In re G.B.

Filed 12/5/08 In re G.B. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

C.A., the presumed father of G.B., appeals from two orders generated by the San Francisco Juvenile Court when it terminated G.B.s dependency: (1) a custody order prohibiting him from visiting G.B., and (2) an amended restraining order prohibiting him from contacting either G.B. or the childs mother. C.A. contends that the juvenile court erred in proceeding when it had not been shown that respondent San Francisco Department of Human Services (Department) had complied with the tribe notifications requirements of the Indian Child Welfare Act (25 U.S.C.  1901 et seq. (ICWA)). He also contends that the record does not contain substantial evidence to support the orders prohibiting him from visiting G.B. We conclude that these contentions are without merit, and we affirm.

BACKGROUND

The nature of the issues raised by C.A., and our resolution of them, does not require summarization of all the particulars of this dependency. The relevant details are as follows:

In February 2006, the Department filed a petition in which it was alleged that G.B. should be declared a dependent child by reason of a number of conditions of neglect and parental failings. As relevant here, it was alleged that: (1) C.A. has a substance abuse problem requiring treatment which affects his ability to parent at this time; (2) The criminal court in Sonoma County has ordered [C.A.] restrained from having any contact with the mother and the minor as a result of charges he is facing for violation of PC  273.5(a), 422, 273(a)(A), and 417(a)(1)[1]; and (3) G.B.s mother has mental health problems which affect her ability to parent at this time. In July, both C.A. and G.B.s mother in effect admitted these allegations, which the juvenile court sustained.

On August 4, 2006, having determined that the ICWA had been satisfied, the court declared G.B. a dependent child and accepted the Departments recommendation that G.B. be placed in the custody of his mother while she completed her pharmaceutical technician training and resided at a treatment facility. By contrast, the case worker advised the court that C.A. has had no contact with this worker, has not complied with any of the services which have been offered to him, and [i]t is not in [G.B.s] best interest to continue a relationship with a man who has threatened to cut him into pieces and who has threatened his maternal grandmother and defied Court orders which told him to stay away from [G.B.]. [C.A.] admitted to this worker that he has a serious drug and alcohol problem. Yet he refuses to get help for his problems. In light of this information, the court ordered that C.A. shall enroll and comply with alcohol treatment program and that he wear [a] SCRAM bracelet, before he gets supervised visitation.

C.A. was present on August 4, but the record does not include a reporters transcript. It must therefore remain a matter of speculation whether the juvenile court was informed that the day before, August 3, the Sonoma County Superior Court had issued a Protective Order In Criminal Proceedings, as authorized by Penal Code section 136.2, directing C.A. to have no contact with G.B.s mother. The order stated that it expires three years from the date of issuance.[2]

By March 2007, the case worker was informing the court that G.B.s mother was described as being in a residential treatment facility. She has completed her job training program and is now working in an externship. She is expected to obtain employment following her externship. She is planning to remain in her program until she completes her training. At that time, she will move to a supportive living situation with [G.B.]. The details of that housing are confidential. G.B. and his mother were described as very well bonded and he is happy in her care.

By contrast, C.A. did not get a SCRAM bracelet until October 2006 and stopped downloading the information from it on February 10, 2007. He never went to any domestic violence program. He began an alcohol assessment . . . many months ago. However, he never returned to complete the assessment and receive appropriate treatment referrals, apparently because he was jailed in Sonoma County for failing a drug test and thus violating a condition of his probation.[3] The case worker detailed numerous failures by C.A. to avail himself of reunification services or complete the requirements of his reunification plan.

The case workers ultimate recommendations were that the dependency be dismissed, the jurisdiction of the juvenile court terminated, and G.B.s mother be awarded full legal and physical custody mother. In response to the form question in the status report, Are there any risk factors with the non-custodial parent that should be taken into consideration in any future visitation/custody hearings in Family Court, the case worker responded with an emphatic Yes, the father has a long history of domestic violence and substance abuse. The child has not seen the father for almost a year. At his young age, that is a substantial amount of time. Additionally, the child saw the father use violence against his mother.

The review hearing was originally scheduled for March 21, 2007, but was continued until August 3, 2007.

