In re R.M. CA4/1

Filed 5/22/14 In re R.M. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re R.M., a Person Coming Under the
Juvenile Court Law.
D065035
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. J518455)
Plaintiff and Respondent,

v.

ABEL Q.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Cynthia

Bashant, Judge. Affirmed.

Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and

Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
 Abel Q. appeals an order terminating reunification services in the juvenile

dependency case of his minor daughter, R.M. He contends (1) the juvenile court did not

comply with the notice provisions of the Indian Child Welfare Act (ICWA), title 25

United States Code section 1901 et seq.; (2) the juvenile court abused its discretion by not

requiring notice to a nonfederally recognized Indian tribe under Welfare and Institutions

Code, section 306.6;1 and (3) substantial evidence does not support the juvenile court's

finding under section 366.21, subdivision (g), that reasonable reunification services had

been provided to him. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On June 29, 2012, the San Diego County Health and Human Services Agency (the

Agency) petitioned the juvenile court under section 300, subdivision (a), on behalf of

four-month-old R.M. The Agency alleged that Abel had beaten R.M.'s mother, Elizabeth

M., in R.M.'s presence. During the beating, Abel kicked R.M.'s stroller, causing it to hit a

wall. Elizabeth was taken to a hospital, where she was treated for cuts to her mouth and

bruising on her face, eyes, lips, and nose. Abel was arrested at the scene by police, and

Elizabeth obtained a criminal protective order prohibiting Abel from contacting or

approaching her.

Abel and Elizabeth had a history of domestic violence. According to Elizabeth,

Abel had previously slapped Elizabeth, thrown things at her, and raped her. The Agency

had been providing voluntary services to Abel and Elizabeth at the time of the beating.

1 All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
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Abel and Elizabeth failed to comply with those services or their safety plan. The Agency

therefore concluded there was a substantial risk that R.M. would suffer serious physical

harm in the future as a result of the ongoing violence between Abel and Elizabeth. At the

detention hearing, the court found that the Agency had made a prima facie showing under

section 300, subdivision (a), and ordered R.M. detained in out-of-home care.

At the jurisdiction and disposition hearing, Elizabeth submitted on the Agency's

allegations. The court sustained the petition, declared R.M. a dependent of the court,

removed her from Elizabeth's custody, and ordered reunification services for Elizabeth.

R.M. was placed in a confidential foster home.

Because Abel was considered an alleged father, the court did not order

reunification services for him. Abel remained in jail on charges related to the beating.

An Agency social worker visited Abel and learned that he had participated in a

videotaped anger management class there. Able would also be required to complete two

52-week courses on child abuse and domestic violence upon his release. The Agency

provided referrals to a domestic violence treatment group, parenting education, and

individual therapy. The Agency deferred any visitation between Abel and R.M. until the

court determined that Abel was R.M.'s presumed father.

Paternity testing later revealed Abel to be R.M.'s biological father. The court

amended the petition to reflect that fact. The court authorized visitation between Abel

and R.M. according to the rules of the facility where Abel was incarcerated. The record

does not reflect whether any such visitations occurred.

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 At the six-month review hearing, the court found that Elizabeth was making

progress with her case plan and that R.M. would likely be returned to her. The court

extended reunification services for Elizabeth. Abel was not present at the hearing, and it

appears the Agency was having difficulty locating him. The minutes of that hearing

reflect the court's finding that "THE AGENCY HAS EXERCISED DUE DILIGENCE IN

TRYING TO LOCATE THE MINOR'S FATHER."

Abel was released from jail soon after the six-month review hearing. Abel went to

the Agency unannounced and received referrals for parenting and domestic violence

classes. Abel also contacted Elizabeth, in violation of her criminal protective order, and

Elizabeth agreed to see him. While dropping R.M. off for an unsupervised visitation,

R.M.'s foster mother observed bruising on Elizabeth and contacted the Agency. An

Agency social worker went to the unsupervised visitation and discovered that Abel was

there as well. The social worker told Abel he was violating the protective order and

asked him to leave. After resisting initially, Abel did so.

