In re Jasmine H

Filed 6/20/06 In re Jasmine H. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEALS from orders of the Superior Court of San Diego County, Joe O. Littlejohn, Judge. (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Simone H. appeals orders declaring her children, 13-year-old Christopher B. and three-year-old twins, Jasmine H. and Brianna H., dependents of the juvenile court and placing them with her on the condition Darrell H., the twins' father and Christopher's stepfather, not reside in the home. She contends the orders violate notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1901, et seq.) (ICWA), and the evidence was insufficient to support a finding as to Christopher under Welfare and Institutions Code section 300, subdivision (d).^[1] Darrell also appeals. He also contends the jurisdictional finding as to Christopher is not supported by substantial evidence and joins in Simone's arguments that support his position. We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

On May 11, 2005, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of Christopher, Jasmine and Brianna, under section 300, subdivision (d), alleging the children were at risk because Darrell had molested his two older daughters from a previous relationship, Cassandra H. and Jennifer H., and continued to express sexually deviant attitudes and urges although he had undergone several years of treatment; and Simone minimized Darrell's history and proclaimed his innocence. Christopher's petition additionally alleged Darrell had been discharged from the U.S. Army because of charges he forcibly sodomized a male military member.

Cassandra and Jennifer had become dependent children of the court in 1996 because of their mother's excessive discipline and Darrell's sexual abuse. They were returned to their mother in 1998, but in 2002 Darrell molested Cassandra again. He admitted sexually abusing Cassandra and Jennifer and said he physically abused Cassandra and his stepdaughter, J.

Testing and psychological evaluations showed Darrell's sexual deviancy and assessed the risk he posed to children. The psychologist who evaluated Darrell in 1996 reported Darrell was obsessed with sexual issues, lacked insight, judgment, and self-control and presented a significant danger to children and to others weaker than himself. The psychologist diagnosed paraphilia NOS (not otherwise specified), including pedophilia, voyeurism, exhibitionism, fetishism and sexual sadism. In 1997 Darrell's therapist opined test results showed he had a high interest in female children and should not be left alone with any children. A screening test in 1997 showed he had a high interest in "young females ages 6-12, as well as ages 3-4." Darrell participated in counseling and therapy from 1996 through 1998 and again from 2003 until May 2005.

The psychologist who conducted an evaluation in January 2004 reported Darrell said he posed a risk to Cassandra, Jennifer, and J., but denied there was any current danger to Jasmine and Brianna, although he said they might be at risk when they were older. The psychologist recommended an intensive sex offender treatment program, parenting classes, and a medical evaluation to treat depression and anxiety. He warned unsupervised visits should be considered only after Darrell showed sustained progress in treatment and a significant reduction in sexual thoughts and desires. In November 2004, after nearly a year of services, test results showed Darrell continued to have a pervasive neurological and cognitive deficit that could affect his impulse control, judgment and insight. In May 2005 Darrell's therapist reported Darrell had been actively participating in therapy, but continued to need to work on his recovery program.

The psychologist who evaluated Simone said Simone continued to believe Darrell was innocent even after he confessed, and her poor judgment in allowing Darrell to return home would place the children at substantial risk. In December 2004 Simone's Safe Paths facilitator said Simone had shown improvement in her ability to empathize with Cassandra and to hold Darrell accountable and had acknowledged her own role in not being protective. The facilitator indicated Simone needed to complete a safety plan and she was not certain Simone could put the children's safety ahead of her relationship with Darrell.

The family received voluntary services in 2004 and 2005, but Simone was not willing to obtain protective orders and continued to believe Darrell presented only a low risk to the children. Darrell told the social worker he thought he would molest again if not continuously supervised.

At the detention hearing on May 13, 2005, Simone indicated she may have Indian ancestry. The court ordered the children detained with Simone on the condition Darrell not be in the home.

For the jurisdictional and dispositional report dated June 9, 2005, the social worker stated Simone had reported she had Indian heritage, but did not believe she was registered with a tribe. Darrell's therapist recommended he have continued treatment, a behavior reconditioning program and medication. The therapist said the probability Darrell would molest a girl victim in the family was 68 percent, a girl outside the family was 98 percent and a boy victim was below 35 percent.

On July 12, 2005, the Agency filed amended petitions under section 300, subdivision (b) on behalf of Jasmine and Brianna, alleging Darrell suffered from a mental illness making him unable to provide proper care. At the new detention hearing on that day the court again ordered the children detained with Simone on the condition Darrell not reside in the home.

In July 2005 Darrell's therapist in a sex offenders' treatment program reported testing did not show Darrell had an elevated sexual interest in young males, but she recommended he have only supervised contact with Christopher. Christopher's therapist opined Darrell posed a risk to any child. She said Christopher had been trying to convince himself that Darrell would not do anything sexual to him.

