Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. JD19808, JD19823, JD19824, JD19825.
BAMATTRE-MANOUKIAN, ACTING P. J.
In H035646, M.M. mother of the four children at issue here, appeals from a dispositional order placing the children in her care with family maintenance services. She contends that the jurisdiction findings as to all four children were made without sufficient evidentiary support. In H035948, mother appeals from a subsequent disposition order placing the youngest of the four children in out-of-home care with family reunification services. She contends that this order was also made without evidentiary support. She further contends that the order must be reversed because notice under the Indian Child Welfare Act (ICWA) was faulty. As we agree with mother’s last contention, we will reverse that disposition order and remand the matter with directions to order the Department of Family and Children’s Services (the Department) to send proper notice as to that child under the ICWA. We will affirm all other disposition orders.
BACKGROUND
H035646
Mother has four sons: Robert H. (Robert), F.M., P.M, and Alexander R. (Alexander). In September 2009, Robert was 13 years old, F.M. was eight years old, P.M. was seven years old, and Alexander was one month old. Robert’s father is deceased, F.M. and P.M.’s father is mother’s now former husband Juan M. (Juan), and Alexander’s father is B.R. In addition, mother and Juan were the guardians of a two-year-old girl, Natalie R. (Natalie) who is B.R.’s granddaughter.
Mother’s and Juan’s marriage was not dissolved until July 13, 2010.
The court found on April 6, 2010, that B.R., who is a registered sex offender, is Alexander’s biological father.
Mother received informal supervision services in lieu of court intervention beginning in February 2009. At least eight prior child abuse and neglect referrals involving mother’s children had been substantiated for physical abuse, caretaker absence/incapacity, emotional abuse, substantial risk of sexual abuse, and general neglect. Mother had abused prescription pain medication and was in a methadone maintenance program. She reported that she saw Robert on September 2, 2009, shaking Alexander with force when the baby would not stop crying. On September 3, 2009, Robert engaged in a physical altercation with mother during which he attempted to choke her and she bit, scratched, and slapped him. Mother voluntarily placed Robert at the Bill Wilson Center (the BWC) that same day because she was not able to adequately supervise him. While at the BWC, Robert put another child in a choke hold when that child hit and pushed him, and he physically assaulted a child who was taunting him. Mother did not pick up school homework assignments for Robert so that he could stay current with his studies while he was at the BWC. Robert was not released from the BWC on September 19, 2009, because mother stated that he could not return home as she could not handle his behavior or trust him with Alexander. Also, in September 2009, the Santa Clara County juvenile court terminated mother’s and Juan’s guardianship of Natalie after finding that mother had neglected Natalie’s basic needs; had placed Natalie at risk of harm by allowing Natalie to have contact with B.R., who is a registered sex offender and who is prohibited from having contact with children; and had placed Natalie at risk of physical and emotional harm by exposing her to domestic violence between mother and Juan and between mother and B.R. In January 2007, after B.R. had yelled obscenities at her, had kicked a ball into her vehicle, and had threatened to get Juan in jail, mother reported to the police that she was frightened of B.R. and believed that he was likely going to kill her. In April 2007, after mother and B.R. got into a verbal argument at her home while the children were present, mother called the police after B.R. threw his cell phone against the wall, refused mother’s request to leave, and pushed her. In December 2007, mother called the police when B.R. stole her cell phone after they had an argument at her residence and she asked him to leave. In January 2008, B.R. was arrested after Juan reported that he had hit Juan in the face at mother’s home. In March 2008, both mother and Juan were arrested for domestic violence after they got into a physical dispute. Robert, F.M., and P.M, were residing in the residence under the same conditions as Natalie was when Natalie lived with mother.
The Department filed a petition under Welfare and Institutions Code section 300, subdivision (b) [failure to protect] as to Robert on September 21, 2009, and he was placed in protective custody. At a hearing on September 25, 2009, the juvenile court ordered supervised visits and that B.R. have no contact with Robert. The Department filed petitions under section 300 subdivisions (b) and (j) [abuse of sibling] as to F.M, P.M., and Alexander on October 2, 2009. At a hearing on October 7, 2009, the juvenile court found that the ICWA may apply to Alexander, and ordered B.R. (who was present at the hearing) to give information regarding his relatives to the social worker, and ordered the social worker to send the ICWA notices. B.R. stated that the paternal grandmother may be registered as a Mescalero White Mountain Apache, but he did not provide any other information.
All further statutory references are to the Welfare and Institutions Code.
After a number of continuances, the four-day contested jurisdiction hearing for all four boys began on April 26, 2010. By then, a second amended petition as to Robert under subdivisions (b) and (c) [serious emotional damage], and first amended petitions as to F.M., P.M., and Alexander under subdivisions (b) and (j), had been filed. The jurisdiction/disposition reports and addendums recommended that mother retain custody of Robert, F.M., P.M., and Alexander with family maintenance services, and that Juan and B.R. also be provided family maintenance services.
The jurisdiction/disposition reports and addendums indicated that mother was in a perinatal substance abuse program (PSAP) and taking methadone. Her random drug test results were consistently positive for methadone and negative for everything else. However, she had tested positive in December 2009 for Ambien, a drug forbidden by PSAP. Robert had been placed in a foster home and then later was placed with his maternal aunt, but Robert refused to stay anywhere other than his mother’s home. He had run away several times from his other placements, and had gone to stay at mother’s home before returning to those placements. He was placed on an extended overnight placement with mother beginning on March 24, 2010. Robert had not been attending school regularly, and was failing all classes except for P.E. His teachers and the school psychologist reported that he was demonstrating inappropriate and disruptive behaviors as well as general unhappiness and depression. Although it was recommended that Robert be placed in a “therapeutic classroom environment, ” mother disagreed with the recommendation and transferred him to another school to complete the school year. F.M. and P.M. were attending school and P.M. was receiving special education services for a serious learning disability. Juan, their father, was frequently at mother’s house helping her parent the two boys and Alexander. One weekday per week and every other weekend, F.M. and P.M. stay with Juan and his family. B.R. was incarcerated in October 2009 for violating a condition of his parole that he have no contact with children. B.R. was expected to be released in May 2010, and to remain on parole until August or September 2010. Both mother and B.R. wanted B.R. to be a part of Alexander’s life. Therefore, the recommended services would address domestic violence, sexual abuse of a minor, and substance abuse.
