DEPARTMENT OF HUMAN SERVICES, v. S. N.,

Filed 4/7/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from an order of the Superior Court of Kern County. Robert J. Anspach, Judge.

Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant and Appellant.

B.C. Barmann, County Counsel, and Susan M. Gill, Deputy County Counsel, for Plaintiff and Respondent.

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Appellant S. N. (mother) appeals from the juvenile court's order denying her telephone visitation with her son J. Mother contends the court erred in denying her telephone visitation and failing to ask her whether she had any Indian heritage, as required for purposes of the Indian Child Welfare Act (ICWA) (25 U.S.C. §§ 1901 et seq.). While we will find the court did not abuse its discretion in denying visitation, we agree the court erred in failing to ask mother about her Indian heritage. Accordingly, we will remand the matter with directions.

FACTUAL AND PROCEDURAL BACKGROUND

On June 24, 2005, the Kern County Department of Human Services (Department) filed a petition alleging that then 10-year-old J., who was living with his maternal grandparents, came within the court's jurisdiction pursuant to Welfare and Institutions Code section 300, subdivisions (b) (failure to protect), (c) (serious emotional damage) and (i) (cruelty).^[1] It was alleged that J.'s father (father) failed to provide J. with adequate food, clothing, shelter or medical treatment, as father refused to allow J. to reside in his home and instead J. lived with his maternal grandparents in a filthy, roach-infested home, which smelled of urine, and he had been locked in a bedroom and forced to urinate in a coffee can. It was further alleged J. had suffered, or there was a substantial risk he would suffer, serious physical harm as a result of father's failure or inability to adequately supervise or protect J. from the actions of J.'s maternal grandparents as (1) his grandfather spanked J. with a nylon strap on the buttocks and legs, grabbed J. by his arm, resulting in two bruises, and stuffed a t-shirt in J.'s mouth to prevent him from crying; (2) J. had been locked in a bedroom and forced to urinate in a coffee can while in J. M.'s care; and (3) J. was left for long periods of time with his grandmother, P. M., who had suffered a stroke and was legally blind. The petition also alleged J. suffered serious emotional damage evidenced by severe anxiety, depression, or withdrawal, as J. cut himself as a result of father's refusal or unwillingness to provide care for J. or to allow him to reside in his home.

In May 1996, when J. was nearly 20 months old, he was the subject of a dependency proceeding following the death of his three-year-old sister S. At that time J. and S. were living with their four-year-old sister P., mother and her boyfriend. On May 7, 1996, a petition was filed on behalf of J. and P., alleging: (1) mother's substance abuse impaired her ability to protect the children as she allowed her boyfriend to physically abuse them; (2) mother and her boyfriend subjected the children to acts of cruelty, as the children were held under cold running water for extended periods of time; (3) mother reversed the lock on P.'s bedroom door, locking her in the room with no way out; (4) S. died as a result of severe physical abuse by mother and her boyfriend; (5) P. had numerous contusions and lacerations all over her body, which either mother, or her boyfriend with mother's knowledge, caused; and (6) father used controlled substances, was in drug rehabilitation and could not provide care for the children. The allegations were sustained and family reunification services ordered for father, while mother was denied family reunification services. The court ordered no contact between mother and the children, although she was allowed to maintain contact through correspondence with the Department.

In October 1996, mother pled no contest to willful cruelty to a child and voluntary manslaughter and was sentenced to 12 years in state prison. Father received reunification services until June 1997, when the children were placed with him. Father then received family maintenance services until November 1998, when dependency proceedings were dismissed.

About two years before the instant petition was filed, father took J. to his maternal grandparents' home to live. Prior to that time, J. and P. stayed with their grandparents over weekends, as their father worked odd hours. Before the detention hearing, father told the social worker he would not be interested in having J. released to him at this time because J. had extreme behavioral problems; he pulled knives out on his sister and did not behave properly at home while in father's care. Father admitted he could not handle his son. They had gone through counseling and tried medication, but nothing seemed to work. J. had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and was taking Ritalin. J. was also taking Adderal and Risperidol for the ADHD and was receiving services from Kern County Mental Health.

When the petition was filed in the instant case, mother was still incarcerated. She had not seen J. in nine years, although she had spoken to him weekly, by telephone, since he had been living with her parents.^[2] According to mother, J. did not visit her during her incarceration because the juvenile court made a no-contact order when J. was previously a dependent. Mother expected to be released from prison on November 2, 2006, after serving ten years, six months of her sentence. During her incarceration, she participated in parenting, substance abuse, victim impact self-awareness, narcotics anonymous and mental health groups focusing on domestic violence. Mother claimed there was domestic violence during her relationship with father, that she started divorce proceedings in June 1995, and the divorce was finalized in June 2000.

At the June 27, 2005, detention hearing, the court ordered J. detained and placed him in foster care. Father was given supervised visitation of one hour per week, at J.'s discretion. The court did not specifically address visitation for mother at this hearing, although the minute order states that if the â€