In re Sean B.

Filed 8/29/06 In re Sean B. CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from orders of the Superior Court of San Diego County, Peter E. Riddle, Judge. (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed.

Sean B., Sr., (the father) and Rose S. (the mother) (together the parents) appeal orders made at jurisdictional and dispositional hearings concerning their son, Sean B., Jr. (Sean). The father contends substantial evidence did not support the juvenile court's order denying him services. The mother asserts substantial evidence did not support the finding it would be detrimental to place Sean with her. The father also argues the court erred in finding proper notice was provided under the Indian Child Welfare Act (ICWA). We hold substantial evidence supports the challenged orders, but reverse for further proceedings to ensure proper notice under the ICWA.

FACTUAL AND PROCEDURAL BACKGROUND

On August 18, 2005, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of six-month-old Sean under Welfare and Institutions Code section 300, subdivision (a), alleging the father had subjected him to physical abuse.

The Agency received a referral that Sean had a bruise on his face and was very underweight. Upon investigation, the social worker found the home dirty and infested with ants. There was beer, but no food, in the refrigerator. The father said he was just about to buy food. He said Sean bruised his face when he hit his head on his walker and on an entertainment center, and he had rolled off the couch two weeks earlier. He acknowledged Sean was too thin and had missed two recent pediatric appointments. He took responsibility for Sean's condition, but explained there were stressors in his life, including his truck had been repossessed, his grandfather was ill, the mother was away on deployment in the United States Navy, two inconsiderate friends had been staying with him and terrorizing Sean, and he had no family support in the area. He and Sean appeared to be well bonded.

A public health nurse said Sean's weight was considerably below normal and not consistent with the father's report of how much he was feeding him. Skeletal scans showed Sean had bone fractures, including three rib fractures and long bone fractures.

The mother returned early from her deployment on emergency leave. She said she could not believe the father would harm Sean. He had told her he thought Sean was losing weight and they had missed doctor's appointments, but she did not realize anything was wrong. The father acknowledged he was inexperienced in caring for a child and said he had thought he was feeding Sean enough. He said friends who were living in his home may have been responsible for the injuries, and he would do whatever was requested of him and leave the home if necessary.

The court found a prima facie showing had been made on the allegations of the petition and granted the mother a temporary restraining order against the father. It detained Sean with the mother on the condition the father not reside in the home and authorized psychological evaluations for the parents.

The father said he believed his family had Cherokee heritage. The social worker sent notice to three Cherokee tribes of the proceedings.

The social worker visited the home on September 22 and found it in disarray, with a mattress, liquor bottles, underclothing and men's clothing on the living room floor. The mother explained she had had a party and everyone spent the night. The police performed a welfare check at 2:30 a.m. and found Sean to be well. The mother admitted she had allowed the father to be in the home, but thought it was all right because Sean was not there at the time. She said the pants and uniform shirt found in the home belonged to the father, but were there only to be laundered. Sean was removed from the mother's care on September 29.

After a time, the mother's counselor reported the mother was becoming more responsive to services and more attached to Sean. There was concern she was not taking Agency involvement with the family seriously and the father might still be living in the home. The social worker was told the mother had been overheard during a telephone call saying, "make sure you get the house straightened out and you get out of there because CPS is coming over," and an officer told the mother's counselor she admitted the father was still living in the home. Sean was diagnosed with moderate to severe non-organic failure to thrive and battered child syndrome. The public health nurse said he was gaining weight and improving his motor skills.

On November 9 the Agency filed an amended petition under section 300, subdivisions (a) and (e), alleging the father had subjected Sean to physical abuse resulting in bone fractures and non-organic failure to thrive. The court ordered Sean detained in foster care.

The social worker reported one of the Cherokee nations that had received notice responded that based on the information provided, Sean was not considered an Indian child in relationship to the Cherokee nation. The court found the ICWA did not apply.

The psychologist who administered the mother's psychological examination said the mother thought the father's roommates had caused Sean's injuries, but the father was at fault for him being malnourished. She thought the father was overwhelmed and not even able to care for himself while she was away. The evaluator said the mother had mixed feelings about the father and recommended therapy.

The psychologist who evaluated the father said the father used poor judgment and either abused Sean himself of failed to protect him from others. He said there was concern about the father's general judgment and ability to cope with difficulties. He opined the father could benefit from reunification services, but there was not a good prognosis of him ever being a positive and effective parent.

