Opinion
H025126.
10-1-2003
In re ASHLEY B., et al., Persons Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDRENS SERVICES, Plaintiff and Respondent, v. SUSAN P., Defendant and Appellant.
Ashley B. and her twin siblings, Kevin and Sara, were made dependents of the court under Welfare and Institutions Code section 300 after their mother, appellant Susan P., severely injured the twins. On appeal, Susan contends that the juvenile court failed to comply with the provisions of the Indian Child Welfare Act (25 U.S.C. §1912). She further contends that the court erred in denying her reunification services under section 361.5, subdivision (b)(6) and in denying her visitation with the children. Respondent, the Department of Family and Childrens Services (DFCS), seeks dismissal of the appeal as moot in light of recent procedural events. We will affirm the dispositional order.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
Background
Ashley was six years old and the twins were one year old when they were taken into protective custody. Susan and the childrens father, Michael, had separated, and Michael had petitioned the family court for a restraining order against Susan. In his petition he had alleged that Susan had a substance abuse problem and that she had engaged in dangerous and violent behavior. After family mediation, physical custody of the children was returned to Susan, with Michael receiving visitation on alternate weekends.
About six weeks later, Susan reported to the police that she suspected Michael of having molested the twins the week before. According to her report, after the childrens return from a visit she noticed bruising around Kevins anus and scrotum and his penis was raw. She told the officer that she knew there had been penetration because Kevins face had "blanket abrasions" from an attempt to silence the child. When asked why she did not report her suspicions earlier, Susan answered, "`I dont know, I really dont know." Susan later said her neighbor had told her she should report the injuries "so that she wouldnt get into trouble" as a "partner in crime."
A medical examination of the three children confirmed recent penetrating anal trauma in both twins, but neither appeared to have suffered any genital injuries, and Ashley displayed no signs of injury at all. A visit by DFCS to Susans home showed a very dirty apartment with a "bad smell." The kitchen sink and countertop were overflowing with dirty dishes and food, and piles of dirty clothes covered the rest of the living area. Susan had admitted that she left the twins alone when she took Ashley to school.
All three children were taken into protective custody. In the social workers initial report she stated that Susan had told her that Michael might be of Cherokee heritage, but she had no American Indian heritage. At the detention hearing the court directed DFCS to send the required notices under the Indian Child Welfare Act (ICWA or the Act).
The initial section 300 petitions that were filed on behalf of the children alleged that both Susan and Michael had a criminal history, that Susan had tested positive for amphetamines during her pregnancy with the twins and had tested positive for alcohol when she delivered them; that she had at least four prior referrals to Child Protective Services and one voluntary family maintenance plan to which she had failed to adhere; that Ashley had had multiple absences from school; that Susans home was dirty and had a bad odor; and that Susans allegation of sexual abuse by Michael was under investigation. (§ 300, subds. (b)(1)-(b)(7).)
Susan had a prior conviction for writing checks with insufficient funds, and for petty theft two years later. Michael had a prior conviction of driving without a license. He also had once been arrested for possession of a controlled substance and being under the influence, but he was sent to and completed a drug diversion program.
In preparation for the jurisdictional hearing, DFCS filed a report summarizing the familys child welfare history and attaching numerous documents, including letters from Cherokee tribes regarding the fathers Cherokee heritage. By this time the investigating police officer was considering Susan to be his primary suspect in the twins injuries. Michael and his parents, with whom he lived, were no longer suspects.
At the initial jurisdictional hearing, the court temporarily placed the children with Michael and his parents, subject to random drug testing of Michael and weekly home monitoring. The hearing was continued multiple times. In August 2002 the contested hearing finally took place. By this time a third amended petition had been filed. This pleading alleged that the children came within the provisions of section 300, based on (1) a substantial risk of serious, nonaccidental physical harm within the meaning of subdivisions (a)(2) through (a)(5); (2) failure to protect, supervise, and care for the children, within the meaning of subdivisions (b)(1) through (b)(12); and (3) sexual abuse, within the meaning of subdivisions (d)(4) through (d)(8). Susan had been arrested in June on two counts of corporal punishment or injury of a child and two counts of forcible sexual penetration (Pen. Code, §§ 273d, subd. (a); 289, subd. (a)(1)).
