In re S.C.

Filed 7/24/06 In re S.C. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEALS from orders of the Superior Court of San Diego County, Cynthia G. Bashant, Judge. Reversed with directions.

B.C. and Joseph C. appeal from orders declaring their minor daughter S.C. a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (b) and (j)^[1] and removing S.C. from their custody pursuant to section 361, subdivision (c)(1). B.C. challenges the sufficiency of the evidence to support the court's dispositional findings. She also contends that the San Diego County Health and Human Services Agency (Agency) did not comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). Joseph C., the minor's father, joins in B.C.'s arguments.

The Agency agrees with B.C.'s contention regarding the ICWA notice. We conclude substantial evidence supports the juvenile court's dispositional findings. However, because notice under the ICWA was deficient, we reverse the orders and direct the juvenile court to comply with the ICWA.

FACTUAL AND PROCEDURAL BACKGROUND

In 2004, before S.C.'s birth, B.C. and her three other minor children became involved in the dependency system. Specifically, B.C.'s minor son, Emery D., suffered an injury to his head and brain. He was sent to the hospital and was diagnosed with a subdural hematoma. B.C.'s boyfriend at the time was later found guilty of abusing Emery and causing great bodily injury to him, and was sentenced to prison. Emery and his two siblings were placed with relatives as dependents and the Agency offered services to B.C.

B.C. continued to have problems with domestic violence after she married Joseph in November 2004. In April 2005, while she was pregnant with S.C., B.C. obtained a restraining order against Joseph. Joseph threw keys at her, which struck her body, and threatened to kill her. B.C. called the police. When officers arrived at B.C.'s residence, they observed Joseph verbally threatening her.

The social worker interviewed B.C.'s minor children at their out-of-home placement that same month. The children disclosed that they were afraid of Joseph and that B.C. and Joseph fought "'all the time.'" On one occasion, Joseph came home inebriated and discovered that B.C. had changed the locks. He became angry and kicked in the front door while yelling and cursing at B.C. The minors said that B.C. was afraid to divorce Joseph because "'something bad will happen to her.'" The minors also said that they believed Joseph would kill their mother.

B.C. indicated that she was concerned about Joseph's anger issues and the violence he directed at her. Joseph was often under the influence of drugs when he threatened and yelled at her. He would often become upset with her for not paying attention to him, and frequently yelled profanities at her in front of her children. B.C. told the social worker that she wanted to get out of her marriage, and said that she would not risk her chances of reunifying with her three children. However, about a month before S.C. was born, the social worker visited B.C. and learned that Joseph was living at the house again. B.C. said he had been living there for the past two months and that there had not been any serious problems.

S.C. was born in September 2005. The Agency filed a petition in the juvenile court on behalf of S.C. under section 300, subdivisions (b) and (j). The petition alleged that B.C. and Joseph had exposed S.C.'s siblings to incidents of domestic violence since November 2004. It specifically detailed the facts surrounding the April 2005 incident and stated that B.C. had allowed Joseph to return to her home despite the fact that she had obtained a restraining order against him. B.C. had also allowed Joseph to be present during her visits with S.C.'s siblings. The petition further alleged that S.C. had suffered, or was at risk of suffering, serious physical harm or illness because of her parents' failure to adequately protect and supervise her.

According to the detention report, B.C. said that she had asked Joseph several times to move out of the house because of his drug use. Joseph would tell her that he was drug free, and she would allow him to move back in. The report noted that Joseph had attended therapy and an anger management program. He admitted that he had used marijuana in the past. He believed that he did not have any anger management problems, and that he did not pose a threat to anyone.

Both B.C. and Joseph were present at the detention hearing. The court made a prima facie finding on the petition, detained S.C. in out-of-home care, and ordered supervised visitation.

In the jurisdiction and disposition report, the social worker stated that she believed B.C. had not demonstrated significant progress in her case plan. The psychological evaluation of B.C. noted that she had a history of becoming involved in unstable relationships that eventually led to domestic violence and the physical abuse of her children. Further, B.C. admitted to having used drugs with her last boyfriend, who is now serving time in prison for physically abusing her son Emery. The therapist believed that it was possible that B.C. would suffer a relapse of drug use and that she would become involved in another abusive relationship.

The social worker provided the court with B.C.'s treatment update in an addendum report. In May 2005, B.C. stopped attending therapy sessions and did not pursue therapy again until after the court detained S.C. in September 2005. Although the therapist noted some improvement with both B.C. and Joseph, she believed it was important for both parents to continue in therapy because B.C. might relapse in terms of drug use or another abusive relationship. The therapist further noted that B.C. had not started domestic violence classes, but that she was scheduled to begin classes in November 2005.

