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In re K.T.

California Court of Appeals, Fifth District
Apr 2, 2009
No. F055574 (Cal. Ct. App. Apr. 2, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County, No. JD117954, Robert J. Anspach, Judge.

Gino deSolenni, under appointment by the Court of Appeal, for Defendant and Appellant.

B. C. Barmann, Sr., County Counsel, and Mark L. Nations, Deputy County Counsel, for Plaintiff and Respondent.


OPINION

DAWSON, J.

N.T. (father) appeals from jurisdictional and dispositional orders made in finding that his daughter, K.T., was subject to dependency court jurisdiction under Welfare and Institutions Code section 300, subdivision (b) and removing her from his custody. He also claims notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) were not complied with. We affirm the orders.

All further statutory references are to the Welfare and Institutions Code.

PROCEDURAL AND FACTUAL HISTORY

K.T. was born six weeks prematurely in January of 2008 in San Francisco. At the time, K.T.’s parents were homeless, staying in various motels and, earlier, in a tent. When K.T. was released from the hospital a week and a half after her birth, her parents were referred to a doctor in Ukiah for follow-up care. The mother had received her principal prenatal care from a public health nurse in Mendocino County.

Prior to releasing K.T., the staff at the hospital contacted the public health agency in Mendocino County to notify it of father’s verbally assaultive behavior toward the hospital staff and his lack of commitment to follow-up care with a pediatrician. Father and the mother did not make the first follow-up appointment but made the next two.

On March 3, 2008, the mother and father brought K.T. into the emergency room in Ukiah with a linear skull fracture and a two-millimeter subdural hematoma. Both parents explained that K.T. had rolled off a bed and hit her head on the floor. K.T. was transferred to Oakland Children’s Hospital. The doctor in Ukiah left it to the Oakland medical staff to follow up on any possible child abuse. At the Oakland hospital, K.T. was referred to the pediatric intensive care unit for observation and appeared to be stable.

The following day, Mendocino County Department of Social Services (the Department) received a referral from the Oakland Hospital stemming from the injuries sustained by K.T.

Two days later, on March 6, 2008, father took K.T. from the hospital against medical advice and before testing was completed. The hospital had wanted to perform two tests designed to check for Shaken Baby Syndrome, which father was aware of. The hospital staff reported that, without the completed tests, K.T.’s life was in jeopardy.

The same day that father took K.T. from the hospital, the Oakland hospital made an emergency referral to the Department, explaining that father had removed the child against medical advice and had not taken the child’s medications with him. A social worker attempted to contact the family at a local motel and through the paternal grandmother, but was unable to do so.

On March 14, 2008, the Mendocino County Juvenile Court issued a protective custody warrant because there was no sign of K.T. or her parents. A petition filed March 13, 2008, and amended a week later, alleged that K.T. was at risk of harm because her parents removed her from the hospital against medical advice.

On March 19, 2008, father came forward and agreed to take K.T. to a physician in Ukiah. Following an examination, K.T. was released to a social worker.

At the detention hearing held March 24, 2008, the dependency court ordered K.T. detained. At the hearing, counsel informed the court that appellant believed K.T.’s paternal great-grandmother, Y.T., was “full-blooded Cherokee,” but father had no enrollment information, not even a birth date, for her. According to counsel, father stated that the Indian heritage was on his paternal side, but he had no contact with his father.

Father subsequently completed an ICWA parent history chart listing Y.T. as his mother (not grandmother), T.T. as his father, and A.T. as his paternal grandfather. He indicated that he and Y.T. were of the Cherokee tribe. He did not have birth date information for anyone other than himself. The Department notified the Cherokee tribes and the Bureau of Indian Affairs of the proceedings, identified Y.T. and T.T. as K.T.’s paternal grandparents, and inquired whether K.T. had any Cherokee heritage. All tribes that responded stated that K.T. could not be traced in the tribal records based on the information provided.

The report filed in anticipation of the jurisdictional hearing provided the factual background leading to K.T.’s detention. A full skeletal X-ray showed no old or new fractures. A physician from the Oakland hospital had a social worker take father and the mother to the hotel room where K.T. was injured and recreate the events that led to her fall from the bed. As a result, the physician opined that it was uncommon but possible that K.T. was injured due to a fall from the bed.

At the contested jurisdictional hearing on April 30, 2008, counsel argued that there was no threat of harm to K.T. if she were returned to her parents. Father testified that K.T. fell off the bed when she was left with a six-year-old sibling for a few minutes while father stepped out for a cup of coffee. The family immediately took the injured child to the hospital in Ukiah, where she was then transferred to the hospital in Oakland. After three or four days, father determined that K.T. looked healthy and decided to take her home. He claimed to have spoken to a physician a day earlier who told him K.T. was fine and that they just wanted to run some follow-up tests. Father testified that he took K.T. out of the hospital because he did not think she was safe there and he was tired of the testing. He thought the testing could be done in Ukiah.

