Opinion
A147439
01-26-2017
In re A.B., a Person Coming Under the Juvenile Court Law. HUMBOLDT COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, Plaintiff and Respondent, v. D.J. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. Nos. JV150137, JV150243)
D.J. (Mother) and A.E. (Father) challenge the sufficiency of the evidence to support the jurisdictional and dispositional findings and orders issued by the juvenile court with respect to their daughter, A.B. They assert substantial evidence does not support the court's findings, and that the court erred in removing the child from their custody. Father also asserts a violation of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA).) We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Initial Referral and Voluntary Family Maintenance
A.B. was born in May 2014. At the time of her birth, the hospital made a referral to the Humboldt County Department of Health and Human Services (Department) based on her parents' prior failure to reunify with their children. No neglect was found as to A.B. However, a voluntary family maintenance case was opened based on the parents' histories of failed reunification. Mother had previously failed to reunify with three older children, and Father had lost parental rights to his two children. Both parents initially agreed to engage in the case plan.
We grant the Department's request for judicial notice of our opinions in W.M. v. Superior Court (Mar. 9, 2015, A143528 [nonpub. opn.] and In re D.T. (Apr. 26, 2016, A146578 [nonpub. opn.], which contain information relating to Mother's child welfare services history.
Section 300 Petition
On August 3, 2015, the Department filed a Welfare and Institutions Code section 300 petition alleging that A.B. was described by subdivisions (b) and (j) and was at substantial risk of suffering serious physical harm or illness based on the parents' inability to provide regular care. The Department indicated it had received reports of the parents engaging in violent behavior in front of the child. The Department also alleged the parents had unaddressed mental health and substance abuse issues, including a history of methamphetamine use. The petition further stated that both parents had either failed to reunify or had their parental rights terminated to their older children. As to Mother, the petition alleged that after A.B. was born she had agreed to a voluntary case plan to address her mental health and substance abuse issues, as well as her inability to adequately protect her children; however, she still had not engaged in services or addressed these issues.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
On August 25, 2016, the Department filed a report in support of its petition. The Department described the voluntary family maintenance case that was initiated when A.B. was born. The case was opened due to concerns about Mother's mental health issues, her lack of parenting skills, and her possible drug abuse. Child welfare services had previously received 30 referrals pertaining to Mother, 11 of which were opened for investigation. There had also been 32 referrals for Father, of which seven had been investigated.
At this time, the Department sought the juvenile court's involvement because Mother was not participating in her voluntary case plan. For example, Mother had refused to comply with hair follicle drug testing, and had failed to accept the terms of a revised case plan. Additionally, the Department was concerned about the possibility of domestic violence. Reportedly, while pregnant with A.B., Mother underwent an ultrasound following a violent incident in which Father had assaulted her during an argument. However, the Department was not seeking to remove A.B. at this time because so far the parents' care was generally good.
At the August 25, 2105 hearing, both parents' counsel entered a general denial. Mother submitted on the petition's findings and orders, and Father submitted on the nondetention issue. The juvenile court adopted the majority of the Department's recommended findings and orders.
On September 17, 2015, Mother filed an issue statement requesting the petition be dismissed because the Department had not established a nexus between the current conditions and a substantial risk of harm to the child in the future. The statement also questioned whether the juvenile court had personal jurisdiction because A.B. and Mother had relocated to Trinity County.
On September 22, 2015, Mother's parental rights as to her then four-year-old son were terminated.
Jurisdiction
On September 28, 2015, the Department filed a jurisdiction report. A social worker revealed that a referral had been received on August 10, 2015, based on a report that the parents were fighting and that Father would bring A.B. to his work at an auto repair shop, leaving her strapped in her car seat all day long. This happened approximately twice per week. After an investigation, the allegations were deemed unfounded. Meanwhile, Mother had not agreed to comply with her voluntary case plan. While both parents had agreed they would benefit from counseling, they had not followed through with seeking services.
