Opinion
B300221
08-27-2020
In re E.Y. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.C. et al., Defendants and Appellants.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant J.C. Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant V.Y. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Stephanie Jo Reagan, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. Nos. 18CCJP07731A, 18CCJP07731B) APPEALS from orders of the Superior Court of Los Angeles County, D. Brett Bianco, Judge. Reversed and remanded with directions. John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant J.C. Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant V.Y. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Stephanie Jo Reagan, Deputy County Counsel, for Plaintiff and Respondent.
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J.C. (mother) and V.Y. (father) are the parents of E.Y. and A.Y., both of whom the juvenile court adjudicated dependents of the court. Mother and father appeal jurisdiction and disposition orders on the ground that the Department of Children and Family Services (DCFS) failed to comply with the Indian Child Welfare Act of 1978 (ICWA). Mother additionally contends there is insufficient evidence to support the jurisdiction findings and disposition order of removal. DCFS concedes that a limited remand is necessary because it did not comply with ICWA. We accept that concession. Additionally, we reverse the removal order as to mother, because the juvenile court failed to state the reasons for removing the children from mother.
Title 25 United States Code section 1901 et seq.
BACKGROUND
I. Mother's history of dependency-related matters
Mother has five children: E.Y. (born in March 2006) and A.Y. (born in July 2008), who are the subjects of this appeal; two older children, J.C. and R.C.; and her youngest child, J.B. J.C. and R.C. share a father, but J.B. has a different father, S.B.
Before E.Y. and A.Y. were born, a juvenile court sustained a petition under Welfare and Institutions Code section 300, subdivisions (a) and (b) as to J.C. and R.C. in 2005. The sustained allegations included mother's history of domestic violence and substance abuse for which she had not undergone treatment. The home was unsafe and filthy, and the children were unwashed and in dirty clothes. Mother's mental and emotional issues, including ADHD and obsessive-compulsive disorder, limited her ability to care for them. Family reunification services were terminated as to mother in April 2006. When mother established that she was complying with her case plan, including attending substance abuse counseling and parenting classes and testing clean for drugs, she was permitted overnight visits. Mother did not complete domestic violence counseling because she felt she gained nothing from it. At first visits went well. But, in February 2007, it was suspected that mother was using drugs again. During one visit, mother complained that the children were out of control. When their father went to get the children, they were dressed inappropriately, and mother yelled at their father. R.C. said that mother never wanted to go anywhere, took a lot of medicine, and was sick. The juvenile court gave J.C. and R.C.'s father sole legal and physical custody in 2007, with mother getting unmonitored visits.
All further statutory references are to the Welfare and Institutions Code.
Meanwhile, after E.Y.'s birth in 2006, mother tested positive for methamphetamine and amphetamine. A section 300 petition was then filed alleging that mother and father had a history of illicit drug abuse. The petition was dismissed in October 2006, and the juvenile court released E.Y. to father and ordered mother not to reside in the home.
In March 2010, law enforcement received a report of domestic violence between mother and father. Father had grabbed mother's hand, causing swelling. Years later, in November 2016, mother and her new husband were involved in a domestic violence incident to which law enforcement responded. Mother's mental health issues reportedly contributed to the incident, during which A.Y. was present.
Thereafter, in August 2017, an Alabama family court granted sole custody of E.Y. and A.Y. to father and suspended mother's visitation because mother was coaching the girls' half-sibling (presumably, J.B.) during a monitored visit. As mother failed to comply with court orders and her case plan, mother eventually also lost custody of the half-sibling in January 2018. Thus, as of January 2018, mother had lost custody of all five of her children. II. The current petition
A series of events in 2018 culminated in a petition being filed as to E.Y. and A.Y. E.Y. was now living with her paternal grandparents in California but saw father weekly. In February 2018, E.Y. reported that her stepfather had sexually abused her from when she was five to nine years old.
From September through November 2018, DCFS received child welfare reports that father hit E.Y. and was using drugs. In November 2018, E.Y. threatened to drink bleach and was placed on a psychiatric hold after cutting her arm, which she did to cope with frustration. At discharge, she was diagnosed was major depressive disorder and prescribed Zoloft and Seroquel.
In December 2018, DCFS filed a petition under section 300 alleging jurisdiction over E.Y. and A.Y. based on father's failure to protect them and causing them serious emotional damage. The juvenile court detained the girls. Mother had not yet been located.
