Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JD18718
Bamattre-Manoukian, ACTING P.J.
R.F., mother of the child at issue here, appeals from a juvenile court dispositional order removing the child from mother’s physical custody, continuing the child in her non-relative, extended-family-member home, and ordering reunification services for mother. Mother contends that there is insufficient evidence to support the juvenile court’s jurisdictional findings and orders, that there is insufficient evidence to support the order removing the child from her physical custody, that the court erred in failing to place the child and her older half-sibling in an approved relative’s home, and that the Department of Family and Children’s Services (the Department) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). Although there is evidence in the record to support mother’s representation that she has made substantial progress since the time the child’s half-sibling was removed from her care, we find no error requiring reversal and will, therefore, affirm the juvenile court’s dispositional order.
BACKGROUND
In January 2008, the newborn child was placed in protective custody pursuant to a protective custody warrant due to mother’s mental health issues. Mother had been diagnosed in May 2007, by Michael B. Jones, Ph.D., with an adjustment disorder with depressed mood, a borderline personality disorder, and an antisocial personality disorder, and she was not participating in therapy. Further, the child’s half-sibling A.C. had been made a dependent child of the court in April 2007 because of mother’s mental health and domestic violence issues, and mother had failed to participate in some of her case plan elements. In addition, mother had a criminal history and the whereabouts of the alleged father were unknown.
We take judicial notice of the record in the half-sibling’s related case, A.C. v. Superior Court (Nov. 17, 2008, H033433) [nonpub. opn.].
The Department filed a petition as to the child under Welfare and Institutions Code section 300, subdivisions (b) [failure to protect] and (j) [abuse of sibling] on January 15, 2008, and a first amended petition on January 17, 2008. The juvenile court did not make any ICWA findings when it ordered the child detained following a hearing on January 22, 2008. Mother claimed that there was Cherokee heritage in her family, but the social worker’s detention report stated that the court had previously found that the ICWA did not apply to mother and that the social worker had not been able to contact the alleged father to determine his ICWA status. The court authorized placement of the child in an approved relative or non-relative extended-family-member’s home, and ordered supervised visitation with mother a minimum of two hours, once a week. The child was placed in the same out-of-county non-relative extended-family-member’s home with A.C. on January 22, 2008.
On February 4, 2008, the Department sent ICWA notices to three Cherokee Tribes, the Bureau of Indian Affairs, and to mother. The notices stated that mother claimed Cherokee heritage, and they included the name and birthplace of the maternal grandfather.
The jurisdictional hearing set for February 14, 2008, was continued at the request of the social worker and mother due to allegations of inappropriate conduct on the part of the foster mother that did not impact her foster care license. The court set the matter for a contested jurisdiction/disposition hearing on March 4, 2008. On February 27, 2008, the Department filed a second amended petition as to the child that included additional information on the alleged father.
The matter had to be continued again due to issues relating to mother’s counsel, and on May 5, 2008, the court ordered that the alleged father submit to paternity testing. Because the court had previously ordered that the child’s jurisdiction/disposition hearing be considered together with the 12-month review hearing for A.C., and the matter needed to be placed on the long-cause calendar, the court continued the matter to June 30, 2008. Mother’s counsel informed the court that mother’s relatives who were present at the hearing, who were willing to be a concurrent placement and who had been approved for placement, and who were willing to adopt both children if they could not be returned to mother, were seeking placement of the children with them. Counsel for the Department stated that the children “are both in the same placement right now. It is a non-relative extended family member placement. It also has been assessed and found to be appropriate.” Therefore, the Department was “not recommending a placement move of either of the children. [¶] So if that is, in fact, the issue and it sounds as though it is, then I believe it’s a proper issue for trial, Your Honor.” Counsel for the child stated, “My concern is I don’t think there’s an issue with the proposed placement, but I think the hard time I have is I don’t want to have too many moves with this child. Where I was operating out of, I do agree some of this is an issue for trial. I would have a hard time with saying move the child now and see what happens at trial. I don’t know if it’s safer to see what’s going to happen with trial. I know it’s frustrating because the child is going to be six months soon. I think for me what I would love to see is more time with mom and the child.” Counsel for the Department responded, “I don’t think that [the social worker] would have any objection looking into the appropriateness of relatives’ supervision those visits.”
