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In re W.B.

California Court of Appeals, First District, Fourth Division
Mar 14, 2008
No. A116965 (Cal. Ct. App. Mar. 14, 2008)

Opinion


In re W. B., JR., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. W. B., SR., Defendant and Appellant. A116965 California Court of Appeal, First District, Fourth Division March 14, 2008

NOT TO BE PUBLISHED

San Francisco County Super. Ct. No. JD03-3476

RIVERA, J.

W. B., Sr., (father) appeals from an order denying his petition pursuant to Welfare and Institutions Code section 388. He contends that the trial court failed to comply with the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901) (ICWA). We affirm.

All further statutory references are to the Welfare and Institutions Code.

I. Factual Background

This matter has been before the juvenile court since October 2003 when a section 300 petition was filed to declare W. B., Jr., (W. B.) a dependent of the court. The allegations of the petition included that father was incarcerated for aggravated mayhem as a result of an incident in which he bit mother’s nose off necessitating her to have reconstructive surgery. The petition further alleged mother’s history of abandoning the child, her substance abuse problem, and her history of homelessness. Finally, the petition alleged that W. B. had a half sibling who is a dependent of the court with a permanent plan of long-term placement.

On September 27, 2007, this court affirmed the court’s order terminating mother’s parental rights to her son, A. S., W. B.’s half sibling. (In re A. S. (A115612) [nonpub. opn.].)

On October 24, 2003, the court ordered that W. B. be detained and placed in foster care. A contested jurisdiction/disposition hearing was set for December 3, 2003, but was subsequently continued several times before being held on August 10, 2004. On February 27, 2004, father was convicted of mayhem, inflicting corporal injury upon mother, and assault by means of force likely to produce great bodily injury.

On August 10, 2004, the court held the jurisdictional hearing, amended the section 300 petition, and sustained the allegations that parents have a relationship characterized by domestic violence; that father was convicted of mayhem, inflicting corporal injury upon mother, and assault by means of force likely to produce great bodily injury; that W. B. exhibits emotional damage as evidenced by aggressive behavior and has experienced nightmares; that father is incarcerated and unable to adequately care for W. B.; and that W. B. has a half sibling who is a dependent of the court and in a long-term placement. The dispositional hearing was held the following day. The court declared W. B. a dependent of the court and denied father a reunification plan pursuant to section 361.5, subdivision (b)(12) based on his conviction of a violent felony. The court ordered reunification services for mother.

A contested six-month review hearing was held on June 13, 2005. The court terminated mother’s reunification services. The matter was set for a section 366.26 hearing. On November 16, 2005, the court found that termination of parental rights would not be detrimental to W. B. but that no adoptive parent had been identified, noting that W. B.’s diagnosed medical, physical or mental disability made it difficult to place him. The court continued the matter to May 17, 2006, and subsequently continued the hearing several times.

The section 366.26 hearing was held on July 19, 2006. The court did not terminate parental rights but ordered long-term foster care. The court terminated visitation between W. B. and parents, finding that it would be detrimental to W. B.’s physical or emotional well-being.

On January 9, 2007, the court held a six-month postpermanency plan review hearing. The San Francisco County Deparment of Human Service’s (Department) report for the hearing indicated that an adoptive home had been identified for W. B. The court continued the review hearing. The Department subsequently filed a status review report requesting that the matter be set for a section 336.26 hearing to modify the permanent plan from long-term placement to adoption.

On February 13, 2007, father filed a section 388 petition requesting return of custody to father, reunification services, and visitation. The petition indicated that father was released from prison on January 25, 2006, after serving one year and that he had completed a six-month drug program. In reference to W. B.’s Indian tribe on the JV-180 request to change court order form, father indicated that the question was “na” or not applicable. On February 28, 2007, the court denied the section 388 petition.

The Department requests that we take judicial notice of certain postjudgment evidence. We grant the motion. (See Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 867.) On October 17, 2007, the court terminated parents’ parental rights as to W. B. and ordered adoption as the permanent plan. The court also determined that the ICWA did not apply in this matter, that parents failed to appear at the hearing, and that it deemed their failure to appear to be willful.

II. Discussion

Father appeals the court’s denial of his section 388 petition contending that the Department failed to comply with the notice requirements of the ICWA. He joins in the argument made by mother in In re A. S. involving W. B.’s half sibling. In that case, we affirmed the juvenile court’s finding that the ICWA was not applicable. (In re A. S., supra, A115612.)

In this case, father did not contest the issue of ICWA compliance in his section 388 petition, and he makes no argument here that the court erred in denying that motion. In any event, the postjudgment evidence of which we take judicial notice reflects that the Department substantially complied with the ICWA requirements. (In re I. G. (2005) 133 Cal.App.4th 1246, 1252.) Based on the evidence provided by the Department, the court properly found that the ICWA was not applicable in this case.

Mother raised the issue of ICWA notice on July 31, 2006.

III. Disposition

The order is affirmed.

We concur: RUVOLO, P. J. REARDON, J.


Summaries of

In re W.B.

California Court of Appeals, First District, Fourth Division
Mar 14, 2008
No. A116965 (Cal. Ct. App. Mar. 14, 2008)
Case details for

In re W.B.

Case Details

Full title:SAN FRANCISCO COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and…

Court:California Court of Appeals, First District, Fourth Division

Date published: Mar 14, 2008

Citations

No. A116965 (Cal. Ct. App. Mar. 14, 2008)