Marlan S. v. Sup. Ct

Filed 4/20/06 Marlan S. v. Sup. Ct. CA4/1

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COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PROCEEDINGS in mandate after reference to a Welfare and Institutions Code section 366.26 hearing. Yuri Hofmann, Judge. Petitions denied; stay vacated.

Marlan S. and his wife, Deanna D., the parents of N. S. and Robert S., seek extraordinary writ relief (Welf. & Inst. Code, § 366.26, subd. (l); Cal. Rules of Court, rule 38.1);^[1] they challenge the juvenile court order denying them reunification services and setting a section 366.26 hearing. The parents contend the court failed to comply with provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) as well as state law in denying reunification services to them.

We issued an order to show cause, the San Diego County Health and Human Services Agency (Agency) responded, and the parties have presented oral argument. We review the petitions on their merits and deny them.

PROCEDURAL AND FACTUAL BACKGROUND

In mid-March 2005, Marlan, Deanna and their children, who live on the Rincon Band of Mission Indians' reservation, were staying at Harrah's Rincon Casino Hotel for a couple of days.^[2] On the morning of March 17, Marlan was taking care of four-month-old Robert when a baby wipe became lodged in the infant's throat.^[3] Marlan tried unsuccessfully to dislodge the wipe with his finger. When Deanna returned to the hotel room, Marlan was administering CPR to Robert; the parents decided to take Robert to the Indian Health Clinic on the reservation. Robert was airlifted to Children's Hospital in San Diego; upon arrival, he was in full arrest and was intubated. Hospital doctors later performed a bronchoscopy to remove the baby wipe. While Robert was at the hospital, X-rays revealed he had bilateral skull fractures, three rib fractures and fractures on the tibia and right radius. All of the fractures appeared to be healing, which indicated they were old injuries.

Marlan was unable to explain how the baby wipe became lodged in Robert's throat, and neither he nor Deanna could explain the infant's old injuries. Both Marlan and Deanna denied causing any injury to the child.

Deanna's 13-year-old and 11-year-old daughters from a prior relationship told the social worker they had not observed anyone mishandling or being rough with their half-sibling Robert. The girls said Marlan was a good father to Robert and N.S., and a good stepfather to them. The girls also said Robert liked to grab things and often would put them in his mouth and chew on them.^[4]

Robert's primary pediatrician at Children's Hospital opined his fractures and the baby wipe lodged in his throat resulted from nonaccidental trauma. The doctor said a four-month-old infant is incapable of turning to his side, grabbing a baby wipe and stuffing the entire wipe down his throat.

Both parents admitted they had a history of domestic violence and substance abuse.^[5] Marlan also had numerous criminal convictions, mostly for vehicle theft and drug-related offenses. Marlan was on parole at the time of the baby wipe incident.

On March 22, Agency filed a dependency petition on behalf of Robert under section 300, subdivisions (a), (b) and (e), alleging he was at substantial risk of serious physical harm based on his fractures, the baby wipe incident and the fact that as a child under the age of five years he suffered severe physical abuse. Agency also filed a dependency petition on behalf of N.S. under section 300, subdivision (j) because of the injuries to Robert.

The court detained both children in out-of-home care and referred the parents to the Substance Abuse Recovery Management System program (SARMS) for evaluations. Robert, who was unable to swallow because of lacerations to his esophagus, remained hospitalized. He required a nasogastric tube as well as a gastrointestinal tube. On April 12, N.S. was placed with her maternal grandmother. Social worker Arvin Budomo reported that Robert probably would have to be placed in a foster home for medically fragile children upon his discharge from the hospital.

Originally, Agency recommended reunification services for Marlan and Deanna, who cooperated with authorities, expressed remorse for not providing better supervision of their children, and appeared motivated to reunify. Their proposed case plans included parenting education, psychological evaluation, outpatient substance abuse treatment and testing through SARMS, domestic violence treatment, individual therapy, a psychological evaluation and a psychotropic medication evaluation.

Budomo explained that Agency was recommending services despite the section 300, subdivision (e) allegation because the children and parents were bonded and it would be detrimental to the children not to offer services to the parents. Budomo characterized the family as close-knit, with extended family support and older half-siblings who were attached to Robert and N.S. Budomo also noted that Marlan and Deanna had potential for improvement and voluntarily started drug counseling, individual therapy and parenting classes.