In an addendum report, the Department stated that neither parent had been successful in completing the objectives of their case plans in their prior family reunification cases. Recent attempts to meet with the parents and A.B. to assess the home environment had not been successful because the parents would move their residence or otherwise be unavailable to meet with social workers in the home.
A contested jurisdiction hearing was held on September 28, 2015. Mother testified that she and A.B. had been living for the past two months at a trailer park in Ruth, a community located in Trinity County. She had been prescribed medications to treat depression, anxiety, posttraumatic stress disorder, and sleeping problems. She started taking the medications three days before the hearing, though she had stopped breastfeeding A.B. in March 2015. She stated she was engaged in a dual recovery program to address substance abuse and mental illness, and was also attending group therapy and was drug testing as needed. She admitted she was addicted to methamphetamine but claimed she had not used it since May 2013. She denied that she and father engaged in domestic violence. Though Mother's counsel urged the juvenile court to dismiss the petition for insufficient evidence, the court sustained the petition after striking a mental health allegation as to Father.
On November 5, 2015, Mother filed another issue statement requesting dismissal. Alternatively, she requested an order of informal supervision pursuant to section 360, subdivision (b).
Section 342 Subsequent Petition
On November 6, 2015, the juvenile court issued a protective custody order for A.B. The court also authorized the Department to obtain a hair follicle test for the child. The order was issued after Trinity County child welfare services received a referral alleging that Mother got into a verbal argument with a neighbor, screaming that she was going to kill the neighbor and break every window in the park. People in the trailer park allegedly had seen Mother using methamphetamine and heroin. They also stated that both parents had been supplying the community with drugs. A.B. was reported have been seen running around naked, and the family's home was said to be " 'trashed,' " with garbage, dirty dishes, and clothes on the floor. On another occasion, Father had reportedly left the child in a playpen in direct sunlight for approximately 45 minutes while he went back inside the trailer. Smoke and a "chemically" smell that the neighbor knew to be methamphetamine was observed to be coming from the trailer. The child was left crying and screaming for her father, and her face was red and sweaty. Neighbors reported that the parents were also regularly seen walking around holding "meth pipes." There also were indications that the parents were attempting to conceal the child from social workers and law enforcement.
On November 10, 2015, Mother filed a motion to quash the warrant and the order for the hair follicle test. She argued, in part, that the juvenile court lacked jurisdiction because the child was residing in Trinity County.
On November 12, 2015, the Department filed a section 342 subsequent petition. The petition stated that A.B. had been detained on November 9, 2015, and had been placed in foster care. In addition to the earlier allegations regarding domestic violence, the petition alleged Mother had engaged in violent behavior in front of the child when, on November 5, 2015, Trinity County sheriff's office received a report that she engaged in an altercation with a neighbor with the child present. A referral had also been generated on October 27, 2015, after Mother had also gone to a neighbor's house where marijuana was being grown and had slit a dog's throat. Both parents were alleged to have unaddressed substance abuse issues based on the recent reports from multiple neighbors that they were using methamphetamine while caring for A.B., leaving the child unsupervised for extended periods of time.
On November 16, 2015, the juvenile court denied Mother's motion to quash and to dismiss jurisdiction.
Detention
On November 17, 2015, the Department filed a detention report in support of the section 342 petition. The Department stated that detention was necessary because multiple neighbors had reported concerns about the parents using and selling drugs, as well as concerns about the child's safety. Reportedly, when served with the protective custody warrant, the parents had refused to accept the documents and threw them down on a bench. When they surrendered A.B. to the Department's office on November 9, 2015, the parents said that the person who reported them had been angry with Mother for killing the dog. Mother stated that her dog was chained and the other dog was not chained when it started a fight with her dog. The only way she could think to save her dog was to kill the other dog.
At the detention hearing on November 17, 2016, the Department's social worker testified that over the past six months since he had been assigned to the case, the parents had changed physical residences three to four times. Also, different phone numbers had been provided to him for the parents. The social worker conceded he had not spoken with any of the parties who had made the recent allegations. He spoke only to the Trinity County social worker who told him about the referral.
