Filed 4/13/16 D.W. v. Superior Court CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
D.W.,
Petitioner, E065313
v. (Super.Ct.No. J255155)
THE SUPERIOR COURT OF OPINION SAN BERNARDINO COUNTY,
Respondent;
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Annemarie G.
Pace, Judge. Petition denied.
Law Offices of Vincent W. Davis & Associates and Stephanie M. Davis for
Petitioner.
No appearance for Respondent.
1 Jean-Rene Basle, County Counsel, and Dawn M. Messer, Deputy County Counsel,
for Real Party in Interest.
On February 2, 2016, the juvenile court terminated petitioner D.W.’s (Father)
reunification services and set the Welfare and Institutions Code section 366.261 hearing.
Father filed a petition for extraordinary writ in which he contends the juvenile court erred
in finding proper notice under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et
seq.) and that real party in interest, San Bernardino County Children and Family Services
(CFS), failed to provide reasonable reunification services. The petition is denied.
I. FACTS AND PROCEDURAL HISTORY
On May 2, 2014, the social worker received a referral alleging general neglect of
A.W. (Minor) born in August 2013. The reporting party indicated that J.A. (Mother)2
had bruises and a laceration due to physical abuse inflicted by Father, which the reporting
party was concerned occurred while Mother was holding Minor. The reporting party was
additionally concerned for Mother’s mental state due to the extreme physical abuse she
had sustained from multiple domestic violence incidents. The reporting party informed
the social worker Father was a methamphetamine addict and had a severe alcohol
problem.
1 All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
2 Mother is not a party to this petition.
2 Mother was located on May 27, 2014, in a hotel with her husband.3 Mother
admitted Father pushed and yelled at her when he had been drinking. Mother reported
Father had been arrested and incarcerated on May 24, 2014, for domestic violence for
pulling her hair. Mother further acknowledged that Father’s commission of domestic
violence in the presence of Minor was a concern. Mother indicated she would obtain a
restraining order against Father while he was still incarcerated.
Mother’s husband later reported Mother drove to pick up Father when he was
released from jail. The husband reported Father “‘beats the shit’” out of Mother in the
presence of Minor. He indicated Mother and Father lived with Minor in a hotel. The
maternal grandmother reported Mother had been “‘severely beaten’” by Father and had
sustained bruises and a “‘gash on her forehead.’”
On June 4, 2014, the social worker accompanied a sheriff’s deputy serving a
warrant on the parents. Father became angry when told Minor was being taken into
protective custody; Father lunged at the social worker. Father was handcuffed and placed
in a patrol car.
Mother had a criminal history, which included willful cruelty to a child, infliction
of injury on a child, three batteries, domestic violence, and fighting. Father had a
criminal history, which included two incidents of domestic violence, four incidents of
driving under the influence, sex with a victim under the age of 18, and three incidents of
3 Father is not Mother’s husband.
3 failure to register as a sex offender. CFS had 18 prior investigations of Mother with
respect to Minor’s sibling.
On June 6, 2014, CFS personnel filed a juvenile dependency petition alleging,
with respect to Father, that he had a history of substance abuse problems (b-3) and
domestic violence in the presence of Minor (b-4). CFS personnel subsequently amended
the petition to allege an additional allegation that Father led an unstable and unsafe
lifestyle with a substantial criminal history (b-6).4 At the detention hearing on June 9,
2014, the court detained Minor and ordered Father to drug test that day.
Father variously reported being a registered member of the Dakota and Lakota
Sioux tribes of South Dakota and Cheyenne and that he had been born on the Pine Ridge
Reservation. CFS submitted a notice of child custody proceeding for an Indian child
notifying the Dakota and Lakota branches of the Sioux tribes, the Blackfeet, and the
Cheyenne tribes of the proceedings.5
In the jurisdiction and disposition report filed June 25, 2014, the social worker
reported Father had tested positive for marijuana on June 9, 2014. Father reported he had
a prescription for medical marijuana which he provided to CFS. The prescription was
valid from May 24, 2014, through May 24, 2015. Father had negative drug tests on June
27 and July 1, 2014. On June 30, 2014, the court set the matter for mediation.
