Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. CK85277 David R. Fields, Judge.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Deputy Counsel, for Plaintiff and Respondent.
CHAVEZ, J.
Joann J. (mother) appeals from the judgment of the juvenile court, challenging the court’s orders adjudging minor Katherine H. (minor) a dependent of the court, removing her from mother’s physical custody and placing her in the custody of her father, Jesse H. (father). Mother contends that substantial evidence did not support the jurisdictional order or the disposition. Mother also contends that remand is required to direct the juvenile court to comply with the notice requirements of the Indian Child Welfare Act (ICWA). We reject mother’s contentions and affirm the judgment.
See 25 U.S.C. § 1901 et seq.
BACKGROUND
1. Detention
Minor came to the attention of the Department of Children and Family Services (DCFS or Department) in October 2010, after she ran away from her California residential treatment program, Children of the Night, where she had been placed eight months before by mother, who lived in Illinois. Minor attempted to travel to Missouri to be with her father but was found in New Mexico and returned to Children of the Night.
Mother divorced father when minor and her twin brother (brother) were two years old. The twins remained with mother. When minor was 12 years old, she was sexually abused and exploited by boys in mother’s neighborhood which led to minor’s substance abuse and behavioral problems. After that, minor and mother did not get along and minor ran away from home several times to father in Missouri. Before mother placed her in Children of the Night minor was treated for several months at a psychiatric facility for posttraumatic stress disorder. At the age of 15, she spent six months in Gateway, a residential drug treatment program.
The record does not reveal whether mother obtained a custody order, and none was offered into evidence.
Minor told the social worker (CSW) that she wanted to live with her father and believed that her mother mistreated her as a result of mother’s prescription drug abuse. Mother preferred that minor stay in the Children of the Night program, and claimed that minor had been diagnosed with personality disorder, bipolar disorder, and drug addiction. Mother also claimed that father was a mentally ill, abusive alcoholic. Mother reported that she suffered from chronic fatigue syndrome and fibromyalgia, for which she took prescribed antidepressants and pain killers, but she denied abusing them. Father denied any domestic violence and told the CSW that he wanted custody of minor, but had been unable to gain custody because he did not pay child support. He claimed that he and his current wife could give minor a stable home.
After minor agreed not to leave Children of the Night pending the juvenile court proceedings she was allowed to stay there. Minor had access to a psychiatrist, who had prescribed an antidepressant, and she received counseling and case management services at the facility.
On November 23, 2010, the juvenile court ordered minor detained and the Department filed a juvenile dependency petition pursuant to Welfare and Institutions Code section 300 (petition) to bring minor within the jurisdiction of the juvenile court. The court scheduled a pretrial resolution conference (PRC) for January 14, 2011, and the jurisdictional hearing for two weeks later. Mother reported possible Cherokee and Sioux ancestry, and in early January 2011, the Department mailed notices of the hearing to the tribes as well as the Sacramento area director of the Bureau of Indian Affairs.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
2. Petition
As later amended, the petition alleged in count b-1, pursuant to section 300, subdivision (b), that mother was unable to provide appropriate parental care and supervision due to the minor’s mental and emotional problems. Count b-2 alleged that mother had a history of substance abuse and currently abused prescription medication, rendering her incapable of providing the minor with regular care and supervision. Count b-3 alleged that father had a history of substance abuse and recent alcohol abuse, rendering him incapable of providing minor with regular care and supervision.
Father appeared at the PRC and pled no contest to count b-3, which the juvenile court then sustained, leaving only the counts alleged against mother to be determined at the jurisdictional hearing. The juvenile court ordered the Department to consider placing the minor in father’s home, and to investigate the alcohol issues.
Prior to the jurisdictional hearing, the Department filed the responses to the Department’s notices to the Cherokee and Sioux tribes and the Bureau of Indian Affairs. None of those responding reported that minor was enrolled or eligible for enrollment. The juvenile court found that the ICWA did not apply.
3. Evidence re Jurisdiction
The Department submitted the issues of jurisdiction and disposition on the November 23, 2010 detention report, the PRC report dated January 14, 2011, and the “Last Minute Information for the Court” dated January 31, 2010, along with the attachments to those reports.
