In re T.R.
Filed 3/21/13 In re T.R. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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 THREE
In re T.R., a Person Coming Under the Juvenile Court Law.
_____________________________________
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY
SERVICES,
Plaintiff
and Respondent,
v.
K.R.,
Defendant
and Appellant.
B243267
(Los
Angeles County
Super. Ct.
No. CK92786)
APPEAL from orders of the Superior
Court of
County, Sherri Sobel, Juvenile Court Referee. Affirmed and remanded with directions.
Karen J. Dodd, under appointment by
the Court of Appeal, for Defendant and Appellant.
John F. Krattli, County Counsel,
James M. Owens, Assistant County Counsel, Tracey F. Dodds, Principal Deputy
County Counsel, for Plaintiff and
Respondent.
K.R.
(father) appeals jurisdictional findings and dispositional orders made with
respect to nine-year-old T.R. Father
contends the jurisdictional findings are not supported by substantial evidence
and the matter must be remanded for notice under the
contention and affirm the orders of the juvenile court but agree the matter
must be remanded for notice under the ICWA.
1.
D
On March 26, 2012, the
(the Department) received a referral alleging physical abuse of T.R. by
mother. A social worker met
with mother and T.R. in downtown Long
Beach. Out of mother’s presence, T.R. told the
social worker mother hit him with a telephone cord 20 to 30 times for receiving
bad grades. The social worker saw marks
on T.R.’s arms, legs and buttocks and hailed a police officer who called in a
child abuse referral. Another officer
arrived within minutes, interviewed T.R. and arrested mother for
Mother told the social worker father was in
jail. The social worker learned father
had been arrested on January
3, 2012, and had a release date of December 23, 2012.
On March 29, 2012, the Department filed a
petition alleging T.R. was a dependent child within the meaning of Welfare and
Institutions Code section 300, subdivisions (a) and (b).
At the detention hearing, the juvenile court
ordered T.R. detained and granted father monitored visits upon his
release from custody. Mother
indicated she had no American Indian ancestry.
When asked about father, who was not present at
the hearing, mother indicated he too had no American Indian ancestry. Based on these responses, the juvenile court
found the ICWA did not apply.
2.
Amended
petition.
On April
19, 2012, the Department filed a first amended
petition which added allegations that mother and father had a history of
engaging in violent altercations in T.R.’s presence, thereby rendering the
child a dependent within the meaning of section 300, subdivisions (a) and
(b).
The detention report included the family’s
child welfare history which commenced in February of 2005 with a referral
indicating mother neglected T.R. by allowing the child access to a hot iron
which burned his hand. Mother stated
father made the referral after they argued about child care. The referral was closed as unfounded.
On May 11, 2005, the Department received a
referral indicating mother and father had been arrested after an incident of
domestic violence. Mother indicated she
and father engaged in mutual combat during a custody exchange. Father claimed mother was the aggressor and
denied that he touched mother. Mother
obtained a restraining order at the social worker’s request and the Department
closed the referral as inconclusive because T.R. was not present during the
incident.
On August 10, 2005, and July 8, 2006,
the Department received referrals indicating mother failed to protect T.R. from
a broken window and father neglected T.R. by providing insufficient
nourishment, respectively. These
referrals were closed as unfounded as it appeared father made the first
referral and mother made the second to obtain leverage in their custody
dispute.
A referral received on May
17, 2011, indicated father had been arrested for
domestic violence towards mother. Mother
stated father engaged in domestic violence at least once a week and T.R.
“always witnesses the domestic violence by father.†Mother was in the process of obtaining a
restraining order. T.R. stated he did
not like it when father argued with mother but the child was doing well in
school and an allegation of emotional abuse was closed as inconclusive.
The detention report filed with the first
amended petition indicated mother told the social worker T.R. has “seen his dad
choke me. He’s seen his dad hit me. And I’m not going to defend myself. So he’s seen us get into fights.†T.R. told the social worker the
last time he saw father, mother and father “got in a
fight.†T.R. admitted mother and father
had fought prior to that incident of domestic violence but did not want to talk
about it.
The social worker interviewed father in
jail. Father stated mother instigated
their altercations and, in the last incident of domestic
violence, mother hit father and scratched him.
