Opinion
A101078.
11-14-2003
In re JACQUELINE T. et al., Persons Coming Under the Juvenile Court Law. SOLANO COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner and Respondent, v. JEANETTE T., Defendant and Appellant.
Appellant Jeanette T. is the mother of twelve-year-old Jacqueline T. and nine-year-old Sabina T., dependent children of the juvenile court. She appeals from the juvenile courts jurisdictional and dispositional findings and orders. Appellant contends (1) that two of the twelve allegations in support of dependency jurisdiction were insufficiently pled and are not supported by sufficient evidence; (2) that the evidence was insufficient to support the removal of the children from her custody (Welf. & Inst. Code, § 361, subd. (c)); (3) that her reunification plan is "inappropriate and unduly burdensome"; and (4) that the juvenile court did not comply with the notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We disagree with appellants contentions and affirm.
I. FACTS
The dependency proceedings took place in Stanislaus County. The matter was transferred to Solano County after disposition because the children were placed with a relative who lived there.
The Stanislaus County Community Services Agency (Agency) filed dependency petitions alleging that appellant was failing to protect the children (Welf. & Inst. Code, § 300, subd. (b)) and that the children were subject to sexual abuse. (Welf. & Inst. Code, § 300, subd. (d).)
The Agency filed two identical petitions, one for each child.
Subsequent statutory citations are to the Welfare and Institutions Code unless otherwise indicated. Section 300, subdivision (b) and section 300, subdivision (d) will be referred to in the text as "section 300(b)" and "section 300(d)."
The section 300(b) components of the petitions alleged standard failure-to-protect jurisdictional predicates. The petitions alleged that the children "ha[ve] suffered, or there is a substantial risk that the child[ren] will suffer, serious physical harm or illness" due to appellants "failure or inability . . . to supervise or protect the child[ren] adequately" and appellants "willful or negligent failure . . . to supervise or protect the child[ren] adequately from the conduct of the custodian with whom the child[ren] [have] been left."
These standard section 300(b) jurisdictional predicates were supported by the following detailed factual allegations. Jacqueline told her father, Robert T., that her uncle had been sexually molesting her. Robert told Jacqueline to tell him what the uncle had done. Jacqueline "showed her father who, in turn, used his fingers, tongue and penis" to "sexually touch[]" Jacqueline. On April 7, 2002, Jacqueline reported the molestation to an elementary school counselor. Jacqueline reported that she and Robert had "Father-Daughter Days" on which appellant and Sabina left the house for several hours and Robert and Jacqueline engaged in sexual play: "Jacqueline and her father would jump on furniture or the bed without any clothes on. [Robert] would sexually play with [Jacqueline] and rub his penis against her leg, ejaculating on her leg."
The section 300(b) components further alleged that outside an interview room at the police department, appellant was overheard talking to Robert on her cell phone and telling him to go home and destroy evidence before the police arrived. Appellant became "angry and volatile" during the interview and left before the interview was over.
The section 300(d) components of the petitions alleged that a social worker and sheriffs deputy interviewed Jacqueline on April 8, 2002. Jacqueline told them her Uncle Ted "touched her when she was six or seven years old"; she "described oral and vaginal intercourse with her uncle." When she told her father in February 2002 about the uncles molestation, Robert "told her he needed to see what happened so that he could understand." Robert "began touching her from that time until the present time." The sexual conduct included cunnilingus and fellatio, digital, anal and vaginal penetration, and Roberts rubbing his penis against Jacquelines leg until he ejaculated. Robert showed Jacqueline pornographic movies and magazines and gave her a sweet drink that made her drowsy. The section 300(d) components also re-alleged the occurrence of the "Father-Daughter Days."
The Agency prepared a social study report for the jurisdictional hearing, originally set for June 17, 2002. The jurisdictional report set forth, in considerable detail, facts supporting the section 300(b) and section 300(d) allegations of the dependency petitions. In particular, the report set forth facts—from statements of witnesses—showing appellant was angry and volatile at the interview and left prematurely, and was overheard telling Robert over the phone to destroy evidence to keep it from the police.
The Agency noted Jacqueline had been hospitalized twice for psychiatric problems, "due to psychotic breaks and suicidal ideation." A sexual assault exam showed that Jacqueline could have been sexually assaulted despite a lack of "physical findings." The Agency recommended the court make jurisdictional findings based on the sexual molestations and appellants inability to protect her children.
