In re I.M.
Filed 1/23/13 In re I.M. CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
In re I.
M., a Person Coming Under the Juvenile Court Law.
B238483
(Los Angeles
County
Super. Ct.
No. CK89007)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
T. J.,
Defendant and Appellant.
APPEAL from
orders of the Superior Court
of
County. Rudolph A.
Diaz, Judge. Affirmed and remanded with
directions.
Ernesto Paz
Rey, under appointment by the Court of Appeal, for Defendant and Appellant.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Jessica
S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
_________________
Appellant
T. J. (mother) appeals from juvenile court orders sustaining a Welfare and
Institutions Code section 300
name="_ftnref1" title="">[1] petition as well as a subsequent section 342
petition on behalf of her daughter, I. M. (I., born Oct. 1995). She contends that there is no evidence to
support the allegations in either petition.
She further argues that even if dependency jurisdiction could be found,
there was insufficient evidence to
warrant removal of I. from mother’s custody; alternative
remedies were available. Finally, mother
asserts that the juvenile court erred when it failed to ensure compliance with
the notice requirements of the Indian Child Welfare Act (ICWA).
To the extent mother
attacks the juvenile court’s adjudication and disposition orders, we conclude that
the juvenile court did not err.
Substantial evidence supports the juvenile court’s orders. However, as the Department of Children and
Family Services (DCFS) concedes, we agree that ICWA notice was deficient. Those deficiencies do not compel reversal of the juvenile
court’s order. Rather, pursuant to
for the limited purpose of allowing DCFS to provide proper ICWA notice.
FACTUAL AND PROCEDURAL BACKGROUND
Nondetained Section
300 Petition
This family
consists of mother, I., and I.’s
half-brother D. T. (D., born Oct. 2001).
Ignacio M. (Ignacio) is I.’s father; he was
incarcerated at the time of the events leading to the section 300 petition and
is not a party to this appeal.
On June 22, 2011, DCFS received a referral alleging that
mother had physically abused I. The
caller reported that according to I., mother and I.
had had an argument, which resulted in mother hitting I.
on the body and head. The caller stated
that I. was “incorrigible,†four months pregnant with
twins, and had recently moved from Riverside
into mother’s home. I.
apparently wanted to return to Riverside
against mother’s wishes. The caller
further stated that, according to mother, I. had gotten
a kitchen knife during the argument, but mother took it from her and pushed I.
against the wall.
The social worker interviewed
mother. According to mother, I.
was a “disrespectful teenager.†Mother
admitted that they were “battling†because I. wanted to
return to her maternal great-grandmother in Riverside. Mother believed that the maternal
great-grandmother was too old to properly supervise I. Mother also complained that I.
was upset because mother would not allow her to have contact with I.’s
boyfriend. Mother claimed that I.
got a knife from the kitchen drawer and “came at her so she had no choice but
to restrain her.†Mother denied that she
hit, kicked, or choked I. She signed a
safety plan, which stated that I. would stay with her
maternal aunt until a team decision making (TDM) meeting was conducted. Mother would not have contact with I.
until then.
Mother submitted to a criminal
background check, which revealed an extensive criminal history, including
arrests for grand theft auto, burglary, driving with a suspended license and
false proof, hit and run, battery on a person, making/passing a fictitious
check, possession of marijuana, false impersonation of another, carrying a
loaded firearm, and violation of parole.
On July 4, 2008,
mother had been arrested for burglary and sentenced to three years in prison.
Next, the social worker interviewed
I. She stated that she had been arguing
with mother since she moved into the home in May 2011. On June
22, 2011, she tried to walk out of the home to go to her cousin’s
house down the street, but mother pulled her by the arm to get her back inside
the house. Mother then hit her head,
arms, and side with mother’s fist, and choked and kicked her in the head and in
her side. I. pushed the computer chair
at mother to keep her away, but mother pushed the chair back. I. then went to the kitchen and retrieved a
knife, but mother grabbed it from her and put it to I.’s neck. Mother then pushed I. onto the couch and I.
called the police. I. told the social
worker that her head and neck hurt where mother had grabbed her. I. refused to go home as she did not feel
safe staying with mother. She indicated
that she and mother got into frequent physical altercations and did not want to
live with mother.
