Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIJ112999, Christian F. Thierbach, Judge.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.
Konrad S. Lee, under appointment by the Court of Appeal, for Minor.
OPINION
Gaut, J.
On March 8, 2007, the juvenile court found that four children fell within the jurisdiction of the dependency court within the meaning of Welfare and Institutions Code section 300, subdivision (b), and removed them from mother’s custody. Mother appeals, contending there is (1) insufficient evidence to support the finding of jurisdiction, (2) abuse of discretion in making the order removing the children from her custody, and (3) insufficient evidence to support the finding that the Indian Child Welfare Act did not apply. We reverse in part and affirm in part and remand with directions.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
1. Background
Because the parties submitted the matter as to jurisdiction and disposition on the basis of the various social workers’ reports, we summarize the information from those documents.
On September 24, 2006, mother was arrested as an accomplice in connection with a robbery for which she was alleged to have been the getaway driver. Her youngest child, Kevin, then three months of age, was in the car at the time of her arrest, along with three other minors and the two adults who participated in the robbery. Mother informed sheriff’s deputies that she had driven her friend to the Morongo casino to get money from a third party who did not show up. Another friend called from a mall and requested a ride, so mother drove to the mall to pick up two additional adults and three minors. While returning to the casino, they were stopped and arrested. Marijuana was found in the car. Mother denied the marijuana was hers, but admitted prior drug use. Kevin was taken into custody.
Mother’s three older children (E.L., age 10; D.L., age 9; and K.M., age 3) were living with their maternal grandmother in Arizona at the time of mother’s arrest, and had been there for several months. The maternal grandmother had been nominated as the temporary guardian of E.L. and D.L. in 2001 (prior to K.M.’s birth in 2002). Grandmother was interested in having Kevin placed with her also. Mother disclosed she has Cherokee Indian heritage from her father’s side, specifically, the Chitail tribe, although she did not believe she was eligible to register.
The court ordered the children detained out of home pending the jurisdictional hearing, and directed an evaluation under the Interstate Compact for the Placement of Children (ICPC). Subsequently, protective custody warrants were issued as to the three older children (E.M., D.M. and K.M.), prior to the social worker’s confirmation that they had been living in Arizona with their grandmother since July 5, 2006. In October 2006, the Riverside County Department of Public Social Services (DPSS) requested dismissal of the petition as to E.L., D.L., and K.M., but no action was taken immediately.
In the jurisdiction/disposition report, the DPSS again recommended dismissal of the petition as to the three older children. The social worker’s report also indicated the DPSS intended to notify the tribe of the pending proceedings, pursuant to the Indian Child Welfare Act (ICWA). The DPSS recommended against return of Kevin to his mother, although it acknowledged the criminal charges relating to the robbery had been dismissed as to her, and that mother had enrolled in counseling and parenting classes, as well as that she had tested negative for any drugs. However, the social worker was concerned about mother’s lack of stable, permanent address, and the potential for drug relapse, insofar as the social worker felt mother was minimizing her drug use. Further, the social worker felt mother had not addressed her propensity to associate with individuals who place her children at risk through their behaviors.
The report also indicated mother admitted she smoked marijuana recently and had previously used methamphetamine and cocaine. The father of Kevin, who is not a party to this appeal, was not living with the mother at the time of the incident leading to her arrest, has an extensive criminal history. In the social worker’s addendum report of December 21, 2006, the DPSS again recommended dismissal of the petition as to the three older children, and requested a true finding as to Kevin. A home evaluation of mother’s residence had been conducted. Mother was living with roommates whose backgrounds needed to be checked. Mother’s hair follicle test was negative for drugs. However, she failed the random drug test by failing to appear due to lack of transportation, and she was “kicked out” of the parenting classes because she missed two classes. The maternal grandmother had petitioned to be appointed the guardian as to all three of the older children in Arizona. However, no report was made as to the status of the notice required by ICWA, or the investigation pursuant to the ICPC.
