Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. JUV093562. Bradley O. Snell, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Brent Riggs, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.
Jennifer Mack, under appointment by the Court of Appeal, for Minors.
OPINION
Gaut, J.
Mother, M.C., appeals from an order made at a six- month review hearing (Welf. & Inst. Code, § 366.21, subd. (e)), continuing the out-of-home placement of her four children. Mother’s two youngest children were placed with their nonoffending, noncustodial father, and her two older children were continued in foster care after the court found that mother had failed to regularly participate in services and lacked housing. Mother claims the court improperly refused to return the children to her custody solely because she lacked adequate housing. She also claims that notices under the Indian Child Welfare Act (ICWA) were inadequate. We affirm the juvenile court’s finding of detriment and continuation of the children’s out-of-home placement. However, we direct the juvenile court to (1) comply with ICWA by sending notice to the Cherokee Tribes, and (2) investigate any possible Indian heritage of father D.H.
BACKGROUND
The four children, E.S., D.H.Jr., A.H., and K.H.Jr., ranging in ages from 11 to three, respectively, came to the attention of the Riverside County Department of Public Social Services (DPSS) on August 13, 2007, due to a referral alleging sexual and emotional abuse. There had been numerous prior DPSS referrals for various allegations, many of which were unfounded, and many of which were related to family law proceedings between mother and father K.H. The current report indicated the parents (mother M.C., and father K.H., who is the father of the two youngest children) engaged in ongoing domestic violence incidents and that K.H. was sexually abusing the children.
To minimize the confusion inherent in using so many initials, we will refer to E.S. and D.H.Jr. as “the two older children,” and to A.H. and K.H.Jr. as “the two younger children” where possible. D.H. is the father of D.H., Jr.; K.H. is the father of A.H. and K.H.Jr. The identity of the father of E.S. is unknown. The two fathers will be referred to as “father D.H.” or “father K.H.” to avoid confusion.
On September 12, 2007, a DPSS worker went to mother’s residence to investigate the allegations, and found the children alone and unsupervised in the home which had safety hazards. The children denied being sexually abused by K.H. Mother arrived home while the social worker was present, and informed the worker that D.H.Jr., had reported seeing Ke.H., father K.H.’s child from another relationship, acting out sexually with A.H. during a visit to K.H.’s residence. The children were taken into protective custody. Mother was arrested for child endangerment.
On September 14, 2007, a dependency petition was filed as to all four children, alleging neglect (§ 300, subd. (b)), based on the parents’ failure to protect and supervise, anger management and domestic issues, as well as failure to provide support (§ 300, subd. (g)), due to the fact that mother and father D.H. (father of D.H.Jr.) were both incarcerated. Mother informed the social worker that her mother had “Blackfoot” Indian ancestry, and that her maternal great-grandmother was registered with the Chakchauk Tribe of Utah. Because father D.H. was incarcerated in state prison with limited telephone privileges, the social worker was unable to obtain information about his possible Indian heritage, and father K.H. denied any Indian heritage.
DPSS sent notice of the dependency to the Bureau of Indian Affairs (BIA) as the social worker could not find the “Blackfoot” or Chakchauk tribes listed as federally recognized tribes. At the detention hearing, the court was informed that the social worker had used a misspelling of the “Blackfeet” tribe, and found that ICWA may apply. The court made prima facie findings that all four children were persons described by Welfare and Institutions Code section 300 as to mother, and ordered the two older children detained from mother and father D.H. However, the court made no findings as to father K.H. and ordered the two younger children placed with their father, K.H.
On December 4, 2007, mother and father K.H. submitted on the reports at the jurisdictional hearing. Father D.H. was not present on that date, so the proceedings as to D.H.Jr. were continued. The court made true findings that the other three children came within Welfare and Institutions Code section 300, subdivision (b), and removed custody of those three children from mother’s custody. The two younger children were ordered placed with father K.H., with family maintenance services. On January 23, 2008, jurisdictional findings were made as to D.H.Jr., he was removed from the custody of both parents, and placed together with E.S. in a foster home.
On May 8, 2008, the court conducted a six-month status review hearing. (§ 366.21, subd. (e).) The court received the social worker’s report into evidence without objection. According to the report, the mother was employed but had been evicted from her residence and was living with a former brother-in-law. She had recently been diagnosed as suffering from diabetes for which she was required to take insulin. She had active warrants for a criminal charge of willful disobedience of a court order (Pen. Code, § 166, subd. (a)(4)), as well as for violating probation in her criminal child endangerment case by not serving her weekends in custody. (Pen. Code, § 273a, subd. (a).)
