In re J.P. ( 2017 )

Filed 8/17/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re J.P. et al., Persons Coming Under B277756
the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. No. DK17337)
FAMILY SERVICES,
Plaintiff and Respondent,
v.
A.S.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Akemi D. Arakaki, Judge. Reversed and
remanded.
Elizabeth C. Alexander, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, R. Keith Davis,
Assistant County Counsel and Aileen Wong, Deputy County
Counsel for Plaintiff and Respondent.
__________________________
When a dependency court declares children dependent and
removes them from a parent’s custody, is it within the court’s
discretion to order a reunification plan with which the parent
indisputably cannot comply due to a language barrier? We find
the answer rather self-evident and conclude that such a plan,
doomed to fail, is an abuse of discretion. We therefore reverse the
dispositional order that imposed it.
FACTUAL AND PROCEDURAL BACKGROUND
1. Family History
In 2013, father A.S. (father) immigrated to the United
States, from Myanmar, with two of his four children. His wife,
A.Z. (mother), and their other two children, remained in a refugee
camp in Thailand, awaiting permission to immigrate and rejoin
1
the family. Father speaks only Burmese or Karen.
When father came to the United States with two of his
daughters, the divided family lived with paternal great uncle
(uncle) and several other relatives. Uncle tried to help father get
on his feet, but was stymied by father’s drinking and lack of
interest. Uncle signed up father for English as a Second
Language (ESL) classes, but father refused to attend. Uncle
obtained a job for father, which father lost because he showed up
drunk or not at all. Uncle bought father a used car, but father
refused to pay for the car registration or insurance. After a year,
uncle stopped trying to get father to work, and simply wanted
him to focus on taking care of his children. This, too, failed, as
father preferred to drink all night, rather than take care of his
1
Father and his family were from a Karen village; the Karen
people were oppressed by the Myanmar military government.
Father fled Burma for a refugee camp in Thailand in 1996. He
and mother were married in the camp.
2
daughters. Uncle was an assistant pastor at his church, and
many in the church community also tried to assist father, even
going so far as helping to clean the room father shared with the
girls. But father would not stop drinking and become a
responsible parent. Uncle and other family members took up the
cause, and cared for the two girls.
2. Department of Children and Family Services (DCFS)
Involvement
Father’s circumstance finally came to the attention of
DCFS on April 18, 2016, with an anonymous call to a child abuse
hotline. The reporter claimed that father got drunk every day
and left uncle and other relatives to care for the children. Upon
DCFS’s investigation, it was clear that father did, in fact, have a
serious drinking problem. The bedroom father shared with the
two girls, then aged 9 and 5, had empty beer cans on the floor
and smelled of urine. Both children reported that father drank
beer regularly and smelled of beer and smoke. Uncle stated that
all father did was drink. Uncle did not mind caring for the
children, but wanted father to step up and do so. Uncle agreed
that father was very good with the girls when he was not
drinking, but essentially father drank all the time.
Father himself admitted drinking three to five cans of beer
a day, but did not think this was a problem. When asked if he
would give up custody of the children to uncle, father said that he
would not, and instead said he would stop drinking.
Father stopped drinking for one or two days, but then
returned to his old practice. Uncle agreed to take custody of the
children.
3
3. The Children are Detained
On May 5, 2016, father met with the DCFS social worker.
He admitted that he was still drinking and said he wanted to
stop. Father stated that he understood he needed more help. He
consented to placing the children in uncle’s care and “agreed to
either residential or outpatient drug/alcohol program.” When
told he would have to leave uncle’s home, he agreed to stay at a
family friend’s residence. DCFS detained the children in uncle’s
care.
A petition was filed on May 10, 2016, alleging that both
children were dependent under Welfare and Institutions Code
section 300, subdivision (b), on the basis that father’s alcohol use
rendered him incapable of providing them with regular care and
2
supervision.
At the detention hearing, on May 10, 2016, the court
ordered reunification services. The court directed DCFS to
provide father with referrals for an alcohol treatment program
and for weekly random and on-demand alcohol testing. Father
was granted monitored visitation.
