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In re Natalie M.

California Court of Appeals, Third District, Sacramento
Sep 9, 2008
No. C056886 (Cal. Ct. App. Sep. 9, 2008)

Opinion


In re NATALIE M. et al., Persons Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. DENNIS M., Defendant and Appellant. C056886 California Court of Appeal, Third District, Sacramento September 9, 2008

NOT TO BE PUBLISHED

Super. Ct. Nos. JD219751, JD219752 & JD222997

HULL, J.

Dennis M. (appellant), the father of Cody S., Natalie M. and Jason M. (collectively, the minors), appeals from the order of the juvenile court terminating his reunification services. (Welf. & Inst. Code, § 395; further undesignated statutory references are to this code.) Appellant claims the court erred by terminating his services and by ordering no contact between the minors and him. He also claims there was a failure to comply with the notice provisions of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) Concluding these claims are without merit, we shall affirm.

Facts and Proceedings

In August 2003, petitions were filed by the Sacramento County Department of Health and Human Services (the Department) concerning Cody S. and Natalie M. (17 months old and newborn, respectively), as well as their two half siblings, after Natalie tested positive for marijuana at birth. The petitions alleged that the mother had a substance abuse problem, the home was dirty and unsafe, the parents “‘whooped’” the children with a belt and their hands, and appellant was a registered sexual offender. Although the allegation regarding appellant’s sexual offender status was later dismissed, he acknowledged he had fondled two eight-year-old female neighbors in 1990, for which he was sentenced to eight years in state prison. He also admitted he had not participated in counseling since being released from prison and did not have a certificate of completion of a sexual offender’s program.

The juvenile court sustained the allegations in the petitions regarding the mother’s substance abuse and the parents’ discipline of the children and ordered the children returned home with family maintenance services.

At each subsequent review hearing, family maintenance services were continued because there continued to be concerns about the family, including the condition of the home and appellant’s aggressive and inappropriate behavior with the minors and service providers.

In June 2005, Jason M. was born. Three months later, supplemental petitions were filed, as well as an original petition regarding Jason, based on the “filthy” condition of the home and the children.

The children were returned to the parents’ care one week later, but the following month, subsequent petitions were filed regarding the older children and an amended petition as to Jason, after it was discovered that Natalie (now two years old) had a third degree, nonaccidental burn on her abdomen. The children were detained and, subsequently, the allegations in the petitions were sustained.

While the dispositional hearing was pending, the mother submitted several positive tests for marijuana. Meanwhile, a psychological evaluation of appellant noted “disturbing signs of sexual preoccupation or unresolved sexual issues,” and the evaluator expressed “serious concerns about proceeding with reunification services for [appellant] involving young female children for whom he might be responsible.” A short-term counseling report concerning appellant found that he did not consider himself to have any parenting deficits and had “difficulty taking responsibility for his present interactions with the legal system.”

At the dispositional hearing, the juvenile court adopted the social worker’s recommended findings and ordered termination of reunification services as to the older children and denial of services as to Jason. The court set the matters for a hearing pursuant to section 366.26 to select and implement permanent plans for the children.

Appellant and the mother sought an extraordinary writ challenging the juvenile court’s order (Cal. Rules of Court, rule 8.452), and in January 2007, we issued a writ of mandate directing the juvenile court to vacate its orders because it had failed to make sufficient findings to support the termination of services as to the older children and the denial of services as to Jason. (Dennis M. v. Superior Court (Jan. 17, 2007, C053699) [nonpub. opn.].)

In June 2007, the juvenile court noted that the parents had been referred for services and directed the Department to prepare a report. Appellant was in custody at the time for failing to register as a sexual offender.

The social worker prepared a report recommending continuation of the mother’s reunification services, but termination of appellant’s services and no contact between appellant and the minors. With regard to appellant, the social worker noted that he had not participated in counseling or substance abuse testing since his incarceration four months earlier and had submitted a positive test for unprescribed hydrocodone prior to being incarcerated. Furthermore, he continued to blame the Department and “the system” for the minors’ removal from his home, and spent the majority of two visits observed by the social worker talking about these issues. In addition, appellant’s parole conditions prohibited him from having any contact with children, including his biological children. Appellant’s adult son, with whom the minors were placed, felt the minors would be in danger if returned to appellant’s care. The social worker concluded that the risk of returning the minors to appellant was extremely high, based in part on his parole officer’s assessment that he was at high risk for reoffending against children, as well as the conclusions contained in appellant’s psychological evaluation one year earlier.

At the review hearing, appellant’s attorney objected to the termination of services on the basis that appellant wanted to reunify, had completed parenting classes, and was willing to participate in substance abuse testing and counseling.

The juvenile court ordered the mother to comply with her case plan but terminated appellant’s reunification services. The court also followed the recommendation contained in the social worker’s report for no contact between appellant and the minors, explaining: “[T]hat is just consistent with your probation conditions. I don’t want you to get in trouble and end up back in prison.”

Discussion

I

Termination of Reunification Services

Appellant claims the juvenile court erred by terminating his reunification services while continuing services for the minors’ mother. He is incorrect.

In re Alanna A. (2005) 135 Cal.App.4th 555, 566, held that a juvenile court has discretion to provide services to a nonreunifying parent when it continues reunification efforts with the other parent. Nonetheless, “at each review hearing, the court must evaluate the efforts or progress toward reunification made by each parent individually . . . . [and] reunification often involves one, but not both, parents.” (In re Jesse W. (2007) 157 Cal.App.4th 49, 60.) Thus, the court in Alanna A. recognized it is not an abuse of discretion to deny further services to one parent while continuing services for the other when evidence supports the “assumption that offering services would be an unwise use of governmental resources” or that reunification efforts would be futile. (Ibid.)

