In re A.C.
Filed 8/23/12 In re A.C. CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
TWO
In re A.C. et al., Persons Coming Under the Juvenile Court Law.
B237237
(Los Angeles
County
Super. Ct.
No. CK88112)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
T.G.,
Defendant and Appellant.
APPEAL from an order of the Superior
Court of
County. Sherri Sobel,
Juvenile Court Referee. Affirmed and
remanded with directions.
Roni Keller, under appointment by
the Court of Appeal, for Defendant and Appellant.
John F. Krattli, Acting County
Counsel, James M. Owens, Assistant County Counsel, and Navid Nakhjavani, Deputy
County Counsel, for Plaintiff and Respondent.
_________________________
T.G. (mother) challenges a juvenile court
dispositional order placing her two children, A.C. (born Sept. 2000) and D.G.
(born Mar. 2004) with their respective fathers and terminating jurisdiction.
court’s dispositional order, we conclude that the juvenile court did not
err. However, as for mother’s complaint
that the Department of Children and Family
Services (DCFS) did not comply with the Indian Child Welfare Act’s (ICWA)
notification requirements, we agree that notice was deficient. Those deficiencies do not compel reversal of
the juvenile court’s order. Rather,
pursuant to In re Brooke C. (2005)
127 Cal.App.4th 377, this matter is remanded for the limited purpose of
allowing DCFS to provide proper ICWA notice.
The Family
At the time of the relevant events, A.C. and D.G. were
residing with mother. A.C.’s father,
Henry C. (Henry), was living in Arizona with his new wife, Jessica C.
(Jessica), and their son. D.G.’s father,
Terrell J. (Terrell) was living in Long Beach.
Welfare and Institutions
Code Section 300
name="_ftnref2" title="">[2]
This family came to the attention of DCFS on May 27,
2011, when a referral was received alleging that the children were victims of
physical abuse. The referral indicated
that D.G. had approached the reporting party, stating that her arm and wrist
hurt. D.G. had black and blue marks on
her right wrist area and reported that mother had “‘whipped’†her because she
was playing with her hair. D.G.
disclosed that mother had hit her on previous occasions as well.
Children’s social worker (CSW) Knight spoke with
mother, who admitted that she hit both A.C. and D.G. with a belt the night
before. Mother explained that she hit
her daughters with a belt as a form of punishment. During the interview, law enforcement
officials arrived at the family home and placed mother under arrest.
D.G. was very engaging and upbeat during her interview
with the social worker. She did not
exhibit any emotional distress while sharing her observations of mother.
A.C. informed CSW Galvan that mother had beaten her
with a belt to punish her for “‘bad behavior.’â€
A.C. showed the social worker a bruise that covered her entire upper
left arm. Unlike D.G., she was
frightened and very emotional when describing the beatings that she received
from mother, and she stated that she had other bruises on her leg and backside
that were caused by mother hitting her with a belt.
On June 2, 2011, DCFS filed a section 300 petition on
behalf of the children, based upon mother’s physical abuse of A.C. and D.G. as
well as Henry and Terrell’s failure to provide their children with the
necessities of life. At the detention
hearing, the juvenile court found that the children were persons described by
section 300, subdivisions (a), (b), (g), and (j) and ordered them detained.
Jurisdiction/Disposition
Report
In its June 23, 2011, jurisdiction and disposition
report, DCFS reported about the children’s fathers. According to mother, neither Henry nor
Terrell was really involved with the children.
As for Henry, mother informed the social worker that he did not provide
for A.C. On the other hand, Jessica
stated that A.C. would visit her, Henry, and A.C.’s half-brother every summer
in Arizona. In fact, A.C. told Jessica
that Jessica was more like a mother to her than her own biological mother. At the present time, Jessica reported that
Henry had been incarcerated since 2007 for driving under the influence.
Terrell was interviewed on June 15, 2011. He did not know that D.G. was in foster care
and did not know that mother had been abusing the girls. As with Henry, mother reported that Terrell
did not provide for his daughter.