4. DCFS Provides Minimal Services Due to Father’s Language
Barrier
On June 20, 2016, DCFS completed its report for the
upcoming jurisdiction/disposition hearing. The report contained
further evidence of father’s drinking history, including uncle’s
statement that father had been abusing alcohol since he was a
teenager. It also included an allegation by another relative that
father’s drinking in the refugee camp led to an act of domestic
2
All undesignated statutory references are to the Welfare
and Institutions Code.
4
violence in which father kicked then-pregnant mother so hard
she nearly died and the baby was born early.
Father admitted drinking, but attempted to minimize its
extent. Nonetheless, father stated he was willing to participate
in a treatment program.
The department’s report conceded that “there is a problem
in securing alcohol-related services for [father] because he only
speaks Burmese.” It went on to state that the “largest challenge
in this case will be to find treatment for father that he can
understand. It appears that a residential program would be the
most helpful for father considering his reportedly ongoing alcohol
use since a teenager. But once again, the effectiveness of his
treatment would be based on his understanding of the treatment
program’s concepts – and at this point a program could not be
found with a Burmese translator.” The department suggested
the possibility that father could attend 12-step meetings with a
friend or relative who could translate for him.
DCFS recommendations included that father be ordered to
complete a parenting class “if one exists in Burmese or with
appropriate translation” and that father be ordered “to
participate in an alcohol treatment program that would be
appropriate to his needs, taking into account that he speaks only
Burmese.” DCFS also recommended that father participate in
random drug testing.
A July 15, 2016 last minute information for the court noted
that father had been unable to drug test randomly. The system
required father to call in regularly and test when his “letter was
called,” but, despite trying to “listen for his letter,” father’s
limited English prevented him from understanding when the
5
letter was called. DCFS was working on a way to enable father
to test using Google Translate.
The adjudication hearing, then set for July 15, 2016, was
continued for another month. DCFS was directed “to assist the
father with his weekly random and on demand drug and alcohol
testing.” The department was also ordered to prepare a
supplemental report for the next hearing addressing “any
services” that were put in place for father.
The August 12, 2016 last minute information from DCFS
indicated that the social worker is “very good at using his [social
worker’s] cellphone to translate English to Burmese.” Father did
not have a cellphone, but the social worker had recently
reminded father to call the random drug testing number by
communicating with a friend of father’s. Father had tested
negative on one date, but had three “ ‘No Shows,’ ” which DCFS
3
attributed to failures to communicate. Other than this limited
success with drug testing, DCFS reported that it had been
“unable to locate any treatment options for father that are given
in the Burmese language.”
The adjudication hearing was continued for another month
in an effort to provide notice to mother, who was still living in the
refugee camp. Father’s counsel represented to the court that
father had difficulties understanding when he was to randomly
test. He requested that father’s alcohol testing be changed from
random – which required phoning in and listening for direction –
to on-demand – which was at the social worker’s direction. The
trial court agreed, and made that its order.
3
A later diluted test appears to have undermined DCFS’s
attribution. (See fn. 4., post.)
6
The September 9, 2016 last minute information from DCFS
indicated that the social worker for a time had been unable to
contact father as father had been “unable to notify” DCFS of his
change of phone number “and attempts to use English-Burmese
translation software yielded inconsist[ent] results.” However, on
August 23, 2016, the social worker met with father and a friend
of father’s who acted as an interpreter. The social worker and
father set up a system which would enable father to be notified of
on-demand alcohol/drug testing. The system was put into effect,
4
and on August 26, 2016, father tested negative.
5. The Adjudication/Disposition Hearing
The adjudication/disposition hearing was ultimately held
on September 9, 2016. The petition was amended to allege that
father was a “recent user” of alcohol which “sporadically”
rendered him incapable of caring for the children. As amended,
father pleaded no contest to the petition, and it was found true.
After adjudicating the children dependent, the court
proceeded to disposition. The children remained placed with
uncle. DCFS had provided a recommended case plan which
included a “full drug/alcohol program with aftercare,” a “12 step
Program w/court card & sponsor,” and “Developmentally
Appropriate” parenting. Father’s counsel objected to the case
plan on the basis that father could attend none of the identified
programs. Counsel explained, “Language has been an issue in
this case. We have asked for referrals when this case started in
. . . May. And in July, the update from the Department is that
4
The test report notes father’s urine sample was “dilute.”
DCFS’s characterization of the test as “negative”
notwithstanding, legally the test was “effectively inconclusive.”
(See In re Natalie A. (2015) 243 Cal. App. 4th 178, 186.)
