In re R.K. CA2/2 ( 2021 )

Filed 4/13/21 In re R.K. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re R.K., a Person Coming Under B305165
the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 18LJJP00130A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
E.S.,
Defendant and Appellant.
APPEAL from a finding and an order of the Superior Court
of Los Angeles County. Steven E. Ipson, Judge Pro Tempore.
Affirmed in part, conditionally reversed in part, and remanded
with directions.
Karen B. Stalter, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, Acting County Counsel, Kim
Nemoy, Assistant County Counsel, and Stephanie Jo Reagan,
Principal Deputy County Counsel, for Plaintiff and Respondent.
_________________________
E.S. (mother) challenges the juvenile court’s order
terminating her parental rights to R.K. (minor, born Apr. 2017).
(Welf. & Inst. Code, § 366.26.)1 She contends that the order must
be reversed because (1) the Department of Children and Family
Services (DCFS) did not conduct an adequate inquiry into minor’s
Indian ancestry as required by the Indian Child Welfare Act
(ICWA); and (2) the juvenile court’s finding at the 12-month
review hearing that she had been offered reasonable reunification
services is not supported by substantial evidence. (§ 366.21,
subd. (f).)2
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2 Ordinarily, this order would not be reviewable at this stage
of the appellate proceedings. However, because the juvenile court
failed to orally advise mother of her appellate rights at that time,
we can review the issue of the adequacy of reunification services.
(See, e.g., In re Frank R. (2011) 192 Cal.App.4th 532, 539; In re
Harmony B. (2005) 125 Cal.App.4th 831, 839.)
2
We conclude that the juvenile court’s finding that DCFS
provided mother with reasonable reunification services is amply
supported by the evidence. As for mother’s complaint that DCFS
did not comply with the ICWA’s inquiry requirements, DCFS
concedes that its efforts were deficient. That error compels a
limited reversal of the juvenile court’s order terminating mother’s
parental rights. The matter is remanded back to the juvenile
court for compliance with the ICWA’s inquiry and notice
requirements.
FACTUAL AND PROCEDURAL BACKGROUND
The Referral
On February 6, 2018, DCFS received a hotline referral
concerning minor. At the time of this referral, DCFS was
providing mother with family reunification services for her older
child, R.P., whom the juvenile court, in 2016, had found to be at
risk due to issues of domestic violence, substance abuse by R.P.’s
father (marijuana and prescription drugs), and mother having
left R.P. with a friend, without making a plan of care for him.3
The hotline referral concerning minor alleged that mother
had told the reporting party that she and minor’s father, K.K.
(father), argued, and then he became enraged, grabbed a knife,
and attempted to stab mother five times. DCFS investigated and
concluded that minor was in danger, and it secured a removal
order. Minor was placed in the home of foster parent, Rachel E.
(Rachel).
3 R.P. is not a subject of mother’s appeal.
3
Section 300 Petition
On February 22, 2018, DCFS filed a dependency petition
with the juvenile court in Lancaster, alleging that minor was a
child described by section 300, subdivisions (a), (b)(1), and (j).
Last Minute Information Report
For the detention hearing, DCFS submitted a last minute
information report. Attached to this report was an ICWA-010
Indian Child Inquiry Attachment form, which had not been
included with the dependency petition when it was filed. This
form provided that DCFS had made an Indian child inquiry. The
form bore a mark in the box that indicated that “The child has no
known Indian ancestry.” The form further indicated that mother
was questioned, and she denied Indian ancestry. However, the
form also provided that the paternal grandmother was
questioned, and DCFS wrote on the form, “Possible Blackfoot
Ancestry.”
Detention Hearing
For the February 22, 2018, detention hearing, both parents
submitted ICWA-020 Parental Notification of Indian Status
forms. Both forms reported that they had no known Indian
ancestry. Thus, at the hearing, the juvenile court stated: “Both
parents have submitted Indian Child Welfare Act statements
indicating that, ‘I have no American-Indian heritage.’ Court will
note that the Indian Child Welfare Act does not apply, has no
reason to believe that it would apply.”
The juvenile court’s minute order reiterates: “The Court
does not have a reason to know that this is an Indian Child, as
defined under ICWA, and does not order notice to any tribe or the
[Bureau of Indian Affairs]. Parents are to keep [DCFS], their
4
Attorney and the Court aware of any new information relating to
possible ICWA status.”
No mention was made of the information provided by the
paternal grandmother in DCFS’s last minute report.
The juvenile court ordered minor to be detained.
Regarding visitation, the juvenile court ordered monitored
visits, to be monitored by any DCFS-approved monitor. It
prohibited the parents from visiting together. Furthermore, it
authorized DCFS to assess relatives to serve as the parents’
visitation monitor. Father’s counsel asked the court to specify a
minimum number of visits, and the juvenile court responded,
“Minimum, two-by-two.” The juvenile court’s minute order
confirms: “Both parents are to have monitored visits for a
minimum of 2 hours per visit and 2 visits per week to be limited
only to the availability of the monitor with DCFS to have
discretion to liberalize.”
Jurisdiction/Disposition Report
Dependency Investigation
Prior to filing the instant dependency petition, DCFS had
opened a voluntary family maintenance case, but mother
continued to reside with father, stated she had no intention of
leaving him, and did not believe he was a danger to her or to
minor.
For R.P.’s case, mother had completed a parenting course,
but she had not been consistent in her therapy and although she
was permitted twice weekly visits with R.P., she had not been
visiting him. Also, mother failed to show for 23 out of 32 drug
tests. As for the nine tests for which mother did show, all were
negative. DCFS planned to recommend that mother’s
reunification services in R.P.’s case be terminated.
5
Regarding the allegations of the instant petition, when
mother was interviewed, she stressed that father had never tried
to stab her, she had no marks or wounds, and she had not had to
go to the hospital.
Further ICWA Inquiry
Although the dependency investigator asked the parents
about possible Indian ancestry, when the dependency
investigator interviewed the paternal grandmother, she did not
ask her about her report of possible “Blackfoot” heritage.
