Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD217497
BUTZ, J.In the 2008 dependency action brought by the Sacramento County Department of Health and Human Services (the Department), the juvenile court ordered a permanent plan of guardianship over G.T. (the minor). Father and mother appeal separately.
The minor’s father, O.T., contends the juvenile court did not comply with the Indian Child Welfare Act (the ICWA) (25 U.S.C. § 1901 et seq.), improperly delegated visitation to the guardian, and abused its discretion in terminating the dependency action. The minor’s mother, G.S., joins these claims, and also contends the court erred by denying her reunification services, and the court’s order contains clerical errors.
We shall reverse and remand with directions to the juvenile court to ensure proper ICWA inquiry and notice is performed and to modify the visitation order.
FACTUAL AND PROCEDURAL BACKGROUND
A prior dependency case is relevant to the current case.
Prior Dependency Action
On November 27, 2001, the Department filed a petition alleging the then-six-year-old minor fell within dependency jurisdiction because mother failed to protect her from corporal punishment by mother’s boyfriend, exposed her to domestic violence, and failed to give her adequate food; further, mother’s boyfriend had abused the minor’s older brother (then seven). (Welf. & Inst. Code, § 300, subds. (b) & (j).) The petition named “D.T.” (rather than O.T.) as the minor’s alleged father but indicated he was deceased.
Undesignated statutory references are to the Welfare and Institutions Code.
D.T. was actually an alias of the minor’s father, O.T., who was alive but incarcerated.
A detention report stated the minor and her brother were in a receiving home, and two teenage half siblings-who are not directly relevant on appeal-were runaways. The report also named D.T. as the alleged, deceased father.
The minutes of a hearing on November 29, 2001, note: “Mother has been identified as being of Native American Heritage (PUMO TRIBE) and the [Department] is to comply with ICWA requirements. ICWA notice shall be provided.” However, the minutes of the continued hearing the next day state: “Parents have not been identified as being of Native American Heritage.” Mother, represented by counsel at that hearing, did not disagree with this finding, and no objection appears in the record.
A declaration of receipt states that the ICWA responses regarding the older children were received from several Apache tribes.
A jurisdiction-disposition report filed on January 10, 2002, states that the ICWA notices were sent on December 6, 2001, to the “Pinoleville Indian Reservation.” That tribe responded, stating none of the children, specifically including the minor, were enrolled tribal members, or eligible for membership enrollment. However, the notice to the tribe referenced by this report is not in the record.
On January 24, 2002, the petitions as to the two older half siblings were dismissed.
On February 11, 2002, an amended petition was filed, alleging mother had a drug problem, as evidenced by prior drug convictions, and multiple recent drug tests that proved positive for methamphetamine.
At a hearing on April 4, 2002, jurisdiction over the minor and her brother was sustained and they were placed out of mother’s home. The juvenile court found “[t]here is no evidence before the court that the [ICWA] applies.” The record does not reflect any objection to this finding.
An interim report filed on May 7, 2002, states mother had not completed a drug assessment, had not fully cooperated with counseling, and had not submitted proof of recent attendance at “twelve-step” meetings.
A six-month review hearing report (§ 366.21, former subd. (e)), filed on July 15, 2002, states father was deceased. It also states, “Th[is] matter was investigated and [it was] determined that the [ICWA] does not apply. The Court is respectfully referred to the ICWA attachment.” The referenced “ICWA attachment” is not in the record. Mother appeared with counsel, but lodged no ICWA objection.
A twelve-month review hearing report (§ 366.21, subd. (f)), filed on January 17, 2003, uses father’s alias and reiterates that he was deceased, and states that an investigation revealed no ICWA issue, and refers the court “to prior Court reports.” Mother appeared with counsel at the twelve-month hearing and the record does not show any ICWA objection.
A status review report (former § 366.22), filed May 9, 2003, recommended returning the minor and her brother to mother, with dependent supervision. This report again refers to father’s alias and states he was deceased and the ICWA did not apply. And, again, the record shows no objection.
On November 21, 2003, the Department recommended terminating dependency, and again reported father’s alias and states he was deceased and that the ICWA did not apply.
On December 1, 2003, the court terminated the prior dependency action and gave sole custody of the minor to mother.