Abel spoke with the social worker the next day. Abel said he simply wanted to

see R.M., but the social worker explained that any visits had to be arranged through the

Agency because of safety concerns. The social worker told Abel that any visitation

would have to be separate from Elizabeth given the protective order. Abel was informed

that his violation of the protective order had been reported to his federal probation

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officer.2 The social worker provided Abel with the telephone number of his counsel and

recommended that he seek out domestic violence groups in his area. The Agency again

provided referrals to domestic violence and parenting classes and told him to contact an

additional service provider, South Bay Community Services. The Agency also set a time

and place for weekly supervised visitations between Abel and R.M. Visitation occurred

somewhat regularly over the ensuing weeks. Abel began attending parenting classes and

expressed interest in a domestic violence group.

Two months later, in April 2013, Abel requested that the court order reunification

services for him. The court found that Abel was R.M.'s presumed father, granted Abel's

request, and ordered the Agency to provide services and a case plan through the 12-

month review hearing. Following the court's order, the Agency filed a proposed case

plan that included Abel. The case plan provided for a number of substantive service

objectives, as well as participation in a domestic violence program, general counseling,

and parenting education. The court approved the case plan, and the Agency mailed the

plan and service referrals to Abel.

The next week, an Agency social worker attempted to contact Abel and spoke with

a case manager at Abel's residence. The case manager reported that Abel had not

followed up on the referrals, but he had attended parenting classes for the past two weeks.

The case manager said Abel was in danger of losing his residency there because he had

quit his job. Employment was a condition of the residence.

2 Abel was on federal probation based on a 2010 conviction for smuggling
undocumented immigrants.
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 Within a few days, Abel was arrested at the Agency's offices for violating his

federal parole. His arrest stemmed from his earlier violation of the criminal protective

order. For the next two months, the Agency attempted to find where Abel was

incarcerated, but was unable to do so. The Agency eventually found Abel and attempted

to meet with him.

This time, Abel was incarcerated for approximately five months. Prison officials

reported that Abel attended two sessions of a life skills class, though he did not start until

several months into his incarceration. Other services were not offered at that facility at

that time due to a lack of volunteer leaders.

After Abel's release, he met with an Agency social worker, who discussed his case

plan with him and provided a list of parenting and domestic violence resources. Abel

requested that visitation be resumed, and he later began attending a parenting class. The

Agency and Abel's case manager attempted to enroll him in a domestic violence class as

well.

At the 12-month review hearing, the Agency recommended that Abel's

reunification services be terminated. The Agency opined that his participation in services

was inconsistent, both inside and outside of prison, and he had not made progress in his

case plan. The Agency determined that Elizabeth had made substantial progress and

recommended that she receive an additional six months of services. The juvenile court

adopted the Agency's recommendations, ordered six more months of services for

Elizabeth, and terminated services for Abel.

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 The juvenile court also determined that ICWA did not apply to R.M.'s case and

that reasonable efforts had been made to determine whether R.M. was an Indian child.

Elizabeth did not claim any Indian heritage. Abel told the Agency at the outset of R.M.'s

case that he may have some Indian heritage, but he could not identify a tribe. Abel did

not know if any family members had been registered or eligible for enrollment with a

tribe. No family members spoke an Indian language or participated in Indian cultural or

political affairs. Neither Abel nor his parents lived on an Indian reservation or received

services from a tribe.

Abel later stated that his ancestry may include the federally-recognized Navajo

Tribe, as well as the Capistrano, Juaneño, and "Geronimo" Tribes. The Agency provided

notice of R.M.'s dependency proceedings to the Bureau of Indian Affairs (BIA) and the

Navajo Nation. The BIA confirmed that the Agency had established R.M.'s potential

tribal affiliation and referred the agency to the tribe. The Navajo Nation's response stated

that the Agency had provided insufficient information to determine R.M.'s tribal status.

A number of months later, the Agency renoticed the BIA, the Navajo Nation, and the

United States Department of the Interior. The Navajo Nation could not find any record of

Abel's family and therefore determined that R.M. was not enrolled or eligible for

enrollment with the Navajo Nation.

