Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. Nos. J0801074, J0801075
Kline, P.J.
Appellant M.O. appeals from the juvenile court’s orders declaring her son, R.P., and daughter, A.O., dependents of the juvenile court and removing them from her custody. She contends (1) the court’s jurisdictional findings are not supported by substantial evidence; (2) the court’s orders removing R.P. and A.O. from her custody are not supported by substantial evidence; and (3) the disposition orders must be reversed because there was a failure to properly inquire, pursuant to the Indian Child Welfare Act, about the Native American heritage of R.P.’s father and to provide proper notice to the relevant tribes. We shall affirm the juvenile court’s orders.
FACTUAL AND PROCEDURAL BACKGROUND
On June 19, 2008, the Contra Costa County Children and Family Services Bureau (Bureau) filed an original petition, pursuant to Welfare and Institutions Code section 300, subdivision (b), alleging that M.O (mother) had failed to provide “adequate and appropriate food, shelter and clothing” for her 12-year-old son, R.P. Specifically, the petition alleged that on June 17, 2008, mother left R.P. “home alone without appropriate supervision, and the family’s residence was found to be filthy and in unsuitable condition with rotting food in the refrigerator and no utilities.” In addition, R.P. “was found with extremely poor hygiene” and stated that he had not bathed in about five months. He further stated that “he and his five-year-old sibling [A.O] frequently do not get enough food to eat from their mother, and that he often has to go to the neighbors to get food.” Finally, the petition alleged that mother had frequently left the two children at home for long periods of time without adequate food.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Also on June 19, 2008, the Bureau filed an original petition, pursuant to section 300, subdivision (b), regarding R.P.’s sibling, A.O. The petition included the same general allegations regarding mother’s failure to provide adequate food, shelter, and clothing, as well as the specific factual allegations regarding and related by R.P. on June 17.
An amended petition was filed on July 8, 2008 pursuant to subdivision (j), rather than subdivision (b), of section 300. The amended petition included the same factual allegations as the original petition.
On June 20, 2008, both children were detained, with authorization for release to mother pending the jurisdiction hearing.
In an initial jurisdiction report, dated July 16, 2008, the social worker reported that the children had been placed together in a foster home. Mother had stated that George O. was A.O.’s father and Randy P. was R.P.’s father. Emergency response social worker Joseph Bongiovanni told the social worker that on June 18, 2008, he interviewed R.P. and observed that R.P. was “in a very poor state of hygiene.” R.P. told Bongiovanni that mother had left the family home on June 16 and that he and his sister, A.O., had “been left unsupervised for more than a day or two on more than one occasion, that he would stay at a neighbor’s house when he was left alone, and there was no mutual agreement between mother and the neighbors regarding their providing any care for him in mother’s absence.” R.P. further said “that the gas and electric had been off for about five months, there was no food in the home except for what was rotted, and that the refrigerator and freezer had spoiled food.”
Sheriff’s Deputy Darren Sides told the social worker that on June 16, [sic] 2008, at 9:57 p.m., he arrived at the family’s home in Crockett to complete a welfare and safety check, at which time R.P. told him that mother had left the home “ ‘sometime yesterday (June 16, 2008).’ ” Sides noticed that, other than a generator, there was no power in the house, and also noticed a very strong unidentifiable odor coming from the house. He further “noted that the house was filthy throughout and found several piles of what appeared to be dog feces on the floor. He also observed a puddle of liquid that appeared to be urine in the dining area....” Sides “found dirty dishes piled in the kitchen sink and along the counter. The stove in the kitchen was filthy and there were two refrigerators in the kitchen that did not appear to be working. One of the refrigerators had a large quantity of food that appeared to be rotten, due to the strong odor and liquid which was coming from it. He also found a deep freezer in the pantry area which also contained rotten food.” R.P. told him that the refrigerators had had no power and had contained rotten food for “months.”
Sides further stated that in R.P.’s bedroom, the floor was filthy and the bed’s double mattress was very dirty and worn, with no sheets on the bed. R.P. responded in the affirmative when Sides asked if he sometimes cared for his younger sister when their mother was away. Sides attempted to contact mother using a cell phone number R.P. gave him but, after numerous attempts, was unable to reach her. Because there was no adult in the home and no one was available to care for R.P., and because he believed the living conditions at the home posed an immediate risk to R.P.’s health and safety, he contacted the Bureau. At 11:30 p.m., an emergency response social worker picked up R.P. for placement.
John McDermott, a neighbor of mother’s family in Crockett, stated that he knew of several occasions on which R.P. was left alone in the home. On the afternoon of June 16, 2008, R.P. came to his home to visit and play with McDermott’s children. R.P. said his mother had gone to Sacramento to visit her grandmother and would be gone overnight, and McDermott invited him to spend the night at his home. McDermott noticed that R.P. appeared extremely dirty and had a strong body odor. R.P. also seemed extremely hungry and ate a large amount of food. The next afternoon, he spoke with mother, who said she was in Sacramento and would be home in “a couple of hours.” He again spoke with her at about 8:30 p.m. and she said she would be home in about one hour. Mother then told him to return R.P. to their home and asked him to start the generator since there was no power at the home.
Alecia Hubbert, also a neighbor, stated that she had witnessed several occasions when R.P. had been left at home alone, including occasions when R.P. was left to care for his younger sister while mother was away. On June 17, 2008, R.P. came to Hubbert’s home and said mother had been gone since the day before and there was nothing in the home to eat. R.P.’s hygiene was very bad and he told her he had last bathed about two and a half months earlier.
