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In re A.M.

California Court of Appeals, Second District, Sixth Division
Sep 24, 2008
2d Juv. No. B204976 (Cal. Ct. App. Sep. 24, 2008)

Opinion


In re A. M., et al., Persons Coming Under the Juvenile Court Law. SANTA BARBARA COUNTY CHILD PROTECTIVE SERVICES, Plaintiff and Respondent, v. S. M., Defendant and Appellant. B204976 California Court of Appeal, Second District, Sixth Division September 24, 2008

NOT TO BE PUBLISHED

Santa Barbara County Super. Ct. No. SMJ 12422, J 1174473, J 1174474, J 1174475, James E. Herman, Judge

Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and Appellant.

Dennis A. Marshall, County Counsel, County of Santa Barbara and Toni Lorien Deputy, for Respondent.

YEGAN, Acting P.J.

S. M. is the mother of A. M. (age 14), M. M. (age 12), C. M.1 (age 5) and C. M.2 (age 5) (hereafter the children). She appeals from an order denying her petition for modification of a prior order of the juvenile court. (Welf. & Inst. Code, § 388.) The petition sought the return of the children to her custody. She also appeals from a judgment terminating her parental rights to C. M.1 and C. M.2 (hereafter the twins). (§ 366.26.)

In addition to the four children designated above, appellant has five children not involved in this appeal.

All statutory references are to the Welfare and Institutions Code unless otherwise stated.

Appellant contends: (1) the juvenile court erroneously found that the termination of parental rights would not be detrimental to the twins under the "regular visitation and contact" and the "sibling relationship" exceptions (§ 366.26, subds. (c)(1)(A) & (c)(1)(E)); (2) the juvenile court abused its discretion in denying the section 388 petition; and (3) the juvenile court and Santa Barbara County Child Welfare Services (respondent) failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA, 25 U.S.C. § 1901 et seq.).

We affirm the order denying the section 388 petition. As to the judgment terminating parental rights, we conclude that substantial evidence supports the juvenile court's findings. However, we agree with appellant that respondent and the juvenile court did not comply with the notice requirements of the ICWA. We conditionally reverse the judgment terminating parental rights and remand the matter with directions that the juvenile court ensure full compliance with the notice provisions of the ICWA.

Factual and Procedural Background

On September 26, 2005, the juvenile court found true the allegations of a juvenile dependency petition. (§ 300.) The petition alleged, inter alia, that (1) appellant was under the influence of methamphetamine in the children's presence, (2) the "family motel room" was "in a disheveled, unkempt state," (3) "[t]here was one single bed for six children and two adults," (4) the parents "have a lengthy Child Welfare history which dates back to 1997" and includes 21 "Child Welfare Services referrals," and (5) appellant has a "felonious criminal history dating back to 1991."

The children were declared dependents of the Juvenile Court and were placed in the custody of Child Protective Services for placement in foster homes. Family reunification services were ordered to be provided to appellant, who was incarcerated for selling drugs.

On May 22, 2006, the juvenile court granted a request to have the twins placed with appellant in the Family Foundations Program of the Department of Corrections. On September 19, 2006, the court ordered that the twins be detained in a foster home. They were subsequently removed from appellant's custody.

On March 13, 2007, family reunification services were terminated as to all of the children. The juvenile court set a section 366.26 hearing at which the termination of parental rights could be ordered. On June 21, 2007, appellant filed a section 388 petition seeking the return of the children to her custody. At that time, the twins were living together with one set of foster parents, and A. M. and M. M. were living together with a different set of foster parents.

On November 28, 2007, the juvenile court conducted a combined section 388 and section 366.26 hearing. The court denied the section 388 petition and ordered that appellant's parental rights not be terminated as to A. M. and M. M. On the other hand, the court ordered the termination of her parental rights as to the twins.

