Opinion
F049751
12-14-2006
In re CATHERINE H. et al., Persons Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. AARON H., Defendant and Appellant.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Michael H. Krausnick, County Counsel, Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
Procedural History
This is an appeal from the jurisdictional and dispositional orders in a juvenile dependency proceeding, made appealable by Welfare and Institutions Code section 395. The appeal was filed by appellant Aaron H., the presumed biological father of four children, Catherine, Shyanne, Raelyn, and Aaron, Jr., challenging the juvenile courts finding that the children are minors within the meaning of section 300, subdivisions (b) and (d), and the order removing the children from the home Aaron shares with the childrens mother, Mari E. The children were ultimately placed in foster care.
All further references are to the Welfare and Institutions Code unless otherwise noted.
The petition leading to removal was filed by respondent, Stanislaus County Community Services Agency (Agency) on December 6, 2005. A first amended petition was filed on December 19, 2005, adding Calvin S., Maris ex-husband, as the legal father of Catherine and Shyanne, who were born during the marriage. The petition alleges that the parents failed to supervise or protect the children and failed to provide the children with adequate food, clothing, shelter, or medical treatment. (§ 300, subd. (b).) The petition also alleges that Aaron sexually abused two of the children (Shyanne and Shyannes half-sibling Erin), and Mari and/or Calvin failed to protect the children from his sexual abuse. (§ 300, subd. (d).)
The detention hearing was held on December 7, 2005. A combined jurisdictional and dispositional hearing was held on February 2, 2006. The juvenile court found that proper notice had been given under the Indian Child Welfare Act (ICWA) (25 U.S.C. §§ 1901, et seq.). It sustained the allegations of the petition and found that each of the children are persons within the meaning of section 300, subdivisions (b) and (d). The court then ordered that the children be removed from the home, finding by clear and convincing evidence that there would be a substantial danger to them if they were to remain in their parents home.
Aaron denies the abuse and contends the juvenile courts orders must be reversed because the court failed to comply with the notice provisions of the ICWA and that there is insufficient evidence to support both the jurisdictional and dispositional orders.
Factual Summary
In 1997, Mari married Calvin. The marriage ended in May 2002. There were apparently four children born during the marriage, a boy Thomas, and three girls, Erin (DOB 7/97), Catherine (DOB 1/01), and Shyanne (DOB 11/01). At the time Shyanne and Catherine were born, Mari was living with Aaron. Aaron acknowledged paternity of both girls and is named on the birth certificate as the father. Raelyn and Aaron, Jr., were born in July 2003.
In June 2001, Erin, who was living with Aaron and Mari, reported that Aaron had hurt her. She said he punched her in the eye and stomach and touched her vaginal area. Erins eye was bruised. She was observed playing with her Barbie doll in a sexual manner. A forensic examination revealed only redness in the vaginal area but no signs of sexual abuse. Mari claimed nothing had happened, that Aaron never disciplines Erin, and that the injury could have happened when Erin fell and hit the cement; however, Erins bruises were not consistent with falling on cement. Mari accused Calvin of trying to cause problems. Although the allegations of sexual abuse were not substantiated, the allegations of physical abuse were verified. Erin was removed from the home and custody was granted to Calvin. Erin had no contact with Mari or Aaron after she moved in with Calvin. Thomas also lives with Calvin.
Beginning in March 2002, there were a series of referrals made to the agency concerning the remaining children. Aaron, Jr., had respiratory problems and Mari failed to follow through with medical appointments—allowing him to be exposed to cigarette smoke. In November 2002, Aaron was convicted of assaulting Mari. In November and December 2003, the family was homeless and lived in a shelter and in a motel. Aaron was arrested on an outstanding warrant in December 2003 because he refused to attend ordered domestic violence prevention classes. The agency provided financial and other services to the family for several months. A public health nurse saw the children, observing multiple problems in their care and development. The agency tried to assist in securing medical care for the children and finding help with housing. There was little cooperation from either Mari or Aaron during this period and little progress was made.
