as: 5 Cal.App.4th 1201)
re JOHN V. et al., Persons Coming Under the Juvenile
Court Law. SANTA CLARA
DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent,
W., Defendant and Appellant.
SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; SANTA CLARA COUNTY
OF FAMILY AND CHILDREN'S SERVICES, Real Party in Interest.
H008411., No. H008929.
of Appeal, Sixth District, California.
In dependency proceedings involving three children, the juvenile court issued
an order terminating reunification services that were being provided to
the mother, scheduled a permanency planning hearing as to two
of the children, and found the third child to be
adoptable. (Superior Court of Santa Clara County, Nos. 96952, 96908
and JD00366, Nancy Hoffman, Judge.)
The Court of Appeal affirmed the order and dismissed the
mother's petition for a
writ of mandate and/or prohibition. The court held that the
juvenile court erred at a 1991 hearing concerning two of
the children when it applied the dependency law in effect
after January 1, 1989, since the children had been adjudicated
dependents in April 1988 and, therefore, were subject to the
law in effect before January 1, 1989. The court held
that substantial evidence supported the finding that return of the
children to their mother's custody would have been detrimental to
the children, and that the juvenile court did not err
in failing to institute reunification requirements for the mother until
almost a year after she first expressed an interest in
reunification. Moreover, the court held, the reunification plan provided to
the mother was adequate. The court held that the Indian
Child Welfare Act (25 U.S.C. § 1903
et seq.) was not applicable to the dependency proceedings, even
though a social worker's report described the children's mother as
being of Black, German, and Creole Indian ethnic heritage. The
court went *1202
on to dismiss the petition for a writ of mandate
and/or prohibition on the ground that it was untimely, having
been filed more than six months after the hearing it
purported to challenge, and after the mother's parental rights had
been terminated. (Opinion by Elia, J., with Capaccioli Acting P.
J., and Premo, J., concurring.)
to California Digest of Official Reports
Delinquent, Dependent, and Neglected Children § 23.4--Disposition
Hearings--Dependency Cases--Applicability of Pre-1989 Law.
In a dependency proceeding involving two children who were adjudicated
dependents of the juvenile court in April 1988, the juvenile
court erred when, at a 1991 hearing, it applied the
dependency law in effect as of January 1, 1989, treating
the hearing as an 18-month review hearing under Welf. &
Inst. Code, § 366.22,
rather than conducting a permanency planning hearing under Welf. &
Inst. Code, § 366.25.
Although the juvenile court, in March 1989, had sustained a
supplemental petition under Welf. & Inst. Code, § 387,
to change a prior juvenile court order so that the
children could be placed in foster care, the sustaining of
such a petition does not result in a new adjudication
of dependency so as to make the law in effect
as of January 1, 1989, applicable to subsequent proceedings. Rather,
children adjudicated dependents before January 1, 1989, remain on the
pre-1989 procedural track, which requires that permanency planning hearings be
held under Welf. & Inst. Code, § 366.25,
and that proceedings to terminate parental rights be conducted pursuant
to Civ. Code, § 232.
Delinquent, Dependent, and Neglected Children § 24--Dependency
Proceedings; Termination of Parental Rights--Hearings and Dispositions-- Findings.
In a dependency proceeding, substantial evidence supported the juvenile court's
finding that return of the children to their mother's custody
would have been detrimental to the children. When the children
were first adjudicated dependents, the male child had been physically
and sexually abused by the father, and extreme conflict had
existed between the parents. The mother had no permanent housing,
sporadic and frequently changing employment, was unable to handle money,
made inappropriate choices for living partners, and was making no
progress in resolving her problems. A clinical psychologist opined that
the mother's dysfunctional behavior was likely to persist and would
prevent her from providing adequately for the children, and *1203
the psychologist's suggestion that the mother engaged in a pattern
of destructive, unstable relationships with men, when viewed in the
context of all of the psychologist's conclusions, was not speculative.
Delinquent and Dependent Children, § 165.]
Appellate Review § 148--Scope
of Review--Sufficiency of Evidence.
When an appellate court reviews a challenge based on the
sufficiency of the evidence, it is limited to inquiring whether
there is any evidence, contradicted or uncontradicted, that would support
the conclusion of the trier of fact. The appellate court
must resolve all conflicts in favor of the trial court's
determination and indulge in all legitimate inferences to uphold it,
and may not substitute its deductions for those of the
trier of fact.