Termination of Parental Rights

"If the court finds that a child may not be returned to his or her parent and is likely to be adopted, it must select adoption as the permanent plan unless it finds that termination of parental rights would be detrimental to the child under one of [several] specified exceptions. [Citations.]" (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) The exceptions at issue here are set forth in two subdivisions of section 366.26: subdivision (c)(1)(A), which applies if "[t]he parents have maintained regular visitation and contact with the child and the minor would benefit from continuing the relationship," and subdivision (c)(1)(E), which applies if "[t]here would be substantial interference with a child's sibling relationship . . . ." Appellant contends that the juvenile court erroneously determined that these exceptions are inapplicable.

Effective January 1, 2008, section 366.26 was amended. (Stats.2007, ch. 583, § 28.5.) The amendment redesignated subdivision (c)(1)(A) as (c)(1)(B)(i) and subdivision (c)(1)(E) as (c)(1)(B)(v). This case was decided under the former version of the statute. We therefore refer to that version in this opinion.

Standard of Review

We review the juvenile court's findings under the substantial evidence standard. (In re Derek W., supra, 73 Cal.App.4th at p. 827; In re Autumn H. (1994) 27 Cal.App.4th 567, 575; contra, In re Jasmine D. (2000)78 Cal.App.4th 1339, 1351 [reviewing court should apply abuse of discretion standard].) We view the evidence in the light most favorable to respondent, giving it the benefit of every reasonable inference and resolving all conflicts in its favor. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) "It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.)

Substantial Evidence Supports the Finding that Termination of Parental Rights Would Not Be Detrimental to the Twins under the Exception of Section 366.26, Subdivision (c)(1)(A)

Appellant had the burden of proving that this exception applies. (In re Derek W., supra, 73 Cal.App.4th at p. 826; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.) Substantial evidence supports the juvenile court's finding that appellant had failed to carry her burden of proof as to the exception's first prong: that she had "maintained regular visitation and contact" with the twins. (§ 366.26, subd. (c)(1)(A).) On May 31, 2007, approximately six months before the section 366.26 hearing, appellant's visitation with the twins was suspended because of its detrimental impact on C. M.2 After being with his mother, C. M.2 would become emotionally distressed and physically aggressive. The day after one visit, he injured a teacher by throwing a soccer ball at her face. Since the suspension of visitation, appellant had not seen the twins.

Substantial evidence also supports the juvenile court's finding that appellant had failed to carry her burden of proof as to the exception's second prong: that the twins "would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(A).) Carol Met calf, a licensed marriage and family therapist, opined that the twins' "visits with [appellant] are harmful to their emotional stability." Met calf declared: ". . . [C. M.2] has displayed disturbing behaviors including physical aggression and destruction of property following visits with his family. During visits he is largely uncontrollable by [appellant], does not listen to her and runs away from her." "There was a period of time recently when the [twins], who were to be picked up . . . for visits with their birth family, kicked and screamed, refusing to go, and had to be physically taken to the car for transportation to the visit." Met calf observed that C. M.2 is "unattached emotionally" to appellant. When appellant carries her, it appears "more as if [she] is toting a bag than a child." Met calf also noted that the twins "became (nearly immediately) more well-adjusted and calm when visits were suspended."

A court appointed special advocate's report prepared on July 23, 2007, supports Met calf's opinion that the twins' visits with appellant were harmful. The advocate stated: The twins "mental health caseworker, their Head Start daycare provider, the CFPs [confidential foster parents] and I have all reported that parental visits for both [of] them do them more harm than good. The absence of parental visits during the past two months has allowed both of these children to stabilize and prosper according to all the aforementioned sources. Any continued visits with their parents would be detrimental to the well-being of either [the twins]."

The evidence showed that the twins have developed a significant and positive emotional attachment to their foster parents, who want to adopt them. According to the section 366.26 report prepared by respondent, the foster parents have been caring for the twins for two years. They "have developed a close relationship and a strong bond with the [twins] and consider them their own children." Dr. Michael I. Beiley, a clinical psychologist, opined that the twins "are strongly attached to their foster parents." This bond "is a very . . . secure attachment, based on healthy feelings of safety, love, and affection." "Their relationship and emotion [sic] bond with [their foster parents] has progressively developed to the level that if they were permanently separated, there would be significant psychological damage [that would] lead to psychological disorders and impairments in their relationships as adults."