In the present matter, the juvenile court declined to offer additional services to appellant. In light of appellant’s continuing refusal to recognize any responsibility for the minors’ dependency status, the evidence that he presented a risk to reoffend, and the prohibition against him having contact with any children, including his own, we detect no abuse of discretion in the court’s determination.

II

No-contact Order

Appellant next claims the juvenile court erred by ordering no contact between the minors and him. His failure to object to the order in juvenile court forfeits this issue.

“In dependency litigation, nonjurisdictional issues must be the subject of objection or appropriate motions in the juvenile court; otherwise those arguments have been waived and may not be raised for the first time on appeal.” (In re Christopher B. (1996) 43 Cal.App.4th 551, 558.) The reason for the rule requiring a party to raise an issue in the juvenile court is to afford the court an opportunity to modify its order.

Here, while objecting to other recommendations of the social worker, appellant’s attorney failed to state any objection to the proposed no-contact order. The juvenile court reasonably could have assumed that appellant’s failure to object signified his consent to that portion of the recommendations. (See In re Precious J. (1996) 42 Cal.App.4th 1463, 1476, and In re Daniel C.H. (1990) 220 Cal.App.3d 814, 838.) Appellant’s failure to object to the recommendation bars him from raising the issue on appeal.

In any event, the juvenile court did not err by ordering no contact between the minors and appellant. A term of appellant’s parole prohibited him from having contact with children, including his own, and an order permitting visitation would have been in direct conflict with this term. Furthermore, it was not only appellant’s parole officer who believed appellant was at high risk for perpetrating further sexual offenses against minors -- a psychological evaluation had raised similar concerns, and appellant had not participated in sexual offender counseling following his release from prison. Thus, in spite of the conclusions of a bonding study that the two older minors had a positive bond with appellant, a no-contact order was reasonable under the circumstances.

Appellant maintains the juvenile court was required to find a change of circumstances before modifying the previous visitation order. To the contrary, the juvenile court was authorized to discontinue visitation once it terminated appellant’s reunification services if it found that visits would be detrimental to the minors. (Cf. In re Luke L. (1996) 44 Cal.App.4th 670, 679 [continuation of visitation after reunification efforts have ceased absent a showing of detriment]; § 366.21, subd. (h) [same].) As already addressed, there was ample evidence to support this finding in the present matter.

III

ICWA

Finally, appellant maintains the juvenile court erred by not requiring ICWA notice based on statements made at a detention hearing in 2003 that his great-great-great-grandmother “possibly” had Cherokee ancestry. We reject this claim as well.

The ICWA was enacted “to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children ‘in foster or adoptive homes which will reflect the unique values of Indian culture . . . .’” (In re Levi U. (2000) 78 Cal.App.4th 191, 195; 25 U.S.C. § 1902; Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30 [104 L.Ed.2d 29].)

Among the ICWA’s procedural safeguards is its provision for notice, which states in part: “In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” (25 U.S.C. § 1912(a).) An Indian child is an unmarried person under the age of 18 who is either a member of a recognized Indian tribe or who is eligible for membership in such a tribe and is the biological child of a member of the tribe. (25 U.S.C. § 1903(4).)

Although the Indian status of a child need not be certain or conclusive to trigger the ICWA’s notice requirements (In re Desiree F. (2000) 83 Cal.App.4th 460, 471), we conclude that the information provided by appellant was too remote and uncertain to trigger the ICWA’s notice provisions.

The definition of an “Indian child” in the ICWA limits its reach to children whose biological ties to the tribe are of relatively recent genesis. Appellant did not assert that he is a member of an Indian tribe or that the minors are members or eligible for membership in an Indian tribe. He asserted only that a relative who was six generations removed from the minors “possibly” had Indian heritage. The juvenile court was warranted in concluding that the mere possibility a relative six generations ago may have had Cherokee heritage was not a reason to know the minors were Indian children.

Appellant relies on section 224.3, subdivision (b)(1), which states that one of the “circumstances that may provide reason to know the child is an Indian child” is when “a person having an interest in the child . . . provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child’s biological parents, grandparents, or great-grandparents are or were a member of a tribe.”

Appellant provides no authority for interpreting the reference to “great-grandparents” in section 224.3, subdivision (b)(1), to include a great-great-great-great-grandparent. To the contrary, the statutory language expressly limits the number of generations back the court must consider in determining whether a child’s Indian ancestry provides reason to know the child is an Indian child. This language further supports the juvenile court’s conclusion in this matter that appellant’s claim of possible Indian heritage was too remote to warrant ICWA notice.

Accordingly, we conclude the juvenile court did not commit error by failing to order ICWA notice.

DISPOSITION

The juvenile court’s orders are affirmed.

We concur: RAYE, Acting P.J., MORRISON, J.


Summaries of

In re Natalie M.

California Court of Appeals, Third District, Sacramento
Sep 9, 2008
No. C056886 (Cal. Ct. App. Sep. 9, 2008)
Case details for

In re Natalie M.

Case Details

Full title:In re NATALIE M. et al., Persons Coming Under the Juvenile Court Law…

Court:California Court of Appeals, Third District, Sacramento

Date published: Sep 9, 2008

Citations

No. C056886 (Cal. Ct. App. Sep. 9, 2008)