Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD224602, JD224603, JD224604, JD224605, JD224606, JD224607, JD224608, JD224609
BUTZ, J.
Appellants Bruce M. (father) and Louise M. (mother) of minors J.M., H.M., B.M., M.M., Je.M., Bk.M., Jn.M., and A.M. (the minors), appeal from orders of the juvenile court adjudging the eight minors dependent children of the court and removing them from parental custody. (Welf. & Inst. Code, §§ 360, subd. (d), 395.) Appellants make multiple contentions of alleged prejudicial error, including a claim that the juvenile court and Department of Health and Human Services (DHHS) violated the notice requirements of the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. § 1901 et seq.) Finding no prejudicial error, we shall affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On October 6, 2006, DHHS filed amended juvenile dependency petitions pursuant to section 300 on behalf of each of the eight minors, then ranging in age from 1 to 13 years old. Those petitions alleged the minors had suffered, or there was a substantial risk they would suffer, serious physical harm, due to the failure of appellants to supervise the minors and to provide the minors with adequate food, clothing, shelter, or medical treatment. Each petition averred in part that appellants had failed to “provide adequate care, support, and supervision for the children, in that on or about July 17, 2006, the children . . . were found by law enforcement to be living in a substandard motor home in a business parking lot. [Appellants] left the children without parental supervision for over three hours. The motor home reeked of mildew and sewage and contained no food. In addition, the motor home was filthy and there was liquid waste matter flowing out of the motor home and overflowing into the parking lot. There were feces on the bathroom floor.”
The record omits the amended petition filed on behalf of one of the minors, Jn.M. However, the record does contain an original petition filed on behalf of that minor. Accordingly, we construe that petition as being amended consistently with the other seven amended petitions.
The petitions also contained two allegations pertaining to a history of domestic violence shared by appellants. According to the petitions, father was on probation for a conviction on domestic violence charges, and appellants had engaged in domestic violence in the presence of the minors.
In its detention report, which was before the juvenile court, DHHS stated the minors were “left alone without parental or adult supervision” at night. Moreover, the weather was “100 degrees plus,” and the minors “stated they had not eaten for several hours and were hungry, and did not know where [appellants] were.” A.M. indicated to a social worker the family lived in a motor home on El Camino Avenue in Sacramento County, and had been at that location for three or four days. According to A.M., as the battery had been stolen, the motor home lacked running water and electricity. A.M. also stated father had left two weeks earlier and that the family did not know his whereabouts. A.M. reported there was food in an ice chest. She told the social worker that, on the evening in question, mother had left the minors to run errands, and to “look for [A.M.’s] father.” When mother was gone, A.M. watched her siblings.
According to sheriff’s deputies’ reports, A.M. told authorities that mother had left an hour earlier to run errands. Jn.M. told deputies that father had been gone for two days and mother had left the motor home three hours previously, telling the minors she would look for father. Jn.M. did not know where either mother or father were and she had “no way of getting ahold of them if [she] needed them in an emergency.” Moreover, Jn.M. did not know when either parent would return. Jn.M. had eaten three hours earlier. She told authorities the minors were “going to eat some crackers that were in the motor home for dinner.” Jn.M. also stated that she and A.M. were the oldest and took care of their siblings when appellants were away.
Je.M. told authorities that mother had left prior to lunchtime to buy some food, and had not returned. According to Je.M., “[d]inner would have consisted of cheese and crackers.” Je.M. also reported that, although the minors always ate three meals daily, the meals sometimes were small. She stated the minors tried to fill their stomachs with “bread and crackers.”
In the report prepared for the jurisdictional hearing, which also was considered by the juvenile court, mother told DHHS that father had left the family two weeks previously. She first described father as “a crack-cocaine addict.” Mother later retracted that statement. Mother stated she disagreed with the decision by law enforcement to remove the minors from her custody, and that she believed the minors’ “basic needs” were being met. Mother told the social worker that since 1994, there had been no domestic violence in the household.
According to the report, father told DHHS the motor home leaked, but that it was gray water leaking, rather than sewage. Father denied any substance abuse after 1991. He also denied there ever had been domestic violence between mother and himself.