Accordingly, "[t]his is not the extraordinary case where an adoption should have been foreclosed by the exception provided in section 366.26, subdivision (c)(1)(A)." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1352.)

Substantial Evidence Supports the Finding that Termination of Parental Rights Would Not Be Detrimental to the Twins under the Exception of Section 366.26, Subdivision (c)(1)(E)

"The sibling relationship exception [§ 366.26, subd. (c)(1)(E)] contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a 'compelling reason' for concluding that the termination of parental rights would be 'detrimental' to the child due to 'substantial interference' with a sibling relationship. Furthermore, the language focuses exclusively on the benefits and burdens to the adoptive child, not the other siblings. The court is specifically directed to consider the best interests of the adoptive child, not the siblings, and must ultimately determine whether adoption would be detrimental to the adoptive child, not the siblings." (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.)

Based on a bonding evaluation prepared by Dr. Beiley, substantial evidence supports the trial court's finding that the termination of parental rights would not be detrimental to the twins because of the loss of sibling relationships. Dr. Beiley opined that the twins' bonds with their siblings were "very limited, tenuous, and relatively weak compared to other adult figures in their lives." Dr. Beiley noted that the twins had seen their siblings only "approximately 6 times in the last year." The infrequent visits had, "to a great extent, severed any bond which may have existed prior to the removal of the twins from their parents . . . ." "When [the twins] . . . leave their siblings, they leave without clinging, crying or protesting the separation. There are no signs of emotional distress or loss after they separate . . . ." "The twins rarely ask about their siblings . . . ." C. M.2 refers to his foster parents as the twins' "family."

Dr. Beiley's bonding evaluation is supported by the court appointed special advocate's report prepared on July 23, 2007. The report notes that the twins did not even recognize A. M. and M. M. when they saw them in a waiting room in June 2007.

Denial of Section 388 Petition

Pursuant to section 388, subdivision (a), a parent of a dependent child may petition to modify a prior order of the juvenile court "upon grounds of change of circumstance or new evidence." "At a hearing on a motion for change of placement, the burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interests of the child. [Citations.] [¶] After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability' [citation], and in fact, there is a rebut table presumption that continued foster care is in the best interests of the child. [Citation.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) " 'When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' [Citations.]" (Ibid.)

Standard of Review

The determination of the child's best interests is "committed to the sound discretion of the juvenile court, and the trial court's ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. [Citations.] . . . 'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' [Citation.]" (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)

The Juvenile Court Did Not Abuse Its Discretion

In her section 388 petition, appellant's grounds for requesting the return of the children were that she (1) has adequate housing for them, (2) has maintained her sobriety, (3) has transportation, and (4) continues to work. Appellant noted that the children had been split into two groups. She maintained that "[t]he requested change would allow the children to be raised together and to continue their relationship with each other . . . ." At the combined section 388 and section 366.26 hearing, appellant testified that she had rented a two-bedroom apartment, was working between 32 and 40 hours per week, had been successfully discharged from a 13-month parole, had twice completed a drug-treatment program, and had not used "any mind-altering substances" since her release on parole except on one occasion when she had consumed alcohol.

The juvenile court did not abuse its discretion. The same evidence warranting the termination of appellant's parental rights also warranted a finding that the return of the twins to her custody would not be in their best interests. Indeed, appellant's counsel told the juvenile court that, because appellant had not seen the twins for six months, she could not "make the best interest argument."