7
they could not find [any] language programs. Due to that fact, I
would ask for no programs to be ordered by this court and for
only on-demand testing.” Father’s counsel also requested an
order that DCFS provide father with Alcoholics Anonymous (AA)
books in Burmese, which were apparently available, and a
referral (but not order) for ESL classes.
The court noted father’s objection but stated, “I completely
appreciate it, and I understand it. And I am completely in
agreement with the fact that it is difficult.” The court signed the
case plan DCFS had sought, and concluded, “I do believe I need to
make the orders as to disposition as requested.” Father was
ordered to participate in a full drug and alcohol program with on-
demand testing, a 12-step program, and a parenting program.
The court added, “the Department is to assist the father in
locating programs in Burmese or with appropriate translation.”
In addition, the court agreed to father’s request that he be
provided with AA books in Burmese and with a referral to ESL
classes.
6. Appeal
Father filed a timely notice of appeal from the disposition
order. On appeal, he argues that the trial court erred by ordering
him to complete programs his language barrier prevented him
from completing. He seeks an appellate disposition amending the
plan “to either find Burmese speaking services, a third[-]party
translator to attend with father to translate English-speaking
services, or . . . eliminat[ing] all services except on-demand drug
testing.”
7. Subsequent Proceedings
DCFS would eventually move to dismiss the appeal on the
basis that subsequent proceedings rendered it moot. First,
8
mother and the other two children arrived in America on
February 23, 2017, and moved in with father. Second, on
March 30, 2017, the court placed the children in “Home of
Parent(s)” under DCFS supervision. Family maintenance
services replaced reunification; and father’s case plan was
modified to weekly on-demand testing only. We requested DCFS
provide this court with the reports which led to this order. We
take judicial notice of those reports, in which the only reference
to father’s compliance with the case plan is a statement that
father had been ordered to drug test on-demand, and that he had
continued to do so (and test negative). DCFS made no reference
to the case plan requirements of alcohol treatment, a 12-step
program, and parenting.
Two months later, something went wrong with the family’s
progress, although the present appellate record does not provide
much detail. A June 1, 2017 minute order indicates that a
subsequent petition was filed as to the two children already
detained, and a new petition was filed as to the two children who
had recently immigrated to America. The minute order reflects
that the new petitions included allegations under section 300,
subdivision (a), pertaining to physical abuse. All four children
were detained from father and released to mother, whose contact
information was to remain confidential. No precise case plan was
indicated for father; the minute order simply stated, “DCFS is to
continue to work with the family in determining the best plan on
how to move forward.” Father received monitored visitation with
his children.
We take judicial notice of two further minute orders. In
July 2017, the subsequent petition as to the first two children
was sustained, as was the petition with respect to the two
9
children who had recently immigrated. The court found that
DCFS had made reasonable efforts to enable reunification, but
the progress made (by father, it appears) had been minimal. All
four children were placed with mother. The court then
terminated jurisdiction with a custody order granting sole legal
and physical custody to mother, with father to have monitored
visitation only.
DISCUSSION
1. We Deny DCFS’s Motion to Dismiss the Appeal
Preliminarily, we address DCFS’s motion to dismiss. DCFS
argued that the appeal is moot based on the March 30, 2017
“Home of Parents” order, in that the order both (a) effectively
returned the children to father’s care; and (b) modified his case
plan to only on-demand testing, one of the alternative remedies
he seeks on appeal.
“ ‘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.]’
[Citation.]” (In re M.C. (2011) 199 Cal. App. 4th 784, 802.) Courts
also have discretion to resolve appeals that are technically moot
if they present important questions affecting the public interest
that are capable of repetition yet evade review. (In re A.M. (2013)
217 Cal. App. 4th 1067, 1078-1079.)
Regardless of whether we would have found the appeal
moot in light of the March 30, 2017 minute order, the June and
July orders establish that it is not. As to DCFS’s first argument,
10
that the children were returned to father, that is simply no longer
true. Father has, in fact, lost legal and physical custody of the
children, with only monitored visitation. DCFS’s second
argument, that father’s plan has been modified to on-demand
testing, also does not moot this appeal. Father sought alternative
remedies on appeal, including a case plan that included services
in Burmese or provision of an interpreter. Father’s request for
those remedies is not moot. Indeed, it is all the more important
given that he has lost custody of his children for failing to make
sufficient progress toward remedying the problems which had
necessitated their initial removal.
