Opinion
A130860
09-27-2011
In re GAVIN R., a Person Coming Under the Juvenile Court Law. SOLANO COUNTY HEALTH & SOCIAL SERVICES DEPARTMENT, Plaintiff and Respondent, v. NATASHA R., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. J40423)
Appellant Natasha R. (mother) appeals the juvenile court's orders adjudging her son Gavin R. a dependant child pursuant to Welfare and Institutions Code section 300, subdivisions (b), (d), and (j), and removing him from her care. She argues that insufficient evidence supports the orders, and that the person who testified as an expert pursuant to the Indian Child Welfare Act of 1979 (25 U.S.C. § 1901 et seq.) (ICWA) was not competent to do so. We conclude that substantial evidence supports the findings that the minor was a child described by section 300, subdivisions (b) and (j), and that removal from mother's care was appropriate. However, because the dependency petition did not allege that the minor was a victim of sexual abuse as set forth in section 300, subdivision (d), we remand to the juvenile court to strike the finding that this statutory provision applied. We also order the juvenile court to correct various clerical errors. We otherwise affirm the lower court's orders.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
The minor and his two older half siblings came to the attention of respondent Solano County Health & Social Services Department (Department) when mother was involuntarily hospitalized for about a week following a suicide attempt in September 2010, and the minor's 13-year-old half sister shortly thereafter disclosed that she had been molested repeatedly by her stepgrandfather (Ron J.), who lived with the family and who had also sexually abused mother in the past. On October 8, 2010, the Department filed a juvenile dependency petition alleging that the minor (who was then four years old) and his half siblings (who are not the subject of this appeal) were children described by section 300, subdivisions (b) (failure to protect) and (g) (no provision for support); that the minor's half sister (L.W.) was a child described by section 300, subdivision (d) (sexual abuse); and that the minor and his older half brother (Sean T.) were children described by section 300, subdivision (j) (abuse of sibling). At the time the petition was filed, Ron J. had been arrested in connection with the sexual abuse of L.W., and Ron J. reportedly had at least three fully loaded guns inside his car when he was arrested.
According to the detention report, mother attempted suicide on September 30, 2010. In the early morning hours of October 6 (while mother was still hospitalized in connection with the suicide attempt), Ron J. molested the minor's half sister, L.W. The minor and her two half siblings were taken into protective custody later that day. The minor told a social worker who interviewed him that he lived with his stepgrandfather, but that " 'I hate Ron, Ron is mean!' " The minor also told the social worker that "his mom got hurt because he left the door open. He [the minor] said that Ron was yelling. He thinks that [his brother] hurt his mom with a knife. His mom had cuts on her arm and there was blood all over the place," an apparent reference to mother's suicide attempt.
When interviewed in the hospital after her suicide attempt, mother told a social worker that she had tried to commit suicide "for a mixture of things that included an argument with" Ron J. Mother also reported that she had found a pair of panties belonging to the minor's half sister in Ron J.'s pocket while she was cleaning the living room about four months before her children were taken into protective custody. She told a mental health clinician that her daughter told her that Ron J. had been "playing with himself sexually, while the [daughter] play[ed] on the computer." The social worker was concerned that because mother knew that Ron J. was sexually abusing her daughter yet allowed him to have access to all her children, she had "placed them in substantial danger of being sexually abused too." The minor and his half siblings were ordered detained, and the minor was placed in a foster home. The minor's father was identified as Dion P. (father), who first appeared in these proceedings on October 19, 2010.
Mother reported to a social worker after the minor was placed in protective custody that she had Native American ancestry and that she was "part of the Alaskan Tribe called the Sealaska, Tlingkit, and Haida." Mother filed a parental notification of Indian status form with the juvenile court indicating that she was or may be a member of, or eligible for membership with, the Haida and Tlingkit tribes. The Department provided notice of the dependency proceedings to 21 tribes in October 2010, then provided updated notices in November.
Sean T. (the minor's 17-year-old half brother) was returned to mother's care before the jurisdictional hearing. The Department recommended in its jurisdiction report that detention of the minor and his half sister, L.W., be continued. The social worker provided further details about the recent sexual abuse of L.W., which took place while mother was hospitalized because of her suicide attempt. L.W. reported that around 4 a.m. on October 6, Ron J. was in her room and had his hand on her pubic area, over her underwear. At some point he told L.W., " 'I love you,' " but she told Ron to leave her room. According to the police report regarding the incident, Ron J. also told L.W. he " 'had no intention of fucking [her],' " and that he wanted to teach L.W. about sex. Ron J. told her that if she told anyone about the incident, he would kill himself; he held a revolver under his chin and said, " 'There is only one way out of this.' " L.W. again told Ron J. to leave the room, and she locked the door after he left.
