In re Vanessa C. CA1/5 ( 2015 )

Filed 10/9/15 In re Vanessa C. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re VANESSA C., a Person Coming
Under the Juvenile Court Law.
HUMBOLDT COUNTY DEPARTMENT
OF HEALTH AND HUMAN SERVICES,
Plaintiff and Respondent, A143897
v.
(Humboldt County
SCOTT C., Super. Ct. No. JV140133)
Defendant and Appellant.
The juvenile court took jurisdiction over Vanessa C. under Welfare and
Institutions Code section 300, subdivisions (a), (b), (c), and (d),1 and removed her from
the custody of her presumed father, Scott C. (Father). At the conclusion of a contested
disposition hearing, the juvenile court placed Vanessa with her mother (Mother),
pursuant to section 361.2.2 Father appeals from the disposition order, contesting the
1 Undesignated statutory references are to the Welfare and Institutions Code.
Section 361.2, subdivision (a), provides, in relevant part: “When a court orders
2
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.”
1
court’s failure to order reunification services. He also asserts the court failed to ensure
proper inquiry and notice under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901
et seq.). We reject both arguments and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Section 300 Petition
On August 18, 2014, the Humboldt County Department of Health and Human
Services (the Department) filed a juvenile dependency petition on behalf of Vanessa, who
was 12 years old and had been living with Father. The petition alleged Vanessa came
within subdivisions (a), (b), and (c) of section 300. Specifically, on August 12, Father
allegedly threw a two-shelf, wooden bookcase across the room, striking Vanessa on her
left foot, causing swelling, bruising, and a laceration approximately an inch long.
Vanessa also reported that, on a number of occasions, Father grabbed her by the arms and
torso, forced her into a wall or piece of furniture, and pinned her in place with his body
weight. He also previously struck Vanessa in the face with a hard-cover book, causing a
bloody nose.
Father also allegedly failed to seek medical attention for Vanessa’s injured foot.3
Vanessa was suffering anxiety and depression, as evidenced by her behavior during
interviews with a therapist and social worker. Vanessa also told a social worker that
when Father physically restrained her by pushing her up against a wall and holding her
there, he would mimic punching her in the face with a closed fist. It was further alleged
that Father often called Vanessa names and belittled her and made disparaging comments
about Mother. The police were asked to respond after Father stormed into the therapist’s
office, acting on suspicion Vanessa was disclosing abuse, and screamed and cursed at
Vanessa.
Detention Report
The detention report indicated that neither parent reported Indian heritage. The
Department informed the court of 21 prior child welfare referrals regarding Father.
3 It was eventually determined that Vanessa’s ankle had been sprained.
2
When interviewed by the social worker, Father denied the allegations. Father reported
Vanessa dropped the bookcase while he was in another part of the house. Father believed
Vanessa and Mother were manipulating the system.
Detention Hearing
At the detention hearing, Father informed the court that his father was one eighth
Shawnee. He acknowledged that neither he nor Vanessa were enrolled in any federally
recognized tribe. The court found ICWA did not apply “at this time.” Vanessa was
detained and placed with Mother. Visitation with Father was denied as detrimental.
After the detention hearing, Father filed a parental notification of Indian status form,
indicating that he might have Indian ancestry via a Shawnee tribe.
Amended Petition
An amended petition, filed on October 10, 2014, repeated the section 300,
subdivision (a), (b), and (c) allegations and added a subdivision (d) allegation. According
to Mother, Father admitted that he sexually molested his daughter, Lisa M., when she was
7 years old. Another daughter, Laura H., also reported Father sexually abused her and
her sister (Rebecca H.) for many years, starting when Laura was 13 years old. The
amended petition asserted that Vanessa had been sexually abused by Father or was at
substantial risk of being sexually abused, as indicated by Father’s history of sexually
abusing minors in his care and Vanessa’s spontaneous exclamation at an emergency
room, “You’re raping me, just like my dad!”
Jurisdiction Report
The Department’s jurisdiction report concluded ICWA did not apply and Vanessa
had been physically and emotionally abused by Father. The Department requested the
court sustain the petition. An addendum to the jurisdiction report provided that Lisa M.
had reported sexual abuse by Father, and noted referrals alleging Father was involved in a
sexual relationship with a 16-year-old, Cassie F, who was once placed in his home.
