Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 08JVSQ2738801, 08JVSQ2738901
SIMS, J.
R. V., the mother of J. R. (born July, 2005) and A. V. (born March, 2008), appeals from juvenile court findings and orders entered at a combined jurisdiction and disposition hearing. (Welf. & Inst. Code, §§ 300, subd. (f), 361.5, subd. (b), 395.) She contends the evidence was insufficient to support (1) the jurisdictional finding that she caused the death of her son S. H. (§ 300, subd. (f)), and (2) the dispositional order that she not receive reunification services (§ 361.5, subd. (b)). Mother contends, and the Shasta County Department of Social Services (DSS) concedes, the juvenile court failed to ensure compliance with the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq. (ICWA)). We shall remand for further ICWA proceedings.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Petition
On March 28, 2008, DSS filed a petition under section 300, subdivisions (b), (f), and (j). With respect to subdivision (b) (failure to protect), the petition alleged that Mother had “a chronic substance abuse problem” that put the children at risk. Specifically, when A. V. was born, Mother tested positive for opiates and methamphetamine. Mother stated that she had used drugs on March 17, 2008. At the time of that use, she knew that she was pregnant and that drug use could cause complications to her unborn child. Mother acknowledged that she had used methamphetamine since age 18 by means of “snorting.” She had tested positive for methamphetamine during each of her four pregnancies. She had just one prenatal visit during the most recent pregnancy and had obtained “very little prenatal care” during her three previous pregnancies. Mother’s criminal history consists of a 1992 burglary conviction and convictions for Vehicle Code offenses and “fighting/using offensive words.”
Mother was born in August 1973.
With respect to section 300, subdivision (f) (causing the death of another child through abuse or neglect), the petition alleged that the “death of the child, [S. H., born November, 1999] on [March 17, 2001] was ruled a homicide with the toddler having methamphetamine, [oxycodone hydrochloride], and ephedrine in his system.”
With respect to section 300, subdivision (j) (abuse of a sibling), the petition alleged that Mother “was positive for methamphetamine during” her pregnancy with D. K. [born December, 2001], that the “family was not compliant with voluntary services and when they left the state a Protective Custody Warrant was issued,” that D. K. “was found to have methamphetamine in his system at the age of [three] months,” and that the “parents failed to reunify with [D. K., who] was subsequently adopted.”
The petition included an “Indian Child Inquiry Attachment,” which indicated that “there may be Cherokee ancestry.”
Detention
In a detention report filed with the petition, DSS noted that Mother had been admitted to the hospital on March 24, 2008, to deliver her fourth child, A. V. An initial drug screen at 7:45 a.m. was “negative with the exception of opiates.” Mother briefly left the hospital at noon and rapid fetal heartbeat was detected when she returned. A drug screen at 3:00 p.m. was “positive for methamphetamine.” The initial toxicology results for A. V. were negative but other test results were pending. A. V.’s birth certificate indicated that Mother “received late prenatal care.”
On March 26, 2008, a DSS social worker met with Mother at the hospital. Mother “acknowledged using methamphetamine since age eighteen by method of ‘snorting’ and having used primarily on the weekend.” She had not used the drug on a regular basis since shortly before the birth of her son, J. R., in 2005. However, she used the drug once during her most recent pregnancy, on March 17, 2008, the anniversary of the death of S. H. The hospital discharge summary indicated that Mother “had a single prenatal visit” and had used methamphetamine during the pregnancy.
A police officer questioned Mother about her drug use. At the outset, she claimed that A. V. would test positive for methamphetamine due to being around people who used the drug. Later, she admitted that she had used the drug on March 17, 2008.
The police officer’s report, attached to the detention report, noted that when Mother was moved from her maternity room to the surgery room to give birth to the child, a small glass baby food jar containing yellow liquid was located in the maternity room. Mother did not comment on the discovery of the jar.