On December 26, 2006, the court dismissed the petition as to the three older children and recalled the protective warrants. The court also ordered an ICPC evaluation for placement of Kevin with the maternal grandmother and continued the matter as to Kevin. The next addendum report, filed on February 6, 2007, revealed the ICPC was initiated sometime after January 16, 2007. Mother was actively searching for employment but had been unsuccessful, and her roommate had not been fingerprinted because she planned to move out of the residence. Mother attended Narcotics Anonymous meetings, but had not enrolled in substance abuse counseling or parenting classes.
As for Kevin, the social worker noticed he was still unable to sit up, stand up, or feed himself on his own, and was unable to use his extremities to crawl. The report concluded with a recommendation that ICWA does not apply, without a discussion of the reason for the change of position. Based on the status of the case at the hearing on February 8, 2007, the juvenile court authorized the DPSS to place Kevin with his mother on the conditions that: (1) there is a favorable and suitable home evaluation; (2) no one resides in the home; and (3) there is adequate day care.
On March 5, 2007, an amended petition was filed, naming all four children again, and adding two new allegations pertaining to Kevin’s father. The petition alleged the children may be eligible for membership in a federally recognized Indian tribe. An addendum report filed the next day summarized a visit between mother and Kevin, in which mother behaved very appropriately with Kevin. Kevin appeared very happy to visit with his mother. The social worker had evaluated mother’s home and found it to be clean and well organized. The roommates had moved out, but mother was still unemployed. Several days after the home was evaluated, the social worker attempted to contact the mother by telephone but the number was disconnected.
The jurisdiction/disposition hearing finally took place on March 8, 2007. The parties submitted on all the reports. During argument, the court indicated it was familiar with the robbery case in which mother had been charged as an accessory because it had presided over proceedings relating to one of the juvenile perpetrators and had reviewed the probation report prepared in conjunction with that case. The court expressed the view that the criminal charges must have been dismissed as to mother because the prosecution feared it would be unable to prove guilt beyond a reasonable doubt. However, the preponderance of the evidence standard would have easily been met, in the court’s opinion.
The trial court made a true finding that the children fell within the definition of section 300, subdivisions (b) and (g), and removed all four children from the custody of the parents. The court also found that ICWA notices had been given as required by law, and that ICWA did not apply. The parents were ordered to participate in reunification services. The court ordered relative placement and authorized placement of the children with mother on condition that (1) mother continue to test negative for drugs; (2) she participate in her case plan; and (3) she have appropriate employment and day care. The court further ordered an ICPC report respecting placement of Kevin with his maternal grandmother and siblings in Arizona.
2. Discussion
A. Sufficiency of the Evidence to Support Jurisdiction
Mother argues there is insufficient evidence to support the jurisdictional allegations that were based on findings that she was an accessory to a robbery as the driver of the getaway car (allegation b-1of the petition), and that she had a substance abuse problem (allegation b-2 of the petition), pursuant to section 300, subdivision (b). Mother notes that her hair follicle test came back negative showing she had not been using illegal substances, the criminal charges against her had been dismissed, and the maternal grandmother was the custodial caretaker of Kevin’s older siblings.
Respondent asserts that the petition as to the three older siblings had been dismissed and that this appeal concerns only Kevin. However, we note that after the dismissal referred to by respondent, the DPSS refiled the original petition, amending it to add two additional grounds relating to Kevin’s father. The petition named all four children, and later, at the jurisdictional hearing, the trial court made jurisdictional findings as to all four “children.” During the disposition phase, all four children were removed from mother’s custody. Thus, we must review the jurisdictional issues as to all four children.
In this respect, we consider the following separate questions: (1) Did the trial court properly assume jurisdiction over Kevin’s older siblings? (2) Did the trial court properly base its finding that the allegation of mother’s involvement of the robbery was proven by a preponderance of evidence on evidence not presented at the hearing? (3) Was there substantial evidence that mother had failed to provide the children with adequate food, clothing, shelter, or medical treatment, or that she was unable to provide regular care of the children due to substance abuse?
i) The Three Older Children Were Not Properly Before the Juvenile Court.
Mother argues the three older children were improperly adjudicated dependents of the court. We agree.
