IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
December 1, 2010
IN RE A.M. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SHASTA COUNTY DEPARTMENT OF SOCIAL SERVICES, PLAINTIFF AND RESPONDENT,
G.R., DEFENDANT AND APPELLANT.
In re A.M. CA3
NOT TO BE PUBLISHED
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). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
G.R. (mother) appeals from the juvenile court's dispositional order denying reunification services on the ground of mental disability. (Welf. & Inst. Code, § 361.5, subd. (b)(2); further undesignated statutory references are to the Welfare and Institutions Code.) In addition to attacking the order, mother claims the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)) was not complied with. We affirm the judgment.
FACTS AND PROCEEDINGS
The Prior Dependency
In April 2006, the Tehama County Department of Social Services filed a section 300 petition as to minors A.M. (a female born in 2003) and Cod.M. (a male born in 2005), alleging: Mother was arrested for receiving stolen property and appeared to be under the influence of methamphetamine. The home was unsafe for the minors. Father was in jail. The minors had witnessed frequent and severe domestic violence between the parents.
According to the detention report, mother admitted prior use of methamphetamine, but claimed she now used only marijuana.
The disposition report recommended foster care for the minors and reunification services for the parents. The juvenile court so ordered.
The report stated: During the late 1990's and early 2000's, mother incurred several criminal convictions and was arrested several times for inflicting corporal injury on her then spouse. She met father in 2002 when they had the same parole officer. She claimed his behavior had recently deteriorated due to "pills and crank" and he had refused treatment. To escape domestic violence, she went into a safe house, but then contacted father again and left the safe house. She was also caught carrying marijuana on a visit to the minors. From April 6 to May 6, 2006, she drug tested nine times, including one positive test for marijuana, then stopped testing.
On May 17, 2006, mother was arrested on a DUI charge. She pleaded guilty and was sentenced to three years of court probation.
The dependency case was transferred to Shasta County in June 2006.
The six-month review report, filed October 23, 2006, recommended further services for the parents, but noted: Mother tested positive for marijuana on nine tests out of 18 from early April to early June 2006, and since then had failed to test or supplied diluted samples (both scored as "dirty" tests) 18 out of 19 times. She had a doctor's recommendation for marijuana, but it did not take effect until the end of August 2006. She failed to prove attendance at AA/NA meetings. A therapist recommended a psychological evaluation because mother's denials of substance abuse and domestic violence did not jibe with her documented history.
In September 2006, Dr. Robert Boyle, a psychologist, evaluated mother. He diagnosed alcohol dependence and "Personality Disorder NOS--histrionic and narcissistic." Mother showed defensiveness, denial, and lack of insight into her problems. Her "lifestyle has been characterized by interpersonal chaos and dysfunction, as well as decisions that have been self-centered and emotionally immature." Her prognosis was "guarded."
On April 5, 2007, the Shasta County Department of Social Services (the Department) filed a section 300 petition as to mother's newborn daughter, Cou.M., alleging that the parents had not benefited from their case plan and still had substance abuse problems.
On June 8, 2007, at the combined jurisdictional hearing as to Cou.M. and 12-month review hearing as to the older minors, the juvenile court found mother had made substantial progress in resolving her problems, but father still had a substance abuse problem and was incarcerated; the parents were separated and mother had obtained a restraining order against father. The court placed Cou.M. with mother under a family maintenance plan (an order the court renewed at Cou.M.'s dispositional hearing on December 18, 2007) and authorized the Department to attempt a trial placement of A.M. and Cod.M. with mother; the court also terminated father's reunification services as to A.M and Cod.M.
The disposition report as to Cou.M., filed August 3, 2007, stated: In the last nine months mother had tested positive for marijuana seven times, given 12 diluted samples, and failed to test eight times. However, she was undergoing counseling; had completed programs in domestic violence, DUI, and parenting; and attended AA meetings twice a week.