However, Terrell told the social worker that he did provide for D.G.,
that he last saw her less than two months prior to the inception of the
dependency case, and that he was unable to see her more often because mother
worked nights and made it difficult for him to see his daughter.
D.G. reported that mother had been physically abusing
her since she was two or three years old.
D.G. explained that mother made the girls pull down their pants. Mother would then whip the girls on their
buttocks with a belt. D.G. stated that
mother whipped her every time she received a bad note from school. She recalled one incident where mother “kept
smackin[g] [her]†and “smackin[g] [her]†and “smackin[g] [her]†and “smackin[g]
[her].†D.G. told the social worker that
she did not want mother to hit her anymore.
A.C. confirmed that mother would hit both girls with a belt and would
also slap them in their faces. Mother
would also threaten to use handcuffs on the girls to keep them from moving
around when they were being beaten.
Mother was remorseful about what she had done. She told the social worker that she had been
raised in foster care and had not been appropriately parented by either her
mother or her foster mother. She
apparently had modeled her parenting techniques based on the way that she had
been raised. Thus, DCFS assessed that
mother needed services to understand how to appropriately discipline her
children. DCFS recommended that the
juvenile court declare A.C. and D.G. dependents of the court under DCFS
supervision.
Finally, DCFS noted that ICWA may apply based upon
limited information provided by mother.
Jurisdiction/Disposition
Hearing
At the June 23, 2011, hearing, D.G. recognized Terrell
as her father. She told the juvenile
court that she saw him “a lot.†The
juvenile court granted DCFS discretion to release D.G. into Terrell’s custody.
The juvenile court found that the ICWA did not apply.
The matter was
continued.
Supplemental Report and
Review Hearing
On July 13, 2011, the dependency investigator (DI)
disclosed that Henry was scheduled to be released that day. She reported that Henry wanted the upcoming
hearing continued so that he could attend.
Jessica stated that she was interested in caring for both children, if
possible.
Also on that date, the DI assessed Terrell’s
home. She found the home to be
appropriate, with no safety concerns.
members, such as D.G.’s paternal grandmother, who were willing to assist him in
caring for D.G. That said, DCFS reported
that he “may†have had little involvement in D.G.’s life.
DCFS advised the juvenile court that the Los Angeles
Superior Court had issued a restraining order against mother, preventing her
from having any contact with A.C. or D.G.
At the July 13, 2011, hearing, mother indicated that
she may have Indian ancestry. She did
not know the name of the tribe, but stated that the children’s maternal
grandmother was raised on a reservation.
The juvenile court ordered DCFS to investigate mother’s claim of Indian
ancestry.
The matter was continued to August 12, 2011.
Interim Review Report and
Subsequent Hearing
On August 12, 2011, the DI reported that she had
spoken with the maternal grandmother regarding the family’s Indian
ancestry. The maternal grandmother
stated that the family had Cherokee ancestry, but no one in the family was a
registered member of the tribe.
DCFS also reported that on August 7, 2011, D.G. had
been released to Terrell’s custody. He
had provided DCFS with documentation that he had addressed his outstanding
warrant. He could not assume custody of
A.C., however, because his criminal history necessitated a waiver prior to that
placement.
Also on August 12, 2011, Henry filed a parental
notification of Indian status, indicating that A.C. might be eligible for
membership in the Yaqui tribe. He also
submitted a statement regarding parentage, confirming that he was A.C.’s
father, that he had spent summers with her, and that he had paid child
support. DCFS further reported that
Henry had completed a drug treatment program while in custody and a program
regarding domestic violence and conflict resolution.
At the hearing, Henry testified that A.C. spent
summers in Arizona, that there was a bed for her in his home, that Jessica
agreed with A.C. living with them in Arizona, and that he never had any
children removed from his custody.
After hearing Henry’s testimony, the juvenile court
noted that as long as Henry did not pose a risk to A.C., she could be placed
with him.
A.C. testified next.
