In re J.S. CA2/8 ( 2014 )

Filed 9/5/14 In re J.S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 J.S. et al., Persons Coming Under the B253147
Juvenile Court Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. CK89887)
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
J.W.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County. Emma
Castro, Juvenile Court Referee. Affirmed in part and remanded with directions.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Jacklyn K. Louie, Principal Deputy County Counsel, for Plaintiff and Respondent.
******
J.W. (mother) appeals from the juvenile court’s jurisdiction and disposition orders
adjudicating her two minor children, J.S. and N.R., dependents of the court. Mother
contends there is insufficient evidence to support the jurisdiction and disposition orders
and the court failed to comply with the Indian Child Welfare Act (ICWA) (25 U.S.C.
§ 1901 et seq.). The Los Angeles County Department of Children and Family Services
agrees the record does not establish compliance with ICWA, but argues the court’s
jurisdiction and disposition orders should be affirmed. We remand for the limited
purpose of directing compliance with ICWA. We otherwise conclude the jurisdiction and
disposition orders are supported by substantial evidence, and therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Seven-year-old J.S. and his sister, three-year-old N.R., came to the attention of the
Department through a referral on May 29, 2013. A caller reported finding mother and the
two children walking in the street at approximately 10:00 at night. The caller stated she
was concerned for the family’s safety and offered them a ride home. The caller drove the
family to their house, and while in the car, N.R. asked the caller if they could come live
with her because they had no light at home. The following day, the caller returned to the
home with some food. The caller reported it appeared the utilities were back on, but
there was no food in the house. The caller believed mother had some mental health
issues or was under the influence of something as her speech was “incoherent and
irrational.”
In response to the referral, the Department social worker attempted to contact
mother to no avail. During one visit to mother’s home, the social worker spoke to a
neighbor who expressed concern for the children, because mother appears to be “crazy,”
has “burned . . . bridges” with many neighbors, asks neighbors for food, and frequently
has no utilities.
On June 6, 2013, the social worker was finally able to speak with mother. Mother
allowed the social worker to come into the family home. There was minimal food,
consisting only of some ramen noodles, a gallon of milk, water and cereal. The utilities
2
were functional. It appeared that N.R. slept on a mattress pad and J.S. slept on couch
pillows on the floor.
Mother admitted that her utilities are sometimes turned off and that she often runs
out of food before the end of the month. Mother said she received $1,400 a month in
assistance, her rent is approximately $331 per month and utilities cost a couple of
hundred dollars per month. Mother reported she had “an online job coming pretty soon”
and that she had a dream that told her to invest $500 in stocks online, but the money was
lost. She recently applied for and received food stamps, and sometimes calls the maternal
grandfather or maternal great-grandmother, who both live out of state, asking for money
for food.
Mother denied any substance abuse or criminal history. Mother said her stepfather
“diagnosed” her as bipolar or suffering from schizoaffective disorder, but she disagreed
and does not take any medications for any mental health problems. Mother said she loves
her children and “home schools” them, but could not provide any paperwork supporting
that the children were home schooled.
With mother’s consent, the social worker interviewed the children individually
and privately. J.S. was smiling and played with a ball while he talked to the social
worker. He appeared developmentally on target based on his motor skills and responses
to questions. J.S. said that up until a month ago, he was not eating much until his mother
got food stamps. J.S. reported that mother “whooped” him with a belt as discipline,
hitting his back or his butt. He denied having any marks or bruises. J.S. said his mother
is nice but she can also be “really mean” and says things to him like “you are a little
asshole.”
N.R. appeared to be happy and well-bonded to mother. She said she likes to watch
cartoons and play with her mother. N.R. said she gets “whooped” as a form of discipline.
The social worker contacted Ms. Lee at the County of Los Angeles Department of
Public Social Services, who reported that mother has a $116 per month benefit for food
stamps, but received a two-month upfront allotment of $217. Ms. Lee understood mother
3
apparently spent it all and there was nothing further Ms. Lee could do at that time.