Delinquent, Dependent, and Neglected Children § 26.6--Dependency
Proceedings; Termination of Parental Rights--Hearings and Dispositions-- Opening, Modification, and
Vacation of Judgment or Orders--Reunification Plan-- Trial Court's Delay in
In a dependency proceeding in which two children were first
adjudicated dependents of the juvenile court in April 1988, after
they were removed from their father's custody, the juvenile court
did not err in failing to institute reunification requirements for
the mother until March 1989, almost a year after she
first expressed an interest in reunification. At the time the
mother expressed such an interest, reunification services were being provided
to the father, with the hope that the children could
be returned to him. After a trial reunification with the
father failed in January 1989, the mother was considered for
reunification, and a plan was ordered for her at the
next hearing in March 1989. Thereafter, she received reunification services
for almost two years, which was substantially more than the
eighteen-month maximum period delineated in Welf. & Inst. Code, § 366.22.
Delinquent, Dependent, and Neglected Children § 26.6--Dependency
Proceedings; Termination of Parental Rights--Hearings and Dispositions-- Opening, Modification, and
Vacation of Judgment or Orders--Reunification Plan-- Adequacy.
In a dependency proceeding, the reunification plan provided to the
was adequate. The mother was given a psychological evaluation, was
advised on employment, and was given many referrals for housing,
counseling, and budgeting her income. Her personality disorder, however, prevented
her from caring for her children: she had a dependent
personality and a recurrent, maladaptive pattern of being unable to
take responsibility for herself, she had an unstable living situation,
and she tended *1204
to be involved in abusive relationships. Her chronic low income
was not the root cause of her inability to find
housing. On the contrary, she had received financial assistance, but
had been unable to obtain housing because of her history
of poor payments and evictions. The mother knew she had
resources available to her, but lacked the initiative to take
advantage of them, consistently rejecting the idea that she needed
counseling, even failing to engage in therapy until three weeks
before the permanency planning hearing.
[See 10 Witkin,
Summary of Cal. Law (9th ed. 1989) Parent & Child,
Indians § 1--Indian
Child Welfare Act--Applicability to Child Dependency Proceedings:Words, Phrases, and Maxims--Indian
The Indian Child Welfare Act (25 U.S.C. § 1903
et seq.) was not applicable to a dependency proceeding, even
though a social worker's report described the children's mother as
being of Black, German, and Creole Indian ethnic heritage. The
act does apply to foster placement (25 U.S.C. § 1903(1)),
but only if the children are Indian. An Indian child
is defined as any unmarried person under
the age of 18 who is either a member of
an Indian tribe, or is eligible for membership in an
Indian tribe and is the biological child of a member
of an Indian tribe (25 U.S.C. § 1903(4)).
The Creole Indian tribe is not among the tribes recognized
by, and eligible to receive funding from, the U.S. Bureau
of Indian Affairs. Moreover, the term "Creole" does not include
those of Native American tribal heritage.
Mandamus and Prohibition § 57--Mandamus--Procedure--Timeliness
A petition for a writ of mandate and/or prohibition, in
which a mother challenged findings concerning a dependent child made
by the juvenile court at a 12-month review hearing (
Welf. & Inst. Code, § 366.21),
was untimely. It is true that, as to children adjudicated
dependents after January 1, 1989, issues concerning orders made in
hearings under Welf. & Inst. Code, §§ 366.21,
366.22, are properly raised by writ petition and are not
cognizable on appeal. However, the mother's writ petition was filed
more than six months after the hearing, and after her
parental rights had been terminated. The legislative purpose in providing
for writ review of decisions made in hearings under Welf.
& Inst. Code, §§ 366.21,
366.22, is to permit the appellate court to hear issues
concerning implementation of a permanent plan for a child who
cannot be reunited with his or her parents before the
subsequent hearing is held. Thus, applications for writ review should
be made sufficiently early to permit
adjudication of the issues before the hearing is commenced. *1205
Ann Jory, under appointment by the Court of Appeal, for
Defendant and Appellant and for Petitioner.
Steven M. Woodside, County Counsel, and Jeffrey L. Bryson, Deputy
County Counsel, for Plaintiff and Respondent and for Real Party
No appearance for Respondent Superior Court.
George W. Kennedy, Distict Attorney, and Robert J. Masterson, Deputy
District Attorney, for Minors.
Juanita W. (appellant) is the mother of four children. Three
of them, Steve W., Jr., John V., and Sophia V.,
are dependents of the juvenile court. In appeal No. H008411,
and in petition for a writ of mandate and/or prohibition,
No. H008929, she challenges a juvenile court order terminating reunification
services and scheduling a permanency planning hearing as to these
three children, and finding Steve, Jr., adoptable. We ordered the
appeal and the writ considered together. Since appellant requested writ
review after her parental rights to Steve, Jr. were terminated,
we will dismiss the writ petition. Although we agree that
the juvenile court improperly proceeded as to John
and Sophia, it appears that this error was subsequently corrected.
