Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Jane Cardoza, Judge, Super. Ct. No. 03CEJ300106-5.
Julie Ann Bowler, for Petitioner.
No appearance for Respondent.
Dennis A. Marshall, County Counsel and William G. Smith, Deputy County Counsel, for Real Party in Interest.
OPINION
Before Vartabedian, A.P.J., Dawson, J., and Kane, J.
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court denying her reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her daughter D. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
Petitioner is a young mother with a 13-year history of drug abuse, which resulted in the removal and adoption of four of her six children in 2003 through 2005. In April 2007, petitioner’s sixth child, a daughter A., was removed from her custody at birth after petitioner and A. tested positive for methamphetamine. A protective order was issued for petitioner’s fifth child, D., born in August 2005, who was in the custody of her father Martin. However, instead of turning D. over to the social services department (department), Martin left the county with her. D.’s whereabouts would be discovered months later with the assistance of the child abduction unit.
Martin did not file a writ petition from these dependency proceedings.
Meanwhile, in April 2007, the department filed a dependency petition seeking the removal of then 19-month-old D. and newborn A. based on allegations petitioner’s drug use placed the children at risk of harm and neglect as was suffered by their four half-siblings. The juvenile court ordered the children detained pursuant to the petition and ordered the department to refer petitioner and Martin for a parenting class, mental health, and substance abuse evaluations and random drug testing. The department placed A. in foster care.
Petitioner told the social worker she thought she had Cherokee Indian ancestry through her father and that her paternal uncle, George R., lived on a reservation in Oklahoma. However, she stated she was not a registered tribal member. She completed a “Parental Notification of Indian Status,” identifying five possible tribes but did not include the names of any relatives who might have American Indian ancestry.
In May 2007, the department gave notice pursuant to the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1912) to 36 tribes, both in California and out-of-state, including the Cherokee Nation and United Keetowah Band of Cherokee, both located in Oklahoma, the Eastern Band of Cherokee Indians in North Carolina and to the Bureau of Indian Affairs (BIA). On the “Notice of Involuntary Child Custody Proceedings For An Indian Child” (JV-135), the department identified petitioner’s father, “Charles Nils Erickson,” as possibly having Indian heritage. Petitioner was provided notice that the tribes had been notified. None of the tribes served nor the BIA could confirm tribal membership or eligibility for petitioner’s children.
In June 2007, following a contested jurisdictional hearing, the juvenile court adjudged A. a dependent of the court. The court set a combined dispositional hearing for A. and jurisdictional hearing for D. in July 2007 (combined hearing). Prior to the combined hearing, the department filed a noticed motion asking the juvenile court to find that ICWA was inapplicable to the proceedings.
The juvenile court convened the combined hearing in July 2007. Petitioner did not personally appear. After the parties, including petitioner’s attorney, submitted on the department’s ICWA motion, the court found D. and A. are not Indian children pursuant to ICWA. The court continued the jurisdictional hearing as to D. and set a contested dispositional hearing as to A.
We grant real party in interest’s request to take judicial notice of the reporter’s transcript of the hearing conducted on July 31, 2007 contained in our case number F055172.
The combined hearing was conducted in October 2007. The juvenile court continued the jurisdictional hearing as to D. and denied petitioner and Martin reunification services as to A. The court also set a combined jurisdictional hearing and status review hearing as to D. and A. respectively.
In January 2008, two-year-old D. was located with her paternal grandparents in Ventura County. The department took her into protective custody and filed a first amended petition on her behalf but left her in the custody of her grandparents. The juvenile court detained D. pursuant to the first amended petition and adjudged her a dependent of the court at a jurisdictional hearing conducted in January 2008. At that same hearing, petitioner stated in open court that she had Indian ancestry and completed a “Parental Notification of Indian Status,” identifying her paternal uncle, George R., and her father “Charles Niles Erikson” as having Indian heritage through the Cherokee tribe in Oklahoma. The court directed the department to follow up on the ICWA issue and set a section 366.26 hearing as to A. for March 2008.
In its dispositional report for the April 2008 hearing, the department recommended the juvenile court deny petitioner reunification services under section 361.5, subdivision (b)(10), (b)(11) and (b)(13) because of her continuing drug use despite the loss of her parental rights as to four of her children and the opportunity to receive drug treatment. According to the department, petitioner attempted three separate times in the summer of 2003 to engage in drug treatment but chose not to continue in treatment each time. The department also recommended the court deny Martin reunification services. Under the section designated for ICWA, the department stated the court previously found ICWA did not apply to D.
In April 2008, the juvenile court conducted a combined contested dispositional hearing as to D. and a contested section 366.26 hearing as to A. Petitioner testified she had been drug-free since May 2007 and was progressing in all her court-ordered services.