Minor’s twin brother testified that he lived with mother in a three-bedroom house where he had his own room. He was aware that his mother had a medical condition that affected her memory and made it painful for her to move around. Mother regularly took five or six medications, including oxycodone or some other painkiller, and kept them in a transparent divider to ensure proper dosages. Brother did not believe mother abused her medication, because he could observe what pills were missing from the divider every day. Mother never appeared to him to be under the influence of drugs or alcohol. She would sleep during the day when she was very sick and sometimes she was asleep when he left for school. However, mother took care of the house, did laundry, cooking, and cleaning, and was always there when brother needed her.
Brother testified that minor lived with them until seventh grade, when minor went to live periodically with their older brother in St. Louis. Minor was in rehabilitation for nine months during eighth grade and later in Children of the Night. Brother testified that he had seen minor under the influence of PCP and marijuana and had seen her steal mother’s medicine. The last time he saw minor using drugs was in March or April 2010, when she was in a friend’s garage smoking marijuana with several boys. Brother said that he did not trust minor completely. In his opinion minor lied frequently and lied when she ran away to father’s home.
Brother testified that when minor was not using drugs or alcohol she and mother had a healthy relationship. However when minor was using drugs or alcohol it was very “rough and hectic.” Brother observed minor several times when she had “come home, like, gone... crazy and tried to beat up” his mother. He had to intervene once. When minor was angry, she would say she hated mother and wanted to run away. Mother was not able to deal with minor’s behavior and placed her in Children of the Night to try to help her.
Mother testified that she suffered from chronic fatigue syndrome with fibromyalgia, severe headaches, high blood pressure, gallbladder problems, and severe muscle spasms. Mother kept her medication (Lisinopril, Compazine, Oxycontin, codeine, Carafate, and magnesium oxide) in a pill minder either in a safe or next to her rocking chair. Mother’s medications were stolen on occasion, and she would experience withdrawal symptoms such as nausea. Mother testified that minor stole her medication a few times before she had the safe. Before minor left Gateway, mother tried to enter a drug treatment program so minor would not be exposed to mother’s medication, but she was told she would not be able to live without her pain medication. Mother denied that her medication made her feel “loopy.”
Mother testified that after minor had been sexually exploited and involved with gangs, she had tried everything to help her. Minor refused to see a psychiatrist or psychologist until her stay in Gateway. In an effort to get minor away from her abusers, mother moved 40 miles away from that neighborhood, but within a month minor was associating with similar type people. Mother also sent minor to live with her uncle for a while, and then with her grandmother. Mother claimed she was minor’s primary caretaker when minor was not in Children of the Night or another program.
Mother denied minor’s claim that they had moved approximately 36 times, but admitted to having moved up to 20 times with her children, including at times to homeless and domestic violence shelters.
Mother testified that brother had had some rough times when minor lived with them, but since she left he was doing well and getting good grades. The twins had been very close, but minor “back stabbed” brother so many times and he forgave her so many times that “he can’t do it anymore.” Once, after minor had run away, minor told brother that she had hitched a ride on a Pepsi truck, but told mother that she had taken the bus and that her paternal grandmother had picked her up at the station because father was drunk.
Mother stated that she wanted minor to remain in Children of the Night because she loved minor, wanted her to have a chance for a good life, and the people at Children of the Night were experts. It took mother a long time to find that program, one of only three designed to help sexually exploited children. Mother stated that she thought minor had “about a year left to get it together.” When asked whether minor was getting what she needed at Children of the Night, mother’s testimony became nonresponsive, rambling, and confusing. Mother denied she ever made minor leave home, although she understood how the crisis counselor might have construed her actions in that way five years ago when mother told minor she could she not come home from the Gateway facility. Mother stated that because of minor’s lies she no longer telephoned minor.
Mother and father divorced in 1996. Mother testified that she left father because he attacked her one night. Mother also claimed that father was not with her in the hospital when the twins were born, did not appear in court for the divorce, and had not played any role in minor’s life. In December 2010, an intruder walked around her house while her son hid in the bedroom. Mother was certain the intruder was father because the wires were pulled out of the alarm system, and “that was his M.O.” 16 years ago.
4. Minor’s Testimony
Minor testified once for both jurisdictional and dispositional purposes. Minor testified that she had not used PCP for two years or marijuana for one year. She admitted that she stole mother’s pain medication once, when she was 13 years old. Minor claimed that mother abused her pain medication by using one month’s supply within a two-week period, causing her to suffer withdrawal. When she was between 9 and 13 years old, minor often saw mother take medicine excessively and go through withdrawal. Minor recognized the symptoms because she had experienced them herself -- sleeping, sweating, crying, vomiting, unable to stand or move. When mother had these symptoms, she and her brothers took care of the house, cleaning, vacuuming, and doing laundry. At times minor had found maggots in the dirty dishes when she washed them.
