In re R.P. CA2/6

Filed 2/19/21 In re R.P. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
In re R.P., a Person Coming 2d Juv. No. B307102
Under the Juvenile Court Law. (Super. Ct. No. 20JV00214)
(Santa Barbara County)
SANTA BARBARA COUNTY
CHILD WELFARE SERVICES,
Plaintiff and Respondent,
v.
M.P. et al.,
Defendants and Appellants.
M.P. (Mother) and R.L. (Father) appeal from the juvenile
court’s jurisdiction and dispositional orders. (Welf. & Inst. Code,
§ 395, subd. (a)(1).)1 We affirm.
All statutory references are to the Welfare and
1
Institutions Code.
FACTS
Mother and Father are hearing impaired and communicate
in sign language. They have a daughter, R.P., who was 16 years
old at the time she was removed from her parents’ home.
In May 2020, R.P. found texts on Father’s tablet that
suggested he was having an affair. R.P. showed the texts to
Mother. An argument ensued between the parents with R.P.
present. Mother slapped Father, and R.P. intervened to protect
Mother. Father threw R.P. to the ground, injuring her knee.
R.P. ran to her paternal grandmother’s (Grandmother) house,
who lived next door. R.P. refused to return home. The parents
called the sheriff to help get R.P. to come home.
R.P. told the Child Welfare Services (CWS) social worker
who arrived at Grandmother’s house that Mother blamed her for
the fight and that she felt unsafe with Father at home. As the
social worker was talking with R.P., Father drove by
Grandmother’s house and yelled, “Stay out of my business.”
Father did not know the social worker was present.
Criminal History
Father has had multiple convictions for inflicting corporal
injuries on a spouse dating back to 1998. Mother was convicted
of obstructing a peace officer in 2003.
In August 2018, Mother called R.P. at school to inform her
that she was going to harm herself. R.P. called the sheriffs.
When the sheriffs arrived, Mother was sitting on a recliner
unconscious with an empty pill bottle next to her. Father was
gesturing for the deputies to leave. Father obstructed access to
Mother by medical personnel.
R.P. reported that her parents were having an altercation.
Father jumped on Mother while she was in bed and struck her,
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leaving visible marks. Father was arrested for inflicting corporal
injury on a cohabitant.
Detention Hearing
The trial court held a detention hearing at which it found a
prima facie showing was made that R.P. is a person described in
section 300. The court ordered that R.P. be placed with
Grandmother with supervised visitations with Mother and
Father.
Jurisdictional Hearing
The jurisdictional hearing was continued to the disposition
hearing. The trial court ordered a disposition report.
The parents requested that someone other than
Grandmother supervise Father’s visitation. The trial court so
ordered.
Disposition Hearing
(a) Disposition Report
Mother stated that Father used cocaine and pain
medication, and that she is afraid of him when he is on drugs.
Mother denied having overdosed. The report contained
information on Mother’s mental health problems and her
inability to protect R.P.
Father stated he had a difficult childhood and blamed
Grandmother. He also blamed her for the incident that led to
R.P.’s detention. The report detailed numerous incidents of
Father’s display of anger during CWS’s involvement.
R.P. stated she was fearful of Father and would only feel
safe around Father if a police officer was present. She stated
that Father hits Mother, and she does not know why Mother
continued to take Father back.
3
(b) Contested Hearing
1. Father’s Testimony
Father denied that he threw R.P. to the ground, but
admitted that she had fallen. He said he had not spoken to
Grandmother in 10 years, and blamed R.P.’s estrangement on
Grandmother. Father said he would comply with the case plan
except for the mental health assessment.
2. Mother’s Testimony
Mother said she did not feel comfortable with Grandmother
because Grandmother is not friendly. Mother said that several
times R.P. had come to her house unsupervised when Father is
not there. This concerns Mother because she does not want to get
into trouble. R.P. tells Mother that Grandmother knows she is
there.
Mother was asked if she had a plan for what she would do
if she and Father had a fight. She initially responded no. When
asked again, she said she would plan not to argue. Asked a third
time, she said Father would go to his cousin Tony’s house and she
would stay home. They would talk when things cooled down.
When asked where Father would live if R.P. is returned home,
Mother replied that Father would live with them.
Mother said she would comply with the case plan.
3. Grandmother’s Testimony
Grandmother said her relationship with Father is
tumultuous. Father does not like her, but she does not know
why. Until recently, she had a good relationship with Mother.