In its report, DCFS wrote: “The Indian Child Welfare Act
does not apply. On 2/22/18, the court determine[d] ICWA did not
apply and mother and father signed the ICWA 020 forms. On
04/20/18, mother denied any American Indian Ancestry again.
On 04/23/18, father denied any American Indian Ancestry.”
Adjudication Hearing
At the May 8, 2018, adjudication hearing,4 the juvenile
court found count b-3 true as amended5 and dismissed the
remaining counts.
4 The Reporter’s Transcript does not include the transcript
for this hearing.
5 As amended, the sustained count b-3 allegation alleged
that on February 6, 2018, mother and father “engaged in a
violent altercation in the child’s presence. The Father grabbed a
kitchen knife and threatened the Mother. The Mother failed to
protect the child by allowing the father unlimited access to the
child. [In addition, R.P. is a current dependent of the juvenile
court because of mother’s failure to protect him.] Such violent
altercation on [the] part of the father against the child’s mother
and the mother’s failure to protect the child endangers the child’s
6
The juvenile court declared minor to be a dependent child
of the court and removed her from parental custody. It ordered
mother and father to receive family reunification services.
Mother’s and father’s case plans provided for monitored
visits for the parents at least two times a week for two hours, and
directed them to not visit together. Mother was required to
participate in: A domestic violence support group for victims;
individual counseling to address case issues; submit to four
random or on-demand drug tests, and if any tests were missed or
dirty, then a full drug program with random drug testing.
Status Review Reports (Oct. 17, 2018, & May 8, 2019)6
On March 27, 2018, mother indicated that she might be
moving to Lancaster, and the social worker asked her when she
would be moving so that visits could take place there. Mother
stated she would let the social worker know once she moved.
Drug testing and other programs
On May 8, 2018, clinical social worker (CSW) Janet Nichols
(Nichols) reviewed the requirements of mother’s court-ordered
case plan with mother over the phone. On May 21, 2018, mother
sent a text message to the social worker stating that she had
drug tested that day. She wrote, “‘1 of the 4 I need.’” However,
on June 7, 2018, mother missed a drug test reportedly because
she had started a new job. On June 12, 2018, mother sent a
physical health and safety, and places the child at risk of serious
physical harm and failure to protect.”
6 For ease and to set forth what occurred in the year
following adjudication, we reference portions of both the six-
month and 12-month status review reports here.
7
screen shot of a drug test and wrote, “‘2 out of 4.’” The social
worker explained to mother that because she had missed her
June 7 test, the June 12 drug test would be considered mother’s
second, not third, drug test. Mother drug tested on June 22,
2018. This and prior two drug tests were negative. Mother,
however, failed to show for her next drug test on July 12, 2018, as
well as a subsequent drug test on July 25, 2018.
As for her domestic violence program, because mother had
indicated that she was moving to Lancaster and could do her
programs there, on June 7, 2018, CSW Nichols informed mother
that there was a free domestic violence group in Lancaster, and if
she did her programs there, she could have an additional weekly
visit. Mother responded that she had already identified some
programs in Los Angeles. In fact, on June 22, 2018, mother
indicated that she was on a wait list for one of these programs.
On July 16, 2018, the social worker sent mother a flyer for
El Nido Family Centers (El Nido) in Los Angeles, which offered a
domestic violence support group and individual counseling.
Mother indicated that she would be attending an orientation to
enroll in their program.
On July 26, 2018, the social worker discussed with mother
the need for her to participate in her court-ordered programs.
The social worker stressed the importance of completing her
programs because the juvenile court had terminated family
reunification services for R.P. based on mother’s noncompliance
with a domestic violence program or therapy in R.P.’s case. The
social worker emphasized that mother had been ordered to do
these things in the instant case. Further, the social worker
provided mother with information for a mental health facility in
Lancaster that accepted walk-in appointments, and explained she
8
did not need a psychological evaluation, just to enroll in therapy.
Regarding drug tests, the social worker reminded mother that
she had missed her July 12, 2018, drug test, and, therefore had
not completed four consecutive drug tests. The social worker
encouraged mother to call nightly for drug testing, and to
complete all her court-ordered programs.
Mother, however, missed her next three drug tests, and on
August 3, 2018, the social worker reminded mother to call nightly
for her drug testing.
As for the requirement for individual counseling, mother
stated that she was going to call her former therapist and resume
seeing him. Because of mother’s plan to move to Lancaster, the
social worker texted mother a screen shot of a flyer for a domestic
violence program there, and told mother she needed to get
started in her programs.
On August 10, 2018, CSW Nichols contacted El Nido
requesting proof that the parents had attended their orientation.
Three days later, the social worker met with mother and
with father. She reviewed their court-ordered case plans with
them and discussed each step and what was needed for minor to
be returned to their care. The social worker also reviewed the
need to call nightly for drug testing; she reminded mother that
she needed to complete four consecutive drug tests, or she would
need to complete a drug program. Mother acknowledged her
receipt of DCFS referrals and was referred to counseling, drug
testing, a drug treatment program, and domestic violence classes.
On August 15, 2018, mother indicated that she planned to
see about resuming sessions with her former therapist.
On September 14, 2018, the social worker informed mother
that per her request, mother’s drug testing site had been moved
9
to Lancaster. The social worker also asked mother why she had
missed drug tests in July, August, and September, and mother
indicated that it was because she would forget to call. The social
worker stressed to mother that she needed to call nightly for her
drug testing.
On September 18, 2018, mother called the social worker
and asked to submit to a make-up drug test. The social worker
informed mother that she would have to start fresh and submit to
four consecutive drug tests. Mother failed to show for her next
drug test.
On September 19, 2018, mother informed the social worker
that she had contacted the domestic violence program the social
worker had given her. She was scheduled for an intake interview
the following day.
Visitation
DCFS implemented separate weekly visits for the parents
in Los Angeles, monitored by a DCFS Human Services Aide.