Minor admitted that she lied when she was abusing drugs, because she was frightened and thought it would protect her. Minor still lived in the same town as the people who had forced her into using drugs and then sexually exploited her when she was 12 years old. She felt traumatized and did not know how to handle anything. Minor also admitted that she ran away from home a few times, but claimed that she usually just left the house for awhile to cool off after she and mother “would get into brawls” that were out of control. Sometimes mother would tell her to get out. Minor would either take a walk or go to stay with friends, and mother usually called the police. Minor did not go to the police because she was afraid of them.
Minor’s telephone calls were monitored by Children of the Night staff or minor’s case worker. Monitors would interrupt minor’s conversations with mother and attempt to guide them back to “a straight and narrow path.” Calls were disconnected when warnings were ignored. Finally, after minor had been in the program three months, the director prohibited further telephone calls from mother because she found all but one of the conversations to be mentally and emotionally abusive. Minor explained: “[Mother] was constantly throwing my past in my face. I was trying to move on and get my life straightened out. I was doing a good job. And me speaking to her would set me back a week. It would make me feel miserable. I felt bad, guilty, when I was trying to get back on the straight and narrow.” Mother told minor that minor had done everything on purpose, and that she could have left her abusers but chose to stay with them. Mother told minor that she broke brother’s heart, tearing the family apart and ruining it.
Minor described her telephone conversations with father as “awesome.” During the first three months of minor’s stay at Children of the Night, they spoke about once per week; after that they spoke for 15 minutes every day. Minor testified: “It’s what keeps me going.” They discussed positive things: minor’s going home to father; their future plans; and school activities that might interest minor. Sometimes they discussed her activities with Children of the Night, and whenever minor had had a rough day he would calm her down. Minor also spoke to her stepmother every day. They had become close when minor lived there. Minor said, “They treat me like I’m their daughter.”
Minor believed that she had reached her goals at Children of the Night and was ready to leave. While in the program, minor held a job and was chosen to go to Stanford camp for 10 days because she followed the rules, was respectful, and was not “weird.” Minor also regularly attended medical appointments as well as individual counseling twice per week from May until October, when her therapist went away.
Minor felt she had recovered the coping skills she had learned in the Gateway rehabilitation program but lost while living with mother. At Children of the Night minor learned to avoid drug users and older men who seem interested; to follow her instincts; stay within her age group; obey the rules; and “be a kid.” She learned transcendental meditation, counting back from 10, and deep breathing. Minor believed that her will power was working and she did not want to take drugs. Minor regularly took prescribed medication for PTSD and melatonin for sleeping. Her nightmares occurred every three months now, instead of every night as they had before she entered the program. Minor’s current goals were to keep up with school work, to be stable, reduce the nightmares, and maintain her coping skills.
Minor wanted to go home to father “more than anything.” She wanted a real family experience with a father and mother and felt she deserved it after everything she had experienced. Children of the Night would help with the transition, and although she was not eligible to live there after the age of 18, she would be allowed to return at Children of the Night’s expense anytime until then. She also kept in touch with a network of Children of the Night alumni.
Once in Missouri, minor expected to ride the school bus to St. Claire High School and had already spoken to the guidance counselor there. She also expected to be in therapy, rape counseling, and possibly family counseling. Minor acknowledged that the longest she had lived with father was two weeks and was aware of his alcohol abuse. He had acknowledged his alcohol problem and said he had quit drinking in August. Minor and father discussed her desire to attend AA as well as NA, drug counseling for teenagers. Father found a counseling program covered by Medicaid.
Minor saw father under influence of alcohol three years ago. When minor used to drink she observed people under the influence and recognized the symptoms: they slurred their words; they were more “loosey and goosey”; and they were sometimes violent, like her ex-boyfriend. Minor testified that she knew that it would not be appropriate for her to be with father if he were under the influence of alcohol. Minor could always call her caseworker at Children of the Night if there were problems, and she felt confident she would call if she saw father drinking.
