In re C.H.

Filed 8/20/07 In re C.H. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Appellant, Patricia H. (mother) appeals the jurisdiction and disposition orders made regarding her daughters C. and Amelia. On appeal, mother asserts the court erred by improperly allowing C. to refuse to visit with her, and failing to comply with the statutory requirements of the Indian Child Welfare Act (ICWA).

Statement of the Facts and Case

In August 2006, C. and Amelia were placed in protective custody due to physical abuse by their mother. Mother had had a fight with C. over C.s cell phone leaving C. with a black eye, bruises and scratches.

At the initial hearing in this case, mother did not attend, but father, Randy H., was present. At the hearing, father submitted a Parental Notification of Indian Status form indicating he may have Indian ancestry. Specifically, father told the court his fathers grandfather was full-blooded Apache and his fathers grandmother was possibly Choctaw. Based on this information, the court ordered that the ICWA notice be given by the Santa Clara County Department of Family and Childrens Services (Department).

On September 6, 2006, the Department sent ICWA notice to the federally recognized Apache and Choctaw tribes and the Bureau of Indian Affairs (BIA).

The jurisdiction/disposition report prepared in September 2006 recommended that both children be made dependants of the court, and that mother and father receive reunification services. The report indicated that mother had been diagnosed with Sarcoidosis, a non-terminal disease that is in remission, and Fibromyalgia, a form of rheumatism. Mother claimed that because of her physical ailments, she was too weak and frail to have physically abused the girls. The social workers observations disputed these claims.

The report also indicated that the girls described mother as unpredictable and that they were afraid of what she might do at any given time. The girls said mothers moods were high and low, and when they were high, she would yell at them, and call them derogatory names. The girls said that mother would physically attack C.

The report further indicated that C. was having a difficult time with her mother, that she was angry with her for the abuse, and that she was tired of mothers unpredictable behavior. C. also said that she did not want to be exposed to mothers verbal and physical abuse any more. As a result of the ongoing abuse, C. did not want to have visits or telephone calls with her mother. Mothers response to this was that C.s anger was misdirected towards her, when it should really be toward her father. Mother was continuously calling C.s cell phone, but C. refused to answer the calls.

The jurisdiction report recommended that mother have once a week supervised visits with both girls, but that C. not be forced to visit. The report also recommended that the social worker have the discretion to increase the frequency and duration of visits and to permit unsupervised visits. The report also requested a psychological evaluation of mother.

At the hearing on October 6, 2006, the Department submitted a report indicating that ICWA notice had been completed, and included certified mail receipts form each tribe, as well as letters from seven of the tribes that had received notice. The matter was continued for settlement discussions, and when it was back on calendar on October 13, 2006, the parties had reached a settlement. Mothers counsel indicated to the court that she accepted the recommendations in the report, but would also like to attend a teen parenting class. Mothers counsel asked that the provision stating that C. not be forced to visit be stricken. The court inquired of the Department why that provision was added, and the social worker responded that C. did not want to see her mother because she was very angry with her. Counsel for C. argued that because of the physical and emotional abuse C. suffered, it would be detrimental to force visitation with mother. The court found that forced visitation between mother and C. would be detrimental and maintained that portion of the visitation recommendation.

The court sustained the petition, and ordered family reunification services for mother. The court adopted the recommended visitation order and ordered that both mother and the girls attend psychotherapy, and that mother undergo a psychological evaluation.

Mother filed a timely notice of appeal of the disposition orders.

Discussion

Mother asserts the trial court erred in including the provision that C. not be forced to visit with her, while at the same time ordering that mother be allowed visits as part of her reunification plan. Additionally, mother asserts the Department failed to satisfy the notice requirements of ICWA.

Visitation

In this case, the court ordered weekly visitation between mother and daughters, while at the time found that visitation between mother and C. would be detrimental to C., and concluded that C. should not be forced to visit with mother. Mother asserts C.s veto power over visitation was improper, and doomed the reunification efforts.

