Opinion
B229064
10-25-2011
In re MADISON S., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JASON S., Defendant and Appellant.
Neal B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Melinda White-Svec, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Los Angeles County Super. Ct. No. CK83234
APPEAL from an order of the Superior Court of Los Angeles County, Jacqueline Lewis, Juvenile Court Referee. Affirmed.
Neal B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Melinda White-Svec, Deputy County Counsel, for Plaintiff and Respondent.
Jason S., the presumed father of Madison S. (born in October 2009), appeals from the juvenile court's disposition order releasing Madison to her mother with court-ordered family maintenance services after the court sustained a dependency petition finding, among other things, Jason had sexually abused Madison's five-year-old half-sibling. Jason contends the court's jurisdictional findings are not supported by substantial evidence. He also challenges the order denying him family reunification services and visitation. Finally, Jason contends failure to comply with the notice provisions of the Indian Child Welfare Act of 1978 (25 U.S.C § 1901 et seq.) (ICWA) requires reversal. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Dependency Petition
On July 21, 2010 the Los Angeles County Department of Children and Family Services (Department) filed a Welfare and Institutions Code section 300 petition on behalf of Madison and her three half-siblings, Tyra B., Mira M. and Kristina M., alleging Jason had sexually abused then five-year-old Mira by kissing her and rubbing his penis against her vagina, an act that placed not only Mira, but also her siblings, at risk of physical and emotional harm and sexual abuse. (§ 300, subds. (b), (d), & (j).)
Statutory references are to the Welfare and Institutions Code unless otherwise indicated.
2. The Detention, Jurisdiction and Disposition Hearings
At the detention hearing on July 21, 2010 the juvenile court found the Department had established a prima facie case the children were persons described by section 300, removed them from custody of Jason, who was incarcerated and awaiting trial on charges of committing lewd conduct on a minor, Mira, and released all four children to their mother, S.B.
S.B. and Jason were married and lived together with Madison and S.B's three other children. Jason is not the father of any of Madison's siblings.
On August 17, 2010 the Department filed an amended petition that further alleged Jason suffered from bipolar disorder and schizophrenia and had failed to take the medicine prescribed for his condition, placing all of the children in his care at substantial risk of harm. (§ 300, subd. (b).) The amended petition also alleged both S.B. and Jason abused marijuana, making them unable to properly care for the children and placing the children at substantial risk of emotional and physical harm. (§ 300, subd. (b).)
S.B. is not a party to this appeal.
S.B. submitted the issue of jurisdiction based on the information in the Department's reports. Jason contested jurisdiction. At a hearing on September 28, 2010, with Jason present, the court sustained each of the allegations in the petition, finding each of the children to be persons described by section 300. The court released the children to S.B. and set a disposition hearing for October 19, 2010.
At the disposition hearing the court removed the children from Jason's custody, finding by clear and convincing evidence that a substantial danger exists to the children if they remain in his custody. The court released the children to their mother and ordered family maintenance services, including drug rehabilitation counseling and random drug testing for S.B. The court denied Jason's request for reunification services. The court also denied his request for visitation while he was incarcerated, but ordered monitored visitation for Jason and Madison to begin after Jason's release.
DISCUSSION
1. The Court's Jurisdictional Findings Under Section 300, Subdivisions (d) and (j) Concerning Sexual Abuse Are Supported by Substantial Evidence
Section 300, subdivision (d), provides that a child comes within the jurisdiction of the dependency court when "[t]he child has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in [s]ection 11165.1 of the Penal Code, by his or her parent or guardian or a member of his or her household . . . ." Penal Code section 11165.1 defines sexual abuse to include lewd or lascivious acts upon a child under 14 years of age in violation of Penal Code section 288. (See generally In re R.C. (2011) 196 Cal.App.4th 741, 749.) Section 300, subdivision (j), authorizes dependency jurisdiction when a child's sibling has been abused or neglected as defined in subdivision (a), (b), (d), (e) or (i), and there is a substantial risk the child will be abused or neglected.
