Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. 78245
Sepulveda, J.
In this consolidated writ proceeding, N.P. (Mother) and W.B. (Father) (collectively petitioners or parents) seek relief from the juvenile court’s order bypassing reunification services and setting a permanency planning hearing for December 8, 2008 (see Cal. Rules of Court, rule 8.452; Welf. & Inst. Code, §§ 366.21, 366.26), with respect to their six-month-old son, D.P. Petitioners claim the juvenile court order should be reversed for failure to comply with the notification requirements of the Indian Child Welfare Act (ICWA). Petitioners also argue that the juvenile court erred in bypassing reunification services because they had made reasonable efforts in their drug treatment. Finally, petitioners claim that the juvenile court erroneously admitted and considered psychological evaluations that were prepared in a sibling case.
The parties filed separate writ petitions. On our own motion, we consolidated appeal numbers A122402 and A122403 for purposes of argument and decision. Since both parents raise substantially the same issues, for the sake of convenience we do not distinguish between the arguments of Mother and Father, unless otherwise indicated.
All further rule references are to the California Rules of Court. Additionally, all further undesignated section references are to the Welfare and Institutions Code.
Finding no error in the bypass of reunification services, we deny the consolidated petition to the extent it seeks reversal of the order denying such services. The Agency, however, concedes that it did not fully comply with the ICWA’s notice provisions. Because the Agency did not fully comply with those provisions, we grant limited relief solely for the purpose of ensuring compliance with the ICWA. In all other respects, we deny the consolidated petition on the merits.
FACTUAL AND PROCEDURAL BACKGROUND
This family has a significant child welfare history, with six previous referrals from 1996-2008, due to chronic and pervasive substance abuse. Since 1996, Mother has given birth to three children, who were exposed in utero to various narcotics, including cocaine, heroin, and methadone. The instant petition pertains to D.P., who was born in April 2008. D.P. was born three months premature, weighing two pound, eight ounces. During Mother’s pregnancy with D.P., she tested positive for crack cocaine approximately 20 times, heroin two times, and benzodiazepene two times.
Mother’s eldest child, Ar.P., who was born in 1996, was not subject to the proceedings below and is not part of the instant appeal; W.B. is not the father of Ar.P. However, W.B. is the father of A.P., who was born in 2004 and is the subject a separate dependency proceeding.
As a result of D.P.’s premature birth and in utero drug exposure, the Agency filed a section 300, subdivision (b) petition on his behalf on April 17, 2008. At birth, D.P. was “ ‘twittering and jittering’ ” and could not breath on his own. He spent the first 48 days of his life in a neonatal intensive care unit (NICU), where he was treated for opiate withdrawal and given other special medical care, including intubation, as well as assistance with his digestive and respiratory functions. While in the NICU, D.P., at times, had to wear a blindfold to protect his under-developed eyes from light exposure.
Mother admitted to using drugs twice per week during her pregnancy with D.P. According to the detention report, Mother stated that she “felt bad” about her substance abuse and D.P.’s condition, but she was “looking forward and hoping and praying that [D.P.] will be okay.” The Agency further reported that when the social worker spoke with Father about D.P.’s condition, Father “did not have a comment.” D.P. was detained on April 18, 2008 and an uncontested jurisdictional hearing was scheduled for June 4, 2008, then continued until July 21, 2008.
In a June 2008 jurisdiction and disposition report, the Agency recommended reunification services for Father, but not for Mother in light of the fact that her parental rights had been terminated with respect to an older half-sibling (Ar.P.). (See § 361.5, subd. (b)(11).) The Agency noted that D.P. had been placed in a foster/adoptive home. The foster/adoptive mother visited D.P. in the NICU “on almost a daily basis, from morning until evening.” The foster/adoptive father visited D.P. on weekends and holidays to assist in the bonding process. The Agency attached a copy of the foster/adoptive mother’s notes regarding her NICU visits with D.P.
