In re Anthony S.

Filed 8/27/08 In re Anthony S. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County. Marilyn H. Mackel, Referee. Affirmed in part, reversed in part, and remanded to the juvenile court with directions.

Karen B. Stalter, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.

____________________

Appellant Toni S. (mother) appeals from a juvenile court order issuing a restraining order against her and terminating her parental rights to Anthony S. (Anthony, born Apr. 1992), F.R. (F.R., born Apr. 1998), and Francisco D. (Francisco, born July 2005) (collectively the minors). Mother argues that the juvenile courts order terminating her parental rights must be reversed because respondent Department of Children and Family Services (DCFS) failed to provide proper notice as required by the Indian Child Welfare Act (ICWA) (25 U.S.C.  1901 et seq.). Regarding the restraining order, mother contends that the juvenile courts order is not supported by substantial evidence.

As for mothers complaint that DCFS did not comply with ICWAs notification requirements, DCFS concedes in its respondents brief that notice was deficient. That error compels a limited reversal of the juvenile courts order terminating mothers parental rights. This matter is remanded back to the juvenile court for compliance with ICWAs notice requirements.

The juvenile courts issuance of a permanent restraining order against mother is supported by substantial evidence. Accordingly, we affirm that order.

FACTUAL AND PROCEDURAL BACKGROUND

Dependency Petition and Detention

On January 23, 2006, DCFS received a referral alleging that the minors were victims of general neglect and that on several occasions, mother picked up F.R. early from school and left her and Francisco locked in a car in the parking lot of her place of employment while she went to work for over four hours. F.R. confirmed that mother had left her and Francisco alone in mothers car while mother worked, and the child said that she sometimes urinated on herself because she was not allowed to leave the car.

An emergency response social worker and law enforcement responded to the home on January 25, 2006. Mother appeared intoxicated and was unable to gather the minors belongings. She denied ever leaving the minors in the car. DCFS detained the minors with their godmother, Shirley S. (Shirley).

On January 30, 2006, DCFS filed a Welfare and Institutions Code section 300[1]petition alleging that on numerous occasions, mother placed F.R. and Francisco in an endangering situation by leaving them alone in a locked vehicle without supervision for over four hours. The petition also alleged that mother established a detrimental, endangering, and hazardous home environment for the minors in that, on or about January 25, 2006, the home was found to contain broken bunk beds and debris on the mattresses and numerous objects and debris on the floor, and that it had a strong, pungent odor.  In addition, the petition alleged that on January 25, 2006, mother was intoxicated while the minors were in her care.

At the detention hearing, the juvenile court ordered the minors detained in Shirleys home. Mother was granted monitored visitation.

February 28, 2006, Pretrial Resolution Conference

For the pretrial resolution conference, DCFS reported that Anthony had informed the social worker that mother would either take him or F.R. out of school early to watch Francisco. Anthony stated that mother behaved in a paranoid manner; she told Anthony that people were listening to her.

Mother admitted to the social worker that she had left F.R. and Francisco in the car while she worked. She reported that she had taken medication in the past for depression, yet she still felt depressed at times.

At the hearing, mothers attorney indicated that mother may have American Indian heritage and provided a parental notification of Indian status form signed by mother, indicating that her great-great grandmother had been born in Alabama and had Creek and Cherokee Indian heritage. Thus, the juvenile court ordered DCFS to provide notice to the Cherokee and Creek Tribes, as well as the Bureau of Indian Affairs (BIA) and the Department of the Interior.

The juvenile court then struck the allegation regarding mother alleged intoxication, but sustained the remainder of the section 300 petition. The children were ordered suitably placed in Shirleys home. The juvenile court ordered reunification services for mother, including parenting education, homemaking demonstration services, individual and conjoint counseling, and five random, consecutive drug/alcohol tests. In so doing, the juvenile court explained to mother that a missed test amounted to a dirty test, and ordered DCFS to request an ex parte hearing if mother missed a test or tested positive. Furthermore, the juvenile court ordered monitored visitation for mother; Shirley was permitted to monitor the visits and DCFS had the discretion to liberalize the visits.

