Department is entitled to terminate rights of Native American parent who repeatedly fails to respond to notice.
Cite as
2001 DJDAR 5197Published
Jul. 9, 2001Filing Date
May 23, 2001Summary
3rd District California Court of Appeal
In April 1999, the Department of Health and Human Services filed a petition that the 19-month old son of William G. was at substantial risk of harm. The Department found that William and his wife had substance abuse problems and kept their home in an unsanitary condition. There were also unsubstantiated reports that William was selling narcotics to juveniles. The department made several attempts to offer William services prior to court intervention, but he failed to appear at the court hearings. In August 2000, a trial court terminated William's parental rights. William argued that he was entitled to reunification services under the Indian Child Welfare Act because he is a member of the Cherokee tribe.
Affirmed. The Indian Child Welfare Act requires that active efforts are made to prevent the breakup of an Indian family. However, services cannot be provided if a parent makes himself unavailable. Because William did not appear at court hearings for almost one year, he was not entitled to reunification services once he did appear. The department made numerous efforts to contact William, satisfying its obligation to make "active efforts" under the act. Certified for partial publication.
— Brian Cardile
In re WILLIAM G., JR.,
a Person Coming Under the
Juvenile Court Law.
DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. WILLIAM G., Defendant and Appellant.
No. C036345 (Super. Ct. No. JD213240) California Court of Appeal Third Appellate District (Sacramento) Filed May 24, 2001
CERTIFIED FOR PARTIAL PUBLICATION*
APPEAL from a judgment of the Superior Court of Sacramento County. Peter S. Helfer, Judge. Affirmed.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.
Robert A. Ryan, Jr., County Counsel, Lilly C. Frawley, Deputy County Counsel, for Plaintiff and Respondent.
William G., Sr., father of the minor William G., Jr., appeals from the termination of his parental rights, contending the juvenile court failed to comply with the Indian Child Welfare Act in numerous respects. (Welf. & Inst. Code, §§ 366.26, 395.) 1 We affirm the judgment.
FACTS A petition was filed by the Department of Health and Human Services (DHHS) in April 1999 alleging the 19-month-old minor was at substantial risk of harm because his mother had a substance abuse problem and the home had exposed electrical wires and other unsafe and unsanitary conditions. Police had been called to the residence on a report that a suspicious subject was possibly selling narcotics to juveniles. Although this report was not substantiated, the minor's mother told the officer that appellant "was probably the person that they were looking for." The mother told the officer that appellant was a methamphetamine and marijuana user and, on occasion, had drugs in the residence. The mother advised the officer that appellant had fled through the bathroom window prior to their arrival.
Several attempts were made to locate appellant to offer him services prior to court intervention. A letter requesting contact for an interview was hand-delivered to appellant's residence. Notice of the detention hearing and a copy of the detention order containing notice of the jurisdictional hearing were delivered to appellant's address. The minor's mother advised the social worker she had seen appellant and "he would probably not be available due to a warrant situation that he believes he has pending."
The social worker's jurisdictional report provided information about appellant's criminal history, which consisted of convictions for burglary, assault, felony driving under the influence of alcohol, and possession of narcotics for which he was on probation. The social worker recommended that a case plan be offered to appellant once his paternity was established, if the court determined this would be in the minor's best interest. 2 Appellant did not appear at the jurisdictional hearing. Reunification services were ordered for the mother but denied for appellant under section 361.5, subdivision (a). 3
At the six-month review hearing, DHHS had not had contact with appellant. Notice of the hearing was sent to him at his last known address. Appellant did not appear at the hearing. The court set a section 366.26 hearing.
Appellant was served with notice of the section 366.26 hearing in December 1999 while in custody. In March 2000, appellant appeared at the scheduled section 366.26 hearing and informed the court that he was of Cherokee heritage. He also advised the court that he had been diagnosed four months earlier with a bipolar disorder and was on medication. The court continued the matter to assure compliance with the Indian Child Welfare Act (the Act).
At the next hearing, the court appointed counsel for appellant and ordered that notice of the proceedings be sent to the Cherokee Nation in Oklahoma. At a subsequent hearing, appellant's counsel provided the court with a declaration of paternity signed by both parents. Appellant requested that visitation be assessed, which the court denied in the absence of a section 388 petition. Appellant did not file a section 388 petition and did not make any further requests for visitation.