The social worker also reported on her investigation of the childrens possible Indian heritage. Based on information from the paternal grandparents, she had sent forms SOC 318 and SOC 319 to the Bureau of Indian Affairs. The social worker attached the receipts from the Bureau of Indian Affairs and from three federally recognized Cherokee tribes. She also attached the three reply letters she had received. The Cherokee Nation had informed her that none of the children or their parents could be traced in its tribal records based on the information provided. The United Keetoowah Band of Cherokee Indians in Oklahoma likewise had found no evidence of the childrens ancestry in their records, and the Eastern Band of Cherokee Indians did not have any of the children listed in its tribal registry.
Following trial on the third amended petition, the juvenile court determined that the three children came within the provisions of section 300, subdivisions (a), (b), and (d). On October 18, 2002, at the inception of the dispositional hearing, the court further found that Susan had subjected Kevin and Sara to acts of cruelty, within the meaning of section 300, subdivision (i). The court noted that Susan was incarcerated, and it found that it would be detrimental to the children to provide reunification services to her. The children were to remain in the home of their paternal grandparents. Michael was to receive reunification services and was allowed to remain in his parents home as long as he continued to test negative for drugs. Susan was not to receive visitation while incarcerated, but when released she would be allowed supervised visitation for two hours once a week.
Discussion
1. Cognizability of the Issues on Appeal
During the pendency of this appeal, DFCS moved for dismissal, arguing that subsequent events have rendered the appeal moot. In April 2003 Susan pleaded guilty to willful infliction of cruel or inhuman corporal punishment with great bodily injury (Pen. Code, §§ 273d, subd. (a); 12022.7). Shortly thereafter the juvenile court granted custody to Michael, with supervised visitation to Susan, and terminated its jurisdiction over the children.
Susan opposes dismissal on the ground that the outcome of the proceedings could affect her chances of obtaining reunification services if this matter returns to juvenile court or if a dependency occurs regarding any other children she might later have. She also argues that both the ICWA issue and the denial of reunification services should be addressed because they are of continuing public interest and are likely to recur.
"[W]here a judgment dismissing the dependency action is challenged on appeal the case `is not moot if the purported error is of such magnitude as to infect the outcome of [subsequent proceedings] or where the alleged defect undermines the juvenile courts initial jurisdictional finding. Consequently the question of mootness must be decided on a case-by-case basis." (In re Joshua C. (1994) 24 Cal.App.4th 1544, 1547, quoting In re Kristin B. (1986) 187 Cal.App.3d 596, 605.) The Joshua C. court also addressed DFCSs suggestion that Susan can litigate custody and visitation issues in family court: "Because the jurisdictional issues were actually litigated in the dependency proceeding, appellant is collaterally estopped from relitigating those issues in the family law court. [Citations.] Thus, while appellant may, upon a showing of changed circumstances, secure modification of the custody and visitation orders in the family law court, such proceedings do not provide a forum for challenging errors made in the jurisdictional hearings in juvenile court." (Id. at p. 1548.) Consequently, "[t]he fact that the dependency action has been dismissed should not preclude review of a significant basis for the assertion of jurisdiction where exercise of that jurisdiction has resulted in orders which continue to adversely affect appellant." (Ibid.)
Although we believe the ICWA issue is moot in light of the dismissal of jurisdiction, we will address it out of an abundance of caution. With recent procedural events in mind we will also discuss the bypass of reunification services, as this ruling may affect Susans opportunities for custody or visitation in future proceedings. We need not, however, address the courts denial of visitation during the dependency period, as that issue is clearly moot.
2. The Indian Child Welfare Act
Susan first contends that the juvenile court failed to ensure compliance with the ICWA. She specifically complains that copies of the notices sent to the Bureau of Indian Affairs were not made part of the record submitted to the juvenile court. Consequently, Susan argues, the jurisdictional findings and dispositional order were void. We disagree.