In a July 2008 addendum report, the Agency noted that Mother and Father “have an extensive history of chronic substance abuse and have resisted prior court ordered treatment.” Specifically, in a dependency proceeding regarding D.P.’s sibling, A.P., the parents resisted and failed to participate in court-ordered drug treatment, which resulted in a section 387 petition removing A.P. from the parental home. Additionally, throughout Mother’s pregnancy with D.P., the Agency encouraged the parents on multiple occasions to obtain prenatal care and to engage in substance abuse treatment. The parents, however, failed to participate in such treatment, which resulted in D.P.’s detention a few days after his birth. With respect to the parents’ recent cooperation, the Agency noted, “Although the parents have finally entered out-patient substance abuse treatment, the parents have failed to remain clean after receiving previous treatment. They have a history of attempting treatment, obtaining recovery, but then shortly thereafter, they have serious relapses that put their children at risk. The mother’s first child was adopted in San Francisco County due to the mother’s failure to participate [in] and benefit from reunification services. The mother’s second child [A.P.] became a [d]ependent for the second time on April 26, 2007, the parents have spent most of the past sixteen months of Court ordered services in denial about needing drug treatment and failing to participate in treatment to address their extensive substance abuse history.” Thus, the Agency recommended a bypass of reunification services to the parents on the grounds that: (1) Mother failed reunification services with D.P.’s older half-sibling, and her parental rights were terminated; (2) Mother and Father have an extensive history of chronic substance abuse and have each failed to participate in court-ordered treatment on at least two occasions; and (3) if the juvenile court adopts the Agency’s recommendation to terminate reunification regarding A.P., that reunification services regarding D.P. be denied on this ground as well.
At the jurisdictional hearing on July 23, 2008, the juvenile court sustained the petition on the allegations of Mother’s chronic substance abuse, Mother’s termination of her parental rights as to an older half-sibling Ar.P., and the parents’ failure to benefit from reunification services with respect to the dependency of A.P., D.P.’s sibling, who was exposed in utero to cocaine and opiates. In so ruling, the juvenile court considered the psychological evaluations of the parents that were prepared in connection with A.P.’s dependency. The juvenile court explained it was disregarding any mention of the parents’ inability to care for a medically fragile child, but it was “certainly” taking into account the evaluations as “background” information regarding the parents and their performance in the sibling case. A disposition hearing was scheduled for August 13, 2008.
In a second addendum report filed with the juvenile court on August 8, 2008, the Agency reported that the parents’ reunification services regarding A.P. were terminated on July 23, 2008. The Agency recommended that D.P. be declared a dependent child, that reunification services not be provided to the parents, and that the matter be set for a section 366.26 hearing.
At the disposition hearing on August 13, 2008, the juvenile court declared D.P. to be a dependent child and found by clear and convincing evidence that custody with the parents would be contrary to the child’s welfare because there was a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child, or would be if the child was returned home, and that there were no reasonable means by which the child could be protected without removal. The juvenile court further found by clear and convincing evidence that reunification services need not be provided to the parents in light of their failure to reunify with A.P. (§ 361.5, subd. (b)(10)) and their chronic substance abuse and their failure to comply with court-ordered treatment on at least two occasions (§ 361.5, subd. (b)(13)). Also, as to Mother, the juvenile court found by clear and convincing evidence that her parental rights as to D.P.’s half-sibling (Ar.P.) had been terminated (§ 361.5, subd. (b)(11)). A section 366.26 hearing was scheduled for December 8, 2008, and the instant consolidated petition for extraordinary relief followed.
DISCUSSION
A. ICWA
1. Background
On April 16, 2008, Father signed a parental notification of Indian status form (ICWA-020), in which he declared, under penalty of perjury, that he “may have Indian ancestry,” with an unnamed Cherokee tribe. Mother signed a separate ICWA-020 form, declaring under penalty of perjury that, as far as she knew, she had no Indian ancestry.
