Opinion
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of San Diego County Super. Ct. No. EJ2859A/B, Gary Bubis, Judge.
BENKE, Acting P. J.
Ramona R. and Darrin S. appeal jurisdictional and dispositional orders declaring their two daughters dependent children under Welfare and Institutions Code section 300, subdivision (d) and removing the girls from their custody. Darrin contends a finding that a person is a registered sex offender alone cannot support a finding of juvenile court jurisdiction under section 300, subdivision (d). Ramona asserts proper notice under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1902 et. seq.) was not provided. Each parent joins in the contentions of the other.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Darrin is a registered sex offender; he was convicted of sexually abusing a child in 1991. He is the father of the girls, ages five and two. On July 17, 2006, he was arrested for violating conditions of his parole because he was having contact with children and he had not registered his new address. Ramona agreed to a voluntary services contract that included parenting education, in-home support and counseling, and she agreed she would not allow Darrin into the home if he were released from custody. Darrin was released on January 29, 2007. On February 3 police found him living in a motel room with Ramona and the girls. They did not arrest him because, since he was no longer on parole, there were no parole conditions prohibiting him from having contact with children.
On February 28, 2007, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of the girls under section 300, subdivision (d), alleging they were at substantial risk of being sexually abused because Darrin is a registered sex offender; he was convicted of sexually abusing a child in 1991; his previous parole conditions prohibited contact with children; a psychological evaluation recommended he not be with any female minors unless a responsible adult is present; he had not completed a treatment program; he had been seen caring for the girls; and he was living with them contrary to Ramona's voluntary services contract. After a hearing, the court detained the children in out-of-home care.
The social worker reported Darrin was convicted in 1991 of two counts of violating Penal Code section 288, subdivision (a), committing lewd or lascivious acts on a child under the age of 14, he had not been treated for this offense and he had a history of using and selling cocaine. The psychologist who evaluated Darrin in 1991 opined it was probable that the offense Darrin committed was more an act of aggression than a sexual act. The psychologist stated: "Although significantly disturbed, [Darrin] is not a fixated or aggressive pedophile and does not represent a danger to the community." The psychologist recommended probation with the requirement that Darrin have drug abuse treatment and not be in the company of female children unless a responsible adult is present. Conditions of Darrin's parole included that he not have contact with anyone under the age of 18 without the parole officer's approval, he have no contact with children and he be drug tested, take anger management classes and have psychiatric treatment. His criminal history since 1991 included a 1993 conviction for transporting and selling a controlled substance, a 2000 conviction for burglary, and numerous parole violations. His criminal record indicates that he apparently was in custody for much of the time after the 1991 offense.
Ramona said she did not believe Darrin was a threat to the girls. Darrin said he wanted to live with Ramona and the girls and did not consider himself a risk to any child. He said he should not be considered untreated because he had completed all but two months of a sex offender program in that he completed the first phase of a program but then violated parole conditions and had to start over. He said he last used drugs in 2003 and had completed a drug treatment program since then. After Darrin's release from custody in January 2007, he was placed on probation. The probation officer said Darrin was under intensive supervision, but there were no restrictions on his contact with children. He said Darrin's probation conditions required that he complete a psychological evaluation and he then would be evaluated for treatment. The probation officer said it was unusual that the judge had not placed any conditions on Darrin's probation, and Darrin should be considered an "untreated offender."
The social worker reported Darrin and Ramona's five-year-old daughter was sexually abused by a family friend when she was two years old and she had been exposed to pornography. The Agency had referred her to counseling to address these issues, but Ramona did not take her to any appointments.
Darrin said he may have Blackfoot or Cherokee heritage, and the paternal grandmother indicated the family has Blackfoot heritage. Ramona said she might be Cherokee, but she was not able to provide much information about her family. The social worker sent notice of the dependency proceedings to the Blackfeet and Cherokee tribes and the Bureau of Indian Affairs (BIA).