4 The b-3 and b-4 allegations were respectively renumbered b-4 and b-5.
5 Father’s brother had reported Father had heritage from the Blackfeet tribe.
4 On July 8, 2014, CFS filed an ICWA declaration of due diligence with certified
return receipts for all notified tribes and letters reflecting Father’s and Minor’s
nonmembership and ineligibility for membership in a number of tribes. On June 10,
2014, the mediator filed the mediation report, which reflected Father had submitted on all
allegations. Father agreed to outpatient substance abuse treatment, individual counseling,
anger management, and parenting classes. Father contested the dispositional
recommendation of removal of Minor; Father requested return of Minor under family
maintenance services.
In an August 7, 2014, information to the court, the social worker reported Father
had failed to drug test on June 9 and 17, 2014. Father had been in drug treatment for two
weeks, had one session of anger management, and had yet to participate in parenting
classes. Father tested positive for marijuana on July 16, 2014.
On August 12, 2014, CFS submitted an additional ICWA declaration of due
diligence reflecting that a number of other tribes, including the Northern Cheyenne, had
responded indicating Father’s and Minor’s ineligibility for tribal membership. A report
from Father’s anger management program dated August 12, 2014, reflected Father was
making great progress and participating fully in the group anger management program.
On August 14, 2014, the juvenile court struck the b-6 allegation, found the b-4 and
b-5 allegations true, removed Minor from Father’s care, and ordered reunification
services. On September 11, 2014, CFS filed a final ICWA declaration of due diligence,
5 noting that all tribes had either responded that Minor was ineligible for membership or
had failed to respond within the statutory time frame.
In the February 3, 2015, status review report, the social worker recommended
reunification services be terminated. Officers had arrested Father on September 24,
2014, for false identification to a police officer and again on December 2, 2014, for
trespassing. Father admitted to relapsing and alcohol use. He failed to show for drug
testing on January 30, 2015; tested negative on August 4 and 13, October 1, 2, and 6, and
December 18, 2014; and tested positive for marijuana on August 28, September 4, and
November 6, 2014.
Father was scheduled to be discharged from his substance abuse treatment
program on February 19, 2015. He completed five weeks of an eight-week parenting
program. Father successfully completed a 12-week anger management program and had
attended Narcotics Anonymous/Alcoholic Anonymous (NA/AA) meetings.
In a subsequent mediation report, Father agreed to random drug testing, attendance
at NA/AA meetings thrice weekly, and additional individual counseling. On March 24,
2015, the juvenile court adopted the mediation report, found reasonable services had been
provided, and continued reunification services. The court noted that Father’s no-shows
for drugs tests would be considered as positive results.
In the July 14, 2014, status review report, the social worker recommended
continuation of reunification services. Father had tested positive for marijuana on May 5
and 15, and June 8, 10, and 15, 2015. He was a no-show for tests scheduled on April 1
6 and 8, and May 11, 2015. Father missed half of his scheduled groups in his substance
abuse treatment program. There had been an incident of domestic violence between
Mother and Father in April 2015.
At a hearing on July 21, 2015, counsel for CFS noted that Father’s positive tests
for marijuana remained an issue, but that if he had a current license, he could provide that
to the social worker. The court ordered an updated case plan which required Father to
participate in domestic violence classes. Father was ordered to drug test that day with a
failure to appear deemed a positive result. The social worker filed an updated case plan
on August 5, 2015, reflecting the requirement that Father participate in domestic violence
counseling.
On September 29, 2015, the social worker informed the court that Father’s
substance abuse counselor reported that another client admitted providing a clean sample
of urine to Father for his use in drug testing. Father missed a drug test two weeks earlier
and failed to show for counseling on September 28, 2015.