On May 10, Deanna underwent a psychological evaluation with Steven T. Griggs, who opined that she suffered from "marked impairment in psychological functioning and had severe psychological problems." According to Griggs, Deanna "likely functions with a significant amount of narcissism," has a low level of intelligence and has a "personality structure [that] is regressive, immature and undeveloped." Griggs recommended extended psychotherapy, a re-evaluation in six or 12 months, participation in SARMS for at least a year, attending Narcotics Anonymous meetings for years if not forever and either multiple parenting courses or completion of a "very long" parenting course. Griggs's prognosis for improvement in Deanna's overall parenting ability was guarded. Grigg's also observed: "Terminating parental rights . . . is premature, even though the likelihood that Deanna will fully be able to independently parent her children without supervision is 'iffy' at this juncture."

On May 18, psychologist Hideo Shimizu evaluated Marlan. Shimizu reported Marlan's "major liability is his history of chronic crystal methamphetamine use." The psychologist said other problematic factors include Marlan's stressful relationship with Deanna and his tendency to harbor strong angry feelings. Shimizu recommended substance abuse treatment and testing, domestic violence classes, anger management classes, individual therapy and concurrent couple's therapy. "Although [Marlan's] prognosis is guarded, he appears very determined to remain sober and motivated to follow through with the court requirements for the sake of his children," Shimizu wrote. "The risk of child endangerment and neglect can be lessened if [Marlan] is fully compliant with the services of the external agencies." Further, Shimizu opined that not offering services to Marlan could cause him psychological harm and "even exacerbate his angry and dysphoric feelings."

In July, social worker Budomo changed his recommendation by requesting no reunification services be ordered for either parent pursuant to section 361.5, subdivisions (b)(5) and (b)(6). Budomo was critical of the parents' psychological evaluations, which he said focused more on the detriment to them than on the detriment to the children if services were denied.

On September 13, after a contested two-day jurisdictional hearing, the court sustained both petitions. The court also ruled that the matter would proceed with observance of ICWA provisions and related state statutes.

The contested dispositional hearing took place over three days later that month.

Psychologist Shimuzu testified that it would take at least one year of services for Marlan to address the issues identified in his evaluation.

Social worker Budomo opined the children would remain at risk if returned to their parents based on their young ages, the parents' drug and domestic violence history, and the fact that Deanna completed services in a prior dependency case but did not learn from those services. Budomo testified that services would not likely prevent reabuse and reunification would not be in N.S.'s best interests. Budomo explained that he changed his original recommendation for services following consultation with colleagues, and further review of the case, the prior dependency case and Agency protocols indicating it was appropriate to not offer services if there were excessive risk factors.

Karan Kolb, the Rincon tribal representative, testified the Indian Health Council provided Marlan and Deanna with services involving parenting, domestic violence, substance abuse, anger management and individual therapy. Kolb, who is also the program manager of the Indian Health Council, characterized the services as both reunification services and active efforts under the ICWA. Kolb said the Indian Health Council and the Rincon Tribe supported the parents' efforts to reunify because they wanted the children to grow up on the reservation.

Phillip Powers, whom the court found to be an Indian expert witness for purposes of 25 United States Code section 1912(d), testified that for purposes of ICWA "active efforts" had been made to provide services to Marlan and Deanna. Powers explained that both parents had been referred to ICWA programs on the Rincon Indian reservation and that various services were offered to them. Powers, who worked for Agency's Indian Specialty Unit for about 12 years before his retirement the previous year, agreed with Agency's no services recommendation.^[6] Powers also testified there was good cause to place Robert in a medically fragile foster home rather than follow ICWA placement preferences because of the boy's medical condition.

Deanna testified she had completed a 10-week parenting class and a nine-week anger management class and currently was attending a drug program on the reservation and another one through SARMS. Deanna had not tested positive for drugs and recently entered the second phase of the SARMS program. She had not used drugs for six months. Deanna also was attending domestic violence classes, individual therapy, Alcoholics Anonymous meetings as well as the reservation's family meetings and its sweat lodge. Deanna testified that social worker Budomo did not give her referrals for services.

Deanna attributed Robert's fractures to one or both babysitters the family used. She assumed Marlan's explanation that the baby wipe became lodged in Robert's throat while Marlan was momentarily out of the room was accurate. Deanna said if she learned Marlan had abused Robert she would not forgive him and would probably leave him.

Barbara Gill, Deanna's therapist, testified she had shown tremendous progress in dealing with stress and improving her self-esteem. Deanna had also shown progress in her communication skills, anger management, understanding of domestic violence and drug recovery.

