Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court for Los Angeles County, Ct. No. CK76415, Valerie L. Skeba, Referee.
Lee Gulliver, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owen, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
WILLHITE, Acting P. J.
Defendant L.M. (father), father of S.M., appeals from an order of the juvenile court, made at the six-month review hearing under Welfare and Institutions Code section 366.21, subdivision (e), terminating family reunification services for him. He raises two issues on appeal. First, he contends the juvenile court abused its discretion by terminating services for him while continuing services for S.M.’s mother. Second, he contends the juvenile court erred by finding that the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) did not apply, when notices were sent to the relevant tribes less than 60 days before the court made that finding and some of the tribes had not yet responded. Finding no abuse of discretion or prejudicial error, we affirm the order.
Further undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
S.M. was born in September 2007. A few days after her birth, the Los Angeles Department of Children and Family Services (DCFS) received a referral alleging that mother had tested positive for methamphetamine, amphetamine, marijuana, and nicotine during prenatal care and had admitted to hospital staff that she had an 18-year history of drug use. The allegation could not be substantiated because mother would not sign a release of any documents and would not cooperate with DCFS. Over the course of the next 15 months, DCFS received several additional referrals alleging that mother, or mother and father, were using drugs in S.M.’s presence or that mother was intoxicated. Those referrals were either closed as unfounded because DCFS found no signs of abuse or neglect, or closed as inconclusive because DCFS lost contact with the family.
DCFS subsequently determined that mother had sustained numerous convictions for drug-related offenses from 1989 to 2001.
In January 2009, DCFS received yet another referral regarding S.M., who was then 16 months old. On January 24, a Long Beach police officer responded to a call from someone reporting drug use at mother’s home. That person reported that he had gone to the house to speak to the mother of his child, and he saw a 15-month old child sitting on the floor while several adults were using crystal methamphetamine. He called the police and, while waiting for the officer to arrive, he saw four different cars come to the house and then leave; he believed there were drug sales going on. When the police officer arrived, he detected a very strong odor of cigarettes and methamphetamine coming from the house. The person who answered the door would not allow the officer to come in, but the officer could see a baby crawling on the floor. The officer told the person who had called the police that he had no authority to enter the house.
Social workers from DCFS went to the house several times over the next few days, but no one answered the door, even when the social worker could hear someone inside. On January 29, 2009, after DCFS warned mother that her cash aid would be cut off if mother did not contact DCFS, mother’s cash aid was suspended.
Two weeks later, DCFS received another referral alleging that mother was using drugs, most likely methamphetamine, and that father smoked marijuana constantly in front of S.M. A social worker went to the referral address a few days later. Mother answered the door and spoke to the social worker through the screen door, but she would not allow the social worker into the house. Mother denied using illegal drugs and said father, who had a medical marijuana card, did not smoke in front of S.M. The social worker called law enforcement, but by the time the police arrived, mother and father had left with S.M. The social worker tried to contact mother and father several times over the next few days, but was unsuccessful. Ultimately, the social worker left notices of hearing with the person who answered the door, who said he would give them to mother and father.
DCFS filed a petition under section 300, subdivision (b). The first count alleged that mother and father established a detrimental and endangering home environment for S.M. because they used methamphetamine and marijuana in S.M.’s presence. The second count alleged that mother has an extensive history of drug abuse, with multiple criminal convictions related to drug use.
Father appeared at the detention hearing held on February 27, 2009; mother did not. Father’s counsel informed the court that father had called mother (who did not live with father) and left several messages urging mother to turn S.M. in to DCFS. The juvenile court issued a protective custody warrant for S.M. and issued an arrest warrant for mother, although the court said it would hold the warrant until the next court day, to give mother another opportunity to turn S.M. in to DCFS. The court also warned father that, because S.M. was so young, DCFS may seek to limit reunification services to six months, so the court recommended that father begin to drug test and start parenting classes immediately.