The Cherokee Nation filed a notice of intervention, setting forth its determination that the minor was an Indian child. At a hearing in June 2000, the tribe asserted there had not been compliance with the "active efforts" requirement of the Act because appellant was not offered a treatment plan when he initially appeared in the proceedings. Appellant's attorney argued that the court could not proceed with the section 366.26 hearing because the testimony of an Indian expert was required and there was not evidence beyond a reasonable doubt before the court "that termination should occur."
In a written pretrial statement, appellant asserted the Act had not been complied with "in terms of having expert testimony proffered by the Department to establish the evidence necessary to terminate his parental rights . . . ." Appellant contended that there was "very little information [before the court] about [appellant] or his ability to care for his son" and that DHHS needed to assess him in order to "find the information necessary" to terminate parental rights. Additionally, appellant again asserted that he had not been "offered the opportunity to participate in any services" and he requested the opportunity to reunify with the minor. Appellant indicated his intent to testify at the hearing and to call his sister and the social worker as witnesses.
In August 2000, an addendum to the social worker's section 366.26 report was filed. Attached to the addendum was an "ICWA Report" prepared by Dr. Wynne DuBray, which included a statement of Dr. DuBray's qualifications and expertise in the area of Indian child welfare. Dr. DuBray's evaluation was based on court documents and other reports made available by DHHS, as well as discussions with the social worker. In a letter to the social worker, Dr. DuBray stated the information contained in the documents was sufficient for an adequate evaluation of the case.
Under the assessment section of the report, Dr. DuBray stated: "After examining the court reports and other supporting documents it appears that both biological parents are gravely impaired by both substance abuse and the fathers [sic] mental illness. Both have criminal backgrounds and behavior which has placed the minor at risk of great harm. Both parents have been on probation and/or parole and the father will be on probation until January 6, 2002. Neither parent appears able to provide a safe and protective environment for this minor." Dr. DuBray concluded: "The violent criminal history, substance abuse and mental illness of one of the parents in this case appear to provide evidence beyond a reasonable doubt that termination of parental rights for this child would not be detrimental."
On August 11, 2000, at the section 366.26 hearing, appellant and the tribe objected to termination of parental rights because appellant had not been offered reunification services. Appellant did not object to the absence of expert testimony and did not present any of his own witnesses.
The court found by clear and convincing evidence that the minor would be adopted and that termination of parental rights would not be detrimental. The court also stated: "Based on Dr. DuBray's report, . . . I do find beyond a reasonable doubt that continued custody by the parent is likely to result in serious emotional or physical damage to the child . . . ." The court continued: "[T]he Court found that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the break up of the Indian family and the efforts were unsuccessful. In fact, in this case, no reunification services were offered to the father." The court terminated parental rights and set a future hearing to consider placement in compliance with the Act.
DISCUSSION
I Appellant first contends the trial court was required to provide him reunification services once the tribe determined the minor was an Indian child. Respondent makes numerous arguments as to why appellant is not entitled to relief. Since we will find that DHHS's efforts to notify and involve appellant in the proceedings satisfy the requirements of the Act, we do not address respondent's other arguments.
The Act requires that "[a]ny party seeking . . . termination of parental rights to . . . an Indian child under state law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." (25 U.S.C. § 1912(d).) "A tribe's determination that the child is or is not a member of or eligible for membership in the tribe is conclusive." (Cal. Rules of Court, rule 1439(g)(1) [further undesignated rule references are to the California Rules of Court].)
Appellant does not contend that attempts to notify him of the dependency proceedings were inadequate, and the record would not support such a contention. DHHS delivered to appellant's residence an offer to provide services prior to any court intervention. When appellant did not respond, DHHS delivered to his residence notices of the juvenile court proceedings which had been initiated. Again, he did not respond. The minor's mother told DHHS that she had seen appellant and that he "would probably not be available" to DHHS because he had an outstanding warrant and, we may infer, he did not want to risk being arrested. This demonstrates that defendant was aware of the opportunities to receive services but decided to avoid them.
Instead, he argues that, even though he did not appear in the proceedings for close to a year, he was entitled to reunification services once he appeared. We do not agree.
