In re April R.

Filed 1/23/07  In re April R. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

            APPEAL from a judgment of the Superior Court of Mariposa County.  Wayne R. Parrish, Judge.

            Stephanie J. Dolan, under appointment by the Court of Appeal, for Defendant and Appellant.

            Allen, Proietti & Fagalde and Michael A. Fagalde for Plaintiff and Respondent.

-ooOoo-

            Appellant Robin R. contends (1) the juvenile court failed to comply with the Indian Child Welfare Act (ICWA), 25 United States Code section 1901 et seq.; (2) the Welfare and Institutions Code section 300^[1] petition failed to state a cause of action; (3)  the evidence was insufficient to sustain the jurisdictional findings; and (4) the dispositional order denying reunification services and limiting visitation constitutes an abuse of discretion. 

            We will remand for the limited purpose of effecting valid notice of the pendency of the proceedings to the Cherokee tribes.  The responses from the tribes, after receipt of valid notification, shall determine whether the orders of the juvenile court are affirmed or vacated.

FACTUAL AND PROCEDURAL SUMMARY

            On November 10, 2004, the Mariposa County Department of Public Welfare (the Department) filed a dependency petition on behalf of April R., then three years old, because of multiple bruises whose causes appeared to be nonaccidental.  April was detained and placed in foster care.  On December 20, 2004, Robin admitted to jurisdiction and submitted to a nonconfidential psychological evaluation.  During the psychological examination, Robin admitted to using marijuana and alcohol.  

            Robin did not admit to causing the injuries to April but offered numerous reasons for April's bruising, asserting that April slipped and fell on wet leaves, slipped while getting out of the bathtub, fell down the stairs, and similar explanations.  Eventually, in April 2005, April was returned to Robin's custody and family reunification services were offered.  

            Between April 2005 and September 2005, the Department monitored Robin's progress on the case plan and April's condition.  In October 2005, the juvenile court determined that it no longer needed to retain jurisdiction over April and the dependency was dismissed.  

            On December 15, 2005, the Department filed a new petition alleging that April, now four years old, came within the provisions of section 300, subdivisions (a) and (b).  April was examined by a physician the day prior, December 14.  The physician found 28 bruises in different stages of healing on April.  April stated that her mother's boyfriend, Jeremy, hit her often.  April also said that if asked about her bruises, her mother told her to say she fell on the ground.  

            On December 15, 2005, April was diagnosed with nonaccidental trauma with a high degree of medical certainty.  On December 19, 2005, April's medical doctor expressed concern regarding the emotional trauma April had experienced, evidenced by her nightmares, and recommended immediate therapy.  The doctor also expressed concern about April's physical safety because abuse tends to increase in severity and a child could die from the type of beatings to which April was at risk of suffering.  

            The petition was later amended to allege that April also came within the provisions of section 300, subdivisions (c) and (e). 

            On January 6, 2006, Robin admitted smoking marijuana every day for two years.  She also acknowledged that â€