5. Additional Evidence re Disposition
The Department relied upon the evidence introduced in support of jurisdiction, and rested. In a “Last Minute Information for the Court” report, the Department advised that the dependency investigator (DI) had interviewed father by telephone. Father admitted to three prior convictions of driving under the influence of alcohol (DUI) and to another charge pending since February 2010. Between August and December 2010, father was randomly tested for alcohol and wore an ankle bracelet which monitored alcohol levels. In December, the ankle bracelet was removed and father began testing three times per week. The results were consistently negative for alcohol.
The local social services agency in Missouri refused the DI’s request to conduct a visit of father’s home or obtain a criminal background check without an ICPC (Interstate Child Placement Compact) order. Father’s physician of nearly six years wrote to attest to father’s good character and health. Two long-time acquaintances wrote that father and his wife were good friends, kind to their children, and kept a clean home. They believed that father and his wife loved minor and both wanted her to live with them. The Department recommended against placing minor with father.
Teresa Davis (Davis), full-time volunteer childcare worker with Children of the Night, testified on behalf of minor. Davis had known minor since May 2010. She gave minor her medication, fixed her breakfast, attended workshops with her, and had spent New Year’s Eve and Christmas morning with her. Davis confirmed that minor was allowed full telephone contact with her father and none with her mother.
Davis described Children of the Night as a licensed shelter for children between ages of 11 and 17 who have been involved in prostitution. In existence for over 30 years, Children of the Night was neutral on all custody matters. The children attended school, participated in workshops and outings, and met with a case worker each week. Counseling was provided off-site. Participants were expected to follow all the rules, including no drinking or drugs.
Davis reported that minor was “doing amazing.” She had met all requirements and had done everything required of her at school and in her programs. Minor followed every rule, did excellent work in school, and had become completely stable. Minor’s participation was completely voluntary; thus she was free to leave the program at any time. Minor was welcome however, to return at any time at the expense of Children of the Night. The hotline was open 24 hours per day, seven days per week. If necessary, the alumni case manager could arrange for emergency protection, care, and counseling, as she had done for other alumni in the past.
Father testified that he and his wife lived together in a three-bedroom, two bath mobile home situated on 10 acres, and that minor would have her own bedroom and bath. He acknowledged his history of alcohol abuse and DUI convictions. Father’s last conviction was in February 2010, almost one year ago. He acknowledged that he continued to drink until August 2010, when he began testing and wearing an ankle bracelet under court supervision. At the time of his testimony he was still testing twice per week, and had provided copies of the results to the CSW -- none positive.
Father testified that he intended to join AA, stay sober, and do everything he could to help and support minor. Minor’s school would be 15 miles away from home and he had already obtained information about the bus route. Father had been in contact with the school guidance counselor and he had spoken to the family doctor about counseling. Father had met with Children of the Night about classes minor had completed and the activities and programs in which she had participated. Father had investigated counseling facilities in his area and intended to make sure minor continued with therapy. Father’s occupation was driving heavy equipment in construction. The work was seasonal and he was currently unemployed, drawing unemployment benefits, but hoped to go back to work in March. He normally carried insurance through his union but it ended in November. In the meantime, he had found free counseling for minor.
6. Adjudication
The juvenile court sustained count b-1, dismissed count b-2, and declared minor a dependent of the court pursuant to section 300, subdivision (b). The court found the minor’s testimony regarding mother’s emotional abuse to be credible. The court believed minor’s testimony that mother had moved many times, had “kicked” minor out of the house, and was abusive toward minor on the telephone. The court found that mother had been neglectful: her efforts over time had been insufficient; she had not adequately dealt with minor’s mental and emotional problems; and her abuse had caused minor to be unable to use the coping skills she had learned in her drug rehabilitation program. The court found that minor had suffered due to mother’s neglect and there remained a substantial risk to minor of serious physical harm or illness due to mother’s inability to supervise or protect minor adequately.
Section 300, subdivision (b), provides in relevant part that the juvenile court may adjudge a minor to be a dependent child of the court if “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child....”
7. Disposition and Appeal
Because minor was nearly 17 years old, the juvenile court gave great weight to minor’s wishes and ordered her released to father’s home. Although father’s sobriety since August 2010 was “not a tremendous amount, ” and minor had lived with him for only two weeks, the court was encouraged by father’s sincerity in wanting custody, his continued alcohol testing, and minor’s belief that his calls kept her going. The court considered it better that minor be given the opportunity to live with father while the court could exercise some supervision. Accordingly, the court retained jurisdiction and ordered a case plan that required father to continue random alcohol testing, participate in AA or NA, and attend individual counseling. The Department was ordered to initiate an ICPC in Franklin County, Missouri. The court ordered monitored visits for mother but not reunification services. Telephone calls with mother would be permitted only with the consent of minor. Mother filed a timely notice of appeal from the judgment.
