as: 123 Cal.App.4th 16, 19 Cal.Rptr.3d 752)
of Appeal, Third District, California.
re KENNETH M. et al., Persons Coming Under the Juvenile
County Human Services Agency, Plaintiff and Respondent,
J., Defendant and Appellant.
for Partial Publication.
Pursuant to California Rules of Court, rule 976.1, this opinion
is certified for publication with the exception of Part II
of the DISCUSSION.
Rehearing Denied Nov. 3, 2004.
Review Denied Feb. 2, 2005.
Caroline J. Todd, under appointment by the Court of Appeal
for Defendant and Appellant.
Ronald S. Erickson, County Counsel and Richard Stout, Deputy County
Counsel for Plaintiff and Respondent.
SIMS, Acting P.J.
Angel J. (appellant), the mother of Kenneth M. and Katie M. (the minors),
appeals from ordersof the juvenile court terminating her parental rights.
[FN1] (Welf. & Inst.Code, §§ 366.26, 395; undesignated
statutory references are to the Welfare and Institutions Code.) Appellant
contends the orders terminating her parental rights must be reversed because
the juvenile court erred in denying her reunification services and by
failing to ensure compliance with the notice requirements of the Indian
Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) [FN2]
Agreeing with the latter claim only, we shall reverse the orders
and remand the matter to the juvenile court for further proceedings.
On June 24, 2004, this court dismissed an appeal by
Kenneth M., the father of the minors, from orders terminating
his parental rights for failure to file an opening brief.
Appellant's claim is cognizable in this appeal because she raised
an identical claim in a petition for extraordinary relief, which
was denied summarily by this court. (§
366.26, subd. (l
G. v. Superior Court
(1995) 38 Cal.App.4th 1501, 1514, 45 Cal.Rptr.2d 805.) We take
judicial notice of the record in that case, Kenneth
M. et al. v. Superior Court
(Jan. 9, 2004, C045433) (nonpub.opn.), pursuant to Evidence Code sections
452, subdivision (d)(1), and 459.
FACTUAL AND PROCEDURAL BACKGROUND
On May 28, 2003, Sutter County Human Services Agency (HSA)
filed original juvenile dependency petitions pursuant to section 300 on
behalf of the minors. Those petitions alleged Katie had been
the victim of child abuse, resulting in the minor's suffering
head and eye injuries. The petitions also alleged there was
a substantial risk Kenneth would be abused, and that domestic
violence occurred in the home. At the jurisdictional hearing, the
juvenile court sustained the petitions in most respects.
In a June 2003 report, the social worker noted the
ICWA might apply. At a September 2003 hearing, appellant told
the juvenile court that her now-deceased grandfather was Indian. According
to appellant's grandmother, who was at the hearing, the grandfather
was Cherokee Indian, from Oklahoma, and the grandmother had his
"roll card" at her home. The grandmother agreed to send
a copy of the roll card to HSA. Thereafter, HSA
reported it had not received any information.
Concluding that either appellant or the father of the minors
had inflicted the injuries on Katie, HSA recommended the juvenile
court deny appellant reunification services. According to the social worker,
"[a]s KATIE suffered *19
severe physical abuse, likely by one of her parents or
possibly by someone they left KATIE in the care of,
this Department does not believe that the children would be
safe in the parent's [sic]
care. As KATIE's abuser has not been identified and she
suffered this abuse while in the care of her parents,
this Department cannot ensure that the children would be safe
with their parents. [¶]
The parents have been involved with this Department for approximately
five months, and have made little to no progress in
addressing the issues which brought them to the attention of
the Court. Neither of the parents has addressed their anger
issues, co-dependency issues, substance abuse issues or parenting needs. Other
visiting, the parents have shown very little motivation to reunify
and clearly do not have an understanding of the
severity of this Case or seriousness of KATIE's injuries. This
Department does not believe that there are any services which
could be put in place to ensure the safety of
At the conclusion of the November 2003 dispositional hearing, the
juvenile court denied appellant reunification services for Katie pursuant to
section 361.5, subdivision (b)(5), and for Kenneth pursuant to subdivision
(b)(6) and (7). According to the court, Katie's injuries were
inflicted either by appellant or by the minors' father. The
court also denied a request by appellant for a psychological
evaluation of appellant. Finally, the court found reunification services would
not be in the best interests of the minors.