Since we find no other error, we will affirm the
juvenile court's order.
and Procedural Background
John V. was born in 1977, Sophia V. was born
in 1980, and Steve W., Jr., was born in 1983.
A fourth child, Danny V., was born in 1978. His
dependency status is not at issue in this writ and
As to John and Sophia, the underlying facts are these:
At the time John and Sophia were first taken into
protective custody in March 1988, they were living with their
father, Paul V., who is not a party to this
appeal or writ. School officials called police when no one
picked up John after school one day; when they took
him home, police found Sophia alone, outside their locked residence.
Appellant's whereabouts were unknown at this time. *1206
A petition alleging that John came under the provisions of
Welfare and Institutions Code section 300, subdivision (a) [FN1] was
filed on March 7, 1988. A similar petition as to
Sophia was filed on March 10. Both petitions alleged that
the children had no permanent place of abode, moved from
one temporary residence to another, frequently missed school, were not
provided lunch, and were unclean and inappropriately dressed.
All further statutory references are to the Welfare and Institutions
Code unless otherwise noted.
On April 14, 1988, at a combined jurisdiction and disposition
hearing, John and Sophia were adjudicated dependents of the juvenile
court. The children were first returned to the custody of
their paternal grandmother, but were placed in foster care after
she became ill in July. In April, appellant made contact
with respondent, expressing interest in reunifying with her children. She
was referred for testing and a parenting program.
Appellant visited several times with John and Sophia after they
ceased to live with their grandmother. The visits were mutually
enjoyable. At this point, both parents were requesting custody of
the two children. Father was out of work as a
result of an accident, but his wife, the children's stepmother,
was considered capable and caring. Appellant was considered unstable. She
was employed as a nurse's aide, but had no permanent
housing. In the report prepared for the six-month review hearing,
respondent recommended the children be returned to their father's custody.
On September 28, 1989, at the six-month review hearing, the
juvenile court ordered the children returned to their father's custody,
on condition he reside with the children's paternal grandmother.
On January 31, 1989, a section 387 supplemental petition was
filed, requesting a modification of the juvenile court's order. The
petition stated that on January 9, 1989, father had left
grandmother's house in violation of the juvenile court's previous order,
that his current whereabouts were unknown, and that the paternal
grandmother could not continue caring for the children. The children
were ordered placed in the children's shelter.
On February 28, 1989, a 12-month review hearing was held.
Two notices of this hearing referred to it as a
"jurisdictional" hearing. A subsequent notice referred to it as a
"Permanency Planning" hearing.
On March 1, 1989, the juvenile court sustained the section
387 petition, finding, inter alia, that the previous disposition had
not been effective in protecting the children, and awarding their
care and custody to respondent *1207
for foster placement. The court ordered the father to have
"no contact" with John and Sophia.
An 18-month review hearing, originally scheduled for August 4, was
continued to November 14, 1989. Previous orders remained unchanged. The
report prepared for this hearing noted that both John and
Sophia had said they wanted to live with their mother.
Although appellant had previously been allowed weekend visits with the
children, they had been ended when Steve was molested by
his father, with whom appellant was then living (see post).
plan continued to require her to obtain suitable housing and
employment, to visit weekly and to participate in family counseling
at the social worker's discretion. Appellant continued to insist that
she did not need counseling. She continued to be unable
to save or budget her meager income.
An evaluation of appellant prepared by Dr. Bruce Bess, a
clinical psychologist, and dated June 16, 1989, noted it was
"questionable ... whether Ms. W[.] will be able to establish
[a sufficient] degree of self-reliance or independence. She has been
plagued by a lifelong conflict between unresolved dependency needs (needs
to be taken care of) and resentment of people who
exert control over her." This, he concluded, had resulted in
a pattern of destructive, unstable relationships with men. As to
both parents, he also concluded that they exhibited "characterological traits
which have previously resulted in aberrant or dysfunctional behavior and
could undermine their functioning in the future. Ms. W[.]'s dependency
traits have in the past prevented her from providing adequate
care or protection for her children and are liable to
undermine her parenting in the future." Dr. Bess also suggested
that because of her problems, appellant would have difficulty in
setting limits as a parent.
