In re S.P.

Filed 12/15/08 In re S.P. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Christian F. Thierbach, Judge. Affirmed.

Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.

Leslie A. Barry, under appointment by the Court of Appeal, for Minors.

This is an appeal by R.W. (hereafter mother) from the trial courts disposition on a Welfare and Institutions Code section 300^[1]petition. Riverside County Department of Public Social Services (DPSS) filed the petition in April 2007 with respect to mothers five children after mother was arrested for the alleged murder of an elderly woman who died in mothers home while under the care of mother and her husband, T.W. (the father of the youngest child, T.W., Jr.). Mother does not dispute the facts giving rise to the dependency and therefore we will not recount those circumstances other than to note that DPSS received a referral on the children after the elderly womans death. During the investigation of that referral DPSS found the home in which the children lived with mother to be in filthy condition. In addition, the oldest child, S., had a black eye and red strap marks across her back, all reportedly inflicted by mother.

In this appeal mother challenges the disposition order with respect to S. and C., her two older children, pursuant to which the trial court placed them with their noncustodial father (K.B.) and ordered that upon filing of a family law order awarding sole physical custody of S. and C. to K.B., the dependency be terminated. Mother also claims that the trial court improperly delegated authority to DPSS to determine whether visitation would occur between mother and her three other children when the court ordered that visitation be as directed by DPSS, and that DPSS failed to give proper notice under the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) with respect to those three children. We conclude mothers claims are meritless, and therefore we will affirm the disposition.

DISCUSSION

In challenging the disposition regarding S. and C., mother contends that the trial court failed to make the findings required under section 361.2 before placing the children in the custody of their noncustodial father. We disagree.

1.

COMPLIANCE WITH SECTION 361.2

At the detention hearing on April 17, 2007, the trial court removed S. and C. from mothers custody and placed them in Las Vegas, Nevada, in the custody of their father, K.B., pending the jurisdiction hearing, which the trial court set for May 8, 2007. After several continuances, the trial court conducted a combined jurisdiction and disposition hearing on November 7, 2007. At the conclusion of that hearing, the trial court found that K.B. desired custody of S. and C. and that S. and C. were not residing [with him] at the time that the events or conditions arose that brought [them] within the provision[s] of Section 300. Therefore, the trial court awarded sole physical custody of S. and C. to K.B. in accordance with section 361.2.

Section 361.2, subdivision (a) states, When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child. ( 361.2, subd. (a), emphasis added.)

Mother contends that the above emphasized language requires the court, before placing a child with the noncustodial parent, to find that the placement would not be detrimental to the child. Mothers contention is not supported by the express language of the statute, which as quoted above, states that a finding of detriment to the child is required only if the court does not place the child with the noncustodial parent. Mother cites In re Austin P. (2004) 118 Cal.App.4th 1124 (Austin P.), as support for her assertion that the trial court must make a finding of no detriment before placing S. and C. with their father. Mother is mistaken.

The issue in Austin P. was whether, absent a finding of detriment, a noncustodial parent is presumptively entitled to sole legal and physical custody of the child and termination of dependency jurisdiction under section 361.2. The trial court in that case had placed the child with the noncustodial father,^[2]but had continued its jurisdiction over the child rather than terminate the dependency. (Austin P., supra, 118 Cal.App.4th at p. 1128.) The social services agency argued, and Division One of this court agreed, that the process set out in section 361.2 involves two steps. In the first step, set out in subdivision (a) of section 361.2, the parent is presumptively entitled to have the child temporarily placed with him or her in the absence of a detriment finding. In the second step, set out in subdivision (b) of section 361.2, a court may not terminate jurisdiction [under section 361.2, subdivision (b)(1)] until it analyzes whether ongoing supervision of the child is necessary. (Austin P., at pp. 1128-1129.)

In this case, the trial court placed S. and C. with K.B., the noncustodial parent who had requested custody. That placement did not require the trial court to make a finding of detriment because K.B. was presumptively entitled to have the children temporarily placed with him in the absence of a detriment finding. (Austin P., supra, 118 Cal.App.4th at p. 1128.) In other words, unless evidence was produced to show potential detriment, the trial court was not required to make any finding on the issue. No evidence was presented on the issue of detriment in this case at the time of the detention hearing, and therefore the trial court was required to place both children with K.B., their noncustodial father.