Mother testified that she takes methadone on a daily basis for pain management and she believes that she is methadone dependent, but she intends to wean herself off methadone “fairly soon.” She did not think that she needed to have drug testing because she does not think she has a substance abuse problem. The medication does not affect her ability to take care of her children. The doctor she saw when she first entered PSAP authorized her use of Ambien, but PSAP later switched doctors.
Mother called the police on three occasions due to domestic violence incidents involving Juan. At the time of the hearing, they were co-parenting and getting along well. Mother also called the police on several occasions due to “arguments” with B.R. and his refusal to leave her home. She did not think that what had occurred with B.R. was domestic violence. At the time of the hearing, B.R. was incarcerated for having contact with her children several times in violation of a condition of his parole, but she thought that any contact B.R. had with her children was accidental. Mother stated that she had not been in a relationship with B.R. for about one year, that she was not afraid of B.R., that she was not concerned that he may come to her home when he is released from prison, and that she did not believe that he posed any risk to her children. B.R. was convicted of sexually assaulting his daughter in violation of Penal Code section 290 some 20 years before, but mother did not believe that a sexual assault had actually occurred.
Mother entered into an informal supervision agreement with the Department in February 2009, in which she was to participate in a parenting class and a domestic violence program and to obtain therapy for herself and the children. She was unable to obtain therapy for Robert, F.M., and P.M. She participated in counseling through PSAP. She was terminated from her parent education program in April 2009, but she disagreed with the reason for that termination. She eventually completed a class in February 2010. She was terminated from the domestic violence support group because she wanted to take notes but other members of the group did not want her to because of confidentiality issues. She followed the rules otherwise. Although she was late twice and left early on occasion, it was always due to doctors’ appointments. She had not since completed a domestic violence support group program, and she did not think that it was “absolutely necessary” that she participate in one.
On September 3, 2009, after mother insisted that Robert take out the trash, Robert attacked her. He pinned her down on the floor and choked her. She was afraid that he was going to seriously hurt her, so she clawed at him and bit him on the arm. She told the social worker that Robert was out of control and she asked for some help for him. She placed him at the BWC where he was able to get help. The first two weeks Robert was at the BWC, she did not visit him or pick up his school homework. The social worker picked up the homework from Robert’s school and took it to him.
The week before the hearing, mother and a support person were trying to get Robert to do his homework and Robert became angry. He stood up, ran in a circle at the top of the stairs, pounded the walls and doors with his fists, and attempted to “get into the [support person’s] face.” Mother was concerned for everybody’s safety, including Robert’s, so she called the police. By the time an officer came out, Robert had calmed down and was in bed. Mother was not afraid that Robert might seriously hurt her or the other children in the future; “it is nothing that I could not handle.” She thinks Robert has behavioral problems that need to be addressed through therapy. She believed that Robert should be put in a therapeutic day class only as a last resort, but he had been receiving such services at his new school for about a week. He was three to four years below his grade level.
P.M. also has some behavioral issues, but mother was willing to have him participate in therapeutic day classes. However, she did not think that P.M. needed counseling. F.M. was doing well. Juan comes by and helps mother with the boys a few times each week. Juan also drives her to, and sits in the car with Alexander while she attends, her methadone clinic.
Alexander was supposed to be vaccinated in September 2009, but mother was not able to get him vaccinated until November 2009 due to insurance problems. She could not participate in her PSAP program on two occasions because the day care turned her away when Alexander had diarrhea. She believed that Alexander’s diarrhea was related to his teething. Mother last took Alexander to see a doctor the week before the hearing, and everything was fine then.
At the time of the hearing, mother was receiving in-home support and guidance in her parenting of her sons. She understood that those services would be terminated if the court dismissed the Department’s petitions as she requested. But, she felt that she could handle all four children without this help. She stated that she would continue to participate in counseling and continue to seek help when it was necessary.
Lara Windett, mother’s PSAP counselor, testified as an expert in the areas of substance abuse assessment and treatment. Mother was admitted into the PSAP program in April 2009 due to her opiate dependency/addiction. Although methadone can be prescribed for pain management, PSAP is not a pain management clinic. If mother needed methadone for pain management, rather than for treatment of her dependency/addiction, she would have been sent to a different clinic. At the time of the hearing, neither the doctor nor Windett were advising that mother attempt to wean herself off methadone.
Windett testified that “addiction and dependence are the same thing, ” but “abuse and dependence are different.” Although “abuse can escalate to dependency[, i]t does not have to.”
Mother was informed at the time she entered the PSAP program that all medication she was taking had to be approved by the methadone clinic doctor. After Alexander was born, mother told Windett that she was taking Ambien and Windett said that she could not take it because it was not approved by the doctor. The doctor subsequently declined to approve its use. Nevertheless, mother tested positive for Ambien about one month later.
The original recommendation was for mother to come to the clinic for about three hours two days each week for parenting and health education. Mother attended regularly until Alexander was born. Then, mother’s attendance changed because mother had a difficult time getting to the program on time. For the previous 90 days, the agreement was that mother would see Windett twice a month and see the doctor as needed, provided that her drug tests were negative for illicit opiates. Mother would soon be transferred to a counselor at a PSAP clinic closer to her home as she had successfully completed that treatment plan.
Windett had been providing mother with individual and group counseling, and not just regarding substance abuse issues. Mother was terminated from PSAP’s court-approved parenting class because she missed too many classes. She was not permitted to use the day care facility at PSAP one time because Alexander was not up-to-date on his vaccinations. Three times mother brought Alexander in when he had diarrhea, and finally she was excluded from the day care program until she got it taken care of.
Brooke Cargile testified as an expert in education assessment, special education needs and services, and writing and implementing individualized education program (IEP) goals. She reviewed Robert’s draft IEP in March 2010, and had several concerns. A lot of it was vague, and it did not say how Robert was to get where they wanted him to be. After an IEP report was presented to Robert’s family, Cargile suggested that mother observe the program recommended in the report in order to get a sense of whether or not it would be a good fit for Robert, but mother indicated that she did not want the placement offered; mother did not want Robert placed in a special education classroom. In Cargile’s experience, if a student is having severe behavioral and academic problems, the problems do not resolve themselves by just placing the child in a different school.