Mother appeared in juvenile court with S.M. on the next court day, March 2, 2009. The court ordered S.M. detained in shelter care. Mother was drug tested after the hearing, and tested positive for methamphetamine and alcohol.
In an interview with the social worker on March 11, 2009, father admitted that mother has had a drug problem for 18 years, and that mother had used methamphetamine and he had smoked marijuana in S.M.’s presence. He explained that a family law court had given mother full custody of S.M., with visitation for father three days a week, and in order to see S.M., he allowed mother to use methamphetamine in his house. He also explained that he used medical marijuana (he provided a medical marijuana card and physician’s statement), and said that although he smoked only on the balcony or in his room, S.M. liked to follow him and therefore was exposed to it sometimes. Although father denied using methamphetamine, the results from a drug test administered the day after the interview showed a positive screen for methamphetamine and marijuana.
At the jurisdiction hearing held on March 26, 2009, mother and father submitted the petition on the basis of DCFS’s reports, and the juvenile court sustained both counts. The court set a date for a contested disposition hearing, and warned mother and father that reunification services could be limited to six months due to S.M.’s young age. At the subsequent disposition hearing, held on April 28, 2009, the court ordered family reunification services for mother and father, consisting of parenting education, drug rehabilitation with random testing, and individual counseling to address substance abuse issues.
Over the next six and a half months -- from April 28 to November 12, 2009 father enrolled in and completed a 13-week drug and alcohol education program and participated in random drug testing. During that time, he failed to report for testing three times (on May 12 and 26, and August 5), tested positive for methamphetamine three times (on July 15 and 31, and August 21), and tested positive for marijuana every time he tested.
Mother entered a residential drug treatment program in early April. After an initial positive drug test, mother tested negative for all drugs until June 17, when she tested positive for methamphetamine. She was dropped from the program, and did not participate in any other program until she re-entered the residential program on September 18.
On September 18 -- a week short of six months after the juvenile court ordered father to enroll in parent education classes and warned him that reunification services could be limited to six months -- father called DCFS to say that he was finding it difficult to enroll in parenting classes because he was a marijuana user and he could not afford to pay for the classes that would allow him to enroll. Father did, however, participate in Parents Anonymous. On September 28, the social worker gave father another set of referrals for parenting classes in response to his call (father had been given a set of referrals on April 1).
At the first scheduled six-month review hearing on October 6, 2009, mother and father both asked that the hearing be set for contest. Father’s attorney told the juvenile court about father’s difficulties in finding a low-cost or no-cost parenting class, but noted father’s participation in Parents Anonymous, which counsel was not sure would be approved by DCFS. The court observed that Parents Anonymous usually deals with child physical abuse issues, but instructed DCFS to investigate whether that program was sufficient to satisfy the parent education class requirement.
DCFS did not specifically address that issue in its subsequent report or at the contested six-month review hearing. Instead, DCFS focused on father’s positive drug tests and failure to participate in individual counseling to address his substance abuse. DCFS reported on an interview the social worker had with father on November 3, in which father said that he did not have a methamphetamine problem, and denied using methamphetamine on those occasions when he tested positive. He said that he continued to use marijuana because he had a medical marijuana card, and believed that he should not have to go to individual counseling to address substance abuse issues because he had not been testing positive for methamphetamine, so the “problem has been dealt with.” DCFS recommended that reunification services be terminated as to both father and mother.
At the contested hearing, father’s counsel conceded that father was not in full compliance with his case plan, but said his progress was impeded due to financial difficulties he was experiencing. Counsel also noted that father had “been testing free of methamphetamine for a number of times” recently and was regularly visiting S.M., and asked that father be given six more months of services.
