Opinion
No. C041828.
10-16-2003
In re DENZEL M. et al., Persons Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. DOROTHY R., Defendant and Appellant.
FACTUAL AND PROCEDURAL BACKGROUND
On October 3, 2000, the juvenile court terminated the parental rights of the mother and father of the minors. The minors had been living with appellant, their paternal grandmother, since May 1999. In the spring of 2000, the DHHS investigated an allegation that appellant had physically abused the minors. Deann and Darrin had reported that appellant "spanked" them. Appellant admitted striking the minors "on their hand for discipline." The social worker cautioned appellant against using any corporal punishment, and appellant assured the social worker the minors "would not be spanked again while in her care."
On November 20, 2001, DHHS filed supplemental petitions pursuant to section 387 on behalf of the minors, alleging that in the past two years appellant and her boyfriend had on numerous occasions struck Darrin with a belt or a shoe on his back and buttocks, leaving marks. Those petitions also alleged appellant had left the minors with unsuitable caretakers, including appellants boyfriend, and that the boyfriend struck the minors with a belt. Moreover, the petitions averred, appellant permitted the minors to have unsupervised contact with their mother. DHHS asserted that the previous disposition—placement of the minors with appellant—had not been effective in the protection of the minors.
The juvenile court later dismissed an allegation that appellants household was overcrowded.
At the detention hearing, appellant advised the juvenile court that her grandmother, now deceased, was a Cherokee Indian. The juvenile court ordered DHHS to conduct an investigation and send notice of the proceedings pursuant to the Act. Thereafter, DHHS determined the Act did not apply; no notice was sent to any Cherokee tribes.
Interviews by the social worker with the minors revealed that each allegedly had been beaten by appellant and her boyfriend with a belt, shoe, and a picture frame. The minors also reported appellants boyfriend lived in appellants house and that sometimes the mother of the minors took care of them. Appellant denied all of the allegations, and claimed that her boyfriend had never struck the minors. Appellant also stated her boyfriend did not live in the household.
DHHS had received a letter from an anonymous source containing detailed allegations against appellant. The juvenile court sustained a hearsay objection to the admissibility into evidence of that report.
At the July 2002 hearing on the supplemental petitions, Darrin and Deann testified that both appellant and appellants boyfriend had struck all of the minors. Darrin and Deann also told the court that appellants boyfriend lived with them, and that they stayed with their mother in appellants absence. Both minors wanted to live with appellant again.
The minors had been detained and placed in foster care.
A teacher at Denzels and Deanns school testified she was unaware of any abuse suffered by the minors. Karissa R., the 13-year-old daughter of appellant, testified that appellants boyfriend did not live in the household when the minors lived there. She told the juvenile court the minors were not left alone with their mother, and that the minors were lying about the physical abuse they claimed to have suffered. According to Karissa, the minors were sent to their bedrooms for punishment or were tapped on their hands.
Appellant testified that occasionally her boyfriend stayed in appellants home but he did not discipline the minors and was not left alone with them. Moreover, appellant claimed, she supervised visits between the minors and their mother. Appellant denied ever using a belt or shoe to strike the minors. Appellant also told the juvenile court that, after the minors were placed with her, she had not used any corporal punishment. According to appellant, the minors had lied about being physically abused by her. Appellant was willing to resume custody of the minors under DHHS supervision.
At the conclusion of the hearing, counsel for appellant asked the juvenile court to dismiss the petitions or, alternatively, order the return of the minors to appellant with services provided to appellant. The juvenile court sustained the petitions in part and determined that removal of the minors from appellants custody was necessary. The court also stated that it "believe[d] [the minors] when they [told it] that they were abused."
DISCUSSION
I
Appellant contends the evidence is insufficient to support the finding by the juvenile court sustaining the supplemental petitions and determining that the previous disposition had not been effective in protecting the minors. According to appellant, "[b]ecause there had been an inadequate investigation by [DHHS] of the allegations set forth in the section 387 petition, because there was an inadequate showing that the allegations of the section 387 petition were true, and because there was no showing that the minors were actually at risk at the time of the jurisdictional hearing, the section 387 petition was unsubstantiated." Appellant also suggests that, even if the evidence is sufficient to prove the minors were at risk in her custody, supervision by DHHS would have ameliorated that risk. Appellant argues it was "plainly erroneous" to remove the minors from her custody.
