IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
December 21, 2010
IN RE JO.W. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
DEFENDANT AND APPELLANT.
(Super. Ct. Nos. JD230232, JD230233)
The opinion of the court was delivered by: Butz ,j.
In re Jo.W.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
J.W., father of Jo.W. and Je.W. (the minors),*fn1 appeals from the juvenile court's order finding the minors to be persons within the meaning of Welfare and Institutions Code section 300,*fn2 and removing them from the physical custody of C.J. (mother). (§§ 300 & 361.1.) Father contends (1) there was insufficient evidence to support the removal order; (2) the juvenile court's visitation order was an unlawful delegation of its power to the Sacramento County Department of Health and Human Services (the Department); and (3) the Department failed to provide notice in accordance with the Indian Child Welfare Act of 1978 (the ICWA). (25 U.S.C. § 1901 et seq.) The Department concedes the ICWA error. Agreeing with father as to the latter claim only, we accept the Department's concession and reverse conditionally and remand for proper notice under the ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
On October 6, 2009, the minors and their three half siblings*fn3 were placed in protective custody after the maternal grandmother, Yvonne W., contacted law enforcement and reported that mother left all five children alone for five days, leaving the oldest child, 12-year-old H.W., in charge of the other children, with no food in the house.*fn4 Emergency personnel transported Jo.W., the younger of the two minors, to the hospital after he was found chewing on a small bag containing marijuana. The maternal grandmother told officers mother was addicted to methamphetamine and the marijuana likely belonged to her. Officers searched the home and confirmed there was no milk, bread or other food, and no clean diapers for the children.
The social worker interviewed the minors' half siblings, D.A., O.W. and H.W. D.A. said, "We run out of food, my mom gets money and goes to the store," and that mother told her she had to "make money so she can buy some food." O.W. said mother left "about two weeks ago with her friend, Alfredo." H.W. told the social worker mother "left home on Friday morning . . . and has not returned." He said mother had "never left us like this before. I think she went to Red Hawk Casino with her friend, Alejandro. She didn't leave us any money or food, and my little brothers were running out of pampers." O.W. and H.W. both thought the bag of marijuana the youngest minor was found chewing likely belonged to their mother.
The social worker interviewed mother on October 6, 2009. Mother denied leaving her children unsupervised, explaining that she left her home on October 4, 2009, to go to Thunder Valley Casino with her friends to celebrate their birthday and left the children in the care of the maternal grandmother. She claimed she informed the maternal grandmother where she was going and said "[t]here was food in the home when I left, but then the food was gone when I came home, and I don't know what happened to the food." She claimed she only drinks on special occasions. She did not know who the marijuana belonged to and denied any drug use.
That day, the social worker offered mother informal supervision services, including alcohol and drug testing, alcohol and drug assessment, and parenting classes, in lieu of court intervention. Mother verbally agreed to informal services and provided a telephone number where she could be reached. The social worker informed mother that a home evaluation would need to be conducted before the children could be released back into her care.
Later that day, the social worker called mother at the number provided and left a message with two appointment times; however, mother never returned the call.
The social worker went to mother's home the following day to obtain her signature on the informal supervision services agreement, but mother either was not home or did not answer the door. The social worker left her business card with a handwritten note on the back asking mother to contact her. Mother did not contact the social worker, nor did she sign the informal supervision services agreement.
On October 8, 2009, the Department filed juvenile dependency petitions on behalf of both minors alleging mother's failure to provide adequate care, support and supervision. ( 300, subd. (b).)
On October 14, 2009, the court ordered the Department to "offer reunification services to the parents without prejudice to further recommendations by the Department." The court also ordered the Department to "assess [father] for detriment for visitation while incarcerated." The November 2009 jurisdiction/disposition report confirms that portion of the court's order as follows: "The Department shall assess [father] for detriment of visits while incarcerated and provide an assessment in the Jurisdiction/Disposition Report."
The contested jurisdictional/dispositional hearing was held on March 15, 2010. The juvenile court sustained the allegations in the petitions, adjudged the minors dependent children of the court (§ 300, subd. (b)), and committed them to the care and custody of the Department for suitable confidential placement. The court found the minors did "not have a close and significant bond or attachment to [father]" and, based on their young age and the lack of a bond to father, the court denied services to father pursuant to section 361.5, subdivision (e).
With regard to visitation, the court found as follows: "The Court is going to order the Department to assess whether visits while [father] is incarcerated would be detrimental. If found not detrimental, supervised a minimum--strike that--supervised and as arranged and directed by [the Department] consistent with the well-being of the children. [¶] Following release from incarceration, the Court would order supervised visits, again, as arranged and directed by the Department consistent with the well-being of the children." The court's order states: "The Department shall assess detriment to the children if the children visit [father] while incarcerated. If determined not to be detrimental, then father shall have supervised visitation as arranged and directed by [the Department] while he is in custody and upon his release."
Father filed a timely notice of appeal.
