In re Anna C.

Filed 4/18/07 In re Anna C. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Elva R. Soper, Judge. (Retired judge of the Los Angeles Sup. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.

Lori A. Fields, under appointment by the Court of Appeal, for Minors.

In March 2006, half sisters Anna C. (born December 1999) and Kayla K. (born April 2003) were declared dependents of the juvenile court, after which Anna was placed in foster care and Kayla was placed, pursuant to Welfare and Institutions Code^[1]section 361.2, with her noncustodial nonoffending father, Donald K. Holly K., the girls mother, appeals the courts jurisdictional findings and dispositional orders, contending they are not supported by substantial evidence. She also argues the court erred in failing to make a finding that placing Kayla with Donald would not be detrimental to Kaylas emotional health and well-being and that, in any event, the sibling bond between Kayla and Anna constitutes substantial evidence of detriment so as to preclude Kaylas placement with Donald. Further, she contends the court failed to recognize that representation of the two siblings by the same trial counsel constituted a conflict of interest, and erred in not requiring the Department of Public Social Services (DPSS) to rectify errors and omissions in the notices it served pursuant to the Indian Child Welfare Act (ICWA). Finding no merit to any of her contentions, we affirm.

FACTUAL AND PROCEDURAL HISTORY

A juvenile dependency petition filed March 1, 2006, alleged under section 300, subdivision (a), that Anna had suffered serious, nonaccidental, physical abuse inflicted by mothers live-in boyfriend, Michael Smith, when he hit Anna with a belt, causing her to have red marks and bruising about her buttocks, and that mother had failed to protect Anna from the abuse. The petition further alleged under section 300, subdivision (b), that in late February 2006 Kayla had been found wandering the street in the rain, unsupervised; that mother admitted leaving the children without adult supervision while she attended school, and that such actions place the children at risk of serious physical harm; that the familys living environment was hazardous to the childrens physical well-being; and that she admitted her children had not been immunized because she believed doing so would be unsafe. The petition also contained a section 300, subdivision (j) count as to Kayla based upon the alleged physical abuse to Anna.

At the time the petition was filed, both children were residing with mother and Smith. After the girls were detained, they were placed together in a confidential foster home. Three days later, Kayla was released to the custody of her father, Donald.

Mother was studying to become a massage therapist and would leave for school at 4:00 p.m. Monday through Thursday and return each night around 11:00 p.m. According to Anna, Smith was usually home with her and her sister while mother was at school. He worked from midnight to 8:00 a.m. as a casino security guard, and would generally sleep during the day. He would feed the children and put them to bed at 8:00 p.m. Anna said mother knew that Smith hit her, but did nothing to intervene. However, she was not afraid of either mother or Smith, and felt safe living with them. Mother told the social worker she could not afford to place the children in a licensed daycare facility. Smith admitted that he hit Anna on the buttocks with a belt almost weekly, and mother was aware of this physical abuse inflicted upon Anna. Annas father, Glenn R., was deceased and had never been involved in Annas life. Kaylas father, Donald,^[2]who had been married to mother at the time of Kaylas birth, had since relocated to Florida for better job opportunities. Although he had been awarded custody of Kayla in the family law proceeding, he had left Kayla in mothers custody when he moved away in March 2005 and since then had visited Kayla in May and December of that year. He was also paying child support to mother. According to mother, Donald had been in Kaylas life for only five and one-half months; however, Donald told the social worker he had been active in his daughters life until March 2005, when he moved to Florida, and that he wanted custody. He denied any past and present drug abuse and/or having any criminal background.

At the detention hearing the next day, the court scheduled trial for March 23, 2006. The court reserved its ruling under the ICWA until trial, mother having told the social worker that she and the maternal grandmother are Cherokee, but are not registered with the tribe. The court placed Kayla with Donald subject to the supervision of the social worker, and acknowledged that the ICWA did not apply to Kayla because shes going with her dad.

Counsel for Donald assured the court that her client was willing to facilitate sibling visitation: He does have family out here, and he has indicated he can take the time to facilitate that sibling relationship. Mothers counsel argued against placing Kayla with Donald, asserting that mother should be given an opportunity to keep visiting this child, who is very bonded to her, and stay around her sibling. I think it would not be in the best interest of the child to move her to Florida, at this time, away from the people that shes most bonded to. Noting that the circumstances were not unlike those in divorce cases where the custodial parent moves away, the court told mother that the goal is probably to return your older child to you by the time of the jurisdictional hearing.

According to mother, Smith moved from her apartment the day after the detention hearing. However, on March 16, an article of clothing belonging to Smith was found in a closet in mothers apartment, upon which mother commented, he does not use it. Meanwhile, mothers housekeeping standards had improved, there was sufficient food in the refrigerator and pantry, and she was very cooperative with the social worker. Yet, while she indicated a willingness to participate in any services needed to assist in the childrens return, she failed to follow through with the social worker on a regular basis to arrange visitation. As a result, she was having infrequent visits with Anna who, pending trial, was still placed in foster care. And while Donald had indicated a desire to have custody of Kayla, and made arrangements for Kayla to be cared for when they get to Florida and he returned to work, the social worker pointed out, At the same time, he stated that he wants to leave the child in the care of her mother to resume the bonding between the siblings. Donald also told the social worker he had warned mother in the past about her living conditions and failure to maintain a clean residence, adding that this is one of the reasons they divorced. He further stated that mother is always pawning the children with friends and expects them to discipline her children.