As to A. M. and M. M., the juvenile court concluded: "[T]he only stability any of these children have found on a long-term basis is with the foster parents . . . . [T]he healthy bonding that exists between the older children and their foster parents . . . is a much healthier, much stronger bond than the bond with the natural parents . . . ." The court's conclusion is supported by the following statements of a social worker: "[A.M. and M. M.] have remained in the same foster home since January 13, 2006. The foster parents are a very loving, affectionate . . . couple. [A. M. and M. M.] have developed a strong bond with their foster mother, Maria. [A.M.] stated to her therapist that this was the first time in her life that she feels 'safe.' . . . The girls have all of their physical and emotional needs being met at this home." Thus, the juvenile court did not exceed the bounds of reason in determining that a change of placement was not in the best interests of A. M. and M. M.

ICWA

Appellant contends that the juvenile court and respondent failed to comply with the inquiry and notice requirements of the ICWA. "Congress enacted the ICWA in 1978 to 'protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.' (25 U.S.C. § 1902.) It allows a tribe to intervene in state

court dependency proceedings (25 U.S.C. § 1911(c)), because the '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.' [Citation.]" (In re Louis S. (2004) 117 Cal.App.4th 622, 628.) Both the juvenile court and the "party seeking a foster-care placement, . . . termination of parental rights, or adoption have an affirmative and continuing duty to inquire whether a child is or may be an Indian child . . . ." (Cal. Rules of Court, rule 5.481(a).)

"The notice requirements of the ICWA are intended to ensure the tribe will have the opportunity to assert its rights to intervene in juvenile dependency proceedings irrespective of the position of the parents or state agency. [Citation.] The ICWA provides that when the court knows or has reason to know an Indian child is involved, the agency must notify the child's tribe, or if the tribe is unknown, the BIA [Bureau of Indian Affairs], as agent for the Secretary of the Interior. (25 U.S.C. § 1912(a) . . . .)" (In re X.V. (2005) 132 Cal.App.4th 794, 802.)

For purposes of the ICWA, " 'Indian child' means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C.A. § 1903(4).) "The Indian tribe determines whether the child is an Indian child. [Citation.] 'A tribe's determination that the child is or is not a member of or eligible for membership in the tribe is conclusive.' [Citation.]" (Alicia B. v. Superior Court (2004)116 Cal.App.4th 856, 865.)

Facts

According to a jurisdiction report filed on September 26, 2005, appellant "stated that she was half Cherokee through her mother's family, though she did not know which Cherokee tribe." Respondent mailed form JV-135 (Notice of Involuntary Child Custody Proceedings for an Indian Child) to the BIA. In a status review report filed on March 13, 2006, respondent said it had received a notice from the BIA "stating that each of the three Cherokee tribes must be contacted individually." Pursuant to Evidence Code sections 459 and 452, subdivision (h), we take judicial notice that there are three federally recognized Cherokee tribes. Two tribes are in Oklahoma: the Cherokee Nation and the United Keetoowah Band of Cherokee Indians in Oklahoma (hereafter Keetoowah Band). The third tribe is the Eastern Band of Cherokee Indians of North Carolina.

Effective January 1, 2008, form JV-135 was replaced by form ICWA-030 (Notice of Child Custody Proceeding for Indian Child). (See rule 5.481(b)(1).)

A list of federally recognized tribal entities is published at 72 Fed.Reg. 13648-13652 (March 22, 2007). The list is available at the following website: http://www.nps.gov/history/nagpra/MANDATES/BIA_List_2007.pdf. See also In re Marinna J. (2001) 90 Cal.App.4th 731, 737, which designates the “three Cherokee entities.” The ICWA requires notice only to federally recognized Indian tribes. (In re A.C. (2007) 155 Cal.App.4th 282, 287.)

The record includes three letters from the Cherokee Nation and the Keetoowah Band stating that, based on the information provided by respondent, none of the children qualify as an Indian child under the ICWA. The letters were written in March, April, and June 2006. Nothing in the record indicates that form JV-135, or any other written notice, was sent to the tribes. Thus, we do not know what information the tribes received from respondent.