In rendering its decision to detain A.B., the juvenile court noted that jurisdiction on the initial petition had already been established. The court cited to the grounds for removal in section 319, noting detention is justified if there is a substantial danger to a child and no reasonable means are available to protect the child without removing it from the parents' physical custody. The court observed detention is also justified if there is substantial evidence that a parent is likely to flee the jurisdiction of the court, stating: "We have the parents' location, residence changing, and . . . we have allegations of substance abuse, methamphetamine and heroin, and other sorts of activity, which place the child at risk. This child is 18 months, at best, at this point, and, at such an age, more susceptible or highly susceptible to abuse [and] neglect." The court ordered A.B.'s continued detention.
Section 342 Petition is Sustained
On December 8, 2015, the juvenile court sustained the section 342 petition over Mother's counsel's hearsay objections, striking the reference to Father's mental health issue as well as the reference to smoke and a chemical smell coming from the family's trailer, and deleting any reference to the incident involving the dog.
Disposition Reports
On December 17, 2015, the court received a disposition report from the Department. The report revealed that Mother had tested positive for THC at the time she gave birth to A.B., but reported that she had a medical marijuana card. Mother had an ultrasound after Father punched her in the stomach, but had otherwise received inconsistent prenatal care. The report noted her prior history of failing to reunify with her three other children, advising that Mother had struggled with issues of substance abuse, domestic violence, and mental health. She also had a past history of absconding with her children and disengaging in services. She had further demonstrated inability to provide her children with a stable living environment.
Though the Department had offered voluntary family maintenance services to the parents, they had made little progress. The parents failed to sign their case plan. The social worker was unable to verify Mother's participation in a dual recovery program because she had not signed a release of information. Mother refused to take a hair follicle test in September 2014. Since January 2015, the social worker had only met with the parents outside of their home. After the nondetained petition was filed, the social workers were unable to observe the child's home environment because the parents either moved locations or were otherwise unavailable or unwilling to meet with social workers in the home. The report also referenced the November 2015 allegations from Trinity County regarding Mother's alleged altercation with a neighbor and allegations that the parents were using methamphetamine while caring for A.B.
The parents were not cooperative, declining to speak to the social worker without their attorney present. They were also unwilling to allow the Department to assess their home environment for safety. However, they had attended all visits with A.B. and appeared appropriate with her. While both parents were eligible for bypass of reunification services, the Department was not recommending bypass because it was clear that reunification services would be in the best interest of the child. A.B. appeared to be very attached to both of her parents.
On December 31, 2015, the juvenile court received an addendum to the disposition report submitting an updated case plan.
Disposition Hearing
At the disposition hearing on January 29, 2016, Mother admitted she had been recently arrested on an old warrant. She declined to state what the warrant was regarding, citing to her Fifth Amendment rights. She also declined to state when she had been last arrested before the most recent arrest. Father testified that he had been arrested with Mother on January 15, 2016, on an old traffic warrant.
The social worker reported that A.B.'s hair follicle test was negative for exposure to any drugs. He stated that he had attempted to inspect the family's trailer on January 6, 2016 in Ruth, but the parents cancelled the visit. Father told him that the trailer had been broken into and it was trashed. The social worker tried to reschedule for the following week but Father said he was not sure if it would be ready by then. Prior to January 6, 2016, the social worker had not attempted to schedule a home visit. The Department was recommending family reunification services with continued detention.
The social worker testified that he had tried to meet with the family at a trailer park in King Salmon while the case was a voluntary family maintenance case. Mother had initially agreed, but cancelled a couple of hours before the visit. She rescheduled and then told him again that the trailer was not ready yet. After that he was not able to get in contact with the parents to set up another visit. Two other social workers tried to meet with the parents at other trailer parks but the parents were already gone by the time they got there. During the voluntary case, the parents failed to comply with drug testing requests. The parents never agreed to sign the voluntary case plan, which is why the nondetained petition was filed. The social worker had concerns that the parents were using methamphetamine while caring for the child. Reportedly, Mother was arrested in September of 2015 for driving under the influence. Additionally, the social worker was concerned about the parents' criminal activity, in particular with Mother having allegedly sold methamphetamine.