On March 19, 2008, in a scheduled hearing in A.C.’s matter, the court ordered one of mother’s twice-weekly visits with both children to be in San Jose and the other in Merced where the children resided, and ordered that the 12-month hearing for A.C. be combined with the jurisdiction/disposition hearing for the child at issue here. (A.C. v. Superior Court, supra, H033433.)
The relatives are cousins of the maternal great-grandmother, or mother’s second cousins.
The social worker’s report and addendums for the child’s jurisdiction/disposition hearing recommended that the section 300 petition be sustained, that the child continue to be placed in the non-relative extended-family-member’s home, and that mother receive reunification services. The social worker had received responses from the three Cherokee Tribes, all stating that the child was not eligible for membership in the tribes. Mother wanted both her children placed with her or with her relatives. Mother was demonstrating “marginal progress” in the case plan ordered regarding A.C. She had stopped going to therapy in early March 2008 without informing the social worker or asking for financial assistance to continue it. She tested positive for opiates (hydrocodone) one time, on March 26, 2008, and claimed it was due to her having taking Vicodin prescribed for her after the child’s birth. She had a black eye when she arrived for visitation with the children on April 16, 2008, explaining that she had been assaulted and robbed at a light rail station parking lot the night before, but had not reported the incident to the police. She had a reported recent lack of participation in her Parenting Without Violence group. The child was bonding with A.C., and separating them in order to place the child with mother’s relatives “was not in either child’s best interest and would likely be detrimental to both girls’ emotional wellbeing. Furthermore, to remove [A.C.] from this [non-relative extended-family-member’s] family in which she had been placed for... more than half of her young life, would be devastating emotionally for the child and could potentially have long term effects.” “For the time being, it is in [the child’s] best interest to remain where she is and to insure that the mother... receive ample visitation with [the child].”
The combined hearing was held over eight days between July 1 and July 17, 2008. Dr. Martin Williams, a licensed psychologist, testified on mother’s behalf, and his report was admitted into evidence. Before testing and interviewing mother at her family’s request, Dr. Williams interviewed various family members, and reviewed Dr. Jones’s evaluation and the various police and social workers’ reports given to him by the family members. All family members Dr. Williams interviewed agreed that mother had no history of intentional or obvious child endangerment. Mother had been suffering from postpartum depression and had been living in an allegedly abusive relationship when she did the things that brought her to the attention of the police. When Dr. Williams evaluated mother, she was no longer taking medication for depression and her manner and her test scores indicated that she was not depressed.
Dr. Williams interviewed and conducted MMPI-2 and MCMI-III tests with mother in February 2008. Although Dr. Jones found the MMPI-2 test he conducted with mother to be invalid because mother was concealing problems, Dr. Williams found the test he conducted to be valid. Based on his MMPI-2 test, Dr. Williams found that mother did not suffer from “a diagnosable, treatable condition along the lines of the depressive disorder, anxiety disorder, psychotic disorder, [or] bipolar disorder.” Therefore, Dr. Williams did not find any psychiatric disorder that would make mother an unfit parent.
The MMPI-2 is the Minnesota Multiphasic Personality Inventory, second revision. The MCMI-III is the Millon Clinical Multiaxial Inventory, third revision.
Dr. Williams also found the MCMI-III test he conducted to be valid. Using that test Dr. Williams found mother to have a histrionic personality disorder, “which is an approach to life characterized by emotionality, possibly attention seeking, dependency.” However, such a disorder does not affect a person’s parenting ability and the test did not show that mother had an antisocial or borderline personality disorder as Dr. Jones found. Dr. Williams believes that his findings are different from Dr. Jones’s findings because Dr. Jones seemed to give more weight to mother’s records, whereas Dr. Williams gave more weight to mother’s psychological testing. In addition, Dr. Jones placed a great deal of weight on the “[s]pousal abuse risk assessment guide,” which Dr. Williams considered inappropriate for use with mother. As the test is marketed by the test publisher as a method for assessing possible violence by men toward women, it was inappropriate for Dr. Jones to use mother’s test results to predict possible violence by mother toward her children.
