In re L.P. CA4/2

Opinion

Filed 10/29/13 In re L.P. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 L.P. et al., Persons Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E057864

Plaintiff and Respondent, (Super.Ct.No. J246227-29)

v. OPINION

J.P. et al.,

Defendants and Appellants.

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

Judge. Reversed with directions.

Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and

Appellant J.P.

Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant

and Appellant R.J.

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

for Plaintiff and Respondent.

I. INTRODUCTION

On this appeal from a juvenile court dispositional order, defendants and

appellants, J.P. (Mother) and R.J. (Father), raise three claims of error: (1) their history of

methamphetamine use is insufficient to support the court‟s jurisdictional findings that the

children were at risk of abuse or neglect (Welf. & Inst. Code, § 300, subd. (b));1 (2) the

court abused its discretion in ordering the children removed from parental custody at

disposition (Welf. & Inst. Code, § 361, subd. (c)(1)); and (3) inadequate notice of the

proceedings was given under the Indian Child Welfare Act (ICWA) (25 U.S.C.A. § 1901

et seq.) and related California law (Welf. & Inst. Code, §§ 224.2, 224.3).

We reject the parents‟ first and second claims of error, but plaintiff and

respondent, San Bernardino County Children and Family Services (CFS), concedes its

ICWA notice lacked known information concerning paternal relatives. Father is the only

parent who may have Indian heritage. The ICWA notice did not include information

concerning any paternal relatives other than Father even though names of the paternal

grandparents were known or readily available to CFS when the notice was given. It also

appears CFS could have obtained additional paternal relative information had it made

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

2 appropriate inquiries. We therefore conditionally reverse the dispositional order and

remand the matter for further proceedings described below.

II. FACTUAL AND PROCEDURAL BACKGROUND2

In September 2012, Mother and Father were an unmarried, cohabitating couple

with three children: A.P., a boy age 8; I.P., a boy age 18 months; and L.P., a newborn

girl. Father had five older children. Father was born in 1971; Mother in 1982. Both

parents had numerous drug-related convictions and a lengthy history of substance abuse.

The family came to the attention of CFS when Mother and L.P. tested positive for

methamphetamine at the hospital when L.P. was born in September 2012. L.P. was

transferred to the neonatal intensive care unit due to respiratory problems and

withdrawals. When I.P. was born 18 months earlier in March 2011, he, too, tested

positive for methamphetamine. In April 2011, the parents were offered voluntary

maintenance services, including referrals to outpatient treatment centers and parenting

classes, but they did not use the services.

The parents were interviewed at their home on September 27, 2012. The home

was described as “clean and appropriate,” and A.P. and I.P. appeared “healthy, clean and

appropriate.” Mother was well groomed and the parents were aware of the reason for the

child welfare referral and interview. Mother admitted using methamphetamine while

pregnant with I.P. and L.P., including the day before L.P. was born. She said she thought

2 Here we focus on the facts underlying the jurisdictional findings and order removing the children from parental custody. The facts concerning the ICWA inquiry and notice issue are set forth below in our discussion of that issue.

3 she was overdue; she wanted to induce labor and “be done with” the pregnancy. She had

been using methamphetamine since middle school. She did not initially seek prenatal

care because she was ambivalent about the pregnancy.

For his part, Father denied he was “out of it” or “stumbling” at the hospital when

L.P. was born, as had been reported, and he also denied Mother‟s claim that he was

dependent on pain medication. He said he was using pain medication following his

recent rotator cuff surgery after falling off a skateboard. Both parents failed to drug test

on September 28, 2012.

On October 2, the parents participated in a team decision meeting (TDM) with the

social worker. Mother appeared under the influence and was “extremely agitated,

emotional, and unable to understand the concerns of [CFS].” She was “unwilling to be

open and honest about her substance abuse.” However, Mother admitted she failed to

complete a court-ordered Proposition 36 treatment program following a November 2011

conviction for being under the influence of a controlled substance. Father admitted

having a history of methamphetamine use and said he last used methamphetamine two

days before the TDM. Still, at the TDM he was “more able [than Mother] to participate

appropriately in the proceedings, addressing the concerns for the safety of the children.”

The issue of the parents‟ active drug use and its negative impact on their ability to care

for the children and ensure their safety was discussed. Immediately following the TDM,

the children were removed from parental custody and placed in foster care.

4 Father‟s criminal history included a 2005 conviction for inflicting corporal injury

on a spouse/cohabitant; 2006, 2007, and 2012 convictions for using, possessing, or being

under the influence of a controlled substance; and convictions for burglary and

possessing a tool with felonious intent in 2008 and 2009. Mother had four drug-related

convictions, including her November 2011 conviction.