The jurisdiction/disposition report prepared for the trial scheduled for March 23, 2006, recommended that Anna remain in out-of-home foster care, and that Kayla be placed with Donald, who was to be deemed a nonoffending parent pursuant to section 361.2, subdivision (b). The social worker also recommended issuance of a family law exit order awarding physical custody of Kayla to Donald, with joint legal custody to mother, and that upon the filing of such order, the petition be dismissed as to Kayla.

Furthermore, the social worker recommended that placement of Anna with mother be authorized upon condition that Smith is neither residing in mothers home nor being utilized as a babysitter; that no other adults be permitted to reside in mothers home without the social workers authorization; that any childcare arrangements be approved by the social worker; that mother is actively participating in a case plan; and that the home meets appropriate health and safety standards.

Finally, the report indicated that the ICWA may apply with regard to Anna. DPSS had given notice that Anna could be eligible for membership in the Cherokee tribes. However, the notice reflected a typographical error in the surname of Annas deceased father and contained sparse information pertaining to mothers maternal grandmother.

Trial proceeded as scheduled on March 23, 2006. At the outset, the deputy county counsel reiterated that DPSS was seeking authorization to place Anna with mother upon the conditions specified in the social workers report. Counsel for the minors indicated she had no affirmative evidence to present and that she was submitting on DPSSs report. Counsel for Donald indicated that her client was amenable to a visitation schedule through mediation.

The court then inquired of counsel as to whether the petition could be dismissed as to Donald. The deputy county counsel indicated, Were not dismissing, whereupon mothers counsel stated, Theyre essentially making him nonoffending. Mothers counsel said she had no objection and was not presenting evidence as to that. The court thereupon dismissed the allegations against Donald, although the minute order indicates the allegations were dismissed by agreement of [the] parties.

The social worker testified that she had thought about the sibling relationship in making her recommendation for disposition. She explained that she had considered Donalds representation that he would facilitate contact between the siblings by means of telephone calls and letters.^[3] She admitted she had not inquired of mother with regard to a bond between the siblings, and that until that day had not seen the siblings interact with one another. The social worker had not considered whether it would be all right for Kayla to return to mother in the event mother met certain conditions; she had already made the determination that Kayla was going with her father.

The social worker had viewed interaction between Kayla and Donald one week earlier, at the DPSS office, and found it to be appropriate. Kayla appeared to know Donald as her father. During that meeting, which lasted about 30 minutes or so, she made the determination that it would not be detrimental to place Kayla with her father in Florida. Annas foster father, with whom both girls had been placed together initially for 72 hours, told her that the bonding between the two sisters is not that strong. She therefore did not believe it would be detrimental to the children if they were split up. The foster father had also informed her that Anna was adjusting well in placement without her sister, and she had considered that in making her determination. As for her failure to include in her report that her decision regarding the sibling relationship was based on the foster fathers comment, she explained, I probably just forgot. According to the social worker, Anna was parentified to begin with anyways.

The social worker denied that her decision to place Kayla with Donald was based solely on his being a nonoffending parent. She acknowledged that her report said nothing about whether she had considered the sibling relationship; however, she indicated that it was mentioned in her case plan, in which she asked that Kaylas father have contact via telephone or letter with the child, with each other, the kids.

Mother testified that her relationship with Smith had ended, that he had moved out of her apartment after the detention hearing, and that no other adults were living there. She had looked into daycare for the children in the event they were returned to her. The place she had contacted was a home rather than a facility, but she had not yet visited it. The details were not yet worked out because she needed to make arrangements for payment; the cost was $110 per week for a four-day period. If the children were placed with her, she would ask DPSS for assistance until she could afford it herself.^[4] In response to her attorneys inquiry, she said that if the court authorized the childrens return to her, she would personally check out the home.

Mothers said her apartment was currently clean and that she planned on keeping it that way. She referred to photographs which she had taken on March 1, indicating that they depict the condition of her apartment at that time. Counsel stipulated that the photographs do accurately reflect the home at the time they were taken. Mother added that her apartment, as well as the entire building complex, had been fumigated by a pest control company; thus, any bug problem had been eliminated. She was willing to comply with any and all directives in order to have her children returned to her. She explained that when she did not clean up the house in the past, it was because she thought it was more important to spend time with her daughters.