2. Governing Authority and Standard of Review
At a disposition hearing, the court shall order reunification
services for the parents. (§ 361.5.) The order “may include a
direction to participate in a counseling or education
program . . . .” (§ 362, subd. (d).) “The program in which a parent
or guardian is required to participate shall be designed to
eliminate those conditions that led to the court’s finding that the
child” was dependent. (Ibid.)
Some six months later, the court typically holds a status
review hearing. (§ 366.21, subd. (e)(1).) At that hearing, “the
court shall order the return of the child to the physical custody of
his or her parent or legal guardian unless the court finds, by a
preponderance of the evidence, that the return of the child to his
or her parent or legal guardian would create a substantial risk of
detriment to the safety, protection, or physical or emotional well-
being of the child.” (Ibid.) “If the child is not returned to his or
her parent or legal guardian, the court shall determine whether
reasonable services that were designed to aid the parent or legal
guardian in overcoming the problems that led to the initial
11
removal and the continued custody of the child have been
provided or offered to the parent or legal guardian.” (§ 366.21,
subd. (e)(8).)
If the parent is appealing the reunification services ordered
by the dependency court at the disposition hearing, the Court of
Appeal reviews the dependency court’s decision for abuse of
discretion. (In re D.C. (2015) 243 Cal. App. 4th 41, 56; In re A.E.
(2008) 168 Cal. App. 4th 1, 4.) If the parent is appealing the
court’s factual finding rendered at a status review hearing that
reasonable services have been provided or offered to the parent,
the Court of Appeal reviews the dependency court’s finding for
substantial evidence. (In re T.G. (2010) 188 Cal. App. 4th 687,
697; Amanda H. v. Superior Court (2008) 166 Cal. App. 4th 1340,
1346.) This distinction makes logical sense. The dependency
court’s order at the disposition hearing is forward-looking; the
court is making a determination as to what services it believes
will assist in eliminating the conditions that led to dependency.
This calls out for abuse of discretion review. But the court’s
finding at a review hearing that reasonable services have in fact
been provided is backward-looking; the dependency court is
considering evidence of past events and determining, with the
benefit of hindsight, whether the services supplied were
reasonable. This dictates substantial evidence review.
3. The Trial Court Abused Its Discretion in Failing to Order
Effective Reunification Services
The question presented, then, is whether the court abused
its broad discretion in making its disposition order, by requiring
father to participate in a drug and alcohol program, a 12-step
program, and a parenting program – even with the direction that
12
DCFS was to “assist the father in locating programs in Burmese
5
or with appropriate translation.”
The court’s discretion in fashioning reunification orders is
not unfettered. Its orders must be reasonable and designed to
eliminate the conditions that led to the court’s finding of
dependency. (In re D.C., supra, 243 Cal.App.4th at p. 56.) The
reunification plan must be appropriate for each individual family
and based on the unique facts relating to that family. (In re
Daniel B. (2014) 231 Cal. App. 4th 663, 673.) “The effort must be
made to provide suitable services, in spite of the difficulties of
doing so . . . .” (In re Dino E. (1992) 6 Cal. App. 4th 1768, 1777.)
On appeal, DCFS argues that the reunification plan was
within the court’s discretion in that it was justified by father’s
serious alcohol problem, dating back to his teenage years. We do
not disagree, as far as that goes. Father’s drinking history
certainly supports the order for an alcohol program and a 12-step
program. His inability to care for his daughters justified an order
to attend parenting. If father could actually engage in those
programs, ordering father to participate in them would, in fact,
be reasonably designed to eliminate the conditions that led to the
finding of dependency, and we would affirm the order without
delay.
However, DCFS’s argument fails to consider the critical
fact in this case: father could not participate in the programs,
due to his language barrier. The history of the case leading up to
the disposition order establishes this beyond any doubt. When
5
Although the legal analysis would be different if we were
considering whether substantial evidence supported the
reasonableness of the reunification services actually provided,
our ultimate conclusion – that it did not – would be the same.