After the filing of appellant's opening brief, proceedings occurred in the juvenile court concerning compliance with the ICWA. We granted respondent's request to augment the record to include documents relating to these proceedings. Among the documents are the following:

(1) A status review report filed on June 2, 2008. The report states that Barbara Bock, a social worker, spoke to appellant "to investigate ICWA status." Appellant said that her daughter, A. H., had received a "Cherokee Nation tribal identification card." Appellant told Bock that she thought her mother, Rebecca R., had provided assistance in obtaining the card. Bock subsequently spoke to Rebecca R. She said that her father, Jack S. (the children's maternal great-grandfather), "claimed Oklahoma Cherokee Indian status." Rebecca R. provided Bock with information about Jack S. She denied helping A. H. to obtain a Cherokee Nation tribal identification card. Appellant later told Bock that she would send her a copy of the card, but Bock had not received it before the completion of the status review report on May 21, 2008.

(2) Form ICWA-030 (see fn.5, ante) filed on June 17, 2008. The form gives notice to the Cherokee Nation that the children may be eligible for membership in that tribe and provides information about their Indian ancestry. Jack S.'s tribe is identified as "Cherokee; Oklahoma." Attached to the form is a certificate of mailing showing that, on May 2, 2008, Bock mailed the form to the Cherokee Nation by registered or certified mail, return receipt requested.

(3) A return receipt showing that the Cherokee Nation received form ICWA-030 on May 8, 2008.

(4) A letter from the Cherokee Nation, dated May 22, 2008, stating that none of the children qualify as an Indian child under the ICWA.

(5) Juvenile court minutes showing that on June 12, 2008, the court found that the "ICWA does not apply."

Respondent Failed to Give Required Notice to the Keetoowah Band

Respondent was required to give written notice to all federally recognized tribes of which the children may be members or eligible for membership. (In re J.T. (2007) 154 Cal.App.4th 986, 992-994.) The notice must "be sent by registered or certified mail with return receipt requested" to the "tribal chairperson, unless the tribe has designated another agent for service." (§ 224.2, subds. (a)(1) & (a)(2).) "The notice must include the name, birthdate, and birthplace of the Indian child; his or her tribal affiliation; a copy of the dependency petition; the petitioner's name; a statement of the right to the tribe to intervene in the proceeding; and information about the Indian child's biological mother, biological father, maternal and paternal grandparents and great-grandparents or Indian custodians, including maiden, married and former names or aliases; birthdates; places of birth and death; current and former addresses; tribal enrollment numbers, and/or other identifying information. [Citation.] The burden is on the Agency to obtain all possible information about the minor's potential Indian background and provide that information to the relevant tribe or, if the tribe is unknown, to the BIA. [Citation.]" (In re Louis S. (2004) 117 Cal.App.4th 622, 630.)

There is no evidence that, prior to the termination of appellant's parental rights, respondent gave the requisite written notice to the three Cherokee tribes. Indeed, the record does not include any written notice whatsoever. Nevertheless, in 2006 the Cherokee Nation and the Keetoowah Band wrote letters stating that, based on the information provided by respondent, none of the children qualified as an Indian child. Because of the deficient notice, these letters did not satisfy the requirements of the ICWA. (See In re D.T. (2003) 113 Cal.App.4th 1449, 1455 [failure to comply with notice requirements deprived tribes "of any meaningful opportunity to determine whether the minors were Indian children"].)

On the other hand, the augmented record shows that in 2008 respondent cured the notice deficiency as to the Cherokee Nation by sending the requisite notice to that tribe on form ICWA-030. (See Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 866-867 [augmented record showed proper notice sent to tribes].) In her reply brief, appellant "has not shown that any relevant known information was excluded on the form[] or that the notice[] [was] defective." (Id., at p. 867.) Appellant faults respondent for not providing information about A. H. and the "Cherokee Nation tribal identification card" that she had allegedly obtained. But under "Other relevant information" on page seven of the form, respondent stated that A. H., a half-sibling, is a member of the California "Cherokee Clan" of the "United People of Cherokee Nation." The form provides April H.'s date and place of birth, current address, and her California tribal enrollment number. This information was sufficient to apprise the Cherokee Nation of any claim to tribal membership by A. H.