Jurisdiction Hearing
At the jurisdiction hearing, Susan H. testified she lived with Father for about
20 years, beginning in 1980, with her two daughters (Laura and Rebecca). Susan
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witnessed physical abuse by Father, mainly against herself and “[o]nce in a while”
against her daughters. She was also aware of Father’s sexual abuse of Rebecca and
Laura. Susan said Father was very controlling and if someone disagreed with him, they
would be “payin’ for it,” physically. Susan acknowledged that after she had been
forcibly thrown out of Father’s house, she used methamphetamine, but said she had not
used drugs for about a year.
Vanessa, who was almost 13, testified in front of her parents that Father pushed
the bookshelf onto her. He did so because he thought she had thrown something at him.
She had actually tossed something into a basket near him. Vanessa also said Father
grabbed her arms or upper body when he was mad. After the bookshelf incident, Father
grabbed her arm and pulled her or dragged her, shoved her nose into the wall, and
grabbed her again as she tried to get away, and had sat her into a chair. He “raged” about
10 times during the last year.4 Vanessa said when Father got mad, he would scream at
her, swearing and calling her names. Twice, Father hit her with his leather belt, leaving
red marks. In the past year, he also hit her in the face with a book and gave her a bloody
nose.
Laura testified that she lived with Father from the first grade until she turned 18.
Father used to hit her, using both his hands and objects. Father also sexually abused her,
starting when she was about 12 and continuing daily until she moved out. Laura also
observed Father sexually abusing her sister, Rebecca, starting when Rebecca was 10 or
11. Although Laura’s allegations were eventually reported to police, there had been no
prosecution.
Jamie H. testified that she lived in Father’s house from December 22, 2013, until
April 23, 2014. Jamie paid $400 per month to live in a bedroom right across from
Vanessa’s room. On February 19, Jamie saw Father punch Vanessa in the face with a
book and bloody her nose. Jamie also saw Father hit Vanessa in the back of her head
“Rage” to Vanessa meant “[b]eing out of control,” “just all over the place,”
4
“[m]aking chaos,” “throwing stuff,” and “being angry.”
4
with a closed fist. Vanessa came to Jamie’s room afterwards, with blood all over her, and
asked if her nose was broken. In April, after Father refused to let Jamie help Vanessa
with her homework, she heard screaming and Father hitting Vanessa. Jamie heard Father
call Vanessa worthless, fat, stupid, and lazy almost every day. Three days after the
Department removed Vanessa, Jamie was locked out of the home. Jamie acknowledged
being upset with Father for locking her out and keeping some of her belongings.5
Father testified that he was a student at Humboldt State University, studying for a
masters degree in social work. Father said he asked Vanessa to clean her room and the
bookcase fell on her. Father was upstairs when it happened, but went into Vanessa’s
room and removed the bookcase from her foot. He felt for broken bones, manipulated
her foot, and offered her Neosporin and ice packs. Father also denied yelling and cursing
at Vanessa, or anyone else, at the therapist’s office. He made the appointment to address
Vanessa’s depression.
Father acknowledged he lived with Susan H. from about 1981 until about 1990.
At the time, Susan was suffering from a traumatic brain injury, a broken neck, and
substance abuse problems. Father had been her caretaker and her representative
supplemental social security income payee. Father denied having had any sexual
relationship with either Laura or Rebecca. Father further denied having physically
abused Laura, yelling inappropriate things at Vanessa, physically striking Vanessa, or
hitting Vanessa in the face with a book. Laura had falsely claimed he molested her
because she wanted the supplemental social security income and foster care money he
received and because Susan had turned against him. Father believed Cassie F. was 19
when he first had sex with her.
Father’s daughter Lisa testified she lived down the street from Father. Vanessa
visited the evening of the injury to her foot and explained she dropped a bookshelf.
5 According to Father, Jamie never lived in his house, but he allowed her to keep
some things at his home for a few months. He eventually asked Jamie to remove her
belongings and she then filed a complaint against him with the Department of Fair
Housing and Employment.
5
Vanessa showed Lisa a little red mark that did not appear to require medical attention,
laughed it off because she was prone to accidents, and did not say she was afraid to return
home. Father called Lisa from the therapist’s office the day of that incident and, when
she arrived, Father appeared calm. Lisa said Father never sexually abused her. Vanessa
had become more defiant in the last year. She was verbally abusive to other students at
school, to Father, and to other family members. Father’s disciplinary techniques were not
working, but Lisa never saw him physically discipline Vanessa. Lisa thought Vanessa
just wanted to live with Mother.
