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D.W v. the Superior Court of San Joaquin County

August 5, 2011


(Super. Ct. No. J05522)

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

D.W. v. Super. Ct.



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

D.W., mother of the minor, seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court made at the disposition hearing, denying her reunification services and setting a Welfare and Institutions Code section 366.26 hearing (further undesignated section references are to this code). Petitioner argues the juvenile court improperly applied the bypass provisions of section 361.5, subdivision (b)(10) and (11) and that there was an error in giving notice of the proceedings to the relevant tribes pursuant to the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.). Petitioner also requests a stay of proceedings in the respondent court. We shall grant the petition as to the issue of bypass of services and deny the petition as to the ICWA issue. We shall also deny the request for stay as unnecessary.


The San Joaquin County Human Services Agency (Agency) filed a nondetaining petition in August 2010 regarding three-month-old R.W. and her two-year-old sister.*fn1 The petition alleged that in July 2010 petitioner attacked R.R., alleged father of R.W., with a vice grip; that petitioner and R.R. have a history of domestic violence; that there are documented reports of violence involving petitioner from 2006 to 2010; that petitioner was on probation for one of the incidents; and that petitioner was referred to voluntary family maintenance services in May 2010 but did not follow through. The petition further alleged petitioner had an extensive substance abuse history, which resulted in removal of three older children, e.g., two children were born positive for cocaine in 2003 and 2006, and petitioner failed to complete a residential treatment program in 2005; that in the first case petitioner's reunification services were terminated in Santa Clara County in May 2005, and that child was adopted; that in the second case petitioner's reunification services were terminated in August 2005; and that in a third case, petitioner's parental rights were terminated as to a daughter. The petition did not allege current substance abuse or that the current domestic violence was the result of substance abuse.

The detention report detailed the prior removal of the three older children due to petitioner's substance abuse and the termination of petitioner's parental rights as to two of those children, one in 2006 and the second over a year later. Petitioner's services were terminated as to the third child, who was placed with his father, and that dependency was terminated.

The first mention in the historical record of domestic violence is an incident in 2006 between petitioner and the father of one of the older children.*fn2 A later violent incident resulted in petitioner's conviction for spousal battery in 2008. Thereafter, ongoing reports of physical violence between petitioner and R.R. occur in 2009 and 2010. Alcohol is mentioned in connection with two incidents, although not as a precipitating factor.

Several days after a referral to the Agency in February 2010, petitioner was interviewed by a social worker and stated she had not used cocaine for three years and stopped drinking three weeks earlier. The social worker referred petitioner to family maintenance services. When R.W. was born in April 2010, petitioner tested negative for drugs. By May 2010 petitioner had not yet taken advantage of the service referrals, so the social worker made new referrals but petitioner did little to engage in them. The Agency received an allegation petitioner was using methamphetamine but deemed it insufficient to warrant a response. Ultimately, the domestic violence incident in July 2010 led to filing the petition in August.

At the initial hearing in August 2010 the minor was detained. The court sustained the petition in September 2010.

The Agency recommended denial of services, relying on section 361.5, subdivision (b)(10) and (11) and the evidence of the older children's dependencies in which services were terminated and parental rights terminated for two of the children. The Agency cited recent and ongoing domestic violence as evidence that petitioner had made no reasonable efforts to treat the problems which led to the older children's removal.

At the disposition hearing, the social worker testified that the reason for Agency intervention in the family was domestic violence and that there were no current drug allegations against petitioner. She stated petitioner showed a lack of insight regarding domestic violence, and although petitioner had completed a parenting class, she had not completed the domestic ...

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