In re M.R.
Filed 4/10/13 In re M.R. CA2/8
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
EIGHT
In re M.R., a Person Coming
Under the Juvenile Court Law.
B238849
(Los Angeles
County
Super. Ct.
No. CK 90433)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
R.R. et al.,
Defendants and Appellants.
APPEAL from
an order of the Superior Court
of
County, Terry T. Truong, Juvenile Court Referee. Reversed in part and remanded; dismissed in
part.
Andre F. F.
Toscano, under appointment by the Court of Appeal, for Defendant and Appellant
R.R.
Neale B.
Gold, under appointment by the Court of Appeal, for Defendant and Appellant
V.S.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.
R.R.
(father) appeals from the juvenile court’s jurisdictional and dispositional
order adjudging his daughters dependents of the court. He contends that substantial evidence did not
support the court’s jurisdictional findings regarding his conduct. V.S. (mother) similarly appeals, contending
that substantial evidence did not
support the court’s jurisdictional findings regarding her conduct. Mother also argues that the juvenile court
erred in its Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; ICWA)
findings, and the court should have ordered the
Family Services (DCFS) to notice the Apache tribe. DCFS cross-appeals and argues that
substantial evidence did not support the court’s dismissal of a count against
mother under Welfare and Institutions Code section 300, subdivision (a).
trial court to comply with the notice provisions of ICWA.
We reverse
and remand for the limited purpose of completing an ICWA investigation and
complying with the ICWA notice provisions, but in all other respects, we find
no cause to reverse. Additionally, we
find that DCFS’s appeal is nonjusticiable and dismiss it.
factual
and procedural background
The family
consists of father, mother, and three daughters, A.R., M.R., and R.R. A.R. was 16 years old, M.R. was 12 years old,
and R.R. was eight years old at the time they were detained. Mother and father married in 1994 and
separated in 2008. Mother moved out and
left the daughters in father’s care because she felt that he was better able to
provide for them. The family came to the
attention of DCFS in October 2011 when a referral alleged that M.R. had
recently disclosed her father raped her when she was six to seven years
old. M.R. also reported that father had
recently started touching her inappropriately.
M.R.’s
account of the rape was as follows. The
family was living in a motel when she was six to seven years old. Mother was at work and her siblings were
asleep when father pulled M.R. into the bathroom, took his and her pants down,
and penetrated her. M.R. kicked and
tried to scream and was able to pull herself away from him after two to three
minutes. She ran out of the motel room
and walked to a nearby fast food restaurant, where she bought an ice cream
cone. When she returned approximately an
hour later, she acted as though nothing had happened and father did not touch
her again. She did not report anything
because she wanted to keep her family together.
M.R.
reported that recently father had begun touching her inappropriately. In the spring of 2011, father began groping
her breasts and thighs. She shares a
room with her younger sister R.R. M.R.
sleeps on the top bunk of their bunk bed, and R.R. sleeps on the bottom
bunk. When father woke her up for school
in the morning, he had been groping her breast through her clothes and rubbing
the inside of her thighs. Sometimes his
hand would creep up toward her vagina, but he never made contact with it. She would usually try to ignore the groping,
but there were many times when she told father to stop, and he would ignore
her. She said this occurred nearly every
day. She also reported that father had
come into her room when she was dressing on one occasion, even though she told
him not to do so. She asked him to leave
and he did, but he did so slowly. M.R.
told her maternal grandmother about the groping, and maternal grandmother said
she would talk to father about it.
M.R.’s maternal aunt heard of the molestation allegations and came to
their home in October 2011, where she picked up M.R., A.R., and R.R., and took
them to her house. M.R. was interviewed
by police officers later that night, and this was when she disclosed the rape
allegations.
M.R.
reported that she had been diagnosed with bipolar disorder, schizophrenia, and
depression, although her school therapist reported that she had only been
diagnosed with depression at that point.
M.R. stated that she had thought about taking her own life in the
past. She had feelings of extreme
sadness. Several of her friends had
committed suicide, and she was also sad because she had several pets who
died. She reported seeing shadows and
hearing whispers, which she believed started after her grandmother died. She also had nightmares and trouble
sleeping. She was supposed to be taking
medication starting over the summer, but it made her feel nauseous, so she
stopped taking it.
