In
re K.B.
Filed
7/18/14 In re K.B. CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
In re K.B. et al., Persons Coming Under the Juvenile
Court Law.
STANISLAUS COUNTY COMMUNITY SERVICES
AGENCY,
Plaintiff
and Respondent,
v.
DEANNA B.,
Defendant and Appellant.
F068764
(Super. Ct. Nos. 516803, 516804, 516805)
THE COURT
name="_ftnref1" title="">*
APPEAL from
orders of the Superior Court of Stanislaus
County. Ann Q. Ameral, Judge.
Marissa
Coffey, under appointment by the Court of Appeal, for Defendant and Appellant.
John P.
Doering, County Counsel, and Carrie M.
Stephens, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
Deanna
B. (mother) appeals from the juvenile court’s
dependency jurisdiction as to her four-year-old daughter K.B., two-year-old
daughter, J.B., and 18-month-old son, J.B., Jr. and placing them with their
father Joseph B. Mother contends the
juvenile court erroneously relied on
section 361.2
name="_ftnref2" title="">[1] to
support its placement order. Mother also
contends the juvenile court erred in terminating its jurisdiction without
determining whether the Indian Child
Welfare Act (ICWA; 25 U.S.C.S. § 1901 et seq.) applied. We affirm,
concluding mother forfeited the placement issue and the ICWA does not
apply.
PROCEDURAL AND FACTUAL SUMMARY
In September 2013, the Stanislaus
County Community Services
Agency (agency) took then four-year-old K.B., two-year-old J.B., and
15-month-old J.B., Jr. into protective custody after one of mother’s guests
caused an explosion and fire in her apartment while attempting to make hash oil. The agency placed the children in
Mother identified Joseph B. as the
children’s father, which he acknowledged.
He said he did not live with mother; however, he had the children at his
home for extended visits numerous times and provided financial support. He was aware mother drank alcohol and
suspected she used drugs. He said he
drank beer on weekends and hard liquor at celebrations. He submitted a “Parental Notification of Indian
Status†(ICWA-020) indicating that he may have Indian ancestry but did not
identify a tribe.
According to the agency’s records, Joseph and mother were involved in a
domestic violence incident in February 2012.
Allegedly, Joseph slapped mother, knocking her to the floor, choked her,
dragged her to the front door and told her to leave. She picked up K.B. and Joseph locked them out
of the house. The agency deemed the
allegation inconclusive because mother could not be found and Joseph denied any
physical violence.
In late September 2013, the agency
filed a dependency petition as to K.B., J.B., and J.B., Jr. alleging mother’s
conduct brought the children within the juvenile court’s jurisdiction. The agency also mailed notice of the
dependency proceedings to the Department of the Interior and the Bureau of
Indian Affairs as required under the ICWA.
The juvenile court ordered the children detained and set the matter for
a jurisdictional/dispositional hearing (combined hearing). The agency referred Joseph and mother for
parenting classes, a substance abuse assessment and services for domestic
violence.
Joseph completed a substance abuse assessment and told the specialist
he drank beer on the weekends and hard alcohol on special occasions. However, he tested positive for marijuana and
alcohol. He admitted drinking alcohol
that morning prior to his appointment.
The specialist referred him for inpatient substance abuse treatment.
In October 2013, the agency filed a first amended petition adding allegations
that Joseph was negligent in failing to remove the children from mother’s
custody despite his suspicion that she was using drugs, that he tested positive
for marijuana after denying its use, and was abusive to mother during the
February 2012 incident.
The agency recommended the juvenile court adjudge the children its
dependents, remove them from parental custody, and provide mother and Joseph
reunification services.
On October 28, 2013, the juvenile court convened the combined hearing
and set it for a contested hearing on November 25, 2013. The juvenile court also ordered the agency to
send out new ICWA notices.
On October 30, 2013, the agency mailed notice of the proceedings to the
Department of the Interior and the Bureau of Indian Affairs.
On November 25, 2013, the juvenile court convened the contested
combined hearing. The juvenile court
found that it was unknown whether the ICWA applied. Mother’s attorney made an offer of proof
accepted by the parties and the juvenile court that mother objected to the
juvenile court’s assumption of dependency jurisdiction and believed the
children’s interests would be best served by returning them to her
custody. However, if they could not be
returned to her custody, she preferred that the agency place them with Joseph
rather than in foster care. She believed
that was “her best choice as a mother.â€
Joseph’s attorney also made an offer of proof that he objected to the juvenile
court’s assumption of jurisdiction and wanted to inform the court that he
completed substance abuse treatment and was attending Alcoholics/Narcotics
Anonymous meetings.
The juvenile court found that notice of the hearing was properly given
and that it was unknown if the ICWA applied.
The court found the allegations in the first amended petition true and
adjudged the children its dependents under section 300, subdivision (b). The court also found Joseph had proven he was
able to safely care for the children.
Consequently, the court awarded him joint legal and sole physical
custody of the children and terminated its jurisdiction over them.
This appeal ensued.
DISCUSSION
I.
Mother Forfeited her Right to Challenge the Juvenile
Court’s Order Placing
the Children with
Joseph. Nevertheless, We Would Affirm.