Jurisdiction to determine custody rights respecting children living in another state are determined under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). (Fam. Code, § 3400, et. seq.) This is a question of subject matter jurisdiction, which either exists or does not exist at the time the action is commenced. (Adoption of Zachariah K. (1992) 6 Cal.App.4th 1025, 1035.) An action is commenced when a petition is filed. (Fam. Code, § 3402, subd. (e).)
Under the UCCJEA, the court attempts to determine the child’s “home state” prior to making custody orders, and a California court may exercise jurisdiction if, on the date of the commencement of the proceeding, it was the “home state” of the child. (Fam. Code, § 3421, subd. (a)(1).) The “home state” is the state in which the child immediately preceding the time involved lived with the child’s parents, a parent, or a person acting as a parent for at least six consecutive months. (Haywood v. Superior Court (2000) 77 Cal.App.4th 949, 954-955.) If a court of another state has exercised jurisdiction, a California court may not exercise jurisdiction, unless or until the foreign court has determined that California is a more appropriate forum. (Fam. Code, § 3421, subd. (3).)
In the present case, although the original petition was filed in September 2006, it was dismissed as to the three older children on December 26, 2006. In March 2007, the amended petition (amended only as to Kevin) was filed, naming the three older minors again, so we must use this date as the date when the action was commenced as to the older siblings. By this time, the children had been living with their grandmother in Arizona since July 2006, more than six months prior to the commencement of the action, and she had filed for guardianship of them in that state. Despite this, the trial court found all the children were legal residents of Riverside County.
The trial court’s jurisdictional and dispositional findings refer to all four children, despite the fact they were, by the social worker’s acknowledgment, living with their maternal grandmother in Arizona for months prior to the incident that gave rise to the instant petition. There are even indications, albeit unconfirmed, that Arizona had exercised jurisdiction and custody orders respecting the older siblings insofar as the DPSS’s reports acknowledge she had applied for a guardianship of all three of the older siblings prior to the jurisdictional hearing in this matter, and that fact was the reason for the prior dismissal.
Given the evidence of the older children’s residence outside California, and the social worker’s recommendation to dismiss the petition – again – as to them, there is no evidence in the record to support the court’s finding that the children were legal residents of Riverside County.
The DPSS feels the older children are not part of this appeal, asserting the case had been dismissed as to them. We construe this as a concession on the jurisdictional question as to Kevin’s older siblings. To the extent the juvenile court extended its jurisdictional and dispositional findings to the three older children, we reverse the judgment for lack of subject matter jurisdiction.
ii) The Trial Court Relied on Improper Evidence to Find a Preponderance of Evidence Supported the Allegations of the Petition Relating to Mother’s Involvement as an Accessory to Robbery.
Mother challenges the sufficiency of evidence to support allegation b-1 of the petition because the criminal charges had been dismissed. In making its true finding on this allegation, the trial court considered information from another individual’s case with which it was familiar—not evidence presented at the hearing.
We review a juvenile dependency judgment for substantial evidence, that is, evidence which is reasonable, credible and of solid value, to support the conclusion of the trier of fact. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) We review only the evidence presented in the social worker’s reports which were admitted into evidence at the hearing, and find it insufficient to support the allegation contained in paragraph b-1 of the petition. This court cannot evaluate the strength of evidence that is not in the record, and therefore we cannot find substantial evidence to support the trial court’s finding that a preponderance of the evidence outside the record support’s the juvenile court’s finding that the mother was an accessory to the robbery.
To the extent the trial court made a true finding on allegation (b)(1) of the petition, referring to the alleged robbery incident, based on ex parte matters, mother’s confrontation rights were violated. (People v. Archerd (1970) 3 Cal.3d 615, 638 [trial judge violated confrontation rights by consulting medical experts outside of court proceedings].) A judge cannot receive information from sources outside the evidence in the case. (Guadalupe A. v. Superior Court (1991) 234 Cal.App.3d 100, 108-109.) Absent an objection, however, we simply consider whether the jurisdictional finding is supported by the evidence presented in the courtroom. Since we do not have before us the evidence to which the trial court referred, we confine our review to the four corners of the record. (Guadalupe A., supra, at p. 109; see also, In re Albert G. (2003) 113 Cal.App.4th 132, 134, fn. 3.)
