Trial Court: Lake County Superior Court Trial Judge: Hon. Robert Crone Jr. (Lake County Super. Ct. No. PR501078)
The opinion of the court was delivered by: Siggins, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
The probate court appointed 16-year-old H.C.'s brother and sister-in-law as her guardians over the objection of her mother, L.B. L.B. contends the court committed constitutional error when it declined her requests for appointed counsel. She also asserts the guardianship is not supported by substantial evidence and that the court failed to obtain a statutorily required report and comply with the notice requirements of the Indian Child Welfare Act (ICWA). In the published portion of this opinion, we conclude L.B. was not entitled to appointed counsel. In the unpublished portion we conclude that only the ICWA claim has merit. We therefore order a limited reversal for compliance with the ICWA, and otherwise affirm the judgment.
H.C. Comes To Live With Z.B. and Heather B.
H.C. was born in May 1995. Her brother Z.B., 16 years her senior, had always been a father figure to her. Z.B. became concerned about his sister in the spring of 2008, when she was in seventh grade. Her academic performance had plummeted and she had been caught smoking marijuana, stealing condoms and skipping school. Z.B. and his wife, Heather B., tried to arrange for H.C. to spend a semester with them in Santa Rosa, but L.B. would not permit it.
In May 2009 Z.B. drove to Clearlake to check on H.C. When he arrived, she and her friends were smoking marijuana and cigarettes. L.B. was asleep on a couch a couple of feet away. Z.B. told H.C. that she was coming to live with him. H.C. packed her things and left voluntarily with Z.B.
Z.B. decided that one way to help H.C. was to have her talk with her various family members about her poor behavior. One of those relatives was L.B.'s brother Steven M., who owned the house where H.C. and L.B. lived. When it was time for her to speak with her uncle Steven, H.C. started screaming and crying as they drove to Steven's house. Finally, she told Z.B. that Steven had molested her. Z.B. took H.C. back to her mother's home and called his wife to figure out what to do next. That evening Z.B. learned that L.B. left H.C. at Steven's house. He picked her up and together they reported the molestation to the sheriff.*fn2
Once the matter was reported to the sheriff, Lake County Child Protective Services (CPS) became involved. H.C. told the assigned child protective worker that L.B. knew she smoked marijuana, and L.B. admitted she used methamphetamine within two weeks of her interview by CPS. Although L.B. knew about the molestations she had not notified the police, sought medical care, or taken any steps to protect her daughter. The case worker concluded it was necessary to place H.C. either with a guardian or in foster care.
CPS could not place H.C. with Z.B. if she were formally detained in a dependency because he had a criminal record. However, he was the only person who demonstrated any care for H.C., and the caseworker felt that placement with Z.B. and Heather would be better for her than foster care. When she was presented with the alternatives of foster care or placement with Z.B., L.B. signed a non-binding "safety plan" consenting to let H.C. live temporarily with her brother and sister-in-law.
Z.B. and Heather quickly filed petitions for appointment as H.C.'s temporary and permanent guardians. They alleged that H.C. had been sexually assaulted by Steven, that Steven came by her house every day, and that due to the assaults she had been getting into trouble and missing school. They further alleged that L.B. knew about the assaults but failed to notify law enforcement, had an ongoing drug problem, and relied on Steven for a home, work, and money. H.C. filed a written consent to the proposed guardianship.
The court denied the petition for temporary appointment on June 12, 2009, after Z.B. and Heather failed to appear at two scheduled hearings.
The Court Investigator's Report
The court investigator filed a report on July 23, 2009. Z.B. told the investigator that both of his parents abused methamphetamines when he was a child. He related a childhood and early adulthood spent moving from place to place with his mother and various relatives and friends, punctuated by about a year and a half in juvenile detention facilities when he was in high school. In his early twenties Z.B. moved to San Diego and fathered his first child. He owed back child support but was making support payments. Eventually he moved back to Northern California, where he lived with a woman for several years and fathered a daughter.
Z.B. started using methamphetamine when he was 23 or 24 years old and used heavily between 2005 and 2006, but he completed a nine-month drug program and told the investigator he was drug-free except for one "slip up" within a year of the interview. Z.B. spent a year in jail for possession of methamphetamines when he was in San Diego and since then was arrested for fighting about three times. Heather had one arrest from June 2009 that she explained to the court investigator occurred when she picked up mail from a former address where she and Z.B. were still receiving mail and was arrested for possession of stolen property. The case was pending during the guardianship proceedings.
Z.B. and Heather met in 2005, married in 2007, and had a child in 2009. Z.B. said that Heather brought structure to his life and enabled him to care for H.C. The couple lived in a two-story, three-bedroom home in a residential neighborhood, where H.C. shared a bedroom with Z.B.'s eight-year-old daughter from his previous relationship. The home was very clean and well kept. Z.B. did some plumbing jobs and had received a workers' compensation settlement for a job-related injury. Heather worked part-time for a construction company and was starting a vending machine business with Z.B. She also had some business dealings on eBay.
The confidential portion of the investigator's report provided the detail of Z.B.'s criminal history. He had a number of arrests between 1994 and 2008: a 1998 conviction for battery, a 2004 conviction for transporting controlled substances that was set aside after he completed a drug treatment program, a 2007 conviction for fighting in public, and a 2008 probation violation and misdemeanor convictions for possession of a controlled substance and grand theft.
L.B. had been arrested three times between 1994 and 2004. Each incident involved possession of a controlled substance. In 2004 she was arrested in Kansas for possession of simulated controlled substances, child endangerment, possession of opiates and driving with a suspended license, but was convicted only for driving on a suspended license.
During the guardianship proceeding, H.C. was living with Z.B. and Heather in Rohnert Park. She did not want to live with L.B. She told the court investigator that she told L.B. about Steven's sexual abuse of her just before Christmas 2008, but that L.B. continued to leave her alone with Steven and told her not to tell Z.B. Steven dropped by their house every day.
H.C. believed her mother had drug problems. L.B. slept "all the time," and was hard to awaken. L.B. told H.C. that it was all right for her to smoke marijuana and would call H.C.'s school to provide excuses for H.C. when she skipped class, as she often did.
Asked to explain the differences between living with L.B. and living with Z.B. and Heather, H.C. said that in her brother's home she had to go to school; there was food in the refrigerator; someone was always home when she got back from school every day; she had new clothes to wear; they had a "sit-down" dinner every evening; she lived in a clean house; and she had chores to do. She said that all of these "are the opposite" of living with L.B. H.C. did not like some of Z.B. and Heather's rules, but she was beginning to realize they were imposed for her own benefit.
L.B.'s house was cluttered, unkempt and dirty when the court investigator visited. L.B. said she was packing to move, but had not yet decided where she would go or found other housing. The conditions in the home were not suitable for a teenage girl.
L.B. said she had been arrested a "few" times in her life, and was evasive about her drug use. She initially denied ever abusing drugs or alcohol. Then she said she had used methamphetamine "once in a while, a long time ago", then, that she does use methamphetamine "once in a great while." Finally, she said that "[i]f it (methamphetamine) falls in my lap, I might, but I wouldn't waste money on it."
CPS had records of two neglect-related referrals of L.B. concerning Z.B. in the late 1980's. As to the current referral, L.B. said that CPS coerced her into permitting H.C. to stay with Z.B. She also said that Z.B. and Heather had gotten H.C. to lie about the alleged molestation. L.B. said that when H.C. first told her what Steven was doing she offered to go to the police, but H.C. "freaked out" and said, "No, no, it was not that bad." In L.B.'s view, Steven was not a sexual predator. She thought he was trying to teach H.C. something, and "crossed the line." She ...