M.R.’s
older sister A.R. was aware of M.R.’s allegations against her father. She did not know what to believe because she
could not believe father would molest or abuse anyone. She had never seen or heard of any behavior
that would suggest father was molesting anyone.
Father had never molested her. She
said father could be loud or argumentative and does yell and scream at them “a
lot,†but she attributed this to their “money issues.â€
R.R. was
not aware of M.R.’s allegations against father.
She said that no one had ever touched her in an inappropriate
manner. She had never seen nor heard
father doing anything inappropriate to her sisters. She knew that father always walked into the
room she shared with M.R. to wake M.R. up in the mornings. He woke her up by standing next to their bunk
bed. She would often hear M.R. tell
father, “Stop, leave me alone.†The
voice she used to mimick M.R.’s voice was not panicky, but sounded sleepy and
low.
Father
stated that the allegations against him were untrue and he denied ever raping
or inappropriately touching any of the children. He said that maternal grandmother never
discussed any issues with him. Father
stated that he is a “Christian man†and would never do something like
this. Father was informed that law
enforcement was involved and he immediately volunteered to take a lie detector
test. Father said he would cooperate
with everyone in the investigation and was in agreement with the plan to
temporarily place the children in the home of their maternal aunt for the
duration of the investigation, and he agreed to monitored visits with the
children.
Mother was
“blown away†by M.R.’s allegations against father. Mother stated that she was sexually abused as
a minor and took the allegations very seriously. She reported that father was also touched
inappropriately as a minor, and he once admitted to her that he had molested
his niece. She said father was a
minister at his church and worked with children. She wanted the children to come live with her
and pledged to do whatever was necessary to keep them safe. She had spoken with father and they had
agreed that he would move out of the family home and mother and her boyfriend
would move in there with the children.
Mother felt that M.R. blamed father for her parents’ separation and felt
that M.R. displayed hatred toward father.
Mother had noticed a change in M.R. in the last year in that she had
been unable to sleep, did not want to eat, and had reported hearing
voices. Mother stated that M.R. was
having a hard time dealing with the grief of having lost several friends who
committed suicide and having lost several pets as well.
Father was
interviewed by a detective with the Los Angeles County Sheriff’s Department and
submitted to a polygraph exam. Father
told the detective that he never molested or raped M.R. When asked why M.R. would make up such
stories, father said that she may have some type of mental disorder. She had been telling father for the last nine
months that she hears voices in her head.
Father failed his polygraph exam.
Although father was arrested, he was released when the district attorney
decided not to prosecute the case.
M.R.’s
school therapist contacted DCFS shortly after father was released from jail to
say that she was very concerned for M.R.’s safety. M.R. was in the therapist’s office at that
moment and had said she was thinking about suicide and had a plan. The therapist was going to arrange a
psychological evaluation for M.R. The
therapist called DCFS later and said that M.R. was hospitalized with a 72-hour
hold. She noted that the school had
notified mother of M.R.’s condition, and when mother arrived at the school, she
was yelling at M.R. and was very verbally aggressive towards M.R. and the
school staff, but she eventually calmed down.
DCFS filed
a petition under section 300, subdivisions (a), (b), (d), and (j) alleging that
father physically and sexually abused M.R., mother knew or should have known
about the abuse and failed to protect her, and A.R. and R.R. were at risk of
similar harm. At the detention hearing
on October 21, 2011, mother notified the court that she had Apache heritage on
her mother’s side of the family, though she was not sure from which
relative. She reported that her uncle
mentioned it, and he was the person who kept track of it. She was not aware that any relative had
registered with the Apache tribe. Mother
also indicated on her “Parental Notification of Indian Status†form that she
“may have Indian ancestry,†namely, the Apache tribe. The court found that it did not have “reason
to know†that the children were Indian children as defined under ICWA and
declined to order notice to any tribe.
The court told mother that if she did speak with her uncle and obtain
additional information about family members being members of the Apache tribe,
she should let the social worker know.
The court
found a prima facie case for detaining the children and ordered them released
to mother’s custody. The matter was
continued for a pretrial resolution conference and adjudication hearing.
