In re Patricia E.

Filed 9/14/06 In re Patricia E. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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, Harry M. Elias, Judge. Reversed and remanded with directions.

Steven E. (Father) appeals orders declaring his minor children, Patricia E. and Steven E., Jr., (the minors) dependents of the juvenile court under Welfare and Institutions Code section 300, subdivision (b), and removing them from his custody under section 361, subdivision (c)(1). (Statutory references are to the Welfare and Institutions Code.) Father challenges the sufficiency of the evidence to support the court's jurisdictional and dispositional findings.

Lisa E. (Mother) joins in Father's arguments and additionally argues the court erred by denying her request for a continuance of the section 366.26 selection and implementation hearing. She also contends the San Diego County Health and Human Services Agency (the Agency) did not comply with the notice requirements of the Indian Child Welfare Act (the ICWA) (25 U.S.C. § 1901 et seq.).

The Agency agrees with the notice contention. We conclude substantial evidence supports the court's jurisdictional and dispositional findings and that the court did not err by denying the continuance request. However, because notice under the ICWA was deficient, we reverse the orders and direct the juvenile court to comply with the ICWA.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2005, the Agency filed petitions on behalf of four-year-old Patricia and 18-month-old Steven under section 300, subdivision (b). The petitions alleged the minors were at substantial risk of suffering, or had already suffered, serious physical harm or illness due to the willful or negligent failure of the parents to provide them adequate food, clothing, shelter or medical treatment. Specifically, the minors had been taken into custody due to the unsafe and unhealthy condition of their home. The home was unsanitary, cluttered with trash, smelled of feces and urine, and was infested with cockroaches.

The detention report provided details of the home's condition and the minors' physical health. The living room and dining room were strewn with clothes, bottles, paper plates, broken items, and plastic bags filled with trash. Clothes were strewn over the entire hallway leading to the minors' bedroom. The bathroom was filthy and the bathtub was covered with mold. Dirty underwear and clothes were on top of the sink and on the floor. When the clothes were moved aside, cockroaches ran out. These conditions placed the minors at risk for many viral and bacterial infections that could result in severe and potentially lethal infections. The social worker noted both Father and Mother were developmentally delayed.

A child protective services (CPS) worker found Steven asleep in a crib on top of a sheet with a wide urine stain on it. The CPS worker noted Steven appeared underweight and moved about with listlessness. Mother did not know when Steven had last visited a doctor or whether his immunizations were up to date. Mother explained Patricia had been diagnosed with autism and attended special education classes. However, Patricia's teacher reported she frequently missed school and when she did attend, Patricia came to school in dirty clothes and smelling as if she had not bathed recently.

There were numerous prior substantiated reports of general neglect involving the minors beginning about two years before the Agency filed the instant petitions. In December 2003, social workers found Patricia locked in her bedroom by herself everyday until Mother woke up in the afternoon to feed her. In June 2004, shortly after Steven was born, social workers found the house in disarray. The kitchen sink was filled with old food and dirty dishes. The bathroom was full of dirty diapers and garbage. Father and Mother would lock the minors in their bedrooms at night. One month later, Patricia was found suffering from a severe diaper rash. The parents received one year of voluntary services but had difficulty complying with the case plan because of their developmental delays.

At the November 2005 detention hearing, the court detained the minors in out-of-home care and ordered supervised visits.

According to the jurisdiction and disposition report, the social worker conducted a home visit in December 2005. The parents reported spraying the home for insects. The social worker, however, observed cockroaches crawling on the coffee table, couches, and found dead cockroaches on the stove. Although the minors' bedrooms were clean and free of debris, the overall condition of the home remained cluttered. When questioned about the condition of the house, Mother and Father became easily confused and did not appear to understand what was happening.

The social worker interviewed Mother and learned Steven was not current with his immunization shots. As relates to Patricia, her teachers noted she had missed 17 out of 58 days of school. Once detained in out-of-home care, Patricia returned to school in a cleaner and healthier condition. She no longer smelled bad and her diaper rash had improved. Patricia's behavior had also improved. She was not as tired, was calm, and the frequency of her tantrums had decreased.