Joseph submitted to a psychological evaluation in October 2005 that was conducted by clinical psychologist Dr. Dan Whitehead. Joseph admitted having used drugs in the past, including cocaine, PCP and marijuana. Although Joseph stated that he had been drug free for several years, B.C. told social workers that Joseph had continued to abuse drugs and alcohol. Joseph also admitted that he has some anger problems that pose a risk. Dr. Whitehead believed that at the time of the evaluation, Joseph's true motivation to complete ongoing treatment was questionable. Specifically, Dr. Whitehead noted that Joseph denied the allegations against him in this case and that he had misrepresented which services he had begun. As a result, Dr. Whitehead believed Joseph was in denial regarding his need for services and that more time was required to determine whether Joseph will persevere with his case plan. Dr. Whitehead also noted that Joseph's ability to parent seemed less than adequate, based on Joseph's denial of his involvement in domestic violence and his history of drug use. Participation in ongoing treatment would enable Joseph to address his anger management problems and his ability to protect the children from exposure to potentially violent situations.

Both parents personally appeared at the jurisdiction hearing. According to the testimony of the social worker, S.C.'s siblings said they had seen B.C. and Joseph engage in both verbal and physical fights, and that they sometimes hit each other. The children stated that they not only feared Joseph, but were also afraid that Joseph would kill B.C. The social worker further testified that B.C. had not entirely acknowledged the domestic violence incidents in her past. Although B.C. had told the social worker that she wanted to end her marriage to Joseph, she stopped going to therapy and failed to enforce a restraining order she had obtained against Joseph. Instead, B.C. allowed Joseph to return home. The social worker believed that because B.C. had a history of becoming involved with abusive partners, she would continue to place her children at risk. The social worker further believed that B.C. had not adequately addressed this issue in therapy.

With respect to Joseph, the social worker testified that he had not yet addressed his anger management and substance abuse problems. Joseph still fought with B.C. and yelled at the children. The social worker opined that Joseph would benefit from parenting classes and counseling and that this should occur before S.C. could be safely returned to his custody. Joseph's therapist testified that Joseph had started to make progress in therapy. Joseph had reached a point where he understood that he has a problem. The therapist did not believe Joseph would hurt B.C. However, the therapist acknowledged that Joseph had yet to take full responsibility for his past behaviors, and specifically, that Joseph had not admitted to the therapist that he had threatened to kill B.C. The therapist did not feel capable of addressing whether Joseph could safely parent S.C. At the conclusion of the jurisdiction hearing, the court found the allegations of the petition to be true and continued the matter for a disposition hearing.

At the disposition hearing, the social worker testified that in her opinion, B.C. had to make additional progress with her domestic violence classes. The social worker was also concerned about the fact that B.C. continued to have contact with Joseph. Specifically, B.C. and Joseph had driven together from San Diego to San Bernardino to visit the children. The social worker believed that B.C. was still trying to please Joseph and that she was placing his needs before the children's. B.C. had just started individual therapy sessions again in September, and conjoint therapy had not yet commenced. As to visitation, the social worker noted that B.C. and Joseph had made unauthorized visits with S.C. and her siblings. The social worker noted that B.C. attended these visits with Joseph even though the parents were required to participate in visits separate and apart from each other.

After hearing testimony and reviewing the Agency's reports, the court sustained the allegations of the petition, declared S.C. a dependent and removed her from B.C. and Joseph's custody. The court ordered the parents to comply with their case plans.

DISCUSSION

I

There is Substantial Evidence Supporting the Trial Court's Order

Removing S.C. from Her Parents' Custody

B.C. and Joseph challenge the sufficiency of the evidence supporting the court's dispositional order. They assert that no incidents of domestic violence had occurred in the home since April 2005, and that the evidence was insufficient to support a finding that S.C. was at substantial risk of suffering harm if she remained in their custody.

A

In reviewing the sufficiency of the evidence on appeal, we look to the entire record to determine whether or not there is substantial evidence to support the findings of the juvenile court. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or determine where the weight of the evidence lies. Rather, we draw all reasonable inferences in support of the findings, view the record in a light favorable to the juvenile court's order and affirm the order even if there is other evidence supporting a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) When the trial court makes findings by the elevated standard of clear and convincing evidence, the substantial evidence test remains the standard of review on appeal. (In re Mark L. ( 2001) 94 Cal.App.4th 573, 580-581.) The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Before the court may order a child physically removed from his or her parent, it must find, by clear and convincing evidence, that the child would be at substantial risk of harm if returned home and that there are no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. (§ 361, subd. (c)(1).) The parent need not be dangerous and the child need not have been actually harmed in order for removal to be appropriate. The focus of the statute is on averting harm to the child. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6; In re Jamie M. (1982) 134 Cal.App.3d 530, 536, citing In re B.G. (1974) 11 Cal.3d 679, 699.)

There is substantial evidence supporting the juvenile court's finding that S.C. was at substantial risk of harm due to domestic violence. Domestic violence in the household where children are living constitutes neglect in that the occurrence of domestic violence constitutes a failure to protect the children from the substantial risk of encountering the violence and suffering serious physical harm from it. "Such neglect causes the risk." (In re Heather A. (1996) 52 Cal.App.4th 183, 194; see also In re Basilio T. (1992) 4 Cal.App.4th 155, 169 [substantial evidence supported jurisdictional finding children were at substantial risk of serious harm due to violent confrontations in family home]; In re Benjamin D. (1991) 227 Cal.App.3d 1464, 1470, fn. 5 [common sense and expert opinion indicate domestic violence is detrimental to children].)