On April 23, G.B.s counsel submitted an Application And Affidavit For Restraining OrderJuvenile. The application sought an order prohibiting C.A. from contacting or harassing either G.B. or his mother. The application noted the existence of the Sonoma order, and that it would expire 8/3/09, but also that it protected only the mother, not G.B. The application had attachments in the form of a temporary restraining order issued by the San Francisco Family Court in January 2006 (see fn. 1, ante), and a police incident report of February 13, 2006 showing C.A.s arrest for a violation of that order.

On August 3, G.B.s mother was not present, because, according to her counsel, she is fearful of coming in contact with the father. C.A. was also not present, because, his counsel advised the court [h]e was ordered by the Court to go into rehabilitation where he is right now, and they were unable to transport him today due to logistics.

In opposition to G.B.s restraining order application, C.A. presented testimony from his mother to the effect that C.A., G.B., and G.B.s mother had lived at her house for approximately two years. During that time she observed C.A. with G.B., and saw no sign of violence from him towards G.B. C.A.s counsel argued that the requested restraining order is not necessary, citing three reasons: the Sonoma order was still in effect and covered G.B., there was no evidence C.A. had threatened or harmed G.B., and no evidence since December of 2005 of any behavior of violence from C.A.

Counsel for G.B.s mother spoke briefly in support of G.B.s application. So did counsel for the Department; who reviewed C.A.s history and found it very concerning and I think it [sic] continues to pose a risk to [G.B.]. Counsel for G.B. argued that C.A.s conduct has been erratic in the extreme, and there was a substantial risk to [G.B.] were there to be visitation at this time.

The juvenile court granted G.B.s application for a three-year restraining order in a thoughtful and sensitive ruling: [C.A.] has a serious, serious substance abuse problem and it hasnt been addressed yet. I am hoping that its being addressed now. [] He also in this Courts opinion has a serious problem which has not been addressed at all, as far as I can tell. I am very concerned about the fact that hes not even begun, as far as I can tell, his 52-week batterers program. [] And until those two things are at least begun to be addressed and that [C.A.] has shown the Court and his son and the mother of his son that he is serious about addressing those issues, I consider him to be posing a threat to both of those people.

He is in a bad place right now with his continuing probation violations, his continued inability to stop drinking and stop drugging. Its horrible. Its horrible for him. I am so glad that he is in the Salvation Army program now. And my hope is that he stays there, that he takes advantage of that program, that he works at it really hard, and he gets to a place where I can feel safe in letting him see his son. Right now I dont feel that way.

Its all up to him right now. Its all up to him. This has nothing to do with his mother or his childs mental health issues. It has nothing to do with any of that. It all has to do with him, and I think the sooner he gets that the better off he will be. He needs to look at the man in the mirror and figure out what he needs to do. If he takes care of himself everything else will follow. But I think he does need to show to this Court that he is trying, that he is trying to get a handle on this.

I am going to grant the request for a permanent order. A three-year order . . . [that] . . . [] . . . [] will expire at midnight on August 4, 2010.

The court then move[d] on to the request for dismissal by the Department. Counsel for G.B.s mother argued given the granting of the restraining order . . . that the no visitation request should be granted. Counsel for G.B. concurred that with regard to visitation, the issue is foreclosed by the restraining order. C.A.s counsel responded that C.A. would like to have some contact with his son, was in compliance with his probation orders, and that to cut the thread that still existed was not in [G.B.s] best interest. Counsel for the Department and G.B.s mother closed the argument by noting that C.A. could seek modification of a no visitation order if he could show that he is succeeding in his recovery and thus a substantial change of circumstances. (See Welf. & Inst. Code,  388.)

The court then ordered that dependency is dismissed and jurisdiction of the court is terminated. The court also made a specific finding that visitation at this time . . . is not in [G.B.s] best interest and would be detrimental. A restraining order was filed on August 7. On August 13, the court filed a Custody OrderJuvenileFinal Judgment. On August 23, the court filed a revised version of the restraining order.

C.A. filed a notice of appeal which we treat as perfecting a valid appeal from (1) the order of August 3 terminating the dependency; (2) the custody order of August 13; and (3) the revised restraining order of August 23.