I. Evidence to Support Removal Order
Father contends the removal order is not supported by substantial evidence of danger to the minors' safety and welfare if returned to mother. We disagree.
Section 361, subdivision (c)(1) provides, in relevant part: "A dependent child may not be taken from the physical custody of his or her parents . . . unless the juvenile court finds clear and convincing evidence . . . [¶] [that] [t]here 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." We review the juvenile court's determination in this regard under the substantial evidence test. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881; In re Basilio T. (1992) 4 Cal.App.4th 155, 170.)
Substantial evidence supports the juvenile court's removal order. Mother left her five children, all under the age of 13 (including the two- and three-year-old minors), for five days, unsupervised and unaware of her whereabouts. The record states mother either left the children alone, leaving the 12 year old in charge of the other children, or she left them in the care of the maternal grandmother who told authorities she was unable to care for the children, and who, by the accounts of others, uses illegal substances herself. In either case, the minors were placed at substantial risk of harm, abuse and neglect. Responding officers confirmed there was no milk or bread in the house, and no clean diapers. The younger of the two minors was found chewing on a small bag containing marijuana which likely belonged to mother, although she disputes that fact.
Father claims the court failed to consider viable alternatives to removal, such as returning the minors to mother's custody under close supervision with established conditions, or conditioning the minors' return on mother's participation in a substance abuse program or regular drug testing. However, mother had already demonstrated the futility of those options. She ignored the social worker's attempts to contact her by telephone and in person to schedule an appointment, and failed to participate in any way in the informal supervision services offered to her prior to removal. She spent a significant amount of time in the garage with her friends drinking beer prior to removal of the minors, and failed to visit the children for weeks at a time, did not return their telephone calls, and did not participate in drug testing after removal. Placement with the maternal grandmother was also not an option, given her own admission that she was unable to care for the children, as well as father's claim that she "uses illegal drugs," a fact known to mother "for several years."
Substantial evidence supports the juvenile court's removal order.
II. Valid Visitation Order
Father contends the juvenile court abused its discretion by delegating to the Department the sole authority to determine whether visits while father was incarcerated would be detrimental. We disagree.
Father never objected to the visitation order in the juvenile court. Many dependency cases have held that, unless the claimed error involves the fundamental jurisdiction of the court to act, a party's failure to object or raise certain issues in the juvenile court forfeits the right to present the issue to the appellate court. (In re Dakota S. (2000) 85 Cal.App.4th 494, 502, citing In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339 and In re Riva M. (1991) 235 Cal.App.3d 403, 412.) Because of father's failure to object at the hearing, he forfeits his right to raise the issue on appeal. In any event, his claim fails on the merits.
It is the court's obligation to define a parent's right to visitation. (In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1476.) Apart from the decision to allow for visitation itself, the court may delegate all other aspects of managing the details of the visits to the Department. (In re C.C. (2009) 172 Cal.App.4th 1481, 1489; In re Moriah T. (1994) 23 Cal.App.4th 1367, 1373-1374, 1376-1377 (Moriah T.).) We review a juvenile court's visitation ruling for an abuse of discretion. (Los Angeles County Dept. of Children & Family Services v. Superior Court (2006) 145 Cal.App.4th 692, 699, fn. 6.)
In making visitation orders, a juvenile court can properly delegate "the ministerial tasks of overseeing the right as defined by the court. . . . Such matters as time, place and manner of visitation do not affect the defined right of a parent to see his or her child and thus do not infringe upon the judicial function." (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.) "Only when a visitation order delegates . . . the absolute discretion to determine whether any visitation occurs does the order violate the statutory scheme and separation of powers doctrine." (Moriah T., supra, 23 Cal.App.4th at p. 1374.)
Here, the juvenile court ordered "the Department to assess whether visits while [father] is incarcerated would be detrimental. If found not detrimental, supervised a minimum--strike that--supervised and as arranged and directed by [the Department] consistent with the well-being of the children." The court further ordered supervised visitation with the minors following father's release from incarceration, "again, as arranged and directed by the Department consistent with the well-being of the children."
Father argues the court's order effectively delegated to the Department the complete discretion to determine whether any visitation would occur at all and, if so, how visits would be arranged and supervised. He argues that visitation orders are governed by section 362.1, subdivision (a)(1)(A) (visitation between parent and child "shall be as frequent as possible, consistent with the well-being of the child") and section 361.5, subdivision (e)(1)(C) ("Services may include . . . : [¶] [v]isitation services, where appropriate"), thus requiring the court to consider certain factors in assessing detriment to the child. Father is wrong on both counts.
Where, as here, the juvenile court denies services to an incarcerated parent pursuant to section 361.5, subdivision (e)(1),*fn5 section 361.5, subdivision (f) controls and "gives the court discretion to allow the parent to continue visitation with his or her child unless it finds that visitation would be detrimental to the child." (In re J.N. (2006) 138 Cal.App.4th 450, 457.)
