In re T.D.

Filed 3/5/07 In re T.D. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

Glenn D. (appellant), the father of T.D. and G.D. (the minors), appeals from orders of the juvenile court adjudging the minors dependent children of the court, removing the minors from parental custody, and denying appellant reunification services. (Welf. & Inst. Code, 360, subd. (d), 395.)^[1] Appellant makes several contentions of alleged reversible error, including a claim that the Department of Health and Human Services (DHHS) violated the notice provisions of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. 1901 et seq.). Agreeing with the ICWA claim only, we shall reverse and remand for proper notice.

Facts and Procedural History

On October 20, 2005, DHHS filed original juvenile dependency petitions pursuant to section 300 on behalf of the minors. The petitions alleged in part that appellant and the mother of the minors were incarcerated and unable to arrange care for the minors. Thereafter, on March 20, 2006, DHHS filed amended petitions on behalf of the minors. Those petitions alleged the minors had suffered, or there was a substantial risk they would suffer, serious physical harm or illness as a result of the failure or inability of appellant and the minors mother to supervise or protect the minors adequately.

The amended petitions averred that at one time the minors mother was incarcerated and she was now hospitalized and unable to care for the minors. Each petition also contained the following alleged facts in support of the allegation that the minors were at a substantial risk of suffering serious harm: b-3. [Appellant] has a substance abuse problem from which he has failed or refused to rehabilitate and which renders him incapable of providing adequate care and supervision of the [minor], in that [appellant] has convictions for being under the influence of a controlled substance on March 29, 1984[,] and November 19, 2001. Further, [appellant] has a conviction for being in a place where controlled substances are used on August 17, 2000[,] and a conviction for possession of a controlled substance on May 5, 2003. [Appellant] was recently released from state prison where he was serving time on a parole violation for continuing to use drugs. [] b-4. [Appellant] has an extensive criminal history with numerous convictions for offenses involving violence or threats of violence, which renders him incapable of providing adequate care and supervision of the [minor]. [Appellant] was convicted of voluntary manslaughter on April 16, 1985; convicted of battery on June 21, 1988; convicted of robbery on September 25, 1991; convicted of battery on a police officer on September 24, 2001; and convicted of threatening a crime with intent to terrorize on November 19, 2001. Lastly, he was convicted of obstructing or resisting a public officer on September 24, 2001[,] and August 6, 2004.

The record reflects appellant has a lengthy and extensive criminal history, which includes convictions for voluntary manslaughter and robbery. At the time the original petitions were filed, appellant was incarcerated at California State Prison, San Quentin. Moreover, appellant admitted abuse of several illegal drugs. On November 17, 2005, appellant was released from custody on parole.

Appellant told DHHS that in 2001 or 2002 he had cared for the minors for approximately one year. The minors expressed their wish to be returned to their mother if possible. Although neither minor wanted to live with appellant, both wanted to maintain contact with him.

In its reports, DHHS asked the juvenile court to deny placement of the minors with appellant and also to deny appellant reunification services. In support of these recommendations, DHHS stated in part that it would be detrimental to place the [minors] with [appellant], as his chronic criminal history and substance abuse create risk of abuse and/or neglect for the [minors]. [Appellant] has displayed a continued pattern of violent crimes, including voluntary manslaughter and robbery, which has lead [sic] to [appellant] being incarcerated for the majority of the [minors] lives. Placement of the [minors] with [appellant] would be detrimental, as [appellant] has a history of being released from prison for short periods of time and then subsequently re[]incarcerated for violations of his parole. [Appellants] pattern of criminal activities creates an unsafe and unstable environment for the [minors]. Further, [appellants] criminal activities are compounded by chronic substance abuse, which increases the likelihood the [minors] would be at risk for abuse and neglect. Further, [appellants] repeated incarcerations have prevented [appellant] from having [a] significant relationship with either of these [minors]. [Appellant] has not provided on[]going care and supervision for the [minors] for at least the last three years, as he has been incarcerated for the majority of that time.

