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In Re Joshua D., A Person Coming Under the Juvenile Court v. April R

December 2, 2010

IN RE JOSHUA D., A PERSON COMING UNDER THE JUVENILE COURT LAW. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
APRIL R., DEFENDANT AND APPELLANT.



(Alameda County Super. Ct. No. HJ09012236)

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

In re Joshua D.

CA1/5

Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

April R. (mother) appeals from various jurisdiction and disposition orders and from an order suspending visitation with her son, Joshua D.*fn1 Mother contends the court: (1) abused its discretion by suspending visitation; (2) erred by "denying [her] immediate visitation in a therapeutic setting"; (3) impermissibly delegated judicial authority to Joshua's therapist to determine whether visitation should occur; and (4) violated the notice requirements of the Indian Child Welfare Act, 25 United States Code section 1901, et seq. (ICWA).

We affirmed. We determined the court did not abuse its discretion by suspending visitation and by denying mother visitation in a therapeutic setting. We also concluded mother's complaint about lack of ICWA notice was not cognizable on appeal because the visitation order was not an "Indian Child custody proceeding" within the meaning of ICWA and Welfare and Institutuions Code section 224.1.*fn2 We reached this conclusion after determining mother's opening brief failed to challenge the jurisdiction or disposition orders.

Mother petitioned for rehearing. She claimed her opening and reply briefs clearly argued the court failed to comply with ICWA notice provisions at the May 14, 2009 disposition hearing. We granted the petition for rehearing. We modify our opinion to conclude the court failed to provide ICWA notice at the May 14, 2009 disposition hearing. We therefore remand for the limited purpose of ensuring compliance with ICWA.

FACTUAL AND PROCEDURAL BACKGROUND

Detention and Jurisdiction

Joshua was born in 1999. In March 2009, the Alameda County Social Services Agency (Agency) filed a nondetaining petition pursuant to section 300, subdivisions (b) and (g) alleging the trailer where mother and Joshua lived was "filthy and unkept" and that there were large piles of dirty clothes, "minimal food," and open bottles of alcohol in the trailer. The petition further alleged mother had been in "several domestic violence incidents" witnessed by her son, was being evicted, and had been "uncooperative" when the Agency tried to offer her services. Finally, the petition alleged Joshua was "tardy to school everyday" and arrived "unclean" and without having eaten breakfast.

The Agency amended the petition in April 2009 to add allegations that mother refused to give a child welfare worker access to her home, had avoided drug testing by shaving "all of her bodily hair," and was living with father, "a registered drug offender" with whom she had a history of domestic violence. The court detained Joshua in late April 2009 and ordered mother to comply with various drug testing requirements. Joshua began living with his maternal grandmother, Vicky R.

The court held a contested jurisdictional hearing in late April and early May 2009. On May 7, 2009, the court sustained various allegations in the amended petition that mother failed to supervise or protect Joshua (§ 300, subd. (b)). Among other determinations, it concluded there was clear and convincing evidence that leaving Joshua in mother's custody would create substantial danger to his physical and emotional well-being.

On May 12, 2009, father informed the Agency that he believed there was "some Cherokee in his family" but was "unsure whether anyone is a tribe member." The next day, the Agency filed a second amended section 300 petition that included information about father's potential Cherokee heritage. On May 14, 2009, the Agency filed an addendum report on the second amended petition. The addendum report noted that ICWA "may apply" and that father "believed there may be some Cherokee in his family." The addendum report, however, did not make any proposed findings regarding ICWA. That same day, the court ...


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