In the 18-month status review report as to the older minors, filed October 26, 2007, the Department recommended continuing out-of-home placement and terminating mother's services. According to the report, the parents had had unauthorized contacts in violation of the restraining order against father. Moreover, mother was unwilling to explore her problems deeply in counseling, she was failing to document attendance at 12-step meetings, her visits with the minors showed defective parenting skills, and (in the social worker's view) she had been dishonest throughout the history of the case.
An addendum report as to Cou.M. filed November 8, 2007, however, recommended maintaining her placement with mother.
At the combined 18-month status review hearing in the older minors' case and dispositional hearing in Cou.M.'s case on December 18, 2007, the juvenile court granted mother increased visitation as to the older minors, continued Cou.M.'s placement with mother, and denied services to father as to Cou.M.
An addendum report filed February 29, 2008, recommended returning the older minors to mother's care under a family maintenance plan. Mother was currently compliant with her case plan, showing a better attitude in counseling and attending weekly parenting classes (though she still failed to document attendance at 12-step meetings). She had tested positive for marijuana again, but produced a medical recommendation for it. Her visits with the minors (now unsupervised) and her parenting skills had improved. She and the social worker had agreed on a "safety plan" for herself and the minors, including no contact with father, continued sobriety, continued participation in developmental services for the minors, and planning for appropriate childcare and respite services.
On March 7, 2008, at the continued 18-month status review hearing, the juvenile court ordered the older minors' return to mother under a family maintenance plan.
On August 15, 2008, a status review report recommended terminating the dependencies and returning the minors to mother's physical and legal custody. On September 2, 2008, the juvenile court so ordered.
The Present Dependency
On October 9, 2008, the Department filed new section 300 petitions as to all the minors, alleging: Mother's home was again filthy and unsafe. Father was present, despite the restraining order. The minors said the parents were arguing and engaging in domestic violence. Mother said she would "take the children and run to Mexico" rather than let the Department take them again.
The jurisdiction report, filed November 5, 2008, stated:
On October 10, 2008, an investigating police officer reported that mother's home was in disarray, with rotten food on the kitchen floor, dirty dishes (including knives) all over the kitchen, dirty clothes in the bedrooms, dirty diapers in the bathrooms, and fecal matter in the toilets. While the officer was there, mother called and said she had taken the minors to keep them from the Department.
Law enforcement took the minors into custody in Butte County on October 13, 2008.
On October 16, 2008, mother underwent an alcohol and drug assessment (attached to the jurisdictional report as an exhibit). The interviewer concluded mother was alcohol-dependent and possibly dishonest about it: she claimed she had drunk only a couple of times lately, but the floor of her home was littered with empty alcohol containers. Though she said she was doing a 12-step program, she could not identify any group meeting as her "home group." She had been uncooperative at a recent drug test and may have tried to alter the specimen; her test had been coded "dirty." Her denial of an alcohol problem was disturbing, and her drug testing behavior suggested she might be abusing other substances. Intensive outpatient treatment and random drug testing were recommended, and an intake interview had been scheduled. Because mother reported being bipolar and experiencing mild depression and anxiety, a psychiatric assessment of her mental health needs also was indicated.
At a hearing on November 10, 2008, the juvenile court ordered mother to undergo psychological evaluations and to submit to drug testing by the hair follicle method. The court specified that mother was not to alter the condition of her hair before the test.
At a hearing on November 24, 2008, county counsel asserted that mother dyed her hair before coming in to drug test, and the test failed to detect marijuana even though mother admitted using it regularly. The juvenile court repeated that mother was not to alter the condition of any hair on her body until after the hair follicle test had been completed.
On February 5, 2009, the juvenile court sustained the allegations of the section 300 petitions as amended and declared the minors to be dependents of the court.
The disposition report, filed March 4, 2009, recommended denying services to mother because the court-ordered psychological evaluations had shown she would not benefit from services. The report stated in part: The minors were all placed in the foster home where the older minors had been before. They were "doing extremely well" there and bonding with the foster parents.
Mother had given multiple versions of her family history. Thus, it was hard to determine whether anything she had said was true or accurate.
Mother's compliance with substance abuse treatment was mixed. She had changed her mind several times about attending particular programs, and had not yet reached recommended attendance levels in treatment and 12-step meetings.
