Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Fresno County Super. Ct. No. 06CEJ300103. Jamileh Schwartzbart, Commissioner.
Lee Gulliver, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
HARRIS, Acting P.J.
INTRODUCTION
Appellant S.V. is the mother of T. and J. Lee S., appellant’s husband, is J.’s father and T.’s stepfather. In July 2006, appellant, Lee S., and the two children were staying with friends when the police were called on a spousal abuse dispatch. Lee S. was arrested for sexually assaulting appellant, and their friends reported appellant was abusing prescription pain medication. The children were detained, a petition was filed pursuant to Welfare and Institutions Code section 300, subdivision (b), and the children were adjudged dependents. The children were placed in a foster home, and the court ordered appellant and Lee S. to receive reunification services.
All further statutory citations are to the Welfare and Institutions Code unless otherwise indicated.
Appellant has appealed and argued there is insufficient evidence to support the jurisdictional and dispositional orders, and disputes the evidence that she was abusing prescription pain medication. Appellant also contends respondent Fresno County Department of Children and Family Services failed to properly comply with the notice requirements of the Indian Child Welfare Act (ICWA), because she listed her possible Indian heritage as Cherokee and/or Sioux but respondent sent notices to Apache tribes, which replied that neither appellant nor the children were eligible for membership in any Apache tribe. Appellant concedes she never objected when she received notice that respondent served notices on the Apache tribes, but asserts respondent’s failure to notice the correct tribes cannot be waived. We will affirm.
FACTS
Appellant and Duane B. are the parents of a boy, T. (born 1999). Appellant and Duane B. were never married, Duane B.’s whereabouts are currently unknown, and he is not involved in this matter.
In March 2003, respondent offered appellant voluntary family maintenance services for substance abuse treatment but she refused to accept it. Respondent received 10 additional child welfare referrals involving appellant and T. between March 2003 and May 2006, relating to neglect, domestic violence, and homelessness.
In August 2005, appellant and Lee S. were married. In May 2006, their daughter, J., was born.
As of July 29, 2006, appellant, Lee S., T., and J. had been living for several days with their friends, David and Jennifer G. Appellant did not have a criminal record.
The Detention
On July 29, 2006, the police were called to David and Jennifer G.’s residence on a spousal abuse dispatch that Lee S. physically and sexually assaulted appellant. David and Jennifer advised the officers that appellant and Lee S. had argued about money a few days earlier, and appellant had assaulted Lee S. on that occasion and left him with scratches on his neck. David and Jennifer called in the spousal abuse dispatch because appellant and Lee S. had argued again, and Lee S. punched appellant in the chin with a closed fist. Appellant ran to the bedroom but Lee S. tackled her to the ground and raped her. Appellant screamed for him to stop but he continued the sexual assault until David and Jennifer heard her screams. Lee S. threatened David and Jennifer to mind their own business but David and Jennifer called the police. Lee S. slapped appellant and David and Jennifer tried to stop him. Lee S. ran from the area when the police arrived.
Lee S. was subsequently found in the area and arrested for spousal rape and making felony threats. Appellant suffered visible marks to her chest and stomach area, and she was transported to the hospital for a rape examination. The children were in the residence when the spousal abuse incident occurred, and left in the custody of David and Jennifer when appellant was taken to the hospital.
As the officers continued to investigate the spousal abuse incident, Jennifer reported she was concerned that appellant was abusing prescription drugs. Jennifer stated that on July 27, 2006, she had observed appellant taking prescription drugs and falling asleep with three-month-old J. in her arms. Jennifer stated J. rolled out of appellant’s arms, and Jennifer fortuitously was present and caught the child. Jennifer was concerned for the children’s welfare and believed appellant was taking too many prescription pills because she slept all day and was unable to care for the children.
Jennifer gave the officers three prescription medications which appellant had been taking. The prescriptions were filled on July 25, 2006, just four days earlier, and there were pills missing from the bottles as follows: Hydrocodone (generic for Vicodin), prescription for 120 pills, with 17 pills missing, whereas only eight pills should have been missing if taken properly; Alprazolam (generic for Xanex), prescription for 60 (or 90) pills, with 30 pills missing, whereas only six pills should have been missing; and Soma, prescription for 90 pills, with 30 pills missing, whereas only six pills should have been missing.
According to respondent, Hydrocodone is generic for Vicodin and a narcotic analgesic and semi-synthetic opioid. Alprazolam is generic for Xanax, it is in the benzodiazepine class, it is used to treat anxiety disorders and depression, and it has the potential for abuse, especially in individuals prone to addiction, and induces a state of relaxation and euphoria.
An officer contacted the drug store and learned that on July 5, 2006, appellant had refilled a prescription for 20 pills of Hydrocodone. She returned and tried to refill the same prescription but the drug store refused because it was too soon to refill that prescription. An officer tried to contact the prescribing physician but he/she no longer worked in the area.
As we will discuss post, appellant received the prescriptions from Tower Family Health Clinic in Fresno, and the physician listed on the bottles had previously been the consulting physician at the clinic. At the time of the instant case, that physician was no longer working in Fresno.
The police officers contacted social workers to evaluate the children’s situation, and T. and J. were taken into protective custody based on appellant’s alleged abuse of prescription medication. The social worker asked T. if he liked his stepfather, Lee S. T. replied that “‘when he gets out of jail I am going to punch him. He hurts my mom and he hurts me.’” T. said that the previous day, Lee S. “‘choked me and pushed me in the pool.’” T. also said, “‘Lee has made my mom cry and he makes me cry.’” T. began crying for his mother, and said he was very sad to leave Jennifer’s home. T. did not know his “real dad” but knew appellant’s father.
Later on July 29, 2006, appellant’s father contacted respondent and asked to be considered to have custody of the children. He said that “‘sometimes when I talk to [appellant], her speech is slurred and she sounds like she has been taking drugs.’” He did not know what kind of drugs she was using, but knew she often used drugs about five years ago. Appellant’s father also knew that Lee S. “‘hurts’” appellant, that Lee S. “‘bit her face a couple of months ago, he hits her, and I don’t know why she stays with him.’”
Appellant’s Statements
Later on July 29, 2006, appellant contacted the social worker and was very upset because she did not know that a section 300 hold had been placed on the children while she was being examined at the hospital. She wanted them returned to her custody immediately. The social worker apologized and explained that the police officers should have advised her about the detention. The social worker tried to ask appellant some questions about the drug allegations but appellant hung up.
Appellant placed a second call to the social worker. She was still upset about the detention and again demanded the immediate return of the children. The social worker attempted to explain the reasons for the detention, and appellant said she was a good mother and took good care of the children. The social worker stated the children were detained because of the domestic violence incident, allegations that she was over-medicating, and T.’s statements that Lee S. hit him. At this point, appellant passed the telephone to Jennifer, who said, “‘I can’t have this behavior around my child, I am going to ask [appellant] to leave. I can’t change my statements made to the police and [the social worker], I am concerned that [appellant] is taking too many pills and this behavior can hurt her children. I don’t know what else to say to you, good bye.’”
At 11:20 p.m., the social worker received another call from appellant, who said she saw the police report, there were no statements about her alleged drug problem, and it only stated the children were detained because appellant was at the hospital and Lee S. was arrested. Appellant exclaimed that respondent could not keep her children. The social worker again explained the reasons for the detention.
On July 30, 2006, the social worker contacted a police officer and asked him for a copy of the police report to forward to appellant. The report clearly stated the children were detained because of appellant’s prescription drug abuse.
On July 31, 2006, a social worker spoke to Lee S., J.’s father, who was still in custody at Fresno County Jail. Lee S. said appellant was a good person and a good mother, and took good care of the two children. Lee S. said appellant took medications as prescribed, and did not take any more pills than she should. Lee S. said appellant had “a tumor in her stomach,” she needed the pills, and she could not take more than needed because she would run out. Lee S. said appellant’s family would steal the pills if she had them around, and the pharmacist would not renew the prescription if she tried to refill them too early. The social worker advised Lee S. that pills were missing from recently refilled prescriptions. Lee S. believed Jennifer took the pills, said that Jennifer slept all day and did not do anything, and appellant cleaned the house and cared for the children. The police had informed Lee S. about Jennifer’s allegations—that appellant took too many pills, fell asleep, and almost dropped J. Lee S. said he did not believe the allegations, Jennifer must have told this story to the police, and he was always with appellant and she took good care of the children.