The social worker assigned to A.C.’s case in April 2007, testified that A.C. was detained due to mother’s instability and her history of being a victim of domestic violence while A.C. was present. Mother’s case plan included a parent orientation, a 52-week parenting-without-violence program, counseling to address domestic violence and childhood issues, a psychological evaluation, a medication evaluation, random drug testing, a drug and alcohol assessment, and a domestic-violence support group. Mother has a history of intermittent compliance with her case plan. She completed her parent orientation, her psychological evaluation, and her drug and alcohol assessment, and she was drug testing. Her supervised visits were increased, and the social worker had been looking to change the visits to unsupervised. Mother completed a domestic-violence-victims support group program and two advanced domestic-violence-victims support group programs, and the most recent evaluation states that mother did make some progress in the classes. Mother participated in her 52-week parenting-without-violence program, but missed classes and made slow progress. She started counseling late, then stopped going to her therapist and did not restart with a new counselor until some time later.
A.C.’s social worker changed her recommendation from continuing services for mother regarding A.C. to terminating services after she learned that mother stopped going to counseling again in March 2008. Mother did restart counseling in early May 2008. However, mother had a positive drug test one time for opiates on March 26, 2008, although she claimed that she had been consistently taking Vicodin which was prescribed for her in January after the birth of the child at issue here. Mother missed drug tests or tested on incorrect dates 13 or 14 times prior to June 30, 2008, and these are all considered administrative positive drug tests. Mother took about a month to give the social worker the visitation plan, which included her safety plan, that mother needed to provide before she could move from supervised to unsupervised visitation. Mother did not make a police report about the April 2008 mugging incident. The social worker later learned that mother claimed that she was mugged by a gang member during the April 2008 incident, but mother did not report this to the social worker at the time. Mother’s response to the incident showed that when mother had an opportunity to follow her safety plan, she did not do so. The facilitator of mother’s 52-week parenting-without-violence program reported to the social worker that mother was starting to “backslide.” She advised the social worker not to move mother to unsupervised visits. The facilitator has also recommended that mother take follow-up classes.
A.C.’s social worker agrees with some aspects of Dr. Williams’s evaluation, but does not agree with his opinion that mother does not have an antisocial personality disorder. The social worker also has some concerns about Dr. Williams’s evaluation, as she was not able to discuss mother with him and she thinks that mother’s family members gave him biased information.
Mother testified that in November 2006, she was arrested for assault and resisting arrest at A.C.’s father’s home when she refused an officer’s request to step out of her car while A.C. was in the car and then resisted arrest. She pleaded no contest to the resulting charges and she and A.C.’s father ended their relationship. There have been no incidents of domestic violence since that time. She is still on probation because she has not received a certificate for completing her parenting-without-violence class. The facilitator of the class told her in May 2008 that she needs to return for a final test session in order to complete the program. Although she has an outstanding balance of about $260 for the program, a payment plan was set up for her. She has otherwise complied with her probation conditions. She tested positive for Vicodin in March 2008 because she was taking it for the cramps she felt after having an IUD inserted. She has not been able to track down the doctor who performed the procedure in order to obtain the requested documentation for the prescription. She stopped going to therapy in early March 2008, but returned in May 2008 after receiving funding for the therapy.
In her domestic violence classes she learned about the different types of domestic violence, the cycle of violence, boundaries, and the signs of a potential abuser. She also learned about parenting her children. She developed a safety plan during her advanced support group sessions. The first step of her plan is that she should call the police if she is the victim of an assault. However, when she told her advanced support group about the April 2008 mugging incident, they all agreed with her decision to not call the police because she thought the assailant was a gang member.
Mother initially testified that she was involved in a dating relationship with the alleged father in April and May 2007 and that he was the only person who could possibly be the child’s father. When the court and mother were advised by the social worker that the paternity test results indicated that the alleged father was not the child’s biological father, mother then testified that around March 2007, she had intimate relations with a man she met at a birthday party on the same night she met him. She has not seen the man since that night, but the man might be the father of the child.
When the child was born, mother expected to be able to take her home even though she earlier was unsure what she wanted to do. She was devastated when she learned of the removal because she thought that she was complying with her case plan for A.C. Because mother wanted a new psychological evaluation, her family hired Dr. Williams to evaluate her. In March 2007, when she was evaluated by Dr. Jones, she was sad, confused, angry, and upset. She did not want to cooperate with Dr. Jones and did not feel comfortable with him. Since that time, she has tried to work on her case plan and has been doing very well. She cooperated with Dr. Williams for his evaluation and did not feel uncomfortable with him.