DISCUSSION

Any ICWA Violation Is Moot

C.A. contends that reversal is required because the juvenile court failed to ensure that the Department provided the proper notices required by the ICWA. We do not agree.

The ICWA was enacted by Congress in 1978 to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by establishing specific standards that must be met before an Indian child may be removed for his or her family and placed in an adoptive or foster care placement. (25 U.S.C.  1901-1902; Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30, 32‑37.) The central provision of the ICWA is that In any involuntary proceeding in 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 Indian childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. (25 U.S.C.  1912, subd. (a).)

The Department argues in effect that the ICWA is irrelevant because there was never any proceeding seeking to have G.B. placed in foster care or to have his parents rights terminated. This is viewing the past through rose-colored glasses. The dependency petition filed by the Department had no fewer that 17 allegations of parental neglect or conditions resulting in actual or risk of harm to G.B. Ten of those allegations dealt with G.B.s mothers history of mental illness and its manifestations. G.B. was immediately detained and placed in the custody of his maternal grandparents. Fortunately, it turned out that the mother was able to surmount her difficulties and regain custody of G.B. But this happy ending was never guaranteed. There was certainly the possibility that foster care would be needed and that matters might even lead to terminating parental rights.[4] Thus, we cannot conclude that the ICWA was inapplicable to this dependency.

However, there is related reason why we do not find reversible error. When no effective relief can be granted, an appeal is moot and will be dismissed. [Citation.]   [T]he duty of this court . . . is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.  [Citation.] . . . [W]hen, pending an appeal from the judgment of a lower court, and without any fault of the [respondent], an event occurs which renders it impossible for this court, if it should decide the case in favor of [appellant], to grant him [or her] any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal. [Citations.]   (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1316, citing and quoting Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.)

Even if we were to conclude that the Department failed to comply with what the ICWA required, and that the juvenile court erred in finding otherwise, no effective relief could be granted. We cannot believe that C.A. truly wants the dependency restarted just so that new and better notices could be sent. That is the logic of his argument and the only option we would have. We note that he does not make any argument directly challenging the termination of the dependency. In these circumstances, the ICWA issue as raised by C.A. is moot. (See In re DavidH. (2008) 165 Cal.App.4th 1626, 1633‑1634.) Alternatively, in light of the eventual termination of the dependency and return of G.B.s custody to his mother, any ICWA error would be harmless. (See In re Alexis H. (2005) 132 Cal.App.4th 11, 15-16.)

The Juvenile Courts Orders Are Supported

By Substantial Evidence

C.A. next contends that there was insufficient evidence to support the restraining order prohibiting him from having contact with G.B. and the finding in the custody order that visitation by C.A. would be detrimental to G.B.

Preliminarily, we note that the scope of our review is slightly different from the way C.A. has framed it in his contentions. The standard of review for custody and visitation orders is abuse of discretion. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.) An appellate court also reviews the propriety of the issuance of a restraining order in a dependency case, as with any restraining order, for abuse of discretion. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1512; see Salazar v. Eastin (1995) 9 Cal.4th 836, 850.) Nevertheless, the point is of small practical import. As pointed out by Division Three of this District: The practical differences between the two standards of review are not significant. [E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only  if [it] find[s] that under all the evidence, viewed most favorably in support of the trial courts action, no judge could reasonably have made the order that he did. . . .  [Citations.] (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)[5]

In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: [W]e consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier [of fact] could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.] Our sole function is to determine if any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. (In re Arcenio V. (2006) 141 Cal.App.4th 613, 615.) [A]n appellate court does not assess the credibility of witnesses or reweigh the evidence. [Citation.] Conflicts in the evidence must be resolved in favor of the juvenile courts findings, accepting every reasonable inference that the court could have drawn from the evidence. [Citations.] Thus, we must uphold the juvenile courts factual findings if there is any substantial evidence, whether controverted or not, that supports the courts conclusion. (In re S.C. (2006) 138 Cal.App.4th 396, 415.)