Mother was late and/or failed to show for some visits, and she
often ended the two-hour visits early, sometimes after only 50 to
60 minutes. Other issues included having to be directed to
change minor’s diaper, not responding to the social worker to
confirm visits, having to be reminded she and father could not
visit together, and playing on Facebook and/or Instagram during
her visits.
Because of concerns with the parents cancelling visits, the
social worker informed both parents that they had to confirm
their visits by 5:00 p.m. the evening before the visit.
On September 9, 2018, mother informed the social worker
that she and father had broken up and she would be moving to
Bakersfield. The social worker suggested mother visit in
10
Lancaster as it would be closer for mother, but mother stated
that she had transportation and wished to continue her visits
with minor in Los Angeles.
The following day, the social worker sent reminder texts to
mother and father to call the visitation monitor by Tuesday at
5:00 p.m. to confirm their Wednesday, September 12, 2018, visit.
Mother confirmed her visit in Los Angeles and asked that future
visits be scheduled for Fridays in Lancaster.
On the day of the scheduled and confirmed visit, mother
sent a text message indicating that she was coming from
Bakersfield and would be late for the visit. Mother was so late
that she was able to visit for only 25 minutes.
On September 17, 2018, mother called the social worker
and asked about visiting minor. The social worker reminded
mother that a visit had been scheduled, per her request, for
Friday, September 21, 2018, in Lancaster. On September 20,
2018, mother called and asked to have the September 21, visit
rescheduled to Monday, September 23. On Monday, mother
indicated that she would be 30 minutes late for the visit. Mother
then sent a text message indicating she was cancelling the visit.
On Friday, October 4, 2018, mother informed the social
worker that her car had broken down and she asked the social
worker to have minor brought to Bakersfield. The social worker
informed mother that the social worker would have to request
assistance. On October 10, 2018, a DCFS visitation monitor
contacted mother and they scheduled a visit for October 17, 2018,
in Bakersfield.
However, on October 16, 2018, mother indicated that she
would be in Los Angeles on October 17 and asked to have the
visit there. Mother then canceled the October 17, 2018, visit.
11
The social worker contacted mother and asked her why she
had canceled the visit and changed the location. Mother said
that her car had broken down and she was only in Los Angeles
visiting and she would be returning to Bakersfield. The social
worker discussed with mother having visits in Lancaster for
consistency and to save minor from being in a car for five hours.
On October 22, 2018, mother contacted the social worker
asking to transfer her drug testing back to Los Angeles. She told
the social worker that she would be in Los Angeles for “a while”
and would be going to school to become a Certified Nursing
Assistant. She did not ask about visiting minor.
On October 30, 2018, mother sent a text message asking
when she could resume her visits with minor. The social worker
discussed having one visit in Lancaster and then one visit in
Los Angeles. The social worker informed mother that she wanted
to see some effort on mother’s part. Mother said she would try.
DCFS’s recommendation
For the six-month status review hearing, DCFS reported
that it had provided the parents with referrals and maintained
weekly contact with them. It further reported that there
appeared to be barriers to the parents successfully enrolling in
programs and being consistent with their visits. DCFS
recommended that reunification services with minor, who
remained placed in the foster home of Rachel, be provided for
another six months so that the parents could show progress
towards reunification.
As for the ICWA, DCFS reiterated that the ICWA did not
apply.
12
Six-Month Review Hearing
On November 8, 2018, the court held the six-month status
review hearing.7 It found that the extent of progress made by the
parents towards alleviating or mitigating the causes
necessitating placement had been minimal. It also found that
DCFS had complied with the case plan by providing or offering,
or making active efforts to provide or offer, reasonable services to
enable the child’s safe return home. The juvenile court continued
reunification services “for the reasons stated on the record in
open court.” It ordered DCFS to assist the parents with
transportation and to assist in transporting minor to Los Angeles
for visitation.
Status Review Report8
Drug testing and other programs
On the day of the six-month review hearing, CSW Nichols
met the parents at the courthouse and could smell the strong
odor of marijuana, but she was not certain which parent emitted
the odor. The social worker reviewed everything that mother
needed to do, including that she still needed to provide four
consecutive negative drug tests or enroll in a drug treatment
program. Mother stated that she did not use drugs and should
not have to complete a drug treatment program.
On November 16, 2018, mother informed the social worker
that she had started a new job. She asked if she could complete
7 The Reporter’s Transcript does not include the transcript
for this hearing.
8 We reference portions of both the 12-month status review
report and subsequent interim review report.
13
her domestic violence support group for victims on-line. The
social worker advised her that she needed to attend the sessions
in person.
On November 18, 2018, a CSW reported there was a very
strong smell of marijuana in the parents’ car, and the aid
observed a lighter and what appeared to be rolling papers in the
door handle of the car. The next day, the social worker asked
mother about the status of her drug testing. Mother claimed that
she did not know that she still needed to drug test. The social
worker informed mother she still needed to provide four
consecutive negative tests. She also reminded mother that she
needed to be in individual therapy. Mother stated that she did
not need therapy.
As for domestic violence counseling, mother provided
documentation showing that she had enrolled in a domestic
violence support group and that her first class was scheduled for
the following day. The social worker subsequently contacted the
domestic violence program to confirm mother’s enrollment and
asked for monthly progress letters.
On December 21, 2018, CSW Nichols sent a text message
reminding mother she had not provided proof of enrollment in
any programs, and that the social worker had not seen any drug
testing results.
On December 26, 2018, the social worker communicated
with mother by text message and asked her about her individual
therapy, her domestic violence support group, and her drug
testing. Mother did not reply.
On January 8, 2019, the social worker sent a text message
to mother regarding her monthly bus passes. The social worker
informed mother that she needed to provide proof of enrollment
14
in programs and to make efforts to visit minor in Lancaster or
the social worker would submit a request to terminate mother’s
bus passes. The social worker did not receive any response from
mother.
On February 27, 2019, the maternal grandmother stated
that she and mother were moving to Bakersfield.
On March 4, 2019, the social worker sent mother a text
message regarding her bus pass and asked her to provide proof of
enrollment in programs. Again, mother did not respond.