The Parties’ Subsequent Statements
On July 31, 2006, a social worker met with appellant and David and Jennifer at their residence. Appellant denied abusing prescription medication, said an officer had returned the prescription bottles to her, and claimed the officer said all her pills were there except for Xanax. The social worker explained other pills were missing and appellant insisted they were not. Appellant said Lee S. picked up the prescriptions from the drug store and she never counted them. Appellant then said Lee S. “threw the pills at her and he broke some of them.” Appellant said she had a stomach tumor and needed the pills. Appellant presented the prescriptions to the social worker to count them. Appellant “admitted that the Zanex [sic] pills were missing so she wanted to count the Soma pills.” The social worker reported: “After counting the pills, it was found that approximately thirty pills of Soma were missing. Most of the Hydrocodone [Vicodin] are broken by half and [the social worker] [could] not count the pills.”
Appellant further stated that several years ago, she lost custody of her older children because of drug use, and they now lived with a relative. Appellant said she promised herself never to do drugs again. Appellant said she was doing well and had been clean since that time. Appellant said Lee S. previously offered her marijuana but she refused to smoke it, Lee S. liked to drink beer, and the arresting officer told her that Lee S. was under the influence of methamphetamine.
Appellant was previously married to Thomas W. and they had two children. According to respondent, these children were removed from her custody and lived with their father’s relatives. These older children are not involved in the instant action.
David advised the social worker that appellant’s family had lived with them for about one week. David said that Lee S. verbally insulted T. and the family, and described the incident which culminated in Lee S.’s arrest. Lee S. gave appellant money to buy a cake and she failed to do so. Lee S. threatened to “break loose” if appellant did not say what she did with the money. David offered to repay the money. David and Jennifer left the house for a walk; when they returned, Lee S. and appellant were arguing. David said Lee S. hit and raped appellant, and pushed appellant against the toilet so that the toilet broke. There was water all over the bathroom and bedroom. David called the police and Lee S. jumped the fence. After the police left the scene, Lee S. returned to David and Jennifer’s home by breaking into the kitchen window. David again called the police and Lee S. was taken into custody.
The social worker also spoke to Jennifer again. Jennifer denied saying that she did not want to care for appellant’s children. The social worker asked Jennifer about the prescription medications. According to the social worker’s report, Jennifer changed her story about appellant’s drug use:
“[Jennifer] … stated that she did not see [appellant] taking more pill[s] than what she needed while she was living in the home with them. [The social worker] informed [Jennifer] that one of the reasons the children were not in her home was based on the story she told the police about when [appellant] almost dropped [J.]. [Jennifer] denied telling the story to the police. It appeared that [David and Jennifer] were twisting their story when speaking to [the social worker]. They stated that [appellant] was a good mother and that she took good care of the children. [David and Jennifer] denied the story that [appellant] abused the prescription drugs.”
Appellant said she would not allow Lee S. to live with her family again, she had obtained a temporary emergency restraining order against Lee S. that would expire on August 4, 2006, and she wanted to get a permanent restraining order against Lee S.
On August 1, 2006, the social workers conducted a meeting with appellant about the children’s detention and her alleged drug use. According to the social worker’s report, appellant “presented as being very tired and sleepy and she needed constant redirection.” Appellant talked about issues other than her children, she was angry at Lee S., she appeared to have trouble coping, and seemed overwhelmed by the recent trauma. Appellant again denied she had a problem with prescription drugs and repeatedly discussed Lee S. instead of her alleged drug use. As the meeting continued, appellant appeared to become frustrated “and could no longer focus,” and she was asked to submit a drug test.
“[I]t appeared that there were too many unanswered questions regarding [appellant’s] drug use and her account of the missing pills. In addition, [appellant] appeared to have mental health issues other than just the drug use. [Appellant] was unreasonable and refused to listen to the [meeting facilitator] ....”
On August 1, 2006, appellant tested positive for a high level of opiates.
The Petition
On August 1, 2006, a petition was filed in the Superior Court of Fresno County alleging that T. and J. were juvenile dependents within the meaning of section 300, subdivision (b), in that appellant abused prescription drugs and could not care for the children, she failed to protect the children and exposed them to an unsafe atmosphere of ongoing domestic violence by Lee S., and Lee S. had a history of exposing the children to an unsafe environment and had been arrested for spousal rape and making felony threats.
On August 2, 2006, the court ordered the children detained. The court ordered respondent to provide appellant and Lee S. with parenting classes, substance abuse evaluations, random drug testing, mental health assessments, and domestic violence assessments. The court ordered appellant, Lee S., and the children to receive domestic violence assessments.
The children were placed together in the same foster home, and remained in that placement throughout the pendency of the instant action.
On August 11 and 15, 2006, appellant tested positive for opiates.
Appellant’s Request for a Contested Jurisdictional Hearing
On August 23, 2006, the court convened the scheduled jurisdictional hearing. Appellant and Lee S. were present with their attorneys; Lee S. had been released from jail. T. and J. were in foster care, and appellant had weekly supervised visitation. Appellant and Lee S. requested a contested hearing. Respondent requested the court order appellant to immediately submit to a drug test after the hearing because she appeared under the influence. Appellant stated she would comply and the court ordered the test. Appellant objected to respondent’s request for appellant to have another substance abuse evaluation. Respondent clarified that it did not request a court order for a second evaluation, but only that appellant have the opportunity for another evaluation. The court set the matter for a contested hearing.
Both appellant and Lee S. filed statements that they would contest the allegations of the petition. Appellant declared she would specifically contest the allegations that she abused prescription drugs, she would submit medical evidence indicating her need for the prescription drugs, which pills were not missing from the bottles, and Jennifer recanted her accusations about appellant’s alleged abuse of prescription drugs.
Appellant submitted the following evidence in support of her denial of abusing prescription medication: a letter dated August 1, 2006, from Carol Istvanick, MSN, FNP, the owner and CEO of Tower Family Health Center in Fresno. In the letter, Ms. Istvanick stated appellant had been a patient at the facility for over a year and seen for a variety of conditions, including back pain, urinary tract infections, acute tonsillitis, peritonsilar abscess, asthma, swelling of her legs, bronchitis, stress, and abdominal pain “from being beaten by her boyfriend who put his knee in her abdomen.” She also had an ovarian cyst. She also suffered from some anxiety from her pain. She had been prescribed Norco for pain, Xanax for her anxiety problems, Advair and Albuterol for asthma, Bactrim and Pyridium for urinary tract infections, Levaquin for peritonsilar abscess, and Phenergan with codeine for severe cough related to bronchitis and peritonsilar abscess. Ms. Istvanick stated:
As we will discuss post, respondent objected to numerous factual and opinion statements in this letter, and the court excluded several statements.
“As far as I can tell [appellant] is not taking more medication than is ordered for her illnesses when they occur. She has not overdosed on any of the medications that I have ordered for her. She has always followed orders for taking her medications.”
Ms. Istvanick stated appellant had the ability to care for her children, she was a capable mother, and she brought the children to the health center for care.
On September 8, 2006, appellant tested positive for opiates. The drug test report stated that “alternate explanations” for the positive result could be for Hydrocodone (Vicodin) or Hydromorphone (Dilaudid).
On September 27, 2006, the court conducted the trial confirmation hearing and acknowledged the parties’ statement of contested issues. Appellant cited to Ms. Istvanick’s letter as evidence that she was not abusing prescription medication. Respondent objected because the letter was signed by a nurse practitioner rather than a physician. The court declined to consider the letter unless the witness was available for cross-examination at the jurisdictional hearing.