On November
7, 2011, DCFS filed an ex parte application to detain M.R. from mother and
place her in the home of her maternal aunt.
The application was based mostly on events that occurred after the
detention hearing. Father had moved out
of the family home and mother was residing there with the three children, her
boyfriend, and maternal grandmother.
More details had come out about mother’s behavior toward M.R. when M.R.
was hospitalized under a 72-hour hold.
When mother arrived at M.R.’s school after the therapist had informed
her that M.R. was being taken to the hospital for an evaluation, she
immediately put her face up against M.R.’s and screamed at her to “stop
manipulating people.†For approximately
half an hour, mother continued to verbally berate M.R. and yell in her
face. Mother told her to “get her
emotions straight†and “get her stuff together.†Mother also yelled at the school staff who
tried to intervene, saying that M.R. was merely an antisocial personality who
was inventing symptoms to avoid doing school work.
DCFS spoke
to M.R.’s case manager at the hospital.
After further evaluation, the hospital had placed M.R. on a 14-day hold,
meaning the hospital could discharge her at any time during those 14 days. The hospital had contacted mother after
M.R.’s evaluation, and mother refused consent for all medications except
ibuprofen. Mother made it clear that she
did not believe M.R. needed to be in the hospital.
The day
after M.R. was released from the hospital, she reported feeling “okay†though a
little overwhelmed, especially by the prospect of going back to school the next
day. She stated she was not happy living
with mother, but she knew she had to “deal with it.†Both A.R. and R.R. stated they were
comfortable living in the home with mother and her boyfriend and had no abuse
or neglect to report. A.R. was glad she
had not had any contact with father and did not want to see him at that
time. She now believed M.R.’s
allegations against him and “did not want anything to do with him because of
what he did to [M.R.]â€
The day
after M.R.’s release, mother called the school police for assistance because
M.R. was refusing to go to school.
M.R.’s school counselor asked the school police to check on M.R. and, if
needed, call the city police. When the
school police arrived, mother was cooperative but appeared to think M.R.’s
behavior was “all an act.†The officers
noticed M.R. had fresh cuts on her arm; M.R. said she used a guitar in her room
to cut herself. She told the officers
that she felt like dying and if they left her there, she was going to put a
knife through her heart. The officers
took her to an urgent care facility and from there she was transferred to
another hospital. Hospital staff and
M.R.’s school therapists conferred, and they expressed a concern that mother
was emotionally abusing M.R. and causing the suicidal tendencies. Mother stated that she did not believe M.R.
was suicidal and she thought M.R. was acting out as a threat to mother because
M.R. was “allowed to do whatever she wanted†in father’s care. At the same time she believed that M.R. was suffering
emotionally and had tried to cut herself.
Mother said she would do whatever was necessary to ensure M.R.’s safety,
and she said that if the doctor prescribed medication for M.R., she would
consent to it.
A team
decisionmaking meeting took place at which various mental health professionals
who had treated M.R. expressed concern about M.R.’s suicidal tendencies and
mother’s minimization of M.R.’s condition.
They did not feel it was safe for M.R. to return to mother’s home. It was decided that DCFS would submit a
petition to detain M.R. from mother’s care, while A.R. and R.R. would remain in
mother’s care. M.R. was to be placed
with her maternal aunt upon release from the hospital.
On November
7, 2011, the court heard DCFS’s application and ordered that M.R. be detained
from mother and placed with maternal aunt.
Jurisdiction/Disposition Report
In DCFS’s
jurisdiction and disposition report, M.R. disclosed that mother yelled at her
and hit her “a lot.†She said mother
slapped her earlier that year and had kicked her several times. She related an incident from November 2009
when mother banged her head against a cupboard.
She had also previously thrown a lamp at her, hit her with a belt, and
scratched her eye. She reported that
mother uses marijuana and does not hide it from her and her sisters. M.R. repeated the allegations that father had
raped her and groped her.
A.R.
reported that she had never seen mother hit M.R. Regarding M.R.’s allegations against father,
she stated that she did not “know what to think.†R.R. reported that M.R.’s allegations of
physical abuse by mother were not true.