Visitation rights arise from the very fact of parenthood and the constitutionally protected right to marry, establish a home, and bring up children. (In re Jennifer G. (1990) 221 Cal.App.3d 752, 756-757.) Welfare and Institutions Code, Section 362.1, subdivision (a)(1)(A),[1] requires that a reunification plan provide for visitation between parent and child, as frequently as possible. Visitation is a critical element of any reunification order ( 361.5, subds. (a), (c), 319, 362.1, subd. (a)(1)(A); In re Luke L. (1996) 44 Cal.App.4th 670, 679) because it is critical to the promotion of a parents interest in the care and management of his or her children. (In re Monica C. (1995) 31 Cal.App.4th 296, 308-310.) The problems faced by any family in the dependency system could be resolved without ongoing therapy and visitation. (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1130.) Where visitation is not provided, the erosion and termination of any meaningful relationship between the parent and child is virtually assured. (In re Julie M. (1999) 69 Cal.App.4th 41, 50.) A visitation order is reviewed for abuse of discretion. (In re Carmaleta B. (1978) 21 Cal.3d 482, 496.)

Mother argues it is an unlawful delegation of judicial responsibility to give C. veto power over her visitation rights. In In re Nicholas B, supra, 88 Cal.App.4th 1126, a panel of this court reviewed an order that allowed a 13-year-old boy who was removed from his parents for physical abuse to veto parental visits during ongoing reunification services. In examining the visitation orders of the court, the panel stated: Absent a showing of detriment caused by visitation, ordinarily it is improper to suspend or halt visits even after the end of the reunification period. [Citations.] Visitation may be seen as an element critical to promotion of the parents interest in the care and management of their children, even if actual physical custody is not the outcome. [Citation.] (In re Luke L. (1996) 44 Cal.App.4th 670, 679 . . . .) Here, visitation (in conjunction with family therapy) was critical to any possibility of family reunification. Yet the juvenile court order did nothing to promote visitationor to require the minors participation in family therapy. (Id. at p. 1138, italics added.)

The panel further observed, A juvenile court may not improperly delegate decisions over visitation to a childs therapist. (In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1476 . . . .) . . . [] Similarly, visitation may not be dictated solely by the child involved although the childs desires may be a dominant factor. In the case of In re Julie M. (1999) 69 Cal.App.4th 41 . . . , the Fourth Appellate District reversed the order requiring consent by the children for visitation. The court pointed to the importance of visits to family reunification, with the danger of childrens fears and anxieties increasing the longer there was no contact with the mother. [T]he ultimate supervision and control over this discretion must remain with the court, not social workers and therapists, and certainly not with the children. [Citations.] (Id. at p. 51.) (In re Nicholas B. supra at pp. 1138-1139.)

Here, although the court provided in its order that C. not be forced to visit, it also provided that there be a minimum of one 2 hour supervised visit per week. This is exactly the type of visitation order contemplated in the case of In re S.H. (2003) 111 Cal.App.4th 310, in which the court opined, while the juvenile court may allow the child to refuse to attend a particular visit, to prevent the child from exercising a de facto veto power, there must be some assurance that, should that occur, another visit will be scheduled and actually take place. The simplest-but, by no means, the only-way to accomplish this would be for the juvenile court to order a minimum number of visits per month and to impose any essential conditions . . . while allowing the Department to organize other details of the visitation. In no event, however, may the childs wishes be the sole factor in determining whether any visitation takes place, either as a formal matter or, as occurred in the case now before us, by effectively giving the children the power to veto all visits. [Citation.] (Id. at p. 319, fn. omitted.)

In determining visitation in the family reunification aspect of dependency proceedings, a parents interest in the care, custody, and companionship of her children is not to be maintained at the childs expense. The childs input and refusal and the possible adverse consequences if the visit is forced against the childs will are factors to be considered in administering visitation. (In re S.H., supra, 111 Cal.App.4th at p. 319.)

