IN RE: JO. J. et al. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Tommy H. and Lynette G., the father and mother of minors Jo. J., D. G., Isr. H., Isa. H. and Ja. F., appeal from the Welfare and Institutions Code sections 1 300 and 387 jurisdiction and disposition orders contending the evidence was insufficient to support jurisdiction or remove the children from father's custody and the Department of Children and Family Services (Department) failed to provide proper notice under the Indian Child Welfare Act (ICWA ) (25 U.S.c. § 1901 et seq.).   We conditionally affirm with directions to the juvenile court to direct the Department to comply with the notice requirements of ICWA.

FACTUAL AND PROCEDURAL BACKGROUND

I. Background

On December 6, 2005, the Department received a referral alleging Jo. had been abused by mother and D. and Isr. were at risk of abuse by mother.   Jo. told the children's social worker (CSW) that mother was physically abusive toward her and her siblings.   The CSW observed bite marks on Jo.'s finger and left shoulder, as well as a belt mark on her right shoulder and a loop mark from an extension cord on the back of her neck.   Jo. indicated that mother inflicted the bite marks and hit her with a belt and extension cord.   The CSW observed several other old marks on Jo.'s arm and foot.

D. did not want to disclose any information regarding physical abuse other than to say mother spanked him with an extension cord on his hands.   The CSW observed D. was afraid to speak to her.   D. expressed anger toward Jo. for disclosing mother's physical abuse.   The CSW observed bite marks on D.'s chest and lower back, in addition to three fresh scratches on his chest that resembled fingernail marks.   D. would not disclose how he sustained the marks, but indicated mother had inflicted the injuries.   Isr. was too young to comment.

Mother admitted she spanked all three children with an extension cord and a belt and stated she “ ‘used to have a big problem’ ” with anger that caused her to bite her children.   The CSW explained to mother that the children were being taken into protective custody due to abuse;  mother indicated she was willing to cooperate with the Department.

The CSW spoke with father, who indicated he was aware mother physically abused the children;  father had called the Department in the past to report the abuse.   Mother and the children lived with father from May to August 2003.   Father asked mother and the children to move out of his house after mother failed to comply with the financial agreement she had made with father prior to moving in with him.   Mother and father both identified father as the biological father of all three children although mother could not explain why the children had different last names.

Mother had received voluntary family maintenance from April 22, 2004, through May 31, 2005.

II. Detention

On December 16, 2005, the Department filed a section 300 petition on behalf of the three children based on mother's physical abuse and father's failure to protect the children from abuse.   At the detention hearing, the court found father was the children's presumed father.   The court found a prima facie case for detention and that the children were minors described by section 300, subdivisions (a), (b), (i) and (j).  In January 2006, the Department filed a first amended petition further alleging the children had been physically abused by father.

The January 2006 jurisdiction and disposition report indicated Jo. had disclosed mother bit her and hit her with a belt on numerous prior occasions.   Jo. had witnessed mother hitting D. with a telephone cord and saw mother bite D. behind his ear.   Jo. indicated sometimes mother would punch her or slap her in the face.   Father “whup[ped]” Jo. and D. on the buttocks with a belt when he was really upset.   Otherwise, he would just spank them with his hands.

During his interview, D. did not make eye contact and was constantly moving and kicking his feet.   The dependency investigator observed D.'s tone would become angry when speaking about the abuse.   D. stated mother hit him with a cord;  he had four marks on his buttocks.   Mother hit D. with a mop stick and threw him across the room.   Mother bit D. on the chest;  in the past, father had hit D. with a belt on the face, hit him with a wooden stick, and choked him.   D. believed he was hit because of Jo.

Mother again admitted she physically abused her children.   Mother had completed a parenting class and learned strategies to work with her children, but she continued to punch, choke, bite and hit the children.   Mother acknowledged father physically abused the children with a belt and would get “ ‘very out of control.’ ”   According to mother, father did not know when to stop “whupping” a child and was “ ‘heavy handed.’ ”

Father indicated he disciplined the children by spanking them on their buttocks with his hands or a belt, but that occurred very seldom.   Father denied ever choking or punching any of the children.   Both mother and father stated D.'s behavior was a problem and he was very hard to control.

The children had been significantly affected by the severe abuse they had suffered and stated they were afraid of mother and father at times.   D. had been diagnosed with attention deficit hyperactivity disorder (ADHD) and was taking Ritalin.   D. had been hospitalized and placed on a 14–day hold;  hospital staff reported he had to be restrained as he would yell and could not be soothed.   D. placed his anger on Jo., whom he blamed for the abuse in the home.

At the March hearing, the court sustained the count regarding mother's physical abuse of Jo. and D., amended the counts to indicate father was unable to protect rather than failed to protect.   The court sustained counts father physically abused the children as well as one count pertaining to D.'s behavioral issues and mother's inability to cope with and care for him due to those issues.

Mother and father were provided family reunification services.

III. Review Reports

In May, the Department reported mother and father were in partial compliance with their respective case plans and maintained consistent contact with the children and visited them regularly;  the visits were appropriate.

In June, mother gave birth to Isa. Mother agreed to Isa.'s placement in foster care with mother receiving voluntary family reunification services.

In September, the Department reported mother had moved out of her apartment and relocated to a shelter.   Mother was in compliance with court orders and was looking for another apartment.

Father had completed his parenting classes and was participating in individual counseling.   The CSW assessed father's home and found it was not appropriate for children;  the home appeared unsafe and unsanitary and smelled of mildew and/or urine and had a large hole in the ceiling of the dining room.   Father indicated he was in the process of making the necessary repairs.

The Department granted the parents unmonitored visits.

