California Court of Appeal Sep 17, 2024 No. E082446Unpublished
Filed 9/17/24 In re T.N. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
In re T.N., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E082446
Plaintiff and Respondent, (Super.Ct.No. DPRI2200126)
v. OPINION
K.A.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Dorothy McLaughlin,
Judge. Affirmed.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Minh C. Tran, County Counsel, and Teresa K.B. Beecham and Julie Jarvi, Deputy
County Counsel, for Plaintiff and Respondent.
1
K.A. (mother) appeals from orders terminating her reunification services. She
argues the Riverside County Department of Public Social Services (department) failed to
provide reasonable reunification services. Relatedly, she argues the department violated
the Indian Child Welfare Act (ICWA) by failing to make active efforts to prevent the
breakup of an Indian family. The department argues it provided reasonable reunification
services. It also argues the ICWA active efforts duty does not apply here because,
although the child is apparently eligible for membership in a tribe, he is not yet enrolled
and therefore is not yet an Indian child. We conclude there is substantial evidence the
department provided reasonable reunification services. The juvenile court has not yet
made any ruling on whether the department made active efforts to prevent the breakup of
an Indian family, so that issue is not ripe.
BACKGROUND
This dependency concerns mother’s minor child T.N. (born 2021).
In October 2022 the department received a referral alleging the parents neglected
T.N. and engaged in domestic violence. Specifically, the referral alleged that mother
attacked father with a butter knife, that she seemed paranoid, that she was distressed and
panicked whenever T.N. cried, and that she generally suffered from mental health issues.
The parents also allegedly “had a history of domestic violence with law enforcement
involvement.”
The department visited the parents’ home and spoke to father. Father told the
department mother had a diagnosis of schizophrenia, depression, and anxiety. He said
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she was supposed to take medication, but had not done so for almost two months. He
also said there were a dozen similar domestic violence incidents in the past. However,
father said mother was never violent towards T.N. He said that he considered leaving
mother and taking T.N. but felt he could not do so because mother was not capable of
caring for herself.
Mother confirmed she was no longer taking her medication. The department also
reported that she had a history of abusing controlled substances such as alcohol and
marijuana, and was volatile while under the influence of alcohol. Mother was also
involuntarily committed under Welfare and Institutions Code section 51501 shortly after
T.N.’s birth.
The department removed T.N. via a protective custody warrant, and filed a
petition under section 300, subdivision (b)(1). The petition alleged the parents had a
history of domestic violence, mother suffers from unresolved mental health issues,
mother had a history of substance abuse and volatile behavior while under the influence,
and father had a history of marijuana abuse.
Shortly thereafter, mother informed the court and the department that T.N. may be
a member of, or eligible for membership in, the Oklahoma Cherokee tribe.
At the detention hearing, the court found the petition stated a prima facie case for
all allegations except the substance abuse allegation against father, and detained T.N.
The court asked both parents about their Indian ancestry, and both mother and mother’s
1 Undesignated statutory references are to the Welfare and Institutions Code.
3
counsel informed the court that maternal great-grandmother is a registered member of the
Cherokee tribe. Accordingly, the court found there was reason to believe T.N. is an
Indian child. The department subsequently followed up with the maternal grandmother,
who confirmed she was a registered member of a tribe.
The department interviewed the parents again before the jurisdiction and
disposition hearing. Mother admitted to domestic violence incidents, including one
incident in 2015 where she stabbed father “partly on the neck, leg, and hand with a large
knife,” which resulted in her arrest. She also admitted to trying to stab father with a
butter knife in the most recent domestic violence incident. Mother said she completed
high school and some community college. She was unemployed and waiting to be
approved for disability. Mother told the department “she did not feel capable of caring
for the child, and wanted the father to reunite and keep the child, until she figures out her
life.” However, she did not agree to relinquish T.N. She also told the department she
suffered from post-traumatic stress disorder and depression.
Father elaborated on mother’s struggles with her mental health and other cognitive
issues. He said he removed the TV from their home because she thought people were
watching her through it, and that she stopped eating food he cooked because she thought
he poisoned it. He also alleged that she has a learning disability and “[s]he can’t count,
she can’t read, [and] she can’t keep track of time.” According to father, mother did not
graduate high school until she was 21. He said her mental health got worse after T.N.’s
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birth, and that he can no longer take care of both her and T.N. He also expressed
frustration that she would not engage in parenting classes.