Bk.M. told DHHS the toilet in the motor home worked--“it was just full”--and that the family obtained water from a spigot outside. Bk.M. also stated the minors did not go hungry, as they ate noodles, crackers, sandwiches, and tacos. Bk.M. was missing several front teeth, telling the social worker he had missed a dental appointment last year.
The social worker’s report provided a description of the motor home and its contents supplied by the sheriff’s department. The motor home was 24 feet long and approximately 10 feet wide, with just two beds inside. It smelled “of urine and rotting food.” A yellow fluid “that smelled like urine” dripped from the motor home, overflowing into the parking lot. Inside the ice chest, located in the passenger section of the motor home, was “‘some brown lettuce and watermelon floating in water as well as mayonnaise that was turning yellow and beginning to smell rancid.’” The refrigerator contained only some mustard bottles. Authorities discovered some packaged noodles and canned food in a bathroom compartment, where there were dirty diapers and feces on the floor and toilet seat.
Two uncles of the minors told DHHS that father had a history of leaving the family, then reappearing. Father was on probation in connection with a 1998 battery conviction to which mother was the victim. The social worker’s report also reflects several referrals to DHHS pertaining to the family, which included findings of physical abuse of A.M., that the minors were “extremely dirty,” and that father’s whereabouts were unknown.
At the November 1, 2006 jurisdictional hearing, Jn.M. testified there was sufficient food in the motor home, mother had provided the minors with a spray bottle to cool themselves, the toilet had not overflowed, and there were no feces on the bathroom floor. According to Jn.M., mother bought food every two days, which they stored in two ice chests. Jn.M. also testified they would not open the door for law enforcement, as mother had told the minors not to open the door for anyone. Jn.M. also told the juvenile court that mother had left A.M., who was 13 years old, in charge, and that mother was gone for about an hour.
A.M. testified the motor home did not smell of sewage, she watched her siblings twice weekly during the day for about an hour, and that there was food in the motor home.
Mother told the juvenile court that she and the minors had been in the motor home for five days, there was food in the motor home when the minors were detained, she had been gone not more than one hour and 15 minutes, purchasing food, and that A.M. had supervised the siblings in the past without incident. However, mother acknowledged that A.M. could not reach her by telephone.
Mother testified that, when she left the motor home on the day in question, it was clean, with no rotting food or leaking sewage, and the toilet was working properly. Although she did not believe she had done anything improper, mother was willing to participate in reunification services. Mother also testified she was living now in a three-bedroom motel, and that she would not be returning to the motor home. Moreover, mother asserted, she asked for, but had not obtained, an evaluation by DHHS of a transitional home into which she had moved temporarily after leaving the motor home. She acknowledged, however, that she had not provided DHHS with her current address.
Social worker Matt Pendergast testified he had not seen the motor home, nor had he evaluated mother’s current residence. Pendergast was unaware of any domestic violence incidents in the household since 1998. The social worker also stated that DHHS had made efforts to assist the family in locating housing.
Appellants reported they had Blackfeet and Cherokee Indian heritage in their families. In response, the juvenile court ordered DHHS to send both the Blackfeet and Cherokee Indian tribes notices of the dependency proceedings. Thereafter, DHHS sent notices of the proceedings to the Blackfeet Tribe of Montana and to the Eastern Band of Cherokee Indians, Cherokee Nation of Oklahoma, United Keetoowah Band of Cherokee Indians, and to the Bureau of Indian Affairs (BIA). DHHS received replies or return receipt cards from each of those entities. At the November 1, 2006 jurisdictional hearing, after reviewing the documents in the record pertaining to the matter, the juvenile court found the tribes received proper notice under the ICWA and concluded the minors were not Indian children within the meaning of the ICWA.
