Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Ct. No. CK66739, Marguerite Downing, Judge.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel and Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
Brynn R. (mother) appeals an order of the juvenile court dated March 23, 2011. The order sustained the juvenile dependency petition of respondent Los Angeles Department of Children and Family Services (DCFS) with respect to mother’s daughter, L. R., pursuant to Welfare and Institutions Code section 300. It also adjudged L. a dependent child of the court. The order further removed L. from mother’s physical custody. We affirm.
All future statutory references are to the Welfare and Institutions Code.
FACTS
1. Mother’s Children
When this action commenced in October 2010, mother had four children. Her oldest two children, K. M. and Mathew M., were born in 1999 and 2003, respectively. In 2007, K. and Mathew were removed from mother’s custody and placed with their father, Mathew M., Sr., who resides in Maryland. It appears mother lost custody of these two boys as a result of neglect and incapacity due to mental health and drug problems.
Mother’s next oldest children are Anthony R. and L. R., who were three years old and 15 months old, respectively, when the petition in this case was filed. The presumed father of Anthony and L. is Raymond R., who was a party in the proceedings below but is not a party to this appeal. Raymond R. has not had any involvement in L.’s life.
On January 20, 2007, before L. was born, a juvenile dependency petition was filed with respect to Anthony. The petition in Anthony’s case alleged, inter alia, that mother failed to obtain timely necessary medical treatment for Anthony’s serious medical condition.
At some point—the record does not indicate when—Anthony’s maternal grandfather abducted Anthony and took him to Maryland. This was apparently done to frustrate DCFS’s involvement in Anthony’s life.
Mother too went back to Maryland, where she gave birth to L. Subsequently, mother returned with Anthony and L. to California. According to DCFS, “[w]hen mother returned to California, she had completed a drug treatment program in Maryland and did not present as an immediate threat to L., therefore, she [L.] was never included in the mother’s Court case involving Anthony.”
After the petition relating to L. was filed, mother expressed a desire for Anthony’s caretaker to adopt him. She made this decision, in part, because Anthony was allegedly conceived as a result of a brutal rape by Raymond R, which contributed to the difficulty mother had bonding with the child.
About a year before this action commenced, mother began dating her boyfriend Robert V. At some point Robert began living with mother and L. Robert refers to L. as his “daughter” and mother as his “wife.” Robert helps take care of L., especially when mother has a “mood swing” associated with her bipolar disorder, which we shall discuss post.
On May 19, 2011, after this appeal was taken, mother had a fifth child, which we shall refer to as “Baby Boy.” Baby Boy’s presumed father is Robert V. The juvenile court has included Baby Boy in the proceedings in this case.
The evidence regarding Baby Boy is limited to the three exhibits attached to DCFS’s request to take additional post-judgment evidence on appeal. We take judicial notice of those documents. (In re Z.N. (2009) 181 Cal.App.4th 282, 298-301.)
2. Mother’s Drug Use
Mother has a history of drug abuse. She used marijuana, prescriptive medications and heroin in the past. Mother has no criminal history.
On December 4, 2009, mother began treatment for her drug problem at Western Pacific Medical Clinic (Western Pacific) in Reseda, California. The treatment included taking methadone, receiving counseling and submitting to monthly drug tests. In letters dated September 30, 2010, November 17, 2010, January 25, 2011 and March 21, 2011, Western Pacific stated that mother passed all of her drug tests, decreased her dosage of methadone, and advanced to the highest level of the program.
In approximately early November 2010, Robert stated to a DCFS social worker that mother smoked marijuana once about 3 or 4 months ago. This statement places the incident in approximately July or August 2010.
Mother vehemently denies Robert’s statement that she smoked marijuana in the summer of 2010 and argues there is no “credible” evidence to support it in light of her negative drug tests at Western Pacific. We cannot, however, reweigh the evidence or evaluate the credibility of the witnesses on appeal. (In re Maria R. (2010) 185 Cal.App.4th 48, 57.) Instead, we must review the evidence in a light most favorable to the juvenile court’s order (In re Heather A. (1996) 52 Cal.App.4th 183, 193), which means we must assume mother smoked marijuana once in July or August 2010.
3. Mother’s Mental Health Problems
Mother has bipolar disorder. She takes Depacote for this illness. Depacote sometimes makes her drowsy. For example, during an interview with a DCFS social worker in November 2010, mother’s eyes wondered up and down and sometimes lost focus. Mother took a break, went to sleep, and did not return.