Mother tested positive four times for marijuana from November 3, 2008, to February 2, 2009. However, she said her medical marijuana recommendation had expired on January 31, 2009, she had not used marijuana since then, and she would not renew the recommendation.
Mother was attending parenting classes.
Mother underwent psychological evaluations by Dr. J. Reid McKellar in December 2008 and Dr. Ray Carlson in February 2009, which were attached as exhibits. Both interviewed and tested mother and reviewed the records in the case; Dr. McKellar specified that this included the prior evaluation by Dr. Boyle. Both diagnosed alcohol dependence (though Dr. Carlson called it "in remission"). Dr. McKellar opined that mother also suffered from "[h]istrionic [p]ersonality disorder" and "[p]oor insight"; Dr. Carlson opined that she suffered from cannabis dependence and "[p]ersonality disorder not otherwise specified."
Dr. McKellar stated, under "Summary and conclusions": Mother had "extremely poor insight." Her "primary defense [was] denial." Her testing indicated "the potential presence of a personality disorder" and failure to take responsibility for her circumstances. Her reports about her substance abuse history, personal history, arrests, and relations with father were inconsistent. The records showed she had "engaged in deceptive and manipulative behavior during her scheduled drug tests, suggesting ongoing substance abuse and poor judgment."
"[S]everal themes have remained consistent dating back to 2006. [Mother] has consistently refused to take responsibility for her part in this and the prior child welfare case. [Mother] has had a tendency to minimize alcohol and drug issues, and to gloss over significant issues in her history in order to make a favorable impression upon others. Finally, [mother] seems to have a chronic tendency to be dishonest and manipulative."
Along with substance abuse problems and histrionic personality disorder, mother was vulnerable to depression and anxiety, but was not bipolar. She was likely to exaggerate medical symptoms to obtain mood-altering substances.
Mother apparently obtained "glowing reports" from therapists and instructors by just going through the motions of satisfying her case plan. Persons with "histrionic flair" in "extreme denial about their addiction" can "present well" for a time, but mother's recent behavior suggested she had not benefited from past services; if anything, she was "even more deceptive and in more denial" now than in 2006. She would continue to make decisions based on her "addictive and compulsive needs," putting the minors at risk.
Mother could not benefit from services now, and it was unlikely she could do so in the near future. Because she was convinced she did not need services, if granted them she would just go through the motions again. To care safely for the minors, she would need, at a minimum, to abstain from mood-altering substances for a year, develop a sense of responsibility for her circumstances, and provide an honest account of her history; the chances of this happening within the next year were "quite low." Her prognosis for "substantive change" was "extremely poor." Consequently, services were not recommended.
Dr. Carlson's opinion, though less harshly phrased, pointed to the same conclusion.
Dr. Carlson found that the termination of the first dependency showed mother had benefited from services, thus suggesting she might benefit from further services; however, "there is legitimate question as to how much she would benefit." Similarly, "while [mother] ha[d] shown that she [could] make changes in her lifestyle, it is questionable as to whether she could sustain these changes over the long-term [sic]."
Like Dr. McKellar, Dr. Carlson noted mother's "dysfunctional personality patterns and relationships," her tendency to "escape through substances," and her "psychological defense mechanisms centered on denial and minimization." Mother's recent history raised "concerns about her level of denial regarding the major issues in her life, including exposing the children to more domestic violence and reversion to substance abuse." Despite her apparent past progress, "her difficulties after the children's return raise[d] doubts as to the degree to which she had internalized the gains, as well as her ability to sustain positive change."
Finally, mother's "ongoing emotional substance abuse, and personality issues [were] likely to make her unable to care for her children over a substantial period of time." If her children were returned to her again and the cases were closed, "she would resume her previous lifestyle, resulting in further intervention." (Asked by county counsel to clarify the last point, Dr. Carlson wrote: "[F]uture intervention would likely be necessary even if [mother] received six more months of services from the [D]department.") (Italics added.) On March 18, 2009, mother lodged a psychological evaluation by Dr. Kent Caruso with the juvenile court. Unlike the others, it was favorable to her.