Mother
stated that she had spanked M.R. but had never done any of the other things
M.R. alleged. She had a positive
toxicology screen for marijuana. She
said she had tried drugs and enjoyed them but did not believe she had a
problem. Regarding the allegations
against father, she then felt she did not “know what to believe.â€
DCFS also
interviewed maternal aunt. She said M.R.
had told her about mother’s physical abuse, but she had never seen it. She “100 percent†believed M.R.’s allegations
against father. M.R. was always
introverted, quiet, and “different†compared to her sisters. Now she thought this made sense in light of
her “victimiz[ation].†Maternal aunt
felt that it was “common knowledge†that mother used at least marijuana.
DCFS filed
an amended petition on November 22, 2011.
The amended petition added allegations that mother physically abused
M.R. by striking her, kicking her, throwing objects at her, and pushing
her. It also added allegations that
mother was a current user of illicit drugs, including marijuana.
Testimony
M.R. testified
in chambers at the adjudication hearing on January 17, 2012. She stated that when she was in the first
grade, six or seven years old, the rape incident occurred. She was sitting in the motel room watching
television when father came out of the bathroom, grabbed her, and laid her down
on the bathroom floor. She thought her
siblings were not there because they were at school, and she had stayed home
from school.
title="">[2] Mother was not there. Father pulled down his pants and her pants
and penetrated her. She was kicking and
screaming and trying to get away.
Afterward, she went to the fast food restaurant on the corner and bought
some ice cream. She had gone to that
restaurant many times because it was so close to the motel, though she could
not remember if she had ever gone there by herself before.
Father did
not touch her in a sexual manner again until a few years later when he started
waking her up in the morning by groping her breast or putting his hand up her
thigh. This started when she was in the
sixth grade. He did this at least once a
week. In the seventh grade, father
started also touching her buttocks. She
would tell him to get out of her room in a “whisper-yell†when he did this,
because R.R. slept in the bunk bed beneath her, and she did not want to wake up
R.R. When she was in the fifth grade,
father would come into her room often when she was changing. She told mother about his coming in when she
was changing, and mother bought her a lock for her door. She did not use it always, however, because
one had to slam the door to shut it properly, and father did not like
door-slamming in the household. M.R. had
never seen father inappropriately touch A.R. or R.R.
The last
time mother hit M.R. was sometime around summer of the prior year, when she
slapped M.R. There had been previous
times when mother slapped M.R.
Additionally, in November 2009, M.R. and mother were fighting, and
mother hit her with a belt, scratched her underneath her eye, and threw a lamp
at her. During the same fight, mother
also dragged her across the living room floor and banged her head against a
cupboard. A.R. came home and found M.R.
on the couch crying. A.R. then started
arguing with mother over mother’s treatment of M.R. Mother backed A.R. up against a table and the
wall and choked her twice. After that
incident, father made mother move out of the house, though mother returned a
few months later.
M.R. had
been going through a hard time in the last few years because several friends,
including her best friend, had committed suicide. She also lost several pets, and then her
parents had separated. She and father
had differences, including over religion and her depression.
She
testified that she had told people she was hearing voices and had been hearing
voices since her paternal grandmother died, which was before her first-grade
year. Her current diagnosis was
and depression.
After
M.R.’s testimony, father moved to dismiss the counts of the petition against
him pursuant to section 350, subdivision (c).
Mother joined in the motion and also moved to dismiss the counts against
her. The children’s attorney and DCFS
opposed the motion. The court granted
the motion with respect to all counts except for the following: (1) the counts under section 300,
subdivisions (b) and (d) that father raped M.R., fondled her breasts and
thighs, and watched her undress; and (2) the count under section 300,
subdivision (b) that mother physically abused M.R. by striking her, throwing an
object at her, kicking her, and pushing her.
It dismissed the remaining counts.
Testimony
A.R. also
testified in chambers. She remembered
living in the motel around the time M.R. said father raped her. She did not have any knowledge of the rape
allegations back then. Father had never
done anything sexually inappropriate to her.
He has made her feel uncomfortable before when he came into her room in
the middle of the night, around 2:00 or 3:00 a.m., and stood looking at her
while she was supposed to be sleeping.
He would stay in her room for a few minutes looking at her, unaware that
she was not asleep. This happened
approximately two or three times in the last year. She thought his actions a little odd at the
time, but she never said anything about it.