The social worker then spoke with D. He informed her that mother and I. were
“cussing,†“hitting,†and “grappling†at each other. He saw mother hit I. on the stomach and face,
and I. tried to choke mother. D. stated
that mother and I. got into a “physical fight†once every few months and mother
would hit I. with a closed fist. D.
reported that he got along well with mother.
That same day, I. was taken to
Centinela Hospital where she received an ultrasound. No injuries were reported.
A TDM meeting was held on July 6,
2011. The family agreed on the safety
plan in which DCFS recommended that I. return to mother’s home and the family
be provided with voluntary family maintenance (VFM). DCFS also recommended that mother and I.
participate in parenting and anger management classes. Mother and I. also agreed to participate in
individual and family counseling.
Extended family members agreed to provide support and assistance to
mother and I. Mother agreed not to physically
discipline the children.
On July 7, 2011, the social worker
attempted to call mother to take the children’s photographs. Mother failed to return the telephone
call. Later, mother refused to allow a
DCFS human services aide access to the children to have their photographs
taken.
On July 18, 2011, mother informed
the social worker that I. had run away on July 15, 2011. Mother said that she did not have a current
photograph of I. She refused to provide
any further information to the social worker.
The social worker obtained I.’s
school reports. Those reports indicated
that I. had “academic difficulties†and that the school was concerned about her
“frequent tardies and truancies.â€
By this point, DCFS opined that
mother was being uncooperative and claimed not to understand why DCFS was
involved in her life. Thus, DCFS recommended
court intervention. It also requested
that a protective custody warrant be issued for I. and that I. be detained.
Based on the foregoing, on July 21,
2011, DCFS filed a nondetained section 300 petition on behalf of I. pursuant to
subdivisions (a), (b), and (g) and on behalf of D., pursuant to subdivisions
(a), (b), and (j). The petition alleged
that mother physically abused I. on or about June 22, 2011, by striking her
with her fists while I. was four months pregnant. The petition further alleged that mother had
physically abused I. on prior occasions by striking her head and arms,
brandishing a knife at her and placing the knife to her neck, choking her, and
kicking her head. At the time, I. was
“at large.â€
A completed Indian Child Inquiry
form dated July 11, 2011, indicated that I. had no Indian ancestry. Thus, DCFS reported that the ICWA did not
apply.
At the hearing on July 28, 2011,
the juvenile court found a prima facie case to detain I. from mother and place
her in shelter care pending court order as I. was at large. The juvenile court issued a protective
custody warrant; she was to be transported to the juvenile court as soon as she
was located.
Protective Custody
Warrant
On
September 1, 2011, DCFS reported that the Riverside police department had found
I. on August 24, 2011. She had attempted
to enroll herself in school in Riverside County. The school contacted mother, who notified the
school that I. had run away from home and that a protective custody warrant had
been issued for her. The Riverside
police department contacted DCFS.
Jurisdiction/Disposition Report (September 6, 2011)
DCFS indicated that I. had been placed in foster care on
August 24, 2011. It further stated that
the ICWA did not apply.
The
dependency investigator reported that she had interviewed I. on August 26,
2011. According to I., her argument with
mother on June 22, 2011, was a “‘usual thing.’â€
Mother had pushed her and put her hands on I.’s shoulder/chest
area. I. fell on the couch; when she got
up, she pushed mother. Mother then
punched her arm, scratched her face, and grabbed her hair. I. told the investigator that mother knew she
was pregnant at that time. I. then took
out the knife from the kitchen drawer, but mother ran up and took the knife
from her. Mother then put the knife up
to I.’s neck and told I. to kill herself.