Don M. testified he and Father had been friends for over 20 years. Don lived in
Father’s home for about four years, until June 2014. He left because “it was getting a
little stressful.” He “started to . . . get the uneasy feeling that something was about to
happen and [he did not] want to be in the middle of it.” Don was also afraid that he
might be falsely accused of something. He heard Father raise his voice to Vanessa if she
was not doing her chores or her homework. Father also gave her time outs. If Vanessa
kept misbehaving, Father would reluctantly give her a spanking, but Don had not seen
anything like that in the last two years. He said Vanessa had a reputation for being
dishonest. Don thought Vanessa was trying to find a way to go live with Mother.
Jurisdiction Findings
The court sustained the amended petition, finding by clear and convincing
evidence that Vanessa was described by section 300, subdivisions (a), (b), (c), and (d).
The court said the differing versions of events could not be reconciled, that credibility
was of utmost importance in the case, and—considering the witnesses’ credibility—it
was sustaining the petition “in all regards.” The court set a disposition hearing.
Disposition Report
The Department’s initial disposition report, received by the court on January 13,
2015, indicated Vanessa remained living with her mother and that no new information
regarding Native American ancestry had been reported. Mother reported Vanessa was
angry and frustrated and, as a result, Mother secured counseling to help support her.
6
Vanessa was said to miss Father at times, but said she did not want to see or be
alone with him. Vanessa also missed her old friends and familiar things from when she
lived with Father. She was cutting classes, disrupting the classroom, and sometimes
refusing to do her homework. Neither Vanessa nor Mother felt that counseling was
helping.
The Department said Father blamed Vanessa or others for his current
circumstances rather than acknowledging any accountability. Father never inquired
about visiting with Vanessa or about her well-being. He failed to acknowledge her recent
birthday. The Department recommended no reunification services be provided to Father,
as they were not in Vanessa’s best interest. It recommended that Vanessa be placed with
Mother and Mother be provided with family maintenance services.
An addendum report, received by the court on February 20, 2015, noted Vanessa
was having secret contact with Father. Vanessa recanted the allegations against Father
and said she wanted to live with him because he was less strict. She had been suspended
from school for smoking marijuana. The Department further reported that, on
February 11, Vanessa ran away and told police Mother had been drinking and abused her.
The claims were found to be untrue. Again, on February 15, Vanessa attempted to leave
Mother’s care. Mother, with the help of police, got Vanessa back home. Later that
evening, Vanessa informed Mother that she had taken “55 ibuprofen” and said, “if I can’t
li[v]e with my father, I don’t want to live at all.” Mother took Vanessa to the emergency
room, where she was held pursuant to section 5150. In light of these developments, the
Department recommended that Vanessa be permitted four hours per week of supervised
visitation with Father “to help Vanessa have a safer and healthier way of contacting
[Father].”
Contested Disposition Hearing
After a number of continuances, the disposition hearing began on March 10, 2015.
Vanessa testified outside the presence of her parents that she wanted to return to Father’s
care because she did not think she was safe with Mother. Mother’s husband smoked
marijuana and drank. Vanessa said she was a “little bit” afraid of Mother’s husband
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because he had been to prison, yelled a lot, called her fat, and made negative comments
about women. On one occasion, Mother’s husband yelled at Mother, calling her a
“F-ing B.” Vanessa also said Mother hit her in the face with an open hand. It was the
first time Mother hit her. Vanessa said she was bothered by Mother going through her
room and belongings and called Father thereafter. Vanessa said Mother set up counseling
for her with a new therapist, but she did not like going.
Vanessa stated the bookcase incident had not happened. She only said it had
because Jamie suggested it and Vanessa wanted to live with Mother at the time. When
she ran away from Mother’s house, she went to Don M.’s house and called Father.
Father knew that he was not supposed to be talking to her but did so anyway. Father
never touched her in a sexual manner.
Social worker Seth Duvernay believed Vanessa had been intimidated to change
her story and that she wanted to go where the rules were less strict. Duvernay never saw
any indication of Mother drinking alcohol or of any violence in her home. Duvernay had
concerns about Vanessa returning to Father because of the previous pattern of violence.
Duvernay acknowledged Vanessa could have made up the original allegations against
Father, but he did not think it was likely.
