Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD225954
ROBIE, J.
Appellant Adam J., Sr., father of the minor Adam J., Jr., appeals from the orders of the juvenile court adjudging the minor a dependent child of the court and denying appellant reunification services pursuant to Welfare and Institutions Code section 361.5, subdivisions (b)(13) and (e)(1). (Welf. & Inst. Code, §§ 360, subd. (d), 395.) He contends there is insufficient evidence to support the denial of reunification services and failure to comply with the notice provisions of the Indian Child Welfare Act (ICWA). We disagree and shall affirm the orders.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
BACKGROUND
The minor was born in January 2003. His mother gave birth to his half sister, Eve, in March 2007. Eve tested positive at birth for methamphetamine and marijuana and was placed into protective custody. The mother admitted to being a long-term user of both methamphetamine and marijuana.
The mother was admitted into a drug treatment program on April 20, 2007, but was discharged on May 22 for noncompliance. On May 22 she hit the minor, causing him to cry, and tried to abscond from the facility with him. The mother, who had called the minor a “fool,” claimed she was only wrestling with her four-year-old son. The minor was placed in protective custody that day.
The Sacramento County Department of Health and Human Services (the department) filed a petition alleging jurisdiction under section 300, subdivisions (a), (b), and (j), on the basis of the mother’s history of substance abuse, her striking the minor, the minor’s severe dental decay, and the sibling testing positive for drugs at birth.
The May 25, 2007, detention report noted the minor had been observed with severe tooth decay when the mother was admitted to the rehabilitation program on April 20, but she continued to feed him large amounts of sweets. The report also stated the appellant was incarcerated and thus unavailable for an interview but had signed a declaration of paternity. In a referral sustained in 2004, the mother admitted using methamphetamine and other drugs, telling the social worker appellant wants to take the minor but he has a criminal history and possibly uses drugs as well.
On May 23, the mother reported possible Indian heritage through the Blackfeet tribe. No inquiry was made regarding appellant’s Indian heritage at the time because of his incarceration.
The minor was detained at the May 25, 2007, detention hearing. The juvenile court ordered reunification services for the mother and ordered the department to notify the Blackfeet tribe and the Bureau of Indian Affairs (BIA) pursuant to the ICWA.
The department notified the BIA and the Blackfeet tribe of the mother’s potential Indian heritage on June 21, 2007. The notice included family information provided by the maternal grandfather and stated appellant had not claimed Indian ancestry. On June 29, 2007, the Blackfeet tribe sent a letter declaring the minor was not eligible for enrollment.
According to the June 22, 2007, jurisdiction/disposition report, the minor had been living with the maternal grandmother when his sister was placed in protective custody, but he was returned to his mother when she entered the drug treatment center. The mother said appellant lived with the minor and herself for about a year, with considerable domestic violence between appellant and the mother.
Appellant has two prior felony theft convictions, along with four felony convictions for vehicle taking and a misdemeanor vehicle taking conviction. His most recent felony conviction, on November 16, 2006, was for possession of a controlled substance. Appellant was given a two-year suspended sentence and placed on Proposition 36 probation. Probation was revoked for failing to participate in a Proposition 36 program, but was reinstated on June 8, 2007. Appellant’s location was not known at the time of the report.
On July 19, 2007, appellant informed the department he may have Indian heritage. Two days later, the juvenile court directed appellant to complete and return form JV-135 within two days.
In a July 25, 2007 declaration, a department representative stated appellant had not yet completed the form or provided any more information about his Indian heritage. She therefore sent a certified letter to appellant asking that he complete and return the JV-135 form.
The department sent a new notification to the Blackfeet tribe and the BIA on the same day. The notice listed appellant’s name, birth date, and current address, and that he made an unspecified claim of Indian heritage, but provided no information concerning his birthplace or family history. In her declaration to the court, the representative expressed the department’s willingness to notify the relevant tribes once appellant provided more information about his claim.
In an addendum report, filed August 15, 2007, the social worker stated appellant’s location was unknown after he was released from prison, but he was in the Sacramento County Jail as of July 19, 2007. In an August 13 phone interview, appellant declared he was not sure he was the minor’s father and would like a paternity test. Appellant had no interest in reunifying with the minor if he was not the biological father. He was interested in reunifying and taking custody of the minor if he was the birth father or if the court retained his presumed father status.
Appellant said he was at the minor’s birth and lived with the minor and the mother for about one year and denied any domestic violence. He admitted to being separated from the minor for about two years while he was incarcerated after a conviction for vehicle taking.