A permanency planning hearing was originally scheduled for April 10,
1990. A report, dated May 24, 1990, was prepared for
this hearing, which it denoted a "Twelve-Month
Review of Dependency Status ...." The report noted that appellant's
visitation had been erratic, that she had recently engaged in
family counseling, and that she had changed jobs six times
since the last report. She had also changed her residence
six times, and continued to demonstrate an inability to budget
or allocate money appropriately.
The "contested permanency planning hearing" was continued from May 24,
1990, to February 27, 1991. The hearing was eventually heard
over three days, commencing on February 27 and ending on
March 1, 1991. In the interim, John V. was returned
from foster placement to the children's shelter on June 22,
and placed in a different foster home on October 3,
The report prepared for this hearing noted that appellant's unstable
lifestyle had persisted, despite referrals for housing assistance, that her
hours of employment had changed five times between May 1990
and February 1991, that she had moved twice in the
preceding six months, and that she had failed to become
involved in counseling.
It appears that the juvenile court initially considered the February
27- March 1 hearing to be an 18-month review hearing
as to John and Sophia. At the conclusion of the
hearing, however, county counsel argued that the court should terminate
reunification under section 366.21 and schedule a section 366.26 hearing.
Later, county counsel corrected itself, stating that the hearing was
section 366.22 hearing. The juvenile court then terminated reunification efforts,
and noting that a long-term plan of foster care was
recommended for John and Sophia, scheduled a section 366.26 hearing
for June 1991. This appeal ensued.
On appellant's request, we took judicial notice of a partial
transcript of the subsequent hearing, held on July 26, 1991.
It appears from this transcript that county counsel acknowledged the
juvenile court had proceeded incorrectly in the previous hearing in
applying the law applicable to minors adjudicated dependents after 1989
to John and Sophia. It suggested that at the previous
hearing, the court should have adopted a plan of long-term
foster care for them, and that it had made a
mistake in setting a section 366.26 hearing. It then asked
the court to "clean this up and to make the
permanent plan of long-term foster care." At the conclusion of
the hearing, the court adopted recommended orders including one that
long-term foster care be the permanent plan for the minors.
Petition No. H008929
As to Steve, Jr., the underlying facts are these: On
April 1, 1989, while in the care of appellant and
his father, Steve W., Steve, Jr., was taken into protective
custody based on appellant's allegations that the child was being
subjected to excessive discipline by Steve W. (who is not
a party to this writ or
to the appeal), and to extreme conflict between the parents,
including threats of physical violence.
On April 25, 1989, a petition was filed alleging that
Steve, Jr., came under the provisions of section 300, subdivisions
(a), (c), (d), and (j).
After several delays related to the establishment of Steve W.'s
paternity, a jurisdiction and disposition hearing was held on September
27, 1989. Further disposition was continued to November 14, 1989.
The report prepared for *1209
the disposition hearing notes appellant's history of instability, and that
Steve W. not only had a record of prior violent
crime convictions but was also a registered sex offender. Steve,
Jr., was examined for evidence of sexual molestation, and evidence
of anal trauma was found.
At the continued dispositional hearing, Steve, Jr., was adjudicated a
dependent and his placement in foster care was continued.
A permanency planning hearing scheduled for April 10, 1990 was
continued to February 27, 1991, where it was combined with
the alleged section 366.22 hearing for John and Sophia. As
to Steve, this hearing was correctly denoted a section 366.21,
12-month review. At this hearing, Steve, Jr., testified in chambers
out of the presence of his parents. At the conclusion
of the hearing, the court found Steve, Jr., adoptable and
scheduled a section 366.26 hearing.
Appellant's arguments in this appeal can be encompassed in four
general categories: Procedure, adequacy of reunification, adequacy of evidence of
detriment to justify the failure to return the children to
her custody, and applicability of the Indian Child Welfare Act.
We will discuss these contentions seriatim.
John and Sophia were adjudicated dependents of the juvenile court
in April 1988. At the February 1991 hearing, county counsel
requested findings which would have been required in a section
366.22, 18-month review, apparently assuming, as did the court, that
the statutes pertaining to children adjudicated dependent after January 1,
1989, applied to them.
On appeal, appellant argues that the juvenile court should instead
have conducted a section 366.25 permanency planning hearing as to
John and Sophia. Respondent contends that because a section 387
supplemental petition was sustained as to the two children in
March 1989, they were adjudicated dependents after the effective date
of the new law, and thus the later statutes apply.
As we noted above, the July 6, 1991, transcript appears
to support appellant's argument
that a mistake was made in the February-March 1991 *1210
hearing. It also appears that the juvenile court corrected it.
Because the issue is likely to recur, however, we choose
to exercise our discretion to resolve the issue even though
the subsequent hearing would normally render it moot. (In
re William M.