L.W. reported to the social worker that Ron J. previously had molested her, when she was about 11 years old. She also described during an "MDIC interview" at least two to four separate incidents of "molestation and inappropriate sexual violations" by Ron J., and she stated during the interview that she reported the incidents to mother, according to the social worker. According to L.W., mother wanted Ron J. out of the house, "but they need the money." She also stated that she told mother about an incident in 2009 when Ron J. rubbed her leg at a movie theater; however, mother "got mad and did not want to confront [Ron J.] as she did not want to cause drama." L.W. stated that "she had told her mother several times what has happened," but that mother "gets mad and begins cursing and goes outside and smokes a cigarette." L.W. further reported that Ron J. had masturbated in front of her "a number of times." In an addendum report, the social worker reported that L.W. told her that mother had a "password" to let L.W. know when Ron J. was masturbating, so that L.W. could leave the room. L.W. said that as recently as early October 2010, she saw Ron J. sitting on the couch with his "penis sticking out of his shorts." The addendum report also included a description of a time when L.W. woke up when she was 11 or 12 years old and Ron J. was playing with her underwear.
The juvenile court accepted into evidence a DVD recording of the interview after watching it. The DVD has been lodged as an exhibit in this court.
Mother reported that Ron J. (her stepfather) molested her from the time she was eight or nine years old until she was 14. She told the social worker that she protects her children from Ron J. by not allowing them to be alone with Ron J. Ron J. had lived in her home for about two years, and he continued to reside with them "for financial reasons." Mother had tried to get him to move out in 2009, but "he refused to leave," according to mother.
The jurisdiction report also contained further details about mother's suicide attempt. According to a Fairfield police report, mother had been drinking alcohol, had overdosed on methadone, and was found to be unconscious in a parking lot close to her home, bleeding from cuts to both wrists. Mother later told the social worker that she took methadone for her arthritis, but the social worker testified that he was unable to confirm this. The minor told the social worker that "his mother is out of the hospital now but that there was a knife and a fight and his mother was sent to the hospital."
The social worker concluded in the jurisdiction report that mother should be commended for participating in individual therapy to address her mental health and emotional needs; however, mother appeared to lack insight into the gravity of her failure to protect her daughter. The social worker further observed that "[i]t is unclear without further treatment that the mother will be able to gain insight in how to protect [her daughter] and [the minor] if a boyfriend or another bo[a]rder were to move into the home . . . ."
At a contested jurisdictional hearing on November 4, 2010, the social worker testified that he had concerns that although Ron J. did not sexually abuse the minor, the minor was allowed to reside with him despite knowledge of Ron J.'s sexually abusive behavior. The concern was that, because of the minor's young age, the minor "could possibly be exposed to this if the mom brought another individual into the home such as that." The social worker acknowledged that Ron J. was in custody; however, the worker was concerned that mother did not have insight into why she placed her daughter at risk, allowing Ron J. to continue to live with the family despite her knowledge of his sexual behavior toward her daughter, and that she had displayed bad judgment in caring for her children.
Another concern the social worker had was that the minor apparently was present during mother's suicide attempt. The social worker testified that it was clear from speaking to the minor that he "saw something, a knife and a fight, and witnessed some piece of that incident" and that "it seemed like he was a little bit upset about it"; however, the social worker acknowledged that it was unclear how much of the suicide attempt the minor actually observed, and that it was possible the minor had heard about the suicide attempt from his siblings. The social worker testified that "I feel like there's some work on the mother's part that needs to happen in therapy." He explained that the mother had just begun therapy, and that it was his belief she needed time to "work through her own abuse," and to "work on having a safety plan."
The juvenile court found by a preponderance of the evidence that the allegations pursuant to section 300, subdivisions (b), (d), and (j) in the dependency petition were true, and that all three minors were described by those subdivisions. The court stated, "I still think that there is a substantial risk. The intergenerational molest, the other factors mentioned by counsel in terms of mental health and, you know, generally very, very poor judgment on behalf of the mother, I think justified present, or continuing detention of the two younger children [the minor and his half sister]." Father was found to be the minor's presumed father, and the court ordered that father and the minor have unsupervised visits, with overnight visits to be allowed at the discretion of the social worker.
At the Department's request, the court also dismissed the subdivision (g) allegations that the minors' fathers had left no provision for support, because the whereabouts of the children's fathers were known at the time of the jurisdictional hearing.
The social worker recommended in a disposition report dated November 22, 2010, that family reunification services be offered to father, and that the social worker have discretion to return the minor to father's care, with a plan of family maintenance. The social worker reported that mother acknowledged that she had been diagnosed with bipolar disorder, that she was currently participating in therapy through Solano County Mental Health, and that she had been prescribed psychotropic medication. The social worker continued to have concerns that "mother does not have insight into the gravity of the situation which she put her children into and the fact that upon learning that [her daughter] was sexually abused she failed to take action to protect her daughter. There also remain[] concerns that without further mental health and therapeutic treatment for the mother and the family that the mother could expose the children to another individual which could pose a danger to the children. The other major concern is that the mother committed acts of self harm in the presence of [the minor] and has just begun her mental health treatment. This risk for further abuse and neglect remains high." The social worker again commended mother for participating in individual therapy.
