In re Tatiana R.

Filed 6/13/08 In re Tatiana R. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

K.B. (Mother), mother of Tatiana R. (born October 1999), Alexis R. (born November 2000), Jasmine R. (born December 2002), T.R. (born November 2003) and Marquise B. (born January 2005), appeals orders dated July 10, 2007, entered pursuant to Welfare and Institutions Code section 387,^[1]denying appellants request that the minors be placed with her.^[2] Mother contends the orders continuing the minors in out-of-home placement were not supported by substantial evidence, and there was insufficient compliance with the inquiry and notice provisions of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.  1901 et seq., Cal. Rules of Court, former rules 1439 and 5.664).^[3]

BACKGROUND

In October 2005, the Solano County Health and Social Services Department (Solano County Department) filed a Judicial Council form dependency petition, JV-100 (Jan. 1. 1999 rev.) (hereafter JV-100), alleging Mothers and Fathers^[4]failure to protect the minors ( 300, subd. (b)), and serious emotional damage to the minors ( 300, subd. (c)). The petition alleged that Mother had called the Solano County Child Protective Services (CPS) hotline saying she was homeless and unable to care for the minors. It also alleged the parents history of domestic violence. The petitions box (section 1.m.) stating Child may be of Indian ancestry was checked for each of the five minors.

The Solano County Departments October 2005 detention report stated Father claimed he had Cherokee ancestry, and the social worker would file the appropriate documents with the Cherokee tribes and Bureau of Indian Affairs (BIA). The record contains ICWA notice documents, solely as to Marquise, sent by the Solano County Department on October 20 to the BIA, the Cherokee Nation of Oklahoma (Cherokee Nation), the Eastern Band of Cherokee Indians (Eastern Band), and the United Keetoowah Band of Cherokee (Keetoowah Band). The form notice of involuntary child custody proceeding involving an Indian child, SOC 319 (Dec. 1993 rev.), included Marquises name, birth date, and birthplace; and Fathers and Mothers names and birth dates.

Following the detention hearing the four older minors were removed from Mothers custody and placed with Father, and Marquise was approved for out-of-county placement.^[5] The detention order states, The [Solano County] Department has made reasonable efforts to comply with the notice requirements of ICWA, and Active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian Family.

At the November 2005 jurisdiction hearing, Mother and Father submitted to the allegations of the amended petition, which dismissed the section 300, subdivision (c) allegation and modified the subdivision (b) allegation. Following the hearing Marquise was placed with Mother.

Disposition Report

The Solano County Departments December 30, 2005 dispositional report stated: Father said he believed he had Indian ancestry; the BIA, the Eastern Band, the Cherokee Nation had been notified by registered mail; and, on November 7, 2005, the Eastern Band responded that the minors were not registered members of their tribe. The report also stated that Mother denied any past or present drug use or current problems, but requested help with housing. Supervised visitation between Mother and the minors was recommended. A November psychological evaluation diagnosed Mother as suffering from delusional (paranoid/persecutory) disorder, generalized anxiety disorder, and personality disorder not otherwise specified (avoidant, paranoid, and negativistic personality features). The report noted that Mother was having difficulty parenting the minors, and placing them with her could pose a risk for their physical and emotional safety. The report recommended individual psychotherapy to deal with anxiety, stress, and parenting, a psychotropic medication evaluation, a womens support group, parenting classes, and housing and employment referrals.

On January 9, 2006, the Solano County Department submitted November and December 2005 letters from the Cherokee Nation and the Eastern Band stating that all five minors could not be traced in their tribal records and that the Cherokee Nation and the Eastern Band were not empowered to intervene in the matter. At the January 10 disposition hearing, the court continued Marquises placement with Mother and the four older minors placement with Father. Mother was granted supervised visitation with the four older minors, and was ordered to participate in various counseling programs and reunification services.