DISCUSSION
I. Substantial Evidence Supports Jurisdiction
Mother contends that the juvenile court’s adjudication of jurisdiction was not supported by substantial evidence. “A jurisdictional finding under section 300, subdivision (b) requires: ‘“(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) ‘serious physical harm or illness’ to the child, or a ‘substantial risk’ of such harm or illness.” [Citation.]’ [Citations.]” (In re James R. (2009) 176 Cal.App.4th 129, 135.)
A. Standard of Review
Mother summarizes the evidence of the appropriate mental health treatment she obtained for minor over the years and argues that the court “failed to accord enough significance to the serious and long-standing treatment problems [minor] has confronted, and the degree of success she had achieved, which was the direct result of mother’s persistence and determination.” Mother concludes that the court should have found that mother had done the very best for minor under the circumstances.
Our task, however, is not to determine whether the juvenile court could have found for mother or to accord more significance to evidence rejected by the court. We uphold jurisdictional findings and orders if they are supported by substantial evidence. (In re A.M. (2010) 187 Cal.App.4th 1380, 1388.) In reviewing for substantial evidence, “we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. [Citations.]” (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) Further, “[w]e do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts.... [We] affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. [Citation.]” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
B. Father’s Plea Established Jurisdiction
Mother’s substantial evidence contention is directed solely to the juvenile court’s findings as to count b-1, which alleged:
“[Mother] is unable to provide appropriate parental care and supervision of the child due to the child’s mental and emotional problems. The mother’s inability to provide appropriate parental care and supervision of the child endangers the child’s physical and emotional health and safety and places the child at risk of physical and emotional harm and damage.”
The juvenile court sustained two counts, however: count b-1, which is set forth above; and count b-3, which was sustained upon father’s no contest plea. Mother does not contend that substantial evidence did not support the count against father or that the facts alleged do not support the juvenile court’s jurisdiction over the minor. Indeed, she makes no mention of count b-3 at all.
“[A] jurisdictional finding good against one parent is good against both. More accurately, the minor is a dependent if the actions of either parent bring her within one of the statutory definitions of a dependent. [Citations.] This accords with the purpose of a dependency proceeding, which is to protect the child, rather than prosecute the parent. [Citation.]” (In re Alysha S. (1996) 51 Cal.App.4th 393, 397.) Mother bears “the burden of showing the finding or order is not supported by substantial evidence. [Citation.]” (In re L.Y.L., supra, 101 Cal.App.4th at p. 947.) Where, as here, a parent has admitted the allegations against him and the other parent does not challenge it on appeal, jurisdiction has been established and it is immaterial whether substantial evidence supports other counts. (In re Alexis H. (2005) 132 Cal.App.4th 11, 16; see In re Alexis E. (2009) 171 Cal.App.4th 438, 451 [reviewing court need not consider more than one sustained statutory basis].)
In the guise of a substantial evidence argument, mother also contends that the petition was defective, as it alleged that mother’s inability to provide appropriate parental care and supervision placed minor at risk of both physical and emotional harm, although only a risk of physical harm provides authority for jurisdiction under section 300, subdivision (b). (See In re Daisy H. (2011) 192 Cal.App.4th 713, 716.) As mother did not raise this pleading issue in the juvenile court, she may not do so for the first time on appeal. (In re James C. (2002) 104 Cal.App.4th 470, 480-481.)
C. Substantial Evidence Supports Allegations against Mother
Because respondent has not relied on the father’s admission of the allegations against him, but instead argues the merits of mother’s contention, we briefly address the evidence supporting the allegations against her and conclude that it was sufficient.
Mother compares the facts of this case with those of In re Precious D. (2010) 189 Cal.App.4th 1251 (Precious D.), in which it was held that because the trial court made no finding of parental unfitness or neglectful conduct, there was no basis for jurisdiction. (Id. at p. 1261.) Here however, there was such a finding by the juvenile court.