For the jurisdictional hearing, the social worker reported the Agency had received U.S. Postal Service receipts indicating the four tribes and the BIA had received ICWA notice. She said the Blackfeet Tribe had responded that the girls were not listed on its membership rolls. The Agency had not received responses from the Cherokee Tribes.
At the hearing on April 27, 2007, the parties stipulated that if the older girl were to testify she would say she is not afraid of Darrin, he has never touched her in any way to make her uncomfortable or afraid, and she feels safe with her parents.
After considering the evidence and hearing argument, the court found the allegations of the petitions true, that there would be a substantial danger to the girls if they were returned home, and there were no reasonable means to protect them without removing them from their parents. It found proper notice had been given under the ICWA. It removed custody under section 361, subdivision (c)(1), ordered the girls placed in foster care and ordered services for the parents.
DISCUSSION
I. Jurisdiction under Section 300, Subdivision (d):
Darrin contends the court erred by assuming jurisdiction because a finding that a person is a registered sex offender alone cannot support a finding of jurisdiction under section 300, subdivision (d). Ramona joins his arguments.
A child comes within the jurisdiction of the juvenile court under section 300, subdivision (d) when the court finds:
"The child has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in Section 11165.1 of the Penal Code, by his or her parent or guardian or a member of his or her household, or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse." (§ 300, subd. (d).)
A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114, quoting In re Biggs (1971) 17 Cal.App.3d 337, 340.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
A juvenile court is not required to wait until a child is actually hurt before assuming jurisdiction. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) The focus of the statute is to avert harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536.)
Darrin has not shown the evidence was insufficient to support the jurisdictional findings. The petition alleged the girls were at substantial risk because Darrin was living in the family home and he was an untreated sex offender. In 1991 he was convicted of committing lewd acts on a child under the age of 14. He told the social worker, "I put my hands down [the 10-year-old victim's] pants. I was drinking and high. It was a boundary issue I crossed. I felt bad." Darrin had been incarcerated for his crime and admitted he had not completed treatment for sex offenders. He told the social worker he had completed drug abuse treatment after his last use of drugs in 2003, but the record does not contain verification of this claim.
Six months before the Agency petitioned on behalf of the girls, Ramona was allowing Darrin to live in the family home with her and the girls in violation of the conditions of his parole. He was returned to prison because of the parole violation. Ramona agreed to accept voluntary services, but she did not participate in any of the services offered and, when Darrin was released, she again allowed him to live with her and the girls. She said she did not consider him a risk to the girls and she saw paperwork from his criminal court hearing that indicated he was no longer barred from being around children. Even though the social workers had explained to her the danger that Darrin represented, Ramona did not understand that he posed any risk to their daughters. We reject Darrin's suggestion that there must be some overt act of sexual abuse in the family in order to sustain findings under section 300, subdivision (d) as opposed to him merely having the status of a registered, untreated sex offender. Substantial evidence supports the jurisdictional finding.
Darrin argues neither section 355.1 nor Family Code section 3030, subdivision (a)(1)(3) required the court to sustain the allegations based merely on the fact that he is a registered sex offender. We agree with this statement, but conclude Darrin did not rebut the evidence that he presented a substantial risk because he was an untreated sex offender living in the family home.
Section 355.1, subdivision (d) states in part:
"Where the court finds that . . . a parent . . . of a minor who is currently the subject of the petition filed under Section 300 (1) has been previously convicted of sexual abuse as defined in Section 11165.1 of the Penal Code . . . or (4) is required, as the result of a felony conviction, to register as a sex offender pursuant to Section 290 of the Penal Code, that finding shall be prima facie evidence in any proceeding that the subject minor is a person described by subdivision (a), (b), (c), or (d) of Section 300 and is a substantial risk of abuse or neglect. The prima facie evidence constitutes a presumption affecting the burden of producing evidence." (§ 355.1, subd. (d).)