The juvenile court found that mother was in compliance with the case plan, but father’s compliance was only partial, and that S.M. could not be safely returned to her parents’ custody at that time. The court found that father’s compliance was not sufficient to continue reunification services and therefore terminated those services, but found there was a substantial probability that S.M. could be returned to mother’s custody within six months and therefore continued services for mother. Despite terminating father’s services, the court suggested that father continue to comply with the case plan and file a section 388 petition to have services reinstated “when he’s a little bit farther along.” The court set a hearing for the 12-month review under section 366.21, subdivision (f); it did not set a permanent plan hearing under section 366.26. Father timely filed a notice of appeal from the order terminating his reunification services.
The notice of appeal, which father filed in propria persona, incorrectly states that the order was made under section 366.26 and terminated his parental rights.
DISCUSSION
A. Termination of Father’s Reunification Services
Father contends the juvenile court abused its discretion by terminating his reunification services. He argues that he complied with most of his case plan, showed interest in reunifying with S.M., and assisted the court and DCFS by providing information about mother and encouraging her to turn S.M. in to DCFS, and that it would be in S.M.’s best interests for him to continue with and finish his case plan in light of the continuation of reunification services for mother. We find no abuse of discretion.
Except in certain circumstances not present here, whenever a child is removed from a parent’s custody, the juvenile court must order the social worker to provide family reunification services. (§ 361.5, subd. (a).) If the child is under the age of three when removed from the parent’s physical custody, those services must be provided for the time period beginning with the dispositional hearing and ending with the date set for the six-month review hearing under section 366.21, subdivision (e). (§ 361.5, subd. (a)(1)(B).) At the six-month review hearing, the juvenile court must order the return of the child to the parent’s physical custody unless the court finds that the return of the child would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. (§ 366.21, subd. (e).) The failure of the parent to participate regularly and make substantive progress in court-ordered treatment programs constitutes prima facie evidence that return of the child would be detrimental. (Ibid.) If at the six-month review hearing the court does not order the return of the child to the parent’s custody, it must terminate reunification services unless it finds there is a substantial probability that the child may be returned to the parent within six months or reasonable services had not been provided to the parent, in which case the court may order that reunification services be continued for an additional six months. (§ 366.21, subd. (e); see also § 361.5, subd. (a)(2); In re Jesse W. (2007) 157 Cal.App.4th 49, 59.) Thus, by statute, a parent of a child under the age of three is limited to a maximum of six months of reunification services unless the parent “has participated in and made substantive progress with services and has shown there is a substantial probability of reunification by the 12-month [review] date” set forth in section 366.21, subdivision (f). (In re Jesse W., supra, 157 Cal.App.4th at p. 63.)
In this case, father participated in some, but not all, of the ordered services during the first six months after S.M. was detained. Despite the juvenile court’s repeated warning that reunification services may be limited to six months, father did not ask for the social worker’s assistance in finding an affordable parent education class that would accept him until a week before the six-month deadline. And, despite testing positive for methamphetamine several times and admitting that he smoked marijuana in front of S.M., father denied he had a substance abuse problem and said he did not need to attend any court-ordered individual counseling to address substance abuse issues. In light of father’s only partial compliance -- and his insistence that he did not need to comply with the court’s order that he attend individual counseling -- the juvenile court reasonably could conclude that father had not “participated in and made substantive progress with services” and had not “shown there is a substantial probability of reunification by the 12-month [review] date.” (In re Jesse W., supra, 157 Cal.App.4th at p. 63.)
Father argues, however, that the juvenile court nevertheless abused its discretion by terminating services for him while granting mother an additional six months of services. We disagree.
“The statutory scheme allows services to be provided for one parent but not the other. [Citations.] The court’s determinations regarding whether to offer services, and which particular services to offer, are necessarily made as to each parent individually.... Indeed, at each review hearing, the court must evaluate the efforts or progress toward reunification made by each parent individually by considering ‘the extent to which he or she availed himself or herself to services provided.’ [Citations.] Although the purpose of services is to facilitate a child’s return to parental custody, reunification often involves one, but not both, parents. [¶]... Because reunification services are a benefit, not a constitutional entitlement, the juvenile court has discretion to terminate those services at any time, depending on the circumstances presented. [Citation.] In deciding whether to terminate the services of one parent who has failed to participate or make progress toward reunification, the court is not constrained by a consideration of the other parent’s participation in services.” (In re Jesse W., supra, 157 Cal.App.4th at pp. 59-60.)