At the conclusion of the jurisdictional hearing, the juvenile court dismissed the allegations pertaining to domestic violence but sustained the amended petitions as to the allegations of neglect of the minors. The court stated in part: “I think what happened here is that the children were left unattended for a substantial period of time. You have a 13-year-old in charge of seven kids, four of which were five and under, in significantly unsanitary conditions. There was no running water, no electricity, the kids said in the report there was no way to get ahold of the mother or father. The father had actually effectively abandoned the kids for some period of time, so much so that the mother had to file a missing person’s report for him. So he left the kids in a very bad situation. [¶] Some of the kids right after protective custody were found with dirty clothing and foul [odor] which supports the unsanitary conditions. And [Bk.M.] said--page 5, [Bk.M.] had said that mom had done this before, that is left to go and look for the father and look for food which is partly what happened here. [¶] Law enforcement reported that the RV smelled of urine, sewage, the toilet was backed up. The mom depends on [father], yet he left and his whereabouts were unknown. There’s a previous history of this happening before. On page--it was in 1999 on page 34 it talks about something similar to this happening before.”
As for disposition, the juvenile court adjudged the minors dependent children and ordered them removed from parental custody. In doing so, the court stated in part: “[I] think at this moment in time it’s--there’s a substantial risk to the kids if they’re returned to either of the parents or both of the parents because I’m convinced that at this point based on what I’ve heard from the parents and their statements that they have a ways to go to learn how to protect the kids, how to properly supervise the children, how to make sure they live in a safe environment and their diligence in making sure this situation doesn’t rise up again. I’m afraid that if I return the kids today, and I think this is a case where reunification will occur hopefully pretty soon, but if I returned [the children] today, in a short period of time we would be down the same road that caused the situation in July. That’s my main concern because the parents don’t seem to think there was any lapse in judgment or lack of supervision, so I think with services to learn about parental responsibilities and about proper supervision and about protecting the children, I think gaining that knowledge would then make it a safe environment for the kids to go back into. So at least for a short period of time the kids have to remain out of home while the parents engage in services, cooperate with those services and the likelihood of this happening again will be very low.”
As to visitation, the juvenile court granted appellants “regular visitation with the children, as frequent as is consistent with the well-being of the children. DHHS shall determine the time, place and manner of visitation, including the frequency of visits, length of visits, whether the visits are supervised and by whom they are supervised.”
DISCUSSION
I
Appellants contend the evidence is insufficient to support the jurisdictional finding pursuant to subdivision (b) of section 300. According to appellants, no substantial evidence was adduced of any current and substantial risk of physical harm or illness to the minors. Appellants argue the housing difficulty had been resolved, and that father had returned to the family. Appellants also assert an older minor may be an adequate supervisor, and that the amended petitions alleged incorrectly that parental supervision was required. Moreover, according to appellants, even if DHHS had alleged that inadequate supervision was provided, no substantial evidence was adduced to support that allegation. Finally, appellants argue, as the evidence before the juvenile court reflected the minors had food in the motor home, a finding that the minors had no food could not be sustained.
Father joins in all of mother’s claims, to the extent they benefit him. Hereafter, all references to appellants’ arguments will be to those found in mother’s opening and reply briefs.
Our “review of the sufficiency of the evidence to support the judgment is limited to whether the judgment is supported by substantial evidence. Issues of fact and credibility are questions for the trial court and not the reviewing court. The power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact.” (In re Christina T. (1986) 184 Cal.App.3d 630, 638-639.)
The purpose of section 300 is to protect minors from conduct or omissions by parents that place the minors at a substantial risk of suffering serious physical harm or illness. (§§ 300, subd. (b), 300.2) In this case, the amended petitions alleged generally that the minors were at a substantial risk of suffering serious physical harm as a result of an unsanitary residence and the absence of parental supervision. In evaluating the evidence, the emphasis must be on circumstances existing at the time of the jurisdictional hearing. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) However, evidence of past problems may be relevant to current circumstances and thus may be considered. (Cf. In re Michael S. (1981) 127 Cal.App.3d 348, 357-358.)
The evidence before the juvenile court at the jurisdictional hearing was in the form of social workers’ reports. The juvenile court indicated it had considered those reports.
Subdivision (b) of section 300 provides for jurisdiction where there is a substantial risk the minor will suffer serious physical harm or illness as a result of various types of conduct or acts of omission on the part of the parent of the minor.