She would like to have both of her daughters returned to her. She does not believe that she would have any substantial difficulties in caring for both of them. She plans to move to Fremont where she has a Section 8 housing voucher, more job opportunities, and available daycare. She has a support system in place that includes her extended family members.
Dr. Jones testified that he was asked in May 2007 to evaluate mother’s mental and emotional functioning and her ability to establish and maintain healthy relationships and to not involve A.C. in domestic violence. He was also asked what services he felt mother may benefit from to support reunification with A.C. He talked to the social worker, mother, and her family members. The tests he administered to mother indicated that she was not being completely honest with him. He used the child abuse potential inventory, the MCMI, the MMPI, and the spousal assault assessment guide. Although the spousal assault risk assessment guide is “normed” on men, it is still predictive of future violence when used on women. Even if he eliminated the findings of the spousal assault risk assessment guide, his overall findings would not change.
Dr. Jones found mother to have mild depression due to removal of A.C., the involvement of the Department, A.C.’s placement in a non-relative home, and their minimal contact. He also found mother to have borderline personality disorder and antisocial personality disorder. Mother has a history of problems with school, aggressive behavior toward family members and lying that started before the age of 15. Based on his diagnosis, and depending on the stated goals, individual therapy would be a long process for mother.
In Dr. Jones’s opinion, there were problems with Dr. Williams’s evaluation. Although Dr. Williams made some legitimate criticisms of Dr. Jones’s evaluation, Dr. Williams’s evaluation reads like a rebuttal to that evaluation rather than like a stand-alone clinical evaluation. Dr. Williams’s evaluation does not include the general observation and background information that a typical psychological evaluation includes. It does not include descriptions of the test results or mother’s clinical history; it just includes Dr. Williams’s conclusions. In addition, Dr. Williams did not address the risk factors that are crucial to an assessment of risk, and did not address mother’s history of violence, her history of substance abuse, or her exposure to domestic violence as a child.
The child’s social worker testified that the child was placed in protective custody shortly after her birth in January 2008 due to mother’s history with A.C. and mother’s failure to participate fully in her service plan for A.C. The social worker learned that mother had dropped out of therapy in October 2007. She advised mother to address in individual therapy issues regarding her relationship with her mother, her feelings of depression due to being separated from her children, and her problems controlling her anger. When she learned that mother had dropped out of therapy again, and asked mother about it, mother stated that she did not need therapy. She also stated that she needed assistance in paying for the therapy, so the Department is now paying for mother’s therapy. The social worker called Leonard Norwitz, mother’s therapist, to express her concerns about mother. Norwitz told the social worker that he would let her know when mother made a new appointment.
When Norwitz talked to the social worker in May 2008, he told her that he thought the therapy was productive, that he did not think that mother was suffering from depression, but that he was concerned about mother’s version of the April 2008 incident that resulted in her having a black eye. The social worker is concerned whether or not mother is being honest with her and with Norwitz. The information that various service providers and mother’s probation officer gives her does not always match what mother tells her or what mother has testified to. In her opinion, mother still suffers from depression, and mother would be prone to not seek help if she needed it if the children were returned to her because she would not want to jeopardize their return. However, the social worker thinks that mother has made some progress in her treatment program and mother’s interactions with the child during visits have been appropriate.
The social worker reviewed Dr. Williams’s evaluation of mother and she thinks that the evaluation is biased because, although Dr. Williams interviewed mother and her family, he did not review all of mother’s court and mental health records. Dr. Williams should have asked for more information before doing his evaluation. The social worker believes that Dr. Jones’s report more accurately “fit[s] with the person that [she] know[s] as” mother. Mother “has a pervasive pattern of behavior that violates the social norms. That’s basically antisocial personality disorder.”
The child has been placed in the same out-of-county non-relative extended-family-member home since January 2008. When the social worker visited the home in June 2008, the child had gained a lot of weight since the previous visit and was happy. The child is developmentally on target. She should remain in that placement because she would still be at risk if she were returned to mother. Although mother’s relatives were assessed as an appropriate placement, A.C. has already been with the same family for well over a year and is attached to them. The Department’s sibling protocol is to keep siblings together, so moving the child would also mean having to moving A.C., which would be detrimental to her.