The department referred mother to domestic violence for perpetrators classes,
substance abuse services, individual therapy, and parenting education. It also provided a
referral for a parent partner.
The court held an initial jurisdiction hearing in November 2022. However, it
found exceptional circumstances to continue it to allow for further ICWA inquiry and
noticing. Accordingly, the court ordered the department to send ICWA notices to the
Bureau of Indian Affairs (BIA). It also authorized a psychological evaluation for mother.
In December 2022 the Cherokee Nation responded to the department’s notice. It
informed the department that T.N. “can be traced in our tribal records based on the
extended family member/s highlighted above.” It advised that T.N. was not currently an
Indian child, and that the tribe therefore did not have jurisdiction to intervene. However,
it included information for how to enroll T.N. in the tribe. The department provided the
enrollment information to mother. Mother informed the department she already had an
enrollment packet, but the packet she showed the department was unrelated to tribal
enrollment. The department then “offered assistance for the child’s enrollment.” To
assist, the department contacted the Eligibility Supervisor for the Cherokee Nation, who
confirmed T.N. was eligible for membership through the maternal grandmother.
The court held a continued jurisdiction hearing in December 2022. At this
jurisdiction hearing minor’s counsel requested additional help getting T.N. enrolled with
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the tribe. Mother’s counsel told the court that mother planned to enroll as well, and also
requested the department’s help. Mother also requested a parent partner. The court
continued the jurisdiction hearing so the parties and the department could pursue
enrollment. To that end, the court ordered the department to assist T.N. and mother in
enrolling themselves with the tribe, and advised counsel for both parties that they should
be assisting their clients as well. The court also ordered the department to provide
mother with a parent partner and referrals for domestic violence programs. The
department provided a referral for a parent partner about three weeks later.
The same day as the jurisdiction hearing, father called the department “on behalf
of the mother to ‘advocate for her.’ ” Mother was present during the call. Father
reported that mother felt “lost and overwhelmed” by the process, that she had been
dropped from her parenting class, that she did not understand what happened in court,
and was “ ‘forgetful.’ ” He said mother was not able to complete services concurrently,
and needed to do them one at a time. Mother also requested that she no longer be
required to participate in substance abuse classes, because she only used marijuana. The
department advised mother that she could complete her services one at a time, but that
would mean the reunification process would take longer. Mother told the department she
would re-enroll in parenting classes, enroll in domestic violence services, and continue
substance abuse treatment.
In January 2023 mother told the department she tried to contact the Cherokee tribe
but did not succeed. She also said her attorney was not helping her with the enrollment
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process. The department re-sent the tribe’s contact information, and “once again offered
the mother assistance for the enrollment if needed.” Mother told the department she
would update them when she started the process and contact them if she needed help.
The court held another jurisdiction hearing in January 2023. Mother’s counsel
reported he was having issues assisting mother with enrollment because the tribe was
“creating a lot of roadblocks.” He “finally came to the conclusion that it’s just going to
be easier for mother to ask for the documents,” and that mother had done so. However,
he could not say how long it would take to finally get mother enrolled. The court
continued the jurisdiction hearing again to allow mother to enroll in the tribe. Later that
month, mother told the department she completed the paperwork to enroll herself and
T.N. in the tribe.
As of February 2023 mother was attending parenting classes, substance abuse
classes, and domestic violence services. Father had completed his domestic violence
services.
The court held another jurisdiction hearing that same month. The court sustained
the petition, detained T.N., and ordered reunification services. The court added
medication reviews to mother’s case plan, and authorized a psychological evaluation over
mother’s objection. It is uncontested mother never received this psychological
evaluation. As to ICWA, the minute order indicates the court found T.N. may have
Indian ancestry, that there was reason to know T.N. is an Indian child, and that ICWA
may apply.
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The court held a six-month review hearing in August 2023. At the hearing the
court ordered the department to provide a referral for a parent partner. Mother’s counsel
informed the court that the Cherokee Nation had the relevant enrollment paperwork, but
the parties had not heard back from them.
