Lee T. v. Sup. Ct.

Filed 11/30/05 Lee T. v. Sup. Ct. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

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LEE T. et al., Petitioners, v. THE SUPERIOR COURT OF PLACER COUNTY, Respondent; PLACER COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES ADMINISTRATION et al., Real Parties in Interest.

C050438 (Super. Ct. Nos. 53001409, 53001410, 53001411, 53001412)

Petitioners Lee T. and Maria C., parents of the minors, seek an extraordinary writ (Cal. Rules of Court, rule 38.1) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing (undesignated section references are to the Welfare and Institutions Code). Petitioners also requested a stay of proceedings in the respondent court. We granted a stay

of the section 366.26 hearing in the respondent court pending the resolution of this writ petition. We shall issue a writ directing respondent to comply with the notice provisions of the Indian Child Welfare Act (ICWA), title 25 of the United States Code, section 1901, et seq., and deny the petition in all other respects.

The Plumas County Department of Social Services first removed the four minors, C.T., age 5, S.T., age 6, N.T., age 12 and E.T., age 15, from parental custody in August 2003, due to substance abuse, neglect, failure to provide medical care, emotional abuse, and domestic violence in the home. Lee T. refused to discuss his family history with the social worker at that time. Lee T. also claimed that his marijuana use was for medical purposes. The Plumas County juvenile court adjudged the minors dependents and adopted a reunification plan in November 2003, which included the parents’ participation in parenting classes, drug testing, Alcoholics Anonymous, substance abuse treatment, and a psychological evaluation. By April 2004, the court found petitioners had made minimal progress toward reunification and transferred the case to Placer County.

Placer County accepted the transfer and the Department of Health and Human Services (DHHS) developed a unified services plan for the family. By July 2004, petitioners were doing well enough that three of the four minors were returned to their care.^[1] The court ordered that Lee T. participate in anger management services. The minors who had returned home were to continue therapy, however Maria C. disrupted and interfered with the therapy sessions.

According to a status review report in October 2004, Lee T. was arrested for driving under the influence of alcohol in May 2004. Petitioners were not complying with the services plan and Maria C. had continuing issues with the minors’ therapist. Petitioners blamed the “system” for the continuing intervention on behalf of their children. By December 2004, little had changed: Maria C. continued to resist therapy for herself and the minors and Lee T. was refusing services and his therapy was discontinued for lack of participation.

In January 2005, DHHS filed a section 387 petition alleging that petitioners continued to use marijuana; Maria C. refused drug testing; E.T. was not in school and was depressed and suicidal; E.T., S.T., and C.T. were not attending therapy; and various medical conditions of these minors were untreated. Lee T. again claimed he was using marijuana for medical purposes but had not provided a prescription to DHHS. The detention report for the section 387 petition noted petitioners had twice been ordered to participate in the plan, but were refusing to test and continued to use marijuana. At the detention hearing in January 2005, Lee T. claimed Cherokee heritage and Maria C. said she also had Indian ancestry but did not know what tribe. Petitioners were ordered to provide the necessary information for notice to the tribes.

Subsequent reports reiterated petitioners’ lack of participation in the plan and refusal to test despite calls to petitioners from the social worker urging compliance. Petitioners were defensive and blamed others for their problems. E.T. told the social worker she was the caretaker for S.T. and C.T. and that petitioners did not provide adequate nutrition for them. The foster mother reported that both S.T. and C.T. showed evidence of neglect. The social worker summarized the situation stating that petitioners were not participating in services despite referrals and were not putting the minors’ needs first. Lee T.’s therapist stated that Lee T. was not open to hearing reality and his attitude and behavior was why his therapy failed. Maria C. was bombarding E.T. with e-mails seeking information on the other children and pressuring her to have them return home. In a subsequent report the social worker provided additional information on the minors’ neglected condition at removal and their improvement in foster care. According to the court appointed special advocate, the minors were in better physical and emotional condition after removal, knew petitioners were unable to provide for them, and did not want to return home.

Additional reports prior to, and during, the hearing on the section 387 petition established additional facts, including that petitioners completed substance abuse evaluations, which recommended that both participate in additional services. Lee T. provided a drug sample that tested positive with a very high level of marijuana; Maria C.’s sample was diluted. The fact that both S.T. and C.T. were born positive for marijuana showed Maria C. had a long-term problem with the drug. S.T. was concerned about returning home if neither E.T. nor N.T. was there because there would be no one to take care of him. S.T. and C.T. needed shoes since the ones they had were far too small. C.T. had regressed in petitioners’ care and had to relearn how to bathe and dress herself. The petition was amended to add these additional facts of neglect.

During the combined status review/section 387 petition hearing, petitioners presented evidence that Lee T. had recommendations for medical use of marijuana in August 2003 and January 2005. The recommendations expire after one year.