The neglectful conduct found by the court included mother evicting minor from the house when she and minor argued and being abusive toward minor at home and on the telephone when minor was away from home. The court found that mother’s abuse caused minor to be unable to use the coping skills she had learned in her drug rehabilitation program, which in turn, caused minor to have to leave home again to go into another program. These findings were supported by minor’s testimony that she and mother “would get into brawls” and mother would tell her to get out, as well as minor’s testimony that interaction with her mother caused her to lose coping skills she learned in rehabilitation. Minor also testified that mother’s emotional abuse continued by telephone. Mother blamed minor for the sexual abuse minor suffered and told minor she had ruined the family. These conversations would set minor’s recovery back a week.
The testimony of a single witness is sufficient to uphold a finding. (In re Frederick G. (1979) 96 Cal.App.3d 353, 366.) Further, we must accept the juvenile court’s evaluation of minor’s credibility. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
D. Risk of Physical Harm
Mother contends that nothing in her behavior created a substantial risk of physical harm to minor. She concedes that minor’s running away to live with father “certainly endangered her physical safety, ” but argues that if either parent created such a risk, it was father. When a petition is sustained as to both parents, jurisdiction is not defeated by arguing that one parent is more at fault than the other. (See In re Alexis H., supra, 132 Cal.App.4th at p. 16; In re Alysha S., supra, 51 Cal.App.4th at p. 397.)
Regardless, minor testified that mother’s behavior both prior to and during minor’s stay at Children of the Night caused minor to lose the coping skills that kept her away from drugs and dangerous men. Minor thus faced a substantial risk of recurring drug addiction and sexual exploitation, as well as the obvious physical dangers in a teenage girl hitchhiking across state lines and spending time on neighborhood streets after being excluded from her home by mother. Minor’s loss of coping skills learned in her rehabilitation program was demonstrated by minor’s use of marijuana after she returned to mother’s home.
Relying on In re Rocco M. (1991) 1 Cal.App.4th 814, mother discounts such dangers because they were not circumstances existing at the time of the hearing that would show a likelihood of recurrence or a future risk of harm. We disagree. First we note that the only reason mother was not abusing minor at the time of the hearing was that mother’s contact with minor had been prohibited due to mother’s abusive behavior. Further, as noted in In re J.K. (2009) 174 Cal.App.4th 1426, the language of section 300 was amended after Rocco M. was decided; under the current statutory language, “a showing of prior abuse and harm is sufficient, standing alone, to establish dependency jurisdiction under” section 300, subdivisions (a), (b), and (d).” (In re J.K., supra, at pp. 1434-1435, fn. omitted.)
II. Disposition
A. Removal from Mother’s Custody
Mother contends that the juvenile court’s disposition order removing minor from her custody was not supported by substantial evidence.
The juvenile court may not remove a dependent child from the physical custody of the custodial parent unless it finds by clear and convincing evidence that “[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s... physical custody.” (§ 361, subd. (c)(1).) The jurisdictional findings constitute prima facie evidence that the child cannot safely remain in the parent’s home. (See § 361, subd. (c)(1).)
“‘A removal order is proper if it is based on proof of parental inability to provide proper care for the minor and proof of a potential detriment to the minor if he or she remains with the parent. [Citation.] The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child. [Citation.]’ [Citations.]” (In re Miguel C. (2011) 198 Cal.App.4th 965, 969.) “In this regard, the court may consider the parent’s past conduct as well as present circumstances. [Citation.]” (In re Cole C. (2009) 174 Cal.App.4th 900, 917.) “We review an order removing a child from parental custody for substantial evidence in a light most favorable to the juvenile court findings. [Citations.]” (In re Miguel C., supra, at p. 969.)
Mother argues that the jurisdictional findings were not supported by substantial evidence and thus did not support the removal order. As we have found jurisdiction to be appropriate, we reject this contention. Next, rather than summarizing the evidence in the light most favorable to the juvenile court’s findings, mother sets forth all the positive things she has done for minor, such as placing her in Children of the Night, and argues that the court should have given less weight to minor’s wishes. Such a summary is inadequate to support mother’s contention, as a substantial evidence review does not turn on whether there is evidence that contradicts the findings of the juvenile court. (See In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.)
In any event, as respondent notes, mother does not contend that minor could safely live in mother’s home or that mother would be willing to have minor live in her home. Mother argues, not for physical custody, but for the power to decide where minor should be placed outside the home.