Mother contends the juvenile court misapplied section
361.2
title="">[2] in granting
Joseph custody of the children. Section
361.2 governs placement of a child with a noncustodial parent. Subdivision (a) of section 361.2 provides:
“When a court orders removal of a child pursuant to Section
361, the court shall first determine whether there is a parent of the child,
with whom the child was not residing at the time that the events or conditions
arose that brought the child within the provisions of Section 300, who desires
to assume custody of the child. If that
parent requests 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.â€
If the juvenile court places the child with a
noncustodial parent, it may grant the parent legal and physical custody of the
child and terminate its jurisdiction over the child, or maintain its
jurisdiction and order reunification services for either or both parents. (§ 361.2, subd. (b).)
We conclude mother forfeited her right to challenge
the juvenile court’s placement decision by failing to challenge it at the
combined hearing. As a general rule, a
party who does not raise an argument below forfeits the argument on appeal. (In re T.G. (2013) 215 Cal.App.4th 1,
14.) In this case, mother did not object
to the children’s placement with Joseph.
On the contrary, she agreed that it was the best solution for them. Consequently, mother not only forfeited the
right to challenge the children’s placement but actually consented to it. Having done so, she cannot now claim
error.
However, even if mother had preserved the placement
issue for our review, we would find no error.
In this case, the event that brought the children within the provisions
of section 300 was the explosion and fire which occurred while they were living
with mother. Since the children were not
living with Joseph at the time of the fire and explosion and since he requested
custody, the juvenile court had no choice under section 361.2, subdivision (a) but
to place them with Joseph unless it found by clear and convincing evidence
doing so would be detrimental to them. In
this case, the juvenile court determined that Joseph had sufficiently resolved
any safety concerns and ordered the children placed in his custody.
Mother contends the juvenile court erred in applying
section 361.2, subdivision (a) to Joseph because Joseph was an “offendingâ€
parent and the statute does not apply to an “offending†parent. Joseph was “offending,†mother claims, by
virtue of the allegations found true as to him in the petition and his failure
to show proof he completed or participated in the services offered to him.
The word “offending†is not used in the text
of section 361.2. This term first
appeared in the case law in In re Marquis
D. (1995) 38 Cal.App.4th 1813 where, in discussing section 361.2, the court
used the term “offending†to refer to the custodial parent and “nonoffendingâ€
to refer to the noncustodial parent. (
subsequent decisions, the term “nonoffending noncustodial parent†became
synonymous with the parent “with whom the child was not residing at the time
that the events or conditions arose that brought the child within the
provisions of Section 300.†(
410, 421-422 (John M.).)
A split of authority exists among the
appellate courts as to whether a parent must be both “noncustodial†and
“nonoffending†to be considered for placement under section 361.2. (See In
re A.A. (2012) 203 Cal.App.4th 597, 608; In re Nickolas T. (2013) 217 Cal.App.4th 1492, 1504-1505;
that section 361.2 only applies to a noncustodial “nonoffending†parent. We decline to do so.
Even if mother had preserved the placement
issue, the plain language of section 361.2, subdivision (a) is sufficiently
clear as to Joseph to bring him within its provisions. We reiterate: he is a parent with whom the children were not
living when the event (fire and explosion) arose that brought the children
within the provisions of section 300 and he requested custody of them.
Finally, mother contends the juvenile court
erred in not offering her reunification services. Had the juvenile court retained its
jurisdiction it could have provided mother reunification services under section
361.2, subdivision (b). However, it
chose to place the children with Joseph and terminate its jurisdiction which we
would uphold. Consequently, we need not
address whether the juvenile court abused its discretion in not ordering
reunification services for mother.
The Juvenile
Court did not Err in Terminating its Jurisdiction Without Determining Whether the ICWA Applies
Because it Does Not.
Mother contends the juvenile court erred in
terminating jurisdiction without first determining whether the ICWA
applied. We conclude the ICWA did not
apply because the children were being placed with Joseph rather than in foster
care.
The purpose of the ICWA is to preserve and protect Indian children,
families and tribes in the context of child dependency actions under state
law. (25 U.S.C. § 1901 et
seq.) The ICWA sets forth various
procedural safeguards, including a notice requirement, to effectuate its
goal. The ICWA requires: “[i]n any involuntary proceeding in a State
court, 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 … of the pending proceedings and of their right of
intervention.†(25 U.S.C.
§ 1912(a).) “One of the primary
purposes of giving notice to the tribe is to enable it to determine whether the
child involved in the proceedings is an Indian child.†(In re
H.A. (2002) 103 Cal.App.4th 1206, 1210.)
Mother does not contend the agency failed to comply with the ICWA’s
notice requirements. Rather, she
contends the juvenile court erred in not waiting for the responses and
determining whether the ICWA applied. We
conclude the ICWA did not apply irrespective of the responses the agency’s
notices might elicit.
By its own terms, the ICWA notice is only required where the agency seeks foster care or termination of
parental rights, “it does not require notice anytime a child of possible
or actual Native American descent is involved in a dependency proceeding.†(In re Alexis H. (2005) 132 Cal.App.4th 11, 14.)
In this case, the agency sought neither foster care nor adoption for
the children. Rather, the agency sought
placement of the children with their noncustodial parent. Thus, the ICWA did not apply and the juvenile
court did not err in terminating its jurisdiction without making an ICWA
determination.
We find no error and affirm.
DISPOSITION
The juvenile court’s dispositional orders are
affirmed.
Levy, Acting P.J., Cornell, J., and Kane, J.
and Institutions Code unless otherwise indicated.