Section 387 Supplemental Petition Regarding Marquise

On January 19, 2006, Solano County Department filed a section 387 supplemental petition seeking more restrictive placement of Marquise. The petition alleged that on January 13, Mother was acting in an irrational, belligerent, and out-of-control manner requiring the securing of other residents at Mothers Heather House placement. Police removed Mother from the program. The petition also alleged that Mother would purposely take Marquise out of staffs view and he would begin to scream, and he was in danger of physical harm by Mother. Mother failed to notify anyone of her whereabouts for five days and had no ability to provide a safe, stable home for Marquise. At the January 20 detention hearing regarding Marquise, the court found that the Solano County Department had made reasonable efforts to comply with ICWA notice requirements, and Marquise was ordered detained. On March 1, the section 387 supplemental petition was sustained. On April 11, Mother was ordered to participate in counseling programs to address parenting and communication skills, family therapy, and domestic violence (victim). On April 28, Marquise was placed with Father, with supervised visits granted to Mother.

Status Review Hearing Regarding the Four Older Minors

At the June 2006 status review hearing, the court found that, based on the responses from the noticed tribes, the four older minors were not subject to ICWA. The court found that Mother had not made substantial progress on her reunification plan, and continued the four older minors placement with Father.

In July 2006, the Alameda County Juvenile Court accepted transfer of the case regarding all five minors.

October 2006 Interim Review Report

An October 2006 interim review report by the Alameda County Social Services Agency (Alameda County Agency) stated that Mother was residing in a homeless shelter, was unemployed, and applying for Supplemental Security Income. Attached documents established that Mother was attending support group and individual counseling sessions.

In February 2007, the court issued a protective custody warrant as to all five minors since Father and the minors were homeless and Father was not complying or communicating with the Alameda County Agency.

March 2007 Status Review

The Alameda County Agencys March 2007 status review report stated that, in February, Father was arrested for possession of a controlled substance and driving with a suspended license, and upon his release his whereabouts were unknown. Mother was staying with a friend, was employed on and off, and was seeking independent housing. Mother had three visits with the minors between October 2006 and January 2007, and was very passive during visits. At the review hearing, Mothers counsel asked the court to direct the Alameda County Agency to file a section 387 petition, and stated that with regard to such a petition, Mother would be requesting placement of the minors with her. Following the hearing, the court adopted the Alameda County Agencys recommendation to continue reunification services to Mother, and noted a substantial probability that the minors might be returned to Mother during the next six months.

Section 387 Supplemental Petition

On May 11, 2007, the Alameda County Agency filed the section 387 supplemental petition at issue in this appeal. The petition alleged that the previous disposition for the minors was not effective because Father left the minors in the care of their paternal grandmother and his whereabouts were unknown, and Mother was unable to provide for the minors. The minors were ordered detained and discretion given to the Alameda County Agency to release the minors to a suitable adult relative.

Jurisdiction/Disposition Report

The Alameda County Agencys May 2007 jurisdiction/disposition report as to all the minors stated, According to the case file, the [ICWA] does not apply. It also stated that the minors were doing well in their placements. Mother was residing at a homeless program, working at a temporary job, and visiting the minors once a week. Mother requested that the minors remain in foster care or be placed with their paternal grandparents while she worked toward reunification. The report stated that Mothers circumstances had not changed and she was unable to provide a place for the minors to live or to provide for them financially.

At the May 29, 2007 uncontested hearing on the section 387 petition, the court set the matter for a contested hearing. Mothers counsel asked the court to grant the Alameda County Agency discretion to place the minors with Mother upon an evaluation of her housing. The Alameda County Agency social worker stated that Mother was still not in suitable housing. Mothers counsel said Mother might have suitable housing within a week and the social worker agreed to reassess such housing.

A July 6, 2007 Alameda County Agency addendum report stated, According to the case file, the [ICWA] does not apply. It also recommended that Mother be offered six months of reunification services and Father receive no services until making himself available to the social worker and the court. The report noted that Mother was no longer working and had not found new employment. A July 9 Alameda County Agency second addendum report again stated, According to the case file, the [ICWA] does not apply. It also noted that Mother appeared unsure of her boundaries with the minors, and unsure of what responses were appropriate to the minors requests.