Jason acknowledges the allegation of sexual abuse of Mira, if properly sustained, would constitute a basis for dependency jurisdiction under section 300, subdivisions (d) and (j). However, he contends the evidence was insufficient to support the court's finding of sexual abuse or a finding that any of the children was at risk of sexual abuse. He emphasizes Mira's medical examination yielded no forensic evidence of sexual abuse. There were also no witnesses to the abuse, except for Mira herself, who repeatedly exhibited a reluctance to answer questions about the incident and more than once answered specific inquiries with "I don't know."
When the sufficiency of the evidence to support a juvenile court's jurisdiction findings or disposition orders is challenged on appeal, the reviewing court must determine if there is substantial evidence, contradicted or uncontradicted, that supports them. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393; In re Albert T. (2005) 144 Cal.App.4th 207, 216; see In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) Substantial evidence is "'evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could [make the same finding].'" (In re Angelia P. (1981) 28 Cal.3d 908, 924.) "'However, substantial evidence is not synonymous with any evidence. [Citations.] A decision supported by a mere scintilla of evidence need not be affirmed on appeal. [Citation.] Furthermore, "[w]hile substantial evidence may consist of inferences, such inferences must be 'a product of logic and reason' and 'must rest on the evidence' [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations]." [Citations.] "The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record."' (In re David M. (2005) 134 Cal.App.4th 822, 828.)
Although Jason highlights the lack of specifics in Mira's account of the incident, sufficient evidence supports the juvenile court's findings of sexual abuse. Mira's maternal aunt, G.R., told social workers and police she had surprised Jason by walking in on him and Mira in the family garage. G.R. saw Mira sitting on a chair with her underwear pulled down and crying. Jason was next to Mira with his own pants down around his thigh area. When he saw G.R., he immediately pulled up his pants. G.R. began screaming at Jason. Jason replied, "Let me explain. She wanted it." G.R. alerted the rest of the family, who immediately called the police. Mira told the social worker who interviewed her that "Daddy pulled down my pants and pulled down his pants." She also stated his mouth had touched her mouth and indicated that his penis had touched her vagina.
Jason next contends, even if there is evidence to support the juvenile court's finding he had sexually abused Mira, there is still no evidence Madison was at risk of such abuse. After all, there was no evidence any other child had been abused by Jason. In addition, citing In re Rubisela E. (2000) 85 Cal.App.4th 177, 197-199, Jason notes Mira was not his genetic child and argues there was no evidence to suggest he would sexually abuse his own child.
Rubisela E. is inapposite. In that case, the appellate court found ample evidence the father's sexual abuse of his 13-year-old daughter placed other young girls in the house at risk of sexual abuse (Rubisela, supra, 85 Cal.App.4th at p. 197), but explained it would not necessarily follow from the father's sexual abuse of his daughter that his sons were also at risk of sexual abuse. (Id. at p. 198.) Far from supporting Jason's position, if anything Rubisela E. reinforces the juvenile court's finding the other female children in Jason's household, including Madison, were at risk of sexual abuse.
Similarly, the lack of a genetic link between Jason and Mira does little to quell the court's concerns that all of the female children in the household, including Madison, were at risk of such abuse. Mira was five years old when she was molested by Jason, her stepfather; she lived in the same house with Jason and viewed him as her father, even referring to him as "Daddy." On this record, the court could reasonably infer that Jason's predatory behavior targeting very young children would not be limited to unrelated victims in his household.
In sum, the court's jurisdictional findings pursuant to section 300, subdivisions (d), and (j), are supported by substantial evidence.