Family Code section 3030, subdivision (a)(3) states:
In discussing this code section, the appellate court in In re John S. (2001) 88 Cal.App.4th 1140, 1145, stated, "the intent of the Legislature was to focus on the heightened risk facing minors who come into contact with sex offenders and to ensure the juvenile court has information about such persons when assessing jurisdictional facts." The presumption is not conclusive, but affects the burden of producing evidence.
At the jurisdictional and dispositional hearing, the court received evidence from the Agency that Darrin was a convicted sex offender who was required to register and had not completed treatment. The older daughter's stipulated testimony that she was not afraid of Darrin, he had never touched her in any way that made her uncomfortable or afraid and she felt safe with Ramona and Darrin did not rebut the evidence the girls were at substantial risk because Darrin was an untreated sex offender. Darrin did not present any other evidence. The court reasonably considered the evidence before it, including the social worker's reports, found the petitions to be true by clear and convincing evidence and removed the girls from the home under section 361, subdivision (c)(1).
II. ICWA Notice:
Ramona contends the court erred by removing the children because the Agency did not provide proper notice as required by ICWA. She points out the ICWA notice was not addressed to the tribal chairperson or the chairperson's designated representative. Darrin joins her contention.
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.) Section 1911 of the ICWA provides that a tribe may intervene in state court dependency proceedings. (25 U.S.C. § 1911, subd. (c).) Notice to the tribe provides it the opportunity to exercise its right to intervene. (In re Junious M. (1983) 144 Cal.App.3d 786, 790-791.) The ICWA provides "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 child's tribe, by registered mail with return receipt requested, of the pending proceedings, and of their right of intervention." (25 U.S.C. § 1912, subd. (a).) If the tribe is unknown, the notice must be given to the Secretary of the Interior. (Ibid.) California Rules of Court, rule 5.664 (f)(2) requires that ICWA notice must be sent to the tribal chairperson or his or her designated agent. (In re H.A. (2002) 103 Cal.App.4th 1206, 1213.)
We conclude the Agency substantially complied with the notice requirements. At the hearing, the juvenile court considered evidence that the Blackfeet Tribe had responded to the notice by reporting the girls were not listed on its membership rolls. During the pendency of this appeal, we granted the Agency's unopposed request to augment the record with the Agency's addendum report, dated October 17, 2007, which states the Agency received a letter from the United Keetowah Band of Cherokee Indians, stating the girls were not found to be members and were not eligible for enrollment, letters from the Eastern Band of Cherokee Indians indicating neither girl was considered to be an Indian Child in relation to the Eastern Band of Cherokee Indians, and a letter from the Cherokee Nation requesting further information about the paternal great-grandfather and the maternal great-great-grandmother. The social worker further reported that in a June 20, 2007, face-to-face meeting with Darrin and Ramona, she asked them to provide the information the Cherokee Nation requested. She followed this meeting with a letter to Darrin dated June 25, a certified letter to Darrin on August 9 and certified letters to Darrin and Ramona on August 23 requesting the information. At the time of the report the parents had not responded to the Agency's requests.
The record shows the Agency substantially complied with ICWA notice requirements. The court did not err in finding the ICWA did not apply.
DISPOSITION
The orders are affirmed.
WE CONCUR: HALLER, J., McDONALD, J.
"The fact that a child is permitted unsupervised contact with a person who is required, as a result of a felony conviction in which the victim was a minor, to be registered as a sex offender under Section 290 of the Penal Code, shall be prima facie evidence that the child is at significant risk. When making a determination regarding significant risk to the child, the prima facie evidence shall constitute a presumption affecting the burden of producing evidence. However, this presumption shall not apply if there are factors mitigating against its application, including whether the party seeking custody or visitation is also required, as a result of a felony conviction in which the victim was a minor, to register as a sex offender under Section 290 of the Penal Code." (Fam. Code, § 3030, subd. (a)(3).)