The Act requires that active efforts be made to provide services, not that services be provided regardless of when a parent becomes available to receive those services. Even had DHHS known of the minor's Indian heritage, they would not have been able to provide services to appellant during the period of reunification because he chose to make himself unavailable. Assuming that DHHS was required to show compliance with the "active efforts" requirement for a period prior to when they became aware the Act might apply, we find that their repeated attempts to contact appellant and to notify him of the proceedings satisfy the requirement.
Appellant argues his request for services should not be deemed untimely because the Act provides that a parent "may petition any court of competent jurisdiction to invalidate [an] action [for termination of parental rights] upon a showing that such action violated" other specified provisions including the "active efforts" requirement. (25 U.S.C. § 1914.) Appellant's Indian heritage was not known to DHHS or the juvenile court until after the reunification period had ended. Once he advised the juvenile court of his heritage, the court required compliance with the Act. As appellant has failed to show that the Act was violated, his argument as to timeliness fails.
[This Part Is Not Certified for Publication]
II Appellant argues that the court erred in denying him visitation, citing section 366.21, subdivision (h). Section 366.21, subdivision (h), provides that when a court sets a hearing pursuant to section 366.26, "[t]he court shall continue to permit the parent or legal guardian to visit the child pending the hearing unless it finds that visitation would be detrimental to the child." (Italics added.) Thus, while the statute provides for the continuation of visitation after reunification services have been terminated, it does not require that visitation commence when it was not occurring prior to the termination of services.
Appellant had not had visitation with the minor since the minor was placed in protective custody. He did not make his request to be assessed for visitation until the date scheduled for the section 366.26 hearing. We find that appellant was not entitled to visitation under section 366.21, subdivision (h), at this stage of the proceedings. Furthermore, the appeal is from an order terminating parental rights. It is unlikely that visitation would have changed the outcome of this case, in that the record does not show an "exceptional situation existed to forego adoption." (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
Appellant also asserts he should have been allowed visitation under the "active efforts" provision of the Act, discussed previously, and that "denial of visitation may well have interfered with and/or prevented appellant from qualifying for the section 366.26, subdivision (c)(1)(A) exception to parental rights termination which requires regular visitation and contact." This argument is without merit. Appellant had not visited or requested to visit the minor for close to a year, even after receiving notice that DHHS was seeking termination of his parental rights. Appellant appeared for the first time at the section 366.26 hearing. It was simply too late to establish "regular contact" with the minor.
III Appellant claims that the report of Dr. DuBray does not qualify as testimony as required by the Act, that appellant's failure to object to the report does not waive the issue on appeal, and that the evidence was insufficient to establish beyond a reasonable doubt that parental custody would result in serious emotional or physical damage to the child.
The Act provides: "No termination of parental rights may be ordered in [any involuntary] proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." (25 U.S.C. § 1912(f).)
Rule 1439(m)(2) contains parallel provisions and, additionally, provides: "Stipulation by the parent or Indian custodian or failure to object may waive the requirement of producing evidence of the likelihood of serious damage only if the court is satisfied that the party has been fully advised of the requirements of the Act, and has knowingly, intelligently and voluntarily waived them." (Rule 1439(m)(2).)
Appellant does not dispute Dr. DuBray's report was evidence and could be considered by the court. It is well-settled that the content of material in a social worker's report is competent evidence and may be considered for the truth of the matters asserted. (§ 366.26, subd. (b); In re Malinda S. (1990) 51 Cal.3d 368, 373; In re Diana G. (1992) 10 Cal.App.4th 1468, 1481.) Instead, appellant asserts the Act requires expert "testimony" and that no testimony was presented at the section 366.26 hearing. Respondent concedes Dr. DuBray's written report does not constitute "testimony" and, for purposes of this case, we assume there is a distinction between "testimony" and "evidence." Although appellant failed to object to the lack of expert testimony, he argues this did not effect a waiver under rule 1439(m)(2). We disagree.