Father testified that he called his mother on March 9, 2008. She told him to immediately get medical care for K.T. because she could be in danger and that he was to call child protective services and turn himself in. He acknowledged that he did not take K.T. to the Ukiah hospital for 13 days after removing her from the Oakland hospital because he was trying to find a lawyer to “come up with some sort of defense in court” for himself.

Father claimed that he was concerned for K.T.’s well-being and watched for signs or symptoms that would suggest she needed to return to the hospital, but saw none. He acknowledged that, if he had to do it over again, he would not have removed her.

The dependency court sustained the allegations of the petition and set a disposition hearing for May 14, 2008.

The dispositional report filed in anticipation of the hearing stated that father’s attorney, mother’s attorney, K.T.’s attorney, county counsel, and the social worker met to discuss several options for working toward family reunification. The social worker and father’s attorney then spoke with the family to discuss the options. Father stated that they would do whatever the Department wanted, but that they preferred the option of moving in with a relative in Bakersfield, placing K.T. with father’s mother, and then participating in family reunification services.

The report also included information concerning mother’s many failed relationships with abusive men and her struggles to provide shelter and basic necessities for her children. The report reviewed father’s criminal background, much of it related to drugs. Father had already completed a “Breaking the Cycle” class and was scheduled to begin an intake support group on May 15, 2008. Father’s only source of income was “panhandling.” Father told the social worker he enjoyed a carefree lifestyle, openly admitted to being defiant from an early age, prided himself as being a drifter, and was content to sleep “under the stars.” The social worker determined that neither father nor mother valued stable housing nor had any strong work ethics.

The Department recommended a case plan that required father to stay free of illegal drugs, obtain and maintain a stable and suitable residence for himself and his child, attend counseling regarding oppositional behavior, and attend a parenting program.

At the time of the dispositional hearing, the dependency court adopted the proposed case plan without objection from either appellant or his counsel. The court also found that proper notice had been given to the Indian tribes, that the tribes had indicated that K.T. was not eligible for membership, and that ICWA did not apply to the case. The court set the matter for an October 9, 2008, six-month review. That same date, the court transferred the case out of Mendocino County to Kern County. After a transfer-in hearing on June 19, 2008, the Kern Juvenile Court set a review hearing for October 8, 2008.

DISCUSSION

1. Jurisdictional Order

Father challenges the sufficiency of the evidence to support the court’s jurisdictional findings under section 300, subdivision (b). Father contends the evidence did not establish the existence of an ongoing substantial risk of harm to K.T. We disagree.

As relevant here, section 300 provides:

“Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶] …[¶]

“(b) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, … by the willful or negligent failure of the parent … to provide the child with adequate food, clothing, shelter, or medical treatment ….”

The statute requires that a child be at substantial risk, not that the child actually suffer substantial harm, before the state can intervene. (§ 300, subd. (b).) To support a finding of jurisdiction, the Department has to show, by a preponderance of the evidence, that the minor has suffered, or there is a substantial risk that the minor will suffer, serious physical harm or illness, as a result of the failure or inability of the parent to adequately supervise or protect the minor, or by the willful or negligent failure of the parent to provide the minor with adequate food, clothing, shelter, or medical treatment. (§ 355, subd. (a); In re Matthew S. (1996) 41 Cal.App.4th 1311, 1319; In re Rocco M. (1991) 1 Cal.App.4th 814, 820-824.) “In determining whether the child is in present need of the juvenile court’s protection, the court may consider past events.” (In re Petra B. (1989) 216 Cal.App.3d 1163, 1169.)

As this court explained in In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379, in juvenile dependency cases, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether there is any substantial evidence, contradicted or not, that will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the decision, if possible. We may not reweigh or express an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.) In this regard, issues of fact and credibility are matters for the dependency court alone. (In re Amy M. (1991) 232 Cal.App.3d 849, 859-860.)

Here, substantial evidence supports the dependency court’s finding that father’s behavior placed K.T. at risk of serious physical harm. Father removed the six-week-old baby, who was born prematurely and subsequently sustained a linear skull fracture and subdural hematoma, from the hospital against medical advice. When he did so, he did not take the child’s medications with him. As a result, the hospital was unable to complete testing of K.T. to rule out Shaken Baby Syndrome. After removing K.T. from the hospital, father waited almost two weeks before he agreed to take K.T. to see a medical professional. A subsequent medical opinion did not rule out that the injury to K.T. might have been deliberate. At the time of the jurisdictional hearing, father was still essentially homeless and did not have any apparent means of providing a stable living environment for K.T.