Duvernay spoke with Mother on the day Vanessa said she was drinking and there
was no indication Mother had, in fact, been drinking. Mother worked at an alcohol and
drug treatment program and had been sober for quite some time. Duvernay understood
that Mother had only gone through Vanessa’s room and belongings after Vanessa was
suspended for smoking marijuana. Vanessa said she made things up about Mother
because she thought she could go live with Father. Duvernay looked at the ibuprofen
incident as more of a gesture and evidence of Vanessa’s emotional dysregulation than an
actual suicide attempt. It was unclear whether Vanessa actually took 55 ibuprofen pills,
and her stomach was not pumped. Mother absolutely showed appropriate concern for
Vanessa and good insight into her emotional instability. There was no indication that
Vanessa’s emotional dysregulation was caused by anything in Mother’s home.
8
Duvernay believed a no-contact order between Father and Vanessa would send
Vanessa into a “tail spin.” In his opinion, some of the problems could be alleviated by
providing supervised visitation between the two; however unsupervised contact would be
detrimental at that time.
Rebecca H. testified that Vanessa called her after running away. Vanessa was
crying about how unhappy she was and wanted Father. Rebecca told Vanessa that she
needed to call the police and tell them what going on at Mother’s home. Vanessa said
Mother and her husband were constantly yelling at her and threatening to kick her out.
One day, Vanessa came home and found her things packed.6
Argument and Disposition Order
The court found a substantial risk to Vanessa in Father’s care, but concluded the
evidence showed “absolutely no . . . risk or detriment” to Vanessa from placement with
Mother. The court noted substantial corroborative evidence to support the jurisdictional
findings, which had been made by clear and convincing evidence. In contrast, no
evidence corroborated Vanessa’s current claims about Mother’s home. The court further
concluded that, although Vanessa could not be safely returned to Father’s home, Father
“should have contact with [Vanessa].” The court said that while visitation needed to be
supervised at the outset, “[a]t a point that supervisor, therapist believes appropriate, it
could well go to unsupervised,” and then, hopefully, go to a “normalized father-child-
mother relationship” and “coparenting.”
Father’s counsel pointed out that section 361.2 permitted the court, in its discretion
to provide services to Father while Mother received family maintenance services. The
court responded: “I’ll do that.” Specifically, the court said, “[Father will] be offered—
he’s going to need to participate in individual counseling and therapeutic counseling with
Vanessa.” When Father’s counsel requested a case plan be developed, the court
suggested “doing that with the social worker, making recommendations . . . and that it
6
Duvernay testified, in rebuttal, that he spoke with Vanessa after she ran away
and Vanessa said nothing about Mother threatening to kick her out.
9
would be fairly straightforward: [Father] participating in individual counseling. Then at
a point when Vanessa is ready through her counselor, participating in counseling, taking
a parenting class would be just somewhat usual things.”
County counsel interjected that the Department was not recommending services
for Father. The court responded, “But they can be provided.” The court explained that
the social worker had been “absolutely correct” that “driv[ing] a wedge” between Father
and Vanessa would not help her because she needed to “be able to choose the future” of
her relationships with each parent for herself. The court made clear it did not think it was
“in Vanessa’s best interest to simply cut [Father] out of the picture.” County counsel
again interjected that the Department only recommended supervised visitation. The court
responded: “Well, we can offer things and—just for example, supervised visitation,
meaning by whom, where, what terms, conditions.”
When the court reviewed the findings and orders on a preprinted form listing the
Department’s recommendations, Father’s counsel again requested reunification services.
The court stated there was a third sort of service which was not family maintenance or
family reunification, which Mother’s counsel characterized as “[n]ormalization services.”
When county counsel said such services were not “legal,” the court responded that there
was “certainly a lawful ability to address the best interests of the child” by “attempt[ing]
to normalize a relationship with a parent.” When the court indicated it was going to
strike the portion of the order providing no reunification services for Father, county
counsel responded that the case would have to be continued for development of a case
plan. The court made clear that, under section 361.2, “relationship normalization” would
be more accurate than family reunification services for Father.
Mother’s counsel suggested the visitation portion of the case plan could be
modified to say that before Father could request unsupervised visitation, the court would
“like to see” certain things, while “still not . . . ordering reunification services.” The
court responded: “That should work.” Father’s counsel said, “that then removes any
obligation of the Department to assist [Father] or provide the referrals.” The court
replied: “[T]hat’s a different question. . . . [S]o if your suggestion is that the Department
10
would have the obligation, meaning to do the legwork and [a] financial obligation to do
these items, I’m not so sure that’s so. . . . So that’s different. It’s [Father]’s ability to take
steps to do things whereby, in essence, the [supervised visitation] order is either modified
or lifted . . . but at this juncture, it would be, as [Mother’s counsel] suggested, I think very
appropriate to include under visitation planned actions that [Father] may take to, in
essence, return to request unsupervised visitation, because we are providing supervised
visitation at the outset.” The court said “what I’m not doing is placing the burden on the
Department [¶] . . . [¶] [b]ecause it’s not family maintenance. It’s not family
reunification.” When Father’s counsel returned to section 361.2, the court said that what
it thought was “most appropriate” was “normalization,” saying it was “adopting” the
term, as the “best we can provide.”