Appellant’s Visitations
The court provided for appellant to receive weekly supervised visitation at the Bonding Home, a neutral location where the foster parents would bring the children. On August 16, 2006, she was scheduled to visit the children but failed to attend. On August 18, 2006, appellant contacted the social worker and explained she missed the visit because she had forgotten the information about the visitation site. On August 23, 2006, appellant’s scheduled visit was cancelled because she was late. On August 30, 2006, appellant visited the children.
On September 4, 2006, the visits were moved to another location because appellant threatened the foster parent, she was abusive to the staff at the Bonding Home, and she appeared to be under the influence of drugs. On September 9, 2006, a scheduled visit was cancelled because appellant arrived late. On September 13, 2006, appellant arrived for the visit but the children did not appear. On September 19 and October 3, 2006, appellant failed to appear for scheduled visits.
Lee S. appeared for his supervised weekly visits with J. from August 22 to October 9, 2006.
The Jurisdiction Hearing
On October 2 and 3, 2006, the court conducted the contested jurisdiction hearing. Appellant and Lee S. were present with their attorneys; the children’s attorney was also present.
Carol Istvanick testified for appellant about her prescription medications, and appellant moved to introduce Ms. Istvanick’s letter of August 1, 2006, described ante. Respondent objected to several factual and opinion statements in the letter as lacking foundation. The court took the objections under submission pending her testimony.
Ms. Istvanick testified she was a family nurse practitioner and ran her own business, Tower Family Health Center, along with a collaborating physician who served as medical director. Appellant had been a patient at Tower Family since May 2005, and had been seen 16 times. Ms. Istvanick did not have any evidence that appellant was seeing another physician.
Ms. Istvanick testified that in May or June 2005, appellant complained of abdominal and back pain and received prescriptions for Norco, Xanax, and Soma. She initially received Vicodin but the pain became worse and the medication was changed to Norco. She also complained of asthma and received ongoing prescriptions for Advair and Albuterol.
Appellant received a pelvic ultrasound on August 2, 2005, which revealed a septated left ovarian cyst. She was referred to a specialist because the condition could potentially require surgery. However, the clinic never received any confirmation that she saw the specialist. An x-ray was taken in June 2005 and revealed scoliosis on the lumbar spine. Appellant was not referred to a specialist on that issue because she did not complain of back pain on subsequent visits.
Ms. Istvanick testified about appellant’s most recent visits to the clinic. Appellant continued to have abdominal pain, and received another referral to see another specialist in September 2006, but Ms. Istvanick did not know if she kept that appointment. On July 26, 2006, she was at the clinic for high cholesterol, low back pain, anxiety, and pelvic pain. She received a new prescription for Mevacor for high cholesterol. She also received refills of her existing prescriptions for Norco, 90 pills of Xanax for anxiety, and 90 pills of Soma, the muscle relaxant, taken three times daily as needed.
Ms. Istvanick testified appellant was again seen at the clinic on August 29, 2006, for abdominal and pelvic pain, anxiety, asthma, and high cholesterol. She received refills for Advair and Albuterol for asthma, and Mevacor for high cholesterol. She also received a prescription for 120 pills of Norco, taken four times daily as needed for pain; 90 pills of Xanax, taken three times daily for anxiety as needed; and 90 pills of Soma, taken three times daily for muscle spasms as needed.
“Q You mentioned in your letter that as far as you can tell [appellant] is not taking more medication than is ordered for illnesses when they occur. What do you base that statement on?
“A I base that on the number of times she’s asked for refills.
“Q Can you tell us how many times she’s asked for refills in the last few months?
“A She hasn’t asked for any refills at all since 8-29 of ‘06.”
Ms. Istvanick explained appellant only received refills which would last for one month. If appellant went to a pharmacy and tried to refill the prescriptions earlier than 30 days, the store would deny the request. The clinic would likely receive notice that she tried to renew the prescription early. Ms. Istvanick never received any such notice about appellant.
On cross-examination, Ms. Istvanick testified Dilaudid was a highly controlled narcotic, also known as Hydromorphone. Appellant had not received any prescriptions for Dilaudid from the clinic. The generic name for Xanax was Alprazolam, and the generic name for Norco was Hydrocodone. A drug test which was positive for Hydrocodone could indicate the person was taking either Vicodin or Norco.
Counsel noted appellant received a refill for Xanax on July 26, 2006.
“Q ... [I]f on July 29th it was found that thirty pills were missing from her Xanax prescription, would that be consistent with prescribed dosages?
“A She should have only had nine out of the bottle at that time, nine or twelve at the most.
“Q If there were thirty pills missing from her Soma bottle would that be consistent with her prescription on July 29th?
“A It would be the same answer as with the Soma, should probably have only been nine or twelve missing.”
Ms. Istvanick testified that if there were 17 pills missing from the Norco prescription on July 29th, that would be “fairly consistent” with the prescription because 12 to 16 pills should have been taken by that time.
“Q As far as overdosing, would it be your opinion or your testimony that thirty pills of alprazolam in three days would be an overdose?
“A If would be—if too many were gone from the bottle.
“Q That’s an overdose, isn’t it?
“A If she actually took the medication, yes.”
At the conclusion of Ms. Istvanick’s testimony, the court excluded portions of her August 1, 2006, letter involving hearsay and lacking foundation.
Appellant testified on her own behalf and stated she had not returned to the clinic since August 2006 because her Medi-Cal benefits were terminated when the children were taken away from her. She recently went to University Medical Center because of stomach and back pain, and the ultrasound showed a large ovarian cyst. Appellant testified she previously went to the specialist arranged by the clinic, the specialist believed she needed surgery, but she never heard anything more from the specialist’s office.
Appellant testified she was aware of the amount of pills in her prescriptions, but she did not know why pills were missing on July 29, 2006. She did not recall going to Long’s Drug Store on or about July 5, 2006, to get a prescription refilled for Hydrocodone. She had never requested refills before they were due. She had never taken Dilaudid, and only took the medications prescribed by the clinic, which included Norco, Xanax, and Soma. Appellant denied that Long’s refused to refill a prescription for her, and clarified she obtained her prescriptions at Drug Fair.
Appellant denied the petition’s allegations that she had exposed her children to domestic violence, and testified the children usually stayed at their grandmother’s house. “So I mean if there was anything going on or anything else like that, it was between me and [Lee S.], not me, him, and the kids, if there was anything going on.” She admitted there were verbal arguments between them, but denied inflicting any scratch marks on Lee S.’s neck. Appellant initially testified that domestic violence did not occur between them, but admitted two incidents of domestic violence occurred between August 2005 and July 2006. She could not remember one incident; the other occurred around Easter 2006, when Lee S. was drunk and upset, he pushed her against the wall, but she was not injured.
On cross-examination, appellant was asked about the events of July 29, 2006, when the police were called to David and Jennifer’s house for the sexual assault dispatch. Appellant testified she did not know if Lee S. attacked her on that occasion. She recalled a verbal argument with him about money, but did not recall if the argument became physical. Lee S. left and returned twice, and they resumed the argument. Appellant claimed Lee S. returned because Jennifer called and asked him to come back. Appellant testified that during the verbal argument, she “slipped and fell” in the bathroom. She denied that she went into the bathroom to get away from Lee S., she yelled for help, she was under the influence of alcohol or narcotics, or that Lee S. pushed her onto the toilet. She also denied telling the police that Lee S. raped her, but also testified she could not remember the incident or if Lee S. raped her. “I just—I remember vague details. I remember when I was in the bathroom with [Lee S.], we were arguing back and forth. And I slipped and fell on the toilet.” “[T]he next thing I remember is somebody telling me to get up and I remember that water was all over the floor. And then next thing I know I’m in the hospital.” Appellant did not remember any of the statements she gave to the police.
Appellant insisted T. had never seen or heard any of the arguments with Lee S., and he did not have any idea of any domestic violence problems between appellant and Lee S. She had no idea why T. said Lee S. hurt appellant and himself. T. might have been upset if he heard their verbal arguments. She denied that Lee S. choked or pushed T. in the pool, and testified T. enjoyed it when Lee S. threw him into the pool.