Substantial evidence established that living with mother posed a substantial danger to minor’s emotional and physical well-being. Specifically, there was evidence that interaction with mother caused minor to regress in her treatment, and Children of the Night had to intercede by prohibiting telephone calls. Mother no longer wanted to speak to minor because she believed that minor lied too much. Minor felt that when she was with mother she lost the coping skills that kept her from taking drugs and associating with harmful men. From this we conclude that the juvenile court did not err in removing minor from mother’s custody.
Mother contends that the juvenile court failed to consider placement in Children of the Night as a reasonable alternative to removal. Placement outside the custodial parent’s home is not an alternative to removal; it is removal. (See In re Miguel C., supra, 198 Cal.App.4th at p. 971 [placement with noncustodial parent requires removal from custodial parent; it is not an alternative].) We thus reject mother’s suggestion that the court was required to base its decision not to place minor in Children of the Night on clear and convincing evidence pursuant to section 361, subdivision (c)(1), the standard applied to removal. Once minor was removed from mother’s physical custody, the juvenile court had broad discretion in determining where to place her, including the home of father. (See In re Cole C., supra, 174 Cal.App.4th at p. 918.)
Mother acknowledges that the record does not show that she could require minor to remain at Children of the Night involuntarily, and indeed she had not been able to keep minor there in the past. Davis testified that the program was completely voluntary and minor was free to leave at any time. Mother has not shown that the court abused its discretion by not ordering that minor be placed in Children of the Night.
B. Placement in Father’s Custody
Mother contends that the juvenile court’s order placing minor in father’s custody was not supported by substantial evidence and that it “violate[s] the mandate of section 361.2” to find a lack of detriment before placing minor with the noncustodial parent. She argues that the disposition was error because the evidence demonstrated that father’s custody created a serious risk for minor’s protection and welfare. Mother appears to misunderstand the mandate of section 361.2.
Under section 361.2, subdivision (a), when a noncustodial parent requests custody, the juvenile court “shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.” (§ 361.2, subd. (a), italics added.) “The noncustodial ‘parent has a constitutionally protected interest in assuming physical custody, as well as a statutory right to do so, in the absence of clear and convincing evidence [of such detriment to] the child.” [Citations.]’ [Citation.]” (In re Karla C. (2010) 186 Cal.App.4th 1236, 1243 (Karla C.).)
Some courts use the phrase “nonoffending noncustodial parent” to describe the parent affected by section 361.2, subdivision (a). (E.g., In re M.C. (2011) 195 Cal.App.4th 197; Karla C., supra, 186 Cal.App.4th at p. 1245.) However, section 361.2, subdivision (a), does not include the term “nonoffending” and simply refers to “a parent... 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....” The statute thus refers only to a noncustodial parent and does not distinguish between an offending or nonoffending parent. (In re V.F. (2007) 157 Cal.App.4th 962, 966.) Accordingly we refer simply to the noncustodial parent.
At the dispositional hearing, mother opposed placement with father. “[I]t is the party opposing placement who has the burden to show by clear and convincing evidence that the child will be harmed if the noncustodial parent is given custody. Clear and convincing evidence is evidence that establishes a high probability and leaves no substantial doubt. [Citation.]” (Karla C., supra, 186 Cal.App.4th at p. 1243.) Thus mother bore the burden below to establish that placing minor with father would be detrimental.
Ordinarily, the juvenile court’s dispositional order is reviewed for substantial evidence. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) However, when the party who had the burden of proof at trial makes a substantial evidence challenge, “it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment.” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) “Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.’ [Citation.]” (Id. at p. 1528.)
Mother has summarized the evidence in the light most favorable to her position without attempting to show that it was uncontradicted or unimpeached, or that its character and weight compelled a contrary finding. Further, mother has acknowledged the following evidence in favor of the juvenile court’s order: father had not consumed alcohol in the five months preceding the hearing; he had successfully completed an alcohol monitoring program; he pledged to “stay clean”; he was “genuinely concerned” about minor; he intended to provide her with all necessary care and treatment; he had identified counseling resources in his community; and minor wanted to live with father “more than anything.” In addition, we note that minor’s case worker at Children of the Night testified that minor had become completely stable and was free to leave the program at any time although the facility and its alumni would remain a resource for minor’s safety. Minor also felt she was ready to leave the program and live with father as a family.
As minor was nearly 17 years old at the time of the hearing, she was entitled to have her wishes considered. (See In re John M. (2006) 141 Cal.App.4th 1564, 1570.)