According to the June 2008 jurisdiction/disposition report, at the time Father signed the ICWA-020 form on April 16, 20008, he had provided “limited information regarding the names of his ancestors.” The Agency reported that, on May 12, 2008, it sent notice by certified mail, return receipt requested, to the Bureau of Indian Affairs (BIA) and the United States Department of the Interior (Department of Interior). It was further reported that the BIA responded to the notice, stating that Father had provided insufficient information. A copy of the BIA’s response, together with the return receipts from the BIA and the Department of Interior were attached to the jurisdiction/disposition report. Also, on May 23, 2008, the Agency contacted Father’s sister to obtain additional information regarding their Indian ancestry. According to the jurisdiction/disposition report, Father’s sister stated that their great-grandfather is “ ‘full-blooded Cherokee Indian,’ ” and she was able to provide the names of their ancestors. The Agency advised the juvenile court that it was in the process of notifying all of the Cherokee tribes.
In a July 2008 addendum report, the Agency reported that on May 23, 2008, it mailed notice to the Cherokee Nation, the Eastern Band of Cherokee Indians (Eastern Band), and the United Keetoowah Band of Cherokee Indians (United Keetoowah Band) by certified mail, return receipt requested. The return receipts were attached to the addendum report. The Agency further reported that on July 3, 2008, the Cherokee Nation responded that D.P. would “ ‘not be considered an “Indian [child]” in relation to the Cherokee Nation’ ” The response from the Cherokee Nation was also attached to the addendum report.
In an August 2008 addendum report, the Agency reported that on July 23, 2008, the United Keetoowah Band responded that D.P. was not a member and was not eligible for enrollment in that tribe. The response from the United Keetoowah Band was attached to the addendum report.
At the dispositional hearing on August 13, 2008, the juvenile court found that although it did not believe that D.P. was an Indian child, it would “temporarily” find that D.P. “may be an Indian child.” In so ruling, the juvenile court found that notice of the proceedings and the right of the tribes to intervene was provided to all identified tribes and/or the BIA, as required by law, and that proof of such notice was filed with the court. After Father’s counsel noted that new notices regarding the section 366.26 hearing would need to be sent to the tribes, due to the possibility of corrected information regarding Father’s maternal relatives, the juvenile court ordered Father’s counsel to provide, within ten days, any additional information he thought would be relevant to the ICWA inquiry regarding Father’s ancestors.
2. Legal Framework
The ICWA requires that when the court has reason to know that a child involved in the dependency system might be an Indian child, which requires only the suggestion of Indian ancestry, notice of the proceedings must be provided to the child’s tribe, or to the BIA if the tribal affiliation is unknown. (In re Francisco W. (2006) 139 Cal.App.4th 695, 702-703.) In providing the notice, “It is essential to provide the Indian tribe with all available information about the child’s ancestors, especially the ones with the alleged Indian heritage. [Citation.] Notice to the tribe must include available information about the maternal and paternal grandparents and great-grandparents, including maiden, married and former names or aliases; birthdates; place of birth and death; current and former addresses; tribal enrollment numbers; and other identifying data. [Citation.]” (Id. at p. 703; see also § 224.2.) “The social worker has ‘a duty to inquire about and obtain, if possible, all of the information about a child’s family history’ required by 25 Code of Federal Regulations part 23.11(d)(3). [Citation.]” (In re S.M. (2004) 118 Cal.App.4th 1108, 1116; see also In re Louis S. (2004) 117 Cal.App.4th 622, 630; rule 5.481(a)(4).) Further, proof of the notice, consisting of the notice itself, return receipts, and any responses received from the tribes and/or the BIA, must be filed with the juvenile court, since in the absence of such evidence it cannot be determined whether meaningful notice has been provided. (In re Karla C. (2003) 113 Cal.App.4th 166, 175-178; In re Jennifer A. (2002) 103 Cal.App.4th 692, 702-704; § 224.2, subd. (c); rule 5.482(a)(2)(B) & (b).)
