Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. CK76372, D. Zeke Zeidler, Judge.
Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant.
James M. Owens, Assistant County Counsel, and Navid Nakhjavani, Associate County Counsel, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
Mother Josie C. appeals from the juvenile court’s order terminating its jurisdiction over her daughters Jocelyn D. (age 11) and Kaitlin D. (age 7). Mother contends: (1) the court failed to comply with the Indian Child Welfare Act, title 25 of the United States Code section 1901 et seq. (ICWA), (2) the termination order was not supported by substantial evidence, and (3) the exit order was not in the children’s best interest. We disagree and affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
1. The detention in February 2009
The Los Angeles Sheriff’s Department Narcotics Strike Team II executed a search warrant investigating sales of narcotics occurring at the house where mother and the children were living along with many of mother’s relatives. The Sheriff’s Department recovered methamphetamines and other evidence of drug sales and notified the Department of Children and Family Services (the Department). The house was crowded, roach-infested, and unsanitary. The responding social worker spoke to mother, and to father who lived next door. Mother denied drug and alcohol use and her on-demand test result was negative. Both parents claimed they did not know about drug transactions occurring in the house. Mother expressed her willingness to move, if necessary. Father stated he only went over to mother’s to pick up the children, which he did in front of the house. Mother moved out of her house. The Department detained the children from mother’s custody and placed them in foster care.
Father’s two-bedroom house was clean and neat. Father explained he was not on speaking terms with mother’s family and emphasized he did not know about drugs in mother’s house. Father’s drug test results were negative. Father denied ever going inside mother’s house. He cares for the girls during the day until about 7:00 p.m. He takes them to school or doctor’s appointments. He had no idea about the condition of the house because his children did not mention it. Father was on disability leave from his job as a plumber, but expected to return to work within weeks. A family law court had given mother custody of the children and so he did not have the ability to remove the girls from mother’s house. Father began attending parenting classes in February 2009, and had not missed once. He was an “active participant” and “a pleasure to work with” according to Shields for Families, family support services.
The Department filed a petition alleging that drugs and drug paraphernalia were found in the home in the vicinity of the children placing the children at risk of harm and that mother knew or should have known of such endangering environment. (Welf. & Inst. Code, § 300, subd. (b).)
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
At the detention hearing, the juvenile court ordered the children released to father’s custody. In so doing, the court rejected the Department’s recommendation to detain the children from father. Mother indicated she had Navajo ancestry and so the court ordered the Department to conduct an ICWA investigation into mother’s heritage. The Department sent ICWA notices to the Bureau of Indian Affairs, the United States Department of the Interior, and the Navajo tribes.
2. The adjudication in May 2009
Mother pled no contest to the petition as amended. A letter from mother’s rehabilitation service indicated she had attended four of four drug education classes, three of four relapse prevention classes, two of four 12-step support classes, and three of four parent education classes. She also consistently attended four individual drug counseling sessions, although she did not reliably attend group sessions. Mother tested negative for drug use in April 2009.
The juvenile court found that father was “nonoffending.” It sustained count B-1 of the petition alleging mother created a detrimental environment for the children because methamphetamine and drug paraphernalia were found in the children’s home or its vicinity. The court also found that proper ICWA notices were sent although ICWA was not triggered because the children were living with their father.
3. Termination of juvenile court jurisdiction in June 2009
The Department filed with the juvenile court the letters it had received from the Department of the Interior, Bureau of Indian Affairs, and from the Colorado River Indian Tribes indicating the children and relatives listed were not enrolled members, nor eligible for enrollment with that tribe. The Ramah Navajo School Board, Inc. found no record of enrollment, but forwarded the information to the Navajo Nation ICWA office in Window Rock, Arizona. The Navajo Nation reported that the children’s eligibility for enrollment could not be verified.
For the disposition hearing, the Department recommended that the court terminate its jurisdiction with a family law exit order granting father legal and physical custody of the children with unmonitored visitation for mother who had been compliant with her case plan.