As one court has noted, “when reunification efforts continue for one parent... a court has the discretion to offer services to the nonreunifying parent, and in many cases may choose to do so. However, there is a secondary rationale for limiting services to the nonreunifying parent. The Legislature has recognized that in some circumstances, it may be fruitless to provide reunification services. [Citations.] In such a case, the general rule favoring reunification services is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. [Citations.]” (In re Alanna A. (2005) 135 Cal.App.4th 555, 566.)
Here, the juvenile court reasonably determined that it would be fruitless to provide further reunification services to father in light of his unwillingness to participate in an important component of his case plan -- individual counseling. As the court suggested, if father changed his mind and participated fully in his case plan while mother continued to receive services, he could bring a section 388 petition asking to reinstate services for him. But the court’s determination that father’s compliance up to that point was not sufficient to continue reunification services was not an abuse of discretion.
B. Compliance with ICWA
At her first appearance before the juvenile court, mother was asked whether she had any American Indian heritage. Mother said that she did not have enough Indian heritage to have any money rights, but that she was “five-eighths Indian.” When asked if she knew what tribe, she replied, “Yes. Chero -- Blackfoot and Apache, ” and that her father “was half.” The court ordered DCFS to investigate mother’s heritage and comply with ICWA requirements.
Father had already denied having any American Indian heritage.
At first, mother refused to cooperate with DCFS’s investigation, and the first ICWA notices (sent only to the Blackfeet Tribe of Montana and the Bureau of Indian Affairs) were entirely inadequate. The court therefore ordered DCFS to conduct a further investigation and send proper notices. This time, mother (who by then was in a residential drug treatment program) cooperated with DCFS and provided information about her relatives. The social worker then spoke to one of those relatives -- mother’s grandmother -- who said that her son (mother’s father, from whom mother initially claimed her Indian heritage) did not have any Indian heritage. Mother also told the social worker that her great, great grandfather and great grandfather (both deceased) on her mother’s side may have had some Navajo heritage, but she did not know where any of her maternal relatives were, including her mother and siblings, and had no contact information for them. Nevertheless, in early July 2009, DCFS sent ICWA notices to eight Apache tribes, four addresses for the Navajo Nation, the Blackfeet Tribe of Montana, and the Bureau of Indian Affairs. By the next court hearing, on July 22, 2009, DCFS had received responses from some, but not all, of those tribes. All of the responses were negative. At that hearing, the court noted that not all of the tribes had yet responded, but it found that ICWA did not apply.
Father argues on appeal that the juvenile court erred by finding that ICWA did not apply even though not all of the tribes had responded to the notices. Father observes that, although a court may find that ICWA does not apply even in the absence of a determinative response from the tribe or tribes to which notices were sent, it may do so only after 60 days has passed after the tribe or tribes received notice. (Citing § 224.3, subd. (e)(3).) Because the court made its finding that ICWA did not apply less than a month after the nonresponding tribes received notice, father contends the finding must be vacated and the matter remanded for full compliance with ICWA. We find any error was harmless. (See In re S.B. (2005) 130 Cal.App.4th 1148, 1162 [ICWA notice violation may be found to be harmless error].)
First, we note that mother originally claimed Indian heritage through her father, but her father’s mother told the social worker that her son did not have any Indian heritage. Thus, to the extent mother claimed Indian heritage through her father, no ICWA notice was required. In any event, by the time father’s reunification services were terminated in November 2009, more than four months had passed since the notices were received by the tribes, and there is no indication that any tribe responded that S.M. was eligible for membership in that tribe. Thus, we conclude that if the juvenile court erred by finding prematurely that ICWA did not apply, any such error was harmless.
DISPOSITION
The order terminating father’s reunification services is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.