The court’s written dispositional findings and orders, filed on March 19, 2015,
provided that “no reunification services” were to be provided to Father, as reunification
services were not in Vanessa’s best interests. The court ordered Vanessa removed from
Father’s custody, found that return to his custody would create a substantial risk of
detriment, ordered placement with Mother, ordered family maintenance services for
Mother, and provided that visitation between Vanessa and Father could only occur “[a]s
stated in the case plan, as amended 3.13.[15].” The court further found that ICWA did
not apply and no new information had been received regarding Indian ancestry. Father
filed a timely notice of appeal.7
7 Father also filed a premature notice of appeal from the jurisdictional findings and
orders. (§ 395, subd. (a)(1) [“[a] judgment in a proceeding under Section 300 may be
appealed in the same manner as any final judgment, and any subsequent order may be
appealed as an order after judgment”].) “In dependency cases, the dispositional order is
generally the first appealable order. [Citations.] However, jurisdictional findings and
other orders entered before the dispositional hearing are generally reviewable on appeal
from the dispositional order.” (In re M.C. (2011) 199 Cal. App. 4th 784, 801.) Originally
the two notices of appeal were assigned separate appeal numbers. However, we ordered
all proceedings to be conducted in appeal No. A143897.
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II. DISCUSSION
Father contends that the disposition order must be reversed because: (1) the court
abused its discretion by failing to order reunification services for Father; and (2) the court
failed to ensure proper inquiry and notice under ICWA. We reject both arguments.
A. Reunification Services
Father contends that the court abused its discretion by refusing to order
reunification services “or other services” for Father, even though it also found it in
Vanessa’s best interest for him to receive counseling and work towards “normalization”
of the relationship. Father’s argument rests on a misunderstanding of the record and the
juvenile court’s authority.
Reunification services are generally required when a child is removed from
parental custody. (§ 361.5, subd. (a).) However, when a juvenile court places a
dependent child with the noncustodial parent pursuant to section 361.2, it has discretion,
but is not required, to order reunification services to the former custodial parent. (See
§ 361.2, subd. (b); In re Gabriel L. (2009) 172 Cal. App. 4th 644, 651; In re Erika W.
(1994) 28 Cal. App. 4th 470, 475–478 (Erika W.).) “If the court places the child with the
noncustodial parent, the court initially has three alternatives. The court may order the
noncustodial parent to assume custody of the child, enter a custody order , and terminate
juvenile court jurisdiction. (§ 361.2, subd. (b)(1).) It may continue juvenile court
jurisdiction and require a home visit within three months, after which the court may make
orders as provided in subdivision (b)(1), (2) or (3). (§ 361.2, subd. (b)(2).) Or the court
may order reunification services to be provided to either or both parents and determine at
a later review hearing under section 366[] which parent, if either, shall have custody of
the child. (§ 361.2, subd. (b)(3).)”8 (In re Adrianna P. (2008) 166 Cal. App. 4th 44, 55,
italics omitted & added.)
8 Section 361.2, subdivision (b), provides: “If the court places the child with [the
noncustodial] parent it may do any of the following: [¶] (1) Order that the parent become
legal and physical custodian of the child. The court may also provide reasonable
visitation by the noncustodial parent. The court shall then terminate its jurisdiction over
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Under subdivision (b) of section 361.2, the juvenile court has discretion to grant or
deny reunification services to the parent from whom custody is removed. (In re Jaden E.
(2014) 229 Cal. App. 4th 1277, 1285; In re Patricia T. (2001) 91 Cal. App. 4th 400, 406;
Erika W., supra, 28 Cal.App.4th at pp. 475, 478.) Accordingly, we review for abuse of
discretion. Under that standard, “ ‘ “ ‘a reviewing court will not disturb [a] decision
unless the trial court has exceeded the limits of legal discretion by making an arbitrary,
capricious, or patently absurd determination. . . .’ ” . . . “The appropriate test for abuse of
discretion is whether the trial court exceeded the bounds of reason. When two or more
inferences can reasonably be deduced from the facts, the reviewing court has no authority
to substitute its decision for that of the trial court.” ’ ” (In re Jasmine D. (2000)
78 Cal. App. 4th 1339, 1351.) However, “[a] discretionary order that is based on the
application of improper criteria or incorrect legal assumptions is not an exercise of
informed discretion, and is subject to reversal even though there may be substantial
evidence to support that order.” (Mark T. v. Jamie Z. (2011) 194 Cal. App. 4th 1115,
1124–1125; accord, In re Shannon M. (2013) 221 Cal. App. 4th 282, 289.)