Following a dispositional hearing on November 22, 2010, the juvenile court followed the Department's recommendations that the minor's half brother remain in mother's care, and that the minor's half sister be placed with her father in Hawaii. The court granted the social worker the discretion to place the minor with father, then continued the dispositional hearing as to the minor only.
The Native Village Ketchikan Indian Community of Alaska (Village of Ketchikan) submitted to the Department a notice of intervention in the proceedings, which was filed on November 29, 2010. The juvenile court accepted the tribe's intervention and acknowledged the tribe as a party to the proceedings.
Although neither side raises this issue on appeal, it is clear that the notice listed only the minor's older half brother as an Indian child, as defined by ICWA. The notice listed only the half brother's case number, and did not mention the minor or list his case number. The parties proceeded under the assumption that the intervention applied to all three minors, presumably because they all had the same Native American ancestry through mother.
The Department filed with the juvenile court an ICWA expert report prepared by Percy Tejada, an "ICWA Expert Witness and Compliance Specialist." Mr. Tejada stated that he was a member of an Indian tribe (not the one that had intervened in the proceedings), that he had worked in many capacities for his tribe, that he had worked on ICWA compliance issues for the state, and that he had collaborated with other ICWA workers regarding defining and implementing ICWA standards and compliance. The expert's opinion was that, "absent input from a tribe but following the ICWA as to protective placement," it was in the best interest of the minor to be placed out of the home. The expert further opined that there were no other services that could have been provided that would have prevented the removal of the minor.
The minor was placed in father's care on December 20, 2010. In an addendum report dated the following day, the Department recommended that the minor remain with father under a plan of family maintenance. The social worker reported that father's current home was within a block of relatives who provided support to father.
At a contested dispositional hearing on January 3, 2011, the social worker stated that the tribal representative from the Village of Ketchikan was not available for the hearing, but that the representative had stated her willingness for the hearing to proceed in her absence. The social worker also testified that he had difficulty contacting the tribal representative, but that the representative was aware that the minor was placed with his father, and the representative had not expressed any concerns about the placement and had not proposed any other placement. The court proceeded without the presence of the tribal representative.
Mr. Tejada testified at the hearing regarding his training in preparing ICWA assessment reports, stating that his background "stem[med] from working closely with the State ICWA Indian Child Welfare Act work committee for the Governor's Office in the State of California about six to seven years ago when tribes were really talking about the expert witness provisions and making sure the tribes had an avenue and really a more compliant way of making sure that their expert witnesses were testifying on behalf of cases." He also worked as a consultant with the Intertribal Council of California, a consortium of 58 federally recognized tribes. He tried to contact the tribe that had intervened in this case, but he was unable to reach a representative.
On cross-examination, Mr. Tejada acknowledged that he had not spoken with any of the children involved in the proceedings, that he had not spoken with mother's therapist, and that he had not spoken with any of the visitation supervisors. He also acknowledged that he did not have a degree in social work, and he had not undergone any training in child development. Mr. Tejada stated that he had testified as an expert in 70 to 75 cases over the previous five years, that he had disagreed with the social services department's recommendations in only about five percent of those cases, and that he had always testified on behalf of the county.
The social worker testified at the dispositional hearing that after he submitted the disposition report, mother provided him with the name of a psychiatrist at the Solano County Mental Health Department who was providing therapy to mother. The worker was familiar with the psychiatrist, and testified that although he provided "medication management" to clients, the worker was not aware that he had ever provided therapeutic services. The social worker testified that mother would have to confirm her participation in therapy and medication management, and confirm that she had worked with her therapist to create a "safety plan," in order to have the minor returned to her care. The social worker also had concerns about mother's possible substance abuse, based on the report that she had overdosed on methadone when she tried to commit suicide. He testified that mother had been cooperative with the Department and had acknowledged that what happened between her daughter and Ron J. was wrong, that Ron J. currently was in custody, and that he (the social worker) had no knowledge of inappropriate people being in mother's home since he became involved in the case in October 2010. The social worker also acknowledged that mother reported she underwent a drug treatment program in 2005 in connection with methamphetamine use, and that none of the drug tests mother had undergone for the Department had come back positive. The social worker testified that the minor had expressed a desire to live with father, where he currently resided.
Following the presentation of evidence and argument, the juvenile court adopted the Department's recommendation, and found by clear and convincing evidence that there was a substantial danger to the minor's well-being if the minor were returned to mother's care (§ 361, subd. (c)(1)). The court also found that Mr. Tejada's testimony satisfied the requirements of ICWA, and concluded that continued physical custody by the mother was likely to cause the child serious emotional or physical damage (§ 361, subd. (c)(6)). The court stated that mother showed "extremely bad" judgment, and that "I don't think there's been another case where the mother more or less believed the allegations that were being made by the daughter and still allowed the perpetrator to remain in the home. . . . In this case the bad judgment is so bad I think the risk has been shown by the Department."