Lynne Miller testified as an expert in the areas of risk assessment and placement of abused and neglected children, of assessment and treatment of substance abuse, and of assessment and treatment of clinical DSM-IV-TR issues in children and adults. She prepared the amended section 300 petitions as to the four children, and she testified about where she got the information underlying each allegation in the petitions. The only component of the informal supervision agreement mother completed before the original petitions were filed was the parenting orientation course. She completed a parenting class after that time and, although it was not the class in the Department’s recommendation, it satisfied PSAP’s requirements.
Miller recommended that the court take jurisdiction over mother’s family. Miller believed that the children were at risk due to mother’s denial of substance dependency or addiction, and the risk of relapse since mother has taken additional pain medication. In addition, mother gets “easily overwhelmed” caring for the children. She has needed services such as transportation, day care, and help with Robert’s problem areas. The recent incident involving Robert demonstrated mother’s inability to control him. And, mother had not shown that she was able to control F.M. and P.M. while her attention is focused on Alexander. In addition, mother had not taken responsibility for her role in the creation of the children’s situation, and she had not completed her informal supervision plan. The primary focus on the counseling sessions at PSAP was mother’s substance abuse, and the sessions touched only secondarily on the issues that led up to the abuse. Mother needed to participate in individual therapy, and to see the therapist more often than she was seeing her PSAP counselor. Also, not all of B.R.’s contact with mother’s children had been accidental and mother did not believe that the charges underlying B.R’s conviction involving his child were valid, so mother did not feel that B.R. posed a risk to her children.
Robert testified that the week before the hearing he got upset and hit the walls because his mother told him to do his homework and then the support person got involved and interrupted her so that she could not tell him what she wanted him to do. Usually, his mother gives him his space by letting him go into his room, and then he usually calms down. The previous September, she told him to take out the trash when he thought that he was late for school. He starting yelling at her, and then threw her on the ground and choked her. She tried to get him off of her by pushing, scratching, and biting him. After he finally got off her, he went to Juan’s house. Juan called Robert’s aunt and his aunt made him make a police report. The social worker picked him up and took him to the BWC, and his mother told him that he had to stay there for two weeks in order to get counseling.
Robert was in special resource classes. He thought the classes would help him because he has a hard time learning. He did not think the classes would help him not get so upset with his teachers. He did not want to be in a special education class because he wanted to be in “regular school.”
Abelicia Gaeta testified that she met mother and Juan in August 2007, when they first visited Gaeta’s day care business. From August 8, 2007, to December 2007, Gaeta took care of Natalie and P.M. from 8:00 a.m. to 5:00 p.m., Monday through Thursday. The children appeared well taken care of when they came, and Gaeta never saw any signs of abuse or neglect. Gaeta’s day care license was suspended in December 2007. Gaeta took care of Natalie and P.M. for six to seven hours, five days a week, from September 2008 to February 2009 at another provider’s day care business. Natalie was removed from that provider by child protective services in February 2009, but Gaeta did not see any signs of abuse at that time.
Gaeta testified in Spanish with an interpreter. She testified that mother does not speak Spanish and that “we just cannot communicate.”
B.R. testified that he and mother had a dating relationship off and on between 2006 and 2009. He anticipated being released from jail the next week, and remaining on parole until September 2010. He was familiar with the recommended reunification plan involving Alexander, and he was willing to comply with all of the terms placed upon him in that plan. He stated that he was willing to leave mother alone and to follow the correct procedures to see Alexander.
The Department filed a third amended petition under section 300, subdivisions (b) and (c) as to Robert, and second amended petitions under section 300, subdivisions (b) and (j) as to F.M., P.M., and Alexander. Counsel for the Department argued to the court that it had proved the allegations in the petitions true by a preponderance of the evidence. Counsel for mother argued that the Department had not met its burden of showing that the court needed to take jurisdiction over the children. Counsel for the children joined in the Department’s request, arguing that the Department had shown that informal supervision was not working.
The court found that mother “does have an understanding of what things she must do with certain situations” and that “[s]he knows where to go get help, how to get help.” “However, what places these children at risk and which I find in ample evidence that more than meets the preponderance of evidence is that there is a difference between knowledge and application of that knowledge.” “And I believe that without the court’s intervention, these children would be at risk in that it is not for a lack of knowledge from the parents, but it is from a lack of follow through. And so that without the court’s intervention the chances [that] this family would succeed as a unit would be very, very difficult to achieve and there could be [a] further injury or risk of harm, both physical and emotional to these children.” Therefore, the court found all but one allegation in Robert’s latest petition to be true, and all allegations in F.M.’s, P.M.’s and Alexander’s petitions to be true. The court ordered that mother was to retain custody of the children with family maintenance services for Robert, F.M., P.M., and Alexander; that Juan was to have separate family maintenance services for F.M. and P.M., and that B.R. was to have reunification services for Alexander. B.R. was to have no physical contact or communication of any kind with Robert, F.M., and P.M., and his visits with Alexander were to be supervised by the Department.
H035948
B.R. was released from custody on parole on May 5, 2010. On May 12, 2010, B.R. was again remanded into custody after being found in the company of mother and Alexander during a traffic stop, which was a violation of his parole. When his parole agent went to B.R.’s motel room after his remand, the parole agent found baby food, clothing, and diapers in the room. Mother admitted spending the night there with B.R., but denied that any of her children were with them. B.R. was released from custody and parole on June 13, 2010, and mother picked him up upon his release. On June 14, 2010, B.R. was in mother’s home with mother, Robert and Alexander, when Juan returned F.M. and P.M. to the home after a visit.
On June 18, 2010, the Department filed section 387 supplemental petitions as to all four children. All four children were placed into protective custody. Alexander was placed in a foster home, F.M. and P.M. were released to Juan, and Robert was taken to the BWC. Robert ran away from the BWC two hours after being placed there and he returned to mother’s home. Amended section 387 petitions were filed as to all four children on June 23, 2010, and, after a hearing, Robert was released by the court to mother’s care.
