IN RE: ISABELLA M. et al. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Yvonne G. appeals from the order of the juvenile court terminating her reunification services.   She contends that the court erred in finding that the Department of Children and Family Services (the Department) provided mother reasonable services and in failing to ensure proper notification pursuant to the Indian Child Welfare Act (ICWA) (Welf. & Inst.Code, § 224 et seq.;   25 U.S.C. § 1912(a)).¹  We affirm the order terminating services and dismiss as moot mother's challenge under ICWA.

FACTUAL AND PROCEDURAL BACKGROUND

1. Detention, adjudication, and disposition

In May 2009, the Department received a referral alleging that mother and Cesar M.² were neglecting and emotionally abusing the children—Isabella (7 years old), Lilliana (5 years old) and Jesse (3 years old).   The referral also alleged the children seldom attended school and the parents had not been ensuring that Jesse received the required services from the Regional Center.   Interviews of relatives and school officials confirmed these allegations and that the parents were using drugs, selling their food stamps for drug money, and the family had been kicked out of their home by father's grandmother after father had assaulted her.

In August 2009, the Department received a second referral that mother and Cesar had been arrested while the three children were in their care.   According to the deputy sheriff, the parents drove with their three children to a drug dealer's apartment, shot him, stole $3,000, and fled in a black Cadillac Escalade driven by mother.   At the time deputies apprehended the couple, one of the children identified the gun found in the vehicle as “ ‘daddy's gun, it's just a toy.’  “ The children, who were in various stages of undress and shoeless, were placed in protective custody at the sheriff's station.   The Department detained the children in early August 2009, and eventually placed them with the maternal grandmother.   The charges against mother were eventually dropped.

The juvenile court sustained a petition alleging father had shot and robbed someone while the children were in the parents' care and supervision;  father had a loaded gun within the children's reach;  and mother has a history of substance abuse and is a current abuser of marijuana and alcohol, all of which places the children at risk of physical and emotional harm, damage, and danger, and constitutes a failure to protect the children. (§ 300, subds.(b) & (j).)

As for the disposition, the court ordered mother to enroll in (1) a substance abuse program with random testing at least twice a month, (2) parent education, (3) individual counseling with a licensed therapist if possible, and (4) to attend Narcotics and Alcohol Anonymous (NA and AA) meetings with a sponsor.   The court ordered that the Department give mother referrals to low-and no-cost programs, while noting that NA and AA meetings are free.

2. The Department's efforts

In July 2009, after first learning of this family's plight, the social worker provided mother with referrals for rehabilitative services.

On August 20, 2009, after mother and Cesar were arrested, the social worker explained to mother the family reunification process and its time frames.   The social worker informed mother “that her failure to reunify with her children could result in the termination of Family Reunification services and the implementation of a permanent plan, adoption․”  The social worker again provided mother with a set of referrals to rehabilitative programs.

In advance of the adjudication hearing, mother told the social worker that she had not found any program that MediCal would cover, her MediCal was canceled, and mother had no job or money to enroll in a program.   Mother drug-tested five times, but had two positive results.   The social worker suggested that mother continue to pursue the no-cost, and low-cost programs on the referral list and offered to discuss the problem with a Department of Social Services eligibility worker.

On October 15, 2009, the day after the adjudication hearing, the social worker sent mother a letter with 13 pages of referrals to programs ordered by the court.

On February 9, 2010, the social worker sent mother a letter requesting information about program enrollment.   The Department's letter also suggested that mother begin to help with the children's meals, laundry, care, and bathing and to be part of Jesse's physical therapy, stating, “[t]hese are all necessary steps to have your children returned to you.”   The social worker's letter also stated, “At this time it appears you are not taking this detainment [sic ] very serious[ly] but I can assure you that the court does.   The current plan is adoption for the minor children and it is up to you to change the decision by doing what is necessary in the case plan.”  (Italics added.)

On April 14, 2010, the social worker reported that mother had four positive drug test results because she missed tests.   The social worker sent mother updated paperwork for testing.

