 2016, and failed to return when his case was recalled. His own lack of diligence in attending the hearing to learn what was happening with his case defeats his lack of notice claim. (See id. at pp. 256-257 ["[W]hen proper notice has been provided in the first instance and a party fails to appear, the court may continue the [hearing] without requiring further notice to the absent party. The properly noticed party has a duty to exercise diligence to inform himself . . . of subsequent continuances of the [hearing]."].)

Even if father did not have actual notice of the continued hearing dates, however, father does not assert any prejudice. "Unless there is no attempt to serve notice on a parent, in which case the error has been held to be reversible per se [citations], errors in notice do not automatically require reversal but are subject to the harmless beyond a reasonable doubt standard of prejudice." (In re J.H., supra, 158 Cal.App.4th at p. 183; see In re A.D. (2011) 196 Cal.App.4th 1319, 1324-1327 [failure to provide parent notice of 12-month review hearing and copy of social service agency's report was harmless error where parent failed to participate meaningfully in her case plan or maintain contact with the social worker].)

Considering father's documented lack of communication and effort regarding his own case plan in this matter, the failure to provide written notice of the continued hearing dates was harmless error. In the status review report prepared for the November 17, 2016 hearing, the Bureau recommended terminating services for father as to all four children. The report indicated father had not done any work on his case plan. Though he had been ordered to successfully participate in and complete an inpatient substance abuse treatment program, father failed to do so for "months." When he finally entered a treatment program in September 2016, he left the program the next day without permission and was discharged. Although the case plan required father to stay free from illegal drugs and comply with required drug tests, he tested positive for methamphetamine and marijuana the one time he appeared for a drug test. On 22 other occasions, he failed to appear for testing. Moreover, while he was initially involved in supervised visits with his children, visits abruptly ended on September 8, 2016, when father stopped calling the visitation monitor to confirm visits. There was no contact with father until October 26, 2016, when he again requested visits. On November 3, a visit was confirmed for the following day with the two youngest children, but father failed to appear and the children were sent home. The Bureau's status report concluded father "has not shown any change in behavior or any desire to reunify with his children."

As the juvenile court recognized, father's "utter and complete failure to engage in services including the very basics of visiting his children" gave the court no reason to find further reunification services for father would have been in the children's best interests. (In re A.D., supra, 196 Cal.App.4th at p. 1327.) After the January hearing at which father's reunification services were terminated, the February and March status hearings concerned only mother's reunification services. The record reflects, and father concedes, he received notice of the section 366.26 hearing. Because father has not demonstrated prejudice, any error in failing to provide adequate notice of the continued review hearings does not require reversal.

B. Substantial Risk of Detriment

Mother contends there was a lack of substantial evidence to support the juvenile court's finding her youngest child was at substantial risk of detriment if she were returned to mother's care.5 Mother argues the evidence was compelling she had effectively addressed the substance abuse and domestic violence issues which gave rise to dependency jurisdiction, and the concerns raised by the Bureau in its status report as to why the child should not be returned were "the flimsiest of reasons." To the contrary, we conclude while mother made progress on many of the objectives of her case plan, the record amply supports the trial court's finding her belated and incomplete efforts failed to fully address the core issues which led to the dependency.

At the 12-month review hearing, there is a statutory presumption the dependent child will be returned to his or her parent(s) unless the court determines, by a preponderance of the evidence, that return of the child would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. (§ 366.21, subd. (f)(1).) Failure to participate regularly or make substantive progress in a court-ordered treatment program is prima facie evidence return of a child would be detrimental. (Id., subd. (f)(1)(B).) "`In evaluating detriment, the juvenile court must consider the extent to which the parent participated in reunification services. [Citations.] The court must also consider the efforts or progress the parent has made toward eliminating the conditions that led to the child's out-of-home placement.'" (In re E.D. (2013) 217 Cal.App.4th 960, 966.) Compliance with a case plan does not guarantee return of a child to a parent's custody. (In re Jacob P. (2007) 157 Cal.App.4th 819, 830.)

We review the juvenile's court finding the child would face a substantial risk of detriment if returned to mother's custody for substantial evidence. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) We presume the correctness of the juvenile court decision and resolve all conflicts and draw all inferences in favor of the order. (Ibid.)

