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In re Kyle E.

June 22, 2010

IN RE KYLE E., A PERSON COMING UNDER THE JUVENILE COURT LAW.
SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
MICHAEL E., DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Sacramento County, Scott P. Harman, Juvenile Court Referee. Reversed in part and affirmed in part. (Super. Ct. No. JD222236).

The opinion of the court was delivered by: Butz, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Appellant, Michael E., presumed father of minor Kyle E., appeals from an order of the juvenile court terminating reunification services. (Welf. & Inst. Code, §§ 366.21, subd. (f), 395.)*fn2 Appellant contends: (1) the juvenile court abused its discretion and violated appellant's due process rights when it denied him reunification services pursuant to Robert L.*fn3 and failed to abide by the requirements of section 361.5, subdivision (b)(14); (2) there is insufficient evidence to support the juvenile court's finding that the minor's "injury or detrimental condition... would ordinarily not be sustained, except as the result of the unreasonable or neglectful acts or omissions of the parents, [S.E.] and Michael [E.]... "; (3) the juvenile court failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.); (4) the juvenile court's visitation order unlawfully delegated the responsibility of whether or not visitation would occur at all to the Sacramento County Department of Health and Human Services (the Department); and (5) there is insufficient evidence to support the juvenile court's finding regarding appellant's whereabouts and/or identity.

The Department concedes the lack of substantial evidence to support the court's finding as to appellant regarding the cause of the minor's injury or detrimental condition, and further concedes the court erred in finding that appellant's whereabouts and/or identity were unknown.

We will accept the Department's concessions and strike the findings at issue with regard to appellant. We will reverse and remand for further proceedings the court's order of visitation. In all other respects, we will affirm the juvenile court's order.

FACTUAL AND PROCEDURAL BACKGROUND

On November 18, 2008, the minor, then 16 years old, was placed into protective custody after appellant put him on a plane from San Diego to Sacramento. Airport deputies took the minor to his mother's home. His mother, S.E., dropped him off at a Sacramento youth center claiming he was abusive to her other children and, due to his emotional and behavioral problems, she was unable to care for him.

On November 20, 2008, the Department filed a juvenile dependency petition on behalf of the minor alleging a substantial risk that the minor would suffer serious physical harm or illness due to the failure or inability of the mother to supervise or protect the child adequately. (§ 300, subd. (b).) The petition alleged that the minor's behaviors included running away, suicidal ideations, and threatening to kill his sister and that mother failed or refused to provide adequate care, supervision and protection. (§ 300, subd. (b)(1) [hereafter the (b)(1) allegation].) The petition further alleged that mother was allowing appellant to have unsupervised visitation with the minor despite knowing the court had ordered supervised visitation due to "his physical abuse of the child." (§ 300, subd. (b)(2) [hereafter the (b)(2) allegation].)

At the jurisdictional hearing on February 3, 2009, appellant's counsel requested a waiver of appellant's appearance at both the hearing then taking place and the contested jurisdictional hearing to follow two days later. The court granted the request.

At the contested jurisdictional hearing on February 5, 2009, the court accepted an amendment to the petition, which deleted the (b)(1) and (b)(2) allegations noted above and replaced them with a section 300, subdivision (c) allegation (hereafter section 300(c) allegation), which alleged that the minor's mother was unable to provide for the care, supervision and protection of the minor in that the mother "does not have the necessary skills to parent [the minor] due to the fact that [the minor] is suffering from serious emotional damage evidenced by severe anxiety, depression, withdrawal, and/or untoward aggressive behavior toward self or others." The petition further alleged that the minor had been diagnosed with "Major Depressive disorder," and that his behaviors included running away, suicidal ideations, threatening to kill his sister, and living with appellant "with whom there is a court order for supervised visitation only."

Appellant was absent from the contested jurisdictional hearing but represented by counsel. When asked whether appellant was in agreement with the amended petition, appellant's counsel replied as follows: "I just spoke to the father. He is not in agreement with the resolution or with the new language in the petition, specifically, the language stating that [the minor's] behaviors including [sic] residing with the father in Southern California with whom there is a court order for supervised visitation only. [¶] He is [sic] asked on his behalf that I obtain a continuance either for him to be present to testify or for me to obtain a declaration which he wishes to have read into the record. [¶] He is also--he believes that information that is in the jurisdictional[/]dispositional report, most of it is false and that its continued promulgation is contributing to [the minor's] problems, and so I am requesting a continuance on his behalf. [¶] I would also note that he is not able to take [the minor] into his care and custody at this time and is not requesting that he have any services." (Italics added.) The court noted appellant's objections, but denied his request for a continuance for lack of good cause.

Mother's counsel provided the court with a waiver of reunification services and confirmed that mother was declining reunification services. The court found mother's waiver to be knowing, intelligent and voluntary and denied services to her pursuant to section 361.5, subdivision (b)(14). Thereafter, appellant's counsel requested as follows: "Your Honor, I would be requesting that the Court make a finding under Robert L., that my client is a non-custodial parent who is not seeking reunification services at this time." The court responded, "I will order no services to the father under the case of Robert L. He is a nonoffending father who's not requesting placement of [the minor] or services."

The juvenile court dismissed the (b)(1) and the (b)(2) allegations for insufficient evidence and sustained the section 300(c) allegations in the petition, as modified, adjudged the minor a dependent child of the court (ibid.), committed him to the care and custody of the Department for suitable confidential placement, and ordered regular visitation for the mother with the minor. Included in the court's findings was the following: "An injury or detrimental condition sustained by [the minor] is of a nature as would ordinarily not be sustained, except as the result of the unreasonable or neglectful acts or omissions of the parents, [S.E.] and Michael [E.], who has [sic] the care or custody of [the minor]." The court's order also included a finding that the "whereabouts and/or identity of the father, Michael [E.], are unknown and a reasonably diligent search has failed to locate the father." With regard to compliance with the ICWA, the court found as follows: "[Appellant] has not examined the [form] ICWA-030 for errors. [¶] Notice requirements pursuant to ICWA have been complied with as to the identified tribes and 60 days have passed. [¶] [The minor] is not an Indian Child as to those tribes. [¶] No further notice need be given to those tribes." The matter was set for annual review pursuant to section 366.3, subdivision (d)(4).

Appellant filed a timely notice ...


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