Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County, No. J517949A-C Martin W. Staven, Judge.
BENKE, Acting P. J.
Beverly L. appeals juvenile court jurisdictional and dispositional orders concerning the dependencies of her children, Genevieve L., Destiny L. and Manuel C. (together, the children). She contends the evidence was insufficient to show they were at substantial risk of harm at the time of the jurisdictional hearing; the evidence was insufficient to support the finding that removing the children from her custody was necessary for their protection; and there were reasonable alternatives short of removal. She also asserts the court abused its discretion by not ordering unsupervised visitation and by not requiring notice to the Juaneno Band of Mission Indians. We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
On October 6, 2010, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of 17-year-old Genevieve, 15-year-old Destiny and five-year-old Manual under Welfare and Institutions Code section 300, subdivision (b), alleging Beverly used alcohol to excess and when intoxicated she had physical confrontations with Genevieve and Destiny. The court ordered the children detained.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
The social worker reported the family had a history of involvement with child protective services and with the criminal courts. Genevieve and Destiny's father had died of complications from alcoholism. The Riverside County juvenile court had assumed jurisdiction over Genevieve and Destiny in 1997 and ordered Beverly to participate in family maintenance services. Manuel's father (M.C.) lived with the family in the family home. In 2006 he had choked the children's sibling and threatened to kill Beverly. He was convicted of child abuse and had been in violation of the terms of his probation, including that there be no alcohol in the home. In 2009 Beverly had agreed to a voluntary services plan, but then refused to participate because the plan required her not to use alcohol.
In August 2010 police found Beverly intoxicated and having a physical fight with Destiny. During another incident, Genevieve said she had confronted Beverly about her alcohol use and Beverly pulled her to the ground by her hair. Also in August, Beverly hosted a party where she served alcohol to minors. Gang members attended the party and one teenager was injured. In September Beverly and Genevieve had another physical confrontation and Genevieve ran away from home. Destiny denied that Beverly abused or neglected her, but she admitted fighting with Genevieve. Beverly said she and M.C. drank beer only once in a while on weekends.
When the Agency went to the family home to take the children into protective custody, Beverly smelled of alcohol and there was an empty beer container on the table. Destiny denied that Beverly ever drank and blamed Genevieve for the children being removed from the home. Beverly said she wanted only Destiny and Manuel returned to her custody, not Genevieve. When Manuel was taken into protective custody, he told Genevieve that Beverly had hit him and thrown him to the ground. He had bruises and a burn mark on his chest.
Beverly reported Genevieve and Destiny have Indian heritage, through their father, "the Juaneos, Mexican and registered." She said the paternal grandmother (the grandmother) had further information and she would call the grandmother to obtain the correct spelling of the tribal name. At the detention hearing Beverly's counsel reported a paternal cousin said the heritage was with the Juaneno Tribe. The jurisdictional report stated the grandmother could not find the papers proving Genevieve's and Destiny's membership. The social worker reported she had tried to reach the grandmother on several occasions, but was unsuccessful. The Agency's Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) specialist determined the Juaneno Tribe was not federally recognized, and the court found ICWA did not apply.
Genevieve said Beverly physically abused her and Manuel. Beverly reported being abused during her childhood. She claimed she was an alcoholic, but that she had her drinking under control and drank only on weekends. Genevieve had emotional and behavioral problems and was extremely anxious. Her foster mother asked that she be moved to another foster home, and Genevieve threatened suicide when she realized she and Manuel would be separated.
After the children were removed, Beverly and M.C. had a positive visit with Destiny and Manuel, and Destiny said she would visit Genevieve if Genevieve received psychotropic medication. Genevieve was participating in therapy and said her relationship with Beverly had improved. By the time of the jurisdictional hearing, Beverly had attended four sessions of a domestic violence prevention group and some parenting classes and Alcoholics Anonymous (AA) meetings. M.C. also was participating in services.
At the jurisdictional and dispositional hearing, it was stipulated that if Beverly were to testify, she would say she had been sober for 71 days and was learning from the voluntary services she was attending. Genevieve would testify she wanted to live with Beverly, they were in therapy together, and Beverly was not drinking any more, but was learning to control her anger and how to better discipline her children. Genevieve would also say she wanted to participate in therapy with the whole family, but wanted to wait until Destiny was ready.
