In re C.W.

Filed 7/23/07 In re C.W. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from orders of the Juvenile Court for the County of Los Angeles. Stephen Marpet, Commissioner. Reversed and remanded with directions.

Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.

____________________________________________

Craig W. (father) appeals from the juvenile courts jurisdictional and dispositional orders, contending (1) there is insufficient evidence fathers history of substance abuse has caused or would cause any harm to his daughter, C.W., (2) there is insufficient evidence supporting the courts decision to remove C., (3) the court erred in concluding he was not the presumed father of C., (4) the court erred in concluding he was not entitled to reunification services, and (5) the court erred in failing to ensure the Department of Children and Family Services (DCFS) complied with the notice requirements of the Indian Child Welfare Act (ICWA).[1] For reasons set forth below, we reject fathers first and second contentions, find his third and fourth contentions to be moot based on subsequent proceedings in the juvenile court, and agree with his fifth contention. Based on a failure to comply with the ICWA, as conceded by DCFS, we reverse and remand the matter to the juvenile court with directions.

FACTS AND PROCEEDINGS BELOW

In November 2005, DCFS filed a petition under Welfare and Institutions Code section 300[2] concerning 13-month-old C.W. and two of her half-siblings. The petition alleged the childrens mother (who is not a party to this appeal) abandoned the children at a homeless shelter without making a plan for their care, supervision or support. The petition identified Craig W. as C.s father but alleged his whereabouts were unknown.

In a report prepared for the November 30, 2005 detention hearing, DCFS stated a friend of the childrens mother informed DCFS Craig W. was C.s father. According to DCFS, fathers whereabouts ha[d] been unknown since 11-22-05. DCFS reported it would initiate a Due Diligence to locate father. DCFS recommended father be granted monitored visitation with C. after he made contact with DCFS. At this point, C. was placed in a foster home.

At the November 30, 2005 detention hearing, the juvenile court ordered C. detained in the home of her maternal aunt. The childrens counsel informed the court no one ha[d] any information about fathers whereabouts. The court ordered DCFS to present evidence of due diligence in attempting to locate father. The court also granted the childrens parents monitored visitation to commence after they made contact with DCFS.

On January 11, 2006, DCFS filed a first amended section 300 petition. This petition alleged C.s mother and father both had a history of illicit drug abuse and both were current abuser[s] of crack cocaine which rendered them incapable of providing [C.] with regular care and supervision, endangered her physical and emotional health and safety, and created a detrimental home environment, placing [her] at risk of physical and emotional harm and damage. DCFS continued to allege fathers whereabouts were unknown.

In a jurisdiction/disposition report prepared for a January 11, 2006 hearing, DCFS stated it still had not located father. Due diligence ha[d] been initiated but not yet completed. DCFS referred to him as the alleged father of [C.W.] DCFS filed a nine-page declaration of due diligence setting forth the efforts it had made to locate father. DCFS stated its search was limited by, among other things, the fact it did not have fathers date of birth or information regarding any relatives or friends it could contact. DCFS also stated its inquiry with the Child Support Division/Parent Locator had not yielded any information.

In the jurisdiction/disposition report, DCFS also stated the maternal aunt who was taking care of C. told DCFS C.s mother did not have a drug problem until she met father and stated smoking crack with him. The aunt said father left [C.s mother] when she started using. The aunt also reported mother was in a rehabilitation program in December 2005, but she was kicked out after she saw [father] and violated her agreement with the program. The aunt stated C.s mother was smoking crack with father during the past year. At the time of her interview, the aunt believed father was enrolled at Warm Springs Rehabilitations Center in Lancaster, California. On January 7, 2006, the day after the interview with the maternal aunt, the dependency investigator called Warm Springs Rehabilitation Center and left a message for father regarding the petition. On January 9, 2006, the stepmother of C.s mother told DCFS she had met father years ago with C.s mother and believe[d] they were culprits in getting high together. DCFS recommended the juvenile court order reunification services for father, including parenting and individual counseling, a substance abuse program and random drug testing, to commence after he made contact with DCFS.

At the January 11, 2006 hearing, the juvenile court concluded [d]ue diligence ha[d] been completed as to . . . father . . . and no further notice be given [sic]. The court set the matter for a trial on adjudication.

In advance of the date set for the adjudication hearing, DCFS submitted its recommendation the children be declared dependents of the juvenile court and removed from the custody of their parents. At the February 2, 2006 hearing, the juvenile court stated the petition is sustained as pled in its entirety. The minute order from the hearing, however, indicates the matter was adjudicated only as to Kirk S, the father of C.s two half-siblings, and not as to Craig W., C.s father. The court ordered the children removed from the care, custody and control of their parents and suitably placed with relatives. C. remained in the home of her maternal aunt. The court also ordered monitored visitation as well as reunification services for father as recommended by DCFS, including parenting and individual counseling, a substance abuse program and random weekly drug testing. At this hearing, the court reiterated, Due diligence for [C.s] father is good.