The court placed the minor with father, granted family reunification services to mother, and granted family maintenance services to father. The court also made a finding that the minor was an Indian child. Mother timely appealed.
After mother appealed, the juvenile court on July 19, 2011, terminated jurisdiction, awarded legal custody of the minor to mother and father, with physical custody to father. Mother has appealed that order, which is the subject of a separate, pending appeal (Solano County Health & Services Department v. N.R. (A132716)). As a general rule, where the juvenile court terminates jurisdiction over a minor, the appellate court has no jurisdiction to act upon any previous order in the dependency proceeding, because no direct relief can be granted even if the court were to find reversible error. (In re Michelle M. (1992) 8 Cal.App.4th 326, 329.) However, where, as here, a parent challenges the jurisdictional findings at the first opportunity, and the jurisdictional findings are the basis for subsequent visitation and custody orders, an appellate court will not dismiss an appeal based on mootness. (In re Joshua C. (1994) 24 Cal.App.4th 1544, 1548.)
II.
DISCUSSION
A. Jurisdictional Order.
Mother first argues that insufficient evidence supports the jurisdictional finding that the minor came within the statutory definition of a dependent child. "In addressing this contention, we are constrained by familiar principles: 'In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible.' [Citation.] ' "If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed . . . ." ' [Citations.]" (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) Mother has the burden of showing that there is no evidence of a sufficiently substantial nature to support the juvenile court's order. (In re Maria R. (2010) 185 Cal.App.4th 48, 57.) We separately address the juvenile court's various findings with respect to the minor.
1. Failure to protect (§ 300, subd. (b))
The minor was adjudged a dependent child under section 300, subdivision (b). "The statutory definition consists of three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) 'serious physical harm or illness' to the minor, or a 'substantial risk' of such harm or illness." (In re Rocco M., supra, 1 Cal.App.4th at p. 820.) "Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness." (Id. at p. 823, original italics.) "[T]he question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm." (Id. at p. 824, original italics.)
Section 300 provides, in relevant part, that any child that comes within the following description is within the jurisdiction of the juvenile court: "(b) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the child, or the willful or negligent failure of the child's parent . . . to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medial treatment, or by the inability of the parent . . . to provide regular care for the child due to the parent's . . . mental illness, developmental disability, or substance abuse. . . . The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness."
In arguing that insufficient evidence supports the finding that the minor is a child described by section 300, subdivision (b), mother focuses on the specific allegations contained in the juvenile dependency petition, arguing that they did not establish that the minor was currently at risk of serious harm. To the extent that mother claims that the petition failed to state a cause of action under section 300, subdivision (b), she waived her right to challenge the sufficiency of the petition by failing to demur to the allegedly defective pleading. (In re Christopher C. (2010) 182 Cal.App.4th 73, 83.) " 'Given that lay social workers are usually lumbered with the task of writing petitions, they must be given a certain amount of slack. If the parent believes that the petition does not "adequately communicate" the [Department's concerns or is otherwise misleading, the onus is on the parent to challenge the petition at the pleading stage.' [Citations.]" (In re S.O. (2002) 103 Cal.App.4th 453, 459-460.) "[A]fter a hearing on the merits has been held on the petition, the focus must necessarily be on the substance of the allegations found true by the juvenile court, not idiosyncratic particulars of the social worker's precise language. Anything less would allow parents to hold linguistic deficiencies in the petition as a kind of trump card by which they could attack a finding that a child fell within one of the descriptions of section 300, even though that finding was supported by substantial, indeed overwhelming evidence." (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1037-1038.)
Focusing on the substance of the allegations found true by the juvenile court, substantial evidence supports the finding that the minor is a child described by section 300, subdivision (b). The record contains evidence that on September 30, 2010, mother tried to commit suicide by cutting her wrists; that the suicide attempt may have taken place in the minor's presence, but that in any event the minor was aware that mother had been harmed with knife cuts; that mother was hospitalized for about a week because of the suicide attempt; that before the hospitalization the minor resided with an extended family member who had previously molested mother and who was believed to be sexually abusing the minor's older half sister, yet was permitted to stay in the family home, and who in fact was alleged to have molested the half sister during mother's hospitalization. The jurisdictional hearing was held on November 4, less than a month after mother was released from the hospital for her suicide attempt. Although mother at that time was cooperative and had begun therapy, the social worker was concerned that she needed more time to gain insight into her actions, work through her own issues of past abuse, and come up with a safety plan to protect her children. In light of mother's recent suicide attempt and, in the trial court's words, "very, very poor judgment" in protecting her children, there was substantial evidence that the minor would suffer serious physical harm as a result of mother's inability to adequately protect the minor. (§ 300, subd. (b).)