3. Analysis
a. Proof of Notice
The Agency concedes it failed to file with the juvenile court the notices it sent to the tribes and does not oppose remand for the limited purpose of assuring proper compliance with the ICWA. In light of this concession, a protracted discussion of the notice requirements is not required. When notice is required but not properly given, the juvenile court’s orders are voidable. (In re Karla C., supra, 113 Cal.App.4th at p. 174.) Here, the instant case must be reversed for the limited purpose of requiring that the juvenile court assure that the required notices were properly given and, if not, to assure proper notice is given and, then, based on the results, determine whether D.P. is an Indian child under the ICWA. (In re Rayna N. (2008) 163 Cal.App.4th 262, 264.)
b. 60-day Rule
By the time of the dispositional hearing on August 13, 2008, the Agency had provided the juvenile court with proofs of service to the BIA, Department of Interior, the Cherokee Nation, the United Keetoowah Band, and the Eastern Band, together with responses from the BIA, the Cherokee Nation, and the United Keetoowah Band. At the time of the hearing, no response had been received from the Eastern Band.
Petitioners argue that the juvenile court erred in commencing the hearing fewer than 60 days from the date of notice to the tribes. Citing rule 5.482(d), petitioners contend that the juvenile court should have either waited 60 days after notice to the tribes or applied the substantive ICWA provisions to the proceeding as if D.P. were an Indian child. Rule 5.482(d), upon which petitioners rely, provides: “(1) If after notice has been provided as required by federal and state law and neither the tribe nor the Bureau of Indian Affairs has provided a determinative response within 60 days after receiving that notice, then the court may determine that the Indian Child Welfare Act does not apply to the proceedings, provided that the court must be reverse its determination of the inapplicability of the act and must apply it prospectively if a tribe or the Bureau of Indian Affairs subsequently confirms that the child is an Indian child. [¶] (2) If at any time, based on the petition or other information, the court knows or has reason to know the child is an Indian child, the court must proceed as if the child were an Indian child. [¶] (3) The court is not required to delay proceedings until a response to notice is received.” (Italics added.)
The plain language of rule 5.482(d)(3) states that the juvenile court is not required to delay proceedings until responses to the ICWA notices are received. Moreover, we do not agree that the 60-day provision should be construed as requiring our dependency system to shut down for 60 days awaiting response from a tribe, thereby overriding the statutory timeframes that have been carefully crafted to minimize delays, move dependency cases forward expeditiously, and achieve finality of decision. Clearly, the juvenile court must defer making the finding that the ICWA does not apply until the earlier of a determinative response from a tribe, or 60 days after receipt of notice. (Rule 5.482(d)(1); § 224.3, subd. (e)(3).) But the 60-day provision does not dictate the timing of juvenile court proceedings in a given matter.
In other words, in absence of responses by the tribes or the BIA, the juvenile court must wait 60 days before making a definitive determination that the ICWA does not apply. (Rule 5.482(d)(1); § 224.3, subd. (e)(3).) However, contrary to petitioners’ assertion, the juvenile court is not required to delay proceedings during this period. (Rule 5.482(d)(3); see also Seiser & Kumli, California Juvenile Courts Practice and Procedure (2008-A ed.), § 2.32A[2][b], pp. 2-72-2-73 (Seiser).) Furthermore, the juvenile court is not required to proceed as if the child is an Indian child during this period, unless it “knows or has reason to know the child is an Indian child . . . .” (Rule 5.482(d)(2), italics added.)
In the instant case, the juvenile court has not yet determined D.P.’s status as an Indian child or the applicability of the provisions set forth in the ICWA. As such, there is no violation of the 60-day rule. Additionally, notwithstanding that the adequacy of the notice must be reviewed on remand because key documents were not filed with the juvenile court, the Cherokee Nation and the United Keetoowah Band have provided determinative responses regarding D.P.
Finally, given the limited information regarding D.P.’s possible Indian ancestry, requiring the juvenile court to treat this case as if D.P. is an Indian child before such a finding is made would be both costly and highly impractical. (See Seiser, supra, at p. 2-73.)