the child. The custody order shall continue unless modified by a subsequent order of the
superior court. The order of the juvenile court shall be filed in any domestic relation
proceeding between the parents. [¶] (2) Order that the parent assume custody subject to
the jurisdiction of the juvenile court and require that a home visit be conducted within
three months. In determining whether to take the action described in this paragraph, the
court shall consider any concerns that have been raised by the child’s current caregiver
regarding the parent. After the social worker conducts the home visit and files his or her
report with the court, the court may then take the action described in paragraph (1), (3),
or this paragraph. However, nothing in this paragraph shall be interpreted to imply that
the court is required to take the action described in this paragraph as a prerequisite to the
court taking the action described in either paragraph (1) or (3). [¶] (3) Order that the
parent assume custody subject to the supervision of the juvenile court. In that case the
court may order that reunification services be provided to the parent or guardian from
whom the child is being removed, or the court may order that services be provided solely
to the parent who is assuming physical custody in order to allow that parent to retain later
custody without court supervision, or that services be provided to both parents, in which
case the court shall determine, at review hearings held pursuant to Section 366, which
parent, if either, shall have custody of the child.” (Italics added.)
13
Father attempts to show the court relied on incorrect legal assumptions. In our
view, it is clear that the court understood its discretion. But Father suggests the record is
ambiguous, pointing to the court’s statement that, with the assistance of therapy,
hopefully Father could eventually achieve a “normalized father-child-mother
relationship” and “coparenting.” Father maintains this is conclusive evidence the court
believed Father and Vanessa could potentially reunify. We disagree.
“If the previously noncustodial parent can provide a safe and stable permanent
home for the child and the evidence establishes that the other parent cannot, reunification
services may be offered only to the previously noncustodial parent since this serves the
Legislature’s goals by placing the child in parental custody and providing for a safe and
stable permanent home for the child. . . . [¶] If, on the other hand, the previously
noncustodial parent who is now assuming custody does not appear to be an appropriate
permanent placement for the child, and the previously custodial parent has the potential
to provide a safe stable permanent home for the child, reunification services can be
offered to the previously custodial parent in the hope that this parent will remedy his or
her deficiencies and reunify with the child. . . . [¶] . . . [¶] . . . ‘[T]he purpose of
reunification services is to facilitate the return of a dependent child to parental custody.’
[Citations.] . . . When a child is placed in nonparental custody, reunification services are
necessary to promote a possible return of the child to parental custody. However, when a
child is placed in parental custody, this goal has already been met and therefore
reunification services are not necessary.” (Erika W., supra, 28 Cal.App.4th at pp. 476–
478, italics omitted & added.)
As Father recognizes, in using the “coparenting” term, the court could have meant
joint legal custody, rather than joint physical custody. (See In re Nicholas H. (2003)
112 Cal. App. 4th 251, 258 [affirmed trial court’s dismissal of dependency case after
ordering joint legal custody to both parents and sole physical custody to the father, with
reasonable visitation for the mother].) Or the court could merely have been speaking to
future orders Father might seek in family court. Section 361.2 specifically contemplates
the possibility that dependency jurisdiction will be terminated within a short period after
14
placement with a noncustodial parent. (See § 361.2, subd. (b).) However, “[t]he parent
who has lost physical custody of the minor under section 361.2 is not left without
recourse. If the dependency court decides to terminate its jurisdiction, the noncustodial
parent’s interests in custody and visitation can be heard in the family law court.” (In re
A.B. (2014) 230 Cal. App. 4th 1420, 1439.) The court made it sufficiently clear
reunification services would not be ordered for Father because Vanessa could not be
safely returned to his home.
The court did not abuse its discretion. Section 361.2 “ ‘expressly contemplates
that reunification services will be offered only for the purpose of facilitating permanent
parental custody of the child by one or the other parent.’ ” (Erika W., supra,
28 Cal.App.4th at p. 476.) The court did not believe Vanessa’s recantation of her very
serious allegations against Father. And Father remained in complete denial about his
responsibility for the abuse. On the other hand, Mother showed good insight into
Vanessa’s challenges and little corroborated Vanessa’s allegations against her, which the
court did not believe. Accordingly, it was reasonable for the court to conclude Mother
could provide a safe and stable permanent home for Vanessa while Father could not.