Leonard Norwitz testified that he began seeing mother in January 2008. He saw her seven to eight times before a scheduled court hearing in early March 2008, after which she cancelled some appointments. He did not see anything during those early sessions to corroborate Dr. Jones’s report that mother has either a personality disorder or a depressive disorder of some kind. A letter he sent to the court at the end of February 2008 stated that mother “presents as a thoughtful, engaging person who discusses her past behavior and present circumstances with hardly a trace of defensiveness or obfuscation.... [Mother] has learned to ‘let stuff out a little at a time’ in appropriate ways to head off sudden explosive responses. Our interviews continue to support this, as evidenced by her responses to sensitive subjects and her reports of a peculiarly defensive position taken by the principal social worker in the case.”
The letter was entered into evidence as exhibit No. 4.
When mother began coming to see him again in early May 2008, he was surprised to learn that there had been no change in the disposition of her case. Mother told him that she was benefiting from her case plan.
Mother told Norwitz that she had postpartum depression after the birth of A.C. but not after the birth of this child. Mother said that she “was given to outbursts” “[o]n occasion” up until the previous year. She told him about her April 2008 mugging incident. He does not remember mother’s explanation of how she handled the matter other than it was not what he would have done and not what her social workers expected her to do. Mother is distrustful of her social workers.
Norwitz considered Dr. Williams’s report as one responding to Dr. Jones’s report rather than as a general evaluation. Dr. Williams’s conclusions coincide with Norwitz’s own because he and Dr. Williams saw mother at different stages of the dependency proceedings than when Dr. Jones saw her. “[I]f you’re seeing somebody that’s really depressed or miserable, it’s quite possible that later they might not be.” He has told mother’s social workers that he could find no evidence that mother is depressed and mother states that she is not currently in a domestic violence relationship. He believes mother needs additional counseling only until her children’s cases are resolved or if they are not returned to her. He does not believe mother needs counseling to help her to not act out in ways that would be harmful to her children. He does not believe that mother would pose any danger to her children if they were returned to her.
Mother’s relative R.M. testified that she attended meetings with mother, other family members, and the social workers in February 2008. R.M. and her husband wanted to be considered as a placement for both children. When mother raised her concerns about the foster mother’s inappropriate conduct, the meeting was stopped, which means that the decision about where to place the child was delayed.
After all the witnesses testified, counsel for the Department argued that it met its burden of showing that there is clear and convincing evidence that there is a substantial danger to the child’s physical health, safety, protection, or physical or emotional well-being if she were to be returned to mother’s care, and that there is no way to protect the child without removing her. Mother has not consistently complied with all aspects of A.C.’s case plan, particularly with drug testing, individual therapy, and counseling. In addition, mother’s credibility has been undermined because her testimony in court is inconsistent with police and social workers’ reports. Counsel for the child argued that the child should be returned to mother, as mother does not pose an immediate and substantial risk to the child if the child were returned to her care. “The [child] placed with her under family maintenance would not remove the Department from their watchful eye. They will be monitoring her situation. This court would still have power, in fact, over the child. And I think that there is not a substantial risk of her caring for her daughter.” Mother’s counsel argued that the child should never have been removed from mother’s care, that there is not a substantial risk of detriment if the child were to be returned, and that mother should have the child returned to her without the court taking jurisdiction over the child. The court took the matter under submission.
The court filed its order after the contested hearing on August 26, 2008. In relevant part, the court found the allegations in the second amended petition to be true and adjudged the child to be a dependent child of the court. The court found by clear and convincing evidence that the welfare of the child requires that she be removed from mother’s custody, as there is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child if the child were returned home, and that there are no reasonable means by which the child’s physical health can be protected without removing the child from mother’s custody. The court ordered that the child’s placement in the non-relative extended-family-member’s home continue, and that mother be given reunification services. Mother’s service plan was to include a certified 52-week child abuser’s treatment program, with completion of the program mother began with A.C. to satisfy this requirement; a program of counseling or psychotherapy that addresses issues of the impact of domestic violence on the child, self-esteem, and healthy anger; random testing for alcohol and/or controlled substances; a domestic violence victims’ group; and supervised visitation a minimum of two times per week for two hours.
Mother filed a notice of appeal on September 12, 2008.