At the detention hearing on October 5, the children were ordered detained outside

the parents‟ custody, and the parents were allowed supervised visitation. Both parents

were ordered to drug test on October 5, and both tested positive for methamphetamine on

that date.

Additional details concerning the parents‟ substance abuse history came to light in

an October 17 interview. Mother had been using drugs for 17 years; methamphetamine

was her drug of choice; and one year was the longest time she had been sober since age

13. In addition to using methamphetamine to induce labor with L.P., she used the drug in

July 2012, knowing she was pregnant with L.P. Father admitted to a history of drug use

spanning “a few years.” He said he and Mother would use methamphetamine in the

bedroom while the kids were outside; they would “take turns using and watching the

kids.”

Father had five other children, ages 12 to 22, with three other mothers, and had no

contact with any of his older children. He was receiving state disability payments

because he was electrocuted when he was with a friend who was trying to steal a circuit

breaker. He admitted he was under the influence of methamphetamine at the time of his

5 July 2012 arrest for being under the influence but he denied responsibility for his other

criminal convictions. He said he “took the blame for someone else” for his 2006 and

2007 drug-related convictions and his 2009 burglary conviction.

On October 17, both parents enrolled in an outpatient treatment program. They

were refusing to participant in inpatient treatment, which CFS was strongly

recommending, for Mother in particular. In court on October 25, the parents denied they

were using drugs. Both parents failed to test as ordered on October 25. On November

16, Mother tested positive for amphetamines.

In early November 2012, I.P. required emergency surgery. He had a diaper rash

before being placed in foster care, the rash worsened, and a large cavity in his buttock

with “copious amounts of purulent material” had to be drained. He was diagnosed with

cellulitis and sepsis. I.P. also had bruises on his cheeks, under his arms, and in other

places on his body.

Because of the possible physical abuse of I.P. in the children‟s first foster home,

the children were placed in a second foster home. I.P. had little to no language

development at age 19 months. The second foster parents reported he was “extremely

active” and had a propensity to scream “loudly and frequently.” The foster parents

requested his removal. I.P. and A.P. were then placed in a third foster home, while L.P.

remained in the second foster home.

A.P. was attending third grade when he was removed from parental custody on

October 2. As a result of his placement changes, he missed one to two months of school.

6 Contested jurisdictional and dispositional hearings were held on November 20 and

21. Mother testified at the jurisdictional hearing, claiming she last used

methamphetamine in July 2012 and her prior drug use had been “[y]ears ago.” All of her

positive drug tests since July 2012 were “false positives” and were associated with an

antismoking drug she was taking. She was not telling the truth when she told the social

worker she used methamphetamine to induce labor when L.P. was born, and she also lied

when she admitted I.P. tested positive for methamphetamine at his birth 18 months

earlier. She only told the social worker these things because she wanted L.P. returned

home.

Father testified at the dispositional hearing. He admitted using methamphetamine

in July 2012 and on October 5, and also admitted he failed to drug test as ordered on

October 25. He acknowledged he had a substance abuse problem but denied it affected

his ability to parent the children. He was “active” with the children and played with

them; he did not abuse them; and they were better off in his care than in foster care. He

did not believe Mother was still using drugs. Both parents asked the court to return the

children to their care pursuant to a family maintenance plan.

Following the jurisdictional hearing, the court found: (1) each parent had a history

of methamphetamine use which continued to the present and impaired their ability to

parent the children; (2) each parent had a criminal history which impaired their ability to

7 parent the children; and (3) Mother had a history of anxiety and depression that affected

her ability to parent.3 (§ 300, subds. (b), (j).)

The court told the parents: “It is apparent and obvious to the Court that both of

you are struggling with addiction. I don‟t believe either of you and your testimony that

you‟re not using methamphetamine. The absence of testing from both of you tells me

that you‟re still using, and you‟re not handling your addictions very well.”

At disposition, the court ordered the children removed from parental custody

(§ 361, subd. (c)(1)) and ordered reunification services and supervised visitation for both

parents. Less than two weeks later, on November 30, 2012, the children were placed

with their paternal grandmother and paternal stepgrandfather. The parents appeal the

dispositional order. (§ 395.)

III. DISCUSSION

A. Substantial Evidence Supports the Court’s Jurisdictional Findings

The parents claim insufficient evidence supports the court‟s jurisdictional findings

as to all of the children under section 300, subdivision (b). They argue there is no

evidence linking their histories of substance abuse, their criminal histories, or Mother‟s

history of anxiety and depression to a substantial risk of harm to any of the children. We

disagree.