Mother then “‘choked’†I. with her hands. Mother’s assault lasted “‘for a while.’â€
I. further
disclosed that mother kicked her head about two or three times; her face was
“‘stinging,’†and the side of her body hurt.
I. called
911 and the police and an ambulance went to the home. I. was taken to the doctor and an ultrasound
was conducted. Her babies were “‘okay.’â€
Finally, I.
revealed that she and mother had four to five prior “‘physical fights’†when
they lived in Riverside.
The social
worker attempted to contact mother, but she was hostile and refused to
cooperate. She refused to be
interviewed, refused to allow D. to be interviewed, and claimed not to know why
DCFS was involved in her family.
However, on August 25, 2011, the dependency investigator had a
brief conversation with mother by telephone.
According to mother, I. was “‘just making stuff up.’†Mother refused to participate any further
that day with the interview. Although
she agreed to be interviewed on August 26, 2011, mother cancelled the
appointment. The appointment was
rescheduled for August 31, 2011, but mother cancelled that interview as
well. Then mother informed DCFS that she
would not participate in the VFM and she did not want DCFS involved with her
family.
DCFS
conducted a social study/family assessment.
The assessment revealed that mother disapproved of I.’s then-19-year-old
boyfriend, Junior P. (Junior), who was the father of her twins. The assessment further revealed that mother
had filed a police report against him for statutory rape. I. reported to DCFS that mother failed to
ensure that she have prenatal care and refused to allow I. to take “prenatal
medication†during the first four months of her pregnancy.
DCFS also
reported that I. denied that she ran away from home. Rather, she said that mother knew that she
was living with Junior in Riverside because she told her that that was where
she was staying in July 2011. I. told
the social worker that she felt “‘depressed’†in mother’s care.
The social
worker opined that I. could not remain safely in mother’s home due to their
volatile relationship. According to I.,
the arguments between her and mother usually ended in violence. During the most recent incident, the argument
resulted in mother’s use of a knife, which placed I. and her unborn twins at
risk for serious harm.
Despite
DCFS advising mother of the importance of cooperating with the VFM, mother
refused to cooperate. DCFS made several
attempts to arrange an in-person interview with mother, but she cancelled all
the appointments and refused to allow the social worker access to the home.
DCFS
recommended that the juvenile court sustain counts a-1, b-1, and j-1 of the
section 300 petition. It further
recommended that mother be offered family maintenance services/family
reunification services, including parenting and anger management classes as
well as individual counseling to address issues surrounding anger. It also recommended conjoint counseling for
mother and I.
Mother
signed a parental notification of Indian status, indicating that she had no
Indian ancestry.
Pretrial Resolution
Conference (PRC)
At the
pretrial resolution conference, I. remained detained. DCFS was granted discretion to release I.
back to mother. The PRC was continued.
Interim Review Report and Continued PRC (September 21, 2011)
DCFS reported that I. had been placed with her maternal
grandmother. It also reported that the
ICWA did not apply.
On
September 8, 2011, I. told the DCFS social worker that she felt safe with
mother and wanted to live with her.
Mother also told the social worker that she wanted I. to return to her
care. She did not understand why D.
could be in her care but I. could not.
The maternal
grandmother stated that she could only care for I. for two weeks due to the
restrictions of her community living facility.
At the
continued PRC, mother advised the juvenile court that both D. and I. were
residing with mother. At mother’s
request, and with I.’s joinder, DCFS was directed to address a possible section
301 contract for informal supervision.
The PRC was continued for adjudication.
Interim Review Report
(October 17, 2011)
DCFS
reported that I. continued to live with mother.
Although the social worker attempted to contact I. at least twice, he
could not reach her because mother refused to give him I.’s whereabouts. After the social worker left repeated
telephone messages to mother regarding the scheduled pregnancy and parenting
teen conference (Conference) that was set for October 11, 2011, mother finally
returned the calls, saying, “‘I got y’alls message so you can stop calling my
phone.’â€
The social
worker also contacted the maternal grandmother.
