In re B.B. CA2/8 ( 2015 )

Filed 1/28/15 In re B.B. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re B.B. et al., Persons Coming Under the B255724
Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. No. DK02055)
FAMILY SERVICES,
Plaintiff and Respondent,
v.
B.B.,
Defendant and Appellant.
APPEAL from orders of the Superior Court for the County of Los Angeles. Philip
Soto, Judge. Affirmed.
Karen B. Stalter, under appointment by the Court of Appeal, for Defendant and
Appellant.
Richard D. Weiss, Acting County Counsel, Dawyn R. Harrison, Assistant County
Counsel, and Tyson B. Nelson, Deputy County Counsel, for Plaintiff and Respondent.
_____________________________________
SUMMARY
The father in this dependency case is a noncustodial parent who was incarcerated
when his two children were detained from their mother. The Los Angeles County
Department of Children and Family Services (the Department) filed a subsequent
dependency petition under Welfare and Institutions Code section 342,1 alleging father
had a history of criminal convictions, including robbery and other crimes, that rendered
him incapable of providing regular care for the children and placed them at risk of
physical harm. The juvenile court sustained the petition; removed the children from both
parents (as to father, finding that “continuance in the home of the father for these children
would create a substantial risk of detriment to their safety”); and denied father
reunification services.
Father asserts three claims of error. He contends his criminal history was not
substantial evidence that he put his children at substantial risk of suffering serious
physical harm as required by section 300, subdivision (b). He argues the court
erroneously removed the children under section 361, subdivision (c) – because he was not
a custodial parent – and should have acted under section 361.2, which governs placement
of a child with a noncustodial parent. And he contends the juvenile court did not comply
with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901
et seq.).
We remand for the limited purpose of directing compliance with ICWA, but
otherwise affirm the jurisdictional and dispositional orders.
FACTS
The Department placed B.B., then five years old, and L.R., then a few weeks old,
in protective custody on October 25, 2013, after a domestic violence incident between
mother, who was highly intoxicated, and her male companion D.R., who was not willing
to take care of the children. Among other things, the Department’s dependency petition
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise specified.
2
alleged mother’s abuse of alcohol, and her violent dispute with D.R. in the presence of
the children, endangered the children’s physical health and safety and placed them at risk
of harm. On October 30, 2013, the court found “continuance in the home of Parents is
contrary to the child’s welfare.”
On November 1, 2013, mother appeared for arraignment on the petition. The
court found father was B.B.’s presumed father; ICWA did not apply; and both father and
D.R. were alleged fathers of L.R. Mother stated that father was still in prison.
On November 14, 2013, the Department located father at Wasco State Prison. Its
jurisdiction/disposition report on the allegations against mother (signed November 21,
2013) indicated that father was then serving a 16-month prison term that started in
August 2013, for being a felon or addict in possession of a firearm. (Pen. Code, § 29800,
subd. (a)(1).) The Department recommended that father receive family reunification
services and participate in a program of parenting and individual counseling.
Father wrote a letter to the court dated November 27, 2013, asking the court “to
work with me on keeping custody of my son and allowing my family members to get
temporary custody of [B.B.] up until my discharge date 3-31-2014 which is not far from
now.” Father listed six “family members that care about my son.” He said he was not
sure if L.R. was his child or not.
On December 11, 2013, father appeared in custody at the jurisdictional hearing on
the allegations against mother. Mother pled no contest to the allegations described
above. The court ordered DNA testing for father and L.R. (The court later found father
was the biological father of L.R.)
Father’s counsel observed that father was nonoffending as to jurisdiction, and
advised the court father would be asking for a “home of parent father order.” Counsel
stated father had “numerous relatives” who were present in court as well as a paternal
grandmother available for placement. The court ordered the social worker to interview
father to “see whether or not he has any kind of viable plan,” and ordered the relatives
interested in placement to “go to the live scan office today to be live scanned so we can
start a background check.” The court said: “You have to understand if his plan does not
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check out, the county has made it clear or has indicated strongly that they will be filing a
complaint against [father].”
Mother’s counsel stated she had “agreed to do the items on the disposition plan,”
but the court said it would “hold off on that until I find out whether or not either one of
these children are going to be released to the father on an HOP [(home of parent)] father
order with an understanding that he has a plan for where they can be placed.” The court
asked that father “also be referred to services while incarcerated so he could start his
plans now,” and then ordered father to get referrals for “anger management classes,
parenting classes, drug/alcohol classes.”
