In re B.O.
Filed 2/14/13 In re B.O. CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
In re B.O. et al., Persons Coming
Under the Juvenile Court Law.
H038554
(Santa CruzCounty
Super. Ct.
Nos. DP002602,
DP002603, DP002604)
SANTA CRUZ COUNTY HUMAN
SERVICES DEPARTMENT,
Plaintiff and
Respondent,
v.
L.O.,
Defendant and
Appellant.
L.O. (Father),
the presumed father of B.O., L.O., and E.O., appeals from the dispositional
order in this dependency case. The juvenile court declared the children
dependents of the court (Welf. & Inst. Code, § 300)
and ordered them placed in the custody of their mother, D.O. (Mother). Mother was ordered to receive
On appeal,
Father contends the juvenile court erred by failing to make an order regarding
his visitation with the children. He
further contends that the juvenile court erred by either (1) impliedly
finding that proper notice was given under the Indian Child Welfare Act (ICWA)
or (2) failing to make any finding regarding the sufficiency of the notice
given under the ICWA.
For reasons
that we will explain, we will affirm the juvenile court’s dispositional orders.
Background
A. Section 300 Petitions
On March 2,
2012, the Santa
Cruz County Human Services Department (Department) filed petitions alleging
that the children fell within the dependency jurisdiction of the juvenile court
under section 300. At the time, B.O. was
14 years old, L.O. was 10 years old, and E.O. was 8 years old. The petitions alleged that there was a
substantial risk the children would suffer serious physical harm (§ 300, subd.
(a)), that the parents had failed to protect the children (id., subd. (b)), and that E.O. was suffering emotional damage (
On December
1, 2011, a mandated reporter had called with concern about E.O., who had a big
bruise on her nose. Father had kicked
E.O. in the face two weeks earlier.
Mother claimed not to have known about the bruise until the day
before. The Department had also received
numerous prior reports regarding the children.
There were allegations that Father had slapped E.O. in the face and
kicked her in the back while drinking heavily, that Mother was unable to care
for the children due to homelessness and mental health issues, that Father had
failed to feed and properly clothe the children, that Mother’s boyfriend had
bruised L.O., and that Father had hit L.O. in the head.
Mother had
full custody of the children following her 2007 divorce from Father. However, she sent the children to live with
Father at some point because she was homeless and using drugs. She knew that Father was often drunk and that
his adult children, who resided with him, were involved with gangs and were
often drunk. In the summer of 2011,
after Father hit E.O. in the face, she took the children back. Mother allowed the children to visit Father
regularly, until Father kicked E.O. in the face in November of 2011. Since that time, Mother had been regularly
participating in drug and alcohol programs.
When Father
spoke to the social worker by telephone, he seemed to be intoxicated. He had not seen the children in a month. Father denied hurting the children and denied
that he had been drinking. Father had
been arrested approximately 32 times for crimes including battery, theft,
weapons possession, and narcotics possession.
The
children confirmed that Father had physically abused each of them. E.O. reported that Father had hit her in the
mouth, eye, ribs, and nose. She had also
seen Father hit B.O. and L.O. Father’s
adult son had blown marijuana smoke into her face and had threatened to hit
her. Father was often very drunk. She did not feel comfortable around him.
B.O. reported
that Father had thrown a frying pan at him, hitting him in the ribs and leaving
a bruise. Father had also punched him in
the stomach, chest, and face. He worried
about his siblings, as Father would hit them when he was drunk, which was very
often. In addition, Father’s adult son
had hit him.
L.O.
reported that Father had recently hit him on the back. Father had previously hit L.O. with a
hairbrush on the back of the head. He
had seen Father hit E.O. and B.O. He
still wanted to see Father, but was not ready yet. He felt safe with Father only when Father was
sober.
B. Jurisdiction/Disposition
Reports and ICWA Notices
The
Department’s jurisdiction/disposition reports, filed on April 24, 2012,
recommended that the children be declared dependents of the court and that
family maintenance services be granted to Mother.
The reports
reflected that B.O. had no desire to see Father. L.O. missed Father but understood he could
not see Father “right now†due to the physical abuse. E.O. also missed Father and wanted to see him
soon.