As mother acknowledges, the two issues which led to the dependency were domestic violence and substance abuse. With respect to domestic violence, the record shows the family had a serious and extensive history of physical abuse including father's abuse of the children, father's abuse of mother in front of the children, and mother's own physical abuse of her oldest child. By the time of the 12-month review hearing, mother had just begun to extricate herself from her relationship with father and her own struggle with substance abuse and cycles of violence.

First, mother delayed in obtaining a restraining order to protect herself and the children from father's abuse. Though mother apparently filed for restraining orders against father in December 2015 and again in January 2016, she never served those restraining orders and did not appear in court to request more time to do so.6 Mother testified father stole her vehicle in July 2016, causing her to miss a visit with her children, and was harassing her at work. Though a social worker encouraged her to obtain a restraining order, she did not. In September 2016, father appeared at a "recovery walk" mother was attending, found her smoking outside, and became verbally abusive and violent toward her, trying to pull her back by her neck; mother jerked away so fast he pulled out her hair. Later that month, father stole her car while she was in the residential substance abuse treatment program. In spite of the continued abuse and harassment, mother did not finally serve a restraining order on father until her six-month review hearing on October 24, 2016, almost nine months after her children were removed from her custody.

In addition to her delay in following through with a restraining order, the record shows mother continued to have contact with father long into the dependency. Though she spent approximately 10 weeks in a domestic violence shelter after her children were removed, mother testified she did drugs with father "a couple times" after she left the shelter. Father's mother (grandmother) told a social worker mother was staying with father after she left the women's shelter. Mother's oldest child told the Bureau social worker he did not trust mother and was not sure her relationship with father had ended because when he talked to her on the phone in July 2016, he was very upset to hear father in the background. As recently as September or October 2016, mother spoke with father on the phone and sent him a text with a picture of the children.

Moreover, while mother expressed her feelings toward father had changed by February 2017, the record reveals just how recent that change was. In her initial interview with the social worker, mother admitted to domestic violence in her relationship with father. Though she acknowledged he had "anger problems" and was physically abusive, she also said she loved him, their relationship had great depth, and she felt he needed her help. Mother's oldest son stated he felt mother loved father a lot more than she loved him. Mother had filed for a restraining order in January 2016, but she included only her two oldest children, not father's four children, because she said he was "a good father" and she was not going to keep him from them. In explaining that decision during her March 2017 testimony, mother said, "I feel differently today. But at that time I can honestly say that, yes, I did think that [father] was a good father. He was always good to his kids." The Bureau social worker testified mother was ambivalent toward father, and she only began to see a real change in mother's attitude toward protecting her children from father in October 2016, when she finally served the restraining order.

In her testimony at the contested review hearing, mother also failed to accept responsibility for her own abusive behavior toward her children. Mother denied hitting her oldest child with a fist in the eye, stating she only slapped him—though she conceded he fell to the ground. She said, "I don't think I hit him hard, but I might have." Mother also denied grabbing him by the ankles and pulling his feet out from under him, saying she grabbed him by his arm and tried to pull him up. Mother testified she believed he was "putting on a show in front of [her] sister." Mother also denied punching the child in the stomach on another occasion during an argument over a T-shirt he wanted to wear, testifying she only "yanked his T-shirt off of him."

The juvenile court found mother's testimony "self-serving and not credible." The court observed mother was not only a victim of the violence, but was also a perpetrator, and though her testimony was "her opportunity to really share with the Court her insights and her acknowledgement and acceptance of her responsibility as to why these kids are here, what she's learned through services about the effects of this violence in the home on her children, how she's going to do things differently," she failed to demonstrate "any insight into the pattern . . . of violence in this household, the extent of the violence, what the damage has caused to her children."

With respect to the substance abuse, the record also contains substantial evidence mother delayed compliance with her case plan objectives. Mother testified she continued to use drugs with father and others well into the dependency. She entered an outpatient substance abuse program in May 2016, but attended only two meetings and failed to complete the program. Though mother tested negative on several drug tests, she failed to appear for 14 tests between May and August 2016.