The report also noted that mother repeatedly made complaints to the police about father K.H., alleging he burglarized her residence, stole mother’s property, and physically abused or failed to supervise the two children in his custody. The police investigated the complaints and found none to be substantiated. Regarding her service plan, mother had signed up for a domestic violence program but was unable to schedule an appointment because of staffing shortages. She missed an individual counseling session and failed to schedule another. She attended two or three general counseling sessions but missed others and was discharged. She made an appointment for a psychological evaluation but showed up two hours late and failed to reschedule. She attended 12 parenting classes but never completed the remainder of the classes, and never enrolled in the Parents United Education Component. However, while she missed or was late for several visits, those that she did attend went well, and the children were distraught when she failed to visit. Mother requested funds for rent.
For his part, father K.H. also failed to enroll in the domestic violence program due to the staffing shortages, failed to attend counseling for the same reason, and failed to submit to a psychological evaluation. However, he was attending parenting classes and doing well in the Parents United Education Component.
At the hearing, the court found it would be detrimental to return the children to mother, finding her progress unsatisfactory. The court found father K.H.’s progress was adequate. The court ordered that the two younger children would remain with father, with continued family maintenance services. As to mother, it maintained the two older children in foster care, and extended mother’s reunification services for another six months. Mother appeals.
DISCUSSION
1. The Juvenile Court’s Finding of Detriment at the Six-Month Review Hearing Is Supported By Substantial Evidence and Justified the Order of Nonreturn.
Mother claims there is no evidence to support the juvenile court’s refusal to return the children to their mother at the six-month review hearing. She asserts that the juvenile court’s order was based on the parent’s past attitude toward the social worker, allegedly false accusation about another parent, and the social worker’s apprehension about the mother’s financial ability to maintain adequate housing. She also complains that a different set of rules applied to the children fathered by K.H. She is correct in assuming two sets of rules applied, however she is incorrect in assuming that the difference relates to any bias against her. We review the entire record for substantial evidence to support the juvenile court’s finding that the children would be at substantial risk of detriment if returned to mother’s custody. In so doing, we consider the evidence favorably to the prevailing party and resolve all conflicts in support of the trial court’s order. (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400-1401.)
Pertinent to this case, subdivision (e) of Welfare and Institutions Code section 366.21 provides that “[a]t the review hearing held six months after the initial dispositional hearing, the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment.... The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.”
Nothing in Welfare and Institutions Code section 366.21 “requires that the detriment which justifies continued removal of the minor from parental custody must be akin to the detriment which necessitated juvenile court jurisdiction.” (In re Joseph B. (1996) 42 Cal.App.4th 890, 899.) Welfare and Institutions Code section 366.21 governs juvenile dependency status review hearings. By authorizing continued removal of the children based on the risk of detriment, the focus at a review hearing is on the children’s well-being at the time of the review hearing rather than on the initial basis for juvenile court intervention. (Ibid.) The decision whether to return a dependent child to parental custody is not governed solely by whether the parent has corrected the problem that required court intervention. (Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1344.)
Mother asserts that because she was making efforts toward reunification, and her lack of completion did not endanger her children, the sole reason for the court’s order of nonreturn had to relate to her failure to obtain housing. She also argues the court held her to too high a standard in finding detriment, relying on David B. v. Superior Court (2004) 123 Cal.App.4th 768, 789-790, where the reviewing court reversed an order of nonreturn grounded upon the fact father was living with his sister and her husband. However, in David B., the father had completed and complied with all elements of his reunification plan. (Id. at p. 787.) Mother’s situation in this case is not similar to that of David B.
Mother had not completed any of her reunification plan requirements, she had outstanding warrants for criminal matters, she had made false allegations against father K.H., and her living situation was unstable. Because the children had been removed from mother’s custody at the disposition hearing, her failure to regularly participate in the court ordered programs constituted prima facie evidence that return would be detrimental. (Welf. & Inst. Code, § 366.21, subd. (e).) There was ample evidence of her failure to participate in the court ordered programs to support the court’s finding of detriment, justifying the order of nonreturn.
Mother complains that the review of father K.H.’s participation in services was evaluated by a different standard, implying that the court and social worker were biased against her. A different standard was applied to father’s case, because the two younger children were not removed from his custody. Where children have never been removed from parental custody, the juvenile court reviews the matter six months from the date of the original disposition hearing to determine whether continued supervision is necessary. (Welf. & Inst. Code, § 364, subds. (a), (c).) Reunification was not the goal for K.H.Jr.; his plan was for family maintenance.
When proceeding under Welfare and Institutions Code section 364, because the child is in placement with a parent, the court is not concerned with reunification, but with determining whether continued supervision is necessary in the family home. (In re Gabriel L. (2009) 172 Cal.App.4th 644, 650.) Here, father was progressing in some components of his plan, but had not completed others. For this reason, the court extended services for another six months. Thus, it is correct to say that the juvenile court followed different rules with respect to father’s situation; it was required to do so by law.
Finally, mother argues that the juvenile court erred in not authorizing financial assistance for her to obtain housing. In this respect, she asserts the court erred in not stating a factual basis for its order. Welfare and Institutions Code section 366.21, subdivision (e) requires a juvenile court to state a factual basis for its conclusion that return would be detrimental; it does not require a court to state a factual basis for denying a parent’s request for extraordinary financial assistance. There was no failure to state a factual basis for denying funds.