In September 2023 mother told the department that the tribe had informed her she
needed to turn in paperwork to continue the enrollment process, but mother could not
identify what paperwork that was. The department attempted to call the tribe on mother’s
behalf, but the call went to voicemail. The department then “encouraged [mother] to
continue to call, and to email the tribe using the contact information” it had previously
provided.
The department filed a report in September 2023 recommending the court
terminate mother’s reunification services. Mother barely participated in services. She
completed only one month of parenting education and domestic violence services before
dropping out, only one session of individual therapy, and tested positive for marijuana
multiple times before dropping out of the substance abuse program because “she stated
she was unable to remain sober.” Mother was living on an air mattress in maternal
grandmother’s mobile home, and told the department that she wanted to enter a
residential treatment facility to have shelter and receive a higher level of care regarding
her issues with marijuana. The department helped mother call a number they provided to
inquire about residential treatment facilities, but mother admitted she did not complete
the call because the representative was “ ‘rude.’ ” In general mother expressed feeling
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overwhelmed and that she wanted to enter residential treatment of some kind, but was not
able or willing to do the work necessary to enter such treatment.
The court held another six-month review hearing in September 2023. At that
hearing mother’s counsel reported that they still had not heard back from the Cherokee
Nation. According to counsel mother had filed all necessary paperwork but the tribe had
a “backlog” and had not yet processed the paperwork. The court set a contested six-
month review hearing for the next month.
At the contested six-month review hearing held in October 2023, mother’s counsel
informed the court that mother was in a residential treatment facility in Yucaipa. Mother
was medication compliant in the facility. Mother’s counsel also requested “an
authorization to assist mother with the Cherokee Nation.” According to mother’s
counsel the tribe needed a long form birth certificate for T.N., which mother struggled
getting. The department did not object to this request. The court stated that it “already
made orders with regard to providing [mother] with assistance, as that’s required under
the law . . . for the Department to assist.” It therefore maintained that order.
Nevertheless, the court ultimately found mother had made minimal progress in her
case plan. Accordingly, the court continued T.N. in detention, continued reunification
services for father, but terminated reunification services for mother. In doing so it found
“[b]y clear and convincing evidence, [mother] failed to participate regularly and make
substantive progress in a court-ordered treatment plan and there is no substantial
9
probability that the child . . . will be returned.” It also found “there’s reason to know that
[T.N.] may be of Native American ancestry.” Mother appealed.
ANALYSIS
Mother makes two interrelated arguments. First, she argues the department and
court did not provide her with reasonable reunification services. Second, she argues the
department did not make active efforts to prevent the breakup of an Indian family in
violation of ICWA, in part by failing to provide sufficient reunification services. The
department argues it did provide reasonable reunification services, and that ICWA does
not apply because T.N. is not yet an Indian child.2
Under both state and federal law, when the court knows a child is an Indian child,
it must find the department made active efforts to prevent the breakup of the family
before either placing the child in foster care or terminating parental rights. (§ 361.7,
2 The department also argues mother forfeited any ICWA error. Because we conclude mother raises these ICWA issues prematurely, we do not address the department’s forfeiture argument. We also note that under section 224.2, subdivision (h), whether a child is a member of a tribe or eligible for membership is governed entirely by the tribe, and “[i]nformation that the child is not enrolled, or is not eligible for enrollment in, the tribe is not determinative of the child’s membership status unless the tribe also confirms in writing that enrollment is a prerequisite for membership under tribal law or custom.” (§ 224.2, subd. (h).) Here the Cherokee Nation has stated in writing that T.N. is not an Indian child—and therefore not a member of the tribe—because he is not enrolled as a tribal citizen, but the department and the juvenile courts should keep in mind that no tribe needs such a rule, and a child may be a member of a tribe without going through any enrollment process.
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subd. (a); 25 U.S.C. § 1912(d).)3 Furthermore, under California law, the department and
the court are obligated to treat a child as an Indian child even if they do not know the
child is an Indian child, but there is reason to know the child is an Indian child. (§ 224.2,
subd. (i)(1); Cal. Rules of Court, rule 5.481(b)(3).)
