JARED v. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

The juvenile dependency court entered orders setting a permanency planning hearing (Welf. & Inst.Code, § 366.26) ¹ for March 14, 2011, involving Alana J., a dependent child of the court.   Jared J. (Father) filed a petition for an extraordinary writ (Cal. Rules of Court, rule 8.452), and we issued an order to show cause.   Having further reviewed the issues raised by Father's petition, we now deny his request for writ relief.

FACTS

Father and Kristine J. (Mother) are the biological parents of three children:  D.J., born in December 2004;  Jared J., Jr., born in March 2008;  and Alana, born in July 2010.   Mother is also the parent of two other children:  Kyle S., born in July 1999;  and April S., born in August 2000.   Only Father and Alana are involved in the original writ proceeding before us today.   The other children were not living in the family home when the current dependency proceeding involving Alana was initiated;  they were involved in earlier dependency proceedings.²

In September 2010, the Los Angeles County Department of Children and Family Services (DCFS) received a referral reporting that Alana had been born recently, that Mother had a history of drug use and had failed to reunify with her other children, and that Father was a known sex offender.   The referring party claimed that Alana was the victim of Mother's “general neglect.”   On September 3, 2010, a DCFS case social worker (CSW) went to the family home to investigate the referral.   Father said that Mother and Alana were out, and that he otherwise was “not giving up any information” in their absence.   On September 7, 2010, the CSW returned to the family home and spoke with Mother and Father, and both agreed to take drug tests.   On September 14, DCFS received the results of the drug tests;  Mother tested positive for methamphetamine;  Father tested negative for both drugs and alcohol.   On September 20, 2010, DCFS filed a petition (§ 300) on Alana's behalf.

The petition alleged that Mother had a long history of drug abuse, including a toxicology screen positive for methamphetamine in September 2010, which made her unable to care for Alana.   Further, that Father knew about Mother's drug abuse, but had failed to protect Alana (count b-1.)   The petition further alleged that Father also had a history of substance abuse that rendered him incapable of caring for Alana (counts b-2, j-2), and that he was a registered sex offender which endangered Alana's physical and emotional safety (counts b-3, d-1).   The petition alleged that Alana's siblings, D.J. and Jared, Jr., both received permanent placement services in earlier dependency actions “due to the Mother's substance abuse,” and that Father knew of Mother's drug problems and did not protect Alana (count j-1.)   The petition included an allegation pursuant to section 361.5, subdivision (b), that DCFS might “seek an order ․ that no reunification services shall be provided [to] the family which will result in immediate permanency planning through termination of parental rights and adoption, guardianship or long-term foster care.”

The petition included an “Indian Child Inquiry Attachment” which indicated that Father had stated “his grandmother is American Indian of the Cherokee tribe,” and that his “eldest son is registered.”   The attachment further indicated that Mother had stated Father “is of American Indian heritage through his grandmother.”   DCFS's detention report filed at the time of the petition included histories of Mother's and Father's involvement in prior dependency proceedings involving Alana's siblings, and Mother's and Father's extensive involvement with the criminal justice system.

At the detention hearing on September 20, 2010, Father submitted an affidavit of prejudice.  (Code Civ. Proc., § 170.6.) The dependency court denied the affidavit on the ground it was untimely.³  Father thereafter advised the court that his “grandmother was Indian,” and that Alana's adult half sibling, was “registered.”   When asked whether he had his son's registration information, Father replied that he was “declining” to provide that information because he believed the “courtroom ha[d] been unfair with [him].”   When the court asked Father whether he would provide information to assist an investigation of the Indian heritage issue, Father replied that he would notify his attorney of his son's registration.   At that point, the court stated:  “Since the Father is refusing to provide any further information in regards to American Indian heritage, the court finds ․ no reason to know the child would fall under the [ICWA].” ⁴ Following further discussions, the court denied Father's request for release of Alana to him and ordered her detained in foster care.

