Opinion
A148295
03-17-2017
In re R.C., III, a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. R.C., JR., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. SJ16026089)
This is an appeal from the juvenile court's issuance of temporary, followed by, permanent restraining orders against appellant, R.C., Jr. (father) and E.K. (mother) for the protection of their son, R.C., III (minor). Father contends these restraining orders lack the support of substantial evidence that he posed an actual or reasonable threat to minor's safety in foster care. Father also contends the juvenile court and respondent Alameda County Social Services Agency (agency) failed to fully comply with the notice requirements of the Indian Child Welfare Act of 1978, 25 U.S.C. section 1901 et seq. (ICWA). We affirm.
Mother is not a party to this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
On January 7, 2016, a petition was filed pursuant to Welfare and Institutions Code section 300 alleging that minor, age 4, came within subdivisions (b) and (g) of the statute based upon the following circumstances: (b-1) mother was recently arrested and found in possession of marijuana, a loaded weapon and counterfeit money with minor present in the vehicle; (b-2) minor reported being scared of father; (b-3) mother had a criminal history that included a 2012 misdemeanor drug offense; (b-4) father, who is required to register as a drug offender, had an extensive criminal history that included felony firearm possession and felony possession of marijuana for sale; (b-5) parents had a violent domestic relationship that included verbal threats of bodily harm made in minor's presence; and (g-1) father's circumstances and ability to parent were unknown.
Unless otherwise stated, all statutory citations herein are to the Welfare and Institutions Code.
This petition followed mother's arrest on January 5, 2016 by the Ripon Police Department at a traffic stop with minor in her vehicle. During this traffic stop, mother was found in possession of marijuana, a loaded gun, and counterfeit money. At the time of mother's arrest and incarceration, minor reported that he lived with mother and was scared of father because, about five months ago, father tried to push minor out of the car with a gun. Minor further reported that he did not see the gun, and that the only gun he ever saw was mother's gun.
A detention hearing was held January 8, 2016. Father appeared, while mother, who was incarcerated, did not. The juvenile court, among other things, appointed counsel for all parties and ordered minor detained. The court then ordered parents to complete the Parental Notification of Indian Status form. Father thereafter submitted the completed form, indicating he was unaware of any Indian ancestry. A jurisdictional/dispositional hearing was then set for January 26, 2016.
Both parents appeared for the January 26, 2016 hearing. However, this hearing was continued to February 9, 2016, on which date the court also scheduled a hearing to consider mother's request for a temporary restraining order (TRO) against father.
The agency filed a jurisdictional/dispositional report in anticipation of the February 9 hearing. In this report, the agency recommended that minor be declared a dependent and placed out of the home, with reunification services for mother and father (depending on the result of his upcoming paternity test). The agency also indicated that it was unknown at that time whether ICWA applied to the case.
The agency's child welfare worker reported, among other things, that the maternal grandmother described mother as having a history of mental health issues. Maternal grandmother had recently obtained a restraining order against mother due to her repeated threats of violence toward grandmother.
Father likewise reported having obtained a restraining order against mother (as did his live-in girlfriend). In addition, father had tested positive for marijuana and opiates, prompting the child welfare worker to warn him of the importance of testing drug-free given his past drug-related felony convictions. He had completed two supervised visits with minor and, while minor was slow to warm to him, ultimately the child welfare worker believed these visits were appropriate, attentive and interactive. Minor called father, "daddy."
On January 14, 2016, the child welfare worker visited father's home and found it tidy and appropriately furnished. Father's girlfriend explained that she had obtained a restraining order against mother based upon her threatening phone calls and harassment (which included breaking into her car). The girlfriend played for the child welfare worker a recording of one of mother's abusive phone messages.
Father acknowledged to the agency a criminal history that included two incarcerations, felony convictions for possession of a firearm and marijuana for sale, transportation of controlled substances/narcotics, participation in a criminal street gang, and arrests for parole violations. While father was incarcerated, minor lived with mother. Father reported that mother had kept drugs and drug paraphernalia within reach of minor. He denied engaging in domestic violence against mother.
