APPEAL from a judgment of the Superior Court of Los Angeles County, Steven R. Klaif, Juvenile Court Referee. (Los Angeles County Super. Ct. No. CK87644)
The opinion of the court was delivered by: Croskey, J.
CERTIFIED FOR PUBLICATION
Reversed and remanded with instructions.
Appellant Sandra D. (mother) appeals from a judgment declaring her two sons, Christian P. and Antonio R., dependents of the court based on findings made by the trial court pursuant to Welfare and Institutions Code*fn1 section 300, subdivision (b). Mother contends (1) that the trial court erred in ruling that DCFS need not comply with section 827 before using and disseminating evidence from an unrelated dependency case and in admitting such evidence in her case; (2) that the evidence was insufficient to support the trial court's jurisdictional finding that the children suffered, or were at a substantial risk of suffering, serious physical harm or illness; and (3) that the trial court erred in finding that DCFS complied with the inquiry and notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901, et seq.). She seeks to reverse the ruling that section 827 does not apply and reverse the judgment based on the finding that her children were subject to dependency jurisdiction pursuant to section 300, subdivision (b). In the alternative, if we hold that the jurisdictional findings are supported by substantial evidence, she seeks to remand the case with instructions that the trial court order DCFS to comply with ICWA's notice and inquiry provisions.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has three children, Natalia B. (born in October of 1998), Christian (born in August of 2001), and Antonio (born in February of 2005). Natalia has lived with her father, Juan B., since 2008 after mother was arrested. Neither Natalia nor her father is a party to the underlying petition or this appeal. This appeal only involves Christian and Antonio.
Christian and Antonio came to DCFS's attention on March 22, 2011 via a referral alleging general neglect and drug use in the home. In addition to mother and her two sons, mother's boyfriend, Carnell B.; Carnell's friend, K.J.; K.J.'s son, K.J., Jr.; and K.J.'s girlfriend, Traci W., all lived in the home.*fn2 K.J. and Traci also have a daughter, Amirah J. However, it is unclear from the record whether Amirah also lived in the home. When DCFS's social worker arrived at the home to initiate an investigation, K.J. answered the door but would not allow the social worker into the home; however, he provided mother's cell phone number to the social worker. When mother returned, she allowed the social worker to enter and explained that she had left Christian and Antonio with K.J. while she was out running errands with Carnell.
DCFS interviewed mother, K.J., Christian and Antonio. Mother denied she had a history of drug use and stated that she had never seen K.J. smoking or using drugs in her home. Mother stated that no one in the home was employed or pays rent. Mother believed that Traci, who had moved out a few days prior, was mentally ill and had made the allegations against her and the others. Christian stated that K.J. smoked cigarettes outside but denied seeing any drug use in the home. K.J. also denied any drug use but admitted to smoking cigarettes outside. K.J. also stated that he slept in the garage then showed the social worker where he slept.
DCFS followed up with a visit to the home about one month later. A neighbor informed the social worker that mother had not been home for a few days due to an alleged gang altercation involving Carnell and K.J. However, mother was home and explained that she had left previously due to the altercation, fleeing with her children, Carnell, and K.J. She stated that Carnell is African-American and when he and K.J. went to the store to purchase milk and a pack of cigarettes, some "cholos" across the street began to call Carnell derogatory names. When they left the store, the alleged gang members followed them home and attempted to punch Carnell. Carnell defended himself and he and K.J. ran into the house. When the neighbor attempted to intervene, the alleged gang members punched him in the face. Mother stated she was frightened that they would return so she left. She believes the incident was not a gang problem but was a race problem. She later contacted Christian's father, Eloy P., and asked him to take care of Christian for a little while and she sent Antonio to stay with friends in San Bernardino. The children were out of school for a week due to this incident. Mother was not willing to stop seeing Carnell as a safety precaution.
DCFS interviewed Christian again when his father brought him into the DCFS office on April 28, 2011. He informed the social worker that, before he went to live with his father, he, Antonio, mother, Carnell, K.J. and Traci had been living in various motels. He stated he was unhappy because they avoided going outside due to being afraid of the alleged gang members. He did not want to return to mother because he did not feel safe there and because he and Antonio did not get enough food. He stated that he and Antonio would save food from their lunches in order to have something to eat for dinner. Mother would go out in the evenings and leave them with Carnell for extended periods of time. Carnell would call someone named "Johnny" who would bring money so they could buy some food.
DCFS filed a petition on May 3, 2011 which alleged, as amended, count b-2: "The children['s] . . . mother . . . created a detrimental & endangering home environment for the children in that the mother allowed individuals, including mother's male companion Carnell . . . and unrelated adult male [K.J.] . . . , with criminal records[,] propensities toward violence and drug use, to be around her children and has, at times, left the children in the care of these individuals. Such a detrimental and endangering situation established for the children by the mother endangers the children's physical health and safety and places the children at risk of physical harm, damage and danger." The petition also included count b-3, which stated, "The children['s] . . . mother . . . has a history of illicit drug use and is a current user of methamphetamine, which renders the mother incapable of providing regular care of the children. The mother's illicit drug use endangers the children's physical health and safety and places the children at risk of physical harm, damage and failure to protect." The trial court found that DCFS had made a prima facie case for detention, released Christian to his father and placed Antonio in foster case.
DCFS filed a jurisdiction/disposition report on May 23, 2011 (the report). It is this report that contains the hearsay statements mother contends triggered section 827. The report incorporated statements made by Traci and Amirah while they were being interviewed by the DCFS social worker in the concurrently filed case, case number CK48285, with respect to K.J., Jr., and Amirah. Traci stated that K.J. and mother smoked methamphetamine in one of the bedrooms while the children were home in the living room. Traci stated that K.J. smoked methamphetamines daily. Amirah stated that she had seen Traci and mother smoke the "greenish-brown tree," which she also referred to as "blunts," in the front and back yards of the home.
The report also contained follow-up statements made by Christian and mother. Christian informed the social worker that mother would leave him and his brother with K.J. and Traci and that they were always hitting K.J., Jr. Mother stated that Traci accused her of having an affair with K.J.
Mother objected to the statements made by Traci and Amirah, which were incorporated in the report from case number CK48285, stating that DCFS must first comply with section 827. After changing its ruling several times, the trial court ultimately concluded that section 827 did not ...