Another neighbor, Sharon Marsh, stated that on numerous occasions both children had been left at their home “far into the very late evening hours and occasionally overnight without adult supervision.” A.O. had told her that there was no food in the home and she had found A.O. taking food from the trash to eat. On more than one occasion, when R.P. spent the night at her house because mother was not home, her children did not want to sleep in the same room with him because he smelled so bad.
At the subsequent jurisdiction hearing, the juvenile court found that the hearsay by the emergency response social worker and the neighbors in the initial jurisdiction report regarding what the children had said would not be sufficient, by itself, to support the jurisdictional finding.
In a jurisdiction/disposition report, dated September 24, 2008, the social worker reported that the children were residing with mother at the family’s home in Crockett. The juvenile court had found that Randy P. is the presumed father of R.P.; due to the Bureau’s lack of contact with George O., he remained the alleged father of A.O.
Regarding the prior social welfare history of the family, the social worker reported that there had been a substantiated allegation of general neglect by mother and George O., based on George O.’s involvement in a serious car accident while driving R.P. and his older brother, D.P., to the Burning Man Festival. George O., who lost an arm in the accident, was found to be at fault, and he admitted to having smoked marijuana and methamphetamine. Between 2003 and 2005, there was one unfounded allegation of general neglect against mother and three inconclusive allegations of general neglect against mother, one due to her failure to ensure the children’s attendance at school and two due to her alleged verbal and mental abuse of R.P. and D.P., as well as possible domestic violence against “father.” Finally, there was one substantiated allegation of general neglect of the three children by mother due to her verbal abuse of the children and failure to keep the family’s home clean and suitable for children.
At the time R.P. and A.O. were detained, D.P. was 18 years old.
On June 17, 2008, a neighbor had called police when mother still had not returned by 8:30 p.m., after R.P. had spent the night at the neighbor’s house the night before.
Mother, who had three children, reported that she comes from an affluent family, although she was estranged from most family members. Her grandmother, who lived in Roseville, was joint owner of the Crockett home and was providing most of mother’s support. Mother reported that both R.P. and A.O.’s fathers had reneged on their promise to provide her with sufficient child support and her financial situation was extremely dire; she was trying to have her home—a duplex—refinanced and remodeled so that she could rent out the other unit.
Randy P. was paying significantly less in support because, as he reported, he was unable to work due to health concerns related to his being in recovery from leukemia. Mother reported that her relationship with George O. was very strained, and that their relationship had included domestic violence. She also believed he might be a sexual offender after seeing him “grinding against [A.O.] as she sat in his lap playing a video game” during a visit in December 2007. She stated she had filed for a restraining order against him in January 2008, and had not had any contact with him in several months.
According to the social worker, mother had continued to assert that she had never left R.P. and A.O. in an unsafe situation, repeatedly stating that she had not left R.P. alone without adult supervision or sufficient food in the home. However, the neighbors had consistently stated there was never any agreement for them to care for R.P. while his mother was away. Mother also had stated that they were not actually living at the Crockett home at the time of the incident, but R.P. had only been left there temporarily so that he could attend a scouting function. According to mother, she had told R.P.’s older brother, D.P., to bring food to the house for R.P., and to make sure he was safe. Mother was unable to provide a reasonable explanation for the condition of the home, including the rotting food in the refrigerator and freezer and the dog feces on the floor; she said only that the children were not doing their part to keep the house clean. Her explanation was also inconsistent with what R.P. had told the social worker and the responding deputy.
The social worker had provided referrals for mental health services and parenting classes for mother, but she had “flatly refused” the referrals and had also refused to provide the children’s social security numbers so that referrals could be made for them. In addition, although mother said she was homeschooling R.P., she was unable to provide any records, and the Bureau could find no records of homeschooling with the state Board of Education or any local school district. The Bureau was concerned about R.P.’s lack of socialization given his failure to attend school, although he had done well with the Boy Scouts. He also had anger management problems. A.O., at five years old, was now old enough to attend kindergarten, but it was not clear whether mother planned to enroll her in school for the current academic year.
With respect to family strengths, the social worker reported that both children “appear to be very strongly bonded with mother and she appears to have a good relationship with both. Both children are also very strongly bonded with their adult brother, [D.P.], who remains available to provide emotional support for them through this intervention. Additionally, despite his health problems, [Randy P.] has continuously made himself available to provide assistance with [R.P.], particularly with respect to getting him enrolled in school and offering mother respite with him.”
R.P. had begun living temporarily with his father, Randy P., in late August 2008, and Randy P. had enrolled him in middle school in San Francisco. Randy P. was not currently interested in becoming R.P.’s primary custodial parent given his health issues, as well as his belief that it might be disruptive for R.P. and his desire to avoid the appearance of trying to take R.P. away from mother. A.O. “appears to have made a good transition back to her mother’s care, and she is very happy to have returned home.” Despite mother’s issues, “she has been able to keep the home reasonably clean and stocked with sufficient food. Although there is no evidence of any risk to the children’s physical safety, there is considerable concern about mother’s failure to address their social and mental health needs.” In addition, “[a]lthough conditions in the home appear to have stabilized somewhat, the Bureau remains very concerned about the risk of the situation deteriorating and how this will undoubtedly affect the children.” Finally, “unless and until mother engages in services to address the family’s mental health needs and her own parenting deficits, the risk of more intensive child welfare intervention remains.”