The department argues the trial court never found that there was reason to know
T.N. was an Indian child, and therefore they were never required to treat him as if he
were an Indian child. This is simply not true. The trial court arguably found there was
reason to know T.N. is an Indian child twice—in a February 2023 minute order and
orally at the October 2023 contested six-month review hearing when it “note[d], as has
been stated on the record, there’s reason to know that [T.N.] may be of Native American
ancestry.”
Nevertheless, the department urges us to ignore, reject, or reinterpret these
findings. Specifically, it argues the trial court’s February 2023 minute order—which
expressly found there was reason to know T.N. may be an Indian child—is erroneous,
because the court did not make this finding orally. It also argues the court’s later oral
finding that “there’s reason to know that [T.N.] may be of Native American ancestry,” is
not a finding that there was reason to know T.N. is an Indian child. (Italics added.)
3 Active efforts are defined under section 224.1, subdivision (f), as generally “affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite an Indian child with their family.” Section 224.1, subdivision (f), also lays out a detailed, non-exhaustive list of actions which would fall under the umbrella of active efforts, and which generally include actively assisting the Indian family in interfacing and receiving certain remedial services, as well as requiring the court and department to include and coordinate with the relevant tribe or tribes throughout the proceedings.
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Neither of these arguments is at all convincing. First, there is no contradiction
between the court’s oral findings and the February 2023 minute order. The court stated
orally that it “adopt[ed] the findings and orders recommended by the Department that are
attached to the jurisdiction/disposition report.” These recommendations—which the
department itself made—included a recommended finding that “[t]he child is an Indian
child or there is reason to know that the child is an Indian child.” The department cannot
invite the court to make such a finding, accept its oral adoption of related findings, but
nevertheless claim that because it did not orally recite this specific finding the minute
order contradicts the oral pronouncement.
Nor was the court’s oral finding at the October 2023 hearing ambiguous, or
otherwise insufficient. There is no way to interpret the court’s finding that there was
reason to know T.N. had Native American ancestry as anything other than a finding that
there was reason to know he is an Indian child, even if the court did not use that exact
phrasing.
Finally, the court’s full oral pronouncement at the October 2023 hearing shows
that it intended to find there was reason to know T.N. is an Indian child at both the
February and October hearings. At the October hearing the court “note[d], as has been
stated on the record, there’s reason to know that [T.N.] may be of Native American
ancestry.” Thus, the court believed it had made a “reason to know” finding and was
simply reaffirming that earlier finding. This suggests, if not outright proves, that the
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court intended its “reason to know” finding in the February 2023 minute order, and that
the October oral pronouncement was meant to mirror that earlier finding.4
Thus, we reject the department’s contention that it was not obligated to make
active efforts to prevent the breakup of the Indian family. Though T.N. is not yet an
Indian child, the court’s “reason to know” finding meant the court and the department
needed to treat him as if he were one until the court determined otherwise.
Nevertheless, we conclude that mother’s ICWA arguments are premature. At the
time the court detained T.N. and placed him in foster care, it only had reason to believe,
and not reason to know, T.N. may be an Indian child. Therefore the court was not
required to, and did not, find the department made “active efforts” under section 361.7 at
that time. The next time the court will need to make an active efforts finding is not until
a party seeks to terminate mother’s parental rights. That finding, or lack thereof, will be
reviewable then. The issue is not, however, ripe for review now.
We turn, then, to mother’s argument that the department failed to provide
reasonable reunification services. When a court orders reunification services, the
department must ensure the services provided are reasonable. (§ 361.5, subd. (a); Earl L.
v. Superior Court (2011) 199 Cal.App.4th 1490, 1501 (Earl L.).) Whether the
4 There does appear to be a discrepancy between the court’s minute orders and its oral pronouncements, but not in the department’s favor. The October 2023 minute order following the six-month review hearing states, “[t]here is reason to believe that the child . . . may be of Indian ancestry.” This statement contains two errors. First, it misstates the court’s oral pronouncement that “there’s reason to know that [T.N.] may be of Native American ancestry.” (Italics added.) Second, it echoes the court’s misstatement by referencing whether he had Native American ancestry rather than whether he was an Indian child.
