Persons Coming Under the Juvenile Court Law. Stanislaus Cnty. Cmty. Servs. Agency v. Los (In re E.L.)
| Decision Date | 24 May 2018 |
| Docket Number | F076373 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re E.L., et al., Persons Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. JERRY L., Defendant and Appellant. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION*
APPEAL from an order of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge.
Seth F. Gorman, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.-ooOoo-
Jerry L. (father) appeals from the juvenile court's order denying his Welfare and Institutions Code section 3881 petition, by which he sought to reinstate his reunification services. Father contends the juvenile court abused its discretion in denying the petition without an evidentiary hearing. He also contends the juvenile court erred in failing to address whether active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, as required by the Indian Child Welfare Act (ICWA), 25 United States Code section 1901 et seq., and there is no substantial evidence to support an implied active efforts finding. We reject father's contentions and affirm.
Jerry and A.C. (mother) are the parents of now 12- and eight-year-old sons E.L. and T.L., and a five-year-old daughter M.L. (collectively the children).
In April 2013, mother agreed to voluntary family maintenance services after the Stanislaus County Community Services Agency (Agency) substantiated a referral alleging that seven-year-old E. was receiving inadequate medical care, food, and sleep. E. had a history of seizures, asthma, and anemia which required daily medications and ongoing medical treatment at Valley Children's Hospital (VCH) and Pleasanton for neurosurgery and neurological check-ups. In March 2013, he became unconscious while at school and was hospitalized at VCH, where he had brain surgery and a pacemaker was implanted. E., who was discharged home, disclosed to the social worker that mother sometimes forgot to give him his anti-seizure medications. Mother told the social worker there had been domestic violence with father, who had moved out of the family's home. Mother tested positive for "OPI" and father for THC.
Over the next six months, mother did not participate in services and failed to take E. to his medical appointments or refill his anti-seizure medication prescription. After mother and the children were evicted from their home in June 2013, they moved from motel to motel, and camped or stayed in shelters. Mother admitted she was using methamphetamine and needed help, but she had not followed through with her substance abuse assessment.
On September 30, 2013, the Agency received a referral that E. had been transported to the hospital because he had vomited and school staff could not wake him up. When the staff tried to reach mother, three-year-old T. answered the phone and said she was asleep. Two days later, mother was arrested for child endangerment when she left the children unsupervised at the motel. The children were taken into protective custody. Father said he was unable to take the children because he was living with paternal grandparents, who were unwilling to have the children in their home due to a lack of space. Father later admitted to the social worker that he was aware of the condition of mother's home, as well as the ongoing concerns regarding medical treatment and lack of supervision. He wanted the children to live with him, but he was without work or stable housing.
The Agency filed a dependency petition on October 4, 2013, which alleged the children came within the provisions of section 300, subdivision (b) (failure to protect), based on mother's failure to provide for E.'s medical needs, her lack of supervision of the children, her ongoing substance abuse issues, and the unsafe and unsanitary condition of the motel room in which the family was staying. As to father, it was alleged: (1) he was made aware of the children's circumstances, but he was unable to care for them as he lived with paternal grandparents who were unwilling to have the children in the home due to space limitations (§ 300, subd. (b)); (2) the children were taken into protective custody, in part, due to father's inability or unwillingness to care for them (§ 300, subd. (b)); and(3) he was unwilling or unable to provide care for the children (§ 300, subd. (g) [].).
Father completed a "Parental Notification of Indian Status" (ICWA-020) form in which he stated he may have Cherokee ancestry, while mother's form indicated she did not have any Indian ancestry. At the detention hearing, the juvenile court found ICWA may apply to the proceedings. The juvenile court ordered the children detained and ordered the parents to have weekly supervised visits with the children at the Agency. The parents were provided with referrals for counseling, parenting classes, and substance abuse assessments.
Notice of the proceedings was sent to three Cherokee tribes. The social worker later spoke with a representative of the Cherokee Nation of Oklahoma, who advised the family's lineage could be traced in their records.
At the January 2014 jurisdiction and disposition hearing, the juvenile court found the petition's allegations true after mother made a short offer of proof and father submitted on the petition. The juvenile court found that neither parent had been properly attending to E.'s medical needs and appointments, or providing him with his medications; mother had an ongoing history of substance abuse and had shown an inability to supervise the children; and during voluntary family maintenance services, father was unable to provide care for the children.
Father's attorney informed the juvenile court that father was no longer living with his parents, but he was not in a position to take care of the children because he did not have a home where the children could live. The juvenile court responded that it could not remove the children based on homelessness. Father's attorney stated that father informed him that while he wanted to take the children, he did not have a place to take them and the section 300, subdivision (g) allegation remained the same - he was not willing to takethem that day. The juvenile court responded that father was not willing or able, and there were still ongoing issues of failure to protect.
The juvenile court adjudged the children dependents, removed them from parental custody, and found that active efforts had been made to prevent or eliminate the need for removal and to provide remedial services and rehabilitative programs designed to prevent the breakup of the potential Indian family, but those efforts were unsuccessful.2 Reunification services were offered to both parents and the court approved the Agency's case plan.
Father's service plan included objectives of obtaining and maintaining a suitable residence for himself and his children, consistently parenting the children, and showing his ability to provide adequate care for his child's special needs. Father's services were comprised of individual counseling services to address parenting a child with special medical needs and his willingness to have custody of the children, a parenting program, random drug testing, and a substance abuse assessment and following any recommended treatment.
While the juvenile court found at an earlier hearing that ICWA applied based on the children's eligibility for membership in the Cherokee Nation, at the January 2014 hearing, it found that ICWA might apply, because the children were not yet enrolled members. County counsel urged father and his attorney to consider applying for enrollment. At an April 2014 progress review hearing, the juvenile court ordered theAgency and father's attorney to assist with enrolling father and the children in the Cherokee Nation.
The six-month review hearing was continued several times and ultimately concluded on August 15, 2014. The Agency initially recommended both father's and mother's services be continued, but it changed its recommendation as to father and asked that his services be terminated.
Father had not been compliant with his services. While he completed the intake for individual counseling, he did not attend any counseling sessions. He completed only three parenting classes. Father was referred for substance abuse treatment services. The social worker and his counselor agreed that instead of attending the treatment program, he would attend three AA/NA meetings per week as long as he continued to test clean. Father, however, failed to submit to substance abuse testing and did not provide AA/NA attendance meeting slips. The Agency was concerned about father's commitment to reunifying with the children, noting that while father had a full-time job, he was homeless and unwilling to share his plans with the Agency and court as to how he would care for the children.
The Cherokee Nation notified the Agency that the children were eligible for enrollment in the tribe, but the tribe was not empowered to intervene in the matter. Although the Agency had given father the tribal registration paperwork and original state birth certificates to enroll the children in the Cherokee Nation, father had not submitted the paperwork to the tribe.
At the contested review...
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