Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. J516902 Carol Isackson, Judge.
McCONNELL, P. J.
T.H. appeals a judgment declaring her son, T.V., a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (b) and removing him from parental custody under section 361.5, subdivision (c)(1). T.H also contends the court erred when it found that the Indian Child Welfare Act, title 25 United States Code section 1901 et seq. (ICWA) did not apply. We agree the ICWA finding was erroneous, but find no other error.
Unless otherwise indicated, further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
T.V., born December 2005, is the son of T.H. and D.V. On November 2, 2007, San Diego police officers Baker and Armenta responded to T.H.'s call for assistance. T.H. appeared nervous and distraught. She told the officers a neighbor was tapping into her cell phone line, banging on her walls with his truck, and had placed a two-way radio near her bedroom window to listen to her "every move." T.H.'s home was in disarray and smelled of trash and rotten food. There were several bottles of medication on the bathroom floor, some of which were open, and there were other safety hazards throughout the home. Baker found T.V. asleep in a dirty bed surrounded by dirty clothes.
D.V. did not seek visitation or custody. He does not appeal.
T.H. told Armenta she was currently taking Vicodin, Zoloft and antidepressants. T.H. said she no longer used methamphetamine. Based on his observations of T.H.'s speech and demeanor, Armenta believed T.H. exhibited symptoms of long-time drug use. The officers arrested T.H. on two outstanding warrants related to a 2003 DUI. The officers detained T.V. in protective custody.
On November 6, 2007, the San Diego County Health and Human Services Agency (Agency) filed a two count petition under section 300, subdivision (b). The petition alleged T.V. was at substantial risk of suffering serious physical harm or illness by T.H.'s willful or negligent failure to provide adequate shelter and by her inability to provide regular care to T.V. due to substance abuse or mental illness.
T.V.'s teeth were decayed but otherwise he appeared healthy. A developmental assessment indicated T.V. had delays in speech and motor skills.
In an interview on November 5, 2007 with the social worker, T.H. admitted she used methamphetamine earlier in the day and had used methamphetamine for more than 20 years. T.H. stopped using drugs when she learned she was pregnant with T.V. After T.V.'s birth, T.H. used methamphetamine "recreationally" on weekends. T.H. said she was not diagnosed with any mental health disorder but was taking a number of medications prescribed by her primary care physician for anxiety, depression, diabetes and a back injury.
In October 2007 the Agency had received a referral alleging T.H. was incapacitated by substance abuse and mental health problems, and was neglecting T.V. T.H.'s sister Lori and T.H.'s adult daughter Michelle reported that T.H. was exhibiting paranoid and delusional behaviors. T.H. telephoned Lori at 3 a.m. to tell her there was an emergency and people were pounding on her door. When Lori arrived, T.H. insisted she heard sirens and yelling. T.H. telephoned Michelle to report that someone was trying to kill her.
On November 7, 2007, the court detained T.V. in protective custody. At T.H.'s request, the court referred T.H. to a substance abuse treatment program and ordered the Agency to provide her with other voluntary services. The court noted that T.H. indicated she may be a member of a Native American Indian (Indian) tribe and directed T.H. to communicate any additional information about the family's Indian heritage to the social worker.
T.H. informed the social worker that her parents, now deceased, had told her that she was Aztec and Cherokee Indian. T.H.'s sister Lori stated that their father said the family had Aztec ancestry. Lori was not aware of any Cherokee or other Indian heritage in the family.
On November 28, 2007, the court found that ICWA did not apply to T.H., and deferred an ICWA finding as to D.V.
On January 4, 2008, at the contested jurisdiction and disposition hearing, the court received the Agency's court reports in evidence and heard testimony from the social worker, T.V.'s paternal grandfather Frank V., and T.H.'s 22-year-old daughter Michelle.
The social worker opined that T.H. was currently presenting with mild to moderate symptoms of paranoia and anxiety with auditory hallucinations. Based on information from family members and T.H., T.H.'s symptoms had appeared over the last one to two years. The social worker believed T.H.'s symptoms were exacerbated by methamphetamine use in combination with prescription medications. T.H. had never sought drug treatment and was not under the care of a mental health professional. The social worker recommended T.V.'s out-of-home placement until T.H. alleviated the risks to T.V. created by her methamphetamine use, erratic behavior, and unsafe home conditions. Of these, the primary risk factor was T.H.'s severe paranoia and anxiety.
Frank testified that he visited T.V. at least once each week. T.H.'s home was safe and sanitary. Frank never saw anything that made him concerned for T.V.'s safety and well-being in T.H.'s care.
