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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)


August 5, 2011

D.W., PETITIONER,
v.
THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, RESPONDENT; SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY ET AL., REAL PARTIES IN INTEREST.

(Super. Ct. No. J05522)

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

D.W. v. Super. Ct.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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.

FACTS

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 violence class which was a condition of her probation from a 2008 conviction for spousal abuse.

The court praised petitioner's efforts in completing parenting and participating in counseling but observed that petitioner continued to engage in domestic violence and was currently in custody for violation of probation due to violating a restraining order she had against the father of one of her children. The court stated petitioner had not completed the 52-week domestic violence program ordered three years earlier as a condition of probation. Based on petitioner's long history of untreated domestic violence, the court declined to order reunification services, relying on section 361.5, subdivision (b)(10) and (11), and set a selection and implementation hearing.

DISCUSSION I

Petitioner contends the juvenile court erred in applying the provisions of section 361.5, subdivision (b)(10) and (11) to deny her services.*fn3

The two subdivisions permit the juvenile court to bypass services to a parent who has either failed to reunify or has had parental rights terminated as to a sibling or half sibling of the minor and who "has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from the parent." (§ 361.5, subd. (b)(10) & (11).)

Petitioner does not challenge the first condition of each statute since the evidence clearly shows she failed to reunify with the three older children and her parental rights were terminated as to two of them. The second condition however, presents a different question.

The problem that led to removal in the prior dependency was cocaine abuse. There is no evidence domestic violence played any part in the removal of any of the three older children. While the current petitions allege past substance abuse, they contain no allegations of current substance abuse and the social worker testified there were no such allegations. Moreover, there is no evidence of current substance abuse. Petitioner testified she had not used cocaine for years. There was some evidence of use of alcohol but there was no evidence of any positive tests for controlled substances. The evidence supports the conclusion that petitioner has, in fact, made a reasonable effort to treat the problem, i.e., substance abuse, that led to the removal of the siblings.

It is clear that petitioner has not made efforts to address her domestic violence issues. However, according to the evidence, domestic violence was not a problem that led to removal of the siblings in the prior dependencies, and thus, petitioner's failure to remedy that problem cannot be used as a basis for bypassing services in the current cases. (§ 361.5, subd. (b)(10) & (11); In re Albert T. (2006) 144 Cal.App.4th 207, 220 [current case based on domestic violence; however, in prior case, sibling was removed only due to parental inability to provide care for him, allegations of domestic violence having been dismissed from the petition].) The language of the statute itself makes it clear that only when "the problems that led to removal" of the sibling are untreated can bypass of services be considered under section 361.5, subdivision (b)(10) or (11). The juvenile court erred in applying the bypass provisions to petitioner to deny her services. The court must conduct a new disposition hearing to consider whether petitioner is entitled to services.

II

Petitioner claims ICWA notice was incomplete because the Chippewa tribes were not given notice of the proceedings. Petitioner bases her argument on the notice given to the Chippewa Cree tribe and concludes that the Chippewa tribes should have been noticed as well. We disagree.

The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) If, after the petition is filed, the court "knows or has reason to know that an Indian child is involved," notice of the pending proceeding and the right to intervene must be sent to the tribe. (25 U.S.C. § 1912; see Welf. & Inst. Code, § 224.2; see also Cal. Rules of Court, rule 5.481(b).)

At the outset of the proceedings, petitioner claimed Indian heritage in the Blackfeet tribe on Judicial Council form ICWA-020. Although the record is not clear, evidently further investigation disclosed additional tribal claims and notice was eventually sent to the Cherokee, Blackfeet, and Chippewa Cree tribes. The notice form indicates that petitioner claimed Cree heritage and specified the tribal name as Chippewa Cree. According to the list of designated tribal agents for service of notice for 2010, the only Cree tribe is the Chippewa Cree Tribe. (75 Fed.Reg. No. 96 28127 (May 19, 2010).) There is no indication whatsoever in the record that petitioner claimed Chippewa heritage. The ICWA notice was complete as to all tribes for which petitioner claimed heritage.

DISPOSITION

The petition is granted as to the denial of services for petitioner. Let a peremptory writ of mandate issue directing respondent juvenile trial court to conduct a new disposition hearing to consider whether services should be provided to petitioner. The petition is denied as to the ICWA claim. The request for stay of the juvenile court proceedings is denied. This decision is final forthwith as to this court. (Cal. Rules of Court, rule 8.490(b)(3).)

We concur: ROBIE ,J. MAURO ,J.


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