Prior to the filing of Dr. DuBray's written report, appellant objected to the absence of testimony by an Indian expert. Thus, the record establishes appellant was "fully advised" of this requirement, as he demanded compliance with it. In light of appellant's previous insistence on expert testimony, his silence in this regard once Dr. DuBray's report was filed could only be understood by the juvenile court as acquiescence to proceed without such testimony. (Cf. In re Urayna L. (1999) 75 Cal.App.4th 883, 886; People v. Kenner (1990) 223 Cal.App.3d 56, 62.) Under the circumstances presented here, his silence constituted a knowing, voluntary and intelligent waiver as required under Rule 1439(m)(2). We do not read the language in rule 1439(m)(2) requiring the court to be "satisfied" that the waiver is knowing, voluntary and intelligent as mandating that the court make an express finding to this effect, particularly when, as here, such waiver is clear from the record. 4
Appellant also claims that the failure to hold a hearing "may have" resulted in a due process violation. Although expert testimony was not presented at the section 366.26 hearing, it is clear from the record that appellant was aware he could insist upon such testimony. It is also clear appellant was aware he could present witnesses; he filed a pretrial statement indicating that he intended to do so. It is equally evident that a hearing was held at which appellant was represented by counsel, who had an opportunity to make arguments on appellant's behalf. We can find no due process violation on this record.
Appellant also claims DHHS failed to establish proof beyond a reasonable doubt that continued parental custody would result in serious damage to the minors. According to appellant, the evidence was insufficient because Dr. DuBray failed to conclude that parental custody would result in serious physical or emotional damage to the minor. We disagree.
"In reviewing the findings of the trial court made pursuant to the [Act], we must decide if the record contains supporting evidence which is reasonable, credible and of solid value. 'Consequently we "employ[] the substantial evidence test by which we review the record in a light most favorable to the judgment and must uphold the trial court's findings unless it can be said that no rational factfinder could reach the same conclusion."'" (In re Michael G. (1998) 63 Cal.App.4th 700, 715-716, citations omitted.)
Dr. DuBray's assessment was that both parents had backgrounds that had placed the minor "at risk of great harm" and that "both biological parents are gravely impaired by both substance abuse and the fathers [sic] mental illness." The assessment stated further: "Neither parent appears able to provide a safe and protective environment for this minor." He found beyond a reasonable doubt that termination of parental rights would not be detrimental to the minor. This assessment, which was unchallenged by appellant in the juvenile court, provided a sufficient basis for the court's determination that return to appellant's custody was likely to result in serious physical or emotional damage to the minor. Although the Act requires that the determination be supported by expert testimony, it is the court's province, not the expert's, to make the determination.
IV Finally appellant argues his counsel was ineffective for failing to file a section 388 petition seeking reunification services and visitation, and for failing to object to the absence of expert testimony.
For purposes of this appeal, we presume the statutory right to competent counsel conferred by section 317.5 entitles one to judicial review of an ineffective assistance of counsel claim on appeal. (In re Kristin H. (1996) 46 Cal.App.4th 1635.) In making this claim, the burden is on appellant to establish both that counsel's representation fell below prevailing professional norms and that in the absence of counsel's failings a more favorable result was reasonably probable. (Cf. People v. Ledesma (1987) 43 Cal.3d 171, 215-218; Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 698].) On review, we are required to exercise deferential scrutiny; that is, we may not second-guess counsel's reasonable tactical decisions. (People v. Ledesma, supra, 43 Cal.3d 171, 216.) We examine the record to determine if there is any explanation for the challenged aspects of representation. If the record sheds no light on why counsel failed to act in the manner challenged, the case is affirmed "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation . . . ." (People v. Pope (1979) 23 Cal.3d 412, 426.)
With regard to counsel's failure to file a section 388 petition, appellant directs us to nothing in the record that would satisfy his burden to establish a claim of ineffective assistance of counsel. Glaringly absent from the record is anything from which to conclude that appellant could have prevailed on a section 388 petition. This gaping hole could well explain counsel's failure to file such a petition, though the record is equally silent on this issue.
Similarly, there is no basis in the record for us to conclude that counsel was not acting with reasonable competence in not requiring live testimony nor is there any basis for us to find it reasonably probable a more favorable determination would have resulted from such testimony. The most obvious rationale for counsel's decision is that the written report of the expert was adverse to appellant and live testimony would have served only to amplify and emphasize the expert's negative conclusions. Under these circumstances, we conclude counsel's decision was tactical and did not constitute ineffective assistance of counsel.
[End of Part Not Certified for Publication]
DISPOSITION The order of the juvenile court is affirmed.
We concur:
SCOTLAND, P.J.
SIMS, J.
* Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts II through IV of the Discussion.
