Crystal and Jonathan further argue that in view of the San Diego Health and Human Services Agency's (Agency's) newly imposed service requirement on Jonathan to participate in conjoint therapy with Jonathan, Jr. (J.C.)[ 3 ], the social worker's unprofessional behavior and bias against them, and the Agency's failure to complete a timely investigation into allegations of sexual abuse, the trial court erred when it found that reasonable services were offered or provided to them. They also maintain the court erred when it found that the children were not Indian children within the meaning of ICWA.
We conclude the prolonged sexual abuse investigation in this case did not violate Jonathan's and Crystal's rights to substantive and procedural due process and equal protection. At the time the sexual abuse allegations surfaced, the children had been adjudicated dependents of the court on other grounds and were in the temporary custody of the state. Thus, the children's interests in protection from sexual abuse outweighed the delay, if any, to the parents' interest in regaining custody of the children at the six-month review hearing. Moreover, the Agency's failure to file a subsequent petition under section 342 did not deprive Jonathan and Crystal of the opportunity to litigate the Agency's contention the allegations of sexual abuse constituted substantial detriment to the children at the six-month review hearing. Further, the lack of a subsequent petition may have accrued to the parents' benefit. With respect to their equal protection claim, Jonathan and Crystal do not show the delayed investigation resulted from an improper classification of their status or the state's decision to treat them differently from other similarly situated parents.
We also conclude the denial of access to the social worker's and Ombudsman's confidential records did not deprive Jonathan and Crystal of due process of law. At the six-month review hearing, neither parent objected to the admission of the initial six-month status review report or sought to cross-examine the social worker. We further conclude the court did not err when it found that reasonable services were offered or provided to the parents. However, we reverse the finding the children were not Indian children within the meaning of ICWA, and we remand the case for ICWA compliance, if still required in view of the family's current circumstances.
FACTUAL AND PROCEDURAL BACKGROUND
Crystal and Jonathan are the parents of three children: J.C., now age 12; Ian, now six; and A.C., now five years old. In November 2008 the Agency detained the children in protective custody after it learned Jonathan had slammed J.C.'s head on a glass table top and hit him on his back several times, causing injuries. Jonathan reported that he was on medication for depression and did "`not know what he was doing.'"
Crystal was hospitalized at the time of the incident that led to the children's dependency proceedings. Crystal suffered from chronic health conditions, and relied on Jonathan to administer her prescription medications. Initially the Agency asked Jonathan to leave the home and did not detain the children in protective custody. However, when Jonathan moved out of the family home, Crystal overdosed on her medications and was hospitalized. Medical personnel determined the overdose was accidental.
On December 9, 2008, the trial court (Judge Yvonne Campos) sustained petitions filed under section 300, subdivision (a) (physical abuse) with respect to J.C., and section 300, subdivision (j) (substantial risk) with respect to Ian and A.C. The court found that the children were not Indian children within the meaning of ICWA.[ 4 ]
Social worker Donielle Cohen believed the parents needed to stabilize their mental and physical health before the children could safely be returned to their care. The family had a history of homelessness and child welfare referrals. In 1998 a pediatrician stated two-month-old J.C. had lost weight since birth, and Crystal might need parenting education and in-home support services. In 2007 a social worker substantiated a child welfare referral for general neglect of Ian and A.C. When the social worker had arrived at the home, she was unable to rouse the parents, who were sleeping. The home was in disarray. Ian and A.C. were in a room blocked by a protective gate. Sippy cups were tied to their necks with shoelaces. J.C. appeared to be developmentally delayed.
The Agency developed a reunification plan for the family. Crystal's case plan included participating in a parenting education program and individual therapy, and to undergo psychological and medication evaluations if recommended by her therapist. Cohen recommended Jonathan participate in individual therapy, complete a psychological evaluation, and attend parenting education and anger management programs.
Social worker Bridget Ikponmwosa was assigned to the case on or about December 24, 2008.
In late May 2009, social worker Ikponmwosa prepared a report for the six-month status review hearing scheduled for June 2 (June 2 report or Ikponmwosa's report). She stated 10-year-old J.C. had special needs. Although J.C. had been detained with his siblings, the Agency moved him to a treatment level foster home because of his aggressive behaviors, which included biting, hitting, kicking other children and spitting on them. J.C. purposely banged his head on a glass kitchen table at the foster home, and attempted to strangle Ian and a foster brother. At school, the principal was concerned by reports about J.C.'s inappropriate behavior with girls. J.C. was below the grade level expected of a 10-year-old, and his assessment for an Individualized Education Plan (IEP) was pending.