Dr. Billie Ivra, who provided counseling for D., reported D.'s behavior was similar to children who had experienced trauma.   Dr. Ivra was working on improving D.'s social and communication skills.

The Department indicated the children could be returned to the parents' custody, but mother needed to undergo a psychological evaluation and father's home needed repairs.

In October, pursuant to Evidence Code section 730 (730 Evaluation), mother was evaluated by Kimani Norrington–Sands (Dr. Sands), a licensed psychologist.   According to the evaluation, mother had been sexually abused, which caused her to experience depression and be psychiatrically hospitalized for one month;  mother experienced suicidal ideations.   Mother also had difficulty controlling her anger and felt “out of control” when she spanked her children.   Mother and father had a tenuous relationship, perhaps due to father's raping mother in 2003;  Isr. was reportedly conceived as a result of the rape.   Mother and the children resided with father for four months in 2004 until father reportedly kicked them out;  mother and father then reconciled.

Dr. Sands recommended mother consult a psychiatrist for psychotropic medication and participate in weekly individual therapy with a psychologist.   Dr. Sands indicated mother seemed to struggle with recognizing the impact of her physical abuse on her children.

In March 2007, the Department reported mother continued residing in a shelter while participating in individual counseling, parenting classes and conjoint counseling with father.   Father informed the Department that he did not have the money to make the necessary repairs to his home.

The parents were visiting with the children and the visits were appropriate.   During one of the visits, father took the children back to his house because they needed to use the bathroom.   Isr.'s foster mother reported he returned with blotches on his entire body and what appeared to be ring worms or some type of rash on his back, arms and stomach.

In its October report, the Department stated the parents had completed parenting classes, participated in conjoint counseling, and visited the children regularly, but did not have suitable housing for the children.   The Department recommended termination of family reunification services.

IV. Additional Petitions

On October 17, 2007, the Department filed a section 300 petition on behalf of Isa. based on the parents' physical abuse of Jo. and D. and father's creating a detrimental home environment by living in a home that had a hole in the kitchen floor and lacked child safety gates.

The October detention report stated mother had not provided any documentation that she was receiving the mental health services required by the voluntary agreement she had entered into.   The report stated father's home was not suitable for children.   At the hearing, the court found a prima facie case for detention and that Isa. was a minor described by section 300, subdivisions (a), (b) and (j).

On November 28, the Department filed a section 300 petition on behalf of newborn Ja., alleging she was at risk of harm due to the parents' physical abuse of her older siblings.   A hospital hold was placed on Ja. due to mother's inability to provide adequate care for the children and the condition of father's home.

The November detention report stated mother was behind in her rent at the shelter and was required to leave by December 1. Mother had been diagnosed with a depressive disorder.   Father stated he had cleaned up some of the clutter in his home, but on October 31, the Department had found his home unsuitable.

At the November 28 detention hearing, the court found a prima facie case for detaining Ja. from father and found that she was a minor described by section 300, subdivisions (b) and (j).  Ja. was released to mother.   At the November 30 hearing, the court found father to be the presumed father of Isa. and Ja. The court released the children to mother and ordered the Department to assess father's home and take pictures.   The court also ordered the parents to attend a team decision making (TDM) meeting with social workers.

A last minute information filed in January 2008 indicated father had made some progress in cleaning up the clutter in his home, but the home still was not suitable for children.   The Department recommended father's family reunification services be terminated.

At the January TDM, it was decided mother should continue participating in individual therapy as well as conjoint counseling with father.

In its January review report, the Department stated D. had been placed in a mental health hospital for two weeks in December.   D. had become defiant at home and was yelling, “ ‘I don't want to be here.’ ”   D. took an electrical cord, put it in his mouth and attempted to insert it into an outlet.   Pictures of father's home were attached to the report.

In a May last minute information, the Department recommended the petitions filed on behalf of Isa. and Ja. be dismissed pursuant to section 301.   The court dismissed those petitions without prejudice.

In May, the Department reported that during the last period of supervision, Jo., D. and Isr. had been released to mother.   The CSW noted the children were clean, well cared-for and free from bruises;  they appeared to be in good spirits and comfortable in mother's presence.   Mother was attending individual counseling and searching for permanent housing.

In November, the Department reported the children appeared clean and well cared-for and mother was in compliance with all of the court's orders.   Mother and the children had moved into a four-bedroom house through Section 8 housing.   The Department recommended the court terminate its jurisdiction.   At the request of the children's counsel, the court continued jurisdiction and admonished the parents not to use corporal punishment.

In January 2009, the Department stated it had received an additional referral for the family that the children were being beaten by father.   The reporting party indicated the parents were unable to control D. and the only way father could control D. was by hitting him.   The children reported there had been at least one incident where mother hit them with a belt.   D. stated father “ ‘whoops us every time,’ ” but then stated father did not actually hit them but had threatened to do so.

At the January TDM, it was decided all five children could safely remain in mother's home.   D. was to be referred for therapeutic behavioral services (TBS), which included intensive shadowing in the home and possibly at school.   Mother disclosed father was unable to visit in the home because Jo. was not comfortable around him.   Jo. had disclosed that over the last few months, father had been looking at her is a sexualized manner and might have inappropriately touched her;  father denied those allegations and said he might have patted her on the buttocks in a playful way.   The CSWs reminded father Jo. was now a teenager and father should not “ ‘play’ ” with her anymore.   Jo. said she did not feel comfortable being left alone with father.

In May, the Department reported there had been a new referral alleging Jo. was at risk of sexual abuse;  the referral was investigated and closed as unfounded.