Appellant also faults respondent for not directly contacting A. H. to inquire about the identification card. In view of the information provided on form ICWA-030 concerning A. H. and the card, no further inquiry was necessary.

The problem is that respondent never provided the requisite notice to the Freetown Band. The children's alleged Cherokee heritage was derived solely from their maternal great-grandfather, Jack S. Appellant told respondent that she did not know the name of Jack S.'s tribe. Rebeka R., appellant's mother, said that Jack S. "claimed Oklahoma Cherokee Indian status." Her statement was sufficient to rule out the Eastern Band of Cherokee Indians of North Carolina. But there are two federally recognized tribes in Oklahoma: the Cherokee Nation and the Freetown Band. Since neither Rebeka R. nor appellant identified Jack S.'s tribe, respondent was required to give notice to both Oklahoma Cherokee tribes on form ICWA-030. (See In re J.T., supra, 154 Cal.App.4th at pp. 992-994.)

We assume that respondent gave notice only to the Cherokee Nation because appellant said that A. H. had obtained a Cherokee Nation Tribal Identification Card. But A. H.'s possession of such a card would not preclude the children's membership or eligibility for membership in the Keetoowah Band.

Moreover, it is doubtful that A. H. obtained a legitimate Cherokee Nation card. In April and June 2006, the Cherokee Nation wrote letters to respondent stating that A. H. "cannot be traced in [its] tribal records" through appellant's mother's family. Although appellant said that Rebeka R. had helped April H. obtain the card, Rebeka R. denied having provided any assistance. Appellant told Bock that she would mail her a copy of the card, but Bock did not receive it. Finally, the information provided by respondent on form ICWA-030 indicates that A. H.'s card was not issued by the Cherokee Nation. The information shows A. H. to be a member of the California "Cherokee Clan" of the "United People of Cherokee Nation." There is no federally recognized tribe with this name. Accordingly, respondent's failure to give the requisite written notice to the Freetown Band was prejudicial error.

The only order subject to reversal for failure to give the requisite ICWA notice is an order terminating parental rights. (In re Brooke C. (2005) 127 Cal.App.4th 377, 385.)

Disposition

The order denying the section 388 petition is affirmed. The judgment terminating parental rights to C. M.1 and C. M2. is conditionally reversed. As to all of the children (A. M., M. M., C. M.1, and C. M.2), the matter is remanded to the juvenile court with directions to order respondent to give the requisite ICWA written notice to the United Freetown Band of Cherokee Indians in Oklahoma. (See In re Brooke C., supra, 127 Cal.App.4th at p. 385.) If said tribal entity determines that the children are Indian children, "the juvenile court shall conduct further proceedings applying the appropriate provisions of the ICWA, the Welfare and Institutions Code, and the California Rules of Court." (In re Justin S. (2007) 150 Cal.App.4th 1426, 1438.) On the other hand, if said tribal entity determines that C. M.1 and C. M.2 are not Indian children, or if no timely response is received, the juvenile court shall immediately reinstate the judgment terminating parental rights. (Ibid.; In re Francisco W. (2006) 139 Cal.App.4th 695, 704-711.)

We concur: COFFEE, J., PERREN, J.


Summaries of

In re A.M.

California Court of Appeals, Second District, Sixth Division
Sep 24, 2008
2d Juv. No. B204976 (Cal. Ct. App. Sep. 24, 2008)
Case details for

In re A.M.

Case Details

Full title:In re A. M., et al., Persons Coming Under the Juvenile Court Law. SANTA…

Court:California Court of Appeals, Second District, Sixth Division

Date published: Sep 24, 2008

Citations

2d Juv. No. B204976 (Cal. Ct. App. Sep. 24, 2008)