According to her, I. was at Little Company of Mary Hospital, where she
gave birth to twins, Arianna and Mariah P., in October 2011.
On October
11, 2011, the social worker met with mother for the Conference. She confirmed that I. had given birth to
twins, but she refused to disclose the twins’ date of birth or the location of
the hospital where they were admitted.
She told the social worker that I. was in the hospital and did “‘not
need to be bothered by y’all.’â€
Based on
mother’s lack of cooperation, DCFS concluded that she was “‘not . . . appropriate’â€
for a section 301 contract. After all,
mother had been told at the TDM that cooperation with DCFS was one of the most
important aspects of the VFM plan, and she needed to cooperate fully before a
section 301 contract could be considered. Despite mother telling the social worker that
she understood it meant giving DCFS access to I. at reasonable times during the
day for face-to-face contact and promising to cooperate, mother subsequently
refused to cooperate. She also refused
to stay for the Conference. Thus, DCFS
recommended that I. be declared a dependent and that mother be granted family
reunification services, including anger management, parenting, individual
counseling, and conjoint counseling with I.
Interim Review Report
(December 14, 2011)
DCFS
reported that I. now lived with the maternal grandmother. Again DCFS reported that the ICWA did not
apply.
The social
worker met with I. on November 30, 2011.
According to I., she and mother had been doing well since October 17,
2011. She told the social worker that
she had given birth to twin girls, who were born prematurely and were going to
be hospitalized in the neonatal intensive care unit for approximately 12 weeks.
The social
worker also met with mother. Mother
believed that she no longer needed DCFS supervision. She claimed that she had learned to be
patient and calm with I. She also
claimed that she and I. were able to “‘talk out their issues and not engage in
a physical outburst’†during times when I. was “‘disrespectful and
disobedient.’†The social worker
indicated that mother, I., and the twins had moved in with the maternal
grandmother, but mother failed to inform the social worker of their new
address.
The social
worker met with mother again on November 30, 2011. DCFS reiterated that mother had not fully
cooperated in allowing the social worker to come to the home to access I. Moreover, mother had still not enrolled in
any case programs.
Adjudication and Disposition of the Section 300 Petition; Mother’s
Appeal
At the combined contested adjudication/disposition
hearing on December 14, 2011, the juvenile court sustained counts a-1 and b-1
of the section 300 petition.
name="_ftnref2" title="">[2] It found I. to be a dependent of the court,
noting: “Hopefully, mom will come around
and cooperate and assure the Department and the court that it’s unnecessary for
the Department to be involved. But that
will only happen when she—she begins to cooperate.†In that regard, the juvenile court commented
that mother’s completion of anger management programs was necessary.
Mother was
ordered to participate in a DCFS-approved program for parent education focused
on teens and difficult children, conjoint counseling for mother and I.,
individual counseling with a licensed therapist to address anger management and
adult-parent responsibilities for mother, and
case issues. I. was released to mother
under DCFS supervision.
Mother
timely filed a notice of appeal from the juvenile court’s findings and orders.
Detention Report
(January 11, 2012)
DCFS
attempted to contact mother throughout December 2011 to request a time to visit
I. in the home. Mother was not
cooperative. On December 23, 2011, DCFS
finally reached mother by telephone.
During the telephone call, mother complained that the social worker was
“insensitive†for trying to do a home visit the week of Christmas; thus, she
refused to cooperate. During the entire
telephone conversation, mother was extremely upset, annoyed, and offended by
DCFS’s actions as she characterized them as “rude†regarding her “right to
spend quality time†with her family.
DCFS advised mother that she must allow the social worker to have
monthly contact with I. and that mother’s failure to do so would constitute a
violation of the juvenile court’s order.
On December
23, 2011, an immediate response was received by the Riverside County Child
Protective Services (CPS) social worker regarding one of I.’s babies,
Arianna. According to a CT scan, Arianna
had blood in the brain and needed to be incubated.