3 Pursuant to the parties‟ stipulation, the court struck an allegation that Mother and L.P. tested positive for methamphetamine at L.P.‟s birth, because the report from the hospital showed the drug test results were negative. The court found I.P. tested positive for methamphetamine at his birth in March 2011, however.

8 At the jurisdictional hearing, the court considers whether the child is described in

one or more subdivisions of section 300 and thus whether the child is within the court‟s

dependency jurisdiction. (§ 355, subd. (a); Cynthia D. v. Superior Court (1993) 5 Cal.4th

242, 248.) “„Before courts and agencies can exert jurisdiction under section 300,

subdivision (b), there must be evidence indicating that the child is exposed to a

substantial risk of serious physical harm or illness.‟ [Citation.]” (In re A.S. (2011) 202

Cal.App.4th 237, 244.) The agency must make this showing by a preponderance of the

evidence. (§ 355, subd. (a); In re A.S., supra, at p. 244.) “„The basic question under

section 300 is whether the circumstances at the time of the hearing subject the minor to

the defined risk of harm.‟” (In re J.N. (2010) 181 Cal.App.4th 1010, 1022, italics added.)

“On appeal, the „substantial evidence‟ test is the appropriate standard of review for

both the jurisdictional and dispositional findings.” (In re J.K. (2009) 174 Cal.App.4th

1426, 1433.) 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.” (Ibid.) The appellant has the burden of showing

that there is no evidence of a sufficiently substantial nature to support the court‟s

findings. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

“[W]e look to the entire record to determine whether there is substantial evidence

to support the findings of the juvenile court. We do not pass judgment on the credibility

of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight

of the evidence lies. Rather, we draw all reasonable inferences in support of the findings,

9 view the record in the light most favorable to the juvenile court‟s order, and affirm the

order even if there is other evidence that would support a contrary finding.” (In re Cole

C. (2009) 174 Cal.App.4th 900, 915-916.)

The parents argue the court was presented with no evidence linking the parents‟

substance abuse, criminal histories, or Mother‟s history of anxiety and depression to a

substantial risk of serious physical harm to the children. (§ 300, subd. (b).) They

emphasize they maintained a clean and appropriate home for the children; they cared for

them in a way that left them stable, healthy, and clean; and, unlike CFS or the first foster

parents, they ensured A.P. was enrolled in school.

The parents‟ argument denies the seriousness of the parents‟ long-standing and

unresolved substance abuse problems and the substantial risk of serious physical harm

those problems posed to the children at the time of the jurisdictional hearing. The court

found and substantial evidence shows that Mother used methamphetamine during her

pregnancies with L.P. and I.P. At age 19 months, I.P. had language delays and behavior

problems associated with his in utero drug exposure. The parents continued to use

methamphetamine even after L.P. suffered respiratory problems and withdrawals at birth

and had to be transferred to a neonatal intensive care unit. Father admitted the parents

would use methamphetamine in their bedroom and take turns watching the children while

actively high on methamphetamine. The parents saw nothing wrong with this behavior or

the substantial risk of physical harm it posed to the children.

10 Without question, the parents‟ ongoing methamphetamine use at the time of the

jurisdictional hearing placed the children at a substantial risk of serious physical harm.

(§ 300, subd. (b).) There was a substantial risk that any of the children could gain access

to the parents‟ methamphetamine in the home where the parents were using it. There was

also a substantial risk that any of the children could be physically harmed in and outside

the home by any number of means while under the care of the parents while they were

actively high on methamphetamine. CFS thus met its “„burden of showing specifically

how the minors have been or will be harmed . . . .‟” (In re James R. (2009) 176

Cal.App.4th 129, 136.) The evidence also showed that the parents‟ criminal histories and

Mother‟s history of anxiety and depression resulted, in part, from the parents‟ chronic

methamphetamine use. As such, these problems were part and parcel of and exacerbated

the substantial risk of serious physical harm to the children posed by the parents‟ ongoing

methamphetamine use.

Mother argues her “decision to use drugs while pregnant was an unquestionably

neglectful act that had put both [I.P. and L.P] at risk of serious physical harm in the past.

But the risks associated with in utero drug exposure disappeared at birth. . . .” Not so.

The parents were currently, not formerly, addicted to methamphetamine. They were

using methamphetamine in the home where the children could access it, and they could

not care for the children, high on methamphetamine, without exposing the children to a

substantial risk of serious physical harm in and outside the home.