Mother focuses on all the reasons why there was no current risk that the minor would suffer sexual abuse by Ron J. (or anyone else). The social worker acknowledged at the jurisdictional hearing that there was no evidence that Ron J. had sexually abused the minor and that Ron J. was currently in custody. However, the social worker's concern was not so much that the minor would be sexually abused, but that mother had displayed extremely poor judgment in failing to protect her daughter from Ron J., and that she lacked insight into the effect her choices had on all her children. County counsel likewise acknowledged that Ron J.'s actions impacted the minor's half sister the most, but that mother's victimization by Ron J. "clearly is impacting her today in terms of her ability to protect her daughter, to make good decisions for her children, and no doubt is contributing to her mental health issues that led to her becoming hospitalized in September and leaving the children in the care of Mr. J[.],[] and ultimately led to the CPS intervention." (Italics added.) The juvenile court agreed with counsel, stating that mother's exposure of her children to someone who had previously molested her showed "very, very poor judgment."
As mother points out, the record supports an inference that the minor and his half siblings were in fact left with the maternal grandmother, as opposed to Ron J., during mother's hospitalization. We nonetheless disagree with mother's claim that this showed she "attempted to protect her younger children while she was in the hospital." According to the detention report, the maternal grandmother let the minor's half sister return to the home where Ron J. resided even though the grandmother apparently had knowledge that Ron J. "was touching" the half sister, suggesting that mother left her children with people who, like her, had poor judgment about how to protect them.
Citing In re James R. (2009) 176 Cal.App.4th 129, mother argues that mental illness, standing alone, is insufficient to sustain a petition under section 300, subdivision (b), absent a causal connection between the mental illness and serious harm to the minor. In James R., unlike here, there was no evidence that the mother had suicidal ideation after the birth of her children, "and there was never a determination [the mother] was a danger to herself or others." (James R. at p. 136.) Here, by contrast, mother had attempted suicide, and the attempt was so serious that it led to her involuntary hospitalization for about a week, a period when her daughter, L.W., was permitted to return to the home where she was reportedly abused by Ron J.—who had sexually abused mother in the past, and who was suspected of inappropriately touching L.W. before mother's suicide attempt. Based on this evidence, the Department met its burden of showing specifically the substantial risk of harm that the minor faced because of mother's inability to protect him.
2. Sexual abuse (§ 300, subd. (d))
We agree with mother, however, that the juvenile court erred when it found that the minor was a child described by section 300, subdivision (d), because no such allegation was contained in the dependency petition. Subdivision (d) permits the juvenile court to take jurisdiction where the minor "has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in Section 11165.1 of the Penal Code, by his or her parent or guardian or a member of his or her household, or the parent . . . has failed to adequately protect the child from sexual abuse when the parent . . . knew or reasonably should have known that the child was in danger of sexual abuse."
The page of the dependency petition containing the subdivision (d) allegation listed only the half sister and the case number assigned to her. The petition contained no allegations that the minor (or his half brother Sean T.) was a child described by subdivision (d), and the page of the petition addressing this allegation does not list the minor or the case number assigned to him. Although the dependency petition made clear which subdivisions of section 300 applied to which children, the various reports submitted to the juvenile court did not. The detention report's summary recommendation was that all three minors were "described in Sections 300 (b), (d), (g), and (j)," without distinguishing among the three children, as the dependency petition had. The Department recommended in the jurisdiction report that the section 300, subdivisions (b), (d), and (j) allegations be found true "as it relates to the mother," again without distinguishing among the three children.
At the close of the jurisdictional hearing, the juvenile court stated that the Department had proven by a preponderance of the evidence "allegations (b-1), (b-2), (d-1) and and that all three children were described by all three subdivisions. Consistent with this pronouncement, the court's minute order following the hearing states that the court sustained the section 300, subdivision (d) allegation "[a]s originally alleged," and that all three children were described by section 300, subdivision (d). (Italics added.) However, the dependency petition did not allege that the minor was a child described by this subdivision.
The dispositional order as to the minor likewise states that he is a child described by section 300, subdivision (d).
"A parent in a dependency proceeding is entitled to due process of law." (In re J.T. (1974) 40 Cal.App.3d 633, 637.) "Notice of the allegations upon which the deprivation of custody is predicated is fundamental to due process." (Id. at p. 639.) The juvenile court is not required to make specific findings in order to sustain the allegations of a petition when exercising its jurisdiction to declare a minor a dependent child of the court. (Id. at p. 640.) "This rule presupposes, however, that the allegations of the petition state appropriate ultimate facts which set forth the specific . . . factual allegations upon which an adjudication is sought . . . ." (Ibid.)
There is no dispute that substantial evidence supports a finding that the half sister was a child described by section 300, subdivision (d), and mother does not challenge that finding. However, there was no evidence presented that the minor was ever a victim of sexual abuse by anyone, or that he was even aware of the sexual abuse that his half sister suffered. The jurisdiction report cited concerns that mother had not gained sufficient insight into her failure to protect her daughter, and that she had not worked through her own history of sexual abuse by the same extended family member who abused her daughter. The social worker did not entirely discount the possibility of sexual abuse of the minor, stating that mother might not sufficiently protect the minor and his half sister if another boyfriend or boarder were to move into the home.