The June 17 jurisdictional hearing was continued to July 23, 2002 for a combined jurisdictional/dispositional hearing. By July 9, the children had been placed with appellants mother, at the request of both appellant and Robert.
The Agency prepared a dispositional report for the July 23 hearing. The Agency reported that Jacqueline had nightmares and stomach problems. She "has been through a considerable amount of trauma" and "has displayed signs of mental and emotional instability." The Agency confirmed the children had been placed in the home of their maternal grandmother, Ruby M.
The Agency recommended that the court find the children to be dependent children of the juvenile court, and find that it is in the best interests of the children to remove them from parental custody. (Welf. & Inst. Code, § 361, subd. (c).) The Agency further recommended the court impose a case plan of reunification services for appellant, including sexual abuse counseling and a domestic violence assessment.
On July 22, 2002, the day before the date set for the combined hearing, the Agency filed amended dependency petitions. The section 300(b) components of the amended petitions re-alleged the standard failure-to-protect jurisdictional predicates quoted ante, and essentially re-alleged the existing factual allegations with slight changes not material here.
Except the amended petitions did not allege appellant told Robert to destroy evidence.
The allegation about appellants behavior at the interview is designated "b-3" and reads as follows: "On April 8, 2002, [appellant] was at the Police Department during the interview, was very angry and volatile, left before the interview was ended and could not be located. The children were placed into protective custody. [Appellant] arrived as the children were being escorted from the department."
The section 300(b) components of the amended petitions also added an allegation designated "b-5": "On July 11, 2002, maternal grandmother Ruby M[.] stated to social worker Judy Hubers-Brandt that Robert T[.] was convicted in the military for an offense or offenses `with sexual overtones, concerning a 13-year-old girl. On July 11, 2002, [appellant] reported to Ms. Hubers-Brandt that she did not know what [Robert] was convicted of in the Army and did not know if [Robert] had received any therapy or treatment for the offenses. [Appellant] stated that [Robert] re-joined their family in California upon his return or discharge from the Army, in Germany."
The section 300(d) components of the amended petitions added allegations that Jacqueline said in an interview that she had seen Uncle Ted "licking Sabinas vagina and she thought Sabina was licking his penis." Jacqueline reported more detail about the "Father-Daughter Days." Sabina said in an interview that Uncle Ted had molested her. Sabina told Robert, in the presence of social workers, "I saw you kiss Jackie on the privates."
Along with the amended petitions, the Agency submitted an addendum report which supported the factual allegations of the petitions with nine pages of witness statements. The statements included a detailed description of the sexual molestations. The addendum report also included a statement by Ruby M. substantiating allegation b-5, and stating that the family was in Germany at the time of Roberts conviction and appellant and the children came home early from Germany as a result. The addendum also included a statement by appellant that she did not know what he was convicted of in the Army, but let him back in the home on his return without knowing if he had received any counseling or therapy.
The Agency continued to recommend that the juvenile court make a finding of dependency jurisdiction, based on Roberts sexual molestation of Jacqueline, appellants behavior at the interview, and her failure to protect the children by making sure Robert received therapy or counseling after his conviction in Germany of an offense involving a 13-year-old girl.
The combined jurisdictional/dispositional hearing was continued to August 12, 2002. On that date the court ruled that appellant could live with her mother, Ruby M., and the children, as long as she complied with her proposed case plan—which included a domestic violence assessment.
The combined jurisdictional/dispositional hearing actually commenced September 3, 2002. At the outset of the hearing the court indicated it had read and considered the social study report prepared for the jurisdictional hearing.
Appellant testified. She did not know the "technical name[]" of the offense Robert was convicted of in Germany, but she had read all the court martial documents. She knew the offense involved speaking inappropriately to a child. She discussed the offense with her mother, and was flown from California to Germany for the court martial. She knew that Robert was convicted and suffered a less than honorable discharge. She didnt feel it was necessary for him to get counseling on his return from Germany—she did not believe he was guilty of the offense, because she was not allowed to testify at the court martial.
Appellant believed Jacqueline had been molested by her uncle. But she did not know whether to believe Jacquelines statements that Robert had molested her.
