In re D.T. CA4/2

California Court of Appeal

In re D.T. CA4/2

DecidedAugust 14, 2014

DocketE059491

StatusUnpublished

This text of In re D.T. CA4/2 (In re D.T. CA4/2) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re D.T. CA4/2, (Cal. Ct. App. 2014).

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Opinion

Filed 8/14/14 In re D.T. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re D.T., et al., Persons Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E059491

Plaintiff and Respondent, (Super.Ct.Nos. J246711 & J246712) v. OPINION A.T.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey,

Judge. Affirmed with directions.

Katherine A. Clark, under appointment by the Court of Appeal, for Defendant and

Appellant.

Jean-Rene Basle, County Counsel and Dawn M. Messer, Deputy County Counsel,

for Plaintiff and Respondent.

1 A.T. (mother), a developmentally disabled mother of two year-old A.T. and infant

D.T., appeals from a finding made at the six-month status review hearing (Welf. & Inst.

Code,1 § 366.21) that the San Bernardino County Children and Family Services (CFS)

provided reasonable services. The children were removed from mother’s custody due to

neglect related to mother’s mild mental retardation, and mother received services through

the Inland Regional Center (IRC). At the review hearing, the court found reasonable

services had been offered or provided over mother’s objection. The court extended

mother’s reunification services for an additional six months and mother appealed.

On appeal, mother argues (1) there is insufficient evidence to support the

reasonable services finding, and (2) the court erred in finding that the Indian Child

Welfare Act did not apply when it never inquired as to father’s possible Indian ancestry.

We remand to comply with ICWA procedures, but otherwise affirm.

BACKGROUND

Because the father did not appeal, we limit our factual overview to matters relating

to mother, except where necessary for context and clarity.

On November 1, 2012, a social worker made a home visit after receiving a report

of general neglect and physical abuse as to three month-old D.T. and two year-old A.T.

The social worker found D.T. crying because A.T. hit her on the head and hand; mother

was unable to soothe the baby. Mother admitted she had smoked marijuana a few days

1All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

2 earlier. The maternal grandmother lived in the house to assist mother, but was reported

to drink to excess and bring men to the home.

The great-grandmother, who arrived during the social worker’s visit, informed the

social worker that mother did not watch the children because she was always using her

phone to send text messages to men to invite them to come over, mother hit A.T., and

that both children had scabies.2 Mother denied the children had scabies, but showed the

social worker a rash covering a large area on D.T.’s chin. The social worker learned

mother received Supplemental Security Income (SSI) because she is developmentally

delayed, and her mother lived with her for assistance.

The social worker returned to mother’s home a few days later with a public health

nurse. The baby’s rash was worse, and the public health nurse attributed the baby’s rash

to someone feeding the infant by propping up the bottle rather than someone feeding her

the bottle, which mother acknowledged doing. On this visit, the baby had red bumps on

her torso, front and back, but mother did not know what they were. Mother did not

appear to be bonding well with the baby.

When the social worker addressed these concerns with mother, mother became

defensive and insisted they were all lies. Insofar as there had been four prior referrals

regarding the family, the social worker became concerned that mother’s mental capacity

2 Scabies is a contagious infestation of the skin caused by a particular itch mite. (Taber’s Cyclopedic Medical Dictionary (20th ed., 2005) p. 1945, col.2.) Apparently, D.T. did not actually suffer from scabies.

3 put the safety of the children at risk. Mother identified Michael M. as the father of D.T.,

and Arthur C.3 as the father of A.T.

At a risk assessment meeting, the decision was made to detain the children

because the baby’s condition was worse and because of mother’s drug use. The social

worker returned to mother’s residence with a warrant and a police officer to detain the

children, and discovered the electricity had been turned off due to mother’s nonpayment

of the bill.

On November 7, 2012, dependency petitions were filed as to each child under

section 300, subdivision (b). As to mother, the petition alleged she has a substance abuse

problem (allegation b-1), an “unsafe lifestyle,”4 lack of knowledge and parenting skills

placing the children at risk (allegation b-2), that mother suffered from mental health

issues that affect her ability to parent (allegation b-3), and that she failed to get proper

medical care for the children (allegation b-4). At the detention hearing, mother and the

then alleged father of D.T. submitted completed ICWA-020 forms. Mother claimed no

Indian ancestry, but alleged father Michael M. indicated he might have Indian heritage.

3 Father of A.T. was referred to as Arthur throughout the proceedings. However, when he testified at the contested jurisdictional-dispositional hearing, he identified himself as Victor Angel C. We will refer to him as Arthur, or A.C.

4The 1987 amendment to Section 300 was intended to replace the former statute with more specific and narrowly drawn requirements that would eliminate the wide discretion given to courts and child welfare workers under the old provisions. (In re Rocco M. (1991) 1 Cal.App.4th 814, 821.) Although no one demurred, an allegation that a parent has “an unsafe lifestyle” is vague, as is the term “mental health issues.”

4 Arthur C. was not present at that hearing. The children were detained together in the

home of the maternal great-grandmother.

Prior to the jurisdictional hearing, CFS submitted a report. The report noted that

biological testing excluded Michael M. as the father of D.T., and recommended that he be

made a nonparty. Mother named another man, V., whose last name she did not know, as

the alleged father of D.T., and an amended petition was filed naming this potential father.

The report also noted that mother was a client of Inland Regional Center (IRC) due to her

developmental delay, which made it difficult for mother to understand directions,

communicate her thoughts, and manage both children simultaneously. The social worker

noted that mother’s alleged drug use was limited to a single occasion when she

experimented with marijuana, and that mother had submitted samples for drug testing,

which proved to be negative.

The report observed that mother had raised her children for a significant time

without CFS intervention, and she had an income and stable housing, as well as family

support from the maternal grandmother and great-grandmother. Because mother was

cooperative and receptive to CFS, the social worker was optimistic about mother’s

prospects for reunification, despite her difficulty learning and remembering. The report

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