The CSW received a telephone call from Jo.'s therapist who reported Jo. was missing school and arriving late to school because she was doing work around the home and assisting with providing care for her younger siblings.   Jo. stated mother asked her to help with getting clothes out of the washer and dressing and feeding her younger siblings before going to school while mother did nothing.   Mother indicated Jo. did not want to work around the house and had been lying and stealing.

Another referral alleged that in March, mother had whipped Jo. with a belt, leaving Jo. with a large welt on her side.   Jo. said mother had pulled her hair and attempted to punch her in the face.   Mother admitted hitting Jo. five times.   Jo. wished to remain in the home but did not want things to continue as they had been.

Isr. stated both D. and Jo. were hit in the home.   Since the latest referral, mother refused to allow Jo. to return to counseling because she believed Jo. lied to the therapist about the allegations.   Mother stated father had called their attorneys who advised them they needed to be present for the children's counseling sessions because Jo. lied during her sessions.

Jo.'s therapist stated Jo. called to cancel a session, was not very talkative and said she might get in trouble for saying too much.   In May, the therapist received a voicemail from Jo. indicating she would no longer be coming to therapy.

Mother admitted she was having a difficult time with Jo. and using a belt was her last option.   The CSW told mother using a belt should not be an option at all.

Mother's therapist expressed concern about mother's relationship with father, indicated mother's self-esteem was “ ‘shot,’ ” she had poor insight and was overwhelmed.

In December, the Department reported the children appeared clean and appropriately dressed.   Jo. said things were “ ‘so-so’ ” in the home, father had been living in the home for seven months and she did not want him living in the home.   Another referral was generated alleging physical abuse of the children.   Jo. reported father had pushed her against the kitchen wall and refrigerator, causing her to fall on the floor, because she was not cleaning the kitchen the way father wanted her to clean.

The CSW followed up on the referral.   D. reported mother and father disciplined him by making him write standards, standing in the corner and taking away his television privileges.   D. said mother was a good mother to him and his siblings and he felt safe in her care.   Isr. stated his parents made him stand in the corner when he got into trouble and he received prizes and “ ‘chore bucks' ” for completing his chores.   Isr. also described mother as a good mother and indicated he felt safe in her care.

Mother denied the physical abuse allegations and stated the incident in the kitchen started because Jo. was upset her brother was not home and she had to wash the dishes by herself.   Jo. began slamming cabinet doors and making noise.   Father grabbed Jo. by the shoulders and asked her why she was making so much noise and then released her.   Mother speculated that as father released Jo., she must have slipped on something that caused her to fall down.

On August 18, Isr. suffered a left nondisplaced lateral condyle fracture to his arm;  it was reported he suffered the injury while wrestling with D. Subsequently, Isr. told a CSW that he had lied regarding what had happened and that he had sustained the injury when mother was attempting to give him a spanking.   Isr. said mother took him into the bathroom and put down the toilet seat to sit down.   Mother then grabbed Isr. by the left arm and put it behind his back.   When Isr. struggled and tried to turn around, his arm snapped and he felt a pain.   D. said Isr. suffered his injury by falling off his bike.

On December 5, Isr., Isa. and Ja. were forensically examined;  several marks were noted on the children's bodies but were inclusive as to physical abuse.   The forensic evaluation was inconclusive as to whether there had been any physical abuse.   Isr. stated he had been injured when mother inappropriately disciplined him.   The children were detained.

On January 8, 2010, the Department filed a section 300 petition on behalf of Isa. and Ja., alleging mother physically abused Isr. by breaking his left arm.   The Department also filed a section 387 petition on behalf of Jo., D. and Isr. on the same basis.

The January detention report indicated that Isr. had suffered a broken arm in August 2009 and that there had been three explanations for the injury.   Isr. was again interviewed regarding the injury and appeared nervous and fidgety.   Isr. again stated that he broke his arm when mother tried to discipline him and that his older siblings and parents had instructed him to lie about how he obtained the injury.   Isr. was worried that if he told the CSW about the incident, the CSW would tell his parents and he would get a “ ‘whoopin.’ ”   When asked if he felt safe at home, Isr. replied, “ ‘sometimes I do ․ sometimes I don't.’ ”

At the detention hearing, the court found a prima facie case and that the children were minors described by section 300.

The February jurisdiction and disposition report noted that the parents and D. all denied Isr. suffered his injury as a result of mother's corporal punishment and that Isr. had provided conflicting stories over time.   Dr. Thomas Grogan reviewed the materials about the injury.   Dr. Grogan stated the fracture pattern was entirely consistent with a hypertension injury, which he would not expect to occur from twisting the arm around the back;  the more likely etiology of the fracture would be a fall on an outstretched arm.

On March 12, mother and father had 730 Evaluations.   The report indicated mother met diagnostic criteria for major depressive disorder;  the evaluators could not rule out a bipolar disorder diagnosis.   Father did not meet the diagnostic criteria for a major mental illness, but he exhibited poor judgment and insight with regards to his involvement with the Department.

The report indicated there was a high likelihood the children would be physically/emotionally abused by their parents.   The past history of documented physical abuse by mother and the continuing inability of father to accept responsibility and blaming the children for the Department's involvement were factors contributing to the likelihood of continuing abuse.   Mother and father did not have the ability to parent and protect the children.   The report recommended the parents' visits should continue to be monitored and the children should remain in their respective placements under Department supervision.

When interviewing father, it was reported he showed no emotion when previous accounts of the physical abuse of the children were discussed.   Father remained in complete denial regarding both current and past abuse.   Father continued to rationalize that it was the children's “ ‘manipulative behavior’ ” that was responsible for the Department's involvement.   The evaluators noted father's “oblivious attitude” regarding the past five years of documented physical abuse called into question his ability to parent or protect the children.   Regarding Isr.'s broken arm, father could not recall what was explained to him about how the injury had occurred, stating, “ ‘I think they said he was playing.’ ”   The evaluators noted the majority of parents would be able to recall how their child suffered a broken arm.