Mother acknowledged that she had not objected when Smith spanked her children. She did not agree with his use of a belt to discipline Anna, however, and denied that she told the social worker otherwise. She admitted she was present when Smith hit Anna with a belt, and in response to an inquiry as to what course of action she took, she said: I -- after the session was over I did speak to him. The deputy county counsel remarked, It was a session? Mother responded: The -- after it was done. And instead of yelling at him in front of her, I took -- we spoke in private. Even after she spoke to him, he never stopped doing it. She had not seen bruises or marks on her daughter after she had been hit. Although she saw the picture attached to the detention report showing a bruise on her daughters buttocks, she said she had never actually seen the bruise on her daughter, even though she gives her a bath every night. The court promptly recalled that Anna is the six-year-old who was taking a bath by herself. Mother herself had never used a belt on the children as a form of discipline. Instead she uses Timeouts, or smacks them on their hands.

Mother indicated that when Smith would come home from work, she would keep the children away from him for a little while, in order to give him time and space to calm down. She was not concerned about Smiths behavior in terms of physical abuse of the children or spanking. She had only seen him hit her daughter once or twice; however, she admitted that there may have been times when Anna was hit when she was not present. She now knows that it is wrong to use a belt on the children as a form of discipline, and did not realize it was wrong when she witnessed Smith doing it. She had a wake-up call from this case. When she said she agreed with Smiths discipline, she was talking about his use of spankingnot his use of a belt. Although she did not think that what he was doing was wrong, she talked to him about it because it was on [her] mind. It bothered her that on one occasion she saw him hit Anna six times with his belt. She spoke to Smith about other methods for disciplining the children. He first started hitting Anna at the beginning of 2005. She claimed that Anna did not cry when Smith hit her six times; rather, Anna just told him not to do that.

Mother had not yet started parenting classes, but said she was told by the social worker that she will be attending them very soon. She had not been given any formal referrals for services, and was waiting to receive them from the social worker. Although she was given a telephone number to call, she had not been able to get through, as the line was always busy.

Mother disclosed that she had not yet had Smiths name removed from the lease, but intended to do so when she paid the next months rent. Although she acknowledged that the apartment may have been leased to her and Smith based upon their joint credit, she indicated that her parents would help pay the rent until she got a job. A short time later, she said that her parents would help her [if] they can. She was not yet working, but was an extern in a massage therapy program and there was a possibility that she would work there afterwards.

According to mother, Kayla had lived with Anna her entire life. In response to a request to describe their relationship, mother said: Loving, caring. They hug each other all the time. They always tell each other that they love them. . . . [T]hey do quarrel sometimes, but thats a sibling thing. But they always do things together. [] When I take Anna [] to school, its very hard for Kayla to let Anna [] go because she wants to be with her sister and do the things that [her] sister does. Mother went so far as to tell the social worker that she thought Anna might have unlocked the door to allow Kayla to go outside because Anna wanted attention.

Donald testified that he moved to Florida in March 2005. He is single, lives in a one-bedroom apartment, works 40 to 50 hours a week, and has no relatives there. He goes to church on Sunday and hangs out with friends on Saturday. He is currently pursuing a job opportunity in Las Vegas, to be able to be closer to the kids so the kids may maintain that sibling bonding.

When Kayla first came to him, she had a tremendous appetite; she was as hungry as can be. She wanted to eat everything. Since coming to him, she has been putting on weight. She also had diaper rash, and after home remedies failed, he took her to the doctor, who prescribed antibiotics. He is ready to take Kayla on a full-time basis. He knows that the bond between the girls is important to them. He loved Anna like shes my own. He said that Anna calls him daddy.

During the past year, Donald visited Southern California three times, each visit lasting two to four weeks. For at least half of that time, he and Kayla were usually together during the day, from 10:00 a.m. to 4:00 p.m. They would meet at a Dennys restaurant in Banning. Mother wanted to keep her home address confidential, as did he. During his last visit, he was permitted to have Kayla overnight.

After hearing closing argument, the court indicated it was going to follow the social workers recommendation, except with regard to authorizing Annas return to mothers home: My feeling is the mother was trying to testify as to what she wanted us to hear and not exactly what was happening. I think the six-year-old was the primary caretaker which is unfortunate. [Mother] goes to school knowing that [Smith] goes to sleep while hes supposedly watching the children. [Mother] testified she bathes the child every night. Shes at school. She couldnt bathe her or else she has to wake her up at 11:30 to bathe her. She needs a lot of parenting before these children go back. I am going to follow the recommendation.

The court found the allegations of the petition to be true with the exception of those pertaining to Donald. The court found that Kayla came within subdivisions (b) and (j) of section 300, and that Anna came within subdivisions (a) and (b). The court found that reasonable efforts had been made to prevent or eliminate the need to remove the children.^[5] Further, the court found that pursuant to section 361.2, there is a parent of Kayla with whom the child was not residing who desires to assume custody, and thus awarded sole physical custody of Kayla to Donald, with joint legal custody to mother and Donald. The court referred the matter to mediation with respect to visitation between mother and Kayla.

With regard to both children, the court adopted the recommendations of the social worker,^[6]except that it refused to authorize Annas return to mother upon the conditions specified by DPSS. With regard to Anna, the court directed DPSS to provide mother with reunification services and also found that the ICWA may apply.