Ms. Lee reported the local food banks are overstretched and often without food.
The social worker reported mother had a prior referral to the Department on
April 22, 2012. An anonymous female caller telephoned 911 to report she had found J.S.
(who was six at the time) in MacArthur Park, alone, with a small red suitcase at about
4:00 p.m. J.S. had been alone in the park for several hours and said he only had an
orange to eat for the day. J.S. asked the woman if she would be his new mother, because
his mother did not love him. He explained they were living at a motel. J.S. was taken to
the Rampart Police Station to determine if any missing persons report had been made.
Around 6:00 p.m., mother called in a report and the woman drove J.S. to mother’s
location. When asked how J.S. could have been alone in the park for so long, mother
reported she had fallen asleep with N.R., and J.S. had run off, which he had done before
when he was four years old. Mother expressed irritation that she was being questioned
about J.S.’s behavior and said “why are you punishing me for him running away?” She
then called J.S. a “bastard” and said she would “take care of him later.” The only food in
the family’s room was a carton of milk, some cheese, and a small bottle of vodka. The
referral was ultimately closed as inconclusive.
At a follow-up visit to mother’s home on June 24, 2013, the social worker found
the only food in mother’s home was pancake mix and water. Mother asked the social
worker for food. Mother agreed to attend a team decision-making meeting to discuss her
commitment to following a court-supervised case plan, but then failed to appear. The
social worker requested that a removal order issue.
On July 19, 2013, the social worker made an unannounced visit at the home to
remove the children. Both J.S. and N.R. came with the social worker willingly and did
not display any upset or distress. J.S. asked if he would get to eat every day. He said he
did not always eat while in the care of his mother. The social worker saw a loaf of bread,
a carton of eggs, and two 12-pack cases of soda on the table, despite the heat. Mother
explained the utilities were off again because she needed a deposit to have them turned
back on.
4
The Department filed a petition pursuant to section 300, subdivisions (a), (b) and
(j), alleging physical abuse of J.S. based on mother hitting him across the back and
buttocks with a belt (paragraph a-1), failure to protect (paragraph b-1), failure to provide
for the children, including failing to provide proper meals (paragraph b-2), and abuse of a
sibling (paragraph j-1). The Indian Child inquiry form attached to the petition and signed
by the social worker (not mother) indicates the children have no known Indian heritage,
but no other information is provided in the summary section of the form.
Mother failed to appear at the detention hearing. The court trailed the case, found
that a prima facie case was stated that both children were properly deemed dependent
minors, and made emergency detention findings only. The next day, mother appeared
and the detention hearing proceeded. The court ordered reunification services for mother,
including transportation assistance.
On the Parental Notification of Indian Status form signed by mother and filed
August 19, 2013, mother reported there “may” be Indian ancestry in her family through
the Blackfoot tribe in Mississippi. She provided the name (Patricia S.) and telephone
number of the maternal great-grandmother as a contact for further information. At the
hearing held the same day, the court ordered the Department to investigate mother’s
claim of possible Indian heritage and deferred any ruling on ICWA.
Based on its ongoing investigation, including further conversations with the
children and mother, the Department sought to amend the petition. In the Department’s
addendum report supporting the new allegations, Shiloh Davenport, the dependency
investigator, reported that during an interview of J.S., the child reaffirmed that his mother
hit him with a belt as a form of punishment. He said his mother would also make him do
squats with his hands behind his head and hold the position for a long time. J.S. reported
that mother also hit his younger sister with a belt for punishment, on her butt, her arm or
her leg. When asked, he confirmed that N.R. was punished one time for spilling noodles
while sitting on the couch, and she also would be punished by mother when N.R. hit J.S.
5
During additional interviews, J.S. said they did not always have food to eat every
day, but that sometimes they had pizza when mother asked her father or grandmother to
send them money. J.S. said sometimes they would have to ask neighbors for food.