The juvenile court found there was a substantial danger to A.B. if she were returned home, and there was no reasonable means by which the child could be protected without removal from the custody of her parents. Removal was based on the parents' history of domestic violence, unaddressed substance abuse issues, Mother's unaddressed mental health issues, the parents' leaving the child unsupervised for periods of time, as well as their prior failure to reunify with and losing parental rights to their other children. The Department was ordered to provide family reunification services to both parents. Both parents have appealed from the court's orders.
DISCUSSION
I. Substantial Evidence Supports the Jurisdictional Findings
Mother and Father claim substantial evidence does not support any of the juvenile court's jurisdictional findings. In her opening brief, Mother expressly challenges the jurisdictional findings under section 300, subdivision (b), but devotes little attention to the court's findings under section 300, subdivision (j).
Mother's opening brief focuses almost exclusively on section 300, subdivision (b).
In dependency proceedings, the standard of proof at the jurisdictional stage is a preponderance of the evidence. (§ 355, subd. (a).) On appeal, we review the juvenile court's findings for substantial evidence, according all reasonable inferences in support of the findings and viewing the record in a light most favorable to the order of the juvenile court. (In re Mariah T. (2008) 159 Cal.App.4th 428, 438; In re Joshua H. (1993) 13 Cal.App.4th 1718, 1728.) Under this test, we determine whether there is evidence which is reasonable, credible, and of solid value such that the juvenile court could reasonably make the challenged findings. (In re Angelia P. (1981) 28 Cal.3d 908, 924.) All conflicts are to be resolved in favor of the prevailing party, and issues of fact and credibility are questions for the trier of fact. (In re P.A. (2006) 144 Cal.App.4th 1339, 1344.) In other words, we do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies. (In re A.M. (2010) 187 Cal.App.4th 1380, 1387-1388.) As such, we generally do not disturb a juvenile court's order unless it exceeds the bounds of reason. (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.)
Because multiple jurisdictional grounds were invoked by the section 300 petition, we will affirm if we find any of them are supported by substantial evidence: " 'When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.' " (In re I.J. (2013) 56 Cal.4th 766, 773.) We also observe the court has jurisdiction even if only one of the parents is the offending parent. (In re Briana V. (2015) 236 Cal.App.4th 297, 308.) We conclude substantial evidence supports the jurisdictional finding as to Mother under section 300, subdivision (j).
"Subdivision (j) applies if (1) the child's sibling has been abused or neglected as defined in specified other subdivisions and (2) there is a substantial risk that the child will be abused or neglected as defined in those subdivisions." (In re I.J., supra, 56 Cal.4th at p. 774.) " '[S]ubdivision (j) was intended to expand the grounds for the exercise of jurisdiction as to children whose sibling has been abused or neglected as defined in section 300, subdivision (a), (b), (d), (e), or (i). Subdivision (j) does not state that its application is limited to the risk that the child will be abused or neglected as defined in the same subdivision that describes the abuse or neglect of the sibling. Rather, subdivision (j) directs the trial court to consider whether there is a substantial risk that the child will be harmed under subdivision (a), (b), (d), (e) or (i) of section 300, notwithstanding which of those subdivisions describes the child's sibling.' " (In re I.J., at p. 774.) Because the assessment of risk to a sibling depends in part on the circumstances of an abused or neglected child, "subdivision (j) implies that the more egregious the abuse, the more appropriate for the juvenile court to assume jurisdiction over the siblings." (Id. at p. 778.)