Viewed in the light most favorable to the judgment (In re Terry D. (1978) 83 Cal.App.3d 890, 899), the record in this case supports the juvenile court’s jurisdictional finding under subdivision (b) of section 300 as to each amended petition. The record contains ample evidence of dangerous conditions pertaining to appellants’ residence, ranging from the number of minors--eight--left alone, to the situation in the home: a non-air-conditioned, 10-foot-wide motor home that was “over 100 degrees inside.” The smell of rotting food, the lack of adequate food, and the presence of dirty diapers and feces on the floor of the bathroom comprise a picture of an unsuitable dwelling place for any number of people, especially for numerous young children.
The record reflects the family had a history of unstable living conditions, and that at one time at least four of the minors suffered from poor hygiene. Moreover, the five oldest school-age minors were not working at grade level in school. Finally, neither appellant assumed any responsibility for the family’s problematical situation.
Relying in part on In re David M. (2005) 134 Cal.App.4th 822, appellants argue the record contains no evidence of any specific risk of harm to the minors caused by conditions in the home. We disagree. The record contains evidence that mother left seven minors with a young teenager who did not know mother’s whereabouts, had no way to contact mother, and who had been told by mother not to trust law enforcement.
Moreover, although it was contradicted, there was evidence that appellants’ home was unhygienic and contained inadequate food. The juvenile court reasonably could conclude that conditions in the motor home were a substantial factor in three of the eight minors being filthy and one requiring extensive dental treatment. Finally, appellants’ conduct placed the minors at a substantial, continuing risk of suffering serious physical harm, especially where, as here, mother believed she had done nothing wrong in permitting the oldest minor to supervise her seven siblings.
“The reviewing court may affirm a juvenile court judgment if the evidence supports the decision on any one of several grounds.” (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.) In this case, we find substantial evidence to support the juvenile court’s finding pursuant to subdivision (b) of section 300 as to each amended petition, that the minors were at a substantial risk of suffering serious harm due to their dangerous living conditions. (See In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1133, disapproved on a different ground in People v. Brown (1994) 8 Cal.4th 746, 763.) Appellants, however, also argue that the amended petitions were legally deficient in that they averred the minors were left with no food and no parental supervision. In support of their assertion, appellants rely on In re Alysha S. (1996) 51 Cal.App.4th 393, 396-397.
In In re Alysha S., this court held that a party in a dependency proceeding could challenge the sufficiency of the allegations contained in a section 300 petition to state a basis for jurisdiction. (In re Alysha S., supra, 51 Cal.App.4th at pp. 396-397.) We required the “pleading of essential facts establishing at least one ground of juvenile court jurisdiction.” (Id. at pp. 399-400.) As to a finding of jurisdiction under subdivision (b) of section 300, we determined “‘there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness.’” (Id. at p. 399, italics omitted.)
In this case, the amended petitions allege the statutory criteria for jurisdiction under section 300, subdivision (b), that the minors are at substantial risk of physical harm due to appellants’ failure to supervise and provide the minors with adequate food, clothing, shelter or medical treatment. Taken together, the supporting facts alleged are that: Eight minors were left in a substandard motor home without food or parental supervision. By their terms, the allegations in the amended petitions state with specificity that it is appellants’ conduct which places the minors at risk.
To satisfy the notice requirement of due process, the dependency petition must contain a concise statement of facts that links the statutory language to the circumstances alleged. (§ 332, subd. (f); In re Jeremy C. (1980) 109 Cal.App.3d 384, 397; see also In re Stephen W. (1990) 221 Cal.App.3d 629, 640.) We construe well-pleaded facts in favor of the petition to determine if DHHS has stated a basis for dependency jurisdiction. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) We conclude the amended petitions contain the required essential factual allegations that both state a basis for jurisdiction under subdivision (b) of section 300 and provide appellants with adequate notice of the specific facts on which the petitions are based. (Cf. In re Jamie M. (1982) 134 Cal.App.3d 530, 544.) Although admittedly the supporting facts are not numerous, they do suggest a causal connection between appellants’ conduct and an identified current risk of harm to eight minors, two of whom are very young. Read together, the allegations in the petitions sufficiently aver a substantial risk of serious physical harm to the minors posed by appellants’ history and current conduct.
