Selena G. v. County of Riverside

Filed 5/7/07 Selena G. v. County of Riverside 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Becky Dugan, Judge. Petition denied in part and granted in part with directions.

Michelle L. Morris for Petitioner.

No appearance for Respondent.

No appearance for Real Party in Interest.

Petitioner Selena G. (mother) is the mother of seven children (the children), born between 1990 and 2005. In her petition for extraordinary writ, she challenges the juvenile courts decision to terminate reunification services and set a Welfare and Institutions Code section 366.26^[1]hearing to determine a permanent plan for the children because: 1) the Department of Public Social Services (DPSS) failed to comply with the Indian Child Welfare Act (25 U.S.C. 1901 et seq.; hereafter ICWA) and California Rules of Court, rule 5.664, as to the youngest child, J.M.; and 2) substantial evidence does not support the true finding on the section 387 supplemental petition for a more restrictive placement, which resulted in the children being taken back into foster care just one month after the last three children had been returned to mothers custody. Further, if this court affirms the finding on the section 387 petition, mother contends that the children should be returned to her care on family maintenance.

Facts and Procedure

Prior History

Mother first came to the attention of DPSS in September 2000, when her fifth child tested positive for amphetamines at birth. The record indicates that [s]ervices were offered to the mother, but allegations of severe neglect were unsubstantiated the home was found to be dirty but was cleaned up and there was little food in the home, but mother stated she would go shopping from a prepared list. Just four months later, in January 2001, allegations of caretaker absence because of mothers drug use and depression were substantiated. Police had found one of the children wandering in the street wearing only a diaper and mother tested positive for methamphetamines. Mother attended some drug treatment and counseling sessions, but refused to complete the programs. The case was closed because the time limit for family maintenance services had been exceeded and mother was testing negative for drugs.

A referral for general neglect was made in May 2002 because mother was homeless and was said to not be able to provide her children with food, clothing and shelter. However, the case was closed because the children were in good health with no signs of abuse or neglect. The family disappeared and a new referral was to be made once the children returned to school and the familys location was found. The family reappeared in April 2003 and DPSS found the home to be adequate and the children well cared for. In January 2004, DPSS received yet another referral for general neglect, but concluded the children were not at risk and that mother provided for her childrens basic needs.

Section 300 Proceedings

The most recent case was opened when mothers seventh child tested positive for amphetamine at birth in July 2005. Mother also tested positive for methamphetamines and amphetamine. The children were removed from mother and were adjudged dependents of the juvenile court. The children told the social worker that they did not get enough to eat and that they had observed mothers boyfriend smoking marijuana. The home was found to be dirty and lacking in food and adequate clothing. The oldest child ran away while the social worker was interviewing the children.

At the jurisdiction hearing held on August 2, 2005, mother waived her right to a contested hearing and the juvenile court found true allegations as to mothers drug use. The court ordered reunification services for mother.

The six-month review hearing was held on January 24, 2006. The social worker reported that mother was cooperative and quickly enrolled in programs to complete her case plan. The juvenile court ordered the two youngest children to be returned to mother on family maintenance. The court authorized the rest of the children to be returned to mother on family maintenance once mother obtained suitable housing. The two oldest children also returned to mother in June 2006, leaving three children in foster care.

The 12-month review hearing was held on August 23, 2006. The social worker recommended that mother receive six more months of reunification services to help her with housing and employment, as these were the two areas of concern hindering the return of all [mothers] children to her care. The social worker also recommended that the remaining three children be returned to mothers care once she found employment and suitable housing. At the hearing, counsel for mother reported that the social worker had approved mothers home for all seven children and that mother had completed all of her programs. The juvenile court ordered the return of the remaining three children to mother and also ordered mother to submit to a hair follicle test.

Section 387 Proceedings

As of September 22, 2006, the date on which DPSS filed the section 387 petition, the children were ages 1, 4, 6, 8, 12, 13 and 16. In the petition, DPSS alleged that mother continued to abuse drugs, as shown by her failure to submit to a court-ordered hair follicle test on September 20, 2006, and by her admission that the test would be positive for methamphetamine. The social worker arrived later that day and physically removed the children from mothers home. The home was clean at that time and the record does not indicate that the children were other than well cared for. The social worker reported that The children were having a hard time being removed from their mother again, [one child] was punching holes in the walls. [Another child] was in a ball on the floor crying and it was difficult to get the children out of the home. The oldest child again ran away while the children were being removed.