Father
spoke to a social worker on March 22, 2012, and he denied the allegations of
physical abuse and frequent intoxication.
However, Father had yet to “present himself†or to attain presumed
father status. The Department indicated
that it would assess whether or not to offer Father services when he met those
requirements.
During his
contact with the social worker on March 22, 2012, Father stated that he had
Apache heritage. The social worker was
subsequently unable to reach Father again to obtain further information. Mother denied having any Indian ancestry, and
Mother filed a Parental Notification of Indian Status stating she had no known
Indian ancestry.
Based on
the information Father provided, the Department notified the Bureau of Indian
Affairs (Bureau) and eight Apache tribes of the scheduled jurisdictional
hearing, via certified mail. The ICWA
notices provided the tribes with the children’s names and dates of birth as
well as the names, dates of birth, and addresses of Father and Mother. The notices stated that all information about
the children’s grandparents and great-grandparents was unknown. Return receipts were signed by seven of the
tribes and the Bureau.
name="_ftnref2" title="">[2] (See Cal. Rules of Court, rule 5.482(b).)
determined the children were not members.
C. Jurisdictional and
Dispositional Hearings
On April
24, 2012, the date set for the jurisdictional hearing, Mother waived her right
to a hearing and submitted the petition based on the social worker’s report.
Father made
his first appearance at the April 24, 2012 hearing. The juvenile court found him to be the
presumed parent of each child. The court
inquired about his Indian ancestry and Father confirmed his belief that he had
Apache heritage. The court asked Father
to provide “further information†about his family history, including dates of
birth, to the social worker “immediately.â€
Father agreed. The court asked if
he had any additional information at that time.
Father stated that his parents and older sister were deceased and that
he was trying to find paperwork containing their birth dates. The court reiterated that Father should
“continue to work with the social worker†on that issue.
The
juvenile court granted Father’s request for a continuance of the jurisdictional
and dispositional hearings as to him, and set the matter for May 8, 2012. Father asked whether there was a “provision
for visitation with him.†The juvenile
court stated, “Supervised visitation once per week.†The social worker noted that “visitation
needs to be supervised, and not by the mom.â€
The Department requested that they “deal with it†at the next hearing.
On May 8,
2012, Father failed to appear. He had
telephoned the social worker to say he was ill, but he had not had any contact
with his attorney, who noted that the telephone number Father had provided was
no longer in service. The juvenile court
continued the matter again, to May 17, 2012.
On May 17,
2012, Father failed to appear again. His
attorney stated she had not had any contact with him, that his phone number was
still out of service, and that the voice mailbox had not been set up on his
alternate phone number. She requested
another continuance.
The
juvenile court denied Father’s continuance request. The court found the children to be dependents
of the court and ordered they remain with Mother, under the supervision of the
Department. The court ordered that
Mother receive family maintenance services.
(See §§ 362, subd. (b), 16501, subd. (g).) It noted that the Department
could assess Father for services “should he come forward,†and it set a
six-month review date.
Discussion
A. Visitation
Father
contends the juvenile court erred by failing to make any kind of visitation order
for him at the May 17, 2012 hearing. He
claims that the juvenile court could deny him visitation only if it found that
visitation would be detrimental to the children or that it would jeopardize
their safety. As we shall explain, the
juvenile court is not required to order reunification services such as
visitation when the children are placed with the custodial parent.
When a
child is not removed from his or her custodial parent in the dependency
proceeding, section 362 governs the disposition.
to the custodial parent, but the non-custodial parent is not entitled to
reunification services. (Former
§ 362, subd. (b); In re Pedro Z.
(2010) 190 Cal.App.4th 12, 20 (Pedro Z.);
In re A.L. (2010) 188 Cal.App.4th 138,
145 (A.L.).) When the child is placed with a custodial
parent who is receiving family maintenance services, “[t]he goal of dependency
proceedings–to reunify a child with at least one parent–has been met.†(Pedro
Z., supra, at p. 20.)