Marlan testified he completed courses in anger management and parenting. He was drug testing, attending individual and group counseling, going to 12-step meetings and had recently started domestic violence classes. Marlan had not used drugs for six months and was in the second phase of SARMS. Asked what information he had about how Robert sustained his injuries, Marlan replied: "I don't know how they happened, but I just know me and my wife didn't do it, but I am responsible." Marlan also testified he would prevent future injuries to Robert by checking the backgrounds of caregivers and only using family members he knew would not hurt Robert while babysitting him.

La Vonne Prado, Marlan's therapist, testified she was satisfied with Marlan's progress in dealing with his substance abuse. Prado said Marlan took responsibility for getting treatment on his own, but had not taken responsibility for Robert's injuries.

On September 26, the juvenile court adopted Agency's recommendation and denied reunification services pursuant to section 361.5, subdivisions (b)(5) and (b)(6) and set a section 366.26 hearing. The court ordered N.S. placed with her maternal grandmother, consistent with ICWA. The court ordered Robert placed in a medically-fragile foster home after making a good cause finding under section 1915(b) of title 25 of the United States Code, that because of Robert's special medical needs the court must sidestep the ICWA preference of placement in an Indian home.

The court also made ICWA findings under sections 1912(d) and 1912(e) of title 25 of the United States Code.

In explaining its decision to deny reunification services, the court cited the limited time frames for reunification and the risk of physical harm to Robert. The court said it based its risk assessment on Robert's young age, his vulnerability, and the "horrific things that happened" to him. The court continued:

"Because of that very, very high risk assessment, it is difficult to understand when in the future Robert would be ready to be sent back to the parents, even if they do everything that they are supposed to do, even if they continue to engage in the treatment programs. It will take a considerable track record to make sure that everything is being monitored, trial periods of lengthy visitation, periods of custody in their home that would have to take place before Robert would ever be safely returned to the parents. [¶] The time frames that are provided in the Welfare and Institutions Code don't give us enough time to operate within that structure, and because of that the court is going to adopt the recommendations of [Agency]. That doesn't mean that the parents are not going to regain custody of these children. There is an opportunity to do that, and they need to continue to do what they are doing and work as hard as they can."^[7]

The court also found reunification was not in the best interests of the children because it could not be accomplished with the statutory time limits and "would delay the establishment of a permanent home for [N.S. and Robert]."

DISCUSSION

I

DENIAL OF REUNIFICATION SERVICES

Both parents contend the juvenile court erred by denying reunification services to them under section 361.5, subdivisions (b)(5) and (b)(6). The contention is without merit.

Legal Principles - California Law

Section 361.5, subdivision (a) directs the juvenile court to order services whenever a child is removed from the custody of her parent unless the case is within the enumerated exceptions in subdivision (b). (Rosa S. v. Superior Court (2002) 100 Cal.App.4th 1181, 1188.) Section 361.5, subdivision (b) is a legislative acknowledgement "that it may be fruitless to provide reunification services under certain circumstances." (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.)

Section 361.5, subdivision (b) reads in pertinent part:

"(b) Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶] . . . [¶] (5) That the child was brought within the jurisdiction of the court under subdivision (e) of Section 300 because of the conduct of that parent . . . . [¶] (6) That the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of severe sexual abuse or the infliction of severe physical harm to the child or a sibling . . . as defined in this subdivision, [by a parent] . . . and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent . . . . [¶] . . . [¶] A finding of the infliction of severe physical harm, for the purposes of this subdivision, may be based on, but is not limited to, deliberate and serious injury inflicted to or on a child's body or the body of a sibling . . . of the child by an act or omission of the parent . . . ."

A court reviews an order denying reunification services under section 361.5, subdivision (b) for substantial evidence. (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 600.) The duty of a reviewing court is to determine whether there is any substantial evidence to support the juvenile court's findings. In making this determination, we must decide if substantial evidence, contradicted or uncontradicted, supports them, drawing all reasonable inferences from the evidence to support the findings and reviewing the record in the light most favorable to the court's determinations. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)

The applicability of section 361.5, subdivision (b) in a particular case does not automatically result in the denial of reunification services; the statute simply provides that under certain enumerated circumstances, services need not be ordered. In other words, the decision to grant or deny services is left to the discretion of the juvenile court. Section 361.5, subdivision (c) reads in pertinent part:

