Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. OJ06005582
Margulies, J.
The parents of S.G. (Father and Mother) appeal from a final judgment terminating their parental rights and setting adoption as the permanent plan for S.G. Father and Mother contend that the judgment must be reversed because (1) the Alameda County Social Services Agency (the Agency) and the juvenile court failed to make appropriate inquiries under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and failed to comply with ICWA notice requirements, and (2) no substantial evidence supported the juvenile court’s order terminating reunification services to Father at the six-month review hearing. We affirm.
I. BACKGROUND
A. Dependency Proceedings and Orders
In November 2006, the Agency filed a petition on behalf of the minor, S.G., born that month, alleging that he came within the provisions of Welfare and Institutions Code section 300. The petition alleged under section 300, subdivision (b) that the child had suffered, or there was a substantial risk the child would suffer, serious physical harm or illness (1) as a result of the failure or inability of his parents to supervise or protect the child adequately; and (2) due to the parents’ inability to provide regular care for the child caused by their mental illness, developmental disability, or substance abuse. The petition further alleged that three of S.G.’s half-siblings were removed from Mother’s care due to Mother’s mental health issues and unstable housing, and that she failed to reunify with these half-siblings and her parental rights as to all three had been terminated.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The petition stated that Mother was developmentally delayed and had an IQ of 73, had symptoms of depression and was described as erratic, impulsive, and unable to read S.G.’s cues or distress. She was described by psychologist, Dr. Warren Taylor, as being immature and extremely defensive, and as having impaired judgment and low tolerance for frustration, all of which would hinder her ability to provide appropriate care for S.G. The petition further stated that children were not permitted in the subsidized apartment complex for developmentally delayed and mentally ill adults where Mother resided.
Regarding Father, the petition stated that he had a history of domestic violence in which he physically assaulted Mother while she was pregnant with S.G.’s half-sibling E.G. (born in November 2005). Father was unable to provide care for S.G. due to his mental health issues, including diagnosed personality disorder, adjustment disorder with anxiety, and excessive cannabis use.
In its detention report, the Agency cited findings in E.G.’s 2005 dependency proceedings that Father had an incident of domestic violence with his late wife in 1998, a conviction under Penal Code section 415, subdivision (2) in August 1999, and that Father was arrested for engaging in a physical altercation with Mother when she was pregnant with E.G. in March 2005. According to the report, Father was determined by a paternity test to be E.G.’s father, but his parental rights were terminated after he failed to comply with the case plan. At the detention hearing, the court ordered S.G. detained in shelter care.
In its jurisdiction/disposition report filed on December 5, 2006, the Agency noted that Father was unable to provide care and supervision for S.G. because his housing agency did not allow children to reside there. The report stated that Father had a series of criminal charges filed against him, including arrests and convictions for fighting, petty theft, and driving while intoxicated, and arrests for battery, domestic violence, solicitation of prostitution, and drug possession (three times).
An addendum report filed on February 21, 2007 in connection with the continued jurisdictional hearing noted Father’s request that he have custody of S.G. He told the case worker that during E.G.’s dependency case he completed parenting and anger management classes, and obtained a bigger place to live, but that the social worker had lied about his progress and visits with E.G. and his attorney had not represented him in the case.
The addendum report stated that the parents had weekly supervised visits with S.G. beginning on December 15, 2006. Father argued with his sister, who was present at the visitation on December 15, when she advised him not to hold the baby’s bottle too high. According to the report, during a visit on December 22, the parents had to be reminded about supporting S.G.’s head when holding him. S.G.’s socks came off when Father was holding him and when he was asked to put the socks back on the baby, Father did not comply. Father began separate visits on January 5, 2007, and appeared to be more engaging with S.G., talking, singing, and cooing to him. Father was able to demonstrate his ability to support the baby’s head when holding him, changed his diaper, and was able to feed and burp him.
