1

Filed 10/13/15 In re Anna S. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT
DIVISION FIVE

In re ANNA S., a Person Coming Under the Juvenile Court Law.

MENDOCINO COUNTY DEPARTMENT OF A142760 SOCIAL SERVICES, (Mendocino County Plaintiff and Respondent, Super. Ct. No. SCUKJVSQ141700701)

v. G.S.,
Defendant and Appellant

.

_______________________________________ ___ /

L .S. (mother ) and G.S. (father) appeal from the juvenile court’s dispositional order placing their daughter, Anna S. , in foster care pursuant to Welfare and Institutions Code
section 361 , subdivision (c)

. 1 Mother contends the court erred by removing Anna from
her car e because she “made significant progress in her services and could provide a safe and loving home.” Father contends the Mendocino Department of Social Services (Department) and the court failed to comply with the Indian Child Welfare Ac t (25 U.S.C. § 1901 (ICWA))

.

1 Unless noted, all further statutory references are to the Welfare and Institutions Code. We limit our recitation of facts relating to father to those relevant to the issue he raises on appeal.2

We affirm.
FACTUAL AND PROCEDURAL BACKGROUND Detention, Jurisdiction, and Disposition Anna was born in May 2014. About a week later , the Department filed a section 300 petition . The operative petition alleged Anna came within section 300, s ubdivision (b) because : (1) mother and father (collectively, parents) ha d a “violent” relationship and

were “unable to provide Anna with a home free from the negative effects of violence [;]” and (2) mother ha d “substance abuse issues” inhibiting her parent ing and s he and Anna tested positive for marijuana when Anna was born. Father was arrested at the hospital for “domestic violence.” According to the detention report, father “had beaten [mother] up twice whi le she was pregnant” with Anna

— m other had tw o b l ack e yes during her pregnancy and scars
where father had bit ten her. Mother drank alcohol and used marijuana while pregnant

. At the May 2014 detention hearing, t he court detained Anna and placed her in foster care

. The Department’s jurisdictional re port recommended declaring Anna a dependent and chronicled parents’ extensive domestic violence

. Parents submitted to jurisdiction and
the court declared Anna a dependent (§ 300, subd. (b))

. According to the Department’s July 2014 dispositional report
, mother “engaged

q uite quickly” in her case plan. S he: (1) attended drug counseling, individual therapy, and a women’s empowerment group; (2) worked part time; (3) tested negative for drugs; and (4) visited Anna regularly and the visits went “very well.” The Department, however, recommended Anna remain in foster care and parents receive reunification
services because they “ had some mental health issu es and domestic violence that [do] not allow them to work together productively. They have

. . . not recog nized [Anna’s] need for peace of mind and safety to be of equal importance. Both parents have undefined mental health issues that keep them from being able to make definitive decisions about safely parenting their child. If they benefit from treatment an d can get beyond these issues, they have the ability to be very good parents.”3

At the August 2014 dispositional hearing, the social worker testified mother had “done really well” on her case plan and had the ability to “be an amazing mother.”
Mother c oo perated with the Department , e ngaged quickly in the majority of services
offered to her
, s ought out a therapist on her own , started working
, and tested negative for drugs. During visits, mother was “ wonderful” with Anna. Mother’s therapist
recommended re turning Anna to mother. A restraining order prohibited father from contacting mother. The social worker opined, however, it was “too early” to return Anna to mother
because “ [ t ] here was significant domestic violence ” between parents and they had not

“ h a d enough time to be able to resolve that and learn how to deal with those behaviors.” 2
Their f ighting caused mother to go into labor premature ly; the social worker feared Anna would “ get injured” if parents f ough t again , presenting a substantial risk of harm to Anna

. Mother needed “ counseling around the domestic violence” because she apparently had
communicat ed with father and “ need [ ed ] a longer period” of making “better choices” to demonstrate she understood and accepted the pattern of domestic violence in her relationship with father and other men in her life. A ccording to the social worker, A nna could be returned to mother in three months if mother stayed involved in her women’s empowerment group and dealt with fat her appropriately

. Mother describe d her relationships involving domestic violence , including with
father. Mother had previously denied being in an abusive relationship with father and “minimized” the domestic violence in that relationship , but now acknowledged it

. Mother was learning how to avoid abusive relationship s. She also des cribed her living
situation and support network. When questioned by the court, mother conceded lying to a police officer a few months before the dispositional hearing and to hitting herself. Mother had stoppe d hitting herself and was “working with ways to cope.”