"In deciding whether to order reunification in any case in which this section applies, the court shall hold a dispositional hearing. The social worker shall prepare a report that discusses whether reunification shall be provided. . . . [¶] The court shall not order reunification for a parent . . . described in paragraph . . . (6) . . . of subdivision (b) unless the court finds, clear and convincing evidence that reunification is in the best interest of the child. [¶] In addition, the court shall not order reunification in any situation described in paragraph (5) of subdivision (b) unless it finds that, based on competent testimony, those services are likely to prevent reabuse . . . or that failure to try reunification will be detrimental to the child because the child is closely and positively attached to the parent. The social worker shall investigate the circumstances leading to the removal of the child and advise the court whether there are circumstances that indicate that reunification is likely to be successful or unsuccessful and whether failure to order reunification is likely to be detrimental to the child. [¶] The failure of the parent to respond to previous services, the fact that the child was abused while the parent was under influence of drugs or alcohol, a past history of violent behavior, or testimony by a competent professional that the parent's behavior is unlikely to be changed by services are among the factors indicating that reunification services are unlikely to be successful. The fact that a parent . . . is no longer living with an individual who severely abused the child may be considered in deciding that reunification services are likely to be successful, provided that the court shall consider any pattern of behavior on the part of the parent that has exposed the child to repeated abuse."

Legal Principles - ICWA

When Congress adopted ICWA in 1978, it declared:

"[I]t is the policy of this Nation 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 and the placement of such children in foster or adoptive homes which will reflect the unique vales of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs." (25 U.S.C. § 1902.)

Concurrent congressional findings stated that children were most vital to the continued existence and integrity of Indian tribes, and an alarming percentage of Indian children were being removed from their parents and placed in non-Indian foster or adoptive homes. (25 U.S.C. § 1901(3), (4).)

By protecting " 'the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining its children it is society,' " ICWA established " 'a Federal policy that, where possible, an Indian child should remain in the Indian community.' " (Mississippi Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 37.)

"ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes and families" by establishing "[m]inimum federal standards, both substantive and procedural, effectuating these policies." (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) "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." (Ibid.)

Among other things, ICWA provides the juvenile court may not order foster care placement of an Indian child unless it finds by clear and convincing evidence that continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child (25 U.S.C. § 1912(e)), and precludes the court from ordering foster care placement without making "active efforts" to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family (25 U.S.C. § 1912(d).)

Analysis

The juvenile court took jurisdiction over Robert, then 10 months old, under section 300, subdivision (e), finding he suffered severe physical abuse.^[8] Neither parent claims the jurisdictional finding under section 300, subdivision (e) was improper. N.S. was declared a dependent of the court because of the severe physical harm inflicted on her sibling, Robert. (§ 300, subd. (j).) Accordingly, it cannot be reasonably disputed that there is a sufficient basis for the application of section 361.5, subdivision (b)(5) as to Robert, and section 361.5, subdivision (b)(6) as to N.S.

With respect to the denial of services in Robert's dependency case under section 361.5, subdivision (b)(5), the court could not order reunification services unless it found: (1) services were likely to prevent abuse; or (2) the denial of services would be detrimental to Robert because he was bonded to the parents. (§ 361.5, subd. (c).) There was no evidence that denying services to the parents in Robert's case would be detrimental to the infant child because he was bonded to the parents. Further, the record contains ample evidence supporting a finding that services were not likely to prevent Robert's abuse: Deanna has a history of involvement with Agency (see fn. 4, ante); both parents were on methamphetamine when the baby wipe incident occurred; the parents have a history of domestic violence; and the psychologists who evaluated each parent issued a guarded prognosis that services were likely to change his or her behavior. It is not within our province as an appellate court to reweigh the evidence.

We recognize that Deanna and Marlan voluntarily enrolled in programs and showed a good deal of dedication and progress in those programs. They should be commended for doing so. But in reviewing the propriety of the court's decision to deny services, the question squarely before us is whether Robert was likely to be reabused. On this record, substantial evidence supports the court's assessment of the risk.

With respect to N.S. and the section 361.5, subdivision (b)(6) finding, the court could not order reunification services unless it found that reunification was in her best interests. (§ 361.5, subd. (c).) The record contains substantial evidence that it would not be in N.S.'s best interest to delay her chances at stability and permanency.