The Bureau recommended, inter alia, that the children remain in mother’s home with family maintenance services and with visitation between R.P. and Randy P. It recommended that no services or visitation be provided for George O., alleged father of A.O.
At the contested jurisdiction hearing, which was held on October 27, 2008, social worker Christopher Johnson testified that both R.P. and A.O. were released back to mother on July 16, 2008, approximately one month after they were detained. The conditions for that release included mother having to keep the home clean and appropriate for the children and allowing the Bureau to see the children and the home to ensure that the home remained safe for the children. Mother was also required to get a mental health assessment and put the children in therapy. Mother had not complied with her agreement to do any of these things.
Mother also had cleaned up the house before the children were returned to her care. However, during a conversation in early October, mother told Johnson “that she was very reluctant to allow me to see the house because the house was just in [as] bad a shape as it was when we first got involved when [R.P.] was removed. She stated that she did not feel comfortable allowing me to see the home. She stated that she wasn’t staying in the home as one of the reasons she didn’t want me to go. But then proceeded to say that the house was again in as bad a shape as it was before.” Mother’s primary reason for the original condition of the house was that the family was not living at the home. She also said she was having trouble getting the children to clean up the house. She said there was trash strewn around the house because R.P. had not let the dog out as he was supposed to do, and the dog got into the garbage.
Mother said that although she was still using the Crockett home as her permanent address, she and A.O. had been staying at various friends’ homes, but declined to provide Johnson with any of the addresses or telephone numbers. R.P. was currently living with Randy P. in San Francisco, pursuant to an agreement between Randy P. and mother that R.P. would stay there while mother “got her affairs in order.” Randy P. had enrolled him in school there.
Mother had said that one of the reasons she was homeschooling R.P. was because he had been bullied in the past.
Mother agreed to meet with Johnson outside the Crockett home on October 14, 2008, although she refused to allow him inside. As he arrived at the home, he saw mother leaving in a car. He called her on her cell phone and she said she had to go get her dogs from the animal shelter in Pinole, and they agreed to meet there. At the shelter, A.O. appeared neat and clean. She also appeared bonded to mother.
R.P. testified that on the day the social worker came to his home in mid-June, his brother D.P. had brought him chips, some Lunchables, and juice. D.P. worked and was staying in Crockett, and R.P. could go to him if he was in trouble. In June, his family was staying at his grandmother’s house five days a week, and was staying at the house in Crockett on the weekends. R.P. was homeschooled for a year and a half, which consisted of going on a couple of field trips, being told to read two hours a day, and using an old math book he had. D.P. also tutored him in algebra. He believed he was taken out of school due to bullying issues.
R.P. did not believe he had told anyone that he and A.O. frequently did not get enough to eat. It was D.P.’s job to make sure he had enough food. He said his brother did not bring him enough food because he was short on money. When asked if it was his “custom” to be left alone by mother, R.P. said he knew how to fend for himself because he was a Boy Scout, and they had pear and apple trees and berry bushes. R.P. believed he was adequately fed and taken care of. He thought he was adequately bathed until the water was shut off. After that, he went next door once or twice a week to bathe. He did not bathe at his grandmother’s house because the hot water valve was broken, and he had not bathed recently at the neighbor’s house because the neighbor was not there. On the day the police came, he was at the Crockett house to see his brother graduate. His mother had been at the house until 5:00 p.m. that day, and returned to the house 12 minutes after the police arrived.
On cross-examination, R.P. acknowledged that mother left him alone for a day or two “at least once a week.” On redirect examination, he said that she only left him alone overnight once when her car ran out of gas and the battery was dead. He also acknowledged that he had told the emergency response social worker that he was not aware of any mutual agreement between mother and the neighbors to take care of him. R.P. also had told him that the gas and electricity had been off for about five months, and that the only food in the home was rotted.
Joseph Bongiovanni, the emergency response social worker, testified that he had gone to the Crockett home on June 17, 2008. R.P. told him that mother had left the home on the previous morning and he had had phone contact with her at 4:00 p.m. on June 17. R.P. told Bongiovanni that mother had left him alone before for a day or two. When that happened, R.P. would go to stay at a neighbor’s house. This was not based on an arrangement between mother and the neighbor. He would just go over there because he was afraid of being left in the home without any food.
On the morning of the jurisdiction hearing, Bongiovanni overheard mother and D.P. talking in front of R.P. and A.O., while they all were sitting on a bench. D.P. asked mother, “What do you want me to say? And then she proceeded to say, Well, they said this, and of course it wasn’t like that, it was like this.”
D.P., who was 18 years old at the time of the hearing, testified that mother had told him to look in on R.P. while she was away in mid-June, which he did. He dropped by the house at around 1:00 p.m. that day and brought a bag of chips, Lunchables, and Vitamin Water, which was supposed to hold R.P. for the day and part of the next day until their mother got back. D.P., who was staying with a friend nearby, returned to the house that night at around 11:30 p.m., planning to spend the night there, but R.P. was gone. He assumed R.P. had spent the night at a friend’s house.
D.P. also testified that the family was staying in Roseville with his grandmother because the power was out at the Crockett house. The family had been at the Crockett house because D.P. was graduating from high school. He knew there was rotting food in the refrigerator, but they used a cooler for food.