Appellant denied any history of drug abuse, stating he was ordered into Proposition 36 probation after law enforcement found drugs in the room when they arrested him. He was incarcerated for violating his probation by not enrolling in the Proposition 36 drug abuse program. Appellant was currently unemployed and living with the paternal grandmother.
The juvenile court dismissed the section 300, subdivision (a) allegation and sustained the rest of the petition in the September 6, 2007, jurisdiction hearing. A second addendum report noted appellant’s arrest on charges of possession, manufacture, or sale of a prohibited weapon and possession of ammunition by a felon on September 8, 2007. On September 13, he pled no contest to the prohibited weapon charge, admitted violating his probation, and was sentenced to two years eight months in prison.
At the November 15, 2007, disposition hearing, the juvenile court continued its order for removal of the minor, while providing reunification services for the mother and denying reunification for appellant. The court denied reunification under section 361.5, subdivision (e)(1) because appellant’s release date was after the maximum 12-month period for services, and under subdivision (b)(13) as appellant’s conviction for possession of narcotics and his failure to participate in Proposition 36 probation supported a finding of a history of drug abuse under this provision.
DISCUSSION
I
Denial Of Services
Appellant contends the juvenile court’s order denying him services is not supported by clear and convincing evidence. We disagree.
At the disposition hearing, the court determines whether it is necessary to remove the child from the parents and whether reunification services should be provided. (§§ 361, subd. (c), 361.5.) The court may decline to provide services to a parent if specific circumstances are shown. (§ 361.5, subds. (b), (c).)
When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing, the reviewing court must determine if there is any substantial evidence -- that is, evidence which is reasonable, credible and of solid value -- to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (In re Jason L., at p. 1214.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
If a parent of a detained minor is incarcerated, “the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the nature of the treatment, the nature of the crime . . ., the degree of detriment to the child if services are not offered and, . . . any other appropriate factors.” (§ 361.5, subd. (e)(1).)
In this case the minor, age four, only had contact with appellant during his first year. Since then, appellant’s almost continuous incarceration has prevented any additional contact. In addition to the weak bond with the minor, appellant’s prison sentence will keep him incarcerated beyond the one-year limit for reunification services. Indeed, as it was not known where appellant would be serving his sentence, the court could not determine what services, if any, would be available to appellant while he was in prison. We conclude the court’s finding under this provision is supported by substantial evidence.
We also find the court’s denial of services under section 361.5, subdivision (b)(13) to be supported by substantial evidence. Under this provision services may be denied to a parent when the court finds by clear and convincing evidence “[t]hat the parent . . . of the child has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court’s attention, or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan required by Section 358.1 on at least two prior occasions, even though the programs identified were available and accessible.” (§ 361.5, subd. (b)(13).)
Appellant’s conviction for possession of narcotics, when coupled with his failure to comply with his Proposition 36 probation and the mother’s allegations of his drug use, provides substantial evidence supporting the denial of reunification under section 361.5, subdivision (b)(13).
The department also argues section 361.5 did not apply to appellant. Under section 361.2, a noncustodial parent is not entitled to reunification services unless he or she requests custody of the child who has been removed from the other parent. (R.S. v. Superior Court (2007) 154 Cal.App.4th 1262, 1270-1271; Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 627-628.) Sections 361.2 and 361.5 are part of an “integrated statutory scheme” in which section 361.2 addresses the provision of services to noncustodial parents while section 361.5 deals with custodial parents. (Robert L., at pp. 628-629.) A noncustodial parent is not entitled to services under section 361.5, and may only receive reunification services under section 361.2 if the parent seeks custody of the minor. (Robert L., at pp. 628-629.)
Because appellant was incarcerated, lived apart from the minor when not incarcerated, and the minor was not residing with him when the events arose that led to the dependency action, he qualifies as a noncustodial parent. (In re Catherine H. (2002) 102 Cal.App.4th 1284, 1289 [“‘noncustodial’” often used as shorthand term for “‘a parent of the child, with whom the child was not residing’”].)
The department argues that since appellant neither did nor could request custody due to his incarceration, the juvenile court was not required to provide services. This overstates the case, as appellant’s incarceration does not relieve the juvenile court of its duty to make the required inquiries under section 361.2. “The mere fact a noncustodial parent is incarcerated does not relieve the court of its obligation to determine whether the incarcerated parent is seeking custody of the child and, if so, whether placement with that parent would be detrimental to the child” under section 361.2. (In re V.F. (2007) 157 Cal.App.4th 962, 973.)