In January 2006, Father and Mother moved into a new home. Within a few weeks, however, Father and Mother showed signs of having difficulty maintaining a healthy and safe home environment. According to Patricia's foster mother, the home was cluttered with items, dirty plates on the tables, clothes on the floor and bags all over the home except for the minors' bedrooms. The social worker believed the parents showed signs of repeating the cycle of neglect.

In a follow-up addendum report filed before the jurisdiction and disposition hearings, the Agency reported Steven had been diagnosed with failure to thrive at 18-months of age. Dr. Nancy Graff examined Steven's records and found significant developmental delays and that he exhibited weight loss and inadequate growth while under the care of his parents. After being placed in-out-of-home care and receiving a normal diet, Steven resumed normal growth patterns. Steven also underwent ear surgery to improve his ability to hear. Steven had accumulated excessive fluid in his ears due to chronic ear infections. The surgeon expressed concerns that Mother and Father had been unable to recognize that Steven could not hear and they had allowed his condition to persist without taking action to correct it.

The report further noted Father and Mother had moved again for a second time. At an unannounced home visit, the social worker noted the home was cluttered with boxes. The kitchen sink was filled with dirty dishes and small knives were found out in the open. At a follow up visit one week later, the social worker found broken glass on the kitchen counter, dirty dishes in the sink, cigarettes on the coffee table and plastic bags in the living room. The minors' bedrooms remained clean and organized in their absence.

The parents did not appear at the combined jurisdiction and disposition hearings. Counsel requested the matter be continued. The court denied the request noting several continuances had previously been granted. After considering the Agency's reports, the court sustained the petitions, declared the minors dependents, and removed them from Father's and Mother's custody.

DISCUSSION

I

Father challenges the sufficiency of the evidence to support the court's jurisdictional findings. He asserts evidence of improved conditions in the home after detention shows the minors were not at substantial risk of suffering serious physical harm or illness at the time of the jurisdictional hearing.

A

In reviewing the sufficiency of the evidence on appeal, we look to the entire record for substantial evidence to support the findings of the juvenile court. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies. Rather, we draw all reasonable inferences in support of the findings, view the record in the light most favorable to the juvenile court's order and affirm the order even if there is other evidence supporting a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) When the trial court makes findings by the elevated standard of clear and convincing evidence, the substantial evidence test remains the standard of review on appeal. (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Section 300, subdivision (b) provides a basis for juvenile court jurisdiction if the child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness as a result of the parent's failure to adequately supervise or protect the child or provide adequate medical treatment. In enacting section 300, the Legislature intended to protect children who are currently being abused or neglected, "and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (§ 300.2.) The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child. (In re Heather A. (1996) 52 Cal.App.4th 183, 194-196; In re Michael S. (1981) 127 Cal.App.3d 348, 357-358.) "[E]vidence of past conduct may be probative of current conditions." (In re Rocco M. (1991) 1 Cal.App.4th 814, 824; see also In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135; disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)

B

As set forth in the petitions, Father's and Mother's inability to keep the home free of unsanitary conditions and hazards as shown at the time of the hearing is sufficient evidence for the court to find substantial risk that the minors had or will suffer harm. The record shows Father and Mother maintained filthy and unsanitary living conditions for the minors. Child protective services workers found the home filled with trash, dirty laundry, dirty dishes, and cockroaches. The minors' bedroom smelled strongly of urine and feces and the sheets in the minors' bedroom were covered with urine and feces stains. Although Father and Mother asserted the home had improved, visits to their home in the weeks before the jurisdiction and disposition hearing showed the existence of hazards in the home including broken glass on the kitchen counter, dirty dishes and cigarettes on the coffee table and dirty dishes in the kitchen sink.

In addition to the condition of the home, the Agency noted the parents' developmental disabilities and the extensive history of referrals alleging general neglect. The Agency reported the house was first reported as being dirty and unsanitary in September 2003. There was no food or milk in the home. It was further reported Patricia was often kept locked in her bedroom and unfed until late in the afternoon. In June 2004, a home inspection revealed a "filthy" home cluttered with garbage and dirty diapers. It was reasonable for the court to infer from the parents' disabilities, history of keeping an unsanitary home, and neglecting the needs of the minors that the children would currently be at risk to suffer serious physical harm or illness. Under these circumstances, the court is entitled to intervene to prevent further harm. Substantial evidence supports the court's finding. (In re Heather A., supra, 52 Cal.App.4th at pp. 194-196.)