We construe the petitions liberally to aver a lack of adequate or “parental-type” supervision. While we agree with appellants that under proper circumstances teenagers can supervise other minors, including their siblings, such proper supervision did not occur here. Moreover, although strictly speaking, some food was found in the motor home, the record reflects the home smelled of rotting food, authorities saw brown lettuce, watermelon and mayonnaise floating in water, just two mustard bottles were in the refrigerator, and some noodles and canned food were in the bathroom. Moreover, some of the minors told authorities they ate bread and crackers frequently and other nutritionally insufficient or inadequate foods. On this record, we think such a state of affairs is tantamount to a lack of food sufficient for eight minors.
The reports by law enforcement and the history of referrals are consistent with reports submitted by DHHS. Thus, the implicit conclusion of the juvenile court that appellants did not perceive the connection between the minors’ living condition and a substantial risk of harm to the minors is amply supported by the record. In sum, we conclude that substantial evidence supports the juvenile court’s exercise of jurisdiction in this case. (Cf. In re Basilio T. (1992) 4 Cal.App.4th 155, 169.)
II
Appellants claim the juvenile court abused its discretion in finding erroneously that no reasonable means other than removal of the minors from parental custody existed to protect the “well-being” of the minors. As appellants note, the correct statutory standard is protection of the “physical health” of the minors, a narrower criterion than “well-being.” According to appellants, the “well-being” standard is far broader and could be supported by virtually any evidence.
Subdivision (c)(1) of section 361 provides that a minor may not be removed from parental custody unless the juvenile court finds by clear and convincing evidence that “[t]here 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.”
At the conclusion of the November 6, 2006 hearing, the juvenile court found a substantial danger existed to the minors’ physical health, safety, protection, or physical or emotional well-being of the minors if they were returned, and “there are no reasonable means by which the children’s well-being [sic] can be protected without removing the children from the parents.”
Relying in part on In re Isayah C. (2004) 118 Cal.App.4th 684, appellants argue that, by finding merely a threat to the emotional well-being of the minors, rather than to their physical safety, the juvenile court abused its discretion, requiring reversal.
We disagree. From an examination of the juvenile court’s comments at the hearing, it is clear that the court’s concern was with the physical safety, rather than the emotional well-being, of the minors. As we have concluded, substantial evidence supports the court’s jurisdictional finding that a substantial risk existed that the minors would suffer serious physical harm. Indeed, where, as here, the court made a finding using the broader standard, a fortiori, it would have reached the same conclusion--removal of the minors from parental custody was justified by the evidence--had it applied the narrower standard. Accordingly, on this record, as it is reasonably probable the court would have found a threat to the physical safety of the minors existed, the court’s error in failing to apply the proper standard is harmless. (Cf. In re Jason L. (1990) 222 Cal.App.3d 1206, 1218.)
III
Appellants claim the dispositional findings by the juvenile court that there was a substantial danger to the health and well-being of the minors and no reasonable means to protect the minors other than removing them from parental custody are not supported by substantial evidence. Noting the minors were healthy, and had no previous serious difficulties, appellants argue the juvenile court’s stated fear that appellants would engage in the same conduct engaged in previously was nothing more than speculation. Moreover, appellants suggest, DHHS could have assisted them in obtaining housing so that appellants might have had the minors returned under DHHS supervision and enabled them to participate in services.
To support an order removing a child from parental custody, the juvenile court must find clear and convincing evidence that “[t]here 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 parent’s . . . physical custody.” (§ 361, subd. (c)(1); In re Heather A. (1996) 52 Cal.App.4th 183, 193.) The court also must “make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor” and “state the facts on which the decision to remove the minor is based.” (§ 361, subd. (d).)
Removal findings are reviewed under the substantial evidence test set forth above, drawing all reasonable inferences to support the findings and noting that issues of credibility are matters for the trial court. (In re Heather A., supra, 52 Cal.App.4th at p. 193.) Further, evidence of past conduct may be probative of current conditions, particularly where there is reason to believe the conduct will continue in the future. (In re Rocco M., supra, 1 Cal.App.4th at p. 824.)