The dependency investigator interviewed N.R. who said mother hit her. When
asked to explain how, N.R. balled her hands into fists and reached around to try to hit her
own back, saying “Her hit my back like this.” N.R. also pointed to a large bruise on her
thigh, and said she was punished for spilling noodles on the couch. Due to her age, it was
somewhat difficult for the investigator to get the whole story from N.R., but she
eventually said “Her hit me with a toy.” The bruise was photographed and was also
documented during N.R.’s HUB medical examination.
Investigator Davenport also interviewed mother and she conceded she punished
the children by hitting them with her hand or a belt, but would normally try time outs
first, or taking away a toy, or activity before resorting to hitting them. Mother was
disorganized in her responses and difficult to follow and did not make clear what types of
conduct by the children warranted being hit with a belt. Mother simply said if they did
not follow the rules, they would get hit. She claimed to have stopped using corporal
punishment over six months before because she did not feel it worked.
During the interview mother spoke very rapidly, changed subjects quickly, would
burst out in laughter at odd times when subjects that were not humorous were being
discussed, and often failed to make eye contact. Investigator Davenport reported that
mother spoke so rapidly and in very long, disjointed sentences that she would often
almost gasp for breath when she finished a sentence. Mother also left a series of long
voicemail messages for Investigator Davenport that were rambling and somewhat
incoherent, shifted topics and continued to reflect a very rapid speech pattern. Some of
the messages were left at unusual times such as 4:30 in the morning.
On August 21, 2013, the court dismissed the original petition and filed the first
amended petition pursuant to the Department’s request. The first amended petition
maintained the original allegation of physical abuse of J.S., but added N.R. as having
suffered physical abuse as well (paragraph a-1); maintained the original failure to protect
6
allegation but added N.R. (paragraph b-1); maintained the failure to provide meals
allegation (paragraph b-2); added a new allegation based on mother’s untreated mental
health and emotional issues resulting in an inability to properly care for and supervise
both children (paragraph b-3); and deleted the abuse of a sibling allegation entirely
(paragraph j-1).
The Indian Child inquiry attachment to the first amended petition states that
neither child has any known Indian ancestry.
The jurisdiction and disposition report stated that on June 6, 2013, mother reported
the family had no known Indian heritage, but did not otherwise address mother’s
assertion of possible Blackfoot ancestry on August 19. It indicated the Department
attempted to locate the father of J.S., Terry S., but was unable to do so. His whereabouts
remained unknown. A declaration of due diligence, documenting the Department’s
efforts, was filed. The identity and whereabouts of N.R.’s father also remained unknown.
Mother reported she did not know who N.R.’s father was because N.R. was allegedly the
product of a rape. The Department was awaiting a response to its inquiries as to whether
mother had any history of referrals for child neglect or abuse in her former home state of
New York.
The report documented the Department’s efforts to speak with the maternal
grandfather and maternal great-grandmother with whom mother remained in contact.
Several messages were left for Ron R., the grandfather, who lived in New York, but the
messages were not returned. Investigator Davenport was able to speak with the great-
grandmother, Patricia S., by telephone. She lived in Georgia and said she tries to send
money for food and talks on the phone with mother sometimes, but they mostly text. She
said she had not seen the children much because mother used to live in New York, and
then recently moved to California. Sometimes when they speak by phone, Patricia S. has
heard mother discipline the children by giving them a time out or something similar.
Patricia S. also reported to the Department that mother previously had the children
removed from her care following the birth of N.R. due to problems related to postpartum
7
depression. She said there is a history of bipolar disorder in their family which she
believed may play a role in mother’s ability to function and handle the children.
There is nothing in the report indicating that anyone discussed possible Indian
heritage with Patricia S., whom mother identified as the person to ask for any such family
ancestry information.
The Department further reported J.S. has never been enrolled in school. Since
being in his foster home placement, J.S. was enrolled in second grade, based on his age.