Michelle testified that she visited T.H.'s home every day. On November 2, 2007, Michelle had been at T.H.'s home before police officers arrived. The home was clean. Michelle had never seen T.H. use drugs. Michelle was aware T.V. had tooth decay. He was always drinking from his bottle.
The court stated that it did not find Frank and Michelle to be credible witnesses and sustained the allegations of the petition by clear and convincing evidence. The court noted that T.H. had a significant history of methamphetamine use and methamphetamine use intermixed with prescription drugs. T.H. admitted she had used methamphetamine after T.V.'s birth, including the day she was released from jail. As a result of drug use or mental illness, or both, T.H. exhibited disorganized and irrational behaviors. The court found that as a result of T.H.'s impaired functioning, T.H. was unable to maintain a safe home and provide regular care to T.V., and he remained at substantial risk of serious physical harm or illness in T.H.'s care. The court removed T.V. from parental custody and ordered a plan of reunification services.
DISCUSSION
I
Substantial Evidence Supports the Findings Under Section 300, Subdivision (b)
T.H. contends insufficient evidence supports the finding T.V. was at substantial risk of serious physical harm. She argues at the time of the jurisdiction hearing, there was no evidence to show that her home was unsafe for T.V. or that she had continued to use methamphetamine. T.H. also asserts there was no evidence to show she neglected T.V.
The Agency contends the court's findings are supported by substantial evidence: T.H. admitted to a long-standing drug problem, displayed erratic and paranoid behavior, and her home was dirty and unsafe for T.V. The Agency acknowledges T.H. took some steps to address her problems after T.V. was detained, but argues those steps did not resolve the protective risks to T.V. Minor's counsel joins the Agency's brief.
At jurisdiction, the court considers only the question whether the child is described by section 300 at the time of the hearing. Under section 300, subdivision (b), the Agency must show: "(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.) Allegations that a child is a person described by section 300 must be proved by a preponderance of the evidence. (§ 355, subd. (a).)
We review the trial court's findings to determine whether they are supported by substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) The evidence must be reasonable in nature, credible and of solid value. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order at issue. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
Here, the record fully supports the finding that T.H. exhibited seriously impaired functioning that placed T.V. at substantial risk of serious physical harm or illness (substantial risk). (In re Rocco M., supra, 1 Cal.App.4th at p. 824 [risk to child's physical health and safety inherent in the absence of adequate care and supervision].) The record shows T.H. exhibited paranoid thought processes and erratic behavior, and experienced auditory hallucinations in the months immediately preceding T.V.'s detention. The social worker opined that of the "constellation of risk factors" that placed T.V. at substantial risk, T.H.'s severe paranoia and anxiety was the primary risk factor. At the time of the jurisdiction hearing, T.V. had just turned two years old. His capacity to protect himself was limited. The court could reasonably conclude that T.V. would remain at substantial risk in T.H.'s care until T.H. was able to identify and resolve the "root cause" of her irrational and paranoid behavior.
In addition to concerns about T.H.'s mental health, the presence of methamphetamine use in the home environment constitutes a serious protective risk to the child. (§ 300.2 ["The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child"].) T.H. argues the evidence presented at the jurisdiction hearing showed she did not use methamphetamine and did not experience any episodes of paranoia after November 5, 2007. T.H. asserts "she had been clean of drugs for two months" and argues the court erred when it found that her pattern of drug use presented a substantial risk to T.V.
We are not persuaded by T.H.'s argument. The record shows T.H. scheduled, paid for and submitted to a drug test in late November 2007. The test was negative for alcohol and drug use. On this record, we cannot conclude that the court erred when it determined that T.H.'s methamphetamine use presented a substantial risk to T.V. T.H.'s assertion she was drug free was based on a single, self-scheduled drug test taken five weeks before the jurisdiction hearing. The court could reasonably reject T.H.'s argument that she had resolved her serious substance abuse without treatment in two months time. T.H. had a 20-year history of methamphetamine use. She resumed drug use after T.V. was born. Before T.V. was detained, T.H. never sought drug treatment. She characterized her recent methamphetamine use as "recreational," and minimized its inherent risks to T.V. Thus, substantial evidence supports the finding that T.V. was at substantial risk from T.H.'s unresolved substance abuse. (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.)
T.H. acknowledges her past drug use constituted neglectful conduct under section 300, subdivision (b). (In re Rocco M., supra, 1 Cal.App.4th at p. 820.) Citing In re David M. (2005) 134 Cal.App.4th 822, 825 (David M.), a case involving marijuana use, T.H. argues because T.V. was not affected by her drug use, there was insufficient evidence to support a finding of substantial risk under section 300, subdivision (b). T.H. asserts T.V. was in good physical health, and his tooth decay and need for speech therapy were not significant protective issues. She also contends there was no evidence to show that her home was chronically dirty or that it currently contained hazards to T.V.