Ample evidence at the dispositional hearing supports the juvenile court’s order for removal of the minors from parental custody. The court had before it evidence of a residence occupied by 10 people, including minors as young as one and two years old. The oldest minor, then just under 14 years old, often was left to care for the remaining seven minors. Frequently only one parent was available, as father left the family on “a number of occasions,” according to a relative. That same relative expressed concern over the family’s history of “chronic instability.”
Unfortunately, there was little in the record to suggest appellants were willing and able to ameliorate the problematic circumstances which led to the exercise of jurisdiction by the juvenile court in this case. For example, mother did not believe she had contributed to the family’s difficulties. Moreover, neither appellant had cooperated with DHHS or participated consistently in services offered them by DHHS.
On this record, it is not surprising the juvenile court concluded that, to ensure their protection, the minors had to be removed from parental custody. Moreover, far from constituting speculative fears, the court’s concerns expressed in its comments at disposition reflect and derive from the facts and circumstances presented to it. As the transcript of its comments shows, when the court stated it feared that returning the minors too soon would lead to the same difficulties already besetting the family, it had made clear previously that the record reflected appellants required more time during which they would have the opportunity to learn how to protect the minors.
It is true that mother had secured new housing, for which she is to be commended. However, the record also reflects the family’s history had been “one of extensive instability and ‘migration’ in that it does not appear the children have lived in any one place for very long throughout their lives.” The record also shows DHHS succeeded in obtaining temporary housing for mother in this case, only to learn mother had left it to go to the Bay Area after a few days. According to DHHS, several days after leaving, mother returned to the Sacramento area, again without housing.
Appellants’ reliance on In re Paul E. (1995) 39 Cal.App.4th 996, is misplaced. The circumstances there involved potential hazards existing primarily outside the residence, and the minor was four years old. (Id. at pp. 999, 1005-1006.) Here, mother placed a teenager in charge of seven children in an unsanitary home with insufficient food and no way to reach a parent. Moreover, two minors in this case were two years of age or younger.
Appellants also rely in part on In re James T. (1987) 190 Cal.App.3d 58 and In re Jeannette S. (1979) 94 Cal.App.3d 52. Those cases are distinguishable. The minor in In re James T. was a 16-year-old teenager, and there were no dangerous circumstances present there. (In re James T., supra, 190 Cal.App.3d at p. 65.) In In re Jeannette S. the five-year-old minor was in good health and in no immediate danger from conditions in the home. (In re Jeanette S., supra, 94 Cal.App.3d at pp. 56-58.) Here, on the other hand, eight minors lived in a dangerous environment, and appellants were absent from their dwelling and had not prepared the minors to supervise each other properly.
Appellants argue the juvenile court failed to consider alternatives to removal. But the record reflects, and the court found, DHHS had made reasonable efforts to eliminate the need for removal of the minors from parental custody. Those efforts had not succeeded. Until appellants establish they can benefit from the provision of additional services, there is ample evidence the minors’ safety and well-being in appellants’ home would be in serious jeopardy if they were returned to appellants’ custody.
Substantial evidence supports the dispositional order of removal, which the record reflects was supported by factual findings made by the juvenile court.
IV
Appellants contend the juvenile court’s November 6, 2006 visitation order must be reversed because it constitutes an improper delegation to DHHS to determine whether any visitation between appellants and the minors will occur.
For purposes of deciding the issue, we presume, as appellants argue, the claim has not been forfeited by appellants’ failure to tender it in the juvenile court. (Cf. In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)
While the juvenile court has the power and responsibility to define visitation between a noncustodial parent and her minor child, the court need not specify all the details of the visitation. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1373-1374.) It may delegate management of the details, such as time, place, and manner. (Id. at p. 1374; In re Chantal S. (1996) 13 Cal.4th 196, 213-214.) “Only when a visitation order delegates . . . the absolute discretion to determine whether any visitation occurs does the order violate the statutory scheme and separation of powers doctrine.” (Moriah T., supra, at p. 1374.)
In this case, the juvenile court granted appellants regular visits with the minors consistent with the latters’ well-being. Appellants argue the phrase “well-being” is “so vague as to be virtually meaningless,” and assert that the visitation order fails to recite a minimum level of visitation that actually must occur.
