In re Aleena S.

Filed 8/14/07 In re Aleena S. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Christopher J. Sheldon, Judge. Affirmed in part and reversed in part with directions.

Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.

Konrad S. Lee, under appointment by the Court of Appeal, for Minor.

Defendant and appellant Shauna D. (mother) is the mother of the minor Aleena S. Mother challenges the juvenile courts orders taking jurisdiction over Aleena pursuant to Welfare and Institutions Code section 358,^[1]denying reunification services to mother, and removing Aleena from mothers custody. Specifically, mother argues: 1) the Department of Public Social Services (DPSS) failed to provide proper notice under the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.); 2) the courts findings under section 361.5, subdivision (b)(10) are not supported by substantial evidence and, in any case, the court abused its discretion when it denied reunification services to mother; and 3) substantial evidence does not support the removal order. As discussed below, we order a conditional reversal to allow DPSS to comply with the ICWA notice requirements, but affirm in all other respects.

Statement of Facts and Procedure

Aleena was born in early July 2006. DPSS detained Aleena about three weeks later, after a social worker discovered that Aleenas father (father) was living in the home, in spite of the significant history of domestic violence. Father had been arrested for felony spousal abuse against mother in December 2005, and again just a few days before Aleena was born. Father had been in the home when the social worker made an initial visit when Aleena was two weeks old, but mother stated that he was her cousin and falsely denied that father was responsible for a broken window and door frame on the front of the home.

At the detention hearing held on August 2, 2006, father signed and filed Judicial Council Form JV-130 indicating he may have Indian ancestry. The social worker later reported that father believed his mother may be a registered tribal member and that ICWA noticing had been completed.

The jurisdiction/disposition hearing was held on September 18, 2006. The juvenile court had before it the social workers report, which indicated that mothers two older children (Aleenas half siblings) had been detained in June 2005 because of severe neglect, that reunification services had been terminated on August 8, 2006,^[2]and that mother herself had been adjudicated a dependant and was in out-of-home care for three years until she aged out of the system in 2002. At the hearing, the juvenile court found the allegations in the section 300 petition to be true^[3]and placed Aleena in foster care. The court also ordered family reunification services for father based on his lack of prior history with DPSS, but denied them to mother under section 361.5, subdivision (b)(10), because she had failed to reunify with Aleenas half siblings. The court found that the ICWA may apply to this case. This appeal followed.

Discussion

1. Indian Child Welfare Act

Mother contends the juvenile courts orders should be reversed because there is no indication in the record that DPSS fulfilled its notice duties under the ICWA.

The purpose of the ICWA is, of course, to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families. (25 U.S.C. 1902; In re Karla C. (2003) 113 Cal.App.4th 166, 173-174.) The ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource. (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.)

The provisions of the ICWA, which are said to be the highest standard of protection for Indian children, apply to child custody proceeding[s], including a proceeding for temporary or long-term foster care or guardianship placement, termination of parental rights, preadoptive placement after termination of parental rights, or adoptive placement. ( 224.1, subd. (c).) Under the ICWA, child custody proceeding includes foster care placement which shall mean any action removing an Indian child from its parent . . . for temporary placement in a foster home . . . where the parent . . . cannot have the child returned upon demand, but where parental rights have not been terminated. (25 U.S.C. 1903(1).) No proceeding shall be held until at least 10 days after receipt of notice by the parent, Indian custodian, the tribe, or the Bureau of Indian Affairs, except for the detention hearing, provided that notice of the detention hearing shall be given as soon as possible after the filing of the petition initiating the proceeding and proof of the notice is filed with the court within 10 days after the filing of the petition. ( 224.2, subd. (d).) The court, county welfare department, and the probation department have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300, 601, or 602 is to be, or has been, filed is or may be an Indian child in all dependency proceedings and in any juvenile wardship proceedings if the child is at risk of entering foster care or is in foster care. ( 224.3, subd. (a).) The Indian childs tribe and Indian custodian have the right to intervene at any point in an Indian child custody proceeding. ( 224.4.)

Where the court knows or has reason to know that an Indian child is involved, the agency is required to notify the childs Indian tribe, or if the tribe is unknown, the Bureau of Indian Affairs, of the pending proceedings and the tribes right to intervene. (25 U.S.C. 1912(a); In re Samuel P. (2002) 99 Cal.App.4th 1259, 1265.) The Indian status of the child need not be certain in order to trigger the notice requirements. (In re Jonathan D. (2001) 92 Cal.App.4th 105, 110.) In all such circumstances, the court must seek verification of the childs status from either the childs tribe or the Bureau of Indian Affairs. Whether the minor actually is an Indian child is an issue for one or the other of those entities to determine. (In re Junious M. (1983) 144 Cal.App.3d 786, 792, 794.)