The court set the disposition hearing on mother’s case for January 27, 2014,
ultimately continuing the hearing to April 10, 2014.
Meanwhile, on February 3, 2014, the Department filed a subsequent juvenile
dependency petition under section 342,2 alleging father’s history of criminal convictions
rendered him incapable of providing regular care for the children and placed the children
at risk of physical harm under section 300, subdivision (b). The Department’s report of
the same date stated father had a 28-year criminal history including convictions for grand
theft, second degree robbery, controlled substance offenses, pandering and others; that
since he was incarcerated on August 12, 2013, he failed to provide for his children; and
that he was convicted of DUI’s that occurred in 2011 and again in 2013 (the former of
which also resulted in battery and hit and run (property damage) convictions). The report
also stated father “has failed to take parenting classes or drug counseling courses during
his incarceration,” and had not visited with the children due to his incarceration. (By
January 2014, both children had been placed with a cousin, C.E.)
2 Section 342 provides: “In any case in which a minor has been found to be a
person described by Section 300 and the petitioner alleges new facts or circumstances,
other than those under which the original petition was sustained, sufficient to state that
the minor is a person described in Section 300, the petitioner shall file a subsequent
petition. . . . [¶] All procedures and hearings required for an original petition are
applicable to a subsequent petition filed under this section.”
4
An addendum to the Department’s report recommended no reunification services
for father under section 361.5, based on his conviction in 1997 of a violent felony.3
On April 10, 2014, the court held a hearing on jurisdiction as to father, and on
disposition as to both parents. Father, who was no longer in custody, was present. The
court received into evidence the Department’s report with father’s criminal records.
Father presented no evidence, but argued that the Department presented no evidence of
how father’s criminal history posed a risk to his children. The juvenile court sustained
the jurisdictional allegations, observing: “Unless somebody has something else that they
want to say, I’m still of a mind to make a true finding with regards to [jurisdiction.] This
is a little bit different situation since [father’s] out now to talk about [disposition]. But I
think for the jurisdictional portion, we certainly do have grounds for making a true
finding from the . . . February 3rd, 2014 [petition] that [the allegation] is true.”
Counsel for father declined the court’s invitation to present argument “before I
make a 361(c) finding,” stating she “wanted to argue about the services.” The court then
found that “continuance in the home of the father for these children would create a
substantial risk of detriment to their safety, protection, physical, emotional well-being
and there’s no reasonable means to keep the children safe without removal,” and “[t]he
children are removed from their parents and suitably placed.”
The court then solicited argument from father’s counsel “as to how we get past the
[section 361.5, subdivision] (b)(12) exception” that reunification services need not be
provided because of father’s criminal background. Counsel responded by stating that
father “would object to the removal and the suitable placement order that the court has
made,” and asked to enter father’s stipulated testimony. The parties stipulated that, if
father were to testify under oath, “he would say that he has a home ready for his children.
3 Section 361.5, subdivision (b) states: “Reunification services need not be
provided to a parent . . . when the court finds, by clear and convincing evidence, . . .
[¶] . . . [¶] [t]hat the parent . . . has been convicted of a violent felony, as defined in
subdivision (c) of Section 667.5 of the Penal Code.” (§ 361.5, subd. (b)(12).)
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He lives in a house with his 89-year-old mother, paternal grandmother. He’s ready and
able to have his children in his care today.”
Father’s counsel argued the court should “give the father reunification services to
at least give him a chance to have his children back in his care.” Counsel explained
father was “getting on his feet now,” was on probation for six months to a year, and that
father had “done his time” for the “robbery conviction from over 20 years ago.” She said
father “does plan on entering into programs and doing parenting and counseling just in
case the court does not grant him services today so that he could file a 388 [petition to
modify an order based on new evidence or changed circumstances].”
The Department’s counsel argued this was “not a case of a robbery 20 years ago,”
but rather a lifetime of crime, and that father had just been released from prison after his
2013 conviction for being a felon with a firearm. Father was “driving around with a
loaded weapon,” and “was caught as a felon with a weapon” when the weapon
discharged, the round went into his leg, and a traffic collision resulted.
Responding to questions from the court, father’s counsel said father was living
with and taking care of his elderly, disabled mother, and was not working “at this time.”