Mother, in turn, reported to the child welfare worker that father was violent, abused drugs, and was involved in gang activity. Once, when minor visited father, minor was "jumped" by his five-year old cousins, who were also "gang members."
According to a police report, on July 5, 2015, there was an incident of mutual battery involving mother and father's girlfriend during mother's and father's custody exchange of minor. Mother reported that the girlfriend charged her and punched her with a closed fist. A similar police report, dated September 29, 2015, described an incident involving mother making threats to the girlfriend's children.
At the subsequent February 9, 2016 hearing, the juvenile court issued its own TRO based upon the information in the petition, and mother then requested a permanent restraining order to protect herself and minor from father. A contested hearing on this restraining order issue was continued to March 1, 2016, and the previously scheduled jurisdictional/dispositional hearing was continued to March 25, 2016.
The agency filed an addendum report on March 1, 2016, which, among other things, confirmed that father was minor's biological parent. Mother had reported to the child welfare worker that, on November 28, 2015, father approached her car and threw a liquid with a chemical smell at her face, causing her to be badly burned. Mother also told the child welfare worker that father and his girlfriend had threatened mother and minor. However, the agency's subsequent investigations did not uncover any police reports related to these alleged incidents.
At the March 1, 2016 hearing, mother requested a permanent restraining order to protect herself and minor from father, and the court extended the TRO for a contested hearing on March 4, 2016. At this continued hearing, the court heard from several witnesses, including mother, father, and the child welfare worker.
At this hearing, mother testified that she believed father posed a risk of harm to minor, noting in particular an incident occurring on November 28, 2015, when father allegedly approached her car and threw a liquid with a chemical smell at her face, causing her to be badly burned. According to mother, this liquid was "like fire," "so hot," and the "smell was really strong." Mother further testified that her "face blistered," and minor was so scared and upset that he was crying. Mother did not seek medical attention because she did not have medical insurance, and did not make a police report because she believed it would be useless and feared being arrested for driving without a license.
Mother also testified about a September 8, 2015 incident, during which minor appeared frightened and shaking after father's girlfriend threatened to assault her and kidnap minor at a sporting event. The same day, father and his girlfriend followed mother, threatening her and warning they would kidnap minor again. Minor was scared and crying. Later, in the parking lot, father showed mother a gun he was carrying in his pants, made a slashing motion across his throat, and told mother he would kill her. Mother, in turn denied threatening or approaching father on this date.
Mother also testified about an incident on January 10, 2015, when father beat her up in minor's presence. Minor, three years old at the time and scared of father, hid under a chair.
Finally, mother testified about an incident on July 5, 2015, during which father pulled minor out of her car through the window and took him inside his house despite her protestations and minor's crying. Father then snuck out the backdoor with minor, prompting mother to call 911. She was then assaulted by father's girlfriend and her two cousins. Mother explained that she wanted minor to have a relationship with father, so she had driven by father's house that day because she wanted to ask whether father wanted to spend time with minor. Father had not seen minor since late January.
Father also testified, and vehemently denied most (if not all) of the incidents of alleged violence described by mother in her testimony. Among other things, father denied being in a gang (although he admitted gang involvement in his youth), denied pulling minor through a car window on July 5, 2015, denied threatening to kill mother or displaying a weapon on September 8, 2015, and denied throwing liquid on mother's face on November 28, 2015. To the contrary, father testified that minor enjoyed spending time with him and, since being released from prison, father had made many efforts to do so. In particular, they enjoyed playing with cars and balls, reading books, eating pizza and going to the park together.
The child welfare worker testified that she had observed visits between father and minor, and they appeared normal and appropriate. In her opinion, minor did not appear afraid of father, and father did not pose an imminent risk of harm to minor. Rather, minor did not hesitate to approach his father, and seemed happy and in a good mood during the visits. In fact, she believed supervised visits would be in minor's best interests, although she could not recommend minor's return to his care until father had demonstrated the ability to remain sober and free from legal trouble, and to parent appropriately.