DISCUSSION

I

Abel first contends the juvenile court erred by not complying with the notice

requirements of ICWA. Abel argues that his reference to the "Geronimo" Tribe should

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have been interpreted as a reference to the Apache people because Geronimo was a well-

known Apache warrior in American history. (See, e.g., Geronimo v. Obama (D.D.C.

2010) 725 F.Supp.2d 182, 184 [referring to Geronimo as "the legendary Apache

warrior"].) Abel maintains that such a reference was sufficient to require notice of R.M.'s

dependency case to each federally-recognized Apache Tribe.

"The ICWA protects the interests of Indian children and promotes the stability and

security of Indian tribes and families." (In re Desiree F. (2000) 83 Cal.App.4th 460,

469.) ICWA furthers these goals by establishing certain substantive and procedural

standards for dependency proceedings involving an Indian child and by requiring notice

to interested Indian tribes of their right to participate in such proceedings. (In re K.P.

(2009) 175 Cal.App.4th 1, 4-5.) "The ICWA requires notice be given pursuant to its

terms whenever 'the court knows or has reason to know' the child is an Indian child. (25

U.S.C. § 1912(a).)" (In re Joseph P. (2006) 140 Cal.App.4th 1524, 1529.)

Under ICWA, " 'Indian child' means any unmarried person who is under [18] 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).)

"The circumstances that may provide reason to know the child is an Indian child include,

but are not limited to, the following: [¶] (1) A person having an interest in the

child . . . provides information suggesting the child is a member of a tribe or eligible for

membership in a tribe or one or more of the child's biological parents, grandparents, or

great-grandparents are or were a member of a tribe. [¶] (2) The residence or domicile of

the child, the child's parents, or Indian custodian is in a predominantly Indian community.

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[¶] (3) The child or the child's family has received services or benefits from a tribe or

services that are available to Indians from tribes or the federal government, such as the

Indian Health Service." (§ 224.3, subd. (b); see also Cal. Rules of Court, rule

5.481(b)(3).)

California courts have interpreted " 'reason to know' " as " 'reason to believe.' " (In

re Joseph P., supra, 140 Cal.App.4th at p. 1529.) We "have set a low threshold to trigger

the notice requirements of the federal law." (Ibid.) "A minimal showing that the child

may be an Indian child is all that is required." (Id. at p. 1530.) "The determination of a

child's Indian status is up to the tribe; therefore, the juvenile court needs only a

suggestion of Indian ancestry to trigger the notice requirement. [Citations.] Both the

court and the county welfare department have an affirmative duty to inquire whether a

dependent child is or may be an Indian child. [Citation.]" (In re Nikki R. (2003) 106

Cal.App.4th 844, 848.) Notice need not be given, however, "if there is insufficient

reason to believe a child is an Indian child . . . ." (In re Shane G. (2008) 166 Cal.App.4th

1532, 1538; see also In re O.K. (2003) 106 Cal.App.4th 152, 157.)

Here, Abel claimed heritage in the "Geronimo" Tribe through his mother and

grandfather. However, Abel did not know if any family members had been registered or

eligible for enrollment with a tribe. No family members spoke an Indian language,

participated in Indian cultural or political affairs, attended an Indian school, lived on an

Indian reservation, or received services from an Indian tribe.

On this record, there was not sufficient reason to believe that R.M. was either (a) a

member of a federally-recognized Apache Tribe or (b) eligible for membership in a

9
federally-recognized Apache Tribe and the biological child of a member of such a tribe.

(See 25 U.S.C. § 1903(4).) Abel's reference to the "Geronimo" Tribe does not

necessarily and directly evoke the Apache people, nor does it reflect that Abel (and thus

R.M.) had any relationship with any Apache Tribe. The vagueness of Abel's claim alone

counsels against requiring notice here. (See In re O.K., supra, 106 Cal.App.4th at p. 157

["This information was too vague and speculative to give the juvenile court any reason to

believe the minors might be Indian children."].) Nothing in the record shows that Abel

intended to claim ancestry in an Apache Tribe through his reference to a "Geronimo"

Tribe. Neither Abel nor his counsel brought up the possibility, in the juvenile court, that

"Geronimo" might reference the Apache people. Under these circumstances, we

conclude the court was not required to order ICWA notice to the Apache Tribes.