At the detention hearing held on September 25, 2006, the childrens counsel stated that the ICWA applies to the youngest child, J.M., in that the child may be eligible for membership in the Choctaw Nation. The juvenile court ordered notice to be given to the Choctaw Nation. DPSS recommended that the court place the children in foster care, terminate reunification services, and set a section 366.26 permanent plan hearing. Mothers counsel reported that she had already begun seeking drug treatment. The juvenile court ordered the children detained and continued reunification services until the next hearing.

The jurisdiction and disposition hearing was initially held on December 12, 2006, and continued to January 11, 2007. At the December 12, 2006, hearing, mother was present in court. The court told her Truth is, your kids are gonna be in a planned permanent living arrangement, anyway. In all honesty, nobody is getting ready to adopt them because of the ages of them, at least your older kids. Thats an advantage to you because you can keep doing stuff until we have an adoptive home. The social worker reported that mother expressed remorse about causing her children to be removed again and had re-enrolled in drug treatment the day after the detention hearing. At the time of the January 11, 2007, hearing, mother had completed the first three steps of her drug program, was attending a 12-step program regularly, and had consistently tested negative for drugs, as late as January 9, 2007. Mothers counsel told the juvenile court that mother was employed with an income of $700 per month and had a home for all of the children. The juvenile court found true the allegation in the section 387 petition that the previous disposition did not protect the children because mother continued to abuse drugs. The court then terminated mothers reunification services and set a section 366.26 hearing for May 14, 2007. Mother filed a timely notice of intent to file a writ on that same date.

Discussion

1. ICWA Notice

Mother first contends that the juvenile courts orders must be reversed and remanded as to the youngest child, J.M., only, because DPSS did not comply with ICWA notice requirements. We agree.

Where DPSS has reason to believe a minor may be an Indian child, the failure to proceed as if that were true constitutes reversible error. The circumstances that may provide probable cause for the court to believe the child is an Indian child include . . . an officer of the court . . . informs the court . . . or provides information suggesting that the child is an Indian child. (Cal. Rules of Court, rule 5.664(d)(4)(A).) [W]hen the juvenile court knows or has reason to believe the child may be an Indian child, notice must be given to the particular tribe in question or the Secretary. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471.) When proper notice is not given, the dependency courts order is voidable. (In re Brooke C. (2005) 127 Cal.App.4th 377, 384.)

Here, the childrens counsel advised the court at the September 25, 2006, section 387 detention hearing that ICWA does apply . . . in this case as to [J.M.] The Choctaw Nation, this child may be eligible, so we do need to have the Choctaw Nation noticed. The juvenile court then ordered, Notice to be given to the Choctaw Nation. The record does not contain any indication that DPSS gave written notice to the Choctaw Nation. In addition, the juvenile court did not make any ICWA findings at the section 387 jurisdiction hearing. Thus, the juvenile courts orders as to J.M. are reversed and the matter is remanded to the juvenile court for the limited purpose of ensuring that DPSS complies with the ICWA as to J.M.

2. Section 387 Petition Sufficiency of the Evidence

Mother also argues that the court erred in finding true the allegation in the section 387 petition that the childrens placement with mother placed them at risk of harm in that mother could not properly care for or protect the children because she continued to abuse drugs. ( 300, subd. (b).)

Section 387, subdivision (a) states, in pertinent part, that, An order changing or modifying a previous order by removing a child from the physical custody of a parent . . . and directing placement in a foster home . . . shall be made only after noticed hearing upon a supplemental petition. The substantive requirements of the section 387 petition are set out in subdivision (b) of section 387: The supplemental petition shall be filed by the social worker in the original matter and shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child . . . .

DPSS alleges in the section 387 petition that the previous disposition pursuant to which the children were returned to mothers custody has not been effective in the protection of the children in that the mother continues to abuse controlled substances as evidenced by her own admission and failure to submit to a Court ordered hair follicle test. The mother has failed to comply with her Court ordered case plan activities; thereby such conditions continues [sic] to place the children at risk of suffering from serious physical harm.

Mother claims that the evidence does not support the trial courts jurisdictional finding on the section 387 petition that the previous disposition of returning the children to her custody had not been effective in protecting the children. In particular, mother contends that, although she would have failed a hair follicle test at the time the section 387 petition was filed, she was enrolled in a drug program, was testing negative for drugs, and had appropriate housing and a job at the time of the jurisdiction/disposition hearing on January 11, 2007. In addition, mother argues that the mere fact that she would have failed a drug test did not mean that her drug use put the children at risk of harm.