The court concluded it did not have grounds for ordering the Department to
provide reunification services. The court observed that it “would be a totally different
case” if father had lived a crime-free life since his robbery conviction, “[b]ut that’s not
the situation. And I can’t blind myself to the number of convictions since the robbery
conviction involving guns, involving drugs, involving pandering for prostitution
purposes, involving all kinds of other crimes involving crimes of moral turpitude.”
“There’s not clear and convincing evidence that you have changed. Now that may be the
case in six months if you stay out of the trouble, and I’m hopeful that you do. And I
would reconsider that on a 388 if you do. [¶] But I have to agree with the county social
workers at this time that your lengthy and extensive criminal background are a danger to
these young children and that you shouldn’t have services at this time.”
Father filed a timely notice of appeal.
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DISCUSSION
1. The Substantial Evidence Claim
Father contends there was no showing his children were at risk of suffering serious
physical harm as required under section 300, subdivision (b).
“ ‘In reviewing a challenge to the sufficiency of the evidence supporting the
jurisdictional findings and disposition, we determine if substantial evidence, contradicted
or uncontradicted, supports them. “In making this determination, we draw all reasonable
inferences from the evidence to support the findings and orders of the dependency court;
we review the record in the light most favorable to the court’s determinations; and we
note that issues of fact and credibility are the province of the trial court.” ’ ” (In re I.J.
(2013) 56 Cal. 4th 766, 773.) “The ultimate test is whether a reasonable trier of fact
would make the challenged ruling considering the whole record.” (In re James R. (2009)
176 Cal. App. 4th 129, 135.)
Jurisdiction is proper if there is a substantial risk the children will suffer “serious
physical harm or illness” as a result of father’s failure to adequately protect them. (§ 300,
subd. (b).) This jurisdictional requirement “ ‘effectively requires a showing that at the
time of the jurisdictional hearing the child is at substantial risk of serious physical harm
in the future . . . .’ [Citation.]” (In re James R., supra, 176 Cal.App.4th at p. 135.)
The Supreme Court tells us that “section 300 does not require that a child actually
be abused or neglected before the juvenile court can assume jurisdiction.” (In re I.J.,
supra, 56 Cal.4th at p. 773.) “The legislatively declared purpose . . . ‘is . . . to ensure the
safety, protection, and physical and emotional well-being of children who are at risk of
that harm.’ (§ 300.2, italics added.) ‘The court need not wait until a child is seriously
abused or injured to assume jurisdiction and take the steps necessary to protect the child.’
[Citation.]” (In re I.J., at p. 773.)
Father argues that his criminal history did not place the children at substantial risk
of serious physical harm. He says the record “does not indicate that father ever exposed
the minors to his criminal activities”; most of his criminal convictions occurred between
1986 and 2001; the convictions for his conduct in 2011 for “driving under the influence
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of drugs/alcohol,” hit and run with property damage, and battery were misdemeanors”;
father “served his sentence” for his August 2013 felony conviction for being a felon with
a firearm; and “[s]peculation about a parent’s future conduct cannot support a finding of
dependency under section 300, subdivision (b).”
We do not see it that way. Father was convicted for driving under the influence
and related misdemeanors committed in 2011, after a long history of other criminal acts.
In 2012, father accidentally shot himself while driving with a loaded gun he was illegally
carrying, causing a traffic collision. In 2013, he was again convicted for driving under
the influence. No explanation is required to support our conclusion that drunk driving
and driving with a loaded gun present a risk to the children, and father presented no
evidence of any effort to rehabilitate himself.
Father cites In re Sergio C. (1999) 70 Cal. App. 4th 957. In that case, the
dependency court sustained allegations that the father “ ‘ha[d] a history of having
conviction[s] of theft of personal property, trespassing with injury to property, false
identification to peace officers, and driving reckless.’ ” (Id. at pp. 959-960.) But the
Court of Appeal reversed because (as the Department conceded) there was insufficient
proof of the father’s alleged history of prior convictions. (Id. at p. 960.) The father
admitted he had been arrested; all were misdemeanor offenses with the most recent arrest
being more than two years earlier. Moreover, the child was well cared for and happy at
home with his father, who was gainfully employed, and “it sounds as though [the child]
has a chance to lead a normal and happy life with his father.” (Id. at p. 959, fn. 3.)
Sergio C. is a far cry from this case.