DISCUSSION

A. Substantial evidence supports the juvenile courts jurisdictional finding under section 300, subdivision (b), and its dispositional order removing the children from mothers custody.

Mother contends there is insufficient evidence to support either jurisdiction or removal. When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing evidence, the reviewing court must determine if there is any substantial evidencethat is, evidence which is reasonable, credible and of solid valueto support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, we resolve all conflicts and make all legitimate inferences from the evidence to uphold the courts orders, if possible. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.) In so doing, we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (In re Jason L., supra, at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

1. Jurisdiction

Mother challenges the courts jurisdictional findings under both subdivisions (a) and (b) of section 300. Jurisdiction is appropriate under subdivision (a) where [t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the childs parent or guardian. Mother contends that because she is not the person who was found to have nonaccidentally inflicted harm upon Anna, the subdivision cannot apply. While she concedes there is evidence that she knew Smith had hit Anna with a belt on more than one occasion, she insists it is not enough to bring her within subdivision (a).

In response, DPSS contends that because mother permitted Smith to act as a parent or guardian, discussed with him methods of discipline, and did not oppose his acts of corporal punishment, she should be precluded from creating these circumstances and then escaping a jurisdictional finding concerning Annas injuries. While DPSS does make an interesting argument, we need not decide the issue. When the juvenile court assumes dependency jurisdiction under more than one subdivision of section 300, its ruling must be affirmed if the evidence supports the decision on any one of several grounds. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.) Here, as we shall explain, there is substantial evidence to support the courts finding under subdivision (b).

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 parents 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 statutory definition consists of three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) serious physical harm or illness to the minor, or a substantial risk of such harm or illness. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) In evaluating the proffered evidence, the emphasis must be on circumstances existing at the time of the jurisdiction hearing. (Id. at p. 824.) However, evidence of past conduct may be probative of current conditions. (Ibid.)

Mother essentially concedes there is evidence of neglectful conduct and causation. What she insists is absent is evidence of a current substantial risk of serious physical harm to her children. She points to evidence that she had no prior history with DPSS, had never been arrested, had no history of substance abuse, and was very cooperative with the social worker. She argues: What took her away from home and away from her children were schooling, job-training and self improvement. . . . Here was a young woman--a single parent--who made mistakes in making a plan for supervising her children and in deferring discipline. Here, the removal of the immediate risks of harm to her children removed the teeth of the allegations against her. She separately attacks each of the courts findings under subdivision (b).

First, with regard to the allegation that she placed her children at risk because she failed to immunize them, she asserts that she authorized Annas immunizations while Anna was in foster care and would abide by court orders and medical recommendations. She also points to evidence that she did take the children to the doctor when needed, and notes that this was confirmed by Donald; thus, there was no evidence of medical neglect. As for the allegation the home was filthy and there was inadequate food for the children, she maintains that because at the time of trial the apartment was clean, free from insects, and stocked with food, there was no evidence of substantial harm or danger. With regard to the allegation that Kayla was found wandering in the street, she contends there was no evidence of a chronic lack of supervision to support a finding of substantial danger in the future and she had inquired about childcare for the periods of time she would be in school. Finally, and perhaps most importantly, as to the allegation she was aware Smith had hit Anna with a belt on several occasions, she contends she did not then know that such discipline was improper, but does now. Moreover, because she has ended her relationship with Smith, and Anna reportedly is not afraid of living with her, she maintains there is no reason to believe she would allow either child to be disciplined in that manner in the future. In this regard, she notes that the social worker had recommended authorizing Annas return home if the home checked out and she was complying with her case plan. And while she concedes that she had not yet begun counseling, was not working, had not visited the proposed daycare facility, and Smiths name remained on the apartment lease, she insists that none of this constituted substantial evidence of risk to support the petition. That is, she acknowledges that evidence of past conduct may be considered in deciding jurisdiction, but insists there must be some reason to believe the conduct may continue in the future. (In reNicholas B. (2001) 88 Cal.App.4th 1126, 1134.) Here, she argues, the court based its findings too much on [her] past conduct.

Further, she maintains that although Smiths discipline was inappropriate, he was not exactly a monster, and reminds us that neither she nor Smith had ever before been the subject of a referral to a child welfare agency. Indeed, but for the fact that Kayla was found wandering in the street, it is entirely possible that this family would never have come to the attention of DPSS. But it did. And what was thereafter disclosed speaks for itself. As for her own conduct, she insists it was nothing more than an error in judgment and all she needed was instruction on how to be a better parent.