Grandmother denied making disparaging remarks about Father
to R.P., and said she could support reunification. She said R.P.
was welcome to stay with her.
4
4. Michael “Tony” W.’s Testimony
Michael W. is Father’s cousin. He supported Father’s
contention that Grandmother was undermining Father with R.P.
He described Grandmother’s relationship with Mother as “[n]ot
very good.” He said that if the family was placed in family
maintenance and a problem arose, he would go immediately to
assist. He admitted, however, that he was aware of the incident
that led to R.P.’s detention, but he did not go immediately to the
house because he had a 3:00 a.m. meeting.
5. Social Worker’s Testimony
Social worker Yuri Gomez testified that R.P. did not feel
safe at home, and did not want to participate in visits with
Father. Mother was not able to keep R.P. safe. R.P. had a
positive relationship with Grandmother, but her parents did not.
Grandmother had been supervising R.P.’s visits with Father, but
R.P.’s visits with Father would be supervised by a CWS case
worker going forward.
Gomez testified that CWS considered returning R.P. to
Mother with Father living elsewhere. Mother suggested that she
might move in with her mother so that the child could live with
them separate from Father. Mother was supposed to talk with
her mother to see if she agreed with that plan, but Mother did
not follow up.
Ruling
The trial court found that reunification should occur, but
not before reunification services are rendered. In the interim,
R.P. should be removed from the parents’ home and remain
placed with Grandmother.
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DISCUSSION
I
Substantial Evidence
Mother and Father contend the trial court’s removal order
is not supported by substantial evidence.
Before removing a child from parental custody, the trial
court must find by clear and convincing evidence (1) there is or
would be a substantial danger to the child’s physical or emotional
health, safety, protection, or well-being if the child is returned to
the parents; and (2) there is no reasonable means of protecting
the child without removing her from her parents’ physical
custody. (§ 361, subd. (c); In re D.D. (2019) 32 Cal.App.5th 985,
996.)
Mother’s and Father’s contention is based on a view of the
evidence most favorable to themselves. But that is not how we
view the evidence. When presented with a challenge to the
sufficiency of the evidence under the clear and convincing
standard, we must determine whether the record, viewed as a
whole, contains substantial evidence from which a reasonable
trier of fact could have made a finding by the high probability
required by the standard of proof. (Conservatorship of O.B.
(2020) 9 Cal.5th 989, 1005.)
(1) Danger to Physical or Emotional Well-Being
Here the evidence shows Father has a history of domestic
violence. R.P. feels the need to protect Mother from Father.
Mother cannot protect R.P. from Father. R.P. fears Father and
does not want to visit with Father unless a police officer is
present. Father has physically injured R.P. There is
overwhelming evidence that R.P.’s physical and emotional well-
being would be endangered if she is returned to her parents.
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(2) No Reasonable Means of Protecting R.P.
Here the evidence shows that Mother refuses to leave
Father. R.P. complains that Mother continues to take Father
back in spite of his physical violence toward her. When it was
suggested that Mother and R.P. move in with the maternal
grandmother without Father, Mother failed to follow up. As long
as Father continues to live in the household, R.P. cannot be
protected. Father argues he will be under court orders and CWS
supervision. But court orders and CWS supervision will not
alleviate R.P.’s well-justified fear of simply being in her Father’s
presence. There is overwhelming evidence that there is no
reasonable means of protecting R.P. without removing her from
her parents’ custody.
Mother points out that R.P. has been visiting her without
incident. But what Mother ignores is that Father is not at home
when the visits occur and the visits last only a few hours.
Mother suggests that she and Grandmother be given
shared custody. But Mother is unwilling and unable to protect
R.P. Mother is also unwilling to eliminate Father from her life.
In fact, Mother blames R.P. for the incident that led to R.P.’s
removal. Moreover, Mother and Grandmother do not get along.
Shared custody would put R.P. in the middle. Shared custody is
not a viable alternative.
Mother relies on the trial court’s statement, “The safety
measures next door that have been argued that exist . . . may or
may not exist.” Mother argues the trial court’s finding that
reasonable alternatives to removal may or may not exist falls far
short of clear and convincing evidence that removal was the only
way to protect R.P. But the trial court did not say reasonable
alternatives to removal may or may not exist. The court said the
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safety measures Mother claims exist or may not exist. The court
is simply unwilling to gamble with R.P.’s safety if she is returned
to the custody of her parents. Thus, there is no reasonable
alternative to removal.