The jurisdictional fact a trial court must find true in a proceeding on a supplemental petition under section 387 is that the previous disposition has not been effective in protecting the child, in this case, because mother continued to abuse drugs and thus placed her children at risk for harm. (In reJonique W. (1994) 26 Cal.App.4th 685, 691.) We review the trial courts jurisdiction finding on the section 387 supplemental petition for sufficiency of the evidence. (In re Joel H. (1993) 19 Cal.App.4th 1185, 1199.)

Here, mother has had demonstrable issues with drug use that have interfered with her ability to care for and protect her children since her fifth child was born with amphetamine in his system in 2000. Since that time, the record shows that mother has struggled with homelessness and inadequate housing, and has sometimes had difficulty feeding, housing, clothing and caring for her seven children. Mother points to In re David M. (2005) 134 Cal.App.4th 822, in which the appellate court held that parental issues with substance abuse and mental illness do not in themselves constitute serious physical harm or illness to the minor or a substantial risk of such harm. Rather, the court stressed that the child welfare agency must establish a causal connection between the parents substance abuse and the harm, or risk of harm, to the children. (Id. at pp. 829-830.) Here, two of mothers children were born with amphetamine in their systems. On both occasions, mothers home was found to be dirty and lacking in food, and on the most recent occasion some of the children stated that they were often hungry. Four months after the birth of the fifth child, another of mothers children was found wandering the streets wearing only a diaper, and at that time mother tested positive for methamphetamine and admitted to using drugs. Thus, even though mothers home was adequate and the children showed no signs of neglect at detention, we conclude that this evidence supports the conclusion of DPSS that mother endangered her children by placing them at risk of harm by using drugs while they were in her care.

Mother also points to the fact that she immediately sought drug treatment when the children were removed in September 2006 and was testing negative for drugs at the time of the jurisdiction and disposition hearing in January 2007. She cites In re Savannah M. (2005) 131 Cal.App.4th 1387 for the proposition that the risk of harm to the children must be measured at the time of the jurisdiction hearing, not at the time of removal. However, mother ignores the fact that the children were removed from her because she placed them at risk after failing to show long-term benefit from the drug treatment services she received. The fact that mother was drug free at the time of the jurisdiction hearing is certainly commendable. However, mothers relapse at the time of detention, after having placed her children at risk over a period of six years (including causing two of her children to be born drug-exposed) and after having come to the attention of DPSS and being provided with services in both 2001 and 2005-2006, supports the juvenile courts conclusion that her children are again at real risk of harm from a future relapse.

Finally, mother also argues that, even if the jurisdictional finding was proper, the juvenile court erred in removing the children from her care under section 361, subdivision (c)(1). That section provides: A dependent child may not be taken from the physical custody of his or her parents . . . unless the juvenile court finds clear and convincing evidence . . . [that] . . . [t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minors physical health can be protected without removing the minor from the minors parents . . . physical custody.

As discussed above, the danger to the children if they remained with mother was that she would, again, relapse into drug use as she had several times before and neglect their physical safety and health, as she had done in the past by failing to provide adequate food, shelter and supervision. Mother argues that the court should have pursued less intrusive disposition alternatives, such as family maintenance. However, the court had already attempted to protect the children by placing them in mothers custody on family maintenance, beginning with the youngest two in January or February 2006, the oldest two in June 2006, and then finally the middle three on August 23, 2006, only 30 days before they were again removed because of mothers drug use.

Thus, the record supports the juvenile courts conclusions that there was substantial danger to the childrens physical health if they were not removed from her custody, and that the children could not be protected without removing them.

Disposition

The petition is granted as to J.M. on the ICWA notice issue. The juvenile courts orders of January 11, 2007, are reversed as to J.M. and the case is remanded to the juvenile court with directions to order DPSS to inquire of mother, and of J.M.s father, as to whether J.M. may be an Indian child, and only if so, to comply with the notice provisions of the ICWA and the relevant case law interpreting the ICWA. DPSS is also to file all required documentation with the juvenile court for the courts inspection.

If, after proper notice, any tribe claims J.M. as an Indian child, the juvenile court shall proceed in conformity with all provisions of the ICWA.

If, on the other hand, the inquiry of mother and of J.M.s father does not indicate that J.M. may be an Indian child, or if no tribe claims that J.M. is an Indian child, the juvenile courts orders of January 11, 2007, shall be reinstated as to J.M.

The writ petition is otherwise denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Ramirez

P.J.

/s/ Richli

J.

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