Mother testified that in June 2008, she was living at her grandmother’s house in Roseville. She and her grandmother owned the home in Crockett. They were staying in Crockett in mid-June to attend D.P.’s high school graduation. When she left the house on June 16, there was no garbage or animal fecal matter on the floor. The refrigerator door was closed and the generator was on and working. The fecal matter was caused by R.P. failing to take the dogs outside. She left R.P. so that he could go to his scout meeting while she went to Roseville to take care of some banking matters. She left milk in a cooler and cereal for R.P. to eat, and told D.P. to check on him and make sure he had enough to eat. There was also a neighbor R.P. could go to if he needed anything. However, mother never assumed that a neighbor would take care of R.P. He was mature enough to be able to take care of himself. Mother had also left A.O. in R.P.’s care for short periods of time.
After her children were taken from her, mother cleaned up the home. She subsequently told social worker Johnson that the house might now be in the same state as when R.P. was removed because she was not spending time there and her elderly dog was there. Mother had been staying with family and friends.
At the conclusion of the hearing, the juvenile court found that the allegations in the petition were true and directed mother not to remove the children from the jurisdiction.
In an addendum report dated November 10, 2008, the social worker reported that mother had “consistently refused to engage in services or act on any referrals provided.” In addition, the social worker had been unable to gain entry to the Crockett house to assess its suitability for the children. He had made several attempts to meet with mother and both children at the house, but mother had not responded to any of his phone calls. In addition, although mother had said they were not residing in the home, she refused to provide any address where she and A.O. regularly stayed.
The Bureau was very concerned that A.O.’s “safety and wellbeing [could not] be ensured, as mother has not cooperated with the Bureau in making her available at the family’s primary residence, and the home that she continues to use as the primary residence is, according to mother, in deplorable condition. This is further evidence that mother’s refusal to participate in services will continuously place the children at significant risk of harm, and her further refusal to complete a mental health assessment makes it extremely difficult to ascertain her ability to provide the children with adequate care and supervision.”
The Bureau recommended that the court order family reunification services for mother. It also recommended that no reunification services be offered to A.O.’s alleged father, George O.
At a December 11, 2008 pretrial hearing, George O. requested presumed father status and visitation as to A.O. The court preliminarily found George O. to be A.O.’s presumed father. The court also ordered supervised visitation for George O. and gave the Bureau discretion regarding whether mother’s visits should be supervised, pending the next hearing.
A contested disposition hearing began on January 5, 2009. The court took judicial notice of documents from a prior family law matter involving George O. and mother, including a document establishing George O.’s paternity with respect to A.O., and an order vacating a restraining order mother had filed against George O. The court also granted George O.’s request to change his status to presumed father of A.O. The social worker stated that the Bureau’s recommendations were that A.O. be placed with George O. and that dependency be dismissed, and that R.P. be placed with Randy P. with reunification services provided to mother.
Christopher Johnson, the social worker, testified about the difficulty he had had contacting mother, including her failure to return phone calls, her failure to let him into the Crockett house, and her refusal to give him the addresses of the friends’ houses where she said she was staying. The only address Johnson had for mother and A.O. was the Crockett house, which mother said was in “as bad a shape as it was when [R.P.] was removed.” Then, on November 25, 2008, Johnson received a call from George O.’s attorney indicating that mother had been arrested and A.O. was at a neighbor’s home. Mother said she was arrested on an outstanding warrant. A.O. was placed in a foster home because the Bureau was concerned about being unable “to ensure her safety or whereabouts at the time because it was unclear where she and Mother were staying.” Johnson also noted that mother had continued to refuse all services offered by the Bureau, and had not provided any information showing she had utilized any services, such as therapy and parenting classes, on her own.
After A.O. was placed in foster care, Johnson contacted George O. regarding the possibility of placing A.O. with him. George O. was very happy that Johnson had contacted him and requested placement right away. He also cooperated fully with the investigation that was made to determine whether he was a suitable placement. A.O. had also had supervised visits with George O., which had gone well. A.O. had said yes when asked if she would like to live with her father; Johnson believed she would likely respond the same way if asked if she would like to live with her mother.
R.P. was living with his father, Randy P., in San Francisco, which was going “relatively okay,” although the Bureau had some concerns about its viability as a placement because of Randy P.’s health issues. Thus, there was some uncertainty about his ability to provide ongoing care for R.P. while mother participated in reunification services. R.P. did seem happy living with his father, although he did say he eventually wanted to be able to go back and stay with mother.
Johnson further testified that, in addition to mother’s apparent inability to keep the home clean and safe for the children, he had concerns about her personal interactions. He could not speak to her without her getting “really angry and agitated and elevated.” Moreover, even if mother testified that she now had a house and a job, Johnson would be concerned because of her history of not cooperating so that the Bureau could make sure that the place where A.O. was staying was safe and appropriate. He also had concerns that A.O. would not get the services she needed, including therapy, if she were living with mother. Both fathers had indicated they were amenable services, should that be deemed appropriate.
Mother testified, inter alia, that she was staying with a friend in the Sacramento area and was going to be artist in residence at a Montessori School, and that the house in Crockett had gotten into such a bad state because she could not afford to pay the utilities bill after George O. stopped making support payments.
The hearing was then continued to January 27, 2009.