1 Further unspecified statutory references are to this code.
2 Section 361.5, subdivision (a), provides, in part: "Upon a finding and declaration of paternity by the juvenile court or proof of a prior declaration of paternity by any court of competent jurisdiction, the juvenile court may order services for the child and the biological father, if the court determines that the services will benefit the child."
3 See footnote 2, above.
4 An argument can be made that the waiver required under Rule 1439(m)(2) pertains more generally to the requirement of producing evidence to support the necessary findings, not specifically to the requirement for expert testimony. It is unnecessary to resolve this issue, here, because appellant's waiver is dispositive.
DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. WILLIAM G., Defendant and Appellant.
No. C036345 (Super. Ct. No. JD213240) California Court of Appeal Third Appellate District (Sacramento) Filed May 24, 2001
CERTIFIED FOR PARTIAL PUBLICATION*
APPEAL from a judgment of the Superior Court of Sacramento County. Peter S. Helfer, Judge. Affirmed.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.
Robert A. Ryan, Jr., County Counsel, Lilly C. Frawley, Deputy County Counsel, for Plaintiff and Respondent.
William G., Sr., father of the minor William G., Jr., appeals from the termination of his parental rights, contending the juvenile court failed to comply with the Indian Child Welfare Act in numerous respects. (Welf. & Inst. Code, §§ 366.26, 395.) 1 We affirm the judgment.
FACTS A petition was filed by the Department of Health and Human Services (DHHS) in April 1999 alleging the 19-month-old minor was at substantial risk of harm because his mother had a substance abuse problem and the home had exposed electrical wires and other unsafe and unsanitary conditions. Police had been called to the residence on a report that a suspicious subject was possibly selling narcotics to juveniles. Although this report was not substantiated, the minor's mother told the officer that appellant "was probably the person that they were looking for." The mother told the officer that appellant was a methamphetamine and marijuana user and, on occasion, had drugs in the residence. The mother advised the officer that appellant had fled through the bathroom window prior to their arrival.
Several attempts were made to locate appellant to offer him services prior to court intervention. A letter requesting contact for an interview was hand-delivered to appellant's residence. Notice of the detention hearing and a copy of the detention order containing notice of the jurisdictional hearing were delivered to appellant's address. The minor's mother advised the social worker she had seen appellant and "he would probably not be available due to a warrant situation that he believes he has pending."
The social worker's jurisdictional report provided information about appellant's criminal history, which consisted of convictions for burglary, assault, felony driving under the influence of alcohol, and possession of narcotics for which he was on probation. The social worker recommended that a case plan be offered to appellant once his paternity was established, if the court determined this would be in the minor's best interest. 2 Appellant did not appear at the jurisdictional hearing. Reunification services were ordered for the mother but denied for appellant under section 361.5, subdivision (a). 3
At the six-month review hearing, DHHS had not had contact with appellant. Notice of the hearing was sent to him at his last known address. Appellant did not appear at the hearing. The court set a section 366.26 hearing.
Appellant was served with notice of the section 366.26 hearing in December 1999 while in custody. In March 2000, appellant appeared at the scheduled section 366.26 hearing and informed the court that he was of Cherokee heritage. He also advised the court that he had been diagnosed four months earlier with a bipolar disorder and was on medication. The court continued the matter to assure compliance with the Indian Child Welfare Act (the Act).
At the next hearing, the court appointed counsel for appellant and ordered that notice of the proceedings be sent to the Cherokee Nation in Oklahoma. At a subsequent hearing, appellant's counsel provided the court with a declaration of paternity signed by both parents. Appellant requested that visitation be assessed, which the court denied in the absence of a section 388 petition. Appellant did not file a section 388 petition and did not make any further requests for visitation.
The Cherokee Nation filed a notice of intervention, setting forth its determination that the minor was an Indian child. At a hearing in June 2000, the tribe asserted there had not been compliance with the "active efforts" requirement of the Act because appellant was not offered a treatment plan when he initially appeared in the proceedings. Appellant's attorney argued that the court could not proceed with the section 366.26 hearing because the testimony of an Indian expert was required and there was not evidence beyond a reasonable doubt before the court "that termination should occur."