On December
28, 2011, the social worker met with mother and I. According to mother, I. asked her if she
could visit Junior in Riverside. Mother
stated that she permitted I. and the twins to stay with Junior on or about
December 21, 2011. According to I., she
left the twins with Junior in the barn while she went to the main house to get
a snack. When she returned to the barn,
she noticed that Arianna’s eyes were rolled back, her right eye was swollen,
her right cheek was red, and her lip was scratched. Mother told the social worker that she was
informed of the extent of Arianna’s injuries once the baby was transported to
the hospital.
That same
date, I.’s other daughter, Mariah, was placed in foster care; Arianna remained
hospitalized; and Junior was arrested.
The CPS social worker told DCFS that on January 4, 2012, Junior admitted
that he shook and dropped Arianna approximately 20 times.
On January
6, 2012, DCFS conducted a case conference.
DCFS concluded that mother had inappropriately supervised I., including
by allowing her to spend an extended period of overnight visits with
Junior. Thus, a warrant request was
submitted and granted.
DCFS
reported that mother had not complied by participating in any court-ordered
services. Although mother claimed that
she had a start date of January 10, 2012, to begin parenting and counseling
classes, she had not yet provided documentation to support her claim. DCFS indicated that mother’s resistance and
inaction to participate in court-ordered programs endangered I. and placed her
at risk of harm.
On January
8, 2012, I. was removed from mother’s care and placed in foster care.
Section 342 Petition
and Detention Hearing
On January
11, 2012, DCFS filed a section 342 petition on behalf of I., alleging that on
or about December 20, 2011, mother placed I. in a detrimental and endangering
situation in that she allowed her to spend several days and nights with her
21-year-old male companion, Junior, who shook and dropped I.’s
then-two-month-old daughter and inflected a subdural hematoma resulting in
multiple seizures, retinal hemorrhaging, bruising to her left eye, swelling to
her eyes, and scratches to her face.
At the
detention hearing, mother denied the allegations against her. The juvenile court found a prima facie case
for detaining I. and ordered temporary placement and care with DCFS.
Last Minute Information for the Court (January 18, 2012)
DCFS reported that the social worker attempted to contact
mother on January 11 and 12, 2012, to obtain contact information for the
maternal grandfather regarding possible placement of I. Mother failed to respond to the social
worker’s telephone calls.
Jurisdiction/Disposition
Report (February 14, 2012)
DCFS reported that I. remained
placed in foster care and the ICWA did not apply.
The social worker interviewed
I. She said that after the twins were
born, they went to Riverside for about a week and a half and stayed with Junior
for about three days. I. told the investigator
that they stayed with Junior in the barn during the day to watch television and
play video games. I. also indicated that
mother did not like the social workers in people’s business, “‘invading [their]
privacy,’†and would not allow the social worker in the home.
The
investigator spoke with mother by telephone.
She claimed that she was advised by her attorney not to discuss or
participate in an interview. However,
mother then made voluntary and spontaneous statements. For example, mother claimed, “‘For them to
say that I could have protected them . . . no one suspected
anything like this was going to happen. . . . I know
it is a bad thing. The whole thing started
with [Junior]. . . . I always had an issue with
him. To say I’m [irresponsible] I don’t
agree with that, and now you put her in
Riverside. . . . They say that I’m not cooperative
how can they say that? He doesn’t have a
car so he couldn’t come to Los Angeles to visit the twins. It was just always excuses it took a lot of
time before I let her go and they kept
asking. . . . He hadn’t seen the babies in about a
month. I wanted them to have a
dad. . . . I felt he attended to them well. . . . I
could not understand what drove him to this.
He seemed like a jealous person.’â€
Next the
investigator interviewed Junior in jail.
He admitted to shaking Arianna about 15 times. I.’s family did not come inside his
house. I. stayed with him two or three
times and stayed for about a week.