In March 2004, the agency received a referral that Catherine had reported Aaron was touching her, but the agency was unable to substantiate the allegation. When Aaron was released from jail, he returned home and Mari and he fought. Police were called. A restraining order was issued, but ultimately Mari ignored it. In April 2004, Mari was living with a friend across from Aarons mothers house. Aaron and Mari were not upfront about their living arrangements or the frequency of their contact. During this same period, a public health nurse found all four children to be developmentally delayed and made appropriate referrals. Aaron, Jr., was referred to the Shriners because one leg was shorter than the other. Mari and Aaron did not follow-up on any of these appointments. In May 2004, Erin repeated to a counselor the allegation that Aaron abused her and said she was worried that Aaron would harm her baby siblings. Also in May, the family was evicted from their apartment for non-payment of rent. The children were homeless once again. Mari and Aaron reunited and terminated Family Maintenance Services.
In May 2005, the agency received a referral that the children were locked in a bedroom and never allowed outside their rooms except to eat and that the younger children were always in dirty diapers. When the social worker visited the home at 12:30 p.m., the parents were sleeping. The diapers were dirty. The house was a mess and the children had not been fed. Mari and Aaron refused Family Maintenance Services, saying they were doing fine. In November 2005, Shyanne reported that Aaron had hurt her in her vaginal area and that Mari was making it better by applying medicine. Mari said Shyanne had a scratch in the vaginal area but that it disappeared when she put diaper rash cream on it. Mari also said that Shyanne "fell on something." The forensic exam showed no evidence of sexual abuse, but did show a discharge which the doctor attributed to poor hygiene. The social worker responding to the report found the house to be dirty and cluttered, with old food on counters, cockroaches crawling on the walls, and ash trays full of butts within the childrens reach. The children were dirty but had no visible bruises or marks. When offered voluntary services, Mari declined, saying she did not want to go through "all that again." In December 2005, Calvin reported to social workers that Mari had called him and told him that Aaron was violent toward her and she feared for her safety.
Also, in December 2005, all four children were behind on their immunizations. All four continue to be developmentally delayed in some manner. Raelyn is developmentally on target but would benefit from speech therapy. Neither parent has followed through on the referral to Shriners. Mari has vacillated from reporting that she was tired of the violence between her and Aaron and claiming that their relationship was fine and that she was manipulated by friends to seek the restraining order and separate from Aaron.
Discussion
I. ICWA
Aaron contends that the agency and the juvenile court failed to follow the requirements of the ICWA. We once again are forced to agree that the notice requirements of the ICWA were not met and must reverse for further proceedings to assure compliance with the federal statute.
In adopting the ICWA, Congress established minimum federal substantive and procedural standards to protect the interest of an Indian child and promote the stability and security of Indian tribes and families. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) "Notice is a key component of the congressional goal ...." (Ibid.) The ICWA expressly provides that "[i]n any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." (25 U.S.C. § 1912(a).) "[O]ne of the primary purposes of giving notice to the tribe is to enable the tribe to determine whether the child involved in the proceedings is an Indian child." (In re Desiree F. (2000) 83 Cal.App.4th 460, 470.) This rule is embodied in the California Rules of Court, rule 1439(f), which provides that the tribe must be notified of a pending juvenile petition and that proof of notice, including copies of the notices sent and all return receipts and responses received, must be filed with the juvenile court. (Cal. Rules of Court, rule 1439(f);In re. H. A. (2002) 103 Cal.App.4th 1206, 1213-1216.) "The determination of a childs Indian status is up to the tribe; therefore, the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement. [Citations.]." (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.) Without notice of the proceedings, the important rights granted by the ICWA would become meaningless. (In re Kahlen W., supra, 233 Cal.App.3d at p. 1421.) We have warned on a number of occasions that failure to comply with the spirit and letter of the act is likely to result in reversal. (In re H. A., supra, 103 Cal.App.4th at pp. 1214-1215.)