A.R.’s room
shared a wall with M.R.’s and R.R.’s room.
In the past year, she had heard father go into M.R.’s room five to 10
times in the middle of the night, anytime between 1:00 a.m. and
4:00 a.m. He would stay in there
for five to 10 minutes. A.R. was
skeptical that father had raped M.R., but she believed the allegations that
father had groped M.R.
Approximately
three years ago, A.R. recalled coming home and finding M.R. crying. She asked M.R. what had happened and M.R.
told her that mother had dragged M.R. across the floor. A.R. confronted mother about the incident and
the two got into a fight in which mother choked her and had her bent backwards
over the dining table. A.R. had never
seen mother hit M.R.
Testimony
Father denied
raping M.R. and denied touching her on the breasts or thighs. When he went in to wake her in the mornings,
he would sometimes tap her on the feet.
He walked in on M.R. once when she was 12 years old and she was
undressing, and he turned around and walked right back out. He would often go into M.R.’s and R.R.’s room
at night to do things like turn off the television, or sometimes he would go in
to pray. He liked to stay up at night
and study the bible and pray. He would
take a bottle of oil into M.R.’s room and anoint her and pray for her. He felt he should do this because she was
going through a very hard time.
He felt he
and M.R. had a very two-sided relationship.
When she was not demanding something, the two got along fine and talked
and spent time together. When things did
not go her way, she would flip on him and tell him she hated him. He did yell sometimes and get very frustrated
with her.
The court
found that DCFS had shown by a preponderance
of the evidence that the (b)(1), (b)(3), and (d)(1) counts should be
sustained as amended to conform to proof.
The sustained counts read as follows:
“B-1, D-1
“On a prior
occasion, the children [A.R.], [M.R.] and [R.R.]’s father [R.R.]
inappropriately sexually touched the child [M.R.] by touching the child’s
breast, thigh and buttock. Such
inappropriate sexual touching of the child by the father places the child and
the child’s siblings [A.R.] and [R.R.] at risk of harm.
“B-3
“On prior
occasions, the child[ren] [A.R.], [M.R.] and [R.R.]’s mother [V.S.] physically
abused the child [M.R.] by striking the child’s face, throwing an object at the
child and dragging the child across the floor.
Such physical abuse of the child by the mother endangers the child’s
physical health and safety and places the child and the child’s siblings [A.R.]
and [R.R.] at risk of harm.â€
The court
noted that while it found it hard to believe everything M.R. had said about the
rape incident, and it thus questioned the rape, it did believe “something happenedâ€
to M.R. Moreover, there were only
father’s statements to refute M.R.’s statements about the inappropriate
touching, and it was therefore “essentially, a he said/she said†case. The court declared the children dependents of
the court. M.R. was removed from the
physical custody of both parents, and A.R. and R.R. were placed in the home of
mother. The court ordered monitored
visitation for both parents’ visits with M.R.
It ordered monitored visitation for father’s visits with A.R. and R.R.
as well. Both parents were to receive
reunification services. Both parents and
DCFS filed timely notices of appeal.
On
September 18, 2012, we granted mother’s request for judicial notice of the
juvenile court’s July 12, 2012 minute order terminating its jurisdiction over
A.R. and R.R. and releasing them to their parents. The court found that the conditions that
justified the initial assumption of jurisdiction over A.R. and R.R. no longer
existed.
standard
of review
In
reviewing the jurisdictional findings of the juvenile court, “we look to see if
substantial evidence, contradicted or uncontradicted, supports them. [Citation.]
In making this determination, we draw all reasonable inferences from the
evidence to support the findings and orders of the dependency court; we review
the record in the light most favorable to the court’s determinations; and we
note that issues of fact and credibility are the province of the trial
court.†(In re Heather A.
(1996) 52 Cal.App.4th 183, 193.) “We do
not reweigh the evidence or exercise independent judgment, but merely determine
if there are sufficient facts to support the findings of the trial court.†(In re
Matthew S. (1988) 201 Cal.App.3d 315, 321.) If supported by substantial evidence, we must
uphold the judgment or findings, even though substantial evidence to the
contrary may also exist, and the juvenile court might have reached a different
conclusion had it determined the facts and weighed credibility differently. (In re
Dakota H. (2005) 132 Cal.App.4th 212, 228; In re Tracy Z.