Mother contends that a detriment finding is required under section 361.2, subdivision (c) which states, The court shall make a finding either in writing or on the record of the basis for its determination under subdivisions (a) and (b). Absent evidence of detriment, or some other cogent objection to placement with the noncustodial parent, the only finding necessary to support a determination under subdivision (a) of section 361.2 is that there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. ( 361.2, subd. (a).) The trial court made that finding in this case. No other finding is necessary, unless evidence is presented to show that the placement would be detrimental to the child. To the extent Austin P., or any other case, suggests otherwise we disagree with the holding.

Mother also contends that the trial court should have continued dependency jurisdiction after awarding K.B. sole physical custody of S. and C. at the jurisdiction and disposition hearing. As described in Austin P., this is the second step in the section 361.2 analysis, and it requires the court to decide whether there is a need for ongoing supervision. If there is no such need, the court terminates jurisdiction and grants that parent sole legal and physical custody. If there is a need for ongoing supervision, the court is to continue its jurisdiction. (Austin P., supra, 118 Cal.App.4th at p. 1135.)

Section 361.2, subdivision (b) sets out three options after the court places a child with the noncustodial parent. First, the court may [o]rder that the parent become legal and physical custodian of the child and terminate jurisdiction after filing the order in any domestic relations or family law proceeding pending between the parents. ( 361.2, subd. (b)(1).) Alternatively, the court may [o]rder that the parent assume custody subject to the jurisdiction of the juvenile court and require that a home visit be conducted within three months. In determining whether to take the action described in this paragraph, the court shall consider any concerns that have been raised by the childs current caregiver regarding the parent. After the social worker conducts the home visit and files his or her report with the court, the court may then take the action described in paragraph (1), (3), or this paragraph. However, nothing in this paragraph shall be interpreted to imply that the court is required to take the action described in this paragraph as a prerequisite to the court taking the action described in either paragraph (1) or paragraph (3). ( 361.2, subd. (b)(2).) Finally, the court may [o]rder that the parent assume custody subject to the supervision of the juvenile court. In that case the court may order that reunification services be provided to the parent or guardian from whom the child is being removed, or the court may order that services be provided solely to the parent who is assuming physical custody in order to allow that parent to retain later custody without court supervision, or that services be provided to both parents, in which case the court shall determine, at review hearings held pursuant to Section 366, which parent, if either, shall have custody of the child. ( 361.2, subd. (b)(3).)

The trial court in this case, as previously noted, selected the first option set out above, and that resulted in termination of the dependency. Mother contends it was error to terminate jurisdiction given her testimony regarding K.B.s numerous failings. In particular, mother told the social worker and also testified at the jurisdiction and disposition hearing that, among other things, K.B. committed acts of domestic violence against her during the six years she and he were together, and in the last year of their relationship he was physically abusive almost daily. In addition, he drank to excess a lot, and once had to be hospitalized for alcohol poisoning; he had been in a psychiatric ward after overdosing; although he claimed he had stopped using methamphetamine some time ago, he relapsed in 2003, or 2004; he only visited the girls very, very little, and only saw them over spring break in 2007; and that as a juvenile he had committed a murder.