In the past mother was hospitalized at least six times for her mental health problems, one suicide attempt and multiple incidents of suicidal thoughts and expressions. She was last hospitalized in May 2010.
Mother claims the last time she was hospitalized was in 2007. However, a DCFS Addendum Report dated October 29, 2010, states: “On 5/25/10 the mother was hospitalized for the evaluation and treatment of the mother’s psychiatric condition.”
4. Robert’s Drug Use
Robert uses marijuana He says he uses marijuana because he wants to “chill” and claims it helps him cope with his attention deficit hyperactivity disorder. As of November 5, 2010, Robert claimed that he was “clean” for seven days. Robert and mother deny that Robert has used marijuana in L.’s presence.
5. The Detention of L.
On October 25, 2010, a DCFS social worker went to the residence of mother, Robert and L. in response to a referral alleging general neglect of L. Mother and Robert claimed that L. was with Robert’s mother and grandmother in West Covina. As we shall explain, DCFS later learned this was false.
Mother appeared to be very anxious and asked the social worker not to take her child away from her. Both she and Robert claimed mother was taking very good care of L.
When the social worker entered the home, she found that it was a “complete mess.” According to the social worker, “[c]lothing, trash, cosmetics, papers, etc., was thrown about all over the home.... The home was more [than] just ransacked, it was dirty and unkempt and unfit and unsafe for a small child.” There had been no electricity in the house for a week. According to mother, the home belonged to L.’s maternal grandfather, who was incarcerated, and was going to be foreclosed on “any day now.” Mother and Robert were living there temporarily until they found a better place to live, perhaps near Robert’s family in West Covina.
On October 26, 2010, Robert’s mother and grandmother informed a DCSF social worker that L. was not staying with them. When the social worker confronted mother with this information, mother admitted she lied about L.’s whereabouts. Mother claimed she lied because she was afraid DCFS would take L. away because L. had a bruise around an eye as a result of being knocked over by a blind dog living with the family. The social worker observed L.’s black eye and the blind dog.
Robert’s mother and grandmother also stated that L. was “dirty” and that L. did not know how to “chew food the way a child her age [15 months] should.”
On October 27, 2010, L. was examined by a physician. The physician concluded there was “[n]o definite evidence of physical abuse on exam today. Cannot rule out nonaccidental trauma.” DCFS did not contend in the juvenile court that L. was physically abused.
In late October 2010, L. was placed by DCFS in the care of a foster mother.
6. The Juvenile Dependency Petition
On October 29, 2010, DCFS filed a juvenile dependency petition with respect to L. The petition alleged L. came under the jurisdiction of the juvenile court pursuant to section 300, subdivisions (b) [failure to protect] and (g) [no provision for support].
There were five counts under section 300, subdivision (b). Count b-1 alleged mother “established a filthy home environment for the child in that trash, clothes and papers were scattered throughout the home to the degree that it was difficult to walk. The home had no electricity.” These conditions allegedly endangered the child’s physical and emotional health and safety.
Count b-2 alleged mother has “a history of mental and emotional problems, ” including a diagnosis of bipolar disorder, which renders mother incapable of caring for L. and places the child at risk of physical and emotional harm.
Count b-3 alleged mother has “a history of substance abuse including marijuana and prescription medication” which renders mother incapable of providing regular care for L., and places the child at risk of physical and emotional harm.
Count b-4 alleged mother “established a detrimental and endangering home environment for the child in that, [she] caused the child to reside in the home of [her] male companion, Robert [V.] who is a current abuser of marijuana.” It further alleges Robert has “unlimited access” to L. This environment allegedly placed L. at risk of physical and emotional harm.
The remaining counts in the petition—counts b-5 and g-1—pertain to L.’s father Raymond R.
7. Mother and Robert Move out of Maternal Grandfather’s Home
On November 5, 2010—after the petition was filed—a DCFS social worker interviewed mother and Robert. At that time mother and Robert were residing at Robert’s “family home, ” which is directly behind L.’s maternal grandfather’s house.
8. ICWA Notice
Mother told DCFS that L.’s maternal grandfather had Indian ancestry; he was “Blackfoot.” The juvenile court ordered DCFS to notify the Blackfeet Tribe about mother’s claim and the pending juvenile dependency action regarding L. pursuant to the Indian Child Welfare Act (ICWA). There is evidence in the record that DCFS provided such notice. The DCFS, however, admits “the record does not reflect that DCFS provided the juvenile court with copies of the ICWA Notice [.]”