Current Dependency Action
Five years later, on October 8, 2008, the Department filed the current dependency action, alleging mother’s drug problem impaired her ability to protect the then-13-year-old minor, who had suffered serious emotional damage, including the October 3, 2008 suicide of her 14-year-old brother and the murder of one of her adult half sisters. (§ 300, subds. (b) & (c).)
The detention report again refers to father’s alias and states he was deceased and that a 2002 minute order from the prior action found “there [wa]s no evidence that the [ICWA] applies to the [minor].”
At the initial hearing on October 9, 2008, mother, represented by counsel, claimed Indian heritage, specifically, that she might have “Pomo” ancestry. The court directed its clerk to prepare and transmit a paternity inquiry as to the minor.
On October 17, 2008, the Department filed a declaration explaining its ICWA investigation. Notice had been given to “the Pinoleville Reservation in 2001 when the child was previously in protective custody. At that time, the maternal grandmother... indicated to the undersigned that she and her daughter [i.e., mother] were members of the Pinoleville Reservation.” The declaration states the maternal grandmother had been contacted on October 15, 2008, “as to any new family or tribal information” and “indicated she and her daughter are still enrolled with the Pinoleville Reservation and no other tribe.” Notice to the “Pomo-Pinoleville” tribe was made, although in part an accompanying letter states “[t]he family history was previously sent to your tribe in 2001 and the child was not found to be eligible for enrollment or membership with your tribe.”
The “Pinoleville Pomo Nation, California (formerly the Pinoleville Rancheria of Pomo Indians of California)” is a federally-recognized tribe. (Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 74 Fed.Reg. 40218, 40221 (Aug. 11, 2009).)
The jurisdictional report filed on November 5, 2008, again states that father was thought to be deceased, that the ICWA “may” apply, and that notice was given to the “Pomo” tribe.
Regarding mother, the report in part states that on April 30, 2007, after a drunk driving conviction, mother completed a “First Offender Program” that she had been referred to by the court. Mother continued to drink, but claimed it “did not interfere with her relationship with the child or the child’s siblings.” The report recommended that the juvenile court deny mother reunification services based on mother’s substance abuse history.
On January 7, 2009, the court found 60 days had elapsed after the ICWA notice and therefore “The Court finds that the child is not an Indian child.” No objections to this finding were interposed at the hearing.
On January 13, 2009, the parties submitted the issue of jurisdiction on the reports, and the juvenile court sustained the petition. The accompanying orders in part state the minor “may be an Indian Child.”
Mother did not appear at that hearing, but the minor was present. The minor’s counsel objected to reunification services for mother, “as my client does not wish to reunify with her mother.” Mother’s counsel argued for reunification services, questioning the Department’s reliance on the alcohol offender program to preclude services. However, mother’s counsel presented no evidence regarding the nature of that program, and did not rebut the evidence that mother continued to drink.
The juvenile court denied reunification services. The order states mother “has a substance abuse problem, dating back to at least 1998, from which she has failed and/or refused to rehabilitate” and on October 6, 2008, a social worker “detected alcohol on [mother’s] breath, while [the social worker] was intervening during a verbal altercation between [mother] and the [minor].... Despite [mother’s] engaging in Court Ordered Services from April 4, 2002 to December 1, 2003, to treat [mother’s] substance abuse problem, [mother] continues to abuse alcohol....” Mother “has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted treatment during a three-year period immediately prior to the filing of the petition or has failed or refused to comply with a program of drug or alcohol treatment as described in the case plan... on at least two occasions....”
A February 11, 2009 status letter was filed on February 13, stating that father was not deceased but incarcerated, and had been served with notice of this action at Ironwood State Prison.
A selection and implementation report filed on April 24, 2009, states that although “[i]t is still uncertain that [mother] and maternal grandmother are members of an Indian Tribe, ” notice to the “Pomo” tribe had been sent on October 17, 2008, but no response had been received.
On July 22, 2009, the juvenile court placed the 14-year-old minor with a guardian and terminated dependency.
Visitation was ordered as follows: “The parents shall be allowed contact with [the minor] as arranged with the guardians and subject to any reasonable conditions including supervision as the guardians consider necessary. I’ll say you should be allowed reasonable contact and visitation.” At the end of the hearing, after addressing contact for other family members, the juvenile court stated, “Enter objections on behalf of the parents. They have the right to appeal.” The written visitation order reads: “As arranged and directed by the guardian(s) subject to any reasonable conditions deemed appropriate by the guardian, including supervision.”