Aaron contends that the notice is insufficient because it left out information, some of which was known to the agency or easily obtained by the agency, including the parents birthplace, the birthdate and birthplace of Aarons mother, her former address, any information about Aarons father, and any information about whether Aarons family had attended an Indian school, received medical treatment at an Indian health clinic, or lived on Indian land. (In re Gerardo A. (2004) 119 Cal.App.4th 988, 991 [no compliance with ICWA notice requirements if department does not share all identifying Indian heritage information it possesses].)
At the detention hearing on December 7, 2005, the court inquired whether either parent had Indian heritage. Mari said no and Aaron said he was "not sure," but then said there was a possibility he had Cherokee ancestry. There was no further inquiry on the record concerning the issue of Indian ancestry. After the hearing, the agency sent Judicial Council Form JV-135 (Notice of Involuntary Child Custody Proceedings for an Indian Child) to the Bureau of Indian Affairs (BIA), the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee and the Cherokee Nation of Oklahoma, which gave notice of the proceedings and of the next hearing date, January 3, 2006. The notice contained the name, birthdate, and current address of Mari and Aaron, the name of the paternal grandmother, and the date and place of her death. It also included the name of the paternal great-grandfather.
Later in the detention hearing, the court did ask both parents for information about possible relatives that might be able to care for the children, but there was no further inquiry about their Indian heritage.
The amended petition brought Calvin into the proceedings as the legal father of Shyanne and Catherine because he was legally married to Mari at the time of their births. Although Aaron has acknowledged paternity and was identified on all the childrens birth certificates as the father, paternity has not yet been established. DNA tests were ordered, but results are not in the appellate record. The juvenile court asked Calvin about his Indian heritage. Calvin said he had researched his family. His great-grandfather was full-blooded Cherokee and there also might be some Blackfoot in the family. Given the new information, the agency prepared a new JV-135 and sent it to the original recipients and additionally to the Crow Tribe of Montana and the Blackfeet Tribe. This time, in addition to the information about Maris and Aarons families, information was provided about Calvins family. Calvin was identified in the form as the "Legal Father of Shyanne & Catherine." The notice contained the name, address, and place of birth of Calvin; the name, date, and place of birth of Calvins father; the name and place of birth of Calvins grandfather; the name, date, and place of birth of Calvins mother; and the name and place of birth of Calvins grandmother. There is nothing in the record to establish that the childrens birth certificates were attached to these second notices. The agency filed return receipts showing that the tribes and BIA received the notices between December 22 and December 28, 2005. There is no response from any of the noticed tribes or the BIA in the record.
Although it appears fairly certain that Aaron will be found to be the childrens biological father, that fact has yet to be finally determined. Until it is, Calvin is a presumed father. (See Fam. Code, § 7611, subd. (a) [a man is presumed to be biological father of child if he and childs mother are or have been married to each other and child is born during marriage]; Dawn D. v. Superior Court (1998) 17 Cal.4th 932, 935 [when husband and wife are not cohabiting at time of conception, presumption of paternity is rebuttable].)
There is no question that notice was sent and that the agency filed proof that the notices were received by the addressees. The problem is the incompleteness of the information provided to the tribes. "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." (In re X. V. (2005) 132 Cal.App.4th 794, 802.) The notice requirements are very specific.
"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 petitioners name; a statement of the right to the tribe to intervene in the proceeding; and information about the Indian childs 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. [Citations.] The burden is on the Agency to obtain all possible information about the minors 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.)
An effort must be made to provide the tribes with this information. (In re Jennifer A. (2002) 103 Cal.App.4th 692, 705.) "Notice is meaningless if no information is provided to assist the tribes and the BIA in making this determination." (In re D. T. (2003) 113 Cal.App.4th 1449, 1455.)
There are several pieces of information known to the agency that are not included in the notice. Neither Maris nor Aarons place of birth is noted. Although the birth certificates of the children give the date of birth for both Mari and Aaron, we cannot determine whether these birth certificates were attached to the notices. There is also no information about Aarons father. There is no information about Aarons grandparents, other than the name of Aarons grandfather. Only partial information is given about Aarons mother. Calvins birthdate is missing, and there is only partial information on his parents and grandparents, even though Calvin told the court he had been researching his familys Indian ancestry.