Dr. Caruso stated that he had done the evaluation on January 15, 2009, pursuant to a referral by mother's counsel, "for the purpose of . . . being able to draw valid clinical conclusions helpful in your representation of [mother]." In addition to interviewing and testing mother, Dr. Caruso had "thoroughly reviewed the small packet of information . . . forwarded to me by your office." Aside from Dr. McKellar's report, Dr. Caruso did not say what was in "the small packet of information." (Dr. Carlson's report had not yet been done.) Dr. Caruso assessed mother as "a relatively good informant and historian," though "psychologically naive and uninsightful." Thus, Dr. Caruso recounted mother's life story as she told it to him, apparently taking its truthfulness for granted.
Dr. Caruso opined that, due to a traumatic childhood, mother had become "chronically depressed," lacking self-confidence and self-esteem. She had a "propensity toward being attracted to narcissistic and/or sociopathic men" like her father. She tended to be "arbitrary, capricious, and impulsive in [her] decision making." But she was not narcissistic, psychopathic, or sociopathic, and was "most certainly . . . capable" of insight.
She "ha[d] the ability to present herself somewhat like a chameleon," telling others what she thought they wanted to hear. However, she responded well when Dr. Caruso admonished her not to conduct herself that way with him.
Mother suffered from "[d]ysthymic [d]isorder [depression], . . . [a]lcohol [a]ddiction, and . . . [p]ersonality [d]isorder with [s]ignificant [d]ependency [f]eatures." Nevertheless, she could complete reunification services within six months if she received "the right kind of intensive psychotherapy" (i.e., "an effective combination of cognitive and behavioral strategies") and psychoactive medication. Mother had already had six months of intensive therapy, but she and the therapist might not have been "the right fit."
An addendum report filed on April 13, 2009, recommended no change in the proposed findings and orders. It stated that mother was participating in outpatient substance abuse treatment, taking parenting classes, and attending community college working toward a nursing degree. She had continued to drug test, but two of her last three test samples had been diluted (considered "dirty"). She visited the minors twice a week under supervision; the visits went well.
The contested dispositional hearing began on April 28, 2009, and ended on April 30, 2009. Among the witnesses were mother and Dr. Caruso.
Mother testified as follows:
Since the first dependency terminated, she had allowed father to see the minors at her home once, because he was dying of cancer. (Father was diagnosed with cancer in July 2007, but the record does not show that it is terminal.) She let him stay for only 10 minutes. She would not violate the restraining order again. She had allowed her counsel to tell the court falsely at the jurisdictional hearing that there had been no contact with father, because she "wasn't ready" to be truthful then.
She had let her home get messy because of a painful joint problem and being "overwhelmed with school and moving and moving by myself and unpacking for myself and stuff." She now had a housekeeper and a cleaning schedule.
She was participating in programs (some referred by the Department, others pursued on her own) including "Shasta Alcohol and Drug," "Options for Recovery," "Parents in Control," a class at the Women's Refuge called "Insight," and two to four AA meetings a week. Although she still intended to get her nursing degree, she was not going to school now so that she could concentrate fully on her present issues.
The "Insight" class taught her that she had gotten into a relationship with father because she was looking for love and foolishly kept hoping he would change. She kept going back to him because she needed him financially, but also because she was afraid she could not live on her own. She knew it was wrong the last time she let him come to her home, and she realized now that it had been harmful to her children since they were born. She was not in a relationship now and did not plan to be in one.
When the minors were detained in October 2008, mother did not consider herself an alcoholic, but she did now. She started the Options for Recovery class three weeks ago, and was about to graduate from "Shasta Drug and Alcohol." She was doing AA with a sponsor and being honest with herself; the last time, she had not been honest with herself and had not been "working the steps." She did not believe the Department ever asked her if she was doing so. However, she admitted that her "safety plan" with the Department included living clean and sober.
She previously used marijuana regularly, with a medical recommendation she had had for four years. She had let it expire without trying to renew it because she no longer wanted to use marijuana.