DHHS also opined, [Appellant] is not entitled to family reunification services pursuant to . . . [s]ection 361.5(b)(12). [Appellant] has an extensive criminal history, in that [appellant] has been convicted of two violent felonies, as defined in subdivision (c) of [s]ection 667.5 of the Penal Code.  On April 16, 1985, [appellant] was convicted of PC192.1--Voluntary Manslaughter. On September 25, 1991, [appellant] was convicted of PC211--Robbery. [DHHS] is still in the process of obtaining copies of these convictions . . . . [] [Appellant] is not entitled to family reunification services pursuant to [s]ection 361.5(b)(13). [Appellant] has an extensive, abusive, and chronic use of drugs or alcohol from which he has failed to rehabilitate. On May 6, 2003, [appellant] was [c]ourt ordered to participate in substance abuse treatment . . . . [Appellant] was referred to the California Rehabilitation Center on May 6, 2003. [Appellant] reported he completed services in 2004, but continues to relapse and his failure to maintain any kind of long-term sobriety is considered resisting treatment. . . . [] As to the (c) analysis, it is not in the best interest of the [minors] to offer [appellant] reunification services as [appellant] is a career criminal and substance abuser who has been in and out of the State prison system for the majority of the [minors lives]. Additionally, when [appellant] has been released from prison, on at least three separate occasions, he has been found to be in violation of his parole and returned to prison to finish his term. [Appellant] has had ongoing documented substance abuse issues dating back as far as 1984 to the present, in that [appellants] most recent return to prison was a violation of parole due to cocaine use. Further, while the [minors] have expressed a desire to maintain contact with [appellant] through visitation[,] they are adamant they wish to remain with their older brother . . . and return to the mothers care when she is released. Due to [appellants] criminal history and substance abuse, [appellant] has been incarcerated for the majority of the [minors] lives, which has prevented [appellant] from establishing a positive bond with the [minors] and/or providing any type of long[-]term or ongoing care for the minors. [] It does not appear to be in the [minors] best interest to be placed with [appellant], as [appellant] continues to be on parole and has an extensive history of being re[]incarcerated for violations of his parole.

At a December 19, 2005, hearing, the juvenile court found that DHHS had complied with the notice provisions of ICWA. DHHS had sent notice of the dependency proceedings to Cherokee and Choctaw Indian tribes and to the Bureau of Indian Affairs (BIA). However, that notice omitted the names of the maternal grandparents, which were known to the social worker. Moreover, as to some tribes, the notice was sent to incorrect addresses and to improper recipients.

At the March 27, 2006, jurisdiction and disposition hearing on the amended petitions, appellant testified that, while he was incarcerated, he had stayed in contact with the minors by mail and telephone. According to appellant, he also had lived with the minors for six years. After his release from custody on parole, appellant had not visited the minors, although he had tried to do so. Appellant told the juvenile court that he and the minors shared a very close relationship, and indicated his wish to have the minors in his custody.

At the conclusion of the hearing, the juvenile court sustained the amended petitions, adjudged the minors dependent children, ordered them removed from parental custody, and denied appellant reunification services on the grounds he had been convicted of a violent felony and that reunification would not be in the best interests of the minors.

Discussion

I

Appellant contends the dependency petitions failed to state a cause of action under section 300, subdivision (b). According to appellant, none of the factual allegations contained in the petitions show the minors were at a substantial risk of suffering serious harm as a result of appellants actions. Appellant also asserts the petitions fail to allege how the minors were placed at risk by their mothers unavailability or by appellants criminal history.

In this case, the petitions were based in part on section 300, subdivision (b). A cause of action in dependency under this subdivision requires an averment that [t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child . . . . ( 300, subd. (b), italics added; see In re Rocco M. (1991) 1 Cal.App.4th 814, 823 (Rocco M.).) A substantial risk of physical harm may be inferred from the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries, or a combination of these and other factors. (Rocco M., supra, at p. 823.) However, past infliction of physical harm by a caretaker, standing alone, does not establish a substantial risk of physical harm; [t]here must be some reason to believe the acts may continue in the future. (Id. at p. 824; accord, In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134.)

In In re Alysha S. (1996) 51 Cal.App.4th 393, 396-397 (Alysha S.), this court held that a party in a dependency proceeding could challenge, on jurisdictional grounds, the sufficiency of the allegations contained in a section 300 petition. We required the pleading of essential facts establishing at least one ground of juvenile court jurisdiction. (Alysha S., supra, at pp. 399-400.) As to a finding of jurisdiction under subdivision (b) of section 300, we determined there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness. (Id. at p. 399, quoting Rocco M., supra, 1 Cal.App.4th at p. 823, italics in Rocco M.)

To satisfy the notice requirement of due process, the dependency petition must contain a concise statement of facts that links the statutory language to the circumstances alleged. ( 332, subd. (f); In re Jeremy C. (1980) 109 Cal.App.3d 384, 397; see also In re Stephen W. (1990) 221 Cal.App.3d 629, 640.) This does not require the pleader to regurgitate the contents of the social workers report into a petition, it merely requires the pleading of essential facts establishing at least one ground of juvenile court jurisdiction. (Alysha S., supra, 51 Cal.App.4th at pp. 399-400, italics added.)