She stated that she had spent a significant amount of time with Henry
and his family in Arizona. She said that
she had a bed in the home, had never been mistreated, and that she got along
with Jessica and her half-brother.
The juvenile court ordered that A.C. be detained, but
it allowed her an extended visit with Henry in Arizona.
Then, Henry’s counsel informed the juvenile court that
he had a relationship with D.G. as well and would make sure to facilitate
sibling visits. Terrell’s counsel stated
that he and Henry got along with one another and that they would do everything
they could to keep D.G. and A.C. connected.
Regarding ICWA, the juvenile court noted that it was
not a “major problem†because the children were both residing with their
respective fathers.
Information for Court
Officer and Subsequent Hearing
On August 15, 2011, DCFS reported that Henry and
Jessica had a prior domestic violence incident in Arizona. Child Protective Services (CPS) had visited
the home but did not return. Jessica
reported that that was the family’s only contact with CPS in Arizona and that
Henry had received counseling while incarcerated.
At the hearing, mother’s counsel asked that the matter
be set for a contested hearing regarding disposition. He also asked that A.C. be available at the
hearing. The juvenile court explained
that A.C. would be available via telephone.
In its report, DCFS
indicated that mother remained incarcerated with a projected release date of
January 1, 2012. A criminal protective
order issued on June 1, 2011, prevented mother from having contact with her
children.
Terrell reported that he felt comfortable caring for
D.G.; he did not feel that he required any supportive services. D.G. informed the CSW that she was happy
living with her father and wanted to remain in his custody.
Regarding Henry, he was arrested after the last
hearing for disorderly conduct and resisting arrest, and he had spent a few
nights in jail. At the time of his
arrest, A.C. was not in any danger because she was with Jessica.
charged with misdemeanor resisting arrest.
Regarding A.C.’s placement, Henry indicated that A.C. had started sixth
grade and he wanted his daughter to remain in his custody. A.C. told the CSW that she was doing well and
enjoyed living with her father. She
stated, “‘yeah, it’s great.’†She had
made friends at school and had spoken to D.G. on the telephone several
times. A.C. stated that she wanted to
live with Henry, Jessica, and her half-brother.
DCFS noted that while Henry’s most recent arrest was
troubling, A.C. had been with her stepmother during the incident. Jessica cared for A.C. and was committed to
her. And, A.C. was attached to Jessica.
Ultimately, DCFS recommended that both children remain
placed with their respective fathers and that jurisdiction be terminated.
At the hearing, mother’s counsel did not call any
witnesses to testify and submitted the matter to the juvenile court based on
the evidence in the various DCFS reports.
The juvenile court sustained the counts in the petition based on the
serious physical abuse perpetrated by mother, pursuant to subdivision (a) of
section 300. The remaining counts were
dismissed.
Regarding disposition, the juvenile court noted that
mother had a five-year restraining order preventing her from having contact
with her children. It further noted that
the reason the children were in the dependency system was because of mother’s
actions and the children were now placed with their respective fathers. The juvenile court granted mother’s counsel a
two-week continuance of the dispositional hearing to address the restraining
order that had been issued by the criminal court. Mother’s counsel again requested that A.C. be
available via telephone in order to testify if the parties could not stipulate
to her testimony. A.C.’s counsel
informed the juvenile court that A.C. had been on standby all day waiting to
testify and, as a result, had missed school.
When mother’s counsel submitted, A.C.’s counsel called Henry and
informed him that A.C.’s testimony would no longer be required. Mother’s counsel stated: “I . . . believe we’ll be able
to work this out with an offer of proof at the next court date.†Thus, the juvenile court concluded: “Okay.
Thank you. That’s it.â€
October 5, 2011, Interim
Review Report and Hearing
On October 5, 2011, DCFS reported that it had received
responses to its ICWA notices from various tribes and the Bureau of Indian
Affairs, indicating that neither A.C. nor D.G. was an Indian child. The Cherokee Nation responded to the notices
by advising DCFS that the information was incomplete. Specifically, in order to verify Cherokee
heritage, the Cherokee Nation needed the maternal grandfather’s middle name and
date of birth, as well as birthdates for everyone and maiden names for all
females.