At the disposition hearing, the juvenile court found ICWA notice was proper and complete, and that ICWA did not apply. Even if it did, the children were placed with a parent.
With respect to the Department’s recommendation to terminate juvenile court jurisdiction, mother requested that the court not terminate. She stipulated that if called as a witness, she would testify that she was staying with two different friends and the Department had those addresses. She was participating in her service plan. Mother’s plan for the children as of the date of the hearing was to share physical custody with father. Mother had two places where she could live and where the children could come. Mother’s attorney also offered that mother could obtain vouchers to pay for a hotel or shelter for her and the children. Asked by the court what evidence from a professional showed that mother had learned how to appropriately protect the children and had resolved the issues that led to the dependency, mother’s attorney responded that in February 2009, mother moved out of the house where drugs were being sold and had been participating consistently in her program.
The juvenile court declared the children dependents of the court. It found by clear and convincing evidence that the children were at risk in mother’s care (§ 361, subd. (c)), and ordered custody of the children be taken from mother and given to father. The court then terminated its jurisdiction and issued an exit order granting the parents joint legal custody and father sole physical custody of the children. The court granted mother unmonitored day visits in the home of the maternal great aunt and gave the parties discretion to agree in writing to additional, overnight visits. Mother filed her appeal.
DISCUSSION
1. The juvenile court did not err in terminating its jurisdiction.
The parties appear to disagree about which statute the juvenile court followed in deciding to terminate its jurisdiction here. Mother contends that the juvenile court erred in terminating its jurisdiction because, pursuant to section 364, the conditions that caused the court to take jurisdiction “still existed or would exist if jurisdiction were terminated....” The Department argues that, pursuant to section 361.2, there is no need for continued court supervision and so the court properly terminated its jurisdiction.
Generally speaking, section 364 applies when a dependent child has not been removed from the original custodial home, whereas section 361.2 “describes the juvenile court’s discretion when it places a dependent child with a formerly noncustodial parent.” (In re Sarah M. (1991) 233 Cal.App.3d 1486, 1493 & 1495, disapproved on other grounds in In re Chantal S. (1996) 13 Cal.4th 196, 204; compare In re N. S. (2002) 97 Cal.App.4th 167, 172 [rejecting In re Sarah M.’s narrow reading of § 364]; In re Janee W. (2006) 140 Cal.App.4th 1444, 1450-1451.) Here, the court removed the children from mother’s custody at the detention hearing and placed them with father, the previously noncustodial parent, where they remain. (In re Sarah M., supra.) Therefore, section 361.2 is the governing statute.
Pursuant to section 361.2, “[i]f the court places the child with [the noncustodial] parent it may do any of the following: [¶] (1) Order that the parent become legal and physical custodian of the child. The court may also provide reasonable visitation by the noncustodial parent. The court shall then terminate its jurisdiction over the child. The custody order shall continue unless modified by a subsequent order of the superior court. The order of the juvenile court shall be filed in any domestic relation proceeding between the parents.” (§ 361.2, subd. (b)(1).) “The discretion afforded the juvenile court in this area appears very broad.” (In re Sarah M., supra, 233 Cal.App.3d at p. 1496.)
Mother contends that the juvenile court erred in terminating jurisdiction because conditions triggering the dependency still exist. She points to her unfinished services and the fact that father continues to live next door to the house where the drug dealing that caused the dependency was occurring.
However, pursuant to section 361.2, “[w]hen deciding whether to terminate jurisdiction, the court must determine whether there is a need for continued supervision, not whether the conditions that justified taking jurisdiction in the first place still exist, as required under section 364. [Citations.]” (Italics added.) (In re Janee W., supra, 140 Cal.App.4th at p. 1451; accord, In re Sarah M., supra, 233 Cal.App.3d at pp. 1493-1494, 1496-1497, citing § 366.21, subd. (e); & In re Francecisco (1971) 16 Cal.App.3d 310, 314.) Thus, the focus is not on whether mother has completed her services, i.e., whether the conditions that justified taking jurisdiction still exist, but rather on father’s ability to care for the children without Departmental and court supervision.