The evidence here is well beyond clear and convincing.
R.P. has good reason to fear Father. Mother cannot protect her.
II
Mother and Father contend there is no substantial evidence
that reasonable efforts were made to avoid removal.
The trial court found that reasonable efforts were made to
avoid removing the child from the home. (§ 361, subd. (e).)
The evidence showed that prior to R.P.’s detention CWS
scheduled a meeting with Mother and Father to develop a safety
plan for R.P. Mother and Father were given notice by text,
e-mail, and phone call. Present at the meeting were Mother,
R.P., Grandmother, CWS social workers, and a sign language
interpreter. Father did not participate. During the meeting,
however, Father called Mother and began to argue with her.
Father texted the social worker that he would not attend the
meeting because he did not receive notice in a different format.
During the meeting, Mother agreed that the concerns of
CWS were valid. When asked what Mother would do to keep R.P.
safe, she replied that she did not know what to do. She said R.P.
would be safer in Grandmother’s home. Mother said she was not
ready to leave Father, even though R.P. did not feel safe around
him.
That is substantial evidence CWS made substantial efforts
to avoid removing R.P. from her parents’ home. CWS tried to
create a safety plan for R.P., but Father refused to cooperate and
8
Mother refused to leave Father. Even Mother conceded R.P.
would be better off with Grandmother.
Mother and Father complain that the trial court made no
factual findings to support its conclusion that reasonable efforts
were made. The court made the ultimate finding that reasonable
efforts were made, but not specific factual findings. The error
was harmless. It was obvious R.P. needed to be removed from
her parents’ home, if not for her physical safety, then for her
emotional well-being. R.P. has repeatedly stated that she fears
Father and does not want to visit him without a police officer
present. That Father will be under court orders and CWS
supervision will not solve the problem.
III
Placement with Grandmother
Mother contends the trial court abused its discretion in
placing R.P. with Grandmother.
Mother’s contention is based on the theory that because
Grandmother had a contentious relationship with her and
Father, the placement would not facilitate reunification efforts.
It is true that Grandmother has a strained relationship
with Mother and Father. But R.P. is comfortable living with
Grandmother, and Grandmother said she would support
reunification efforts. CWS reported that Grandmother has been
cooperative.
The only alternative placement suggested by Mother is
placement with Father’s cousin, Michael W. or Michael W.’s
mother. CWS explored placement with Michael W., but he
expressed his reluctance to accept placement. Michael W. said
his mother lives in the Bay Rea. The trial court could reasonably
9
conclude that placement in the Bay Area would hinder
reunification.
The trial court did not abuse it discretion in placing R.P.
with Grandmother.
IV
ICWA
Mother and Father contend the trial court failed to comply
with the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et
seq.; § 224.2.)
ICWA provides: “In any involuntary proceeding in a State
court, where 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 parent or Indian custodian and the Indian child’s
tribe, by registered mail with return receipt requested, of the
pending proceedings and of their right of intervention.” (25
U.S.C. § 1912(a).)
An “Indian child” is “any unmarried person who is under
age eighteen and is either (a) a member of an Indian tribe or (b)
is eligible for membership in an Indian tribe and is the biological
child of a member of an Indian tribe.” (25 U.S.C. § 1903(4).)
ICWA does not itself impose a duty to inquire whether a
child is an Indian child. That duty is imposed by federal
regulations. (25 C.F.R. § 23.107(a).) In section 224.2, California
has enacted a statute that parallels the federal regulations.
Section 224.2, subdivision (c) provides: “At the first
appearance in court of each party, the court shall ask each
participant present in the hearing whether the participant knows
or has reason to know that the child is an Indian child. The court
shall instruct the parties to inform the court if they subsequently
10
receive information that provides reason to know the child is an
Indian child.” Subdivision (d) of the section lists six
circumstances, any one of which constitutes reason to know. The
only circumstance that is potentially applicable here is in
subdivision (d)(1): “A person having an interest in the child,
including . . . a member of the child’s extended family informs the
court that the child is an Indian child.”