The social worker’s jurisdiction/disposition reports and addendums recommended that Robert remain with mother with family maintenance services; that F.M. and P.M. remain with Juan, with family maintenance services for Juan and family reunification services for mother; and that Alexander remain in his out-of-home placement with separate family reunification services for both mother and B.R. Mother reported that B.R. admitted to her on June 18, 2010, that he was guilty of the conduct underlying his sexual offense conviction. B.R. was seen at mother’s home on July 23, 2010, and mother was pregnant again. She was still taking methadone, but had needed emergency room care at least twice to feel relief from migraines. Neither she nor Robert had been participating regularly in counseling, but mother had been attending her parent education class and supervised visits with the children. Robert reported that, should he be placed out-of-home again, he would continue to run away until he was returned to mother’s care. F.M. and P.M. reported they liked living with Juan, and P.M. was receiving mental health services and counseling. Alexander’s foster family was willing to be a fost/adopt home for him should placement with a relative or extended family member not be possible. The social worker was trying to find an extended-family-member placement for Alexander. B.R. reported that he had registered as a sex offender with his local police department and that he was willing to participate in services in order to reunify with Alexander. He also reported that he and mother wanted to live together in the future and to have their children raised by them in a two-parent home. Mother reported that she was comfortable with Alexander remaining with the foster family, and that she was confident that she would be able to reunify with Alexander.
The jurisdiction/disposition hearing on the section 387 petitions was held on August 5 and 6, 2010. On August 5, 2010, the parties submitted the matter of jurisdiction over all four children on the social worker’s reports and addendums. They also submitted the matter of disposition as to Robert, F.M., and P.M. on the social worker’s report. The court found the allegations in the section 387 petitions to be true as to all four children. It then adopted the disposition recommendations for Robert, F.M., and P.M. The no-contact order between Robert and B.R. was deleted. A contested disposition hearing as to Alexander was then held.
Priscilla Ribeiro testified on August 5 and 6, 2010, as an expert in risk assessment. She had been the primary social worker assigned to the cases since the children’s original disposition hearing. Mother’s family maintenance services for Alexander included a parenting class, methadone treatment and counseling, and individual therapy. In addition, there was to be no contact of Alexander by B.R. The only order regarding B.R. was for visitation supervised by the Department. However, B.R. had unauthorized contact with Alexander on May 12, and June 14, 2010, and at other times between May 5, and May 12, 2010. The manager of the motel where B.R. had been staying during that time reported that mother had been paying for B.R.’s room, that the manager had seen B.R. carrying an infant, and that mother had reported to the manager that she and B.R. had a baby in the room one night. B.R.’s supervised visitation did not begin until two weeks before the hearing because B.R. had been living in Fresno County until then, but B.R.’s interactions with Alexander during the visitations had been appropriate. Mother and B.R. both reported that they had discussed marriage in the future and that they wanted to be a family with the children.
Ribeiro further testified that mother began her parenting-without-violence class on June 19, 2010, after Alexander was removed from her home. She had attended all of the sessions since then except one. Her interactions with Alexander during supervised visitations had been appropriate. However, she had not participated in individual therapy. She had also missed appointments with her methadone clinic counselor. In addition, she had not participated in family counseling with Robert, which would provide her with ongoing parenting skills to help her deal with situations that are going to come up with all her children. Alexander was developmentally delayed and needed to be encouraged to verbalize and to begin walking. Ribeiro recommended that Alexander’s placement remain out of mother’s home and that mother and B.R. engage in reunification services.
On August 6, 2010, mother testified that she goes to the methadone clinic every morning; she has individual therapy scheduled for Tuesday mornings; she goes to visits with F.M., P.M., and Alexander on Tuesday and Thursday afternoons; and she schedules other appointments on Monday, Wednesday, and Friday mornings, when someone is in her home working with Robert. She has missed some appointments because she has trouble keeping track of them. Her driver’s license was suspended, but she continued to drive. She had a bus pass, but she got sick when she rode the bus.
Mother believed that Alexander would be safe if he were returned to her because she would follow all of the court orders “completely to the ‘T.’ ” If the court ordered B.R. not to be present alone with Alexander, she would follow that order. She was talking to B.R. but they were not back together, and they had not talked recently about getting married.
B.R. testified that he had been visiting Alexander and the visits were going well. He intended to participate in the proposed service plan, and he had already started the parent orientation class. He realized that he made a mistake by not following the prior no-contact court order, and he promised to follow all court orders in the future because he did not want to jeopardize his relationship with Alexander. He supported mother’s request to have Alexander returned to her with family maintenance services.
Counsel for the Department argued to the court that it was important that mother engage in services before Alexander is returned to her. Counsel for Alexander joined with the Department in the disposition recommendation. Counsel for mother argued that the Department had not met its burden of showing that there was a current risk of harm to Alexander if he were to be returned to mother’s care. Counsel for B.R. argued that removal of Alexander was not warranted just because the parties disobeyed the court’s previous orders.
The court stated that it did not believe that “it was for a lack of knowledge that [mother] went ahead and violated the court’s orders and the criminal court orders to not have contact. [¶] I believe that had they not been caught, it would still have been going on. [¶] And what disturbs me the most is that while there were a few acknowledgments of responsibility, I still see today the pattern, more from [mother] than from [B.R.]” “[Mother] did not take responsibility, still makes excuses. There was convenient explanations that totally tried to devoid herself of any responsibility for bringing this case back into court, instead of following through with the case plan as had been set in place.... [¶] And that is a concern to me because if the parents who we entrust the children to keep safe, still continue to do those things in violation of the law, not only of the court orders, but driving without a license.” “And until I see that both [B.R.] and [mother] are following the court’s direction, I believe that these children are at risk. In particular [Alexander] who is so young. He cannot defend himself. He will go where he is taken to. He will be placed in whatever compromising situation and is totally at the mercy of the parents.” “And I don’t doubt that these are two parents that love this child. But you two need to understand that you cannot rationalize the violation of court orders.... [¶] And this court instructed [mother] as to the consequences.... Yet the risks were taken. [¶] It is clear that both parents are willing to undertake risks at the expense of these children.” “Therefore I am adopting the recommendation. I’m finding that based on all of the testimony, based on all of the reports that have been admitted into evidence, that there is clear and convincing evidence that [Alexander] should not be returned home at this time.”