Father denied he had ever hit mother but admitted T.R. had been present
a few times during their altercations.
The report indicated father’s criminal
history commenced in 1985 and included convictions for disorderly conduct in
1995, forgery in 1998, contempt in 1998, bookmaking in 1999 and 2000, driving
on a suspended license in 2003, an undisclosed felony in 2004 following an
arrest for criminal threats and carjacking, two convictions of burglary in
2008, and possession for sale of marijuana in January of 2012, for which father
had been sentenced to two years in state
prison.
3.
Father’s
arraignment in juvenile court.
Father appeared in juvenile court on April
19, 2012, and filed a Parental Notification of Indian
Status form (ICWA-020(A)) on which he checked a box to indicate he “may have
Indian ancestry.†On the line adjacent
to the checked box, father wrote, “Cherokee (Louisiana).†The juvenile court asked if father had
“anything more . . . than just you think there might be something?†Father responded, “Not at the moment,
no.†Father indicated there were no
family members who had any further information and responded affirmatively when
the juvenile court asked: “So you think
there’s some family lore that you have some Cherokee heritage in your
background?†The juvenile court found
the case “remains a Non-ICWA case. If
[father] has any further information, he needs to provide it to the Department
and we’ll take the appropriate action.â€
4.
The
jurisdiction report.
When interviewed for the jurisdiction
report, father stated he and mother were in a relationship from 1999 to
2003. In 2004, father sought custody of
T.R. in family court but mother moved to Las Vegas with T.R. In November 2010, mother and father reunited
but in May of 2011, they argued, mother called the police and father was
arrested. When father was released two
days later, mother and T.R. had moved from the home and father has not seen
mother or T.R. since that time.
Mother told the social worker father was
incarcerated while mother and T.R. lived in Las Vegas. When father was released, mother returned to
Long Beach and lived with father for approximately two weeks when an incident
of domestic violence occurred and mother moved to a shelter. On January 19, 2012, mother married her male
companion, L.W.
5.
Adjudication.
On July 20, 2012, mother filed a waiver of
rights and submitted the allegations of the petition on the social
reports. After argument, the juvenile
court sustained the petition, finding mother inappropriately disciplined T.R.
on March 24, 2012, and on prior occasions.
The juvenile court also found mother’s use of marijuana rendered mother incapable
of providing regular care and supervision, mother’s male companion,
L.W., physically abused the child, and mother and L.W. had a history of
engaging in verbal altercations in the child’s presence.
As to father, the sustained petition alleged
mother and father “have a history of engaging in violent altercations in the
child’s presence. On a prior occasion in
2011, the father hit and choked the mother.
The mother hit and scratched the father.
Such violent conduct on the part of the mother and father in the child’s
presence endangers the child’s physical and emotional health and safety, creates
an unsafe home environment, and places the child at risk of physical harm,
damage, danger, and physical abuse.â€
The juvenile court declared T.R. a dependent
pursuant to section 300, subdivisions (a) and (b), and found, by clear and
convincing evidence, return to parental custody would create a substantial risk
of danger to the child’s well-being, and there were no reasonable means to
protect the child without removal. The
juvenile court found father “doesn’t need a domestic
violence program†but ordered father to participate in an anger
management program, parenting class and individual counseling. The juvenile court granted
father monitored visitation twice weekly upon his release from custody, which
father indicated he anticipated in December of 2012.
CONTENTIONS
Father contends the sustained allegations
are not supported by the record and the juvenile court’s determination the ICWA
does not apply must be reversed.
DISCUSSION
1.
The
uncontested allegations sustained as to mother support dependency jurisdiction
even if the allegations as to father were reversed.
As noted by the Department, a jurisdictional
finding against one parent is good against both. (In re
I.A. (2011) 201 Cal.App.4th 1484, 1491; In
re P.A. (2007) 155 Cal.App.4th 1197, 1212; In re Alysha S. (1996) 51 Cal.App.4th 393.) Because there are sustained allegations
against mother which are not contested, reversal of the jurisdictional
findings as to father “will have no practical impact on the pending dependency
proceeding, thereby precluding a grant of effective relief.†(In re I.A.,
supra, at p. 1491.)
However, even overlooking the uncontested
sustained allegations, substantial evidence supports the jurisdictional
findings as to father.
