Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK67802. Steven Berman, Judge.
Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens and Deborah L. Hale, Deputy County Counsel.
ARMSTRONG, J.
Jennifer P. appeals from orders made under Welfare and Institutions Code section 300, in the dependency case concerning her son Shamar.
All further statutory references are to that code unless otherwise specified.
Summary
When this case began in 2007, Shamar was five years old. He was living with his father, G.S., in Los Angeles County, in an informal shared-custody arrangement. Jennifer lived in Riverside County with her three other children.
G.S.lived with, or at least often stayed with, his girlfriend, Gabriela A. and her children. In April 2007, he killed Gabriela's two-year-old son Anthony. Shamar and the other children were detained and a section 300 petition was filed. An amended petition was filed in September. The adjudication hearing began on September 11, 2007 and concluded on November 6. In the meantime, Shamar was in foster care and the court received information about Jennifer's current situation and about events in 2006 which formed the basis for allegations in the section 300 petition.
Information about Jennifer's current situation came largely from reports from Riverside County social services, which evaluated Jennifer at Los Angeles County's request. A Riverside social worker interviewed Jennifer, inspected her home, met with her and the children on several occasions, and wrote a report praising Jennifer's relationship with her children and her parenting skills. The social worker found the home clean, safe, and "more than appropriate." The children (then aged 6, 3, and 1) were healthy, safe, and free of bruises or other indication of physical abuse.
Of special interest, because the earlier incidents concerned drugs, the social worker found no drug paraphernalia in the home and reported that Jennifer tested negative for drugs on April 25, 2007, May 2, 2007, and May 16, 2007. Riverside County concluded that "there are no concerns regarding the children's care/protection and/or safety in the care of the mother," and recommended that the referral be closed as unfounded.
As to the 2006 events: In March 2006, when Jennifer's youngest child was born, Jennifer tested positive for marijuana. She told doctors that she had not smoked marijuana, but had been present when others were smoking. Riverside County social services became involved. Jennifer tested positive for marijuana again on April 3 and April 24, 2006, but tested negative on May 9. Social workers referred her to outpatient substance abuse services and provided her with educational information. No dependency case was initiated.
Also in March 2006, a Riverside County Sheriff's deputy served a search warrant for Cameron W. (Jennifer's boyfriend) at an address in Blythe and found Jennifer and her children in the bedroom watching television. There was a small amount of marijuana on the dresser next to the television, and 5.3 grams of methamphetamine in a box on top of the dresser. As a result, Jennifer pled guilty to a misdemeanor violation of Penal Code section 273a, subdivision (b) and was sentenced to 48 months probation.
As to Jennifer, the section 300 petition was sustained under subdivision (b) on findings that on numerous prior occasions, she had inappropriately disciplined Shamar, that she "has a criminal history of conviction of cruelty to child: Possible Injury/Death," and that she had a history of substance abuse and on or about March 6, 2006, she was found to be in possession of marijuana and methamphetamines.
The court placed Shamar with Jennifer and ordered family maintenance services in the form of weekly random drug tests. The court also ordered a drug program, but found that if Jennifer had already completed a program satisfactory to Riverside County probation, as her counsel represented that she had, she did not have to take another program. The court found that the parenting class Jennifer had already completed was sufficient. The court then transferred the case to Riverside County.
Discussion
1. The minute order
The trial court did not sustain all the factual or legal allegations of the amended section 300 petition and Jennifer argues that the November 6, 2007 minute order does not reflect the court's actual rulings in this regard. DCFS had not addressed the issue. We agree with Jennifer.
First, the petition alleged in paragraph b-5 that Jennifer had on numerous occasions abused Shamar by striking him with a belt. The trial court struck the allegation and substituted a finding that Jennifer had used inappropriate discipline. (This paragraph also included an allegation about Jennifer's criminal conviction, which was sustained.)
When DCFS first spoke to Shamar, on the day of the murder, he had said that his mother hit him with a belt. He sometimes referred to Gabriela as mother, and in later interviews said that Gabriela hit him with a belt, and that Jennifer never had.
Next, the amended petition alleged, in paragraph b-6, that Jennifer had a history of substance abuse, was a current user of marijuana, had on March 3, 2006 been found in possession of marijuana and methamphetamines, and had allowed Shamar to live with G.S.despite a court order that she not associate with known drug users. The court struck the allegation of current use and the allegation concerning G.S., and sustained the paragraph based only on Jennifer's history of substance abuse and the events of March 3, 2006.
Finally, the amended petition included an allegation under section 300, subdivision (f). The factual allegations mostly concern G.S.'s crime, but there is also an allegation that Jennifer knew or should have known of G.S.'s drug use and violence. At the hearing, DCFS asked that the count be stricken as to Jennifer. The trial court dismissed the count as to Jennifer and sustained as to G.S. only.
The minute order does not reflect any of this. It recites only: "Subdivision B: paragraph 1-7 sustained" and "Subdivision F: paragraph 1 is sustained."
As Jennifer argues, the November 6, 2007 minute order must be corrected so that it reflects the court's actual orders.