In the instant case, contrary to mothers reading of the order, she was not denied visitation with C., and C.s wishes were not the sole factor in determining whether visitation take place. The trial court ordered visitation at a minimum of 2 hours once a week. In addition, the order provided that the supervising social worker have the discretion to increase the frequency and duration of visits, and to permit them to be unsupervised. Because the order provided for a minimum weekly visitation, and did not rest the veto power to visit entirely in C.s hands, the visitation order was not improper.

ICWA

Mother asserts the court failed to meet the requirements of the ICWA in this case. Specifically, mother argues that the Departments jurisdictional and dispositional report informed the court that father claimed to have Indian heritage, but there is nothing in the record to demonstrate that the court considered the requirements of the ICWA in any way.

The enactment of the ICWA was designed 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.) [W]here 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 childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. (25 U.S.C. 1912(a).) If the tribe is unknown, the notice must be given to the BIA. (25 U.S.C. 1912(a); In re Edward H. (2002) 100 Cal.App.4th 1, 4; Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253 (Dwayne P.).) No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the . . . tribe or the [BIA]. (25 U.S.C. 1912(a).)

To ensure compliance with this federal mandate, California Rules of Court, rule 5.664[2] provides that after a petition has been filed in a section 300 proceeding, if the court knows or has reason to know that the child is or may be an Indian child, the childs tribe must be notified of the pending petition and the right of the tribe to intervene in the proceedings . . . . (Cal. Rule of Court, rule 5.664(f).) Notice of section 300 proceedings must then be sent for every hearing thereafter unless and until it is determined that the [child is not an Indian child] . . . . (Cal. Rule of Court, rule 5.664(f)(5).) Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under the Act irrespective of the position of the parents, Indian custodian or state agencies. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.)

The circumstances that may provide probable cause for a court to believe that the child is an Indian child include a party providing information to the social services agency suggesting that the child is an Indian child. (Cal. Rules of Court, rule 1439(d)(2)(A).) In such a case, the court shall proceed . . . with all dependency hearings, observing the Welfare and Institutions Code timelines while complying with [the ICWA] . . . . (Cal. Rule of Court, rule 1439(e).) If the information in the record shows there may be Indian ancestry, even though the child may not be an Indian child within the meaning of the Act, the court is required only to send notice of the proceedings to the identified tribe or tribes or to the Bureau of Indian Affairs (BIA), and to make further inquiry regarding the possible Indian status of the child. (Cal. Rule of Court, rule 1439(e).) (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1265 (Samuel P.).)

The failure to comply with the notice requirements of the ICWA constitutes prejudicial error unless the tribe has participated in or indicated no interest in the proceedings. (Samuel P., supra, 99 Cal.App.4th at p. 1265.) Such error is not waived by a parents failure to raise it during the dependency proceedings. (Ibid.; Dwayne P., supra, 103 Cal.App.4th at pp. 257-258; In re Marinna J. (2001) 90 Cal.App.4th 731, 739.)

Here, mother claimed no Indian heritage; however father informed the social worker that his fathers grandfather was full-blooded Apache and his fathers grandmother was possibly Choctaw. Father made the disclosure regarding the Indian heritage at the initial hearing in the case, and the minute order from the hearing indicated that the court ordered that ICWA notice be provided. Based on the information the social worker had, the Department noticed eight federally recognized Apache tribe, three Choctaw tribes, as well as the BIA. The notice sent contained the information provided by father, including the name of his paternal great-grandfather, and the fact that he was Apache, and the name of this grandmother, and that fact that she was Choctaw.

