Opinion
B298063
05-04-2020
In re C.R., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. C.R., Defendant and Appellant.
Michelle E. Butler, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Navid Nakhjavani, Principal 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 18 CCJP07129B) APPEAL from an order of the Superior Court of Los Angeles, County, Pete R. Navarro, Commissioner. Affirmed in part; remanded with directions. Michelle E. Butler, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.
Father C.R. appeals from a portion of a juvenile court's dispositional order requiring him to undergo 10 drug and alcohol tests. Father also maintains the juvenile court and DCFS failed to comply with inquiry and notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). DCFS agrees (as do we) that it failed to satisfy ICWA requirements. Accordingly, we remand the case for the limited purpose of ensuring compliance with the ICWA. In all other respects, we affirm.
BACKGROUND
Investigation and Petition
In October 2018, father was the primary custodial parent for then five-year-old C.R., whose maternal grandmother (MGM) also cared for the child several days a week. In late October 2018, MGM brought C.R. to the hospital after the child told her father had sexually and physically abused her multiple times. The police were contacted, as was the Sexual Assault Response Team (SART). Although the SART forensic examination of C.R. provided a sufficient basis upon which to arrest father, it revealed no physical evidence of any abnormality, and neither confirmed nor negated sexual abuse.
C.R.'s mother is not a party to this appeal.
In interviews conducted by the police and DCFS, respectively, C.R. made many claims of sexual and physical abuse by father, some of which seemed fantastical. We need not detail them here, as they were not credited by the court at the adjudication hearing and the allegations of the dependency petition based on C.R.'s claims of abuse were dismissed. The sole basis of jurisdiction in this case is a sustained allegation under Welfare and Institutions Code section 300, subdivision (b), that Mother's abuse of illegal and prescription drugs rendered her incapable of providing C.R. and her half-brother with proper care, thereby placing the children at risk. The half-brother is not involved in this appeal, and Mother is not a party.
As an example, C.R. reported that father had cut her with a knife, struck her with a belt, and once used scissors to "cut off her middle part [vagina]," a wound from which she "almost died" except an aunt rushed her to a hospital. However, C.R. bore no scars or evidence of physical abuse.
Further undesignated statutory references are to this code.
In October 2018, MGM told police she "suspect[ed] [Father was] a drug user." Twice during the course of this proceeding, C.R. informed DCFS that she believed father used drugs and alcohol. In October 2018, when asked if she had "seen anyone in the home use any drugs, smokes [sic], or act in a strange manner that isn't normal," C.R. stated that father "smokes cigaweed. He . . . act[s] strange and talks/walks weird." She also said father "drinks beer and wine many times, like every day. Sometimes he is drunk." In December 2018, after first denying that she knew what drugs or alcohol were, C.R. told DCFS that "weed is a drug" and identified beer and wine as alcoholic beverages. She said father "drinks wine and beer, and he smokes a little. When [he] smokes, he smokes near the kitchen window." Other than MGM, none of DCFS's interviews with members of C.R.'s extended family revealed suspicions that father uses drugs. Father's criminal history revealed that he may have been involved in a police "encounter for public intoxication" in 2014, but had not been arrested. Father's remaining criminal history is not drug related. DCFS tried several times to meet with father during his incarceration, following his arrest on C.R.'s sexual abuse allegations, but was unable to do so.
In its report describing this encounter, DCFS noted no positive identification was made (no fingerprints taken), and the entry was premised on "soft criteria" (i.e., "a name or number match").
On November 5, 2018, DCFS filed a petition pursuant to section 300. It alleged in six counts that C.R. and her half-brother (who is not a subject of this appeal) were children at risk described by section 300, subdivisions (a), (b), (d) and (j) based on allegations of mother's drug use and father's physical and sexual abuse.
Father was incarcerated at the time of the November 6, 2018 detention hearing and did not attend. He was found to be C.R.'s presumed parent. The court found the petition stated a prima facie case and removed C.R. from her parents' care and physical custody.
ICWA Evidence
On November 6, 2018, mother informed the court she might have Native American ancestry, specifically, that she was, or may be a member of the Blackfoot tribe, or eligible for membership in that tribe. On January 8, 2019, father also told the court he might have Native American ancestry in the Blackfoot tribe through paternal relatives. DCFS was ordered to investigate parents' ICWA claims.
In December 2018, DCFS provided ICWA notice to the Bureau of Indian Affairs (BIA), Secretary of the Interior (Secretary) and Blackfoot tribe of Montana. In its January 15, 2019 jurisdiction/disposition report, DCFS informed the court it tried but had been unable to meet with mother to question her regarding her claim of Indian Ancestry. MGM told DCFS "she had no reason to believe the family was registered with any tribe," and said the only two maternal relatives who might know about the family's Native American heritage were dead.
If there is reason to believe a child who is the subject of a dependency proceeding is an Indian child, the ICWA requires that notice of the proceeding be given to the implicated tribes or the Secretary. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471; 25 U.S.C. § 1912, subd. (a).) "The Indian status of the child need not be certain to invoke the notice requirement." (Desiree F., supra, at p. 471.)