On March 8, 2019, the social worker asked mother about
her drug testing. Although the maternal grandmother had stated
they were moving to Bakersfield, mother stated that she wanted
her drug testing program to remain in Los Angeles.
On March 19, 2019, the social worker received a progress
letter from the domestic violence program. The letter informed
that mother had enrolled on February 13, 2019, and attended
sessions on February 14 and 21, 2019, and that she needed to
complete 18 more sessions to receive a certificate of completion.
On March 27, 2019, the social worker sent a text message
to mother asking if she was still attending her domestic violence
support group and whether she had enrolled in individual
therapy. The social worker also pointed out that mother had not
been drug testing. Mother did not reply.
On April 5, 2019, the social worker received a progress
letter from mother’s domestic violence program indicating that
mother had not attended any additional classes. Mother told the
social worker that she was back in Bakersfield, had not
completed her domestic violence program, had not drug tested,
and was not enrolled in individual therapy. The social worker
informed mother that there was no progress to report, and,
15
therefore, DCFS would be asking the juvenile court to terminate
family reunification services.
Visitation
On November 8, 2018, CSW Nichols planned to monitor a
visit before the court hearing. She was not able to do so because
she was called to criminal court, but she was able to meet with
the parents to discuss visitation. The social worker informed the
parents that as a result of their cancelling, being late, and ending
visits early, and the fact that there was no longer a visitation
monitor to assist with visits, the parents would need to come to
Lancaster every other week to visit and on the alternate weeks
the social worker would take minor to Los Angeles. Father
complained about the distance to Lancaster, stating it would be
two hours each way. The social worker explained that the trip for
minor to have a visit in Los Angeles was even longer, up to five
hours. Both parents agreed that they would call the social
worker and schedule weekly visits. The social worker also asked
mother to provide the names of individuals who could be assessed
to monitor her visits.
That same day, the social worker advised mother to call her
the following week and schedule a visit for Lancaster. There is
no indication that mother contacted the social worker to schedule
the visit in Lancaster.
On November 28, 2018, mother sent a text message to the
social worker asking when she could have visits back in
Los Angeles. The social worker stated that she would try to
schedule some visits in Los Angeles, but she could no longer
provide visits in Los Angeles every week. The social worker
suggested having one in Lancaster and then having one in
Los Angeles. Mother agreed.
16
On December 5, 2018, mother sent a text message that
stated, “‘Would we be able to have supervised visits at my mom’s
house? Also, can visits be done on the weekend? I just want to
see my daughter.’” The social worker responded, “‘I can try and
work that out. But y[o]u and [father] can’t visit together. And I’ll
need to know ahead of time to see if foster [mother] is available to
transport.’” Mother responded, “‘Ok, that’s fine.’”
Meanwhile, on December 7, 2018, mother asked whether
minor could be at the maternal grandmother’s home for
Christmas.9 The social worker indicated that she was trying to
set up a visit for the maternal grandmother and minor. She
cautioned mother that the social workers did not work that day,
and the foster mother also might not be available.
On December 10, 2018, the social worker sent a text
message to the maternal grandmother asking to set up mother’s
weekly visits, but the social worker did not receive a response.
On December 13, 2018, mother confirmed a visit for
December 20, 2018, in Lancaster with the maternal grandmother
as the monitor. The maternal grandmother, however, indicated
that she knew nothing of the visit and would not be home to
monitor it. The visit was therefore canceled by the social worker.
On December 18, 2018, mother confirmed that the
maternal grandmother wanted to have minor with her for the
holidays. The social worker stated that she would check. She
also informed mother she had contacted the maternal
grandmother about scheduling weekly visits and reiterated that
the maternal grandmother needed to call her. Mother said she
would inform the maternal grandmother. The maternal
9 R.P. had been placed with the maternal grandmother.
17
grandmother later sent the social worker a text message stating
that it was “‘ok’” to take minor to her house on Christmas day.
The social worker replied that she did not work on Christmas day
and someone needed to transport minor to the visit, and the
social worker was not sure whether the foster mother was
available to transport. The social worker suggested they have a
Christmas Eve visit.
On December 20, 2020, mother asked again about having
minor for Christmas at the maternal grandmother’s home. The
social worker informed mother that the foster mother and her
family would be out of town that day, and the DCFS office was
closed on Christmas. The social worker informed mother that
she had inquired of the maternal grandmother about having a
visit on a different day, but the maternal grandmother did not get
back to her.
Mother indicated that she felt as if she were not being
allowed to see minor. The social worker stressed to mother that
she had specifically asked for a visit on Christmas day, which
could not be accommodated because DCFS offices were closed.
The day after Christmas, mother sent the social worker the
following text message: “‘I want a visit. [I’ve] been asking for a
while. I haven’t seen my daughter in 2 months for what reason?’”
In response, the social worker informed mother that she needed
to make some effort to schedule a visit and see minor in
Lancaster, and that the social worker would then try to arrange
monthly or biweekly visits in Los Angeles.
On December 27, 2018, mother texted the social worker
and asked to have a visit at the maternal grandmother’s home on
Monday, December 31, 2018. The social worker responded, “‘I’m
off on Monday and Tuesday. We can call the foster [mother] to
18
see if she’s available. Have your [mother] call me to schedule a
time. And please try to schedule a little more in advance so that
I can plan.’”
On Wednesday, January 2, 2019, mother sent a text
message to the social worker asking if she could have a visit the
next day at the maternal grandmother’s home. The social worker
indicated that she was out of town but would see if the foster
mother was available. The social worker later responded that the
foster mother had plans and could not take minor to town, but
that both the social worker and the foster mother were available
on Friday. The social worker also suggested scheduling a visit for
the following week so they could plan ahead. Mother stated that
she could visit on Friday. The social worker asked if she needed
to monitor the visit, and mother stated that the maternal
grandmother was available. The social worker confirmed the
maternal grandmother’s availability.
On January 4, 2019, the social worker transported minor to
the maternal grandmother’s home for a visit. When the social
worker left, mother was playing with minor. When the social
worker returned to pick up the child, the maternal grandmother
and mother indicated that the visit had gone well.