(1970) 3 Cal.3d 16, 23 [89 Cal.Rptr. 33, 473 P.2d
re Taya C.
(1991) 2 Cal.App.4th 1, 6 [2 Cal.Rptr.2d 810].)
We agree with appellant that a section 387 supplemental petition
does not result in a new adjudication of dependency, and
that a juvenile court must base its procedure on the
date a child's dependency is first adjudicated in determining whether
pre- or post-January 1, 1989, statutes apply.
After they were adjudicated dependents in April 1988, John and
Sophia were initially placed in the custody of their paternal
grandmother. In July, however, when the grandmother could no longer
care for them, John and Sophia were placed in foster
care. In September 1988 at the six-month review hearing, respondent
recommended and the juvenile court ordered that John and Sophia
be returned to their father's custody, on condition he live
with the children's paternal grandmother. In January 1989 father left
the grandmother's home, and the children were returned to foster
care. Respondent then filed a supplemental petition alleging that the
"continuing trial return in the home of the minor [s']
father" had not been effective in protecting the children, that
grandmother was unwilling or unable to continue caring for them,
and therefore, "further placement planning is necessary." This is consistent
with the language of section 387, which states "An order
changing or modifying a previous order by removing a minor
from the physical custody of a parent ... and directing
placement in a foster home ... shall be made only
after noticed hearing upon a supplemental petition. [¶]
(a) The supplemental petition ... shall contain a concise statement
of facts sufficient to support the conclusion that the previous
disposition has not been effective in the rehabilitation or protection
of the minor."
In other words, a section 387 petition equivalent is used
where a child adjudicated dependent, who has been living with
a relative, is later placed in out-of-home custody. Nowhere in
the statute, or in the juvenile court rules ( Cal.
Rules of Court, former rule 1301 et seq.) [FN2] is
there any indication that the effect of a true finding
on a section 387 petition is equivalent to a new
adjudication of dependency. Former rule 1391(b) (present rule 1430(c)) states
that a supplemental petition should be used "(1) Whenever the
petitioner concludes that a previous disposition has not been effective
in the rehabilitation or protection of a minor adjudged ...
[a] dependent child of the court and seeks a more
restrictive level of physical custody." Although not binding in the
1989 hearing on the supplemental petition, we also find
further references to section 387 in the new juvenile court
rules, effective January 1, 1990, instructive. Rule 1431(e)(1) and (2)
require the hearing on a supplemental petition to be bifurcated
into a jurisdiction phase, in which a determination is made
on the allegations in the petition, and a disposition phase.
In this phase, if the juvenile court determines that the
child "is described by section 300[, subdivisions] (a), (d), or
(e), the court shall remove the child from the physical
custody of the parent or guardian."
All further rule references are to the California Rules of
Court, unless otherwise noted.
Thus, if the juvenile court sustains a section 387 supplemental
petition, the appropriate disposition is to move the child from
parental to out-of- home custody. Unlike subsequent petitions (§§
342, 360, subd. (a), & 364, subd. (e)), no new
jurisdictional facts are alleged in a section 387 petition; no
different or additional grounds for the dependency are urged. Section
387 petitions concern only changes in the level of placement
for a child already adjudicated dependent.
This was clearly the case here; the problems which led
to the initial adjudication
of dependency did not change between April 1988 and April
1989, but the failure of the children's September 1988 placement
with their father mandated that the appropriate placement level be
changed back to foster care.
We thus conclude that for children adjudicated dependents of the
juvenile court prior to January 1, 1989, an adjudication on
a section 387 supplemental petition after this date does not
make post-January 1, 1989, law afterwards applicable. These children must
remain in the pre-1989 procedural track, with permanency planning hearings
taking place under section 366.25, and termination of parental rights
proceedings, if any, under Civil Code section 232.
Despite respondent's correction of the procedural problems related to John
and Sophia's dependency, other issues raised by appellant may be
raised in subsequent appeals, and we will therefore reach them.
of Evidence to Support Nonreturn
In a section 366.22 hearing a juvenile court must "order
the return of the minor to the physical custody of
his or her parent or guardian unless, by a preponderance
of the evidence, it finds that return of the child
would create a substantial risk of detriment to the physical
or emotional well-being of the minor." In a section 366.25
hearing, "the court shall first determine at the hearing whether
the minor should be returned to his or her parent
John and Sophia were not returned to appellant's custody at
the February-March 1991 hearing, and she challenges the sufficiency of
the evidence in support of this determination.