2 The social worker was also concern ed a neckl ace An na wore was a choking hazard but the domestic violence was her “main” reason for opposing Anna’s return to mother at the dispositional hearing

.4

T he court ordered Anna placed in foster care , concluding by clear and convincing
evidence there wa s a “ substantial danger to Anna’s physical health, safety, protection , or physical or em otio n a l well

- b e ing ” if she were returned home. The court also determined there were “no reasonable alternative means to protect Anna.” The court commended
mother on her progress, but explained “there’s a lot of things that [mother] was saying three months ago that d on’t jive with what she’s say ing today. And she’s a 29

- year

- old woman who lived a large part of her life saying and doing certain things. And for me to believe the complete turn around in ten weeks, I don’t find it credible.” The court noted
mother was involved in relationships involving escalating domestic violence from age 17
to 29 and declined help even while pregnant with Anna

. Additionally, the court expressed concern about mother’s self

- harming behavior. It concluded the risks to Anna

were “ too g reat to warrant a return home today.”
ICWA Notice
At the May 2014 detention hearing, father claimed his father

— Anna’s grandfather

— is Cherokee and his paternal grandmother

— Anna’s great

- grandmother

— is “100 percent ” Cherokee

. Father stated, howeve r, that he is not an enrolled
Cherokee tribe member. Shortly after the detention hearing, f ather’s mother , Karen, told the Department the grandfather’s first and last name (Bret H.) , date of birth, and place of
residence

. Karen also told the Department t he great

- grandmother’s name w as “Sharon

- - ”
and she lived in New York. The Department sent ICWA notices shortly before the August 2014 disposition hearing. In Au gust 2014, seven of the noticed tribes , including the Cherkoee tribes, responded that Anna was not an Indian child within the meaning of
ICWA and was not eligible for membership (25 U.S.C. § 1903(4))

. At an October 2014 hearing, the court determined ICWA did not apply. The Appeal and Subsequent Proceedings Mother and father appealed from the dis positional order. In late 2014, the Department returned Anna to mother under a family maintenance plan. In September 2015, the court dismissed the dependency and returned Anna to mother. We take judicial5

notice of the December 5 , 2014 order returning An na to mother and the September 17, 2015 order terminating dependency jurisdiction and granting custody of Anna to mother.
DISCUSSION
I. Substantial Evidence Support s Anna’s Removal from Mother
Mother contends the court erred by removing Anna from her cu stody and placing
her in foster care. Under section 361, subdivision (c)
, children “ ‘ shall not be removed
from the h ome in which they are residing a t the time of the petition unless there is clear and convincing evidence of a substantial danger to the chi ld ’ s physical health, safety, protection, or physical or emotion al well

- being and there are no “ reasonable means ” by which the child can be protected without removal. ’ ” ( In re Henry V. (2004) 119 Cal.App.4th 522, 528 .) “‘We review an order removing a chi ld from parental custody for substantial evidence in a light most favorable to the juvenile court findings. [Citations.]’ ” ( In re A.R. (2015) 235 Cal.App.4th 1102, 1116, quoting In re Miguel C. (2011) 198 Cal.App.4th 965, 969.) 3 Substantial evidence sup ports the court’s finding that Anna was at risk of harm if she remained in mother’s custody. (§ 361, subd. (c)(1).) Mother was in a series of abusive relationships for over 10 years and until Anna was born. At the time of the dispositional hearing, moth er had been engaged in 10 weeks of services , but h ad only recently acknowledged t he pattern of domestic violence in her relationship s

. As the social worker testified, m other ’s issues with domestic vio lence were not fully resolved.