The children's counsel asked the court to find the allegations true. Destiny's counsel stated Destiny wanted to work toward returning home, but was not yet ready to return. Genevieve and Manuel's counsel asked the court to continue the dispositional hearing, or, alternatively, that Genevieve be returned home, and Manuel placed out of the home until further services were arranged.
After considering the evidence and argument by counsel, the court found the allegations in the petitions true, removed custody, ordered the children placed in foster care, ordered supervised visitation and granted the social worker discretion to allow unsupervised visits.
DISCUSSION
I
Beverly contends the court erred by asserting jurisdiction over the children because the evidence was insufficient to show they were at substantial risk of harm at the time of the jurisdictional hearing.
A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) " ' "The rule is clear that the power of the appellate courts begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact." [Citation.]' " (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1227.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '... view the record in the light most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
The purpose of dependency law is to:
"provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused... [or] neglected... and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (§ 300.2.)
A petition is brought on behalf of the child, not to punish the parents. (In re La Shonda B. (1979) 95 Cal.App.3d 593, 599.) A juvenile court is not required to wait until a child is actually hurt before assuming jurisdiction. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on another point in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)
Substantial evidence supports the court's finding of jurisdiction. The petitions alleged under section 300, subdivision (b), the children were at substantial risk because of the inability of the parent to provide regular care due to the parent's mental illness, developmental disability, or substance abuse. Genevieve's and Destiny's petitions alleged as follows:
"On or about and between August 28, 2010 to present [Beverly] used narcotics and/or dangerous drugs, to wit, alcoholic beverages, to excess, as evidenced by, but not limited to, [Beverly] drinks alcohol to the point of being drunk every day and police have found [her] drunk on August 4, 2010, August 28, 2010, September 5, 2010[, ] and September 23, 2010. Further[, ] when [Beverly] drinks she physically fights with the child, which rendered her unable to provide regular care for said child and said child is in need of the protection of the Juvenile Court."
Manuel's petition alleged:
"On or about and between August 1, 2010[, ] to present the parents used narcotics and/or dangerous drugs, to wit, alcoholic beverages, to excess, as evidenced by, but not limited to, [M.C.] drinks alcohol every day, has a history of engaging in domestic violence with [Beverly] when he has been drinking, and was recently arrested for living with her in violation of a restraining order. Further, [Beverly] drinks alcohol to the point of being drunk every day and police found [her] drunk on August 4, 2010, August 28, 2010, September 5, 2010, and September 23, 2010. When [Beverly] drinks she physically fights with the child's sibling in front of this child to the point where he was scared, which rendered her and [M.C.] unable to provide regular care for said child and said child is in need of the protection of the Juvenile Court."
Substantial evidence showed the children had been exposed to an environment, characterized by alcohol abuse and violence. Beverly had a history of abusing alcohol. She had abused methamphetamine in the past. She had violent relationships with Genevieve and Destiny's father and with M.C., she engaged in violent confrontations with Genevieve and Destiny, and she hit Manuel.
We reject Beverly's argument that juvenile court intervention was not necessary by the time of the jurisdictional hearing because she had voluntarily engaged in services and had been sober for 71 days. The Agency had offered Beverly voluntary services in the past, but she declined them because she did not want to stop drinking. Also, she continued to live with M.C. who was not complying with his probation requirements to attend child abuse prevention classes and not have alcohol in the home. It appeared Beverly had begun to address her problems, but she had long-standing history of substance abuse and family violence to overcome. Only 71 days of sobriety and attendance at a few AA meetings were insufficient to show the children were no longer at risk. Although she had been attending a parenting class, she had not yet had the opportunity to practice good parenting techniques with the three children. There was evidence that both girls struggled with substance abuse and depression themselves, Destiny was reluctant to see Genevieve, and Genevieve's interactions with Manuel sometimes had harmful effects on him. The court reasonably determined that Beverly was not able to provide safe care for her children without court intervention. Substantial evidence supports the jurisdictional orders.
II
Beverly next asserts the evidence was insufficient to support finding that it was necessary to remove the children from her custody. She argues there were reasonable ways to protect them short of removal.
Section 361, subdivision (c)(1), provides a child may not be removed from a parent's custody, unless the court finds by clear and convincing evidence:
"There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's... physical custody."
The focus of the statute is to avert harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536.) At disposition the juvenile court considers all relevant evidence that refers to the allegations of the petition, and it considers the conditions as they existed at the time of the hearing. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) The court is required to consider the parent's past conduct as well as present circumstances. (In re Troy D. (1989) 215 Cal.App.3d 889, 900.) "The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion." (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.)