Following the hearing, the juvenile court denied petitioner and Martin reunification services as to D. and set a section 366.26 hearing in August 2008. The court also terminated petitioner and Martin’s parental rights as to A. This petition ensued.
Petitioner filed a notice of appeal from the court’s order terminating her parental rights in our case number F055172.
DISCUSSION
A. Reunification Services
Petitioner argues the juvenile court erred in denying her reunification services because she made reasonable efforts to resolve her drug addiction and because providing services would be in the children’s best interest. On review, we determine whether substantial evidence supports the juvenile court's findings and orders based on the evidence before it. (In re Walter E. (1992) 13 Cal.App.4th 125, 139-140.) In this case, we conclude that it does.
Dependency law generally mandates that the juvenile court order reunification services for the parent of a child adjudged a dependent of the court. (§ 361.5, subd. (a).) However, the law also recognizes that, in some cases, it is futile to provide services. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1137.) Consequently, the Legislature set forth 15 exceptions to the general mandate, any one of which, if applicable, justifies a denial of services. (§ 361.5, subd. (b).)
In this case, the juvenile court found three of the exceptions apply: subdivision (b)(10) which pertains to a parent who failed to reunify with any siblings or half-siblings of the child and subsequently failed to make a reasonable effort to treat the problems that led to the removal of the sibling or half-sibling (subsequent reasonable efforts); subdivision (b)(11) which pertains to a parent whose parental rights over the sibling or half-sibling were severed and the parent failed to make subsequent reasonable efforts; and subdivision (b)(13) which pertains to a parent who has an extensive history of abusive, and chronic drug use for which she resisted treatment during a three-year period immediately prior to the filing of the dependency petition or failed or refused to comply with a drug treatment program on at least two prior occasions.
Petitioner argues that her circumstances do not fully satisfy the provisions of subdivision (b)(10) and (b)(11) because she made subsequent reasonable efforts to address her drug use by complying with services provided after D. and A. were detained. Her argument ignores, however, her continuing use of drugs despite multiple treatment opportunities and the permanent severance of her parental rights. Consequently, we concur with the juvenile court that petitioner’s efforts to resolve her drug abuse were not reasonable.
Further, even if, for the sake of argument, we agreed with petitioner, we would still affirm the court's denial of services under subdivision (b)(13), not only because petitioner does not challenge it but also because the evidence supports it.
Finally, even though the juvenile court could have exercised its discretion and ordered reunification services on a finding it would serve D.’s best interest, we find no abuse of the court’s discretion in it refusal to do so. (§ 361.5, subd. (c).) Given petitioner’s history of relapse, her prognosis of successfully reunifying was slim. Moreover, D. was reportedly doing well with her paternal grandparents who were willing to adopt her. Based on the foregoing, we find no error in the juvenile court’s order denying petitioner’s reunification services.
B. ICWA
Petitioner argues new information she provided on the “Parental Notification of Indian Status” (notification) form she completed in January 2008 should have prompted the department to file new tribal notices under ICWA. Its failure to do so, she claims, renders the juvenile court’s ICWA finding reversible error. Real party in interest counters that petitioner waived her right to challenge the juvenile court’s ICWA finding by not challenging it by a timely notice of appeal. We find no waiver. In dependency proceedings, the dispositional order is the first appealable order. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811.) Consequently, even though the juvenile court’s ICWA finding was made in July 2007, the court did not issue its dispositional orders as to D. until April 2008. By challenging the court’s ICWA finding along with its dispositional orders by means of this writ petition, petitioner preserved the issue for our review. Nevertheless, we find no merit to her claim the court’s ICWA finding was error.
Petitioner does not specify in her writ petition what new information is contained in the January 2008 notification, forcing this court to speculate that she is referring to the inclusion of her paternal uncle’s name (George R.) and a slightly varied spelling of her father’s middle name (Niles). We find the discrepancy in petitioner’s father’s middle name to be de minimus and not prejudicial. As to petitioner’s paternal uncle, the appellate record reflects that his identity was known to the department prior to its notification to the tribes in May 2007. Consequently, no new information was provided in the January 2008 notification.
Further, the department was not required to notify the tribes of petitioner’s paternal uncle. The applicable statute, section 224.2, subdivision (a)(5)(C) requires that notice include the names and addresses of the child's parents, grandparents, and great-grandparents, along with dates of birth or death and/or other identifying information. Further, nothing precluded either petitioner or her attorney on their own from directly providing the applicable Indian tribes of any additional information that would assist in establishing D.’s Indian heritage. However, on these facts, we find no error.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.