Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Los Angeles County Superior Court. No. CK83828, Debra Losnick, Commissioner.
Linda J. Vogel, under appointment by the Court of Appeal, for Defendant and Appellant K.W.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant M.W.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.
BIGELOW, P. J.
The juvenile dependency court entered dispositional orders removing two children from the family home. Mother and Father have filed appeals. We affirm the orders, but remand the cause with directions to the dependency court to assure compliance with the Indian Child Welfare Act (ICWA; 25 U.S.C § 1901 et seq.).
FACTS
M.W. (Mother) and K.W. (Father) are the parents of twin children, I.W. and A.W., born in October 2007. In July 2008, the Los Angeles County Department of Children and Family Services (DCFS) investigated a referral reporting substance abuse problems and general neglect by both parents. DCFS determined there were problems in the family home, and from July 2008 and February 2009, DCFS offered Voluntary Family Maintenance (VFM) services, including counseling and parent training.
On August 25, 2010, DCFS received an “Immediate Response” referral concerning the family. Later that afternoon, DCFS dispatched a case social worker (CSW) to the family home. When the CSW arrived at the home, Mother opened the door, and the CSW smelled “a strong foul odor [coming] from inside the home.” The temperature inside the apartment was “hot, ” and Mother reported that the air conditioner was not working. The CSW asked to see the rest of the apartment before interviewing Mother, and Mother consented.
In the kitchen, there was a large amount of trash on the floor; the CSW was able to gain access to the kitchen only after the trash was moved. The kitchen “appeared [as if] it hadn’t been cleaned or used in several months or even years.” There was about one foot of trash on the floor, including dirty plates, pots, spoiled food, wrappers, and other items. There was strong, foul odor. The countertops could not be seen due to the large amount of used items covering them, including dirty dishes, plates, and cups. The stove top was completely covered with spoiled food that had dried up and left stains, as well as more dirty dishes and pots. The only items in the freezer that were not rotted or spoiled were a few frozen meals. Inside the refrigerator, there was spoiled food covered with mold and cockroaches. There also was a child’s cup with black residue and a long tube coming out of it; it appeared to have been converted into a smoking device for drugs. The faucet was not accessible as the sink was piled with about three feet of dirty dishes, pots, and cups. Mother said she did not use the kitchen, the family only ate microwavable foods, shopped for groceries every other day, and ate in the living room.
The dining room area was located near the kitchen. The dining room contained boxes, clothes, and other household items that were piled to the ceiling. The living room area contained a large animal kennel that held five kittens and a large cat. The kennel contained large amounts of feces and urine causing a strong, foul odor throughout the home. The CSW “observed animal feces throughout the home, ” including on the dining room floor. Mother and the two children were walking barefoot around the home during the CSW’s visit.
In the living room, two dirty and worn couches were covered with food crumbs and trash. While the CSW was looking, A.W. picked up what appeared to be a food crumb off of the floor and ate it. There were dirty blankets and clothes dispersed throughout the room. There was a large entertainment center that had piles of books, papers, empty and full prescription bottles, and other unusable and unsafe items. There were so many items on top of each other on the entertainment center that it looked like it could fall at any time. At one point, I.W. tried to climb the entertainment center and the CSW had to direct Mother to supervise the child.
Mother reported that the water from the faucet in the hallway bathroom was the only water she for anything else needing water. The bathtub was full of items that the CSW “could not identify.”
The CSW could not enter the family’s bedroom due to the clutter and poor lighting in the bedroom. When the CSW asked Mother to turn on additional lighting, there was none available in the bedroom.
When the CSW asked about the environment in the home, Mother said the family had been packed and ready to move into a new apartment about three months earlier, but had to remain living in the maternal grandmother’s apartment after the move did not work out. Mother said the CSW had come “at the worst time, ” and that the home was “not usually like this.” When the CSW asked Mother why she had let the home get to the point it had, Mother answered that she “is a procrastinator” and there was no reason why she had let the home get so bad, then added that she had been depressed lately, and did not have the energy to clean up.
The CSW observed that the children were in dirty diapers. She also noted that the children were very active throughout the visit, including climbing, jumping, and yelling. Mother appeared overwhelmed and did not know how to handle their behavior. Mother claimed she had given them a bath earlier in the day, but the CSW observed dirt all over their bodies. The CSW also noted numerous bruises throughout the children’s bodies and scratch marks on their hands. Mother said the bruises were a result of the children fighting with each other and the scratches were from their kittens.
Father was not present during the CSW’s visit and did not respond to Mother’s attempts to reach him by telephone. When the CSW asked Mother where Father was, Mother stated she was not sure, but he would be home soon. Mother reported that neither she nor Father nor the maternal grandmother worked. She said the family got by on Father’s Social Security Disability check, CalWorks, and food stamps.