Ian, then age five, was placed in a treatment level foster home where he received weekly in-home services, behavior modification and play therapy. On one occasion, Ian pushed A.C. down the stairs, bruising her nose and upper lip area. His developmental assessment was normal. Four-year-old A.C. was meet
ing developmental milestones and appeared to be stable and happy.
Crystal and Jonathan completed a parenting education program, and Jonathan also completed an anger management program. According to Jonathan's therapist, Jonathan made good progress in therapy and expressed remorse for injuring his son.
In the six-month report, Ikponmwosa referred to a "treatment plan update dated 5/4/2009" from Crystal's therapist. Ikponmwosa stated the update was attached to her report. However, the only report from the therapist that was included in the June 2 report was Crystal's initial assessment, dated January 11, 2009. Ikponmwosa quoted the January 11 assessment without reporting the correct date. The January 11 assessment stated, "`[a]lthough Mrs. [C.] acknowledges the facts of the case, she demonstrates limited insight into the protective issues re: CWS involvement with her family.'" The therapist also stated Crystal had made some progress managing her medications but still depended on her husband to monitor them.
Ikponmwosa concluded that the parents made moderate progress in meeting the goals of their case plans but they had not gained any insight into the negative effects of Jonathan's behaviors on his family. She recommended the children remain in out-of-home placement with continued reunification services.
Crystal and Jonathan challenged the contents of the June 2 report and set the matter for trial.
On June 19, 2009, Jonathan, through his attorney Kevin Lemieux, subpoenaed Ikponmwosa's personnel and related disciplinary records, including but not limited to allegations of misconduct or unprofessional behavior, complaints, performance evaluations, and reports, complaints or files in the control of the Ombudsman. Jonathan asserted the materials were relevant to impeach Ikponmwosa in her capacity as an expert witness. The Agency delivered the subpoenaed records to the trial court on June 23.
At a pretrial status conference on June 23, 2009, the Agency informed the court Ikponmwosa was on medical leave and her supervisor, Gigi Burns, was prepared to appear at trial. Burns offered to review the report with Jonathan and Crystal and check the facts they believed were inaccurately reported. The trial court encouraged the parents to meet with Burns.
The trial court questioned whether the motion for the production of documents was similar to a Pitchess motion in criminal proceedings.[ 5 ] The court asked the parties for further briefing on the issue. At the second pretrial status conference, the court stated it did not intend to create an "analogous Pitchess-style scenario"[ 6 ] for social workers. However, the court was concerned about the fundamental fairness of denying a parent's request to access material that might call into question a social worker's credibility, such as prior instances of dishonesty or a pattern of misstatements. The court directed Lemieux to file an affidavit stating his specific allegations against Ikponmwosa and to provide points and authorities establishing a legal basis for his request for the records.
During a pretrial hearing in July 2009, the Agency disclosed it was investigating a new referral alleging the children had been sexually abused by the parents prior to their removal from the home.[ 7 ] The court scheduled the contested six-month review hearing for September 10, 2009, a continuance of more than six weeks.
On July 22, 2009, Lemieux filed a motion for discovery seeking Ikponmwosa's personnel file and related records under Code of Civil Procedure section 2017.010 et seq. and California Rules of Court,[ 8 ] rule 5.546. On August 11, Lemieux filed a supplement to his motion for discovery and included an affidavit in which he averred Ikponmwosa's report contained false or inaccurate statements concerning the parents' interactions with their children. Specifically, he complained Ikponmwosa stated Jonathan was not telephoning the children but omitted the fact that she had limited Jonathan's contact with the children to in-person visits; Ikponmwosa lied to her supervisor about the number of times she had personally supervised the parents' visits with the children; and Ikponmwosa had twice accused the parents of being racists after they raised concerns about the children's placement with a Spanish-speaking foster family. Lemieux averred he was informed complaints about Ikponmwosa had been made by a foster parent of the children and the children's paternal grandmother, and by other participants in unrelated cases. He asserted these complaints would tend to show, or might lead to evidence that would show, Ikponmwosa's propensity to fabricate or falsify her court reports.
The Agency opposed the motion for discovery of the social worker's and Ombudsman's confidential records and filed a motion to quash the subpoena duces tecum.
On September 2, 2009, the trial court (Judge Martin W. Staven) determined there was not a sufficient showing the requested personnel record was relevant to the issues before the court at a six-month status review hearing. He ruled the party seeking the record did not show the release of the record would be of any benefit to the children or the parents, and therefore the need for the record was outweighed by the delay, invasion of privacy and the chilling effect of its disclosure. In addition, producing the Ombudsman's records was problematic because of the likelihood their disclosure would release other dependency records in violation of section 827. The court quashed the subpoena and found that the materials were not otherwise discoverable.