In addition to monitoring mother's progress in her case plan, the Department met with mother on a monthly basis and provided her with bus passes so she could travel to her programs and to work.   The social worker also sent mother letters asking her to inform the Department if she required assistance.

Notwithstanding these efforts, by April 2010, six months after the adjudication and disposition hearing, and eight months after the children were detained, mother had made almost no effort to comply with her case plan.   The Department recommended terminating services.

In June 2010, mother gave the social worker paperwork indicating she had enrolled in a parenting program with Valley Prevention and Treatment Center and began her program that same month.   Nonetheless, mother stopped drug testing in April 2010 and by June 7, 2010, had missed five more tests.

At the six-month review hearing (§ 366.21, subd. (e)), mother testified that she had not completed any of her case plan as of July 13, 2010.   She had not enrolled in a drug-rehabilitation program or demonstrated proof she attended AA or NA. Mother's explanation for missing drug tests was that the lab the social worker sent her to was “on the other side of town” and mother is unable to navigate the bus system.   Mother never accepted the grandmother's offer to drive her to drug test, opting instead to take the bus although she claimed she just got “lost on the bus.”   In seven months, mother had not figured out how to get to the lab, even though she rode the bus to work.   In nine months, mother had gone to three counseling sessions.   She testified that the Department's referrals were too expensive, ranging from $900 to $1,600 per month for therapy and parenting classes.   It took mother six months to find a parenting program because of her financial constraints.

The juvenile court calculated that the children had been detained for nearly a year and mother had had approximately nine months in which to participate in services.   In all of that time, the court found, mother had failed to enroll in programs and had actually ceased drug testing.   The court found that the best excuse mother could give was that the referrals for parenting classes were too expensive and she could not find her way on a bus.   Finding mother's justification to be incredible and among the most “lame” it had ever heard, the court ruled that “mother is in minimal compliance with the case plan” and has made “zero progress.”   The court found that the Department gave mother three pages of referrals for programs and that “reasonable services have been provided.”   The court terminated reunification services for mother.

CONTENTIONS

Mother contends the Department failed to provide her with reasonable reunification services and the court failed to comply with the notice requirements under ICWA.

DISCUSSION

1. The Department provided reasonable reunification services.

Mother contends that the Department failed to provide her with reasonable reunification services.   Although this is the sort of contention that should be raised by a petition for extraordinary writ review (§ 366.26, subd. (l )), at the time the juvenile court terminated mother's reunification services, it did not set a permanent planning hearing under section 366.26.  (Cal. Rules of Court, rule 5.708(l ).)   Hence, mother properly sought to proceed by way of appeal rather than writ petition.  (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.)

Turning to the merits of mother's contention, once reunification services are ordered, the Department is obligated to make “ ‘[a] good faith effort’ to provide reasonable services responding to the unique needs of each family.   [Citation.]”  (In re Monica C. (1995) 31 Cal.App.4th 296, 306.)  “ ‘[T]he record should show that the [Department] identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the [parent] during the course of the service plan, and made reasonable efforts to assist the [parent when] compliance proved difficult․’  [Citation.]”  (In re Ronell A. (1995) 44 Cal.App.4th 1352, 1362.)  “ ‘The effort must be made to provide suitable services, in spite of the difficulties of doing so or the prospects of success.’  [Citation.]”  (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164–1165.)

The juvenile court may not set a hearing under section 366.26 to terminate parental rights unless it finds by clear and convincing evidence that the Department provided or offered to the parent reasonable services.  (Cal. Rules of Court, rule 5.708(m).)  Our task, however, is to determine whether sufficient evidence supports the juvenile court's finding by clear and convincing evidence.  (In re Ronell A., supra, 44 Cal.App.4th at pp. 1361–1362.)

“In reviewing the reasonableness of the services provided, this court must view the evidence in a light most favorable to the respondent.   We must indulge in all reasonable and legitimate inferences to uphold the judgment.   [Citation.]  ‘If there is any substantial evidence to support the findings of a juvenile court, a reviewing court is without power to weigh or evaluate the findings.’  [Citation.]”  (In re Ronell A., supra, 44 Cal.App.4th at pp. 1361–1362.)  “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.)

