Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD226621
SIMS , Acting P. J.G. M., mother of the minor, appeals from the judgment of disposition of the juvenile court. (Welf. & Inst. Code, §§ 355, 358, 395; undesignated statutory references are to the Welfare and Institutions Code.) Appellant contends substantial evidence does not support the court’s finding that the minor was at risk of serious harm or that she would be in substantial danger if left in appellant’s care. Appellant further contends the court erred in denying her services and there was a failure to comply with the inquiry and notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We affirm.
FACTS
The Department of Health and Human Services (DHHS) placed the newborn minor in protective custody due to appellant’s history of mental illness, which previously led to the removal of her two other children and termination of her parental rights as to one of them. Appellant had a diagnosis of paranoid schizophrenia and did not consistently take her medication.
Appellant’s condition had impaired her ability to care for her oldest daughter, who was placed in foster care, following a diagnosis of failure to thrive, and was adopted after termination of appellant’s parental rights in 2004. Appellant’s second child was removed in 2006, again due to appellant’s mental health issues. Appellant failed to make progress in reunifying with the second child and the social worker in that case recommended termination of services.
Appellant had participated in several psychological examinations over the course of the first two dependency proceedings and the psychologists concluded that appellant was unable to benefit from services due to her mental health problems and brain dysfunction and was not capable of parenting without supervision and assistance. Appellant had completed counseling but, in August 2007, her therapist concluded appellant’s cognitive impairment meant it would be difficult for her to parent a child without assistance and a child left in her care would be at risk of harm. The psychological reports in 2007 indicated appellant’s overall functioning was impaired and she was prone to minimize her problems. Observation of appellant’s interaction with her second child at visits showed a lack of bond and poor parenting skills. When redirected to appropriate parenting behavior, appellant appeared not to understand what was being said and did not take the suggestions seriously. The father of both the minor and appellant’s second child, showed symptoms of uncontrolled schizophrenia, displayed controlling, verbally abusive behavior during visits with the second child and continually traumatized her by his conduct. However, the father’s and appellant’s mental health caseworkers felt the second child should be returned to appellant and the minor’s father because neither was displaying overt symptoms of their mental disorders and they should have a chance to parent.
After reviewing the siblings’ cases, the social worker’s jurisdiction/disposition report in this case observed that appellant still had not progressed past supervised visits and continually needed redirection and retraining to perform basic caretaking tasks despite participation in services in the earlier cases. The father continued to show paranoid ideation, traumatized the minor’s sibling during visits, had not progressed to unsupervised visits and failed to recognize the risk of harm to the minor in leaving her with appellant. Although both parents had participated in services, they had not made substantive progress toward reunification with the sibling.
An addendum to the report recommended denial of services to appellant pursuant to section 361.5, subdivisions (b)(10) and (b)(11). The addendum stated there was no detriment to the minor in denying services because the minor was an infant and had no bond to appellant.
At the jurisdiction hearing in January 2008, appellant objected to the recommendation to deny services, arguing she had made efforts to address the prior problems and services were ordered for her in the sibling’s case after she had done services for six months on her own. Appellant insisted she was now taking her prescribed medication. Appellant contended that, to the extent she needed help in parenting the minor, such help was available from community resources. The court sustained the petition, found overwhelming evidence supported the dispositional recommendations and adopted the recommended findings and orders. Additional facts appear where relevant in the following discussion.
DISCUSSION
I
Appellant contends there was insufficient evidence to sustain the petition or to apply the provisions of section 361, subdivision (c)(1), relating to removal of the minor.
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., supra, 222 Cal.App.3d at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) 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.)
a) Risk of Serious Harm
The petition alleged the minor came within the provisions of section 300, subdivision (b). That section provides: “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 . . . to adequately supervise or protect the child . . . or by the inability of the parent . . . to provide regular care for the child due to the parent’s . . . mental illness . . . .”
Appellant had a documented mental illness and brain dysfunction. Her first child failed to thrive in her care. Despite extensive services over several years, appellant was still unable to consistently provide basic caretaking functions for her second child even when closely supervised during visits. Although appellant’s mental health symptoms had stabilized and she was currently taking her prescribed medication, she suffered from cognitive impairment and was unable to independently parent her child. This was demonstrated during visits with the sibling where appellant was unable to understand and follow suggestions regarding child care or intervene to prevent the father from harming the sibling. Appellant’s global inability to parent placed the minor at risk of serious physical harm.
b) Applicability of section 361, subdivision (c)(1)
Section 361, subdivision (c)(1), provides, in relevant part: “A dependent child may not be taken from the physical custody of his or her parents . . . unless the juvenile court finds clear and convincing evidence of any of the following circumstances . . . [¶] (1) There 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.”