"Unlike the other subdivisions, subdivision (j) includes a list of factors for the court to consider: 'The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child.' (§ 300, subd. (j).) 'The "nature of the abuse or neglect of the sibling" is only one of many factors that the court is to consider in assessing whether the child is at risk of abuse or neglect in the family home. Subdivision (j) thus allows the court to take into consideration factors that might not be determinative if the court were adjudicating a petition filed directly under one of those subdivisions. [¶] The broad language of subdivision (j) clearly indicates that the trial court is to consider the totality of the circumstances of the child and his or her sibling in determining whether the child is at substantial risk of harm, within the meaning of any of the subdivisions enumerated in subdivision (j). The provision thus accords the trial court greater latitude to exercise jurisdiction as to a child whose sibling has been found to have been abused than the court would have in the absence of that circumstance.' " (In re I.J., supra, 56 Cal.4th at p. 774, first italics in original, second italics added.)
Giving due deference to the limitations of appellate review, we find there is substantial evidence to support the jurisdictional findings as to Mother under section 300, subdivision (j). As we have noted above, Mother has lost custody and/or lost parental rights to at least three children in the past. During the course of the instant proceeding, Mother's parental rights to A.B.'s older half brother were terminated. The circumstances of the parents' prior history was fully set forth in the Department's September 28, 2015 jurisdiction report. These circumstances included Mother's failure to comply with the terms of her case plan and her failure to keep the Department informed of her children's whereabouts.
Because we conclude the juvenile court had jurisdiction under section 300, subdivision (j), we need not address the parents' argument that the evidence does not support a jurisdictional finding under section 300, subdivision (b), which provides that a minor comes within the jurisdiction of the juvenile court when the "child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left . . . ." (§ 300, subd. (b).) Nor need we address Father's objections to the findings made against him.
The Department reports Mother lost parental rights to an older son who is not listed in its petitions.
While arguing against the jurisdictional findings as to A.B., Mother acknowledges that "at the heart of the Department's case was the social worker's suspicion that the parents may not have been cooperating with their voluntary maintenance plan." (Italics added.) In fact, the evidence described above demonstrates that Mother clearly was not cooperating with her voluntary maintenance plan, as evidenced by her refusal to sign her case plan, her failure to comply with drug testing in spite of her admission that she was addicted to methamphetamine, her failure to allow social workers to inspect her home, and her failure to execute a release of information so that her participation in the dual recovery program could be verified. These behaviors are consistent with the behaviors that led to her failure to reunify with her older children. Additionally, we note that both parents have an extensive criminal record, with Mother having sustained a conviction for child endangerment.
While the current substantiated circumstances might not be sufficient to justify jurisdiction in cases involving families without a prior history in the dependency system, given Mother's extensive history we agree with the Department that her failure to engage in services placed A.B. at substantial risk of harm. That the child had not actually suffered physical harm before jurisdiction was assumed is not dispositive. In In re I.J., supra, 56 Cal.4th 766, the Supreme Court held substantial evidence supported the juvenile court's assertion of jurisdiction over the father's three sons under section 300, subdivision (j), even though there was no evidence or claim the father sexually abused or otherwise mistreated them, as he had his daughters, or that they had witnessed any of the sexual abuse or were aware of it before the dependency proceedings began. In reaching its decision, the Court noted "section 300 does not require that a child actually be abused or neglected before the juvenile court can assume jurisdiction." (In re I.J., at p. 773.) Instead, there need only be a " 'substantial risk' " of abuse or neglect. (Ibid.) Here, A.B. was living with Mother, who was not engaged in her voluntary case plan. Given Mother's lengthy unfortunate history with child welfare services, we cannot say the juvenile court erred in concluding the child was at substantial risk of harm.