Mother first argues that the Department failed to warn her, unless she completed the services, that she would not regain custody of her children.   To the contrary, the record shows that DI Nalbandyan spoke to mother on August 20, 2009 and explained the reunification service process and its time frames and “indicated to the mother that her failure to reunify with her children could result in the termination of Family Reunification services and the implementation of a permanent plan, adoption ․”  (Italics added.)   Again, on February 9, 2010, the children's social worker wrote to mother stating, “it appears you are not taking this detainment [sic ] very serious[ly] but I can assure you that the court does.   The current plan is adoption for the minor children and it is up to you to change the decision by doing what is necessary in the case plan.”  (Italics added.)   Thus, the Department gave mother repeated, clear warning of the consequence of failure to participate and make progress in her case plan.³

Mother next contends that the Department failed to provide adequate services because it provided her with a list of referrals that “were more expensive than even a middle class client might be able to afford.”   Although the Department may have acknowledged that the parenting class referrals were “problematic,” the record shows that it nonetheless provided referrals to mother on July 30, 2009, August 20, 2009, and October 15, 2009.   The referrals included programs for each of the areas of mother's case plan, namely parenting classes, individual counseling, NA and AA meetings, and for finding a sponsor.   These referrals included many low- and no-cost programs.   NA and AA programs are free of charge, but mother participated in neither of those.   Mother testified that the Department's referrals were too expensive, ranging from $1,600 down to $900 a month.   Yet, the court did not believe mother.   Not only was the court entitled to disbelieve mother (In re Casey D. (1999) 70 Cal.App.4th 38, 52), but the record supports the court's assessment:  The referrals were ample and appropriately low- or no-cost, as ordered by the juvenile court.   Even the program mother started in June 2010, charged $20 per session for parenting classes and $45 per session for therapy, and was on the list of referrals mother received in October 2009.   Also, the Department reminded mother of her obligations, and offered to provide help if mother needed it.   Mother's failure to enroll in the court-ordered programs was the result of her own lack of effort, not the failure of the Department to provide reasonable services.

Mother also argues that the juvenile court failed to make the required finding that the Department provided reasonable services but instead implied this by terminating mother's services.   The problem with mother's contentions is that the court made the requisite finding more than once that “reasonable services have been provided.”   The record supports these findings.   The Department identified the problems leading to the children's detention, namely failure to protect, alcohol and drug abuse, and neglect;  it offered services designed to remedy those problems;  maintained regular contact with mother;  provided her with multi-page lists of referrals three times;  sent her letters reminding her of her obligations and the risk of failure to comply;  provided bus passes;  requested mother contact the Department if she was having trouble with her plan;  and monitored the children's progress.  (In re Ronell A., supra, 44 Cal.App.4th at p. 1362.)

Mother's appellate brief is replete with suggestions that her failure to participate in her case plan is the result of her poverty.   However, the Department provided mother with no- and low-cost referrals, including free AA and NA meetings and drug testing, none of which mother attempted to enroll in until nine months had passed.   The juvenile court is only required to order that reasonable reunification services be provided;  it cannot make parents participate in those services.  (In re Joanna Y. (1992) 8 Cal.App.4th 433, 442.)  “ ‘[R]eunification services are voluntary, and cannot be forced on an unwilling or indifferent parent.  [Citation.]’  [Citation.]”  (In re Christina L. (1992) 3 Cal.App.4th 404, 414.)   The social worker is not required to “ ‘take the parent by the hand and escort him or her to and through classes or counseling sessions.   A parent whose children have been adjudged dependents of the juvenile court is on notice of the conduct requiring such state intervention.   If such a parent in no way seeks to correct his or her own behavior or waits until the impetus of an impending court hearing to attempt to do so, the legislative purpose of providing safe and stable environments for children is not served by forcing the juvenile court to go “on hold” while the parent makes another stab at compliance.’  “ (Id. at pp. 414–415, italics added.)   The juvenile court did not err in finding reasonable services were provided and in terminating reunification for mother.