In considering the merits of mother’s claim, we observe that mother has not demonstrated a statutory right to funding assistance for first and last months’ rent, so we review the denial of funding for an abuse of discretion. (In re Richard C. (1998) 68 Cal.App.4th 1191, 1195 [denial of request for bonding study is reviewed for abuse of discretion, absent a statutory or decisional requirement that a court must order one].) A determination committed to the sound discretion of the juvenile court should not be disturbed on appeal unless the trial court exceeded the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Given the fact mother was working full time, not participating in her reunification plan, and was attempting to undermine father K.H.’s family maintenance efforts, it was not an abuse of discretion to deny her request for funds.
2. Failure to Inquire About Father D.H.’s Possible Indian Ancestry Requires Limited Remand.
Mother argues that the juvenile court failed to insure adequate notice and investigation of the mother’s claims of Indian ancestry. Specifically, she claims (1) there was inadequate inquiry about possible Indian ancestry of father D.H.; (2) there was no inquiry as to mother’s claim of Cherokee heritage; and (3) the notices sent to the Blackfeet Tribe were inadequate because they did not include all the names, maiden and otherwise, of mother, and did not include the maternal grandmother’s ancestral information.
Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. (In re S.B. (2008) 164 Cal.App.4th 289, 302.) Notice requirements are strictly construed. (In re Desiree F. (2000) 83 Cal.App.4th 460, 470.) The agency must provide notice to all tribes of which the child may be a member or eligible for membership. (Welf. & Inst. Code, § 224.2, subd. (a)(3); In re Louis S. (2004) 117 Cal.App.4th 622, 632-633.) If the identity of the tribe cannot be determined, notice is to be served on the BIA. (25 U.S.C. § 1912, subd. (a); see also Welf. & Inst. Code, § 224.2, subd. (a)(4).)
When a court knows or has reason to know that an Indian child is involved in a juvenile dependency proceeding, a duty arises under ICWA to give the Indian child’s tribe notice of the pending proceedings and its right to intervene. (In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520.) The Indian status of the child need not be certain to invoke the notice requirement. (In re O.K. (2003) 106 Cal.App.4th 152, 156.)
Here, DPSS sent notices to the Blackfeet tribes based on mother’s information that she had ancestry in that tribe. Notices were not required to be sent to the Chakchauk tribe, because they are not a federally recognized tribe, and thus not subject to ICWA. (See 25 U.S.C. §§ 479, 479a, subd. (2) [definition of “Indian” limited to persons of Indian descent who are members of any Indian tribe recognized by the Secretary of Interior].) Although the notices to the Blackfeet Tribe used mother’s married name, they also included the name of the maternal grandmother and paternal grandmother, who were the two relatives known to have Indian ancestry. DPSS substantially complied with the notice requirements of ICWA as to the notice sent to the Blackfeet Tribe, which is sufficient. (In re Christopher I. (2003) 106 Cal.App.4th 533, 566.) Any error in the names provided is harmless where the available information was contained in the notices. (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1415.)
The question of whether DPSS should have notified the Cherokee Tribe, based on new information from mother is another question. Although mother’s claim of Cherokee ancestry was not accompanied by any relevant information, the court and DPSS have an affirmative and continuing duty to inquire whether a dependent child is or may be an Indian child. (§ 224.3, subd. (a).) If the court or social worker has reason to know that an Indian child is involved, the social worker is required to make further inquiry regarding the possible Indian status of the child. (§ 224.3, subd. (c); see also In re Alice M. (2008) 161 Cal.App.4th 1189, 1202.) The social worker should have followed up on this information and sent notices to the Cherokee Tribes.
It is entirely possible that the Chakchauk Tribe of Utah has been merged with a federally recognized tribe, such as the Cherokee. (See In re S.B., supra, 164 Cal.App.4th at p. 303.)
Regarding the father of D.H., Jr., the social worker was unable to ask about possible Indian heritage due to his incarceration at the detention and jurisdictional stages, although he indicated he would speak to the social worker after his release. Unfortunately, he never contacted DPSS after his release and DPSS never sent him the proper forms while he was incarcerated or after his release. Because we must remand for compliance with ICWA anyway, we direct the court to order DPSS to conduct the proper inquiry about father D.H.’s possible Indian ancestry.
DISPOSITION
The judgment and order from the six-month review hearing is conditionally reversed with directions to order DPSS to comply with the notice provisions of ICWA consistent with our opinion. If, after proper notice, a tribe claims the children are Indian children or eligible for membership in an Indian tribe, the juvenile court shall proceed in conformity with all the provisions of ICWA. If no tribe claims that the children are Indian children or eligible for membership in an Indian tribe, the judgment shall be reinstated.
We concur: Ramirez, P.J., Miller, J.