B. Denial of Reunification Services
Petitioners challenge the juvenile court’s decision to bypass reunification services. Generally, when a child is removed from his or her parent’s custody, the parent is entitled to reunification services. (§ 361.5, subd. (a).) However, in a number of situations set out in section 361.5, subdivision (b), the court may bypass reunification services. “These bypass provisions represent the Legislature’s recognition that it may be fruitless to provide reunification services under certain circumstances.” (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 597; see also Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 163.)
Here, the juvenile court ordered the bypass of reunification services pursuant to section 361.5, subdivision (b)(10), (11), and (13). Under the statute, “[r]eunification services need not be provided to a parent or guardian . . . when the court finds, by clear and convincing evidence, any of the following: [¶] . . . [¶] (10) That the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian. [¶] (11) That the parental rights of a parent over any sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent. [¶] . . . [¶] (13) That the parent or guardian of the child has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court’s attention, or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan required by Section 358.1 on at least two prior occasions, even though the programs identified were available and accessible.”
We review the juvenile court’s order for substantial evidence. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199.) Although the burden of proof is by clear and convincing evidence, we are required only to determine whether there is substantial evidence in the record to support the order. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.) Under this standard of review, we must draw all reasonable inferences from the evidence to support the findings and orders of the juvenile court. In addition, we review the record in the light most favorable to the court’s determinations. Issues of fact and credibility are the province of the juvenile court. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) We review the evidence as to Mother and Father separately.
First, with regard to Mother, there is substantial evidence to support the juvenile court’s finding that Mother was not entitled to reunification services pursuant to section 361.5, subdivision (b)(10) and (11). Mother’s parental rights as to one of D.P.’s siblings (Ar.P.) have been permanently severed and reunification services as to another (A.P.) have been terminated. The removal of both siblings was due to Mother’s ongoing drug problems. Moreover, it is quite clear that the conditions that led to the removal of D.P.’s siblings have not been addressed by Mother. As a result of Mother’s chronically untreated drug problem, D.P., like his siblings, was born with drugs in his system. Moreover, in light of Mother’s longstanding history of abuse and failure to remain sober even while she was pregnant, her very recent efforts at treatment were too little and too late. (See, e.g., Renee J. v. Superior Court (2001) 26 Cal.4th 735, 745 [risk of recidivism is “very real concern” for certain parents].) The juvenile court did not err in concluding based on this evidence that Mother had not subsequently made a reasonable effort to treat the problems that led to the removal of her older children. Hence, the juvenile court properly determined that Mother came within the provisions of section 361.5, subdivision (b)(10) and (11).
With regard to Father, his reunification services as to one of D.P.’s siblings (A.P.) have been terminated. As with Mother, it is quite clear that the conditions that led to those results have not been addressed by Father. Although there is some evidence in the record to indicate that Father is attending to his own drug problems by participating in drug treatment, he has failed to acknowledge the effects of Mother’s drug use during her pregnancy with D.P. Father’s inability to protect D.P. from Mother during her pregnancy indicates that Father has not “made a reasonable effort to treat the problems that led to removal” of D.P.’s older sibling. Thus, the juvenile court properly determined that Father came within section 361.5, subdivision (b)(11).
In any case, we also reject petitioners’ contention that the juvenile court abused its discretion in concluding that they fell within the provisions of section 361.5, subdivision (b)(13). “This provision creates two bases for denying services: either (1) where the parent with a significant substance abuse problem has resisted treatment of that problem during the three years prior to the filing of the petition; or (2) where the parent has twice previously been provided and failed or refused to take advantage of available rehabilitation services while under the supervision of the juvenile court. The first provision does not require proof that the prior treatment occur during the three-year period; it requires proof that the resistance to such treatment occur.” (Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 779-780, italics omitted.) Thus, in order to show resistance to prior court-ordered treatment, it is sufficient to show that the parent has previously undergone or enrolled in substance abuse rehabilitation and, in the three years prior to the petition being filed, has shown resistance to that rehabilitation. That proof can come in the form of resumption of regular drug use after a period of sobriety. (Id. at p. 780.)