On March 10, 2016, at the conclusion of this hearing, the juvenile court issued mutual restraining orders against mother and father to protect minor, and to protect each parent from the other parent. In doing so, the juvenile court found that both parents had acted as primary aggressors rather than in self-defense. While the court questioned the veracity of mother's testimony with respect to the July and November 2015 incidents, it found true the September 2015 incident involving the violent and threatening confrontation between mother and father and his girlfriend, in minor's presence, at a sporting event. According to the court: "It is by the grace of all that is good that [minor] has not been harmed so far." The juvenile court also ordered, among other things, weekly supervised visits with minor, as well as parenting and domestic violence classes, for both parents.
Shortly thereafter, father filed a notice of appeal of the "Temporary restraining order issued on 2/9/16 & permanent restraining order issued 3/10/16 restraining appellant & protecting the minor & his mother."
DISCUSSION
Father raises two issues on appeal. First, father contends there was no substantial evidence supporting the juvenile court's issuance of restraining orders for the protection of minor. Second, father contends both the juvenile court and the agency failed their statutory duties of inquiry under ICWA. We address each issue in turn below.
I. Sufficiency of Evidence Supporting the Restraining Orders Against Father.
Father's first challenge is to the sufficiency of the evidence supporting the restraining orders imposed against him by the juvenile court for minor's protection. The standard of review is not in dispute.
"Under section 213.5, subdivision (a), the juvenile court may issue an order 'enjoining any person from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, . . . destroying the personal property, contacting, . . . or disturbing the peace of the child . . . .' This subdivision also permits the court to issue orders including the child's parent as a person protected from the behaviors listed above and excluding the restrained person from the child's home." (In re C.Q. (2013) 219 Cal.App.4th 355, 363.)
"Issuance of a restraining order under section 213.5 does not require 'evidence that the restrained person has previously molested, attacked, struck, sexually assaulted, stalked, or battered the child.' [Citation.] Nor does it require evidence of a reasonable apprehension of future abuse. (Ibid.) . . . [S]ection 213.5 is analogous 'to Family Code section 6340, which permits the issuance of a protective order under the Domestic Violence Prevention Act . . . if "failure to make [the order] may jeopardize the safety of the petitioner . . . ." ' [Citations.]" (In re C.Q., supra, 219 Cal.App.4th at pp. 363-364.)
"In reviewing the restraining order, 'we view the evidence in a light most favorable to the respondent, and indulge all legitimate and reasonable inferences to uphold the juvenile court's determination. If there is substantial evidence supporting the order, the court's issuance of the restraining order may not be disturbed.' [Citations.]" (In re C.Q., supra, 219 Cal.App.4th at p. 364.)
Having reviewed the record in this case, we conclude there is indeed substantial evidence supporting the juvenile court's issuance of restraining orders against parents for the protection of minor on the dates in question. In particular, the court accepted as truth mother's testimony regarding a September 8, 2015 incident, during which minor appeared frightened and shaking after father's girlfriend threatened to assault her and kidnap minor at a sporting event. According to mother, father and his girlfriend then followed her and continued to threaten her, and, later, father displayed his gun to her, made a slashing motion across his throat, and told her that he would kill her. Minor, according to mother, was scared and crying.
While it is no doubt true that father vehemently denied nearly all of mother's testimony regarding various incidents of violence between them in minor's presence, the juvenile court - to wit, the appropriate trier of fact in this matter - accepted at least some of mother's testimony, including her description of the aforementioned September 2015 incident. Given this evidence of father's threatening and harassing, if not violent, conduct toward mother in minor's presence, there is a valid basis for affirming the juvenile court's restraining orders. (See In re Alexis E. (2009) 171 Cal.App.4th 438, 450-451 [testimony from a single competent witness may constitute substantial evidence in support of the lower court order]; In re N.M. (2011) 197 Cal.App.4th 159, 168 [so long as there is substantial evidence in the record, we affirm the juvenile court order even if other evidence supports a contrary conclusion]. See also In re C.Q., supra, 219 Cal.App.4th at pp. 363-364 [issuance of a restraining order under section 213.5 "does not require 'evidence that the restrained person has previously molested, attacked, struck, sexually assaulted, stalked, or battered the child,' " or "evidence of a reasonable apprehension of future abuse"].) Accordingly, father's first challenge fails.