It is not just Mother's previous acts of neglect that are at issue. Her refusal or inability to interact with the Department also placed A.B. at risk. Given her history and presently demonstrated unwillingness to avail herself of services, we agree with the Department that judicial intervention was appropriate in this case. Moreover, consistent with the requirements of section 300, subdivision (j), the juvenile court considered a number of probative factors in determining there was a substantial risk of harm to the child, all of which were supported by substantial evidence. Importantly, the court did not rely on one single factor to the exclusion of others. We therefore conclude the juvenile court's findings in both the original section 300 petition and the section 342 subsequent petition are supported by substantial evidence. II. Substantial Evidence Supports the Dispositional Order Removing the Child
We note that contrary to Mother's argument that "there was no nexus, or causal connection" between Mother's alleged history and any danger to A.B., Mother admitted that Father committed an act of domestic violence against her when she was pregnant with A.B. and that the physical impact was severe enough to cause her to seek an ultrasound to determine if the child had been harmed. There is no evidence the parents had engaged in counseling to address their domestic violence issues.
Both parents challenge the propriety of the subsequent section 342 petition, arguing that it was superfluous, contrary to law, unauthorized, and in excess of its jurisdiction. As we conclude the allegations in the original section 300 petition are sufficient to establish jurisdiction, we need not consider these contentions.
The parents challenge the juvenile court's dispositional order removing A.B. from their custody.
"A dependent child shall not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence . . ." that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody." (§ 361, subd. (c)(1).)
"By requiring clear and convincing evidence of the risk of substantial harm to the child if returned home and the lack of reasonable means short of removal to protect the child's safety, section 361, subdivision (c) demonstrates the 'bias of the controlling statute is on family preservation, not removal.' " (In re Hailey T. (2012) 212 Cal.App.4th 139, 146 (Hailey T.).) However, " ' "[t]he parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child." [Citation.] The court may consider a parent's past conduct as well as present circumstances. ' " (In re John M. (2012) 212 Cal.App.4th 1117, 1126.)
We review the juvenile court's dispositional order under the same standard of review as the court's jurisdictional findings, which we have already explained. (Hailey T., supra, 212 Cal.App.4th at p. 146 ["The standard of review of a dispositional order on appeal is the substantial evidence test."]; see In re I.J., supra, 56 Cal.4th at p. 773.) The burden remains on the appellant to show "there is no evidence of a sufficiently substantial nature to support the court's findings or orders." (Hailey T., at p. 147; see Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 881 [clear and convincing standard " 'disappears' " on appeal and court assesses whether there is substantial evidence to support the order or judgment].)
The evidence here supports the juvenile court's removal order. The record shows the parents failed to comply with Department's offer to assist them under the voluntary family maintenance case. Even after the juvenile court assumed jurisdiction, the parents actively prevented the Department's social workers from inspecting their home, including by moving out of the county. Mother had a prior history of failed compliance with court orders, which supports the inference that she and Father would continue to refuse to engage in services or cooperate with the Department. Based on the parents' extensive criminal and child welfare history, the Department's concerns regarding A.B.'s safety were well founded. The parents' failure to avail themselves of services, along with their pattern of evading drug testing and home inspections is, under the circumstances, quite troubling.
Substantial evidence also establishes that an alternative short of removal from the parents' custody would not have sufficed to protect A.B. Given the parents' demonstrated unwillingness to participate in services and cooperate with the Department, the juvenile court was justified in concluding there were no conditions of supervision it could impose that would reasonably guarantee A.B.'s safety if she were left in Mother's custody. The juvenile court was entitled to credit the Department's evidence and conclude that the parents' continued lack of cooperation created a situation in which removal was the only reasonable means to protect A.B.'s safety.
A.B. was also a very young child, completely dependent on her caregivers for protection and nurturance. As noted above, the parents had a history including recent domestic violence and unaddressed substance abuse issues, along with Mother's unaddressed mental health issues. There also was evidence that they had left the child unsupervised for periods of time after having already lost parental rights to their other children. We also note that during the disposition hearing, the juvenile court was informed that Mother had been arrested for driving under the influence in September 2015. Additionally, both parents were arrested shortly before the disposition hearing.