In a written pretrial statement, appellant asserted the Act had not been complied with "in terms of having expert testimony proffered by the Department to establish the evidence necessary to terminate his parental rights . . . ." Appellant contended that there was "very little information [before the court] about [appellant] or his ability to care for his son" and that DHHS needed to assess him in order to "find the information necessary" to terminate parental rights. Additionally, appellant again asserted that he had not been "offered the opportunity to participate in any services" and he requested the opportunity to reunify with the minor. Appellant indicated his intent to testify at the hearing and to call his sister and the social worker as witnesses.
In August 2000, an addendum to the social worker's section 366.26 report was filed. Attached to the addendum was an "ICWA Report" prepared by Dr. Wynne DuBray, which included a statement of Dr. DuBray's qualifications and expertise in the area of Indian child welfare. Dr. DuBray's evaluation was based on court documents and other reports made available by DHHS, as well as discussions with the social worker. In a letter to the social worker, Dr. DuBray stated the information contained in the documents was sufficient for an adequate evaluation of the case.
Under the assessment section of the report, Dr. DuBray stated: "After examining the court reports and other supporting documents it appears that both biological parents are gravely impaired by both substance abuse and the fathers [sic] mental illness. Both have criminal backgrounds and behavior which has placed the minor at risk of great harm. Both parents have been on probation and/or parole and the father will be on probation until January 6, 2002. Neither parent appears able to provide a safe and protective environment for this minor." Dr. DuBray concluded: "The violent criminal history, substance abuse and mental illness of one of the parents in this case appear to provide evidence beyond a reasonable doubt that termination of parental rights for this child would not be detrimental."
On August 11, 2000, at the section 366.26 hearing, appellant and the tribe objected to termination of parental rights because appellant had not been offered reunification services. Appellant did not object to the absence of expert testimony and did not present any of his own witnesses.
The court found by clear and convincing evidence that the minor would be adopted and that termination of parental rights would not be detrimental. The court also stated: "Based on Dr. DuBray's report, . . . I do find beyond a reasonable doubt that continued custody by the parent is likely to result in serious emotional or physical damage to the child . . . ." The court continued: "[T]he Court found that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the break up of the Indian family and the efforts were unsuccessful. In fact, in this case, no reunification services were offered to the father." The court terminated parental rights and set a future hearing to consider placement in compliance with the Act.
DISCUSSION
I Appellant first contends the trial court was required to provide him reunification services once the tribe determined the minor was an Indian child. Respondent makes numerous arguments as to why appellant is not entitled to relief. Since we will find that DHHS's efforts to notify and involve appellant in the proceedings satisfy the requirements of the Act, we do not address respondent's other arguments.
The Act requires that "[a]ny party seeking . . . termination of parental rights to . . . an Indian child under state law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." (25 U.S.C. § 1912(d).) "A tribe's determination that the child is or is not a member of or eligible for membership in the tribe is conclusive." (Cal. Rules of Court, rule 1439(g)(1) [further undesignated rule references are to the California Rules of Court].)
Appellant does not contend that attempts to notify him of the dependency proceedings were inadequate, and the record would not support such a contention. DHHS delivered to appellant's residence an offer to provide services prior to any court intervention. When appellant did not respond, DHHS delivered to his residence notices of the juvenile court proceedings which had been initiated. Again, he did not respond. The minor's mother told DHHS that she had seen appellant and that he "would probably not be available" to DHHS because he had an outstanding warrant and, we may infer, he did not want to risk being arrested. This demonstrates that defendant was aware of the opportunities to receive services but decided to avoid them.
Instead, he argues that, even though he did not appear in the proceedings for close to a year, he was entitled to reunification services once he appeared. We do not agree.
The Act requires that active efforts be made to provide services, not that services be provided regardless of when a parent becomes available to receive those services. Even had DHHS known of the minor's Indian heritage, they would not have been able to provide services to appellant during the period of reunification because he chose to make himself unavailable. Assuming that DHHS was required to show compliance with the "active efforts" requirement for a period prior to when they became aware the Act might apply, we find that their repeated attempts to contact appellant and to notify him of the proceedings satisfy the requirement.
Appellant argues his request for services should not be deemed untimely because the Act provides that a parent "may petition any court of competent jurisdiction to invalidate [an] action [for termination of parental rights] upon a showing that such action violated" other specified provisions including the "active efforts" requirement. (25 U.S.C. § 1914.) Appellant's Indian heritage was not known to DHHS or the juvenile court until after the reunification period had ended. Once he advised the juvenile court of his heritage, the court required compliance with the Act. As appellant has failed to show that the Act was violated, his argument as to timeliness fails.