2.
The
jurisdictional findings as to father are supported by substantial evidence.
section 300, the juvenile court must find the allegations of the petition true
by a preponderance of the evidence. (In
re Matthew S. (1996) 41 Cal.App.4th 1311, 1318; § 355, subd. (a).) Jurisdictional findings are reviewed for
substantial evidence. We resolve all
conflicts and make all reasonable inferences in favor of the order under
review. (In re David M. (2005)
134 Cal.App.4th 822, 828; In re Savannah M. (2005) 131
Cal.App.4th 1387, 1393; In re Sheila B. (1993) 19 Cal.App.4th 187,
199.)
Father contends the evidence did not
support the finding T.R. was at substantial risk of suffering serious physical
harm inflicted nonaccidentally by father within the meaning of section 300,
subdivision (a), and there was no showing of a current risk of harm to T.R.
within the meaning of section 300, subdivision (b).
evidence indicating the parents’ history of domestic would be repeated in the
future. He notes he was incarcerated at
the time of the jurisdiction hearing, the last prior incident of domestic
violence between the parents occurred 14 months earlier, father had not had any
contact with mother or T.R. since that time, mother is now married to L.W. and
there was no evidence that mother and father intended to resume a
relationship. Also, the Department
investigated two incidents of domestic violence in 2005 between mother and
father and concluded both were unfounded.
Additionally, the juvenile court apparently did not find the previous
incidents of domestic violence to be serious as it declined to order father to
participate in domestic violence counseling.
Father concludes there was no current threat of serious physical
harm to T.R. due to domestic violence between mother and father and the
juvenile court’s finding T.R. would be nonaccidentally harmed or
neglected by father in the future amounted to speculation which is
insufficient to support a finding of dependency. (In re Steve
W. (1990) 217 Cal.App.3d 10, 22.) He also claims there were only
isolated instances of domestic violence, which are insufficient to warrant
jurisdiction. (In re
Daisy H. (2011) 192 Cal.App.4th 713, 717.)
Father’s
arguments are not persuasive.
Although many cases based on exposure
to domestic violence are filed under section 300, subdivision (b), section
300, subdivision (a) also may be appropriate when, through exposure to
domestic violence, a child suffers, or is at substantial risk of suffering,
serious physical harm inflicted nonaccidentally by his or her parents. (In re
Giovanni F. (2010) 184 Cal.App.4th 594, 598-599; In
re Daisy H., supra, 192 Cal.App.4th at p.
717.) Here, mother and father
engaged in domestic violence during a custody exchange in 2005 in which father
choked mother. After that incident,
mother and father separated until November of 2010, when they reunited until
another incident of domestic violence occurred in May of 2011. After the Department received the referral
related to this incident, mother
told the social worker father engaged in domestic violence at least once a week
and T.R. “always witnesses the domestic violence by father.â€
The detention report filed with the first
amended petition indicated mother told the social worker T.R. has “seen his dad
choke me. He’s seen his dad hit me. And I’m not going to defend myself. So he’s seen us get into fights.†Also, T.R. told the social
worker the last time he saw father, mother and father “got in a
fight.†T.R. admitted mother and father
had fought prior to that incident of domestic violence but he did not want to
talk about it. Father
also admitted T.R. had been present during altercations between mother and
father.
The domestic violence between mother and father ceased only when
father was incarcerated or the parents were not in contact. Given that father’s anticipated release from
custody in December of 2012, the juvenile court reasonably could conclude
father would renew his relationship with T.R., once again giving rise to an
opportunity for domestic violence
between the parents which would place T.R. at risk of physical harm inflicted
nonaccidentally. (See In re
Heather A. (1996) 52 Cal.App.4th 183, 194.) Indeed, the 2005 incident of domestic
violence occurred while mother and father were separated. Thus, the juvenile court could conclude
mother’s recent marriage to L.W. would not alter father’s proclivity toward
domestic violence with respect to mother.
Although the juvenile court did not order
father to participate in domestic violence counseling, it did order father to
participate in anger management counseling.
Nothing in either order contradicts the finding T.R. was at risk of harm
due to domestic violence between mother and father.