He does not know how to read, write or spell, but can count up to 20. The Department
reported J.S. is expected to need services to help him become current with his grade level.
N.R.’s foster parents reported they are looking for a Head Start program in which to
enroll her, as she is not yet old enough for school. It was also reported N.R. was showing
some signs of aggression toward smaller children, namely hitting. The foster parents
reported that mother, despite being asked not to call after 8:00 p.m. because it is after
bedtime, routinely called late at night demanding to speak with the children. She
sometimes leaves messages on the voicemail where she says nothing, but plays a
recorded song instead.
The social worker reported that mother leaves messages insisting on visiting with
her children, but then refuses to participate in monitored visitation unless a supervising
social worker is also present. Mother has been told that it is not usually possible to have
both the assigned social worker and a supervisor monitor a visitation period.
During one effort to arrange a visitation period, the social worker reported that
mother’s speech was “random.” She repeatedly said “I know I sound crazy, but I’m
not. . . . I know you aren’t crazy, its [sic] me, I meant I tried to reach my son for a week,
that’s how I know its [sic] me not you.” She said her “boyfriend” would drive her to the
office, then said he was not her boyfriend, just a friend. She then said she would just take
the bus, and she would probably arrive at 6:00 a.m. and wanted to know when the
Department office opened. The social worker told her at 8:00 a.m. and mother said she
would just wait.
8
At the jurisdiction and disposition hearing, mother indicated she had concerns with
her appointed lawyer. The court held a hearing pursuant to People v. Marsden (1970)
2 Cal. 3d 118. Thereafter, the court appointed mother new counsel and continued the
hearing date.
At the continued hearing, the court admitted the Department’s reports. Mother
offered a letter from a therapist which reflected mother had initiated counseling and had
attended two sessions. The letter was admitted into evidence. No witnesses testified.
After argument by the parties, the court took the matter under submission.
On November 20, 2013, the court ruled as follows. The court sustained the
amended petition as to the allegations of physical abuse (paragraph a-1), and as to failure
to protect based on mother’s physical abuse and untreated mental and emotional
problems (paragraphs b-1 and b-3). The court dismissed the failure to provide adequate
meals allegation (paragraph b-2) in the interests of justice. The court explained the
repeated use of a belt as a form of discipline on such young children constituted physical
abuse, and the court did not find credible mother’s claim she no longer used corporal
punishment. The court also found the course of conduct by mother as exhibited during
court proceedings and with the Department case workers supported the finding that
mother was suffering from some level of mental health dysfunction that affected her daily
functioning and ability to care for two small children.
The court further found that clear and convincing evidence supported the removal
of the children from mother due to a substantial risk of physical and emotional damage
based on the ongoing physical abuse and mother’s untreated mental health problems.
The court ordered reunification services to mother, including a Department-
approved parenting class, individual counseling to address case issues, mental health
counseling and a psychological assessment. Mother was granted monitored visitation
twice a week for a minimum of two hours. The children were ordered to receive
individual counseling. The Department was ordered to attempt to find a foster placement
where both siblings could be together. There is nothing in the court’s order noting any
rulings made regarding ICWA.
9
This appeal followed.
DISCUSSION
1. The Jurisdiction Order
Mother contends there is no substantial, credible evidence supporting the court’s
assertion of jurisdiction over the children under either subdivision (a) or subdivision (b)
of section 300. We disagree.
“The standard of proof at the jurisdictional stage of a dependency proceeding is a
preponderance of the evidence, and we will affirm the court’s findings if they are
supported by substantial evidence.” (In re Mariah T. (2008) 159 Cal. App. 4th 428, 438;
accord, In re I.J. (2013) 56 Cal. 4th 766, 773 [“ ‘ “We do not reweigh the evidence or
exercise independent judgment, but merely determine if there are sufficient facts to
support the findings of the trial court.” ’ ”]; and In re Heather A. (1996) 52 Cal. App. 4th
183, 193.)