In an addendum report dated January 27, 2009, the social worker reported that mother had continued to refuse to engage in any services related to the children’s emotional and mental health needs and her situation had become “more precarious.” There were concerns about mother’s refusal to engage in services to stabilize her mental health, and she had “become increasingly combative and difficult to communicate with.” The social worker had attempted to accommodate visits between mother and A.O., but mother had not kept two of the appointments. One visit did take place, which went “exceptionally well.” Mother was appropriate and nurturing, and A.O. expressed “a great deal of love and affection for mother.” George O. also had had a visit with A.O., which both seemed to enjoy.
Mother had expressed concern for A.O.’s safety with her father, citing his “violent propensities” and a sexually inappropriate interaction with A.O. George O. told the social worker that this had been brought up in the family law matter, and also showed him documents relating to a restraining order application filed by mother, which was dismissed because mother failed to show up for the hearing. Apparently, no police reports were filed regarding any alleged incidents and an investigation into George O.’s background revealed only an arrest for possession of concentrated cannabis in 1986, and one substantiated allegation of neglect against father, based on the 2001 automobile accident that appeared to result from his driving under the influence.
The Bureau remained concerned about mother’s ability to care for the children, given her failure to maintain a clean home for them and her failure to address her mental health and other issues. It was also concerned about her failure to attend to the children’s emotional needs, as shown by the current and past referrals, and her repeated refusal to accept services aimed at addressing those issues. The Bureau also had found no clear indication of any risks for A.O. with George O. Moreover, A.O. had never expressed any concern about father and showed comfort in his presence. George O.’s home was clean and appropriate, and he appeared “willing and able to provide for the child’s emotional and instrumental needs.”
There were some concerns about R.P., who was residing with his father, Randy P., in San Francisco. Randy P. had made clear that he did not intend to take over caring for R.P. in place of mother, but saw himself “more as a support and placement resource for mother while she gets her affairs in order.” In addition, while he appeared able to provide for R.P.’s basic needs, there was considerable concern about Randy P.’s health issues related to his recovery from Leukemia and treatment-related infections. The Bureau did not believe there were any pressing issues, but believed the situation should continue to be closely monitored to help keep the placement stabilized.
The Bureau recommended that George O. become A.O.’s sole physical custodian, with joint legal custody ordered for both parents, and that the court vacate and dismiss the dependency regarding A.O. It further recommended that the court order reunification services for mother and R.P., and transfer the dependency to San Francisco County, where R.P. was living with Randy P.
At the January 27, 2009 continued disposition hearing, R.P., who was now 13 years old, testified that his stepfather, George O., had once tried to drag him down the stairs and, four or five years earlier, R.P. had seen George O. strike R.P.’s brother, D.P., on the head with a broomstick. R.P. never saw George O. strike A.O., but did see him “dry humping” her two years earlier. George O. was on the couch, moving A.O. across his lap, and when he stood up, his zipper was down. Mother also saw this incident.
R.P. also once saw mother and George O. fighting. George O. hit mother with an open hand on the shoulder area and mother then smashed a marble jar over George O.’s head, and he had to go to the hospital. This occurred before A.O. was born, and was the only violent incident R.P. was aware of between mother and George O., although they had lots of arguments.
R.P. was living with his father in San Francisco, and would like for his whole family to live there together. His father had been in the hospital recovering from a bone marrow transplant and a foot infection, and his brother, D.P., had been looking after him.
The disposition hearing resumed again on February 5, 2009, at which time R.P. testified further that he had had trouble remembering things since George O. had pulled him down the stairs; he believed he had received a concussion. His memories of the night four or five years previously when he saw George O. moving A.O. around on his lap were “blurry.” A.O. would have been about one year old at the time.
Mother then testified regarding domestic violence between her and George O., and also about her willingness to follow the directives of the court.
Mother did not appear at the hearing when it resumed on March 2, 2009. The court denied the request by mother’s attorney for a continuance given that there was no good cause shown for her failure to be present. Since mother had not been subject to cross-examination by all of the parties, the court also granted a request to strike mother’s previous testimony.
George O. testified that he had stable employment and a stable home and would be able to support A.O. if she were placed in his care. George O. denied having engaged in domestic violence toward any family members.
At the conclusion of the hearing, counsel for the minors argued that R.P. should be placed with Randy P. in San Francisco and that the case should be transferred to San Francisco County for further services for mother and R.P. He argued that George O. should be given sole legal and physical custody of A.O., with supervised visitation only for mother.
The court ordered that R.P. continue to be adjudged a dependent of the court and adopted the Bureau’s recommendations regarding transferring the case to San Francisco County, placement with Randy P., and reunification services for mother and R.P. The court ordered that A.O. be placed with George O., pursuant to section 361.2, subdivision (a), which addresses placement of a child removed from a parent’s home with a noncustodial parent. The court ordered a transition period of continuing jurisdiction of the court, with A.O. to be placed in therapy, to ensure that her emotional wellbeing was taken care of as custody was transferred to George O. The court noted that its intention, after the transition period, was ultimately to give George O. sole legal and physical custody of A.O.
On March 16, 2009, the juvenile court denied mother’s section 388 motion as to A.O., on the ground that it did not state new evidence or a change of circumstances. Also on March 16, the juvenile denied mother’s motion for reconsideration on the grounds that mother had not complied with procedural requirements for the motion, and had neither established mistake, surprise, or excusable neglect, nor set forth new or different facts or circumstances of law.
On March 23, 2009, mother filed notices of appeal from the juvenile court’s orders as to both R.P. and A.O.