Mother finally entered and completed a 90-day inpatient substance abuse treatment program between August and November 2016 at Wollam House. But mother had been through the same program twice before—once in 2001, for manufacturing methamphetamine, and once in 2003, when trying to avoid jail after violating probation for manufacturing. Mother testified that after the 2003 program she began using drugs again immediately and used marijuana and methamphetamine off and on between 2003 and 2016, with periods of sobriety when she was pregnant and breastfeeding. The juvenile court observed it was hard to say whether mother was "truly on the path of recovery" by the 12-month hearing "given how much time was squandered during the course of these dependency proceedings, especially in light of that history [with Wollam House]." Though mother was regularly attending Narcotics Anonymous meetings after completing the residential treatment program, by the February 2017 hearing she was "stuck at the end of step one" of her 12-step program. At the 12-month hearing in March 2017, mother had been in a "sober living environment" program for only two weeks, and had just started an outpatient treatment program.

The record also reveals mother failed to comply with her case plan requirement to "enter and successfully complete individual counseling, approved by the social worker, and receive a positive evaluation from the therapist that parent understands the factors contributing to this dependency, has successfully addressed those issues, and the children are not at risk at this time." Mother saw a therapist four times in July and August 2016. The therapist reported mother was often late by 15 to 20 minutes, was inconsistent and scattered during the few sessions they had, and the therapist had doubts about mother's sobriety. The therapist cancelled services due to mother's lack of attendance. After completing the inpatient substance abuse treatment program in November 2016, mother testified she found a psychiatrist through the Contra Costa County health plan who she sees once a month for an hour each session. As the juvenile court noted, however, "Going to a psychiatrist once a month is not individual therapy."

We recognize mother loves her children and made significant, if belated, efforts to comply with her case plan. However, given her extensive history of substance abuse and domestic violence, her considerable delay in taking advantage of court-ordered services, and her failure to complete the objectives of her treatment plan, substantial evidence supported the juvenile court's conclusion mother's youngest child would be at substantial risk of detriment if returned to mother's custody.

C. Substantial Probability of Return After 18 Months

Mother next claims the juvenile court erred in declining to extend services past the 12-month review hearing because there was a substantial probability she could reunify with her child if she were given an additional six months and provided with further reunification services.

Section 366.21, subdivision (g)(1) provides the court may continue a 12-month review hearing for up to six months, "only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent or legal guardian." To set another review hearing, the court also must find (1) mother "consistently and regularly contacted and visited with the child"; (2) mother "made significant progress in resolving problems that led to the child's removal"; and (3) mother "has demonstrated the capacity and ability both to complete the objectives of . . . her treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs." (Ibid.)

By the time of the 12-month review hearing, mother had completed an inpatient substance abuse program that had failed her twice before and had just started outpatient treatment and located sober living environment housing. Mother had only recently terminated her extremely violent relationship with father and was not engaged in individual therapy beyond seeing a psychiatrist once a month. The court found mother lacked "any insight" into the extent or effect of her abusive relationship on her children. Construing the record in favor of the judgment, mother did not demonstrate sufficient progress in resolving the problems that led to the dependency, nor did she show her ability to complete her treatment plan and provide for her child's needs within the next six months.

D. ICWA Compliance

Finally, we address the claim raised by both parents that the juvenile court erred in failing to make findings with respect to the applicability of ICWA in this matter. In his petition, father argued the trial court failed to determine whether proper notice was given to the tribe in compliance with ICWA and thus, the matter must be remanded for the court to ensure proper notice and make a finding whether ICWA applies. Mother asserted essentially the same argument, adding that because the record lacked copies of notices or return mail receipts, the court was precluded from making a finding ICWA did not apply.

In its opposition, the Bureau acknowledged "the better practice" would have been to provide a record of the notice given to the tribe and request a ruling on ICWA compliance from the juvenile court. The Bureau further asserted while normally the proper remedy would be a limited remand for ICWA compliance, no remand is necessary in this matter because at a hearing on April 26, 2017, after the writ was filed, the juvenile court determined ICWA did not apply.7 With its opposition, the Bureau requested we take judicial notice of the juvenile court's minute order. We sought supplemental briefing from mother and father asking them to indicate whether they opposed the request for judicial notice of the April 26, 2017 minute order, and to address the Bureau's argument that remand for ICWA compliance is unnecessary.

