Super. Ct. Nos. SCSCJVSQ095085701 SCSCJVSQ095085801
The opinion of the court was delivered by: Hull , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In case No. C062568, B.R., mother of minors C.R. and K.R., appeals from the juvenile court's jurisdictional findings and dispositional orders, contending: (1) the record fails to show proper notice was given under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)); (2) the court failed to obtain a valid waiver of mother's right to a contested jurisdictional hearing; and (3) substantial evidence does not support some of the court's findings and orders. (Welf. & Inst. Code, § 395; undesignated statutory references that follow are to the Welfare and Institutions Code.) In case No. C063776, mother appeals from the court's orders at the six-month review hearing. We consolidated the appeals on our own motion. We shall reverse and remand for further proceedings under ICWA, but with one exception shall reject mother's other contentions.
On May 12, 2009, Siskiyou County Human Services Department (the Department) filed petitions under section 300, subdivisions (b) and (g), as to C.R. (a female aged 11) and K.R. (a female aged 9). The petitions alleged:
Mother left the minors alone at home for a weekend while she went out drinking. Found intoxicated, she was arrested and incarcerated for child endangerment. The residence was filthy, with no phone and almost no food. Psychotropic medications were within the minors' reach. The minors had to burn candles while left alone. K.R. had been sick during the weekend, with only C.R. to care for her. C.R. said she did not want to live with mother anymore because she was tired of staying up every night until mother passed out from drinking. Mother denied or minimized the significance of these events. The minors had two different fathers, both living out of state.
The detention report further alleged: Mother claimed a friend was looking after the minors, but the friend and the minors denied it. The alleged fathers had not yet responded to contacts. The minors were at serious risk of harm in mother's care because she had left them in dangerous conditions and did not understand the risks; to regain custody safely, mother would need substance abuse counseling and treatment, parenting classes, a psychological evaluation and follow-up, general counseling, and attendance at AA/NA meetings. An ICWA inquiry was needed because the minors might be members of a Cherokee tribe.
At the detention hearing, mother testified that she had previously been married to both alleged fathers, and that her father was an enrolled member of a Cherokee tribe who lived in Oklahoma. The juvenile court found the alleged fathers to be presumed fathers, ordered the minors detained with visitation for mother, and directed an ICWA inquiry.
Subsequently, at mother's request, the juvenile court set a contested jurisdictional hearing on June 25, 2009.
The jurisdiction report, filed June 15, 2009, stated:
The minors were currently placed together in a certified foster home. The Department was investigating their alleged Indian ancestry.
Mother, who had a history of DUI's, said on May 15, 2009, that she would not stop drinking or attend AA meetings. She tested positive for alcohol metabolites on that date and three later dates, most recently on June 3, 2009. On June 10, 2009, she said she planned to attend AA meetings with her son, but had not yet documented doing so. She would discuss other programs or services only with an attorney present.
Mother had had supervised visitation with the minors, but missed several visits. When she visited, she discussed legal topics, though she was advised not to do so; the discussions upset the minors. One visit was terminated because she secretly brought unauthorized people along.
Both presumed fathers wanted custody of at least one minor. However, both admitted criminal records. One presumed father had a history with Child Protective Services, and the minors said the other presumed father hit one of the minors with a belt.
The Department recommended removing the minors from the custody of all parents and offering them reunification services.
At the jurisdiction hearing on June 25, 2009, mother appeared with counsel. The juvenile court stated: "I understand that although there was a request for a contested hearing, that may not be the case any longer." Mother's counsel replied: "That's correct. We were prepared to go forward with the contested hearing. Two of our witnesses are no shows today. And I've advised the mother of this and what possible outcomes there are, but she has asked to submit the case and begin services as quick as she can. [¶] So, we'll be submitting by way of a paper case . . . ."
The juvenile court found the allegations of the section 300 petitions true as to both subdivisions (b) and (g). The court directed the parents to give the Department the information it needed to carry out an ICWA inquiry. The court also ordered mediation of dispositional issues. Finally, the court set a contested disposition hearing on July 31, 2009.
After the jurisdictional hearing, mother signed a mediation agreement obliging her to participate in alcohol and drug assessment, follow recommended treatment, visit the minors twice a week, continue individual counseling, take prescribed medication, attend parenting classes, and go to at least three 12-step meetings a week.
The disposition report, filed July 10, 2009, stated:
ICWA appeared inapplicable: all noticed tribes had responded and none had stated the minors were members or eligible for membership.
The minors were doing well in placement. Mother was seeing them in supervised visits, which were going better than they had gone before.
Mother still lived in the apartment from which the minors were removed, but said she had been trying to clean it up. She claimed she was dating a man who was in recovery and supported her efforts to get sober. However, she had not documented attendance at 12-step meetings. Out of eight tests mother had undergone since the jurisdiction hearing, three were positive for alcohol and the rest were dilute. According to a physician's note admitted in evidence at the dispositional hearing, her medications required her to drink copious amounts of water.
Mother wanted the minors returned to her immediately under a family maintenance plan; she said she was willing to participate in court-ordered services. Both fathers had histories of substance abuse and violence.
The Department recommended that the minors be declared dependents of the juvenile court and removed from the parents' custody, with reunification services to be offered them.
At the contested dispositional hearing on July 31, 2009, the juvenile court received into evidence a letter dated the day before from a counselor at Siskiyou County Office of Alcohol and Drug Treatment Services, stating: (1) mother had been assessed that day and diagnosed with alcohol dependence in early remission; (2) she had been referred to Next Step Intensive Outpatient Treatment, and staff would contact her for admission to the program; (3) she had been referred to Recovery 101 while awaiting admission to Next Step; (4) she was to continue attending AA meetings. The court also received into evidence an exhibit documenting mother's attendance at 25 to 30 AA/NA meetings.
C.R. testified in chambers as follows:
She would not want to live with either presumed father. She would "love" to have the juvenile court return her to mother; she wanted to live with mother and K.R.
She did not tell the social workers that she had had no idea where mother was at the time of detention; she knew exactly where mother was. Mother did not drink "that often," but only "sometimes," and not "a lot." C.R. did not say she was tired of waiting up every night for mother to pass out from drinking; she just said she was tired of mother's drinking.
K.R. testified in chambers that she wished she could live with her father and with mother.
Jennifer Moody, the social worker assigned to the case, testified that K.R.'s father had a history of physically abusing C.R. She had discussed "to a limited extent" with the minors their wish to return to mother's home; she did not recall why that did not appear in her report.
Mother testified as follows:
She left K.R.'s father because he was abusive with her and the minors, used methamphetamine, and was facing criminal drug charges. She left C.R.'s father because he was abusive and alcoholic and went to prison for assaulting one of the minors.
She acknowledged her dependence on alcohol. She was going to AA meetings. She planned to attend Next Step and Recovery 101. She was continuing with individual counseling and psychiatric sessions. She was up to date with her medications.
Asked if her alcohol use was still a problem as to regaining custody of the minors, she answered: "I believe it was an issue at the time that the children were detained, yes. I do not see it as an issue now because I am taking the steps I need to take to fix the problem." She was ready to have the minors returned to her.
After hearing argument, the juvenile court found and ruled:
1. Given the fathers' history of physically abusing minors, it would be detrimental to the minors to place either ...