Here, substantial evidence (In re Austin P. (2004) 118 Cal.App.4th 1124, 1134) supports the juvenile court’s finding that there was no need for ongoing supervision with the result that the children were no longer at risk in this case. Father is nonoffending. The juvenile court’s specific finding on that point has not been challenged. That he lives next door to the house where drugs were being sold does not make him offending, particularly where he did not know such activity was occurring there. It is not father who failed to protect the children from such activity, it was mother. That is why the petition was sustained and why the children were removed from mother’s custody. Meanwhile, the Department’s reports reflect the good care father is providing the children. His house is big enough for the girls; it is clean and neat. He takes them to school every day. The girls have expressed that they feel safe in their father’s care. Father immediately complied with his case-plan referrals. Because the children are not at risk with father, they no longer require the protection of the juvenile court. Therefore, the record supports the court’s conclusion that there existed no need for supervision and so the court did not abuse its discretion in terminating its jurisdiction.
2. The exit orders were proper.
Mother contends that the family law exit orders were not in the children’s best interest. She argues the order denying her joint physical custody and overnight visits was not in the children’s best interest because she “largely complied with her case plan” and because of her “significant progress” she did not pose a danger to the children.
When the juvenile court terminates jurisdiction in a dependency case, it may issue an exit order for custody and visitation. (§ 362.4; In re Chantal S., supra, 13 Cal.4th at pp. 202-203; see also In re John W. (1996) 41 Cal.App.4th 961, 970, fn. 13 [explaining the term “exit order”].) As with the decision to terminate jurisdiction, we “review the juvenile court’s decision to terminate dependency jurisdiction and to issue a custody (or ‘exit’) order pursuant to section 362.4 for abuse of discretion [citation] and may not disturb the order unless the court ‘ “ ‘exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].’ ” ’ [Citations.]” (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300-301.)
Section 362.4 reads in part, “When the juvenile court terminates its jurisdiction over a minor who has been adjudged a dependent child of the juvenile court prior to the minor’s attainment of the age of 18 years, and proceedings for dissolution of marriage, for nullity of marriage, or for legal separation, of the minor’s parents, or proceedings to establish the paternity of the minor child brought under the Uniform Parentage Act, Part 3 (commencing with Section 7600) of Division 12 of the Family Code, are pending in the superior court of any county, or an order has been entered with regard to the custody of that minor, the juvenile court on its own motion, may issue a protective order as provided for in Section 213.5 or as defined in Section 6218 of the Family Code, and an order determining the custody of, or visitation with, the child.
Mother’s living arrangement with her family had placed the children in danger and triggered the dependency. At the disposition hearing, mother was unable to demonstrate she had a place to live where the court could be assured the children would be protected from the dangers that had triggered the dependency. Mother stipulated that she was living with two different friends where the children could visit and suggested that she would take them to a hotel or shelter. There was no evidence from which the court could assess whether the children would have been safe in mother’s custody; it did not know anything about the people with whom the children would be sharing a home. As for mother’s concerns that the visitation was too restrictive, the court specifically gave the parties the discretion to liberalize mother’s visits with the girls and so the visitation portion of the exit orders was not arbitrary or absurd. (Bridget A. v. Superior Court, supra, 148 Cal.App.4th at pp. 300-301.) Given father was nonoffending and had a stable, clean, safe home for the girls, whereas mother’s living arrangements were in flux and the children’s safety could not be assured, the court did not abuse its discretion in fashioning the exit orders giving father sole physical custody. (Ibid.)
3. The notice provisions of ICWA do not apply to this case.
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 proceedings. (25 U.S.C. §§ 1902, 1903(1) & 1911(c).) Toward that end, both the California and federal ICWA statutes mandate that the social welfare agency notify the child’s tribe “[w]hen a dependency court has reason to know the proceeding involves an Indian child....” (In re Brooke C. (2005) 127 Cal.App.4th 377, 383.)