After an extensive hearing, the court, in a written opinion, sustained the section 387 petition and found clear and convincing evidence that there would be a substantial danger to the physical or emotional well-being of E.T., S.T., and C.T. if returned to petitioners. Noting that petitioners had already had nearly two years of services but continued to demonstrate an inability to provide the minors’ basic needs, the court terminated reunification services as to all of the children and set a section 366.26 hearing.

I

Petitioners contend the court erred in failing to comply with the notice provisions of the ICWA.

The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) The juvenile court and DHHS have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 1439(d).) If, after the petition is filed, the court “knows or has reason to know that an Indian child is involved,” notice of the pending proceeding and the right to intervene must be sent to the tribe or the Bureau of Indian Affairs (BIA) if the tribal affiliation is not known. (25 U.S.C. § 1912; Cal. Rules of Court, rule 1439(f).) Failure to comply with the notice provisions and determine whether the ICWA applies is prejudicial error. (In re Desiree F. (2000) 83 Cal.App.4th 460, 472; In re Kahlen W. (1991) 233 Cal.App.3d. 1414, 1424.)

From the record it appears that when the minors were initially removed in 2003, Lee T. refused to provide any family history and neither the court nor DHHS would have been aware of any Indian ancestry at that time. However, at the detention hearing on the section 387 petition, both petitioners disclosed

Indian ancestry and the court subsequently ordered them to provide relevant information to the social worker. By the time of the orders setting the section 366.26 hearing, no notices or proofs of service demonstrating compliance with the ICWA had been filed with the court. (Cal. Rules of Court, rule 1439(f).) Notices with all available information on petitioners’ Indian ancestry must now be sent to the tribes and the BIA to comply with the ICWA.

II

Petitioners argue that they were penalized by the court and DHHS for Lee T.’s medical use of marijuana and that such use did not present a risk to the minors. We disagree.

The court sustained the section 387 petition, terminated services and set a section 366.26 hearing because petitioners failed to comply with various elements of the service plan, separate from substance abuse treatment, and demonstrated that they were totally unable to provide even minimal care for the minors who were returned to them. (§ 366.22, subd. (a); 387, subd. (b).) Moreover, Lee T.’s medical use of marijuana is no different from any parent’s use of prescribed medication. When misuse of the medication or abuse of other substances results in neglect and abuse of children, the court and DHHS are required to act to protect the health, safety and well-being of the children. The evidence before the court supported an inference of excessive use of marijuana and alcohol abuse by Lee T. Further, inferences

from the evidence supported the conclusion that Maria C., who had no prescription for marijuana, was also abusing that drug and alcohol. Both petitioners neglected the medical, dental, and emotional health of the minors and subjected them to ongoing neglect while delegating parenting tasks to the children. Nothing in the record supports the contention that either petitioner was penalized for the father’s medical use of marijuana.

III

Petitioners argue the court erred in finding that they had not participated and made significant progress in services.

At the 18-month review hearing, the juvenile court “shall order the return of the child to the physical custody of his or her parent . . . unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment. The failure of the parent . . . to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.” (§ 366.22, subd. (a).)

The lack of progress in services, despite whatever level of participation there was, is overwhelmingly demonstrated by the condition of the minors upon their removal when the supplemental

petition was filed. C.T. had regressed to the point she was no longer able to bathe and dress herself. C.T. and S.T. lacked even marginally adequate clothing. S.T., whose dental problems had been resolved after the first removal again had such serious dental problems that removal was required. E.T., who had been struggling trying to raise her younger siblings was refused access to education. None of the children had been able to participate in needed therapy because petitioners did not yet understand the need for it. Lee T. continued to verbally abuse N.T. who had refused to return home. Both petitioners were totally unable to put the needs of the children for a stable safe and loving home before their own needs. The court did not err in finding return of the minors to petitioners would be detrimental to the minors’ well-being.

To the extent that petitioners attack the plan, they have forfeited the issue by failing to raise it in a timely fashion. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.; In re Daniel K. (1998) 61 Cal.App.4th 661, 667; John F. v. Superior Court (1996) 43 Cal.App.4th 400, 404-405.)

DISPOSITION

The petition for extraordinary writ is granted as to the claim of failure to provide notice in compliance with the Indian Child Welfare Act and denied as to the remaining issues. Let a peremptory writ issue directing respondent court to determine whether the Placer County Department of Health and Human Services complied with the notice provisions of the Indian Child Welfare Act and whether the Indian Child Welfare Act applies in this case if it has not already done so. Having served its purpose, the stay previously issued by this court is vacated.

SIMS , Acting P.J.

We concur:

DAVIS , J.

HULL , J.

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^[1] N.T. refused to return to petitioner’s custody.