II

Father challenges the sufficiency of the evidence to support the court's dispositional order. Specifically, he asserts there was no clear and convincing evidence of: (1) substantial danger to the minors' health absent removal; and (2) there were less restrictive alternatives to removal.

A

Before the court may order a child physically removed from his or her parent, it must find, by clear and convincing evidence, that the child would be at substantial risk of harm if returned home and that there are no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. (§ 361, subd. (c)(1).) The parent need not be dangerous and the child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child. (In re Diamond H., supra, 82 Cal.App.4th at p. 1136; In re Jamie M. (1982) 134 Cal.App.3d 530, 536, citing In re B.G. (1974) 11 Cal.3d 679, 699.) In this regard, the court may consider the parent's past conduct as well as present circumstances. (In re S.O. (2002) 103 Cal.App.4th 453, 461.)

B

Here, the court made jurisdictional findings under section 300, subdivision (b) as to the unfit condition of the home. Father and Mother had a history of providing an unsanitary home for the minors. The record provided little evidence that the parents would be able to maintain a healthy and clean home environment. Father stated he did not understand why CPS came to his house because "[i]t's just a dirty home." The social workers noted the home appeared clean one day and then unsanitary and unsafe the next. The social worker believed the minors were at risk because their parents remained in a cycle of neglect thereby creating an unhealthy and unsafe home environment. Further, the parents had not been able to meet the basic needs of the minors. The court was entitled to find the social worker's opinion credible and give great weight to her assessment. We cannot reweigh the evidence or substitute our judgment for that of the trial court. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.)

Other risk factors lend support to the court's removal order, including the parents' failure to provide adequate food and medical care for Steven. Steven had not received all of his immunizations and he was diagnosed with failure to thrive at 18 months. He exhibited developmental delays, weight loss, and inadequate growth. His parents had not recognized loss of hearing in one of his ears due to chronic ear infections. Once removed from his parents' care and offered a proper diet, Steven's condition dramatically improved. Patricia missed almost one-third of her days at school and when she did attend school, her clothes and skin were dirty, she wore dirty diapers and suffered from diaper rash, and smelled as if she had not bathed. Father and Mother clearly were not only unable to maintain a proper home, they could not properly parent and care for the minors. Under these circumstances, the court properly found removing the minors from Father and Mother's custody was necessary to protect them.

C

Father contends the court erred by not considering disposition alternatives less drastic than removal. He asserts the minors could have safely remained in his custody under stringent conditions of supervision.

As we previously noted, before the court removes a child from parental custody, it must find there are no reasonable means by which the child's physical health can be protected without removal. (§ 361, subd. ( c)(1).) Although the court must consider alternatives to removal, it has broad discretion in making a dispositional order. (Ibid.)

We reject Father's assertion there were less drastic alternatives to the minors' removal from his custody. The evidence showed numerous risk factors facing the minors had they been returned to their parents. The home continued to remain in a state of disarray, cluttered with dangerous objects and trash. Steven had failed to thrive and lost his hearing in one ear while in their care. Patricia failed to attend the schooling required to address her autism. In addition, the social worker believed the parents were not capable of providing a safe home for the minors. Based on the ongoing history of general neglect and unsuccessful participation in voluntary services, allowing Father and Mother to retain custody "under strict supervision" was not a reasonable option.

III

Mother contends the court abused its discretion by denying her request to continue the jurisdiction and disposition hearings. She asserts a brief delay in the proceedings would not have negatively impacted the minors' stability and the court should have considered her cognitive disabilities as reason for her failure to appear. She further asserts the court's ruling violated her due process right by denying her the opportunity to present her testimony in person and confront witnesses against her.

A

Under section 352, the juvenile court may grant a continuance of any hearing only on a showing of good cause and only if the continuance is not contrary to a child's best interests. In considering the child's interests, "the court shall give substantial weight to a [child's] need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a [child] of prolonged temporary placements." (§ 352, subd. (a); In re Ninfa S. (1998) 62 Cal.App.4th 808, 810.) Continuances in juvenile cases are discouraged. (Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1242.) We reverse an order denying a continuance only on a showing of an abuse of discretion. (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187.)