In the reports for the jurisdiction and disposition hearing, the social worker not only recounted mothers claims but also set out the details of her interview with K.B. Among other things, K.B. admitted he had engaged in domestic violence while living with mother, although as reported by the social worker, he stated there had only been a single incident in which mother tried to hit him with a metal baseball bat and he defended himself. He also stated that he had last used methamphetamine about nine years ago, and admitted that he once had overdosed. He also acknowledged that he was evaluated by a psychiatrist who apparently concluded that K.B. suffered from depression brought on by his drug use. K.B. denied mothers claim that he committed murder as a child, but did admit that he had been convicted of driving with a suspended license. He also denied that he had an active bench warrant. In addition to mothers complaints and K.B.s statement, the social worker reported that S. and C. like living with their father because the home is clean, they are all nice, and [S.] stated she feels safer. Despite expressed concern that K.B. and his wife have bench warrants, the wifes for a felony, DPSS recommended in the report that the court award K.B. sole physical custody of S. and C., and upon the filing of a family law order that he also be awarded legal custody of both girls and that the dependency terminate. In addendum reports, the social worker recommended that K.B. be granted sole physical custody and joint legal custody of S. and C., and that the trial court find that he comes within section 361.2. The social worker also reported that Las Vegas Police Department conducted a welfare check on S. and C., at the social workers request, and reported that both children appeared healthy and safe and that the stepmother was not living in the home with K.B.

In addition to the information contained in her report, the social worker also testified at the jurisdiction and disposition hearing. In her testimony, the social worker confirmed that she was aware of mothers claims about K.B., and had recounted those claims in her reports. The social worker was not concerned about S. and C. living with their father because he had completed a substance abuse program in 1998 and there was no evidence, other than mothers claim, that he had used drugs since then. In addition, after he learned that his current wife had an outstanding felony warrant, K.B. asked her to move out of the home, and her absence from the family home was confirmed when Las Vegas Police Department conducted their safety check. Although K.B. intends to reunite with his wife, he told the social worker that he will not do so until the two warrants are cleared up. The social worker also explained that K.B. was last arrested in 1997, and that arrest did not result in a disposition. Finally, the social worker testified that S. and C. love living with their father, and do not want to leave. Moreover, their grades at school have improved. Neither S. nor C. reported any violence or drug use in their fathers home. The social worker did acknowledge that K.B.s drivers license had been suspended and might still be suspended, but a family member drives when he comes to California for court.

On appeal we review the trial courts order under section 361.2 to determine whether it is supported by substantial evidence. (See Austin P., supra, 118 Cal.App.4th at p. 1134, in which the court held that substantial evidence supported the trial courts order under section 361.2, subdivision (b) to continue jurisdiction.) We conclude that the evidence recounted above, constitutes substantial evidence to support the trial courts order under subdivision (b)(1) of section 361.2 awarding physical custody of S. and C. to K.B. and terminating dependency jurisdiction. Because the order is supported by substantial evidence, we must conclude that the trial court did not abuse its discretion when it selected the option specified in section 361.2, subdivision (b)(1) as the disposition for S. and C.

2.

VISITATION ORDER

Mother contends that the trial courts visitation order with respect to her three other children is improper because it delegates authority to the social worker to determine not only when and where visitation will occur, but whether it will occur at all. DPSS contends that mother has forfeited this claim because she did not object to the visitation order in the trial court. Although forfeiture applies in dependency matters (see In re S.B. (2004) 32 Cal.4th 1287, 1293), we address the issue in order to forestall any future claims.

The trial courts disposition states, among other things, that [v]isitation between the parents and the children to be as directed by DPSS, shall be supervised. While incarcerated, shall be pursuant to the rules and regulations of the institution.^[3]

A court may not delegate its discretion to determine whether any visitation will occur, but it may delegate decisions such as the time, place and manner of visitation. (In re Randalynne G. (2002) 97 Cal.App.4th 1156, 1164, superseded by statute on another ground as stated in In re S.B., supra, 32 Cal.4th at pp. 1294-1295.) As stated in [In re] Jennifer G. [(1990) 221 Cal.App.3d 752], the ministerial tasks of overseeing visitation as defined by the juvenile court can, and should, be delegated to the entity best able to perform them, here the department of social services. [Citation.] Such matters as time, place and manner of visitation do not affect the defined right of a parent to see his or her child and thus do not infringe upon the judicial function. [Citation.] (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374 (Moriah T.).) [T]he frequency and length of visits are simply aspects of the time, place and manner of visitation. Accordingly, the juvenile court may grant to the county agency the discretion to determine the frequency and length of visitation ordered by the court. (Id. at pp. 1376-1377.)

