Filed 7/11/13 In re J.G. CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re J.G. et al., Persons
Coming Under the Juvenile Court Law.
KERN COUNTY DEPARTMENT OF HUMAN
SERVICES,
Plaintiff and
Respondent,
v.
JOSE G.,
Defendant and
Appellant.
F066085
(Super.
Ct. Nos. JD128945-00,
JD128946-00)
APPEAL from
an order of the Superior Court
of
Konrad S.
Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Theresa A.
Goldner, County Counsel,
and Mark L. Nations, Chief Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
Appellant
Jose G. (father) seeks reversal of the juvenile court’s dispositional order on
the grounds the Kern County Department of
Human Services (the Department) made insufficient efforts to determine if
the children, J.G. and C.G. (collectively the children), had Indian
heritage. Father also contends that
juvenile court’s decision to deny reunification services to him. We disagree and will affirm the dispositional
orders.
FACTUAL AND PROCEDURAL SUMMARY
Jose G. is
the presumed father of C.G., born in 2011, and J.G, born in 2010, although he is
not the biological father of J.G. Father
was arrested in June 2011 for first degree burglary, which resulted in his
second conviction for this offense.
After he was incarcerated, father saw the children infrequently through
a plexiglass partition at the jail.
After
father’s incarceration, the children’s mother, Rebecca (mother), began using
methamphetamine, became involved with a new boyfriend, and left the children
with father’s relatives. J.G. was placed
with Denise G.; C.G. was placed with an aunt.
Mother had a history of social services contact and child neglect. She later was arrested on burglary
charges.
Between February and June 2012,
while in Denise’s care, then two-year old J.G. was the victim of vicious,
diagnosed as suffering from traumatic brain injury, multiple abrasions, burns
on his face, neck, back, abdomen, buttocks, and soles of his feet, bone
fractures, a fractured jaw and shoulder blade, malnutrition and severe anemia,
and possible injury to his spleen. J.G.
also tested positive for methamphetamine exposure and was observed to be a
“social devastated†child.
On June 27, 2012, petitions pursuant to
Welfare and Institutions Code section 300 were filed by the Department on
behalf of J.G. and C.G. (All further
statutory references are to the Welfare and Institutions Code unless otherwise
stated.) The petitions later were
amended to identify J.G.’s abusers.
Father disclaimed any Indian ancestry and the juvenile court ruled that
the Indian Child Welfare Act (25
U.S.C. § 1901 et seq., ICWA) did not apply to father. Mother reported that she might have Apache
ancestry. The Department was ordered to
provide notice pursuant to ICWA as to mother.
On July 12, 2012, the Department
provided notice of the August 14, 2012,
jurisdictional hearing pursuant to ICWA to mother, the Bureau of Indian Affairs
(BIA), the Secretary of the Interior, and eight Apache tribes. The notice identified the children by their
names and dates of birth, the name, address, and birth date of the children’s
mother, the name of the children’s maternal grandmother, who was deceased, and
the name of the children’s maternal grandfather. The address given for the grandfather,
however, was a former address; the current address was listed as unknown.
Four Apache
tribes responded that the children were not members of and were not eligible
for membership in an Apache tribe; the BIA indicated it “does not determine
tribal eligibility.†When the
jurisdictional hearing was postponed, the Department again notified the four
Apache tribes that previously had not responded. The Department received notification from one
of these four tribes that the children were not members of and were not
eligible for membership in the tribe.
On September 26, 2012, the Department
submitted a declaration from the assigned social worker regarding the notice to
the tribes and the lack of any response from some tribes. The Department explained that it had not
received any evidence indicating eligibility for enrollment in any tribe after
the notices had been served. The
Department asked that the juvenile court find that ICWA did not apply.
At the October 4, 2012, jurisdictional
hearing, the juvenile court addressed the issue of applicability of ICWA. No one expressed a desire to be heard on the
issue, after which the juvenile court determined ICWA did not apply. The juvenile court found that the children
came within the provisions of section 300, subdivision (b).
After the
juvenile court assumed jurisdiction, instead of proceeding to a dispositional
hearing, father, through his counsel, requested that the dispositional hearing
be continued so as to allow more time to respond to the recommendation to deny
reunification services to him. Father’s
counsel also asked that father be provided with visitation while in jail;
counsel for the minors did not object to a visit pending disposition. The juvenile court authorized a jail visit as
long as father was housed locally; if father was sent to prison, there was to
be no visit.
At the November 5, 2012, dispositional
hearing, father was elevated to the status of presumed father as to J.G. Father requested reunification services, but
the juvenile court denied the request.
The juvenile court found that there was clear and convincing evidence
the children came within the provisions of section 361.5, subdivision
(e)(1). The children were ordered
removed from the custody of mother and reunification services were ordered
provided to mother for six months, which period would expire on April 4, 2013.
DISCUSSION
Father
claims the notice requirements of ICWA were not satisfied because the notices
failed to include all necessary information that was readily available if the
Department had interviewed the maternal grandfather. Father also contends the juvenile court erred
in denying reunification services because the Department failed to meet its
burden under section 361.5, subdivision (e)(1).
