Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J05-02040
GEMELLO, J.
Kevin W. appeals a disposition order removing his daughter from parental custody and placing her in foster care. He argues the agency failed to comply with substantive requirements of the Indian Child Welfare Act (ICWA, 25 U.S.C. § 1901 et seq.) and state dependency law. We affirm.
Background
In November 2005, the Contra Costa County Children and Family Services Bureau (CFS) filed a petition to declare Leah W. (born July 1991) a dependent child pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (b). The petition alleged that the mother had hit the child on the head; the mother’s home was filthy; both the mother and the alleged father, Kevin W. (Father), had chronic substance abuse problems; and Father failed to reunify with the child in a previous dependency proceeding. Leah was detained.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The jurisdiction report stated that Leah had been a dependent of the court from September 1996 to May 1999 based on allegations of physical abuse and the parents’ substance abuse problems. The mother completed family reunification and maintenance services, but Father’s reunification services were terminated.
Regarding the current dependency, Leah reported the mother often hit her and called her names when she got angry; the home was always filthy; there was never any food in the house; and her mother used drugs. Father had an extensive criminal history, primarily for burglary. A social worker encountered Father in the mother’s home following the detention and described him as “very dirty and unkempt” and his speech was “pressured and slow.”
The parents became homeless shortly after Leah’s removal. Subsequently, they resided in a church facility, a motel, and as of February 2006 a studio apartment in Vallejo. The jurisdiction report stated that the parents wanted to reunify with Leah and were seeking a one bedroom apartment to accommodate her. The mother was undergoing drug and alcohol testing and she had been referred to a drug treatment center.
At the February 1, 2006 jurisdiction hearing, the court sustained the allegations that the mother had a substance abuse problem and that she hit Leah on the head. The court did not sustain any of the allegations against Father. The court removed Leah from the parents’ custody and gave CFS discretion to release the minor to the mother only if the mother tested clean and the Father was not in the home.
The March 2006 disposition report stated that the mother had a genuine caring and loving attitude toward Leah and was attending visits with the child. However, Leah was unable to return to the mother’s home because the mother had ongoing substance abuse problems and Father was residing in the home. The mother attended only three of 12 sessions of her substance abuse treatment program as of March 21. Father was still residing with the mother, but he promised to leave if Leah returned home. In a May 15 update, CFS reported that the mother was not undergoing drug testing or treatment. She blamed a lack of funding for transportation.
At the time of the detention hearing, Father reported that he might have Indian ancestry and the mother said she might be a member of, or eligible for membership in, a Cherokee tribe. CFS sent ICWA notices to the Bureau of Indian Affairs and Cherokee tribes on February 14, 2006. In a March 28, 2006 letter, the Cherokee Nation in Tahlequah, Oklahoma informed the court that Leah was an Indian child based on her mother’s membership in the tribe. In May 2006, the tribe informed the court that it had decided not to intervene in the proceedings. At the disposition hearing, the court found that Leah was an Indian child.
To support its recommended disposition of foster placement for Leah, CFS submitted a written declaration by an ICWA expert, who also testified at the disposition hearing. The expert opined that the reason that active efforts had not been made to provide services designed to prevent the breakup of the Indian family before Leah’s detention was the imminent danger of abuse to Leah. The expert noted that following the detention the mother had been provided with drug testing, referrals for drug treatment and parenting skills, a list of rooms for rent, and transportation funds, and visitation had been arranged between the mother and Leah. She opined that continued custody of Leah by the parents was likely to cause her serious emotional or physical damage.
At the May 24, 2006 disposition hearing, the court found by clear and convincing evidence that returning Leah to a parent’s home would likely cause her serious physical or emotional damage. The court ordered that Leah remain in foster care and the mother continue to receive reunification services. The court changed Father’s status from alleged to presumed father and ordered reunification services for him. Father appeals from the May 24, 2006 order removing Leah from the parents’ custody.
Discussion
I. Standing
At the court’s request, the parties submitted supplemental briefing on Father’s standing to appeal. CFS appears to concede that Father had standing in the trial court to raise his ICWA arguments pursuant to an ICWA statute (25 U.S.C. § 1914) and Californa Rules of Court, rule 5.664(n). CFS then reasons that the statute and rule do not grant Father standing to pursue those same claims on appeal. CFS cites no legal authority for this novel argument. We will address Father’s myriad appellate arguments on the merits.