11 As the parents point out, substance abuse, “standing alone” and “without more,” is

insufficient to support section 300, subdivision (b) findings. (In re Destiny S. (2012) 210

Cal.App.4th 999, 1003; In re Drake M. (2012) 211 Cal.App.4th 754, 764; In re Alexis E.

(2009) 171 Cal.App.4th 438, 453; In re David M. (2005) 134 Cal.App.4th 822, 825-832;

see also In re James R., supra, 176 Cal.App.4th at pp. 135-136 [parents‟ history of

mental instability “without more” was insufficient to support jurisdictional findings].)

But as discussed, substantial evidence shows the children were at a substantial risk of

serious physical harm due to the parents‟ unresolved substance abuse problems, their

criminal histories, and Mother‟s history of anxiety and depression.

B. There Were No Reasonable Alternatives to Removal

Mother claims insufficient evidence supports the order removing the children from

parental custody at disposition. (§ 361, subd. (c)(1).) She argues there were alternatives

to addressing the children‟s safety without removing them from the parents‟ home—such

as conditioning the home placement order on the parents‟ compliance with rehabilitative

services.

Before the court may order a child physically removed from his or her parent, it

must find by clear and convincing evidence that “[t]here 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

12 minor‟s parent‟s . . . custody.” (§ 361, subd. (c)(1); In re Hailey T. (2012) 212

Cal.App.4th 139, 145-146.)

Removal “is a last resort, to be considered only when the child would be in danger

if allowed to reside with the parent.” (In re Henry V. (2004) 119 Cal.App.4th 522, 525.)

Jurisdictional findings are prima facie evidence that the child cannot safely remain in the

parental home. (§ 361, subd. (c)(1).) “„“The parent need not be dangerous and the minor

need not have been actually harmed before removal is appropriate.”‟” (In re A.S., supra,

202 Cal.App.4th at p. 247.) We review a dispositional order removing a child from

parental custody for substantial evidence. (In re R.V. (2012) 208 Cal.App.4th 837, 849.)

Here, substantial evidence shows the children were at risk of harm in the parents‟

custody and, in order to ensure their safety, there were no reasonable alternatives to

removing them from the parents‟ home. (§ 361, subd. (d).) The parents‟ addictions to

methamphetamine were chronic and ongoing, and they had a history of resisting

treatment for their methamphetamine addictions. Both failed to take advantage of

substance abuse referrals in March 2011, after I.P. was born exposed to

methamphetamine. Mother failed to complete a Proposition 36 program following her

November 2011 arrest for being under the influence of a controlled substance. Neither

parent recognized how their addictions adversely affected the children‟s safety and well

being. In these circumstances, there were no reasonable alternatives to removal. (§ 361,

subd. (c)(1).)

13 Our conclusion there were no reasonable alternatives to removal is not intended to

minimize the job the parents did in keeping the children clean, fed, and safe from harm

despite the parents‟ chronic and ongoing methamphetamine addictions. We are hopeful

the parents have seen fit to take advantage of the reunification services they were offered

at disposition and have by this time gained insight into the serious risk of harm their

methamphetamine addictions have posed to the children. If the parents overcome their

long-standing addictions, the children can safely be returned to their care.

C. Conditional Reversal and Remand is Required Because CFS Failed to Comply With

the Inquiry and Notice Requirements of the ICWA and Related California Law

Lastly, the parents claim, and CFS agrees, that CFS sent ICWA notices for all

three children that failed to contain known or reasonably available information

concerning paternal relatives with possible Indian ancestry. We agree and conditionally

reverse the dispositional order with directions as set forth below. (In re Francisco W.

(2006) 139 Cal.App.4th 695, 704-705, 711.)

1. The Inquiry and Notice Requirements

The ICWA was enacted “to protect the best interests of Indian children and to

promote the stability and security of Indian tribes and families . . . .” (25 U.S.C.A.

§ 1902.) “The ICWA presumes it is in the best interests of the child to retain tribal ties

and cultural heritage and in the interest of the tribe to preserve its future generations

. . . .” (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) To this end, section 1911 of

14 the ICWA allows a tribe to intervene in state court dependency proceedings. (25

U.S.C.A. § 1911(c).)

Notice of the proceedings is required to be sent whenever it is known or there is

reason to know that an Indian child is involved. (25 U.S.C.A. § 1912(a); Welf. & Inst.

Code, § 224.2, subd. (a); see In re Desiree F., supra, 83 Cal.App.4th at p. 469.) Notice

serves a twofold purpose: “(1) it enables the tribe to investigate and determine whether

the minor is an Indian child; and (2) it advises the tribe of the pending proceedings and its

right to intervene or assume tribal jurisdiction.” (In re Desiree F., supra, at p. 470.)