Section 387 Hearing

At the July 10, 2007 contested hearing on the section 387 petition, Mother testified she had secured permanent housing and was looking for work. She said the weekly two-hour visits were successful and wanted the minors returned to her. On cross-examination, Mother clarified that she had moved into transitional housing two months prior, and that if the minors were returned to her they would reside with her in one bedroom. Mother said she had not been in any counseling or received any mental health treatment since June 2006. She planned to live in the house a few years and was paying $475 a month rent.

Alameda County Agency child welfare worker, Melissa Turner, who had been on the case for a couple of months, stated that Mother had not been in counseling, had not completed a medical evaluation, and had not developed a relapse prevention plan. Turner opined that return of the minors to Mother was not a good idea because Mother had only been visiting the children weekly for two hours, and a gradual process would allow for a smoother transition for her and the minors. She also said she did not believe additional beds would be available at Mothers home, but she had not yet visited there or spoken to anyone there to arrange it. Turner said the minors wanted to live with their paternal grandmother.

The court applauded Mothers efforts at securing housing and taking steps to address the problems leading to the dependency, but found that return of the minors to her would be detrimental because she had not completed her plan and there were questions about the adequacy of her housing. The court ordered an additional six months of reunification services to Mother and granted the Alameda County Agency discretion to arrange for the minors overnight visits at Mothers home. No reunification services were ordered to Father. The courts section 387 orders state that required notice was given.

On August 22, 2007, Mother timely appealed from the section 387 order denying her in-home placement of the minors.

DISCUSSION

I. The Courts Order Was Supported by Substantial Evidence

Mother contends the courts July 2007 section 387 order denying her request that the minors be placed with her is unsupported by substantial evidence.

The Alameda County Agency appears to argue that return of the minors to Mother was not a cognizable issue either at the section 387 hearing or on appeal because Mother did not file a section 388 petition for modification showing her changed circumstances. The short answer to the Alameda County Agencys assertion is that the juvenile court has inherent authority to modify any previously made interim order, except for the termination of parental rights, and such modification can be made sua sponte, on the courts own motion without a section 388 petition, after providing the parties notice and an opportunity to be heard. (Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 98-99; Seiser & Kumli, California Juvenile Courts Practice and Procedure (2008 ed.)  2.140[1], p. 2-330.) The issue is cognizable on appeal.

We review the courts finding denying Mother placement of the minors in the light most favorable to the courts order. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.) If substantial evidence supports the order, our duty ends and the order must be affirmed. (See In re Misako R. (1991) 2 Cal.App.4th 538, 545.) A judgment or order based on unreasonable inferences, speculation, or conjecture is not supported by substantial evidence. (Cf. People v. Anderson (1968) 70 Cal.2d 15, 23-24.)

As of the section 387 hearing, Mother was unemployed, had not been in counseling, had not completed a medical evaluation, and had not developed a relapse prevention plan. Although Mother said the minors could share her single bedroom in the transitional housing she had resided in for two months, it had not been established that additional beds would be available to accommodate the five minors in Mothers bedroom. In addition, Turner opined that since Mother had only been visiting the minors weekly for two hours, a more gradual process incorporating overnight visitations would permit a smoother transition for both Mother and the minors. Mother argues that strict compliance with a case plan is not required for reunification. However, Mother was not denied reunification; she was granted six more months of reunification, but denied the minors placement with her. We conclude substantial evidence exists to support the courts finding that return of the minors to Mother would be detrimental because she had not completed her case plan and there were questions about the adequacy of her housing.

II. ICWA Notice

Mother also contends the court failed to sufficiently comply with the inquiry and notice provisions of ICWA.