As relates to B.C., given the deference we must accord to a juvenile court's factual findings, it was reasonable for the court to infer from the evidence that because B.C. has a tendency to become involved in relationships with persons who are abusive to her and her children, and because she has yet to address this issue fully through counseling, if S.C. were to remain in the home, she would be at substantial risk of suffering harm due to domestic violence. Less than two weeks before the disposition hearing, B.C.'s therapist submitted a treatment update report stating that B.C. had been inconsistent in attending her therapy sessions and that although there had been some improvement, the therapist believed B.C. required additional therapy to ensure that she would not become involved in another abusive relationship or start to use drugs again. Further, B.C. had attended only two domestic violence classes, and although she had attended parenting classes, she believed she did not need them. In addition, the social worker testified that S.C. would not be safe with B.C. because instead of taking responsibility for S.C., B.C. denied that there had been any domestic violence in her relationship with Joseph. The court was entitled to find the social worker's opinion credible and to give great weight to her assessment and testimony. We may not reweigh the evidence or substitute our judgment for that of the trial court. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.)

As to Joseph, his therapist believed Joseph had not taken full responsibility for his behavior, and was specifically concerned that Joseph had not admitted that he had threatened to kill B.C. According to Joseph's psychological evaluation report, Joseph's ability to parent was less than adequate, based on his history of drug use and his denial that there had been incidents of domestic violence between him and B.C.

Considering that no incidents of domestic violence have been reported since April 2005, that the parents are diligently participating in services, and that they are making progress in therapy, this case is arguably a close one. However, the juvenile court found that there was sufficient evidence to remove S.C. from B.C. and Joseph's custody, and substantial evidence supports the trial court's findings. There is evidence showing that the parents have not adequately dealt with the issue of domestic violence, and that additional services are needed. The juvenile court's decision to remove S.C. under these circumstances is consistent with the purpose of section 361, subdivision (c)(1), which is to prevent harm to children.

II

Lack of Compliance with Notice Requirements of the ICWA

B.C. contends that the court's jurisdiction and disposition orders should be reversed because the court failed to comply with the notice requirements of the ICWA. County counsel and minor's counsel concede that a limited remand is appropriate so that proper notice under ICWA can be given. We agree.

Congress enacted the ICWA in 1978 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.) It allows an Indian child's tribe to intervene in state court dependency proceedings (25 U.S.C. § 1911(c)) because the "ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource." (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.)

When the court in a dependency proceeding 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 child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." (25 U.S.C. § 1912(a); In re Junious M. (1983) 144 Cal.App.3d 786, 790-791.) If the tribe is unknown, notice must be sent to the Bureau of Indian Affairs (BIA), as agent for the Secretary of the Interior. (25 U.S.C. § 1912(a); 25 C.F.R. § 23.25 (2005); Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253.) No proceeding to terminate parental rights may occur until 10 days after the tribe or the BIA has received notice. (25 U.S.C. § 1912(a).) If proper notice is not given, the order terminating parental rights may be vacated. (25 U.S.C. § 1914.)

"Notice must be sent whenever there is reason to believe the child may be an Indian child, and for every hearing thereafter unless and until it is determined that the [ICWA] does not apply to the case." (Cal. Rules of Court, rule 1439(f)(5).) The child's Indian status need not be certain to invoke the notice requirement. (Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 254; In re Desiree F., supra, 83 Cal.App.4th at p. 471.) Information that the child is not enrolled in a tribe is not determinative. (Dwayne P. v. Superior Court, supra, at p. 254.) "Moreover, a child may qualify as an Indian child within the meaning of the ICWA even if neither of the child's parents is enrolled in the tribe." (Ibid.) The determination of whether a minor is, or is not, an Indian child is made exclusively by the tribe and is conclusive. (In re Jonathan D. (2001) 92 Cal.App.4th 105, 110; In re Junious M., supra, 144 Cal.App.3d at p. 793.)

B.C. informed the Agency that she might have American Indian heritage, although the tribes were unknown. The court directed the Agency to provide proof of notice to the BIA. The court later received a partially completed notice form. The form listed the maternal and paternal grandparents as "unknown." However, the Agency clearly had the ability to identify the maternal grandparents because S.C. was living with her maternal grandfather and he had been attending the dependency hearings. The ICWA notice form, therefore, was not adequately completed. The Agency concedes that notice in accordance with the ICWA was not given. (See Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 258.) The "juvenile court's failure to secure compliance with the notice provisions of the [ICWA] is prejudicial error." (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424; Dwayne P. v. Superior Court, supra, at p. 258.) Thus, the matter must be reversed for proper notice.

DISPOSITION

The jurisdiction and disposition orders are reversed and the juvenile court is directed to order the Agency to comply with the notice requirements of the ICWA. If, after proper notice and inquiry, no tribe exercises its right to intervene and the court determines that proper notice has been provided, the court is directed to reinstate the jurisdiction and disposition orders. If a tribe intervenes, the court is directed to conduct a new jurisdiction and disposition hearing in accordance with the provisions of the ICWA.

AARON, J.

WE CONCUR:

HALLER, Acting P. J.

McDONALD, J.

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