Respondent directs us to nothing in the record to indicate that the dependency petition was amended to allege that section 300, subdivision (d) applied to the minor. Indeed, it is unclear that allowing such an amendment here would have been appropriate. If a variance between pleading and proof is so wide that it would, in effect, violate due process to allow the amendment, the juvenile court should refuse such an amendment. (In re Jessica C., supra, 93 Cal.App.4th at pp. 1041-1042.) Here, the dependency petition did not put mother on notice that the Department intended to prove that the minor (as opposed to his older half sister) had been the victim of sexual abuse. Although there were brief references in the social worker's reports to possible future sexual abuse of the minor, this was insufficient to put mother on notice that there was a substantial risk that the minor would be sexually abused, as that term is defined by section 300, subdivision (d). On appeal, the Department never directly acknowledges that the juvenile court sustained an allegation that had not been alleged in the original dependency petition, instead arguing that Ron J.'s actions were so egregious that they must have been "disturbing and annoying to the family," and that the minor was at risk for future sexual abuse, a theory that was not pursued in the juvenile court. (See also In re Maria R., supra, 185 Cal.App.4th at p. 63 [parent's sexual abuse of daughter not sufficient, standing alone or in combination with factors that have no correlation with sexual abuse, to establish that parent's son is at risk of sexual abuse by that parent, within meaning of § 300, subd. (d)].)
In light of all these circumstances, we shall remand to the juvenile court to modify the jurisdictional and dispositional orders so as to delete a finding that the minor is described by section 300, subdivision (d). Although we order that the finding be stricken, this does not affect the juvenile court's jurisdiction over the minor, because the minor is a dependent if the actions of a parent bring the minor within at least one of the statutory definitions of a dependent. (§ 356 [juvenile court shall make finding whether minor is person described by § 300]; Cal. Rules of Court, rule 5.684(f)(4) [court must make finding that minor is described by one or more subdivisions of § 300].)
As set forth above, the juvenile court also found that the minor's older half brother, Sean T., was a child described by section 300, subdivision (d), even though the petition contained no such allegation, and there is little (if any) evidence in the record to support it. Disposition as to Sean T. was addressed before disposition as to the minor, and mother did not appeal in Sean T.'s case despite being provided notice that she had the right to do so. This court therefore lacks jurisdiction to correct the apparent error as to Sean T. (In re Elizabeth G. (1988) 205 Cal.App.3d 1327, 1331 [appellate jurisdiction dependent on timely notice of appeal].)
3. Abuse of sibling (§ 300, subd. (j))
Mother also challenges the finding that the minor was a child described by section 300, subdivision (j), which applies where "[t]he child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions. The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent . . . , and any other factors the court considers probative in determining whether there is a substantial risk to the child." (Italics added.)
Again, there is no dispute that L.W., the minor's half sister, suffered sexual abuse by Ron J., as defined by section 300, subdivision (d). (§ 300, subd. (j).) The parties dispute whether the second prong of subdivision (j) applies; that is, whether there was "a substantial risk that the [minor] will be abused or neglected, as defined in" subdivisions (a), (b), (d), (e), or (i). "[S]ubdivision (j) permits the adjudication of a child whose sibling has been determined to have been sexually abused under subdivision (d), if the court finds that there is a substantial risk that the child will be abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i) of section 300. Thus, the basis for taking jurisdiction of [the minor] under subdivision (j) is not limited to a risk of sexual abuse, as that term is defined by subdivision (d) . . . ." (In re Maria R., supra, 185 Cal.App.4th at pp. 62-63, original italics.) "The broad language of subdivision (j) clearly indicates that the trial court is to consider the totality of the circumstances of the child and his or her sibling in determining whether the child is at substantial risk of harm, within the meaning of any of the subdivisions enumerated in subdivision (j)." (Id. at p. 64, original italics.)
As set forth above (ante, part II.A.1.), the fact that mother allowed a known sex abuser to reside in the home with her three children demonstrated such poor judgment that there was a substantial risk that the minor would suffer future harm, as defined by section 300, subdivision (b). " 'When a parent abuses his or her own child, or permits such abuse to occur in the household, the parent also abandons and contravenes the parental role. Such misparenting is among the specific compelling circumstances which may justify state intervention, including an interruption of parental custody.' [Citation.]" (In re Maria R., supra, 185 Cal.App.4th at p. 63, italics added.) Section 300, subdivision (j) also directs the juvenile court to consider "the mental condition of the parent," which in this case was reportedly poor, as shown by mother's recent suicide attempt. Considering the totality of the circumstances, substantial evidence supports the finding that the minor was a child described by section 300, subdivision (j).