On December 11, 2003, appellant filed a petition for extraordinary
relief. In that petition, appellant argued the juvenile court erred
in denying her reunification services. On January 9, 2004, this
court denied the petition by order.
On October 15, 2003, HSA sent notices of the dependency
proceedings by certified mail to United Keetoowah Band, Eastern Band
of Cherokee Indians, and Cherokee Nation of Oklahoma. Only one
of those three tribes, Eastern Band of Cherokee Indians, responded
to the notices. That tribe advised HSA that neither minor
was registered or eligible to register as a member of
the tribe. Thereafter, in its March **755
2004 report, HSA concluded ICWA did not apply to the
At the March 4, 2004, section 366.26 hearing, appellant objected
to the recommendation to terminate her parental rights. Instead of
adoption as the permanent plan for the minors, appellant suggested
the juvenile court establish a guardianship of the minors. At
the conclusion of the hearing, the court found it likely
the minors would be adopted and ordered appellant's parental rights
Appellant contends the
juvenile court erred in denying her reunification services. According
to appellant, the court cannot base its denial of services on subdivision
(b)(5) and (6) of section 361.5, as it failed to determine that it was
appellant who inflicted the injuries on Katie. Moreover, appellant argues,
the court should have ordered a psychological evaluation that would have
assisted the court in its decision whether to grant appellant services.
In enacting subdivision (b) of section 361.5, the Legislature has
recognized that under some circumstances it may be futile to
offer a parent reunification services. (Karen
S. v. Superior Court
(1999) 69 Cal.App.4th 1006, 1010, 81 Cal.Rptr.2d 858.) At the
time of the dispositional hearing in this case, subdivision (b)
of section 361.5 provided: "Reunification services need not be provided
to a parent or guardian described in this subdivision
when the court finds, by clear and convincing evidence, any
of the following: [¶]
(5) That the child was brought within the jurisdiction of
the court under subdivision (e) of Section 300 because of
the conduct of that parent or guardian. [¶]
(6) That the child has been adjudicated a dependent pursuant
to any subdivision of Section 300 as a result of
severe sexual abuse or the infliction of severe physical harm
to the child, a sibling, or a half-sibling by a
parent or guardian, as defined in this subdivision, and the
court makes a factual finding that it would not benefit
the child to pursue reunification services with the offending parent
or guardian. [¶]
(7) That the parent is not receiving reunification services for
a sibling or a half-sibling of the child pursuant to
paragraph (3), (5), or (6)."
Subdivision (i) of section 361.5 states: "The court shall read
into the record the basis for a finding of severe
sexual abuse or the infliction of severe physical harm under
paragraph (6) of subdivision (b), and shall also specify the
factual findings used to determine that the provision of reunification
services to the offending parent or guardian would not benefit
Section 300, subdivision (e) provides for jurisdiction over the minor
where: "The child is under the age of five and
has suffered severe physical abuse by a parent, or by
any person known by the parent, if the parent knew
or reasonably should have known that the person was physically
abusing the child. For
the purposes of this subdivision, 'severe physical abuse' means any
of the following: any single act of abuse which causes
physical trauma of sufficient severity that, if left untreated, would
cause permanent physical disfigurement, permanent physical disability, or death; any
single act of sexual abuse which causes significant bleeding, deep
bruising, or significant external or internal swelling; or more than
one act of physical abuse, each of which causes bleeding,
deep bruising, significant external or internal swelling, bone fracture, or
unconsciousness; or the willful, prolonged failure to provide adequate food.
