Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. EJ2192B, Gary M. Bubis, Judge.
O'ROURKE, J.
W.E., mother of dependent minor Cody E., appeals the juvenile court's dispositional order denying her reunification services under Welfare and Institutions Code section 361.5, subdivision (b)(13). W.E. contends the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA), applicable here because Cody is an Indian child within the meaning of ICWA, required that "active efforts" be made to reunify W.E. and Cody through the provision of services. She further asserts the court erred by finding she would not successfully participate in services in order to regain custody of Cody. We affirm the order.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Cody was born in December 2006 to W.E. and Robert C. W.E. has another child, seven-year-old Ashley E., whose father is Michael H. Cody and Ashley are registered members of the Bad River Band of Lake Superior Tribe of Chippewa Indians (Tribe) through maternal lineage. In 2002, when Ashley was a year old, she became a dependent of the juvenile court based on findings she had been exposed to W.E.'s substance abuse and domestic violence between her parents. While Ashley lived in foster care, the San Diego County Health and Human Services Agency (Agency) provided W.E. with reunification services and family maintenance services, including inpatient and outpatient drug treatment, individual and conjoint therapy, and in-home services through the Intensive Family Preservation Program (IFPP). After receiving two years of services, W.E. reunified with Ashley and the court terminated jurisdiction.
Ashley is not a subject of this appeal.
Less than a year later, W.E. was arrested for driving under the influence. She admitted using methamphetamine every other day for two months. Her home was filthy and contained little food. Dangerous items were accessible to Ashley, including a hypodermic syringe, methamphetamine pipes, broken glass and an open beer in Ashley's bed. Ashley was again taken into protective custody. She was placed in foster care from February 2006 to April 2007 while W.E. participated in reunification services. During this time, W.E. gave birth to Cody. Services included inpatient and outpatient substance abuse treatment, drug testing, IFPP, individual and conjoint therapy and parenting classes. Ashley was returned to W.E.'s custody in April 2007 and W.E. received 12 months of family maintenance services. The court terminated jurisdiction of Ashley after W.E. received 26 months of services.
Just weeks after Ashley's second dependency case was closed, W.E. relapsed into drug and alcohol use. W.E. admitted that in June 2008, she resumed using methamphetamine and drinking alcohol two or three times a week. W.E., Ashley and Cody were living in an apartment with two unrelated males. Ashley reported these men were mean and yelled a lot. She said W.E. had been drinking two or three beers a day and was acting "weird." W.E. claimed she relapsed after a friend raped her. On July 3 she used methamphetamine intravenously, took off her clothes, jumped out her bedroom window and sprayed herself and Cody with water from a hose, claiming the water was "fairy dust." She ran into traffic and began throwing objects at pedestrians. When police arrived, W.E. was in her apartment screaming and breaking objects with a baseball bat. She swung the bat at the officer and assaulted several other officers as they tried to restrain her. The officers were concerned that W.E. was a danger to herself and others. W.E. was arrested and charged with several felonies. She was placed on a 72-hour hold for treatment and evaluation.
Agency filed petitions in the juvenile court under section 300, subdivision (b) alleging Ashley and Cody were at substantial risk of harm due to W.E.'s psychiatric admission, Ashley's prior dependencies and W.E.'s history of substance abuse and relapse. The court detained Ashley and Cody in out-of-home care and found ICWA applied.
An allegation under section 300, subdivision (g) was later dismissed.
Phillip Powers, an Indian expert witness for ICWA purposes, submitted a declaration stating it was his opinion that active efforts had been made to provide rehabilitative and remedial services to prevent the breakup of the Indian family, but these efforts were unsuccessful. Powers believed Cody was at risk of serious physical or emotional harm if returned to W.E.'s care. He noted W.E. had "not benefited from the services provided to her on similar substance abuse issues in the past." Powers agreed with Agency's recommendation against offering reunification services to W.E.
The Tribe intervened on behalf of Cody and recommended services be provided for W.E. At a jurisdiction hearing, the court sustained the allegations of the petition and set the matter for disposition.
At a contested disposition hearing, social worker Stephanie Bailey testified W.E. had engaged in substance abuse treatment for 18 months and graduated from a treatment program in 2008. W.E. said she returned to drugs because she lost her job and was having other problems. Bailey testified W.E. had been taught coping mechanisms other than drug use. W.E. was currently incarcerated and awaiting sentencing on a felony assault conviction. Bailey recommended no services for W.E. because she had received all available services, and now needed to apply what she learned in order to keep her children safe.
Powers testified that based on his review of the reports, this was an extremely high risk case. W.E. had received a plethora of services through various agencies and still relapsed in a dramatic, bizarre way, endangering many people. Powers was concerned about W.E.'s mental health and the potential for future relapse, which could harm her children.
After considering the evidence and hearing argument of counsel, the court declared Cody a dependent and removed him from W.E.'s care. The court found active efforts had been made to provide remedial services and rehabilitative programs designed to prevent the breakup of this Indian family, but these efforts were unsuccessful. The court noted that although W.E. successfully reunified with Ashley, she repeatedly relapsed. The court denied W.E. reunification services under section 361.5, subdivision (b)(13) based on her lengthy history of drug abuse and "exceptionally serious relapse."
DISCUSSION
I
W.E. contends the court erred by denying her reunification services under section 361.5, subdivision (b)(13) because ICWA requires "active efforts" to prevent the breakup of the Indian family through the provision of services. She asserts ICWA's "active efforts" requirement means reunification services must be provided for each child placed in foster care, and no such efforts were made as to Cody.