In this case, the petitions allege the statutory criteria for jurisdiction under section 300, subdivision (b)--that the minors are at a substantial risk of physical harm due to appellants inability to provide regular care for the minors as the result of appellants criminal history and substance abuse. Taken together, the supporting facts alleged are that: For many years, appellant has had a continuing substance abuse problem that has prevented him from providing proper care for the minors. Moreover, that substance abuse has continued recently. Finally, appellants extensive criminal history places the minors at a substantial risk. By their terms, the allegations in the petitions state with specificity that it is appellants substance abuse and criminal history, past and recent, which place the minors at a substantial risk.

We conclude the petitions contain the required essential factual allegations that both state a basis for jurisdiction under subdivision (b) of section 300 and provide appellant adequate notice of the specific facts on which the petitions are based. (Cf. In re Jamie M. (1982) 134 Cal.App.3d 530, 544.) Although the supporting facts are not numerous, they do suggest a causal connection between appellants history and recent circumstances involving substance abuse and an identified current risk of harm to young minors. Read together, the allegations in the petitions sufficiently aver a substantial risk of serious physical harm to the minors posed by appellants history and recent conduct.^[2]

II

Appellant claims the evidence is insufficient to support the jurisdictional finding pursuant to subdivision (b) of section 300. According to appellant, no evidence was adduced of any risk of harm to the minors posed by his conduct.

Our review of the sufficiency of the evidence to support the judgment is limited to whether the judgment is supported by substantial evidence. Issues of fact and credibility are questions for the trial court and not the reviewing court. The power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact. (In re Christina T. (1986) 184 Cal.App.3d 630, 638-639.)

The purpose of section 300 is to protect minors from conduct or omissions by parents that place the minors at a substantial risk of suffering serious physical harm or illness. ( 300, subd. (b), 300.2.) In this case, the petitions alleged generally that the minors were at a substantial risk of suffering serious physical harm as a result of appellants past and recent substance abuse and criminal history. In evaluating the evidence, the emphasis must be on circumstances existing at the time of the jurisdiction hearing. (Rocco M., supra, 1 Cal.App.4th at p. 824.) However, evidence of past problems may be relevant to current circumstances and thus may be considered. (Cf. In re Michael S. (1981) 127 Cal.App.3d 348, 358.)

The evidence before the juvenile court at the jurisdiction hearing was in the form of social workers reports and testimony by appellant at the jurisdiction hearing. The juvenile court indicated it had considered the jurisdiction hearing report. That report also had referred to the detention hearing report.

As we have seen, subdivision (b) of section 300 provides for jurisdiction where there is a substantial risk the minor will suffer serious physical harm or illness as a result of various types of conduct or acts of omission on the part of the parent of the minor.

Viewed in the light most favorable to the judgment (In re Terry D. (1978) 83 Cal.App.3d 890, 899), the record in this case supports the juvenile courts jurisdictional finding under subdivision (b) of section 300. Pursuant to subdivision (b), the record contains evidence that appellant had a lengthy history of committing criminal offenses for which he was incarcerated, followed by subsequent incarcerations for violations of his parole. At the time of the hearing in this case, appellant was on parole; he was incarcerated when the original petitions were filed.

As DHHS concluded, appellants pattern of criminal activities creates an unsafe and unstable environment for the [minors]. Further, [his] criminal activities are compounded by chronic substance abuse, which increases the likelihood the [minors] would be at risk for abuse and neglect. Finally, appellants lengthy and repeated absences from the lives of the minors have made it difficult for him to maintain a significant relationship with the minors.

In sum, we conclude that substantial evidence supports the juvenile courts exercise of jurisdiction in this case. (Cf. In re Basilio T. (1992) 4 Cal.App.4th 155, 168-169.)

III

Appellant claims the juvenile court abused its discretion in denying reunification services to him. Noting his most recent incarceration was for a parole violation and that he was out of custody, appellant argues he had maintained contact with the minors and enjoyed a close relationship with them. Moreover, appellant asserts, the minors had indicated their desire to see him regularly.

The juvenile court may deny a parent reunification services under certain circumstances. ( 361.5, subd. (b).) One of those circumstances is where the parent has been convicted of a violent felony. (Id., subd. (b)(12).) In such a case, the court may not order services unless it finds, by clear and convincing evidence, that reunification is in the best interests of the minor. ( 361.5, subd. (c).)