Jason also challenges the jurisdictional findings relating to the risks posed to his children from his marijuana use and his failure to take prescribed psychotropic medication for his diagnosed bipolar disorder and schizophrenia. (§ 300, subd. (b).) Because substantial evidence supports the court's jurisdictional findings under section 300, subdivisions (d), and (j), the most serious of the jurisdictional findings, we need not address the other bases for the juvenile court's assertion of dependency jurisdiction. (See In re Alexis E. (2009) 171 Cal.App.4th 438, 451 ["When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence."]; Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72 [same].)
2. The Juvenile Court Did Not Err in Denying Jason Family Reunification Services
At disposition the juvenile court denied Jason family reunification services pursuant to section 361.2. The court also noted its denial of reunification services would be supported by section 361.5, subdivision (e)(1), on the ground family reunification during Jason's incarceration would be detrimental to Madison. Although, as we explain, neither cited statute applies in the circumstances of this case, any error in relying on them is plainly harmless.
Section 361.2 provides the juvenile court with several choices concerning child welfare services when a child has been removed from the custodial parent and placed with a formerly noncustodial parent: The court may order family reunification services to the formerly custodial parent, provide family maintenance services to the formerly noncustodial parent assuming custody or authorize some form of child welfare services for both parents. (§ 361.2, subd. (b)(3); see In re Erika W. (1994) 28 Cal.App.4th 470, 475-478.) The court may also decline to order any services and simply terminate its jurisdiction after placing the child with the formerly noncustodial parent. (§ 361.2, subd. (b)(1); In re Gabriel L. (2009) 172 Cal.App.4th 644, 652.)
Here, the children's mother was a custodial parent at the time dependency proceedings were initiated and has remained a custodial parent throughout the proceedings. Accordingly, section 361.2 relating to assumption of custody by a formerly noncustodial parent is inapplicable.
Section 361.5, subdivision (a), requires the juvenile court to order child welfare services, including family reunification services, whenever a child is removed from his or her parent's custody, unless certain exceptions listed in subdivision (b) of that section apply. Subdivision (e)(1) of section 361.5 further provides, "If the parent or guardian is incarcerated or institutionalized, the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child."
Section 361.5's mandate to provide family reunification services absent specified circumstances applies only in cases when the child has been removed and placed in out-of-home care, not when the child is placed with a parent. (See § 16507, subd. (b) ["[f]amily reunification services shall only be provided when a child has been placed in out-of-home care, or is in the care of a previously non-custodial parent under the supervision of the juvenile court"]; Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 303 [when child remains in home of parent, proper form of child welfare services is family maintenance services, not family reunification services]; In re Pedro Z. (2010) 190 Cal.App.4th 12, 19 [§ 361.5's provision for family reunification "does not apply when, at the disposition hearing, a child does not enter foster care, but is returned to a parent"]; see generally In re Erika W., supra, 28 Cal.App.4th at p. 478 ["When a child is placed in nonparental custody, reunification services are necessary to promote a possible return of the child to parental custody. However, when a child is placed in parental custody, this goal has already been met and therefore reunification services are not necessary."]; In re Gabriel L., supra, 190 Cal.App.4th at p. 650 [when a child is safely in custody of one parent, "court is not concerned with reunification, but with determining whether continued supervision is necessary in the family home"].)
Jason concedes there is no statutory mandate requiring the court to order family reunification services for a previously custodial parent when the child remains with the other custodial parent. Nonetheless, he argues the court had discretion to provide services under section 362 and should have done so in this case because such services were in Madison's best interests. (See § 362, subd. (c) ["juvenile court may direct any and all reasonable orders to the parents or guardians of the child who is the subject of any proceedings under this chapter as the court deems necessary and proper to carry out the provisions of this section . . ."].)