Lee S., J.’s father and T.’s stepfather, also testified at the jurisdictional hearing. Lee S. conceded that in April 2006, he was placed on probation based on a misdemeanor domestic violence charge committed against appellant. On July 29, 2006, he was still on probation and appellant had a restraining order against him. Lee S. did not remember the incidents which culminated in his arrest on that day, but insisted he never assaulted appellant. Lee S. admitted the children were present during their verbal argument. The argument began because Lee S. gave appellant $50 to buy a cake for J.’s birthday, but she did not buy the cake and spent the money on something else. During the course of the argument, appellant fell in the bathroom and hit the toilet. Lee S. helped her up and then left when he saw the police arrive because he had violated the existing restraining order. Lee S. denied he threatened David and Jennifer when he was arrested. Lee S. testified that most of the criminal charges against him were dropped when he accepted a plea for false imprisonment just to get out of jail. Lee S. testified that he pushed T. in the pool while they were playing and making wrestling moves, and T. begged Lee S. to throw him into the pool.
Lee S. testified he never took any of appellant’s prescription drugs. Lee S. believed appellant kept the drugs in her possession, but testified she was never impaired from prescription medication.
At the conclusion of the jurisdiction hearing, the court found all allegations in the petition true. The court found the testimony of appellant and Lee S. was not credible “in light of all of the information and evidence presented.”
“I did find it uncredible [sic] that both [appellant] and [Lee S.] had a lack of recollection with respect to key allegations and, yet, had some recollection with respect to other aspects of events that were not incriminating, so to speak. I also found both of their denials with respect to key events not credible.
“In light of everything that has been presented, including physical evidence that was observed by officers or at least one officer—actually, more than one officer, including observable injuries on [appellant] and including the statements made by [T.], I find those things to be corroborating evidence of the allegations contained in the petition.
“It’s reasonable to infer that [David and Jennifer] attempted to recant or did recant statements that were—that were in support of the petition. I do note that it’s noted in [the police report] that as that officer led [Lee S.] to the patrol car, that in the officer’s presence [Lee S.] yelled back at [David and Jennifer], ‘I’m going to come back and kill you’. And it’s—it would be reasonable and it’s easy to understand that as a—one explanation for [David and Jennifer] recanting their earlier statements.”
The court found the petition’s allegations were true by a preponderance of the evidence, “judging the credibility” of appellant and Lee S. “in combination with all of the other evidence presented, including physical evidence.” The court also denied Lee S.’s request for visits with T., based on T.’s stated preference not to have visits with Lee S. and his status as a stepfather.
The Disposition Report
On October 19, 2006, respondent’s disposition report was received by the court. The report stated the children were in the same foster home, they had adjusted to the placement, and T. was well-behaved in placement. However, T. was in the first grade and often had problems at school. He was disruptive, very aggressive towards others, threatens to harm other children, had problems with anger, and had frequent disciplinary actions. T. reported frequent and disturbing thoughts of Lee S., his stepfather. T. had received a mental health assessment and individual treatment was recommended. J. was five months old and was developmentally on target.
At the time of the disposition report, both appellant and Lee S. had regularly visited the children. They attended to and interacted appropriately with them, and no problems or concerns had been reported.
The report stated that neither appellant nor Lee S. were participating in services. According to the report, appellant stated “she does not want to participate in services.” Appellant was scheduled to start a 14-week parenting program in August 2006 but she was dropped in October 2006 for missing four classes.
Appellant completed a substance abuse evaluation on August 7, 2006, and stated she began using alcohol and methamphetamine when she was 13 years old. She admitted using opiates and other types of tranquilizers within the previous 30 days. She admitted using alcohol, opiates, amphetamines, and cannibis on a regular basis during her life. However, she denied any current drug use. She completed a drug program in 2003 and had been drug-free ever since. Appellant reported chronic medical problems with scoliosis and ovarian cysts. The ovarian cysts continue to interfere with her life and she took Soma and Vicodin on a regular basis. She also took Xanax as prescribed. She stated the police were suspicious of her “‘lost meds.’”
The substance abuse evaluation contained in the dispositional report stated that appellant did not need substance abuse treatment. However, the disposition report stated appellant had a substance abuse problem with prescription drugs, and there was a history of domestic violence between appellant and Lee S. Appellant tested positive for opiates on August 1, 11, 15, 18, 23, 24, and 28, 2006; and September 5, 8, 11, 13, and 21, 2006. A staff member at Tower Family Health Center reported appellant was prescribed Levaquin and Phenegram with codeine for severe cough related to bronchitis and peristonsilar abcess.
As we will discuss post, the substance abuse evaluator was apparently unaware of the allegations in the July 29, 2006 police report, that appellant was abusing prescription medication and pills were missing from the bottles.
Appellant received a mental health assessment, individual therapy was recommended, but appellant refused treatment because she had “‘too many other requirements’” and could not “‘manage it all at this time.’” Appellant received a domestic violence assessment and recommendation for group services, but she had not started the recommended program.
The report stated that in August 2006, Lee S. appeared for substance abuse and mental health assessments, and admitted mental health problems and a long history of dependency with alcohol and marijuana. He had been offered drug treatment numerous times but always refused and served jail time instead. Lee S. knew he needed medication for his mental health problems but preferred to self-medicate with marijuana. Lee S. stated he now wanted to enter treatment, and a residential treatment program was recommended. Lee S. appeared for the intake examination at an inpatient substance abuse program, but he became verbally abusive and walked out. At the time of the disposition report, Lee S.’s whereabouts were unknown.
The report stated appellant had a history of substance abuse problems with prescription drugs which posed a substantial risk to the children’s safety.
“… Despite being offered services in 2003 for her substance abuse problem involving methamphetamines, [appellant] failed to comply with the substance abuse treatment programs offered to her at that time stating that she did not have a problem. Although [appellant] is no longer using methamphetamines, she is abusing her prescription drugs. [Appellant] continues to deny that she has a drug problem and is unwilling to get treatment.
“Furthermore, [appellant] has exposed her children to severe domestic violence between herself and ... [Lee S.]. [T.] and [J.] are at substantial risk of suffering serious physical and emotional harm as a result of the ongoing domestic violence. As a result of the rape by [Lee S.] ..., [appellant] appears to be dealing with many issues, including anger, loss of her marriage, and depression. [Appellant] appears to be self-medicating her pain and may need to deal with her own mental health issues before the children could safely return to her care.”
The report stated that appellant needed to address her prescription drug problem and domestic violence issues before respondent would consider returning the children to her care. Respondent was evaluating a relative for placement. Respondent recommended the minors be adjudged dependents and remain in foster care, and for appellant and Lee S. to receive reunification services.
The Addendum to the Disposition Report
On November 13, 2006, respondent filed an addendum to the disposition report. The report noted that appellant went through a substance abuse evaluation on August 7, 2006, at which time the evaluator concluded that appellant did not need substance abuse treatment. The addendum stated that recommendation occurred because appellant “did not report any drug use/abuse to the evaluator.” In October 2006, the social worker suggested to appellant that she complete another substance abuse evaluation. Appellant refused and said she did not have a substance abuse problem. Appellant had not been tested for drugs since September 21, 2006. In November 2006, a substance abuse specialist conducted a case consultation. The original evaluator stated “he would have recommended substance abuse treatment if he had the information contained in the police report of July 29, 2006,” about appellant’s alleged abuse of prescription medication and the missing pills, and believed a second evaluation would be beneficial. Respondent requested an order for appellant to complete a second substance abuse evaluation “and obtain a second medical opinion regarding the medications necessary for her treatment.”
The addendum also updated Lee S.’s status that on November 6, 2006, Lee S. was arrested for a probation violation, he was in jail, and his probation officer stated he might be going to prison because of an incident where he consumed alcohol and provided a false address.