All further rule references are to the California Rules of Court.
II. Under both ICWA and State Law there is Clear and Convincing Evidence Continued Custody Would Cause Harm
Father argues there is not substantial evidence in the record to support the juvenile court’s finding that continued custody by the mother was likely to cause Leah serious emotional or physical damage. Under ICWA, the lower court must make the finding on the basis of clear and convincing evidence that includes the testimony of a qualified ICWA expert witness. (25 U.S.C. § 1912(e); rule 5.664(i).) Under state dependency law, the finding must be made by clear and convincing evidence. (§ 361, subd. (c)(1).)
In reviewing a juvenile court’s finding for substantial evidence, we resolve all conflicts in the evidence and draw all legitimate inferences in favor of the respondent and affirmance of the finding. (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.) Where the finding must be based on clear and convincing evidence, the clear and convincing test disappears on appeal. (In re Mark L. (2001) 94 Cal.App.4th 573, 580.) The reviewing court has no power to weigh the evidence, but must give full effect to the respondent’s evidence, however slight, and disregard the appellant’s evidence, however strong. (Id. at pp. 580-581.)
Father’s contention that the record lacks clear and convincing evidence of a current risk to Leah if she were returned home in May 2006 is unpersuasive. First, there was substantial evidence that at the time of Leah’s removal, the mother’s house was filthy, there was no food, the mother used drugs in the home, and the mother was verbally and physically abusive toward Leah. The mother had a chronic substance abuse problem. Although she initially submitted to drug testing, in March she stopped testing and failed to complete drug treatment or other forms of counseling, even though CFS provided her with transportation assistance. The mother became homeless after Leah’s removal and thereafter lived with Father and another man who had a criminal history. It was undisputed that Leah should not live with Father, who had a chronic substance abuse problem, a criminal history, a history of failing to benefit from services or reunify with his daughter. Although Father promised to leave the home if Leah returned, the court had to consider the risk that he would not leave or that he would return. CFS learned on the day of the disposition hearing that the mother had recently moved and agency had not had an opportunity to evaluate her new home. Given the clear inadequacy of the mother’s home in November 2005, the mother’s failure to demonstrate sobriety, or that she had obtained appropriate housing, there was clear and convincing evidence that there was a substantial current risk of physical or emotional harm to Leah if she were returned to her mother’s physical custody. The evidence satisfied both the ICWA and California dependency law requirements.
Father argues the agency failed to satisfy the ICWA requirement that the evidence be supported by the testimony of a qualified ICWA expert. (25 U.S.C. § 1912(e).) He argues the expert’s testimony was based on conditions in the mother’s home at the time of Leah’s original removal and detention in November 2005, not as of the date of the disposition hearing in May 2006. For example, the expert initially testified that Leah was properly removed from the home because of the physical abuse allegations and Leah’s insistence that she did not want to return to her parents’ custody. The expert said she had no information about the mother’s progress after March 1, 2006 and she did not know that Leah’s desires regarding placement had changed. However, after the expert gave her initial testimony, the social worker testified about the mother’s lack of progress from March to the date of the hearing. The expert stayed in the courtroom and heard this testimony. She also reviewed the social worker’s case notes from March to the date of the hearing. Having considered this additional information, she resumed the witness stand and testified again that returning Leah to her parents’ custody would likely result in serious emotional or physical damage to the child. The ICWA requirement was satisfied.
III. Active Efforts to Prevent the Breakup of the Indian Family
Father argues that CFS failed to establish that it made active efforts to prevent the breakup of the Indian family before placing Leah in foster care, as required by the ICWA. (25 U.S.C. § 1912(d).)
First, Father argues the agency did not offer him any reunification services. Before the disposition hearing, Father was not eligible for reunification services under state dependency law because he was an alleged rather than a presumed father. (§ 361.5, subd. (a).) Although Father was represented by counsel at the detention and jurisdiction hearings, he did not seek a change in his status until the May 2006 disposition hearing. The social worker testified that Father was offered services, but he failed or refused to participate in the services. Moreover, CFS had no reasonable grounds to believe that providing services to Father would be an active effort that would help prevent the breakup of the Indian family. Father had failed to complete reunification services in the 1996-1999 dependency and the social worker’s observation of him in February 2006 indicated he was unable to care for himself. (Cf. Letitia V. v. Superior Court (2000) 81 Cal.App.4th 1009, 1016 [agency not required by ICWA to provide services to parent where prior substantial efforts were unsuccessful and parent’s problems are thoroughly entrenched].) He did not seek physical custody of Leah and he promised to leave the mother’s home if Leah returned to live with her mother. The types of services required under the active efforts standard depend on the facts of each case. (In re Michael G. (1998) 63 Cal.App.4th 700, 713.) Failure to provide Father with services before the disposition hearing did not violate the ICWA.