Mothers position is flawed. She assumes that the only serious allegation was the one pertaining to Smiths use of a belt to discipline Anna, and that since he is now gone from her life, so too is the risk of harm. Not so. Her actions in allowing Smith to discipline Anna by means of a belt, and her claim that she did not know at the time that it was wrong to do so, are symptoms of a larger problem which, at the time of trial, had yet to be resolved. The court impliedly found that between the time the children were detained and the date of trial, nothing of any significance had changed in mothers life. Although Smith was gone and her apartment was clean (at least as of March 1), she had not yet taken any steps to deal with her problems. Moreover, we agree with the juvenile court that mother was trying to testify as to what she wanted us to hear and not exactly what was happening, and, in that regard, doubt her sincerity in asserting she was not previously aware that corporal punishment was wrong.

In short, the future risk of harm to Anna and Kayla consists of substantial evidence that mother had not yet addressed crucial issues concerning her parenting skills regarding corporal punishment and leaving young children alone and unsupervised. The finding of jurisdiction was therefore proper.

2. Disposition

The focus of mothers next argument is the order removing the children from her custody. She contends the court failed to make the requisite factual findings as to the basis for its decision as required by statute, and that in any event, there is insufficient clear and convincing evidence to support removal.

Before the court may order a minor physically removed from his or her parent, it must find, by clear and convincing evidence, the minor would be at substantial risk of harm if returned home and there are no reasonable means by which the minor can be protected without removal. ( 361, subd. (c)(1).) A removal order is proper if it is based on proof of parental inability to provide proper care for the minor and proof of a potential detriment to the minor if he or she remains with the parent. [Citation.] The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child. [Citations.] (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, overruled on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) Thus, there must be clear and convincing evidence that removal is the only means of protection for the child. (In re Henry V. (2004) 119 Cal.App.4th 522, 530.) We review the findings in the light most favorable to the orders to see if substantial evidence supports them. (In re Isayah C. (2004) 118 Cal.App.4th 684, 694-695.)

Although the standard for removal under section 361 is clear and convincing evidence in thejuvenile court, the appellate court reviews the juvenile courts findings for sufficiency of evidence. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) Furthermore, it is the duty of the juvenile court to determine the credibility of the witnesses. (In re Marco S. (1977) 73 Cal.App.3d 768, 781.) However, the court must consider the circumstances as they presented themselves at the time of the disposition hearing. (In re Jeremy C. (1989) 109 Cal.App.3d 384, 394.)

Section 361, subdivision (d) states: The court shall state the facts on which the decision to remove the minor is based. Failure to make the required findings is error. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1218.) However, an error in not making factual findings is deemed harmless where it is not reasonably probable such finding, if made, would have been in favor of continued parental custody. [Citations.] (Ibid.)

Although mother is correct that the juvenile court did not make the requisite factual findings, we are satisfied that based on this record there can be no question the courts decision not to return the children to mother was based upon its finding that mother had done nothing to alter the circumstances underlying the childrens removal from her home. That she ousted her boyfriend was simply not enough. Thus, we are reasonably certain that had the court made an express finding, it would not have been to then return the children to mothers custody. In any event, as DPSS points out, and as indicated in footnote 6, supra, the court stated it was following the recommendations of the social worker, which included findings under section 361, subdivision (c).

Turning to mothers evidentiary challenge, she contends her home was safe, clean, and stocked with foodand Smith had moved out. Again, concentrating primarily on the corporal punishment inflicted upon Anna by Smith, she acknowledges that her testimony about childcare, employment, and paying the rent showed that she needed help. But she contends this was not clear and convincing evidence of substantial danger if the children were returned to her. Again, we disagree. The problem is not the corporal punishment per se; it is the fact that mother allowed it to happen. Thus, removing the effect of mothers lack of parenting skills has little if anything to do with its cause.

Relying on In re Basilio T. (1992) 4 Cal.App.4th 155 and In re W.O. (1979) 88 Cal.App.4th 906, mother contends her case is not so extreme as to warrant removal. Her reliance on these cases is not supportive of her position. In In re Basilio T., the Court of Appeal reversed a dispositional order removing two young children from their parents custody. There, despite police investigations at the parents home based on reports of physical assault and domestic violence, followed by the minors statements to a social worker that they had seen violent fighting between their parents, the court concluded there was not substantial evidence to uphold a finding under former section 361, subdivision (b)(1) under the clear and convincing evidence standard, noting that the reports by the complaining neighbors were at least double hearsay: While these incidents presumably occurred in or near the minors presence, it is significant that neither incident directly affected either minor physically, i.e., the adults were fighting with each other and not directing their anger at the minors or abusing them. In fact, no evidence whatsoever was presented that the minors were harmed physically during the incidents that led to this proceeding. (In re Basilio T., supra, 4 Cal.App.4th at p. 171.)

In In re W.O., supra, 88 Cal.App.4th 906, jurisdictional and dispositional orders were reversed, the appellate court concluding that the remote possibility the minors would be endangered by their present environment did not provide a sufficient basis for removing them from parental custody. There, two children were taken into protective custody because cocaine and marijuana had been discovered at their residence, and the trial court speculated that the drugs might have been accessible to the children and ingested by them. However, there was evidence that the cocaine was beyond their reach and that the marijuana was situated in a drawer which could not be opened by the two-year-old. (Id. at p. 909-910.) Said the court: There is, as the court below found, a remote possibility that the children may be endangered by their present environment but remote possibilities do not provide grounds sufficient for removing a child from parental custody. The right to custody of ones own children, free from unwarranted state interference, has long been recognized as a fundamental right. [Citation.] Fundamental rights do not fade before remote possibilities. (Id. at pp. 910-911.)