B

When Mother did not appear at the jurisdiction and disposition hearings, her attorney requested a continuance. Counsel stated he checked his messages and attempted to call Mother but provided no reasons for Mother's absence. The court indicated it had previously continued the matter on two separate occasions and denied counsel's request. Although Mother's condition may have caused her to have difficulty understanding court proceedings, she had an attorney to assist her. Further, she had appeared at previous hearings in this matter thereby showing she had the ability to comprehend court matters and the means to attend hearings. Because Mother did not show good cause, the court did not err in denying her request for a continuance. (See In re Gerald J., supra, 1 Cal.App.4th at p. 1187.)

Mother also has not shown a violation of her due process. Due process in the context of dependency law focuses on the right to a hearing, the right to notice and an opportunity to present objections. (In re Crystal J. (1993) 12 Cal.App.4th 407, 412-413; In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418.) Mother had notice of the jurisdiction and disposition hearing. She was present before the court in December 2005 when it scheduled the hearing for February 2006. She also was present in February and March 2006 when the court continued the hearing on both occasions to April 2006. Although the court did not grant a continuance, Mother was represented by counsel and her attorney had the opportunity to advocate on her behalf. No due process violation occurred.

IV

Mother contends that the court's jurisdiction and disposition orders should be reversed because the court failed to comply with the notice requirements of the ICWA. County counsel and minor's counsel concede that a limited remand is appropriate so that proper notice under ICWA can be given. We agree.

Congress enacted the ICWA in 1978 to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families." (25 U.S.C. § 1902.) It allows an Indian child's tribe to intervene in state court dependency proceedings (25 U.S.C. § 1911(c)) because the "ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource." (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.)

When the court in a dependency proceeding 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 of their right of intervention." (25 U.S.C. § 1912(a); In re Junious M. (1983) 144 Cal.App.3d 786, 790-791.) If the tribe is unknown, notice must be sent to the Bureau of Indian Affairs (BIA), as agent for the Secretary of the Interior. (25 U.S.C. § 1912(a); Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253.) No proceeding to terminate parental rights may occur until 10 days after the tribe or the BIA has received notice. (25 U.S.C. § 1912(a).) If proper notice is not given, the order terminating parental rights may be vacated. (25 U.S.C. § 1914.)

"Notice must be sent whenever there is reason to believe the child may be an Indian child, and for every hearing thereafter unless and until it is determined that the [ICWA] does not apply to the case." (Cal. Rules of Court, rule 1439(f)(5).) The child's Indian status need not be certain to invoke the notice requirement. (Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 254; In re Desiree F., supra, 83 Cal.App.4th at p. 471.) Information that the child is not enrolled in a tribe is not determinative. (Dwayne P. v. Superior Court, supra, at p. 254.) "Moreover, a child may qualify as an Indian child within the meaning of the ICWA even if neither of the child's parents is enrolled in the tribe." (Ibid.) The determination of whether a minor is, or is not, an Indian child is made exclusively by the tribe and is conclusive. (In re Jonathan D. (2001) 92 Cal.App.4th 105, 110; In re Junious M., supra, 144 Cal.App.3d at p. 793.)

Mother informed the Agency she might have American Indian heritage. Mother represented she learned of her possible heritage from the minors' maternal grandfather. However, the Agency did not make a good faith effort to investigate the Indian heritage in Mother's family. Specifically, there was no indication the Agency had investigated whether or not the maternal grandparents had Indian heritage. The Agency concedes notice in accordance with the ICWA was not given. (See Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 258.) The "juvenile court's failure to secure compliance with the notice provisions of the [ICWA] is prejudicial error." (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424; Dwayne P. v. Superior Court, supra, at p. 258.) Thus, the matter must be reversed for proper notice.

DISPOSITION

The jurisdiction and disposition orders are reversed and the juvenile court is directed to order the Agency to comply with the notice requirements of the ICWA. If, after proper notice and inquiry, no tribe exercises its right to intervene and the court determines that proper notice has been provided, the court is directed to reinstate the jurisdiction and disposition orders. If a tribe intervenes, the court is directed to conduct a new jurisdiction and disposition hearing in accordance with the provisions of the ICWA.

McINTYRE, J.

WE CONCUR:

McCONNELL, P. J.

AARON, J.

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