Alternatively, Father challenges the “normalization services” the court indicated
would be more appropriate for Father. Father asserts such services are not “legal,”
relying on section 361.2, subdivision (b)(3), and the statement of county counsel before
the court. Contrary to Father’s and county counsel’s suggestion, there is statutory and
judicial support for “normalization services.” The juvenile court may “order services for
the purposes of improving the contact between the original custodial parent and the child
rather than reunifying them.” (In re Sarah M. (1991) 233 Cal. App. 3d 1486, 1489
(Sarah M.), overruled on other grounds in In re Chantal S. (1996) 13 Cal. 4th 196, 204.)
And the juvenile court can condition visitation on a parent’s participation in counseling.
(Chantal S., at p. 200, 204 [relying on language now found in § 362, subd. (d)].)9
9Section 362, subdivision (d), provides: “The juvenile court may direct any
reasonable orders to the parents . . . of the child who is the subject of any proceedings
15
The Sarah M. court determined the juvenile court did not abuse its discretion in
implementing a plan designed not for reunification, but only to normalize visitation.
(Sarah M., supra, 233 Cal.App.3d at p. 1501.) The court explained: “[There is] middle
ground between reunification services and no services at all. [T]he juvenile court’s broad
discretion under section 361.2, subdivision (a) arguably gives it the opportunity to
attempt to help the parents in creative ways. If the court may terminate outright its
jurisdiction and award custody to the former noncustodial parent or go so far as to order
services for both parents and reserve the custody question for a later date, we believe the
court may also make orders which implicitly acknowledge it will not reunify the child
with the original custodial parent and at the same time attempt to help that parent in
maintaining or strengthening the contact with the child.” (Id. at p. 1502.)
This is precisely what the court did here. Father has shown no abuse of discretion.
B. ICWA
Father also contends that the disposition order must be reversed because the court
failed to conduct an adequate inquiry into ICWA compliance. In particular, Father
correctly observes that he indicated Vanessa might have Indian ancestry via a Shawnee
tribe, yet nothing in the record indicates any notice or inquiry has been sent to any tribe.
In fact, the court found ICWA does not apply and the Department repeatedly informed
the court that neither parent reported any Indian ancestry. “In passing [ICWA], Congress
identified two important, and sometimes independent, policies. The first, to protect the
interests of the Indian child. The second, to promote the stability and security of Indian
tribes and families. [Citations.] [ICWA] sets forth minimum federal standards, both
substantive and procedural, for protecting these identified policies.” (In re Kahlen W.
(1991) 233 Cal. App. 3d 1414, 1421.) We address the issue despite Father’s failure to
raise the issue below. Father cannot forfeit the ICWA notice requirements intended to
under this chapter . . . . That order may include a direction to participate in a counseling
or education program . . . . The program in which a parent . . . is required to participate
shall be designed to eliminate those conditions that led to the court’s finding that the
minor is a person described by Section 300.”
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protect the interests of Indian tribes. (In re Marinna J. (2001) 90 Cal. App. 4th 731, 733;
In re Desiree F. (2000) 83 Cal. App. 4th 460, 471.)
We agree with the Department that ICWA’s notice requirements do not apply
because, on the Department’s recommendation, Vanessa was placed with Mother. ICWA
provides: “[W]here the court knows or has reason to know that an Indian child is
involved, the party seeking the foster care placement of, or termination of parental rights
to, an Indian child shall notify . . . the Indian child’s tribe, by registered mail with return
receipt requested, of the pending proceedings and of their right of intervention. If the
identity or location of . . . the tribe cannot be determined, such notice shall be given to the
Secretary [of the Interior] in like manner, who shall have fifteen days after receipt to
provide the requisite notice to the parent or Indian custodian and the tribe. No foster care
placement or termination of parental rights proceeding shall be held until at least ten days
after receipt of notice by . . . the tribe or the Secretary . . . .” (25 U.S.C. § 1912(a), italics
added.)10
“By its own terms, [ICWA] requires notice only when child welfare authorities
seek permanent foster care or termination of parental rights; it does not require notice
anytime a child of possible or actual Native American descent is involved in a
dependency proceeding.” (In re Alexis H. (2005) 132 Cal. App. 4th 11, 14 (Alexis H.),
first italics added; accord, In re J.B. (2009) 178 Cal. App. 4th 751, 758–759 (J.B.) [relying
10 Likewise, section 224.3, subdivision (a), provides: “The court, county welfare
department, and the probation department have an affirmative and continuing duty to
inquire whether a child for whom a petition under Section 300, 601, or 602 is to be, or
has been, filed is or may be an Indian child in all dependency proceedings and in any
juvenile wardship proceedings if the child is at risk of entering foster care or is in foster
care.” (Italics added.) Similarly, California Rules of Court, rule 5.480 provides that
ICWA rules “appl[y] to most proceedings involving Indian children that may result in an
involuntary foster care placement; guardianship or conservatorship placement; custody
placement under Family Code section 3041; declaration freeing a child from the custody
and control of one or both parents; termination of parental rights; or adoptive placement,
including: [¶] (1) Proceedings under Welfare and Institutions Code section 300 et
seq. . . . .” (Italics added.)