A. V. was taken into protective custody at the hospital, and J. R. was taken into custody later in the day.
The detention report provided the following information regarding the death of S. H. In 1999, while pregnant with S. H., mother tested positive for methamphetamine during two prenatal visits. Thereafter, on March 17, 2001, S. H. died while in Mother’s custody. The death was “ruled a homicide” due to oxycodone intoxication. S. H. had methamphetamine, oxycodone hydrochloride, and ephedrine in his system.
The coroner’s report, attached to the detention report, indicated that S. H.’s death was caused by “[o]xycodone [i]ntoxication” and that other “significant conditions” were “[c]hronic exposure to oxycodone, methamphetamine and ephedrine, maternal methamphetamine abuse/months,” and that the “manner of death” was homicide. S. H. “not only had toxic levels of oxycodone in his bloodstream at the time of his death, but also had been chronically exposed to oxycodone for months at least, prior to his death.”
The detention report provided the following information regarding the adoption of D. K. In December, 2001, Mother gave birth to D. K. She had “had no prenatal care with the exception of one appearance at Labor and Delivery [in late November, 2001], at which time she was positive for methamphetamine.” Mother stated she used drugs to “deal with reality” following the death of S. H. D. K. was “discharged to his parents’ care and a voluntary case plan was opened.” However, the parents did not obtain services and left California with D. K. A protective custody warrant was issued. The family was located in Nevada, and law enforcement returned D. K. to California. D. K. was found to have methamphetamine in his system. Reunification was unsuccessful and D. K. was adopted.
The detention report noted that Mother’s third son, J. R., was born on July, 2005. Mother had tested positive for methamphetamine in January 2005, but she had no positive tests at the time of delivery. The infant was allowed to leave the hospital in Mother’s care.
The detention report summarized Mother’s criminal history.
Regarding prior services, the detention report noted that Mother and the father of D. K. “agreed to access drug treatment services in January of 2001”; that “a referral for grief counseling was made for [Mother] in December of 2001”; that the couple was provided a case plan,” but by “mid January of 2002 the family could not be located”; and that after a protective custody warrant was issued, the family was located and D. K. was returned to California. The parents failed to reunify, and D. K. was adopted in 2004.
Mother completed three drug and alcohol assessments but had never completed a treatment program. She was referred for, but did not obtain, parenting classes. She completed a psychological evaluation.
The detention report summarized five prior contacts with DSS. The first referral, in November 1999, related to general neglect of S. H. The second referral, in December 2001, related to severe neglect of D. K. The third referral, in July 2005, related to the birth of J. R. The fourth referral, in October 2005, related to risk to J. R. due to parental drug use. The fifth referral, in January 2008, involved parental drug use and neglect of J. R.
A detention hearing was held on April 1, 2008. At the conclusion of the hearing, the children were ordered detained and a jurisdiction hearing was scheduled.
In April 2008, DSS filed a jurisdiction report reprising information from the detention report and noting that ICWA “does or may apply,” in that the children may be members of the Eastern Band of Cherokee Indians. The matter was continued and in May 2008 DSS filed a disposition report. A combined jurisdiction and disposition hearing was set for June 6, 2008.
In May 2008, DSS filed a disposition report reprising information from the detention and jurisdiction reports. Attached to the report was a supplemental report from the Shasta County Coroner relating that S. H. “‘not only had toxic levels of oxycodone in his bloodstream at the time of his death, but also had been chronically exposed to oxycodone for months at least, prior to his death.’” Specialized toxicology testing of S. H.’s hair also “detected the presence of methamphetamine and ephedrine, and their respective metabolites, indicating chronic exposure to these substances as well, over a similar period of time.” The forensic pathologist concluded that “the cause of death is oxycodone intoxication, as previously stated in my autopsy report. Methamphetamine and ephedrine were not detected in his bloodstream at the time of death, and thus did not directly play a role in his demise. However, those results are significant in that they argue against one-time accidental oxycodone intoxication, and support the possibility of intentional overdosing. They also indicate that this child has been exposed to other potentially harmful drugs during the course of his brief lifetime.”