Our conclusion that any one of the findings under section 361.5, subdivision (b) was supported by the evidence would be sufficient for us to uphold the denial of reunification services. (See Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72.)
Petitioners are precisely the type of parents that section 361.5, subdivision (b)(13) was designed to address. It is undisputed that both Mother and Father have long histories of extensive, abusive, and chronic substance abuse. Petitioners, nevertheless, assert that this subdivision does not support denial of reunification services because by the time of the disposition hearing in D.P.’s case, they were attending treatment and otherwise complying with their case plans. As such, petitioners argue that they have not “resist[ed]” court-ordered treatment within the three-year period prior to the filing of D.P.’s dependency petition. The record belies this claim.
D.P.’s petition was filed in April 2008. In March 2007, a dependency petition was filed on behalf of D.P.’s sibling, A.P., due to petitioners’ documented substance abuse. Despite receiving several months of family maintenance services designed to assist them in overcoming their substance abuse, petitioners failed to participate in treatment, refused to drug test regularly, and continued to use drugs. As a result of this noncompliance, A.P. was removed from petitioners’ custody in August 2007. After A.P.’s removal, petitioners failed to participate in treatment or test regularly during several months of reunification services, and they continued to use drugs. Following nearly 11 months of minimal progress, reunification services were terminated in A.P.’s case.
To the extent petitioners rely on their recent participation in treatment, there is ample evidence in the record that Mother and Father have failed to maintain any kind of long-term sobriety, which demonstrates resistance to treatment. (Randi R. v. Superior Court, supra, 64 Cal.App.4th at p. 73.) As we have discussed, there was evidence that Mother used cocaine, heroin, and methadone on a twice-weekly basis during her pregnancy with D.P. “Regular use of cocaine throughout pregnancy cannot be considered a simple relapse. It is an abundantly clear demonstration of a determination to maintain a drug habit.” (Laura B. v. Superior Court, supra, 68 Cal.App.4th at p. 780.) As to Father, there was little evidence that he had demonstrated any genuine effort towards either admitting or treating his substance abuse.
In sum, we conclude that substantial evidence supports the juvenile court’s determination to bypass reunification services for Mother and Father.
C. Psychological Evaluations
At the July 23, 2008 jurisdiction hearing, the Agency requested the juvenile court to consider all of the reports, including the June 2008 jurisdiction report and its attachments, which included petitioners’ psychological evaluations by Robin Press, Ph.D., that were ordered in the sibling case involving A.P. The Agency also requested the juvenile court to consider the testimony from A.P.’s hearing that took place earlier that same day. Mother’s counsel and Father’s counsel objected to the admission of the psychological reports, arguing that orders for prejurisdictional psychological evaluations are prohibited and that consideration of such evaluations violated the parents’ right to privacy. Father’s counsel also argued that the Agency should be equitably estopped from using the psychological evaluations in D.P.’s case because they were procured with “unclean hands.” The juvenile court overruled the objections and admitted the psychological evaluations conducted in A.P.’s case for the limited purpose of supplying background information.
Relying on Laurie S. v. Superior Court (1994) 26 Cal.App.4th 195 (Laurie S.), petitioners contend that their right to privacy precluded use of their psychological evaluations prepared in the prior sibling dependency proceeding to support jurisdiction over D.P., and that there were less intrusive means of obtaining information needed to assess the risk to him.
In Laurie S, supra, 26 Cal.App.4th 195, the court held that the juvenile court could not order a parent to undergo a psychological evaluation and then use the evaluation to assume jurisdiction in the same dependency proceeding. (Id. at pp. 202-203.) The Laurie S. court, however, did not address a challenge to the introduction of psychological evaluations from previous dependencies. (Id. at pp. 197, 203.) Here, the juvenile court did not order that Mother and Father be evaluated in D.P.’s case. Rather, the evaluations already existed. Thus, Laurie S. is inapposite.