In considering appellants claim, we apply the substantial evidence rule. We must review the entire record in the light most favorable to the orders challenged and determine whether any substantial evidence supports the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924.) The supplemental petition must "contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child or, in the case of a placement with a relative, sufficient to show that the placement is not appropriate in view of the criteria in Section 361.3." (§ 387, subd. (a).)
In this case, the supplemental petitions alleged appellant and her boyfriend had physically abused Darrin, and also averred that appellant had left the minors with unsuitable caretakers and permitted the minors to have unsupervised contact with their mother. The juvenile court had before it social workers reports and the testimony of various witnesses, including Darrin and appellant. That evidence included statements by Darrin that, in November 2001, appellant had struck him on his back and buttocks, and that, sometime in 2001, appellant struck him on his buttocks with a shoe, leaving a bruise.
Darrin also reported that appellants boyfriend had struck him, and claimed Denzel and Deann also had been beaten by appellant and her boyfriend. Moreover, Denzel and Deann asserted they, too, had been victims of beatings by appellant and appellants boyfriend. Deann told the social worker that the minors mother took care of Deann "`alone." According to Darrin, when his mother visited him, there were times when appellant was absent.
At the hearing on the petitions, appellant denied using any physical force on the minors after their placement in her home. However, appellants daughters testimony contradicted that statement. Moreover, in May 2000, appellant had admitted to DHHS that she struck the minors with her hand.
DHHS must prove jurisdictional facts by a preponderance of legally admissible evidence. (In re Jonique W. (1994) 26 Cal.App.4th 685, 691.) In this case, the record contains sufficient evidence of harm to the minors to support the finding by the juvenile court that the previous disposition orders had not been effective in protecting the minors. (Cf. In re Joel H. (1993) 19 Cal.App.4th 1185, 1200, 1203.) It was within the province of the juvenile court to make judgments as to credibility of witnesses. (In re Cheryl E. (1984) 161 Cal.App.3d 587, 598) Here, we presume the court disbelieved appellants denials of abuse, as it indicated in its ruling that it found the testimony of the minors credible.
On the record before it, the juvenile court reasonably could find that the minors were not being protected adequately by appellant and their needs were not being met. Even after DHHS warned appellant in May 2000 not to hit the minors in her care, the physical abuse continued. That conduct put the minors at a continuing risk of suffering physical harm. Moreover, the presence of appellants boyfriend in the home and unsupervised contact with the minors mother also exposed the minors to additional risks of harm.
The evidence adduced before the juvenile court supports its finding that appellant no longer was capable of providing the minors a secure and stable environment, necessitating their removal from her custody. (In re Joel H., supra, 19 Cal.App.4th 1185, 1201.) On this record, it is difficult to discern how supervision by DHHS, supervision which had not worked in the past, would be successful in persuading appellant to modify her behaviors with respect to the minors in her custody. Accordingly, no reasonable means short of their removal would protect the minors. Substantial evidence supports the courts orders removing the minors from appellants custody.
II
Appellant claims the juvenile court erred by failing to provide notice to the Cherokee Indian tribes, as required by the Act. (See 25 U.S.C. § 1912(a); In re Kahlen W. (1991) 233 Cal.App.3d 1414.)
The Federal Register lists the following Cherokee Indian tribes: Cherokee Nation of Oklahoma, Eastern Band of Cherokee Indians of North Carolina, and United Keetoowah Band of Cherokee Indians of Oklahoma. (See 65 Fed.Reg. 13298 (Mar. 13, 2000).)
DHHS concedes the juvenile court erred in failing to provide notice to the Cherokee tribes and says, "remand [to the juvenile court] for notice to the Cherokee tribes . . . is appropriate." Having reviewed the record, we accept DHHSs concession, and we shall remand the case accordingly.
DISPOSITION
The orders of the juvenile court are reversed, and the matter is remanded to the juvenile court with directions to order DHHS to provide each of the three Cherokee tribes listed in federal regulations with proper notice of the proceedings under the Act. If, after receiving notice under the Act, no tribe indicates the minors are Indian children within the meaning of the Act, then the juvenile court shall reinstate its orders without conducting a new evidentiary hearing. If, on the other hand, a tribe responds affirmatively, then the court must consider the issue at a new hearing and conduct that hearing pursuant to the procedural and evidentiary requirements of the Act.
We concur: SCOTLAND, P.J., and NICHOLSON, J.