The contested six-month status review hearing was held on September 10, 2009. Ikponmwosa and Burns were both present. Ikponmwosa's report of June 2 and Burns's addendum report of September 10 were entered in evidence without objection.
Burns testified she was the case supervisor. Usually her responsibility involved meeting with the social worker every month to discuss the case. However, because Ikponmwosa went on medical leave on June 9, and the case was in transition to a new social worker, Burns decided to manage the case herself. Burns was aware of Crystal and Jonathan's complaints about Ikponmwosa and she had worked with them to resolve the issues. With respect to the parents' complaints about inaccuracies in the June 2 report, she had offered to review the report with them, but they did not contact her for that purpose.
Burns stated she needed to interview Crystal and Jonathan about the sexual abuse allegations before the parents could make any further progress toward family reunification. The Agency would not expand the parents' visitation until the child abuse investigation was complete and the Agency had services in place to address any identified risk factors. Burns had been scheduled to interview Crystal and Jonathan the previous day, but the meeting did not take place due to a misunderstanding with their attorneys. Burns acknowledged the parents had asked her for an interview on July 27 and she did not interview them at that time. During her testimony, Burns declined to answer specific questions about the results of the children's forensic interviews concerning the sexual abuse allegations.
Burns reported that the parents were physically affectionate with the children during visits and the children appeared to be happy to see their parents. However, Burns was concerned by Crystal and Jonathan's practice of holding Ian and A.C. in their laps during visits. Burns testified kissing, hugging and sitting on a parent's lap did not constitute sexual abuse, but the parents' frequent physical contact with the children did not promote healthy boundaries for the children. Other than this concern, the Agency did not identify any safety issues during the children's supervised visits with their p
The Agency had not allowed Crystal to have unsupervised visits for several reasons. In addition to the unresolved sexual abuse allegations, Crystal's therapist stated Crystal needed to demonstrate an increased awareness of the children's protective issues. Burns believed Crystal needed to show she was able to be a protective parent by setting limits and boundaries for Jonathan. Crystal could do this by having separate supervised visits with the children and reinforcing limits if Jonathan "happened to show up at one of her scheduled visits."
According to his therapist, Jonathan accepted responsibility for physically abusing J.C. and had met three of his six therapeutic goals. Burns stated Jonathan needed to develop a safety plan and implement the plan during separate supervised visitation with the children. In addition, Jonathan had not yet participated in conjoint therapy with J.C.
All three children were receiving therapeutic services. J.C. was diagnosed with attention deficit hyperactivity disorder (ADHD) and possible obsessive compulsive disorder. He lacked appropriate boundary skills with female school employees and would fondle them and rub his head against their breast area. J.C. was now taking psychotropic medication, and was doing better. He was not ready for conjoint therapy. Ian inappropriately touched a foster sister and intentionally urinated on the floor of his bedroom.
Burns believed the parents had made substantial progress with their case plans but they had not fully mitigated the initial protective risk to the children, which remained high. To further mitigate the risk, Crystal and Jonathan needed to cooperate with the child abuse investigation and apply the skills they acquired in their parenting classes during visitation.
The parents did not call Ikponmwosa, or any other witness, to testify.
The trial court found return to the parents' care would create a substantial risk of detriment to the children because Jonathan had not completed several elements of his therapeutic plan, the parents needed to participate in separate supervised visitation with the children, and Jonathan and J.C. had yet to participate in conjoint therapy. The court found that reasonable services were provided to the parents.
APPELLATE MOTIONS AND ORDERS
On February 26, 2010, the Agency filed a motion to augment the record with reports filed with the court for the 12-month status review hearing, and for judicial notice of certified copies of minute orders issued November 30, 2009, and January 27 and February 4, 2010. The Agency argues the proposed augmented material shows this appeal has been rendered moot by the trial court's order on February 4 returning the children to the custody of their parents.
The parents oppose the motion on the ground augmenting the record contravenes In re Zeth S. (2003) 31 Cal.4th 396, 412-413 (Zeth S.), and the material is not relevant to the issues raised on appeal. Crystal asserts the February 4, 2010, minute order is materially incorrect and was modified by a nunc pro tunc order issued March 2, 2010, which she attached to her opposition.
On March 22, 2010, this court ordered the opposed motion to augment the record and for judicial notice to be considered concurrently with the appeal. We grant the motion to take judicial notice of the minute orders of November 30, 2009, and January 27 and February 4, 2010. (Evid. Code, §§ 452, subd. (d), 459.) On our own motion, we take judicial notice of the minute order dated March 2, 2010. (Ibid.) We deny the motion to augment the record with the reports prepared by the Agency for the 12-month status review hearing, whose specific contents were subject to challenge and may or may not have been fully accepted by the trial court. (Zeth S., supra, 31 Cal.4th at pp. 400, 405.)