In October 2010, DCFS submitted its jurisdiction report.   The report indicated that DCFS had been unsuccessful in several attempts to contact Father.   In the report, DCFS summarized the family's history in the dependency court system:  In 2004, DCFS filed a dependency case on behalf of three children in the family home, including Father and Mother's first child, D.J. The petition in the 2004 proceeding alleged that Father had a history of and convictions for sale of illicit drugs, and that he is a registered sex offender, and that his “criminal history place[d] the children at risk of physical and emotional harm.”   The petition alleged that Mother had a history of substance abuse that “place[d] the children at risk of physical and emotional harm.”   In 2005, the dependency court sustained the petition, and ordered Mother and Father to complete parenting and drug counseling programs.   In July 2006, the court terminated reunification services for Mother and Father as to D.J. In 2008, DCFS filed a second dependency proceeding, this time as to Jared Jr. The 2008 petition alleged that Jared had been born with a positive toxicology screen, and Mother had a history of drug and alcohol abuse that made her incapable of providing regular care for Jared.   The petition alleged that Father “failed to take action to protect the child” from Mother's substance abuse.   As did the earlier petition, this one also alleged that Father had a criminal history, including a conviction for a sexual offense against a minor, that “place[d] the child at risk of physical and emotional harm.”   In April 2008, the dependency court sustained the second petition;  in May 2008, the court ordered no reunification services for Mother and Father.

DCFS's October 2010 jurisdiction report in the current dependency proceeding involving Alana indicated that Mother and Father had both declined to talk to DCFS, and that neither parent had visited Alana since detention.

An adjudication hearing began on November 4, 2010, and continued the next day.   In the course of the hearing, the dependency court admitted DCFS's jurisdiction report in evidence, and heard testimony from a DCFS investigator, Erika Jones, and from Father.   Jones testified that Father had completed a parenting program ordered during the course of the first dependency proceeding, and had enrolled in individual counseling, and had nine clean drug tests.   As of July 2006, DCFS considered Father to have completed his case plan.   However, Father did not have D.J. returned to his custody at that time because of a parole condition not to have contact with children.   Father completed his parole in September 2006 and was compliant with his registration requirements.   There had been no other law enforcement matters relating to minors.   Jones testified that, because she had been unable to interview Father, she did not know if Alana was at risk of sexual abuse.   Jones found no evidence that Father had a history of illicit drug abuse.   Alana and Mother tested clean of illicit substances at the time of Alana's birth.

Father testified next.   He denied using illicit substances, but admitted he was then taking pain medication following a car accident, pursuant to a prescription.   He testified, however, he had not used that medication in a “very long time.”   Father admitted that as a result of an incident about 15 years prior, he was required to register as a sex offender.   As part of his case plan in the first dependency proceeding involving D.J., Father attended individual counseling with Drs. Berman and King. According to Father, he addressed issues relating to his conviction, and “how to prevent things like that from happening again.”   Father completed counseling and parole.

Father recalled that D.J.'s case was opened when Mother tested positive for cocaine at the time of D.J.'s birth.   Father testified he completed his case plan, but did not know why D.J. was not returned to him.   Jared Jr.'s case was also opened because of Mother's use of drugs.   Father testified that he purchased home test kits because of Mother's drug history.   According to Father, he took Mother to prenatal exams and did not leave Mother alone when she was pregnant with Alana.   According to Father, after Alana was born, he would not leave her alone with Mother and regularly checked the house for items that would signal Mother's drug use.   Father testified that Mother did not display any signs that she was using drugs.

On cross-examination, DCFS's counsel asked Father whether he ever attempted a “heart-to-heart” with Mother because he was “sick of losing [his] kids.”   Father answered that he had told Mother “it wasn't going to happen to any of the children anymore,” and noted that Alana had been born clean.   When asked whether he thought it was “wise” to have another child with Mother, Father responded that he paid “attention to her and the child with my fullest focus and the best of my ability․”  Father questioned Mother's positive drug test for methampethamine because it wasn't her drug “of choice.”   Father testified he was not aware that Mother had been using drugs during her pregnancies with D.J. or Jared.   Father acknowledged that he had two convictions for drug possession, the most recent in 2002.   As to the lewd and lascivious acts conviction, Father explained that he did not know the child's age at the time of the incident.

Upon questioning by Alana's counsel, Father testified he had never completed a drug program and had never been asked by DCFS to participate in a drug program.   He testified that he had completed individual counseling for the dependency court and sex counseling with the parole psychiatrist.   Father testified he attended AA/NA meetings with Mother.

