APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy B. Williamsen, Commissioner. (Super. Ct. Nos. 515312 & 515313).
The opinion of the court was delivered by: Kane, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Appellant R.S.C. (Mother) appeals from the jurisdictional findings and dispositional orders of the juvenile court regarding her two children, 16-year-old J.B. (J.) and 12-year-old L.K. (L.). Mother contends there was insufficient evidence to support the jurisdictional findings and the orders removing the children from her custody. We will affirm.
In the published portion of this opinion, we hold that a finding under Welfare and Institutions Code section 361, subdivision (c)(6),*fn2 which must be supported by expert testimony-that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child-is not required when an Indian child is removed from the custody of one parent and placed with the other parent.
PROCEDURAL AND FACTUAL SUMMARY*fn3
On September 5, 2008, the Stanislaus County Community Services Agency (the Agency) received a referral regarding the children because L. reported that she, J. and Mother were homeless and L. did not feel safe where they were staying.
When the social worker interviewed J., he was wearing dirty clothes and appeared not to have showered in some time. J. said he and his family had been living in an apartment complex for two weeks. Mother was trying to get into a clean and sober house and the family received food and clothing from the Salvation Army.
When the social worker interviewed L., she explained that J. was lying about their circumstances because Mother had told them to lie so nothing would happen to them. In fact, they were not living in an apartment complex. They were sleeping on the streets in a lot near a supply store. About two days each week, they slept in a trailer behind a used car lot, where L. was afraid a certain man would come into the trailer and rape her and Mother. L. said she was always scared at night because they were on the streets; she never felt safe with Mother because of their living situation. According to L., they had been homeless for about three and one-half years. L. requested that she be removed from Mother's care.
L. also reported that Mother and her boyfriend smoked marijuana and drank alcohol every day, and used the substances in front of L. and J. Mother would roll the marijuana and smoke it from a pipe. Mother received welfare money, but spent it on her boyfriend and drugs. L. and J. did not have enough clothes and they had to wear the same clothes to school every day. Occasionally, Mother would buy them food from a taco truck, but they usually ate at a shelter.
When the social worker interviewed Mother, she denied neglecting the children's needs. She said they had a place to sleep every night in a friend's trailer. The children had clothes, food, showers and everything they needed. She denied that the family was sleeping in a lot and she denied using drugs. She said she wanted to go into a clean and sober home because she had been drinking more alcohol lately. She said J. functioned at the level of an eight-year-old.
On September 10, 2008, the children were detained and placed in temporary foster care.
On September 12, 2008, the social worker interviewed L.'s father (Father). He reported having a history of substance abuse. In the past, he and Mother used methamphetamine and marijuana together. He had been incarcerated in a drug treatment program for about one year in 2007, and had entered a residential program when he was released in December 2007. After that, he entered a clean and sober program, which he completed in March 2008. He said he had been drug free for several years.
Father stated that he would have been more involved in L.'s life if Mother had not kept L. from him. Father had known his current wife for about six years and they had been married for two years. They lived with the wife's two children in the wife's parents' home.
On September 12, 2008, the Agency filed a petition pursuant to section 300, subdivision (b), alleging that J. and L. were at substantial risk of serious physical harm due to Mother's failure to protect them; her failure to provide them with adequate food, clothing, shelter or medical treatment; and her inability to provide regular care for them due to her mental illness and substance abuse.
On September 15, 2008, the juvenile court held a detention hearing. Father stated that L. previously had lived with him, but Mother took her away and he did not know where they went. Father requested custody of L. He said he was in the position to care for her and was ready to parent her. He had gone through drug treatment and had been clean and sober for three years. Although Mother objected to L.'s placement with Father, the court stated that the Agency had not identified a substantial risk of detriment if L. were placed with Father. The court removed L. from Mother's custody and placed her with her father (Father). Because Father was a registered member of an Indian tribe, the court ordered notice be given pursuant to the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.).
The same day, Father met with Camera Bonsack for a substance abuse assessment. Father denied using drugs, but tested positive for methamphetamine and marijuana. He admitted eating a marijuana brownie, but still denied using methamphetamine.
On September 17, 2008, Father met with the social worker to provide an explanation for his positive methamphetamine test. He explained that he accidentally sat in some kind of white powder at a restaurant. He tasted it and realized it was a drug.
On September 18, 2008, Father tested positive for methamphetamine again.
On September 29, 2008, Father met with Bonsack. This time, he admitted he had relapsed and was using methamphetamine. He was referred to a residential treatment program.
On October 9, 2008, the Agency filed a first amended petition.
On October 16, 2008, the juvenile court held the jurisdictional/dispositional hearing. Mother testified that on September 5, 2008, she was homeless. She did smoke marijuana and drink beer about once a week, but not to inebriation and only when the children were in the library. She did not use the substances in front of them and they were not affected. Although Mother had been employed for about 10 years, she had been homeless since about 2003 or 2004 when she lost her parents. But her homelessness had never prevented her from feeding the children or providing them clothing. They had never been in physical danger as a result of their homelessness. Mother provided food and shelter for them and they continued to attend school regularly. They never went without food. They had clean clothes to wear every two days, and they were able to shower two or three times per week. They received medical care through Medi-Cal.
Mother explained that she used her money to pay for hotel rooms for the first two weeks of the month. Then she and the children would find shelter somewhere else. For about one week of every month, they stayed in a trailer in a car lot. The night watchman who stayed in the trailer allowed them to sleep there. The remaining week, they usually stayed with friends. They could stay at the Gospel Mission for 30 days in a row, after which they could not return for 30 days. J., however, was too old to stay at the Gospel Mission, so when Mother and L. stayed there, J. stayed in the trailer. Mother explained that "there were places [she] could keep [J.]" so she and L. could stay at the Gospel Mission.
Mother admitted she had mental health issues, including depression, agoraphobia, panic attacks and anxiety attacks. She was attempting to get into a program to address those issues.
Mother said she was no longer using drugs. Her first drug test after the children were detained was positive for marijuana, but the second test was negative for all drugs.
Mother disagreed with the Agency's recommendation to place L. with Father and thought L. should be placed with her.
On cross-examination, Mother explained that although she wanted L. back in her custody, she was not ready because she was still homeless and because she and L. required mother-daughter counseling. In Mother's opinion, there were many things she and L. had to work out and "it ...