The social worker learned from Father’s medical doctor, Dr. Starks, that Father suffers from a seizure disorder and syncopy (which is a loss of consciousness) and has a history of substance abuse. Dr. Starks indicated that there was a risk involved in allowing any parent with a seizure disorder to care for a child, even if the parent is on medication. Father was not taking his seizure medication consistently and had had a seizure within the last year.
Despite the Agency’s recommendation that reunification services be denied to both parents, the court granted services to Father only. The court declared Father to be the presumed father of S.G. and ordered the Agency to arrange for visitation between S.G. and Father.
We will not further recount here the facts and evidence pertaining to the eventual termination of Mother’s parental rights except those relevant to the claimed violations of the ICWA. Although Mother appeals from the termination of her rights, she has limited her appellate arguments to those raised by Father. Only Father’s ICWA arguments would, if meritorious, affect the termination of Mother’s parental rights.
The Agency filed an interim review report on May 18, 2007. The Agency stated that Father started individual therapy and a parenting education course in March 2007, with Dr. Niiana Kweku. Dr. Kweku reported that Father needed a lot of guidance and that he had to frequently repeat things to Father before he understood. At the May 18 hearing, the court continued the hearing for further placement review. Additional placement review hearings occurred on June 1, 15, and 29, and July 13, because S.G. had not been placed in suitable foster care.
The Agency’s six-month status review report filed on July 17, 2007 recommended that reunification services be terminated for Father. The report summarized the results of a psychological evaluation of Father conducted by Dr. Sherry Lebeck. Dr. Lebeck found that Father was not capable of caring for his infant son due to his physical condition, psychological state, and lack of plans concerning how to care for his son. Although the social worker found Father to be in compliance with his parenting education program and individual therapy responsibilities, he was considered to be in partial compliance with his overall client responsibilities. He was considered to be resistant to participating in the psychological evaluation and had to be repeatedly reminded to sign a consent form to allow the social worker to obtain information from his medical doctor to verify that he was taking his medication and cooperating with substance abuse testing.
The social worker reported that Father was having weekly supervised visits with S.G. There had been three missed visits. Father engaged appropriately with minor during the visits. Dr. Shakib, a psychology intern who supervised Father’s visits with S.G., reported that when the missed visits occurred Father was focused on how the Agency was trying to separate him from S.G., and that he responded inappropriately to her attempts to get him to understand the situation.
The Agency found that it would be detrimental to reunify S.G. with Father due to Father’s psychological state, seizure disorder, and lack of means to ensure that his son would be well cared for. According to the social worker, Father continued to deny his domestic violence history and blamed the Agency for his distress, whether it was a missed visit or the Agency not immediately returning his telephone calls.
At the report and review hearing on July 19, 2007, Father requested that S.G. be placed with him and the court set the date for a contested six-month review hearing. An addendum report filed on October 19, 2007, the day of the contested hearing, stated that visitation services for Father had been terminated due to Father’s inappropriate behavior toward his psychologist. Father would raise his tone toward S.G. and bounce the baby in a jerking manner when he was angry with Dr. Shakib or the social worker. Visitation through another agency had also not gone well due to Father’s argumentative and demanding behavior. At this visit, the social worker became concerned about his possible intoxication. The Father began talking to S.G. about “evil residing in [the social worker’s] soul.”
Father’s medical doctor reported that he was in compliance with his seizure medication. However, the doctor also stated that Father is highly susceptible to further episodes based on his abnormal EEG.
At the contested six-month review hearing, the social worker testified that Father had not suffered a seizure since October 10, 2006. She further testified that he had completed a parenting course regarding his daughter, E.G. He had consistently attended individual therapy and there was no evidence that he had a current drug abuse problem. He had been consistent in appearing for visitation, was affectionate toward S.G., and S.G. appeared to be comfortable with him. The social worker remained concerned about his parenting skills, however. She expressed concern that Father would become agitated toward her or other staff and raise his voice in the baby’s presence, and lose his focus on the baby or attempt inappropriately to engage the baby in conversation. She also stated that Dr. Lebeck’s report reflected the same types of concerns that she had in watching Father’s interaction with S.G.