The Disposition Hearing
On November 13, 2006, the court conducted the disposition hearing. Appellant and Lee S. were present with their attorneys. The court reviewed the dispositional report and the addendum. Appellant’s attorney submitted on the report’s recommendation for family reunification services, but objected to the proposed order for her to participate in another substance abuse evaluation because she had already completed such an evaluation. Counsel argued there was not any new information to support a second substance abuse evaluation. Counsel had reviewed the addendum to the report, and asserted it was unfair to compel appellant to go through another evaluation because “it is not her fault that some information was not provided” to the evaluator, and it was respondent’s duty to provide all necessary information prior to an evaluation.
The court acknowledged it was not appellant’s fault that the substance abuse evaluator did not have certain information, and respondent’s failure to provide that information for the first evaluation was unfortunate.
“[H]owever, I think the bigger picture is that it be as fully and accurately determined what services will be necessary in order for these parents to successfully reunify with their children. I think that’s really the bigger picture and the larger issue, and that those services be determined and, then, be provided and be completed so that these parents can reunify with their children. I think that’s the bigger picture.…”
The court believed there should be a “reassessment of medications that she is taking,” but declined to order a second psychological evaluation because there was no evidence she was taking psychotropic medications.
Appellant’s counsel again objected to another substance abuse evaluation because she had provided documentation of her need for pain medication, and the issues of her health care and personal health “should be matters between her and her health care provider not subject to second guessing by [respondent] and the Court.”
The court ordered “an updated review of her medications” as one of the reunification services, but declined to order another psychological review. “She is under the care or was under the care of Ms. Istvan[i]ck, who testified at the jurisdiction hearing, and there is a document or a letter ... about the medications that she has been taking.”
The court found the children were dependents within the meaning of section 300, subdivision (b) and committed the children to respondent’s custody, and continued their placement in foster care. The court ordered the case plan to be family reunification for appellant and Lee S., and ordered services which included parenting classes, a substance abuse evaluation and any recommended treatment. The court found Lee S. already participated in a substance abuse evaluation which was acceptable. The court ordered appellant to participate in a second substance abuse evaluation and any recommended treatment “for the reasons stated on the record and contained in the addendum report.” Appellant and Lee S. were also ordered to complete mental health and domestic violence evaluations and any recommended treatment, and submit to random drug testing. Appellant was further ordered to participate in a medications evaluation.
On December 18, 2006, appellant filed a timely notice of appeal of the court’s jurisdictional and disposition orders.
DISCUSSION
I.
THE JURISDICTIONAL FINDINGS
Appellant contends that at the jurisdiction hearing, the court improperly found true the petition’s allegation that she abused prescription drugs. Appellant asserts the court’s finding is not supported by the substantial evidence because the record shows she was taking the prescribed dosages and not abusing the medication, there was no evidence the children were at risk, and Jennifer recanted her allegations that appellant was abusing prescription medication.
At the jurisdictional hearing, the court must find by a preponderance of the evidence that the minor is a person described in section 300. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) On appeal, we must determine whether the court’s jurisdictional findings are supported by substantial evidence. (Ibid.) The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to other appeals. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) We draw all reasonable inferences from the evidence to support the findings and orders of the juvenile court. We review the record in the light most favorable to the juvenile court’s determinations and we adhere to the principle that issues of fact, weight, and credibility are the provinces of the juvenile court. Appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the order. (Ibid.)
A child will come within the jurisdiction of the juvenile court under section 300, subdivision (b) when 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, or willful or negligent failure of his or her parent to adequately supervise or protect the child. “The statutory definition consists of three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) ‘serious physical harm or illness’ to the minor, or a ‘substantial risk’ of such harm or illness.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)
To find jurisdiction under section 300, the court must determine whether circumstances in existence at the time of the hearing subject the child to the defined risk of harm. (In re Rocco M., supra, 1 Cal.App.4th at p. 824; In re Janet T. (2001) 93 Cal.App.4th 377, 388.) Evidence of past events may have a probative value in finding jurisdiction, but only if circumstances existing at the time of the hearing make it likely the child in the future will suffer the same type of serious physical harm or illness as alleged in the petition. (In re Janet T., supra, 93 Cal.App.4th at p. 388.)
The entirety of the record contains substantial evidence to support the court’s finding that appellant was abusing prescription medication, and that abuse left the children at risk of harm. There is no dispute that appellant was a patient at the Tower Family clinic, she was diagnosed with several ailments, and she received valid prescriptions for Xanax, Soma, and Hydrocodone. When the officers examined the prescription bottles on July 29, 2006, they determined that appellant had just received refills for the prescriptions on July 25, 2006. The officers examined the prescribed dosages on the bottles and determined far more pills were missing than directed by the prescribed dosage: 17 Hydrocodone pills were missing whereas only eight should have been taken; 30 Xanax pills were missing where only six should have been taken, and 30 Soma pills were missing whereas only six should have been taken. The officers also determined that appellant tried to refill a Hydrocodone prescription just days after she had received it.
At the jurisdiction hearing, Ms. Istvanick was asked about the disparity between the prescribed dosage and the number of missing pills
“Q ... [I]f on July 29th it was found that thirty pills were missing from her Xanax prescription, would that be consistent with prescribed dosages?
“A She should have only had nine out of the bottle at that time, nine or twelve at the most.
“Q If there were thirty pills missing from her Soma bottle would that be consistent with her prescription on July 29th?
“A It would be the same answer as with the Soma, should probably have only been nine or twelve missing.”
Ms. Istvanick testified that if there were 17 pills missing from the Norco prescription on July 29th, that would be “fairly consistent” with the prescription because 12 to 16 pills should have been taken by that time.
“Q As far as overdosing, would it be your opinion or your testimony that thirty pills of alprazolam in three days would be an overdose?
“A It would be—if too many were gone from the bottle.
“Q That’s an overdose, isn’t it?
“A If she actually took the medication, yes.”
Such testimony constitutes substantial evidence that appellant was taking more than the prescribed dosage of the medications.
Appellant notes the officers only examined her prescriptions because of Jennifer’s allegations that she was abusing medication, and asserts the court failed to consider Jennifer’s subsequent recantation of her allegations against appellant. The entirety of the record, however, undermines the veracity of Jennifer’s recantation. As appellant notes, the officers arrived at David and Jennifer’s residence on July 29, 2006, and arrested Lee S. for sexually assaulting appellant. Jennifer advised the officers that appellant was taking too many drugs, falling asleep, and unable to care for the children. The officers did not take the children into custody simply based on Jennifer’s statements. Instead, they examined the prescriptions, determined a disparity existed between the prescribed dosages and the number of missing pills, and also discovered appellant tried to refill a Hydrocodone prescription too soon. Jennifer reaffirmed her allegations against appellant a few hours after her initial statement, refused to change her prior account of appellant’s drug use, and again stated her concern that appellant was “‘taking too many pills and this behavior can hurt her children.’” Jennifer’s account of appellant’s behavior was supported by the statements of appellant’s father, who told the social worker that “‘sometimes when I talk to [appellant], her speech is slurred and she sounds like she has been taking drugs.’” On July 31, 2006, however, a social worker met with appellant and David and Jennifer, and Jennifer attempted to recant her earlier allegations. Jennifer declared appellant was a good mother and denied making the statements to the police about appellant’s drug use. Nevertheless, during this same interview, appellant and the social worker counted the Xanax, Soma, and Hydrocodone pills, appellant acknowledged pills were missing, and she blamed Lee S. for throwing and breaking the pills.
At the jurisdiction hearing, appellant again insisted she never abused her prescription medications and never requested refills earlier than permitted. However, appellant also downplayed the domestic violence incident which led to Lee S.’s arrest. Appellant claimed she merely slipped and fell in the bathroom, denied telling the police that Lee S. raped her, could not remember whether Lee S. raped her, and said she had no idea why she ended up in the hospital. The court found appellant’s testimony was not credible and rejected appellant’s attempt to recant her allegations against Lee S.