We do not believe David M. applies here. In that case, "[t]he evidence was uncontradicted that [the child] was healthy, well cared for, and loved, and that mother and father were raising him in a clean, tidy home." (David M., supra, 134 Cal.App.4th at p. 830.) Further, the agency was relying on an investigation it had performed more than three to four years earlier. (Id. at p. 831.)
Here, in contrast, the evidence linked T.H.'s methamphetamine use to her parenting skills and judgment. (David M., supra, 134 Cal.App.4th at p. 830, citing Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1346.) The social worker testified that as a result of substance abuse or undiagnosed mental illness, or both, T.H. neglected T.V. and exposed him to an unsafe home environment.
T.H.'s home contained hazards that indicated a gross lack of attention to T.V.'s welfare. (Cf. In re Kristin H. (1996) 46 Cal.App.4th 1635, 1651.) The officers found open bottles of prescription medication on the bathroom floor and an open space heater in the living room. There were other signs of parental neglect. The house was very dirty and smelled of trash and rotted food. T.V. was sleeping in a dirty bed. When the officers took T.V. into protective custody, they could not locate any clean clothes for him. T.V. was "always drinking from his bottle." His teeth were described as "little brown nubs." (See Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 98 [tooth decay in a young child is symptomatic of parental neglect].) We reject T.H.'s argument that those conditions did not rise to the level of substantial risk necessary to sustain a petition under section 300, subdivision (b).
The evidence shows T.H. had an untreated chronic condition that impaired her judgment, behavior and ability to safely parent T.V. We draw the reasonable inference that absent intervention and treatment, T.H.'s condition was not likely to improve and the circumstances that led to T.V.'s removal would reoccur. (In re Petra B. (1989) 216 Cal.App.3d 1163, 1169.) The Agency's risk assessment was based on a "constellation of factors" that included T.H.'s erratic and irrational behaviors, significant and recent history of methamphetamine use, and gross inattention to T.V.'s welfare. (Cheryl P. v. Superior Court, supra, 139 Cal.App.4th at p. 98.) We conclude that substantial evidence supports the court's findings under section 300, subdivision (b).
II
Substantial Evidence Supports the Order Under Section 361, Subdivision (c)(1)
T.H. contends the court erred when it removed T.V. from her physical custody. She argues there was insufficient evidence to support a finding by clear and convincing evidence there was a substantial danger to T.V.'s health and safety. T.H. further asserts there were reasonable means to protect T.V.'s physical health without removing him from parental custody.
The Agency contends T.H. does not meet her burden on appeal to demonstrate the court's findings and orders are without evidentiary support. (In re L.Y.L., supra, 101 Cal.App.4th at p. 947.)
At the dispositional hearing, there is a statutory presumption the child will be returned to parental custody. (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) A child who is a dependent of the juvenile court shall not be removed from the home unless there is clear and convincing evidence of a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being, and there are no reasonable means to protect the child's physical healthwithout removing the child from parental custody. (§ 361, subd. (c)(1); In re Henry V. (2004) 119 Cal.App.4th 522, 528; In re Jasmine G. (2000) 82 Cal.App.4th 282, 288.)
Despite the burden of clear and convincing evidence required for the removal of a child from parental custody at disposition, "[w]e employ the substantial evidence test, however bearing in mind the heightened burden of proof." (In re Kristin H., supra, 46 Cal.App.4th at p. 1654.) Here, we examine the record for evidence supporting the court's findings there was a substantial danger to T.V.'s physical or emotional well-being, and there were no reasonable means to protect his physical health without removal from parental custody. (§ 361, subd. (c)(1).)
There is an overlap between a finding of jurisdiction based on a substantial risk of serious physical harm under section 300, subdivision (b) and a removal finding at disposition based on a substantial danger to the physical health, safety and protection of the child under section 361, subdivision (c)(1). (In re Rocco M., supra, 1 Cal.App.4th at p. 826 [referring to earlier version of the statute].) As we discussed earlier in this opinion, the evidence supports the finding that T.V. was at substantial risk of serious physical harm or illness by T.H.'s methamphetamine use and impaired mental condition. (§ 300, subd. (b).) The hazardous conditions in T.H.'s home presented a serious threat to T.V.'s physical health and safety, and the dirty conditions in the home were indicative of neglect. In addition, T.V.'s untreated tooth decay presented a significant danger to his physical health. Sufficient evidence supports a finding of "substantial danger" under section 361, subdivision (c)(1).