The order at issue here, although terse, nevertheless addresses the critical issue of whether visitation shall occur. The order states that visitation . . . to be as directed by DPSS. As the Fifth District explained in In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009, [d]espite dictum to the contrary in In re Jennifer G.[, supra,] 221 Cal.App.3d [at p.] 757, most courts, including ours [citation], agree the visitation order need not specify the frequency and length of visits. Such specificity is at odds with the purposes and practical necessities of a visitation order intended to protect the well-being of a dependent child while both maintaining ties between the child and parent and providing the parent with an opportunity to demonstrate why his right to custody and care of the child should be reestablished. [Citation.] Accordingly, we must conclude that the trial court properly ordered visitation between mother and the three younger children, and properly delegated the details of time, place, and manner to DPSS.

3.

ICWA NOTICE

Mother asserts various purported failures by the trial court to comply with the requirements of ICWA as a result of which she contends we must reverse the disposition order. At the outset we note that ICWA does not apply to S. and C., even though their father claims Indian ancestry, because they were placed with their father. ICWA applies only when the dependency proceeding involves foster care placement or parental rights termination. (25 U.S.C. 1912(a); In re Alexis H. (2005) 132 Cal.App.4th 11, 14.)

DPSS claims that ICWA also does not apply to J. and L. because neither mother nor their father, J.E., have Indian ancestry. Mother told the social worker that she has Indian ancestry because her paternal grandmother was born in Zacatecas, Mexico. ICWA applies only to Indian tribes recognized by the United States government and located within the United States. (25 U.S.C. 1903(8); In re A.C. (2007) 155 Cal.App.4th 282, 287.) Thus, mothers claimed ancestry did not trigger ICWA compliance.

With respect to J.E., DPSS requests that we augment the record to include the social workers report for the postjudgment six-month review hearing on December 12, 2007. That report includes the social workers statement that on November 29, 2007, J.E. stated that he does not have Native American ancestry. That report was filed on November 30, 2007, after the disposition hearing at issue in this appeal and pertains to a postjudgment hearing. Arguably we should deny the request because the report is hearsay and there is no showing that mother and J.E. had an opportunity to cross-examine the social worker. (See In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1416 (Sabrina H.).) DPSS also requests that we take judicial notice of the clerks minutes of the February 5, 2008, six-month review hearing, which reflect that mother and J.E., were present and represented by counsel at that hearing and therefore both had the opportunity to object to the social workers report and to cross-examine the social worker.

Mother objects to both requests for judicial notice on the ground that the social workers report and the clerks minutes constitute postjudgment evidence and as such are inadmissible under In re Zeth S. (2003) 31 Cal.4th 396. We do not share mothers view. As our colleagues in Division One of this court observed in Sabrina H., Zeth S. was primarily concerned with postjudgment evidence aimed at a reconsideration of the lower courts factual findings and ultimately a reversal of the judgment. [Citations.] Here, the postjudgment evidence proffered by Agency is aimed at showing the issue is moot, and it does not seek a reversal of the judgment. (Sabrina H., supra, 149 Cal.App.4th at p. 1416.)

Like the social service agency in Sabrina H., DPSS offers the postjudgment evidence in this case to show that the ICWA issue is moot as to J. and L. because their father, J.E., does not have Indian ancestry. For that limited purpose, we grant the request of DPSS to augment the record on appeal to include the social workers report filed on November 30, 2007, and also grant the request to take judicial notice of the clerks minutes of the six-month review hearing on February 5, 2008. Based on that evidence, we conclude that the ICWA issue is moot as to both J. and L. because the trial court has determined that J.E. does not have Indian ancestry. That is precisely what we would have directed the trial court to do if we had agreed with mothers claim and had remanded the matter to the trial court. Because the trial court has conducted the pertinent inquiry, remand is unnecessary.