Much of the evidence which supports jurisdiction also supports the finding that removal was required. Appellant’s inability to parent independently places the minor at risk. The risk is exacerbated by the father’s minimization of appellant’s problems. Both parents deny the existence of the father’s anger management issues which are apparent in his volatile, verbally abusive and controlling behavior during visits with the minor’s sibling. There is ample evidence of a substantial danger to the minor’s well-being if left in the home.
Appellant argues the minor could be returned with intervention by external agencies to support her parenting skills. However, appellant continues to demonstrate an inadequate grasp of parenting skills although she has had extensive parenting classes and receives one-on-one parenting assistance in visits. She is either incapable of processing the information or unwilling to apply it. External agents could not be expected to be more successful in teaching parenting skills and would not be in the home constantly to provide the support appellant needs to raise the minor. No reasonable means exist under the evidence before the court to protect the minor if returned to appellant’s care.
II
Appellant contends it was error to deny her services because her mental health condition did not render her incapable of caring for the minor and she had made efforts to correct the problems in the previous dependency.
The juvenile court denied service to appellant pursuant to section 361.5, subdivisions (b)(10) and (b)(11). Both subdivisions apply to parents who have a history of failed reunification and each applies only if the parent “has not subsequently made a reasonable effort to treat the problems that led to the removal of the sibling or half sibling.” (§ 361.5, subds. (b)(10), (b)(11).)
Section 361.5 subdivision (b)(10) provides: “That the court ordered termination of reunification services for any siblings or half siblings of the child because the parent . . . failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent . . . pursuant to Section 361 and that parent . . . is the same parent . . . described in subdivision (a) and that, according to the findings of the court, this parent . . . had not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent . . . .”
A “reasonable effort to treat” the problem does not require the parent to cure it. (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464.) The statute provides a “parent who has worked toward correcting his or her problems an opportunity to have that fact taken into consideration in subsequent proceedings.” (In re Harmony B. (2005) 125 Cal.App.4th 831, 843.)
Appellant has certainly participated in years of services. However, despite her efforts she has not made any significant progress in correcting her problems. The psychological reports suggest that she is not cognitively capable of doing so. Substantial evidence supports the juvenile court’s order denying appellant services on the stated grounds.
III
At the outset of the proceedings, appellant claimed Cherokee and Blackfeet heritage. Because ICWA notices had been sent for the older children, DHHS had some genealogical information from an earlier ICWA investigation in June 2006. In the current case, additional inquiry was made of the maternal grandmother which produced no new information and notices of the proceedings with multigenerational information were sent November 23, 2007, to the Cherokee and Blackfeet tribes with an indication that the notices contained all available information. The notices contained the name and relevant information for the mother, through whom Indian heritage was claimed; names, addresses and places and dates of birth for the maternal grandparents; and names, places and dates of birth and death for the maternal great-grandparents as well as some additional detail about each of them. DHHS filed return receipts from all tribes and the Bureau of Indian Affairs (BIA) with the court December 6, 2007, showing the tribes received the notices in late November 2007. DHHS also filed the negative responses from the Blackfeet and the United Keetoowah Band of Cherokee Indians a week later. The originally scheduled jurisdiction/disposition hearing was continued for compliance with ICWA time constraints.
The jurisdiction/disposition hearing did not commence until January 11, 2008. At the hearing, appellant told the court that the information in the notice forms needed correction. Appellant said that the maternal grandfather’s current address was the same as the maternal grandmother’s address and that the former city and state addresses for the maternal great grandparents along with the locations of the particular Cherokee and Blackfeet tribal groups they were affiliated with were available and provided that information. The court directed that the tribes be informed of the corrections and set a compliance hearing without determining whether the ICWA applied.
Appellant argues several aspects of the notice procedure required by the ICWA were not satisfied. She asserts that insufficient information was obtained prior to notices being sent, the court did not comply with the ICWA notice requirements by failing to continue the jurisdiction/disposition hearing after directing that a corrected notice had to be sent to the tribes and the court failed to apply the substantive provisions of the ICWA to the jurisdictional determination pending information that the minor was not an Indian child.