This case, however, does have a wrinkle because it is an ICWA case. Under the federal law, the court cannot remove children from the custody of parents without first making "active efforts" to provide services to them. (25 U.S.C. § 1912(d).) Here, the parents engaged in an impressive array of services ¾ a parenting course, domestic violence classes, substance abuse treatment, anger management program, and individual counseling. Marlan's counsel conceded at oral argument that the "active efforts" provision of ICWA was satisfied in this case. Further, Marlan's counsel maintained that the "active efforts" requirement does not mean Agency must provide the services in all cases; the requirement is met if the parents receive the services on their own. Deanna's counsel argued to the contrary; he maintained that the "active efforts" provision was not met because Agency had not made the services available to the parents, who participated in the services on their own.

We agree with Marlan's counsel that the "active efforts" provision of ICWA was met here. Otherwise, the "active efforts" requirement would prohibit a court from denying services under section 361.5, subdivision (b) in all cases where the parents voluntarily engaged in services ¾ even those cases where the parents did not show any improvement or prospect of improvement. The policy behind ICWA is to protect Indian children and promote the stability of Indian tribes. We do not see how the interpretation advocated by Deanna's counsel would further the purposes of ICWA; rather, it would unnecessarily delay the process by which the Indian child achieves stability and permanence where the prospects of reunification are slim or nonexistent.

When a dependency case falls within the ambit of section 361.5, subdivision (b), a "denial of services is neither inevitable nor a foregone conclusion." (Marshall M. v. Superior Court (1999) 75 Cal.App.4th 48, 59.) However, the law "affords the juvenile court considerable discretion to evaluate the circumstances of a particular case and reach an appropriate disposition." (Ibid.) We discern no abuse of discretion by the court denying services in this case, where the injuries to a four-month-old infant were "horrific," the risk of reabuse was high, and the prognosis for improvement by the parents was guarded.

II

PLACEMENT OF ROBERT IN NON-INDIAN HOME

Deanna contends the juvenile court erred in placing Robert in foster custody on two bases: (1) there was not clear and convincing evidence that placement with her would result in serious emotional or physical damage to the child (25 U.S.C. § 1912 (e)); and (2) the court failed to make requisite findings that Robert could not be placed in an Indian home (25 U.S.C. § 1915(b)).^[9] The contention fails on both grounds.

First, Deanna claims that because there was no showing she caused Robert's injuries the court could not reasonably find that placing him with her would likely result in serious physical or emotional damage to the child. We disagree. Although Deanna was not present when the baby wipe became lodged in Robert's throat and she had not been identified as the person who inflicted the seven fractures to him, she continued to stand behind Marlan even in the face of a doctor stating Marlan's explanation of the baby wipe incident was implausible. Deanna maintained this position despite knowing that Marlan was under the influence of methamphetamine when the baby wipe incident occurred. As to Robert's fractures, the identity of the perpetrator was unknown; however, it is not necessary to conclusively show who the perpetrator is in order to sustain a petition under section 300, subdivision (e). (In re Joshua H. (1993) 13 Cal.App.4th 1718, 1727.) Moreover, Deanna insisted the perpetrator of the factures had to be a babysitter rather than Marlan or she. It was reasonable for the court to conclude that notwithstanding Deanna's noninvolvement directly with Robert's injuries, her intransigent denial of Marlan's responsibility for them posed a risk of serious harm to Robert. Substantial evidence supported the court's finding that if custody of Robert were not removed from Deanna, he would be at risk of serious emotional or physical damage. (25 U.S.C. § 1912(e).)

Second, Deanna is mistaken in asserting the court did not make the requisite findings when it placed Robert in a non-Indian foster home. After the court denied reunification services to the parents under section 361.5, subdivisions (b)(5) and (b)(6), it placed Robert, who was still on a gastrointestinal feeding tube, in a foster home for medically fragile children. The court specifically made "a [good] cause finding for the licensed foster home which is contrary to the Indian Child Welfare Act because of Robert's special needs."^[10] Section 1915(b) of title 25 of the United States Code does not require the court to make a good cause finding as to each of the four preferences set forth in the provision. (See fn. 10, ante.)

DISPOSITION

The petitions are denied. The stay issued by this court on January 23, 2006, is vacated.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

O'ROURKE, J.

Huffman, Acting P. J. concurring.

In this case I feel compelled to take the unusual step of writing a concurring opinion even though I have signed as the author of the majority opinion. I believe the majority opinion accurately states the law and properly applies it to the facts in accordance with the established appellate standards of review.