Junior stated that mother or I.’s grandfather would sometimes drop I.
off at his place, but they never came inside to look around. He further stated that he, I., and the twins
slept in the barn where the twins slept in their carseats that were placed on
top of the bed. Junior stated that there
were animals outside the barn, about 10 feet away. He admitted to using marijuana and to having
smoked it with the maternal great-grandmother.
He also told the investigator that he had witnessed a fight between
mother and I. where mother grabbed her.
According to Junior, I. admitted to him that the physical abuse happened
everyday because mother was jealous and did not want I. going out with friends
or him.
The
investigator then interviewed the maternal grandfather. He advised that he had “‘drop[ped] off’†I.
at Junior’s place only once, but he did not get out of the car to check where
I. and the twins would be staying because he assumed that mother “‘had already
done that.’â€
DCFS
reported that Junior lived in a barn that had no heater or running water. According to the Riverside police detective
who had investigated the incident with Arianna, there were several dogs that
were “very dirty†on the property near the barn; there was dog feces all over
the property and inside the room where Junior, the twins, and I. lived; there
were two dirty and soiled blankets on the mattress that was on the floor; and
the room smelled “‘very bad,’†possibly from cigarette smoke and persons not
using proper hygiene. DCFS confirmed that
Junior had been arrested on December 23, 2011.
On January
19, 2012, the social worker contacted the counseling center where mother
claimed she had enrolled in classes.
According to a representative from the center, mother had not attended
counseling sessions for anger management since December 2011, and the
counselors at that center were not licensed therapists.
One week
later, the social worker attempted to schedule an interview with mother. Mother ended the telephone call by stating,
“‘You are getting on my nerves.’â€
DCFS
assessed that I. could not remain safely in mother’s care because mother had
failed to provide a safe and stable environment for her. Mother permitted I. to spend several nights
with Junior without first assessing his home, and it was during the time when
mother became “evasive†with the social worker regarding I.’s whereabouts. DCFS further reported that mother did not
consult with the social worker as to whether it would be appropriate to allow
I. to stay with Junior, and she refused to accept responsibility for allowing
I. to reside with him where, according to the police report, they continued to
engage in unlawful sexual intercourse.
DCFS recommended family reunification services for mother, including
parent education classes, individual counseling to address anger management and
parent responsibility, and conjoint counseling with I.
Adjudication/Disposition
of the Section 342 Petition
The juvenile court adjudicated the
section 342 petition on March 14, 2012.
After receiving various DCFS reports into evidence and entertaining oral
argument, the juvenile court sustained count b-1 of the section 342 petition.
The juvenile court declared I. to
be a dependent of the court under section 342 and made orders removing her from
mother’s physical custody. Reunification
services were ordered, including conjoint counseling, parenting classes to
address teens and difficult children, individual counseling to address anger
management and adult parent responsibilities.
The juvenile court also ordered monitored visits for mother with DCFS
discretion to liberalize.
Regarding the ICWA, the juvenile
court indicated that it had not previously made an ICWA finding. Despite the representation in her prior
signed parental notification of Indian status dated September 6, 2011, mother
now informed the court that she may have Choctaw ancestry, possibly on her
mother’s side. Mother’s counsel stated
that the Indian ancestry would be the maternal great-grandfather named
“John.†Mother did not know his last
name, but mother’s grandmother might know the information. The juvenile court ordered DCFS to interview
mother regarding possible Indian heritage.
Mother’s Appeal
Mother’s timely appeal from the
juvenile court’s March 14, 2012, findings and orders ensued.
DISCUSSION
I.
court’s finding that I. was a person described by section 300, subdivisions (a)
and (b)
A. Standard of Review
As the parties agree, we review the juvenile court’s
jurisdictional findings for substantial evidence. (In re
Savannah M. (2005) 131 Cal.App.4th 1387, 1393; In re Sheila B. (1993) 19 Cal.App.4th 187, 199.) “In making this determination, we draw all
reasonable inferences from the evidence to support the findings and orders of
the dependency court; we review the record in the light most favorable to the
court’s determinations; and we note that issues of fact and credibility are the
province of the trial court.