Both parents contend the juvenile court should have considered less drastic alternatives to removal, such as by means of an order requiring them to participate in services and submit to unannounced visits to the family home. We are not persuaded. The Department had already afforded the parents the opportunity to avoid court supervision, yet they refused to engage in the proposed voluntary case plan. Even after the court initially found jurisdiction, the parents failed to avail themselves of services. Thus, the court reasonably concluded the parents would continue to fail to follow through with engaging in the services offered to them. Substantial evidence supports the court's conclusion that removing A.B. from their care was necessary for her protection. III. There Was No ICWA Violation
Father separately contends that the Department failed to comply with the notice and inquiry requirements of ICWA. "A notice violation under ICWA is subject to harmless error analysis." (In re Autumn K. (2013) 221 Cal.App.4th 674, 715.) "Deficiencies in ICWA inquiry and notice may be deemed harmless error when, even if proper notice had been given, the child would not have been found to be an Indian child." (In re D.N. (2013) 218 Cal.App.4th 1246, 1251.)
Father concedes that he was found not to be enrolled in any tribe eight years prior, when the dependencies for his two older children were at issue. He admits that his ancestry and family history have not changed since the 2009 judicial finding that ICWA was inapplicable, but claims "the information [he] could provide about ancestry and family history might have changed, and the tribe's rules about membership criteria might have changed." (Italics added.) We are not persuaded.
We grant the Department's request for judicial notice of three documents from the prior dependency proceeding, which was also adjudicated in Humboldt County: (1) a JV-130 form filed by Father on October 3, 2007, (2) excerpts from a status review report filed on December 31, 2008, and (3) an ICWA-030 form filed on January 29, 2009.
We find this case similar to In re E.W. (2009) 170 Cal.App.4th 396. In that case, the social services agency notified the identified tribes of minor E.'s dependency. However, the agency failed to include notices for E.'s sibling, P. (Id. at p. 399.) Two of the three tribes responded, stating E. was not eligible for membership. (Id. at pp. 399-400.) The agency recommended that the court find ICWA inapplicable for both minors. (Id. at p. 400.) The court adopted the recommendation and found ICWA did not apply. On appeal, the mother contended the order terminating her parental rights should be reversed because the ICWA notices referred only to E. but not P. (Ibid.)
The Court of Appeal rejected the argument because it concluded any error was harmless. (In re E.W., supra, 170 Cal.App.4th at p. 400.) It explained "there is no reason to believe that providing separate notice regarding P. 'would have produced different results concerning [P.'s] Indian heritage.' " (Ibid.) The court reasoned that because both minors had the same parents, there was "no doubt" the tribes and the Bureau of Indian Affairs would respond to notices regarding P. just as they had responded to those regarding E. (Id. at pp. 401, 402.) The court added, "We cannot condone delaying that permanence for an empty exercise with a preordained outcome, especially where that exercise does nothing concrete to further the purposes of ICWA—'to give tribes the opportunity to investigate and determine whether a child is an Indian child, and to advise the tribe of the pending proceeding and its right to intervene.' " (Id. at p. 402.)
We acknowledge this case differs from In re E.W. in the fact it involves siblings from separate dependency proceedings occurring at different times. Nonetheless, we see no reason it should not apply here "based on considerations of judicial economy, the assured futility of providing identical notice regarding [minor], and the [minor's] need for stability." (In re E.W., supra, 170 Cal.App.4th at p. 401.) We note Father does not argue that the earlier ICWA finding was erroneous. He also offers no allegations of evidence as to any changes in his family information or the rules of the relevant tribe as to his lack of tribal status. As a result, he has not demonstrated a miscarriage of justice requiring reversal. (See also In re J.M. (2012) 206 Cal.App.4th 375, 383 [where ICWA notice was given as to one sibling, failure to give notice as to other sibling was harmless error].)
The Department's request for judicial notice of postappeal documents addressing Father's ICWA status is denied.
DISPOSITION
The juvenile court's jurisdictional and dispositional orders are affirmed.
/s/_________
Dondero, J. We concur: /s/_________
Humes, P. J. /s/_________
Banke, J.