DISCUSSION
H035646
Robert H.: Section 300, Subdivision (b) Findings
Mother contends that the jurisdiction findings as to Robert under section 300, subdivision (b) [failure to protect], must be reversed because of a lack of sufficient proof of either the allegations themselves or the elements required for jurisdiction under subdivision (b). “Even when viewing the record in deference to the judgment below, there was insufficient evidence that Robert fell within the definition of subdivision (b).” Specifically, mother contends that “[d]espite the quantity of evidence of Robert’s volatile nature, these factual allegations [of Robert’s physically aggressive conduct] did not support a subdivision (b) petition.” Further, mother contends that the evidence of Robert’s exposure to domestic violence and contact with B.R. did not sufficiently support the petition, and the remaining subdivision (b) allegations did not justify sustaining the petition under subdivision (b).
The Department contends that substantial evidence warranted taking jurisdiction over Robert under section 300, subdivision (b). “[Mother] correctly points out that Robert had not suffered... physical harm, except by his mother in apparent self-defense. But his unabated aggressiveness toward others carried a risk of physical harm, as had happened during the September 2009 fight with his mother. The Department sought to protect Robert from his own conduct as Robert put himself in harm’s way.”
“A petition to commence proceedings in the juvenile court to declare a child... a dependent child of the court” must contain “[t]he code section and the subdivision under which the proceedings are instituted.” (§ 332, subd. (c).) It must also contain a “concise statement of facts, separately stated, to support the conclusion that the child upon whose behalf the petition is being brought is a person within the definition of each of the sections and subdivisions under which the proceedings are being instituted.” (§ 332, subd. (f).) “At the jurisdictional hearing, the court shall first consider only the question whether the minor is a person described by Section 300. Any legally admissible evidence that is relevant to the circumstances or acts that are alleged to bring the minor within the jurisdiction of the juvenile court is admissible and may be received in evidence.” (§ 355, subd. (a).) “After hearing the evidence, the court shall make a finding, noted in the minutes of the court, whether or not the minor is a person described by Section 300 and the specific subdivisions of Section 300 under which the petition is sustained.” (§ 356.)
A child may be declared a dependent child under section 300, subdivision (b) if “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child....” The Department has the burden of showing, by a preponderance of the evidence, that the circumstances are such that the children have been or will be harmed due to the parent’s inability to supervise or protect them. (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318.) There must be evidence of “three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) ‘serious physical harm or illness’ to the minor, or a ‘substantial risk’ of such harm or illness.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820 (Rocco M.); accord, In re David M. (2005) 134 Cal.App.4th 822, 829 (David M.).)
“[T]he purpose of section 300, subdivision (b) is to protect the child from a substantial risk of future serious physical harm and that risk is determined as of the time of the jurisdictional hearing.” (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1397 (Savannah M.); accord, In re Carlos T. (2009) 174 Cal.App.4th 795, 803.) “While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.” (Rocco M., supra, 1 Cal.App.4th at p. 824.) Jurisdiction thus may be unwarranted where the facts alleged in the petition represent an isolated instance of past parental neglect not likely to recur. (Savannah M., supra, at p. 1398; David M., supra, 134 Cal.App.4th at p. 831.)
On appeal, we review the jurisdiction findings under the substantial evidence standard. We examine the record to determine whether there is any substantial evidence, contradicted or not, to support the juvenile court’s findings. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649 (Kristin H.); In re S.O. (2002) 103 Cal.App.4th 453, 461.) We indulge every inference and resolve all conflicts in favor of the court’s decision. (Kristin H., supra, at p. 1649.) Each allegation need not independently support jurisdiction. The court can take jurisdiction on evidence of a “pattern of behavior” resulting in a substantial risk of harm to the children. (Id. at p. 1650.) We consider all the allegations in the petition in context and as a whole, and construe them liberally in support of the judgment. (See In re Cheryl E. (1984) 161 Cal.App.3d 587, 600.)
The Department had the burden of showing specifically how the children have been or will be harmed, and harm may not be assumed from the mere fact of the substance abuse or addiction of a parent. “ ‘Without the history of abuse and neglect, it is nearly impossible to determine whether [the minors are] at risk of suffering from the same abuse and neglect.’ [Citation.]” (In re James R. (2009) 176 Cal.App.4th 129, 136; see also David M., supra, 134 Cal.App.4th at p. 830.) In addition, dependency jurisdiction under section 300, subdivision (b) may not be asserted over an incorrigible child whose parent is neither unfit nor neglectful. (In re Precious D. (2010) 189 Cal.App.4th 1251, 1261.)
Exposure of children to domestic violence is a sufficient basis for jurisdiction under section 300, subdivision (b). (In re Heather A. (1996) 52 Cal.App.4th 183, 194.) “[D]omestic violence in the same household where children are living is neglect; it is a failure to protect [the children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it. Such neglect causes the risk.” (Ibid.; see also In re Basilio T. (1992) 4 Cal.App.4th 155, 169.) However, the petition must allege that the child either perceived, or was affected by, the violence. (In re Janet T. (2001) 93 Cal.App.4th 377, 391.) A parent’s failure to ensure a child’s school attendance can support the sustaining of a petition under section 300, subdivision (b), only if the failure “subjected the children to physical injury or illness, serious or otherwise.” (Id. at p. 389.)
In this case, the Department alleged in the third amended petition as to Robert under section 300, subdivision (b), and carried its burden of proving, that he suffered, or there was a substantial risk that he would suffer, serious physical harm or illness due to a “pattern of behavior.” (Kristin H., supra, 46 Cal.App.4th at p. 1650.) The petition alleged, and the Department presented substantial evidence to show, that Robert engaged in physical altercations and other disruptive behaviors at home, and that mother was unable to control or manage his outbursts. Prior to the filing of the original petition, Robert attacked mother and she was not able to end the attack without hitting and scratching him. She had to call the police again just the week before the hearing because she was concerned for the safety of Robert and everybody else in the household due to another outburst by Robert. Mother needed services to help her control Robert while also focusing on the needs of her other three children. Robert also exhibited aggressive and disruptive behavior at school and at the BWC. As a result of all of Robert’s problems, Robert was failing all of his academic classes. Mother chose to respond to his school’s concerns by simply enrolling him in another school, and there was expert testimony that this would not resolve Robert’s problems. In addition, mother had had to call the police on several occasions to deal with mother’s claims of domestic violence and/or “arguments” with Juan and B.R., the father of Robert’s half-siblings, and mother’s guardianship over Natalie, another child in her household, had been terminated in part because of the exposure to domestic violence. The juvenile court in this case could have reasonably concluded that if the domestic violence affected Natalie, it likewise affect Robert, who living in the household at the same time. Mother did not believe that the incidents with B.R. involved domestic violence, and she had not completed the domestic violence program the Department had recommended because she did not think it was “absolutely necessary” for her to do so. Mother allowed Natalie and all her children to have contact with B.R., knowing that it was in violation of a court order and B.R.’s parole conditions, because she did not believe that the incident underlying B.R.’s sexual assault conviction had occurred or that he placed her children at risk.