DCFS contacted two paternal relatives whom father had identified as possibly having information regarding his Indian ancestry. One aunt said she had grown "up hearing from relatives that the family had Indian heritage," and provided additional information regarding the family's lineage, but did not know if any family member was registered with a tribe. A second paternal aunt told DCFS she had no reason to believe her family was registered with a tribe, and thought father had misinformed the court. On January 10, 2019, DCFS served additional ICWA notices on the BIA, Secretary and the Blackfoot tribe of Montana based on information received from father and his aunts.
DCFS concedes that its ICWA notices as to both mother and father lacked or omitted statutorily required information.
Adjudication and Disposition Hearing
Father appeared for the combined jurisdiction/disposition hearing on April 23 and May 21, 2019. The juvenile court considered and admitted in evidence DCFS's detention, jurisdiction/disposition, and supplemental reports, several last minute informations, and a transcript and CD of C.R.'s October 31, 2018 forensic interview.
The juvenile court found there was insufficient evidence to demonstrate that father had physically or sexually abused C.R., observing that the child's credibility on those points was in question and that the Dependency Investigator, who had investigated and testified regarding these allegations, had misgivings about whether the child was abused. The court dismissed the allegations against father and found him to be non-offending. The court sustained one count (§ 300, subd. (b)(1)), alleging C.R. was at risk due to mother's chronic substance abuse.
The hearing proceeded to disposition on May 21, 2019. Mother did not seek custody, and father did not object to C.R.'s removal, as he was unable to care for the child while incarcerated and lacked a plan for her child's care. C.R. was declared a dependent of the court and removed from parental care. Reunification services were ordered for both parents. Father argued there were no allegations in the petition regarding his use of drugs or alcohol and objected to the component of his case plan requiring him to submit to drug testing. The juvenile court ordered father to submit to 10 drug tests.
The juvenile court made no ICWA findings.
DISCUSSION
Father contends that the court erred in ordering him to submit to drug and alcohol testing, and that DCFS failed to comply with the inquiry and notice requirements of the ICWA. DCFS properly concedes the second contention. We reject the first.
The Court Did Not Abuse its Discretion by Requiring Father to Undergo Drug and Alcohol Testing
Once a child has been declared a juvenile court dependent, the court has broad discretion to determine the disposition it considers to be in the child's best interest. In making its determination, the court is not limited by the sustained allegations of a petition and may consider social study reports and "other relevant and material evidence." (§ 358, subd. (b)(1); In re Rodger H. (1991) 228 Cal.App.3d 1174, 1183; see In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104 [juvenile court has broad discretion to decide what services will best serve the child's interest and to fashion its dispositional order accordingly]; see § 362, subds. (a) & (d).) Reunification services should be tailored to address and remedy circumstances that led the juvenile court to assert jurisdiction. (See In re Heather B. (1992) 9 Cal.App.4th 535, 561.)
We review the dispositional order for abuse of discretion. (In re Eric B. (1987) 189 Cal.App.3d 996, 1005.) We afford the trial court broad deference and will interfere only if we conclude "'"under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he did." [Citations.]'" (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
Father is correct that the principal issues that brought C.R. to juvenile court attention concerned her allegations of father's sexual and physical abuse. However, in the course of its investigation, C.R. also told DCFS more than once that father smoked "cigaweed" and that, after doing so, he behaved oddly and walked and talked in a weird fashion. She also told DCFS that father consumed alcohol daily and she had sometimes seen him drunk.
The juvenile court reviewed the results of the SART examination, information gleaned during forensic and other interviews, and considered the child's demeanor. In the end, the court questioned C.R.'s veracity and found there was insufficient reliable evidence to support C.R.'s claims of abuse. However, there is no indication in the record the court found C.R. similarly unreliable with regard to her claims that father used drugs and alcohol and was under the influence of such substances while supervising the child. On this record, we must conclude that the court credited C.R.'s statements regarding father's substance use, as well as evidence father may have been involved in a criminal incident of public intoxication in 2014.
The fact that the petition did not specifically allege that father engaged in substance abuse is not determinative as to the scope of the disposition order. At the dispositional phase, the juvenile court is free to "direct any reasonable orders to the parents . . . as the court deems necessary." (§ 362, subd. (d).) The court is not limited to the allegations of the petition. It may—indeed should—consider all relevant evidence in constructing its orders. (§ 358, subd. (b); In re Rodger H., supra, 228 Cal.App.3d at p. 1183.) The court's concern regarding father's drug and alcohol use, coupled with a 2014 citation for public intoxication, are sufficient to warrant the dispositional order at issue here, requiring father to submit to minimal drug and alcohol testing as a part of his reunification plan.