The evaluation identified several areas of concern regarding reunification—a high risk of future abuse by mother, inability on the part of mother and father to parent and protect the children and the current physical abuse allegations.   The evaluators recommended the two oldest children be reunified, and if no problems or difficulties were reported, the court could then consider returning the remaining children one at a time.   The report indicated:  “If all five children are returned simultaneously family reunification would most likely not succeed.”

On April 12, the Department filed a detention report on behalf of Jo., noting the maternal grandmother, who had custody of Jo., had sent her to stay with her maternal cousin as the maternal grandmother had work obligations.   The cousin lived in Rialto so the placement disrupted Jo.'s schooling.   The maternal grandmother had once again left town for work obligations and left Jo. with her maternal uncle, who had an extensive criminal background and no waivers had been granted.   The Department detained Jo.

On May 4, the Department filed a first amended section 300 petition on behalf of Isa. and Ja. and a first amended section 387 petition on behalf of Jo., D. and Isr., adding an allegation that father abused alcohol and his substance abuse endangered the children.

A June 730 Evaluation was prepared for Jo., D. and Isr. The report indicated the children remained at risk of physical abuse by mother and, if all five children were returned to mother at once, it would overwhelm her.   The report further recommended that father not be allowed to have unmonitored visits due to his ongoing alcohol abuse and his recent abuse of D. and Jo. Isr. had stated that mother and father “ ‘whoop whoever is bad with a belt.’ ”   Isr. again stated mother broke his arm and D. told him to say he suffered his injury when he fell off his bike.   Because of the conflicting reports about Isr.'s injury, it could not be said there was ongoing abuse that resulted in his broken arm;  the report indicated “the most likely cause of Isr.'s broken arm was from physical abuse by the mother.”

The report stated the maternal grandmother suspected father was abusing alcohol, which was substantiated by Jo.;   both stated father had an ice chest that he took with him that contained alcohol.   The evaluator opined father suffered from alcohol abuse and his alcoholism might have contributed to his physical abuse of the children.   The evaluators reported father had poor judgment, was not truthful about his past physical abuse of the children and was in denial about his alcohol abuse.

The June addendum report noted Jo. indicated father drank a lot and always carried an ice chest around that contained a big bottle of alcohol, soda and a shot glass.   Jo. reported father drank alcohol like she drank water.   Jo. doubted she had ever seen father sober as he always acted the same.   The maternal grandmother also stated father had a drinking problem and had an ice chest containing alcohol.

When the CSW attempted to interview D., he curled up in a ball and stated he wanted his mother and wanted to go home.   The Department did not feel it was safe to return the children home and found it disconcerting that despite its supervision, the children continued to report they received corporal punishment in the home.

At the June hearing, on the Department's recommendation, the court dismissed the allegations pertaining to Isr.'s broken arm from the sections 300 and 387 petitions, leaving only the allegations of father's alcohol abuse.

Jo. was called as the first witness.   Jo. testified she was 14 years old and did not feel comfortable around father because of the way he stared at her.   Jo. had seen father drink and carry an ice chest around the house.   The ice chest contained alcohol;  father carried the ice chest “practically everywhere” he went.   Jo. indicated father mostly stayed in mother's room and acted “crazy” and got angry for no reason;  father would start yelling for no reason.   Most of the time when father was drinking, mother was not around and father was taking care of the children.   Jo. wanted to live with mother but not father.   On cross-examination, Jo. testified she had seen the inside of father's ice chest.   When asked how she knew father drank alcohol, Jo. replied, “[b]ecause don't nobody just have alcohol in the ice chest just to be there.”   Mother acted differently and took better care of the children prior to father living with them.   After Jo. testified, the court denied father's section 350 motion.

D. testified he had seen father with an ice chest, which contained alcohol, and he had seen father drinking alcohol a few times.   Sometimes, D. would go into the ice chest without father's permission.

Father testified he drank Presidente Brandy, but only one or two shots on the weekends.   Father did not like the idea of having to submit to alcohol testing because he did not feel as though he had done anything wrong.   Father could not see any benefit in his moving out of the home.   When asked if he would be willing to move out, father replied, “no, no.”   Father stated the children had seen the inside of the ice chest because he had bottled water in it that the children consumed.   The court asked if there was refrigerator in the home, father replied it was strictly for the children.   The court stated that did not make sense and asked why there was no water or soda in the refrigerator, father explained the family only kept food in the refrigerator.

Father stated the court process was a first for him and he found it confusing.   When asked about the initial 2005 petition, father stated he was not charged with anything so he was not involved.   The children's counsel reminded father the allegations he had physically abused Jo. and D. with a belt had been sustained.   Father said, “Yes. Okay. Now, if I—I believe that's when the judge ordered no corporal punishment of those sorts.   If that's in reference to that, then that's what it is.”   Father stated the CSW had not provided him with referrals for alcohol testing or serviced the case in any fashion since 2005 other than providing him with a bus pass.   Father kept the ice chest in mother's room, which had locks on both sides to prevent the children from having access to the room.   Father denied ever drinking in the presence of the children.   Father had the ice chest because he suffered from cerebral palsy and had pain in his joints.

Mother testified she had seen father drunk many years earlier, but not recently.   Regarding maternal grandmother's knowledge of father's drinking, mother never discussed father's drinking with grandmother and grandmother only very seldom had seen father at social gatherings.   Mother admitted Jo. had a problem with father and it might have “a little bit” to do with father's drinking.