2. Section 361.2
In pertinent part, this statute provides that when a child is removed from a custodial parent, the court must determine whether there is a noncustodial parent who wants custody. If so, "the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child." (§ 361.2, subd. (a); In re John M. (2006) 141 Cal.App.4th 1564, 1569-1570; In re Janee W. (2006) 140 Cal.App.4th 1444, 1451.)
Jennifer argues that the trial court erred by failing to apply this section, and that there was no substantial evidence for a finding that placement with her would be detrimental to Shamar. We agree with DCFS that the trial court did apply the statute. The court did not specifically cite section 361.2, as it did, for instance, when it placed Gabriela's children with their fathers, but it impliedly did so when it placed Shamar with Jennifer, with an order that she drug test. That is consistent with section 361.2, which provides that if a court places a child with a non-custodial parent, it may "[o]rder that the parent assume custody subject to the jurisdiction of the juvenile court." (§ 361.2, subd. (b)(2).)
3. The Jurisdictional Findings
Jennifer challenges the sufficiency for several of factual findings. We begin the discussion with DCFS's argument that any error was harmless.
DCFS relies on In re LaShonda B. (1979) 95 Cal.App.3d 593. In that case, the section 300 petition only included allegations about the mother, the custodial parent. The child was placed with the father, and the trial court found that in those circumstances, the law required that the petition be dismissed. The Court of Appeal reversed, finding that the petition could be sustained based on one parent's conduct. The holding is irrelevant to this case, in which there were allegations against the non-custodial parent, and those allegations were sustained. It is true that Shamar would be a dependent child of the court even if we were to reverse all findings against Jennifer, but those findings matter nonetheless. As Jennifer argues, the adverse findings can affect her progress through the dependency process, and could affect her in the future, if dependency proceedings were ever initiated, or even contemplated, with regard to Shamar or any of her other children.
Paragraph b-5: the criminal conviction
Here, Jennifer challenges the finding that she was convicted of "cruelty to child: Possible Injury/Death," and asks us to order the record corrected to indicate that she was convicted only of child endangerment.
Jennifer pled guilty to a violation of Penal Code section 273a, subdivision (b), which provides that "Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor."
As Jennifer argues, the evidence is that her plea was based on conduct permitting a child to be placed "in a situation where his or her person or health may be endangered," that is, in proximity to drugs. We thus see no substantial evidence for a finding that she was convicted of cruelty to a child. "Cruelty" means something other than creating a risk of danger. (See In re Edward C. (1981) 126 Cal.App.3d 193 [father's home unfit by reason of cruel and inhuman corporal punishment in the form of severe and repeated beatings]; In re Biggs (1971) 17 Cal.App.3d 337 [mother failed to protect child from persistent cruelty in the form of sadistic beatings].)
Jennifer also argues that the title of the statute is "child endangerment." We cannot see that this is so, but in any event, publishers' titles are not part of a statute. (San Joaquin Helicopters v. Department of Forestry & Fire Protection (2003) 110 Cal.App.4th 1549, 1552.)
We do not, however, order the record corrected in the manner Jennifer suggests. She was convicted of a violation of Penal Code section 273a, subdivision (b), and that is what the record should reflect.
Paragraph b-5: inappropriate discipline
Here, Jennifer challenges the sufficiency of the evidence for the finding that she used inappropriate discipline. Jennifer argues that there was no evidence that any discipline she used was inappropriate, or that any discipline caused Shamar (or any child) to suffer serious physical harm or illness, or that there was a substantial risk that Shamar (or any child) would suffer such harm. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820; In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396-1396; § 300, subd. (b).)
We agree with both points. The court based its finding on Jennifer's testimony that she sometimes spanked the childrenand her earlier statement to a Riverside social worker that she might "swat" the older children (but not the baby) on the bottom. However, a spanking or swat is not in and of itself "inappropriate," and there was no evidence that the spankings Jennifer administered were, for instance, inappropriate because they were excessively forceful or because they were administered for any reason other than normal and appropriate discipline. (See § 300, subd. (a) ["For purposes of this subdivision, 'serious physical harm' does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury"].)
Nor was there evidence that the spankings caused any child to suffer serious physical harm or that her practice of spanking put any child at a substantial risk of such harm. Again, there was no evidence that Jennifer hit any child with excessive force, or hard enough to cause injury, or for any reason other than ordinary discipline. There was no evidence that she had ever struck a child in anger or while under the influence of drugs or alcohol. There was no evidence that she had been or would be inclined to use excessive force in the future.
Instead, the evidence was to the contrary. The Riverside County social worker who examined Jennifer's home and repeatedly met with her children found no sign of physical abuse and concluded that Jennifer disciplined the children appropriately and did not "employ excessive or inappropriate discipline when dealing with any child in her home." Indeed, the social worker praised Jennifer's bond with her children and her parenting skills. Further, the finding that Jennifer's inappropriate discipline placed Shamar at risk of future harm is inconsistent with the order placing him with her on the sole condition that she has drug tests.
DCFS argues that the finding is also supported by the evidence of Jennifer's criminal conviction, by G.S.'s mother's statement to police detectives investigating Anthony's murder that Jennifer was a "bad mother" and that Shamar did not like living with her, and by the evidence that Jennifer and Shamar had a "difficult" relationship in which Shamar was "manipulative and threatening," behavior which Jennifer had difficulty managing.