In the November 24, 2015, status review report, the social worker reported
allegations that Father had threatened to kidnap Minor. Law enforcement arrested Father
on November 8, 2015, for criminal threats. After attending five of eight mandatory
sessions, Father was terminated from individual counseling for threatening the counselor.
Father had apparently continued to attend anger management counseling rather than
domestic violence counseling despite the change in his case plan. When Father found out
7 that CFS would not pay for and that he would not receive credit for the anger
management classes he had already attended, he became upset.
Father tested negative for drugs on July 8, August 5, 12, 24, 26, and 28, and
September 2, 21, and 23, 2015. He tested positive for marijuana on July 22, 27, and 29,
September 30, and October 8 and 14, 2015. Father failed to show for testing on
September 22, 2015.
In two separate reports covering July and August 2015, Father’s substance abuse
progress report reflected he had, respectively, missed six and seven days of treatment.
Only two missed sessions in each month had been excused. Father was terminated from
substance abuse counseling for testing positive for THC, maintaining a lack of respect for
staff, and manipulating a drug test. The social worker referred Father to substance abuse
services elsewhere on October 8, 2015; however, Father informed the social worker he
would be unable to attend the services due to work. Father failed to show for visitation
with Minor twice during the reporting period.
At a hearing on December 3, 2015, Father’s counsel reported that Father had
informed him “the Northern Cheyenne Tribe would like to intervene on the parents[’]
behalf. [¶] We’re asking the department . . . to follow up with the Cheyenne Tribe, the
ICWA representative.” Father’s counsel provided the telephone number of the tribe. The
court noted that it had already received a declaration of due diligence reflecting that a
particular tribe had been notified and had received a letter from that tribe indicating it
8 would not intervene. The court noted: “[I]f [Father] has documentation[] to support
th[en] he should provide that to the department.”
In a December 14, 2015, information to the court, the social worker reported
Mother had called the police on November 7, 2015, to report Father had stolen her CFS-
provided gas cards and threatened to kill her. On December 17, 2015, the social worker
reported she had met with Father and he still did not have any additional information that
would require additional notification pursuant to ICWA.
In a February 1, 2016, information to the court, the social worker reported that
Father had failed to show for visitation with Minor on December 10 and 23, 2015, and
January 6 and 7, 2016. Father became verbally aggressive toward the social worker on
January 20, 2016, alleging she failed to send him gas cards. Father was a no-show for
drug tests on December 18 and 21, 2015, and January 11 and 20, 2016.
At the 18-month hearing on February 2, 2016, Father testified he had completed
both the domestic violence and substance abuse treatment programs required by his case
plan. He never provided proof of completion to the social worker because he believed it
was her duty to obtain that information. Father alleged the service provider had
mistakenly placed him in anger management rather than domestic violence classes.
Father noted he had been attending NA/AA meetings five to seven times weekly, but had
not provided attendance sheets to the social worker.
Father testified he had obtained a prescription for marijuana in 2010. He
acknowledged manipulating a drug test. Father admitted he was terminated from
9 treatment for manipulation of the test and a positive drug test. He admitted failing to
drug test on December 18 and 21, 2015, and January 11 and 20, 2016. It was stipulated
that Father’s sister and employer would testify they had not observed Father under the
influence. Father denied ever threatening anyone or threatening to kidnap Minor.
Father noted: “My tribe is looking into it. I’ve got the [N]ative American
ancestry. I was enrolled at one point and they tried to trace down that enrollment and
step in.” Father’s counsel stated he had spoken with an individual with the Northern
Cheyenne Tribe who believed Father may have been enrolled in the tribe, but due to a
fire 15 to 30 years earlier, those records had been destroyed. The court observed that
Father’s counsel “had raised issues of ICWA . . . . I suggest that if you have that
information, that you provide it to county counsel and the worker.”