In making its finding on the allegation that mother was an accessory to the robbery and assault crimes committed by others, the trial court stated: “I should note. I am familiar with that case because I handled the juvenile who was offered a disposition here in Juvenile Court, which would have required her to agree to a CYA commitment. In the alternative, the district attorney told her if she didn’t accept their offer, they would file as an adult, and they did, and the case came before me. And I am familiar with the facts based on my reading of the probation report in that case. And I’m not sure what the thought process was that went into the dismissal of the mother here. Perhaps the feeling was they couldn’t prove it beyond a reasonable doubt. But by a preponderance of the evidence standard, that would have easily been met, in my opinion.
After further discussion of other issues, the trial court found the allegations pertaining to the mother to be true by a preponderance of the evidence. The probation report to which the court alluded was not in evidence in the present case, and the juvenile court did not take judicial notice of any other particular records or files. The record does not reveal whether any of the counsel present was familiar with the information which the court disclosed. Mother did not object to the court’s statements, but she had already presented her argument and had submitted.
Other than mother’s statements regarding the incident as reported by the social worker, which are insufficient on their own to support jurisdiction, there is no competent evidence to prove mother was a knowing participant in the robbery such as would justify a finding that Kevin is a person described by section 300, subdivision (b). Mother is not serving a prison sentence which would prevent her from providing for Kevin’s welfare and there is no showing this incident is likely to recur in the future. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) While the social worker reported mother had and father “have several contacts with law enforcement”, a single charge of theft was attributed to mother. The previous child welfare history consists of three unsubstantiated reports of neglect.
The social worker’s jurisdictional report acknowledged that this particular problem had been addressed, but referred to the issue of mother’s admitted marijuana use and her inability to provide a stable home environment for Kevin in support of the recommendation, which we address separately below. The worker was also concerned that mother had a propensity to associate with others who place her children at risk through their behaviors. Homelessness and unemployment are not proper grounds for intervention or removal of children pursuant to section 300, subdivision (b). ([“No child shall be found to be a person described by this subdivision solely due to the lack of an emergency shelter for the family”]; see also, In re Danielle M. (1989) 215 Cal.App.3d 1267, 1271 [father’s unemployment and the fact he lived with his parents was not a ground for removal]; Hansen v. Dept. of Social Services (1987) 193 Cal.App.3d 283, 293-295 [DSS enjoined from pursuing policy of providing homeless shelter only to dependent children removed from parent’s custody because subversive of policy of preserving families].)
We therefore reverse the finding as to paragraph b-1 of the petition and direct its dismissal.
iii) There Was Sufficient Evidence Mother Was Unable to Care for Any of the Children Due to Substance Abuse.
Mother challenges the adequacy of the evidence to support the jurisdictional allegations pertaining to her abuse of controlled substances because the hair follicle test came back negative. We acknowledge that such a test may be relevant to support an inference that mother had not ingested controlled substances for a substantial period of time prior to the test. (See Faigman, et al., 4 Modern Scientific Evidence: The Law and Science of Expert Testimony (2006) § 43:57; see also, Tsatsakis, et al., Sectional Hair Testing. Judicial and Clinical Applications (2000) Vol. 72, No. 6, Pure Appl. Chem. p. 1057.) However, the social worker’s reports, admitted into evidence without objection, included mother’s admission she had previously used drugs, and her live-in ex-boyfriend sold and used marijuana, “sherm” (PCP-laced cigarettes (see In re Hardy (2007) 41 Cal.4th 977, 1013), and other controlled substances.
The social worker’s report also noted mother’s lack of stable housing and her association with people who engaged in criminal acts. Mother did not object to the evidence contained in any of the reports or offer any evidence of her own to contradict the inferences available from this evidence. The trial court could properly find she used controlled substances and her use prevented her from providing Kevin with adequate care within the meaning of section 300, subdivision (b).