[This Part Is Not Certified for Publication]
II Appellant argues that the court erred in denying him visitation, citing section 366.21, subdivision (h). Section 366.21, subdivision (h), provides that when a court sets a hearing pursuant to section 366.26, "[t]he court shall continue to permit the parent or legal guardian to visit the child pending the hearing unless it finds that visitation would be detrimental to the child." (Italics added.) Thus, while the statute provides for the continuation of visitation after reunification services have been terminated, it does not require that visitation commence when it was not occurring prior to the termination of services.
Appellant had not had visitation with the minor since the minor was placed in protective custody. He did not make his request to be assessed for visitation until the date scheduled for the section 366.26 hearing. We find that appellant was not entitled to visitation under section 366.21, subdivision (h), at this stage of the proceedings. Furthermore, the appeal is from an order terminating parental rights. It is unlikely that visitation would have changed the outcome of this case, in that the record does not show an "exceptional situation existed to forego adoption." (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
Appellant also asserts he should have been allowed visitation under the "active efforts" provision of the Act, discussed previously, and that "denial of visitation may well have interfered with and/or prevented appellant from qualifying for the section 366.26, subdivision (c)(1)(A) exception to parental rights termination which requires regular visitation and contact." This argument is without merit. Appellant had not visited or requested to visit the minor for close to a year, even after receiving notice that DHHS was seeking termination of his parental rights. Appellant appeared for the first time at the section 366.26 hearing. It was simply too late to establish "regular contact" with the minor.
III Appellant claims that the report of Dr. DuBray does not qualify as testimony as required by the Act, that appellant's failure to object to the report does not waive the issue on appeal, and that the evidence was insufficient to establish beyond a reasonable doubt that parental custody would result in serious emotional or physical damage to the child.
The Act provides: "No termination of parental rights may be ordered in [any involuntary] proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." (25 U.S.C. § 1912(f).)
Rule 1439(m)(2) contains parallel provisions and, additionally, provides: "Stipulation by the parent or Indian custodian or failure to object may waive the requirement of producing evidence of the likelihood of serious damage only if the court is satisfied that the party has been fully advised of the requirements of the Act, and has knowingly, intelligently and voluntarily waived them." (Rule 1439(m)(2).)
Appellant does not dispute Dr. DuBray's report was evidence and could be considered by the court. It is well-settled that the content of material in a social worker's report is competent evidence and may be considered for the truth of the matters asserted. (§ 366.26, subd. (b); In re Malinda S. (1990) 51 Cal.3d 368, 373; In re Diana G. (1992) 10 Cal.App.4th 1468, 1481.) Instead, appellant asserts the Act requires expert "testimony" and that no testimony was presented at the section 366.26 hearing. Respondent concedes Dr. DuBray's written report does not constitute "testimony" and, for purposes of this case, we assume there is a distinction between "testimony" and "evidence." Although appellant failed to object to the lack of expert testimony, he argues this did not effect a waiver under rule 1439(m)(2). We disagree.
Prior to the filing of Dr. DuBray's written report, appellant objected to the absence of testimony by an Indian expert. Thus, the record establishes appellant was "fully advised" of this requirement, as he demanded compliance with it. In light of appellant's previous insistence on expert testimony, his silence in this regard once Dr. DuBray's report was filed could only be understood by the juvenile court as acquiescence to proceed without such testimony. (Cf. In re Urayna L. (1999) 75 Cal.App.4th 883, 886; People v. Kenner (1990) 223 Cal.App.3d 56, 62.) Under the circumstances presented here, his silence constituted a knowing, voluntary and intelligent waiver as required under Rule 1439(m)(2). We do not read the language in rule 1439(m)(2) requiring the court to be "satisfied" that the waiver is knowing, voluntary and intelligent as mandating that the court make an express finding to this effect, particularly when, as here, such waiver is clear from the record. 4
Appellant also claims that the failure to hold a hearing "may have" resulted in a due process violation. Although expert testimony was not presented at the section 366.26 hearing, it is clear from the record that appellant was aware he could insist upon such testimony. It is also clear appellant was aware he could present witnesses; he filed a pretrial statement indicating that he intended to do so. It is equally evident that a hearing was held at which appellant was represented by counsel, who had an opportunity to make arguments on appellant's behalf. We can find no due process violation on this record.