(1987) 195 Cal.App.3d 107, 113.)
discussion
Jurisdictional Findings Based on Father’s Sexual Abuse
Father argues
that the evidence was insufficient to support the jurisdictional findings
because he did not inappropriately touch M.R. and “there was sufficient
evidence showing that [M.R.] did make up the allegations of Father
inappropriately touching her.†Father’s argument
fails to persuade.
The evidence
was sufficient to support the court’s jurisdictional finding based on father
inappropriately touching M.R. She
testified to father’s groping her. There
were certain details that also corroborated her testimony. R.R. said that father woke up M.R. in the
mornings by coming into their room and standing next to their bunk bed, and
R.R. had heard M.R. say, “Stop, leave me alone,†on those occasions. A.R. believed M.R.’s statements that father
had groped her, and father had made A.R. uncomfortable by coming into her room
at night and watching her while she was pretending to sleep. The testimony of a single witness ‑‑
in this case, M.R. ‑‑ can be sufficient to uphold a jurisdictional
finding. (In re Rubisela E.
(2000) 85 Cal.App.4th 177, 195.) The
juvenile court observed M.R. and father.
The court found M.R. credible regarding the inappropriate touching,
noting that this amounted to a “he said/she said case.†As father concedes, issues of credibility are
questions for the juvenile court, and to the extent the court’s findings rest
on an evaluation of credibility, “the findings should be regarded as conclusive
on appeal.†(In re Jordan R.
(2012) 205 Cal.App.4th 111, 136.) Yet
father asks us to redetermine M.R.’s credibility. Our rejection of a witness’s statements whom
the trier of fact has believed is warranted only when it is “physically
impossible for the statements to be true, or their falsity [is] apparent
without resorting to inferences or deductions.â€
(Ibid.) Father does not meet that standard here. He submits merely inferences that M.R. was
lying because of details such as the acrimony between father and M.R. and her
sadness and depression. Substantial
evidence supported the court’s jurisdictional findings against father.
Jurisdictional Findings Does Not Present a Justiciable Issue
Mother
contends that there was no credible, present evidence supporting the juvenile
court’s finding under section 300, subdivision (b) that she physically abused
M.R. or endangered A.R. and R.R., and accordingly, we should reverse the
court’s jurisdictional order. This
argument is unavailing because the issue is nonjusticiable.
Because the
juvenile court’s primary concern is the protection of children, a
jurisdictional finding based on the conduct of one parent is sufficient
regardless of the conduct of the other parent.
“Once the child is found to be endangered in the manner described by one
of the subdivisions of section 300 . . . the child comes within
the court’s jurisdiction, even if the child was not in the physical custody of
one or both parents at the time the jurisdictional events occurred. [Citation.]
For jurisdictional purposes, it is irrelevant which parent created those
circumstances.†(In re I.A.,
1491-1492.) “[I]t is commonly said that
a jurisdictional finding involving one parent is ‘“good against
both. . . .â€â€™â€ (Id.
at p. 1492.) As a result, we may
“decline to address the evidentiary support for any remaining jurisdictional
findings once a single finding has been found to be supported by the
evidence.†(Ibid.; see also In
re Alexis H. (2005) 132 Cal.App.4th 11, 16.)
Here, the
jurisdictional findings of father’s abuse ‑‑ which, as we have just
discussed, are supported by substantial evidence ‑‑ render mother’s
challenge to jurisdiction nonjusticiable.
Any decision we might render on the allegations involving mother will
not result in a reversal of the court’s jurisdictional order because the
sustained allegations against father supply jurisdiction. (In re
I.A., supra, 201 Cal.App.4th at
p. 1492.) We therefore decline to
address mother’s jurisdictional challenge.
(Id. at p. 1495.)
Mother
contends we should depart from these rules and exercise our discretion to
address her challenge, as an erroneous finding regarding her conduct will have
“real legal and practical consequences.â€
Specifically, mother argues that if the court had dismissed the
allegations against her, she could be deemed a “nonoffending†parent for
purposes of custody and placement determinations under sections 361 and 361.2.
