Los Angeles County Department of Children & Family Services v. Eric D. (110 Cal. App. 4th 214, 2003)

Opinion

JOHNSON, J.

Eric D. (father) appeals from the juvenile court’s dispositional order removing his two children from his custody. Father asks this court to reverse the order based on his contentions; (1) the Los Angeles County Department of Children and Family Services failed to comply with the notice requirements of the Indian Child Welfare Act, (2) the court abused its discretion when it denied father’s Marsden motion, (3) there is insufficient evidence supporting the court’s, decision to remove the children, and (4) there is insufficient evidence supporting the court’s finding father has a history of drug and alcohol use.

In the published portion of the opinion, we hold notice to a tribe under the Indian Child Welfare Act (ICWA) must include, among other things, the categories of information set forth in the Bureau of Indian Affairs Guidelines (Guidelines) at 25 Code of Federal Regulations part 23.11(d)(3) (2003), if such information is known, including, but not limited to, the name of a child’s grandparents. We find the Department of Children and Family Services has complied with the notice requirements of the ICWA in this case.

In the unpublished portion of the opinion, we find there is insufficient evidence to support the juvenile court’s jurisdictional finding regarding drug and alcohol use. Accordingly, we reverse this finding and the dispositional order to the extent the order includes a substance abuse component. We affirm the dispositional order in all other respects, and reject father’s Marsden challenge.

FACTS AND PROCEEDINGS BELOW

On September 14, 2001, the Los Angeles Sheriff’s Department took father’s children into protective custody based on allegations of physical abuse by father. The same day, deputies and a social worker interviewed the children, M. (age 7), and C. (age 8).

According to the detention report, M. said father “slapped him in the cheek and eye causing him to suffer a black eye and fall to the ground” on September 10, after father discovered M. had been hiding notes from his teacher. M. said father kept him out of school for three days because he did not want anyone to see the black eye. M. also said father kicked him on the legs and hit him on his buttocks with a belt the same day. At the time of the interview, M. had bruising and swelling around his left eye, “a one-inch abrasion on his back” and “two horizontal marks across his buttocks.” M. recounted another incident of abuse which occurred when he was helping his father with a chore. M. said “father smacked him in the mouth causing his tooth to bleed,” and hit him on the forehead with father’s head, because M. did not understand and follow father’s directions. M. said father told him not to talk to social workers or “the cops.”

C. said father also told her not to talk to social workers and not to open the door if a social worker comes to the house with the police. During the interview, C. denied M. had a black eye and she “tried to convince [M.] that father did not hit him.” C. said “sometimes father hits her on the head and causes her to lose her balance and fall to [the] ground.” She recounted an incident which she said occurred around January 2001 when “father ‘smacked’ her in the head and started kicking her” when she burned some noodles she was cooking. C. said she was stirring the noodles when father hit her on the head and this caused her to bum her arm and hand. C. showed the social worker a scar on her arm which she said resulted from this incident. C. said when she was five years old father also hit her and kicked her when “she was stirring the food and she was not doing it right.”

Father denied M. had a black eye, but said “he did see a scratch near [M.’s] eye that might have come from their dog.” Father said he disciplined M. for hiding the notes by standing him in the comer. He said he kept M. out of school for a few days and brought M. to work with him “to give [M.] a ‘one on one, bonding time’ ” with father and to encourage M. “to get an education so he does not have to work two jobs like father does.” Father explained the children had no contact with their mother. He said they were taken away from her about five years before because they were malnourished and were living in a dirty home. Father said that as a result of a prior dependency case, he attended two parenting classes.

In a subsequent interview on September 17, 2001, C. said she wanted to tell the judge: “Dad’s spanking us a lot. He’s always putting us in the comer...” She also told the interviewer: “[Dad]’s being mean to us sometimes.” M. said he wanted to tell the judge about the incident discussed above when he was doing a chore incorrectly and father “bumped his head into” M.’s head and “smacked” M. in the mouth, causing his tooth to bleed.

On September 19, 2001, the Department of Children and Family Services (DCFS) filed a petition under Welfare and Institutions Code section 300, subdivisions (a) and (b), alleging father physically abused and neglected C. and M. The petition also alleged father has a history of using drugs and alcohol, which renders him “incapable of providing regular care for the children” and endangers the children’s “physical and emotional health and safety and creates a detrimental home environment.” A social worker from San Luis Obispo, who had dealt with this family in the past, reported “there were allegations of drug and alcohol abuse for mother and father” in a prior dependency case.

On September 19, father appeared at a detention hearing and the juvenile court appointed counsel for him. The court found DCFS had made a prima facie case for detaining C. and M. and ordered them placed in foster care. The court also ordered reunification services and monitored visits for father. At the hearing, father reported the children’s paternal grandfather, who is deceased, was of Blackfeet heritage. The court appointed an expert to determine whether the “case falls within the Indian Child Welfare Act [ICWA].” Mother later reported her paternal grandparents, who are deceased, “had Cherokee American Indian heritage.”