On January 25, 2019, mother sent a text message asking
for another visit. The social worker confirmed a visit for
January 31, 2019, at the maternal grandmother’s home. That
day, the social worker submitted a request for a DCFS Human
Services Aide to monitor visits once a month in Los Angeles, and
an aide was assigned on February 12, 2019.
On January 30, 2019, father sent a message stating he and
mother would be together for their visit the following day; mother
sent a text message stating that the maternal grandmother
19
would not be in Lancaster and mother was not certain who would
be at the home to monitor the visit. The social worker indicated
that she could not leave minor if there was no monitor, and the
social worker canceled the visit.
On February 5, 2019, the social worker informed mother
that a visitation monitor would be available beginning on
February 12 to monitor visits in Los Angeles.
On February 12, 2019, the Human Services Aide monitored
a one-hour visit for mother in Los Angeles at a library.
On March 6, 2019, mother sent a text message to the social
worker asking to schedule a visit with minor. The social worker
responded that the Human Services Aide would be transporting
minor to Los Angeles on Tuesday, March 12. The social worker
asked mother if she wanted to schedule another visit following
the Los Angeles visit. Mother stated that she would love another
visit. She said she was in Bakersfield and would be going to her
mother’s home in Lancaster. The social worker checked her
schedule and informed mother she was not available to monitor a
visit until April 3, 2019.
Meanwhile, on March 8, 2019, the social worker sent
mother a text message reminding her to confirm her March 12,
2019, visit with a DCFS Human Service Aide, and, on March 12,
2019, the aide monitored a visit for mother in Los Angeles.
On March 30, 2019, mother asked if she could have minor
for the child’s second birthday. The social worker scheduled a
visit at Chuck E. Cheese restaurant in Lancaster for April 11,
2019. On April 10, 2019, mother canceled the visit, stating that
she did not have transportation from Bakersfield, as the
maternal grandmother was not there to take her to Lancaster.
20
On April 26, 2019, mother asked to have minor for the
maternal grandmother’s wedding. The social worker did not
allow the visit because of concerns that the maternal
grandmother would not be able to provide adequate monitoring
during her wedding.
DCFS’s recommendation
DCFS concluded that mother had made minimal efforts
towards reunification. Thus, it recommended that the juvenile
court terminate reunification services.
As for the ICWA, DCFS reiterated that it did not apply.
12-Month Status Review Hearing
The 12-month status review scheduled for May 8, 2019,10
was continued to July 2, 2019, for a contested hearing. The
juvenile court ordered the DCFS social worker to be on call,
ordered DCFS to provide its service logs from November 8, 2018,
to June 26, 2019, and ordered DCFS to prepare a supplemental
report to address the parents’ “further progress and visitation
and any change in recommendation.” It also ordered
transportation assistance for the parents, and for DCFS “to make
[its] best efforts to facilitate transport of the minor to the
Los Angeles area for visits.” Minor was present that day, and the
social worker monitored a visit for both parents.
10 The Reporter’s Transcript does not include the transcript
for this hearing.
21
Supplemental Report
DCFS reported that mother had been called to five
additional tests, and that she had failed to show for a single test.
She also provided no proof that she had enrolled in any programs.
DCFS reported that between the date of detention and the
November 8, 2018, six-month status review hearing, the social
worker provided the parents with weekly visitation in
Los Angeles; the parents were late to these visits, left early, and
sometimes canceled, including once when minor was en route to
the visit. DCFS further reported that after the six-month review
hearing, to prevent minor from being in the car for five hours,
and because there was no visitation monitor to assist with visits,
the social worker discussed alternating visits between Lancaster
and Los Angeles. The social worker indicated that she had
submitted a request for a visitation monitor to assist in
monitoring visits in the Los Angeles area, and DCFS assigned a
worker to monitor one visit per month in Los Angeles.
As for the Lancaster visits, the social worker reported that
both parents were aware that they could have visits in Lancaster
by calling and providing advance notice. The social worker stated
that mother’s visits in Lancaster had been sporadic and
inconsistent. The social worker also noted that she had informed
the parents about calling to check in on minor, but neither parent
had called the foster mother to inquire about minor since her
detention.
DCFS reiterated its recommendation to terminate family
reunification services.
Contested 12-Month Status Review Hearing
At the July 2, 2019, hearing, the juvenile court admitted
DCFS’s reports and delivered service logs into evidence without
22
objection. No other party offered any evidence, and the parties
did not call witnesses or object to the adequacy of DCFS’s reports.
Mother’s counsel objected to DCFS’s recommendation to
terminate family reunification services, stating: “It’s mother’s
position that she was not provided the reasonable services,
including that she was not provided with free-to-low-cost
domestic violence classes, and, thus, she was unable to afford her
classes. I am asking the court to extend mother’s reunification
services to the 18-month period. If the court is not inclined, then
it would be over mother’s objection. Submitted, your Honor.”
Minor’s counsel argued that DCFS had provided reasonable
services and asked the juvenile court to terminate family
reunification services.
DCFS’s counsel, among other things, stated: “The parents
were given visitation. They were asked to try to come to meet at
a medium portion to visit because the child was only two years
old, and sitting in a [car for] two hours to get to L.A. was not fair
to the child. Nonetheless, agencies were assigned, and the
parents were receiving visitation at least—I would say at least
two times a month, from my review of this case file.”
After entertaining oral argument, the juvenile court stated,
“[A]s far as what the parents have done and what they were
ordered to do, the mother had been ordered to do domestic
violence support group for victims, random and on demand
consecutive drug tests, [and] individual counseling.” It added
that the evidence reflected that the social worker had contacted
mother monthly since the last court date regarding programs and
court orders and there were additional messages between them.
The juvenile court observed that mother had not provided
proof of participation in programs or proof of drug testing. It
23
noted that it appeared that mother had attended a domestic
violence program at some point, but it was not clear if she had
completed it. After discussing father’s compliance in his court-
ordered case plan, the juvenile court stated: “The parents have
had some visits, but they have also been late, missed visits,
canceled, left early.”