Second, Father argues the agency failed to take into account “the prevailing social and cultural conditions of the Indian child’s tribe.” (Rule 5.664(i)(4), (l).) Father does not explain how consideration of the social and cultural conditions of Leah’s tribe, which is based in Oklahoma, could have affected the disposition order. Nothing in the record indicates that Leah or the mother ever lived with the tribe. The tribe was notified of the proceeding and chose not to intervene or provide any information that might affect the disposition.
At the time the court issued its order, former rule 1439 was in effect. As relevant to this appeal, rule 5.664 and former rule 1439 are identical.
Third, Father argues CFS failed to make active efforts that made use of the available resources of extended family members, the tribe, Indian social service agencies, and individual Indian caregivers. (Rule 5.664(i)(4), (l).) Father cites evidence that CFS failed to contact Indian service agencies in neighboring counties that might have been able to provide services to Leah and her mother. However, the social worker testified that the agency referred the mother to the Indian Services Treatment Facility in San Francisco after learning that the mother was no longer attending the other treatment program. There is no evidence in the record that the mother followed through with that referral. The social worker testified that she was provided adequate transportation assistance and pointed out that mother managed to arrange transportation for her visits with Leah.
Finally, Father notes that the court did not make an express finding that active efforts were made and argues this court cannot infer such a finding. We need not infer the finding. In its written order filed in July 2006 the court included the required finding. In any event, a juvenile court’s failure to make a finding is harmless error if it is not reasonably probable that such finding, if made, would have been in favor of the appealing party. (See In re Jason L. (1990) 222 Cal.App.3d 1206, 1218.) For the reasons stated above, it is not reasonably probable the court would have found the agency failed to make active efforts to prevent the breakup of the Indian family.
IV. Placement
Father argues the agency failed to comply with the ICWA placement requirements. The ICWA requires an Indian child to be placed in the least restrictive setting that most approximates a family within reasonable proximity to his or her home. (25 U.S.C. § 1915(b).) In the absence of good cause to the contrary, placement preference shall be given to (1) a member of the child’s extended family; (2) a foster home approved by the Indian child’s tribe; (3) an Indian foster home; or (4) an institution for children approved by an Indian tribe or operated by an Indian organization that is suitable to meet the child’s needs. (Ibid.) “An Indian child may be placed in a non-Indian home only if the court finds that a diligent search has failed to locate a suitable Indian home.” (Rule 5.664(k)(3).)
Father contends that the agency failed to make a diligent search for an Indian home and the trial court did not make a finding that a diligent search was conducted. CFS did not contact Indian service agencies in neighboring counties that might have been able to locate an Indian placement for Leah. Even if error occurred, it is not reasonably probable that Leah’s placement would have been different. (In re Riva M. (1991) 235 Cal.App.3d 403, 412-413 [ICWA errors subject to harmless error analysis].) The ICWA expert testified that there were very few Indian placements available for teenagers in the Bay Area. At the next status review hearing, the court should ensure that CFS has conducted a diligent search for an Indian placement.
Father argues there was no evidence of good cause to deviate from the ICWA preferences and again notes that the juvenile court did not make a specific finding. However, there was no deviation from the statutory preferences. The only available extended family placement was with a paternal grandmother in Oklahoma and that would not be the least restrictive placement approximating a family within reasonable proximity of Leah’s parents. There is no evidence in the record of an available placement in a foster home approved by the tribe, which also was located in Oklahoma, or of an Indian placement in reasonable proximity of Leah’s parents. An institutional placement would not have approximated a family setting. Placement in a state approved foster home satisfied the ICWA criteria.
Disposition
The May 24, 2006 disposition order is affirmed.
We concur. JONES, P.J., SIMONS, J.