Opinion
E045419
7-9-2008
MIA G., Petitioner, v. THE SUPERIOR COURT OF THE COUNTY OF SAN BERNARDINO, Respondent; SAN BERNARDINO COUNTY DEPARTMENT OF CHILDRENS SERVICES, Real Party in Interest.
Allen S. Remes for Petitioner. No appearance for Respondent. Ruth E. Stringer, Acting County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Real Party in Interest.
Not to be Published
In this writ petition, Mia G., mother of S.G. and B.G., challenges orders made at a disposition hearing denying family reunification services and visitation, and setting the matter for a permanency planning hearing. (Welf. & Inst. Code, § 366.26.)
All statutory references are to the Welfare and Institutions Code unless stated otherwise.
BACKGROUND
In the early morning hours of October 27, 2007, a loud argument between mother and Abel G., father of S. and B., took place in the parents bedroom. The parents frequently argued and fought during their 10-year marriage, but the domestic violence was usually limited to causing only bruises and cuts to each other. On this occasion, Mias teenaged daughter Priscilla heard her mother and stepfather arguing about his alleged affair or his "problem" with watching pornography. Priscilla thought Abel was hurting mother and rushed into the room where she found Abel lying motionless on the bed. Police were called and the children were taken into custody by the Department of Childrens Services (DCS). Mother admitted the shooting but stated it was an accident.
Priscillas father is Robert G., who was deemed the nonoffending noncustodial parent. Robert G. was awarded sole physical custody of Priscilla at the combined jurisdiction/disposition hearing. (§ 361.2, subds. (a), (b)(1).) Priscilla is not a subject of this writ proceeding.
A dependency petition was filed alleging mother failed to protect (§ 300, subd. (b)), and made no provision for support of the children. (§ 300, subd. (g).) The failure to protect allegations were based on the mothers act of shooting Abel while the children were present in the home, and the fact that mother and Abel regularly engaged in domestic violence, frequently leading to injuries, in the presence and earshot of the children. The failure to provide allegation was grounded on the fact mother was incarcerated for the killing of the childrens father. The three children were detained in the home of a paternal aunt. Mother was authorized to have written communication with the children, but no telephonic or personal visits were ordered. Although the court ordered services to mother pending the development of a case plan, but no actual services appear to have been provided.
The court ordered the removal of the minors and placed them in the temporary custody of DCS. However, prior to the adjudicatory hearing where jurisdiction is established, a juvenile court lacks authority to "remove" a child from a parents custody. A child may be taken into temporary custody by a peace officer or social worker (§§ 305, 306), and at the detention hearing, the court is empowered to determine whether the minor shall be "further detained." (§ 315.) It is only after the jurisdictional hearing that a court may consider whether it should "limit the control to be exercised over the dependent child" at the disposition phase. (§ 361, subd. (a).) Because "removal" is a milestone in juvenile court proceedings, it is important to accurately reflect the courts actions in the minutes.
The contested jurisdictional hearing took place on March 17, 2008. After hearing testimony, the court found the allegations of the petition to be true, bringing the children within the provisions of section 300, subdivisions (b) and (g). The court placed the children with the paternal aunt, denied mother reunification services, and set the matter for a hearing to select and implement the permanent plan. The court ordered sibling visits, but found that face-to-face visits between the children and mother would be detrimental. It therefore authorized only written correspondence between the mother and children.
On March 24, 2008, mother filed her notice of intent to file a writ petition.
DISCUSSION
Mothers writ petition requests that this court (1) vacate the order for a hearing under section 366.26; (2) order that reunification services be provided; and (3) order visitation between the child and the mother. The petition claims the denial of services was an abuse of discretion in that it lacked a factual basis.
1. The Juvenile Court Did Not Abuse Its Discretion in Denying Reunification Services and Setting the Permanency Planning Hearing.