She was still drug testing, not only on referral from the social worker but also on her own (because the required testing was not done "routinely" enough). She had had five recent tests on referral from the social worker; she could not explain why two of them were scored as diluted.
She felt the Department's intervention in October 2008 was justified "in a way," but she and the children could have benefited from a family maintenance plan with counseling for her.
She believed she could benefit from services, particularly individual counseling. Her prior therapy dealt mainly with codependency, but she needed more intensive therapy on other issues, such as "grief and loss and, uhmmm, cognitive behavior issues." (She did not know what "cognitive behaviors" were, but Dr. Caruso had told her she needed to work on them.) She was now more motivated to succeed than before, and no longer in denial about needing help.
If she were not offered services now, it would be devastating to her and her family. They had a very strong bond. She could learn from her mistakes and be a good parent.
Dr. Caruso testified in accordance with his report. On cross-examination, he admitted he could not say exactly what was in the packet of information he reviewed; he thought he had retained the documents, but had not brought them with him or made a list of them. (Counsel later told the juvenile court that after searching for the documents, Dr. Caruso had concluded they were shredded.) After argument, the juvenile court made the following findings and rulings:
To decide whether the Department had shown by clear and convincing evidence that mother suffered from a mental defect or disability which precluded her from benefiting from services, the court "strongly considered" the reports of Drs. Carlson, and McKellar, "and also the prior report of Dr. Boyle."
The court gave no weight to Dr. Caruso's opinion. First, "the lack of documentation or the noting of documentation . . . which he utilized in formulating his opinion was simply shocking to the Court." Second, he appeared to have based his opinion only on his own interview and testing and Dr. McKellar's report, despite all the other material available. Third, Dr. Caruso's report did not even address the inconsistencies between mother's self-reporting and the information contained in Dr. McKellar's report, which should have alerted Dr. Caruso to the need for more information.
The evaluations by Dr. Carlson and Dr. McKellar, "coupled with Dr. Boyle's observations . . . and opinions that were provided in the prior case or dependency action," seemed consistent to the court. Based on those three reports, the court found the Department had met its burden of proof for denying services to mother.
The court also considered mother's testimony, but found that it "lack[ed] all credibility . . . , given the number of different statements and inconsistent statements that she's given." Because the court "simply [did] not know what to do with [mother]'s testimony," the court could not give it much weight.
For these reasons, the court ordered that mother receive no services.
Sufficiency of the Evidence
Mother contends the evidence was insufficient to support the juvenile court's finding that mother suffers from a mental disability within the meaning of section 361.5, subdivision (b)(2). We disagree.
Section 361.5, subdivision (b)(2) (hereafter § 361.5(b)(2)) permits the juvenile court to deny reunification services to a parent who is shown by clear and convincing evidence to "suffer from a mental disability that is described in Chapter 2 (commencing with Section 7820) of Part 4 of Division 12 of the Family Code and that renders him or her incapable of utilizing those services."
Before the court may deny services under this provision, "competent evidence from mental health professionals" must establish that "even with the provision of services, the parent is unlikely to be capable of adequately caring for the child within the time limits specified." (§ 361.5, subd. (c).) Evidence from two experts, such as licensed psychologists, is required to support this finding. (Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470, 472 (maj. opn. of Raye, J.); cf. Fam. Code, § 7827, subd. (c).) However, the experts need not agree on the parent's prognosis; they need only provide evidence "regarding [the] parent's mental disability, . . . from which the court then can make inferences and [on which it can] base its findings." (Curtis F. v. Superior Court, supra, 80 Cal.App.4th at p. 474.) Mental disabilities under section 361.5(b)(2) include "any . . . mental incapacity [or disorder] which renders the parent . . . unable to care for and control the child adequately" (Fam. Code, §§ 7824, subd. (a), 7827, subd. (a)), whether caused by "the habitual use of alcohol" or any controlled substance not medically prescribed (Fam. Code, § 7824, subd. (b)(1)(A)), moral depravity (Fam. Code, § 7824, subd. (b)(1)(B)), or judicially declared developmental disability or mental illness (Fam. Code, § 7826).