We disagree. The opinion relied on in large part by appellants, In re Hunter S. (2006) 142 Cal.App.4th 1497, is distinguishable from the case here. The visitation order at issue in Hunter S. granted the mother visitation “‘as can be arranged.’” (Id. at p. 1505.) Moreover, the minor there was given discretion to veto any visits with his mother, which he did for more than two years. (Ibid.)
By contrast, in this case the court’s order unambiguously grants appellants visits. Not only does it not permit the minors to control whether visitation occurs, but the order here in explicit terms bars any veto of visits due to a wish by the minors to “refuse[] future visits.”
The order states in part: “DHHS may consider the children’s desires in its administration of the visits, but the children shall not be given the option to consent to, or refuse, future visits.”
In sum, we conclude the order granting visitation permits DHHS no discretion as to whether visits shall occur. Instead, the order provides DHHS with the flexibility necessary to adapt visitation to changing circumstances arising during reunification. In doing so, the order affirms the right of appellants to visit the minors. There was no abuse of discretion or other error. (In re Moriah T., supra, 23 Cal.App.4th at pp. 1375-1376.)
V
Appellants contend DHHS and the juvenile court failed to comply with the notice provisions of the ICWA. They claim the notices sent by DHHS to one of the Cherokee tribes were addressed to the wrong individual, and that DHHS misspelled the family name as to one of the relatives. Accordingly, appellants argue, the court’s finding that DHHS provided proper notice under the ICWA is reversible error.
The ICWA protects the interests of Indian children and promotes the stability and security of Indian children and Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) The juvenile court and DHHS have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.664(d).) If, after the petition is filed, the court “knows or has reason to know that the child is or may be an Indian child,” notice of the pending proceeding and the right to intervene must be sent to the tribe, or to the BIA if the tribal affiliation is not known. (Cal. Rules of Court, former rule 5.664(f); see Welf. & Inst. Code, § 224.2, subds. (a) & (b) [eff. Jan. 1, 2007]; 25 U.S.C. § 1912(a).)
Failure to comply with the notice provisions and determine whether the ICWA applies is prejudicial error. (In re Desiree F. (2000) 83 Cal.App.4th 460, 472; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424.)
“The burden is on the [department] to obtain all possible information about the minor’s potential Indian background and provide that information to the relevant tribe or, if the tribe is unknown, to the BIA.” (In re Louis S. (2004) 117 Cal.App.4th 622, 630.) Notice is meaningless if it fails to provide the very information that might assist the tribe and the BIA in making a determination as to a minor’s Indian status. (In re D. T. (2003) 113 Cal.App.4th 1449, 1455.)
Federal regulations and the federal guidelines on Indian child custody proceedings specify the contents of the notice to be sent to the tribe both to inform the tribe of the proceedings and to assist the tribe in determining if the child is a member or eligible for membership. (25 C.F.R. § 23.11(a), (d), (e); 44 Fed.Reg. 67588 (Nov. 26, 1979).) If known, the agency should provide the name of the child, the date and place of birth of the child, and the tribe in which membership is claimed, as well as the names, birthdates, places of birth and death, current addresses, and tribal enrollment numbers of the parents, grandparents, and great-grandparents. This information will assist the tribe in making its determination whether the child is eligible for membership and whether to intervene. (Ibid.; In re D. T., supra, 113 Cal.App.4th at pp. 1454-1455.)
We reject the claims by appellants. First, after DHHS had sent notices of the dependency proceedings to the United Keetoowah Band of Cherokee Indians, which also included the name of a tribal chief, that tribe notified DHHS of a change in its address. As the record shows, that address does not include the name of any individual.
Former rule 5.664(f)(2) of the California Rules of Court required notice to the tribal chairperson or another agent designated for service. However, presumably the tribe can determine its own address. In any event, there is no indication any notices went to the wrong tribe, so reversal on this ground is not warranted. (In re Louis S., supra, 117 Cal.App.4th at p. 633.) Any error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
It is true that two letters in the family name were transposed on two notices to tribes. However, at the tops of the very same pages of the identical documents, the name was spelled correctly, and the family name also was spelled properly throughout all of the other notices sent to the tribes. As this minor discrepancy could not have confused the tribes, any error is harmless.