Father and mother each timely appealed.
DISCUSSION
I. The ICWA Notice
Generally speaking, the ICWA requires notification to a tribe when an Indian child may be involved in a dependency proceeding. (See In re S.B. (2005) 130 Cal.App.4th 1148, 1156-1158.) Notice is required when the court “knows” or there is “reason to know” that an Indian child “is... or may be” involved in the dependency action. (§ 224.2, subds. (a)(5)(B), (b); Cal. Rules of Court, rule 5.481 [duty to inquire]; see In re Alice M. (2008) 161 Cal.App.4th 1189, 1197-1198; In re Nikki R. (2003) 106 Cal.App.4th 844, 848.)
“[The] ICWA notice requirements are strictly construed. [Citation.] The notice sent to the BIA and/or Indian tribes must contain enough information to be meaningful. [Citation.] The notice must include: if known, (1) the Indian child’s name, birthplace, and birth date; (2) the name of the tribe in which the Indian child is enrolled or may be eligible for enrollment; (3) names and addresses of the child’s parents, grandparents, great grandparents, and other identifying information; and (4) a copy of the dependency petition.” (In re Francisco W. (2006) 139 Cal.App.4th 695, 703; see In re Louis S. (2004) 117 Cal.App.4th 622, 630.)
In this case, the Department concedes that the ICWA notice in the record contains several errors. For example, the minor’s name is misspelled. Her birth date is wrong. No birth certificate was attached, although one appears later in the record. The name of her maternal grandfather appears to be incorrect. The notice was sent to the “ICWA representative” instead of the tribal chairperson, as provided by regulations the Department impliedly concedes were applicable both before and after the notice in this case was sent. (Cal. Rules of Court, rule 5.481(b)(4).)
“Deficient notice under the ICWA is usually prejudicial [citation] but not invariably so.” (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1411.) Errors are subject to harmless error review (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784), and remand is not required if “the tribe has... expressly indicated no interest in the proceedings” (In re Desiree F. (2000) 83 Cal.App.4th 460, 472). In such cases it must be established that proper notice was given, or at the very least that the person stating there is no tribal interest has the authority to say so. (See In re Asia L. (2003) 107 Cal.App.4th 498, 509; In re H.A. (2002) 103 Cal.App.4th 1206, 1213-1214.) These circumstances are not present in this case.
The appropriate result is a conditional reversal, commanding the trial court to order the Department do its job correctly. The requirement that accurate information be given, and that it be sent to the correct person and address, is well settled. (See Nicole K. v. Superior Court, supra, 146 Cal.App.4th at pp. 783-784 [wrong address]; In re Louis S., supra, 117 Cal.App.4th at p. 631 [misspelled and incomplete names, lack of birth dates]; In re Asia L., supra, 107 Cal.App.4th at p. 509 [notice misaddressed]; In re H.A., supra, 103 Cal.App.4th at p. 1213 [notice misaddressed].)
The Department argues the errors are harmless because the minor was found not to be a member of this Pomo tribe in the prior dependency proceeding. It is true that tribal membership determinations are deemed conclusive. (Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67584 et seq. (Nov. 26, 1979), p. 7; see In re Levi U. (2000) 78 Cal.App.4th 191, 198.) But this does not mean the issue cannot be redetermined by the tribe. As noted above, the Department concedes “the 2001 notices probably went out with incorrect information as did the 2008 notice.” Therefore, it is plausible that providing the correct information could result in a different determination by the tribe. (See In re Jennifer A. (2002) 103 Cal.App.4th 692, 705 [pointing out that tribe’s determination was based on incomplete information].) Absent a record showing that an accurate inquiry and notice were made, we will not “speculate” whether any tribe’s rights may be affected in this case. (See In re J.N. (2006) 138 Cal.App.4th 450, 461.)
Because the matter must be remanded, we shall also require the Department to make new inquiries of mother and father, to determine whether the minor may be eligible for enrollment in other possible tribes to ensure the ICWA has been satisfied. (See In re D.T. (2003) 113 Cal.App.4th 1449, 1455.)
The parents assert notices should have been sent to Apache tribes and other Pomo tribes. Apache membership was an issue for the older half siblings who were dismissed in the prior dependency action. It appears the only Pomo tribe at issue for the minor is the Pinoleville Pomo. However, the Department must conduct a new inquiry as to the minor, which may reveal further possible tribal connections.