II. Compliance with ICWA Notice Requirements.
Father's remaining contention is that the juvenile court and the agency failed to comply with the mandatory notice requirements under ICWA. According to father, notwithstanding the agency's vague notation on the Amended Petition and Indian Child Inquiry Attachment filed June 7, 2016 that an Indian child inquiry had been made, there is no evidence in the record that the juvenile court discharged its duty under ICWA to inquire about mother's Indian ancestry. Accordingly, father reasons, the restraining order(s) must be reversed and the matter remanded with instructions to the court to make the requisite ICWA inquiry. (See 25 U.S.C., § 1914 [ICWA renders voidable any action taken without requisite notice to the tribe or Bureau].)
Under section 224.2, subdivision (a): "(a) If the court, a social worker, or probation officer knows or has reason to know that an Indian child is involved, any notice sent in an Indian child custody proceeding under this code shall . . . comply with all of the following requirements: [¶] . . . [¶] (2) Notice to the tribe shall be to the tribal chairperson, unless the tribe has designated another agent for service. [¶] (3) Notice shall be sent to all tribes of which the child may be a member or eligible for membership, until the court makes a determination as to which tribe is the child's tribe in accordance with subdivision (d) of Section 224.1, after which notice need only be sent to the tribe determined to be the Indian child's tribe."
Father acknowledges that he completed and signed the ICWA-020 form declaring that he did not have Indian ancestry when he first appeared before the juvenile court on the January 8, 2016 detention hearing. Mother, however, did not initially appear until January 26, 2016, at which time it appears she was not advised or instructed to complete this form.
The agency counters that father's ICWA challenge is improper because his notice of appeal does not mention any action by the juvenile court pursuant to ICWA. Rather, his notice of appeal identifies only the restraining orders issued by the court as subject to appeal: "Temporary restraining order issued 2/9/16 & permanent restraining order issued 3/10/16 restraining appellant & protecting the minor & his mother." We agree with the agency.
A notice of appeal must identify the order being appealed. (Cal. Rules of Court, rule 8.100(a)(2).) Further, where an appellant seeks review of more than one appealable judgment or order, the appellant must expressly identify, in either a single notice of appeal or multiple notices of appeal, the specific judgments and/or orders in order to obtain review of them on appeal. (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 173.) While father correctly notes there is a policy of liberally construing a notice of appeal in favor of its sufficiency, this policy does not apply where, as here, the notice of appeal is so specific that it cannot reasonably be read as reaching an order not mentioned at all. (Ibid.) Accordingly, we may review only the orders listed in father's notice - to wit, the February 9, 2016 and March 10, 2016 restraining orders.
In any event, even assuming for the sake of argument that the proper procedures under ICWA have not, as of yet, been followed, we are confident no prejudice has resulted. A violation of ICWA notice requirements may be harmless error when, for example, even if the notice had been given, the child would not have been found to be an Indian child, and hence the substantive provisions of ICWA would not have applied. (In re S.B. (2005) 130 Cal.App.4th 1148, 1162; see Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784.) Moreover, "[a]ny 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." (In re S.B., at p. 1162.) And here, it appears on this record that the jurisdictional/dispositional hearing has not yet occurred, providing ample opportunity for the juvenile court to ensure full compliance with the mandates of ICWA before ultimately resolving this matter. (See Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 866-867; see also In re H.B. (2008) 161 Cal.App.4th 115, 122 ["The knowledge of any Indian connection is a matter wholly within the appealing parent's knowledge and disclosure is a matter entirely within the parent's present control. . . . Parents cannot spring the matter for the first time on appeal without at least showing their hands"].)
DISPOSITION
The juvenile court orders of February 9, 2016, and March 10, 2016, are affirmed.
/s/_________
Jenkins, J. We concur: /s/_________
McGuiness, P. J. /s/_________
Siggins, J.