IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Siskiyou)
August 31, 2011
IN RE C.P. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SISKIYOU COUNTY HUMAN SERVICES DEPARTMENT, PLAINTIFF AND RESPONDENT,
B.P., DEFENDANT AND APPELLANT.
(Super. Ct. Nos. SCSCJVSQ095090301, SCSCJVSQ095090401, SCSCJVSQ095090601)
The opinion of the court was delivered by: Mauro ,j.
In re C.P.
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Mother, B.P., appeals from an order made at the 12-month review hearing returning the children to father's physical custody. She contends (1) the trial court erred in conducting the 12-month review under Welfare and Institutions Code*fn1 sections 364 and 366.21, subdivision (f), rather than section 361.2, subdivision (b); (2) there was no substantial evidence to support returning the children to father's physical custody; and (3) the Siskiyou County Human Services Department (Department) did not provide adequate information and proper notice to the relevant tribes under the Indian Child Welfare Act (ICWA).
We conclude the juvenile court did not err in conducting the 12-month review hearing, and that substantial evidence supports the juvenile court's order. Nonetheless, we will reverse and remand to correct the inadequate ICWA notice.
Because the relevant background for the 12-month review hearing and custody order is distinct from the background involving the ICWA notice claim, we will provide the background in the discussion of each claim.
Mother contends the juvenile court erred in conducting the 12-month hearing under sections 364 and 366.21, subdivision (f). She argues the applicable statute is section 361.2, subdivision (b).
Sections 364 and 366.21 are the two statutes under which review hearings occur. A 12-month review hearing must take place pursuant to one of those two statutes. Nonetheless, the juvenile court and the parties were clear that the standard to be applied in making the custody determination was the best interests of the children. We find no error.
Mother and father, Ch.P., had three children, C.P., D.P. and J.P. Beginning in 2007, there were multiple substantiated allegations of general neglect, failure to protect, and unsanitary living conditions. In 2007 and 2009, the parents agreed to participate in voluntary services.
In July 2009, mother left the home because of father's "emotional, verbal and sexual abuse." Mother filed for divorce and sought a restraining order against father. Mother could not provide for the children at that time, so she left them in father's custody.
In August 2009, the police department received a complaint about then four-year-old C.P. playing on the balcony. The home smelled of spoiled food, urine, dirty clothes and rotten garbage. It was littered with open urine soaked diapers, "trash, human feces, moldy food, children's drinking cups and cleaning supplies." It was unsanitary and unsafe. The children were removed from father's home, detained and placed in foster care.
By the six-month review hearing, mother and father were regularly visiting with the children and participated in services. Both parents did well in their daily visits with the children. In mid-December 2009, mother and her boyfriend moved into a home that was appropriate for the children. Based on mother's demonstrated ability to meet her children's needs during visits, the children were moved into her home in January 2010.
An unannounced home visit with mother revealed some concerns regarding the cleanliness of the apartment. A plastic bag containing dirty diapers was open on the floor of the living room. Meanwhile, father and his girlfriend moved into a new apartment in December 2009. Father continued to visit the children and the visits went well. Both parents continued to participate in services, including counseling, a domestic violence program, parenting education, and anger management for father. Although father was participating in services, he missed many sessions. The anger management counselor believed he had "deep-seated anger problems." The children were continued in mother's physical custody. Mother was provided family maintenance services and father continued reunification services.
The social worker reported mother was evicted in July 2010 in part because of the condition of her apartment. Mother apparently left it in an unsanitary and unsafe condition. The property management agents called the police because mother's boyfriend made threatening statements towards them.
A home visitor with Early Head Start, Patty Kimbrell, visited mother's new home. On her first visit, the home was in "awful" condition. Kimbrell was concerned about the safety and cleanliness of the home. One week later, mother addressed the safety concerns and the house was deemed "minimally sufficient."
Mother continued participating in services, including counseling, parenting education and drug testing. Mother demonstrated "really excellent parenting skills," and was cooperative and open to suggestions. She tested positive for a prescription of anti-anxiety medication after taking one of her boyfriend's prescription pills. She subsequently obtained her own prescription. Mother's boyfriend tested positive for THC. Despite her progress, the Department remained concerned about whether mother could continue to maintain a minimally sufficient level of cleanliness in her home. Mother denied the claims about the condition of her former home, her current home, and the children's hygiene. Her boyfriend denied making threats, denied using marijuana, and denied they had left the former home a mess or that the new home was in "awful" condition.
Father maintained stable housing with his girlfriend and her son. He continued to regularly visit with the children, including unsupervised home visits and weekend visits. Father also continued to participate in services, including anger management and counseling. He was better able to manage his anger and met his therapeutic treatment goals. The therapist concluded he no longer needed to continue in counseling. He demonstrated an ability to appropriately parent the children, an increased openness to parenting suggestions and cooperation with the Department.