The juvenile court found the conditions justifying
jurisdiction remained and that it would be detrimental to minor
to return her to parental custody. It further found that DCFS
had complied with the case plan by making reasonable efforts to
return minor safely to her home. Thus, it terminated
reunification services and set the matter for a section
366.26 hearing.
Father’s counsel noted that the termination of reunification
services was over father’s objection. The juvenile court then
asked, “And the mother’s objection as well?” Mother’s counsel
responded, “Yes, your Honor.” Mother’s counsel offered no
further response, and counsel did not expound on the objection.
Writ Notice
On July 2, 2019, the Clerk of the Court served mother by
U.S. mail with notice of her writ rights. Even though mother was
present at the 12-month status review hearing, the juvenile court
did not orally advise her of her writ rights when it terminated
reunification services.
Section 366.26 Hearing
On March 5, 2020, the juvenile court conducted the section
366.26 permanency planning hearing. Mother did not appear.
The juvenile court received DCFS’s reports in evidence. No other
evidence was presented.
24
The juvenile court found that the ICWA did not apply. It
further found minor likely to be adopted. It also found that the
parents had not maintained regular visitation and contact with
minor, had not established a bond with her, and that no
exception to adoption applied.
The juvenile court terminated mother’s and father’s
parental rights, and designated Rachel as minor’s prospective
adoptive parent.
Appeal
Mother’s timely appeal ensued.
DISCUSSION
I. Reunification services at the 12-month review hearing
Mother argues that the juvenile court’s finding at the
12-month review hearing11 that DCFS offered her reasonable
reunification services is not supported by substantial evidence.
A. Forfeiture
A parent waives a challenge to the adequacy of
reunification services if the parent fails to object on that basis
when the juvenile court terminates reunification services. (In re
11 When a juvenile court refers a case for a section 366.26
hearing, that order and all ancillary orders are reviewed by way
of extraordinary writ upon the filing of a Notice of Intent to File
Petition for Extraordinary Writ. (In re Cathina W. (1998) 68
Cal.App.4th 716, 719–720; § 366.26, subd. (l)(3)(A); Cal. Rules of
Court, rules 8.450, 8.452.) However, the Courts of Appeal have
considered the adequacy of the reunification efforts in an appeal
from the order terminating parental rights when, as here, the
juvenile court failed to advise the parent of the writ requirement.
(See Cal. Rules of Court, rule 5.590(b) [rule regarding oral writ
advisement]; In re Cathina W., supra, 68 Cal.App.4th at pp. 722–
725; In re Rashad B. (1999) 76 Cal.App.4th 442.)
25
Lauren Z. (2008) 158 Cal.App.4th 1102, 1110; see also In re
Kevin S. (1996) 41 Cal.App.4th 882, 885.) Further, “[g]eneral
objections are insufficient to preserve issues for review.” (In re
E.A. (2012) 209 Cal.App.4th 787, 790.)
For the first time on appeal, mother argues that she was
not provided with reasonable services because DCFS failed to
refer her to a drug program after she failed to provide four
consecutive clean drug tests and because it did not facilitate the
juvenile court’s order for twice-weekly visits. Because mother did
not raise these objections below, she has forfeited them on
appeal. (In re Riva M. (1991) 235 Cal.App.3d 403, 411 [As a
general rule, “a party is precluded from urging on appeal any
point not raised in the trial court”].)
B. Substantial evidence supports the juvenile court’s
reasonable efforts finding
For the sake of completeness, we address the merits of
mother’s argument.
1. Relevant law
The juvenile court shall order the social worker to provide
child welfare services to the child and the child’s mother,
statutorily presumed father, or guardian whenever a child has
been removed from a parent’s or guardian’s custody, except as
provided in subdivision (b), or when the parent has voluntarily
relinquished the child. (§ 361.5, subd. (a).) Court-ordered
services may be extended up to a period not to exceed 18 months
after the date of the child’s initial removal from his parent’s or
guardian’s physical custody. (§ 361.5, subd. (a)(3)(A).)
When family reunification services are ordered, dependency
law requires a good faith effort on the part of the social worker to
provide reasonable services “responding to the unique needs of
26
each family.” (In re Monica C. (1995) 31 Cal.App.4th 296, 306.)
Such services “must be specifically tailored to fit the
circumstances of each family” 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; see also
Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 599.)
In determining whether DCFS provided reasonable
services, the juvenile court must review the status review report
and consider parental efforts to utilize the services provided.
(§ 366.21, subd. (f).) “[T]he record should show that the
supervising agency identified the problems leading to the loss of
custody, offered services designed to remedy those problems,
maintained reasonable contact with the parents during the
course of the service plan, and made reasonable efforts to assist
the parents in areas where compliance proved difficult.” (In re
Riva M., supra, 235 Cal.App.3d at p. 414.)
The adequacy of reunification plans and the reasonable
services provided are judged according to the circumstances of
each case. (Armando L. v. Superior Court (1995) 36 Cal.App.4th
549, 554; In re Robin V. (1995) 33 Cal.App.4th 1158, 1164.)
In other words, when a juvenile court makes a reasonable
efforts determination, the standard is whether the services were
reasonable under the circumstances. (In re Misako R. (1991) 2
Cal.App.4th 538, 546.)
We review the juvenile court’s reasonable services finding
for substantial evidence. (See Angela S. v. Superior Court (1995)
36 Cal.App.4th 758, 762; In re Christina A. (1989) 213 Cal.App.3d
1073, 1080.) We must view the evidence in the light most
favorable to DCFS and indulge all legitimate and reasonable
27
inferences to uphold the juvenile court’s finding. (Mark N. v.
Superior Court (1998) 60 Cal.App.4th 996, 1010.)
2. Reasonable services regarding drug treatment
Mother first argues that DCFS did not make a good-faith
effort to offer her with reasonable services because it did not
provide her with referrals for drug rehabilitation programs even
though she missed drug tests. The evidence shows otherwise.