Jacqueline testified that Robert and her uncle showed her pornographic movies, but she later admitted she might be confused about whether Robert in fact showed her the movies. Sabina testified that she had seen Robert molest Jacqueline, and that she had seen Robert and Jacqueline "kissing [each other] in the private." Sabina further testified her Uncle Ted molested her, and that Jacqueline told her she also had been molested by Uncle Ted.
Robert testified he did not know whether Ted molested Jacqueline. In the Army he was convicted of taking indecent liberties with a minor, involving inappropriate speech, and received a bad conduct discharge. Some of his papers from the court martial were available to appellant.
The juvenile court found true 11 of the 12 allegations of the amended dependency petitions, including allegations b-3 and b-5. The court found "by a preponderance of the evidence that both children have suffered or theres a substantial risk the children will suffer serious physical harm or illness as a result of the failure or inability of their parent to supervis[e] [or] protect the child adequately or to protect the child from the conduct of the custodian with whom the child has been left." The court found the children "are persons described by sections 300(b) and [300](d) . . . ."
The court did not find true certain relatively insignificant portions of some of the 11 allegations. This does not concern us on appeal.
Moving on to dispositional issues, the court stated it had read and considered the dispositional report. The court found the children to be dependent children of the juvenile court, and ordered them removed from the custody of their parents pursuant to section 361, subdivision (c). The court found that reasonable services had been provided to the parents which were designed to alleviate the problems which led to the initial detention of the children, but that appellant "has made limited progress in alleviating and in mitigating" those problems. The court noted "the reason for the removal" was that appellant "continu[es] to be in denial as to what has happened to her children." The court approved the case plan, which specified placement of the children with Ruby M. and services to appellant to include counseling.
II. DISCUSSION
As noted in the lead paragraph, appellant contends (1) that two of the twelve allegations in support of dependency jurisdiction were insufficiently pled and are not supported by sufficient evidence; (2) that the evidence was insufficient to support the removal of the children from her custody (Welf. & Inst. Code, § 361, subd. (c)); (3) that her reunification plan is "inappropriate and unduly burdensome"; and (4) that the juvenile court did not comply with the notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We discuss each of these contentions in turn.
(1) Appellant argues that allegations b-3 and b-5 of the section 300(b) components of the petitions were both improperly pled and unsupported by sufficient evidence.
We first note that appellant challenges only these two allegations because they "pertain[] only to her." We disagree with appellants artificial compartmentalization of the failure-to-protect dependency allegations. All of the allegations pertain to appellant because they allege that, either willfully or negligently, appellant failed to protect her children from Roberts sexual abuse. Appellants contention is without merit, as we now explain.
A dependency petition must provide notice to the parent of the factual allegations underlying the requested dependency finding. (In re Jeremy C. (1980) 109 Cal.App.3d 384, 397; see In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134 (Nicholas B.).) "We construe the well-pleaded facts in favor of the petition in order to determine whether" the Agency has properly pleaded that appellant failed to protect her children. (Nicholas B., supra, at p. 1133.)
Here b-3 alleged that appellant became angry and volatile and abandoned her children at the police department interview. As the trial court found, b-3 "demonstrat[ed] [appellants] state of mind and whether she was in a protective mode . . . ." B-5 alleged facts showing appellant was on notice that Robert was convicted, or may have been convicted, of a sexual offense while in the military. Coupled with the allegations of the standard section 300(b) jurisdictional predicates, b-3 and b-5 are properly pled and provide adequate notice to appellant. In any case they are a minor part of the vastly detailed factual allegations of appellants failure to protect her children.
Contrary to appellants claim, b-3 and b-5 are supported by substantial evidence. Our standard of review is clear. Our task "begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact." (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.) We must resolve all conflicts in the evidence in favor of the ruling and "indulge in all legitimate inferences to uphold the courts order." (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) We cannot reweigh conflicting evidence to change a juvenile courts dependency determination. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.)
The Agencys reports provide substantial evidence to support b-3. Appellants own testimony, that she read the documents from Roberts court martial and did not make sure he received counseling or therapy on his return from Germany, supports b-5.
(2) Appellant next argues there was insufficient evidence to support the juvenile courts dispositional order to remove the children from her physical custody. (§ 361, subd. (c).)
A child may be removed from a parents physical custody if there is clear and convincing evidence that "[t]here is a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the [child]," or that the child or a sibling of the child "has been sexually abused, or is deemed to be at substantial risk of being sexually abused, by a parent . . . and there are no reasonable means by which the [child] can be protected from further sexual abuse or a substantial risk of sexual abuse without removing the [child] from his or her parent . . . ." (§ 361, subds. (c)(1), (c)(4).)