3 We requested supplemental briefing on whether the appeal is moot. Having considered the parties’ supplement al briefing, we decline to dismiss the appeal as moot. As a general rule, an order terminating juvenile court jurisdiction moots an appeal from a previous order in the dependency, but “dismissal for mootness in such circumstances is not automatic,” and i s decided on a “‘case

- by

- case basis.’” ( In re C.C. (2009) 172 Cal.App.4th 1481, 1488 , quoting In re Kristin B. (1986) 187 Cal.App.3d 596, 605.) “[I] n an abundance of caution and because dismissal of the appeal operates as an affirmance of the underlying judgment or order [citations] we consider the merits of [the] appeal. ” ( I n re C.C., supra, at p. 1488

. )6

Mother also had a histo ry of harming herself. That mother made considerable and

co mmendable progress in the 10 weeks from detention to disposition does not demonstrate insufficient evidence supports the court’s removal order. ( In re T.W. (2013) 214 Cal.App.4th 1154, 1163 ; In r e Francisco D. (2014) 230 Cal.App.4th 73, 83 .) Mother’s reliance on In re A.E. (2014) 228 Cal.App.4th 820 ( A.E. ) does not alter
our conclusion

. In that case, the appellate court reversed an order removing a minor from parental custody
, concluding “an iso lated incident ” where the father hit the child with a
belt was “unlikely to recur” and did not support removal because “[e]vidence of past abuse, standing alone, does not meet the clear and convincing standard of proof required to justify [ ] removal” from parental custody under section 361, subdivision (c). ( A.E.,

supra, at p. 826.) This case is unlike A.E. because the domestic viol ence in mother’s life

wa s not an “isolated incident . . . unlikel y to recur.” ( Ibid. ) It was chronic and pervasive.
In re Daisy H. (2011) 192 Cal.App.4th 713 ( Daisy H

. ) does not assist mother

. Daisy H. held physical violence between parents s upport s the exercise of jurisdiction under section 300, subdivision (b) only where “there is evidence that the violence is ongoing or likely to continue and that it directly harmed the child physically or placed the child at risk of physical harm.” ( Daisy H., supra, at p. 717.) Daisy H . is inapposite. Here, parents submitted to jurisdiction , admitting the allegation they had a “ vio lent ” relationship and could not “ provide Anna with a home free from the negative effects of violence.” We also reject m other ’s claim the court erred by concluding there were no reasonable means to prevent Anna’s removal. Mother’s alternate view of the e vidence does not establish a lack of substantial evidence supporting the court’s conclusion.
II. Any ICWA Error is Harmless
Father contends the Department violated ICW A by failing to provide adequate
notice to the Cherokee tribes

. A ccording to father, t he Department was required to
interview Anna’s grandfather , Bret H., to obtain the last name and contact information for Anna’s great

- gra ndmother, Sharon, so she “could have be en contacted” by the Department. “ ICWA allows an Indian tribe to intervene in d ependency proceedings, to7

‘ protect the best interests of Indian children and to promote the stability and security of Indian tribes and families. . . .’ [Citation.] ICWA contains specific notice requirements that apply when the juvenile court knows or ha s reason to know th at an Indian child is involved. [Citation.] The Indian tribe determines whether the child is an Indian child,
and i ts determination is conclusive. [Citation.] The juvenile court ‘“ needs only a suggestion of Indian ancestry to tr igger the notice requirement.”’ [Citation.] Under ICWA, no foster care placement or termination of parental rights proceeding may be held until at least 10 days after the tribe receives notice. [Citation s .]” ( In re J.M. (2012) 206 Cal.App.4th 375, 380 ( J.M. ) .) “ The social worker in a child dependency case is statutorily required to interview the child’ s parents and extended family members to gather the information required for the ICWA notice. ” ( In re I.B. (2015) 239 Cal.App.4th 367, 376 , citing § 224.3, s ubd. (c) ; In re C.Y. (2012) 208 Cal.App.4th 34, 39; see also Cal. Rules of Court, rule 5.481(a)(4)(A) .) The Department proposed a stipulated reversal and remand for ICWA compliance. We declined to accept the proposed disposition. Even if we assume the Department erred by not interviewing Anna’s grandfather , Bret H., to find out more information about Anna’s great