At the jurisdictional and dispositional hearings, the social worker testified she believed Sean was at risk in the mother's care because the mother did not believe the father would harm him. The social worker expressed concern there were indications the mother was untruthful and the father continued to come to the home. She testified the mother's parenting class instructor said the mother did not accept the father's culpability and had told others she was pregnant again by the father. The father had not participated in services and did not come by her office to pick up referrals she had left for him. She had been unable to reach him by telephone until just before the hearing. He blamed friends staying in the home for Sean's injuries and had visited him only three times in three months. She proposed he not receive services based on his lack of participation and denial of responsibility and said the psychological evaluation did not change her recommendation.

The mother testified the father had not lived in the home since August and she would not allow him to be around Sean. She said she would follow the court's orders. She testified she believed the father was responsible for Sean's bone fractures and she wanted contact with him only so far as it concerned Sean. She said she was pregnant, but another man probably was the father of this child.

The father testified the mother did not let him come to the home if Sean were there. He was willing to participate in services, was attempting to find a parenting class and a therapist and wanted to be a part of Sean's life. He had not realized the social worker had left service referrals for him at her office. He said he and the mother had not been in a relationship since August, but they remained friends.

The court denied services to the father under section 361.5, subdivision (c). It found the mother was the noncustodial, nonoffending parent, but she had not been truthful in her testimony and it would be detrimental to place Sean with her. It removed custody and placed Sean in foster care.

DISCUSSION

I

The father contends the court erred in denying services to him. He argues he showed reunification services were likely to prevent Sean being abused again and the Agency presented no evidence to the contrary and failed to investigate and to meaningfully advise the court whether services were likely to prevent future abuse or continued neglect. He also argues the court erred in finding that denying services to him would not be detrimental to Sean.

The court found by clear and convincing evidence that Sean was a child described in section 300, subdivisions (a) and (e).

Section 361.5, subdivision (b)(5) provides reunification services need not be provided to a parent or guardian when the court finds by clear and convincing evidence that "the child was brought within the jurisdiction of the court under subdivision (e) of Section 300 because of the conduct of that parent or guardian." Section 361.5, subdivision (c) provides

"the court shall not order reunification in any situation described in paragraph (5) of subdivision (b) unless it finds that, based on competent testimony, those services are likely to prevent reabuse or continued neglect of the child or that failure to try reunification will be detrimental to the child because the child is closely and positively attached to that parent. The social worker shall investigate the circumstances leading to the removal of the child and advise the court whether there are circumstances that indicate that reunification is likely to be successful or unsuccessful and whether failure to order reunification is likely to be detrimental to the child."

The father did not show that reunification services would likely prevent future reabuse or that a failure to provide services would be detrimental to Sean.

The Agency fulfilled its duty to investigate and advise the court The social worker recommended services be denied because of Sean's severe injuries and the father's denial of responsibility, his lack of participation in services and his untruthfulness regarding his relationship with the mother. The psychologist who evaluated the father opined he was not capable of parenting Sean. He said although the father could benefit from services, the prognosis was not good that he would ever be a positive or effective parent.

The father relies on In re Rebekah R. (1994) 27 Cal.App.4th 1638, 1656, where the reviewing court held substantial evidence did not support the juvenile court's order that no services would be provided to the father. However, in In re Rebekah R., supra, the father's psychological evaluation did not mention his ability to parent in the future, there was evidence he had not caused the child's injuries, and he had limited ability to recognize the child was being abused. Also, he immediately started services and regularly visited the child, and the psychologist said his problems could be addressed through reunification services. (Id. at p. 1644-1645.) Here, by contrast, the psychologist opined the prognosis for the father becoming a positive and effective parent was poor, even though he could benefit from services, and the father did not take advantage of services and rarely visited. In re Rebekah R. does not support the father's position.

The father also misplaces reliance on Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159. There, the appellate court affirmed an order denying services to the father and stated, although the social services agency was required to investigate and provide the juvenile court with information about the likelihood of successful reunification, it was not required to prove that reunification services would be unsuccessful. (Id. at p. 164.) Here, the psychological evaluation described the father's significant problems and poor prognosis. The father has not shown the court erred in denying services.