We do not think that any of that evidence is relevant. The criminal conviction had nothing to do with physical discipline. G.S.'s mother's general statement of her opinion is not evidence that Jennifer used, or would use, inappropriate discipline, much less that such discipline placed Shamar at substantial risk of suffering serious physical harm.
The evidence that Jennifer and Shamar had a "difficult" relationship comes from the DCFS social worker, who testified that Jennifer sometimes had difficulty in handling Shamar. She described two examples in which Shamar spoke to Jennifer in a defiant manner -- for instance, he told her that he did not want to live with her because she would not allow him to get his hair cut. The social worker believed that Jennifer and Shamar should be in therapy and that Jennifer needed to help Shamar understand "who is the kid and who is the mom." This is not evidence that Shamar's physical health was at risk due to Jennifer's use of discipline.
Paragraph b-6: history of Substance Abuse/Possession of Drug
Jennifer also seeks reversal of the jurisdictional finding based on the allegations that she had a history of substance abuse and that on or about March 6, 2006, she was found to be in possession of marijuana and methamphetamines. She argues that there was no current evidence of drugs or drug paraphernalia in her home, contends that the incidents regarding drug use and possession were remote in time, and cites the evidence that after April 2006, she consistently tested negative for drugs. She acknowledges, however, that there was also evidence that she was still involved with Cameron W., the target of the 2006 search warrant.
We find substantial evidence for the trial court finding. It is true that Jennifer had had consistently negative drug tests, and that on each recent inspection by a social worker or probation officer, her home was free of drugs and drug paraphernalia. Yet, there was also evidence that only a year before the dependency was initiated, she was at the very least in the presence of marijuana being smoked, and that during that period, dangerous drugs were present in her home in what might be called a casual manner, easily accessible to her young children. That is substantial evidence.
4. Indian Child Welfare Act
Jennifer has two contentions of error, one concerning her Indian heritage, and one concerning G.S.'s.
As to G.S., in the initial detention report, DCFS wrote "Paternal grandmother . . . stated that paternal great-grandmother is Cherokee (Blackfoot tribe)." Later, G.S. told the court that he believed that he had some Indian heritage on his mother's side, but had no further information. The court ordered DCFS to notice the Bureau of Indian Affairs and to interview G.S.'s mother. DCFS attempted to contact G.S.'s mother, but was unable to reach her. No notice was sent to Cherokee and Blackfoot tribes, and Jennifer contends that this was error.
DCFS contends that no notice was required, because there was no evidence that Shamar was an Indian child, as defined. We cannot so read the record. DCFS reported that Shamar's grandmother had claimed Cherokee heritage, thus triggering the notice requirement. (§ 334.3.) However, given that Shamar was placed with his mother, we agree with DCFS that any error was harmless. (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784.)
"By its own terms, the Act requires notice only when child welfare authorities seek permanent foster care or termination of parental rights; it does not require notice anytime a child of possible or actual Native American descent is involved in a dependency proceeding." (In re Alexis H. (2005) 132 Cal.App.4th 11, 14.) ICWA notice is not required when a child is placed with his mother. (But see In re Jennifer A. (2002) 103 Cal.App.4th 692 .) However, as Alexis H. observes, if DCFS ever contemplates any additional action which might lead to foster care or adoption, notices must be sent.
Because that eventuality exists, we address the merits of Jennifer's contention concerning her heritage. At the initial hearing in this case, in April 2007, she informed the court that she had Apache heritage, and the court ordered ICWA notice to Apache tribes. DCFS sent notices to eight such tribes and the Bureau of Indian Affairs. Five of the tribes responded. Jennifer contends that the notices sent to the other three tribes (the Apache Tribe of Oklahoma, the Fort Sill Apache Tribe of Oklahoma, and the Jicarilla Apache Nation) were improper, because they were not sent to the tribal agent listed in the Federal Register. DCFS agrees that the notices were not sent to the addresses listed in the Federal Register, but contends that it obtained the notices from a website run by the Department of Social Services and that such notice is valid.
We cannot tell whether the notices were indeed sent to the addresses listed by the Department of Social Services. However, Jennifer cites no authority for the proposition that notice must be sent to the address listed in the Federal Register and that any other address is invalid. Nor do we believe that to be a correct statement of law. DCFS may obtain addresses from any current or accurate list reasonably calculated to provide actual notice. (In re N.M. (2008) 161 Cal.App.4th 253, 268; § 224.3, subd. (c) [directing DCFS to contact "the Bureau of Indian Affairs and the State Department of Social Services for assistance in identifying the names and contact information of the tribes"].) Jennifer has not established error.
In its brief, DCFS has provided a URL which is apparently no longer valid. It would not matter, because DCFS's argument is that the website is updated frequently, making it a better resource than the Federal Register.
Disposition
The order sustaining the petition as to Jennifer is affirmed, but on remand, the trial court must correct the record to reflect its actual rulings on November 6, 2007, and to reflect the rulings made herein.
We concur: TURNER, P. J., MOSK, J.