Congress passed the ICWA in order to cure "abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes." (Mississippi Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32.) A major purpose of the ICWA is to protect "Indian children who are members of or are eligible for membership in an Indian tribe." (25 U.S.C. § 1901(3).)
The ICWA applies to juvenile dependency proceedings when an Indian child is the subject of those proceedings. (See e.g., In re Pedro N. (1995) 35 Cal.App.4th 183, 186-188.) As defined by the ICWA, an Indian child is "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.§ 1903(4).) The Department must provide notice to an identified tribe or the Bureau of Indian Affairs "whenever there is reason to believe the child may be an Indian child, and for every hearing thereafter unless and until it is determined that the child is not an Indian child." (Cal. Rules of Court, rule 1439(f)(5); 25 U.S.C. § 1912(a).) A failure to comply with the notice requirements of the ICWA is prejudicial error unless the tribe has participated in the proceedings or indicated that it has no interest in them. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422; accord, In re Samuel P. (2002) 99 Cal.App.4th. 1259, 1265.)
The California Rules of Court do not expressly require presentation of the notices to the juvenile court. In a case in which no notice was sent, In re Marinna J. (2001) 90 Cal.App.4th 731, the court suggested that child welfare agencies adopt such a practice routinely, in order to provide a proper record for the juvenile and appellate courts. (Id. at p. 738, fn. 4.) We do not read this case to support the idea that it is reversible error to fail to perform an act that is not mandated by the Indian Child Welfare Act. Because the issue is not one of constitutional dimension, the question is whether there is a reasonable probability the outcome would have differed in the absence of the procedural irregularity. (Cal. Const., art. VI, § 13; cf. People v. Watson (1956) 46 Cal.2d 818, 836; see also In re Antoinette S. (2002) 104 Cal.App.4th 1401,1413 [under either Chapman v. California (1967) 386 U.S. 18, 87 or People v. Watson, supra, 46 Cal.2d 818, notice violation was harmless].)
We can find no prejudice here. The record is clear that notice was actually sent to the Cherokee Nation, the Cherokee Center for Family Services, and the United Keetoowah Band on May 3, 2002, before the jurisdictional hearing. The social worker also informed the juvenile court that she had sent the requisite forms to the Bureau of Indian Affairs, and she attached a copy of the certified receipt by the Bureau as well as letters from the three Cherokee tribes. In those letters all three informed the social worker that they could find no evidence that the children were descended from anyone on their rolls, and they stated their intent not to intervene in the proceedings. Thus, it is apparent that Susans children were deemed not to be Indian children under the Act. The determination of tribal membership or eligibility for membership "is made exclusively by the tribe," whose findings on that issue are conclusive. (Cal. Rules of Court, rule 1439(g)(1).)
This court granted DFCSs motion for judicial notice of forms SOC 318, which were not in the juvenile court record.
Finally, we note that the alleged Indian heritage was on Michaels side. In light of the fact that the children were placed with the paternal grandparents, it is not reasonably probable that any different result would have occurred. Furthermore, it was Michaels family that supplied the information used by the social worker in her request for confirmation of the childrens Indian status. It is reasonable to infer that they provided all they knew about their ancestors tribal affiliation. Indeed, the social worker was able to list the names of the paternal great-grandparents, their dates of birth, and their birthplaces, including the city of the paternal great-grandfather and his own fathers name. No tribe requested more information or requested more time to pursue its investigation. We thus conclude that the purpose of the statutory notice provisions has been served by substantial compliance with the Act, and DFCSs failure to provide copies of the notices to the juvenile court was harmless error. The jurisdictional findings and ensuing dispositional order were not void.
3. Bypass of Reunification Services
Susan next contends that there was insufficient evidence to support the denial of reunification services pursuant to section 361.5, subdivision (b)(6). To deny reunification services under this provision the juvenile court must find, by clear and convincing evidence, that the child had suffered "severe sexual abuse" or "severe physical harm," and that it would not benefit the child to pursue reunification services with the offending parent. Our task on appeal, however, is to determine whether there is any reasonable, credible evidence of solid value such that a reasonable trier of fact could make the challenged findings. (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.) "The `clear and convincing standard specified in section 361.5, subdivision (b), is for the edification and guidance of the trial court and not a standard for appellate review. [Citations.] `"The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal." . . . . Thus, on appeal from a judgment required to be based upon clear and convincing evidence, `the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondents evidence, however slight, and disregarding the appellants evidence, however strong. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 365, p. 415.)" (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.)