Here, father filed Judicial Council Form JV-130 (Parental Notification of Indian Status) with the juvenile court at the detention hearing, indicating he may have Indian ancestry. However, as DPSS concedes, the record contains no indication that DPSS complied with the ICWA notice provisions. Thus, a conditional reversal of the jurisdiction and disposition orders is appropriate to permit the relevant inquiries to be made. (See In re Francisco W. (2006) 139 Cal.App.4th 695, 704-711.)

2. Reunification Services

Mother also argues that the juvenile court should have ordered DPSS to offer her reunification services because: 1) substantial evidence does not support the courts order denying services; and 2) assuming there is substantial evidence, the court still abused its discretion when it denied services.

The court has discretion to deny reunification services when parental rights to a sibling or half sibling were permanently severed and the court finds by clear and convincing evidence that the parent has not made a reasonable effort to treat the problems that lead to the siblings removal. ( 361.5, subd. (b)(10).) If the court makes this finding, it may order reunification services only if it is in the best interests of the child. ( 361.5, subd. (c).) The standard of review is substantial evidence.

A. Substantial Evidence of Reasonable Effort

Here, mother does not challenge the juvenile courts findings that she failed to reunify with Aleenas two half siblings. However, she does argue that the siblings case arose largely because of [a] burn to [one of the siblings] leg, [t]hat was not the problem in this case (rather, the domestic violence between the parents was the problem here), and the record contains no credible evidence that [mother] had failed to make reasonable efforts to treat the problem in [the siblings] case. In other words, mother argues that Aleenas half siblings were removed largely because of a single instance of abuse toward one of the siblings, there was no such abuse in the present case toward Aleena, and mother made reasonable efforts to address the causes of the abuse toward the half siblings.

However, as DPSS points out, the juvenile court took jurisdiction over the half siblings because of both abuse and severe neglect, not a single instance of abuse against just one of them. The siblings, then eight months and 20 months old, were removed from mother when she was five months pregnant with Aleena. The social workers detention report for the half siblings indicates the siblings were living with mother and three other adults in a filthy one-bedroom apartment, and slept on a stained twin mattress on the floor with mother. The responding deputy reported that the home had a bad odor and there were beer cans and trash all over the place. There were small and large roaches all over the floor and in the refrigerator. There was rotten food in the sink and in the refrigerator. The children were reported to be filthy and grimy, dressed in clothes that smelled of urine and cigarettes; the social worker estimated they had not been bathed in about two weeks. Both children had new and old injuries. The eight month old had a second degree burn mark on her leg, which the treating physician said was consistent with a curling iron, rather than hot water as mother stated. She also had another scar on the other leg, along with a blister or rash on her vaginal area. The 20 month old had severe diaper rash and a cut on his right ankle. The treating physician at the emergency room stated he was thankful that DPSS had intervened with the children.

Further, Aleena was not removed from mother solely because of the domestic violence between mother and father. Rather, the juvenile court sustained each of the allegations in the section 300 petition, including that Aleenas home was a pigsty. In addition, the deputy who escorted the social worker on an initial visit to mothers home to check on the welfare of Aleena commented that he had assisted in the removal of Aleenas two half siblings the previous year and that the condition of the home was quite similar.

Finally, substantial evidence does support the juvenile courts conclusion that mother had not made reasonable efforts to address the problems that led to the half siblings removal. Mother makes much of the status review report prepared for the half siblings 12-month review, prepared June 20, 2006 (just one month prior to the beginning of this case), in which the social worker states: [Mother] has made a great deal of progress in working her Case Plan. She has completed the MOMs Program and P.R.I.C.E. Parenting Classes. While in the MOMs Program she was also awarded several certificates for excelling in various areas of the program. She has had regular visits with her children and these have gone very well.

We recognized that, The failure of a parent to reunify with a prior child should never cause the court to reflexively deny that parent a meaningful chance to do so in a later case. (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464.) However, the record is very clear that, at the time the juvenile court denied mother reunification services in this case, mother had not made reasonable efforts toward providing any of her children with a clean, safe home. We acknowledge that mother had completed a number of classes and programs as part of her case plan on the half siblings dependency case. In fact, the record in the half siblings dependency case indicates that the court, at the recommendation of DPSS, had extended mothers services to the 12-month mark because she needed only to obtain suitable housing in order to have the children returned to her on family maintenance. However, as the case worker told the juvenile court at the jurisdiction and disposition hearing in this matter all the technical compliance in the world isnt going to matter if shes still making the same type of choices, put the children in harms way. As set forth above, the juvenile court sustained the allegation in the section 300 petition that the home mother and Aleena were living in was a pigsty and a sheriffs deputy commented that the sanitary state of mothers housing was quite similar to that which caused her two older children to be removed only one year prior. Thus, although mother had completed most of the components of her program in the previous dependency case, she apparently was not able to apply the knowledge she had gained and thus had not made reasonable efforts to address the reasons for the half siblings removal.