A first amended petition was later filed that contained additional allegations as to father.
In advance of the jurisdiction hearing, social workers interviewed the children, parents, and paternal grandparents. During A.Y.'s interview, she drew a family picture that did not include mother. When the social worker asked if A.Y. wanted to speak to mother, A.Y. turned pale and screamed, "no." A.Y. accused mother and mother's boyfriend of physically and emotionally abusing her. She also accused paternal grandmother of sexually abusing her, E.Y., and father when he was a child. In 2016, A.Y. had drawn a picture of a woman with a man who was holding a knife. A.Y. explained that she was sad that she could not live with mother because S.B. was an alcoholic and had chased and tried to stab mother.
E.Y. told her case worker that she could remember mother and father fighting. Mostly, they yelled at each other but sometimes they threw things. Mother and father smoked marijuana. The family moved to Alabama when E.Y. was five years old. She could not recall her parents being affectionate to her or A.Y. Instead, when A.Y. had outbursts, mother would hit A.Y. After mother and father separated, mother married S.B., who was always drunk and physically violent toward mother. When mother had a new baby, she kept his birth a secret. Mother and S.B. verbally abused E.Y. and hit A.Y. Sometimes, E.Y. had to intervene to deescalate the violence toward A.Y. S.B. asked E.Y. to undress for him and to kiss him. When she told mother, mother said that S.B. was drunk and had confused E.Y. for mother.
During mother's interview, she denied having issues relating to domestic violence, drug abuse, and mental health. When confronted with her positive drug tests after E.Y.'s birth and that a dependency petition had been sustained as to mother's older children, mother claimed the incidents were based on lies. Mother attributed a positive screening for marijuana to a cookie that father had given her. Mother also gave conflicting statements: she said she had anxiety disorder, ADHD, and obsessive compulsive disorder and had taken medication but denied having a psychiatric diagnosis; she said that she was in an abusive relationship with the father of her older children but denied she was a victim of domestic violence. Mother also denied that A.Y. had any problems when A.Y. lived with her. She did not give A.Y. her psychiatric medications on the advice of a psychiatrist, even though another psychiatrist had recommended the medication. Mother did not remember E.Y. telling her that S.B. had sexually abused E.Y. but admitted he was an alcoholic and schizophrenic. Mother believed that E.Y. and A.Y. were removed from her care because of the positive drug test and her refusal to give A.Y. the medication.
Father reported that mother's life fell apart after giving birth to her second child, and she began using methamphetamine. Father and mother sought psychiatric treatment for ADHD. When A.Y. was two years old, mother fled to Alabama with her and E.Y. There, mother reconnected with an old boyfriend who had severe mental health and substance abuse issues. Father also moved to Alabama and remained there until his divorce from mother was final in 2014. They agreed he would have physical custody of E.Y. and mother physical custody of A.Y. However, when paternal grandfather offered to help father financially if he returned to California, father sent E.Y. to live with her paternal grandparents in 2014. In March 2015, father and A.Y. also returned to California. Father then focused on getting therapy for the girls to address the trauma they suffered while with mother. At mother's request, father let the girls visit her in Alabama in summer 2016. But mother sent only E.Y. home and kept A.Y. in Alabama. Father involved social services in Alabama because mother and S.B. used drugs and had a violent relationship. Father brought A.Y. back to California in January 2017.
Paternal grandparents reported that mother and father were arrested, apparently after E.Y. was born, and E.Y. was placed with paternal grandparents when she was two months old. Although father reunified with E.Y. when he returned to California, she stayed with paternal grandparents most of the time. Mother and father would take E.Y. for a few days but then return her because mother would be too tired to care for E.Y. and father worked nights. Mother and father moved to Alabama with E.Y. and A.Y. when E.Y. was five years old, at which time mother and father transitioned from abusing illicit drugs to prescription drugs.
After these interviews, DCFS filed an amended petition containing allegations against mother. That is, mother's history of unresolved domestic violence, substance abuse, and mental and emotional problems limited her ability to safely supervise and to care for the children and endangered their physical health and safety and placed them at risk of serious physical harm per section 300, subdivisions (b)(1) and (j).