[Citation.]†(
183, 193.)
B.
Analysis
“The purpose of section 300 ‘is to
provide maximum safety and protection for children who are currently being
physically, sexually, or emotionally abused, being neglected, or being
exploited, and to ensure the safety, protection, and physical and emotional
well-being of children who are at risk of that harm.’ [Citation.]â€
(In re Giovanni F. (2010) 184
Cal.App.4th 594, 599.)
With that in mind, section 300
provides, in relevant part: “Any child
who comes within any of the following descriptions is within the jurisdiction
of the juvenile court which may adjudge that person to be a dependent child of
the court: [¶] (a) The child has suffered, or there is a
substantial risk that the child will suffer, serious physical harm inflicted
nonaccidentally upon the child by the child’s parent or
guardian. . . . [¶]
(b) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm
or illness, as a result of the failure or inability of his or her parent or
guardian to adequately supervise or protect the child, or the willful or
negligent failure of the child’s parent or guardian to adequately supervise or
protect the child from the conduct of the custodian with whom the child has
been left, or by the willful or negligent failure of the parent or guardian to
provide the child with adequate food, clothing, shelter, or medical treatment,
or by the inability of the parent or guardian to provide regular care for the
child due to the parent’s or guardian’s mental illness, developmental
disability, or substance abuse.†(§ 300,
subds. (a) & (b), italics added.)
To find a minor a person described
in section 300, subdivision (b), there must be proof of neglectful conduct,
causation, and a substantial risk of serious physical harm. (In re
Rocco M. (1991) 1 Cal.App.4th 814, 820.)
Mother objects to the juvenile
court’s findings regarding both of the sustained counts of the section 300
petition. We address each in turn,
remembering that we may affirm a juvenile court’s jurisdictional findings if
substantial evidence supports any one of the counts involving the
children. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875–877;
1037, 1045.) “Section 300, subdivisions
(a) through (j), establishes several bases for dependency jurisdiction, any one
of which is sufficient to establish jurisdiction.†(In re
Dirk S. (1993) 14 Cal.App.4th 1037, 1045.)
Regarding section 300, subdivision
(a), there is ample evidence of serious, nonaccidentally inflicted harm or risk
of harm to I. On June 22, 2011, when I.
was four months pregnant, mother pushed her, put her hands on her
shoulder/chest area, punched her arm, scratched her face, grabbed her hair,
kicked her, choked her, and put a knife up to I.’s neck. And, this was not mother’s first physical
assault upon I. Both I. and D. reported
that mother had hit I. on multiple occasions.
Mother’s physical abuse of I. on June 22, 2011, as well as on prior
occasions, put I. at a serious risk of physical harm. Thus, the juvenile court properly sustained
count a-1 under section 300, subdivision (a).
Similarly, substantial evidence
supports the juvenile court’s finding under section 300, subdivision (b). Mother failed to protect I. She failed to ensure that I. had prenatal
care and refused to allow I. to take prenatal medication during the first four
months of her pregnancy. Moreover, there
is evidence that mother knew that I. was living with Junior and, despite
claiming that she had an issue with him, she allowed I. to stay with him in
Riverside where they continued to engage in unlawful sexual intercourse.
In urging us to reverse, mother
claims that any “lack of supervision†would not be “inherently dangerousâ€
because I. was “old enough to avoid the kinds of dangers which make infancy an
inherently hazardous period of life.â€
And, in any event, I.’s issues were the result of her “own incorrigible
behavior.†In light of the evidence set
forth above, we cannot agree.