There is nothing on the notice forms, the first or the second, stating that the birth certificates are attached. The forms acknowledge only one attachment, identified as the list of individuals receiving the notice. The birth certificates follow the first notice in the clerks transcript, but do not follow the second notice.
At the hearing, when Aaron was asked who his father was, he responded "Robert Fabun" and gave his address as "742 Anthony," the address of Aarons mothers former home in Modesto. The social workers report states that Aaron never knew his father and had a stepfather who lived in Ceres. Aarons mothers name is listed on the notice as Susan Fabun/Susan House with no further clarification. Fabun is not listed on the JV-135 as a paternal grandfather. While it is possible Fabun is Aarons stepfather, we cannot be certain this is true.
The agency argues that it "properly investigated Indian ancestry and properly included the information it had on the JV-135." It also contends that "the record reflects the social workers attempt to glean family information from both parents." Yet, we find nothing in the record to support these assertions. The social worker report does not identify any attempt to obtain information about the childrens possible Indian heritage or to provide the missing information needed to complete the JV-135. It does not explain why information obviously available to the social worker (because it was in the report) was not included in the notice. The agency also asserts that the juvenile court fulfilled its duty to inquire into the childrens Indian heritage because it asked if there was Indian heritage. But this initial inquiry is only the first step: The required inquiry includes assuring the sufficiency of the notice given when notice is required. The juvenile court did not order the parents to provide Indian ancestry information to the agency and did not order the parents to complete Judicial Council Form JV-130 (Parental Notification of Indian Status). (Cal. Rules of Court, rule 1439(d)(3).) It did not order the agency to conduct any further inquiry. The juvenile court has a sua sponte duty to assure compliance with the notice requirements of the ICWA. (In re H. A., supra, 103 Cal.App.4th 1206, 1211.)
The agency also argues that the omitted information about Aarons mother was irrelevant because she was deceased and there was no information that she was an Indian. We reject this position. First, when Aaron stated he believed he had Indian ancestry, he did not indicate whether his ancestry was through his mother or father, and there is nothing in the record establishing that the link was through his father. If the social worker discovered this during an inquiry, it should have been noted. Instead, the notice states just the opposite, that the paternal grandmothers "[t]ribe, band, and location" is "CHEROKEE." Second, the information required is not limited to living relatives. (25 C.F.R. § 23.11(a), (d)(3).) The information sought concerns the childrens ancestry, and ancestry obviously is not affected by the death of ones ancestors. Giving only the paternal grandmothers name and date and place of death is not acceptable when the additional information was available. Nor do we accept the agencys contention that the paternal grandmothers former address is not important because it is not "one predominantly occupied by an Indian tribe and so her address has no bearing on the determination of Indian ancestry of the children." No authority is cited for this proposition and we reject it. The notice form asks for former addresses because the federal regulations ask for the information. (25 C.F.R. § 23.11(d)(3).) There is another section of the form that asks whether the family has ever lived on federal trust land, a reservation, or a rancheria. The two inquiries are separate.
It is the agencys responsibility to seek out the information needed. (In re Louis S., supra, 117 Cal.App.4th at p. 630; In re D. T., supra, 113 Cal.App.4th at p. 1455; In re Jennifer A., supra, 103 Cal.App.4th at p. 705.) It is also the agencys responsibility to fill out the notice form completely, providing all the information it has and all that it can possibly obtain. (In re Gerardo A., supra, 119 Cal.App.4th at p. 991; In re S.M. (2004) 118 Cal.App.4th 1108, 1116-1117 [notice insufficient where omitted information about grandparents with alleged Indian background and other identifying information about childs mother, grandparents, and great-grandparents]; In re Louis S., supra, 117 Cal.App.4th at p. 631 [notice insufficient when contained incomplete names and omitted birthdates].)
