In re T.V.
Filed 9/11/12 In re T.V. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re T.V., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,
Plaintiff
and Respondent,
v.
T.C.,
Defendant
and Appellant.
E054761
(Super.Ct.No.
RIJ1101169)
OPINION
APPEAL
from the Superior Court
of
County. Matthew C.
Perantoni, Temporary Judge. (Pursuant to
Cal. Const., art. VI, § 21.) Reversed.
Brent
Riggs, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela
J. Walls, County Counsel,
and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
T.C.
(Mother) is the mother of T.V., who was 14 years old at the time of the
challenged jurisdiction and disposition
orders. Mother contends the juvenile
court’s jurisdiction and disposition orders should be reversed because: (1) the juvenile court conducted the
disposition hearing in T.V.’s absence despite her request to be present and
without inquiring as to whether she was given the opportunity to attend; (2)
insufficient evidence supports removing T.V. from mother’s care; and (3) the
Riverside County Department of Public
Social Services (DPSS) sent incomplete ICWA
Indian tribes. As discussed
be without merit. However, we agree that
the ICWA requirements were not satisfied, and we therefore conditionally reverse
and remand for further proceedings in compliance with ICWA.
and Procedure
On
August 15, 2011, sheriff’s
deputies arrested a pedestrian in Mother’s neighborhood for possessing
methamphetamine. The pedestrian told the
deputies that he or she had purchased the methamphetamine from Mother. On August
23, 2011, sheriff’s deputies served a search warrant on Mother’s
home while T.V. was present. Mother
appeared to be under the influence of methamphetamine. The deputies found 6 grams of marijuana, a
trace of methamphetamine in a plastic bag, what appeared to be drug packaging
supplies, and a wet, torn plastic bag near the running faucet in the kitchen
sink. Under questioning, T.V. told the
deputies that Mother “smokes weed†in the house with her present and that many
people frequently come and go from the house, often not staying for more than
five minutes. The home had dirty dishes
and clothes throughout and dog and rat feces were present on the floors, couches
and in the bedrooms. Rotten food was
found in the kitchen and on top of the refrigerator. DPSS was called to the scene to detain
T.V. Mother was arrested for possessing
marijuana (Health & Saf. Code, §11357, subd. (b)), being under a controlled
substance (Health & Saf. Code, § 11550, subd. (a)), and
subd. (a)).
The
detention hearing was held on August 26, 2011.
T.V. was present, represented by counsel. At the conclusion of the hearing, after the
juvenile court ordered T.V. detained, the court asked, “Did we want to have the
minor back at the next hearing?†T.V.’s
counsel responded, “She would like to be back at the next hearing to meet Ms.
Sinclair.†Ms. Sinclair was T.V.’s
actual appointed counsel, for whom another attorney made a special appearance.
On
September 15, 2011, the social worker told T.V. about her right to be present
at the jurisdiction and disposition hearing.
T.V. stated that she wanted to be present. The social worker told T.V. that arrangements
would be made for her to attend.
The
jurisdiction and disposition hearing was held on September 27, 2011. T.V. was not present. Her appointed attorney was present, but
submitted on the reports and DPSS recommendations. Mother’s attorney declined to present any
evidence. The juvenile court took
jurisdiction over T.V., found “good notice under the Indian Child Welfare Actâ€
and removed T.V. from her parents’ custody.
The court also ordered Mother to participate in reunification services
and set the six-month review hearing for March 27, 2012. This appeal followed.
1.
Rights
A
minor who is the subject of a juvenile court hearing is entitled to be present
at the hearing and to be represented by counsel. (Welf. & Inst. Code, § 349,
subds. (a), (b).)
name="_ftnref2" title="">[2] If the minor is 10 years of age or older and
is not present at the hearing, “the court shall determine whether the minor was
properly notified of his or her right to attend the hearing and inquire whether
the minor was given an opportunity to attend.
If that minor . . . wished to be present and was not given an
opportunity to be present, the court shall continue the hearing to allow the
minor to be present unless the court finds that it is in the best interest of
the minor not to continue the hearing.â€
(§ 349, subd. (d).)
At the
jurisdiction and disposition hearing, the juvenile court did not inquire on the
record as to whether T.V. had been given the opportunity to attend. This is despite the fact that T.V. had
indicated both at the detention hearing and later to the social worker that she
wished to attend the next hearing.
Mother contends this is both a structural defect and prejudicial error.