The court heard argument from counsel.   The children's counsel stated it was worth noting that even though the children wanted to return home, they were being truthful with the court about father's drinking.   Regarding father's drinking, counsel noted Jo. had seen alcohol and shot glasses and testified father drank while watching the children, and the children had access to the ice chest as D. took items without father's knowledge and the grandmother stated father had a drinking problem.   Counsel asked who was taking care of the children if father was drinking in mother's room.   Counsel argued the court should sustain the allegations and possibly transition the children back to mother's home.

Counsel for the Department suggested that father's alcohol abuse had been present during the entire pendency of the case but had gone unobserved and perhaps it was the “root problem” all along.

The court stated it did not believe father and did not find him credible.   The court questioned why there were rules about drinking if there was not a problem.   The court opined that during the time the children were being physically abused, father might have been drinking and it was not touched upon by the Department.   The court noted, “You just don't carry around alcohol in a cooler.”   The court noted the parents were unaware of how their children felt and stated the case had been ongoing for four years and jurisdiction still had not been terminated because something always came up.

The court sustained the petitions and continued disposition until August.

On July 13 the Department reported that Jo. informed CSW Darter that mother had said “ ‘nasty things' ” to her after a court hearing because of her testimony and accused Jo. of “ ‘ruining the family.’ ”   During a sibling visit when Ja. was acting shy around Jo., mother remarked it was because Ja. could sense evil.   Father and mother had gotten married and father was living in mother's home.

An August last minute information stated the Department had conducted a home visit during which father stated he was attending AA classes from Wednesday through Sunday.

At the August disposition hearing, CSW Darter testified she had been assigned to the case as a generic social worker, meaning she oversaw family maintenance services.   Darter had monthly face-to face visits with the family.   Darter stated that what she wanted from father was alcohol testing and completion of a program, but she had not provided father with any referrals because when she arrived at the latest visit, the time had been miscommunicated and an emergency response (ER) worker had shown up as well.   Darter left so the ER could do her investigation.

Darter recommended the children be returned home in “increments” based on the 730 Evaluations, to which she gave great weight.   The Department had concerns about mother's ability to parent and protect all five children at once.   Darter wanted several programs in place before returning all the children home to mother.   Darter did not feel mother was capable of handling the children and was concerned about mother's recent marriage to father, the parents' desire to have father in the home, and father's alcohol abuse.

Father testified he had attended four AA meetings and was participating in couples counseling.   Father forgot to bring his AA paperwork to court.   Father stated he had a sponsor and had spoken to the deacon at his church about his alcohol abuse.   When asked if had been drinking more over the past few months, father replied he had and instead of one shot, he had two or three.   Father had no place to go if he left mother's home other than his car, but his car was parked in the carport and he could not move it because it was not registered.

Father admitted that he was an alcoholic and that there might be some concern about his drinking based on what he had seen at AA meetings.   Father could relate to what a lot of the people were saying at the AA meetings.   Father had not enrolled in any substance abuse programs and had not started testing.

Mother described her relationship with father as “rocky” prior to the inception of the dependency case in 2005 and she stated she had been told she needed to work things out with father if she wanted her children returned to her.   Mother did not say why the relationship was rocky, only that father was “doing some things that I felt he shouldn't be doing.”   Mother did not believe father posed a risk of harm to the children if he remained in the home and that father was addressing his alcoholism.

The court declared the children dependents under sections 300 and 387.   The court ordered custody of Jo. removed from father and released her to mother's custody.   The court stated it intended to return D. and Isr. to mother when wraparound services were in place.   The court found by clear and convincing evidence there was a substantial danger if Isa. and Ja. were returned to the parents' custody and removed them from both parents.   The court continued the disposition hearing as to D. and Isr. The court ordered family reunification services and ordered father to test and enroll in an alcohol program and to find another place to live.

In September, the court received a report from the Department of Mental Health describing Isr. as a boy who had experienced childhood trauma and been exposed to violence and a chaotic family.   Isr. was demonstrating high levels of aggression and acting out, had attention difficulties, and possibly auditory hallucinations.   The report recommended Isr. take Risperdal and found his placement met his needs.

At the September 29 hearing, the court declared D. and Isr. dependents pursuant to section 387 and removed them from custody of the parents.

Mother and father filed timely notices of appeal from the jurisdictional and disposition orders.

On October 25, the court released D. to mother's custody.²

DISCUSSION

Father contends there was insufficient evidence to support the jurisdiction finding as there was no evidence the children suffered serious physical harm as a result of his drinking one or two shots of brandy on the weekend and insufficient evidence of a substantial danger to support removal from his custody.   Mother contends that even if the father's drinking posed a problem, the court had less drastic alternatives to removal and unjustly ordered that her visits be monitored.  (Father and mother Jo.ined in each other's briefs.)

I. Jurisdiction

At the jurisdiction hearing, after amending the section 300 and section 387 petitions, the court found that father “is a user of alcohol” and mother knew or reasonably should have known, of father's alcohol use and that father's substance abuse and mother's failure to protect placed the children at risk of physical and emotional harm.

In a proceeding on a supplemental petition, a bifurcated hearing is required;  first, a jurisdictional hearing determines whether the allegations of the supplemental petition are true.  (In re Jonique W. (1994) 26 Cal.App.4th 685, 691.)  “The ultimate ‘jurisdictional fact’ necessary to modify a previous placement with a parent or relative is that the previous disposition has not been effective in the protection of the minor.”  (Ibid.)