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.) The juvenile court and DHHS have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.481(a).) If, after the petition is filed, the court “knows or has reason to know that an Indian child is involved,” notice of the pending proceeding and the right to intervene must be sent to the tribe or the BIA if the tribal affiliation is not known. (25 U.S.C.
§ 1912; § 224.2; Cal. Rules of Court, rule 5.481(b).)
a) Information in the Notice
State statutes, federal regulations and the federal guidelines on Indian child custody proceedings all specify the contents of the notice to be sent to the tribe in order to inform the tribe of the proceedings and assist the tribe in determining if the child is a member or eligible for membership. (§ 224.2; 25 C.F.R. § 23.11(a), (d), (e); 44 Fed.Reg. (11-26-79) No. 228, B.5, p. 67588.) If known, the agency should provide name and date of birth of the child; the tribe in which membership is claimed; the names, dates and places of birth and death, current addresses and tribal enrollment numbers of the parents, grandparents and great grandparents as this information will assist the tribe in making its determination of whether the child is eligible for membership and whether to intervene. (§ 224.2; 25 C.F.R. § 23.11(a), (d), (e); 44 Fed.Reg. (11-26-79) No. 228, B.5, p. 67588; In re D. T. (2003) 113 Cal.App.4th 1449, 1454-1455.)
Here, virtually all of this information was sent to the tribes after questioning the maternal grandmother produced no new information. It is unclear whether appellant was also asked to update the prior information, however, any failure to do so was not prejudicial in this case.
The information provided by appellant about the tribes’ locations appeared to be the locations of particular groups of Cherokee or Blackfeet Indians. However, the identification of the location of the tribe is to facilitate service of the notice documents, not to identify tribal members. (25 C.F.R. § 23.11(a).) The three federally recognized Cherokee tribes and the Blackfeet tribe have designated agents for service of process. (71 Fed.Reg. (8-2-06) No. 148 p. 43788.) Notices were sent to the designated agents. Consequently, assuming that failure to specify the location of the tribe in the Judicial Counsel form for notice of the proceedings is error, it was harmless.
Appellant’s correction of the maternal grandfather’s address provided additional identifying information about him, however, in light of the fact that the tribes were provided a wealth of information about the maternal grandfather and his parents in the original notice, omission of the correct current address could not have led to a misidentification of his status as an actual member of the tribe or an individual who was eligible for membership. Again, any error in failing to ask appellant about updates of the addresses in the initial notice was harmless. (Cf. In re S.B. (2005) 140, Cal.App.4th 1148, 1162; In re N.E. (2008) 160 Cal.App.4th 766, 770.) In any case, the court ordered that a corrected notice be sent to the Cherokee and Blackfeet tribes.
b) Continuance of the Jurisdiction/Disposition Hearing
“No foster care placement or termination of parental rights proceeding shall be held until at least 10 days after receipt of notice by . . . the tribe . . . .” (25 U.S.C. § 1912(a) [emphasis added].)
The record is clear that the tribes had received the notices in late November 2007. The originally scheduled hearing in December 2007 was continued to permit compliance with the above-quoted provision of the ICWA. The jurisdiction/disposition hearing commenced January 11, 2008, six weeks after the tribes had received notice, giving ample time under the ICWA for the tribes to determine whether or not to intervene in the proceedings. As we have seen, the original notices were sufficient to inform the tribes of the proceedings and had adequate information for the tribes to determine whether the minor was eligible for tribal membership. Accordingly, no error appears.
c) Application of the Substantive Provisions of the ICWA
“Aside from its notice provisions, the ICWA applies only to Indian Children. [Citations.] Only when information before the juvenile court is sufficient to show that the child is a member of a tribe, or is eligible for membership and is the child of a member, does [California Rules of Court, ]rule 1439(e) [now rule 5.482(d)(2)] require compliance with all of the provisions of the ICWA.” (In re L. B. (2003) 110 Cal.App.4th 1420, 1427.)
At the time of the hearing, there was no evidence the minor was an Indian child. The substantive provisions of the ICWA did not apply.
DISPOSITION
The judgment of disposition is affirmed.
We concur: DAVIS , J., HULL , J.
Section 361.5 subdivision (b)(11) provides: “That the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a) and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from the parent.”