Section 300, subdivision (a) allows the juvenile court to take jurisdiction when a
“child has suffered, or there is a substantial risk that the child will suffer, serious physical
harm inflicted nonaccidentally upon the child by the child’s parent or guardian. For the
purposes of this subdivision, a court may find there is a substantial risk of serious future
injury based on the manner in which a less serious injury was inflicted, a history of
repeated inflictions of injuries on the child or the child’s siblings, or a combination of
these and other actions by the parent or guardian which indicate the child is at risk of
serious physical harm.” (§ 300, subd. (a).) The statute does not provide an express
definition of what constitutes “ ‘serious physical harm,’ ” but it excludes “reasonable and
age-appropriate spanking to the buttocks where there is no evidence of serious physical
injury.” (Ibid., italics added.)
As the Supreme Court recently explained, “section 300 does not require that a
child actually be abused or neglected before the juvenile court can assume jurisdiction.
The subdivisions at issue here require only a ‘substantial risk’ that the child will be
abused or neglected. The legislatively declared purpose of these provisions ‘is to provide
maximum safety and protection for children who are currently being physically, sexually,
or emotionally abused, being neglected, or being exploited, and to ensure the safety,
10
protection, and physical and emotional well-being of children who are at risk of that
harm.” (In re I.J., supra, 56 Cal.4th at p. 773.)
It is undisputed mother repeatedly used a belt on both children, ages 7 and 3, as a
form of punishment, and did not limit the area struck with the belt to the children’s
buttocks. Rather, mother hit the children on their backs, arms and legs as well. J.S.
reported mother made him stand for long periods of time in a squatted position, with his
hands behind his head. N.R. said mother hit her in the back with her fists and showed
marks of having recently been struck (a large bruise on her thigh) as punishment for
spilling food on the couch. The evidence supports the court’s determination that mother
was not credible in claiming she had not used corporal punishment for six months.
The evidence amply supports the court’s finding that both J.S. and N.R. were at
risk of serious physical harm within the meaning of the statute. The repeated and
intentional use of a belt to strike young children, including a three-year-old, on the back,
arms and legs is not an age-appropriate type of spanking as a form of discipline. (See,
e.g., In re Jasmine G. (2000) 82 Cal. App. 4th 282, 291 [acknowledging that corporal
punishment can be appropriately administered, but “hitting with a belt and a switch
crossed the line over into abuse”].) Combined with the evidence of mother’s behavior
issues and mental instability, the court reasonably found the children were at substantial
risk of both physical and emotional harm.
Because we conclude the court’s assertion of jurisdiction under subdivision (a) of
section 300 was proper, we need not reach mother’s contentions with respect to the
subdivision (b) findings. “ ‘When a dependency petition alleges multiple grounds for its
assertion that a minor comes within the dependency court’s jurisdiction, a reviewing
court can affirm the juvenile court’s finding of jurisdiction over the minor if any one of
the statutory bases for jurisdiction that are enumerated in the petition is supported by
substantial evidence. In such a case, the reviewing court need not consider whether any
or all of the other alleged statutory grounds for jurisdiction are supported by the
evidence.’ [Citation.]” (In re I.J., supra, 56 Cal.4th at p. 773.)
We will briefly address the subdivision (b) findings.
11
The failure to protect allegation based on the physical abuse of both children
(paragraph b-1) was adequately supported for the same reasons discussed above
regarding the paragraph a-1 allegation. As for the paragraph b-3 allegation related to
mother’s untreated mental health issues, the record also supports the court’s
determination that the children faced a substantial risk of harm.