With regard to the section 300 petition, “ ‘The statutory definition consists of three elements:  (1) neglectful conduct by the parent in one of the specified forms;  (2) causation;  and (3) “serious physical harm or illness” to the minor, or a “substantial risk” of such harm or illness.’   The third element ‘effectively requires a showing that at the time of the jurisdiction hearing the child is at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will reoccur).’  Section 300, ‘subdivision (b) means what it says.   Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness.” ’ ”  (Citations & italics omitted.)  (In re David M. (2005) 134 Cal.App.4th 822, 829;  see also In re Brison C. (2000) 81 Cal.App.4th 1373, 1379 [“ ‘While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.’ ”  (Italics deleted.) ];  In re Janet T. (2001) 93 Cal.App.4th 377, 388 [There must be some reason to believe the acts may continue in the future.].)

“We review the juvenile court's jurisdictional findings for sufficiency of the evidence.”  (In re David M., supra, 134 Cal.App.4th at p. 828.)   This court considers the entire record and does not pass on the credibility of the witnesses, attempt to resolve conflicts in the evidence or weigh the evidence.  (In re James R. (2009) 176 Cal.App.4th 129, 134–135.)   This court looks at the evidence in the light most favorable to and indulges every inference in favor of the court's decision so long as those inferences are the product of logic and reason and rest on evidence and not on mere speculation or conjecture.  (In re R.M. (2009) 175 Cal.App.4th 986, 988–989.)

A. Section 350 Motion

Father argues the court erred in denying his request, pursuant to section 350, subdivision (c) (i.e., the Department did not meet its burden of proof), to dismiss the petition at the close of the Department's case as the only evidence was Jo.'s testimony, which was identical to her statements to the CSW noted in the Department reports.³  Father posits that Jo.'s testimony was insufficient to support a finding of a risk of serious physical harm or that the previous disposition had not been effective.   We disagree.

Father cites the portions of Jo.'s testimony favoring himself, suggesting the evidence only showed he carried brandy in a cooler, the cooler was kept in mother's room, which was locked, he had strict rules about the cooler, and the children could not touch it.   Father posits that what was missing was any evidence any of the children had suffered, or were at risk of suffering, serious physical harm as a result of his drinking “a couple of shots of brandy on the weekend.”   This court looks only at the evidence supporting the juvenile court's findings.  (See In re I.W. (2009) 180 Cal.App.4th 1517, 1526.)   Given the history of father's behavior, as discussed below, it was reasonable for the court to infer father's drinking was a problem all along.  (See In re Stephen W. (1990) 221 Cal.App.3d 629, 642–644.)

As the court noted, if these petitions had been the initial petitions it would not have found the children were at substantial risk.   However, the court had to consider the entire history of this case;  one that had been going on for more than four years.   In the past, the two oldest children had been repeatedly beaten by mother even after repeated admonishments by the court not to use corporal punishment.   The court sustained counts that father had hit the children and was unable to protect them.

Father cites several cases to support his position.   In In re Rocco M. (1991) 1 Cal.App.4th 814, 824–825 in which the court indicated that evidence of the mother's general failure to supervise the child, one instance of physical abuse and the mother having neglected the child in infancy might not support a finding of substantial physical danger.   There was more than one instance of abuse in the instant case;  both parents had repeatedly hit some of the children in the past.   In In re David M., supra, 134 Cal.App.4th at page 830 and In re James R., supra, 176 Cal.App.4th at pages 136–137, the respective appellate courts held that the mere fact of a parent's substance abuse/mental illness or history of suicide attempts was not evidence of a specific harm.   There was more than father's drinking in this case.

In In re J.N. (2010) 181 Cal.App.4th 1010, 1025–1026, the court reasoned:  “In evaluating risk based upon a single episode of endangering conduct, a juvenile court should consider the nature of the conduct and all surrounding circumstances.   It should also consider the present circumstances, which might include, among other things, evidence of the parent's current understanding of and attitude toward the past conduct that endangered a child, or participation in educational programs, or other steps taken, by the parent to address the problematic conduct in the interim, and probationary support and supervision already being provided through the criminal courts that would help a parent avoid a recurrence of such an incident.   The nature and circumstances of a single incident of harmful or potentially harmful conduct may be sufficient, in a particular case, to establish current risk depending upon present circumstances.”   Even though this case involves not a single episode of endangering conduct but a history of physical abuse, some of the same factors are relevant.

Jo. testified that most of the time father was drinking, mother was not around and father was taking care of the children.   Jo. also testified mother was aware of father's drinking and would tell father to stop drinking.   Besides Jo.'s testimony, the court was familiar with the family's long history of abuse.   The family initially came to the attention of the Department in 2006 due to mother's physically abusing the children.   Mother admitted she physically abused her children with a belt.   Even though mother had completed a parenting class and learned strategies to work with her children, she continued to punch, choke, bite and hit the children.   In addition, mother acknowledged father physically abused the children with a belt and would get “ ‘very out of control.’ ”   According to mother, father did not know when to stop “whupping” a child and was “ ‘heavy handed.’ ”   At that time, D. indicated father hit him with a belt in the face, hit him with a wooden stick and choked him.

In January 2009, the Department stated it had received an additional referral for the family that the children were being beaten by father.   The reporting party indicated the parents were unable to control D. and the only way father could control D. was by hitting him.   The children reported there had been at least one incident where mother hit them with a belt.   D. stated father “ ‘whoops us every time,’ ” but then stated father did not actually hit them but had threatened to do so.   In March 2009, after another referral alleged mother whipped Jo. with a belt, and mother admitted doing so.

In June 2010, the Department noted it was disconcerted that despite supervision, the children continued to report they received corporal punishment.

Finally, the report from the 730 Evaluation of mother and father indicated there was a likelihood the children would be physically/emotionally abused by their parents.   The past history of documented physical abuse by mother and the continuing inability of father to accept responsibility and blaming the children for the Department's involvement were factors contributing to the likelihood of continuing abuse.   Mother and father did not have the ability to parent and protect the children.   The report recommended the parents' visits should continue to be monitored and the children should remain in their respective placements under Department supervision.