II. Visitation Order
The parents contend the visitation order is infirm because it delegates too much discretion to the guardian. We agree.
Although the juvenile court’s action in entering a blanket objection on behalf of the parents is unusual-and is not to be encouraged-because the court did so, we reject the Department’s contention that the parents have forfeited this claim.
We recently reviewed the rules regarding visitation orders in In re Kyle E. (2010) 185 Cal.App.4th 1130 (Kyle E.).
“In fashioning a visitation order, the court may delegate the responsibility of managing the details of visitation-including time, place, and manner-but not the decision whether visitation will occur. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374 (Moriah T.).) In Moriah T., this court upheld an order entered at an 18-month review hearing for the father to visit ‘“regularly”’ with the children ‘“consistent with the[ir] well-being... and at the discretion of [the social services agency] as to the time, place, and manner.”’ (Id. at p. 1371.) Because the juvenile court’s order mandated regular visitation, the social services agency was not given absolute discretion to decide whether visits would occur. (Ibid.) We concluded it was not an improper delegation of authority to allow the social services agency to determine the frequency and length of visits when the order provided for regular visitation. [Citations.]” (Kyle E., supra, 185 Cal.App.4th at p. 1135.)
The written order in Kyle E. provided “for visitation ‘as frequent as is consistent with the well-being of [the minor], ’ with all other conditions, including determinations regarding time, place and manner, and frequency and length of visits, left to the discretion of the Department.” (Kyle E., supra, 185 Cal.App.4th at p. 1135.)
We faulted the visitation order in Kyle E. for two reasons. First, the written order did not conform to the juvenile court’s oral pronouncement. (Kyle E., supra, 185 Cal.App.4th at p. 1136.) Second, substantively, the visitation order “fails to set a minimum number of visits or provide that appellant could visit the minor ‘regularly.’ [Citation.] Given the lack of necessary detail in the oral pronouncement and the improper delegation of authority to the Department regarding whether visitation would occur at all in the written order, we must remand for further proceedings at which the juvenile court shall clarify the terms and conditions applicable to appellant’s visitation, including, but not limited to, a minimum number of visits or that visitation is to occur regularly.” (Ibid.)
In this case, the oral pronouncement was as follows: “The parents shall be allowed contact with [the minor] as arranged with the guardians and subject to any reasonable conditions including supervision as the guardians consider necessary. I’ll say you should be allowed reasonable contact and visitation.” The written order reads: “As arranged and directed by the guardian(s) subject to any reasonable conditions deemed appropriate by the guardian, including supervision.”
Thus, the written order neither specifies the frequency of visits nor commands that they be regular. As in Kyle E., on remand, the juvenile court must make a new order that sets “a minimum number of visits or provide[s] that appellant[s] could visit the minor ‘regularly.’” (Kyle E., supra, 185 Cal.App.4th at p. 1136.)
III. Denial of Reunification Services to Mother
Mother contends the trial court erred in denying her reunification services. We disagree.
Normally, this claim would be barred because mother failed to seek writ review. However, as mother points out, this is only the case if the parent is given proper notice of the right to writ review. (In re Cathina W. (1998) 68 Cal.App.4th 716, 719-724.) The record shows the Department misaddressed the notice to mother. Although the Department partly blames mother for this mistake, we reach the merits.
The social worker recommended denial of services based on section 361.5, subdivision (b)(13). This subdivision allows for bypassing services if the court finds by clear and convincing evidence “[t]hat the parent... 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....” (§ 361.5, subd. (b)(13).)
Mother contends her earlier substance abuse, relating to the first dependency proceeding, is too old to be considered, and notes that she completedthe more recent First Offender Program. Mother concedes cases have held that resuming substance abuse can be deemed a form of resistance. She contends those cases “generally involve much more severe and long-standing drug problems, as well as previous reunification services failures.” Although the circumstances of each case differ, the fact remains that mother resumed drinking, and therefore resisted treatment. (See In re William B. (2008) 163 Cal.App.4th 1220, 1230; Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1009-1011.)