The court found that Father’s progress in alleviating the causes necessitating placement was minimal and that there was no substantial probability that S.G. would be returned to Father’s custody in six months. The court also indicated that based on Dr. Lebeck’s opinion, Father was unable to care for S.G. The court found clear and convincing evidence that reasonable services had been provided or offered to Father. It ordered that reunification services for Father be terminated. The court set the matter for a section 366.26 hearing on February 21, 2008.
The Agency’s section 366.26 report recommended adoption as the permanent plan for S.G. An adoption assessment found S.G. to be adoptable. His proposed adoptive family had a completed and approved home study. In an addendum report prepared for the section 366.26 hearing, the Agency stated that Father had no visits with S.G. since November 2007. The report also noted that Father had missed scheduled visits without calling.
The court found by clear and convincing evidence that it was likely the child would be adopted. It terminated the parental rights of both parents based on its previous findings and orders terminating services to them. As discussed in the next section, the court also found that S.G. was not an Indian child and that the ICWA does not apply in this case.
B. ICWA
In its detention report filed on November 21, 2006, jurisdiction/disposition report filed on December 5, 2006, interim review report filed on May 18, 2007, status review report filed on July 17, 2007, and addendum report filed on October 19, 2007, the Agency reported that the ICWA did not apply to S.G.
For the first time in its 366.26 WIC report filed on February 14, 2008, 15 months after S.G.’s dependency proceedings began, the Agency reported the following: “The Indian Child Welfare Act does or may apply. [¶] The child, [S.G.] may be [an] Indian child with the Unknown tribe(s). [¶] [Mother] filled out the JV-130, the Parental Notification of Indian status, on 12/27/07. On that form she indicated that she might have Indian ancestry. However, she also told the worker that her heritage was white and German. She had no information as to what tribe, but thought her mother’s parents might be Indian. When questioned by Supervising Child Welfare Worker Francesca Crothers, the mother did not seem to show an understanding of what Indian meant. The undersigned spoke to the maternal grandmother, Sumayyah Mustafa, on 01/08/08 and questioned her as to any possible Indian heritage. Ms. Mustafa indicated that she was not aware of any details, but thought her grandparents might have had Indian ancestry. Her grandparents are deceased and she had no family members to ask. Subsequently, in the course of filling out forms on family background for the undersigned, Ms. Mustafa indicated that there was no Indian ancestry on either side of her family, and that no one in her family was registered or had a Certificate of Indian Blood. A review of the case file indicated that when questioned earlier, the maternal grandmother had indicated that there was no Indian ancestry in her family. [¶] [Father] indicated to the undersigned during an office visit on 11/30/07 that he might have Indian blood on his father’s side, but didn’t know anything more than that. He was to ask other family members. When the undersigned had not gotten a response, [Father] was contacted again on 12/13/07. [Father] had no information. The Bureau of Indian Affairs was noticed for this hearing. Findings had been previously made as to [S.G.’s] full sibling that ICWA did not apply. [¶] The undersigned is requesting that the Court make a finding that [S.G.] is not an Indian child and ICWA does not apply.”
The Agency had previously requested that the court take judicial notice of its findings and orders in E.G.’s dependency proceedings.
The Bureau of Indian Affairs (BIA) was noticed for the section 366.26 hearing. (Judicial Council Forms, form JV-135.) The BIA responded as follows: “The family has provided insufficient information substantiating any federally recognized tribe. The family must provide a history back to the year 1900 with names, birth dates and/or birthplaces of ancestors to help in establishing a biological link with the original ancestral tribal member(s).”
As stated earlier, the court found that S.G. was not an Indian child and the ICWA does not apply. Father and Mother filed timely notices of appeal from the orders terminating their parental rights.