Mother asserts the information provided on the notice forms was insufficient, because additional information about the possible Indian ancestry could have been obtained from various relatives with whom the social worker had contact. Certainly, [n]otice under the ICWA must, . . . contain enough information to constitute meaningful notice. (In re Karla C. (2003) 113 Cal.App.4th 166, 175.) However, the most important information to be provided is the information that is known about the family member with the alleged Indian heritage. (In re Louis S. (2004) 117 Cal.App.4th 622, 631.) Here, the alleged Indian heritage is through the paternal grandmother and great grandfather, and the notice contained their names and places of residence. The information on the forms was sufficient to determine if the children were of Indian heritage.

In addition to her claim that the notice was insufficient to satisfy the requirements of the ICWA, mother asserts the trial court erred by failing to make a finding as to whether the ICWA applies.

The record reflects that the first set of notices was sent to the relevant Indian tribes in mid-September 2006. At the October 13, 2006 hearing, the social worker provided the court with certified mail receipts for the letters, all of which demonstrate the tribes received notice; however, in its disposition order, the court made no finding that the ICWA had been complied with, or whether the ICWA actually applied to the case.

A second set of notices[3] was sent to the BIA and 11 Indian tribes in March 2007. Certified mail receipts were returned from the BIA and all tribes except the Tonto Apache. In addition, letters from the Tonto Apache Tribe, the Jicarilla Apache Nation and the White Mountain Apache Tribe sent to the court indicate the children are not eligible for enrollment. Finally, the juvenile court minute order dated April 27, 2007, reflected that the juvenile court found the ICWA notice was proper.

Mother contends the court failed twice in not making an express determination whether or not the ICWA applied to the children, and that a mere finding that the ICWA notice was proper does not suffice. Mother relies on In re Jennifer A. (2002) 103 Cal.App.4th 692, 705 (Jennifer A.) for the assertion that the court must make a determination whether the ICWA applies in a particular case.

Courts have disagreed as to whether a court is required to make an explicit finding as to whether the ICWA applies. In In re Levi U. (2000) 78 Cal.App.4th 191, 199 (Levi U.), the court ruled an explicit finding was not required in that it was apparent in that case that the juvenile court had found it inapplicable. In Jennifer A. and in In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413 (Antoinette S.), the court suggested the juvenile court should make an explicit finding, noting that in Levi U., the court had correctly made an implicit finding the ICWA was inapplicable, and [t]he point of the matter is the court must decide, one way or the other, whether the ICWA applies, so it can proceed in compliance therewith when appropriate. (Jennifer A., supra, 103 Cal.App.4th at p. 706, fn. 5; Antoinette S., supra, 104 Cal.App.4th at p. 1413.)

In Jennifer A., no copies of the notices or evidence of service on the tribes, receipt of notice by the tribes or any response from the tribes had been filed with the court. (Jennifer A., supra, 103 Cal.App.4th 692 at p. 698.) While the record must reflect that the court considered the issue and decided whether ICWA applies, its finding may be either express or implied. (Levi U., supra, 78 Cal.App.4th at p. 199.) Here, given the volume of documentation concerning notice and responses, the record reflects an implicit finding concerning the applicability of the ICWA. Therefore, we find no error in the trial courts failure to expressly find that ICWA did not apply to the children in this case.

Disposition

The order appealed from is affirmed.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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ELIA, J.

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[1] All further unspecified statutory references are to the Welfare and Institutions Code.

[2] At the time of the initial hearing in this case, the applicable rule of the California Rules of Court was 1439. Effective January 2007, this rule was renumbered to 5.664.

[3] At the Departments request, we took judicial notice of documents filed in the juvenile court in 2007 showing a second round of ICWA notices being sent, as well as letters from the Tonto Apache Tribe, Jicarilla Apache Tribe, and White Mountain Apache Trice indicating the children are not eligible for membership. We recognize the Supreme Court has stated post-judgment evidence may not, except in extraordinary circumstances, be used as a basis to reverse a termination of parental rights on appeal. (In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) However, because this appeal is not from an order terminating parental rights, taking judicial notice here is not prohibited by In re Zeth S.