On August 13, 2018, mother signed a receipt for referrals from
DCFS, and DCFS’s same report included copies of various
referrals given to the parents. It is true that the appellate record
does not include a copy of a referral to a drug treatment program.
But, the receipt for referrals signed by mother checked and
highlighted “Drug Treatment Program.” Viewing this evidence in
the light most favorable to DCFS, to the extent the juvenile court
found that mother had received a referral to a drug treatment
program, we see no basis to disturb it. (In re Misako R., supra, 2
Cal.App.4th at p. 545 [“[i]n reviewing the reasonableness of the
services provided, this court must view the evidence in a light
most favorable to the respondent”].)
Even if the social worker had failed to provide mother with
a referral to a drug treatment program, this lone omission does
not negate the other efforts made by the social worker to assist
mother in complying with the drug services component of her
case plan.
As set forth above, the juvenile court ordered mother to
provide four consecutive negative drug tests, and if any tests
were missed or dirty, to enroll in a drug treatment program. The
social worker reviewed this and the other requirements of
mother’s court-ordered case plan on at least three separate
occasions.
28
When mother missed a drug test in June 2018, the social
worker explained that the missed test in June would not count
towards the requirement because mother needed to provide four
consecutive clean drug tests.
When mother missed another drug test in July 2018, the
social worker encouraged mother to call nightly to see if she had
been called to drug test the following day. After mother missed
her next three drug tests, the social worker contacted mother,
reminded her of the drug testing requirement, and urged her to
call nightly to see if she was called to drug test to following day.
Indeed, the social worker followed up with mother
concerning her missed drug tests in September 2018, twice in
December 2018, in February 2019, and in March 2019. Mother,
however, failed to drug test, ignored the social worker’s
communications, and even denied being aware that she was still
required to drug test.
Admittedly, the social worker did not demand that mother
enter a drug treatment program to address her noncompliance
with the juvenile court’s drug testing requirement. But given
mother’s inability to comply with the individual counseling and
domestic violence support group requirements of her case plan—
for which she was given referrals—it was reasonable for the
social worker to focus on encouraging mother to provide four
clean consecutive tests, rather than on mother enrolling in a full
drug treatment program. In fact, based on mother’s
demonstrated pattern of behaviors, it could have been
unreasonable to believe that mother would have enrolled in a
drug treatment program had she been given a referral to one.
In short, the juvenile court’s finding that DCFS made a
reasonable effort to help mother comply with the drug testing
29
component of her case plan is supported by substantial evidence.
On multiple occasions, the social worker explained the drug
testing or drug treatment program requirement to mother,
repeatedly encouraged mother to drug test, instructed her to call
nightly to see if she was summoned to drug test, and regularly
reminded her of the drug testing requirement. There is no basis
to reverse.
3. Visitation
Second, mother argues that DCFS did not facilitate her
court-ordered twice-weekly visits, and for two months received no
visits with minor.
The juvenile court’s visitation order provided for twice-
weekly visits. But its order did not require visits to take place in
Los Angeles. Indeed, not until May 8, 2019, the date of the first
scheduled 12-month status review hearing, was DCFS obligated
to “make best efforts to facilitate transport of the minor to the
Los Angeles area for visits.”12
This case was filed with the juvenile court in Lancaster.
Mother desired to have visits in Los Angeles, and the record
indicates that following the disposition hearing, DCFS procured a
Human Services Aide who transported minor to Los Angeles and
monitored the parents’ visits weekly in Los Angeles. The social
worker also suggested to mother that she enroll in programs in
Lancaster so that she could have a second weekly visit after her
programs in the Lancaster area. Mother, however, declined the
social worker’s offer. As such, for the first six-month period,
12 Though DCFS filed a supplemental report on June 25,
2019, it did not address visits subsequent to the juvenile court’s
May 8, 2019, order.
30
DCFS provided mother with weekly visits in Los Angeles, and it
offered her additional weekly visitation in Lancaster.
As of November 8, 2018, the visitation monitor was no
longer available. Further, the social worker became concerned
that having visits in Los Angeles required minor to be in a car for
up to five hours and the parents were often late, left early, and
even canceled. Therefore, the social worker required that some
visits take place in Lancaster before requiring minor to be
transported to Los Angeles. Mother, however, only made limited
requests to visit minor in Lancaster.
Even though the social worker informed mother on
November 8, 2018, to contact her to schedule a visit in Lancaster,
it was nearly three weeks before mother contacted her. And,
when mother did so, it was not to schedule a visit in Lancaster,
but to again ask about having visits back in Los Angeles.
In fact, mother did not ask the social worker about having a
visit in Lancaster until December 5, 2018, nearly a month after
the social worker informed mother about visiting in Lancaster.
And, at that time, mother asked whether they (presumably
mother and father) could have their visits in Lancaster at the
maternal grandmother’s home, possibly on Saturdays. The social
worker reminded mother that she and father could not visit
together and contacted the maternal grandmother about
arranging such visits, but the maternal grandmother did not
respond to set up visits.
Mother did make efforts to secure a Christmas day visit.
However, DCFS could not accommodate their request for a
Christmas day visit because no one was available to transport
minor to the maternal grandmother’s home; the social worker did
31
not work on Christmas day, DCFS’s offices were closed, and the
foster mother was out of town.
Mother made two additional requests to visit minor that
month. On December 13, 2018, mother asked for a visit and one
was scheduled for the following week. However, no visit went
forward because the maternal grandmother knew nothing about
the visit. On Thursday December 27, 2018, mother asked to have
a visit on Monday December 31, 2018. The social worker,
however, indicated that she was not working on Monday or
Tuesday, but that they could see if the foster mother was
available. The social worker asked mother to have the maternal
grandmother call her, but there is no indication in the appellate
record whether she ever did.
On January 2, 2019, mother called the social worker and
asked to have a visit the following day at the maternal
grandmother’s home. Although a visit was not provided on
January 3, mother had a monitored visit on January 4, monitored
by the maternal grandmother at her home.