Relying on language in both of these cases which emphasizes a parents fundamental right to custody of his or her child, mother acknowledges that while she may have made mistakes in her parenting, in deferring supervision and discipline to her ex-boyfriend, she did nothing so extreme to justify removing Kayla from her care. Her position ignores the reality that circumstances had not really changed. Indeed, the conditions which still existed were mothers ongoing failure to protect and supervise her children. This is not the same as a single occurrence of misconduct. Rather, mothers lack of parenting skills represents a continuing source of potential harm to the children. There is no assurance of safety until mother resolves her parenting issues. Thus, there was substantial evidence in this case from which to support the courts finding, by clear and convincing evidence, that removal was the only way to protect the children, and that doing so was in their best interests. The juvenile court has broad discretion to determine what would best serve and protect the childs interest and to fashion a dispositional order in accordance with this discretion. (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.) Indeed, in deciding whether to remove a child from home, the childs best interests are paramount. (In re Corey A. (1991) 227 Cal.App.3d 339, 346-347.)

Nor is there merit to mothers contention that there were alternatives to removal. She contends the court could have ordered family maintenance services, including in-home counseling and childcare. In re Henry V. (2004) 119 Cal.App.4th 522, upon which she relies, is distinguishable. In that case, a child was removed from his mothers home based upon a single incident of physical abuse. This, the reviewing court found, was not clear and convincing evidence justifying his removal from the home, particularly where there were alternatives, including in-home counseling. Here, in contrast, because the underlying problem was more than simply a single incident of abuse, more than occasional in-home counseling was required to assure the childrens safety before allowing them to return home.

B. Notwithstanding any failure by the court to make a finding of nondetriment,

no evidence was presented which could support a finding that placing Kayla with Donald would be detrimental to Kaylas emotional health and well-being.

Section 361.2, subdivision (a) 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. (Italics added.)

Subdivision (b) of section 361.2 provides, in essence, that if the court places the child with the noncustodial parent, it may either terminate jurisdiction^[7]or, if it decides there is a need for ongoing supervision, retain its jurisdiction over the child. Subdivision (c) of section 361.2 states: The court shall make a finding either in writing or on the record of the basis for its determination under subdivisions (a) and (b).

Insisting that the order placing Kayla with Donald effectively terminated Kaylas relationship with Anna, mother contends the court failed to make a determination that the proposed placement would not be detrimental to Kayla. She contends the court skipped that step and instead made a placement order authorized by section 361.2, subdivision (b)(1). Moreover, she insists the court ignored the evidence of detriment and that the social workers report did not adequately consider the emotional detriment Kayla could suffer if placed with her father. We disagree.

First, we do not read the statute as requiring an express finding of nondetriment. Pursuant to subdivision (c), the court was required to make a finding as to the basis of its determination either in writing or on the record. Here, by virtue of its decision to place Kayla with Donald, the court impliedly found that such placement would not be detrimental to the child.^[8] Moreover, the court made its determination after hearing argument from counsel on this very issue.

Nor is there merit to mothers contention that we cannot imply a finding of nondetriment. Unlike In re Marquis D. (1995) 38 Cal.App.4th 1813, a case in which it was not clear from the record if the court considered whether placement of the children with the father would be detrimental to their well-being, we have no doubt that the court considered the question of detriment, and were we to remand the matter to the juvenile court to make such a finding, it would clearly do so. As indicated above, the issue was addressed extensively by counsel and the court. Thus, because there can be no question the court knew it could refuse to place Kayla with Donald if it found that doing so would be detrimental to her physical or emotional well-being, we are satisfied that the court complied with subdivision (c) in stating the basis for its determination on the record.

Notwithstanding the foregoing, mother contends there is substantial evidence of detriment which the court ignored. However, she offers nothing more than the fact Kayla lived with Anna all her life and, in her words, was intimately bonded to her sister. Indeed, that there is a bond between Kayla and Anna is undisputed. However, the mere existence of a bond does not, without more, constitute substantial evidence that severing the bond will be detrimental to either or both children.

Evidence of detriment for purposes of section 361.2 was found in In re Luke M. (2003) 107 Cal.App.4th 1412,^[9]a case involving a nonoffending noncustodial father with whom the juvenile court did not place two of his children, Luke and Lenay. In affirming the trial courts order, the reviewing court had this to say: The record amply supports a finding that there was high probability that moving to Ohio would have a devastating emotional impact on Luke and Lenay. They depended on their siblings for love, support, and security. Since their removal, their only request of the social worker was not to be separated. They cried and became depressed when she spoke with them about the possibility of separating. Luke did not want to be separated from his sisters, his mother, or other relatives in San Diego. He was extremely connected to them and could not stand the thought of having to leave them. Lenay did not want to leave [her sister] Lindsey or her mother, and especially did not want to leave [her half sister] Leanna, to whom she was extremely bonded. (Id. at p. 1426.)