Whatever latitude the court may have had under section 362, subdivision (c), to direct at least some type of services for Jason, the court found it appropriate to award child welfare services—specifically, family maintenance services—solely to the custodial parent, as it could have done had section 361.2 applied. (See In re Pedro Z., supra, 190 Cal.App.4th at p. 21 [placement under § 362 should be "treated in the same manner" as § 361.2 placement].) Under the circumstances, that denial of reunification services to Jason was not arbitrary or capricious and did not constitute an abuse of the juvenile court's broad discretion. (See In re A.L (2010) 188 Cal.App.4th 138, 139 [describing court's broad discretion under § 362]; Bridget A. v. Superior Court, supra, 148 Cal.App.4th at p. 309 [same]; see generally In re Stephanie M. (1994) 7 Cal.4th 295, 318 [under abuse of discretion standard, order must be affirmed unless juvenile court has "'"exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination"'"].)
3. The Court Did Not Err in Denying Visitation Pending Jason's Release from State Custody
Jason contends the court effectively destroyed any chance he may have at forming a relationship with his infant daughter by denying him visitation with her while he remains incarcerated. Visitation, as he correctly observes, is a critical component of any family reunification plan (see In re S.H. (2003) 111 Cal.App.4th 310, 317), even when a parent is incarcerated (see In re Brittany S. (1993) 17 Cal.App.4th 1399, 1407 [visitation must be provided in connection with reunification services, even to incarcerated parent, unless visitation would be detrimental to child]; In re Monica C. (1994) 31 Cal.App.4th 296, 307; see also § 361.5, subd. (e)(1)(c) [reunification services for incarcerated parent may include visitation services, where appropriate]). As Jason emphasizes, denial of visitation during the reunification period may erode any chance a parent has of reunifying with his or her child. (Brittany S., at p. 1407; Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010.)
However, Jason was neither entitled to nor awarded family reunification services. Because Madison remained with her custodial parent, any right to visitation, as he acknowledges, is a matter within the court's sound discretion under section 362. Here, the court carefully considered Jason's untreated mental health condition, the conditions of his incarceration and Madison's age, along with the nature of the sexual abuse allegation that led to the assumption of jurisdiction and the Department's recommendation that visitation was not in Madison's best interests, and declined to order visitation while Jason remained incarcerated indefinitely. That decision was well within the court's broad discretion under section 362.
Section 362.1, which governs visitation when a child is placed in foster care and reunification ordered, is not applicable in this case.
4. The Juvenile Court's Determination That ICWA - based Notice Was Not Required Was Not Prejudicial Error
The purpose of ICWA is to "'protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.'" (In re Karla C. (2003) 113 Cal.App.4th 166, 173-174, quoting 25 U.S.C. § 1902; see also In re Suzanna L. (2002) 104 Cal.App.4th 223, 229; In re Santos Y. (2001) 92 Cal.App.4th 1274, 1299.) "ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource." (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) For purposes of ICWA, an "Indian child" is a child who is either a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4).)
ICWA provides, "In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking 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" of the pending proceedings and its right to intervene. (25 U.S.C. § 1912(a); see In re S.B. (2005) 130 Cal.App.4th 1148, 1157.)
Although ICWA notice provisions apply if the court "knows or has reason to know that an Indian child is involved," neither ICWA itself nor the federal regulations define "reason to know." (See In re H.B. (2008) 161 Cal.App.4th 115, 120, fn. 3; In re S. B., supra, 130 Cal.App.4th at p. 1158; but see § 224.3, subd. (b) [providing examples of circumstances that may provide reason to know the child is an Indian child]; § 224, subd. (d) [if state law provides higher standard of protection of rights than ICWA, the higher standard governs].)
Similarly, California law requires notice to the Indian custodian and the Indian child's tribe in accordance with section 224.2, subdivision (a)(5), if the Department or court knows or has reason to know that an Indian child is involved. (§ 224.3, subd. (d).) The circumstances that may provide reason to know the child is an Indian child include, without limitation, when a member of the child's extended family provides information suggesting the child is a member of a tribe or one or more of the child's parents, grandparents or great-grandparents are or were a member of a tribe. (§ 224.3, subd. (b)(1).)