We agree with mother that the ICWA notice requirements apply to T.W., Jr., because his father, T.W., claims to have Indian ancestry. Based on that claim, the social worker stated in the report for the jurisdiction and disposition hearing that DPSS sent the pertinent notice to the tribes in question, as evidenced by Attachment B to the report. According to the social workers report, Attachment B contains Certified Mail Receipts and JV135 submitted on behalf of [T.W., Jr.] The copy of Attachment B in the clerks transcript contains the certified mail receipts, but not the JV-135. Mother asserts that we must reverse the disposition and remand this matter to the trial court because the record does not include a copy of the JV-135 (Notice of Involuntary Child Custody Proceedings for an Indian Child), and therefore we cannot determine whether DPSS complied with its duty to provide notice to the pertinent Indian tribes. There is no dispute that notice is required, but we do not agree with mother that the record is insufficient to demonstrate compliance.

ICWA, as pertinent here, states that when a child subject to a dependency proceeding is or may be of Native American heritage (referred to in ICWA as an Indian child), each tribe of which the child may be a member or eligible for membership must be notified of the dependency proceeding and of the tribes right to intervene in the proceeding. (25 U.S.C. 1912(a).) If the childs tribe cannot be determined, notice must be sent to the Secretary of the Interior, via the Bureau of Indian Affairs. (25 U.S.C. 1912; Cal. Rules of Court, former rule 5.664(f).) If proper notice under ICWA is not given, the child, the parent, or the tribe may petition the court to invalidate the proceeding. (25 U.S.C. 1914.) At the time pertinent to this dependency, California Rules of Court, rule 5.664(f) specified that standard form JV-135 be used to give the required notice.

The issue in this case is not whether notice was given. The clerks transcript includes a letter dated May 11, 2007, from the United Keetoowah Band of Cherokee Indians in Oklahoma, one of the three tribes DPSS notified, which indicates the tribe received notice with respect to T.W., Jr., and based on the information supplied, determined that he is not a descendant of anyone on the Keetoowah Roll, and therefore he is not a member or eligible for enrollment in the tribe.^[4] In addition, the augmented record includes two letters from the Cherokee Nation, one dated May 21, 2007 and the other dated May 25, 2007, that indicate not only that the tribe received notice but also that the notice contained the names and known birthdates of T.W., Jr., his parents, and grandparents, and state that T.W., Jr., cannot be traced either by name or through his ancestors names, in the tribal records and therefore will not be considered an Indian Child for purposes of ICWA. From these letters, and the related return mail receipts, we are able to determine that DPSS complied with its obligation under ICWA to give notice of the proceedings to the pertinent Indian tribes.

Although section 224.2, subdivision (c) and then rule 5.664(f) of the California Rules of Court require that copies of the ICWA notice actually sent be filed with the court, failure to do that in this case does not affect our ability to evaluate either the fact or adequacy of compliance by DPSS with the ICWA notice requirement. The record clearly demonstrates that DPSS complied with its duty to give ICWA notice to the pertinent tribes, and that the notice given was adequate. It is also apparent that DPSS intended to file the JV-135 with the court by attaching it as an exhibit to the pertinent social workers report. We assume that the actual JV-135 notice sent to the tribes has been misplaced otherwise DPSS would have included it with its request to augment the record on appeal. Under these circumstances no useful purpose is served by remanding this matter to the trial court for further action on the ICWA notice issue.

DISPOSITION

The courts disposition order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

Acting P.J.

We concur:

/s/ Gaut

J.

/s/ King

J.

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^[1]Unless indicated otherwise, all further statutory references are to the Welfare and Institutions Code.

^[2]Section 361.2, subdivision (a), quoted above, does not include the term nonoffending and instead refers to a parent . . . with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300. Nevertheless, [i]n a few decisions, reviewing courts have used the phrase nonoffending noncustodial parent as shorthand for [the parent specified in section 361.2, subdivision (a)]. (In re V.F. (2007) 157 Cal.App.4th 962, 969, fn. 4.) We share the view expressed by the court in In re V.F. that the better shorthand phrase is simply noncustodial parent. [Citation.] (Ibid.)

^[3]The clerks minutes incorrectly include S. and C. in the visitation order. The order applies only to the three younger children.

^[4]The status review report for the six-month review hearing, contained in the augmented record, incorrectly states that the United Keetoowah Band has not responded to the ICWA notice.