2. The Dispositional Order
Father does not challenge the court’s denial of reunification services. He contends
that, as a noncustodial parent, he “was entitled to a custody assessment under section
361.2,” with “a determination whether placing the minors in his custody under section
361.2 would be detrimental,” rather than the determination the juvenile court actually
made, namely, that “continuance in the home of the father for these children would create
a substantial risk of detriment to their safety, protection, physical, emotional well-being
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and there’s no reasonable means to keep the children safe without removal.” We
conclude any error was harmless in this case, because the record shows the juvenile court
made a finding under section 361, by clear and convincing evidence, that placing the
children with father would pose a substantial danger to their safety and well being. (In re
D’Anthony D. (2014) 230 Cal. App. 4th 292, 295 (D’Anthony D.).)
The legal background is as follows.
Under section 361.2, “[w]hen a court orders removal of a child pursuant to Section
361, the court shall first determine whether there is a parent of the child, with whom the
child was not residing at the time that the events or conditions arose that brought the child
within the provisions of Section 300, who desires to assume custody of the child. If that
parent requests custody, the court shall place the child with the parent unless it finds that
placement with that parent would be detrimental to the safety, protection, or physical or
emotional well-being of the child.” (§ 361.2.)
Under section 361, a dependent child “shall not be taken from the physical custody
of his or her parents . . . unless the juvenile court finds clear and convincing evidence of
any of the following circumstances . . . : [¶] (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.” (Id., subd. (c)(1).)
In this case, the juvenile court proceeded under section 361, subdivision (c), which
by its terms refers to taking children “from the physical custody” of their parents. Since
father did not have physical custody of his children, by its terms, that provision does not
apply. And, on its face, section 361.2 does apply, because the children were not residing
with father and he asked for placement of the children with him.
We pause to note there is some conflict in the authorities on whether a court must
consider placement of a child with a noncustodial parent under section 361.2 when that
parent is an “offending” parent. Although the term “nonoffending” does not appear in
the text of section 361.2, some courts have recognized “an implicit nonoffending
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requirement in section 361.2.” (In re John M. (2013) 217 Cal. App. 4th 410, 420, 424
[concluding “nonoffending” is a requirement under section 361.2 and the incarcerated
father was “neither nonoffending nor noncustodial”; because father’s criminal offense
“was the cause of his noncustodial status,” he did not fit within the purpose of section
361.2]; In re A.A. (2012) 203 Cal. App. 4th 597, 602, 606-608 [incarcerated mother from
whom children had previously been removed, and whose custody right had not been
restored, was not entitled to consideration under section 361.2].)
Other courts disagree, finding placement under section 361.2, subdivision (a) does
not require that the noncustodial parent also be nonoffending. (See, e.g., D’Anthony D.,
supra, 230 Cal.App.4th at p. 301 [rejecting the contention “that an implicit
‘nonoffending’ requirement can be invoked to preemptively deny a noncustodial parent
consideration for custody without assessing whether the placement would pose a
detriment to the child under section 361.2, subdivision (a)”; constitutional due process
“requires a detriment finding by clear and convincing evidence before a noncustodial
parent can be denied placement under the statute”]; In re Nickolas T. (2013) 217
Cal. App. 4th 1492, 1504 [§ 361.2, subd. (a) does not exclude from consideration for
placement a noncustodial parent with a history of prior involvement with child
dependency proceedings]; In re V.F. (2007) 157 Cal. App. 4th 962, 966 [“section 361.2
does not distinguish between an offending and nonoffending parent”; “[i]f a noncustodial,
incarcerated parent seeks custody of the child, the court must determine whether
placement with that parent would be detrimental”; “we decline to make implied findings
[of detriment] where the trial court has not considered the appropriate statutory
provision”].)
In this case, we need not decide whether section 361.2 applies to an offending
parent. Even if the court erred in failing to make a finding under section 361.2, “ ‘[w]e
cannot reverse the court’s judgment unless its error was prejudicial, i.e., “ ‘it is
reasonably probable that a result more favorable to the appealing party would have been
reached in the absence of the error.’ ” ’ [Citation.]” (D’Anthony D., supra, 230
Cal.App.4th at p. 303.) As in D’Anthony D., where the court found “the juvenile court’s
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findings under section 361 with respect to father – a noncustodial parent – did not
comport with statutory requirements” (ibid.), the error was harmless: “Nevertheless, in
assessing whether this error was prejudicial, we can neither ignore the similarity between
these statutes’ mandatory findings, nor disregard the evidence supporting the court’s
‘substantial danger’ finding concerning placement with father.” (Ibid.; see id. at p. 304.)