A
When a minor is removed from parental custody, the court must provide services designed to reunify the family unless one of several statutory exceptions applies. (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 845.) Under section 361.5, subdivision (b)(13), the court may deny services if it finds the parent has a history of extensive, abusive and chronic use of drugs or alcohol and has resisted court-ordered treatment for this problem during a three-year period immediately before the petition was filed. (Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 780.) This limit on the provision of services reflects the Legislature's determination that reunification services are not in a minor's best interests when a parent is a chronic drug abuser who has resisted treatment. (See In re Brooke C. (2005) 127 Cal.App.4th 377, 382; In re Levi U. (2000) 78 Cal.App.4th 191, 200.)
Before the juvenile court can place an Indian child in foster care, it must first find "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and... these efforts have proved unsuccessful." (25 U.S.C. § 1912(d).) This provision furthers the purpose of ICWA to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families" by establishing minimum federal standards for removing Indian children from their families and placing them in foster care or adoptive homes that will reflect the unique values of Indian culture. (25 U.S.C. § 1902.) By requiring "active efforts," Congress intended "to rectify the nonprovision of any services to Indian families." (In re Michael G. (1998) 63 Cal.App.4th 700, 711, italics added.)
Effective January 1, 2007, ICWA's "active efforts" provision was codified in section 361.7, subdivision (a).
B
W.E. argues that although past efforts were made to reunify her with Ashley, no such efforts were made with respect to Cody. In Letitia V. v. Superior Court (2000) 81 Cal.App.4th 1009, 1016, the court addressed the very issue raised by W.E. here: "whether 'active efforts' within the meaning of ICWA require reunification services be provided for each individual child or, put another way, whether the state is free to consider what it defines as recent but unsuccessful reunification efforts with the same parent but a different child sufficient to satisfy the mandate of 25 United States Code section 1912(d) with regard to a sibling." The court in Letitia V. noted "active efforts" means only that timely and affirmative steps be taken "to avoid the breakup of Indian families whenever possible by providing services designed to remedy problems which might lead to severance of the parent-child relationship." (Letitia V., at p. 1016.) Recognizing that the law does not require idle acts, the court held "where substantial but unsuccessful efforts have just been made to address a parent's thoroughly entrenched drug problem in a juvenile dependency case involving one child, and the parent has shown no desire to change, duplicating those efforts in a second case involving another child--but the same parent--would be nothing but an idle act." (Ibid., fn. omitted.) Thus, the denial of services is not inconsistent with the active efforts requirement of ICWA if past efforts to prevent the breakup of the Indian family have met with no success. (Ibid.)
C
We agree with the holding and reasoning of Letitia V. Where, as here, active efforts were made to provide services relating to one sibling removed from parental custody, ICWA does not require providing duplicative services relating to another sibling who is later removed from the parents. (Letitia V. v. Superior Court, supra, 81 Cal.App.4th at p. 1016.) This principle applies to parents, like W.E., who have been unable to benefit from services despite their continued efforts to participate in them. Congress could not have intended that agencies provide remedial services and rehabilitative programs again and again to parents, despite their lack of progress or inability to benefit from them. Because W.E. received four years of services and was still "unable or unwilling to raise [her children] in a healthy manner emotionally or physically," the court properly found active efforts were made to prevent the breakup of this Indian family and those efforts were fruitless. (In re Crystal K. (1990) 226 Cal.App.3d 655, 667; 25 U.S.C. § 1912(d) & (e).)
In an attempt to distinguish her case from Letitia V., W.E. asserts past efforts had been successful because she previously completed drug rehabilitation and twice reunified with Ashley. However, this argument ignores the fact that W.E.'s successful reunifications were temporary and short-lived. Thus, W.E.'s attempt to reunify with Ashley by participating in remedial services and rehabilitative programs failed because she did not achieve the intended result of eliminating her drug addiction. Much like the situation in Letitia V., providing more reunification services for W.E. would be fruitless.
II
W.E. contends her drug use was not consistent or habitual, she was not a "slave to drugs," and her brief relapse did not constitute "resistance to treatment" within the meaning of section 361.5, subdivision (b)(13). W.E. further contends she was likely to participate in services and reunify with Cody; thus, the provision of services was in Cody's best interests.
The evidence showed W.E. had been using drugs and alcohol for 17 years (since she was 13 years old). Her methamphetamine use led to Ashley's first dependency. Over a four-year period, which included 16 months after Cody was born, W.E. participated in both inpatient and outpatient drug treatment services, individual and conjoint therapy, in-home support services and parenting classes. She had a safety plan that included resources in the event of relapse. Despite a plethora of services and assistance in remedying her drug dependency, W.E. relapsed. W.E.'s inability to overcome her extensive and chronic substance abuse met the "resistance to treatment" requirement of section 361.5, subdivision (b)(13). (Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1010; In re Brooke C., supra, 127 Cal.App.4th at p. 383.) Further, W.E. has shown "reunification services would be a fruitless attempt" to protect Cody because her "past failure to benefit from treatment indicates that future treatment also would fail to change [her] destructive behavior." (Karen S., at p. 1010.) In this regard, an order for reunification services would not be in Cody's best interests. (§ 361.5, subd. (c); In re William B. (2008) 163 Cal.App.4th 1220, 1227.) Substantial evidence supports the court's denial of services under section 361.5, subdivision (b)(13).
W.E. claims Cody's dependency involves a different set of facts—her mental illness—not previously addressed. However, W.E. received individual therapy for several years as part of her case plan. Her psychological problems were part of or in addition to her drug addiction, and there is no reason to believe that offering another treatment plan would have a different outcome.
DISPOSITION
The order is affirmed.
WE CONCUR: BENKE, Acting P. J., McINTYRE, J.