B. Best Interests of Child

Mother argues that, even if substantial evidence supports the juvenile courts findings under section 361.5, subdivision (b)(10), the court still should have used its discretion to order reunification services. Even when a juvenile court finds that a parent has failed to reunify with a childs siblings or half siblings and has failed to make reasonable efforts to address the reasons for the siblings removal, the juvenile court retains discretion to order reunification services if there is clear and convincing evidence that services would be in the childs best interests. ( 361.5, subd. (c).) Such a decision will not be disturbed on appeal unless the juvenile court abuses its discretion. (In re Ethan N. (2004) 122 Cal.App.4th 55, 65.)

Mother cannot point to clear and convincing evidence that reunification services would be in Aleenas best interests. Mother does complain, understandably, that father received services while she did not, even though he was the perpetrator of domestic violence upon her. We acknowledge the seeming absurdity of this situation. However, the court was mandated to provide father with reunification services because there was no statutory ground upon which to deny him services. The court denied services to mother because she had just received 12 months of services for Aleenas half siblings and failed to benefit from them enough to protect this child. As the appellant, mother has the burden to show that the juvenile court abused its discretion by ignoring clear and convincing evidence that reunification services would be in Aleenas best interests. Mother did not really address Aleenas best interests, either at the jurisdiction and disposition hearing or in this appeal, and so we cannot conclude that the juvenile court abused its discretion in declining to order reunification services for mother based on Aleenas best interests.

3. Disposition Order Substantial Evidence

Mother also contends that substantial evidence does not support the courts removal order at the disposition hearing. Specifically, mother argues that DPSS failed to make reasonable efforts to prevent Aleenas removal from her custody.

Section 361, subdivision (c) states in pertinent part, A dependent child may not be taken from the physical custody of his or her parents . . . , unless the juvenile court finds clear and convincing evidence of any of the following . . . : [] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minors physical health can be protected without removing the minor from the minors parents or guardians physical custody. . . .

The focus of the statute is on averting harm to the child. [Citations.] (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) Accordingly, [t]he parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. (In reDiamond H., supra, at p. 1136.)

At the lower court level, to support an order removing a child from parental custody, the court must find clear and convincing evidence [t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minors physical health can be protected without removing the minor from the minors parents . . . physical custody. ( 361, subd. (c)(1); see In re Heather A. (1996) 52 Cal.App.4th 183, 193.) The court also must make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor and state the facts on which the decision to remove the minor is based. ( 361, subd. (d).)

Removal findings are reviewed under the substantial evidence test, drawing all reasonable inferences to support the findings and noting that issues of credibility are matters for the trial court. (In re Heather A., supra, 52 Cal.App.4th at p. 193.)

Here, mother was already receiving services regarding Aleenas half siblings, including parenting classes. In addition, the juvenile court had before it sufficient evidence to deny mother services period, based on her failure to reunify with the half siblings. Further, although mother eventually obtained a restraining order against father, she did interfere with efforts to prevent Aleenas removal because she initially denied any domestic violence and went to great lengths to conceal it, and fathers very presence in the home, until confronted by law enforcement at the time Aleena was removed. Thus, substantial evidence supports the juvenile courts finding that DPSS made reasonable efforts to prevent the need to remove Aleena from mothers custody.

Disposition

The juvenile court is directed to order DPSS to give notice in compliance with the ICWA, and related federal and state laws. Once there has been substantial compliance with the notice requirements of the ICWA, the court shall make a finding with respect to whether Aleena is an Indian child. If the juvenile court finds that Aleena is not an Indian child, it shall reinstate the original jurisdiction and disposition orders. If the juvenile court finds that Aleena is an Indian child, it shall set a new jurisdiction and disposition hearing and shall conduct all further proceedings in compliance with the ICWA and all related federal and state laws.

In all other respects, the juvenile courts rulings are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Ramirez

P.J.

/s/ Miller

J.

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^[1]All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2]Mothers parental rights to the two older children were terminated on December 5, 2006.

^[3]The petition alleged that the parents failed to protect Aleena by engaging in acts of domestic violence, by allowing father to live in the home, by being unable to provide a clean and safe home, and because father had a criminal history.