13
the children were detained in May 2016 – months before the
disposition order – father agreed to attend either a residential or
outpatient alcohol program. At the detention hearing, the court
ordered the department to “provide the father with referrals for
alcohol treatment program.” The disposition hearing was held
four months later, in September. In the interim, the court did
not change its order that father be referred to an alcohol
treatment program, but father was never referred to a specific
one. In July, the court ordered DCFS to prepare a supplemental
report “addressing any services that [have] been put in place” for
father. DCFS’s supplemental report responded that, other than
alcohol testing, the department has “been unable to locate any
treatment options for father that are given in the Burmese
language.” Indeed, it was not until late August that DCFS and
father came up with a solution to enable father even to regularly
perform alcohol tests – by changing from random testing to on-
demand testing.
In light of these facts, the court’s order is not saved by its
addendum that DCFS was to “assist the father in locating
programs in Burmese or with appropriate translation.” At the
time of the order both DCFS and the dependency court were told
there were no programs in Burmese. The department had
already tried to find them and reported to the court that there
were none. As to the reference to “appropriate translation,” this
clause is too uncertain to provide the necessary guidance. It falls
short of what the record shows was the only meaningful way that
father could participate in the programs everyone agreed were
14
necessary – an order that DCFS provide an interpreter or other
6
suitable means for father to access treatment.
In short, the dependency court, after being advised by
DCFS that the department could provide no realistic treatment
program for father because of his language barrier, nonetheless
ordered father to participate in a case plan that included an
ineffective alcohol treatment program. It is too early in these
proceedings for us to consider whether it would violate
constitutional principles to terminate a father’s parental rights
based on his inability to participate in court-ordered programs in
a language he does not understand. (Santosky v. Kramer (1982)
455 U.S. 745, 753 [state intervention to terminate the
parent/child relationship must be accomplished by procedures
satisfying the Due Process Clause].) No party raises the
constitutional issue, and the case has not reached the point of
termination. Still, we cannot ignore the fact that at some point
6
The department suggests that, as the court’s language
placed the burden on DCFS to assist with locating programs in
Burmese, father could simply “challenge whether DCFS provided
reasonable reunification services at the time of the review
hearings.” That may be true but it misses the mark.
Reunification services are limited in time; a maximum two-year
clock starts running when the children are detained. (§ 361.5,
subd. (a)(4)(A).) Father should not be required to waste six
months of precious reunification time waiting to challenge the
department’s provision of inadequate services when it was
apparent from the disposition hearing that the services ordered
were inadequate. We cannot endorse a reunification plan that is
sure to fail, even though the plan may appear reasonable in the
abstract.
15
the failure to provide services in Burmese or Karen may rise to a
constitutional level.
The due process considerations also inform our conclusion
that it is an abuse of discretion to make a dispositional order with
the knowledge that a parent cannot participate in the ordered
services. No parent should be placed in this trap. The remedy is
for DCFS and the court to provide language assistance of some
sort. Our dependency laws require reasonable reunification
services for parents (§ 361.5) but those services are
fundamentally for the protection of the children. A dependent
child is at risk if a parent with an untreated serious alcohol
problem is given custody of, or visitation with, such child, without
a program to address the problem. That DCFS could not easily
arrange for services in a language a parent could understand is of
no consolation to a child who has been abused or neglected.
We find significant that the Strategic Plan for Language
Access in the California Courts, prepared by the Joint Working
Group for California’s Language Access Plan, and adopted by our
Judicial Council on January 22, 2015, supports our concerns.
Recommendation 11 of the plan states, “An LEP [limited English
proficient] individual should not be ordered to participate in a
court-ordered program if that program does not provide
appropriate language accessible services. If a judicial officer does
not order participation in services due to the program’s lack of
language capacity, the court should order the litigant to
participate in an appropriate alternative program that provides
language access services for the LEP court user. In making its
findings and order, the court should inquire if the program
provides language access services to ensure the LEP court user’s
ability to meet the requirements of the court.” (Language Access
16
Plan, pp. 39-40.) Implementation of this regulation “should begin
by [2016-2017].” (Id. at p. 93.) There is no indication in the
record that the dependency court was in keeping with the spirit
this recommendation. Had it done so, it would not have ordered
father to complete an alcohol program that father could not
understand.