Section 300, subdivision (b) allows the juvenile court to take jurisdiction when a
“child has suffered, or there is a substantial risk that the child will suffer, serious physical
harm or illness, as a result of the . . . inability of the parent or guardian to provide regular
care for the child due to the parent’s or guardian’s mental illness, developmental
disability, or substance abuse.” (Id., subd. (b)(1).) The record shows that in virtually
every interaction mother had with the Department case workers and other third parties,
she evinced a distressing level of mental instability. The children were regularly without
food and basic necessities, were not attending school, have been physically abused by
mother, and J.S. reported incidents of verbal abuse by mother as well. Mother has shown
bizarre lapses of judgment, not the least of which was reflected by the incident in 2012
where mother reacted with irritation at the suggestion that she bore responsibility for her
then six-year-old son being alone in MacArthur Park for hours. The maternal great-
grandmother acknowledged her concerns for mother’s ability to function on a daily basis.
The record supports the court’s finding on the paragraph b-3 allegation.
2. The Removal Order
Mother contends the court’s order removing the children from her custody is also
not supported by substantial evidence. Once again, we disagree.
In examining mother’s claim, “we review the record in the light most favorable to
the dependency court’s order to determine whether it contains sufficient evidence from
which a reasonable trier of fact could make the necessary findings by clear and
convincing evidence.” (In re Mariah T., supra, 159 Cal.App.4th at p. 441; accord, In re
Heather A., supra, 52 Cal.App.4th at p. 193.)
The record discussed above evidences repeated physical abuse of two small
children, serious lapses in judgment, and mother’s daily struggle to care for two children.
Further, mother failed to appear for the team decision-making meeting and was creating
12
obstacles to a regular and meaningful visitation schedule. Given mother’s apparent
mental and emotional instability, her present understanding of the case issues and ability,
as well as willingness, to correct the problems that gave rise to the detention of her
children remains unclear. The record supports the court’s decision to order removal of
both children as recommended by the Department and to order appropriate reunification
services.
3. ICWA Notice
Mother contends, and the Department concedes, the record does not establish
compliance with ICWA. We agree.
The notice requirements of ICWA serve the salient purpose of protecting Indian
children and providing a mechanism for the maintenance of tribal and familial ties for
those Indian children faced with the prospect of placement in the foster care system.
(25 U.S.C. § 1901; see also In re Desiree F. (2000) 83 Cal. App. 4th 460, 469.) The
threshold of information necessary to trigger ICWA notice requirements is low. (In re
Gabriel G. (2012) 206 Cal. App. 4th 1160, 1165 [ICWA triggered where mother denied
heritage, but father claimed possible Cherokee tribal membership through paternal
grandfather, with no biographical data other than grandfather’s name].) We review the
juvenile court’s ruling for substantial evidence. (In re J.T. (2007) 154 Cal. App. 4th 986,
991.)
On the only Parental Notification of Indian Status form signed by mother and
included in the record, mother reported there “may” be Indian ancestry in her family
through the Blackfoot tribe in Mississippi. She provided the name (Patricia S.) and
telephone number of the maternal great-grandmother as a contact for further information.
The Department spoke with Patricia S., but there is no showing that the subject of
potential Indian ancestry was discussed. There is nothing in the record showing any
effort by the Department to investigate mother’s claim of possible Blackfoot heritage.
The court’s orders also do not reflect any findings regarding ICWA, besides the order of
August 19, 2013, acknowledging mother’s report of possible Indian ancestry.
The information provided by mother was sufficient to trigger the obligation of the
Department to make a reasonable inquiry into mother’s claim, and to serve ICWA notices
13
if Patricia S. provides any information. (See In re Gabriel G., supra, 206 Cal.App.4th at
p. 1165; see also In re Desiree F., supra, 83 Cal.App.4th at pp. 469-470 [the statute, as
well as cases interpreting ICWA, “unequivocally require” actual notice to the tribe of
both the proceedings and of the right to intervene].) We therefore remand for the limited
purpose of directing the juvenile court to order the Department to make and document
reasonable inquiry regarding J.S.’s and N.R.’s possible Indian heritage and, if
appropriate, to serve all requisite ICWA notices.1
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:
BIGELOW, P. J.
RUBIN, J.
1 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 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.”].)
14