The court exercised its discretion under section 361.5, subdivision (f), ordering visitation with the minors to occur during father's period of incarceration and after his release. The court delegated to the Department the job of making specific arrangements such that visitation would be "consistent with the well-being of the children," and further tasked the Department with assessing whether visitation during father's incarceration would be detrimental to the minors. Because we presume the court regularly performed its official duty (Evid. Code, § 664), we infer from the order that the court intended for the Department to conduct an assessment of father and report any findings of detriment to the court for further hearing and a final determination by the court on that issue.
There was no error.
III. The ICWA Compliance
Father contends the jurisdictional findings and orders must be reversed due to the juvenile court's failure to provide adequate notice pursuant to the ICWA. The Department concedes the error and agrees that the matter should be remanded for the limited purpose of providing adequate notice in accordance with the ICWA.
At the time of removal, mother reported she might have Native American heritage but she did not know with which tribe she might be affiliated. The court ordered her to complete a supplemental questionnaire. She never did.
The ICWA notice was sent to the Bureau of Indian Affairs (BIA). The notice contained the mother's name, address and date of birth; father's name and date of birth; and the paternal grandmother's name and address.
The Department filed notice of return receipt of the ICWA notice from the BIA.
The continued prejurisdictional status hearing was held on February 1, 2010. The issue of the ICWA compliance was discussed, but only with respect to the father of two of the minors' half siblings.
At the jurisdictional/dispositional hearing on March 15, 2010, the court noted that the tribes had either responded to the notices sent, indicating the minors were not eligible, or that 60 days had passed since the tribes received notice. The court then asked, "Do any counsel wish to be heard on the Court's tentative ruling that the children would be found not to be Indian within the meaning of the [ICWA]?" Counsel for father did not respond. The court asked whether anyone had "any information to the contrary?" Again, father's counsel remained silent. The court found that, "based on the notice and the tribes responding or 60 days having elapsed, . . . the children are not Indian within the meaning of the [ICWA]." The court's order states that all the ICWA requirements "have been complied with as to the identified tribes" and concludes that the minors "are not an [sic] Indian Children as to those tribes."
The ICWA provides, in part: "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." (25 U.S.C. § 1912(a).) The Indian status of a child need not be certain or conclusive to trigger the ICWA's notice requirements. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471.) California Rules of Court, rule 5.481(b) contains identical requirements.
The Department and the juvenile court have an affirmative and continuing duty to inquire whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.481(a).) If, after the petition is filed, the court "knows or has reason to know that an Indian child is involved," notice of the pending proceeding and the right to intervene must be sent to the tribe or the BIA if the tribal affiliation is not known. (25 U.S.C. § 1912(a); Cal. Rules of Court, rule 5.481(b).) Failure to comply with the notice provisions and determine whether the ICWA applies is prejudicial error. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424; In re Desiree F., supra, 83 Cal.App.4th at p. 472.)
"ICWA notice requirements are strictly construed. [Citation.] The notice sent to the BIA and/or Indian tribes must contain enough information to be meaningful. [Citation.] The notice must include: if known, (1) the Indian child's name, birthplace, and birth date; (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. [Citation.] To enable the juvenile court to review whether sufficient information was supplied, [the Department] must file with the court the ICWA notice, return receipts and responses received from the BIA and tribes." (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.)
The Department concedes it failed to provide adequate notice with all known relevant information to the BIA. Having reviewed the record and the applicable law, we accept the Department's concession. Despite mother's failure to comply with the court's order to complete the supplemental questionnaire or to otherwise provide information relevant to her claim of possible Indian heritage, the Department failed to include in the notices sent to the BIA relevant information known to it or easily obtainable; namely, the places of birth of the minors, and the name, address, birth date and birthplace of the maternal grandmother. Inclusion of that latter information was imperative, given that mother was the party alleging possible Indian heritage. (In re Francisco W., supra, 139 Cal.App.4th at p. 703; In re Louis S. (2004) 117 Cal.App.4th 622, 630-631 [notice must include available information about the maternal and paternal grandparents, including names, birth dates, place of birth, current and former addresses, tribal enrollment numbers].)
On limited remand, the Department must send new notices of the dependency proceedings to the BIA with all known information about father and all other known family history, including, but not limited to, the maternal grandmother's name, address, birth date, birthplace and other identifying information. (In re Francisco W., supra, 139 Cal.App.4th at pp. 704-706.)
The jurisdictional and dispositional orders are reversed conditionally, and the matter is remanded to the juvenile court with directions to order the Department to comply with the inquiry and notice provisions of the ICWA. If, after proper and complete notice, the BIA or a tribe determines that the minors are Indian children as defined by the ICWA, the juvenile court is ordered to conduct a new jurisdictional/dispositional hearing in conformity with all provisions of the ICWA. If, on the other hand, no response is received or the BIA or a tribe determines the minors are not Indian children, then the juvenile court shall reinstate all previous findings and orders.
NICHOLSON , Acting P. J.