Section 361.5 explicitly directs the juvenile court to order services for the parents whenever a child is removed from parental custody. The statute, however, also provides limited exceptions. Section 361.5, subdivision (b)(6), states that a parent is not entitled to reunification services if the court finds that the child has been adjudicated a dependent under section 300 as a result of severe physical harm to the child or the childs sibling by the parent. The court must make a finding that reunification services with the offending parent would not benefit the child. And subdivision (i) specifically requires the court not only to read into the record the basis for its finding of severe sexual abuse or physical harm, but also to specify the factual findings on which it determined that reunification services to the parent would not be beneficial to the child. (§ 361.5, subd. (i).)
The juvenile court in this case found clear and convincing evidence that it would be detrimental to the children to offer or provide Susan reunification services. It expressly stated the basis of this determination, including the ages of the children and the "nature of the crimes alleged." It further found that Sara and Kevin had suffered severe sexual abuse or severe physical harm within the meaning of section 361.5, subdivision (b)(6). The court did not specifically state that the denial of reunification services was based on Susans act of inflicting anal trauma on the twins.
Susan contends that the court was not permitted to deny reunification services without a prior jurisdictional finding of severe sexual abuse or severe physical harm. Here, she points out, there was no jurisdictional finding of "severe physical abuse" within the meaning of section 300, subdivision (e), and an act of cruelty within the meaning of section 300, subdivision (i) is not necessarily the same as severe physical harm. In Susans view, the injuries did not qualify as severe sexual abuse because there was no evidence that they were inflicted for "sexual gratification" within the meaning of section 361.5, subdivision (b)(6); nor did they constitute severe physical harm, she maintains, because there was insufficient evidence of "prolonged pain or lasting injuries." Finally, Susan complains that the court failed to read sufficient findings into the record.
We agree with DFCS that Susan has waived any error in the lack of specificity of the courts findings. "It is unfair to the trial court and the adverse party to give appellate consideration to an alleged procedural defect which could have been presented to, and may well have been cured by, the trial court." (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 810-811.) If Susan wished a more explicit statement of the juvenile courts reasons on the record, as section 361.5 contemplates, she could and should have raised the point to the court. Her failure to do so waived her present claim of error.
In any event, the existence of severe physical harm is beyond dispute. We take judicial notice of Susans subsequent guilty plea to a violation of Penal Code section 273d, subdivision (a), under which she admitted she "willfully inflict[ed] . . . cruel or inhuman corporal punishment or an injury resulting in a traumatic condition." She further admitted an enhancement allegation of great bodily injury, within the meaning of Penal Code section 12022.7, subdivision (d). Thus, whether or not severe sexual abuse occurred, there was abundant evidence of severe physical harm. Any error in failing to state findings under section 361.5 expressly on the record is harmless.
For the same reason we reject Susans contention that "there was insufficient evidence that the injuries to the twins were serious." The injuries were not only serious, they were, by Susans admission, severe. Furthermore, it is enough to meet the statutory conditions for bypass under section 361.5, subdivision (b)(6) that the parent inflict severe physical harm on a child or a sibling.
Whether any of the three children would benefit from services was a determination for the juvenile court, and it was entitled to conclude on the facts before it that the childrens attachment to Susan was not significant enough to justify reunification services. The court was not required to order reunification services absent a finding that such services would not be in the best interests of the children. On the contrary, when severe physical harm has occurred within the meaning of section 361.5, subdivision (b)(6), the court may not order reunification services unless it finds, "by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c).) The court did not make that finding in this case; implicitly it found insufficient evidence to meet the statutory exception. No error is shown.
Disposition
The dispositional order is affirmed.
WE CONCUR: Wunderlich, J., Mihara, J.