We reject
mother’s argument for the reasons discussed in In re I.A, supra, 201
Cal.App.4th at page 1494. Firstly,
making this argument was “nonoffending,†he was ineligible for custody under
section 361, subdivision (c)(1) because the child never resided with him during
the time relevant to the proceedings.
I.A., supra, 201 Cal.App.4th at
p. 1494, citing In re Miguel C.
(2011) 198 Cal.App. 4th 965, 970.) The
same is true of mother here ‑‑ even if she were nonoffending, M.R.
resided with father and not mother, and mother was thus ineligible for custody
under section 361 in any event.
Secondly, In re I.A. explained
that although some courts have referred to a noncustodial parent who is
eligible for custody under section 361.2, subdivision (a) as a “‘nonoffending,
noncustodial’†parent, the statute does not
in fact require the parent to be nonoffending.
(In re I.A., at p. 1494,
citing In re V.F. (2007) 157
Cal.App.4th 962, 970.) In other words,
the parent’s status as offending would not preclude her from getting custody
under this section.
In any
event, were we to consider the merits of mother’s contentions, we would hold
that substantial evidence supported the court’s jurisdictional finding as to
mother. Contrary to mother’s urging, a
showing of ongoing, present abuse of M.R. was not required. A showing of prior abuse and harm of the
child is sufficient to establish
dependency jurisdiction over that child under subdivision (b) of section
300. (In re J.K. (2009) 174
Cal.App.4th 1426, 1435.) The sustained
count under subdivision (b) stated that mother had physically abused M.R. on
prior occasions “by striking the child’s face, throwing an object at the child
and dragging the child across the floor,†endangering M.R.’s physical health
and safety and placing her siblings at risk of harm. The evidence supporting the count was as
follows. M.R. testified that mother
slapped her on more than one occasion.
She also said that on one occasion in 2009, she and mother got into a
fight during which mother hit her with a belt, scratched her, threw a lamp at
her, dragged her across the living room floor, and banged her head against a
cupboard. A.R. corroborated this
testimony when she said that around the same time, she recalled coming home to
find M.R. crying, and M.R. told her that mother had dragged M.R. across the
floor. A.R. then got into a violent
confrontation with mother about the incident during which mother choked A.R.
and had her bent backwards over a table.
This evidence was sufficient to sustain the allegations under section
300, subdivision (b) that M.R. had suffered, or there was substantial risk she would
suffer, serious physical harm as result of mother’s neglectful conduct.
Justiciable Issue
The
allegations of physical abuse by mother under subdivisions (a) and (b) of
section 300 were essentially identical, and the court sustained the subdivision
(b) allegations but dismissed the subdivision (a) allegations. DCFS contends in its appeal that substantial
evidence did not support the court’s dismissal of the subdivision (a) count of
physical abuse by mother. We find that
DCFS’s appeal does not present a justiciable issue and should be dismissed.
“The many
aspects of the justiciability doctrine in California were summarized in Wilson
v. L.A. County Civil Service Com. (1952) 112 Cal.App.2d 450: ‘“A judicial tribunal ordinarily may consider
and determine only an existing controversy, and not a moot question or abstract
proposition. . . . [As] a
general rule it is not within the function of the court to act upon or decide a
moot question or speculative, theoretical or abstract question or proposition,
or a purely academic question, or to give an advisory opinion on such a
question or proposition. . . .â€â€™
[Citation.] An important requirement for justiciability
is the availability of ‘effective’ relief ‑‑ that is, the prospect
of a remedy that can have a practical, tangible impact on the parties’ conduct
or legal status. ‘“‘“It is this court’s
duty ‘“to decide actual controversies by a judgment which can be carried into
effect, and not to give opinions upon moot questions or abstract propositions,
or to declare principles or rules of law which cannot affect the matter in
issue in the case before it.â€â€™â€â€™â€â€™
[Citations.] When the court
cannot grant effective relief to the parties to an appeal, the appeal
must be dismissed. [Citation.]†(In re I.A., supra, 201 Cal.App.4th at p. 1490.)