DISCUSSION
Sufficiency of the Evidence
Mother first contends that there is not sufficient evidence to support the court’s jurisdictional findings. She argues that “the sustained allegations were not supported by substantial evidence that, at the time of the jurisdictional hearing, [the child] was at substantial risk of suffering serious physical harm or illness.” “[T]here was an inadequate showing presented at jurisdiction that the mother’s prior psychological condition, even if accurate, currently posed a substantial risk of harm to [the child], or that it would in the future.” “The record does not support a finding that the mother in the instant case had a substance abuse problem, let alone that the positive test for Vicodin coupled with the administrative positive tests posed a substantial risk of harm to [the child].” “By the time of the contested jurisdiction/disposition hearing in July [2008], the issues that had led to A.C. becoming a dependent child of the court had been resolved.” In addition, the allegations pertaining to mother’s criminal history and that the whereabouts of the father were unknown were “not alone sufficient to prove detriment to the child[].”
Mother also contends that, “even if jurisdiction was warranted, out-of-home placement was unnecessary. The circumstances existing at the time of the dispositional hearing presented no substantial danger to the physical health, safety, protection, or physical or emotional well-being of [the child] or A.C. should they have been returned home.”
The Department contends that the “circumstances which support jurisdiction here may not be overwhelming, but when the reviewing court gives the juvenile court’s factual findings the deference they are due, and bears in mind that the purpose of dependency is to protect children at risk, there is substantial evidence to support the court’s jurisdictional findings.” And, “[t]he same evidence used to establish jurisdiction also provided the necessary foundation for the juvenile court’s finding that [the child] could not be returned home safely.”
The burden of proof is different at the jurisdictional and dispositional phases of a juvenile dependency hearing. The truth of the allegations of a petition must be found by a preponderance of the evidence. (In re S.O. (2002) 103 Cal.App.4th 453, 461; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) At the dispositional phase, the court must find clear and convincing evidence justifying removal of the child. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654; Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 248.) But even where the burden of proof is by clear and convincing evidence, the reviewing court’s duty is only to determine whether substantial evidence supports the juvenile court’s findings. (In re Kristin H., supra, 46 Cal.App.4th at p. 1654.)
“Under the substantial evidence rule, we have no power to pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or determine where the weight of the evidence lies. Rather, we ‘accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact. [Citation.]’ [Citation.]” (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) “ ‘We review a cold record and unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses.’ ” (In re Luke M. (2003) 107 Cal.App.4th 1412, 1427.) “All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible. Where there is more than one inference which can be reasonably deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact.” (In re Katrina C. (1988) 201 Cal.App.3d 540, 547; Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 600.) We must uphold the juvenile court’s findings “unless it can be said that no rational factfinder could reach the same conclusion.” (In re Heather B. (1992) 9 Cal.App.4th 535, 563.)
Mother first challenges the juvenile court’s finding that the child is a dependent child of the court under the provisions of section 300, subdivisions (b) and/or (j). The court could properly find that the child is a dependent child if the record showed: (1) “The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent... to adequately supervise or protect the child,... or by the inability of the parent... to provide regular care for the child due to the parent’s... mental illness,... or substance abuse” (§ 300, subd. (b)); and/or (2) “The child’s sibling has been abused or neglected, as defined in subdivision... (b),... and there is a substantial risk that the child will be abused or neglected, as defined in [that] subdivision[]” (§ 300, subd. (j)). “While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.)
A.C. was removed from mother’s care in January 2007 due to mother’s history of mental health, domestic violence, and substance abuse issues, and A.C. was made a dependent child of the court. We previously found that mother’s case plan appropriately addressed the circumstances that brought A.C. to the attention of the Department. (A.C. v. Superior Court, supra, H033433.) The child at issue here was removed from mother’s care in January 2008, and the jurisdiction/disposition hearing was held in July 2008 together with the 12-month review hearing for A.C. By that time, as part of her case plan for A.C., mother completed a domestic violence support group program and two advanced domestic-violence-support group programs. She also participated in her 52-week parenting-without-violence program, but did not complete the program because she did not return for her final test session and she has an outstanding balance due. She stopped her original therapy program, and started counseling with Norwitz some time later. However, after a few sessions, mother stopped going to see Norwitz without informing her social workers or Norwitz that she did so due to financial problems, and did not restart counseling for two months. Mother failed to drug test on the days she was ordered to test 13 or 14 times, which constitutes administrative positive tests. Although mother usually tested the day after she was ordered to test, to do so destroys the randomness of the tests. Mother’s visits with the child and A.C. were still supervised because mother failed to timely provide the social workers with her visitation plan, and the facilitator of mother’s parenting-without-violence support group recommended that mother not be given unsupervised visitation. Mother could not document the reason she tested positive for Vicodin in March 2008. In addition, after the incident with a gang member in April 2008, mother did not follow through on the safety plan she had devised earlier in her case plan and her social worker found that “[t]he implications of this speak[s] volumes in terms of her ability to protect her two daughters.” This record amply supports the juvenile court’s finding that the child’s sibling was abused or neglected as defined in section 300, subdivision (b), and that there was a substantial risk that the child would also be abused or neglected within the meaning of that section. (§ 300, subd. (j).) Accordingly, we will not set aside the juvenile court’s jurisdictional findings.