The court’s credibility findings are supported by the entirety of the record. As we have explained, while appellant may have received valid prescriptions for Xanax, Soma, and Hydrocodone, it was undisputed that a substantial number of pills were missing from these bottles, and Ms. Istvanick conceded the missing pills were not consistent with the prescribed dosage. Appellant’s misuse of her prescription medication clearly left the children at risk based upon Jennifer’s description of her behavior while overmedicated.
Moreover, we note the instant dependency petition alleged the children were dependents within the meaning of section 300, subdivision (b) not simply because appellant abused prescription drugs and could not care for the children, but also because she failed to protect the children and exposed them to an unsafe atmosphere of ongoing domestic violence by Lee S., and Lee S. had a history of exposing the children to an unsafe environment and had been arrested for spousal rape and making felony threats. Appellant has not challenged the evidence in support of the domestic violence allegations, and those allegations are supported by overwhelming evidence. The instant case was triggered by the domestic violence dispatch, in which the officers determined Lee S. physically and sexually assaulted appellant. Moreover, appellant’s father told the social worker that that Lee S. “‘hurts’” appellant, that Lee S. “‘bit her face a couple of months ago, he hits her, and I don’t know why she stays with him.’” When T. was taken into protective custody, he told the social worker that “‘when [Lee S.] gets out of jail I am going to punch him. He hurts my mom and he hurts me.’” T. said that the previous day, Lee S. “‘choked me and pushed me in the pool.’” T. also said, “‘Lee has made my mom cry and he makes me cry.’” T. subsequently reported frequent and disturbing thoughts of Lee S.
As explained ante, appellant used her testimony at the jurisdiction hearing to downplay the history of domestic violence with Lee S., asserted she simply slipped in the bathroom, and claimed she had no idea if Lee S. sexually assaulted her. She admitted, however, there were at least two prior domestic violence incidents, that a restraining order was issued as a result of the most recent incident, and that Lee S.’s presence at David and Jennifer’s house with appellant and the children violated that restraining order.
We thus conclude there is overwhelming evidence to support the court’s jurisdictional findings based on the prescription medication and domestic violence incidents.
II.
THE DISPOSITIONAL ORDERS
Appellant next challenges one aspect of the dispositional order, in which the court ordered her to submit to a second substance abuse assessment. Appellant notes that she had already completed a substance abuse assessment, the evaluator concluded she did not need substance abuse treatment, and respondent requested the second assessment simply because it did not agree with the evaluator’s opinion.
The dispositional order removing a child from his or her home must be based on a finding, made by clear and convincing evidence, that there is a substantial danger to the child’s physical health, safety, protection, or physical or emotional well-being if returned home, and there is no reasonable means by which the minor can be protected without removal. (§ 361, subd. (c)(1).) When a parent challenges a dispositional finding, we employ the same standard of review enunciated above and review the juvenile court’s order for substantial evidence. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.) At a dispositional hearing, the juvenile court must undertake a judicious appraisal of all available evidence bearing on the child’s best interests, including an evaluation of the relative merits of alternative custody awards. The juvenile court’s broad discretion to determine what best serves a child’s interests will not be reversed absent a clear abuse of discretion. (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1226-1227.)
“… We review the record in the light most favorable to the court’s order to determine whether there is substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that that the children would suffer such detriment. [Citations.] Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt. [Citation.]” (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.)
The adequacy of reunification plans and the reasonableness of the respondent’s efforts are judged according to the circumstances of each case. (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.) “At the dispositional hearing, the juvenile court must order child welfare services for the minor and the minor’s parents to facilitate reunification of the family. [Citations.] The court has broad discretion to determine what would best serve and protect the child’s interest and to fashion a dispositional order in accord with this discretion. [Citations.] We cannot reverse the court’s determination in this regard absent a clear abuse of discretion. [Citation.] [¶] The reunification plan ‘“must be appropriate for each family and be based on the unique facts relating to that family.”’ [Citation.] Section 362, subdivision (c) states in pertinent part: ‘The program in which a parent or guardian is required to participate shall be designed to eliminate those conditions that led to the court’s finding that the minor is a person described by Section 300.’ [Citation.] The department must offer services designed to remedy the problems leading to the loss of custody. [Citation.]” (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006-1007.)
As set forth ante, appellant completed a substance abuse evaluation on August 7, 2006, and admitted using opiates and other types of tranquilizers within the previous 30 days. She admitted using alcohol, opiates, amphetamines, and cannibis on a regular basis during her life but denied any current drug use. She completed a drug program in 2003 and stated she had been drug-free ever since. Appellant reported chronic medical problems with scoliosis and ovarian cysts, and she was prescribed Soma, Vicodin, and Xanax. Appellant stated the police were suspicious of her “‘lost meds.’” The evaluator concluded appellant did not need substance abuse treatment.
As explained in the addendum to the disposition report, a substance abuse specialist conducted a case consultation in November 2006, at which time the evaluator who conducted the August 2006 substance abuse assessment stated “he would have recommended substance abuse treatment if he had the information contained in the police report of July 29, 2006,” about appellant’s alleged abuse of prescription medication and the missing pills, and believed a second evaluation would be beneficial. Respondent requested an order for appellant to complete a second substance abuse evaluation “and obtain a second medical opinion regarding the medications necessary for her treatment.”
Based upon this evidence, the court did not abuse its discretion when it ordered appellant to submit to a second substance abuse assessment as part of the reunification plan in the dispositional order. As explained in section I, ante, appellant had valid prescriptions for the medications but even Ms. Istvanick conceded that the number of missing pills were not consistent with the prescribed dosage. Respondent’s request for a second substance abuse assessment did not reflect “assessment shopping.” Instead, it was based on the evidentiary issue that the evaluator who conducted the first substance abuse assessment was clearly unaware of the statements in the police report of July 29, 2006, regarding Jennifer’s allegations about appellant’s misuse of prescription medications and the unresolved issue of why so many pills were missing from the prescription bottles. The court’s order for the second substance abuse assessment, as part of the reunification plan, was clearly appropriate based on the unique facts of this particular family.
III.
THE ICWA NOTICES
Appellant challenges the adequacy of the notices under the ICWA, and asserts that respondent notified the wrong tribes. In the alternative, appellant argues that even if the notices were sent to the correct tribes, the notices lacked the requisite information for the tribes to determine whether appellant and/or the children were eligible for membership. Appellant contends the matter must be remanded for the correct notices to be sent to the correct tribes. Respondent asserts appellant has waived any challenge to the adequacy of the notices because she failed to object below.
We will examine the nature and circumstances of the notices, and then determine whether those notices complied with the ICWA or appellant waived the issue.
A. Background
On August 2, 2006, the court conducted the detention hearing. The social worker’s detention report stated ICWA did not apply to the children in this case.
Also on August 2, 2006, however, appellant filed a parental notification of Indian status, form JV-130, declaring that she was or may be a member of, or eligible for membership in, the “Cherokee, Souix” tribes.
On September 25, 2006, respondent filed with the court a notice of involuntary child custody proceedings for an Indian child, form JV-135, which stated the children’s mother (appellant), their maternal grandfather and maternal great-grandmother, were possibly members of the Apache tribe. The notice identified appellant and possible family members who could be members of the Apache tribe, and listed their birthplaces and previous addresses. The notice stated that L.G.T., the father of the children’s maternal great-grandmother (E.V.), was a “full blooded Apache.” The notice identified E.V.’s birthdate and birthplace, and her current address. The notice included proofs of service and postal receipts which indicated the notices had been sent on August 31, 2006, to the Bureau of Indian Affairs (BIA), five Apache tribes, the parents and their attorneys, and the children’s attorney.
The Jicarilla Apache Nation, Apache Tribe of Oklahoma, Mescalero Apache Tribe, White Mountain Apache Tribal Council, San Carlos Tribal Council.
On the same date, respondent filed the responses of the seven Apache tribes and the BIA, which were returned in August and September 2006, and all stated that the identified family members were not linked to the Apache tribes and not eligible for tribal membership.