When an appellate court reviews a sufficiency of the evidence
challenge, we may look only at whether there is any
evidence, contradicted or uncontradicted, which would support the trier of
fact's conclusion. We must resolve all conflicts in favor of
the court's determination, and indulge all legitimate inferences to uphold
the court's order. Additionally, we may not substitute our deductions
for those of the trier of fact. (In
re Katrina C.
(1988) 201 Cal.App.3d 540, 547 [247 Cal.Rptr. 784]; In
re Cheryl H.
(1984) 153 Cal.App.3d 1098, 1132 [200 Cal.Rptr. 789].)
With this standard of review in mind, we will review
the evidence in support of the court's determination that it
would be detrimental to return the children to appellant's custody.
At the time John and Sophia were adjudicated dependents, appellant
was living with Steve, Jr., and Steve W. Steve W.,
as we have noted above, abused Steve, Jr., both physically
and sexually, and extreme conflict existed between the parents, including
threats of physical violence. By the time of the six-month
review, although appellant was interested in having John and Sophia
with her, her life was considered too unstable to place
the children in her care.
This pattern of instability, which included no permanent housing, sporadic
and frequently changing employment, inability to budget or allocate money,
and inappropriate choices of living partners, persisted from the beginning
of the children's dependency to the 18-month review. By that
juncture, although the children enjoyed visits with appellant, she had
made essentially no progress in resolving those problems which led
to their out-of-home custody.
Appellant was evaluated by clinical psychologist Dr. Bruce Bess, who
questioned whether appellant would ever be sufficiently self-reliant. Appellant's dysfunctional
behavior, in his opinion, was likely to persist, and would
prevent her from providing adequately for her children. Except for
one brief period, appellant insisted that she did not need
counseling, and refused to become engaged in therapy.
Appellant focuses on that aspect of Dr. Bess's report which
identified an underlying psychological conflict in appellant, and suggested that
this conflict had "contributed to a pattern of destructive, unstable
relationships with men." She argues that this is mere speculation
about her "future choice of abusive men" which cannot support
nonreturn. We do not view this opinion in isolation, however.
Dr. Bess's conclusions, together with evidence of *1213
appellant's past conduct, her actions over the 18 months of
John and Sophia's dependency, and her testimony at the 18-month
hearing together formed the
basis for the trial court's determination. We have no difficulty
concluding, on this record, that substantial evidence supported the trial
court's decision that it would be detrimental to return John
and Sophia to appellant's custody.
Appellant challenges both the adequacy of the reunification plan and
of the reunification services provided her. In order to evaluate
these arguments, we will review the history of reunification efforts
in this case.
In April 1988 appellant first contacted respondent, expressing interest in
reunifying with John and Sophia. She was referred by the
case worker to a Methadone clinic for testing and a
parenting program. She tested negative twice, but could not continue
testing due to a conflicting work schedule.
After John and Sophia were placed at the children's shelter
in July 1988, appellant again contacted the case worker, and
visited the children several times in the shelter. No reunification
service plan was prepared for appellant at the time of
the six-month review, in September 1988, however. The minute order
for this hearing requires respondent to provide family reunification, but
this appears aimed at Paul V. and his new wife,
who were about to resume custody of John and Sophia.
At the March 1, 1989, hearing on the section 387
supplemental petition, after
the placement with their father had failed, appellant was ordered
to obtain and maintain suitable housing, and to participate in
individual or family therapy.
Appellant was then evaluated by Dr. Bess, whose report on
the evaluation was dated June 16, 1989. We have already
noted his conclusion that the problems underlying her inability to
care adequately for her children were liable to persist.
At the continued disposition hearing as to Steve, in November
1989, which was held in conjunction with the 18-month review
as to John and Sophia, the social worker recommended reunification
efforts as to appellant to involve her in "counseling regarding
personal and family issues as well as to continue employment
and secure and maintain suitable housing." The juvenile court ordered
appellant to complete a parenting class, to demonstrate her parenting
skills in visitation with the children, to keep the social
worker apprised of her current address, to "participate in and
complete a program of individual and family counseling approved by
the social worker for the purpose of resolving the following
specific issues: D[e]cision-making ability, self-reliance, and relationships with ... her
children;" that she participate in a psychological evaluation "to assess
her general psychological functioning and ability to parent, ... prior
to consideration for reunification;" and that she obtain
"suitable and adequate residence and accommodations for the minors."
Appellant was reevaluated by Dr. Bess in October 1990. He
concluded there had been no improvement in her capacity to
parent her children.
The report prepared for the February-March 1991 hearing notes that
appellant was unwilling to engage in counseling until July 1990.
In August, she was sent a list of counseling referrals.