ICWA Notice
We apply a substantial evidence
standard of review to father’s argument.
(In re Rebecca R. (2006) 143
Cal.App.4th 1426, 1430; In re Aaliyah G. (2003)
109 Cal.App.4th 939, 941-943.) Applying
this standard of review, we reject father’s contention.
ICWA
protects the interests of Indian children and promotes the stability and
security of Indian tribes and families by establishing certain minimum federal
standards, distinct from state court standards, in juvenile dependency actions
involving an Indian child. (
1414, 1421.) When a state court “knows
or has reason to know that an Indian child is involved†in a juvenile
dependency proceeding, a duty to give notice under ICWA arises. (25 U.S.C. § 1912(a); see
unmarried person who is under age eighteen and is either (a) a member of an
Indian tribe or (b) is eligible for membership in an Indian tribe and is the
biological child of a member of an Indian tribe.†(25 U.S.C. § 1903(4).) The Indian status of the child need not be
certain in order to trigger notice. (
BIA, in part, to investigate and determine whether the minor is an “Indian
child.†(In re Junious M. (1983) 144 Cal.App.3d 786, 796.)
To ensure compliance with ICWA
notice requirements, this court held in In
re H.A. (2002) 103 Cal.App.4th 1206, 1214 (H.A.) that a department that seeks the foster care placement of or
the termination of parental rights to a child who may be eligible for Indian
child status must do the following or face the strong likelihood of reversal on
appeal to this court.
“First, the Department must
complete and serve, pursuant to the terms of 25 United States Code section
1912(a), the ‘NOTICE OF INVOLUNTARY CHILD
CUSTODY PROCEEDING INVOLVING AN INDIAN CHILD’ [(the SOC 319)] along with
a copy of the dependency petition.
Second, the Department must file with the superior court copies of proof
of the registered mail or certified mail and the return receipt(s), the
completed ‘NOTICE OF INVOLUNTARY CHILD CUSTODY
PROCEEDING INVOLVING AN INDIAN CHILD’ that was served, and any responses
received.†(H.A., supra, 103 Cal.App.4th at p. 1215.)
Here, mother claimed Apache
ancestry. She identified her parents and
her siblings. Although mother claimed to
have some contact with the maternal grandfather, the only information obtained
from mother when interviewed about the maternal grandfather was an old
address. The only address provided by
either mother or father for the location of the maternal grandfather was the
same address where father and mother had lived at one point, which was the
address set forth on the ICWA notices.
By the time of the dependency petition, however, that address no longer
was current.
When the dependency petition was
filed, father was incarcerated and mother had been living a chaotic
lifestyle. J.G. was admitted to the
hospital on June 23, 2012, but the Department was unable to locate mother until
June 27. When mother was interviewed on
July 2, she admitted a recent history of using methamphetamine. She had left both her children with others
because she had no job and no money with which to care for the children; she
stayed at multiple locations. During the
case, the social worker attempted to make contact with relatives of mother, to
no avail. There also were multiple
occasions when the social worker attempted to contact mother, to no avail.
The Department does have an
obligation to make inquiry of the child’s family members and obtain information
that may assist in establishing or determining Indian ancestry. (§ 224.3, subd. (c).) According to father, the Department should have
inquired of the children’s maternal grandfather, or presumably other relatives,
for additional family history, such as the birthplaces and/or birth dates for
those listed on the request for confirmation form whose birthplaces and/or
birth dates were noted as unknown.
We reject this argument because it
is based on speculation and unsupported by the record. (Calhoun
v. Hildebrandt (1964) 230 Cal.App.2d 70, 72 [it is appellant’s burden to
show affirmatively error on the record].)
Further, while the Department had a duty to make inquiry and act on
information it received, it did not have a duty to conduct an exhaustive
search. (In re C.Y. (2012) 208 Cal.App.4th 34, 41.) That the record is silent regarding whether
the Department spoke with or attempted to contact the maternal grandfather does
not necessarily mean the Department failed to make an adequate inquiry for
Indian heritage information. (
417.) The record does show extensive
attempts to track the maternal aunt.
Father also assumes without any basis in the record that the maternal
grandfather or other older maternal relatives were available to be interviewed
and could have supplied the missing birthplaces and birth dates for the request
for confirmation form.
We conclude the Department made an
adequate inquiry. We base this on the
following: (1) Mother was only
“semi-cooperative†with the Department throughout the case; (2) she was unable
to provide any current or accurate information regarding any of her immediate
family members; (3) the record evidence of exhaustive attempts to locate the
maternal aunt to no avail; (4) a silent record as to attempts made to locate
other family members; and (5) nothing in the record to suggest the Department
had a means of contacting any other family members, or other more current
information for the two family members that it allegedly failed to follow
through on.
The
Department, using what information was available to it, gave notice to every
possible Apache tribe and the BIA.
Notice was sent by registered or certified mail with return receipt
requested and all return receipts were filed with the juvenile court in advance
of the hearings. (§ 224.2, subds.