The father also has not shown the court erred in finding that denying services to him would be detrimental to Sean. The father did not produce evidence to show Sean was strongly bonded to him. Sean was only six months old at the time of removal. During the time he was living with the father, he suffered non-organic failure to thrive, broken bones and a bruise on his face, and the father allowed people to live in the home who he said had been terrorizing Sean. After Sean left the father's care, he gained weight and his development improved. Between removal and the time of the hearings about five months later, the father visited him only three times. The court could reasonably infer that Sean and the father did not have a close, positive bond. The father has not shown error.

II

The mother contends the court erred in removing Sean from her home based on the social worker's belief that the father was in the home. She argues no direct evidence was presented on this issue and the court erroneously admitted hearsay statements that greatly damaged her credibility.

Section 361, subdivision (c)(1) provides no child may be taken from a parent's physical custody unless the court finds by clear and convincing evidence:

"There is a substantial danger to the physical health, safety, protection or physical or emotional well-being of the minor or would be if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parents' . . . custody."

Because the mother was not residing with Sean at the time he was injured and the court found she was the noncustodial, nonoffending parent, it was required to place Sean in her care unless it found by clear and convincing evidence that such placement would be detrimental to his safety, protection, or physical or emotional well-being. (§ 361.2, subd. (a); In re Marquis D. (1995) 38 Cal.App.4th 1813, 1829.)

The court determined the mother had not been truthful in her testimony regarding her continued contact with the father. The social worker's report that the mother had been overheard telling someone to straighten out the house and leave because CPS would arrive soon was contained in the social study that was filed well in advance of the hearing. The mother waited until the social worker's testimony to object to this testimony. Her objection was thus not timely. As for the social worker's testimony that the parenting instructor reported the mother had said she was pregnant with the father's child, the social worker, testifying as an expert, used this information as one of the reasons she doubted the mother's veracity and believed Sean would be at risk in her care. The court did not err in admitting the evidence, and, even if the evidence were admitted in error, there were several indications in the social worker's reports that could cast doubt on the mother's truthfulness about whether she and the father remained in a relationship and whether they continued to live together in the home. These included that fact there was men's clothing in the home and the mother said it was there only to be laundered; there was a locked storage cabinet at the apartment, and only the father had the key even after he had moved out; and when the social worker came to the home, it appeared to her that someone had just run out, leaving the door and the gate wide open. Ample evidence supported the court's finding the mother had not been truthful and that placement with her would be detrimental to Sean's safety, protection and well being.

III

The father, joined by the mother, contends the court erred when it found proper notice had been provided under the ICWA. He argues missing information on the notices could easily have been ascertained. He also claims because there was some indication Sean might have Indian heritage the court was required to comply with the heightened procedural and evidentiary standards of the ICWA. Because Sean had not been determined to be an Indian child under the ICWA, the court was not required to apply ICWA standards. However, the case must be remanded to ensure that proper notice is given under the ICWA.

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.) "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.) Section 1911 of the ICWA provides that 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 BIA. (Ibid.)

Here, the Agency acknowledges it did not provide sufficient information on the forms it sent to the Cherokee tribes to enable them to make informed decisions about whether Sean qualifies as an Indian child under the ICWA. As the father points out, the Agency did not even include names or birth dates for the father's parents in the forms it sent. We thus reverse and remand to allow proper notice under the ICWA.

As to the father's arguments regarding required findings under the ICWA, these arguments are inapposite because there has not been a determination that the ICWA applies in this case. California Rules of Court, rule 1439(e)(3) requires,

"if, upon inquiry, or based on other information, the court has reason to know the child may be an Indian child, the court must proceed as if the child were an Indian child and must proceed with all dependency and wardship hearings, while observing the Welfare and Institutions Code timelines, while complying with the act and this rule."

Here, the court determined the ICWA did not apply. Therefore, it cannot be said that the court had "reason to know the child may be an Indian child." (Cal. Rules of Court, rule 1439(e)(3 ).) The court thus did not err in failing to apply the heightened standards mandated by the ICWA and by the rules. (Cf. In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413 [trial court did not commit reversible error in failing to apply substantive portions of ICWA where it failed to make an explicit finding the ICWA did not apply, but the record showed the ICWA did not apply].) If after remand and proper ICWA notice, the court determines Sean is an Indian child, it must then proceed in compliance with the ICWA and the rule.

DISPOSITION

The orders are reversed. The court is directed to require the Agency to comply with the notice requirements of the ICWA. If after proper notice a tribe exercises its right to intervene, the court is directed to hold a new dispositional hearing. If a tribe does not exercise a right to intervene, the court is authorized to reinstate the orders.

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

HALLER, J.

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