II. DISCUSSION
Father and Mother contend that the juvenile court (1) failed to make appropriate inquiry under the ICWA and failed, along with the Agency, to comply with ICWA notice requirements; and (2) erred in terminating Father’s reunification services because substantial evidence did not support its finding that Father failed to participate regularly and make substantive progress in his court-ordered treatment plan.
As an initial matter, the Agency asserts that Father and Mother waived their right to raise ICWA issues by failing to raise any such issues in the trial court. The Agency relies on In re S.B. (2005) 130 Cal.App.4th 1148 for the proposition that a parent forfeits the right to raise ICWA issues on appeal by failing to timely assert such rights in the juvenile court. According to the Agency, the general rules of error preservation are not preempted by the ICWA.
We are not persuaded. The court in In re S.B. made it clear that the mother’s delay in raising ICWA issues would not have forfeited her right to appeal on ICWA grounds but for the fact that the Indian tribe to which she belonged had itself appeared in the proceeding and chosen not to request that prior court actions be invalidated: “[I]t has been held—including by this court—that a parent does not necessarily waive an ICWA notice issue by failing to raise it below. [Citations.] These cases . . . reason that ‘ “[t]he notice requirements serve the interests of the Indian tribes ‘irrespective of the position of the parents’ and cannot be waived by the parent. [Citation.]” [Citation.]’ [Citation.] [¶] Once the child’s tribe has appeared and has not asked, on its own behalf, that any prior actions be invalidated, this rationale does not apply.” (In re S.B., supra, 130 Cal.App.4th at p. 1159.)
In this case, no Indian tribe appeared to represent its own interests. Mother and Father did not forfeit the right to assert ICWA inquiry and notice errors by failing to raise them in the juvenile court because the ICWA’s inquiry and notice requirements are intended to protect the interests of nonappearing Indian tribes irrespective of the parents’ positions. We turn now to the merits of Mother’s and Father’s ICWA claims.
A. ICWA Inquiry and Notice Issues
Mother and Father argue that there is no evidence in the record that the Agency or the juvenile court complied with their statutory duty to inquire about S.G.’s possible Indian status. (See § 224.3.) Although the Agency recited in several of its reports filed during the course of the proceedings that S.G. was not an Indian child and the ICWA did not apply, it did not state how it knew the ICWA did not apply or whether it had asked the parents about the child’s possible Indian status. There is no confirmation that either parent ever completed Judicial Council form JV-130 (Parental Notification of Indian Status), which the parents must be ordered to complete at their first appearance in a dependency case. (See former Cal. Rules of Court, rule 1439; Cal. Rules of Court, rule 5.481(a)(2).) Although the Agency asserted in its 366.26 report that Mother had completed the form, no form by either parent appears in the record.
On the issue of notice, the parents maintain that the notice to the BIA was late and did not contain the relevant information so that the BIA could correctly determine if S.G. was an Indian child. The Agency failed to send out notice until just before the last hearing in this proceeding, the section 366.26 hearing. According to the parents, the Agency failed in its duty to send out notice for all previous hearings and the juvenile court failed in its duty to ensure that this occurred. Further, the Agency did not attach a copy of the section 300 petition or a copy of S.G.’s birth certificate to the notice, as required by section 224.2, subdivision (a)(5). According to Mother and Father, the Agency might have had more information to provide to the BIA had it made the appropriate inquiries about possible Indian ancestry. Finally, the court failed to allow 60 days to pass after receipt of this notice by the BIA before determining that the ICWA did not apply. (§ 224.3, subd. (e)(3).) The BIA received notice on February 7, 2008, only 14 days before the section 366.26 hearing on February 21, 2008.
