In re A.H.

Filed 8/24/06 In re A.H. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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T.F., mother of the minors, appeals from the judgment of disposition. (Welf. & Inst. Code, §§ 360, subd. (d), 395.)^[1] Appellant contends the juvenile court failed to comply with the notice and substantive provisions of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) Appellant further contends reversal is required because substantial evidence does not support the jurisdictional findings or the order removing the minors from the home.^[2] We affirm.

Facts

In September 2005, the Department of Health and Human Services (DHHS) removed minors A.H., age 11 months, and T.C., age five years, from parental custody due to severe and ongoing domestic violence in the home.^[3]

The detention report stated that the father had been arrested for domestic violence on September 13, 2005. Although he had a history of inflicting serious physical injury on appellant, she allowed the father to return home on his release three days later and refused to cooperate with the prosecution or to get a restraining order or therapy.

Appellant was aware the father had grown up in an atmosphere of violence and believed he was damaged by it. Although there was extensive domestic violence in the home and the father had been arrested multiple times in the last two years, appellant was unwilling to have him leave because she needed his income to afford the rent. Appellant told the social worker she had wanted to work on her marriage and support the father until he completed his anger management program, which he had not yet begun, but now planned to file for a legal separation. Appellant told the social worker she was as guilty of violent behavior as the father, having stabbed him and been verbally abusive toward him.

The court ordered the minors detained. At the detention hearing, the father claimed Cherokee heritage as to A.H. Notices of the proceeding were mailed to the three federally recognized Cherokee tribes and the Bureau of Indian Affairs and received by each tribe and the BIA prior to the jurisdiction/disposition hearing. By the time of the contested hearing, the Cherokee Nation had responded that the minor was not an Indian child.

According to the report for the jurisdiction/disposition hearing, appellant admitted there was ongoing violence between herself and the father which resulted in serious physical injury to her, but minimized the number of times such violence occurred. Appellant explained that she was verbally and physically abusive too, and recounted her own history of significant violent acts, including stabbings and arson. Appellant said that she was the aggressor on some occasions and had stabbed the father on one occasion. By the time of the report in mid-October 2005, appellant stated that the father was no longer living in the home. The father admitted he was not participating in the batterer's treatment program. The father stated that the minors had been present during some of the incidents of violence but also minimized the number of times such incidents had occurred. He stated he had not been involved in domestic violence prior to his relationship with appellant and wanted to separate from her. In addition to the March 2005 incident alleged in the petitions, the report documented another serious incident in April 2005, which involved a vicious beating inflicted upon appellant by the father. Appellant had begun parenting classes and had made some effort to separate herself from the father. DHHS recommended a plan that included therapy and parenting classes for appellant.

At the hearing in November 2005, appellant submitted the matter of jurisdiction on the report. The court sustained the petitions, as amended. Appellant testified that the father had not lived with her for the last month and she had had no contact with him. Appellant stated that the social worker had referred her to counseling. She had previously counseled with Jehovah's Witnesses in the summer of 2005 and was not the instigator of the most recent incident which led to the minors' removal. The juvenile court ordered the minors removed from appellant's custody, noting that the domestic violence in the case was serious, adopted the reunification plan and set a three-month review hearing.

Discussion

I

Appellant contends the court failed to apply the substantive provisions of ICWA at the jurisdiction/disposition hearing and erroneously proceeded as if ICWA was inapplicable to the proceedings. In light of the juvenile court's order returning the minors to appellant (including A.H., as to whom the father claimed Cherokee heritage), the issue is moot.

ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) By its terms, the notice and substantive provisions of ICWA apply only when foster care placement is sought. (25 U.S.C. §§ 1903(1)(i), 1912(a).) Because the juvenile court has returned the minors to appellant and foster care is not sought, the provisions of ICWA are no longer in play. The issue is moot. (Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10 (Finnie).)

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