A child may not **756
be removed from the physical custody of his or her
parent or guardian on the basis of a finding of
severe physical abuse unless the social worker has made an
allegation of severe physical abuse pursuant to Section 332."
In this case, the juvenile court found subdivision (b)(5) of
section 361.5 applied to appellant as to Katie and that
subdivision (b)(6) and (7) of that section applied as to
Kenneth. The court noted that, as to Katie, it had
established jurisdiction pursuant to section 300, subdivision (e). The court
also stated that either appellant or the father of Katie
was the abusive parent.
Appellant asserts that the record does not support denial of
reunification services based on section 361.5, subdivision (b)(6), as that
provision requires identification of the perpetrator and subdivision (i) requires
findings not made by the juvenile court here. Appellant is
correct. By its express terms, subdivision (b)(6) applies to the
parent who inflicted severe physical harm to the minor. Moreover,
section 361.5, subdivision (i) imposes on the juvenile court the
duty to state the basis for its findings. Neither of
those circumstances is present in this case. Accordingly, denial of
services cannot be predicated on subdivision (b)(6). (In
re Rebekah R.
(1994) 27 Cal.App.4th 1638, 1651-1652, 33 Cal.Rptr.2d 265.)
Section 300, subdivision (e), and subdivision (b)(5) of section 361.5,
however, do not require identification of the perpetrator. (In
(2003) 108 Cal.App.4th 659, 667, 670, 133 Cal.Rptr.2d 740.) Read
together, those provisions permit denial of reunification services to either
parent on a showing that a parent or someone known
by a parent physically abused a minor. (Id.
at p. 670, 133 Cal.Rptr.2d 740.) Thus, "conduct" as it
is used in section 361.5, subdivision (b)(5) refers to the
parent in the household who knew or should have known
of the abuse, whether or not that parent was the
actual abuser. Here, as we have seen, Katie was the
subject of section 361.5, subdivision (b)(5).
Under subdivision (b)(7) of section 361.5, the juvenile court may,
as it did in this case, deny reunification services in
connection with a sibling of the minor who was the
subject of subdivision (b)(5). In this case, Katie was the
minor who was the victim of severe physical abuse; the
based its denial of services as to her under subdivision
(b)(5). Thereafter, the court also denied services pursuant to subdivision
(b)(7) as to Kenneth. The record supports those findings. (Cf.
H. v. Superior Court
(2001) 91 Cal.App.4th 501, 505, 110 Cal.Rptr.2d 665.)
We reject appellant's claim that
she was entitled to a psychological evaluation. Neither statute
nor case law supports her claim. It is within the discretion of
the juvenile court to order such an evaluation. Here, in light of the
circumstances underlying the dependency proceedings, the lack of progress
made by appellant generally, and the social worker's testimony that appellant
would not benefit from services, the court did not abuse its discretion
in denying appellant's request for a psychological evaluation.
See footnote *, ante.
The orders terminating appellant's parental rights and selecting adoption as
the permanent plan for the minors are reversed, and the
matter is remanded for the limited purpose of providing notice
to all three Cherokee tribes, in compliance with **757
Indian Child Welfare Act requirements as explained in the Guidelines
for State Courts.
Specifically, as stated in Guidelines for State Courts, section B.2(b),
"The court shall send the notice specified ... to each
such tribe. The notice shall specify the other tribe or
tribes that are being considered as the child's tribe and
invite each tribe's views on which tribe shall be so
designated." (Guidelines for State Courts; Indian Child Custody Proceedings, 44
Fed.Reg. 67586-67587 (Nov. 26, 1979).)
If, after proper notice, the Cherokee tribes either do not
respond or determine that the minors are not Indian children
with respect to the Cherokee tribes, the juvenile court shall
reinstate the orders.
However, if any of the tribes determine the minors are
Indian children with respect to the Cherokee tribes, the juvenile
court shall hold a new dispositional hearing and a new
Welfare and Institutions Code section 366.26 hearing in conformance with
all provisions of the Indian Child Welfare Act.
We concur: RAYE and BUTZ, JJ.