The disposition report recommended that A. V. and J. R. be declared dependents of the juvenile court, that they be placed outside the home of the parents, and that no reunification services be offered to Mother, “given that her son, [D. K.], was adopted out after she failed reunification services and also given the death of [S. H.] due to neglect.”
The disposition report also noted that Mother “has stated she may have Native American ancestry through the Cherokee tribe.”
In June 2008, DSS filed an addendum report opining that “[r]eunification efforts are not likely to be successful for [Mother] because of her continued pattern of methamphetamine use that has impacted her life and that of her children negatively. [Mother] tested positive for methamphetamine on the two occasions of her prenatal visits... before the birth of her son, [S. H.].... [¶] [Mother] has reported to this Social Worker that she was the primary caretaker for [S. H.]. In addition, according to the Coroner’s report [Mother] had put the child down for a nap and was the first person to discover him unresponsive in his bed. A hair test conducted on [S. H.] showed exposure to oxycodone had occurred over the 170 days covered by the hair growth. [S. H.’s] exposure to methamphetamine was also attributed to the 177 days of hair growth tested.... [¶] [Mother] was referred to drug treatment in 2001 and closed on [January 15, 2002]. Her second son, [D. K.], was hair tested at two months of age after being removed from [Mother] and was positive for methamphetamine in his system.... [Mother] started drug treatment again on [May 21, 2002] and was dropped from treatment on [September 10, 2002] for noncompliance.... [¶] On [July 25, 2005] a referral was made to [DSS].... [A social worker] noted [that Mother] had tested positive for methamphetamine in January of 2005 prior to the birth of [J. R.] [The social worker] offered [Mother] voluntary services and [Mother] declined. [¶] [Mother] has continued her abuse of methamphetamine, which was previously noted in the... hospital reports related to the recent birth of her son, [A. V.]. This social worker previously submitted numerous missed drug tests for [A. V.’s father and Mother]. A letter was sent to [the parents]... advising both individuals of the services available.... [T]here is no record of an assessment being conducted on either [parent].... [¶] The parents are not enrolled in parenting classes.... [¶] [Mother] was well aware of services in the community prior to the involvement of [DSS] in the most recent case and yet failed to access them.... [A] Psychological evaluation of [Mother determined that] there is no short-term treatment program that would benefit [Mother]; rather a program with a ‘two year duration would be more realistic’.... It is of concern that neither [parent of A. V. has] actively pursued programs and classes that could aid in the reunification process since the children were removed from their care.”
In June 2008, the juvenile court conducted a jurisdiction and disposition hearing. At the request of DSS, the court attached to the addendum report the petition, minute orders, and findings and orders from D. K.’s dependency case. Then the court received the various reports and attachments into evidence.
Mother testified on direct examination that certain of the petition’s allegations were “in error.” She explained that, because she had been sedated, she did not “know for sure” whether she had told someone at the time of A. V.’s birth that she “had used” drugs on March 17, 2008.
Regarding the allegation that she had tested positive for methamphetamine during her pregnancy with A. V., mother testified that she had not used drugs from January 2005 until March 2008, and she had not tested positive “to [her] knowledge.”
Mother testified that she had not used drugs during her pregnancy with J. R., except at the beginning of 2005. J. R. did not test positive for drugs at birth.
Mother testified that she had not had any criminal cases before the court since the late 1990’s.
Mother testified that when she learned that reunification services were not being recommended, she “just gave up” and stopped participating in drug and alcohol services. No cross-examination was conducted and no other witnesses were presented.
The juvenile court found that the petition’s allegations were true. Mother’s counsel submitted on the issue of disposition. The court ordered that no reunification services be provided to Mother because she had “caused the death of another child through abuse or neglect,” because reunification services had previously been terminated for a sibling of the children and Mother had not made a reasonable effort to treat the problems that had led to the sibling’s removal, and because Mother’s parental rights to a sibling had been terminated and Mother had not made a reasonable effort to treat the problems that had led to the sibling’s removal. (§ 361.5, subds. (b)(4), (10) & (11).)