We note that the Agency did not ignore R.M.'s potential Indian heritage. The

Agency spoke with Abel and Elizabeth about their ancestry and provided ICWA notice

both to the federal government (BIA and U.S. Dept. of the Interior) and to the only

federally-recognized tribe identified by Abel (the Navajo). Moreover, in its notice to the

BIA, the Agency stated that Abel claimed ancestry in the nonrecognized Capistrano,

Juaneño, and "Geronimo" Tribes.

In light of our conclusion, we need not consider whether ICWA notice would have

been necessary had Abel's reference to the "Geronimo" Tribe been equated with one or

more of the federally-recognized Apache Tribes. (Compare In re Z.N. (2009) 181

Cal.App.4th 282, 298 [notice not required where mother stated that "one of her

grandmothers 'was Cherokee' and another 'part Apache' (tribes unidentified)"] with In re

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Damian C. (2009) 178 Cal.App.4th 192, 199 [notice required where mother stated she

may have Pasqua Yaqui ancestry and maternal grandfather stated his father may have

been Yaqui or Navajo].)

II

Abel further contends that the juvenile court erred by not ordering notice on the

Juaneño Band of Mission Indians (Juaneño Band). Abel concedes that the Juaneño Band

is not currently recognized by the federal government. The juvenile court therefore had

no obligation under ICWA to provide notice. (See In re K.P., supra, 175 Cal.App.4th at

pp. 5-6.) However, Abel argues that the juvenile court abused its discretion under section

306.6 by not ordering notice on the Juaneño Band. We disagree.

Section 306.6, subdivision (a) provides, in relevant part, as follows: "In a

dependency proceeding involving a child who would otherwise be an Indian

child, . . . but is not an Indian child based on status of the child's tribe, . . . the court may

permit the tribe from which the child is descended to participate in the proceeding upon

request of the tribe." "By its terms, the statute does not require that any notice be sent to

a nonrecognized tribe. [Citation.] Further, the statute specifically does not apply either

notice provisions found in the ICWA or provisions in state law implementing notice

provisions of the ICWA to this situation. [Citation.]" (In re A.C. (2007) 155 Cal.App.4th

282, 286-287.) "It is apparent that in enacting section 306.6, the Legislature had in mind

the notice and substantive provisions of the ICWA but specifically chose not to require

any notice beyond that already required by the ICWA, i.e., notice to federally recognized

Indian tribes." (Id. at p. 287.)

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 Because section 306.6 does not require notice to a nonrecognized tribe, the

juvenile court here did not err in not ordering such notice. (See In re A.C., supra, 155

Cal.App.4th at p. 287.) Abel's claim that the Juaneño Band is currently seeking federal

recognition and his reliance on a handout from the Judicial Council of California's

Administrative Office of the Courts3 do not affect this analysis or its application here.

III

Abel also contends the court erred in finding that the Agency had provided

reasonable reunification services to Abel. Abel argues that the Agency's contact with

him while incarcerated was inconsistent and that Abel had no real opportunity to work

through his case plan.

"The legislative scheme contemplates immediate and intensive support services to

reunify a family where a dependency disposition removes a child from parental custody."

(In re John B. (1984) 159 Cal.App.3d 268, 274.) "Reunification services need not be

perfect. [Citation.] But they should be tailored to the specific needs of the particular

family. [Citation.] Services will be found reasonable if the [Agency] has '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

3 Administrative Office of the Courts, Center for Families, Children, and the Courts,
Following the Spirit of the Indian Child Welfare Act (ICWA) (undated)
(as of May 19,
2014).
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difficult (such as helping to provide transportation . . . ).' [Citation.]" (In re Alvin R.

(2003) 108 Cal.App.4th 962, 972-973.)