The social worker has an affirmative duty to inquire about and obtain, if possible, all of the information required by 25 Code of Federal Regulations part 23.11(d)(3). (In re S.M., supra, 118 Cal.App.4th at p. 1116.) No meaningful information was included about Aarons family. This information was critical because it is Aaron who allegedly has Indian heritage. (See In re Louis S., supra, 117 Cal.App.4th at p. 631.) Since the notices were incomplete, the tribes and the BIA could not conduct a meaningful search to determine whether the children are Indian children within the meaning of the ICWA. (In re S. M., supra, at p. 1118.)
The court erred in determining that the notice provisions of the ICWA were satisfied. (In re Nikki R. (2003) 106 CalApp.4th 844, 852 [it is role of juvenile court, not agency, to determine whether ICWA notice is proper]; In re Jennifer A., supra, 103 Cal.App.4th at pp. 705-706 [same]; see also In re Asia L. (2003) 107 Cal.App.4th 498, 508-509 [court may not rely upon social workers testimony that ICWA notice proper]; In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906 [court may not rely upon conclusory statement in social workers report that proper ICWA notice was given].) Unless a tribe has participated in or expressly indicated no interest in the proceedings, the failure to comply with the ICWA notice requirements is prejudicial error. (In re Desiree F., supra, 83 Cal.App.4th at p. 472.)
We also reject the agencys contention, unsupported by any citation to authority, that Aarons ICWA claim is waived. It is well established that the issue of ICWA notice is not waived by a parents failure to raise it in the juvenile court. (In re Nikki R., supra, 106 Cal.App.4th at p. 849; In re H. A., supra, 103 Cal.App.4th at p. 1214.) The notice requirements of the ICWA serve the interests of the Indian tribes and cannot be waived by the parent. (In re Suzanna L. (2002) 104 Cal.App.4th 223, 231-232.)
Based on our conclusion that the notices sent to the BIA and the tribes do not comply with the requirements of the ICWA, we need not address Aarons contention that notice was deficient because it was not sent for the continued hearings. No notice was sent for the February 2 hearing, the date of the actual jurisdictional and dispositional hearing. We observe that the rules of court require that "Notice must be sent 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 act does not apply to the case." (Cal. Rules of Court, rule 1439(f)(5), italics added.) We also need not address Aarons contention that the juvenile court failed to make the necessary findings or apply the higher evidentiary standards required by the ICWA at the dispositional hearing. (See 25 U.S.C. §§ 1912(e), 1921.) We cannot resolve this issue given the lack of proper notice to the tribes. (But see Cal. Rules of Court, rule 1439(f)(6) [if, after reasonable time following required notice, tribe does not respond, court may determine act does not apply and proceed accordingly until such time as evidence establishes act does apply].)
On remand, the juvenile court must direct the agency to use reasonable efforts to conduct a proper inquiry and to comply with the notice provisions of the ICWA. After proper inquiry is made and proper notice is given, if any tribe, or the BIA, comes forward and asserts that the children are Indian children, the juvenile courts jurisdictional and subsequent orders must be vacated for failure to comply with the ICWA. (25 U.S.C. §§ 1912(a), 1914.)
If, after proper inquiry is made and notice is given to the tribes and the BIA, and the requisite time period has expired, no Indian tribe has come forward and identified the children as Indian children, or requested an extension of time, or sought to intervene in these proceedings, we are not required to invalidate the jurisdictional and subsequent orders. (In re Desiree F., supra, 83 Cal.App.4th at pp. 471-472.) As a result, we will review the courts jurisdictional order.
II. Jurisdictional order
Aaron challenges the jurisdictional order of the court, claiming there is insufficient evidence to support a finding that the children had suffered or were in substantial risk of suffering serious harm. We disagree and affirm the jurisdictional order.
