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In Re C.B. et al., Persons Coming Under the Juvenile Court v. Michael B

April 19, 2013


(Super. Ct. Nos. JD231151, JD232057, JD232058, JD232124)

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

In re C.B. CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Michael B. (father) appeals from the juvenile court's order terminating his parental rights as to minors C.B., Matthew B., M.B., and Phillip B. (Welf. & Inst. Code, § 395.)*fn1 Father contends the court erred by denying his petition to modify court orders (§ 388) and by failing to conduct an adequate investigation under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We shall affirm.


In December 2010, Sacramento County Department of Health and Human Services (the Department) filed a section 300 petition as to the newborn infant C.B., alleging that due to the substance abuse problem of mother (Miriam L.), the minor tested positive at birth for hydromorphone and tetrahydrocannabinol.*fn2

Father said that although he and mother had been divorced since 2004 or 2005, he was C.B.'s father. He and mother had had intercourse around the time of C.B.'s conception, he was listed as the father on the birth certificate and signed a declaration of paternity at the hospital, and he held the child out as his own. He acknowledged, however, that another person whom he did not name might be the biological father.

Father reported bipolar disorder, diagnosed in childhood, for which he was currently being treated. He also claimed to have smoked medical marijuana, but not in six months. He received Supplemental Security Income (SSI) for his bipolar disorder and for back problems. He had recently tested negative for drugs.

An AOD (alcohol and other drugs) assessment found him to be "an occasional user with no or minimal related problems." He was referred for random drug testing.

Father said he was taking care of his other two children, aged nine and 11, over whom he had primary custody. He had recently relocated from the Redding area to look for work. Once he had stable housing he wanted the infant minor placed with him.

Father filed an ICWA-020 form claiming Seminole ancestry. Mother filed an ICWA-020 form claiming Apache ancestry.

At the contested detention hearing, the juvenile court found father to be C.B.'s presumed father and ordered an ICWA investigation. But after the Apache and Seminole tribes returned negative responses to the notices sent, and father retracted his claim of Indian ancestry, the court ruled in March 2011 that the ICWA did not apply.

The juvenile court ordered the minor's placement in foster care and granted reunification services to both parents.

On March 22, 2011, the Department recommended placing the minor with father under dependent supervision because father now had adequate housing, his visits had gone well, he was testing negative for drugs, he was attending group counseling, and he planned to attend parenting classes. The juvenile court made the requested order.

Shortly afterward, the Department petitioned the juvenile court under section 388, requesting that the juvenile court remove the minor from father's custody and place him with mother under dependent supervision. The petition alleged that father had "relapsed," had left his apartment, and had left the minor and the older minors with mother. On April 1, 2011, mother allegedly found father smoking crack cocaine in the minors' presence. The Department had been unable to contact him, and his whereabouts were unknown.

In May 2011, the juvenile court placed the minor with mother under dependent supervision.

On December 29, 2011, the Department filed a subsequent supplemental petition as to C.B. (§ 342/387), alleging that mother had failed to rehabilitate from her substance abuse problem and to participate in services. Furthermore, mother had reported that father, who was using illegal substances, had located mother and the minors and had verbally and physically abused her, requiring her to move from her residence.

On January 4, 2012, the Department filed section 300 petitions as to the older minors presently in mother's custody, 12-year-old Matthew B. and 10-year-old M.B. The petitions alleged: Both parents had untreated substance abuse problems. In December 2011, mother and the maternal aunt reported that father continued to abuse illegal drugs and engaged in domestic violence with mother. Unknown men had come to the maternal aunt's home demanding payment for father's unpaid drug bills. C.B. was taken into protective custody on December 30, 2011.

The detention report as to C.B. stated that mother now claimed C.B.'s biological father was K.W., who was shot and killed by Redding police in August 2011.*fn3

At the initial hearing on the consolidated petitions, the juvenile court found that the ICWA did not ...

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