Subdivision (e) of section 224.2 is particularly pertinent
here. It provides, in part: “If the court, social worker, or
probation officer has reason to believe that an Indian child is
involved in a proceeding, but does not have sufficient information
to determine that there is reason to know that the child is an
Indian child, the court, social worker, or probation officer shall
make further inquiry regarding the possible Indian status of the
child, and shall make that inquiry as soon as practicable.”
Here Mother checked a box on an ICWA form that states, “I
am or may be a member of or eligible for membership in a
federally recognized Indian tribe.” In the blank that follows,
Mother wrote “Apache.” Father checked the same box on his
ICWA form naming Blackfoot, Cherokee, and Choctah. Mother
told a social worker that she had “heritage through the Apache
tribe from the Mexican area.” When the trial court asked Father
about his Indian heritage, Father told the court he has “three
different credible . . . ,” but the interpreter was unable to
interpret the rest of his statement. Father told a social worker
that he had Cherokee and Blackfoot ancestry, but he was not
recognized by any tribe.
The CWS disposition report states that the ICWA
investigation was ongoing and that an update would be provided
11
to the court when more information was available. The trial
court made no ICWA findings.
CWS points out that Mother and Father cite no authority
for the contention that the ICWA investigation must be complete
prior to the disposition hearing.
In addition, CWS contends no ICWA investigation is
required. CWS relies on In re Austin J. (2020) 47 Cal.App.5th
870 (Austin J.). In Austin J., mother told a social worker that she
may have some Cherokee heritage. She did not check any of the
boxes on the ICWA form indicating tribal membership. The trial
court found it does not have reason to know that the child is an
Indian child as defined by ICWA. No notice was given to any
tribe. The court ordered the children to be placed in foster care.
The Court of Appeal affirmed.
In discussing the “reason to know” standard, the Court of
Appeal in Austin J. noted that until 2016 the standard was
“ ‘information suggesting the child is a member of a tribe or
eligible for membership . . . .’ ” (Austin J., supra, 47 Cal.App.5th
at p. 885.) That standard was changed to “reason to know that a
child” “is an Indian child.” (Ibid.) In formulating the standard,
the Bureau of Indian Affairs (BIA) expressly rejected more
inclusive language such as “is or could be an Indian child” or
“may be an Indian child.” (Ibid.; citing Seiser & Kumli, Cal.
Juvenile Courts Practice and Proc. (2020) Disposition Hearing,
§ 2.125[1], p. 2-419 [ICWA “ ‘does not apply to the many children
involved in juvenile dependency proceedings who merely have
some vague, distant or possible Indian heritage’ ”].) The Court of
Appeal concluded mother’s vague statements that the child may
have some Cherokee heritage do not constitute information that
the child is an Indian child. Tribal membership, not mere Indian
12
heritage, is required for a child to be an Indian child under
ICWA. Thus, the trial court did not err in failing to give the tribe
notice of proceedings. (Austin J., at p. 887.)
The Austin J. court next discussed the “reason to believe”
standard under section 224.2, subdivision (e) requiring further
investigation. The court noted that “reason to believe” is broader
than “reason to know.” (Austin J., supra, 47 Cal.App.5th at
p. 888.) Nevertheless, a “reason to believe” requires a logical
connection between facts and the belief. (Ibid.) Information
about a tribal connection that is too vague, attenuated, and
speculative will not support a reason to believe. (Ibid.) Not
everyone with Indian ancestry is a member of an Indian tribe or
the biological child of a member of an Indian tribe. (Id. at p. 889.)
Indian ancestry without more does not provide a reason to believe
that a child is a member of a tribe or is the biological child of a
member. (Ibid.) Thus, a mere claim of Indian ancestry does not
impose a duty to make further inquiry. (Ibid.)
The only difference between this case and Austin J. is that
here Mother and Father checked a box on their ICWA forms
stating, “I am or may be a member of or eligible for membership
in a federally recognized Indian tribe.” That is not a material
difference. The language “I am or may be” eligible for
membership in an Indian tribe is too broad to be meaningful.
Anyone with even the vaguest claim to Indian heritage could
check that box. In fact, statements made by Mother and Father
to social workers and the court show they have only a vague
claim to Indian heritage. That is not enough to support either
“reason to know” or “reason to believe” the child is an Indian
child. Even had the statement attached to the box been more
precise, simply checking a box on a form is insufficient where
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inquiry of the person checking the box discloses it is based on
nothing more than a claim of Indian heritage. Indian heritage is
not enough to qualify as an Indian child. The child must be
either a member of a tribe or the biological child of a member of a
tribe. (25 U.S.C. § 1903(4).)