Mother reported Father had a criminal history, but she did not know the details. When questioned about possible substance abuse, Mother said she and Father had been prescribed Oxycontin. The CSW asked to see the medication, but Mother could not locate any bottles due to the mess in the home. Mother said she took Oxycontin due to having a difficult pregnancy resulting in having five teeth pulled out and disc disease. Mother stated Father took Oxycontin due to having sports-related back injuries. Mother said she had not taken Oxycontin for one month, and she only took it as needed.
While searching for an Oxycontin bottle, Mother did find a bottle for Prozac on the entertainment center and within access of the children. Mother explained that Father had bipolar disorder and took Prozac in addition to Oxycontin. Mother said she did not allow the children to be alone with Father due to his bipolar illness. She said Father did not have common sense and acted like a child.
The CSW expressed concern to Mother that the parents had received prior VFM services, but the same issues seemed to be recurring. The CSW asked Mother if she had family or friends who could care for the children temporarily while she cleaned up the home. Mother stated she had no family or friends, but she thought she could clean up the home in a couple of hours if someone took the children to a park. At that point, the CSW explained to Mother that it was unrealistic to expect the home would be cleaned up in a couple of hours or a day, and that the environment was unacceptable due to the safety and health hazards it posed to the children. After consulting with a supervisor, the CSW determined that the children should be detained due to the risk posed on account of their age, the condition of the home, and the parents’ substance abuse and mental health issues.
The CSW requested the assistance of law enforcement, and officers responded to the home. The CSW and the police officer could not gain access to the family bedroom due to items blocking the doorway. With the help from an officer’s flashlight, the CSW was able to peer into the family’s bedroom. The bedroom was filled with boxes piled to the ceiling, bags of clothes, and other undistinguishable items. At about 4:00 p.m., the CSW detained the children. DCFS placed the children in a foster home.
On August 26, 2010, the CSW contacted Mother and informed her about a Team Decision Making (TDM) meeting scheduled at DCFS’s office. When the CSW asked about Father’s whereabouts, Mother answered that Father had been arrested for “selling, ” but she was not sure he had been selling. The CSW confirmed that Father had been arrested on August 25, 2010.
At the TDM meeting on August 27, 2010, Mother said she was unsure why Father had been arrested. Mother said Father had been addicted to cocaine for a couple of years during his early 20’s and then started using prescription pills, including Valium, Xanax, and, most recently, Oxycontin. Mother stated Father had been using Oxycontin for the past four years, and that she had been using the drug for the three years. She admitted that she experimented with LSD and marijuana as a teenager, but said she no longer used those drugs. Mother stated that she and Father had become addicted to Oxycontin, and that they ingested the drug by crushing and snorting it. She said, however, they were in a Methadone treatment program. She stated she and Father attended the Western Pacific Clinic, and each received a daily dose of Methadone. Mother said that they had been in the program for 11 months and saw a counselor once a week.
When the CSW asked Mother whether she and Father were receiving treatment for their mental health issues, Mother said she did not take any psychotropic medications, but learned breathing techniques to help her cope with anxiety and depression. Mother said Father had obtained his Prozac prescription from a medical doctor, but he did not see a psychiatrist. Mother stated she and Father discussed their mental health issues with their counselor at the Methadone clinic.
At the end of the TDM meeting, the parties signed a safety plan that included the following terms: DCFS would file a Welfare and Institutions Code section 300 petition on behalf of the children, that Mother would follow all court orders and DCFS’s case plan, including on-demand and random drug testing. Further, Mother’s and Father’s visits with the children would be monitored and no visits would occur if the parents were under the influence of a substance, and Mother would clean the home and make it safe for the children.
All further section references are to the Welfare and Institutions Code.
On August 30, 2010, DCFS filed a petition alleging that the family home had been found to be in a “filthy, unsanitary and hazardous condition;” that prior remedial services failed to resolve the family, and that the condition of the home environment endangered the children’s physical safety. (§ 300, subd. (b).) The petition also alleged that Father and Mother had histories of illicit drug use placing the children at risk. (Ibid.) As to Father, the petition alleged mental and emotional problems, including bipolar disorder, which rendered him unable to provide regular care for the children. (Ibid.)
An “Indian Child Inquiry Attachment” affixed to the petition indicated that DCFS had questioned Mother regarding any American Indian heritage of the children. Mother had stated that “she has no knowledge of any American Indian Heritage.”
In September 2010, DCFS submitted a jurisdiction/disposition report. The report consisted largely of information provided by a DCFS dependency investigator (DI). The DI conducted multiple interviews with Mother, Father, the maternal grandmother (with whom the family lived), a counselor/nurse at the parents’ Methadone program, and a number of CSWs involved in the family’s matter. The parents suggested that the CSWs’ claims about the unclean condition of the family home were exaggerated, and denied any significant drug use problems. The CSWs who had made the emergency response to the family home affirmed their initial reports. An Intensive Service Worker (ISW) informed the DI that she (the ISW) visited the family home in September. The ISW reported that “the smell was bad and it looked like there was black stuff on the floor that looked like cat feces, ” but the cat crate and kittens were gone. The patio was “filled with stuff, ” and it appeared that “items from the house were put on the patio.” The kitchen “was clean and had food.”