In advance of the jurisdiction and disposition hearing, the social worker reported that A.Y. refused to have telephonic contact with mother. The social worker also received a report that mother had been diagnosed in October 2017 with bipolar disorder, ADHD, personality disorder not specified, and cannabis dependence disorder in remission. Further, mother lacked stable housing, making it difficult to maintain contact with her. DCFS advised that it would be detrimental for A.Y. to live with mother.
At the August 21, 2019 jurisdiction and disposition hearing, the juvenile court sustained the allegations against mother and father, declared E.Y. and A.Y. dependents of the court, and removed them from mother and father. As to mother specifically, the juvenile court sustained allegations under section 300, subdivisions (b) [failure to protect] and (j) [abuse of sibling] that mother had a history of unresolved issues of domestic violence, substance abuse, and mental and emotional issues that limited her ability to supervise and to care for the children. Also, mother had lost custody of her three other children when she failed to address her issues. Her unresolved issues endangered E.Y. and A.Y.'s physical health and safety and placed them at risk of serious physical harm, damage, and danger. The juvenile court ordered family reunification services and monitored visits for parents. III. Facts regarding ICWA notice
Father denied having Indian ancestry. Mother said she may have Cherokee ancestry on her maternal grandmother's side of the family. The juvenile court ordered DCFS to include detailed information about its investigation in its next report. DCFS mailed notices of child custody proceeding for an Indian child. Just weeks after those notices were mailed, the juvenile court found no reason to believe that E.Y. and A.Y. were Indian children.
DISCUSSION
I. Justiciability
As mother recognizes, no matter the outcome on her appeal, the children will remain dependents of the court based on the findings against father to which no substantive challenge has been made. (See In re I.A. (2011) 201 Cal.App.4th 1484, 1492.) In such a case, "we need not address jurisdictional findings involving one parent where there are unchallenged findings involving the other parent." (In re Briana V. (2015) 236 Cal.App.4th 297, 309.) Nonetheless, we may address jurisdiction findings when they are the basis for disposition orders that are also challenged on appeal; the findings could be prejudicial to mother or could potentially impact the current or future dependency proceedings; or they could have other consequences beyond jurisdiction. (In re Drake M. (2012) 211 Cal.App.4th 754, 762-763.) Here, the jurisdiction findings also served as the basis for the disposition order removing the children from mother. As mother challenges the disposition order on appeal, we exercise our discretion to consider the merits of her appeal. II. Sufficiency of the evidence to support jurisdiction
Mother challenges the sufficiency of the evidence to support jurisdiction as to her. In such a challenge, "the issue is whether there is evidence, contradicted or uncontradicted, to support the finding. In making that determination, the reviewing court reviews the record in the light most favorable to the challenged order, resolving conflicts in the evidence in favor of that order, and giving the evidence reasonable inferences." (In re Alexis E. (2009) 171 Cal.App.4th 438, 450-451.) We affirm the juvenile court's finding of jurisdiction if substantial evidence supports any statutory basis for jurisdiction enumerated in the petition, and we need not consider whether other alleged statutory grounds for jurisdiction are similarly supported. (Id. at p. 451.)
Here, we focus on the juvenile court's jurisdiction finding under section 300, subdivision (j). That subdivision is rooted in the history of the parent's actions with respect to the child's sibling or siblings. It applies if "(1) the child's sibling has been abused or neglected as defined in specified other subdivisions and (2) there is a substantial risk that the child will be abused or neglected as defined in those subdivisions." (In re I.J. (2013) 56 Cal.4th 766, 774.)
Mother concedes that the first factor has been satisfied, because a petition was sustained as to J.C. and R.C. under section 300, subdivisions (a) and (b), which led to mother losing legal and physical custody of them. Mother, however, claims there is insufficient evidence of a substantial risk E.Y. and A.Y. will be abused or neglected. She thus suggests that the record is bare of the factors in section 300, subdivision (j) that a juvenile court must consider in determining risk. Those factors are: "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." (§ 300, subd. (j).)