A dependent child may not be removed from the physical custody of his or her parents “unless the juvenile court finds clear and convincing evidence” that there “is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s... physical custody.” (§ 361, subd. (c)(1).) “Case law, while not discussing the issue explicitly, appears to interpret paragraph (1) of section 361(c) to require a threat to physical safety, not merely emotional well-being, in order to justify removal. [Citations.]” (In re Isayah C. (2004) 118 Cal.App.4th 684, 698.) However, “[a] removal order is proper if it is based on proof of parental inability to provide proper care for the minor and proof of a potential detriment to the minor if he or she remains with the parent. [Citation.] The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child. [Citations.]” (In re Diamond H., supra, 82 Cal.App.4th at p. 1136.)
In this case, by the time of the child’s jurisdiction/disposition hearing in July 2008, the child’s half-sibling A.C. had been out of mother’s custody for 18 months, but mother had not successfully completed her case plan. She had not completed her 52-week parenting-without-violence program, she had twice stopped and restarted counseling, she had numerous administrative positive drug tests, and she had not been able to move from supervised to unsupervised visitation. Because of this, and the other conduct by mother during the reunification period that we discussed above, such as mother’s inability to document the reason for the March 2008 positive drug test and her failure to follow through on her devised safety plan after the April 2008 mugging incident, the juvenile court found that return of A.C. to mother’s care would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of A.C., and this court found that the record supported the juvenile court’s findings and order. (A.C. v. Superior Court, supra, H033433.) Although there is evidence in the record to support mother’s representation that she has made substantial progress since the time the child’s half-sibling was removed from her care, we find that the record also amply supports the juvenile court’s finding that there would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child if she were returned to mother’s physical custody.
Placement of the Child
Mother contends that the court erred in failing to place the child and A.C. with her relatives. “The mother is aware that the relatives who were pre-approved for placement of [the child] do not qualify as a ‘preferred’ relative placement within the meaning of section 361.3. She nevertheless argues that the legislative sentiment of preferring a relative placement over a non-relative placement still applies, and the circumstances of this case merited placement of [the child] and her sister in the relative placement home.”
By its provisions, section 361.3 requires the Department to give “preferential consideration” “to a request by a relative of the child for placement with the relative.” (§ 361.3, subd. (a).) Although “relatives” is defined as all relatives within the fifth degree of kinship, the only relatives who are given “preferential consideration” for the placement of the child are adult grandparents, aunts, uncles, and siblings. (§ 361.3, subd. (c)(2).) “ ‘Preferential consideration’ means that the relative seeking placement shall be the first placement to be considered and investigated.” (§ 361.3, subd. (c)(1).)
“The relative placement preference, however, is not a relative placement guarantee.” (In re Joseph T. (2008) 163 Cal.App.4th 787, 798.) “The overriding concern of dependency proceedings... is not the interest of extended family members but the interest of the child. ‘[R]egardless of the relative placement preference, the fundamental duty of the court is to assure the best interests of the child, whose bond with a foster parent may require that placement with a relative be rejected.’ (In re Stephanie M. (1994) 7 Cal.4th 295, 321.) Section 361.3 does not create an evidentiary presumption that relative placement is in a child’s best interests. (7 Cal.4th at p. 320.) The passage of time is a significant factor in a child’s life; the longer a successful placement continues, the more important the child’s need for continuity and stability becomes in the evaluation of her best interests. (Id. at p. 319.)” (In re Lauren R. (2007) 148 Cal.App.4th 841, 855; see also In re Jessica Z. (1990) 225 Cal.App.3d 1089, 1100.) “[W]hen a court has made a custody determination in a dependency proceeding, ‘ “ a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].” ’ [Citations.]” (In re Stephanie M., supra, 7 Cal.4th at p. 318.)