In
dependent child was placed with her mother, who was ordered to receive family
maintenance services. The father was
denied reunification services. (
entitled to reunification services under section 362 unless there was a finding
that he had committed serious physical abuse of the child. The court rejected his claim, holding that no
reunification services were required because the child had not been removed
from the custodial parent. (
In this case, Father is claiming a right to
visitation, which is an “example of a reunification service.†(In re
Calvin P. (2009) 178 Cal.App.4th 958, 963.)
Since the children were not removed from the custodial parent, the
juvenile court was not required to order any reunification services for
Father. (A.L., supra, 188 Cal.App.4th at p. 145.) Thus, it was not required to order that
Father have visitation.
Father
relies on cases in which a parent was
receiving reunification services, but no visitation. “[W]hen reunification services have been
ordered and are still being provided, … some visitation is mandatory unless the
court specifically finds any visitation with the parent would pose a threat to
the child’s safety.†(In
re C.C. (2009) 172 Cal.App.4th 1481, 1491, italics & fn. omitted; see
also Tracy J. v. Superior Court
(2012) 202 Cal.App.4th 1415, 1426; In re Mark L. (2001) 94 Cal.App.4th 573, 581.) Here, the juvenile court was not
required to order reunification services because the children were not removed
from the custodial parent. (
p. 145.) Thus, contrary to Father’s claim, the court could deny him
visitation without making a finding that visitation would be detrimental to the
children.
Father
further claims that, as a result of the juvenile court’s failure to make a
visitation order, the decision whether to allow him any visitation was
improperly delegated to Mother and/or the Department. However, the cases that he relies on are
inapposite because they involved statutes that required the court to make a
visitation order. For instance, in In
re Kristin W. (1990) 222 Cal.App.3d 234, the trial court placed the
children in foster care and ordered reunification services for the father
pursuant to section 362.1, but it did not order visitation as required by that
statute. Since the statute required that
the court make a visitation order, the lack of a visitation order was erroneous
and “akin to an order granting total discretion†to the social worker. (Id. at p. 256.) Likewise, in In re Randalynne G. (2002) 97 Cal.App.4th 1156, the juvenile court
was required to make a visitation order pursuant to former section 366.26
because it had appointed a legal guardian for the dependent child, and it could
not delegate the visitation issue to the guardian. (Id. at
p. 1165.)
This case is governed by section 362, not by a
statute requiring the court to make a visitation order. Therefore, the trial court’s failure to make
a visitation order for Father does not amount to an improper delegation of
authority.
Father also
cites In re Chantal S. (1996) 13
Cal.4th 196 (Chantal S.), but that
case does not support his position. In
father’s claim that a visitation order improperly delegated judicial authority
to two therapists. That case was
governed by section 362.4, which permits the juvenile court to make a
visitation order when terminating a dependency proceeding. The court found that the juvenile court could
have denied the father visitation entirely, and that he had received a
“windfall†via the visitation order. (
had been terminated, the father could raise the claim in family court.
Here, as in
Chantal S., the juvenile court had
discretion to deny Father visitation entirely, and Father is not precluded from
seeking a visitation order in future proceedings. As the juvenile court noted, Father may be
assessed for visitation or other services “should he come forward.†Father may also request a visitation order by
filing a petition to modify the juvenile court’s order. (§ 388; see In re Hirenia C. (1993) 18 Cal.App.4th 504, 512.)
In sum, we
conclude the juvenile court did not err by failing to make a visitation order
for Father at the May 17, 2012 hearing.
B. ICWA Notice
Father
contends the Department did not provide the Indian tribes with sufficient
notice under the ICWA. Father argues
that the juvenile court failed to make any finding about the sufficiency of the
ICWA notice, and that any implied finding was not supported by substantial
evidence.
1. Legal Principles
“Under the
ICWA, where a State court ‘knows or has reason to know’ that an Indian child is
involved, statutorily prescribed notice must be given to any tribe with which
the child has, or is eligible to have, an affiliation. (25 U.S.C. § 1912(a).)†(In re
Samuel P. (2002) 99 Cal.App.4th 1259, 1264.)