DISCUSSION
I. Jurisdictional Findings and Orders
We review the juvenile court’s jurisdictional findings for substantial evidence, examining the record in the light most favorable to the findings and conclusions of the juvenile court and deferring to that court on issues of fact and credibility of witnesses. (In re Tania S. (1992) 5 Cal.App.4th 728, 733-734.)
As a preliminary matter, mother has requested that we disregard all of the Bureau’s arguments in its respondent’s brief “as they are not based upon facts to which a citation to the record has been provided.” Similarly, she claims that the Bureau has not supported certain of its claims with proper citation to authority, specifically that it has not provided pinpoint citations to a cited case. (See Cal. Rules of Court, rule 8.204(a)(1)(B) and (C).) We do agree that the Bureau’s brief seems cursory in some respects and believe that it would behoove counsel for the Bureau to make a greater effort in the briefing submitted. Still, we do not believe these deficits rise to the level of rule violations in the present circumstances.
A. As to R.P.
Mother contends the jurisdictional findings and orders as to R.P. must be reversed because they were not supported by substantial evidence that he had suffered or was at substantial risk of suffering “serious physical harm or illness,” due to mother’s failure to “provide [him] with adequate and appropriate food, shelter and clothing” as was alleged in the dependency petition. (See § 300, subd. (b).)
Section 300 provides, in relevant part: “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, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child,... or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse.”
Here, mother observes that in the Bureau’s September 24, 2008 report prepared prior to the jurisdiction hearing, the social worker stated that despite mother’s issues, “she has been able to keep the home reasonably clean and stocked with sufficient food. Although there is no evidence of any risk to the children’s physical safety, there is considerable concern about mother’s failure to address their social and mental health needs.” (Italics added.) The social worker expressed concerns about “the risk of the situation deteriorating and how this will undoubtedly affect the children,” especially in light of mother’s failure, thus far, to engage in services to address her parenting deficits and the family’s mental health needs.
While mother is correct that, at the time this report was prepared, the social worker did not believe there was a substantial risk to the children’s safety, by October 27, 2008, when the jurisdiction hearing took place, the evidence showed that the situation had changed. The children had been released to mother in July on the condition that she would keep the home clean and appropriate for the children, and would allow the Bureau to see the children and the home to ensure that it remained safe for the children. She also was required to get a mental health assessment and place the children in therapy. Social worker Johnson testified that mother had not complied with these conditions. Although mother had cleaned up the house before the children were returned to her care, in early October, she told Johnson that she did not want to show him the house because it was in just as “bad a shape” as when the Bureau first became involved. While mother had claimed that she and A.O. had been staying at the homes of various friends, she declined to provide Johnson with any of the addresses or phone numbers.
Mother testified that she had told Johnson that the house could now be in the same state as when R.P. was removed because she was not staying there and her elderly dog was there.
Thus, while in September 2008, there was some hope that the children would be safe in mother’s care, by the time of the jurisdiction hearing a month later, the evidence showed that R.P. was again at “substantial risk” of suffering “serious physical harm or illness,” due to mother’s failure to provide him with a safe, clean living environment. (See § 300, subd. (b).) Mother’s ongoing refusal to engage in any parenting or mental health services only increased this risk.
Mother further argues that because R.P. was staying with and being adequately cared for by his father, Randy P., at the time of the jurisdiction hearing, there was no showing that he was at substantial risk of suffering serious physical harm or illness. In support of this argument, she cites In re Isayah C. (2004) 118 Cal.App.4th 684, 695, in which a panel of this Division found that substantial evidence did not support the juvenile court’s removal order, which was based “entirely on [the non-offending father’s] unavailability by reason of his incarceration, and on the emotional implications of the consequent need to send [the child] to Redding to live with [the father’s] relatives.” The present situation is quite different. Here, the offending parent—mother—had made an informal arrangement for R.P. to stay with Randy P., an arrangement which mother could terminate at any time she chose to do so.
In conclusion, the jurisdictional findings and orders as to R.P. were supported by substantial evidence. (See In re Tania S., supra, 5 Cal.App.4th 728, 733-334.)
B. As to A.O.
Mother contends the jurisdictional findings and orders as to A.O. must be reversed because they were not supported by substantial evidence that R.P. had been abused or neglected and that A.O. was at substantial risk of suffering abuse or neglect. (See § 300, subd. (j).)
Section 300 provides, in relevant part: “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: [¶]... [¶] (j) The child’s sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions. The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child.”
In the present case, mother argues that there is no evidence that R.P. “has been abused or neglected,” as is required before subdivision (j) of section 300 can apply to her, as R.P.’s sibling. According to mother, actual abuse or neglect, under subdivision (b) of section 300, requires that the child has already suffered serious physical harm or illness, and there is no evidence that R.P. suffered such harm.
In support of this assertion, she points to In re David M. (2005) 134 Cal.App.4th 822, 829, in which the appellate court explained that the “ ‘[s]tatutory definition [of section 300, subdivision (b)] consists 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.’ [Citation.] The third element ‘effectively requires a showing that at the time of the jurisdiction hearing the child is at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that physical harm will reoccur). [Citations.]’ [Citation.]” Plainly, the parenthetical reference in In re David M., to “evidence showing a risk that past physical harm will reoccur” was stated as an example of a showing that a child “is at substantial risk of serious physical harm in the future,” not as a requirement for such a showing. This is made clear by the use of “e.g.” at the beginning of the quoted parenthetical. (Ibid.)