At the hearing, the juvenile court found that ICWA did
not apply.
Mother’s counsel asked to cross-examine the
children. He indicated that on September
7, 2011, he had asked that the children be available. The juvenile court explained that testimony
from the children that they loved mother would not change disposition of the
case. Mother’s counsel made an offer of
proof to the court regarding the children’s testimony, stating: “Their offer of proof, I think for the child
in Arizona, would be—she might be hoping for contact down the road sometime for
the child in California. I think I
believe the offer of proof of minors’ counsel would be maybe a little more
receptive to contact.†He
continued: “What I specifically would be
requesting is reunification for my client and would argue that it’s in the best
interest of the children because the mother is the only path to reunify the two
children as a sibling group.â€
The children’s counsel noted that the children were
having regular telephonic contact and that Henry and Terrell were facilitating
that contact for the girls. She also
explained that Henry would be willing to bring A.C. to California for
visits. She stated that the fathers were
very supportive of maintaining that sibling relationship for the girls.
The juvenile court then asked whether there was any
argument regarding returning the girls to mother’s custody. Mother’s counsel replied, “No, your Honor.â€
The juvenile court declared the children dependents of
the court and found by clear and convincing evidence that their return to
mother’s custody would create a substantial risk of harm to their welfare. Pursuant to section 361.2, the juvenile court
ordered the children placed with their respective fathers and terminated
jurisdiction.
name="_ftnref6" title="">[6]
Appeal
Mother’s timely appeal ensued.
DISCUSSION
I.
Mother
contends that the juvenile court erred in placing A.C. and D.G. with their
respective fathers.
A. Applicable
Law and Standard of Review
Once
jurisdiction is established, section 358 requires the juvenile court to
determine the appropriate disposition for the child. The juvenile court has broad discretion at
the disposition hearing to decide what will best serve the child’s interest and
to fashion an order accordingly. (
1098, 1103–1104.) A decision of the
juvenile court at disposition will not be reversed absent an abuse of
discretion. (In re Eric B. (1987) 189 Cal.App.3d 996, 1005.)
Section
361.2, subdivision (a), provides: “When
a court orders removal of a child pursuant to Section 361, the court shall
first determine whether there is a parent of the child, with whom the child was
not residing at the time that the events or conditions arose that brought the
child within the provisions of Section 300, who desires to assume custody of
the child. If that parent requests
custody, the court shall place the child with the parent unless it finds that
placement with that parent would be detrimental to the safety, protection, or
physical or emotional well-being of the child.â€
This statute evinces “the Legislative preference for placement with [the
nonoffending noncustodial] parent.†(
1124, 1132.) In fact, “[t]he
noncustodial ‘parent has a constitutionally protected interest in assuming
physical custody, as well as a statutory right to do so, in the absence of
clear and convincing evidence [of detriment to] the child. [Citations.]’
[Citation.]†(
1236, 1243.)
The
juvenile court must make the detriment finding by clear and convincing
evidence. We review the record for
substantial evidence. (
1564, 1569–1570.)
B.
The Children Were Properly Placed with Their Fathers Without
Supervision
In light of
the foregoing legal authority, the juvenile court plainly did not err in
placing A.C. and D.G. with their respective fathers. The fathers were nonoffending; in fact, there
was no evidence that the placement would be detrimental to the minors.
1. Placement
of D.G. with Terrell
In urging
us to reverse, mother points to Terrell’s criminal history. But, DCFS assessed Terrell’s home on July 12,
2011, and found it to be appropriate, with no safety concerns. And, Terrell advised DCFS that he had family
members, such as D.G.’s paternal grandmother, who were willing to assist him in
caring for her. Moreover, Terrell had
resolved the issue of his outstanding warrant.
Mother also claims that
Terrell had little involvement in D.G.’s life.
In raising this argument, mother questions why Terrell did not “step in
and protect†D.G. from mother’s abuse.