At a pretrial resolution conference on September 30, 2010, the dependency court agreed to amend the petition by interlineation in limited respects, and then sustained allegations that Mother and Father had kept the family home in an unsafe condition, and that Father had drug abuse problems rendering him incapable to care for the children. At the same time, the court held over the allegations concerning Mother’s drug abuse issues and Father’s mental health problems. The court indicated those allegations would be dismissed if the parents agreed to drug and mental health programs. During the course of the hearing, Father made statements regarding possible Indian heritage, and the court ordered DCFS to investigate Father’s claim. The court set a contested disposition hearing for October 14, 2010.
On October 14, 2010, Father signed a court ordered disposition case plan which called for Father to participate in drug programs with testing and to undergo a psychiatric evaluation. The court further ordered that the children needed to be removed from the parents’ custody based on clear and convincing evidence showing that a substantial danger existed to their physical health, and that there was no reasonable means to protect them without removal.
DISCUSSION
Mother’s Appeal
Mother contends that the dependency court’s removal orders “are not supported by clear and convincing evidence, ” and that, for this reason, the children must be returned to her custody on family maintenance. We disagree.
Although the standard of review in the dependency court for removing a child from the family home is the clear and convincing standard, when the matter is presented to a reviewing court, the standard of review concerning historical facts is the more deferential substantial evidence test. (In re Henry V. (2004) 119 Cal.App.4th 522, 529.) Under this test, we must draw all reasonable inferences from the evidence to support the dependency court’s orders, and we must review the evidence in the record in the light most favorable to the dependency court’s orders. (In re Javier G. (2006) 137 Cal.App.4th 453, 462-463.)
An extensive discussion of this point is not necessary. We agree with DCFS that the evidence supporting the dependency court’s jurisdictional orders is sufficient to support the court’s removal orders. Substantial evidence shows that the conditions in the family home were so severe, and had existed for such a period of time, that the only reasonable avenue to protect the safety of the children was removal. Mother’s arguments that the jurisdictional report shows that the family home had “greatly improved” by the time of the disposition hearing is both overstated and unpersuasive. It does not negate the fact that substantial evidence supports the dependency court’s removal order. The question under the substantial evidence standard of review is not whether there is evidence supporting a different decision, but whether the evidence supports the decision that was made. We are satisfied that there is substantial evidence supporting the dependency court’s decision that removal was needed to protect the children.
Father’s Appeal
Father contends the dependency court’s dispositional orders must be reversed on the ground that the requirements of the ICWA were violated. Mother’s opening brief joins all arguments presented by Father. DCFS concedes that the record does not show ICWA compliance, and proffers that a “limited remand” would be an appropriate remedy to assure that compliance with the ICWA is accomplished. We agree. As a result, the matter will be affirmed and remanded for further proceedings limited to addressing the ICWA issue.
The ICWA is intended to protect the rights of Indian children, and to promote the stability and security of Indian tribes and families. In order to ensure a tribe is given an opportunity to intervene on behalf of an Indian child during a dependency proceeding, the ICWA requires the dependency court –– where there is “reason to know” that an Indian child is involved –– to assure that DCFS notifies the child’s tribe of the proceedings and its right to become involved in the proceeding. (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) Where the specific identity of the tribe cannot be determined, notice shall be given to the Secretary of the Interior. (Ibid.) Notice is a critical component of the ICWA (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267), and a failure to provide notice when required is error. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421-1426; see also 25 U.S.C. § 1914.) When the court has reason to know that an Indian child is involved in a dependency proceeding, the court may not make orders terminating parental rights until it receives proof that the proper Indian tribe or the Secretary of the Interior has been notified of the proceeding, and the tribe has declined to intervene. (In re Desiree F., supra, at pp. 469-473.)
Where, as in the current case, the record on appeal does not show compliance with the ICWA’s notice and return response requirements, the appropriate remedy is to remand the cause to the dependency court to assure that those requirements are satisfied. If, after proper notice has been given, it is determined that the children are Indian children within the ambit of the ICWA, the parents, or the children or any involved tribe may petition the dependency court to vacate its current dispositional orders. (In re Veronica G. (2007) 157 Cal.App.4th 179, 186-188 [a failure to comply with the ICWA’s notice requirements only requires reversal of an order terminating parental rights; the error does not deprive the dependency court of jurisdiction insofar as dispositional orders are concerned].) If proper notice results in a finding that the children do not fall within the ambit of the ICWA, the dependency court’s dispositional orders will remain affirmed.
DISPOSITION
The dependency court’s dispositional orders are affirmed. The cause is remanded to the court with directions to assure that the ICWA’s notice requirements are fulfilled, if it has not already done so.
We concur: RUBIN, J., FLIER, J.