In re Petra B., supra, 216 Cal.App.3d at page 1169 is instructive. In that case the court found there was substantial evidence to support a jurisdictional finding based on the parents’ failure to seek necessary medical treatment for their daughter’s injuries, even though the injuries had healed by the time of the hearing. The court explained that “[t]he issue before the court … was not merely whether the wounds had healed but whether Petra’s parents were capable and willing to exercise proper medical care.” (Ibid.) The court concluded, based on the parents’ prior conduct and continued belief that treatment with herbal remedies was appropriate for Petra’s injury, that “the parents, at the time of the hearing, were not capable or willing to exercise proper medical care.” (Id. at pp. 1169-1170 [“attitude of the parents and confusion about proper medical treatment posed a then existing threat to Petra’s well-being and justified the court’s assumption of jurisdiction”].)

Father contends his case is factually distinguishable from that of Petra B. because “there was no evidence at the time of the jurisdiction hearing that [father and mother] were unwilling or incapable of providing appropriate medical care for [K.T.].” Father cites the fact that he sought medical treatment for K.T. immediately after she was injured and followed the medical recommendation that she be transferred to Oakland. And, he argues, had he known at the time he removed K.T. what he knew at the time of the jurisdictional hearing, he would not have removed her from the hospital.

But father fails to consider that he was told at the time he removed K.T. that he would be doing so against medical advice; that he knowingly did so before the hospital had a chance to rule out Shaken Baby Syndrome; that he did not take K.T.’s medications with him when he removed her; and that he did not take K.T. for medical treatment for two weeks after removing her because he was trying to find a lawyer to represent him. The dependency court also had before it information that father had been “verbally assaultive” of hospital staff at the time of K.T.’s birth, and that the staff had concerns because father showed a lack of commitment to followup for K.T. with a pediatrician.

“[T]he question under section 300 is whether the circumstances at the time of the hearing subject the minor to the defined risk of harm.” (In re Rocco M., supra, 1 Cal.App.4th at p. 824.) Our review of the evidence available to the dependency court at the time of the jurisdictional hearing—that father failed to take seriously K.T.’s health and injury—sufficiently established that K.T. was at risk of serious physical harm due to father’s failure to provide her with adequate medical care, placing her life in danger.

2. Dispositional Order

Father also challenges the sufficiency of the evidence supporting the dependency court’s disposition order, again asserting that there was no evidence he posed a future risk to K.T. We find that father waived his right to challenge the disposition order because it comported with the case plan to which father agreed. (In re Richard K. (1994) 25 Cal.App.4th 580, 589-590.)

In In re Richard K., the social worker recommended in her disposition report that the children be removed from their mother’s physical custody based upon a finding of substantial danger to their physical health. At the disposition hearing, counsel for the mother submitted the matter on the social worker’s recommendation. (In re Richard K., supra, 25 Cal.App.4th at p. 588.) The juvenile court followed the social worker’s recommendation and ordered the children removed from their mother’s custody. (Ibid.) On appeal, the mother challenged the sufficiency of the evidence to support the juvenile court’s removal order. The court concluded that when a parent at a disposition hearing submits on the recommendation of the social worker—and not simply to the juvenile court’s consideration of the evidence contained within the report—the parent’s “submittal amount[s] to acquiescence” and precludes the parent from challenging the sufficiency of the evidence to support the disposition order. (Id. at pp. 588-590.) The court summarized:

“If, as occurred in this case, the court in turn makes the recommended orders, the party who submits on the recommendation should not be heard to complain.… [B]y submitting on the recommendation without introducing any evidence or offering any argument, the parent waived her right to contest the juvenile court’s disposition since it coincided with the social worker’s recommendation.” (In re Richard K., supra, at pp. 589-590.)

Here, the disposition report dated May 16, 2008, stated that, on May 14, 2008, attorneys for father, mother, and K.T. met with the social worker and county counsel to discuss “possible dispositional scenarios.” Later that same day, the social worker and father’s attorney spoke to the family about the possible options. Father’s attorney said the family was “willing to do whatever the Agency wanted,” but they preferred the scenario in which K.T. was placed with father’s mother in Bakersfield, and father and mother would move in with father’s sister, also in Bakersfield. K.T. was transferred to her paternal grandmother that same day. It was agreed that father would move to Kern County immediately and the mother and her eight-year-old child would follow in two weeks after the child finished the school year.

Here, the dependency court began the disposition hearing by asking counsel “about the findings and order on disposition.” K.T.’s attorney asked only that mother also be given individual counseling to address codependency issues. The court then asked, “Other than that, … are we gonna adopt the disposition orders today?” Father’s attorney stated, “Submit, your Honor.” After further clarification regarding the transfer of the case to Kern County, the court stated that it would sign the disposition order and asked whether “parents waive the reading[.]” Father’s attorney again agreed, stating, “Yes, your Honor.” The court then stated that it was signing the disposition order, “which is incorporating and making the case plan as part of the order that you’re gonna be required to comply with.” The dispositional order specifically stated that the court had received and considered the social worker’s report dated May 16, 2008.