A court reviews an order denying reunification services under section 361.5, subdivision (b) for substantial evidence. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 95-96.) We affirm an order denying reunification services if the order is supported by substantial evidence. (Amber K. v. Superior Court (2006) 146 Cal.App.4th 553, 560.) We have no power to judge the effect or value of the evidence, to weigh the evidence or to consider the credibility of witnesses. (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.) We look at the evidence in the light most favorable to the ruling and resolve all inferences and conflicts in favor of the party prevailing in the trial court. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
The court has broad discretion in determining whether offering a parent reunification services would serve the childs best interests. (In re Angelique C. (2003) 113 Cal.App.4th 509, 523-524.) As a reviewing court, we will reverse a denial of services only if discretion has been clearly abused. (Ibid.) This means we use a "double standard" of review: we review the findings upon which the order denying services was made under the substantial evidence test, and we review the actual denial of services for abuse of discretion.
There is a presumption in dependency cases that parents will receive reunification services. (Riverside County Dept. of Public Social Services v. Superior Court (1999) 71 Cal.App.4th 483, 487.) Section 361.5, subdivision (a) directs the juvenile court to order services whenever a child is removed from the custody of his or her parent unless the case is within the enumerated exceptions in section 361.5, subdivision (b). (Rosa S. v. Superior Court (2002) 100 Cal.App.4th 1181, 1188.) Incarcerated parents are entitled to services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. (In re James C. (2002) 104 Cal.App.4th 470, 485.) "Incarcerated," as used in the statute, includes pretrial incarceration while awaiting trial. (Edgar O. v. Superior Court (2000) 84 Cal.App.4th 13, 17-18.) The court must consider the age of the child, degree of parent-child bonding, the length of the sentence, the nature of the crime, the degree of detriment to the child if services are not offered, and any other appropriate factors, to determine if services would be detrimental.
In Edgar O. v. Superior Court, supra, 84 Cal.App.4th 13, the father was denied services at a dispositional hearing conducted while he was still awaiting trial on the charges he murdered the mother, similar to the situation before us. The trial court based its decision on reports of the childrens therapist, who detailed the harm to the children caused by fathers violence and the trauma caused by their mothers death at fathers hands. (Edgar O. v. Superior Court, supra, at pp. 18-19.) Similar factors were considered by the court in the present case. The children were severely traumatized by the events leading to the loss of their father, as well as conflicted in their feelings toward mother. Priscilla was afraid mother would hurt her if mother were released from custody. The children had not requested to see their mother, expressed the wish to remain in the home of their paternal aunt prior to the jurisdictional/dispositional hearing, and did not wish to return to mothers custody. Successful reunification is unlikely under the circumstances.
We note that the juvenile court stated, without factual basis, that DCS had complied with reunification services by making reasonable efforts and that mother had not sufficiently progressed. If this had been the true basis for the courts denial of services, there might be merit to mothers argument that the courts findings are not supported by substantial evidence.
While the juvenile court judge may have recited those words, the recital was not the actual reason for finding services would be detrimental. Instead, the juvenile court found services would be detrimental based on the nature of the crime (killing of the childrens father), the ages of the children, the concerns addressed "in various locations in the court file" (including those noted by the childrens therapist), the ongoing history of conflict in the home, and mothers incarceration. The information on which the court relied to make the findings was included in the various social worker reports and assessments, information from the childrens therapist, and the police reports of the shooting incident and follow up investigation of the crime. Mother does not take issue with those documents, which were admitted into evidence without objection, and which amply supported the juvenile courts finding that services would be detrimental to the children.
Mia did not present any evidence relating to the type of services available to her while she is in pretrial custody on the charge of murdering Abel. Based on the current charges, she is facing a possible sentence of 50 years to life. (See Edgar O. v. Superior Court, supra, 84 Cal.App.4th at p. 16.) Her incarceration will extend beyond the normal reunification time limits—even if she is convicted of a lesser offense than the charge of murder—thus making successful reunification all but impossible. (See In re Kobe A. (2007) 146 Cal.App.4th 1113, 1124.) The nature of the crime, which involved mother shooting the father of S. and B., while they were in the same house, supports a denial of services, no matter what the ultimate conviction may be.