April 3, 2006, Ex Parte Hearing

Mother failed to drug test on February 24 and 28, 2006. She missed two more tests on March 15 and 30, 2006. The parties stipulated that mother had failed to test and, as a result, mother was ordered to complete a drug treatment program, including random drug and alcohol testing.

August 10, 2006, Six-month Review Hearing

For the six-month review hearing, DCFS provided an update regarding its compliance with the juvenile courts order that notice be sent to the identified Indian tribes as well as to the BIA.

DCFS also reported that a referral had been made in early May 2006 regarding physical abuse of Anthony by mother in Shirleys home. While the referral was unsubstantiated, Shirley was no longer willing to monitor mothers visits with the minors.  Since that time, mother had not had any visits with the minors and had not contacted DCFS to arrange visits.

Despite being given referrals to all programs on multiple occasions, mother still had not enrolled in any court-ordered programs and continued to fail to appear for random drug tests.

Anthony and F.R. were receiving weekly individual counseling. In April 2006, the therapists reported that Anthony had been greatly affected by mothers physical and emotional abuse and neglect, and F.R. had provided detailed information about the traumatic events, including physical abuse and neglect, she had to endure by mother. Anthony told his therapist that he was worried that mother was close to having a mental breakdown and he did not want to return to her care until she received help. F.R. said that she did not want to live with mother until mother was committed to making drastic changes in her life and was able to provide a stable living environment.

Meanwhile, Shirley had planned Anthony and F.R.s first birthday party in five years. When mother learned of it, she tried to forbid the children from inviting their friends. Shirley did not allow mother to uninvite the childrens friends. Mother did not attend the party.

Also, Shirley arranged for a surprise eighth grade graduation party for Anthony, but mother did not attend.

At the hearing, concerned with mothers failure to participate in a drug treatment program, her many positive drug/alcohol or missed tests, and her inappropriate behavior during visitation, the juvenile court restricted mother to monitored visits at DCFSs office. It also indicated that it was not likely to continue mothers services. When Shirley asked the juvenile court to allow mother to attend the minors baptism on Sunday, the juvenile court agreed only after confirming with mother that she would comport [her]self appropriately.

The matter was continued for a contested hearing.

September 14, 2006, Contested Six-month Review Hearing

DCFS reported that Shirley had held the baptism up for an hour while they waited for mother, who could not be found and who failed to attend.

Also, in early September 2006, mother waited in the clinic waiting room to see the minors after their therapy appointments. When Shirley informed the receptionist that mother was not authorized to visit the children in that setting, mother locked herself in the bathroom for half an hour, confronted Anthony and demanded to know what he said to the therapist, and was finally escorted out of the building by security.

Additionally, at around the same time, mother showed up to the church for Franciscos dedication ceremony and sat in the back for an hour waiting to talk to the minors.  She finally left the church after asking the pastor for money and food.

Still, mother failed to contact DCFS to arrange visitation with the minors. She had, however, contacted DCFS to request a bus pass, which she never picked up.

At the hearing, the juvenile court recalled that it had changed its order to allow mother to attend the minors baptismal. The juvenile court was disappointed by her behavior, which it characterized as quite disturbing. The juvenile court then reiterated its prior order for monitored visitation at DCFSs office.

The matter was continued.

October 18, 2006, Continued, Contested Six-month Review Hearing

Mother had not contacted the minors or DCFS since the last hearing.

At the hearing, the juvenile court found that DCFS had properly noticed the Cherokee and Creek tribes, as well as the BIA, but indicated that it did not have the original return receipts of mailing. Thus, DCFS was ordered to notice the Cherokee tribes and provide copies of the original notices and return receipts. The juvenile court found that there was no Creek heritage, but the evaluation regarding Cherokee heritage was pending.

The juvenile court determined that mother was not in compliance with her case plan and terminated reunification services. It ordered that mothers visits remain monitored at DCFSs office.

The case was continued for a progress hearing regarding ICWA notice.