A juvenile court may determine that a child is subject to the courts jurisdiction if it finds by a preponderance of the evidence that the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of a parents failure or inability to adequately supervise or protect the child, or a parents failure to provide the child with adequate food, clothing, shelter, or medical treatment. (§ 300, subd. (b).) 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. (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1137; In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) The juvenile court here made the requisite findings. On appeal, we must determine whether the courts finding is supported by substantial evidence. (In re David M. (2005) 134 Cal.App.4th 822, 828; In re Heather A. (1996) 52 Cal.App.4th 183, 193.) In determining whether the evidence is sufficient to support the courts findings, we draw all reasonable inferences from the evidence to support the findings and orders of the juvenile court in the light most favorable to the juvenile courts determinations. Issues of fact, weight, and credibility are the provinces of the juvenile court. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947 ; In re Shelley J., supra, 68 Cal.App.4th at p. 329.) The ultimate test is whether the juvenile courts ruling is reasonable in light of the whole record. (In re David M., supra, 134 Cal.App.4th at p. 828; In re L. Y. L., supra, 101 Cal.App.4th at p. 947.)
At the jurisdictional hearing, the juvenile court had before it the social workers jurisdiction/disposition report and its multiple attachments. A social study and the hearsay statements contained within it are admissible and constitute competent evidence upon which to base a finding that a child falls within the juvenile courts jurisdiction under section 300. (In re Malinda S. (1990) 51 Cal.3d 368, 382.) There is ample evidence in the report and its attachments to support the courts finding that the children had suffered, or there was a substantial risk that children would suffer, serious physical harm or illness. Although much of the information provided in the report was generated in connection with earlier incidents and prior contact between the agency and the family, the evidence was not limited to past circumstances. Instead, it provides an unfortunate tale of continuing neglect.
A review of the report and its attached records establish a number of problems that continued to reoccur. The juvenile court was not required to discount this information simply because the earlier incidents did not result in a dependency action. First, the family had been homeless on more than one occasion and was again evicted on November 30, 2005. When homeless in the past, the parents had failed to access offered services and repeatedly missed appointments that would have provided housing assistance, despite repeated attempts by the agency social workers to facilitate the appointments. During the previous family maintenance period, the parents were unable or unwilling to take responsibility for their familys housing needs, choosing instead to rely on the agency to pay their rent and negotiate with the landlord. The family remained homeless after the children were removed.
Second, there is evidence that the parents are unwilling or unable to provide for their childrens basic medical needs. In November 2003, the public health nurse reported that Mari had not followed through with medical appointments necessary to address Aaron, Jr.s, respiratory problems. Despite being informed of the harm to Aaron, Jr., Mari continued to expose the baby to cigarette smoke. In January 2004, Catherine had been prescribed medication for impetigo, but the parents lost the medication. In March 2004, Mari lost the childrens medical cards. That same month, the children were evaluated and all found to be developmentally delayed. Referrals were made, but the parents failed to follow through and set appointments. The parents also failed to follow through on a referral to Shriners for Aaron, Jr., whose one leg is shorter than the other. At the time the petition was filed, all the children were behind in their immunizations, and there was no evidence the parents had taken any steps to obtain the necessary medical treatment and assessments needed. Again, the juvenile court was free to consider all the evidence even though it could not base its findings on past neglect alone. (See In re David M., supra, 134 Cal.App.4th at p. 831 [although jurisdictional finding cannot rest on past record of neglect without something more current, evidence of past abuse or neglect can be an indicator of future risk of harm]; In re Ricardo L. (2003) 109 Cal.App.4th 552, 565 [previous acts of neglect alone will not establish substantial risk of harm; there must be some reason beyond mere speculation to believe they will recur].)
Finally, there was some evidence of sexual abuse and significant evidence of physical abuse. Aaron argues that because the allegations of sexual abuse are from "biased sources" and are supported with "scant proof," the agency did not meet its burden of proving risk of harm. He places particular emphasis on the lack of medical evidence of sexual molestation. We acknowledge that no medical evidence of sexual abuse was found during the forensic examinations of either Erin or Shyanne. There was evidence of a white discharge from Shyannes vaginal area, but it was attributed to poor hygiene. There is evidence that the touching was sexual in nature. Erins medical examination confirmed a redness in the vaginal area. Mari reported that Shyanne had a "scratch" in the vaginal area which Mari treated with medicine. Both girls reported that their father "hurt" them in this part of their bodies. Erin was observed sexually acting out. Shyanne said Aaron hurt her when he was "big." In addition, evidence of sexual abuse is strengthened by the similarity between the two reports.