In Maria R., the juvenile court concluded that because the father sexually abused his two daughters, their brother was a child described by section 300, subdivision (j), because there was a substantial risk that he also would be sexually abused, as defined by section 300, subdivision (d). (In re Maria R., supra, 185 Cal.App.4th at pp. 57, 62, 68.) The appellate court held that the record lacked evidence that the brother was at substantial risk of sexual abuse as defined by subdivision (d), but remanded to the juvenile court to determine whether he was at substantial risk of abuse or neglect as defined by another subdivision or subdivisions. (Maria R. at pp. 68, 71-72.) Unlike here, the petition in Maria R. apparently contained no allegation under section 300, subdivision (b). (Maria R. at pp. 52, 61.) The petition in this case alleged that section 300, subdivision (j) applied to the minor because his half sister had been molested, which placed the minor "at risk of similar abuse." However, the juvenile court's finding at the jurisdictional hearing was not limited to a risk of sexual abuse, stating that mother showed "generally very, very poor judgment," which put the minors at "substantial risk." Under the circumstances of this particular case, we do not find it necessary to remand to the juvenile court to make further findings. (In re Jessica C., supra, 93 Cal.App.4th at p. 1038 [substance of allegations found true was that child actually suffered sexual abuse, not simply that she reported abuse, as specifically alleged in dependency petition].)
Although neither party raises this issue, we note that the dispositional order omits the finding that the minor is a child described by section 300, subdivision (j). We hereby direct that the dispositional order be modified to include the finding, consistent with the juvenile court's jurisdictional order.
B. Dispositional Order.
Mother also challenges the dispositional order removing the minor from her care, a claim we review for substantial evidence. (In re Henry V. (2004) 119 Cal.App.4th 522, 529.) The juvenile court found that removal from mother's care was appropriate pursuant to section 361, subdivision (c)(1) and (6), statutory provisions that we address separately below.
1. Section 361, subdivision (c)(1)
A dependent child may not be taken from the physical custody of the parents unless the juvenile court finds clear and convincing evidence that "[t]here 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." (§ 361, subd. (c)(1).) The governing statute " 'is clear and specific: Even though children may be dependents of the juvenile court, they shall not be removed from the home in which they are residing at the time of the petition unless there is clear and convincing evidence of a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being and there are no "reasonable means" by which the child can be protected without removal.' " (In re Henry V., supra, 119 Cal.App.4th at p. 528.) "In determining whether a child may be safely maintained in the parent's physical custody, the court may consider the parent's past conduct and current circumstances, and the parent's response to the conditions that gave rise to juvenile court intervention." (In re Maria R., supra, 185 Cal.App.4th at p. 70.)
The juvenile court concluded that mother's judgment in allowing Ron J. to continue to reside in her home even though she believed he was abusing her daughter was "so bad" that it justified the minor's removal from her care. In arguing to the contrary, mother again argues that mental illness, standing alone, does not justify removal of a dependent minor, that the concern she would get into a relationship with another sexual abuser was speculative, that there were no concerns expressed over the minor's (as opposed to her) current mental health, and that mother was being cooperative with the Department. In doing so, she again downplays her past conduct, such as her relatively recent suicide attempt that left her involuntarily hospitalized for a week, and her decision to allow Ron J. to reside in her home (apparently in part for financial reasons) even though she suspected he was abusing her daughter and had abused her (mother) in the past. Mother also does not sufficiently address the social worker's concern that mother address her emotional needs in therapy and come up with a "safety plan" in order to adequately protect her children.
Mother claims on appeal that there were reasonable means to protect the minor absent removal, because the social worker could check on her daily, and the minor would attend preschool during part of the day. Given the minor's young age and the fact that mother's suicide attempt may have occurred in this minor's presence, it is unclear that such measures would be sufficient. In light of all these circumstances, substantial evidence supports the finding that returning the minor to mother's care was appropriate pursuant to section 361, subdivision (c)(1).
2. Section 361, subdivision (c)(6)
Mother also argues that the Department's ICWA expert was not competent to testify, and that we must therefore reverse the findings made pursuant to state law implementing ICWA. We find no reversible error on the record before us.
a. No ICWA finding necessary
ICWA provides that "[n]o foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." (25 U.S.C. § 1912(e).) Section 361, subdivision (c), provides that a dependent child may not be taken from a parent's custody unless the circumstances listed in paragraphs (1) to (5) are found to be true by clear and convincing evidence (ante, part II.B.1.), "and, in an Indian child custody proceeding, paragraph (6)." Paragraph (6) provides: "In an Indian child custody proceeding, continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child, and that finding is supported by testimony of a 'qualified expert witness' as described in Section 224.6." (§ 361, subd. (c)(6).) An " 'Indian child custody proceeding,' " in turn, is defined by section 224.1, subdivision (d), as "a 'child custody proceeding' within the meaning of Section 1903 of the Indian Child Welfare Act, including a proceeding for temporary or long-term foster care or guardianship placement, termination of parental rights, preadoptive placement after termination of parental rights, or adoptive placement."