Moreover, the language of subdivision (b) of section 300 makes clear that it is the failure or inability of the parent “to adequately supervise or protect the child... or... the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment” that constitutes the neglect. That the child has already suffered physical harm from such neglect is not a requirement. Rather, the requirement is that the child either “has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result” of that neglect. (§ 300, subd. (b).)
Here, as we have already discussed, the evidence showed that mother had left R.P. home alone overnight without supervision, in a filthy house without gas or electricity or sufficient food. This evidence demonstrates that mother failed to “adequately supervise or protect” R.P. due to her failure to provide him “with adequate food... or shelter.” (§ 300, subd. (b).) Thus, R.P. was “neglected,” within the meaning of subdivision (b) of section 300.
In addition, the evidence also shows that A.O. was at substantial risk of suffering similar neglect. Evidence in the record shows that the home was in the same unsafe, filthy condition as it had been previously and that A.O. and mother were living there, despite mother’s claims that she was staying with friends. She also had refused to provide any information about where she supposedly was staying. Mother also had not complied with her agreement to get a mental health assessment or to put the children in therapy. Mother herself testified that she not only left R.P. alone, but also left A.O. in his care for short periods of time. This evidence shows that the conditions leading to A.O.’s detention had not been ameliorated and that, especially due to her young age, she was in substantial danger of suffering the same neglect R.P. had already experienced. (See § 300, subd. (j).)
The jurisdictional findings and orders as to A.O. were therefore supported by substantial evidence. (See In re Tania S., supra, 5 Cal.App.4th 728, 733-334.)
II. Dispositional Orders of Removal as to Both Children
Mother contends the juvenile court’s orders removing R.P. and A.O. from her custody are not supported by substantial evidence.
Section 361, subdivision (c), provides in relevant part: “A dependent child may not be taken from the physical custody of his or her parents... with whom the child resides at the time the petition was initiated unless the juvenile court finds by clear and convincing evidence.... [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor form the minor’s parent’s... physical custody.”
In addressing mother’s claim, we review the record in the light most favorable to the juvenile court’s dispositional order “to determine whether it contains sufficient evidence from which a reasonable trier of fact could make the necessary findings by clear and convincing evidence.” (In re Mariah T. (2008) 159 Cal.App.4th 428, 441.)
We conclude that the record in this case contains substantial evidence in support of the juvenile court’s dispositional orders. First, contrary to mother’s assertions, the dispositional orders—like the jurisdictional findings—were not based merely on vague concerns that the safety of the children could not be ensured. Rather, they were based on evidence presented at the disposition hearing and accompanying reports, which included the fact that mother refused both to let social worker Johnson inside the Crockett home, which she said was in as bad of shape as it had been when the children were detained, or to give him information about where she and A.O. were supposedly staying. In addition, mother had refused services offered by the Bureau to help ameliorate the problems that had led to dependency, including mental health services for her and the children, and had provided no information showing she had utilized any services on her own. Mother also was not returning phone calls and had become increasingly combative.
At the time the Bureau became involved, neighbors had repeatedly seen both children left home alone until very late at night and occasionally overnight. Mother herself did not deny this, but had testified that she believed R.P. was mature enough to be left home alone without supervision and that she also left A.O. in his care for short periods of time. R.P. had come to neighbors’ homes while mother was away and he was filthy, smelled terrible, and seemed extremely hungry. A neighbor had also seen A.O. taking food from the trash to eat.
Thus, the rationale for removal was not based merely on speculation or on mother’s failure to cooperate. Indeed, mother’s failure to cooperate was part of what demonstrated that the dangerous circumstances leading to dependency had not been addressed. Her belief that leaving the children home alone was acceptable, along with her refusal of all supportive services and her unwillingness to allow the social worker to see where she was living, was exactly what placed the children in danger. (Compare In re Kristin W. (1990) 222 Cal.App.3d 234, 252 [“ ‘Dependency proceedings should not be allowed to drift from major problem-solving circumstances to prolonged attempts to resolve shortcomings in the parental home which would not cause dependency in the first place.’ [Citation.]”].)
Similarly, contrary to mother’s argument, removal was not sought or ordered based on her “poverty.” As we have explained, it was based on evidence that she was unwilling or unable to deal with the issues that had endangered her children in the first place, which meant that the children would continue to be in danger if left in her care. This case is thus distinguishable from David B. v. Superior Court (2004) 123 Cal.App.4th 768, 792, cited by mother, in which the appellate court stated: “We agree that a parent needs to have adequate resources to provide for his child, but again we must point out that the bar cannot be set too high. We cannot separate parents and their children merely because they are poor.” In that case, the juvenile court had denied a father custody because he did not have a steady job. The appellate court, in granting the father’s petition for extraordinary relief, noted that the father nonetheless had “found and maintained work even while maintaining a regular visitation schedule, attending classes, making testing appointments, and meeting with social workers.” (Id. at pp. 792-793.) The circumstances of the present case plainly are not analogous.
Accordingly, substantial evidence supports the juvenile court’s findings, by clear and convincing evidence, that “there [was] a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the [children] if the [children] were returned home, and there [were] no reasonable means by which the [children’s] physical health [could] be protected without removing [them from mother’s]... physical custody.” (§ 361, subd. (c)(1).)