Contrary to mother's suggestion, the record speaks to each of those factors. J.C. and R.C. were declared dependents of the court based on issues relating to domestic violence, mother's substance abuse, and her mental health issues—and the record shows that these issues remain ongoing, at least as of November 2016. Domestic violence and abuse characterized mother's relationships with each of the three fathers. The sustained petition as to J.C. and R.C. contained allegations of domestic violence between their father and mother. In 2010, mother was now married to A.Y. and E.Y.'s father. He violently grabbed mother while she held A.Y. E.Y. confirmed that her parents had a violent relationship beyond this one incident, relating that they yelled and threw things. Years later, in 2016, mother was in another abusive relationship with her third husband, S.B. A.Y. saw S.B. try to stab mother, and A.Y. drew a picture of man holding a knife. E.Y. and A.Y. talked about mother and S.B.'s physical abuse of A.Y. and that E.Y. had to protect her sister.
Notwithstanding this history, mother did not complete domestic violence counseling, feeling she gained nothing from it. When interviewed in this case, mother refused to acknowledge she had issues related to domestic violence. A person cannot correct a problem she fails to acknowledge. (In re Gabriel K. (2003) 203 Cal.App.4th 188, 197.) Given this pattern and mother's refusal to address it, she poses a substantial risk of danger to her children.
Mother, however, cites In re David M. (2005) 134 Cal.App.4th 822 to support her argument that there is insufficient evidence to support jurisdiction. In that case, the only evidence to support the allegation was the sustained petition in the sibling's dependency case and references to it in the open case. (Id. at p. 832.) The juvenile court in In re David M. did not have or take judicial notice of the sibling's case file. (Ibid.) In contrast, the juvenile court here took judicial notice of R.C. and J.C.'s case file.
Next, mother argues that the jurisdiction finding must be reversed because there is no nexus between her prior conduct and any current risk of harm to the children because she is not the custodial parent. Her noncustodial status is irrelevant. Subdivision (j) of section 300 applies if there is a substantial risk the child will be abused or neglected. Subdivision (j) expands the grounds for the exercise of jurisdiction over children whose sibling has been abused or neglected as defined in section 300, subdivisions (a), (b), (d), (e), or (i). (In re I.J., supra, 56 Cal.4th at p. 774.) A child need not actually be abused or neglected before the juvenile court can assume jurisdiction. (Id. at p. 773.)
Finally, mother's due process rights were not violated by an improper shifting of the burden of proof to her. The burden of proof for jurisdiction findings is preponderance of the evidence; for removal, it is clear and convincing evidence. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) DCFS bears the burden of proof to establish dependency court jurisdiction. (In re D.C. (2011) 195 Cal.App.4th 1010, 1014.) Mother cites statements the juvenile court made at the jurisdiction and disposition hearing that there was no evidence before it "that mother has addressed the issues we are concerned with here." The juvenile court then referred to the Alabama case as evidence that mother's issues were ongoing. Further, the juvenile court noted that DCFS had a duty to investigate and to report mitigating and exculpatory factors, but nothing had been presented to suggest that mother addressed concerns, "and in the absence of the evidence to the contrary the law presume[s] that official duty has been regularly performed." Noting that mother had not provided any evidence either, the juvenile court proceeded to rule.
We decline mother's invitation to parse the juvenile court's statements to reach a conclusion that it somehow misunderstood the burden of proof and the evidence. Rather, absent clear evidence the juvenile court misunderstood the law, we presume it knew and followed the law. (In re Julian R. (2009) 47 Cal.4th 487, 499.) The juvenile court's statements are insufficient evidence that it misunderstood and misapplied the law. Instead, the totality of the record shows that the juvenile court was merely stating that the evidence supported its orders. III. Disposition order of removal
Mother next attacks the removal order on the grounds it was legally erroneous, the evidence does not support it, and the juvenile court failed to state reasons for its order. Because we find merit to mother's contention that reversal is required due to the trial court's failure to comply with the statutory mandate to state the facts on which removal is based, we do not address the remaining grounds.
Section 361, subdivision (e) provides that a juvenile court "shall state the facts on which the decision to remove the minor is based." Instead of complying with this mandate, the juvenile court appears to have incorporated form language into its order, a practice we have decried and have said does not comply with section 361, subdivision (e). (In re D.P. (2020) 44 Cal.App.5th 1058, 1067.) A form order "is not a replacement for a statement of facts supporting the court's decision to remove a child from a parent's custody." (Ibid.) DCFS concedes the error but argues it was harmless because it is not reasonably probable that had the juvenile court complied with section 361, subdivision (e), the findings would have been in favor of continued parental custody. (See In re J.S. (2011) 196 Cal.App.4th 1069, 1078-1079.)