In
re Daisy H.,
the case cited by father
for the proposition isolated instances of domestic
violence are insufficient to warrant jurisdiction, is distinguishable. In Daisy
H., the only reported incident of domestic violence occurred at least two
and probably seven years before the dependency petition was filed, the children
denied ever witnessing domestic violence, and there was no indication domestic
violence had even occurred in the presence of the children. Here, domestic violence repeatedly occurred
in T.R.’s presence and, although mother and father had separated, upon father’s
release from custody, they will resume contact related to father’s visitation
with T.R. The fact mother was now in a
relationship with L.W. diminished this risk but did not eliminate it.
In sum, the record supports the juvenile
court’s finding T.R. was at substantial risk of future harm within the meaning
of section 300, subdivisions (a) and (b) due to exposure to domestic violence
between mother and father.
3.
The
ICWA.
a.
Relevant
law.
“Congress enacted ICWA in 1978
to protect Indian children and their tribes from the erosion of tribal ties and
cultural heritage and to preserve future Indian generations. [Citations.] Because ‘ “the tribe has an interest in the
child which is distinct from but on a parity with the interest of the parentsâ€
’ [citation], a tribe has the right to intervene in a state court dependency
proceeding at any time [citation].†(In
re Nikki R. (2003) 106 Cal.App.4th 844, 848.)
If the juvenile court or the social worker “knows or has
reason to know that an Indian child is involved,†the social worker must “make
further inquiry regarding the possible Indian status of the child . . . by
interviewing the parents . . . and extended family members . . . and contacting
. . . any other person that reasonably can be expected to have information
regarding the child’s membership status or eligibility.†(§ 224.3, subd. (c); see also Cal. Rules of
Court, rule 5.481(a)(4).)
Section
224.3, subdivision (b) provides in pertinent part: “The circumstances that may provide reason to
know the child is an Indian child include, but are not limited to, the
following: [¶] (1) A person having an interest in the child,
including . . . a member of the child’s extended family provides information
suggesting the child is a member of a tribe or eligible for membership in a
tribe . . . .†(§ 224.3, subd. (b)(1);
Cal. Rules of Court, rule 5.481(a)(5)(A).)
The duty under the ICWA to inquire whether a dependent child is or may
be an Indian child is affirmative and continuing. (§ 224.3, subd. (a).)
juvenile court “knows or has reason to know that an Indian child is involvedâ€
in a dependency case, it must give the child’s tribe notice of the proceedings
and its right to intervene. (25 U.S.C. §
1912(a); §§ 224.2, subd. (a), 224.3, subd. (d); Cal. Rules of Court, rule
5.481(b); see also In re Damian C. (2009) 178 Cal.App.4th 192,
196.) “ ‘If the identity or location of
. . . the tribe cannot be determined,’ the notice need only be given to the BIA
[Bureau of Indian Affairs].†(In re
S.B. (2005) 130 Cal.App.4th 1148, 1157, quoting 25 U.S.C. § 1912(a).)
Because the right to intervene is
meaningless unless the tribe receives notification, the ICWA’s notice
requirements are strictly construed. (In
re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.) “The determination of a child’s Indian status
is up to the tribe; therefore, the juvenile court needs only a suggestion of
Indian ancestry to trigger the notice requirement. [Citations.]â€
(In re Nikki R., supra, 106 Cal.App.4th at p. 848; In re Merrick
V. (2004) 122 Cal.App.4th 235, 246; Dwayne P. v. Superior Court
(2002) 103 Cal.App.4th 247, 256-258.) “A
hint may suffice for this minimal showing.â€
(In re Miguel E. (2004) 120 Cal.App.4th 521, 549.)
A parent does not waive an
notice issue by failing to raise it below.
(In re Nikki R., supra, 106 Cal.App.4th at p.
849.) We review a juvenile court’s ICWA
findings for substantial evidence. (In
re E.W. (2009) 170 Cal.App.4th 396, 404.)
b.
The
provided on his ICWA 20 form triggered ICWA notice requirements.
Father contends the specific
information he provided concerning T.R.’s possible Indian ancestry gave rise to
a duty on the part of the Department to interview father, extended family
members and any other person who reasonably could be expected to have
information concerning T.R.’s membership status or eligibility and thereafter
to give notice to the Cherokee tribes. (In
re Shane G. (2008) 166 Cal.App.4th 1532, 1539.) Father concludes that, because the Department
failed in this duty, the finding the ICWA did not apply must be reversed.