At the contested 12-month hearing, the social worker continued to express concerns about mother's home, but noted mother demonstrated significant parenting skills and had been working to address the social worker's concerns. Mother assumed the "larger part of the burden of parenting" the children, kept track of their demanding schedules and demonstrated appropriate parenting. However, the Department remained very concerned about her ability to maintain her home at minimally sufficient levels of cleanliness, noting the difference in the condition of the home and the children when the social worker's visits were announced and when they were not. Nonetheless, the social worker did not believe there was a basis to remove the children from mother's home. Mother was working with the Department on the problems and the children were not in danger.
Father had significant visitation with the children, including weekend and overnight visits, and no concerns had arisen regarding his care of the children during those visits. There were no further complaints about the condition of father's home. He appropriately parented the children and made progress in developing his parenting skills and controlling his anger. The social worker did not have any concerns about the children living with father or his ability to maintain a clean home.
The social worker recommended that the children stay with mother, that mother continue with family maintenance services and that father continue with reunification services. The social worker did not have a "strong personal opinion" as to whether it was better for the children to live primarily with mother or father and had no objection to them living with father.
The juvenile court recognized there had probably been a greater focus on mother's home than father's, but also noted there had been multiple concerns raised as to mother's home. The juvenile court found the testimony of mother and her boyfriend were not credible regarding the eviction, the condition of the former home, the threats to the former property management agents, the boyfriend's drug use and the cleanliness of mother's new home. The juvenile court was also concerned about mother's apparent inability or unwillingness to acknowledge her problems. Weighing all the evidence, the juvenile court concluded it was in the children's best interests, and would not create any substantial risk of harm to them, to have their primary residence be with their father. The children were continued as dependents and father was to continue with family maintenance services. Mother was granted visitation and additional services were to be provided to her.
The review hearing was designated a contested "WIC section 364/ 12-Month Review Hearing." Mother contends the juvenile court erred in conducting the review hearing under sections 364 and 366.21,
subdivision (f),*fn2 when it should have conducted the hearing pursuant to section 361.2, subdivision (b).*fn3
In every case in which a minor is declared a dependent, the court must hold review hearings every six months. (§§ 366, subd. (a)(1), 364, subds. (a) & (d), 361.2, subd. (b)(3); Cal. Rules of Court,*fn4 rules 5.706(a), 5.708(a), 5.710, 5.715; In re Natasha A. (1996) 42 Cal.App.4th 28, 38.) Those review hearings must be conducted "under either section 364 or section 366.21. [Citation.] If section 366.21 does not apply, then section 364 must." (In re N.S. (2002) 97 Cal.App.4th 167, 172.) For children not removed from the physical custody of their parent, or removed from and returned to their custodial parent, the review hearing is held pursuant to section 364. (§ 364, subds. (a) & (d); rule 5.710 (b)(1); Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 303-304, 313-316, In re N.S., supra, 97 Cal.App.4th at p. 172.) For children removed from parental custody who remain out of custody, the court must schedule a hearing under section 366.21. (§ 366.21, subds. (e) & (f); Bridget A. v. Superior Court, supra, 148 Cal.App.4th at p. 305; In re Nicholas H. (2003) 112 Cal.App.4th 251, 266.) Where the child is placed with the non-custodial parent pursuant to section 361.2, the court must schedule a review hearing following the procedures of section 366.21. (See In re Nicholas H., supra, 112 Cal.App.4th at p. 267; § 361.2; rules 5.708(k), 5.710(b)(2), 5.715(b)(3).) In a review hearing under these circumstances, the court "must follow the procedures in rule 5.708(k)[*fn5 ] and section 361.2." (Rule 5.715(b)(3); In re Nicholas H., supra, 112 Cal.App.4th at pp. 267-268.)
Where the children are placed with the non-custodial parent, as was the case here, the juvenile court determines if supervision is still required, and if so, whether continued services are necessary and which parent should have custody. That is what the juvenile court did in this case, and it is what mother argues should have been done.
Mother also argues, however, that the juvenile court returned the children to father by "'defaulting' to father under the [section] 366.21(f) presumption of return." But there is no evidence in the record that the juvenile court proceeded in this manner.
The juvenile court was not "restrained by 'any preferences or presumptions.' [Citations.]" (In re Nicholas H., supra, 112 Cal.App.4th at p. 268.) "At the 12-[month] . . . review hearing in a section 361.2, subdivision (b) case in which both parents have been provided services, a finding that the child can safely be returned to the parent from whom custody was removed does not automatically entitle that parent to custody of the child. Instead, such a finding qualifies the parent to receive custody. . . . [T]he risk of detriment assessment and the need for continuing supervision inquiry are valid and relevant considerations when the juvenile court makes a custody decision in a section 361.2(b) case. However, the court must still decide which parent should receive custody of the child by considering the best interests of the child." (In re Nicholas H., supra, 112 Cal.App.4th at p. 268.)