When interviewing father, it was reported he showed no emotion when previous accounts of the physical abuse of the children were discussed.   Father remained in complete denial regarding both current and past abuse.   Father continued to rationalize that it was the children's “ ‘manipulative behavior’ ” that was responsible for the Department's involvement.   The evaluators noted father's “oblivious attitude” regarding the past five years of documented physical abuse called into question his ability to parent or protect the children.   Regarding Isr.'s broken arm, father could not recall what was explained to him about how the injury had occurred, stating, “ ‘I think they said he was playing.’ ”   The evaluators noted the majority of parents would be able to recall how their child suffered a broken arm.

The evaluators recommended the two oldest children be reunified, and if no problems or difficulties were reported, the court could then consider returning the remaining children one at a time.   The report indicated:  “If all five children are returned simultaneously family reunification would most likely not succeed.”

The June 730 Evaluation prepared for Jo., D. and Isr. reached similar conclusions.   The report indicated the children remained at risk of physical abuse by mother and, if all five children were returned to mother at once, it would overwhelm her.   The report further recommended that father not be allowed to have unmonitored visits due to his alcohol abuse and his recent abuse of D. and Jo. Isr. had stated that mother and father “whoop whoever is bad with a belt.”

The report stated the maternal grandmother suspected father was abusing alcohol, which was substantiated by Jo.;   both stated father had an ice chest that he took with him that contained alcohol.   The evaluator opined father suffered from alcohol abuse and his alcoholism might have contributed to his physical abuse of the children.   The evaluators reported father had poor judgment, was not truthful about his past physical abuse of the children and was in denial about his alcohol abuse.

Given the family's long dependency history, the past physical abuse, and the 730 Evaluations, there was evidence that was more than mere speculation or conjecture that the children were at substantial risk of future physical abuse due to father's drinking.  (Compare In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396–1399.)

B. Jurisdiction Finding

Father also asserts that after the court denied his section 350 motion, no other evidence was presented to show the children suffered serious physical harm as of result of his drinking brandy on the weekends.   It is father's version his drinking was limited to weekends.

Father states he never drank in front of the children.   Both Jo. and D. stated father drank in front of them.   D. stated he had accessed the ice chest without father's permission.   At the disposition hearing, father admitted that he was an alcoholic and that he had not started testing or enrolled in a recovery program.

Thus, there was additional evidence supporting a finding the children were at substantial risk of physical harm due to father's drinking.

II. Removal Order

“The standard for removal on a supplemental petition is the same as removal on an original petition:  the agency must show by ‘clear and convincing evidence ․ [t]here is a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor’ if left in parental custody ‘and there are no reasonable means by which the minor's physical health can be protected without removing the minor from [parental] physical custody.’ (§ 361, subd. (c)(1).)”  (Citation omitted.)  (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1077.)  “On a challenge to an order removing a dependent child from his or her parent, we are limited to whether the order is supported by substantial evidence.”  (Id. at p.1978.)

“These basic guidelines establish that out-of-home placement is not a proper means of hedging against the possibility of failed reunification efforts, or of securing parental cooperation with those efforts.   It is a last resort, to be considered only when the child would be in danger if allowed to reside with the parent.   The law requires that a child remain in parental custody pending the resolution of dependency proceedings, despite the problems that led the court to take jurisdiction over the child, unless the court is clearly convinced that such a disposition would harm the child.   The high standard of proof [i.e., clear and convincing] by which this finding must be made is an essential aspect of the presumptive, constitutional right of parents to care for their children.”  (In re Henry V. (2004) 119 Cal.App.4th 522, 525.)   The substantial evidence test applies to determine the existence of the clear and convincing standard of proof.”  (Id. at p. 529.)

The parents argue that there were reasonable alternatives to removal and the court could have exercised the broad powers set forth in section 362.   Mother suggests family maintenance services would have obviated the need for removal, i.e., leaving the children in her care, ordering father out of the house, and ordering intensive in-home services.

Father states that since the jurisdiction hearing, he had sought treatment for his drinking and stopped drinking such that the children could have been returned to him under strict supervision, i.e., he could have been allowed to remain in the home under the supervision of the Department and mother and notes the CSW knew next to nothing about the parents' current circumstances.   Father cites In re Henry V., supra, 119 Cal.App.4th at page 529, in which the appellate court reversed the disposition order after noting the juvenile court had not mentioned alternatives to out-of-home placement even though it checked the appropriate box on the form.   Father suggests that similarly, in the case at bar, there was no evidence reasonable efforts had been made to prevent removing the children from the parents' custody.

By the disposition hearing, there was evidence that both Jo. and D. had seen father drinking alcohol, the maternal grandmother described father as having an alcohol abuse problem, the evaluators opined father suffered from alcohol abuse and father had admitted to being an alcoholic.   Jo. reported father drank while supervising her and her four younger siblings.   Father had just acknowledged his alcoholism, and attended a few AA meetings, but he had not started to test or enrolled in an alcohol program.   The 730 Evaluations of the parents and the three oldest children corroborated father's alcoholism and the fact the parents could not parent or protect the children.   Thus, the court could reasonably infer that father's drinking placed the children at risk of future harm as father could not properly supervise or protect the five children.   The evaluations also provide support for the court's order for monitored visits.