In 2001, Erin reported that Aaron had "punched" her, as well as "hurt" her in the vaginal area. She was bruised. Erin also reported that Aaron tried to dump her in the toilet. Erin was removed from the household as a result. In November 2002, Aaron was convicted of assaulting Mari. He refused to attend court-ordered classes because he thought they were stupid. A restraining order was issued, which Mari ignored, despite her reports that she was tired of Aaron beating her. In March 2004, there was an unsubstantiated referral that Catherine and Shyanne had bruises caused by their father hitting them and that Catherine reported that her dad was "touching her." In November 2005, Shyanne reported that "dad hurts me," and there was an injury to the childs vaginal area requiring medication. In December 2005, Calvin reported that Mari had told him that Aaron was violent and she feared for her safety. Despite years of documented violence by Aaron and injury to the children, Mari continues to discount his behavior or the risk his behavior presents to the family. Given the most recent allegation by Shyanne, the substantiated injury, the questionable explanation by Mari, and her deceit in characterizing Aarons access to the children, it was reasonable for the juvenile court to conclude that the children were at risk of harm in this household. The court reasonably concluded that Aarons physical abuse of his family is continuous, placing the children at substantial risk of future serious harm or injury, and that Mari is unwilling or unable to protect these very young and extremely vulnerable children.
III. Dispositional order
At a dispositional hearing, an order removing a child from his or her home must be based on a finding, made by clear and convincing evidence, that there is a substantial danger to the childs physical health, safety, protection, or physical or emotional well-being if returned home, and there is no reasonable means by which the minor can be protected without removal. (In re Heather A., supra, 52 Cal.App.4th at p. 193; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) An order removing a child from parental custody is proper if it is based on proof of the parents inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parents. The goal is to avoid harm to the child. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on other grounds by Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) While the juvenile court must make its findings by clear and convincing evidence, we review the juvenile courts ruling using the sufficiency-of-the-evidence standard we have already identified. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.)
The same evidence supporting the courts jurisdictional findings supports its dispositional order removing the children from the parents care. Not only is there a substantial risk of physical and sexual abuse of these children by Aaron, but there is strong evidence that Mari refuses to recognize the risk and protect her children. Both parents were uncooperative with the agency and police; they were less than candid about their living situation; and each parent refused additional services. Mari continued to lie in order to cover for Aaron, and she refused to believe the allegations of abuse made by her young daughters. She instead chose to blame the reports made by the two little girls, first on Calvin, and later on Shyanne for confusing sexual abuse with being spanked. She told the investigating police officer that Shyanne might have fallen on something. During the investigation of Erins allegation of abuse, Mari told the social worker that Erin fell off her lap onto the cement. Mari also claimed she had been manipulated by friends into acting when Aaron assaulted her in 2002. These are clear signs that she does not recognize the risk that Aaron presents and that she is not willing to take action to protect her children. Further, neither Aaron nor Mari are willing to access services needed to correct the conditions which led to dependency. For these reasons, we reject Aarons assertion that the court could have ordered that the children remain in the home with Mari subject to a stay-away order directed at Aaron.
The record supports the juvenile courts finding.
disposition
The matter is remanded to the juvenile court with directions to direct the agency to use reasonable efforts to conduct a proper inquiry into the childrens Indian heritage and to comply with the notice provisions of the ICWA. After proper inquiry is made and proper notice is given, if any tribe, or the BIA, comes forward and asserts that the children are Indian children, the juvenile courts jurisdictional and subsequent orders are deemed vacated for failure to comply with the ICWA (25 U.S.C. §§ 1912(a), 1914).
If, after proper inquiry is made and notice is given to the tribes and the BIA, and the requisite time period has expired, no Indian tribe has come forward and identified the children as Indian children, or requested an extension of time, or sought to intervene in these proceedings, the jurisdictional and dispositional orders are affirmed.
We Concur:
Cornell, J.
Hill, J.