9. March 23, 2011, Order
On March 23, 2011, the juvenile court held a jurisdictional and dispositional hearing. The court sustained the petition, with a minor alteration to the allegations in count b-1, and declared L. a dependent child of the court. The court also found, by clear and convincing evidence pursuant to section 361, subdivision (c), that a “[s]ubstantial danger exists to the physical health” of L. “and/or” she is “suffering severe emotional damage, and there is no reasonable means to protect” L. without removing her from mother’s physical custody. Over DCFS’s objection, the juvenile court ordered DCFS to provide family reunification services to mother, including enrolling mother in a drug rehabilitation program and providing her with random drug testing.
Although the minute order refers to section 361, subdivision (b), the reporter’s transcript indicates the juvenile court made this finding pursuant to section 361, subdivision (c). The reference in the minute order was obviously a typographical error because section 361, subdivision (b) does not relate to the removal of a child from the physical custody of his or her parent.
Mother filed a timely appeal of the order dated March 23, 2010.
CONTENTIONS
Mother makes three main arguments on appeal. She first contends the evidence was insufficient to sustain the petition under section 300, subdivision (b). Next, she argues the juvenile court’s order removing L. from her physical custody was not supported by substantial evidence. Finally, she argues the jurisdictional and dispositional order must be reversed in its entirety because the juvenile court failed to ensure that the notice requirements of ICWA were followed.
Lillyan’s presumed father, Raymond R., did not appeal the March 23, 2010, order. Accordingly, even if mother were to prevail, the juvenile court would have jurisdiction over L. pursuant to counts b-5 and g-1 of the petition. (In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1553.)
DISCUSSION
1. There Was Substantial Evidence to Support the Juvenile Court’s Assertion of Jurisdiction Over L. Pursuant to Section 300, Subdivision (b)
Section 300, subdivision (b) provides a child comes within the jurisdiction of the juvenile court if the child “has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness” as a result of a parent’s acts or omissions, or a parent’s inability to provide “regular care” for the child due to the parent’s mental illness, developmental disability, or substance abuse. DCFS alleges there is a substantial risk L. will suffer from serious physical harm or illness. By sustaining the petition, the juvenile court impliedly found this allegation true.
We review the juvenile court’s jurisdictional findings under the substantial evidence test. (In re Maria R., supra, 185 Cal.App.4th at p. 57.) “The term ‘substantial evidence’ means such relevant evidence as a reasonable mind would accept as adequate to support a conclusion; it is evidence which is reasonable in nature, credible, and of solid value.” (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.)
Here, there was substantial evidence of a confluence of facts and circumstances that satisfied the requirements of section 300, subdivision (b). Mother had a long history of drug abuse and mental illness. She previously attempted to commit suicide and was repeatedly hospitalized for her mental health problems, the last time being May 2010. She also had a track record of failing to properly care for her other children. K., Mathew and Anthony were each removed from mother’s custody, apparently as a result of mother’s neglect and drug and mental health problems. Mother’s past conduct can be considered in determining whether there is a substantial risk L. will suffer serious physical harm or illness in the future. (In re J.K., supra, 174 Cal.App.4th at p. 1439.)
In addition to mother’s problems and conduct prior to L.’s birth, there is evidence mother struggled to care for L. When the DCFS first intervened, L. was living with mother and Robert in a house unfit and unsafe for children. Although mother and Robert moved out of that residence, the fact that mother was living there in the first place raises serious concerns about her ability to care for L.
Additionally, mother continued to receive treatment for her drug abuse problem and had used marijuana once about seven or eight months prior to the jurisdictional hearing. Her boyfriend Robert, a user of marijuana, helped take care of L. While there is no evidence mother or Robert used marijuana in L.’s presence or that it affected their care for L., their use of illegal drugs raises serious concerns.
Mother also continued to have mood swings and bouts with drowsiness as a result of her bipolar disorder and the medication she took to control the disorder. This too was a factor the juvenile court could consider.
Mother argues that none of these facts, by themselves, was sufficient for the juvenile court to conclude there was a substantial risk L. would suffer from serious physical harm. However, in light of all of the facts regarding mother’s conduct and drug and mental health problems after L.’s birth, coupled with mother’s history of neglecting her other children and her past serious drug and mental health problems, the juvenile court was legitimately concerned about L.’s welfare and had the legal right to exercise jurisdiction over L. pursuant to section 300, subdivision (b).