December 18, 2006, Progress Hearing

DCFS reported that in November 2006, mother contacted Shirley and stated that she needed to borrow the minors in order to obtain a Section 8 housing voucher for an apartment.  When Shirley refused, mother hung up on her.

Attached to the DCFS report were the notices sent to the Cherokee tribes and receipts of mailing.

At the hearing, the juvenile court found that ICWA notice was proper and that ICWA did not apply. The matter was then set for a section 366.26 hearing.

April 19, 2007, Section 366.26 Hearing

Anthonys therapist reported that Anthony felt safe in Shirleys home. While the therapist was concerned that Shirley did not maintain a working telephone landline in the home, Shirley explained that she intermittently disconnected the landline to stop inappropriate telephone calls by mother. Anthony had been seen by a psychiatrist in February 2007, was diagnosed with depression, and was prescribed medication.

F.R.s therapist reported that while F.R. had been in mothers care, F.R. had witnessed sexual activities between mother and men. It was believed that those experiences related to F.R.s recent inappropriate, provocative behavior toward men.

The therapists held a conjoint session with Anthony, F.R., and Shirley to discuss the childrens feelings about mothers recent suicide attempt. Shirley expressed her commitment to the children during the session. During her individual session the following week, F.R. expressed concern that she might turn out crazy like her mother in the future and try to kill herself as well.

Mother had not visited the minors, but she sporadically called Shirley to ask about them.

The hearing was continued to allow DCFS to provide notice to mother of its recommendation that parental rights be terminated. Anthony, who was present in court, indicated that he agreed to Shirleys adoption of him.

June 4, 2007, Review of Permanent Plan

Shirley reported that mother had recently moved closer to Shirleys home. Mother originally dropped by the house without calling, but this had stopped. She had not visited the minors. She had called F.R. a few days after her birthday, which she had forgotten. Although mother tried to sing Happy Birthday to F.R., F.R. handed the telephone to Shirley because she did not want to speak with mother.

Anthony and F.R. stated that they knew that mother had problems and needed to get well. They understood that they would continue to be able to see mother once the adoption was completed.

At the hearing, the juvenile court found that the permanent plan of adoption was appropriate and ordered it to continue as the plan for the minors.

August 21, 2007, Continued Section 366.26 Hearing

Mother had not responded to DCFSs attempts to contact her. Because DCFS needed to complete a due diligence search for two of the minors fathers, the matter was continued.

December 3, 2007, Continued Section 366.26 Hearing

Mother still had not visited the minors. An adoption home study for Shirleys home was approved. F.R. and Anthony indicated that they wanted to be adopted by Shirley.

At the hearing, the minors attorney requested that the juvenile court issue a restraining order against mother. The attorney explained that mother had shown up at the minors school last week in spite of the juvenile courts order that she only participate in monitored visits at the DCFS office. The application and affidavit for restraining order prepared by the minors attorney indicated that mother had assaulted or attempted to assault the minors and/or their caregiver, had caused them to fear physical or emotional harm, and had stalked them. In the Description of conduct section of that form, the attorney represented that (1) although there was a court order for only monitored visits, mother had shown up at the minors schools on November 28, 2007, and took them from school without permission and unsupervised; (2) mother repeatedly made promises to the minors that they were returning to her care; and (3) mother had unresolved mental health issues that continued to place the minors at risk.

Mother opposed the request.  Regarding the date when she took the minors from school, mother claimed that she was trying to help Shirley; Shirleys car was not working and mother picked up F.R. from school to take her to her counseling appointment.

The minors attorney responded by pointing out that while Shirleys car was not working, she had not asked mother to take the children.

Mothers attorney then asserted that mother was in compliance as she had completed a parenting education class and was participating in counseling. And, the minors had not been physically harmed by what had occurred on November 28, 2007.

The minors attorney disagreed, pointing out that the minors were harmed by mothers continuing false promises.