2. ICWA

Early in the case, mother indicated to the juvenile court that she may have Cherokee heritage.   The court ordered the Department to comply with ICWA and provide notices to the tribe.   The record does not indicate that the Department complied with that order.   Mother contends that reversal is necessary because the juvenile court failed to require the Department to notify the Indian tribes and yet found that ICWA did not apply.

The ICWA provides that whenever “the court ․ knows or has reason to know that an Indian child is involved” in a dependency proceeding, the party seeking termination of parental rights must, among other things, notify the child's tribe of the pending proceedings, and of the tribe's right to intervene. (§ 224.2, subds.(a) & (b);  25 U.S.C. § 1912(a).)   Both the California and federal ICWA statutes mandate that the social welfare agency notify the child's tribe “[w]hen a dependency court has reason to know the proceeding involves an Indian child․”  (In re Brooke C. (2005) 127 Cal.App.4th 377, 383.)   The responsibility for compliance with ICWA falls squarely and affirmatively on the juvenile court and the Department.  (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1409.)   When notice is required but not properly given, the dependency court's orders are voidable.  (In re Karla C. (2003) 113 Cal.App.4th 166, 174.)

While this case was on appeal, the Department requested we take additional evidence in the form of its report from March 22, 2011, after mother's appeal was filed, and take judicial notice of the juvenile court's ruling of that date.  (Code Civ. Proc., § 909;  Evid.Code, § 452, subd. (d).)  We grant the request.  (In re Josiah Z. (2005) 36 Cal.4th 664, 676.)   The documents indicate that on March 16, 2011, the maternal grandmother informed the social worker that neither mother's mother's family nor mother's father's family has any Native American ancestry and that she had no idea where mother had gotten the idea the family had Cherokee heritage.   The maternal grandmother elucidated that her own sister had researched the family history dating back to the 1800's and found that the family has Mexican and Czech ancestry.   The maternal great aunt confirmed the maternal grandmother's statements.   Hence, the juvenile court ruled on March 22, 2011 that “based on the investigation made by [the Department], the court does not have a reason to know that this is an Indian child, as defined under ICWA, and finds that this is not an ICWA case.”   (Capitalization omitted.)

Based on this evidence, the Department requests that we dismiss as moot that portion of mother's appeal challenging notice under the ICWA.

“An appeal becomes moot when, through no fault of the respondent, the occurrence of an event renders it impossible for the appellate court to grant the appellant effective relief.  [Citations.]  On a case-by-case basis, the reviewing court decides whether subsequent events in a dependency case have rendered the appeal moot and whether its decision would affect the outcome of the case in a subsequent proceeding.  [Citation.]”  (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1054–1055.)   Where the Department's inquiry of March 16, 2011 eliminated any “reason to know that an Indian child is involved” in this case, and where the court found ICWA is inapplicable, notice under ICWA is not required. (§ 224.2, subd. (b).)  Accordingly, mother's contention that the juvenile court erred in failing to require ICWA notices is moot and so we grant the Department's motion to dismiss that portion of mother's appeal concerning notice under ICWA.

DISPOSITION

The order terminating mother's reunification services is affirmed.   That portion of mother's appeal challenging the notices under ICWA is dismissed as moot.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise noted..  FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise noted.

FN2. Cesar M. is incarcerated and not a party to this appeal..  FN2. Cesar M. is incarcerated and not a party to this appeal.

FN3. Thus, David B. v. Superior Court (2004) 123 Cal.App.4th 768 and In re Alvin R. (2003) 108 Cal.App.4th 962, upon which mother relies in this regard are inapposite..  FN3. Thus, David B. v. Superior Court (2004) 123 Cal.App.4th 768 and In re Alvin R. (2003) 108 Cal.App.4th 962, upon which mother relies in this regard are inapposite.

CROSKEY, Acting P. J. KITCHING, J.