The evidence below satisfies the statutory standard. The juvenile court found appellant was in denial of Roberts rampant and ongoing sexual abuse of Jacqueline. Appellant was so much in denial of Roberts proclivities toward inappropriate behavior with children that she believed he was only found guilty of the court martial offense because she was not permitted to testify. She wanted to believe Roberts version over Jacqueline and Sabinas graphic statements. The juvenile court was justified in removing the children from appellants physical custody to protect them from further sexual abuse.
(3) Appellant challenges her reunification plan as "inappropriate and unduly burdensome." She objects to the portion of the plan requiring a domestic violence assessment.
Appellant concedes we review the adequacy of a reunification plan for an abuse of discretion. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1775.) Nevertheless she complains there is no evidence of domestic violence requiring the assessment. But she admits in her opening brief that Jacqueline reported that Robert punched a hole in a door and broke a door handle. We cannot find an abuse of discretion here. In any case the key component of the reunification plan is sexual abuse counseling. We cannot see how inclusion of a domestic violence assessment renders the reunification plan "inappropriate and unduly burdensome."
(4) Finally, appellant contends the juvenile court violated the notice provisions of ICWA. On the contrary, the record shows the court complied with those provisions and gave sufficient notice to the tribes identified by appellant. The pertinent facts are as follows.
At some point prior to the jurisdictional hearing set for June 17, 2002, appellant told the Agency she "has Cherokee affiliation." The Agency concluded that ICWA "may apply." The July 23, 2002 dispositional report states that on June 18, 2002, the Agency sent notices to the Bureau of Indian Affairs (BIA) and the various Cherokee tribes. On June 20, BIA returned the "green card," or certified mail receipt, indicating receipt of notice. The United Keetoowah Tribe and the Cherokee Nation of Oklahoma returned the certified mail receipt on June 24 and June 28, respectively. The Agency was awaiting additional information from the Cherokee tribes.
On July 17, 2002, the clerk of the juvenile court sent notice of the July 23 dispositional hearing to the three federally recognized Cherokee tribes: the Eastern Band of Cherokee Indians in Cherokee, North Carolina, the Cherokee Nation of Oklahoma and the United Keetoowah Band of Cherokee Indians, both in Tahlequah, Oklahoma. The notice was filed with the court on July 18.
On July 31, 2002, the clerk sent another notice to the three Cherokee tribes, informing the tribes of the August 12 combined hearing. This notice was filed with the juvenile court.
On August 12, the Agency filed certified mail receipts from each of the three tribes, showing two received a notice on July 22 and one on July 23. Presumably, these are receipts of the notice of the July 23 hearing. Also on August 12 the Agency filed certified mail receipts from the three tribes showing two received a notice on August 5 and one on August 6. Presumably these are receipts of the notice of the August 12 hearing.
No tribe sought to intervene in the dependency proceedings. When the combined jurisdictional/dispositional hearing commenced on September 3, 2002, the court stated it had read and considered the materials submitted concerning the ICWA notice. The court found "that proper notice has been given" under ICWA.
Congress enacted ICWA in 1978 "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . . ." (25 U.S.C. § 1902.) ICWA applies to child custody proceedings, including proceedings to terminate parental rights. (25 U.S.C. § 1903(1).)
ICWA requires that notice be given to the appropriate Indian tribe in a child custody proceeding when the court knows, or has reason to know, the child is an "Indian child." (25 U.S.C. § 1912(a); see In re Suzanna L. (2002) 104 Cal.App.4th 223, 231 (Suzanna L.).) An Indian child is a child who is "either (a) a member of an Indian tribe or (b) . . . eligible for membership in an Indian tribe and . . . the biological child of a member of an Indian tribe . . . ." (25 U.S.C. § 1903(4).)
In terms of triggering the ICWA notice requirement, the concept of "knows or has reason to know" has been given expansive interpretation. The BIA Guidelines for State Courts (44 Fed.Reg. 67584 (Nov. 26, 1979) (Guidelines)), which are designed to implement ICWA, state that a court would have reason to believe a child an Indian child if a public agency has discovered information suggesting that status, or if an officer of the court in the proceeding "has knowledge that the child may be an Indian child." (Guidelines, supra, at pp. 67584, 67586.) Similarly, California Rules of Court, rule 1439(d), which implements ICWA in California courts, imposes an affirmative duty on the juvenile court to "inquire whether a child [in a dependency proceeding] is or may be an Indian child."