Mother did not request another visit until three weeks
later, and a visit was scheduled for January 31, 2019. That visit
had to be canceled, however, as the mother had not informed the
maternal grandmother that the visit would take place at her
home and the maternal grandmother planned to be out of town.
On February 5, 2019, the social worker informed mother
that a visitation monitor was now available to monitor visits in
Los Angeles beginning on February 12, and mother had a visit
with minor in Los Angeles on February 12, 2019.
It is true that on March 6, 2019, mother asked to visit
minor, and the social worker informed her the social worker
would not be available to monitor a visit in Lancaster until
32
April 3. However, mother had a visit in Los Angeles on
March 12.
On March 30, 2019, mother asked to visit minor for the
child’s second birthday, and a visit was scheduled for April 11,
2019, at Chuck E. Cheese restaurant in Lancaster. The day
before the visit, mother canceled, stating that she did not have
transportation.
On April 26, 2019, mother asked to have minor for the
maternal grandmother’s wedding. There were at least two
obstacles to this request. First, the wedding was scheduled for a
Saturday, and DCFS was not able to arrange a visitation
monitor. Second, the social worker was concerned that the
maternal grandmother would be unable to monitor the visit
adequately during her own wedding.
Thus, while it is true that DCFS did not implement visits
in Los Angeles until February 2019, when it secured a monitor to
transport minor to Los Angeles monthly, the evidence indicates
that mother was aware that she could schedule weekly visits in
Lancaster with advance notice so that a monitor could be
ensured. DCFS made a good faith effort to overcome any
obstacles to visitation. (In re Alvin R. (2003) 108 Cal.App.4th
962, 973.)
II. The ICWA inquiry was deficient
“The ICWA, enacted by Congress in 1978, is intended to
‘protect the best interests of Indian children and to promote the
stability and security of Indian tribes and families.’ [Citation.]
‘The ICWA presumes it is in the best interests of the child to
retain tribal ties and cultural heritage and in the interest of the
tribe to preserve its future generations, a most important
33
resource.’ [Citation.]” (In re Karla C. (2003) 113 Cal.App.4th
166, 173–174.)
Thus, the juvenile court and DCFS “have an affirmative
and continuing duty to inquire whether a child for whom a
petition under Section 300 . . . has been filed, is or may be an
Indian child.” (§ 224.2, subd. (a).) The initial duty to inquire
includes “asking the child, parents, legal guardian, Indian
custodian, extended family members, others who have an interest
in the child, and the party reporting child abuse or neglect,
whether the child is, or may be, an Indian child and where the
child, the parents, or Indian custodian is domiciled.” (§ 224.2,
subd. (b); see also Cal. Rules of Court, rule 5.481(a); In re D.F.
(2020) 55 Cal.App.5th 558, 566–567.)
“Just as notice to Indian tribes is central to effectuating
ICWA’s purpose, an adequate investigation of a family member’s
belief a child may have Indian ancestry is essential to ensuring a
tribe entitled to ICWA notice will receive it.” (In re Elizabeth M.
(2018) 19 Cal.App.5th 768, 787.) “ICWA and state law place the
duty with the child protective agency in the first instance, not the
child or his or her parent, to determine whether additional
information exists that may link a child with Indian ancestry to a
federally recognized tribe.” (Ibid.)
“‘The ICWA confers on tribes the right to intervene at any
point in state court dependency proceedings. [Citations.] “Of
course, the tribe’s right to assert jurisdiction over the proceeding
or to intervene in it is meaningless if the tribe has no notice that
the action is pending.” [Citation.] “Notice ensures the tribe will
be afforded the opportunity to assert its rights under the [ICWA]
irrespective of the position of the parents, Indian custodian or
state agencies.” [Citation.]’ [Citation.]” (In re Karla C., supra,
34
113 Cal.App.4th at pp. 173–174; see also In re H.A. (2002) 103
Cal.App.4th 1206, 1210.)
As DCFS concedes, it did not conduct an adequate
investigation into minor’s potential Indian ancestry. (See, e.g., In
re D.S. (2020) 46 Cal.App.5th 1041, 1053; In re K.R. (2018) 20
Cal.App.5th 701, 709 [“a social services agency has the obligation
to make a meaningful effort to locate and interview extended
family members to obtain whatever information they may have
as to the child’s possible Indian status”].) After all, when minor
was detained in February 2018, the paternal grandmother
disclosed that she had possible “Blackfoot” ancestry. Without any
follow-up by DCFS, the juvenile court found that it had no reason
to know minor was an Indian child under the ICWA. Thereafter,
DCFS reported that the ICWA did not apply. And, DCFS never
inquired further of the paternal grandmother regarding minor’s
possible connection to the Blackfeet tribe.
DCFS’s breach of its duty and the juvenile court’s failure to
ensure compliance require a conditional reversal of the order
terminating mother’s parental rights and a remand for an
adequate investigation of minor’s Indian ancestry, with directions
depending upon the outcome of that investigation. If after an
inquiry it is determined that minor has no Indian ancestry, then
the order terminating parental rights can be reinstated. (In re
Antoinette S. (2002) 104 Cal.App.4th 1401, 1413–1414.)
However, if after an inquiry it is determined that a tribe
must be given notice of these proceedings, then DCFS shall
satisfy the ICWA’s notice requirements. If after the tribe receives
proper notice under the ICWA, minor is determined not to be an
Indian child and the ICWA does not apply, the order terminating
35
parental rights can be reinstated. (In re Antoinette S., supra, 104
Cal.App.4th at pp. 1413–1414.)
DISPOSITION
The juvenile court’s finding that DCFS provided mother
with reasonable reunification services is affirmed. The order
terminating mother’s parental rights to minor is conditionally
reversed and the matter is remanded to the juvenile court for full
compliance with the inquiry and, if appropriate, notice provisions
of the ICWA and related California law. If minor is determined
not to be an Indian child, the order terminating parental rights
shall be reinstated.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
________________________, J.
ASHMANN-GERST
We concur:
_______________________, P. J.
LUI
________________________, J.
HOFFSTADT
36