We must assume that the Agency and juvenile court failed to make appropriate inquiries about S.G.’s possible Indian ancestry at the outset of this dependency proceeding, and failed to require that the parents complete JV-130 forms, at least at that time, because there is no record establishing that such acts occurred. The record does establish that verbal inquiries were eventually made and that the Agency followed up appropriately on the information it received. We will not double-count the Agency’s delayed inquiry, however, by also faulting it (or the court) for the lateness of the notice to the BIA. Section 224.2, subdivision (b) does not require notice to be sent until “it is known or there is reason to know that an Indian child is involved.” That did not occur until the parents first informed the Agency of possible Indian ancestry in December 2007. Regarding the other notice issues Mother and Father raise, we will assume without deciding that once the BIA was notified the court should have allowed 60 days to pass before determining that the ICWA did not apply. The notice sent to the BIA, while it did not attach all of the documents referred to in section 224.2, provided all of the information available that could have assisted the BIA in making a determination.
Even if the Agency and the court failed in their duties as assumed, Father and Mother must still show that there is a reasonable probability that they would have obtained a more favorable result in the absence of the error. (In re S.B., supra, 130 Cal.App.4th at p. 1162.) There must be some indication in the record that asking the parents to complete JV-130 forms would have generated information going beyond a vague suggestion of possible Indian ancestry that was contradicted by other information. As stated in In re Rebecca R. (2006) 143 Cal.App.4th 1426 at page 1431: “The knowledge of any Indian connection is a matter wholly within the appealing parent’s knowledge and disclosure is a matter entirely within the parent’s present control. The ICWA is not a ‘get out of jail free’ card dealt to parents of non-Indian children, allowing them to avoid a termination order by withholding secret knowledge, keeping an extra ace up their sleeves. Parents cannot spring the matter for the first time on appeal without at least showing their hands. Parents unable to reunify with their children have already caused the children serious harm; the rules do not permit them to cause additional unwarranted delay and hardship, without any showing whatsoever that the interests protected by the ICWA are implicated in any way.”
Here, the parents did not provide sufficient information to warrant a reversal under the ICWA. The maternal grandmother was vague regarding Indian heritage and ultimately filled out paperwork indicating no Indian heritage. Father was unable to provide any information other than that he might have Indian ancestry on his father’s side. Mother made contradictory representations and evidently did not have a sufficient understanding of what Indian ancestry would be to provide useful information. Notice to the BIA turned up no evidence of tribal membership. On this record, a reversal would cause unwarranted delay and hardship without advancing the interests protected by the ICWA in any discernible way.
The case Mother relies on, In re Mary G. (2007) 151 Cal.App.4th 184, is distinguishable. In that case, the father claimed ancestry in one particular band of a named Indian tribe. (Id. at p. 210.) The agency conceded that it had mailed notice to that tribe at the wrong address, and the record was devoid of any evidence the tribe received actual notice. (Ibid.) The Court of Appeal held that the error was prejudicial because “the record lack[ed] conclusive evidence the tribe received actual notice.” (Id. at p. 211.) Given the specificity of the father’s information, there was at least some probability that actual notice to the tribe in question would have yielded a positive response.
In our case, neither parent provided specific or reliable information of possible Indian heritage and there is no conclusive evidence of a lack of notice to a specific tribe in which either parent claimed ancestry. There is accordingly no basis for finding a reasonable probability that the result would have been different for the parents, the child, or any tribe had the ICWA inquiries and notice been handled differently.
B. Termination of Reunification Services
Father contends that the juvenile court erred when it terminated his reunification services at the six-month review hearing. As stated In re Jesse W. (2007) 157 Cal.App.4th 49, 64, quoting Daria D. v. Superior Court (1998) 61 Cal.App.4th 606, 612: “Construed together, sections 361.5, subdivision (a)(2) and 366.21, subdivision (e) provide the court with the option to terminate reunification services after six months when a parent of a minor under the age of three has ‘made little or no progress in [his or her] service plan[] and the prognosis for overcoming the problems leading to the child’s dependency is bleak.’ ” Even if the court finds regular compliance with a reunification plan, it may terminate services if it determines that there is no substantial probability that the minor will be returned to the parent’s custody within the extended services period. (Armando D. v. Superior Court (1999) 71 Cal.App.4th 1011, 1019.) According to Father, the juvenile court erred in terminating services to him because he participated regularly and made substantial progress in his court-ordered treatment plan and there was a substantial probability that S.G. would be returned to him at the next review hearing.
