San Diego County Health & Human Services Agency v. Amber L. (2015) · DecisionDepot
San Diego County Health & Human Services Agency v. Amber L.
California Court of Appeal Dec 21, 2015 No. D068464Unpublished
Before: McIntyre, McConnell, Haller
Filed 12/21/15 In re A.L. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re A.L. et al., Persons Coming Under the Juvenile Court Law. D068464 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. NJ13677B-C) Plaintiff and Respondent,
v.
AMBER L.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County, Michael Imhoff,
Commissioner. Affirmed.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, Jennifer M. Stone, Deputy County Counsel, for Plaintiff and Respondent.
Amber L. appeals from orders terminating her parental rights to her minor children,
A.L. and A.R. (together minors), under Welfare and Institutions Code section 366.26.
(Statutory references are to the Welfare and Institutions Code unless otherwise noted.)
Amber's appeal raises issues relating to the substantive provisions of the Indian Child
Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.), and related California statutes. We
conclude the juvenile court erred by refusing to hear testimony on the issue of active efforts
The record here demonstrates the Agency satisfied this standard. The Agency
identified the problem that prevented Amber from providing safe and adequate care for her
minor children—her drug abuse—and made a good faith effort to develop and implement a
plan to address the problem and to return the minors to Amber's care. The Agency
attempted to maintain contact with Amber in the face of her steady resistance. The Agency
and Ruis were even successful in getting Amber into treatment for a brief period of time.
Further, Whitney kept Ruis abreast of the proceedings from the very first weeks of
the dependency and sought Ruis's help and input throughout the proceedings. The record
shows Ruis and Whitney worked together to try to help Amber obtain the treatment she
needed. The Agency also placed the minors in the home of the paternal grandmother in
compliance with both Amber's wishes and ICWA's statutory placement preference. (See In
re Anthony T. (2012) 208 Cal.App.4th 1019, 1027 ["In the absence of good cause to the
contrary, the preferred placement order for an Indian child is with a member of the child's
extended family; a foster home approved by the Indian child's tribe; an Indian foster home;
or an institution for children approved by an Indian tribe or operated by an Indian
organization."], italics added.)
Amber asserts the Agency's efforts were not adequate because "despite the
recognized problems with the paternal grandmother's housing" it did not "check for
available housing resources" or make efforts to place the minors with maternal relatives
who had a tribal affiliation. Amber also argues there was no evidence the Agency took
steps to secure the minors' tribal membership. With respect to placement, by the time of
the permanency planning hearing the paternal grandmother's housing situation had
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improved. She was in stable housing, with a maternal relative, and was committed to
adopting the minors. Amber points to the fact that the juvenile court declined to find the
children were specifically adoptable because of the housing insecurity faced by the paternal
grandmother. But this finding did not negate the Agency's efforts to keep the minors in
Amber's preferred placement with the paternal grandmother, who also satisfied IWCA's
primary placement preference.
With respect to Amber's assertion that the Agency failed to identify maternal
relatives for placement, Whitney was in contact with the maternal grandmother about
visitation and provided her with information she needed to obtain clearance from the
Agency to set up visitation. Additionally, at the time of the permanency planning hearing
the paternal grandmother and the minors were living with a maternal relative. Ruis also
testified that if the paternal grandmother was not approved to adopt the minors then Ruis
would look for another tribal placement.
As to the Agency's efforts to enroll the minors in the tribe, as soon as Ruis was
contacted she confirmed Amber's membership in the tribe and that the minors should be
considered members as well. As the BIA Guidelines make clear, "the determination by a
tribe of whether a child is a member . . . is solely within the jurisdiction and authority of
the tribe." (Guidelines, 80 FR 10146-02 at p. 10153.) "[F]ormal enrollment is not required
for tribal membership. . . . The only relevant factor is whether the tribe verifies that the
child is a member or eligible for membership." (Ibid.) Amber did not raise any deficiency
in the Agency's efforts to enroll the minors in the tribe in the juvenile court and presents no
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argument here concerning why Ruis's verification of the minors' eligibility for membership
is insufficient.