Lastly, mother needed daily services to help her with her substance addiction/dependency. She also needed daily transportation to, and day care during, her methadone clinic treatment and counseling. At the time of the jurisdiction hearing, mother had been denied day care at the clinic on three or four occasions. Mother also needed individual therapy and family counseling with Robert, which she had not been able to obtain prior to the jurisdiction hearing with only informal supervision services. On this record, the juvenile court could properly conclude that Robert was a dependent child described by section 300, subdivision (b). Accordingly, we find that there is substantial evidence to support the juvenile court’s jurisdiction findings as to Robert under section 300, subdivision (b).
Robert H.: Section 300, Subdivision (c) Findings
Mother contends that the court erred in sustaining the petition as to Robert under section 300, subdivision (c) because mother was neither the cause of Robert’s emotional problems nor unable to provide adequate mental health treatment absent court intervention. “Given the court’s factual findings and the evaluator’s conclusion, it was not legal error to conclude Robert had suffered or was at risk of suffering serious emotional harm. Nevertheless, Robert did not fall within the statutory definition because [mother] was not the cause of his emotional disturbance, was not an impediment to providing him with the help he required, and was able to provide appropriate mental health treatment outside of a formal dependency case.”
The Department contends that “[t]he same aggressive and angry behavior that resulted in physical injury to Robert was also a reflection of his emotional problem, and thus provided an evidentiary basis for a dependency petition under subdivision (c).”
Section 300, subdivision (c) states that a child may be adjudged a dependent of the juvenile court if the child “is suffering serious emotional damage, or is at a substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent or guardian or who has no parent or guardian capable of providing appropriate care....” Thus, subdivision (c) authorizes intervention by the juvenile court “in two situations: (1) when parental action or inaction causes the emotional harm, i.e., when parental fault can be shown; and (2) when the child is suffering serious emotional damage due to no parental fault or neglect, but the parent or parents are unable themselves to provide adequate mental health treatment.” (In re Alexander K. (1993) 14 Cal.App.4th 549, 557 (Alexander K.); In re Shelley J. (1998) 68 Cal.App.4th 322, 329 (Shelley J.).) The third amended petition as to Robert alleged, and the juvenile court impliedly found, that Robert’s situation was of the first type, namely, that he suffered or was at risk of suffering serious emotional damage as a result of the conduct of the parent. The evidence is sufficient to support this conclusion.
“In a situation involving parental ‘fault’ the petitioner must prove three things: (1) the offending parental conduct; (2) causation; and (3) serious emotional harm or the risk thereof, as evidenced by severe anxiety, depression, withdrawal or untoward aggressive behavior.” (Alexander K., supra, 14 Cal.App.4th at p. 557; Shelley J., supra, 68 Cal.App.4th at p. 329.) “It is clear from the overall scheme that the parental conduct branch of subdivision (c) seeks to protect against abusive behavior that results in severe emotional damage. We are not talking about run-of-the-mill flaws in our parenting styles—we are talking about abusive, neglectful and/or exploitive conduct toward a child which causes any of the serious symptoms identified in the statute.” (Alexander K., supra, at p. 559.)
The record before the court provided substantial evidence upon which the court could have concluded that Robert should be adjudged a dependent child pursuant to section 300, subdivision (c). Robert was exposed to domestic violence between mother and Juan and between mother and B.R. Robert demonstrated untoward aggressive behavior at home toward mother, Alexander, and a support person. In addition, Robert’s teachers and the school psychologist reported that he was demonstrating inappropriate and disruptive behaviors as well as general unhappiness and depression. Although it was recommended that Robert be placed in a “therapeutic classroom environment, ” mother disagreed with the recommendation and transferred him to another school to complete the school year. When Robert was placed out of mother’s home in order to get him help, he demonstrated aggressive and assaultive behavior. Even after returning to mother’s home, he continued to demonstrate untoward aggressive behavior. The juvenile court could have reasonably concluded on this record that Robert’s behavior was symptomatic of problems in mother’s home. Accordingly, we find that there is substantial evidence to support the juvenile court’s jurisdiction findings as to Robert under section 300, subdivision (c).
Findings as to F.M., P.M., and Alexander.
Mother contends that, except for the allegations of failure to protect the children from potential sexual abuse, all other jurisdictional findings for F.M., P.M., and Alexander under section 300, subdivisions (b) and (j) should be stricken. She argues that the evidence was insufficient to support a finding that these children were at risk of serious physical harm due to mother’s dispute with Robert’s school, dissolution of Natalie’s guardianship, mother’s drug dependency, `past incidents of domestic violence, or Robert’s physically aggressive conduct.