The finding that reunification services would be detrimental is supported by substantial evidence and the denial of services was not an abuse of discretion.
2. The Juvenile Court Did Not Abuse Its Discretion in Limiting Contact Between Mother and the Children to Written Correspondence.
Although visitation is usually ordered in a dependency matter (§ 362.1, subd. (a)(1)(A)), visitation is not an essential part of a case plan when the parent does not have reunification services. (In re J.N. (2006) 138 Cal.App.4th 450, 458-459.) Visitation is not allowed if it would be detrimental to the minor. (Id. at p. 458.) The test for whether the juvenile court abused its discretion is whether the trial court exceeded the bounds of reason, and this standard warrants application of a very high degree of deference to the decision of the juvenile court. (Id. at p. 459.)
Here, neither of the children had asked to see mother, and both S. and B. were severely traumatized by the events which led to the dependency. Further, mothers correspondence with the children while she was in jail was deemed inappropriate. The courts finding that in person visitation would be detrimental is supported by substantial evidence. This is particularly true where the court allowed for written communication, thus not cutting off all contact. The denial of in-person visits was not an abuse of discretion.
3. Additional Matters: ICWA
Although no issue was raised in the writ petition concerning the adequacy of the notice to the tribes under the Indian Child Welfare Act (ICWA), our review of the record reveals that DCS did not provide sufficient information to the Indian tribes in the notification of the pending custody proceedings. We did not request supplemental briefing on this issue because it does not affect our decision in this proceeding. We discuss this issue here so that the parties can take appropriate steps to correct the notices before the selection and implementation hearing.
The failure to provide proper notice is prejudicial error requiring reversal and remand. (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.) Notice given under ICWA must therefore contain enough information to permit the tribe to conduct a meaningful review of its records to determine the childs eligibility for membership. (In re Jennifer A. (2002) 103 Cal.App.4th 692, 705 ; In re Francisco W. (2006) 139 Cal.App.4th 695, 703.)
The social worker has an affirmative duty to inquire about and obtain all information about a childs family history in order to assist the tribe in determining if the child is an Indian child. (In re S.M. (2004) 118 Cal.App.4th 1108, 1116.) This affirmative duty mandates, at a minimum, that the social worker make some inquiry regarding the additional information required to be included in the ICWA notice. (In re D.T. (2003) 113 Cal.App.4th 1449, 1455.) Notice is meaningless if no information or insufficient information is presented to the tribe to make the determination of the childrens tribal heritage or eligibility for membership. (In re Louis S. (2004) 117 Cal.App.4th 622, 630, 631.)
The mother and her half-sister informed the court and the social worker of their Indian heritage. The court directed mother to provide family history information, but only a blank family information form is contained in the record. The information appears to have been readily available since the social worker interviewed the maternal aunt and maternal stepmother for the detention report, and maternal relatives attended some of the hearings. Additionally, mothers First Amended At-Issue Trial Memorandum named many maternal relatives. Yet the notices sent to the tribes include only the mothers married name, not her maiden name, and do not mention the names or birth dates of the maternal relatives who were alleged to have possible tribal affiliation.
The social worker must be aware that entering a mothers married name on the ICWA notification forms, without also including her maiden name or the names and birthdates of key relatives, was inadequate; no tribe could possibly determine if either of the children was eligible for tribal membership on the strength of the information provided. As the party responsible for the welfare of the children, DCS owes a duty to pursue the childrens potential tribal eligibility, which may confer substantial benefits to them.
While the adequacy of the ICWA notice does not affect this proceeding, if the children are eligible for tribal membership, the application of the Indian Child Welfare Act will affect the manner of conducting and the quantum of proof needed to make orders at the selection and implementation hearing. Corrective action is required to avoid having to address the issue after the selection and implementation hearing.
DISPOSITION
The petition is denied and the judgment affirmed with directions to order DCS to send corrected notices to the Indian Tribes, with complete information about relatives with Indian heritage.
We concur:
Hollenhorst, Acting P. J.
McKinster, J.