Ultimately, the juvenile court issued a temporary restraining order against mother.  It found that [t]here are mental health issues . . . and mother knows full well that to go to the childrens school and to remove them . . . is entirely inappropriate. Then, speaking directly to mother, the juvenile court remarked: [T]o remove the children from the school is simply serious. It is a violation of the orders of this court. It is detrimental to your children. You might not recognize the  harm, but it is harmful, it is stressful, it certainly never should have occurred. . . .  [] . . . Given the posture of the case and given the prior history and this current conduct, the court is absolutely going to issue a restraining order.

The matter was continued for a hearing regarding a permanent restraining order and the section 366.26 hearing.

December 12, 2007, Hearing

At the continued hearing, the juvenile court issued a three-year permanent restraining order against mother. In so doing, the juvenile court relied upon the facts that (1) mother had taken the minors from school in violation of court orders and not at Shirleys request; (2) mothers promises to the minors that they were going to be returned to her care were detrimental and confusing; and (3) mother suffered from unresolved mental health issues.

Regarding the section 366.26 hearing, the juvenile court found that Anthony consented to the termination of parental rights. It also noted that while Shirley agreed to the restraining order, she also wanted the minors to continue their relationship with mother so long as it was in their best interest.

Parental rights were terminated. In light of the three-year permanent restraining order, the juvenile court ordered that Shirley have discretion to allow monitored contact as she determined was in the best interest of the minors.

Appeal

Mothers timely appeal from the order terminating her parental rights and from the juvenile courts issuance of a restraining order ensued.

DISCUSSION

I. ICWA Notice

A. ICWA Notice Requirements

The ICWA, enacted by Congress in 1978, is intended to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families. [Citation.] The 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, a most important resource. [Citation.]

The ICWA confers on tribes the right to intervene at any point in state court dependency proceedings. [Citations.] Of course, the tribes right to assert jurisdiction over the proceeding or to intervene in it is meaningless if the tribe has no notice that the action is pending. [Citation.] Notice ensures the tribe will be afforded the opportunity to assert its rights under the [ICWA] irrespective of the position of the parents, Indian custodian or state agencies. [Citation.] [Citation.] (In re Karla C. (2003) 113 Cal.App.4th 166, 173174; see also In re H.A. (2002) 103 Cal.App.4th 1206, 1210.)

B. Notice Was Defective Under the ICWA

The ICWA contains the following notice provision: In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: Provided, That the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding. (25 U.S.C.  1912(a).)

As DCFS concedes, the ICWA notice requirement was triggered. (See, e.g., In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1408 (Antoinette S.); In re Nikki R. (2003) 106 Cal.App.4th 844, 848.) Unfortunately, there were irregularities with the notices. In particular, DCFS did not provide the juvenile court with copies of the notices that it sent to the Creek tribes. (25 U.S.C. 1912; Cal. Rules of Court, former rule 1439(f).) Absent those copies, it is impossible to determine whether the tribes were provided with proper and adequate information. Moreover, the notices sent to the Cherokee tribes omitted critical information, including mothers middle name and place of birth as well as mothers great-great grandmothers name. Thus, DCFS correctly concedes that its failure to provide sufficient notice violated the ICWA. That error compels reversal of the order terminating mothers parental rights to allow for proper compliance with the ICWA notice requirements. (In re Brooke C. (2005) 127 Cal.App.4th 377, 384385 [holding that the failure to comply with ICWAs notice requirements subjects an order terminating parental rights to reversal]; In re Nikki R.,supra, at pp. 855856.)

Additionally, the lack of statutory notice requires a limited remand to the juvenile court for the DCFS to comply with notice requirements of the ICWA, with directions to the juvenile court depending on the outcome of such notice. If, after the Creek and Cherokee Tribes receive proper notice under the ICWA and copies of those notices are supplied to the juvenile court, the minors are determined not to be Indian children and the ICWA does not apply, prior defective notice becomes harmless error, and the order terminating parental rights can be reinstated. (Antoinette S., supra, 104 Cal.App.4th at pp. 14131414.)

II. Restraining Order

Substantial evidence[2]supports the juvenile courts order issuing a permanent restraining order against mother. (In re Cassandra B. (2004) 125 Cal.App.4th 199, 210211.)