In a status review report prepared for a July 28, 2006 hearing, DCFS reported the ICWA does or may apply because the childrens mother stated she may have Cherokee Indian heritage. DCFS represented it had sent notices to the Bureau of Indian affairs and three Cherokee tribes.[3]

In the status review report, DCFS continued to refer to Craig as an alleged father, but for the first time stated his whereabouts were known and listed an address for him in Palmdale, California. DCFS explained how it obtained fathers address. C.s maternal aunt contacted DCFS after she received a letter from the Child Support Services Department (CSSD) indicating a paternity testing appointment had been made for C. DCFS contacted CSSD and learned father had been informed he owed child support for C. Father requested a paternity test. CSSD provided DCFS with the address it had on file for father. C. appeared for the test on July 6, 2006.

DCFS also reported father contacted C.s social worker on July 14, 2006. Father confirmed he was living in Palmdale with his fiance and her son. Father claimed he did not know anything about the case [the dependency proceedings]. Father told the social worker he did not believe C. was his child because that is what C.s mother told him, but said he would be willing to be in her life and to comply with court orders if the paternity test showed he was C.s biological father. Concerning his history of substance abuse, father denied he was a drug user but admitted he was a recovering alcoholic. Father said he went to Warm Springs Rehabilitation Center and ha[d] been clean for two years.

DCFS recommended the juvenile court terminate fathers reunification services. DCFS informed the court father had not had any contact with C. during the period of supervision.

Father appeared at the July 28, 2006 status review hearing and the juvenile court appointed counsel to represent him. The court informed father DCFS was recommending termination of his reunification services. Fathers counsel asserted DCFS should have been able to find father before July 14, when father contacted the social worker. Counsel asked the juvenile court to continue the six-month review hearing[4] as to father, and to order DCFS to investigate his home as an appropriate placement for C. The court continued the matter to August 16, 2006 to allow counsel to review the case and decide whether she wanted to file any motions. The court also ordered DCFS to interview father. Father represented his mother had Native American heritage, but he could not identify a particular tribe. The court ordered DCFS to look into the ICWA issue and to give notice to the Bureau of Indian Affairs, providing fathers information. The court also ordered monitored visitation for father. The court inquired about the status of the paternity testing and father said he was awaiting the results. The court ordered the parties to provide the results in advance of the August 16 hearing.

On August 16, 2006, father filed a motion to set aside or vacate the juveniles courts findings regarding notice of the proceedings and DCFSs due diligence, as well as the order sustaining the section 300 petition. Father requested an opportunity to be heard on these issues and a period of reasonable reunification services. Father also stated he was ready, willing and able to provide an appropriate home for C. The motion was supported by a declaration from father.

Father argued DCFSs alleged due diligence in locating him was insufficient and improper. In support of this argument, father asserted C.s mother was aware of his whereabouts and contact information at all relevant times and could have provided his date of birth. Father also claimed other maternal relatives, such as C.s aunt, could have told DCFS where to locate father if DCFS had only asked them. Moreover, father stated he submitted a change-of-address form to the United States Postal Service on three occasions, in October 2004 when he moved from Warm Springs Rehabilitation Center[5] to House of Change, a sober living home, in December 2004 after he moved to Air Foundation, another sober living home, and in May 2006 after he and his fiance moved in together. At the time DCFS filed the petition, father was living in a sober living home.[6] Father also asserted CSSD had his contact information as a result of another case involving support for his two daughters from a different relationship, and the Department of Social Services also had his contact information because he received General Relief benefits from October 2004 to about September 2005.

In his motion, father stated he had signed a declaration of paternity at the hospital when C. was born and was listed as the father on her birth certificate. He claimed, He held himself out to others and believed himself to be C.s father up until one month after she was born when Mother told Father he was not the biological father. Father attached to his motion the results of the DNA testing indicating he was indeed C.s biological father.

In advance of the August 16, 2006 hearing, DCFS submitted an interim review report. DCFS stated the ICWA did not apply.[7] During an August 2 conversation with C.s social worker, father said his aunt confirmed he does not have any Indian heritage. As part of the same conversation, the social worker told father she would be sending him referrals for substance abuse counseling, parenting and random drug testing. According to the social worker, father said he wanted to wait until he received the results of the paternity testing before he submitted to random drug tests. Father also told her he probably [would] not be able to drug test because there was a possibility that he [would] begin working long hours. The interim review report also states father admit[ted] to selling drugs here and there when he was younger.