DCFS does
not attempt to explain the practical impact of any order reversing the court’s
dismissal of the section 300, subdivision (a) allegations. It merely argues that the court erred in
dismissing the allegations because the court sustained the section 300,
subdivision (b) allegations. Because any
order we enter will have no practical effect on the dependency proceeding,
thereby precluding a grant of effective relief, we find DCFS’s appeal to
nonjusticiable. (In re I.A.,
p. 1491.) The appeal presents no
other issues and may thus be dismissed.
Procedures Is Proper
Apart from her
jurisdictional challenge, mother also argues that the court erred in not requiring
DCFS to provide notice under ICWA. DCFS
does not oppose a limited remand for the court to order ICWA notice as to M.R.,
the only child over which the court retains jurisdiction.
Congress
enacted ICWA to “protect the best interests of Indian children and to promote
the stability and security of Indian tribes and families by the establishment
of minimum Federal standards for the removal of Indian children from their
families . . . .â€
(25 U.S.C. § 1902.) “When a court
‘knows or has reason to know that an Indian child is involved’ in a juvenile
dependency proceeding, a duty arises under ICWA to give the Indian child’s
tribe notice of the pending proceedings and its right to intervene.†(In re Shane G. (2008) 166
Cal.App.4th 1532, 1538, quoting 25 U.S.C. § 1912(a).) Circumstances that may establish “reason to
know†a child is an Indian child include “[a] person having an interest in the
child . . . provides information suggesting the child is a member of a tribe or
eligible for membership in a tribe or one or more of the child’s biological
parents, grandparents, or great-grandparents are or were a member of a
tribe.†(§ 224.3, subd. (b)(1).)
“If these
or other circumstances indicate a child may be an Indian child, the social
worker must further inquire regarding the child’s possible Indian status. Further inquiry includes interviewing the
parents, Indian custodian, extended family members or any other person who can
reasonably be expected to have information concerning the child’s membership
status or eligibility. (§ 224.3,
subd. (c).) If the inquiry leads the
social worker or the court to know or have reason to know an Indian child is
involved, the social worker must provide notice. (§§ 224.3, subd. (d), 224.2, subd.
(a)(5)(A)-(G).)†(In re Shane G.,
supra, 166 Cal.App.4th at
p. 1539.) The tribe’s decision that
a child is or is not an Indian child is determinative. (§ 224.3, subd. (e)(1); In re Desiree F.
(2000) 83 Cal.App.4th 460, 470.) The
court and DCFS have an affirmative and continuing duty to inquire whether a
child for whom a petition under section 300 has been filed is or may be an
Indian child. (§ 224.3, subd. (a).)
Here,
mother provided the court with information suggesting that the children might
be Indian children eligible for membership in the Apache tribe. Although mother did not know which family
member may have been a member of the tribe, she identified her uncle as a
source of further information. The court
decided that DCFS did not need to provide ICWA notice and therefore cut off any
further inquiry. At the very least, DCFS
should have investigated further by contacting mother’s uncle, who might have
provided information that grandparents or great grandparents were members of
the tribe, or some other information suggesting that the children were eligible
for membership in the tribe.
Accordingly, a limited remand to conduct an ICWA investigation and
provide notice, if necessary, is proper.
(In re A.G. (2012) 204
Cal.App.4th 1390, 1402; In re Francisco W. (2006) 139 Cal.App.4th
695, 707, 711.) The limited remand for
ICWA purposes applies only to M.R., as the court terminated its jurisdiction
over A.R. and R.R.
disposition
DCFS’s
appeal is dismissed. The jurisdictional
and dispositional order is reversed. The
juvenile court is directed to order DCFS to investigate and obtain complete and
accurate information about maternal relatives and to provide ICWA notices
regarding M.R. to any relevant tribes, if necessary. If a tribe intervenes after receiving proper
notice, the court shall proceed in accordance with ICWA. If no tribes intervene after receiving proper
notice, the jurisdictional and dispositional order shall be reinstated.
FLIER,
J.
WE CONCUR:
RUBIN, Acting P. J. GRIMES,
J.
name="_ftn1" title="">[1] All further undesignated statutory references are to the Welfare and
Institutions Code.
name="_ftn2" title="">[2] M.R. was referring to A.R. and an older brother who was an adult at
the time of these proceedings and did not live with the family. This differed from M.R.’s earlier reporting
of the incident, when she stated that her two sisters were in the motel room
but asleep.