(a)(1), (c).) Consequently, the record
reflects the ICWA notice requirements were satisfied. (H.A.,
supra, 103 Cal.App.4th at p. 1211.)
II. Denial of Reunification Services
Father contends the denial of
reunification services pursuant to section 361.5, subdivision (e)(1) was not
supported by the evidence because the Department failed to meet its burden of
proving detriment.
Section
361.5, subdivision (e)(1) states in relevant part:
“(1) If the parent or guardian is
incarcerated, institutionalized … the court shall order reasonable services
unless the court determines, by clear and convincing evidence, those services
would be detrimental to the child. In
determining detriment, the court shall consider the age of the child, the
degree of parent-child bonding, the length of the sentence, the length and
nature of the treatment, the nature of the crime or illness, the degree of
detriment to the child if services are not offered .… Reunification services are subject to the
applicable time limitations imposed in subdivision (a). Services may include, but shall not be limited
to, all of the following:
“(A) Maintaining contact between
the parent and child through collect telephone calls.
“(B) Transportation services, where
appropriate.
“(C) Visitation services, where
appropriate.
“(D) Reasonable services to
extended family members or foster parents providing care for the child if the
services are not detrimental to the child.
“An incarcerated or detained parent
may be required to attend counseling, parenting classes, or vocational training
programs as part of the reunification service plan if actual access to these
services is provided.â€
The
clear and convincing evidence standard specified in section 361.5 is for the
edification and guidance of the juvenile
court and not a standard for appellate review. The sufficiency of evidence to establish a
given fact, where the law requires proof of the fact to be clear and
convincing, is primarily a question for the trial juvenile court to
determine. If there is substantial
evidence to support its conclusion, the determination is not open to review on
appeal. On appeal from a judgment
required to be based upon clear and convincing evidence, the clear and
convincing test disappears and the usual rule of conflicting evidence applies. On review of the sufficiency of the evidence,
we presume in favor of the order, considering the evidence in the light most
favorable to the prevailing party, giving the prevailing party the benefit of
every reasonable inference, and resolving all conflicts in support of the
order. The usual rule of conflicting
evidence is applied, giving full effect to the respondent’s evidence, however
slight, and disregarding the appellant’s evidence, however strong. (Sheila
S. v. Superior Court (2000) 84 Cal.App. 4th 872, 880-881;
1398, 1401.)
As
noted above, in determining detriment when a parent is incarcerated, the
juvenile court shall consider the age of the child, the degree of parent-child
bonding, the length of the sentence, the nature of the treatment, the nature of
the crime or illness, and the degree of detriment to the child if services are
not offered. (§ 361.5, subd.
(e)(1).) Here, both children were under
three years of age. Reunification
services would be provided, if at all, for six months but no more than 12
months. (Id., subd. (a)(1)(B).)
J.G. was slightly over one year old
when father was arrested and incarcerated; C.G. was a few months old. Father saw the children only sporadically,
and then through glass, after his incarceration. When asked to describe his interaction with
the children when he was not incarcerated and around them, all father could
offer was “Spend quality time as a father with his kids.†The only specific that father could offer to
show any bond between J.G. and him was to state that J.G. would “Always follow
me around all the time and his mother.â€
As of the dispositional hearing,
father had been sentenced on a “[t]wo strikes†offense to a term of five years;
his current offense was burglary. Father
had served a portion of that time, but speculated he might be released in 18
months. He expected to be housed at
Wasco for eight more months before he was transferred elsewhere in the
state. He wanted to visit with the
children through the glass partition at Wasco.
No evidence was offered at the
dispositional hearing of detriment to the children if reunification was not
offered to father. But, counsel for the
children argued there would be detriment to the children if services were to be
offered because the children would be attempting to establish a relationship
through a glass partition with someone they could not possibly reunify with
before the expiration of the reunification period. Such a circumstance, counsel opined, would
raise false hope in the children during the reunification period. The Department recommended that no
reunification services be offered to father as it opined it would be
detrimental to the children.
There is little to no evidence of
any bond between father and the children.
They were both quite young when father was incarcerated. Assuming arguendo that father would be
released in 18 months from the dispositional hearing, that release date would
be six months after the maximum time period that reunification services could
be provided. The reunification services
time limits are applicable to incarcerated parents. (§ 361.5, subd. (e)(1).) As counsel for the minors pointed out at the
dispositional hearing, father would have to serve 80 percent of his time, and
it was not possible for him to be released before the reunification period
expired. We point out that father, by
choosing to engage in criminal conduct, placed himself in a situation where he
has been unable to establish and sustain a relationship with his children and
where he cannot be released before the reunification period expires.
“Section 361.5, subdivision (e)(1)
does not require that each listed factor exist in any particular case, nor does
it specify how much weight is to be given to a factor bearing on detriment,
listed or not.†(Edgar O. v. Superior Court (2000) 84 Cal.App.4th 13, 18.) The dispositional order denying father
reunification services was supported by substantial evidence and reversal is
not required.
DISPOSITION
The orders
are affirmed.
_____________________
CORNELL, Acting P.J.
WE CONCUR:
_____________________
GOMES, J.
_____________________
FRANSON, J.