But one point does have a significant impact on our analysis. Because both the restraining order and the custody/visitation issues were decided before the dependency was dismissed, they must be seen as parts of the dependency. Social worker reports in dependency proceedings are legally admissible evidence, despite the fact that a report is itself hearsay and may contain multiple levels of hearsay. (Welf. & Inst. Code,  358, 281; In re Cindy L. (1997) 17 Cal.4th 15, 21-31.) Here, by the time it made its August 4 rulings, the juvenile court had seen almost 50 pages of the case workers reports, starting with the detention report and concluding with the report recommending that the dependency be terminated. Those reports constitute more than ample support for the rulings. It is all in there: C.A.s arrests and run-ins with law enforcement[6]; the incidents of his threats and violent outbursts; the fear he evoked in G.B.s mother; his alcohol and substance abuse problems; his erratic and unsuccessful attempts at dealing with these problems; and his lack of compliance with his reunification plan. These problems led to C.A.s visitation with G.B. being curtailed or halted from the time of G.B.s detention.

Regardless of whether the issue is approached from the direction of abuse of discretion or the avenue of substantial evidence (In re Jasmine D., supra, 78 Cal.App.4th 1339, 1351), there is no basis for overturning either of the challenged orders.

We wish to close this opinion by recording our impression that this is an example of how the dependency program is supposed to operate. The Departments intervention was swift. The services it provided appear to have assisted in G.B.s mother making a remarkable turnabout for her herself and G.B. The dependency was terminated as soon as was consistent with its purpose. Throughout, the juvenile court acted with exemplary impartiality and solicitude for all concerned. We are particularly impressed with the fact that the court joined with counsel for the Department and G.B.s mother in stating that none of them wished to cut the thread between C.A. and G.B., subject to the proviso that C.A. must make an effort toin the juvenile courts wordsget a handle on his problem. We hope C.A. can yet take these words to heart.

DISPOSITION

The custody order and the revised restraining order are affirmed.

_________________________

Richman, J.

We concur:

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Kline, P.J.

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Lambden, J.

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[1] The specified provisions of the Penal Code would appear to encompass charges that C.A. battered G.B.s mother ( 273.5, subd. (a)); inflicted or caused physical or mental harm to G.B. ( 273a, subd. (a)); made a threat of death or great bodily injury ( 422); and brandished a deadly weapon ( 417, subd. (a)(1)). It should also be noted that at the same time C.A. was also restrained from contacting G.B.s mother by a San Francisco order. Both of these restraining orders were of short duration, and each was eventually replaced by an order that would be in effect for several years.

[2] C.A. states in his brief that on August 3 he pled guilty to a misdemeanor violation of Penal Code section 273.5, subdivision (a) in Sonoma, but this is doubtful. The record citations provided show a change of plea form, but it is dated more than a month later, on September 13, 2006, and the Sonoma County judges signature is dated four days after that. The Sonoma court suspended imposition of sentence and admitted C.A. to probation for three years. Among the conditions of his probation were that he (1) serve one year in the county jail, 11 months of which were suspended; (2) not contact G.B.s mother; (3) abstain from alcohol and controlled substances; and (4) complete 52‑week batterer program.

[3] The case worked advised that court that C.A. began probation on 11/28/[06]. He was ordered to stay away from [G.B.s mother] and submit to random drug testing. C.A. tested positive for methamphetamine on 2/21/07. C.A.s probation was revoked, but reinstated with modified conditions.

[4] The ICWA defines foster care placement as any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated. (25 U.S.C.  1903, subd. (1)(i).) The temporary placement of G.B. with his grandparents would clearly seem to be within this definition. That the placement was pursuant to judicial order would appear to qualify it as involuntary for purposes of section 1912 of the ICWA quoted in the text.

[5] We also note that our discussion about mootness would appear to be equally applicable to C.A.s attack on the restraining order issued by the juvenile court. Even if we were to conclude that this order was somehow defective, that conclusion would in no way impair the validity of the restraining order issued by the Sonoma Superior Court. Apart from the fact that the San Francisco order would be effective until August 2010, while the Sonoma order would expire in August 2009, the ineluctable fact is that nothing could be achieved on this appeal that would exempt C.A. from the Sonoma order.

[6] In one report the case worker characterized C.A.s criminal history as extensive, including attempted murder, burglary and spousal abuse.