In its jurisdiction/disposition report, the Department explained, after Mother claimed possible Indian heritage in the Blackfeet tribe, the Department interviewed the maternal great-grandmother. (See Cal. Rules of Court, rule 5.481(a) [if social worker has reason to know Indian child is or may be involved, he or she must make further inquiry by interviewing the parents and extended family members].) According to the maternal great-grandmother, any family Indian ancestry would date back to Madison's "great, great, great grandfather"; neither she (the maternal great-grandmother) nor her mother (Madison's great-great-grandmother) was registered with a tribe. Based on this information, the juvenile court found any Indian ancestry dated back more than "five generations," and thus it did "not have reason to know" that Madison was an Indian child as defined under ICWA or section 224.3, subdivision (b)(3). For that reason, the court expressly declined to order notice to any Indian tribe. Jason contends this was error.
Citing In re Damian C. (2009) 178 Cal.App.4th 192, Jason argues S.B.'s statement she believed she had Blackfeet ancestry in her maternal background was sufficient to suggest Madison was an Indian child and to trigger ICWA's notice requirements. (See § 224, subd. (b) [circumstances providing a "reason to know" the child is an Indian child include when a child's family suggests the child is a member of a tribe or eligible for membership in a tribe]; Cal. Rules of Court, rule 5.481(a)(5)(A) [same].) In Damian C., however, the court ruled the social worker had reason to know the child was an Indian child because the child's mother stated she "may have" Indian ancestry through her father, the maternal grandfather. The maternal grandfather reported he had heard his father, the maternal great-grandfather, was Yaqui or Navajo, but also heard he had no Indian ancestry and his family's efforts to research their possible Indian background had been unsuccessful. The court determined this information was sufficient to suggest the child was an Indian child and to trigger notice to the Indian tribes. (Damian C., at p. 199 [maternal grandfather's "explanation he lacked sufficient information to determine whether family had Indian heritage did not release state Agency from obligation to provide notice"].)
In Damian C. the maternal grandfather suggested the maternal great-grandfather could have been a member of an Indian tribe, a fact that, if true, would require notice to the tribe. (§ 224.3, subd. (b).) Here, in contrast, the maternal great-grandmother's statement that neither she nor her mother was a member of an Indian tribe and that any membership dated back more than five generations was unequivocal. Such an attenuated ancestry does not trigger notice requirements. (See § 224.3, subd. (b) [tribal membership dating back more than five generations not included in statutory definition of "reason to know" child is member of Indian tribe].)
In any event, we need not resolve this matter on the ground ICWA notice was not required because of the attenuated family connection to the Blackfeet tribe. The Department never sought, and the court never ordered, Madison's removal from her mother's home. Accordingly, federal ICWA requirements were not triggered. (See 25 U.S.C. § 1912(a) [ICWA notice required when agency seeks "the foster care placement of or termination of parental rights to" an Indian child]; In re Alexis H. (2005) 132 Cal.App.4th 11, 14-15.) To the extent California's ICWA-based notice requirements are more extensive than those contained in ICWA itself (see §§ 224, subd. (d); 224.2, subd. (a)), the absence of notice in this case was plainly harmless error in light of Jason's failure to demonstrate any basis for believing a different result would have been achieved in this case if additional inquiries had been made or if notice had actually been sent. (Alexis H., at p. 16 [defective notice to Indian tribe harmless error when Department never requested, and child was never removed, from home]; cf. In re Jennifer A. (2002) 103 Cal.App.4th 692, 700 [failure to provide notice to Indian tribe not harmless when "issue of possible foster care placement was squarely before the juvenile court"]; see generally In re S.B., supra, 130 Cal.App.4th. at p. 1162 ["any failure to comply with a higher state standard, above and beyond what the ICWA itself requires, must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error"].)
DISPOSITION
The juvenile court's jurisdiction findings and disposition order are affirmed.
________________
PERLUSS, P. J.
We concur:
________________
WOODS, J.
________________
JACKSON, J.