All further references to rules are to the California Rules of Court.
Notice under ICWA must be sent to the Indian childs tribe by registered mail with return receipt requested, providing notice of the pending proceedings and of the tribes right of intervention. (25 U.S.C. § 1912(a); rule 1439(f); see In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422 (Kahlen W.).) The notice requirement of ICWA is mandatory. (Suzanna L., supra , 104 Cal.App.4th at p. 231; In re Jonathan D. (2001) 92 Cal.App.4th 105, 111.) Noncompliance with the notice requirement can invalidate the actions of the juvenile court, including an order terminating parental rights. (25 U.S.C. § 1914.) But some cases have held that substantial compliance with the ICWA notice provisions is sufficient so long as the tribe has actual notice of the proceedings and of its right to intervene. (See Kahlen W., supra, 233 Cal.App.3d at pp. 1421-1422.)
ICWAs notice provisions are strictly construed with regard to the form of the notice and the evidence of notice that must be presented to the juvenile court. " `Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under [ICWA] irrespective of the position of the parents, Indian custodian or state agencies. [Citation.] The failure to comply with the notice requirements of . . . ICWA constitutes prejudicial error unless the tribe has participated in or indicated no interest in the proceedings. [Citations.]" (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1265 (Samuel P.).)
Several cases have established a two-step process for ICWA notice. First, the social service agency must identify any possible tribal affiliation and send proper notice to those tribes, return receipt requested. (Such notice is also required by rule 1439(f).) Second, the social service agency must file with the juvenile court copies of the notices and the return receipts, as well as any correspondence from a tribe relevant to the childs status. (See In re Asia L. (2003) 107 Cal.App.4th 498, 507-508 (Asia L.); In re H. A. (2002) 103 Cal.App.4th 1206, 1214-1215; In re Jennifer A. (2002) 103 Cal.App.4th 692, 702-703 (Jennifer A.); Samuel P., supra, 99 Cal.App.4th at p. 1266; In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4.)
Appellate courts describe the filing requirement as an essential component to the notice process, because filing is a certain way for a juvenile court to have a sufficient record to satisfy itself (1) that the notice requirements have been complied with, or (2) there is a need for further inquiry. (Asia L., supra, 107 Cal.App.4th at p. 508; Jennifer A., supra, 103 Cal.App.4th at p. 703; Samuel P., supra, 99 Cal.App.4th at p. 1266.)
Here the record shows the Agency sent notice to the appropriate Cherokee tribes and to the BIA in June 2002. From that point on the juvenile court clerk sent notices to the tribes apprising them of the pendency of the jurisdictional and dispositional proceedings. The clerks notices gave the names of the children, the case numbers, the nature of the proceedings, and contact information for the juvenile court. The tribes returned certified mail receipts showing they had received the various notices. The clerks notices and the mail receipts were filed with the juvenile court.
Appellant nevertheless contends the Agency and the juvenile court did not comply with the ICWA notice provisions. Appellant argues the Agency was required to use certain forms to give notice, and there is no indication those forms were in fact used when the Agency gave notice in June. Appellant complains that the receipt cards returned by the Cherokee Nation of Oklahoma are not signed, but bear the stamped name of the receiving party, one Dennis Sixkiller. Appellant also claims that even if there was proper notice the juvenile court proceeded with the hearing sooner than 10 days from the tribes receipt of notice.
This is not a case where the social services agency never notified an Indian tribe in the face of the possibility a child was an Indian child. This is not a case where the agency claimed it provided notice but there is absolutely no record of it. This is a case where there is record evidence of notice and receipt of that notice by the Indian tribes. This is also a case where the juvenile court made a factual finding that it had reviewed all the materials submitted regarding the ICWA notice and found there was proper notice under ICWA. In light of these record facts, we cannot conclude that there was not proper ICWA notice. With regard to appellants argument concerning the commencement of the proceedings sooner than 10 days from receipt of notice, we note the last notices were received by the tribes on August 5 and 6—and the juvenile courts hearing did not commence until September 3.
III. DISPOSITION
The jurisdictional and dispositional orders are affirmed.
We concur: Swager, J., Margulies, J.