“The notice
required by the ICWA must contain enough information to provide meaningful
notice. [Citation.] The federal regulations require the ICWA
notice to include, if known, ‘(1) the
name, birthplace, and birth date of the Indian child; (2) the name of the tribe
in which the Indian child is enrolled or may be eligible for enrollment; (3)
names and addresses of the child’s parents, grandparents, great-grandparents
and other identifying information; and (4) a copy of the dependency
petition.’ †(In re I.W. (2009) 180 Cal.App.4th 1517, 1529 (I.W.), italics added.)
The
juvenile court and the agency that filed the dependency petition both “have
an affirmative and continuing duty to inquire†about the child’s Indian
heritage. (Rule 5.481(a).) When a social worker has reason to know that
the child may be an Indian child, he or she must make further inquiry, by
interviewing the parents and extended family members, in order to complete the
required notices.
(Rule 5.481(a)(4)(A); see In
re A.G. (2012) 204 Cal.App.4th 1390, 1396 (A.G.).) However, the
Department is only required to make reasonable efforts to obtain information
about the child’s family history. (In
re Levi U. (2000) 78 Cal.App.4th 191, 198-199 [agency is not required to
“cast about†for additional information when the record contains only “rather
vague information provided by family membersâ€].)
“The
juvenile court must determine whether proper notice was given under the ICWA
and whether the ICWA applies to the proceedings. [Citation.]â€
(I.W., supra,
180 Cal.App.4th at p. 1530.) “While
the record must reflect that the court considered the issue and decided whether
ICWA applies, its finding may be either express or implied. [Citations.]†(In re
Asia L. (2003) 107 Cal.App.4th 498, 506 (Asia L.).) The appellate
court reviews the juvenile court’s findings for substantial evidence. (I.W.,
supra, at p. 1530.)
2. The Juvenile Court Found
that the ICWA Notice was Adequate
Father
contends that the juvenile court never made a finding whether or not the
Department had given proper ICWA notice.
Father
notes that at the April 24, 2012 hearing, the juvenile court indicated it was
making “no finding at this time.â€
However, this remark did not refer to the issue of whether adequate
notice had been given under the ICWA.
The juvenile court was referring to the ultimate issue of whether the
ICWA applied. The juvenile court
indicated it was not making a finding on that issue at that time because it was
waiting for further information from Father and/or further responses from the
tribes.
The
juvenile court did make several express findings concerning whether the
Department had given proper notice under the ICWA. First, at the April 24, 2012 hearing, the
court specifically found that the Department had “sent notice to the [Bureau]
and eight Apache tribes,†and that all parties except for one of the tribes had
“received proper notice of today’s hearing.â€
(See ante, fn. 2
The juvenile court’s subsequent jurisdictional orders state that “Notice
of hearing and a copy of the Petition have been given as required by law,†and
its dispositional orders state that “Notice of hearing was given as required by
law.â€
Even if the
juvenile court failed to expressly find that the ICWA notice was adequate, such
a finding is implied on this record.
(See Asia L., supra, 107
Cal.App.4th at p. 506.) The issue of
ICWA notice was discussed at the April 24, 2012 hearing. At the May 17, 2012 hearing, no further
information was submitted and the juvenile court proceeded to disposition. Under the circumstances, where the record
shows that the juvenile court “considered the issue,†there was an implied
finding that the ICWA notice was adequate.
(Ibid.; compare
692, 698, 704-705.)
3. Substantial Evidence
Supports the Finding of Adequate Notice
Father
contends the ICWA notice was inadequate because the children’s extended family
history information was marked as unknown.
Father relies on three cases, each of which involved omission of
information that was either known or available to the agency.
Much of the
family history section was left blank or reported as unknown in
Cal.App.4th 695, where the paternal grandmother had reported Cherokee
heritage. Despite the fact that the
paternal grandmother “had made herself available,†information about the
paternal grandparents’ birthdates and birth places had been omitted from the
ICWA notices. (Id. at p. 700.) The ICWA
notices were inadequate, since the agency “easily could have contacted the
paternal grandmother for additional pertinent information.†(Id.
at p. 704, fn. omitted.)