Substantial evidence supports the order removing the children from Beverly's custody. As stated above, Beverly has a long history of alcoholism and family violence. The court could reasonably determine that 71 days of being sober was not sufficient to show she was ready to parent the children safely. Although she had attended some AA meetings and had begun a group therapy program to address domestic violence issues, she had not yet started a substance abuse treatment program or accepted responsibility for hitting the children.
Beverly continued to have a relationship with M.C. They were living separately, but Beverly said they were engaged. He had completed several programs after being convicted of child abuse in 2006, including a parenting class, a substance abuse program and a 52-week domestic violence class, but he continued to drink alcohol with Beverly and he did nothing to stop her ongoing violence against her children. Genevieve said she believed Beverly had learned new ways to discipline children, but the family had had numerous child welfare referrals in the past and a previous dependency case. The problems were too severe to be resolved in such a short period of time when Beverly had just begun services.
Beverly's argument there were reasonable alternatives which would prevent the need for removal is not persuasive. The court reasonably took into account that she had refused to participate in voluntary services when they were offered in the past when deciding whether she would likely cooperate with a family maintenance plan. The social worker advised that it was too soon for the children to return safely to her care. Substantial evidence supports the court's decision that removal was necessary.
III
Beverly contends the court erred by not ordering at least some unsupervised visitation. The court did not abuse its discretion.
In making visitation orders, the juvenile court must consider the child's best interests. (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.) It must consider the totality of the child's circumstances when making decisions regarding the child. (In re Chantal S. (1996) 13 Cal.4th 196, 201.) The court's orders regarding visitation may be reversed only upon a clear showing of an abuse of discretion. (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465.) " 'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' [Citation.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Beverly has not shown an abuse of the court's discretion in ordering supervised visitation. She has long-standing substance abuse problems, had not yet enrolled in a substance abuse treatment program and had been sober for only 71 days. She had created an atmosphere of ongoing violence in the family home. Genevieve wanted unsupervised visits with Beverly, but they had only recently begun to participate in family therapy together, and the therapist had not yet provided input on whether they were ready for unsupervised contact. Beverly has not shown an abuse of the court's discretion in ordering that visitation continue to be supervised with discretion to the social worker to allow unsupervised contact.
IV
Beverly claims the court abused its discretion by not providing notice of the dependency proceedings regarding Genevieve and Destiny to the Juaneno Tribe. She, however, did not request that notice be sent to the tribe and did not object when the court found ICWA did not apply. Further, the court did not have a duty to send notice to the Juaneno Tribe because the tribe is not federally recognized. Beverly has not shown error by the court not requiring ICWA notice.
Congress enacted ICWA in 1978 "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families...." (25 U.S.C. § 1902.) Section 1911 of ICWA provides a tribe may intervene in state court dependency proceedings. (25 U.S.C. § 1911(c).) Notice to the tribe provides it the opportunity to exercise its right to intervene. (In re Junious M. (1983) 144 Cal.App.3d 786, 790-791.) ICWA provides "where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." (25 U.S.C. § 1912(a).)
The requirements of ICWA apply only to tribes recognized by the United States federal government. (25 U.S.C. § 1903(8); In re Wanomi P. (1989) 216 Cal.App.3d 156, 168.) Section 306.6, however, permits a juvenile court to allow a tribe which is not federally recognized to participate in a child's dependency proceedings. (§ 306.6; In re A.C. (2007) 155 Cal.App.4th 282, 286-287.) By its terms, the statute does not require that notice be sent to a nonrecognized tribe. (In re A.C., supra, at pp. 286-287; § 306.6, subd. (d).) As the court stated in In re A.C., "[i]t is apparent that in enacting section 306.6, the Legislature had in mind the notice and substantive provisions of the ICWA but specifically chose not to require any notice beyond that already required by the ICWA, i.e., notice to federally recognized tribes. It is not our province to insert language into a statute the Legislature chose to omit." (In re A.C., supra, at p. 287.) If Beverly believed that notifying the Juaneno Tribe would have been of benefit to Genevieve and Destiny, she could have contacted the tribe to see if it could offer services or would like to participate in the proceedings. She has not shown error by the court not requiring notice to the Juaneno Tribe.
DISPOSITION
The orders are affirmed.
WE CONCUR: McDONALD, J.AARON, J.