Clearly, the abuse in this case suffered by the child was significant and any cautious jurist should be reluctant to create even a risk of return of the child to these parents. Yet we must recognize the parents in this case have undertaken substantial services on their own with little or no assistance from the County in their efforts to qualify for reunification with their children. This is true even though the Agency initially recommended reunification services be provided to these parents.

During the six months this case meandered through the juvenile system, from the time of detention to the jurisdiction and disposition hearing, active efforts were made by the parents to reunify. At the end of the day, the trial judge denied services and set the case for a Welfare and Institutions Code section 366.26 hearing. As our opinion correctly concludes, such decision was not an abuse of discretion. I remain troubled, however, by the record in this case. In making its order the court offered what appears to me to be a gratuitous and unfortunate remark. After denying reunification services, the court said "That doesn't mean the parents are not going to regain custody of these children. There is an opportunity to do that and they need to continue to do what they are doing and work as hard as they can." In my view, these remarks do not offer anything but false hope to the parents. A section 388 petition in this case (see fn. 7, ante, in the majority opinion) may have little prospect of success because it may be very difficult for the parents to show any change of circumstances or new evidence to support such a petition in light of the short time frames visited upon them. My concerns aside, I express no opinion as to how any future petitions or motions should be decided.

It is entirely understandable for a dependency judge dealing with parents who may be distraught to offer a kind and encouraging thought. In this case, however, the kindness, although undoubtedly well intentioned, may not only give rise to false hope as I have indicated, but it has also made review of this record, at least for me, somewhat difficult.

If reunification services were not appropriate because there was no hope the parents could achieve success within the time frames available, to what end then does the court say, in essence, keep up the good work, you may still get your child back. The court's comments are at odds with its actions and although I have voted to uphold the court's decision in light of the proper standards of review, I still remain concerned with the trial court's comments. Accordingly, I have written separately to express my views.

HUFFMAN, Acting P.J.

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^[1] Further statutory references are to the Welfare and Institutions Code unless otherwise specified. All rule references are to the California Rules of Court.

^[2] Deanna is registered with the Rincon Band of Luiseno Indians and the children were in the process of being registered. Marlan told the social worker that his maternal grandmother has heritage with the Sioux Indian Tribe, but he did not know her name or whether she was registered.

^[3] Neither Deanna, who was running errands, nor one-year-old N.S., who had spent the previous night at the maternal grandmother's residence on the reservation, was in the hotel room.

^[4] The 11-year-old daughter had been removed from Deanna's care and had been declared a dependent of the juvenile court in 1998 after she ingested crystal methamphetamine. The girl was four years old at the time. Deanna complied with her case plan, which included parenting education and drug testing, and the court terminated its jurisdiction at the six-month review hearing.

^[5] The parents said they did not engage in physical altercations in front of the children.

^[6] Powers also submitted a declaration to the court as an Indian expert witness.

^[7] Presumably, the court was referring to section 361.5, subdivision (a)(2) when it discussed time frames. At the time of the hearing, that provision read: "For a child who, on the date of initial removal from the physical custody of his or her parent . . . was under the age of three years, court-ordered services may not exceed a period of six months from the date the child entered foster care." We also presume that when the court mentioned another opportunity it was referring to the filing of a section 388 petition.

^[8] Section 300, subdivision (e), reads in pertinent part: "Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶] . . . [¶] (e) The child is under the age of five years and suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child. For the purposes of this subdivision, 'severe physical abuse' means any of the following: any single act of abuse which causes physical trauma of sufficient severity that, if left untreated, would cause permanent physical disfigurement, permanent physical disability, or death; any single act of sexual abuse which causes significant bleeding, deep bruising, or significant external or internal swelling; or more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external or internal swelling, bone fracture, or unconsciousness; or the willful, prolonged failure to provide adequate food."

^[9] The provision reads: "Any child accepted for foster care . . . shall be placed in the least restrictive setting which most approximates a family and in which his special needs, if any may be met. . . . In any foster care . . . placement, a preference shall be given in the absence of good cause to the contrary to a placement with -- [¶] (i) a member of the Indian child's extended family; [¶] (ii) a foster home licensed, approved, or specified by the Indian's child's tribe; [¶] (iii) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or [¶] (iv) an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs." (25 U.S.C. § 1915(b).)

^[10] The court also said that when Robert's medical condition improved, the court intended to change his placement to a "suitable home of a relative."