Similarly,
in A.G., supra, 204 Cal.App.4th 1390,
the agency sent ICWA notices that contained no information about any members of
the child’s family other than his mother and father, who had reported Creek
heritage. Several of the father’s family
members had been “involved in the proceedings and/or in contact with the
Agency,†but the notices omitted their identifying information. (Id.
at p. 1397.) The record also contained
“no indication†that the agency had followed up with the father or his family
members. (Ibid.) Thus, the ICWA
notices were inadequate.
Available
information about the children’s extended family was likewise omitted from the
ICWA notices in In re D.T. (2003) 113
Cal.App.4th 1449. The notices “failed to
include information already known to the social worker, such as [the mother’s]
married name, the parents’ current addresses, the names of the minors’
grandparents, and that the claimed tribal affiliation was Cherokee.†(Id.
at p. 1455.) Further, the social worker
had not specifically asked the father for information about his family
heritage. Thus, “the notice provided was
insufficient.†(Ibid.)
In this
case, information about Father’s extended family was neither known nor
available to the juvenile court or the Department. The social worker had attempted to reach
Father, who was the only possible source of further information. However, Father was voluntarily absent from
many of the proceedings, had not kept in contact with his attorney or the
social worker, and did not provide any further information about his heritage
despite promising to do so. (See
1160 [“While the social worker and the trial court have a duty to inquire into
the child’s Indian ancestry, a parent has superior access to this
informationâ€].) Under the circumstances,
substantial evidence supports the juvenile court’s finding that the ICWA notice
was adequate.
4. Any Error Was Harmless
Even if we
were to conclude that the ICWA notice was inadequate, any error is harmless for two reasons.
First,
unlike in the cases discussed above, where family members were available to
provide further information, here it would be speculative to conclude that any
additional efforts by the social worker would have produced any more
information about the children’s paternal extended family. (See In
re Miracle M. (2008) 160 Cal.App.4th 834, 847 [any defect in ICWA notice
was harmless where mother failed to demonstrated how reversal “would produce
any additional information that this child is an Indian childâ€].) As noted, Father was the only possible source
of further information, but he had failed to produce any additional details.
Second, any
error was harmless because the Department never sought to remove the children
from Mother’s custody. (In re Alexis H. (2005) 132 Cal.App.4th 11, 16 (Alexis H.).) “By its own terms, the
[Indian Child Welfare] [A]ct requires notice only when child welfare
authorities seek permanent foster care or termination of parental rights; it
does not require notice anytime a child of possible or actual Native
American descent is involved in a dependency
proceeding.†(Id. at p. 14.)
“When authorities remove a child of Native American descent from his
home, the act promotes foster care or adoption by a Native American family in
the hope of preserving tribal culture.
If, however, authorities do not move the child to another family, the
purpose does not come into play.†(Id. at p. 15.)
In
their mother, who was ordered to receive family maintenance services. (Alexis
H., supra, 132 Cal.App.4th at p. 14.) The Department had not
pursued foster care or adoption, “instead recommending from the beginning that
the children remain with their mother.â€
(Id. at p. 16.) The appellate court concluded that even if
the ICWA notice requirements applied under such circumstances, the error was
harmless. (Ibid.)
Here, too,
any defect in the ICWA notice was harmless because the children were not
removed from Mother’s custody and the Department had never recommended an
out-of-home placement. (Alexis H., supra, 132 Cal.App.4th at p. 16.) However, if the Department “ever contemplates
any additional action which might lead to foster care or adoption, it [must]
ensure that the notices sent to the tribes contain complete and accurate
information ….†(Ibid.)
Disposition
The
dispositional orders filed May 18, 2012 are affirmed.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
Márquez,
J.
name="_ftn1" title=""> [1]
Unspecified section references are to the Welfare and Institutions Code.
The social worker reported that “[a]ll parties except for the Jicarilla Apache
Nation received proper notice ….†The
record does not contain a certified mail receipt from the Jicarilla Apache
Nation, but Father does not claim any error in this regard. (See In
re Edward H. (2002) 100 Cal.App.4th 1, 4 [“proper notice to some but not
all possible tribes in which a dependent child may be eligible for membership
does not violate the ICWA provided the agency also gives notice pursuant to 25
United States Code section 1912 to the Bureauâ€].)