Where a parent claims insufficient evidence supports an order denying reunification services under section 361.5(b)(2), we review the order under the substantial evidence test. (Curtis F. v. Superior Court, supra, 80 Cal.App.4th at p. 473.) This test requires us to view the evidence, including the reasonable inferences therefrom, most favorably to the order, and forbids us to reweigh the evidence. (Ibid.) The reports of Dr. McKellar and Dr. Carlson, which the juvenile court credited, were substantial evidence that mother suffered from a mental disability within the meaning of section 361.5(b)(2). Because two expert opinions are enough under the statute, mother's claim that the court should not have considered Dr. Boyle's opinion is beside the point. However, since Dr. McKellar stated he had considered that opinion, which was consistent with his own opinion and that of Dr. Carlson as to mother's mental problems and likely prognosis, mother was on notice that the court might also consider it, and we see no reason the court should not have done so.
As Dr. McKellar and Dr. Carlson concluded, mother could not be expected to benefit from future services because of chronic personality disorders which included or led to alcohol dependence, denial, and lack of insight into her problems, all persisting or recurring after months of services that included counseling and individual therapy. Furthermore, her regression, within the period of one month, once free of the court's and the Department's scrutiny showed that any apparent benefits from past services were illusory.
So far as Dr. Caruso disagreed, the court reasonably rejected his opinion for the grounds stated. First, he reviewed only a small portion of the relevant material. Second, he took mother's accounts at face value, even Dr. McKellar's report should have showed that that might be dangerous, and even though Dr. Caruso realized that mother could present herself as whatever she thought people wanted her to be. Contrary to mother's assertion, the court was well within its discretion to disregard Dr. Caruso's opinion on these grounds.
The court also discredited mother's testimony because it was merely the latest of a constantly changing set of stories. This skepticism is supported by the record as a whole, and by the findings of Dr. McKellar and Dr. Carlson that mother was an unreliable historian. We may not reweigh the court's evidentiary findings, especially as to credibility. Therefore mother's extended recital of her own testimony and her assertion that the court should have accepted it is unavailing on appeal.
As well as improperly viewing the evidence most favorably to herself, mother misstates the statutory test. She asserts: "None of the assessments diagnosed appellant with a mental disability that would render her incapable of caring for her children" or concluded she would not benefit from services "in the foreseeable future based on a mental disability." (Italics added.) Section 361.5(b)(2) does not require either finding.
The test for denying services under section 361.5(b)(2), as we have said, is whether a parent's mental disability "renders him or her incapable of utilizing those services." The phrase "that would render her incapable of caring for her children" does not mean the same thing, and mother cites no authority holding that the statutory language may be so construed. For want of authority, we do not consider this proposition. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) The expression "in the foreseeable future" comes from Family Code section 7827, subdivision (b), which applies to proceedings to free minors from parental custody and control where the parents "are mentally disabled and are likely to remain so in the foreseeable future." But that statute, unlike section 361.5(b)(2), concerns the ultimate decision to terminate parental rights. Section 361.5(b)(2) on its face does not require the court to make findings about "the foreseeable future," and mother cites no authority so construing the statute. Therefore, we decline to read this language into it. (Kim v. Sumitomo Bank, supra, 17 Cal.App.4th at p. 979.)
The period which matters under section 361.5(b)(2), as noted above, is the "time limits specified" under section 361.5, which normally cannot exceed 12 months from the date the minors entered foster care, or six months from the dispositional hearing if a child is under three years old. (§ 361.5, subd. (a)(1)(A)-(B).) At the time of the second dependency petition, the minors were a bonded sibling group and the youngest was only 18 months old; thus, the shorter of these two time periods applied. (§ 361.5, subd. (a)(1)(C).) The two older minors had been under the juvenile court's jurisdiction for the greater part of their lives, beginning in 2006. Mother had already received services for most of the period between the original disposition hearing in June 2006 and the present hearing. Thus, as both Dr. Carlson and Dr. Caruso impliedly recognized, it was extremely unlikely that "the time limits specified" under section 361.5 could have extended beyond six months. Dr. Carlson thought six months of services would not eliminate the need for intervention, and Dr. McKellar thought a year would not suffice. Their opinions were substantial evidence that mother could not benefit from services within "the time period specified." (§ 361.5.)