We acknowledge that father’s ability to speak only
Burmese or Karen presents a problem for the court in crafting an
appropriate disposition order. The dependency court was aware
of the dilemma it faced. Its efforts were well-intended and a good
start. Perhaps due to the court’s perception that its options were
unduly limited, the court felt constrained in its disposition. The
court recognized that father needed alcohol treatment, and
correctly rejected father’s request that he be ordered only to
comply with alcohol testing. However, the known circumstance
of father’s language barrier was such that father could comply
with nothing the court ordered except testing – resulting in the
foreseeable result that father received no treatment for his very
serious alcohol problem. Not surprisingly, father’s failure to get
alcohol treatment may very well have contributed to the
subsequent dependency petition raising claims of physical abuse.
The language problem is not insoluble. It calls for
creativity on the part of DCFS in presenting a plan to the court,
and not simply parroting the standard case plan for an English-
or Spanish-speaking parent with an alcohol problem. Several
jurisdictions have successfully addressed the situation, either
through the use of interpreters or service providers with
language skills. For example, in In re Sorin P. (N.Y. App. Div.
2009) 873 N.Y.S.2d 89, the parents challenged the termination of
their parental rights. On appeal, the court had to consider
17
whether the petitioner had “made diligent efforts to encourage
and strengthen the parental relationship.” (Id. at p. 90.) This
included accommodating the parent’s “special needs, including
use of a language other than English.” (Id. at pp. 90-91.) Here,
the standard was met, as the petitioner had provided an
“interpreter for the Romanian-speaking parents.” (Id. at p. 91.)
Other courts have followed suit. (E.g., Pravat P. v. Dep’t of
Health & Soc. Servs. (Alaska 2011) 249 P.3d 264, 268-271
[sufficient active efforts were made toward reunification when
the agency paid for an interpreter for case planning, legal
meetings, and classes to help father manage his emotions and
learn parenting]; State of N.M. ex rel. CYFD v. William M. (N.M.
Ct. App. 2007) 161 P.3d 262, 271, 278 [reasonable efforts to
reunify included the use of a Spanish-speaking social worker and
visiting father at his place of incarceration with an interpreter to
obtain a psychosocial evaluation; father was not entitled to
translations of documents into his language]; In re Abraham C.
(N.Y. App. Div. 2008) 865 N.Y.S.2d 820, 822 [diligent efforts
included arranging for a Spanish-speaking therapist to counsel
the parents]; In re Lopez (Ohio Ct. App. 2006) 852 N.E.2d 1266,
703 [reasonable efforts included providing father with the
interpreter’s phone number so that he could contact her at any
time to interpret for him].)
A number of courts have found sufficient services have not
been provided, when the language barrier was not satisfactorily
addressed. (E.g., In re Alicia Z. (Ill. App. Ct. 2002) 784 N.E.2d
240, 253 [DCFS administrator admitted that DCFS failed to
provide father with adequate services in Spanish]; In the Interest
of J.L. (Iowa Ct. App. 2015) 868 N.W.2d 462, 465, 467
[department violated statutory obligation to make reasonable
18
efforts to facilitate reunification by not providing deaf mother a
sign language interpreter]; In re Richard W. (N.Y. App. Div.
1999) 696 N.Y.S.2d 298, 300 [diligent efforts were not made due
to failure to address mother’s language difficulty; it was
recommended that she be provided a Polish-speaking therapist,
but the recommendation was ignored until the court ordered it
and “no such therapy was ever provided”]; In re P.S.S.C. (Pa.
Super. Ct. 2011) 32 A.3d 1281, 1286 [reversing termination of
parental rights when services provided incarcerated father were
“completely inadequate for an unrepresented Spanish-speaking
individual without access to an interpreter”].)
While a few cases have rejected claims that interpreters
should have been provided, they were based on unique factual
scenarios in which it appears that other individuals were present
and available to translate. (See In Interest of S.J. (Fla. Dist. Ct.
App. 1994) 639 So. 2d 183, 184 [father cannot complain of a lack
of interpreter for meetings with department officials when he had
a friend along to interpret for him and never raised the issue
prior to the termination hearing]; In re Kafia M. (Me. 1999)
742 A.2d 919, 926-927 [balancing all factors, it was not a due
process violation to provide mother with an interpreter only at
the termination hearing, when, among other factors, father could
have interpreted for her before they started living apart].)