Mother lacks
standing to raise this argument. “A party
has standing to seek review of a judgment or order by demonstrating that the
party is legally aggrieved within the meaning of Code of Civil Procedure
section 902. [Citations.]†(In re
Jasmine S. (2007) 153 Cal.App.4th 835, 841-842 .) “ ‘To be aggrieved, a party must have a
legally cognizable immediate and substantial interest which is injuriously
affected by the court’s decision. A
nominal interest or remote consequence of the ruling does not satisfy this requirement.’ [Citation.]â€
(In re Holly B. (2009) 172
Cal.App.4th 1261, 1265.)
Here, the requirement that the
juvenile court inquire regarding the child’s notice and opportunity to attend
is designed solely to benefit the child.
The parent has no right to compel the child to attend. A child who is 10 or older may receive
notice, yet choose not to attend the hearing.
The child may also choose to waive a lack of proper notice.
Mother does not
appear to be arguing that she was deprived of an opportunity to examine or
cross-examine T.V. We note, however,
that the statutory requirement that a child who is 10 or older be given notice,
as well as the requirement that the juvenile court inquire regarding the
child’s notice and opportunity to attend, have nothing to do with ensuring the
child’s availability as a witness. Once
again, the child could unilaterally choose to stay away. If Mother wanted T.V. to testify, she should
have subpoenaed her. (See
383-385 [parent has the burden of subpoenaing witnesses whose statements are
included in the social worker’s report], superseded by statute on another point
as stated in People v. Otto (2001) 26
Cal.4th 200, 207.) It was the juvenile
court (and later the social worker), not Mother’s counsel, who asked whether
T.V. wanted to be present at the jurisdiction and disposition hearing. The juvenile court’s failure to inquire about
her absence did not impact Mother’s rights.
Separately and
alternatively, Mother also forfeited this argument by failing to raise it
below. “[A] reviewing court ordinarily
will not consider a challenge to a ruling if an objection could have been but
was not made in the trial court.
[Citation.] The purpose of this
rule is to encourage parties to bring errors to the attention of the trial
court, so that they may be corrected.
[Citation.] [¶] Dependency matters are not exempt from this
rule. [Citations.]†(In re
S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted, superseded by statute on
another point as stated in In re S.J.
(2008) 167 Cal.App.4th 953, 962-963.)
We therefore
conclude that Mother cannot raise this error in this appeal.
2.
from Mother’s Care
Mother contends
the juvenile court erred in ordering T.V. removed from her care because there
was insufficient evidence to show that there was no other means by which to
protect T.V. DPSS counters the court had
before it clear and convincing evidence of Mother’s inability to properly care
for T.V. and of the potential detriment to T.V. if she remained with
Mother. We agree that the juvenile court
had before it sufficient evidence to support the disposition order.
The decision to
remove a child pursuant to section 361 is reviewed on appeal under the
substantial evidence test. (
1635, 1654.) In resolving this question,
we view the evidence in the light most favorable to the trial court’s
determination, drawing all reasonable inferences in favor of the determination
and affirm the order even if there is other evidence supporting a contrary
conclusion. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610;
538, 545.) The appellant has the burden
of showing 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.)
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 there are no reasonable means by which the child can be protected without
removal. (§ 361, subd. (c)(1).) A removal order is proper if it is based on
proof of parental inability to provide proper care for the child and proof of a
potential detriment to the child if he or she remains with the parent. (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.) The parent
need not be dangerous and the child need not have been actually harmed before
removal is appropriate. The focus of the
statute is on averting harm to the child.
(Diamond H., at p. 1136;
530, 536, citing In re B.G. (1974) 11
Cal.3d 679, 699.)
Here,
the following evidence supports the juvenile court’s conclusion that there was
no reasonable means to protect T.V. from a risk of detriment without removing
her from her mother’s care. First,
Mother was both abusing drugs in her daughter’s presence and selling drugs out
of the home they shared. T.V. reported
having seen Mother smoking marijuana and stated that many people frequently
come and go from the house, and deputies had previously arrested a suspect who
admitted to having purchased methamphetamine from Mother. In addition, Mother exhibited the classic
symptoms of being under the influence of methamphetamine when she was
arrested. Second, the state of the home
was not merely messy, but unsanitary, with dog and rodent feces in the kitchen,
on the couches and in the sleeping areas, and rotted food in the kitchen and on
top of the refrigerator. This was in
addition to dirty plates and clothing throughout the house and multiple
extension cords, which the responding deputy described as “not appear[ing]
safe,†and an uncovered electrical panel inside the home. We conclude that the state of the home
exposed T.V. to a substantial risk of harm from disease and accident. We also conclude that Mother’s drug use and
practice of selling drugs out of her home exposed T.V. to a substantial risk of
harm, in that Mother was often not in a condition to care for her teenager when
needed and she exposed T.V. to a parade of drug users going in and out of the
home with cash and drugs.