At the jurisdictional and dispositional hearing, the former social worker opined Darrell presented a low risk to Christopher and a high risk to the twins.

The current social worker testified Darrell presented a danger to the children. She said although he had been in treatment he was not progressing. She opined his sexual relations with another man in the military and the fact that Christopher was smaller and less powerful than Darrell put Christopher at risk.

Darrell denied having ongoing sexual urges toward children or having fantasies about sexual relations with adolescent girls. He admitted he had said he needed supervision when around children, but said his statement was misunderstood. He testified he had been in treatment since 1997 and would not molest again because he had already created enough tragedy. He admitted molesting Cassandra when she was four and 13, but said he had not molested other children.

Darrell's sexual abuse treatment provider testified she recommended Darrell have only supervised contact with children to eliminate any possibility he would be falsely accused. She testified testing showed he did not pose a risk to Christopher. She said his slowness in completing written assignments reduced his progress in treatment and opined he was at moderate to high risk to reoffend.

Another sexual abuse treatment provider reviewed three psychological evaluations of Darrell and a sexual interest test he completed. He said Darrell needed to manage and control his paraphilic interest with a relapse prevention plan and emphasis on avoiding unsupervised contact with children. He reported testing showed Darrell has significant sexual interest in minor and adult females, but did not show sexual interest in males. He said he had recommended Darrell begin a program of behavior reconditioning, but Darrell did not start the program. The treatment provider opined Darrell posed a significant danger to young females and could pose some risk to Christopher. He recommended only supervised contact and said Darrell needed to make significant progress in therapy and reconditioning before increasing his contact with children.

Darrell's therapist said Darrell had participated in therapy, gained insight and did not pose a danger to Christopher. Simone's therapist said Simone willingly participated in therapy and now recognizes the need to protect her children.

The court found the children came within the jurisdiction of the court. It placed them with Simone and ordered Darrell not reside in the home, all visits with Darrell be supervised and the parents comply with their case plans. It noted there had been some reference to Simone's Indian heritage, but Simone had been unable to provide more information. It found the ICWA did not apply.

DISCUSSION

I. Motion for Partial Dismissal of Darrell's Appeal

Preliminarily, we reject the Agency's motion to dismiss the portion of Darrell's appeal that concerns the orders regarding Christopher. We agree that Darrell lacks standing to challenge these orders. "[O]nly parties of record may appeal." (In re Joseph G. (2000) 83 Cal.App.4th 712, 715.) "To be aggrieved a party must have a legally cognizable interest that is injuriously affected by the court's decision." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 948.) A parent does not have standing to assert error on behalf of another party, including another parent. (In re Jenelle C. (1987) 197 Cal.App.3d 813, 818.) Darrell is not a party of record in Christopher's case. He is Christopher's stepfather, not his presumed father, and thus, does not have a legally cognizable interest affected by the court's decision and lacks standing to assert error as to the orders regarding Christopher. However, a partial dismissal of his appeal would not be appropriate. Simone, as well as Darrell, argues the evidence is insufficient to support the orders and findings regarding Christopher under section 300, subdivision (d). Simone also challenges the orders and findings concerning both children on the basis of a lack of compliance with ICWA notice requirements, and Darrell joins in this argument. Because we will consider Simone's challenge to the sufficiency of the evidence to support the finding under section 300, subdivision (d), it would be pointless to dismiss part of Darrell's appeal. The motion for partial dismissal is denied.

II. Sufficient Evidence to Support a Finding as

To Christopher under Section 300, Subdivision (d)

We next consider whether there is substantial evidence to support the finding that Christopher comes within the provisions of section 300, subdivision (d).

A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114, quoting In re Biggs (1971) 17 Cal.App.3d 337, 340.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Section 300, subdivision (d) provides a child is within the jurisdiction of the juvenile court when:

"The child has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in section 11165 of the Penal Code, by his or her parent or guardian or a member of his or her household, or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse."

The petition regarding Christopher included allegations he is at risk that Darrell will sexually abuse him because Darrell has a history of sexually abusing his daughter, Cassandra; Darrell's daughter, Jennifer, accused Darrell of fondling her; and Darrell admits he participated in sexual behavior with a man while in the Army and that he was discharged because of charges of forcible sodomy on a male military member. The petition further alleged that despite several years of sexual abuse treatment Darrell continues to demonstrate attitudes and urges of sexual offending and admits he needs supervision around children because he will be tempted to molest them, and psychologists and treatment professionals familiar with him opine he continues to present a substantial risk and recommend he have no unsupervised contact with any children.