We cannot conclude the error was harmless, i.e., that there was no reasonable chance, meaning more than an abstract possibility, of a more favorable outcome to mother. (See In re D.P., supra, 44 Cal.App.5th at p. 1068.) Mother was the noncustodial parent. To remove a child from a parent with whom the child did not reside when the petition was initiated, the juvenile court must find by "clear and convincing evidence that there would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child for the parent . . . to live with the child or otherwise exercise the parent's . . . right to physical custody, and there are no reasonable means by which the child's physical and emotional health can be protected without removing the child from the child's parent's . . . physical custody." (§ 361, subd. (d).) To determine whether children "may be safely maintained in the parent's physical custody, the juvenile court may consider the parent's past conduct and current circumstances, and the parent's response to the conditions that gave rise to juvenile court intervention." (In re D.B. (2018) 26 Cal.App.5th 320, 332.)
Rather, than stating the reasons and evidence for removing the children from mother, the juvenile court's minute order incorporated a form that merely regurgitated the statutory language. This is particularly troubling where, as here, the juvenile court has removed children from more than one parent. As this case shows, mother and father are not in the same situation. Mother lives out of state and has not had custody of her children since 2017. Each child also has had different experiences with mother, as well as with father. The reasons for removing the children from mother thus may be different than the ones for removing them from father. In such a case and under these circumstances, we cannot say that had the juvenile court considered the evidence in light of the findings that must be made to remove the children from each parent, that there was not even an abstract possibility of a more favorable outcome to mother. (See, e.g., In re Ashly F. (2014) 225 Cal.App.4th 803, 811 [reasonable chance of means to protect children other than removal].) The failure to comply with section 361, subdivision (e) thus prevents us finding the error harmless.
We therefore also decline to address whether the evidence is sufficient to support removal, as the standard of review requires us to review the removal order in a light most favorable to the juvenile court's findings, keeping in mind that disposition orders require a higher standard of proof of clear and convincing evidence. (In re Noe F. (2013) 213 Cal.App.4th 358, 367.) IV. ICWA
Upon receiving information of a claim of Indian heritage, the juvenile court and DCFS must inquire into the parents' tribal connection and ancestry. DCFS must notify any federally recognized tribe of the dependency and of all known information about the family. (In re L.S. (2014) 230 Cal.App.4th 1183, 1198.) To determine whether ICWA notice requirements have been satisfied, the juvenile court must have sufficient facts from DCFS about (1) the parents' claims, (2) the extent of DCFS's inquiry, (3) the results of the inquiry, (4) the notice provided any tribes, and (5) the tribes' responses. (Ibid.) Without these facts, the juvenile court cannot determine whether ICWA applies. (Ibid.)
Here, mother indicated she might have Cherokee ancestry on her maternal grandmother's side of the family. Although the juvenile court ordered DCFS to investigate mother's claim and to provide the results of that investigation, the record does not contain a report. It contains only the notices DCFS mailed. The notices contain limited information about mother's maternal grandmother and great-grandmother, and there is no indication of what DCFS did to investigate mother's claim. (See generally In re N.G. (2018) 27 Cal.App.5th 474, 481 [describing what investigation should include].) The notices also are internally inconsistent, as they list maternal great-grandmother's date and place of death as unknown in one place but provide that information elsewhere.
DCFS concedes that the inquiry and notices were inadequate.
In 2019, amendments to the Welfare and Institutions Code affected the duties of inquiry and notice. (See generally In re Austin J. (2020) 47 Cal.App.5th 870, 881-885; In re A.M. (2020) 47 Cal.App.5th 303, 314-318.) No party argues that these changes apply here.
DISPOSITION
The disposition order is reversed as to mother with the direction to the juvenile court to comply with section 361, subdivision (e). The jurisdiction and disposition orders are conditionally reversed as to mother and father. On remand, the juvenile court shall require DCFS to comply with ICWA's inquiry and notice provisions. If, after proper inquiry and notice, a tribe claims E.Y. and A.Y. are Indian children, the juvenile court shall proceed in conformity with all provisions of ICWA. But if no tribe makes such a claim, the juvenile court shall reinstate the jurisdiction and disposition orders as to father and reinstate the jurisdiction order as to mother.
NOT TO BE PUBLISHED.
DHANIDINA, J. We concur:
LAVIN, Acting P. J.
EGERTON, J.