Mother
argues DPSS could have protected T.V. from Mother’s drug use, drug sales, and
the state of the home by means other than removing T.V. We agree with both DPSS and the juvenile
court that T.V. had to be removed for her own protection. This was not Mother’s first visit from child
welfare workers, and would not be the first time she was offered services to
address the issues that caused this dependency.
In fact, the latest child welfare referral was only in June 2011, and
included allegations that the home had no electricity, running water or
food. At the team decision making
meeting held on August 3, just three weeks prior to this detention, it was
decided to leave T.V. in Mother’s care and to offer Mother mental health
services because she disclosed having mental health issues. Further, in January 2010, Mother was cited
for misdemeanor child endangerment (Pen. Code, § 273) when she was discovered
asleep and under the influence of methamphetamine at the wheel of her vehicle,
parked in the middle of the roadway with no lights on, while T.V. slept in the
passenger seat. At that time, she was
referred to “Family Preservation Court’s Center for Change.†Mother also had several child welfare
referrals in 2006—one for being under the influence of methamphetamine while
caring for T.V. and living in a “speed house†when she was not moving around;
one alleging that Mother and T.V. were living in a van; and another for not
properly supervising T.V. As a result,
toward the end of 2006, mother was provided with referrals for substance abuse
services, parenting education, anger management and something called “Youth
Accountability Team program.â€
We disagree with
Mother’s contention that these referrals have little to do with Mother’s
current situation. We also disagree with
Mother’s complaint that the social worker did not adequately describe either
Mother’s participation in the services or how they were relevant to this
detention. The point is that DPSS had
already attempted to prevent T.V.’s removal by offering services for mother’s
substance abuse, mental health, and parenting skills deficits, but these
referrals had not resulted in a livable home environment for T.V.
In addition,
Mother canceled or failed to show for every single appointment with the social
worker prior to the jurisdiction and disposition hearing, which showed that she
was not amenable to services that would help keep T.V. in the home. Given this lack of cooperation between
detention and disposition, Mother’s argument that DPSS could have provided
services to her that would have addressed her drug and home sanitation issues
prevent the need for removing T.V. at the September 27, 2011, disposition
hearing is unavailing. The juvenile
court did not err.
3.
Fulfilled
Mother contends: (1) DPSS failed to send ICWA notices to all
of the tribes Mother identified; and (2) the notices that were sent lacked
required information about T.V.’s ancestry that was available had DPSS
fulfilled its duty to inquire.
A. ICWA Notice
In the detention
report, the social worker stated Mother identified possible Indian ancestry as
Navajo or Blackfoot. At the
the juvenile court aware that Mother was claiming Indian heritage. In the “Parental Notification of Indian
Status,†Judicial Council Form, form ICWA-020, filed in the juvenile court on
August 26, 2011, Mother identified the tribes in which she may be eligible for
membership as “Blackfoot, Chirakia.â€
DPSS sent Judicial Council Form, form ICWA-030, “Notice of Child Custody
Proceedings for an Indian Child,†by certified mail to the Bureau of Indian
Affairs, the Blackfeet Tribe of Montana (Blackfeet), the Colorado River Tribal
Council (Navajo), the Colorado River Indian Tribes (Navajo), the Fort Sill
Apache Tribe of Oklahoma (Chiricahua), and the Navajo Nation. At the September 27, 2011, jurisdiction and
disposition hearing the juvenile court found that “good ICWA notice†had been
achieved.
Mother first
argues DPSS should have also notified the three recognized Cherokee Tribes,
based on Mother’s ICWA-020 form. This is
because Mother handwrote what appears to be the word “Chirakiaâ€
which she may be eligible for membership, and Mother contends the social worker
should have asked Mother if she meant that she may have Cherokee heritage. DPSS counters that mother was referring to
the Chiricahua band of Fort Sill Apaches of Oklahoma, to which DPSS did sent
notice
“ ‘The
Indian status of the child need not be certain to invoke the notice
requirement. [Citation.]’ †(Dwayne
P. v. Superior Court (2002) 103 Cal.App.4th 247, 254.) “ ‘[O]ne of the primary purposes of
giving notice to the tribe is to enable the tribe to determine whether
the child involved in the proceedings is an Indian child. [Citation.]’ †(Id.
at pp. 254-255.) Former California
Rules of Court, rule 1439, now section 224.2, subdivision (a), “impos[es] on
the court an affirmative duty to ‘inquire whether a child for whom a petition
under section 300. . . has been . . . filed is or may
be an Indian child.’ [Citation.]