2. There Was Substantial Evidence Supporting the Juvenile Court’s Dispositional Ruling
DCFS has the burden of proof in both the jurisdictional and dispositional phases in the juvenile court. The burden of proof in the jurisdictional phase is preponderance of the evidence. The burden of proof in the dispositional phase is clear and convincing evidence. (In re Henry V. (2004) 119 Cal.App.4th 522, 528-529.) “ ‘This heightened burden of proof is appropriate in light of the constitutionally protected rights of parents to the care, custody and management of the children.’ ” (Id. at p. 529.)
The dispositional ruling of the juvenile court is governed by section 361, subdivision (c), which provides in pertinent 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 clear and convincing evidence of any of the following circumstances listed in paragraphs (1) to (5), inclusive.... [¶] (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 from the minor’s parent’s... physical custody.”
Where, as here, the case is not an Indian child custody proceeding, the other four circumstances listed in section 361, subdivision (c) are (1) the parent is unwilling to have physical custody of the minor, (2) the minor is suffering severe emotional damage, (3) the minor or a sibling has been sexually abused, and (4) the minor has been left without any provision for his or her support, or the parent has been incarcerated. (§ 361, subd. (c).) None of these circumstances exist here.
The juvenile court removed L. from mother’s physical custody pursuant to section 361, subdivision (c)(1). We review the juvenile court’s ruling under the substantial evidence test, bearing in mind the heighted burden of proof DCFS had in the juvenile court. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
We hold there was substantial evidence supporting the juvenile court’s finding that the requirements of section 361, subdivision (c)(1) were satisfied. At the time of the March 23, 2011, hearing, mother continued to struggle with her long-term and very serious drug and mental health problems. While she had made some progress, she had clearly not fully recovered. Those problems continued to affect her ability to care for L. Indeed, during her bouts with bipolar disorder and while she was drowsy as a result of her medication, she apparently relied exclusively on Robert, a user of illicit drugs, to care for L.
There is also evidence mother was slipping into the same pattern of neglect which apparently resulted in removal of her first three children from her custody. Mother lived with L. in a home that was filthy, without electricity, and unsafe for children. She also used marijuana on at least one occasion and continued to depend on methadone. Further, Robert’s mother and grandmother reported that L. was always dirty and had not yet learned how to chew her food.
In light of mother’s track record of neglecting her other children, and her long history of serious drug and mental health problems, the juvenile court was not required to wait until L. actually sustained physical harm or illness before removing her from mother’s physical custody. We find no error in the juvenile court’s dispositional ruling.
3. The Juvenile Court’s Failure to Ensure DCFS complied with ICWA Notice Requirements was Harmless Error
Under ICWA, DCFS was required to notify the Blackfeet Tribe about this case because mother claimed L.’s maternal grandfather was a member of the tribe. (25 U.S.C. § 1912, subd. (a).) To satisfy this notice requirement, DCFS was required to, inter alia, provide the juvenile court with proof of the notice sent to the tribe (§ 224.2, subd. (c); In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4), including a Notice of Child Custody Proceeding for Indian Child (form ICWA-030). (In re S.B. (2009) 174 Cal.App.4th 808, 812.) It is undisputed DCFS failed to provide the juvenile court with a copy of the Notice of Child Custody Proceeding for Indian Child, as well as other documents relating to notice prior to the March 23, 2011, hearing.
This error was harmless. Mother’s claim that L. was an Indian child within the meaning of ICWA was based on her assertion maternal grandfather was a member of the Blackfeet Tribe. This claim proved to be untrue. On June 14, 2011, DCFS sent to the Blackfeet Tribe a Notice of Child Custody Proceedings for Indian Child relating to L.’s half-brother, Baby Boy. On June 17, 2011, the Blackfeet Tribe sent a letter to DCFS indicating that mother and maternal grandfather were not members of the tribe.
The purpose of the ICWA notice requirements is to provide the relevant Indian tribe with an opportunity to intervene in state proceedings if the child is indeed a member of the tribe. (In re Z.N., supra, 181 Cal.App.4th at p. 302; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) In this case, L. was not, in fact, a member of the tribe. Accordingly, any error committed by the juvenile court with respect to ICWA notice was harmless and cannot be the basis to reverse the March 23, 2010, order. (In re E.W. (2009) 170 Cal.App.4th 396, 400; In re Z.N., at p. 302.)
DISPOSITION
The juvenile court’s order dated March 23, 2011, is affirmed.
We concur: KLEIN, P. J.ALDRICH, J.