Section 213.5, subdivision (a), authorizes the juvenile court to issue restraining orders to protect children who are the subjects of a dependency proceeding, their caretakers, and other children living in the home. (Ibid.; Cal. Rules of Court, rule 5.630(a), (c)-(d).) Here, mother contends that substantial evidence did not support the issuance of the restraining order. We disagree.

First, mother had a documented history of mental and/or emotional problems, including a history of depression and use of psychotropic medication. In April 2006, Anthony told his therapist that he was worried that mother was close to having a mental breakdown. In April 2007, Anthony, F.R., and Shirley participated in a conjoint counseling session to discuss mothers recent suicide attempt. Yet, mother was not participating in individual counseling and it was unknown whether she was compliant with a medication regimen. Sadly, mother refused to accept the fact that she had mental issues that needed to be treated.

Second, mother failed to participate in random drug and alcohol testing and in a substance abuse treatment program. As she had been advised by the juvenile court, mothers missed tests amounted to dirty tests; yet, mother still failed to address this issue.

Third, mother repeatedly violated the juvenile courts visitation orders. In August 2006, the juvenile court restricted mother to monitored visits at DCFSs office. Despite that explicit order, in early September 2006, mother waited in a clinic waiting room to see the minors after their therapy appointments. When Shirley informed the receptionist that mother was not authorized to visit the children in that setting, mother locked herself in the bathroom for half an hour, confronted Anthony and demanded to know what he said to the therapist, and was finally escorted out of the building by security. At around the same time, mother showed up at the church for Franciscos dedication ceremony and sat in the back for an hour waiting to talk to the children.

In April 2007, Shirley reported that she intermittently had to disconnect her telephone line to stop inappropriate calls from mother. And, mother would stop by Shirleys home without calling.

Perhaps the most disturbing incident and violation of the juvenile courts order regarding visitation occurred on November 28, 2007, when mother picked up the minors from school without permission and took F.R. to a counseling appointment. Shirley left mother several messages that day asking her to return the minors and letting her know that she was going to call the police. Although Shirleys car was not working, she never asked mother to pick up the children. As a result, Shirley was afraid of what mother might do next.

This evidence supports the juvenile courts order issuing a restraining order against her.

Mother advances two arguments in support of reversal. First, she claims that the juvenile court erroneously determined that the November 28, 2007, incident was the second time that mother had removed the minors from school without permission. Mothers point is irrelevant. Regardless of whether this was the first or second incident, it is evident that mother has ignored the juvenile courts orders regarding appropriate contact with the minors.

Second, mother claims that there was no evidence that she had physically injured F.R. during the November 28, 2007, incident. Again, this argument is not persuasive. Violent behavior or threat of violent behavior is not a prerequisite to imposing a restraining order under section 213.5. (In re Cassandra B., supra, 125 Cal.App.4th at pp. 210212.) And, as the juvenile court found, F.R. and her brothers were emotionally harmed by mothers repeated promises that the minors were going to be returned to her care. These promises were confusing and detrimental to the minors well-being, and warranted the imposition of a restraining order.

DISPOSITION

The juvenile court order terminating mothers parental rights to the minors is reversed and the matter is remanded to the juvenile court with directions that the juvenile court shall direct DCFS to comply with the notice provisions of the ICWA. If the minors are determined to be Indian children, a new hearing shall be held. If they are determined not to be Indian children, the order terminating parental rights shall be reinstated, subject to the juvenile courts consideration of any circumstances that may have arisen during this appeal that may affect the outcome.

The juvenile courts order issuing a permanent restraining order against mother is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________________, J.

ASHMANN-GERST

We concur:

_______________________________, P. J.

BOREN

_______________________________, J.

DOI TODD

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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] We recognize that some courts have applied the abuse of discretion standard of review. (See, e.g., In re Brittany K. (2005) 127 Cal.App.4th 1497, 1512.) The practical differences between the two standards are not significant (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351), and under either standard, we would affirm the juvenile courts order.