It
appears this argument has merit. Various appellate courts have
held the ICWA notice provisions are not triggered by
“vague references†to Indian heritage. (See, e.g., In re
J.D. (2010) 189 Cal.App.4th 118, 125
[notice not required where paternal grandmother indicated possible Indian
ancestry, tribe unknown]; In re Jeremiah G. (2009) 172 Cal.App.4th 1514,
1520-1521
[father’s claim of Indian heritage, without naming the tribe and which he later
retracted, insufficient to require notice under the ICWA];
In re O.K. (2003) 106
Cal.App.4th 152, 154, 157 [grandmother’s statement children may have Indian
heritage, no known tribe, “too vague and speculative to
give the juvenile court any reason to believe the minors might be
Indian childrenâ€]; In re Levi U. (2000) 78 Cal.App.4th 191,
194, 198 [paternal grandmother’s statement there might be Indian ancestry on
her mother’s side, tribe unknown, insufficient to trigger notice
requirements].)
Here, however, father
referred specifically to Cherokee ancestry from Louisiana. This reference was not vague
and it triggered the notice requirement.
(See, e.g., In re Alice M.
(2008) 161 Cal.App.4th 1189, 1198 [mother’s indication on Parental Notification
of Indian Status form the child may be eligible for membership in the
“Navajo–Apache†tribes, standing alone, “gave the court reason to know that
[the child] may be an Indian child.â€]; In re J.T. (2007) 154 Cal.App.4th
986, 988, 993 [
references to Cherokee and Sioux heritage]; In re Damian C., supra, 178
Cal.App.4th at pp. 195-196
[mother’s reference on her ICWA–020 form to Pasqu–Yaqui
heritage sufficient to trigger notice requirement];
Dwayne P. v. Superior Court, supra, 103
Cal.App.4th at p. 257 [parents’ statement the child has “Cherokee Indian
heritage†sufficient to trigger notice requirement].)
The Indian status of a child
need not be certain to trigger ICWA’s notice requirements. (In re
Antoinette S. (2002) 104 Cal.App.4th 1401, 1407; In
re Desiree F. (2000) 83 Cal.App.4th 460, 471.)
the ICWA
notice provisions are to be interpreted broadly and it is preferable to err on
the side of examining thoroughly whether the child is an Indian child,
we conclude father’s claim of
Cherokee ancestry was sufficient to satisfy the “ ‘minimal showing required to
trigger the statutory notice provisions.’ â€
(In re Antoinette S., supra, 104 Cal.App.4th at p. 1407; Dwayne
P. v. Superior Court, supra, 103 Cal.App.4th at pp. 256-257.) Thus, the Department had a duty to inquire
further as to T.R.’s Indian heritage and to give notice under the
We
therefore affirm the juvenile court’s orders but remand for
C. (2005) 127 Cal.App.4th 377,
385.) If, after proper
inquiry and notice, a tribe determines T.R. is an Indian child, the tribe, a
parent or T.R. may petition the juvenile court to invalidate any orders that
violate the ICWA.
(25 U.S.C. § 1914.)
DISPOSITION
The
orders of the juvenile court are affirmed. The matter is remanded to the juvenile court
with directions to order the Department to comply with the inquiry and notice
provisions of the ICWA.
After proper notice under the ICWA,
if it is determined T.R. is an Indian child and the ICWA
applies to these proceedings, the child, the parents or the tribe may petition
the juvenile court to invalidate any orders that violate the ICWA.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J.
We concur:
KITCHING, J.
ALDRICH, J.
name="_ftn1" title="">[1] Subsequent unspecified statutory
references are to the Welfare and Institutions Code.
According to a Long Beach Police
Department report related to the 2005 domestic violence incident, mother went
to father’s home to pick up T.R.
Mother claimed father choked her and she bit him on the forearm. Father claimed mother entered his home
without permission and screamed about father’s new girlfriend. Father called the police and attempted to defend
himself by putting his arm around mother but she bit him. When father jerked his arm away, he hit
mother in the nose. A police officer was
unable to determine who had been the aggressor and arrested mother and father
for domestic violence.