III. ICWA Notice

A. Background

In January 2006, the maternal grandmother disclosed there might be Sioux, Chickasaw and Cherokee heritage on the maternal side of the family.   The ICWA notices dated Ja.nuary 9, 2006, were addressed to the BIA (Bureau of Indian Affairs), Secretary of the Interior (Secretary), and the Cherokee, Chickasaw and Sioux tribes.   The notices listed the parents' names, addresses, and dates and places of birth;  the maternal grandmother's name and address;  and the names of the maternal great-grandmother, maternal great-great-grandmother, the paternal grandmother's name and date of birth, and the paternal great grandfather's name.   According to the notices, mother had Indian heritage on the maternal side of her family, and father had Indian heritage through his paternal grandfather.⁴

Notices with the same information were sent to the same tribes in February 2006.   Either signed return receipts and/or responses were received from the BIA, the Secretary and all tribes except the Shakopee Mdewakanton Sioux Community in Minnesota (Shakopee Community).   On March 8, 2006, the court found ICWA did not apply to this case.

At the October 2007 detention hearing for Isa., mother again stated that she had American Indian heritage and believed it was Cherokee and that her mother would know the information.   The court ordered the Department to investigate.   Thereafter, the CSW reported mother stated she did not have any information regarding her Indian heritage.   The same information as contained in the prior notices was sent to the same tribes regarding Isa. The maternal grandmother confirmed that to the best of her knowledge, the information was accurate.   Those notices contained no information on the relatives except for their names.   As before, signed return receipts or responses were received from all the recipients except the Shakopee Community.

At the November 2007 detention hearing for Ja., the court ordered the Department to continue to investigate mother's Indian heritage and provide notice.   At the November 30 hearing, the court noted it had previously made ICWa findings and ordered the Department to investigate Ja.'s Indian heritage.   When the fourth round of ICWA notices was sent in February 2008, they listed the maternal grandmother's name, but no date of birth, the maternal grandfather's name, but no date of birth, the maternal great-grandmother's name, and information on the paternal grandparents and great grandparents.

When new petitions were filed in January 2010, mother stated she might have Indian heritage with either the Cherokee or Cheyenne tribes through the maternal great-grandmother.   Father reported he had no Indian heritage as far as he knew.   Fifth ICWA notices were mailed to the BIA, the Secretary, and three Cherokee tribes.   These notices listed the names, birth dates and birth places of the maternal grandmother and maternal grandfather, and the names of the maternal great-grandmother and maternal great-grandfather.   Despite being included on earlier notices, mother's birth date and father's birth place were now listed as unknown.

B. Inadequate Notices

The notice requirements of ICWA are mandatory and strictly construed.  (In re Robert A. (2007) 147 Cal.App.4th 982, 989.)  “The notice sent to the Indian tribes must contain enough identifying information to be meaningful.”   (Ibid.) The burden is on the agency to provide all known information to the tribe, particularly that of the person with the alleged Indian heritage.   (In re Louis S. (2004) 117 Cal.App.4th 622, 630.)  “The trial court's finding that ICWA notice was adequate is reviewed for substantial evidence.”   (In re J.T. (2007) 154 Cal.App.4th 986, 991.)

Federal regulations provide that proper ICWA notice shall include:  (1) the name of the Indian child, the child's birth date and birthplace;  (2) name of the Indian tribes in which the child in enrolled or might be eligible to be enrolled;  (3) names and addresses of the child's parents, grandparents, great grandparents and other identifying information.  (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.)

In sum, the first four ICWA notices did not contain the critical information on the maternal grandparents, i.e., their dates and places of birth, contained in the fifth notices.   The fifth ICWA notices were not sent to the Cheyenne tribes.   Thus, it appears the Department failed to properly investigate mother's Indian heritage despite twice being ordered to do so by the court.   (See In re Jennifer A. (2002) 103 Cal.App.4th 692, 705;  In re Shane G. (2008) 166 Cal.App.4th 1532, 1539 [further inquiry includes interviewing “extended family members or any other person who can reasonably be expected to have information concerning the child's membership status or eligibility.”].) The record contains no explanation for eliminating notice to the Chickasaw and Sioux tribes from the fifth round of notices.

Accordingly, the court is directed to order the Department to investigate mother's alleged Indian heritage, determine through which tribes mother is claiming Indian heritage, and gather all current information about the connecting relatives and then to notice those tribes with all current information.

DISPOSITION

The jurisdictional and dispositional orders are conditionally affirmed and the matter is remanded to the juvenile court with directions to direct the Department to comply with the notice provisions of ICWA. After proper notice under ICWA, if the children are determined to be Indian children and ICWA applies to these proceedings, the parents are entitled to petition the juvenile court to invalidate orders which violated 25 United States Code sections 1911, 1912, and 1913.  (See 25 U.S.C. § 1914;  Cal. Rules of Court, rule 5.486.)

We concur:

FOOTNOTES

FN1. Unless otherwise noted, all statutory references are to the Welfare and Institutions Code..  FN1. Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.

FN2. Thus, D. is no longer a subject of these appeals..  FN2. Thus, D. is no longer a subject of these appeals.

FN3. The court sustained father's objection to the statements of the maternal grandmother and Dr. Stoneking (one of the evaluators) as they were not available for cross-examination..  FN3. The court sustained father's objection to the statements of the maternal grandmother and Dr. Stoneking (one of the evaluators) as they were not available for cross-examination.

FN4. Father states he did not address the sufficiency of the ICWA notice as to himself noting that throughout these proceedings, it was reported he had no Indian heritage.   Initially, father stated he had Indian heritage through his paternal grandfather.   However, in January 2010, father stated he did not have any Indian heritage..  FN4. Father states he did not address the sufficiency of the ICWA notice as to himself noting that throughout these proceedings, it was reported he had no Indian heritage.   Initially, father stated he had Indian heritage through his paternal grandfather.   However, in January 2010, father stated he did not have any Indian heritage.

PERLUSS, P. J. JACKSON, J.