We accept that it is unlikely father can participate in an
English-language residential treatment program alone, but the
record does not indicate that a concerted effort was made to
address father’s drinking problem in a program of individual
counseling, either with a Burmese-speaking counselor or the
assistance of an interpreter at treatment sessions. While DCFS
considered the possibility of father attending AA meetings with a
19
family member or church acquaintance, it does not appear that
anyone contacted local AA groups to see if they had any Burmese-
speaking members who would be willing to act as father’s
sponsor. We do not mean this to be an exhaustive list of
possibilities. Nonetheless, the record is silent as to the extent of
DCFS’s efforts to obtain services in Burmese, whether a Burmese
or Karen interpreter was available, or if resources were available
to pay for such an interpreter. In this regard, we observe that
Recommendation 10 of the Language Access Plan states,
“Beginning immediately, as resources are available, but in any
event no later than 2020, courts will provide qualified
interpreters in all court-ordered, court-operated programs,
services and events, to all LEP litigants, witnesses, and persons
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with a significant interest in the case.” (Language Access Plan,
p. 39.)
7
We recognize that this Recommendation of the Language
Access Plan applies only to programs which are both “court-
ordered” and “court-operated” and the services which father
needed were court-ordered, but not court-operated. The
Language Access Plan is a baseline – a first step toward resolving
the problems faced by numerous LEP individuals when they
interact with the court system. One “next” step would be for
DCFS, in those situations in which it formally contracts with a
provider, to include as a contractual term that programs provide
proper services in the parent’s language; in those situations not
governed by a formal contract, DCFS should refer parents only to
programs that have appropriate language assistance. In the
meantime, DCFS may not bury its head in the sand and
recommend that the court order a parent to participate in
services which DCFS knows cannot be provided.
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Three things, however, are apparent: (1) father needed
alcohol treatment, not just on-demand testing; (2) Burmese
interpreters exist – in fact, one assisted father at every court
hearing; and (3) father has had some level of success
communicating with DCFS through the use of internet-based
translation software and friends acting as interpreters. Given
these facts, the record reflects a failure to craft a reunification
plan that provided father with necessary alcohol treatment in a
language he can understand. Therefore, the order that he attend
a drug treatment program, a 12-step program, and parenting,
without any further detail as to how such programs could be
attended, given his known language difficulties, constituted an
abuse of discretion.
That is the sole issue before us, and we therefore do not
address the propriety of any of the trial court’s subsequent
orders. It seems apparent, however, with the benefit of
hindsight, that the March 30, 2017 order, which concluded
sufficient progress had been made toward treating father’s
alcohol problem based only on his participation in on-demand
testing was, at best, overly optimistic. The limited record before
us suggests that all parties were eager to assume on-demand
testing had resolved father’s alcoholism, even though the court
had, at the disposition hearing, previously concluded that actual
treatment was necessary. To what extent the parties’ blindness
to father’s need for treatment played a part in his ultimate loss of
custody and the termination of jurisdiction, we cannot say.
4. Remedy
While we conclude the court erred in its disposition order,
we do not accede to father’s request that we amend the
reunification plan to include specific requirements. Thus, we do
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not direct the dependency court to order provision of a Burmese
interpreter at this time, but we do not foreclose it either. The
June and July 2017 minute orders reflect that the facts have
changed; new allegations against father have been sustained and
jurisdiction terminated, leaving father with only monitored
visitation with his children. Because we lack specific information
as to the intervening factual and procedural developments, and
do not know of their possible effect on father’s situation, we leave
it to the sound discretion of the dependency court to determine
what procedural steps are appropriate at this juncture in light of
our reversal, the grounds on which it is based, and the current
state of affairs. (See In re T.W.-1 (2017) 9 Cal.App.5th 339, 349,
fn. 10.) We do not direct that the trial court necessarily unravel
its subsequent termination of jurisdiction, but simply leave it to
the trial court to determine the appropriate remedy given its
erroneous disposition order. But the trial court must at least
reconsider its termination order in light of the views we have
expressed.
DISPOSITION
The portion of the disposition order requiring father to
participate in a full alcohol treatment program with aftercare, a
12-step program with court card and sponsor, and parenting is
reversed. The matter is remanded to the dependency court to
reconsider its order terminating jurisdiction and for further
proceedings consistent with this opinion.
RUBIN, ACTING P. J.
WE CONCUR:
FLIER, J. GRIMES, J.
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