The same is true here. At the hearing, the juvenile court found “continuance in the
home of the father for these children would create a substantial risk of detriment to their
safety, protection, physical, emotional well-being and there’s no reasonable means to
keep the children safe without removal.” In denying father reunification services, the
court said that “I have to agree with the county social workers at this time that your
lengthy and extensive criminal background are a danger to these young children . . . .”
The court’s minute order states: “By clear and convincing evidence pursuant to [section
361, subdivision (c)]: Substantial danger exists to the physical health of minor(s) and/or
minor(s) is suffering severe emotional damage, and there is no reasonable means to
protect without removal from parent’s or guardian’s physical custody.” Father’s criminal
history, and particularly the facts leading to his most recent conviction in 2013
(accidentally shooting himself while driving a car and carrying a loaded gun, causing a
collision) support the court’s conclusion.
In short, as in D’Anthony D., “we cannot say it is ‘reasonably probable’ that the
court would have made a different finding had it considered whether the placement
would be detrimental to the children’s safety or physical well-being under section 361.2.”
(D’Anthony D., supra, 230 Cal.App.4th at p. 304.)
3. The ICWA Claim
Father contends, and the Department concedes, the juvenile court did not comply
with ICWA requirements.
The dependency petition filed October 30, 2013, included “Indian Child Inquiry
Attachment” forms signed October 25, 2013, in which the social worker stated that the
children had no known Indian ancestry. The detention report signed October 26, 2013,
also stated, without elaboration, that ICWA did not apply. But in her “Parental
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Notification of Indian Status” form filed November 1, 2013, mother reported that she
“may have Indian ancestry,” identifying Blackfoot and Cherokee tribes. At the hearing
that day, the court asked if there were any reason to believe father had any American
Indian heritage, and mother replied that “He’s Creole and then I’m Creole.” The court
asked if father or mother were registered with any American Indian tribes, and mother
said no. The court then asked if the children or “[a]ny close relatives to you – mother,
father, anyone that you know – that’s registered,” and mother replied, “Not registered,
but I know that’s in my family.” The court then stated, “Okay. This is not an ICWA
case.”
We agree with the parties that the juvenile court erred in determining further
inquiry about the children’s Indian status was not required. “ ‘The determination of a
child’s Indian status is up to the tribe; therefore, the juvenile court needs only a
suggestion of Indian ancestry to trigger the notice requirement.’ [Citation.]” (In re
Gabriel G. (2012) 206 Cal. App. 4th 1160, 1165; see Cal. Rules of Court, rule
5.481(a)(5)(A) [“The circumstances that may provide reason to know the child is an
Indian child include the following: . . . [A] person having an interest in the child . . .
informs or otherwise provides information suggesting that the child is an Indian child to
the court . . . .”].)
The information provided by mother was sufficient to trigger the obligation of the
Department to make a reasonable inquiry into her claim, and to serve appropriate ICWA
notices. (See In re Gabriel G., supra, 206 Cal.App.4th at p. 1166 [“A child may qualify
as an Indian child within the meaning of the ICWA even if neither of the child’s parents
is enrolled in the tribe.”].)
We therefore remand for the limited purpose of directing the juvenile court to
order the Department to make and document reasonable inquiry regarding the children’s
possible Indian heritage and, if appropriate, to serve all requisite ICWA notices.4
4 The limited remand we order to ensure ICWA compliance does not require
reversal of the jurisdiction and disposition orders. (In re Veronica G. (2007) 157
Cal. App. 4th 179, 187-188 [upon showing of failure to comply with ICWA, reversal of
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DISPOSITION
The juvenile court’s jurisdiction and disposition orders are affirmed. We remand
for the limited purpose of directing the juvenile court to order the Department to comply
with ICWA.
GRIMES, J.
We concur:
RUBIN, Acting P. J.
FLIER, J.
juvenile court’s orders is only required where parental rights have been terminated;
orders earlier in the proceedings may be set aside in the juvenile court in the event the
minor, upon due compliance with ICWA, is shown to be an Indian child]; accord, Tina L.
v. Superior Court (2008) 163 Cal. App. 4th 262, 267-268; see also In re Damian C. (2009)
178 Cal. App. 4th 192, 199-200 [“Although we conclude the matter must be remanded
with directions to the court to ensure ICWA compliance, we decline to reverse the
jurisdictional and dispositional orders. There is not yet a sufficient showing [the minor]
is an Indian child within the meaning of ICWA.”].)
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