DISCUSSION
I
Mother contends the evidence was insufficient to support the true finding on the section 300, subdivision (f) allegation that she “caused the death of another child through abuse or neglect.” We are not persuaded.
Mother does not dispute the sufficiency of the evidence supporting the true findings on the section 300, subdivisions (b) and (j), allegations. She nevertheless claims her contention as to the subdivision (f) allegation is properly before this court because that finding could have collateral consequences in subsequent proceedings where it could “make it nearly impossible for her to show” that she should have custody of any other children she may subsequently have. (Citing, e.g., In re Alexis M. (1997) 54 Cal.App.4th 848, 851.) We note that the Legislature has created a somewhat analogous “collateral consequence” in section 361.5, subdivision (b)(7), where a refusal of reunification services for a sibling or half sibling under paragraphs (3), (5), or (6) may justify a denial of reunification services in a subsequent case; thus a finding under one of those paragraphs may be reviewable even though a separate finding under another paragraph amply supports the denial of services. Although no statute creates a similar consequence for the present case, we consider Mother’s argument in an abundance of caution.
“The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to all appeals. If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.] We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court’s order, and affirm the order even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.]” (In re Megan S. (2002) 104 Cal.App.4th 247, 250-251.)
The evidence showed that, following S. H.’s birth and while Mother was his primary caretaker, he had been exposed to oxycodone over a period of 170 days. S. H. died of oxycodone intoxication and his death was ruled a homicide. S. H. also had been exposed to methamphetamine over a period of 177 days. Previously, during her pregnancy with S. H., Mother had twice tested positive for methamphetamine.
Mother notes that S. H.’s death “continues to be under investigation by the Shasta County Sheriff’s Office”; that Mother had been involved with two different men, M. R. and E. K., at around the time of S. H.’s death; and that no evidence revealed what symptoms S. H. would have displayed as a result of the drugs in his system. In Mother’s view, the juvenile court “could not, therefore, have inferred that [Mother] should have known that [S. H.] was being given drugs.” We disagree.
Although the evidence did not identify the person who had directly administered the oxycodone to S. H., there was no evidence that M. R., E. K., or anyone other than Mother had exposed S. H. to the drug for a period of 170 days without her knowledge. The juvenile court was not required to speculate that either man secretly had exposed S. H. to oxycodone. Nor was the court required to speculate that such a “secret” could have been kept from Mother, the primary caretaker of S. H., for 170 days absent any neglect on her part.
Rather, because S. H. had been exposed, not only to oxycodone but also to Mother’s drug of choice, methamphetamine, the court could deduce that Mother had exposed S. H. to both drugs or had been neglectful in allowing another person or persons to do so. The evidence that Mother’s three younger children had been exposed to methamphetamine in turn while under her care lends further support to an inference that Mother had caused her oldest child’s death through abuse or neglect.
Mother further contends there was insufficient evidence that, at the time the section 300 petition was filed in March 2008, J. R. and A. V. were at risk based upon S. H.’s death. However, that was not an element of the section 300, subdivision (f) allegation. The true finding on that allegation is supported by substantial evidence. (In re Megan S., supra, 104 Cal.App.4th at p. 251.)
II
Mother contends the evidence was insufficient to support the juvenile court’s dispositional order denying her reunification services pursuant to section 361.5, subdivision (b), paragraphs (4), (10), and (11). We disagree.
References to “paragraphs” in this part are to paragraphs of section 361.5, subdivision (b).
Paragraph (4) allows the denial of reunification services when the juvenile court finds, by clear and convincing evidence, that “the parent or guardian of the child has caused the death of another child through abuse or neglect.” At disposition, the court found by clear and convincing evidence that Mother caused S. H.’s death through abuse or neglect.