We commend mother for her current sobriety but we cannot ignore the record which establishes substantial evidence to support the trial court’s finding of jurisdiction on paragraph b-2 of the petition. We therefore affirm that finding.
B. Abuse of Discretion in Ordering Removal of the Four Children from Mother’s Custody
Mother argues there was insufficient evidence to support the dispositional orders, and that the trial court abused its discretion in ordering removal of the children from her custody. Because we have reversed one of the two grounds alleged against the mother, and because we cannot determine the weight the court attributed to that finding in exercising its discretion to remove the children from mother’s custody, we remand the dispositional order for reconsideration in light of the remaining ground as to Kevin only, and vacate the disposition orders relating to the older siblings. (In re Carmaleta B. (1978) 21 Cal.3d 482, 496.) An abuse of discretion arises if the trial court based its decision on impermissible factors. (People v. Knoller (2007) 41 Cal.4th 139, 156.)
The trial court did not make any findings on the record as to the basis for its determination of “[t]he findings made pursuant to section 361 a, c1, d, and e1” [sic]. It simply observed that, with respect to disposition, “the Court finds that the children that are the subject of this proceeding are persons described by Welfare & Institutions Code Section 300, in that they come within Section 300(b) and (g) of the Welfare & Institutions Code.” Yet, the most recent addendum report indicated mother had a residence which was clean and well-organized, although she was unemployed and her telephone had been disconnected.
Because the court did not explain the basis for its findings and orders, we cannot tell whether the trial court would have ordered removal of Kevin on the strength of the remaining jurisdictional ground and the mother’s current circumstances. Therefore, we remand for a new disposition hearing as to Kevin on the remaining jurisdictional ground.
C. Lack of Notice to the Tribes and Insufficient Evidence to Support Court’s Finding that ICWA Did Not Apply.
Mother argues the juvenile court erred in finding that ICWA notice requirements had been complied with and that the minors were not Indian children. We agree.
The social worker has a duty to inquire about and obtain all information about a child’s family history in order to assist the tribe in determining if the child is an Indian child. (In re S.M. (2004) 118 Cal.App.4th 1108, 1116.) Notice must be sent whenever there is reason to believe the child may be an Indian child; only a suggestion of Indian ancestry is needed to trigger the notice requirement. (In re Robert A. (2007) 147 Cal.App.4th 982, 989.) To enable the juvenile court to determine whether sufficient information was supplied, the social worker must file with the court the ICWA notice, return receipts and responses received from the tribe. (In re Karla C. (2003) 113 Cal.App.4th 166, 175, 178-179.) Because failure to give proper notice of a dependency proceeding to a tribe with which the dependent child may be affiliated forecloses participation by the tribe, ICWA notice requirements are strictly construed. (Id. at p. 174.) The notice requirements are mandatory and cannot be waived by the parties. (In re Jennifer A. (2002) 103 Cal.App.4th 692, 707.) The failure to provide proper notice is prejudicial error requiring reversal and remand. (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.)
Throughout the case, the social worker’s reports include references to possible Indian heritage, and the social worker’s intention to send the requisite notices. However, there is no evidence this intention was ever carried out. Inexplicably, the court found the notice requirements had been met and that ICWA did not apply. This finding and the resulting conclusion are not supported by the record and require reversal.
3. Disposition
We reverse the jurisdictional and dispositional findings and orders respecting E.L., D.L., and K.M., and direct the dismissal of the petition as to them. As to Kevin M., we reverse the jurisdictional finding pursuant to allegation b-1 of the petition for insufficient evidence and direct its dismissal. We affirm the finding pursuant to allegation b-2 regarding mother’s admitted drug use. We reverse the disposition orders and remand for reconsideration in light of the remaining jurisdictional ground. We also reverse the finding that ICWA does not apply. On remand, the juvenile court is directed to order the DPSS to demonstrate it has substantially complied with the notice requirements of ICWA; if the juvenile court finds K.M. is not an Indian child, it shall reinstate the finding that ICWA does not apply.
We concur: Ramirez, P. J. McKinster, J.