Father argues that the record in his case does not indicate that he submitted the matter on the recommendations of the social worker. We agree that father’s counsel did not specifically state he was submitting on the Department’s “recommendations,” but instead stated he was submitting when asked whether he wished to adopt the disposition order. The order specifically referenced the social worker’s report, which stated that father had agreed to have K.T. placed with his mother. Read in context, it is apparent that father’s attorney was submitting the matter on the social worker’s recommendations. Having acquiesced to the Department’s recommendation, father waived his right to challenge the sufficiency of the evidence to support the disposition order.

3. ICWA Notice Requirements

Father filed a Parental Notification of Indian Status, stating that he might be a member or eligible for membership in a federally recognized Indian tribe. Father now contends that the ICWA notification was insufficient because it failed to accurately list the name of his mother, information which the Department had. We conclude any error was harmless.

The ICWA provides that when a child subject to a dependency proceeding is or may be of Native American heritage (referred to in the ICWA as an “Indian child”) each tribe of which the child may be a member or eligible for membership must be notified of the dependency proceeding and of the tribe’s right to intervene in the proceeding. (25 U.S.C. § 1912(a).) An “Indian child,” for purposes of the ICWA, is “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” (25 U.S.C. § 1903(4).) “A determination by an Indian tribe that a child is or is not a member of or eligible for membership in that tribe … shall be conclusive.” (§ 224.3, subd. (e)(1).)

“One of the primary purposes of giving notice to the tribe is to enable it to determine whether the minor is an Indian child. [Citation.] Notice is meaningless if no information or insufficient information is presented to the tribe. [Citation.] The notice must include … information about the Indian child’s biological mother, biological father, maternal and paternal grandparents and great-grandparents or Indian custodians, including maiden, married and former names or aliases, birthdates, places of birth and death, current and former addresses, tribal enrollment numbers, and/or other identifying information. [Citations.]” (In re S.M. (2004) 118 Cal.App.4th 1108, 1115-1116, fn. omitted.)

“Substantial compliance with the notice requirements of ICWA is sufficient. [Citation.]” (In re Christopher I. (2003) 106 Cal.App.4th 533, 566.)

The ICWA notice requirement in this case was triggered by father’s belief, as stated by counsel at the disposition hearing, that his paternal grandmother, Y.T., might be Cherokee. Father subsequently completed an ICWA parent history chart listing Y.T. as his mother (not grandmother), T.T. as his father, and A.T. as his paternal grandfather. He indicated that he and Y.T. were of the Cherokee tribe. Aside from his own date and place of birth, the only other information he provided was his father’s birth place.

In response, the Department sent notices to various Cherokee tribes listing Y.T. as father’s biological mother, T.T. as father’s biological father, and A.T. as father’s biological grandfather. No other identifying information, other than father’s place of birth, was given. All tribes that responded stated that K.T. could not be traced in the tribal records based on the information provided.

Father contests the adequacy of the various notices sent, claiming that the Department failed to accurately list the name of his mother, information which the Department had. We agree that the notices sent to the tribes did not correctly list father’s biological mother (K.T.’s paternal grandmother). Instead, the notices incorrectly listed father’s paternal grandmother as his mother, a mistake originally made by father when he completed the ICWA parent history chart.

Nonetheless, we find the error harmless. (In re Alexis H. (2005) 132 Cal.App.4th 11, 14-16 [errors in ICWA notice subject to review under harmless error analysis].) The only Indian heritage reported by father was that his paternal grandmother, Y.T., was Cherokee. The available information about this individual was contained on the ICWA notice, albeit as father’s mother and not his grandmother. Although it was error to omit information about father’s mother, there was no claim that she had Indian heritage, thus, no prejudice could have resulted from the omission. (See, e.g., In re Brandon T. (2008) 164 Cal.App.4th 1400, 1414-1415 [harmless error to omit name of paternal grandmother from notice since no one claimed she had Indian heritage].)

DISPOSITION

The jurisdictional and dispositional orders are affirmed.

WE CONCUR: WISEMAN, Acting P.J., GOMES, J.


Summaries of

In re K.T.

California Court of Appeals, Fifth District
Apr 2, 2009
No. F055574 (Cal. Ct. App. Apr. 2, 2009)
Case details for

In re K.T.

Case Details

Full title:In re K.T., a Person Coming Under the Juvenile Court Law. KERN COUNTY…

Court:California Court of Appeals, Fifth District

Date published: Apr 2, 2009

Citations

No. F055574 (Cal. Ct. App. Apr. 2, 2009)