Appellate courts review orders denying reunification services pursuant to section 361.5, subdivision (b), for substantial evidence. (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 600.) In part I, ante, we explained that the finding of responsibility for S. H.’s death, which the juvenile court had made at the jurisdiction hearing by a preponderance of evidence pursuant to section 300, subdivision (f), was supported by substantial evidence. Because our standard of review is the same, we reach the same conclusion with respect to the identical finding made by the higher standard at the disposition hearing.
Mother’s present contention “assum[es] this court agrees that substantial evidence does not support” the factual finding of responsibility for S. H.’s death. From the premise that the paragraph (4) finding is unsupported, Mother argues that the findings under paragraphs (10) (reunification for a sibling was terminated) and (11) (parental rights to a sibling have been permanently severed) also lack evidentiary support and thus the order denying reunification services must be reversed. Because the paragraph (4) finding is amply supported, it is not necessary to consider the findings pursuant to paragraphs (10) and (11).
III
Mother contends, and DSS concedes, the ICWA notice was inadequate and the matter must be remanded for proper notice to the BIA and the Cherokee tribes. We accept DSS’s concession.
The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) To facilitate participation, notice of the pending proceeding and the right to intervene must be sent to the tribe or to the BIA if the tribal affiliation is not known. (25 U.S.C. § 1912(a); § 224.2, subd. (a).) Once notice is provided, it must be sent for each subsequent hearing until it is determined that the ICWA does not apply. (§ 224.2, subd. (b); In re Marinna J. (2001) 90 Cal.App.4th 731, 736.)
Because the principal purpose of the ICWA is to protect and preserve Indian tribes, a parent’s failure to raise an ICWA notice issue in the juvenile court does not bar consideration of the issue on appeal. (In re Marinna J., supra, 90 Cal.App.4th at p. 739; see Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 783, fn. 1.)
In April 2008, Mother submitted a “Parental Notification of Indian Status” indicating that she may have Indian ancestry in the “Eastern” band of the Cherokee tribe.
DSS’s May 2008 disposition report asserted that ICWA “does or may apply.” Notices of the disposition hearing were sent to the Bureau of Indian Affairs (BIA). The BIA executed return receipts but did not otherwise respond to the notices. Nothing in the record suggests that any notices were sent to any Cherokee tribe.
DSS’s June 2008 addendum report asserted without explanation that ICWA “does not apply.”
On appeal, DSS concedes that notice was required to be sent to the three federally recognized Cherokee tribes, and that no such notice was given. We accept DSS’s concession.
The Legislature enacted sections 224.2 and 224.3, effective January 1, 2007. (Stats. 2006, ch. 838, §§ 31, 32.) Mother’s notification that she may have Cherokee ancestry was sufficient to require notice to the Cherokee tribes. (§ 224.3, subd. (b)(1).)
DSS further concedes that the notices sent in this case were deficient in that they did not contain sufficient biographical information. This concession, too, is proper.
Section 224.2, subdivision (a)(5), requires an ICWA notice to include, among other things, the name, birthdate, and birthplace of the Indian child, if known; the name of the Indian tribe in which the child is a member or may be eligible for membership, if known; and all names known of the Indian child’s biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known. (§ 224.2, subd. (a)(5), ¶¶ (A)-(C).) The present notices, sent to the BIA in May 2008, were deficient in that they omitted much of the required information.
On remand, the juvenile court shall direct the Department to provide the ICWA notice required by sections 224.2 and 224.3. Thereafter, the court shall proceed in a manner consistent with the responses to the notice.
DISPOSITION
The disposition order is vacated and the matter is remanded for the purpose of providing adequate ICWA notice to the three Cherokee tribes. If any tribe responds that the children are Indian children or eligible for enrollment, the court shall proceed as required by the ICWA. If there is no response to the ICWA notice, or if the tribes or the Bureau of Indian Affairs determine the minors are not Indian children, the court shall reinstate the dispositional order.
We concur: SCOTLAND, P. J., NICHOLSON, J.