Substantial evidence supports the court's finding of jurisdiction under section 300, subdivision (d). Three psychological evaluations and testing showed Darrell presents a risk to children. The psychologist who evaluated him in 1996 said he was obsessed with sexual issues, lacked insight, judgment, and self-control, was a danger to children and others weaker than himself and would probably not benefit from treatment. In 1997 Darrell's therapist opined test results showed he should not be left alone with children. The psychologist who evaluated him in November 2004 warned he should have unsupervised visits only after he showed sustained progress in treatment and a significant reduction in sexual thoughts and desires. After several months of treatment, testing showed he continued to have a pervasive neurological and cognitive deficit that could affect his impulse control, judgment and insight. The psychologist wrote Darrell's "narcissistic traits may contribute to [his] seeking gratification for his own needs at the expense of concern for the needs of others and increases the risk for him to reoffend." In May 2005 his sex offender treatment provider said he still needed to work on his recovery program. Larry Corrigan, another of Darrell's sex offender treatment providers, said Darrell posed a significant threat to young females, but noted he could be a danger to male children and thus to Christopher. He expected Darrell would need to be in treatment for three to five more years. Although the evidence showed Darrell posed a far greater risk to young girls than to boys, Corrigan said Darrell's problems with reality testing, impulse control and his strong deviant urges of a polymorphous nature also showed a risk to Christopher. Corrigan recommended any contacts between Darrell and Christopher be closely supervised and that it be explained to Christopher the potential danger Darrell presented. The court reasonably relied on Darrell's history and Corrigan's analysis and opinion to find that Christopher was at significant risk from Darrell. The finding under section 300, subdivision (d) is well supported.

III. Lack of Notice under the ICWA

Simone contends the jurisdictional and dispositional orders must be reversed because notice was not provided as required by the ICWA. Darrell joins this argument.

Section 1911 of the ICWA provides a tribe may intervene in state court dependency proceedings. (25 U.S.C. § 1911(c).) Notice to the tribe provides it the opportunity to exercise its right to intervene. (In re Junious M. (1983) 144 Cal.App.3d 786, 790-791.) The ICWA provides "where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings, and their right of intervention." (25 U.S.C. § 1912(a).) If the tribe is unknown, the notice must be given to the Bureau of Indian Affairs. (Ibid.)

Here, the lack of ICWA notice was not error. The children were never removed or at risk of being removed from Simone's custody. Title 25 United States Code section 1912(a) directs that notice under the ICWA must be given by "the party seeking foster care placement of, or termination of parental rights . . . ." Because the Agency did not seek removal of the children and placement in foster care, but recommended placement with Simone on the condition that Darrell not reside in the home, the requirement of providing notice under the ICWA was not triggered.^[2] Also, Simone said that even though there was Native American ancestry in her family, she did not believe any family members were members of a tribe and upon inquiry could find no further information.

In dicta, the reviewing court in In re Alexis H. (2005) 132 Cal.App.4th 11, observed the statutory language indicates notice to the tribe or to the Bureau of Indian Affairs is required when child welfare authorities are seeking foster care placement or termination of parental rights of an Indian child, but concluded notice is not required when the child is not placed in foster care or at risk of placement in foster care. The court reasoned this limited scope of the notice provision corresponds with the ICWA's purpose, which is to preserve Native American culture, concluding if an Indian child must be removed from his or her home, the child's tribe must be provided notice so it may intervene to ensure the child is placed with an Indian family, but if the child is not removed the purpose of preserving Native American culture is not involved. (In re Alexis H, supra, at pp. 14-15.)^[3] We agree with this analysis. If a child of possible Native American ancestry is not removed from his or her home the concerns that the child will lose his or her Indian heritage and the tribe will lose the child do not come into play.

In this case, if any further action which might lead to foster care or adoption is contemplated in the future, the Agency must provide notice as required by the ICWA.

DISPOSITION

The orders are affirmed. The motion for partial dismissal is denied.

NARES, Acting P. J.

WE CONCUR:

McINTYRE, J.

O'ROURKE, J.

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

^[2] Simone's reliance on In re Jennifer A. (2002) 103 Cal.App.4th 692 is misplaced because in In re Jennifer A., although the court placed the child with her father, she earlier had been placed in foster care and the social services agency recommended she remain there. (Id. at p. 698.) The court noted that the social service agency's recommendation of foster care placed the issue before the court triggering the ICWA notice requirement. (In re Jennifer A., supra, at pp. 699-701.) Here, by contrast, the Agency never recommended the children be removed from Simone's care.

^[3] The ICWA provides, " . . . it is the policy to this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . . ." (25 U.S.C. § 1902.)