Mother asserts that services may be extended for up to 18 months. However, that is so only "if it can be shown, at the hearing pursuant to subdivision (f) of Section 366.21, that the permanent plan for the child is that he or she will be returned and safely maintained in the home within the extended time period. The court shall extend the time period only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent . . . within the extended time period or that reasonable services have not been provided to the parent . . . ." (§ 361.5, subd. (a)(3).) Since the juvenile court did not make such findings, this provision is inapposite.
Substantial evidence supported the juvenile court's denial of services to mother under section 361.5(b)(2).
The Indian Child Welfare Act
Mother contends the order denying services (which she erroneously calls "the order terminating parental rights") must be vacated due to noncompliance with ICWA notice provisions. We disagree. The juvenile court found ICWA inapplicable in the prior dependency, and no new information was presented in the current dependency that suggested any possibility of a different result.
The purpose of the ICWA notice provisions is to enable the tribe or the Bureau of Indian Affairs to investigate and determine whether the children are Indian children. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) To that end, once the juvenile court has received information which gives reason to believe a child is an Indian child, notice under ICWA must be given. (In re Robert A. (2007) 147 Cal.App.4th 982, 989.) Notice requirements are construed strictly. (Ibid.) Notice must include all of the following information, if known: the child's name, birthplace, and birth date; the name of the tribe in which the child is enrolled or may be eligible for enrollment; names and addresses of the child's parents, grandparents, great-grandparents and other identifying information, and a copy of the dependency petition. (§ 224.2, subd. (a)(5); In re Mary G. (2007) 151 Cal.App.4th 184, 209.) Because ICWA is mainly intended to protect and preserve Indian tribes, a parent's failure to raise it in the juvenile court does not forfeit the issue on appeal. (In re J.T. (2007) 154 Cal.App.4th 986, 991; Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 783, fn. 1.) Where tribes have received ICWA notice, any error as to that notice is subject to harmless error review. (Nicole K. v. Superior Court, supra, 146 Cal.App.4th at p. 784.) Mother has consistently denied Indian ancestry. Thus, her argument rests on a claim made in the original dependency by father. However, as we shall explain, father retracted the claim in the current dependency.
Father filled out an "Indian Ancestry Questionnaire" on June 19, 2006, in Tehama County, denying Indian ancestry as to the older minors and leaving the spaces for family history blank. However, on July 10, 2006, after the case was transferred to Shasta County, he filled out JV-130 forms claiming possible "Pit River or unknown" Indian ancestry. Based on those forms, the Department gave ICWA notice to several tribes and filed certified return receipts thereof on April 5, 2007.
The juvenile court found on June 8, 2007, that ICWA did not apply as to the older minors. The court so found as to Cou.M. on December 18, 2007.
In the current proceedings, father filled out "Parental Notification of Indian Status" forms as to all three minors on November 10, 2008. This time, he denied Indian ancestry.
At the hearing on that date, the juvenile court said it had received the form and asked father if it was correct that he had no Indian ancestry. He answered: "None that I can think of at this time."
As mother points out and the Department concedes, the record does not contain direct evidence as to what information the tribes received about father's relatives. Ordinarily, that lacuna would require reversal for further proceedings in accordance with ICWA. (See In re Robert A., supra, 147 Cal.App.4th at p. 989.) Here, however, we conclude reversal is not required: since father has retracted his claim of Indian ancestry and mother never made one in the first place, there is no information presently before the court that would create a duty of inquiry under ICWA. Where neither parent claims Indian ancestry, it would be an idle act and a waste of resources to remand for further ICWA proceedings.
The juvenile court's orders are affirmed.
We concur BLEASE , Acting P.J. ROBIE ,J.
© 1992-2010 VersusLaw Inc.