"[I]n reviewing the reasonableness of the reunification services provided by the

[Agency], we must also recognize that in most cases more services might have been

provided, and the services which are provided are often imperfect. The standard is not

whether the services provided were the best that might have been provided, but whether

they were reasonable under the circumstances." (Elijah R. v. Superior Court (1998) 66

Cal.App.4th 965, 969 (Elijah R.).)

"When a finding that reunification services were adequate is challenged on appeal,

we review it for substantial evidence." (In re Alvin R., supra, 108 Cal.App.4th at p. 971.)

We view the evidence in the light most favorable to the Agency and draw all reasonable

inferences in support of the juvenile court's finding. (Ibid.; see also In re Misako R.

(1991) 2 Cal.App.4th 538, 545.)

Here, Abel was initially found to be R.M.'s alleged father. "Only a presumed

father, however, is entitled to reunification services." (Glen C. v. Superior Court (2000)

78 Cal.App.4th 570, 584.) Abel was not found to be a presumed father until nine months

into R.M.'s dependency case, when he requested services. Nonetheless, the Agency had

been providing him with services pursuant to a voluntary case plan for over a year prior

to that point, as well as specific referrals to additional resources during R.M.'s

dependency case. These services included domestic violence classes and parenting

education.

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 When Abel was declared R.M.'s presumed father, the Agency drafted a formal

case plan for Abel addressing the reasons for R.M.'s removal, including components such

as domestic violence and parenting classes. Abel does not argue the substantive

components of the case plan were inadequate, and we conclude they were reasonable

under the circumstances.

The Agency mailed the case plan and appropriate service referrals to Abel. The

next week, the Agency attempted to contact Abel by telephone. Abel was not available,

but the Agency spoke to the case manager at Abel's residence about his participation in

services. Two days later, Abel was arrested for his earlier violation of the criminal

protective order requiring him to stay away from Elizabeth. The Agency was unable to

reach Abel during the first two months of his incarceration, but the record shows that the

Agency made reasonable efforts to locate him. These efforts included searching for Abel

on the Federal Bureau of Prisons Web site, contacting Abel's federal probation officer,

and attempting to telephone the United States Marshal's Service several times.

When the Agency located Abel, a social worker went to Abel's facility to visit him

but was unable to do so. The facility required the social worker to submit a written

request for visitation. The social worker complied, but the facility does not appear to

have responded. The social worker then called the facility twice, eventually determining

that Abel had been transferred to another facility. The social worker contacted the

second facility and obtained information about the services available and Abel's

participation. Although the facility offered weekly life skills classes, Abel did not begin

attending until several months into his incarceration there. When Abel was released, he

14
met with an Agency social worker about his case plan. Abel received referrals to services

again, and the Agency attempted to enroll him in a domestic violence course.

Abel claims the services he was provided were "neither immediate nor intensive."

(See In re Kristin W. (1990) 222 Cal.App.3d 234, 254.) But the record shows that the

Agency immediately provided Abel with an appropriate case plan and referrals after the

court ordered reunification services. The Agency then appropriately followed up with

telephone contact. The Agency's efforts were interrupted by Abel's own incarceration for

violation of the criminal protective order. Abel's subsequent inability to access the

Agency's services or proceed with his case plan was therefore the result of his own

actions. (See Elijah R., supra, 66 Cal.App.4th at p. 971 ["By his own actions, [father]

thus placed himself out of the reach of any meaningful rehabilitative services which the

[Agency] could have provided."].) Moreover, while incarcerated, Abel did not fully take

part in the services available to him.

When Abel was released, the Agency promptly began providing its services again.

The fact that there was insufficient time left in Abel's case plan was again the result of his

own actions that resulted in his five-month incarceration. (Elijah R., supra, 66

Cal.App.4th at p. 971.) Contrary to Abel's claim, the fact that R.M.'s mother, Elizabeth,

was provided further services, while Abel's services were terminated, does not

demonstrate error. The circumstances of the two parents were materially different.

Substantial evidence supports the trial court's finding that reasonable services had been

provided to Abel.

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 DISPOSITION

The order is affirmed.

MCCONNELL, P. J.

WE CONCUR:

BENKE, J.

AARON, J.

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