In this case, appellant was convicted of manslaughter in 1985 and robbery in 1991. Each of those offenses is classified as a violent felony. ( 361.5, subd. (b)(12); Pen. Code,  667.5, subds. (c)(1), (c)(9).) No remoteness restriction is imposed on the use of those convictions to deny services in dependency proceedings. ( 361.5, subd. (b)(12).)

In reviewing appellants claim, we apply the familiar substantial evidence test. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.) 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 evidence--that is, evidence which is reasonable, credible and of solid value--to 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 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. (Ibid.; 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.)

Here, DHHS based its recommended denial of reunification services to appellant in part on his two violent felony convictions. Moreover, DHHS opined, services for appellant would not be in the best interests of the minors, as appellant was a career criminal and substance abuser who has been in and out of the State prison system for the majority of the [minors lives]. As a result, DHHS concluded, appellant had been unable either to establish a positive bond with the minors or provide ongoing care for them.

On the record before it, the juvenile court concluded that reunification would not be in the minors best interests, even as it expressed sympathy for appellants circumstances. That decision was well within the courts discretion. The record reflects appellants history was marked by instability and periods of only sporadic contact with the minors. Appellant even declined some visits with the minors that were proposed by DHHS, as well as scheduled weekly visits. Under such circumstances, the prospects for appellants successful reunification with the minors were doubtful at best.  Substantial evidence supports the courts denial of services.^[3]

IV

Appellant contends, and DHHS concedes, that DHHS did not fully comply with the ICWA notice requirements. We accept respondents concession.

In this case, the juvenile court and DHHS were on notice that the minors may have Native American heritage through their mother. Accordingly, DHHS sent notice of the dependency proceedings to Cherokee and Choctaw tribes, and to the BIA. Unfortunately, as all parties agree, the notice omitted known information and was mailed to incorrect recipients.

ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. 1901, 1902, 1903(1), 1912.) The juvenile court and DHHS have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is or may be an Indian child. (Cal. Rules of Court, rule 5.664(d).) If, after the petition is filed, the court knows or has reason to know that an Indian child is involved, notice of the pending proceeding and the right to intervene must be sent to the tribe, or to the BIA, if the tribal affiliation is not known. (25 U.S.C. 1912; Cal. Rules of Court, rule 5.664(f).) If no information or insufficient information is presented to the tribe in the notice, the notice is meaningless because the tribe cannot determine whether the minor is an Indian child. (In re D.T. (2003) 113 Cal.App.4th 1449, 1455.)

ICWA notice must include the following information, if known: the name of the child, the childs birth date and birthplace; the name of the tribe(s) in which the child is enrolled or may be eligible for enrollment; names of the childs mother, father, grandparents and great-grandparents or Indian custodians, including maiden, married and former names or aliases, as well as their birth dates, places of birth and death, tribal enrollment numbers, and current and former addresses. Further, the notice should contain, inter alia, a statement of the right to intervene, the right to counsel, the right to a continuance and the addresses of the court and the parties. (25 C.F.R. 23.11(a), (d), (e) (2006); 25 U.S.C. 1952; 44 Fed.Reg. 67588 (Nov. 26, 1979.) A copy of the petition must accompany the notice to inform the tribe of the proceedings. (25 C.F.R. 23.11(a), (d)(4), supra, 44 Fed.Reg. 67588, supra.)

Failure to secure compliance with the notice provisions of ICWA is prejudicial error. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424; In re Desiree F. (2000) 83 Cal.App.4th 460, 472.) Here, DHHS made several errors in providing notice of the proceedings to the tribes, errors which DHHS agrees it committed. Thus, we must reverse the dispositional orders and remand for further proceedings regarding compliance with ICWA.

Disposition

The March 27, 2006, dispositional orders of the juvenile court are reversed, and the matter is remanded to the juvenile court with directions to order DHHS to provide the BIA and the Cherokee and Choctaw tribes with proper notice of the proceedings under ICWA. If, after receiving notice under ICWA, no tribe indicates the minor is an Indian child within the meaning of ICWA, then the juvenile court shall reinstate the March 27, 2006, orders. If, on the other hand, any tribe responds affirmatively, then the court must consider the issues pursuant to the procedural and evidentiary requirements of ICWA.

DAVIS , J.

We concur:

SCOTLAND, P.J.

NICHOLSON , J.

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^[1] Hereafter, undesignated section references are to the Welfare and Institutions Code.

^[2] Contrary to appellants claim, the juvenile court did sustain count b-3 of the amended petitions, which alleged appellants substance abuse history posed a risk to the minors.

^[3] Despite ordering the termination of his reunification services, the juvenile court granted appellant continued supervised visitation with the minors.