In September, when appellant was again having difficulty securing stable
housing, she was given two referrals to agencies involved with
On this record, we cannot agree that either the reunification
service plan, or services, were inadequate. Appellant raises several arguments
in this regard. (4)
She first challenges the fact that no reunification requirements were
instituted for her until March 1989, almost a year after
she first contacted respondent expressing interest in reunification. This was
not error. At that time reunification services were being provided
John and Sophia's father, from whose custody they had been
removed, and to whom it was hoped the children could
be returned. After a trial return failed in January 1989,
however, appellant was considered for reunification. A reunification plan was
ordered for her at the next review hearing, in March
1989. Services were provided her from this point until the
February-March 1991 hearing, a period of almost two years, and
substantially more than the eighteen-month maximum period delineated in
the juvenile court law. (§
Appellant next argues that the reunification service plan was inadequate
per se, both because it ordered only generic "family reunification
service" and because appellant's primary problem was her chronic low
income. The record does not support these contentions. In June
1989, within three months of the March hearing, Dr. Bess's
initial evaluation of appellant had been prepared. This evaluation was
evidently ordered in an attempt to understand the causes of
appellant's unstable lifestyle, and to tailor the service plan to
her underlying needs. Thereafter, she was provided many referrals for
housing, counseling on budgeting her income, and advice on her
Of more consequence, however, is the evidence that appellant's personality
disorder, and not her problems with income or housing, was
the true *1215
cause of the problems which prevented appellant from adequately caring
for her children.
Dr. Bess testified at the February-March 1991 hearing that his
initial diagnosis of appellant as having a dependent personality disorder,
meant that she had a "life-long pattern of never really
being able to take responsibility for ... herself." This pattern
"tends to reoccur and ... is maladaptive" and allowed others
to take responsibility for decisions about appellant's life. This
disorder, he testified, "interfered with [appellant's] ability to parent her
children" because she would likely be in an unstable living
situation, and tended to be involved in abusive relationships.
Dr. Bess testified that on reevaluating appellant a year later,
he found that things had not changed for her. She
had been unable to establish a stable lifestyle, support herself,
or get involved in counseling, and she was presently unable
to care for her children. In his opinion, the main
problem causing instability in appellant's life was not income, but
her interpersonal relationships. Although appellant's intentions with regard to her
children were good, she had a problem establishing a home
that met their needs. Even assuming she had adequate income,
he would still be concerned with appellant's ability for setting
limits, whether her interpersonal relationship problems would cause her life
to become unstable and abusive towards the children, and the
potential for role reversal; that the children would in fact
assume a parental role in the family. In his opinion,
this pattern was consistent and likely to continue. Although there
was the possibility for some improvement, he was very concerned
about appellant's responsibility toward her children. Appellant's inability to take
initiative, in part, prevented her from caring for her children.
We reject appellant's suggestion that her chronic low income was
the root cause of her inability to find housing. One
social worker testified at the February-March
1991 hearing that in January 1989, respondent applied on appellant's
behalf for housing assistance funds from critical family needs, and
from nonrecurring needs under the AFDC (Aid to Families with
Dependent Children) program. In February, respondent had in hand a
check for housing assistance. Appellant was unable to secure housing,
in spite of financial assistance, however, because of her poor
payment history and her history of evictions. In April, appellant
informed respondent that she had some tax liability, and couldn't
consider renting an apartment at that point. Appellant then moved
in with Steve W., and paid him $300 in rent,
but a week later he threw her out, and she
moved in with her brother and sister- in-law, despite the
domestic violence in that household. She paid her sister-in-law $200
in rent, plus $200 for groceries. She also took a
cab to her *1216
place of employment. Appellant also received several referrals for housing
In early 1990, appellant was living in shared housing, but
conflicts developed between appellant and the other tenants, who depended
on appellant to care for their child. When appellant became
ill and could not provide child care, she was asked
to leave. Because appellant had been diagnosed as having a
dependent personality, respondent attempted to support her in being more
independent. One social worker testified he gave her information and
his judgment on matters and would check back on her
progress, but did not want to "do it for her."
He also testified
he spent an inordinate amount of time with appellant; 50
percent of his entire client contact was with her.
The juvenile court noted that many services had been provided
to appellant over the previous two years, but questioned respondent
on whether it should not have been more assertive in
aiding appellant. Respondent noted that appellant was not only aware
of the resources available to her, but in fact had
been for some time; her contacts with a battered women's
resource stretched back, appellant testified, to 1979. It also noted
that appellant had consistently rejected the idea that she needed
counseling, despite many referrals, and had only three weeks before
the hearing finally engaged in therapy. It argued, we think
correctly, that while lack of housing and income is a
problem, "the main issue is providing the emotional stability that
these children need and the safe environment free from people
who abuse them either physically or sexually." Appellant's real problem,
it argued, was appellant's lack of initiative to take advantage
of the resources she was provided.