Section 366.21, subdivision (e) provides in pertinent part as follows: “The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return [of the child to the parent’s custody] would be detrimental. In making its determination, the court shall review and consider the social worker’s report and recommendations and the report and recommendations of any child advocate appointed pursuant to Section 356.5; and shall consider the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which he or she availed himself or herself to services provided.”
Sections 361.5, subdivision (a)(2) provides in pertinent part: “For a child, who on the date of initial removal . . . was under the age of three years, court-ordered services shall not exceed a period of six months from the date the child entered foster care.”
We must uphold the juvenile court’s decision if substantial evidence supports it. (Armando D. v. Superior Court, supra, 71 Cal.App.4th at p. 1024.) In making that determination, we view the evidence in the light most favorable to the juvenile court’s order, drawing every reasonable inference and resolving all conflicts in the evidence in its favor. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
At the contested six-month review hearing, the juvenile court had before it the following facts and evidence weighing against a determination that Father had made progress in his treatment plan or that there was a substantial probability that he could obtain custody of S.G. if afforded another six months of reunification services: The Agency’s status review report recommended that reunification services be terminated. A psychological evaluation conducted by Dr. Lebeck found that Father was not capable of caring for S.G. due to his physical condition, psychological state, and lack of plans for how to take care of the child. She diagnosed him as having a personality disorder, seizure disorder, and paranoid personality features. According to Father’s doctor, he was highly susceptible to seizure episodes based on his EEG. The social worker reported that she left a message for Father’s individual therapist, Dr. Kweku, asking him to call her back if Father had made any progress and stating that if she did not hear from him she would assume that Father’s therapeutic progress remained at the status quo level. Dr. Kweku did not call her back. Father had left disturbing voice messages for the social worker suggesting that “evil reside[d]” in her because she opposed his reunification with S.G. and playing gospel music in order to chase the “evil spirit” away from her. He had also demonstrated angry, demanding, and argumentative behavior toward the staff of a private agency that was supervising his visitation with S.G. The agency terminated its services to Father in September 2007, citing among other reasons, his failure to respond to therapeutic interventions, expressions of paranoid thinking, and slapping of a staff member’s hand.
At the review hearing, Father’s social worker testified that Father had trouble focusing on S.G. when he was angry toward her or others during visitation and would bounce the baby in an agitated way, causing the baby to cry. She expressed concern that “when he gets agitated for external reasons that he could just not be appropriate with the baby, that it could be taken out on the baby.” She believed that his behaviors and interactions with her and other staff were getting worse and observed that there would typically be improvement in these behaviors if a parent was meaningfully participating in therapy.
A May 2007 diagnosis evaluation and treatment plan prepared by Dr. Shakib, the psychology intern who supervised Father’s visits with S.G., concluded that Father was at very high risk for not having a permanent living arrangement, not having the ability to establish and maintain relationships or a social support system, and returning to a level of functional impairment. Father did not have a steady source of employment income. He reported that he received income from Social Security disability for his seizure disorder and did carpentry and painting work “as needed.”
In our view, the foregoing constitutes substantial evidence that Father was not making meaningful progress in his court-ordered treatment plan and that there was no substantial probability he would be given custody of S.G. after another six months of services. Although there was also evidence showing that Father had availed himself of the services offered to him, the juvenile court did not err in denying him extended services based on this record.
III. DISPOSITION
The judgment is affirmed.
We concur: Marchiano, P.J., Swager, J.