At the August 16, 2006 hearing, DCFS requested time to respond to fathers motion to set aside or vacate the juvenile courts previous findings and orders. The court inquired about the status of the paternity testing, and fathers counsel stated the DNA test indicated C. was fathers biological child. Given father had never taken C. into his home or supported her financially, the court stated it did not see any reason why [Craig W.] is still not anything other than an alleged father, who never should have been offered reunification services. Fathers counsel conceded father previously told DCFS he did not want to enroll in a substance abuse program until he received the results of the paternity testing, but said he had been willing to visit C. and have her placed with him even if she was not his biological child. Fathers counsel told the court father now was willing to participate in random, weekly drug testing to establish his sobriety. The court set the matter for a further contested section 366.21, subdivision (e) hearing on September 12, 2006 to determine whether father is even entitled to reunification services as an alleged father only as well as whether or not the due diligence was satisfactory as to [fathers] whereabouts unknown. The court stated it deemed the petition previously sustained against father to be a section 342 petition.[8] The court allowed father to have monitored visits with C.

On August 30, 2006, father filed a motion to establish paternity. Father asserted he met the requirements for presumed father status and therefore was entitled to reunification services. DCFS opposed the motion, arguing father failed to assume parental responsibilities, and any emotional or financial parental role. Accordingly, he must be denied presumed father status. DCFS later informed the juvenile court C.s mother confirmed father visited C. in the hospital two days after she was born and signed her birth certificate. C.s mother denied ever telling father C. was not his biological child.

At the September 12, 2006 hearing, DCFS conceded notice of the proceedings was not proper as to father. Based on this concession, fathers counsel asked the juvenile court to vacate its prior findings regarding proper notice and also readdress the petition. Counsel argued there was no evidence father used any illegal drugs or drank alcohol after C. was born. She also argued father qualified as a presumed father. Fathers counsel informed the court father had had two visits with C. DCFS urged the court to find Craig W. was not C.s presumed father and was not entitled to reunification services. DCFS asserted father was like a stranger to C. DCFS also pointed out father declined to participate when services were offered to him previously at a time when he was not sure whether C. was his biological child. C.s counsel joined DCFS in arguing Craig W. should not be granted presumed father status or reunification services, and reiterated father is nothing more than a stranger to [C.]. Concerning the allegations of the petition, C.s counsel stated C.s mother could testify that this is a father who has a drug history, who used with mother.

After hearing oral argument, the juvenile court stated: [T]hese are my findings today. He is an alleged father. I have sustained the petition as alleged in the petition that he has a history [of substance abuse]. He is not entitled to family reunification services. In response to a question from DCFSs counsel, the court stated it made its alleged father finding and sustained the petition based on the entire file. Because it found father was not entitled to reunification services, the court vacated the section 366.21, subdivision (e) hearing.

On May 16, 2007, after this matter was fully briefed on appeal, we granted fathers request for this court to take judicial notice of an April 26, 2007 minute order showing the juvenile court found Craig W. to be the presumed father of C. and granted him reunification services in ruling on a section 388 petition he filed. Based on this development, fathers challenges to the juvenile courts prior denial of presumed father status and reunification services are moot.

DISCUSSION

I. THE JUVENILE COURT DID NOT ERR IN SUSTAINING THE PETITION BASED ON FATHERS HISTORY OF SUBSTANCE ABUSE.

Father contends the juvenile court erred in sustaining the petition because there was no evidence his history of substance abuse had caused or would cause C. any harm. As a threshold matter, we reject DCFSs argument fathers challenge to the juvenile courts jurisdictional findings is not timely. DCFS asserts the juvenile court made its jurisdictional findings as to father on February 2, 2006, at a time when father had not even appeared in the matter and notice to him of the dependency proceedings was not proper, as DCFS conceded below. Based on the reporters and clerks transcripts (as summarized in pertinent part above), it is clear the juvenile court sustained the petition as to father based on his history of substance abuse at the hearing on September 12, 2006. Father filed a timely notice of appeal from this order on November 3, 2006.

Even if we ignore the evidence in the record indicating father was using crack cocaine in the year DCFS filed the original section 300 petition -- as father asks us to do based on his denial of these allegations -- there is sufficient evidence in the record to support the juvenile courts jurisdictional findings as to father.[9]

As set forth above, at the September 12, 2006 hearing, the juvenile court stated it was sustaining the petition as to father based on his history of substance abuse. There can be no doubt father had such a history. He admitted he was a recovering alcoholic. We disagree with fathers assertion there is no evidence in the record indicating fathers history had any effect on his ability to care for C. In fact, we find no evidence in the record indicating father was at a point in his recovery where he could appropriately care for and supervise a toddler, other than fathers assertion he had been clean and sober for two years at the time the court sustained the petition. Father was residing at a sober living home at the time DCFS filed the original petition. When offered reunification services and the chance to prove his sobriety by testing, father declined. Based on the totality of the evidence in the record, it was reasonable for the juvenile court to find fathers history of substance abuse put C. at risk, notwithstanding fathers declaration of sobriety. The courts jurisdictional findings are supported by substantial evidence.