The juvenile court terminated Father’s reunification services and set the section
366.26 hearing. Counsel for CFS observed: “I did also review the ICWA notices and the
tribe that Father is claiming to have possibly been a member at some point, denies that
the child would qualify for status in the tribe. [¶] So if there’s anything new we’re happy
to look into it. But just to be clear, it was raised, we looked into it, and there’s nothing
new.” The court reiterated to Father’s counsel that if there was new information
regarding Father’s Indian status to provide that information to CFS.
10 II. DISCUSSION
A. ICWA
Father contends the juvenile court erred in finding ICWA notice proper because
the court and CFS personnel failed its continuing duty to inquire into Minor’s Indian
heritage after Father alleged the Northern Cheyenne Tribe had indicated Father may have
been an enrolled member. We disagree.
Notice of the proceedings is required to be sent whenever it is known or there is
reason to know that an Indian child is involved. (25 U.S.C. § 1912(a); Welf. & Inst.
Code, § 224.2, subd. (a); see In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) Notice
serves a twofold purpose: “(1) it enables the tribe to investigate and determine whether
the minor is an Indian child; and (2) it advises the tribe of the pending proceedings and its
right to intervene or assume tribal jurisdiction.” (In re Desiree F., supra, at p. 470.)
Juvenile courts and child protective agencies have “‘an affirmative and continuing
duty to inquire whether a [dependent] child . . . is or may be an Indian child.’” (In re
H.B. (2008) 161 Cal.App.4th 115, 121; § 224.3; Cal. Rules of Court, rule 5.481.) As
soon as practicable, the social worker is required to interview the child’s parents,
extended family members, the Indian custodian, if any, and any other person who can
reasonably be expected to have information concerning the child’s membership status or
eligibility. (§ 224.3, subd. (c); In re Shane G. (2008) 166 Cal.App.4th 1532, 1539; Cal.
Rules of Court, rule 5.481(a)(4).) “‘The [trial] court must determine whether proper
notice was given under ICWA and whether ICWA applies to the proceedings. [Citation.]
11 We review the trial court’s findings for substantial evidence. [Citation.]’ [Citation.]” (In
re Christian P. (2012) 208 Cal.App.4th 437, 451.)
Here, on July 8, 2014, CFS personnel filed an ICWA declaration of due diligence
reflecting that notice of the proceedings had been mailed to all tribes, including Northern
Cheyenne, relevant to the tribal affiliations alleged by Father regarding the instant
juvenile proceedings. That notice indicated responses from a number of tribes reflecting
that Father and Minor were not eligible members and that the tribes would not intervene.
On August 12, 2014, CFS personnel filed another declaration of due diligence
which reflected further indications from additional tribes regarding Father’s and Minor’s
ineligibility for membership and tribal intentions not to intervene. Most pertinent to the
issue raised by Father on appeal, the Northern Cheyenne Tribe submitted a letter
reflecting that Minor was not an enrolled member of the tribe and did not fall under
ICWA: “No further correspondence or legal documents need to be sent to our agency.
[¶] If any parent claims that they are a descendent of the Northern Cheyenne Tribe, they
must submit the necessary documents to the Northern Cheyenne Tribal Enrollment
office.”
On September 11, 2014, CFS personnel filed a final declaration of due diligence
noting that no tribe had filed a response indicating an intention to intervene within the
statutory time period. CFS personnel recommended that the court find ICWA did not
apply. The juvenile court signed an order finding that ICWA did not apply in the instant
case.
12 The court’s order was supported by substantial evidence. Father’s contention that
his self-serving statement that an individual with the Northern Cheyenne Tribe had
indicated he may have been an enrolled member was not new information for purposes of
ICWA, which would have required additional notification. (§§ 224.2, subd. (a)(5), 224.3,
subd. (f).) Indeed, the juvenile court expressly found the reports in the case more
credible than Father’s testimony. Moreover, the Northern Cheyenne Tribe had already
received notification containing all pertinent information. If that tribe wished to
intervene it had only to submit a letter to CFS indicating its intention to do so. This it did
not do.
