In re Angel B.

Filed 3/24/06 In re Angel B. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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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Inez H., guardian of the minor, appeals from the judgment of disposition and the orders entered at the six-month review hearing. (Welf. & Inst. Code, §§ 358, 360, 366.21, subd. (e), 395.)^[1] Appellant contends the juvenile court failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) Appellant further argues there was insufficient evidence to support the court's orders removing the minor from her custody at the disposition hearing and continuing the out-of-home placement at the six-month review hearing. She also contends that the Department of Health and Human Services (DHHS) abused its discretion in failing to consider a relative placement for the minor, and that the section 300, subdivision (g) allegation lacked pleading and evidentiary support. We affirm.

Facts

DHHS filed a petition to remove two-year-old Angel from appellant's custody in December 2004 due to the minor's serious head injuries alleged to have resulted from nonaccidental trauma while in appellant's care.^[2] The court ordered the minor detained. The minor was released from the hospital to a confidential placement.

Appellant provided family history information to a DHHS paralegal who sent notices of the proceedings to the three federally recognized Cherokee tribes and the Bureau of Indian Affairs (BIA) in January 2005. Although the notice to the United Keetoowah Band of Cherokee Indians was sent to the current tribal agent designated for service of notice, it was sent to a previously designated address. However, return receipts from each of the three tribes and the BIA were received by the paralegal and filed with the juvenile court on February 7, 2005. At a hearing on February 9, 2005, the court found notice was proper and, because no tribe had responded, the minor did not come within the provisions of ICWA. The court reiterated these findings on March 2, 2005.

The jurisdiction/disposition report provided details of the minor's injuries, including hemorrhaging in the eyes, torn ligaments in her head and bleeding on the surface of the brain. The minor's treating physicians stated that the injuries were inconsistent with a fall but were consistent with nonaccidental shaking injuries. Appellant explained that the minor fell a lot and had seizures and choking episodes. The report noted that the minor was in appellant's care when the injuries occurred. DHHS recommended that the court sustain the petition and deny services to appellant although the minor appeared to be closely and positively attached to her.

An addendum in March 2005 stated that appellant had terminated visits with the minor for a month but changed her mind and reinstated visits. Also, appellant had a substantiated referral for physical abuse of her own daughter in 1999. Appellant had not yet begun to participate in counseling regarding anger control.

At the contested hearing in August 2005, appellant denied the allegations of the petition and requested dismissal but did not present any evidence. The court, having read and considered the reports, sustained the petition. Contrary to the report, DHHS requested that the court make appropriate findings so that services could be offered to appellant. Appellant continued to object to foster placement. The court ordered continued out-of-home placement and ordered that services be provided to appellant, adopting the recommended findings and orders as modified by the court.

The report for the review hearing in September 2005 stated that appellant had been participating in therapy and had completed a parenting class. DHHS recommended that appellant also participate in an anger management program. The minor had adjusted well to her foster placement. When first placed, the minor showed significant aggression, which decreased over time with intervention. Appellant was now visiting regularly. Visits were appropriate and the minor demonstrated a strong bond with appellant. No relatives had yet come forward expressing an interest in possible placement of the minor. Appellant continued to be unwilling to take responsibility for the issues which led to the minor's removal. Appellant's therapist reported that appellant continued to minimize and deny the issues which led to removal and to blame the hospital and DHHS. The social worker assessed the minor's risk as high if returned to appellant because of this.

At the review hearing, appellant argued for return of the minor because she had been complying with the plan. DHHS continued to insist that appellant recognize that the minor was injured seriously while in her care and to understand how it had happened and how to protect the minor. Minor's counsel also objected to return. The social worker stated that she had received no calls from anyone who was willing to be considered as a relative placement. The social worker also informed the court that two of appellant's relatives expressed an interest in visiting, but had not contacted her to do so. The court found the risk to the minor if returned to appellant remained because the issues which led to removal had not yet been addressed. The court adopted the recommended findings and orders and confirmed the section 366.21, subdivision (f) hearing.

Discussion

I

Appellant contends reversal is required due to noncompliance with ICWA. Appellant correctly notes that the notices sent to the United Keetoowah Band of Cherokee Indians were not sent to the current address for the individual designated to receive service of the notices.

California Rules of Court, rule 1439(f)(2) requires service of notice pursuant to ICWA to the â€