The record indicates the juvenile court weighed the evidence before it and determined it was in the children's best interests to be returned to father's home. This was the appropriate standard.
Mother also contends substantial evidence did not support the juvenile court's determination that it was in the children's best interests to return to father. We disagree.
It is mother's burden as appellant to show there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.) The evidence relied upon must be "'"'"reasonable in nature, credible, and of solid value."'"' [Citation.]" (In re H.B. (2008) 161 Cal.App.4th 115, 120.) However, we do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) "Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court's order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion." (In re L.Y.L., supra, 101 Cal.App.4th at p. 947.)
Mother fails to meet her burden. The social worker recommended keeping the children with mother, but had no objection to them being with father and no strong preference for either parent. Both parents participated in services, appropriately parented the children, made progress in developing their parenting skills and were cooperative with the Department. Nonetheless, the juvenile court noted multiple concerns regarding mother's home and the credibility of mother and her boyfriend regarding drug use, threats to the former landlord and the cleanliness and safety of her home. The social worker was concerned about mother's ability to maintain a safe and sanitary home, and about the safety and hygiene of the children, pointing out the difference between the condition of the home and children when mother was expecting a visit and when the visit was unannounced.
The social worker had no concerns about placing the children in father's home and no concerns regarding his ability to maintain a safe and clean home. He had significant visitation with the children, including weekend and overnight visits, and the social worker had no concerns about the care provided to the children during those visits. After the initial complaint about the condition of father's home, which resulted in the removal of the children, there were no further occasions in which concerns were expressed about the condition of his home. Father made good progress controlling his anger and met his therapeutic goals.
On this record, there was substantial evidence supporting the juvenile court order.
In addition, mother contends the matter must be reversed for failure to provide adequate notice to the tribes pursuant to ICWA. The Department agrees that the matter should be remanded for the limited purpose of providing adequate notice.
Mother and father both stated they might have Cherokee heritage. After the juvenile court found reason to believe the children might be Indian children, the Department sent ICWA notices to the three Cherokee tribes and the Bureau of Indian Affairs (BIA). But the notices did not provide information regarding father's tribal affiliation, or any information regarding the maternal and paternal grandparents and great-grandparents.
The Cherokee Nation twice requested additional information, including the complete names and dates of birth of the grandparents and great-grandparents. Eventually, the Department provided the Cherokee Nation additional information as to the maternal grandparents and great-grandparents, but no information regarding father's relatives. The additional information was not sent to the BIA or the two other Cherokee tribes.
With no further responses from any tribe, the juvenile court found the children were not Indian children.
ICWA requires that notice be given to the appropriate Indian tribe when the juvenile court knows, or has reason to know, that a minor in a dependency proceeding may be an Indian child. (25 U.S.C. § 1912(a); see also § 224.2, subd. (b).) The notice must contain enough information to be meaningful. (In re Karla C. (2003) 113 Cal.App.4th 166, 175.)
Federal regulations require ICWA notice to include, if known, "(1) the name, birthplace, and birth date of the Indian child; (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." (In re Karla C., supra, 113 Cal.App.4th at p. 175; see also In re Louis S. (2004) 117 Cal.App.4th 622, 630.) It is the agency's responsibility to obtain as much information as possible about the child's potential Indian background and to provide that information to the relevant tribe or, if the name of the tribe is not known, to the BIA. (In re S.M. (2004) 118 Cal.App.4th 1108, 1115-1116.) In addition, the agency has a continuing duty of inquiry regarding Indian heritage and the duty to provide additional relevant information to the tribes that it discovers at any time during the proceedings. (See § 224.3, subds. (a) & (f).)
The Department concedes it failed to provide adequate notice with all known relevant information. On this record, we agree. We will conditionally reverse the order and remand for further proceedings.
The order from the 12-month review hearing is reversed conditionally. The matter is remanded to the juvenile court with directions to order the Department to comply with the inquiry and notice provisions of ICWA. If, after proper and complete notice, the BIA or a tribe determines that the minors are Indian children as defined by ICWA, the juvenile court is directed to conduct a new 12-month review hearing in conformity with ICWA. If, on the other hand, no response is received or the BIA or the tribes determine the minors are not Indian children, then the juvenile court shall reinstate all previous findings and orders. In view of our conclusion that there was no error in placing the minors with father, that order shall remain in effect pending the juvenile court's further proceedings under ICWA.
We concur: RAYE , P.J. BUTZ ,J.