The juvenile court concluded, and we agree, that appellant was
provided adequate reunification services. These services were extensive in nature,
were tailored to the problems underlying the dependencies, and were
provided from March 1989 to the February-March 1991 hearing, more
than 18 months after Steve was adjudicated dependent. It is
tragic that appellant's problems prevented successful
reunification. The fault for this failure cannot be laid at
respondent's feet, however.
of the Indian Child Welfare Act
Appellant's final assignment of error is that the Indian Child
Welfare Act (25 U.S.C. § 1903
et seq.; the Act) may be applicable to the underlying
dependency proceedings. She bases this allegation on the May 24,
1990, social worker's report, which noted that appellant "is of
black, German and Creole Indian ethnic heritage. [Appellant] states that
her mother had the *1217
Creole Indian ethnic heritage, but that none of the family
are enrolled on the Creole Indian Tribal Roles [sic]."
Appellant is correct that the Act applies to foster placement
(25 U.S.C. § 1903(1).)
The Act applies only to Indian children, however, defined as
"any unmarried person who is under age eighteen and is
either (a) a member of an Indian tribe or (b)
is eligible for membership in an Indian tribe and is
the biological child of a member of an Indian tribe."
(25 U.S.C. § 1903(4).)
53 Federal Register 52829, which defines the Indian Tribal Entities
recognized by and eligible to receive funding from the United
States Bureau of Indian Affairs (see 25 U.S.C. § 1903(8))
does not include a Creole Indian tribe among those listed.
And as respondent suggests, the term "Creole" is not defined
to include Native American tribal heritage. A brief perusal of
law would have led any investigator of appellant's equivocal description
to conclude, as we do, that on this basis the
Act does not apply to her children.
Petition No. H008929
In her writ petition, which pertains only to Steve, Jr.,
appellant raises three issues: That it was impermissible for the
juvenile court to hold a section 366.22, 18-month review rather
than a section 366.21, 12-month review hearing; that reunification was
inadequate; and that insufficient evidence supports the court's finding that
reasonable services were offered her. Since the writ petition was
filed only after appellant's parental rights were terminated in a
subsequent section 366.26 hearing, however, we will dismiss the writ.
As appellant notes, the issues pertaining to orders made in
section 366.21 and 366.22 hearings relating to Steve Jr., who
was adjudicated dependent after January 1, 1989, are properly raised
by writ petition and are not cognizable on appeal. (In
re Michelle M.
(1992) 4 Cal.App.4th 1024, 1031 [6 Cal.Rptr.2d 172] In
re Amanda B.
(1992) 3 Cal.App.4th 935, 941 [4 Cal.Rptr.2d 922]; § 366.26,
Here, a petition for writ review of the section 366.22
hearing as to Steve, Jr., was filed on October 3,
1991, more than six months following the hearing, and,
according to the petition, after appellant's parental rights to Steve,
Jr., had been severed.
As we note in Michelle
the legislative purpose behind providing writ review of the decisions
made in a section 366.21 or 366.22 hearing is to
allow an appellate court the opportunity to hear issues crucial
to the decision *1218
to move ahead with a permanent plan for a child
who cannot be reunited with his or her parents prior
to the time the subsequent hearing is held. (4 Cal.App.
4th at p. 1031.)
We announced in Michelle
our intention to entertain "only
writ review of termination of reunification issues in section 366.21
and 366.22 hearings, and to entertain that review only if
it is requested in a timely fashion." (4 Cal.App.4th at
p. 1031, italics in original.) Applications for writ review should
be commenced sufficiently early to permit adjudication of issues raised
in the petition before the section 366.26 selection and implementation
hearing is commenced. (4 Cal.App.4th at p. 1031.) While we
are aware that counsel for appellant did not have the
benefit of decisional precedent when the March 1991 order was
made, it makes neither legal nor practical sense for this
court to review issues relating to section 366.21 or 366.22
hearings when her parental rights to Steve, Jr., have already
been terminated, and when he may already be placed with
a new family. Although we do not
invoke the doctrine of laches here, we will dismiss the
The order in appeal No. H008411 is affirmed. The writ
petition, No. H008929, is dismissed.
Capaccioli, Acting P. J., and Premo, J., concurred.
A petition for a rehearing was denied May 15, 1992.