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reunification services offered were reasonable and suitable is judged according to the
circumstances. (Earl L., at p. 1501.) “The standard is not whether the services provided
were the best that might be provided in an ideal world, but whether the services were
reasonable under the circumstances.” (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
Any reunification plan “must be specifically tailored to fit the circumstances of each
family [citation], and must be designed to eliminate those conditions which led to the
juvenile court’s jurisdictional finding.” (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.)
The court’s reasonable services finding “must be made by clear and convincing
evidence in the trial court.” (T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1238.)
We review the finding that reasonable services had been provided or offered for
substantial evidence. (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598.) “In
general, when presented with a challenge to the sufficiency of the evidence associated
with a finding requiring clear and convincing evidence, the court must determine whether
the record, viewed as a whole, contains substantial evidence from which a reasonable
trier of fact could have made the finding of high probability demanded by this standard of
proof.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005.) In other words, “the
question before a court reviewing a finding that a fact has been proved by clear and
convincing evidence is not whether the appellate court itself regards the evidence as clear
and convincing; it is whether a reasonable trier of fact could have regarded the evidence
as satisfying this standard of proof.” (Id. at p. 1009.)
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On this deferential standard of review, we have no appropriate basis to disturb the
juvenile court’s finding that the department provided reasonable reunification services.
Mother argues that, given her cognitive and mental health issues, the department had to
provide more help obtaining services. But there is sufficient evidence in the record that
mother’s issues were not with obtaining services but participating in them. The examples
of her beginning services, but not following through, are replete. She completed one
month of parenting education and domestic violence services before dropping out, and
her attendance during that month was spotty. She attended only one individual therapy
session. She tested positive for marijuana multiple times before withdrawing from
substance abuse services altogether because she admitted she was unable to remain sober.
When mother expressed a desire to enter residential treatment, the department helped her
call a facility, but she ended the call early because she felt the representative was rude.
All of these are not examples of mother failing to engage with services at all but of her
failing to continue with services once started and her failure to capitalize on what help the
department did offer. Even if we agreed the department had a duty to help mother obtain
services, it cannot make her participate in them.
Mother argues the department’s failures to assist her in obtaining a parent partner,
and its failure to provide her with a court authorized psychological evaluation, mean she
was not provided reasonable reunification services. We disagree. As the department
points out, it made two referrals for mother to get a parent partner, and mother simply
failed to take advantage of those referrals. And though we agree with mother that the
15
department should have provided her the psychological evaluation the court authorized,
we cannot say its failure to do so undermines the court’s finding that the services it did
provide were reasonable. Indeed, mother’s counsel argued he did “not see the purpose of
doing the psychological evaluation when mother is already in her mental health services.”
Instead, he “urge[d] the Department to work with mother’s current mental health team,”
who had been “treating mother since 2019, including the issues that were outlined in the
detention report.” Though the court was apparently unconvinced by this argument at the
time, since it did authorize a psychological evaluation, seeing mother’s general failure to
engage with services might have changed its mind. In other words, even if we agree with
mother that the department should have given her a psychological evaluation, there was
nevertheless sufficient evidence for the court to conclude that such an evaluation was
unnecessary and/or would not have been helpful, for the reasons mother’s counsel
articulated.
Accordingly, we conclude that substantial evidence supports the trial court’s
implicit finding that the department provided reasonable reunification services, and
therefore affirm its order terminating reunification services.
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DISPOSITION
We affirm.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAPHAEL J.
We concur:
RAMIREZ P. J.
MILLER J.
17
AI Brief
AI-generated · verify before citing
Holding. The court held that substantial evidence supported the juvenile court's finding that the department provided reasonable reunification services, and that the mother's claims regarding the Indian Child Welfare Act (ICWA) were premature because the court had not yet made an active efforts finding.
Issues
Whether the department provided reasonable reunification services to the mother.
Whether the department violated the Indian Child Welfare Act by failing to make active efforts to prevent the breakup of an Indian family.
Whether the mother's ICWA claims are ripe for appellate review.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“We conclude there is substantial evidence the department provided reasonable reunification services.”
“The juvenile court has not yet made any ruling on whether the department made active efforts to prevent the breakup of an Indian family, so that issue is not ripe.”
“Nevertheless, we conclude that mother’s ICWA arguments are premature.”