The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes and families by establishing certain minimum federal standards in juvenile dependency actions. (In re D.T. (2003) 113 Cal.App.4th 1449, 1453-1454; see 25 U.S.C.  1902; Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30.) When the social services agency has reason to know the proceeding involves an Indian child, the agency must notify the Indian childs tribe, or the BIA (if the tribes identity cannot be determined) of the pending proceedings and of the right to intervene. (In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4.) The agencys duty is to inquire into the possibility of the childs Indian ancestry and to act upon the information the family provides. The agency is not required to conduct an extensive independent investigation or to cast about, attempting to learn the names of possible tribal units to which to send notices. (In re Levi U. (2000) 78 Cal.App.4th 191, 199.)

In particular, Mother argues that although the October 2005 original JV-100 had the box checked for Child may be of Indian ancestry, neither parent completed a Judicial Council form parental notification of Indian status, JV-130 (Jan. 1., 2005 rev.), and the record does not reveal that any inquiry was made as to whether she had any Indian ancestry. Mother also argues that the record contains no copies of any ICWA notices sent to any of the tribes concerning any of the minors except Marquise, does not contain a response from the Keetoowah Band, or any indication the Keetoowah Band received actual notice. Finally, she argues the notices sent to the tribes were inadequate because they contained no information other than Marquises name, date of birth and birthplace, and parents names and dates of birth, and there were no entries regarding any other relatives or the parents birthplaces.

In reliance on In re L. B. (2003) 110 Cal.App.4th 1420, the Alameda County Agency asserts that Mother waived the ICWA notice issue by failing to provide an adequate record on appeal. In that case, the social workers report indicated that the minor might be of Cherokee ancestry, notice was sent to  the three Cherokee tribes,  and responses were received from two of the three Cherokee tribes stating the minor was not eligible. (Id. at pp. 1422-1423.) In response to the parents contention that the juvenile court failed to provide proper ICWA notice, the appellate court concluded that the parents failed to provide a sufficient record to determine whether the juvenile court engaged in additional inquiry regarding the ICWA notice provided. (Id. at pp. 1423-1424.) In particular, the court noted that of the three hearings that took place following the social workers report, the appellate record contained a reporters transcript only from the last hearing. Thus, the court could not fully evaluate what measures the juvenile court may have taken in regard to the claimed errors. (Id. at p. 1424.)

Here, the Alameda County Agencys reports regarding ICWA notification state, According to the case file, the [ICWA] does not apply. As we noted, ante, the appellate record contains no reporters transcripts from any of the numerous hearings held before the Solano County juvenile court prior to transfer of this case to Alameda County. The record before us demonstrates that two of the three Cherokee tribes stated that all five minors were not eligible. As in In re L. B., it is reasonably possible that during one or more of the Solano County hearings, additional information was provided concerning the manner and content of the ICWA notice provided to the tribes. As noted by In re L. B., it is the appellants burden to provide an adequate record for appellate review of his or her claims. (In re L. B., supra, 110 Cal.App.4th at p. 1424, citing Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) Mothers failure to do so waives the ICWA notice issue on appeal.

DISPOSITION

The order is affirmed.

SIMONS, J., Acting P.J.

We concur.

NEEDHAM, J.

STEVENS, J.^*

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] All undesignated section references are to the Welfare and Institutions Code.

^[2] Tatiana, Alexis, Jasmine and T.R. are collectively referred to herein as the four older minors.

^[3] All further rule references are to the California Rules of Court.

Effective January 1, 2007, former rule 1439 was renumbered rule 5.664. Moreover, effective that date, certain Welfare and Institutions Code sections became part of the ICWA notice framework, most notably sections 224.2 and 224.3. Effective January 1, 2008, rule 5.664 was repealed, and the rules pertaining to the ICWA are now found at rule 5.480 et seq.

^[4] Father is not a party to this appeal.

^[5] The record before us contains no reporters transcripts of any of the Solano County Juvenile Court hearings in this matter.

^* Retired Associate Justice of the Court of Appeal, First District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.