Both parents contend we should deny judicial notice. Father argues the April 26, 2017 minute order is not part of the record on this writ, nor was it in existence at the time the decision to set a section 366.26 hearing was made. Father asserts even if the court takes judicial notice of the minute order, the issue of ICWA compliance is not moot because the juvenile court stated it relied on documents which are not part of the record, making it impossible for the parties or this court to determine if proper notice was given to the tribe. Mother similarly argues the minute order offered by the Bureau was not part of the record at the time the juvenile court set the section 366.26 hearing and is beyond the scope of the evidentiary record in this matter. Because the evidentiary record as of the date the section 366.26 hearing was set did not contain any notices or return mail receipts showing the tribe received proper notice, mother contends the juvenile court had insufficient information to determine ICWA did not apply.

We deny the request for judicial notice. Although we may take judicial notice of the court's minute order pursuant to Evidence Code sections 459, subdivision (a) and 452, subdivision (d)(1), we may not take judicial notice of truth of the matters stated therein. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1568-1569 [court may not take judicial notice of truth of judge's factual findings].) Counsel for the Bureau requested only judicial notice of the juvenile court's minute order and did not seek to augment the record with copies of the documents reviewed by the juvenile court and a transcript of the hearing. Accordingly, we do not have sufficient information to determine either (1) the juvenile court correctly decided proper notice was given and ICWA does not apply or (2) the lack of compliance was harmless error. (See, e.g., In re A.B. (2008) 164 Cal.App.4th 832, 840-843 [court can take judicial notice of postorder evidence in determining whether ICWA noncompliance was harmless].)

If counsel for the Bureau is correct that a hearing has already taken place and ICWA compliance has already been determined by the juvenile court, we do not suggest by this decision that mother and father are entitled to a new hearing on the issue of ICWA compliance. We conclude only that the inadequate record before this court precludes us from deciding the ICWA issues based solely on the text of a minute order made after the writ was filed.

III. DISPOSITION

The petitions are conditionally granted for a limited remand on ICWA compliance; in all other respects, the order of the juvenile court is affirmed, and the petitions are denied on the merits. Let a writ issue vacating the order setting the section 366.26 hearing and directing the juvenile court to determine whether proper ICWA notice was given and whether ICWA applies in this matter, if it has not already done so. If the court has already determined proper notice was given and ICWA does not apply, the juvenile court shall conduct no further proceedings on the ICWA issue and reinstate its order confirming the current date for the section 366.26 hearing. If the court determines any of the minors are Indian children as defined by ICWA, the juvenile court shall conduct all further proceedings in conformity with all provisions of ICWA.

This opinion is final immediately as to this court. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)

Humes, P.J. and Banke, J., concurs.

FootNotes


1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
2. Mother's writ is only as to the youngest of the four children, C.O. Father's writ concerns all four children.
3. A.C. and M.A. are mother's, not father's, children. They are not subject to this writ proceeding.
4. At the time they were placed in foster care, I.O. and J.O. (twins) were four years old, L.O. was two years old, and C.O. was nine months old.
5. The Bureau asserts this argument was forfeited by mother's failure to raise it in the court below, but the contention a judgment is not supported by substantial evidence is an exception to the forfeiture rule. (In re Erik P. (2002) 104 Cal.App.4th 395, 399; In re Brian P. (2002) 99 Cal.App.4th 616, 623.)
6. Mother testified she did not follow through with the restraining orders because she was unable to serve father, but the court found her testimony not credible.
7. The attachment to the April 26, 2017 minute order states: "The court has read and considered a memo of today's date with regard to efforts to obtain family history from father as well as paternal grandmother. The court has further, accepted into evidence the Bureau's Exhibits consisting of a completed ICWA-30 and written response from the Poarch Band of Creek Indians. The Court makes the following findings: [¶] 1. The Bureau has complied with the notice provisions under [ICWA.] [¶] 2. Although the presumed father is a member of the Poarch Band of Creek Indians, the children are not members or eligible to enroll because membership is determined based on blood quantum. The children could qualify as `first generation descendants' and be eligible for some tribal benefits. However, based on the information provided by the Tribe, the children are not considered `Indian Children' for the purposes of [ICWA.] [¶] 3. The ICWA does not apply in this matter."

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