In this case, although mother and the relatives requested that the child be placed with the relatives (see § 361.3, subd. (a)(2)) and the relatives were willing to adopt the child should reunification be unsuccessful (see id., subd. (a)(6)), the relatives did not have a relationship with the child (see ibid.) and the child had been in same non-relative extended-family-member’s home with her half-sibling for over six months (see id., subd. (a)(4)). The child was healthy and happy in that home, and that family was looking to adopt the child, as well as A.C., should reunification with mother be unsuccessful. Moving the child would also mean moving A.C. from the home in which she had spent over one-half her life, and in which she was also thriving. On this record, the court could properly find that continuation of the child’s placement with the non-relative extend-family-member’s family was in the best interests of the child (see id., subd. (a)(1); In re Stephanie M., supra, 7 Cal.4th at p. 321.) We will not disturb the court’s decision.
ICWA
Mother contends that reversal is mandated because the Department failed to provide adequate ICWA notice. “In the instant case, the JV-135 form submitted to the tribes listed the name of only one individual, the maternal grandfather. The maternal grandfather’s birth date and contact information were not provided. The mother was raised by the maternal great-grandparents from the time that she was four months old and continued to live with them until she was 18. The record reflects that social workers employed by the Department knew the names of the maternal great-grandparents and had contact information, including address and phone, for them.” “The record is also replete with numerous references to the maternal grandmother, yet her name does not appear on the JV-135 form.”
Both the court and the Department have “an affirmative and continuing duty to inquire” whether a child for whom a section 300 petition has been filed is or may be an Indian child. (§ 224.3; In re Nikki R. (2003) 106 Cal.App.4th 844, 849; In re N.E. (2008) 160 Cal.App.4th 766, 769.) An Indian child, within the meaning of the ICWA, is a child who is either a member of an Indian tribe, or is eligible for membership and is the biological child of a member. (25 U.S.C. § 1903(4); § 224.1, subd. (a).) Where a state court “knows or has reason to know” that an Indian child is involved in a section 300 proceeding, statutorily prescribed notice must be given to all tribes of which the child may be a member or eligible for membership. (25 U.S.C. § 1912(a); § 224.2, subd. (a)(3); In re Samuel P. (2002) 99 Cal.App.4th 1259, 1264.)
“The failure to comply with the notice requirements of the ICWA constitutes prejudicial error unless the tribe has participated in or indicated no interest in the proceedings.” (In re Samuel P., supra, 99 Cal.App.4th at p. 1265.) Where the notice fails to include information on the person who is alleged to be the source of Indian heritage, the notice is inadequate because “the tribes could not conduct a meaningful search with the information provided.” (In re S.M. (2004) 118 Cal.App.4th 1108, 1116.) “Notice is meaningless if no information or insufficient information is presented to the tribe.” (Ibid.)
As we stated in A.C. v. Superior Court, supra, H033433, “In this case, mother informed the social worker at the beginning of [A.C.’s] proceedings that the maternal grandfather was 25 percent Cherokee. The maternal grandmother also participated in at least part of the proceedings and was in contact with the social worker. The ICWA notice [for A.C.] listed the maternal grandfather’s name, place of birth, and tribe, but gave no further information about him. The Department contends that ‘there is no indication’ that mother and the maternal grandmother ‘had any relevant information about the maternal grandfather.’ The social worker’s reports indicate that mother was removed at the age of eight months from the maternal grandmother’s care due to domestic abuse by the maternal grandfather. No other information about the maternal grandfather is in the record, so we cannot say that either the mother or maternal grandmother could provide additional indentifying information about the maternal grandfather. Nor has... mother... stated... what additional information is available to the Department that was not included in [A.C.’s] ICWA notices. Accordingly, we cannot say that the ICWA notice regarding the maternal grandfather in this case was deficient.” Mother has not shown that reversal of the juvenile court’s dispositional order as to the child at issue here on the record before us is warranted in this case.
DISPOSITION
The dispositional order of August 26, 2008, is affirmed.
WE CONCUR, Mcadams, J., duffy, J.