Paragraph (6) was added to section 361, subdivision (c) effective January 1, 2007. (Stats. 2006 ch. 838, § 48.) About two years later, the Fifth District explained that an "Indian child custody proceeding," as that term is used in the statute, does not include a situation where, as here, a child is removed from one parent and placed with the other. (In re J.B. (2009) 178 Cal.App.4th 751, 757.) Because the opinion disposes of the issue raised in this appeal, we quote it at length: "[Section 224.1, subdivision (d)] does not include a proceeding in which a dependent child is removed from one parent and placed with the other. Similarly, the ICWA definition referenced in section 224.1 (25 U.S.C. § 1903) does not refer to placement with a noncustodial parent. By expressly including certain placements, the Legislature impliedly excluded others, such as placement with a parent. [Citation.] If the Legislature intended to include placement with a parent, we assume it would have expressly done so by adding it to the list.
"Furthermore, the plain language of the statute cannot be said to include placement with a parent as a type of foster care placement. Placement with a parent is not foster care. (See 25 U.S.C. § 1903(1)(i); [citation].) Section 1903 defines 'foster care placement' as 'any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated. . . .' (25 U.S.C. § 2903(1)(i), italics added.)
"Thus, the plain language of section 361, subdivision (c)(6), establishes that the statute applies only in an 'Indian child custody proceeding,' the definition of which expressly includes various proceedings, but not a proceeding for placement with a parent. (§ 224.1, subd. ([d]); 25 U.S.C. § 1903.) Accordingly, the finding under that provision and the expert testimony to support it are not required when an Indian child is placed with a parent." (In re J.B., supra, 178 Cal.App.4th at pp. 757-758, fn. omitted, original italics.) The J.B. court also noted that its interpretation of section 361, subdivision (c)(6) comported with the remainder of the ICWA statutory scheme and the express purpose of ICWA. (J.B. at pp. 758-760.)
We agree with respondent and the court in In re J.B., supra, 178 Cal.App.4th 751 that because the minor was placed with a parent, it was unnecessary to provide the testimony of an expert witness, or make a finding pursuant to section 361, subdivision (c)(6). It is true, as mother argues, that the Department offered expert testimony and requested an ICWA finding at the dispositional hearing. However, in light of the fact that this testimony and finding were in fact unnecessary, any error with respect to such a finding would not amount to reversible error.
Respondent does not cite In re J.B., supra, 178 Cal.App.4th 751, instead relying on cases that predate the addition of paragraph (6) to section 361, subdivision (c). In arguing that the statute in fact applied here, mother likewise fails to cite J.B. or any case postdating the addition of paragraph (6) to the statute, instead relying primarily on In re Jennifer A. (2002) 103 Cal.App.4th 692, a case where a child was placed with her father but, unlike here, "the issue of possible foster care placement was squarely before the juvenile court." (Id. at p. 700, italics added.) Here, the Department had recommended that the minor remain in father's custody.
b. Challenge to expert not grounds for reversal
Even assuming arguendo that the juvenile court was required to make findings pursuant to section 361, subdivision (c)(6), we find no error in the court's ruling. Mother argues at length that the testifying ICWA expert was not competent to testify as a " 'qualified expert witness[],' " as defined by ICWA and state law. (25 U.S.C. § 1219(e); § 224.6, subd. (a).) Even if we agreed that the expert was not qualified, and thus no expert testimony supported the juvenile court's finding, the error would not have been one of constitutional dimension, and we therefore would reverse only if there were a reasonable probability that the outcome would have been different absent the error. (In re Riva M. (1991) 235 Cal.App.3d 403, 412-413.)
We find no such reasonable probability that the outcome would have been different absent the support of expert testimony. Indeed, mother does not directly challenge the juvenile court's finding based in part on the expert's testimony; namely, that continued physical custody of the minor by mother would result in serious emotional or physical damage to him. (§ 361, subd. (c)(6).) She argues in passing that the expert's conclusions were incorrect for the same reasons that the juvenile court's conclusions pursuant to section 361, subdivision (c)(1) were erroneous. Because we previously have rejected those arguments (ante, part II.B.1.), we likewise reject her argument that insufficient evidence supported the finding pursuant to subdivision (c)(6) of the statute.
3. Section 361, subdivision (c)(5)
Although no such finding was made at the dispositional hearing, the juvenile court's dispositional order states that there was clear and convincing evidence of the circumstances specified in section 361, subdivision (c)(5), which provides that a dependent child may be taken from the physical custody of the parent where the minor has been left without any provision for his or her support. Mother argues, and respondent concedes, that this provision is inapplicable in this case. We find that this concession is appropriate, and order that this finding be stricken from the dispositional order.
III.
DISPOSITION
The juvenile court is ordered to modify the jurisdictional and dispositional orders to strike the finding that the minor is a child described by section 300, subdivision (d). The court also is ordered to modify the dispositional order to strike the finding that section 361, subdivision (c)(5) applies, and to add the finding that the minor is a child described by section 300, subdivision (j). The orders are otherwise affirmed.
Sepulveda, J. We concur: Ruvolo, P.J. Rivera, J.