III. Alleged Failure to Provide Proper Notice Pursuant to ICWA
Mother contends the dispositional order must be reversed as to R.P. because there was a failure to properly inquire about the Native American heritage of R.P.’s father and to provide proper notice to the relevant tribes, pursuant to the Indian Child Welfare Act of 1978 (ICWA or Act) (25 U.S.C. § 1901 et seq.).
Social worker Johnson stated in his jurisdiction report of July 16, 2008 that ICWA might apply because R.P.’s father, Randy P., had reported on ICWA form 020 in June of 2008 that he “may” be of Chippewa descent. Johnson further stated that he was “in the process of collecting all relevant information from this alleged father to complete and submit the ICWA 030 form for submission to the Bureau of Indian Affairs and the Chippewa tribes.” In the jurisdiction/disposition report dated September 24, 2008, Johnson repeated this statement. At a brief hearing on December 11, 2008, the juvenile stated that it was aware that Randy P. had stated that he had Indian heritage and that “there were some outstanding issues” regarding “the ICWA information to be completed.” There is no evidence in the record, however, that the Bureau ever collected any additional information from Randy P. or notified the Chippewa tribes of the proceedings in this case, or that the juvenile court again raised the issue.
The recent case of In re J.B. (2009) 178 Cal.App.4th 751 addressed a related issue. In that case, at the jurisdiction stage of proceedings, the social services agency had requested that an Indian child be removed from her mother’s custody and placed with her father, and the court followed that recommendation. On appeal, the mother contended that the juvenile court had improperly removed her daughter and placed the child with the father without making a finding, supported by expert testimony, that continued custody of the child by mother was “likely to result in serious emotional or physical damage to the child,” as required by section 361, subdivision (c)(6). (Id. at p. 755.) The Fifth District Court of Appeal examined the language of the relevant federal and state statutes and concluded that subdivision (c)(6) of section 361 does not apply to a proceeding for placement of an Indian child with a parent. (Id. at p. 758.)
Section 361, subdivision (c)(6), provides that a dependent child may not be taken from his or her parents’ custody unless the juvenile court finds clear and convincing evidence that, inter alia, “[i]n an Indian child custody proceeding, continued custody of the child by the parent... is likely to result in serious emotional or physical damage to the child, and that finding is supported by testimony of a ‘qualified expert witness’....”
The court noted that its reading of section 361, subdivision (c)(6), “comports with the remainder of the ICWA statutory scheme,” including the notice requirement, which “com[es] into play when the agency seeks foster care placement and the juvenile court has reason to believe the child is an Indian child. (In re J.B., supra, 178 Cal.App.4th at pp. 758, 759, citing 25 U.S.C. § 1912(a).) The court further observed that “the legislative intent behind ICWA [as well as the related California statutory scheme] expressly focuses on the removal of Indian children from their homes and parents, and placement in foster or adoptive homes.” (Id. at pp. 759-760, citing 25 U.S.C. §§ 1901 and 1902; § 224, subd. (a)(1); Cal. Rule of Court, rule 5.480.)
Title 25 United States Code section 1912(a) provides: “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... of the pending proceedings and of their right of intervention.... No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe....”
The court therefore held that in a proceeding involving placement with a noncustodial parent, subdivision (c)(6) of section 361 simply does not come into play. (In re J.B., supra, 178 Cal.App.4th at pp. 754, 760.) The court did state that if the agency were to seek foster care placement of the child in the future, “the requirements under ICWA will again become an issue.” (Id. at p. 760.)
Mother cites In re Jennifer A. (2002) 103 Cal.App.4th 692, which she claims is more like the present case. There, a child had initially been placed in foster care, the social services agency had recommended continued placement in foster care, but the juvenile court placed her with the noncustodial father. Before the jurisdiction/disposition hearing, the court had ordered the agency to investigate the child’s possible Indian heritage and to give ICWA notice to the appropriate tribes, but no evidence related to those orders was presented at the hearing. (Id. at p. 698.) The Fourth District Court of Appeal held that, because the child was already in temporary foster care and the agency had recommended that she remain in foster care, the agency, as the party seeking the foster care placement, was obligated to comply with the notice requirements of ICWA. (Id. at p. 700.) In re Jennifer A. is plainly distinguishable from the present case in which the Bureau sought placement only with Randy P., R.P.’s father. (See In re J.B., supra, 178 Cal.App.4th at p. 759 [citing In re Jennifer A. as an example of a case in which ICWA notice provisions were applicable since, while child was ultimately placed with father, she was initially in foster care and agency sought a continued foster care placement].)
Like the appellate court in In re J.B., we conclude that ICWA and, more specifically in this case, the Act’s notice requirements do not apply in cases such as the present one in which the Bureau sought placement of a child with a noncustodial parent and the juvenile court placed the child with that parent. (In re J.B., supra, 178 Cal.App.4th at pp. 754, 760; see also, e.g., 25 U.S.C. §§ 1901(4), 1902, 1912(a); §224, subd. (a)(1); Cal. Rules of Court, rule 5.480.)
Nevertheless, given that R.P.’s placement with Randy P. is not necessarily permanent, the Bureau would be well advised to comply with the ICWA notice requirements before any issues arise that could lead to R.P. being placed with a non-parent. (See In re J.B., supra, 178 Cal.App.4th at p. 760.)
DISPOSITION
The orders appealed from are affirmed.
We concur: Lambden, J., Richman, J.