Furthermore, Father’s counsel first informed the court of Father’s report of the
Northern Cheyenne Tribe’s purported intention to intervene on December 3, 2015. The
court told counsel to provide CFS with documentation of any such intent. Two months
later, at the 18-month review hearing, Father had still failed to provide CFS with any
such documentation. The court’s determination that proper notice had been provided
pursuant to ICWA was supported by substantial evidence.
B. Reasonable Services
Father contends the juvenile court’s order finding CFS had provided Father
reasonable reunification services was not supported by substantial evidence because
Father’s case plan failed to take into account Father’s legal prescription for medical
marijuana and the social worker neglected to have regular communication with Father
during the last six months of the proceedings. We disagree.
13 The department “‘must make a good faith effort to develop and implement a
family reunification plan. [Citation.] “[T]he record should show that the supervising
agency identified the problems leading to the loss of custody, offered services designed to
remedy those problems, maintained reasonable contact with the parents during the course
of the service plan, and made reasonable efforts to assist the parents in areas where
compliance proved difficult . . . .” [Citation.]’ [Citation.] ‘The standard is not whether
the services provided were the best that might be provided in an ideal world, but whether
the services were reasonable under the circumstances.’ [Citation.] ‘The applicable
standard of review is sufficiency of the evidence. [Citation.]’ [Citation.]” (In re T.G.
(2010) 188 Cal.App.4th 687, 697.) We likewise review a court’s order terminating a
parent’s reunification services for sufficiency of the evidence. (In re Heather B. (1992) 9
Cal.App.4th 535, 563.)
Here, at the 18-month hearing, counsel for Minor stated: “Father claims that he
gave the marijuana card and that the department is aware. The records do not reflect
that.” Counsel for CFS stated: “The worker has never received the marijuana card. As
far as I can tell, from my notes at the beginning of the case, this is not something raised
by father who is saying he’s had the card since 2010, I believe. [¶] When this case was
initially brought before the Court there was not an exception brought to this Court for
father’s marijuana use in the case plan.”
Counsels’ statements are belied by the record, which reflects Father did have a
prescription for medical marijuana valid from May 24, 2014, through May 24, 2015.
14 Nevertheless, nothing in the record reflects the juvenile court terminated Father’s
reunification services for his positive tests for marijuana during the validity of his
prescription. In fact, the court noted it was terminating Father’s reunification services
because Father had manipulated tests, missed tests, was terminated from programs, and
failed to visit regularly with Minor.
Father had been referred to individual counseling, anger management, substance
abuse counseling, substance abuse testing, parenting classes, a 12-step program, domestic
violence counseling, and had been ordered visitation with Minor. On October 8, 2015,
during the period Father alleges the social worker neglected to contact him, the social
worker referred Father to an additional substance abuse program after he had been
terminated from another. The social worker noted that during that period she had
“attempted to contact father however father has not contacted the undersigned.” Thus, to
the extent the social worker did not contact Father, it was Father who failed to make
himself available for such contact. The court’s order finding CFS had provided
reasonable services was supported by substantial evidence.
Moreover, the court’s order terminating Father’s reunification services was
supported by substantial evidence. Father missed 11 drug tests during the pendency of
the proceedings, all of which were deemed to be positive for any drug, not just marijuana.
The original report supporting the b-4 allegation that Father had a history of substance
abuse problems was that Father had a methamphetamine and alcohol problem. Father
admitted to relapsing and using alcohol. He had six positive tests for marijuana which
15 occurred after the expiration of the marijuana prescription which he provided to CFS.
Father attempted to cheat on one drug test.
Father was terminated from programs. After termination from substance abuse
counseling, the social worker provided a referral to an additional program, which Father
stated he would be unable to attend. He failed to complete either substance abuse or
domestic violence counseling. Father missed a number of visits with Minor. He had
numerous unexcused absences from the programs in which he had enrolled. Thus,
sufficient evidence supported the court’s order terminating Father’s reunification
services.
III. DISPOSITION
The petition is DENIED.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J.
We concur:
RAMIREZ P. J.
HOLLENHORST J.