Appellant also claims DHHS failed to establish proof beyond a reasonable doubt that continued parental custody would result in serious damage to the minors. According to appellant, the evidence was insufficient because Dr. DuBray failed to conclude that parental custody would result in serious physical or emotional damage to the minor. We disagree.
"In reviewing the findings of the trial court made pursuant to the [Act], we must decide if the record contains supporting evidence which is reasonable, credible and of solid value. 'Consequently we "employ[] the substantial evidence test by which we review the record in a light most favorable to the judgment and must uphold the trial court's findings unless it can be said that no rational factfinder could reach the same conclusion."'" (In re Michael G. (1998) 63 Cal.App.4th 700, 715-716, citations omitted.)
Dr. DuBray's assessment was that both parents had backgrounds that had placed the minor "at risk of great harm" and that "both biological parents are gravely impaired by both substance abuse and the fathers [sic] mental illness." The assessment stated further: "Neither parent appears able to provide a safe and protective environment for this minor." He found beyond a reasonable doubt that termination of parental rights would not be detrimental to the minor. This assessment, which was unchallenged by appellant in the juvenile court, provided a sufficient basis for the court's determination that return to appellant's custody was likely to result in serious physical or emotional damage to the minor. Although the Act requires that the determination be supported by expert testimony, it is the court's province, not the expert's, to make the determination.
IV Finally appellant argues his counsel was ineffective for failing to file a section 388 petition seeking reunification services and visitation, and for failing to object to the absence of expert testimony.
For purposes of this appeal, we presume the statutory right to competent counsel conferred by section 317.5 entitles one to judicial review of an ineffective assistance of counsel claim on appeal. (In re Kristin H. (1996) 46 Cal.App.4th 1635.) In making this claim, the burden is on appellant to establish both that counsel's representation fell below prevailing professional norms and that in the absence of counsel's failings a more favorable result was reasonably probable. (Cf. People v. Ledesma (1987) 43 Cal.3d 171, 215-218; Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 698].) On review, we are required to exercise deferential scrutiny; that is, we may not second-guess counsel's reasonable tactical decisions. (People v. Ledesma, supra, 43 Cal.3d 171, 216.) We examine the record to determine if there is any explanation for the challenged aspects of representation. If the record sheds no light on why counsel failed to act in the manner challenged, the case is affirmed "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation . . . ." (People v. Pope (1979) 23 Cal.3d 412, 426.)
With regard to counsel's failure to file a section 388 petition, appellant directs us to nothing in the record that would satisfy his burden to establish a claim of ineffective assistance of counsel. Glaringly absent from the record is anything from which to conclude that appellant could have prevailed on a section 388 petition. This gaping hole could well explain counsel's failure to file such a petition, though the record is equally silent on this issue.
Similarly, there is no basis in the record for us to conclude that counsel was not acting with reasonable competence in not requiring live testimony nor is there any basis for us to find it reasonably probable a more favorable determination would have resulted from such testimony. The most obvious rationale for counsel's decision is that the written report of the expert was adverse to appellant and live testimony would have served only to amplify and emphasize the expert's negative conclusions. Under these circumstances, we conclude counsel's decision was tactical and did not constitute ineffective assistance of counsel.
[End of Part Not Certified for Publication]
DISPOSITION The order of the juvenile court is affirmed.
NICHOLSON, J.
We concur:
SCOTLAND, P.J.
SIMS, J.
* Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts II through IV of the Discussion.
1 Further unspecified statutory references are to this code.
2 Section 361.5, subdivision (a), provides, in part: "Upon a finding and declaration of paternity by the juvenile court or proof of a prior declaration of paternity by any court of competent jurisdiction, the juvenile court may order services for the child and the biological father, if the court determines that the services will benefit the child."
3 See footnote 2, above.
4 An argument can be made that the waiver required under Rule 1439(m)(2) pertains more generally to the requirement of producing evidence to support the necessary findings, not specifically to the requirement for expert testimony. It is unnecessary to resolve this issue, here, because appellant's waiver is dispositive.
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