The allegations as to F.M. and P.M. that were found to be true were that they were “in need of the Court’s supervision, due to being at significant risk of harm in the care of their mother, from general neglect, physical abuse, emotional abuse, and sexual abuse”; that Robert had been placed in protective custody “due to the failure of his mother... to comply with Informal Supervision Agreement and due to a physical altercation between the mother and Robert causing the child’s half sibling to suffer physical injuries”; that mother and Robert “engaged in a physical altercation” and that mother was “unable to manage Robert’s angry outbursts”; that the juvenile court had terminated Natalie’s guardianship after finding that mother’s “use of prescription medication negatively impacted her ability to care for Natalie, ” that mother “neglected Natalie’s basic needs” and that mother placed Natalie at risk of harm by allowing B.R. to have contact with children and exposed her to domestic violence; that B.R. was in custody for violating his parole and mother was afraid that he would come to her home when released; that mother admitted to overuse of prescription medication, and the abuse had negatively impacted her ability to care for the children; that Juan had taken on the responsibility of getting the children ready for school and taking them to school as mother was unable to do so; that the children had been placed at risk of physical and emotion harm by exposure to domestic violence; that mother had neglected the educational needs of Robert; that mother had not completed the Informal Supervision services; that mother had at least eight prior substantiated child abuse and general neglect referrals; and that Robert was voluntarily placed at the BWC on September 3, 2009, and was not released on September 19, 2009, because it was not safe for him to return home. The allegations as to Alexander that were found true mirrored the allegations as to F.M. and P.M.
The Department contends that it “did not allege that Robert’s siblings had been physically harmed in the past, but it did believe that the boys were at risk of such harm.” “To fulfill the goal of providing ‘maximum safety and protection’ for these children, the court was justified in taking jurisdiction over them. (§ 300.2)”
Due to at least eight prior substantiated child abuse and neglect referrals involving mother’s children, mother began receiving informal supervision services in February 2009, in lieu of court intervention. However, even by the time of the jurisdiction hearing in April 2010, mother had failed to participate fully in the informal supervision services. She was not participating in individual therapy or family counseling with Robert, even though she had reported seeing Robert show aggressive behavior towards Alexander. Mother had had to call the police due to her concern for the safety of everyone in the household because of Robert’s untoward aggressive behavior the week before the hearing. She had enrolled Robert in another school rather than have him participate in the program in his recommended IEP, and there was expert testimony that this would not resolve his problems. Mother had not obtained individual therapy for F.M., P.M., or Robert. She had exposed Robert, F.M., P.M. and Natalie to domestic violence but had not participated in a domestic violence program. She was still allowing B.R. to have contact with the children in violation of his terms of parole and a court order. Mother’s guardianship of Natalie was terminated due to mother’s conduct, and F.M. and P.M. were residing in the home at the same time Natalie was. On this record, we agree with the Department that the court was justified in taking jurisdiction over F.M., P.M., and Alexander under section 300, subdivision (b) and (j). We will not strike the jurisdictional findings as to F.M., P.M. and Alexander, as there was substantial evidence to support them.
H035948
Removal of Alexander
Mother does not contest the jurisdiction findings or disposition orders of August 5, 2010, as to Robert, F.M., and P.M. Mother contends that the juvenile court’s August 6, 2010 decision to remove Alexander from her custody with family reunification services was not supported by substantial evidence and should be reversed. “First, jurisdiction was assumed on risk evidence that was slight in the first place.” “Second, the reports on [B.R.] contributed to the notion that he had already benefitted from his required programs and therapy.” “Third, the social worker had recently reported that [mother] was ‘always’ with Alexander and ‘never ever had Alexander out of her sight when [B.R.] was around.” “Fourth, the social worker’s opinion at the [section] 387 hearing did not constitute substantial evidence in support of a removal order.” “Finally, the record indicates the court wrongly equated [mother’s] failure to comply with court orders selectively follow the rules [sic], with the need to remove her children.”
The Department contends that there was sufficient evidence to support the order to remove Alexander from mother’s care. “The child was not placed in protective custody simply because the mother had defied the court’s visitation order, but because, without appropriate supervision, the father posed a risk of inappropriate sexual contact with Alexander and the other children.” “Both he and the mother completely ignored court orders that would maintain the children’s safety.”
Section 387 provides, in relevant part: “(a) An order changing or modifying a previous order by removing a child from the physical custody of a parent, ... and directing placement in a foster home, ... shall be made only after noticed hearing upon a supplemental petition.” In addition, section 387 requires that “[t]he supplemental petition... be filed by the social worker in the original matter and... contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child....” (§ 387, subd. (b); In re Miguel E. (2004) 120 Cal.App.4th 521, 541 (Miguel E.).)
In the jurisdictional phase of a section 387 proceeding, the court determines whether the factual allegations of the supplemental petition are true and whether the previous disposition has been effective in protecting the child. (Miguel E., supra, 120 Cal.App.4th at p. 542.) The Department must prove the jurisdictional facts by a preponderance of the evidence. (In re Jonique W. (1994) 26 Cal.App.4th 685, 691.) If the court finds the allegations are true, it conducts a dispositional phase to determine whether removal from custody is appropriate. (Miguel E., supra, 120 Cal.App.4th at p. 542.) We review the court’s jurisdictional and dispositional findings under the substantial evidence standard of review. (In re Joel H. (1993) 19 Cal.App.4th 1185, 1200.)
In this case, mother submitted the matter to the court on the social worker’s report in the jurisdictional phase of the section 387 proceeding. The court found the allegations in the petition true, and then additional evidence was submitted so that the court could determine whether removal of Alexander from mother’s care was appropriate. The evidence presented indicated that mother and B.R. violated the prior court order precluding B.R. from having contact with Alexander except during visitations supervised by the Department. B.R. had just begun supervised visitations in the previous two weeks. The social worker, who testified as an expert in risk management, stated that it was important that mother participate in her court-ordered services before Alexander was returned to her. Although both mother and B.R. testified that they intended to follow the court’s order regarding limiting B.R’s contact with Alexander, they similarly testified at the original disposition hearing and yet failed to follow through on their promises. In addition, mother testified at the original disposition hearing that she had not been in a relationship with B.R. for about a year, yet when B.R. was later released from custody she continued to have an intimate relationship with him and was again pregnant with his child. Based on the evidence presented, the court could have reasonably concluded that it was in the best interests of Alexander to not be returned to mother until she and B.R. had shown that Alexander was no longer at risk from B.R.’s unauthorized contact with Alexander. There is substantial evidence to support the court’s order removing Alexander from mother’s custody. (In re Joel H., supra, 19 Cal.App.4th at p. 1200.)