Mother asserts the psychotherapist-patient privilege precluded admission of the evaluation. That privilege does not apply, however, when the court appoints a psychotherapist to examine the patient. (Evid. Code, § 1017, subd. (a); see In re Eduardo A. (1989) 209 Cal.App.3d 1038, 1041-1042.) Furthermore, the evaluations expressly state that Dr. Press told Mother and Father that the court-ordered evaluations would be sent to the Agency and used at trial.
Finally, Father argues that the Agency had “unclean hands” because it allegedly requested an opinion from Dr. Press regarding petitioners’ ability to care for D.P., a medically fragile infant, who had been born during A.P.’s dependency. Although the Agency could not recall requesting this opinion, the juvenile court did not believe that Dr. Press would have offered her assessment of this specific issue had she not been asked to do so. To the extent the Agency improperly sought to obtain a prejurisdictional evaluation in D.P.’s case, the juvenile court remedied any improper conduct by excluding from its consideration any information specifically relating to D.P.
D. “Risk of Harm”
Mother argues that the juvenile court “abused its discretion in finding that [D.P.] was at substantial risk of harm.” From Mother’s cursory analysis, it is unclear whether she is challenging the jurisdictional findings sustaining the petition or the dispositional finding removing D.P. from parental custody.
In any event, substantial evidence supports the juvenile court’s finding that D.P. was at risk of harm at the time of the hearings, warranting both taking jurisdiction and removing him from the custody of petitioners. Mother’s contention that D.P. was no longer at risk of harm due to recent engagement in treatment, is belied by the record. As the sustained petition alleged, and the Agency’s reports demonstrated, D.P. was born prematurely after having been exposed throughout his prenatal development to twice weekly doses of cocaine, heroin, and methadone. Due to medical complications, D.P. spent the first 48 days of life in the NICU, where he was intubated and given specialized medical care to assist with his respiratory and digestive functions.
As a newborn, D.P. required attentive and responsive adults for all aspects of his care and well being. (See In re Rocco M. (1991) 1 Cal.App.4th 814, 824 [finding substantial danger to children of tender years].) However, Mother and Father have consistently placed their addiction above the needs of their children. The fact that the parents had finally engaged in treatment just prior to the hearings, although commendable, did not minimize the threat to D.P.’s well being posed by their chronic history of substance abuse, resistance to treatment, and relapses.
DISPOSITION
The consolidated petition for extraordinary writ review is granted solely for the purpose of ensuring compliance with the ICWA; in all other respects, the petition is denied on the merits. Let a writ of mandate issue directing respondent juvenile court to (1) vacate its order setting the section 366.26 hearing; (2) order the Agency to file the notice it sent to the Cherokee Nation, United Keetoowah Band, Eastern Band, Department of Interior, and BIA; and (3) determine whether the notice was adequate and proper. If the notices are sufficient, and if as a result of the tribes’ nonresponse the juvenile court determines ICWA is inapplicable, the juvenile court shall reset the hearing under section 366.26. (See Justin L. v. Superior Court (2008) 165 Cal.App.4th 1406, 1410; see also In re Karla C., supra, 113 Cal.App.4th at p. 180.) Conversely, if the notice is insufficient, the juvenile court must order the Agency to send a new notice, by registered or certified mail with return receipt requested, to the applicable tribes, and to file a copy of the notices, return receipts, and responses, if any, with the juvenile court. (§ 224.2, subd. (a)(1).) If, following such notice, any of these tribes determines that D.P. is an Indian child, the juvenile court shall proceed in conformity with the ICWA. (Rule 5.483(c).) However, if no tribe determines that D.P. is an Indian child, or if no response is received within the prescribed time (see rule 5.483(d); § 224.2, subd. (d)), the juvenile court shall reset the hearing under section 366.26 (see Justin L., supra, at p. 1410).
The order denying reunification services is affirmed. The request for a stay of the December 8, 2008 section 366.26 hearing is denied. This decision is final immediately. (Rule 8.264(b)(3).)
We concur: Reardon, Acting P.J., Rivera, J.