If the tribe is unknown, notice must be given to the Bureau of Indian Affairs. (25

U.S.C.A. § 1912(a); In re Desiree F., supra, 83 Cal.App.4th at p. 469; In re Daniel M.

(2003) 110 Cal.App.4th 703, 707.) No foster care placement or termination of parental

rights proceeding may be held until at least 10 days after the tribe, or the BIA where the

tribe is unknown, receives notice. (25 U.S.C.A. § 1912(a); In re A.B. (2008) 164

Cal.App.4th 832, 838.)

In addition to the child‟s name and date and place of birth, if known, the notice is

required to include the “name of the Indian tribe in which the child is a member or may

be eligible for membership, if known.” (§ 224.2, subd. (a)(5)(B).) The notice is also

required to contain “[a]ll names known of the Indian child‟s biological parents,

grandparents, and great-grandparents, . . . as well as their current and former addresses,

birthdates, places of birth and death, tribal enrollment numbers, and any other identifying

information, if known.” (§ 224.2, subd. (a)(5)(C).)

15 Juvenile courts and child protective agencies have “„an affirmative and continuing

duty‟” to inquire whether a dependent child is or may be an Indian child. (In re H.B.

(2008) 161 Cal.App.4th 115, 121; § 224.3; Cal. Rules of Court, rule 5.481.) As soon as

practicable, the social worker is required to interview the child‟s parents, extended family

members, the Indian custodian, if any, and any other person who can reasonably be

expected to have information concerning the child‟s membership status or eligibility.

(§ 224.3, subd. (c); In re Shane G. (2008) 166 Cal.App.4th 1532, 1539; Cal. Rules of

Court, rule 5.481(a)(4).) “Notice is meaningless if no information or insufficient

information is presented to the tribe.” (In re S.M. (2004) 118 Cal.App.4th 1108, 1116, fn.

omitted.)

2. CFS‟s Failure to Comply

At the time of the detention hearing on October 5, 2012, Father signed and filed a

Parental Notification of Indian Status (form ICWA-020), indicating he “may have”

Indian ancestry.4 On the form, Father did not identify any possible tribes or provide any

information concerning his possible Indian ancestry. When the court asked Father

whether he may have Indian ancestry, Father replied: “We weren‟t sure. I don‟t think

so.” He said he thought his mother‟s great-grandmother—the children‟s great, great,

great-grandmother—may have had Indian ancestry.

The paternal grandmother was present in court and, when asked, said the Indian

ancestry was “[o]n your dad‟s side,” referring to the paternal grandfather. The paternal

4 Mother filed the same form indicating she did not have Indian ancestry.

16 grandfather was deceased, but Father said he could ask the paternal grandfather‟s sister

for more information. At the time of the detention hearing, CFS was assessing the

paternal grandmother‟s home for placement.

On November 5, 2012, CFS sent ICWA notices to the BIA for each of the three

children. The notices contained information concerning the parents, but the boxes for

inserting the names, current and former addresses, birth dates and places, tribes, and other

information concerning paternal relatives other than Father were marked “unknown” or

“no information available.”

But, as CFS concedes, relevant information concerning other paternal relatives

was either known or available to CFS when the notices were sent.5 The dispositional

order must therefore be conditionally reversed and the matter remanded to the juvenile

court with directions to order CFS to comply with the inquiry and notice provisions of the

ICWA and related California law. (§§ 224.2, 224.3.)

IV. DISPOSITION

The dispositional order is conditionally reversed and a limited remand is ordered

as follows. Upon remand, the court shall direct CFS to make further inquiries regarding

the children‟s Indian ancestry pursuant to section 224.3 and send ICWA notices to all

relevant tribes in accordance with the ICWA and California law. CFS shall thereafter file

5 The BIA responded to the ICWA notice by letter, stating “[t]he family provided insufficient information substantiating any federally recognized tribe. The family must provide a history back to the year 1900 with names, birth dates, and/or birthplaces of ancestors to help in establishing a biological link with the original ancestral tribal member(s).”

17 certified mail, return receipts, for the ICWA notices, together with any responses

received. If no responses are received, CFS shall so inform the court. The court shall

determine whether the ICWA notices and the duty of inquiry requirements have been

satisfied and whether the children are Indian children. If the court finds the children are

not Indian children, it shall reinstate the dispositional order. If the court finds the

children are Indian children, it shall conduct all further proceedings in compliance with

the ICWA and related California law.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

KING J.

We concur:

RAMIREZ P. J.

HOLLENHORST J.