In sum, the Agency was not required to, nor could it have, forced Amber to take the
steps necessary to be able to safely parent the minors. "The reality is that childhood is
brief; it does not wait while a parent rehabilitates himself or herself. The nurturing
required must be given by someone, at the time the child needs it, not when the parent is
ready to give it." (In re Debra M. (1987) 189 Cal.App.3d 1032, 1038.) Although the
Agency might have done more to assist Amber, its efforts in this case satisfied ICWA and
state law requirements.
II
Amber next contends insufficient evidence supported the juvenile court's finding
that her continued custody of the minors would likely result in serious physical or
emotional damage to them.
A
Before the court can terminate parental rights it must make a finding, "supported by
evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that
the continued custody of the child by the parent . . . is likely to result in serious emotional
or physical damage to the child." (25 U.S.C. § 1912(f); see also § 366.26, subd.
(c)(2)(B)(ii) ["The court shall not terminate parental rights if: (ii) The court does not make
a determination at the hearing terminating parental rights, supported by evidence beyond a
reasonable doubt, including testimony of one or more 'qualified expert witnesses' . . . , that
the continued custody of the child by the parent is likely to result in serious emotional or
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physical damage to the child."]; and 361.7, subd. (c) ["No foster care placement or
guardianship may be ordered in the proceeding in the absence of a determination,
supported by clear and convincing evidence, including testimony of a qualified expert
witness, as defined in Section 224.6, that the continued custody of the child by the parent
or Indian custodian is likely to result in serious emotional or physical damage to the
child."])
We review this detriment finding for substantial evidence. (In re Barbara R. (2006)
137 Cal.App.4th 941, 951.) Under this standard, we do not pass on the credibility of
witnesses, attempt to resolve conflicts in the evidence, or reweigh the evidence. Instead,
we draw all reasonable inferences in support of the findings, view the record favorably to
the juvenile court's order and affirm the order even if there is other evidence to the
contrary. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) The appellant has the burden
of showing there is no evidence of a sufficiently substantial nature to support the court's
finding. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
B
In terminating parental rights, the juvenile court found, beyond a reasonable doubt,
that the minors' continued custody by either parent would likely result in serious emotional
or physical damage to the minors. Amber asserts this finding was not supported by the
evidence because Ruis testified she had not met Amber in person before the permanency
planning hearing, and Ruis admitted she was not aware before that day that Amber was
participating in drug treatment and had negative drug tests. Ruis, however, was informed
of the case within weeks of the minors' removal from their parents' custody and had been
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kept abreast of developments in the case by the Agency's social worker throughout the
proceedings. (Amber also asserts the court's finding was not supported by the evidence
because the letter from the drug treatment program that was admitted into evidence at the
hearing stated she enrolled in treatment on April 13, 2014. Other evidence in the record,
however, refutes this assertion and makes clear the provider's letter contains a
typographical error, inadvertently stating 2014 instead of 2015.)
Further, the juvenile court's finding was not based solely on Ruis's declaration. The
court made the detriment finding after considering all the evidence, observing all the
witnesses, including Amber, and assessing their credibility. The evidence before the court
at the time of the selection and implementation hearing showed that Amber could not
safely parent the minors or provide them with long-term stability. Substantial evidence
supported the court's finding beyond a reasonable doubt that continued custody of the
minors by either parent was likely to result in serious emotional or physical damage to the
minors.
DISPOSITION
The orders are affirmed.
McINTYRE, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
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AI Brief
AI-generated · verify before citing
Holding. The juvenile court erred by precluding evidence and failing to make a new finding regarding 'active efforts' under the Indian Child Welfare Act at the permanency planning hearing, but the error was harmless.
Issues
Whether the juvenile court erred by excluding evidence and failing to make a finding on 'active efforts' at the permanency planning hearing.
Whether the appellant forfeited her challenge to the 'active efforts' finding made at the six-month review hearing.
Whether sufficient evidence supported the finding that continued parental custody would likely result in serious physical or emotional damage to the minors.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We conclude the juvenile court erred by refusing to hear testimony on the issue of active efforts at the permanency planning hearing, but that the court's error was harmless.”
“The juvenile court's decision to preclude evidence on the issue and failure to make a finding was, therefore, error.”
“We also reject Amber's contention that insufficient evidence supported the juvenile court's finding that continued parental custody would likely result in serious physical or emotional damage to the minors, and affirm the orders.”