The court in In re T.G. (2020) 58 Cal.App.5th 275, 294-297,
disagreed with Austin J.’s conclusion that the mere claim of
Indian ancestry does not trigger the duty to make further
inquiry. The court in T.G. stated: “[T]he imposition of a duty to
inquire that is significantly more expansive than the duty to
provide ICWA notice is premised on the commonsense
understanding that, over time, Indian families, particularly those
living in major urban centers like Los Angeles, may well have
lost the ability to convey accurate information regarding their
tribal status. . . . As a result, the information available at the
outset of dependency proceedings will often be inadequate to
ensure the necessary protection of the rights and cultural
heritage of Indian children, Indian families and Indian tribes.
[Citation.] General information from the family about its
ancestry frequently provides the only available basis to believe an
Indian child may be involved.” (Id. at p. 295, fn. omitted.)
We believe that Austin J. is better decided. As Austin J.
points out, and T.G. acknowledges, “Indian child” is defined in
terms of tribal membership, not Indian ancestry. (Austin J.,
supra, 47 Cal.App.5th at pp. 888-889; T.G., supra, 58 Cal.App.5th
at p. 294.) Section 224.2, subdivision (e) requires further inquiry
if there is “reason to believe that an Indian child is involved in
[the] proceeding,” not “may be” or “could be” involved in the
proceeding. (Italics added.)
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In case after case, child welfare agencies have spent
significant time, money, and resources in fruitless investigations
of ICWA claims. Many, if not most, of these investigations are
initiated and sustained by nothing more than a parent or
relative’s bare assertion of Indian heritage. No child is benefited
by these fruitless searches, and many are harmed by the delay.
Neither the legislative history of ICWA outlined in Austin J.
(Austin J., supra, 47 Cal.App.5th at p. 885) nor the express
language of section 224.2, subdivision (e) justifies launching a
search for tribal membership based on a bare assertion of Indian
heritage. To require a further inquiry under section 224.2,
subdivision (e), there must be some facts that would cause a
reasonable person to have a “reason to believe” the child is an
Indian child as defined by federal law; that is, a member of an
Indian tribe or the biological child of a member of an Indian tribe.
Here there are no such facts. A claim to Indian heritage is not
enough.
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
I concur:
YEGAN, J.
15
TANGEMAN, J., Concurring:
I agree that substantial evidence supports the juvenile
court’s findings and that placing R.P. with Grandmother was not
an abuse of discretion. But I disagree with the majority’s
conclusion that the Indian Child Welfare Act (ICWA) has not
been triggered here. (25 U.S.C. § 1901 et seq.; Welf. & Inst.
Code,2 § 224.2.) On this record, I would conclude otherwise.
Nevertheless, I concur in the result because Child Welfare
Services (CWS) correctly points out that the ICWA investigation
need not be completed—yet.
The court below did not make an ICWA finding at the
dispositional hearing and the inquiry is ongoing. Where the
court orders termination of parental rights or foster care
placement, it must notify the relevant tribe(s) and obtain receipt
of notice by the parent/tribe/Secretary of the Interior at least 10
days before the termination or placement. (25 U.S.C. § 1912(a);
see also § 224.3, subd. (a).) But the court did not terminate
parental rights or order foster placement. It placed R.P. with her
paternal grandmother. Unless the record states otherwise (it
does not), such a placement is neither placement in foster care
nor termination of parental rights. The claim of noncompliance
with ICWA is therefore premature. (In re M.R. (2017) 7 Cal.
App.5th 886, 904. For that reason, we need not reach the
2 Statutory references are to the Welfare and Institutions
Code.
question of whether the reasoning of In re Austin J. (2020) 47
Cal.App.5th 870 or In re T.G. (2020) 58 Cal.App.5th 275 apply
here.
NOT TO BE PUBLISHED.
TANGEMAN, J.
2
Arthur A. Garcia, Judge
Superior Court County of Santa Barbara
______________________________
Megan Turkat Schirn, under appointment by the Court of
Appeal, for Defendant and Appellant M.P.
Andre F. F. Toscano, under appointment by the Court of
Appeal, for Defendant and Appellant R.L.
Michael C. Ghizzoni, County Counsel, Lisa A. Rothstein,
Deputy, for Plaintiff and Respondent.