While the record indicates T.H. was motivated to maintain her sobriety and regain custody of her son, it also supports the finding that in-home services and protective supervision would not allow the Agency to safely maintain T.V. at home. T.V. was two years old. He had limited ability to protect himself. T.H. displayed erratic, paranoid and irrational behavior, possibly exacerbated by methamphetamine use. She had a recent history of methamphetamine use and no record of treatment. The social worker opined that before T.V. could safely be returned home, T.H. needed to stabilize her mental health condition, demonstrate her ability to live free from drug dependency and to consistently, appropriately, and adequately parent T.V. Substantial evidence supports the finding that removal from parental custody was necessary to protect T.V.'s physical health. (§ 361, subd. (c)(1).)
III
The ICWA Finding Must Be Reversed To Comply With Notice Provisions
In 1978 the United States Congress resolved to protect and preserve Indian tribes and their resources and, to accomplish that purpose, passed ICWA. (25 U.S.C. §§ 1901, 1902.) ICWA was specifically designed to help Indian children retain their familial, tribal and cultural ties. (In re Crystal K. (1990) 226 Cal.App.3d 655, 665.) It sets forth minimum federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes. (25 U.S.C. § 1902.) Effective January 1, 2007, the California Legislature codified ICWA notice requirements in section 224 et seq. (See Sen. Bill No. 678 (2005-2006 Reg. Sess.) § 31.)
Under the notice provisions of ICWA, if the court knows or has reason to know that an Indian child is involved, the agency must notify the Indian child's tribe or if the identity of the tribe is unknown, the Bureau of Indian Affairs (BIA) of the proceedings (ICWA notice). (25 U.S.C. § 1912(a); § 224.2; In re Daniel M. (2003) 110 Cal.App.4th 703, 707.) "No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by . . . the tribe or [the BIA]." (25 U.S.C. § 1912(a); see § 224.2, subd. (d); In re Cody B. (2007) 153 Cal.App.4th 1004, 1013.)
T.H. contends the court's finding that ICWA did not apply (as to her) must be reversed to allow the Agency to comply with ICWA notice provisions. She asserts she informed the Agency and the court that T.V. may be eligible for enrollment in a Cherokee tribe, and the court erred when it did not require the Agency to notice all three federally recognized Cherokee tribes before it made findings under ICWA.
The Agency contends ICWA notice is not required because T.H.'s sister Lori stated that her father had discussed only the family's Aztec heritage. Based on Lori's information, the Agency asserts ICWA notice is not required. The Agency further asserts that error, if any, should be considered harmless because T.H. has failed to show how she or anyone else was prejudiced by the court's finding that ICWA did not apply.
The court is not required to notice non-federally recognized Indian tribes or non-American Indian tribes. (25 U.S.C. § 1903(8); § 224.1, subd. (a); In re Marinna J. (2001) 90 Cal.App.4th 731, 738.)
The record is not, as the Agency contends, "devoid of any evidence a child has Indian heritage." T.H. informed the social worker that her parents told her "she was Aztec and Cherokee Indian." In form JV-130, "Parental Notification of Indian Status," T.H. asserted she was or may be a member of, or eligible for membership in, a federally recognized Cherokee tribe. That Lori did not have the same set of facts does not invalidate the information T.H. provided to the Agency and the court about her Indian ancestry. (See In re Marinna J., supra, 90 Cal.App.4th at p. 736 [ICWA notice required where agency obtained information indicating the family had Indian heritage].)
We conclude the Agency and the court had reason to know an Indian child was involved and did not comply with ICWA notice requirements. (25 U.S.C. § 1912(a); § 224.2; In re Cody B., supra, 153 Cal.App.4th at p. 1013; In re Daniel M., supra, 110 Cal.App.4th at p. 707.) "The juvenile court's failure to secure compliance with the notice provisions of [ICWA] is prejudicial error." (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424; In re Marinna J., supra, 90 Cal.App.4th at p. 739.)
We do not agree with the Agency's assertion this case is controlled by In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431, and the parent is required to show prejudice to prevail on appeal. Here, after inquiry, T.H. indicated she had Indian heritage, thus this case is distinguishable from In re Rebecca R. (In re Mary G. (2007) 151 Cal.App.4th 184, 211-212.)
DISPOSITION
The jurisdictional and dispositional order is reversed. The case is remanded to the juvenile court with directions to order the Agency to comply with ICWA notice provisions. If, after proper notice, no tribe claims that T.V. is an Indian child, the jurisdictional and dispositional order shall be reinstated. (In re Cody B., supra, 153 Cal.App.4th at p. 1014.)
WE CONCUR: BENKE, J., HUFFMAN, J.