Thus, there is evidence in the record that living with father would not be “detrimental to the safety, protection, or physical or emotional well-being of the child.” (§ 361.2, subd. (a).) The holding in In re I.W., supra, 180 Cal.App.4th at page 1528, is just as applicable here: “As reflected in the juvenile court’s ruling, the juvenile court considered the conflicting, competing evidence and essentially discounted mother’s evidence in concluding that mother had failed to carry her burden of proof. It is not our function to retry the case. We therefore decline mother’s implicit invitation to review the record so as to recount evidence that supports her position (reargument) with the object of reevaluating the conflicting, competing evidence and revisiting the juvenile court’s failure-of-proof conclusion. [Citation.]”
III. ICWA
Mother contends that the judgment must be reversed due to defective ICWA notices and the juvenile court’s premature determination that ICWA did not apply. (See 25 U.S.C. § 1912(a); § 224.3, subd. (e)(3).) She contends that no responses were received from four tribes to which notices were misaddressed, and one tribe was omitted from the proof of service altogether. Further, the return receipts were not filed with the court as required by section 224.2, subdivision (c), and the proceedings went forward without waiting the required 10 days after receipt of the notices by tribes.
The ICWA notice requirement applies only when the Department seeks foster care or adoption. (25 U.S.C. § 1912(a); § 224.2; Alexis H., supra, 132 Cal.App.4th at p. 15.) When the Department initially seeks foster care, however, it is required to give the statutory notices, even if the minor is ultimately placed with a parent. (In re Jennifer A. (2002) 103 Cal.App.4th 692, 699-701 (Jennifer A.).)
The Department concedes that it sought to place minor in foster care, but argues that any defect in the notices was harmless because minor was ultimately placed with father. (See Alexis H., supra, 132 Cal.App.4th at p. 16.) We agree with respondent. Error due to defective ICWA notices is harmless where there is no reasonable probability of a more favorable result in the absence of the error. (In re G.L. (2009) 177 Cal.App.4th 683, 696 (G.L.).)
Mother counters that Alexis H. was decided prior to California Rules of Court, rule 5.480, which requires ICWA notices whenever a child is at risk of placement in foster care. Mother’s point is unclear, as the Department does not argue and Alexis H. did not hold that ICWA was inapplicable under such circumstances, and rule 5.480 does not address harmless error.
Mother cites G.L. in support of her contention that the error was not harmless. That case has no application here, as the court found the lack of notice to the child’s Indian custodian harmless because her status had been revoked. (G.L, supra, 177 Cal.App.4th at p. 696.) Mother also cites Jennifer A., which is distinguishable. There, the child had been placed in foster care and her continuance in foster care was at issue in the unnoticed hearing. (Jennifer A., supra, 103 Cal.App.4th at pp. 697-700.) Although Jennifer was ultimately placed with her father, the court refused to “fixate on the result, ” because “the issue of possible foster care placement was squarely before the juvenile court.” (Id. at p. 700.) Here, minor had not been in foster care, and when she was removed from mother’s custody she was immediately placed in father’s custody, quickly eliminating any real risk of foster care placement. Thus the issue was never “squarely before the juvenile court.” (Ibid.)
As mother has not shown a probability of a more favorable result, we conclude that minor’s immediate placement with father after removal rendered harmless any defect in the notices. (See Alexis H., supra, 132 Cal.App.4th at p. 16.)
Mother asks that we remand for the limited purpose of complying with ICWA, and respondent agrees unless we find the error harmless. (See Tina L. v. Superior Court (2008) 163 Cal.App.4th 262, 268 [limited remand].) However, neither party addressed the near certainty that remand for compliance “would be futile, ‘an empty formality and a waste of ever-more-scarce judicial resources.’ [Citation.]” (G.L., supra, 177 Cal.App.4th at p. 696.) Mother contends that five notices must be sent or re-sent. By the time this opinion becomes final, the remittitur is filed, notices are sent, the return receipts are filed with the juvenile court, and the 10-day notice period elapses, it is very likely that minor will be 18 years old and ICWA will no longer apply. (25 U.S.C. § 1903(4); In re Melissa R. (2009) 177 Cal.App.4th 24, 34.)
DISPOSITION
The judgment of the juvenile court is affirmed.
We concur:, DOI TODD, Acting P. J., ASHMANN-GERST, J.