Further, under [section 224.3, subdivision (b)(1)], ‘[t]he circumstances
that may provide [reason to know] the child is an Indian child include’ the
receipt of information from a party or other source ‘suggesting that the
child is an Indian child.’ †(
‘imply,’ ‘hint,’ ‘intimate’ and ‘insinuate.’
(American Heritage Dict. (college ed. 1981) p. 1287.)†(Id. at
p. 259)
Based on this
very broad reading of the duty to notify Indian tribes whenever a parent
suggests, implies or even hints that a minor may be a member of a particular
Indian tribe, we reluctantly conclude that mother’s inclusion of the word
“Chirakia†on the ICWA – 020 form was, just barely, enough of a hint that she
was claiming possible Cherokee heritage to trigger the duty to notify the three
Cherokee Indian tribes.
B.
Mother’s second
ICWA argument is that DPSS failed to include any information in the ICWA-030
notice to the tribes about T.V.’s grandparents or great grandparents, and that
this information was available to DPSS if only it had fulfilled its duty to
inquire of relatives about T.V.’s Indian heritage. The notice form included information about
Mother, along with the name and birth date of T.V.’s father. The spaces on the form for information about
T.V.’s grandparents and great grandparents were filled in “No information available.â€
Under California
law, the social services agencies and the juvenile courts have “an affirmative
and continuing duty to inquire whether a child for whom a petition under
Section 300 . . . is to be, or has been, filed is or may be an Indian
child in all dependency proceedings . . . if the child is at risk of
entering foster care or is in foster care.â€
(§ 224.3, subd. (a ).)
Circumstances that indicate the child is an Indian child include
information that the child is a member of a tribe or eligible for membership,
or that one or more of the child’s biological parents, grandparents, or
great-grandparents are or were members of a tribe. (§ 224.3, subd. (b)(1).) The social worker must interview the parents
and other persons expected to have information about the child’s status or
eligibility. (§ 224.3,
subd. (c).)
Federal
regulations require that the notice to the tribes include, among other things,
“All names known, and current and former addresses of the Indian child’s
biological mother, biological father, maternal and paternal grandparents and
great grandparents or Indian custodians, including maiden, married and former
names or aliases; birthdates; places of birth and death; tribal enrollment
numbers, and/or other identifying information.â€
(25 C.F.R. § 23.11(d)(3) (2010).)
The record shows
that Mother did not make herself available to the social worker, so Mother
cannot complain that the social worker did not ask her for more information
about her Indian heritage, specifically the names and other required
information about T.V.’s grandparents and great grandparents. However, as Mother points out, the social
worker also had access to 14-year-old T.V., who at least should have been asked
if she knew the names of or other information regarding her mother’s
family. In addition, DPSS had information
regarding a local great uncle, a long-time family friend in Texas, and another
family friend who lives on the Morongo reservation, each of whom wanted to be
considered for placement and could have been asked about T.V.’s grandparents
and great grandparents. The record does
not indicate that the social worker inquired of any of these possible sources,
as required by section 224.3, subdivision (c).
Although we are loath to allow Mother to benefit from her own failure to
make herself available to the social worker for interview, we can only conclude
that the social worker did not fulfill the duty to interview T.V., the great
uncle, or the two family friends to attempt to obtain the information required
to be included on the ICWA-030 form, if available.
The juvenile
court and DPSS did not fulfill their inquiry and notice duties. Thus, the matter must be remanded for proper
ICWA compliance.
Disposition
The
jurisdiction and disposition orders of the juvenile court are conditionally
vacated, and the matter is remanded to the juvenile court with directions to
order compliance with the ICWA inquiry and notice provisions. If, after proper inquiry and notice, no
response is received from a tribe indicating T.V. is an Indian child, the
orders shall be reinstated. If a tribe
determines the child is an Indian child, the juvenile court is ordered to
conduct a new jurisdiction and disposition hearing in conformity with all
provisions of ICWA. In all other
respects the orders are affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
KING
J.
1978. (25 U.S.C. § 1901 et seq.)
name="_ftn2" title=""> [2] All further statutory references are to the
Welfare and Institutions Code unless otherwise indicated.