Contrary to the Department’s view, mother does not pursue her trial court claim that the First Offender Program was not a court-ordered program. In her brief, mother merely states that such a claim was made in the trial court. If mother intended to raise that claim on appeal, her failure to head and explicitly argue it forfeits the claim. (Cal. Rules of Court, rule 8.204(a)(1)(B); see People v. Roscoe (2008) 169 Cal.App.4th 829, 840; People v. Crosswhite (2002) 101 Cal.App.4th 494, 502, fn. 5.)
Mother argues she “could have benefitted from reunification services” and points to traumatic events that occurred, the deaths of two children, as well as her own depression, that purportedly explain her relapses. But the minor was entitled to a stable home. (See In re Marilyn H. (1993) 5 Cal.4th 295, 308.) Mother’s argument shows that when confronted by stress, she resorts to alcohol. She did not learn from prior treatment, which she resisted, and therefore the juvenile court properly denied her reunification services.
IV. Termination of Dependency
Both parents claim the juvenile court abused its discretion by terminating dependency jurisdiction. We disagree.
When a guardianship is established, the juvenile court may terminate dependency jurisdiction. (§ 366.3, subd. (a).) “After a guardian is appointed, the juvenile court may continue jurisdiction over the child as a dependent of the court. Alternatively, the court may terminate dependency jurisdiction. (§ 366.3, subd. (a); Cal. Rules of Court, rule 5.735.) [Fn. omitted.] If dependency jurisdiction is terminated, the court retains jurisdiction over the child as a ward of the court as authorized by section 366.4 (§ 366.3, subd. (a)), but it no longer holds ongoing review hearings. [Fn. omitted.] [Citation.] In either situation, if a problem develops, the parent has access to the juvenile court.” (In re Kenneth S., Jr. (2008) 169 Cal.App.4th 1353, 1358.) Whether to terminate dependency jurisdiction is within the juvenile court’s discretion. (See In re Twighla T. (1992) 4 Cal.App.4th 799, 805-806.)
Mother contends the minor “had significant mental health needs” and asserts that continued court supervision was necessary to address those needs. Father agrees with this contention, and also contends continuing court supervision was necessary to ensure that court-ordered visitation took place.
The record shows the guardian is employed and has a stable home, and “has stated that the child’s needs will be adequately met.” She loves the minor and wants the best for her, and “will support any relationships that will be emotionally beneficial to the child.”
There is no basis for the claim that the guardian will not provide appropriate care, including mental health care, for the minor. Many, if not most, minors in the dependency system have some mental problems stemming from the factors leading to dependency, such as parental abuse and neglect. To compel retention of dependency jurisdiction until a minor is fully recovered (assuming that ever happens) would undermine the statutory choice given to the juvenile court by section 366.3, namely, to determine whether such jurisdiction is necessary.
As for visitation, as stated above, the visitation order must be modified. If the new visitation order is violated, one remedy would be to petition to enforce the order. (See Moriah T., supra, 23 Cal.App.4th at p. 1377.) The guardian supported any beneficial relationships with the minor, and therefore would likely obey visitation orders. Continued court supervision is not necessary merely because a court order might be violated. (In reTwighla T., supra, 4 Cal.App.4th at p. 806 [“[V]isitation was not likely to be a serious problem in light of the guardian’s cooperative attitude toward visitation. If a problem nevertheless were to develop in the future, appellant would have access to the court through the court’s jurisdiction over the guardianship itself.”].)
V. Clerical Error
Mother contends the juvenile court’s order misidentifies the appropriate statutory basis for the order. Although she miscites the statute, her claim is the order cites section 366.26, subdivision (b)(2), which applies to relative guardianships, instead of subdivision (b)(4), which applies to nonrelative guardians, such as the guardian in this case.
However, the record references mother supplies do not support the claim of clerical error. In any event, due to the remand necessitated by the ICWA violations and the need to modify the visitation order, the juvenile court will have to issue a new order. We will not presume the new order will contain clerical errors.
DISPOSITION
The matter is remanded to the juvenile court with directions to modify the visitation order to conform to this opinion and to order the Department to comply with the inquiry and notice provisions of the ICWA and the relevant California Rules of Court. If, after proper inquiry and notice, a tribe determines that the minor is an Indian child, the juvenile court is ordered to conduct a new permanency hearing in conformity with all the ICWA provisions. If no timely response is received or all plausible tribes determine the minor is not an Indian child, all previous orders-except the original visitation order-shall be reinstated.
We concur: BLEASE, Acting P. J., NICHOLSON, J.