II. THE JUVENILE COURT DID NOT ERR IN DECLINING TO PLACE C. IN FATHERS CUSTODY.

Father contends the juvenile court erred in removing C. from his custody. C. was never in fathers custody. Pursuant to section 361.2, if removal of a child from the custody of one parent is necessary and the other parent with whom the child is not residing wants to assume custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.[10]

Substantial evidence supports the juvenile courts refusal to place C. in fathers custody.[11] As discussed above, it was not clear from the record whether father was at a point in his recovery where he could appropriately care for and supervise a toddler. Moreover, as DCFS and C.s counsel argued below, father was basically a stranger to C. despite his two visits with her. It did not make sense to remove C. from the home of her aunt where she had lived for nine and a half months when it was not clear whether father was even an appropriate caretaker for her. Substantial evidence in the record supports a finding it would have been detrimental to place C. in fathers custody.

III. AS DCFS CONCEDES, IT DID NOT COMPLY WITH THE NOTICE REQUIREMENTS OF THE ICWA.

DCFS concedes it not did comply with the notice requirements of the ICWA because the record does not show it sent the Cherokee tribe or the Bureau of Indian affairs form JV-135, Notice of Involuntary Child Custody Proceedings for an Indian Child, as required by California Rules of Court, rule 5.664(f)(1). DCFS acknowledges this court should direct the juvenile court to follow the requirements of the ICWA and properly notice the Cherokee tribes.

Accordingly, we reverse the juvenile courts September 12, 2006 order sustaining the petition as to father (and declining to place C. in fathers custody) to allow DCFS to comply with the notice requirements of the ICWA, and the juvenile court to determine whether the ICWA applies to this case. Based on prevailing case law, this type of limited remand is appropriate here.[12] If, after proper notice to the Cherokee tribe, the juvenile court determines C. is not an Indian child within the meaning of the ICWA, the order will be reinstated.

DISPOSITION

The September 12, 2006 order sustaining the petition as to father is reversed and the cause is remanded to the juvenile court with directions (1) to order DCFS to comply with the notice requirements of the ICWA and (2) to conduct such further proceedings as are necessary to establish full compliance with the notice requirements of the ICWA. If, after receiving proper notice under the ICWA, a Cherokee tribe determines C. is an Indian child within the meaning of the ICWA, the juvenile court shall proceed in conformity with all provisions of the ICWA. If, on the other hand, no response is received from a Cherokee tribe indicating C. is an Indian child, or responses received indicate C. is not an Indian child within the meaning of the ICWA, the September 12, 2006 order sustaining the petition as to father shall be reinstated.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

JOHNSON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

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[1] 25 United States Code section 1901 et seq.

[2] Further statutory references are to the Welfare and Institutions Code unless otherwise noted.

[3] DCFS attached to the status review report notices of the six-month review hearing it sent to some Cherokee tribes and the Bureau of Indian Affairs, using form JV-280. It also attached a July 13, 2006 letter it received from one of the Cherokee tribes indicating the children were not eligible for enrollment in that tribe.

[4] Section 366.21, subdivision (e).

[5] Father attached to his motion a certificate from Warm Springs Rehabilitation Center indicating he had successfully completed an alcohol dependency program on October 2, 2004.

[6] Father moved into his fiances mothers home in February 2006. He and his fiance got their own place together in late April 2006.

[7] DCFS attached to the interim review report a July 27, 2006 letter from a Cherokee tribe indicating C. was not eligible to register as a member of the tribe.

[8] Section 342 provides, in pertinent part: In any case in which a minor has been found to be a person described by Section 300 and the petitioner alleges new facts or circumstances, other than those under which the original petition was sustained, sufficient to state that the minor is a person described in Section 300, the petitioner shall file a subsequent petition.

[9] As father acknowledges, we review the juvenile courts jurisdictional findings under the substantial evidence standard of review. (In re Rubisela E. (2000) 85 Cal.App.4th 177, 194-195.)

[10] Section 361.2, subdivision (a).

[11] As father acknowledges, we review the juvenile courts decision under the substantial evidence standard of review. (In re Basilio T. (1992) 4 Cal.App.4th 155, 169-170.)

[12] See In re Francisco W. (2006) 139 Cal.App.4th 695, 710.