She contends that if Terrell had had enough contact with D.G., she would
have informed him of the abuse. The
appellate record does not support mother’s assertion that Terrell did not have
sufficient contact with D.G. In its July
13, 2011, supplemental report, DCFS did not affirmatively report that Terrell
had little involvement in his daughter’s life; rather, the report indicated that
Terrell “may†have had little involvement with D.G. Other evidence dispelled DCFS’s concern. For example, at the June 23, 2011, hearing,
D.G. stated that she saw her father “a lot.â€
Regardless, at least by August 2011, Terrell reported that he felt comfortable caring for
D.G., and he did not feel that he required any supportive services. And, D.G. was happy living with her father
and wanted to remain in his custody.
Mother further argues that D.G. was too young to
decide where she should be placed. The
appellate record does not support mother’s assertion that D.G. determined her
placement. While D.G. informed the CSW
that she was happy living with her father and wanted to remain in his custody,
there is no indication that her opinion was the lone determinative factor in
the juvenile court’s decision.
2. Placement
of A.C. with Henry
Likewise,
there was no evidence that the placement of A.C. with Henry was detrimental to
A.C. Like Terrell, Henry has a criminal
history. But, Henry was committed to
raising A.C. and, significantly, A.C.’s stepmother, Jessica, was committed to
caring for A.C.
As with
D.G., A.C. disclosed that she wanted to live with Henry, Jessica, and her
half-brother. That said, there is no
indication that the juvenile court based its decision solely on A.C.’s wishes.
3. Sibling
Bond Between A.C. and D.G.
Mother
challenges the juvenile court’s order on the grounds that the bond between A.C.
and D.G. was not sufficiently considered.
We cannot agree. Over the course
of this proceeding, the juvenile court heard evidence about A.C. and D.G. and
how they would remain close. Both Henry
and Terrell repeatedly advised the juvenile court and proved that they were
committed to the girls maintaining a relationship. And, while A.C. was separated from her
half-sister, she was now living with her half-brother, with whom she visited
every summer in Arizona. Finally, we
cannot ignore the fact that A.C. and D.G. are not challenging the juvenile
court’s order on appeal.
4. Continued
Supervision and Reunification Services are not Required
Mother
argues that continued supervision of the girls was required. We are not convinced. The fathers were nonoffending; the juvenile
court had no concerns regarding Henry and Terrell. (§ 361.2, subd. (b)(2).)
Likewise, the juvenile court did
not err in denying mother reunification services. While the girls may have lived primarily with
mother, as set forth above, they have had ongoing relationships with their
fathers. Moreover, mother is not the
minors’ last chance at reunification.
Although D.G. and A.C. may not live together, the appellate record
confirms that Henry and Terrell are facilitating the girls’ relationship. The fact that mother does not have a
substance abuse problem does not compel reunification services. Last, as mother concedes in her opening
brief, if she rehabilitates herself, she has access to the family law courts in
California and Arizona to seek custody or visitation of her daughters.
II.
Mother contends
that the juvenile court committed reversible error by failing to comply with
the ICPC. “Placement with an
out-of-state parent need not follow ICPC procedure.†(In re
John M., supra, 141 Cal.App.4th
at p. 1573; see also In re C.B.
(2010) 188 Cal.App.4th 1024, 1036 [“an out-of-state placement with a parent is
III.
Violated
Mother
contends that the juvenile court violated her right to due process by denying
her request to cross-examine the children.
Mother’s argument fails. Although
she asked that A.C. be available for the disposition hearing, her attorney
later agreed that the issue could be resolved through an offer of proof. Thus, if the juvenile court erred by not
having A.C. available at the disposition hearing, it is solely the result of
mother’s conduct. (In re Karla C., supra, 186 Cal.App.4th at p. 1267 [invited
error doctrine “‘prevents a party from asserting an alleged error as grounds
for reversal when the party through its own conduct induced the commission of
the error’â€].)