We agree with appellants that DHHS was notified at the August 18, 2006 jurisdictional hearing of the spelling error, and that it should have corrected the notices accordingly.
The juvenile court did not err prejudicially in finding that DHHS had complied with the notice requirements of the ICWA.
DISPOSITION
The orders of the juvenile court are affirmed.
I concur: DAVIS , Acting P.J.,
RAYE, J.
I concur fully in the majority opinion. I write separately to expand on my reasons for rejecting appellants’ narrow construction of Welfare and Institutions Code section 300, subdivision (b) and other statutes permitting the state to intervene on behalf of children.
The evidence in this case discloses the dystopian existence of the eight minors, whose father took extended leave of his parental obligations and whose mother left all eight of them, one as young as a year old, under the supervision of their precocious 13-year-old sister and her 12-year-old deputy in a motor home without functioning utilities on a 100 degree day and a supply of crackers for dinner. This is not the first time the father has withdrawn from his parental role nor the only time the mother has left her children under the care of her 13 year old with instructions not to allow others -- not even law enforcement -- to enter.
Appellants insist that county welfare authorities are powerless to intercede under subdivision (b) of the Welfare and Institutions Code so long as these conditions were corrected by the date of the jurisdiction hearing. Moreover, according to appellants, the fact the home reeked of mildew and sewage, was filthy, and had feces on the bathroom floor and liquid waste flowing onto the parking lot beneath the trailer is of no moment so long as the children are physically healthy and show age-appropriate behavior. Citing In re David M. (2005) 134 Cal.App.4th 822, 830, appellants argue that the Department was obliged to demonstrate a nexus between these conditions and a specific defined risk of harm, the implication being that no amount of mildew and filth will suffice for this purpose. I disagree.
First, the object of dependency jurisdiction is to protect children from the risk of serious physical harm or illness. Authorities are not compelled to wait until the danger is realized. The physical conditions that led to removal of the children will almost always have been corrected by the date of the jurisdiction hearing, but the risk of injury may remain. The toxic waste flowing from the trailer is of less significance than the potentially toxic attitudes of the parents, who permitted their children to live in such conditions with inadequate supervision. And to suggest there is no nexus between clearly unsanitary conditions and the risk of illness and other physical dangers is to ignore the obvious. This case bears no resemblance to In re David M., where the social services agency relied on historical evidence of neglect and marijuana abuse together with evidence of mental disability to seek jurisdiction. Here, the evidence of neglect and risk is relatively fresh and the inferences to be derived from such evidence still compelling.
Appellants argue “[t]his is a case in which the system overreacted to an unfortunate situation caused by the parents’ poverty.” Certainly poverty is not a crime and children cannot be removed from their parents simply because the parents lack the wherewithal to provide an Ozzie and Harriet existence. However, poverty also does not provide immunity from the obligation of all parents to supervise and provide for children in a manner that avoids placing them at substantial risk of serious physical harm or illness. Poverty can complicate the task of parenting. But when parents, poor or not, fail to perform the basic obligation to protect their children and obviate the risk of serious physical harm or illness, government is permitted to intervene. Intervention is remedial, not punitive; though their constitutional rights to parent are implicated, the parents are not being prosecuted. Family reunification is the hoped-for outcome. The assumption of jurisdiction provides a means to protect children while preserving and strengthening their ties to the family. (In re Sade C. (1996) 13 Cal.4th 952, 959, fn. 1.) Hopefully, that will be the outcome in the present case, where the mother has demonstrated a solid commitment to her children. The intervention has led to services and assistance to the family and, hopefully, has sparked fresh insight by appellants into their obligations as parents.
Cases such as this pose a conundrum to welfare authorities. It is tempting to pass off the risk posed to children under such circumstances as an inevitable byproduct of poverty, leaving the family to fend for itself with the hope that no harm will befall the children. In my view, the assertion of jurisdiction in the present case is an enlightened step -- not compelled by the law but well within the discretion afforded the Department of Health and Human Services by the Welfare and Institutions Code. Appellants have not demonstrated error.
RAYE , J.