Section 224.3 of California’s codification of ICWA’s notice requirement reads, “The court, county welfare department, and the probation department have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300... is to be, or has been, filed is or may be an Indian child in all dependency proceedings... if the child is at risk of entering foster care or is in foster care.” (§ 224.3, subd. (a), italics added; accord, 25 U.S.C. § 1912(a).)
Additionally, section 224.2, governing the contents and time of notification, requires notice to be sent “in an Indian child custody proceeding under this code....” (§ 224.2, subd. (a).) An “Indian child custody proceeding” is defined in California as “a ‘child custody proceeding’ within the meaning of Section 1903 of the Indian Child Welfare Act,” and includes a voluntary or involuntary proceeding that may result in an Indian child’s “temporary or long-term foster care or guardianship placement, termination of parental rights, preadoptive placement after termination of parental rights, or adoptive placement.” (§ 224.1, subd. (c).) Likewise, title 25 of the United States Code section 1903(1) defines an Indian “child custody proceeding” as “(i) ‘foster care placement’.... [¶]... [¶] (ii) ‘termination of parental rights’.... [¶] (iii) ‘preadoptive placement’... and [¶] (iv) ‘adoptive placement’....” (See also Cal. Rules of Court, rule 5.481 [declaring continuing duty to inquire on “party seeking a foster care placement, guardianship, conservatorship, custody placement under Family Code section 3041, declaration freeing a child from the custody or control of one or both parents, termination of parental rights, or adoption”]; Fam. Code, § 177, subd. (a) [custody proceedings]; Prob. Code, § 1459.5, subd. (b) [guardianship and conservatorship proceedings]; 25 U.S.C. § 1912(a) [No proceeding to place the child in foster care or to terminate parental rights may be held until at least 10 days after the tribe or Department of the Interior has received notice].)
Synthesized, the state and federal ICWA expect inquiry and notice to the child’s tribe only when the child is either (A) “at risk of entering foster care or is in foster care” (§ 224.3, subd. (a)), or (B) is in an Indian child custody proceeding, i.e., in a proceeding where child may be placed in temporary or long-term foster care or guardianship, or adoptive placement, or where the parental rights may be terminated. (§ 224.1, subd. (c); 25 U.S.C. § 1903(1).) Thus, courts requiring inquiry of and notice to the tribe have involved children who were removed from their parents’ custody and placed in foster care. (See e.g., In re Shane G. (2008) 166 Cal.App.4th 1532; Justin L. v. Superior Court (2008) 165 Cal.App.4th 1406; In re A.B. (2008) 164 Cal.App.4th 832; Tina L. v. Superior Court (2008) 163 Cal.App.4th 262; In re Alice M. (2008) 161 Cal.App.4th 1189.)
At the commencement of this dependency, the juvenile court detained the children from mother and placed them with their father with the result that the notice requirements of ICWA were not triggered. Nonetheless, the juvenile court and the Department properly commenced the notice process. Regardless of whether that investigation was sufficient and complied with the ICWA requirements, an issue we need not address, this dependency is not an “Indian child custody proceeding” as that phrase is defined by the California and federal statutes. The children are not placed in temporary or long-term foster care, a guardianship, or in any potential adoptive placement; they have been placed with their father. Nor are they at risk of entering any of these placements in this dependency because father is nonoffending. Once the court placed the children with father, the Department no longer had any obligation to notify the tribes.
Our conclusion here does not prejudice the rights or interests of Jocelyn and Kaitlin. Should father behave in a manner that triggers the filing of a section 300 petition naming him, or should the juvenile court remove the children from father’s custody to place them in foster care, then the Department’s formal notification obligation will arise.
DISPOSITION
The orders appealed from are affirmed.
We concur: KLEIN, P. J., CROSKEY, J.
Any order issued pursuant to this section shall continue until modified or terminated by a subsequent order of the superior court. The order of the juvenile court shall be filed in the proceeding for nullity, dissolution, or legal separation, or in the proceeding to establish paternity, at the time the juvenile court terminates its jurisdiction over the minor, and shall become a part thereof.”