DCFS sent notice of the proceedings under the ICWA to the Bureau of Indian Affairs (BIA), the Blackfeet Tribe, the Eastern Band of Cherokee Indians, the Cherokee of South East Alabama and the Cherokee Nation of Oklahoma. DCFS used a preprinted form issued by the State of California Health and Welfare Agency and the California Department of Social Services entitled “Notice of Involuntary Child Custody Proceeding Involving an Indian Child” (form SOC 319).

DCFS also asked the BIA to confirm the children’s status with the Blackfeet and Cherokee Tribes. For this purpose, DCFS used another preprinted form issued by the State of California Health and Welfare Agency and the California Department of Social Services entitled “Request for Confirmation of Child’s Status as Indian” (form SOC 318). This form includes a space for identifying a child’s grandparents. DCFS did not provide this information to the BIA even though father had given DCFS the name of the children’s paternal grandfather and had represented the grandfather was of Blackfeet heritage.

In November 2001, DCFS prepared a jurisdictional/dispositional hearing report which updated the juvenile court on father’s criminal case resulting from the September 10 incident of alleged physical abuse. On October 19, the criminal court ordered father to stay at least 100 yards away from C., M., and their babysitter. Before this order, father had visited and called the children regularly.

The same hearing report discusses a social worker’s interview with C. and M. on October 29, 2001. When asked about the incidents of physical abuse, C. responded: “[M.] was put in the comer ... kicked in the leg, 1 black eye, smacks us in the head, smacks us on the bottom with a hand, with a belt, or he used comer and some nights he leaves us there all night, standing there facing the wall and I fall asleep on the rag. We never get any sleep. [Sic.]” C. said sometimes her father tells her and M. to pull their pants and underwear down before he spanks them. C. said she has gotten “a few bruises on [her] butt but [father] doesn’t care.” C. told the social worker: “I still want to live with my Dad if he don’t spank us, hit us, yell at us, and he doesn’t smack us or put us in the comer. That’s what I want him to tell the Judge. If he doesn’t keep his promise, I want to go back to foster care. I’ll tell the nurse to tell the social worker to get us in foster care again.”

M. told the social worker father slapped him in the face about a thousand times. He also said father sometimes smacks C. on the head, “flick[s]” both of them on the neck, hurts their feelings and keeps them in the comer all night. M. said he wanted to live in the foster home and visit father.

The hearing report also contains information about father’s alleged drug and alcohol use. C. told a social worker she had not seen her father use alcohol or drugs. Later C. said her father “had green bottles and drunk some ([C. ] showed the height of a beer bottle).” Finally, C. said her father did not drink from the green bottles, but “he gave some to his friends.” M. said father “used to drink wine with friends,” but he doesn’t drink wine anymore. The children’s mother told a social worker father “smokes Marijuana and drinks.” Mother also reported “she saw alcohol bottles.” Mother admitted she used to have a drug problem, and she said father had a drug problem in the past as well.

DCFS submitted documents to the juvenile court from the family’s prior dependency case in San Luis Obispo. Social workers reported there “d[id] not appear to be any threat to the children’s well-being in [father]’s home.” In late 1997, the court awarded sole legal and physical custody of the children to father and terminated jurisdiction.

On November 21, 2001, father pleaded no contest to one misdemeanor count of inflicting injury upon a child based on the September 10 incident of abuse on M. The court convicted father and placed him on summary probation for three years. The court also ordered father to complete 30 days of community service, pay a restitution fine, attend a 52-week parenting program and refrain from using excessive force on C. and M.

On March 25, 2002, the day of the disposition hearing, father asked the juvenile court to relieve his counsel. The court had appointed this attorney for father on November 7, 2001, after father’s first attorney determined there was a conflict of interest. The juvenile court conducted a Marsden hearing and denied father’s request for new counsel.

At the disposition hearing, DCFS submitted on the papers. Father presented the juvenile court with a notebook of evidence he had compiled, and the court received it into evidence. The notebook contained father’s responses to statements in the reports and the allegations against him, letters from witnesses who saw M. around September 10 and said he did not have a black eye, awards and certificates he and the children had received, and pictures of the children. Father did not call any witnesses.

The court decided father’s notebook of evidence “raise[d] a substantial question” as to whether M. had a black eye on September 10 and 11, 2001. Accordingly, the court struck an allegation in the petition concerning the black eye. Considering all of the documents in the record and father’s misdemeanor conviction for inflicting injury on a child, the court found substantial evidence demonstrating father inappropriately disciplined C. and M. Therefore, the court sustained the following allegation: “[0]n prior occasions, minors’ father excessively and inappropriately disciplined the children [C.] and [M.] [