II.
court’s order sustaining count b-1 of the section 342 petition
Section 342 provides, in relevant
part: “In any case in which a minor has
been found to be a person described by Section 300 and the petitioner alleges
new facts or circumstances, other than those under which the original petition
was sustained, sufficient to state that the minor is a person described in
Section 300, the petitioner shall file a subsequent petition.â€
Count b-1
of the subsequent section 300 petition is supported by substantial evidence. It alleges that mother placed I. at
substantial risk by allowing her to spend several days and nights with
Junior. Mother never inspected the barn
to verify the living conditions. It was
discovered that Junior was living in a barn.
There was no heater or running water inside the barn. There was dog feces inside the room where
Junior, I., and the twins were living.
There were dirty and soiled blankets on the mattresses, which were on
the floor. The room smelled very
bad. These conditions certainly placed
I. at risk of serious physical harm, thereby supporting the juvenile court’s
order.
III.
court’s removal order
A. Standard of Review
We will affirm a removal order so long as it is
supported by substantial evidence. (
453, 463.)
B.
Analysis
The juvenile court is empowered to
remove a dependent child from the physical custody of the parent with whom the
child resided when the section 300 petition was filed if the juvenile court
finds clear and convincing evidence that “(1) There is or would be a
substantial danger to the physical health, safety, protection, or physical or
emotional well-being of the minor if the minor were returned home, and there
are no reasonable means by which the minor’s physical health can be protected
without removing the minor from the minor’s parent’s
. . . physical custody.â€
(§ 361, subd. (c)(1).)
For the same reasons set forth
above, substantial evidence supports the juvenile court’s removal order. There is ample evidence that I. was and is at
risk as a result of mother’s physical abuse.
Simply put, mother did not provide a safe environment for I. Additionally, mother allowed I. to spend
several nights with Junior without first assessing his home to assure that it
was safe and clean. Her inadequate
supervision of I. justifies the juvenile court’s order.
IV. ICWA
Notice was not Satisfied
Finally,
mother argues that the matter must be remanded for compliance with the ICWA’s
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 tribe’s 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.â€
[Citation.]’ [Citation.]†(In re
Karla C. (2003) 113 Cal.App.4th 166, 173–174; see also
1210.)
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 child’s 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).)
We agree with mother that the ICWA
notice requirements were not satisfied.
(25 U.S.C. § 1912(a).) At the
hearing on March 14, 2012, mother advised the juvenile court of possible
Choctaw ancestry. Her attorney informed
the court that the Indian ancestry would be the maternal great-grandfather
named “John.†Although mother did not
know his last name, mother indicated that the maternal great-grandmother might
know the information.
Because this matter proceeded to
disposition prior to a further inquiry by DCFS and notice to the Choctaw tribe,
the matter is remanded to the juvenile court with directions to order DCFS to
attempt to obtain additional ICWA information from mother or any other
available relative and to ensure that proper ICWA notice is given. (In re
Brooke C., supra, 127 Cal.App.4th at pp. 384–385.)
The
juvenile court’s orders are affirmed.
The matter is remanded for DCFS to comply with the notice requirements
of the ICWA.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
_____________________,
J.
ASHMANN-GERST
We concur:
_____________________, P. J.
BOREN
_____________________, J.
CHAVEZ
further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
or about 6/22/11 and on numerous prior occasions, . . . mother
. . . physically abused . . . I. by striking the
child’s stomach with the mother’s fists, while the child was four months
pregnant. The mother struck the child’s
head and arms with the mother’s fists.
The mother brandished a knife at the child and placed the knife to the
child’s neck. The mother choked the
child and kicked the child’s head. The
mother pushed the child onto the couch.
The mother pulled the child’s arm.
The child sustained pain and discomfort to the child’s head, neck and
stomach. Such physical abuse was
excessive and caused the child unreasonable pain and suffering. The child does not want to reside in the
mother’s home and care, due to the ongoing physical abuse of the child by the
mother. Such physical abuse of the child
by the mother endangers the child’s physical health, safety and well-being,
creates a detrimental home environment and places the child I. and the child’s
sibling, D. at risk of physical harm, damage, danger and physical abuse.â€