Moreover,
mother has not demonstrated how she was prejudiced by not cross-examining the
children. (Cal. Const., art. VI, § 13;
59–60.) She does not offer evidence or
argument regarding what the children would have said had they been present at
the hearing and how their testimony would have yielded a different result.
IV.
Finally,
mother argues that the juvenile court’s order must be reversed because the
juvenile court failed to comply with the notice requirements of ICWA.
“The ICWA, enacted by Congress in
1978, is intended to ‘protect the best interests of Indian children and to
promote the stability and security of Indian tribes and families.’ [Citation.]
‘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.’ [Citation.]
“‘The ICWA
confers on tribes the right to intervene at any point in state court dependency
proceedings. [Citations.] “Of course, the tribe’s right to assert
jurisdiction over the proceeding or to intervene in it is meaningless if the
tribe has no notice that the action is pending.†[Citation.]
“Notice ensures the tribe will be afforded the opportunity to assert its
rights under the [ICWA] irrespective of the position of the parents, Indian custodian
or state agencies.†[Citation.]’ [Citation.]â€
(In re Karla C. (2003)
113 Cal.App.4th 166, 173–174; see also In
re H.A. (2002) 103 Cal.App.4th 1206, 1210.)
The ICWA contains the following notice provision: “In any involuntary proceeding in a State
court, where 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 child’s tribe, by registered mail with return receipt requested,
of the pending proceedings and of their right of intervention. If the identity or location of the parent or
Indian custodian and the tribe cannot be determined, such notice shall be given
to the Secretary in like manner, who shall have fifteen days after receipt to
provide the requisite notice to the parent or Indian custodian and the
tribe. No foster care placement or
termination of parental rights proceeding shall be held until at least ten days
after receipt of notice by the parent or Indian custodian and the tribe or the
Secretary: Provided, That the parent or Indian custodian or the tribe shall,
upon request, be granted up to twenty additional days to prepare for such
proceeding.†(25 U.S.C. § 1912(a).)
We agree with mother that the ICWA
notice requirements were not satisfied.
(25 U.S.C. § 1912(a).) The
notices intended to be compliant with ICWA lack key information noted by the
Cherokee Nation, including the middle name and birthdate of the maternal
grandfather, and the dates of birth and maiden names of all females, including
the maternal grandmother. That
information presumably could have been provided upon investigation as DCFS was
in communication with both the maternal grandmother and the maternal aunt.
In light of this information from
the Cherokee Nation, we conclude that DCFS did not provide adequate notice,
amounting to an ICWA violation. That
error, however, does not compel reversal.
(In re Brooke C., supra, 127
Cal.App.4th at pp. 384–385.) The
lack of statutory notice requires a limited remand to the juvenile court for
DCFS to comply with the notice requirements of ICWA. (Id.
at p. 385.)
DCFS argues that ICWA does not
apply here because the children were not removed from parental custody. We are admittedly tempted by this
argument. After all, the children were
ultimately placed with their fathers.
But we cannot fixate on the result of these proceedings. (In re
Jennifer A. (2002) 103 Cal.App.4th 692, 700.) DCFS initially sought foster care for the
children; in fact, both girls lived with a foster family until they were placed
with their fathers in August 2011. Under
these circumstances, DCFS is required to comply with ICWA.
Jennifer A., supra, at
pp. 699–701 [when DCFS initially seeks foster care, it is required to give
the statutory notices, even if the minor is ultimately placed with a parent];
11, 15–16 [applying the harmless error analysis in a case where DCFS did not
pursue foster care or adoption, instead recommending from the beginning that
the children remain with their mother].)
DISPOSITION
The juvenile court’s order is affirmed. The matter is remanded for DCFS to comply
with the notice requirements of ICWA.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________________,
J.
ASHMANN-GERST
We concur:
_______________________________,
Acting P. J.
DOI
TODD
_______________________________,
J.
mother and the minors in this case have unusual first names, we will refer to
them using their first and last initials to protect their anonymity. (See Cal. Rules of Court, rule 8.401(a)(2).)
further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