- grandmother, Sharon, father’s claim fails because he cannot establish prejudice. ( J.M., supra, 206 Cal.App.4th at p. 383.) J.M. is instructi ve. In that case, the mother claimed the ICWA notices were defective because they omitted information about the child’s great

- great

- grandparents. ( Id. at p. 381.) The J.M. court held any error in omitting the great

- great

- grandparents’ names was harmless : “ The notice did include the
children ’ s immediate lineal ancestors

— mother, grandparents, and great

- grandparents

— descendents of the great

- great

- grandparents who were purported members of the Papago Tribe (the Tohono O’ odham Nation) . . . [which] disclaimed the eligibility for membership of the children, their mother, their grandparents, and their great

grandparents, and mother offers no explanation why the Tohono O’ odham Nation might have reached a different conclusion if it had known the names of the great

- great

grandparents .” ( Ibid. ) As the court explained, this “is not a case where there are gaps in8

the family tree, frustrating the Papago Tribe’s ability to meaningfully investigate the children’s eligibility for membership [

. ] ” ( Id. at p. 383 .)
Here a s in J.M., the ICWA notices included information about father, and Anna’s paternal grandfather, Bret H., the descendant of the great

- grandmother, Sharon, who was

— according to father

— “100 percent ” Cherokee

. Father does not argue Sharon would have provi ded additional information that should have been included on the ICWA notices, nor that the Cherokee tribes might have reached a different result had they known more information about Sharon. ( J.M., supra, 206 Cal.App.4th at p. 382.) We
conclude father’s claim that the Department should have contacted Bret H. so Sharon “could be contacted ” by the Department does not establish reversible error

. In re Shane G. (2008) 166 Cal.App.4th 1532 ( Shane G. ) supports our conclusion.
There , th e mother claimed the cou rt erred by failing to ensure the social services agency sent ICWA notice to the Comanche tribe. ( Id. at p. 15 39 .) The appellate court rejected this argument and explained the agency was not required to notice the Comanche tribe. According to the Shane G. court, the social worker inter viewed the maternal grandmother, who indicated the child’s “ great

- great

- great

- grand mother was a Comanche princess. However, no one in the family ever lived on a reservation, attended an Indian school, participated in India n ceremonies or received services from an Indian health
clinic. Most significantly, the evidence before the court showed the Comanche tribe requires a minimum blood quantum for membership that excludes Shane . Thus, notice to
the Comanche tribe was not re quired.” ( Ibid ., fn. omitted.)
The Shane G. court also determined the agency “performed a reasonable ICWA inquiry and determined there was no reason to believe Shane was an Indian child. Where, as here, the record is devoid of any evidence a child is an Indian child, reversing the judgment terminating parental rights for the sole purpose of sending notice to the tribe would serve only to delay permanency for a child such as Shane rather than further the important goals of and ensure the procedural safegua rds intended by ICWA. ” ( Shane G.,

supra, 166 Cal.App.4th at p. 1539 .) A s in Shane G., there is no evidence any one “ in the family ever lived on a reservation, attended an Indian school, participated in Indian9

ceremonies or received service s from an Indian health clinic.” ( Ibid .) Reversing the dispositional order where Anna has been returned to mother’s custody and where the dependency has been terminated for the sole purpose of interviewing Bret H. would
destabilize Anna. We conclude the Agency’s failure to interview Bret H. was harmless. 4
DISPOSITION The dispositional order is affirmed.

_________________________ Jones, P.J.

We concur:

_________________________ Simons, J.

_________________________ Bruiniers, J.

4 Father’s contention that the Department failed to include information about Anna’s paternal aunts on the ICWA notices fails for the same reason.