ICWA Notices
The social worker’s report for the hearing on the section 387 petition stated that when B.R. was questioned during a hearing on October 7, 2009, by the court and the previous social worker about his Indian heritage, he stated only that the paternal grandmother may be registered as a Mescalero White Mountain Apache. On July 12, 2010, B.R. provided the social worker with the name of his mother, her year of birth, and her birthplace, and he stated that his mother’s family was of the Apache Nation. However, he did not have any other identifying information about tribal membership or family information and he was uncertain if either his parents or his grandparents were tribal members. On July 15, 2010, the social worker mailed notice of the dependency proceedings to mother but not B.R. (B.R.’s address was listed as “unknown”), and to eight Apache tribes, including the Mescalero Apache Tribe and the White Mountain Apache Tribe, as well as to the Bureau of Indian Affairs (BIA). The notice included some information about mother and B.R., as well as B.R.’s mother’s name, year of birth, and birthplace. Although the notice stated that there was going to be a “Special/Interim” hearing regarding Alexander on August 5, 2010, attached to the notice was the first amended section 300 petition as to Alexander, not the section 387 petition. No return receipts or responses were attached. Neither mother nor B.R. raised any issue regarding the ICWA notice at the hearing on the section 387 petitions, and the court did not state on the record whether or not it found that the ICWA notices were proper.
Mother now contends that the ICWA notices were deficient because they did not include: (1) any former addresses for B.R.; (2) B.R.’s birthplace; (3) B.R.’s father’s former addresses or birth date; or (4) any other names, former addresses, birthdates or places of birth for B.R.’s grandparents. “These forms did not meet the minimum standard for adequate notice because missing birth dates and former addresses for people as key as the minor’s father and grandmother – the person identified as the source of the minor’s Indian ancestry – would necessarily undermine the entire search process.” Mother also contends that the notices were deficient because they were addressed to the “ICWA Representative” rather than the specific designated addressee. Lastly, mother contends that the notices were deficient because some of them had an incorrect address for the tribe.
The Department contends that it sent notices to the Apache Tribes after B.R.’s paternity was determined, including all information B.R. had revealed at that time, but does not contest mother’s claim that the notices were deficient. By separate motion, the Department requests that this court take judicial notice of an ICWA notice the Department sent to the Apache Tribes on May 5, 2011, regarding the six-month review hearing for Alexander scheduled for May 27, 2011. It argues that the new notice “will be reviewed by the juvenile court in due course in the underlying matter. If necessary, this court may order limited remand for the purpose of effecting proper notice” under the ICWA.
“In the context of juvenile dependency proceedings, notice to Indian tribes is governed by both federal and state law. ICWA provides that if ‘the court knows or has reason to know that an Indian child is involved’ in an involuntary state court proceeding, ‘the party seeking foster care placement of, or termination of parental rights to, an Indian child shall notify... the Indian child’s tribe....’ [Citation.] Section 224.2, subdivision (b) reiterates that ‘[n]otice shall be sent whenever it is known or there is reason to know that an Indian child is involved, and for every hearing thereafter... unless it is determined that the [ICWA]... does not apply to the case....’ ” (In re Alice M. (2008) 161 Cal.App.4th 1189, 1197 (Alice M.).)
In order to ascertain a child’s status under the ICWA, the notices must contain sufficient information to be meaningful. (In re K.M. (2009) 172 Cal.App.4th 115, 119.) The notices must include the following information, if known: the child’s name, birth date and birthplace; the names and addresses of the child’s parents, grandparents, great-grandparents, and other identifying information; and a copy of the petition. (In re Francisco W. (2006) 139 Cal.App.4th 695, 703 (Francisco W.).) “It is essential to provide the Indian tribe with all available information about the child’s ancestors, especially the one with alleged Indian heritage. [Citation.] Notice to the tribe must include available information about the maternal and paternal grandparents and great-grandparents, including maiden, married and former names or aliases; birthdates; place of birth and death; current and former addresses; tribal enrollment numbers; and other identifying data. [Citation.]” (Ibid.; K.M., supra, at p. 119.)
“While the petitioning agency may have the duty to provide ICWA notice, it is the role of the juvenile court, not the agency, to determine whether the ICWA notice is proper.” (In re Kikki R. (2003) 106 Cal.App.4th 844, 852.) “To enable the juvenile court to review whether sufficient information was supplied, [the Department] must file with the court the ICWA notice, return receipts and responses received from the BIA and tribes. [Citation.]” (Francisco W., supra, 139 Cal.App.4th at p. 703; In re Karla C. (2003) 113 Cal.App.4th 166, 174 (Karla C.).) “We review the trial court’s findings for substantial evidence.” (In re E.W. (2009) 170 Cal.App.4th 396, 404.)
“A parent in a dependency proceeding is permitted to raise ICWA notice issues not only in the juvenile court, but also on appeal even where, as here, no mention was made of the issue in the juvenile court.” (In re Justin S. (2007) 150 Cal.App.4th 1426, 1435; Alice M., supra, 161 Cal.App.4th at p. 1195.) “ ‘Since... 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, notice requirements are strictly construed.’ [Citation.] When proper notice is not given under the ICWA, the court’s order is voidable. [Citation.]” (Karla C., supra, 113 Cal.App.4th at p. 174.)
Here, the Department does not contest mother’s contention that the ICWA notices to the Apache tribes for the section 387 hearing as to Alexander were defective in more ways than insufficient information regarding the paternal grandmother, such as including incorrect addresses and names of the contact person. We have reviewed the Department’s request for judicial notice and mother’s opposition. The ICWA notice attached to the Department’s request does not help because the Department did not include any return receipts and/or responses. In its response brief, the Department agreed that “this court may order limited remand for the purpose of effecting proper notice.” Accordingly, we will grant the Department’s request for judicial notice but remand the matter to the juvenile court with directions to order the Department to provide proper notice to the Apache tribes pursuant to the ICWA.
DISPOSITION
The Department’s request for judicial notice is granted. The disposition order of April 30, 2010, is affirmed in all four cases. The disposition order of August 5, 2010 is affirmed. The disposition order of August 6, 2010, is reversed. The matter is remanded to the juvenile court with directions to order the Department to provide proper notice to the Apache tribes pursuant to the ICWA. If, after proper notice, the court finds that the child is an Indian child, the court shall proceed in conformity with the ICWA. If, after proper notice, the court finds that the child is not an Indian child, the disposition order of August 6, 2010, shall be reinstated.
WE CONCUR: MIHARA.J., DUFFY, J.