Father's reliance on In re Jasmin C. (2003) 106 Cal.App.4th 177 (Jasmin C.) and In re Sergio C. (1999) 70 Cal.App.4th 957 (Sergio C.) to support his assertion that testing was uncalled for, is misplaced. In Jasmin C., a non-offending mother challenged a juvenile court order requiring her to undertake a parenting course. In that case, there was no evidence the mother had ever abused, failed to protect, or otherwise behaved in an inappropriate manner with her children. The court in Jasmin C. found the requirement that mother participate in parenting education unsupported by any evidence, and premised "on a rote assumption that mother could not be an effective single parent without parenting classes, something belied by common sense and experience in 21st-century America." (Jasmin C., at pp. 181-182.) In Sergio C., the court found the juvenile court erred when it required a father to undergo drug testing based solely on an unsworn statement made by the child's mother to a social worker. (Sergio C., at p. 960.)
In contrast to Jasmin C. and Sergio C., the record here contains evidence that father drank alcohol daily and sometimes got drunk, and smoked something called "cigaweed," after which he behaved oddly in his daughter's presence. On this record, we cannot find that the juvenile court abused its discretion in ordering father to submit to 10 drug and alcohol tests.
Limited Remand to Ensure Compliance with the ICWA is in Order
Congress enacted the ICWA "to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children 'in foster or adoptive homes which will reflect the unique values of Indian culture.'" (In re Levi U. (2000) 78 Cal.App.4th 191, 195; see also 25 U.S.C. § 1902.) The "ICWA recognizes that '"the tribe has an interest in the child which is distinct from . . . the interest of the parents."'" (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253 (Dwayne P.).)
To advance this interest, the ICWA and related law "confers on tribes the right to intervene at any point in state court dependency proceedings. [Citations.]" (Dwayne P., supra, 103 Cal.App.4th at p. 253; 25 U.S.C. § 1911(c).) That right "'is meaningless if the tribe has no notice that the action is pending.' [Citation.]" (Ibid.) Once the court has reason to know an Indian child is or may be involved in a dependency proceeding, both the court and DCFS have an affirmative duty to inquire further to determine whether a child is or may be an Indian child for ICWA purposes. (§ 224.3, subd. (a)(3)(A); Cal. Rules of Court, rule 5.481(a); In re W.B. (2012) 55 Cal.4th 30, 53.) The juvenile court must also determine whether the notice provided satisfies ICWA requirements. (In re Glorianna K. (2005) 125 Cal.App.4th 1443, 1449.)
Here, DCFS concedes it failed to satisfy ICWA inquiry and notice requirements as to C.R.'s Indian status. C.R.'s parents notified the court the child might be a member of or eligible for membership in the "Blackfoot" tribe. DCFS was ordered to investigate mother's claim of Indian ancestry. MGM and father provided DCFS with the names and contact information of family members with whom DCFS did minimal follow up. Thereafter, DCFS sent ICWA notices which it concedes lacked or omitted required information in the agency's possession. Moreover the juvenile court made no findings regarding the child's Indian heritage. (§ 224.3, subd. (a).)
DCFS's inadequate investigation of C.R.'s possible Indian ancestry and failure to provide proper notice requires that we conditionally remand the matter for the juvenile court to order compliance with ICWA inquiry and notice provisions. If further investigation reveals information that C.R. is or is eligible to be a tribal member, notice must be provided to any identified tribe or, if the tribe cannot be determined, to the BIA and Secretary. (See § 224.3, subd. (d); In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422; In re Nikki R. (2003) 106 Cal.App.4th 844, 848 [the court and DCFS have an affirmative obligation to inquire whether a dependent child is or may be an Indian child].)
The juvenile court shall determine on an adequate evidentiary record whether ICWA requirements are satisfied and whether C.R. is an Indian child within the meaning of that statute. (See In re Breanna S. (2017) 8 Cal.App.5th 636, 654-655.) If the court finds C.R. is not an Indian child, it shall reinstate the original orders. If the court finds she is an Indian child, it shall set a new adjudication hearing and conduct that proceeding, and all further proceedings, in compliance with ICWA. (Ibid.; In re Damian C. (2009) 178 Cal.App.4th 192, 200.)
Accordingly, we will remand the matter for the limited purpose of requiring DCFS to investigate maternal and paternal relatives identified by C.R.'s parents or MGM as to ICWA concerns, and report to the court the results of its investigation and interviews. DCFS must also re-send complete notice to appropriate recipients.
Father also observes the juvenile court failed to advise parents that parental rights may be terminated if C.R. is not returned to parental custody within 12 months. (Cal. Rules of Court, rule 5.695(h)(2).) On remand, the court shall give this advisement.
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DISPOSITION
The matter is remanded for the sole purpose of ensuring compliance with the inquiry and notice provisions of the ICWA. In the event a tribe indicates C.R. is an Indian child, the court shall proceed as required by the ICWA. If the court determines the child is not an Indian child, it shall so state, and reinstate the disposition order. In addition, the court must advise parents of the possibility parental rights may be terminated. (Cal. Rules of Court, rule 5.695(h)(2).) In all other respects, the court's orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.