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In Re Jo.W. et al., Persons Coming Under the Juvenile Court Law. v. J.W

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,
v.
J.W.,
DEFENDANT AND APPELLANT.



(Super. Ct. Nos. JD230232, JD230233)

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

In re Jo.W.

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


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