As DPSS aptly points out, and unlike the situation in In re Luke M., the reality in the present case is that separating the girls had no effect on either of them: [T]hey did not communicate any distress and did not display any emotional behaviors as a result of their separation. We are unimpressed by mothers contention the social workers report did not adequately consider the potential detriment to Kayla. Simply stated, there had been no showing that either child was negatively affected by their separation and thus nothing for the social worker to consider. Indeed, at the time of trial, Kayla had been residing with Donald for almost a month and there was no indication whatsoever that she was suffering as a result.

More importantly, the record reflects that Donald will do everything feasible to maintain a relationship between the siblings. He was even considering relocating to Las Vegas to reduce the miles between the sisters. As DPSS points out, this is not a case in which sisters are separated as a result of placement into two entirely separate families, as can be the case when parental rights are terminated. Anna and Kayla are still sisters. And, presuming that Anna will be returned to mothers custody in the near future, there is no reason to believe that these girls will not have the benefit of a continuing relationship. Thus, there was no evidence at trial that the girls sibling bond had been severed.

C. Any error in failing to recognize that representation of both children by the same attorney was or could be a conflict of interest, was harmless.

Section 317 provides for the appointment of counsel to represent a child in a dependency proceeding. Pursuant to subdivision (c) of that section, A primary responsibility of any counsel appointed to represent a child pursuant to this section shall be to advocate for the protection, safety, and physical and emotional well-being of the child. Counsel for the child may be a district attorney, public defender, or other member of the bar, provided that the counsel does not represent another party or county agency whose interests conflict with the childs.

Pursuant to rule 3-310 of the California Rules of Professional Conduct, an attorney shall not [a]ccept or continue representation of more than one client in a matter in which the interests of the clients actually conflict without obtaining the written consent of each client.

In juvenile dependency cases, an attorney may not accept representation of multiple clients if there is a reasonable likelihood that an actual conflict of interest between the clients may arise. (In re Celine R. (2003) 31 Cal.4th 45, 58; Carroll v. Superior Court (2002) 101 Cal.App.4th 1423, 1430 (Carroll).) Moreover, if an actual conflict of interest arises between the clients, the attorney representing the multiple clients must withdraw from representation. (In re Celine R., at p. 57; Carroll, at p. 1429.)

Carroll involved an actual conflict of interest in that one attorney represented seven siblings, of which three were to be adopted into the same home and three were to stay together in the same home under legal guardianship; the fate of the seventh sibling,

who was developmentally disabled, was yet to be ascertained. (Carroll, supra, 101 Cal.App.4th at pp. 1425-1426.) One of the children in the proposed guardianship expressly stated he wanted to maintain a relationship with his sisters who were to be adopted. On that basis, the attorney asked to be relieved as minors attorney, but the request was denied.

Mother contends Carroll is controlling in that an actual conflict existed in the representation of Kayla and Anna. Not so. Simply because the children are separated does not mean there is a conflict of interest, and there is no evidence of any such conflict here.

Nonetheless, we agree with DPSS that, even if there was a conflict of interest, any error was harmless. As stated in In re Celine R., supra, 31 Cal.4th at p. 60: A court should set aside a judgment due to error in not appointing separate counsel for a child or relieving conflicted counsel only if it finds a reasonable probability the outcome would have been different but for the error.

We reject mothers position to the contrary. Even if the girls had been represented by separate counsel, there is nothing in the record from which we could conclude that Kaylas attorney would have joined in mothers position. Because the juvenile court was correct in finding no detriment in separating the girls, we would be hard pressed to conceive how an independent trial counsel for Kayla could have or would have come up with a different recommendation.

D. Any error in failing to require DPSS to revise its Form JV-135 was harmless.

When a dependency court has reason to know the proceeding involves an Indian child, the Department must notify the Indian childs tribe, or, if the tribes identity or location cannot be determined, the Bureau of Indian Affairs, of the pending proceedings and of the right to intervene . . . . Notice must be sent to all tribes of which a child may be a member or eligible for membership. [Citation.] The notice must include the names of the childs ancestors and other identifying information, if known . . . . When proper notice is not given, the dependency courts order is voidable. [Citation.] (In re Brooke C. (2005) 127 Cal.App.4th 377, 383-384.)

Here, after learning from mother that she and her maternal grandmother are Cherokee and that Anna may have Cherokee Indian ancestry, the social worker served notice upon the appropriate tribes as well as the Bureau of Indian Affairs, in accordance with the ICWA, by means of a Form JV-135 (Notice of Involuntary Child Custody Proceedings for An Indian Child). Mother had previously completed a Form JV-130 (Parental Notification of Indian Status). Among other things, the Form JV-135 omitted the address and birth date of Annas maternal grandmother and misspelled the name of Annas deceased father. On appeal, mother contends [w]ith these errors and omissions on these notices, [DPSS] could not have adequately informed the tribes of Annas eligibility under the ICWA. She maintains that although the court made a finding at trial that the ICWA may apply, the court should still have ordered DPSS to revise the notices and re-mail them.