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on Alexis H. reasoning to hold “ICWA does not apply to a proceeding to place an Indian
child with a parent”].)
The Alexis H. court rejected the father’s argument that a jurisdictional order
should be reversed because ICWA notices had been deficient. (Alexis H., supra,
132 Cal.App.4th at p. 14.) The juvenile court had declared the minors dependents, but
the social services agency recommended they continue to live with their mother, while
she received family maintenance services and the incarcerated father received
reunification services. (Id. at pp. 13–14.) The reviewing court explained: “When
authorities remove a child of Native American descent from his home, the act promotes
foster care or adoption by a Native American family in the hope of preserving tribal
culture. If, however, authorities do not move the child to another family, the purpose
does not come into play. . . . [¶] . . . Because the [agency] sought neither foster care nor
adoption, the act seemingly does not apply.” (Id. at p. 15, italics added.) It then
observed: “Even if, however, [ICWA] applied to proceedings contemplating nothing
more disruptive to an Indian child’s home than family reunification services, the
defective notices here were harmless error. [Citations.] The [agency] did not pursue
foster care or adoption, instead recommending from the beginning that the children
remain with their mother. . . . We are confident, however, that if the [agency] ever
contemplates any additional action which might lead to foster care or adoption, it will
ensure that the notices sent to the tribes contain complete and accurate information,
including the names and birthplaces for the children and the names and accurate
birthdates for mother and appellant.” (Id. at p. 16.)
The Fourth District Court of Appeal held that ICWA notice requirements apply
notwithstanding placement with the noncustodial parent. (In re Jennifer A. (2002)
103 Cal. App. 4th 692, 699–702 (Jennifer A.).) However, the child in Jennifer A. was
initially removed from the mother, temporarily placed in emergency shelter care and then
in foster home care, before being ordered placed with the father. At the disposition
hearing, the child welfare agency recommended that the child remain in foster care. (Id.
at pp. 697–698.) The court explained: “[T]he issue of possible foster care placement was
18
squarely before the juvenile court. In advance of the dispositional hearing, [the agency]
filed a report recommending . . . foster home care. [The agency] asks us to fixate on the
result of the proceedings, i.e., the order that Jennifer be placed in the custody of her
father, rather than on the possibility that the court could have ordered continued foster
home care. . . . [¶] . . . [¶] . . . Jennifer was temporarily placed in a foster home and [the
agency] was seeking to have the temporary placement continue. Jennifer had been
removed from her custodial parent, her mother, who could not have Jennifer returned
upon demand. The notice provisions of 25 United States Code section 1912(a) apply in
involuntary proceedings of this nature.” (Id. at pp. 700–701.)
Alexis H., Jennifer A., and J.B. teach that ICWA applies when the child welfare
agency seeks foster care placement or adoption for an Indian child. Unlike in Jennifer A.,
the Department has never recommended foster care placement for Vanessa and there is
no indication it will do so absent some change in circumstances. Vanessa has been
cutting classes, refusing to complete homework, running away, making suicide threats,
and not cooperating with her therapist. This indicates that Vanessa is deeply troubled,
which is understandable given the allegations sustained, by clear and convincing
evidence, against Father. Such behavior does not show, as Father suggests, that Vanessa
is at risk of being removed from her placement with Mother. This case more closely
resembles Alexis H. Father has not shown any violation of ICWA.
III. DISPOSITION
The disposition order is affirmed.
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_________________________
BRUINIERS, J.
WE CONCUR:
_________________________
JONES, P. J.
_________________________
NEEDHAM, J.
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