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In re Melissa R.

August 27, 2009


(Alameda County Super. Ct. No. J147902). Honorable Nancy Lonsdale, Commissioner.

The opinion of the court was delivered by: Siggins, J.


Melissa R. is a 20-year-old woman with severe developmental disabilities. She needs assistance in all of her activities of daily living, and will need it for the rest of her life. This appeal concerns the juvenile court‟s decision to terminate dependency jurisdiction and leave Melissa‟s placement in her group home. S.V. (Mother), contends the court erred when it dismissed dependency jurisdiction; that the evidence does not show a risk of detriment to Melissa if she were returned to Mother‟s care; and that lack of compliance with the Indian Child Welfare Act (ICWA, or the Act) requires reversal. We conclude the court properly dismissed dependency jurisdiction and allowed Melissa to remain in her group home, and that Mother‟s challenge to the risk of detriment finding is moot. We also conclude that reversal and remand to require the juvenile court to comply with ICWA would be futile because Melissa has reached the age of majority and, therefore, is not an "Indian child" within the meaning of the Act. We therefore affirm the juvenile court orders.


Prior Dependencies

Melissa was born in June 1989 with a congenital chromosomal anomaly that has severely retarded her development.*fn2 Her medical problems included cerebral palsy, limited mobility, mental retardation and a cleft palate.

Mother‟s inability to care for her daughter first resulted in intervention by the Alameda County Social Services Agency (the Agency) in October 1989. After a period of time in the care of her maternal grandmother, the trial court returned Melissa to Mother‟s custody and retained jurisdiction. The dependency case was dismissed in November 1990. Although Melissa was developmentally delayed and had not yet begun to walk, she appeared to be healthy and thriving.

The second dependency case was initiated in January 1995, after police found cocaine and drug paraphernalia in Mother‟s home. The home was filthy and her children were undernourished and suffering from neglect. Both children were placed in a regional center of the east bay (Regional Center) community care facility.

Mother suffers from an organic mental disorder and mild mental retardation, and has a lengthy history of substance abuse. Her initial compliance with drug treatment programs and drug testing was sporadic. But by December 1995, her case manager believed Mother was clean and sober.

After the children appeared to deteriorate while in Mother‟s care for overnight visits, it was recommended that she needed supervision and assistance in child rearing. In December 1996, the Agency recommended that the children be returned to Mother with extensive family maintenance services. Mother completed her reunification plan "in spirit as well as in form" and attended outpatient drug treatment and therapy even after it was no longer required. The dependency case was dismissed in May 1997, when the Agency reported that Mother‟s parenting skills were excellent and the risk to the children was substantially reduced.

The April 2006 Detention

The case before this court began when Melissa was 16 years old, and Mother was arrested for driving a stolen car. Police found Melissa and her brother in a trailer towed by the car Mother was driving. Melissa was non-verbal and unable to walk or stand for long periods of time.

The detention report recounted Melissa‟s long history of abuse and neglect. In November 2005, Melissa‟s maternal grandmother reported that Mother and the children had moved in with her and that Mother left the children with her for weeks at a time without providing money or food for their care. She said Melissa could neither walk, speak nor use the toilet by herself. Melissa‟s maternal aunt reported that she kicked Mother out of her home several months earlier because Mother was using drugs and her boyfriend was a drug dealer. The aunt said Mother did not take good care of the children.

Although Melissa‟s maternal grandmother had cared for Melissa for much of her life, she was too ill to do so when this case began. Melissa was placed in a group home and when she arrived she appeared to have been grossly neglected. Melissa did not communicate at all. She slept during the day and was up all night. She cried for no reason and sat with her hands behind her back all day. The home staff was required to help with her activities of daily living, including bathing, toileting, dressing and eating. Although she was able to walk, she would not get up unless prompted and tired easily. She also would persistently bite her hands and wrists. Melissa seemed to lack stimulation at home. Her school attendance was sporadic, and she had not gone to school for almost a year before this dependency.

Family members reported that Mother had a substance abuse problem, but she denied that she used drugs. She said she was arrested because she bought a stolen car from a friend. She lived in maternal grandmother‟s trailer, and said she could not enroll Melissa in school because her name was not on grandmother‟s lease.

The juvenile court sustained jurisdiction under Welfare and Institutions Code*fn3 section 300, subdivisions (b) and (g), and ordered the Agency to provide Mother with reunification services.

October 2006-Six-Month Review

The six-month review report recommended that Melissa remain a dependent of the juvenile court. Mother enrolled in a transitional treatment program when she was released from jail in April 2006, but she left the program after several weeks without completing it. She had not cooperated with drug or alcohol testing and was homeless. During this period she falsely reported to Melissa‟s school, social workers and police that Melissa had been kidnapped. Mother cooperated in setting up regular visitation with Melissa, but her disruptive behavior limited those supervised visits.

Melissa showed significant improvement. She was doing well in her high school transitional program. Her self-mutilating behavior decreased and she was learning how to eat solid foods. The group home operator said there would be a high ...

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