Acknowledging that a parent cannot waive a tribes right to proper notice, DPSS points out that a parent can waive procedural irregularities to the extent that they affect only her rights. [Citation.] (In re Asia L. (2003) 107 Cal.App.4th 498, 508, fn. 4.) We agree that the waiver doctrine is applicable here. That is, mother voiced no objection to the information contained on the Form JV-135. Nor did she present evidence at trial as to the information she now contends was given to the social worker but omitted from the form. And while mother did not in the court below make any request for any type of relief, she now argues the court had an obligation to require DPSS to revise the form to include such additional information as well as a proper spelling of Annas fathers surname. Her claims are unfounded.

In any event, any error was harmless. While mother contends proper notice could have resulted in completely different jurisdictional and dispositional findings and orders where her children remained in her custody, she fails to explain how. In short, mother has failed to meet her burden to demonstrate that she would have enjoyed a more favorable result had DPSS done what she now requests. Moreover, the dependency case is not yet concluded. The tribes will continue to receive notice^[10]and, if appropriate,

will have an opportunity to intervene. (See In re S.B. (2005) 130 Cal.App.4th 1148, 1162.)

DISPOSITION

The juvenile courts orders are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ HOLLENHORST

Acting P. J.

/s/ McKINSTER

J.

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^[1] All further statutory references will be to the Welfare and Institutions Code.

^[2] With regard to Donald, the petition alleged that he willfully neglected Kaylas health and safety in that [he] has legal custody of the child through Family Law Court, yet he left the child with the mother to live in squalid conditions, such conditions place the child at risk of suffering serious physical harm. The petition also alleged that Donald has a history of perpetrating emotional and verbal abuse against the mother . . . as evidenced by the mothers statements, placing Kayla at risk of suffering serious physical harm. As indicated later in this opinion, both of these allegations were ultimately stricken.

^[3] During the social workers testimony, Donald uttered aloud that it would be no problem for Anna to visit Kayla at his home in Florida.

^[4] DPSS informs us there is no indication that any request for assistance was made in advance of trial.

^[5] The court also made a finding by a preponderance of the evidence that the agency has complied with the case plan by providing or offering reasonable services which were designed to aid the parent or legal guardian in overcoming the problems which lead [sic] to the initial removal and continued custody of the child by making reasonable efforts to make it possible for the child to safely return home and complete whatever steps are necessary to finalize the permanent placement of the child. [] The extent of progress thats been made by the mother toward alleviating or mitigating the causes necessitating placement has been unsatisfactory. As part of her appeal, mother challenges the sufficiency of the evidence to support these findings, and DPSS offers an extensive response.

However, findings of this nature are not made at dispositional hearings; they are made at status review hearings pursuant to section 366.21, subdivision (e), which reads, in pertinent part: If the child is not returned to his or her parent or legal guardian, the court shall determine whether reasonable services that were designed to aid the parent or legal guardian in overcoming the problems that led to the initial removal and the continued custody of the child have been provided or offered to the parent or legal guardian. The court shall order that those services be initiated, continued, or terminated.

Here, presumably through inadvertence, the social worker recommended that the court make such findings, and the court, in turn, read those findings into the record. In so doing, the court performed an idle act, and for us to reverse these findings would also be an idle act. The law does not require idle acts. (Civ. Code, 3532.) In any event, mother has not cited law permitting or authorizing an appellate court to reverse or strike findings of fact; we only reverse judgments and orders. Accordingly, this issue will not be addressed herein.

^[6] We note that the court at no time, either in its oral pronouncement or in its minute order, expressly stated that its findings were based on clear and convincing evidence, as required for removal of a child from a parents custody. ( 361, subd. (c)(1).) Nor did the court make any express findings pursuant to section 361.2. However, the court did indicate it was following the recommendation of the social worker, which encompassed findings under section 361, subdivisions (a) and (c)(1), as well as section 361.2.

^[7] In this regard, subdivision (b)(1) states: If the court places the child with that parent it may do any of the following: [] (1) Order that the parent become legal and physical custodian of the child. The court may also provide reasonable visitation by the noncustodial parent. The court shall then terminate its jurisdiction over the child. The custody order shall continue unless modified by a subsequent order of the superior court. The order of the juvenile court shall be filed in any domestic relation proceeding between the parents. (Italics added.)

^[8] By mandating a childs placement with his or her noncustodial parent unless the court finds the placement would be detrimental, subdivision (a) of section 361.2, in essence, evidences the Legislative preference for placement with [the nonoffending noncustodial] parent. [Citation.] (In re John M. (2006) 141 Cal.App.4th 1564, 1569.) Thus, there is, in effect, a presumption that placement will be with the noncustodial parent unless rebutted by evidence