In an interview with the social worker, appellant asked for a paternity test, declaring he wanted reunification and custody of the minor if he was in fact the father or if the juvenile court would not modify the paternity order. At the dispositional hearing, counsel for appellant argued appellant should be given reunification services so that he might take custody if the minor was not returned to the mother.
In order to satisfy section 361.2, a parent does not have to ask for custody in open court. (R.S. v. Superior Court, supra, 154 Cal.App.4th at p. 1271.) Since there is some evidence that the father sought custody and the juvenile court made no finding regarding this issue, we cannot determine from this record whether appellant in fact sought custody. (See ibid.)
However, remand is unnecessary in light of the juvenile court’s finding that reunification services were detrimental to the minor under section 361.5, subdivision (e)(1). If a noncustodial parent asks for custody, then reunification services must be provided absent a finding that placement with that parent would be detrimental to the minor. (§ 361.2, subd. (a).) Since the juvenile court had already found services would be detrimental to the minor, any error in failing to make the necessary findings under section 361.2 is harmless.
II
The ICWA Issue
There is a continuing duty to inquire whether the minor is an Indian child subject to the ICWA. (Cal. Rules of Court, rule 5.481(a).) Appellant claims the department violated its duty to make further inquiry into appellant’s alleged Indian background in spite of his failure to provide any more information concerning his claim of Indian heritage. We disagree.
The notice provisions of the ICWA state, in part: “In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” (25 U.S.C. § 1912(a).)
The Indian status of a child need not be certain to trigger the ICWA’s notice requirements. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471.) Notice allows the tribe to determine whether the minor is a member and notifies the tribe of the dependency proceedings and its right to intervene or assume jurisdiction. (Id. at p. 470.) “The [department] must provide all known information to the tribe, particularly that of the person with the alleged Indian heritage.” (In re Louis S. (2004) 117 Cal.App.4th 622, 631.) Notice must include, if known, the names of the child’s grandparents and great-grandparents, including maiden, married and former names or aliases, as well as their birth dates, places of birth and death, tribal enrollment numbers, current and former addresses, and other indentifying information. (In re D. T. (2003) 113 Cal.App.4th 1449, 1454.) Failure to comply with the notice provisions is prejudicial error. (In re Desiree F., at p. 472.)
Between the filing of the jurisdiction/disposition report and the jurisdiction hearing, appellant first claimed Indian heritage. His initial claim provided no specific tribe or any information about his ancestry. Appellant provided no more information about his claim and disregarded the juvenile court’s order and the social worker’s subsequent request to fill out form JV-135. In notifying the BIA and the Blackfeet tribe, the department provided all of the information it had at the time -- indicated appellant’s name, current address, birth date, and unspecified claim of Indian heritage -- but provided no other information regarding his family or place of birth.
An example of insufficient inquiry is found in D. T., where the juvenile court simply told the parents to provide the social worker with “‘any and all information that you have or can reasonably give’” about their Indian ancestry without any explanation as to what information was relevant. (In re D. T., supra, 113 Cal.App.4th at p. 1455.) Even though both parents expressed not precisely understanding what the court wanted, no further inquiry was made or explanation given to the parents of what information they should give to the social worker. (Ibid.) This court concluded “the social worker’s affirmative duty to inquire whether the minors might be Indian children mandated, at a minimum, that she make some inquiry regarding the additional information required to be included in the ICWA notice.” (Ibid.) The failure to make any additional inquiry rendered the notice insufficient. (Ibid.)
Unlike the situation in D. T., appellant was not given an unspecified mandate to provide information about his Indian background. Instead, the court ordered him to fill out the relevant form, JV-135. Never indicating he had any problems with this form, appellant simply declined to complete it. Neither the court nor the department was required to conduct a comprehensive investigation into the minors’ Indian status. (In re S.B. (2005) 130 Cal.App.4th 1148, 1161; In re Levi U. (2000) 78 Cal.App.4th 191, 199 [no duty to “cast about” for information].)
If an inquiry is made of a parent and that parent “failed to provide any information requiring followup” then there is no further duty of inquiry. (In re S.B., supra, 130 Cal.App.4th at p. 1161.)
Since appellant never gave any more information about his Indian ancestry in spite of twice being asked to do so, there was no failure to comply with the notice provisions of the ICWA.
DISPOSITION
The orders are affirmed.
We concur: NICHOLSON, Acting P.J., RAYE, J.