The Fort Sill Apache Tribe, Jicarilla Apache Nation, Tonto Apache Tribe, White Mountain Apache Tribe, Yavapai Apache Nation, San Carlos Apache Tribe (two different response letters), and the Yavapai Prescott Indian Tribe.
The record is silent as to why respondent sent notices to Apache tribes when appellant’s form identified her possible membership in the Cherokee Sioux tribe.
On September 29 and October 3, 2006, respondent filed completed copies of form JV-135, with proofs of service and certified mail receipts indicating the forms had been sent on August 17, 2006, to the BIA and nine Apache tribes, along with appellant and her attorney.
The Jicarilla Apache Nation, Apache Tribe of Oklahoma, White Mountain Apache Tribal Council, Tonto Apache Tribal Council, Yavapai-Prescott Indian Tribe, Fort Sill Apache Tribe of Oklahoma, Mescalero Apache Tribe, Yavapai-Apache Nation, and the San Carlos Tribal Council.
On October 19, 2006, respondent filed completed copies of form JV-135 with proofs of service and certified mail receipts indicating the forms had been sent on October 11, 2006, to two Apache tribes, appellant and her attorney and the children’s attorney.
The Apache Tribe of Oklahoma and Mescalero Apache Tribe.
On October 19, 2006, respondent’s disposition report was received by the court. The report stated the ICWA did not apply and listed the Apache tribes and notification dates.
On October 20, 2006, respondent filed a notice of motion and motion to declare the ICWA inapplicable to this case. Respondent asserted the ICWA only applied when a child custody proceeding involved an Indian child, and determination of tribal membership is exclusively made by the tribe. Moreover, where a tribe has been provided with proper notice and not responded, the court may conclude the ICWA does not apply. Respondent further asserted that appellant reported “she may have Indian heritage, including that she may be Apache Indian” (italics added), and appropriate notices had been sent to nine federally recognized Apache tribes and the BIA. The responding tribes stated that appellant and the children were not members of those Apache tribes; two tribes did not respond.
“The failure of any tribe to claim the minors as a member or eligible for membership, including the failure of [two Apache tribes] to respond at all, establishes that, at the present time, the minors cannot be considered Indian children as defined by the ICWA. Therefore, the provisions of ICWA are not applicable to this action.”
Respondent requested the court find the ICWA did not apply since the minors were not shown to be members of an Indian tribe, as defined in the ICWA, or the biological children of a member of such a tribe and eligible for membership. The proof of service reflected the motion was sent to the attorneys for appellant and the children on October 20, 2006.
On October 23, 2006, the court conducted a hearing on respondent’s motion that the ICWA did not apply. Appellant and Lee S. were present with their attorneys; the children’s attorney was also present. Respondent submitted the ICWA matter on the pleadings. Appellant’s attorney also submitted the matter. The court stated:
“I will grant the motion, based on everything presented, finding that the minors are not Indian children as defined in the ICWA, and that the provisions of the ICWA are not applicable to this case.”
There were no objections.
On November 13, 2006, the court conducted the dispositional hearing; the parties did not discuss the ICWA. On December 18, 2006, appellant filed a timely notice of appeal of the court’s jurisdictional and disposition orders.
B. Analysis
On appeal, appellant asserts the matter must be remanded because appellant failed to comply with the notice provisions of the ICWA. Appellant points to her JV-130 form, filed on August 2, 2006, which declared that she was or may be a member of, or eligible for membership in, the “Cherokee, Souix” tribes. Appellant complains there is no evidence in the record as to why respondent sent the ICWA notices to several Apache tribes. Appellant alternatively argues that even if the notices were properly sent to the Apache tribes, respondent failed to include sufficient information from which the tribes could determine whether appellant and the children were eligible for tribal membership. Appellant acknowledges she failed to raise any objections to the ICWA notices below, but argues the adequacy of notice cannot be waived.
“The ICWA (25 U.S.C. § 1901 et seq.) was enacted in 1978, out of an increasing concern in the mid-1970’s over the consequences to Indian children, Indian families, and Indian tribes of child welfare practices that separated large numbers of Indian children from their families and tribes, and placed them in non-Indian homes through state adoption, foster care, and parental rights termination proceedings. [Citation.]” (In re Santos Y. (2001) 92 Cal.App.4th 1274, 1299.) “The stated purpose of the ICWA is to ‘protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster care or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.’ (25 U.S.C. § 1902.) The congressional findings in support of the ICWA cite the interest of the United States in protecting Indian children who are members of or eligible for membership in an Indian tribe. (25 U.S.C. § 1901(3).)” (Santos Y., supra, at p. 1299, fn. omitted.)
“… The ICWA applies only in ‘child custody’ proceedings involving Indian children. Child custody proceedings, for purposes of the ICWA, include foster care placements (family or institutional), termination of parental rights actions, preadoptive placements, and adoptive placements. (25 U.S.C. § 1903(1).)” (In re Enrique O. (2006) 137 Cal.App.4th 728, 732.)
Where the court “knows or has reason to know” that an “Indian child” may be involved in dependency proceedings, the statutorily prescribed notice must be given to any tribe with which the child is possibly affiliated. (25 U.S.C. § 1912(a); In re Samuel P. (2002) 99 Cal.App.4th 1259, 1264 (Samuel P.); In re Suzanna L. (2002) 104 Cal.App.4th 223, 231 (Suzanna L.).) An Indian child is a child who is “‘either (a) a member of an Indian tribe or (b) ... eligible for membership in an Indian tribe and ... the biological child of a member of an Indian tribe ....’ (25 U.S.C. § 1903(4).)” (Suzanna L., supra, 104 Cal.App.4th at p. 231; In re Marinna J. (2001) 90 Cal.App.4th 731, 735 (Marinna J.).) California Rules of Court, rule 5.664, which implements the ICWA in California, imposes “an affirmative and continuing duty” on the social services agency and the juvenile court “to inquire whether a child [in a dependency proceeding] is or may be an Indian child.” (Cal. Rules of Court, rule 5.664(d).)
“… The determination of whether a minor is, or is not, an Indian child is made exclusively by the tribe. [Citation.] ‘[O]ne of the primary purposes of giving notice to the tribe is to enable the tribe to determine whether the child involved in the proceedings is an Indian child. [Citation.]’ [Citation.] ‘Because the question of membership rests with each Indian tribe, when the juvenile court knows or has reason to believe the child may be an Indian child, notice must be given to the particular tribe in question or the Secretary [of the Interior].’ [Citation.] Thus, the Indian status of a child need not be certain or conclusive in order to trigger the Act’s notice requirements. (Ibid.)” (In re Jonathan D. (2001) 92 Cal.App.4th 105, 110; see also Suzanna L., supra, 104 Cal.App.4th at p. 231.)
“Among the procedural safeguards imposed by the [ICWA] is the provision of notice to various parties.” (Marinna J., supra, 90 Cal.App.4th at p. 734.) Notice under the ICWA must be sent to the Indian child’s tribe by registered mail with return receipt requested, providing notice of the pending proceedings and the tribe’s right of intervention. (25 U.S.C. § 1912(a); Cal. Rules of Court, rule 5.664(f) ; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.)
As of February 23, 2007, California Rules of Court, rule 5.664(f) was amended to delete the detailed notice provisions, and now refers to the identical notice requirements set forth in Welfare and Institutions Code section 224.2. (See In re J.T. (2007) 154 Cal.App.4th 986, 991, fn. 3.)
“… In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary [of the Interior] in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary ....” (25 U.S.C. § 1912(a); see Marinna J., supra, 90 Cal.App.4th at pp. 734-735.)
If the identity or location of the tribe cannot be determined, the ICWA notice must be sent to the Secretary of the Interior. (25 U.S.C. § 1912(a).) “The notice must include the names of the child’s ancestors and other identifying information, if known, and be sent registered mail, return receipt requested. [Citation.]” (In re Brooke C. (2005) 127 Cal.App.4th 377, 384, italics added.)
“Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under [ICWA] irrespective of the position of the parents, Indian custodian or state agencies.” (In re Kahlen W., supra, 233 Cal.App.4th at p. 1241; see also Samuel P., supra, 99 Cal.App.4th at p. 1265.) Noncompliance with the notice requirement may invalidate the actions of the juvenile court, including an order terminating parental rights. (25 U.S.C. § 1914; Marinna J., supra, 90 Cal.App.4th at p. 735; In re Brooke C., supra, 127 Cal.App.4th at pp. 384-385; In re Nikki R. (2003) 106 Cal.App.4th 844, 855-856.)
The notice requirements of the ICWA are mandatory and “serve the interests of the Indian tribes ‘irrespective of the position of the parents’ and cannot be waived by the parent. [Citation.]” (Samuel P., supra, 99 Cal.App.4th at p. 1267; Suzanna L., supra, 104 Cal.App.4th at pp. 231-232.) Where the notice requirements are violated and the parents fail to raise the claim in a timely fashion, the waiver doctrine cannot be invoked to bar consideration of the notice error on appeal. (Suzanna L., supra, 104 Cal.App.4th at p. 232; Marinna J., supra, 90 Cal.App.4th at p. 739; In re Jennifer A. (2002) 103 Cal.App.4th 692, 707-708; In re Nikki R., supra, 106 Cal.App.4th at p. 849; Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 261.) Moreover, it is the court’s duty to assure compliance with the ICWA. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471-472.) “[G]iven the court’s continuing duty throughout the dependency proceedings to ensure the requisite notice is given [citation], and the protections the ICWA affords Indian children and tribes, the parents’ inaction does not constitute a waiver or otherwise preclude appellate review.” (Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 251.) “The failure to comply with the notice requirements of the ICWA constitutes prejudicial error unless the tribe has participated in or indicated no interest in the proceedings. [Citations.]” (Samuel P., supra, 99 Cal.App.4th at p. 1265.)
However, in In re Pedro N. (1995) 35 Cal.App.4th 183 (Pedro N.), this court held a parent who fails to timely challenge a juvenile court’s action regarding the ICWA is foreclosed from raising ICWA notice issues once the court’s ruling is final in a subsequent appeal. (Pedro N., supra, at pp. 185, 189.)
“Although the proceedings leading up to and including the juvenile court’s disposition were appealable [citations], the mother did not raise the question of notice until the court terminated her rights approximately two years later. Appellate jurisdiction to review an appealable order depends upon a timely notice of appeal. [Citation.] An appeal from the most recent order entered in a dependency matter may not challenge prior orders for which the statutory time for filing an appeal has passed. [Citation.] Here, the mother could have challenged the court’s decision to proceed at the dispositional hearing and did not do so. We therefore conclude she is foreclosed from raising the issue now on appeal from the order terminating her parental rights.” (Pedro N., supra, 35 Cal.App.4th at p. 189.)
In so ruling, Pedro N. specifically held that we were only addressing the rights of the parent, not those of the tribe. (Pedro N., supra, 35 Cal.App.4th at p. 191.)
In the instant case, respondent asserts appellant has waived any review of the adequacy of the ICWA notices because she failed to object below, and submitted the ICWA issue at the juvenile court’s hearing on October 23, 2006. The entirety of the record, however, distinguishes this case from Pedro N. and reflects appellant has brought a timely challenge to the court’s finding on October 23, 2006, that the ICWA did not apply. On November 13, 2006, the court conducted the dispositional hearing, adjudged the children as dependents, ordered their continued placement in foster care, and provided reunification services to appellant. On December 18, 2006, appellant filed the notice of appeal of the jurisdiction and dispositional orders.
The dispositional order constitutes an appealable judgment. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811.) A challenge to the most recent order entered in a dependency matter may not challenge prior orders for which the statutory time for filing an appeal has passed. (Ibid.) While appellant did not object to the notices at the October 23, 2006, hearing, Pedro N. does not foreclose her from challenging the adequacy of notice because she has raised the issue in a timely appeal from the dispositional order. (See, e.g., In re Joseph P. (2006) 140 Cal.App.4th 1524, 1528-1529.)
As for the merits, the record is quizzically silent as to why respondent sent notices to Apache tribes when appellant declared on her form JV-130 that she was possibly eligible for membership in the Cherokee and/or Sioux tribes. A possible hint is contained in respondent’s form JV-135, when it identified the father of the children’s maternal great-grandmother as a “full blooded Apache.” Respondent suggests it sent the notices to the Apache tribes because it “did whatever it usually does when ICWA is raised in a dependency case” and determined appellant’s possible Indian heritage was Apache. Respondent has not sought augmentation of the appellate record with evidence that may have been before the juvenile court which might support this bare assertion. (See, e.g., In re S.M. (2004) 118 Cal.App.4th 1108, 1117, fn. 5.)
In any event, the record is silent as to the reason respondent sent the notices to the Apache tribes: whether appellant corrected her declaration in form JV-130 and advised respondent that she was possibly eligible for membership in an Apache tribe, or respondent investigated appellant’s background and determined her possible tribal affiliation was Apache rather than Cherokee and/or Sioux. We refuse to speculate as to the reason respondent sent the notices to the Apache tribes. (See, e.g., In re J.N. (2006) 138 Cal.App.4th 450, 461.)
We note the instant case is still in the reunification phase and the court ordered appropriate services to appellant with the goal of family reunification. Given appellant’s timely appeal, a limited remand is appropriate and consistent with the best interests of the children to clarify the record at such an early stage of the dependency proceedings. (See, e.g., In re Francisco W. (2006) 139 Cal.App.4th 695, 704-707.) We will thus order a conditional reversal of the dispositional order and remand for the limited purpose of the juvenile court to determine whether appellant advised respondent, or respondent’s investigation revealed, that her possible tribal affiliation was Apache rather than Cherokee and/or Sioux. If so, the juvenile court shall reinstate the order appealed from. If, however, the court determines respondent erroneously sent the notices to Apache tribes without any evidence of appellant’s possible relationship to the Apache tribes, then we direct the court to correct the notice violation and order respondent to comply with the notice provisions of the ICWA. (See, e.g., Suzanna L., supra, 104 Cal.App.4th at p. 237; Marinna J., supra, 90 Cal.App.4th at p. 740.) The parties may introduce new evidence concerning the adequacy of the notices previously sent.
Appellant has raised an alternative challenge to the validity of the notices sent to the Apache tribes. Appellant argues that even if respondent properly sent notices to the Apache tribes instead of the Cherokee and/or Sioux tribes, the actual notices to the Apache tribes were insufficient because respondent should have provided more thorough information about appellant’s relatives. We have already explained that the ICWA notice “must include the names of the child’s ancestors and other identifying information, if known, and be sent registered mail, return receipt requested. [Citation.]” (In re Brooke C., supra, 127 Cal.App.4th at p. 384, italics added.) As with respondent’s arguments, we decline to speculate as to what information respondent may have known or been able to obtain about appellant’s family members. (In re J.N., supra, 138 Cal.App.4th at p. 461.) Indeed, the notices to the Apache tribes identified, by name, the father of the children’s maternal great-grandmother as a “full blooded Apache,” which suggests respondent took appropriate steps to provide the Apache tribes with all known information. We thus conclude that on the instant record, the notices to the Apache tribes contained in the appellate record complied with the ICWA.
DISPOSITION
The jurisdictional findings and order are affirmed. The dispositional orders are reversed and the matter is remanded to the juvenile court for the purpose of determining if respondent complied with the notice requirement of the ICWA and whether the children are Indian children. The parties may introduce new evidence concerning the adequacy of the notices previously sent. If the court finds the previous notices were adequate, or if after proper notice is given the court determines the children are not Indian children, it shall reinstate the dispositional orders of November 13, 2006. If the court after proper notice is given finds the children are Indian children, it shall conduct all further proceedings in compliance with the ICWA and all federal and state law.
WE CONCUR: LEVY, J., CORNELL, J.