In closing, Alana's counsel argued that Father had failed to protect her because he “knew or should have known of the Mother's history.”   Alana's counsel acknowledged her belief that there was no evidence Father's history as a registered sex offender created a substantial risk of sexual abuse to Alana.   But she argued that in light of the prior sustained petitions, the court should find Father had a history of drug use problems justifying jurisdiction.   Father's counsel argued that the court should dismiss all allegations as to Father.

At the conclusion of the jurisdiction hearing, the court found that Father “chose to have another child with the Mother who was using,” and that this showed he had he failed to protect Alana from Mother's drug use.   The court thereafter sustained all of the allegations in the petition as pleaded, and set a disposition hearing for November 15, 2010.

At the disposition on November 15, 2010, dependency investigator Jones testified again (this time via telephone).   Jones confirmed her previous testimony that Father had completed a parenting program and confirmed that Father had attended counseling with Dr. Breman for almost a year to address his conviction for lewd acts with a child, and that Father completed parole in September 2006.   Father had not tested positive for any illegal substances;  he had eight negative tests in 2005, and five positive tests for a prescribed medication, which DCFS did not consider a “dirty” test result.   Despite the factors noted, DCFS (by Jones) recommended that Father not receive family reunification services because he had never “made himself available” for any drug programs or individual counseling, and he had not visited with Alana.   At the same time, Jones conceded that DCFS had not provided any program referrals to Father.

The dependency court denied family reunification services to Mother and Father pursuant to section 361.5, subdivision (b)(10), (b)(11), and (b)(13), and set a permanent planning hearing (§ 366.26) for March 14, 2011.

DISCUSSION

I. ICWA

Father's petition alleges the dependency court erred in finding the ICWA did not apply.   We find no ground for granting writ relief.

The purpose of the ICWA is to protect the rights of Indian children and promote the stability and security of Indian tribes and families.   In order to ensure a tribe is given an opportunity to intervene on behalf of an Indian child during a dependency proceeding, the ICWA requires a dependency court --where there is “reason to know” that an Indian child is involved -- to assure that DCFS notifies the child's tribe of the proceedings, and its right to become involved in the proceeding.  (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.)   Where the specific identity of the tribe cannot be determined, notice shall be given to the Secretary of the Interior.  (Ibid.) Notice is a “key component” of the ICWA (In re Desiree, at p. 469), and the failure to provide notice is error.  (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421-1426;  see also 25 U.S.C. § 1914.)   In summary, when the dependency court has reason to know that an Indian child is involved in a dependency proceeding, the court may not order termination of parental rights until it receives proof that the proper Indian tribes have been, and/or the Secretary of the Interior has been, notified of the proceeding.  (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.)

Vague or ambiguous information is sufficient to trigger a duty on the part of the responsible agency to make an inquiry into a child's possible Indian heritage.   However, the trigger for giving ICWA notice in a dependency proceeding -- a “reason to know” that an Indian child is involved -- means something more is required.   Notice is required when the “available information” regarding a child's Indian ancestry suggests that the child is a member of or is eligible for membership in an identified Indian tribe.  (See In re Alice M. (2008) 161 Cal.App.4th 1189, 1197-1201;  In re S.B. (2005) 130 Cal.App.4th 1148, 1160-1161.)

In the current case, the detention report that DCFS filed in September 2010 had information showing Mother and Father had both stated there is Indian heritage through Father's grandmother;  an attachment to the petition included similar information.   Under these circumstances, we agree there was a duty of inquiry into Alana's possible Indian heritage.   That duty was fulfilled.   DCFS attempted to make inquires of Father, and the dependency court directly inquired of Father regarding Indian heritage.   Father's refusal to assist the inquiry negated any ensuing duty to send notices.

Assuming there was sufficient information to trigger ICWA's notice requirement, we nonetheless decline to grant Father's current writ petition.   It is appropriate to apply a harmless error analysis under ICWA. (In re Z.N. (2009) 181 Cal.App.4th 282, 298-302.)   The records from the prior dependency proceedings show notices were sent under ICWA for Alana's siblings, and that no American Indian heritage was claimed by any tribe.   It follows that there is no reason to believe the result would have been any different in the event notices were issued again for Alana.  (In re Z.N., at p. 302.)

II. The Jurisdictional Findings

Father alleges the dependency court's jurisdictional findings are not supported by substantial evidence.   In his view, the evidence does not show he posed a substantial risk of serious physical harm to Alana;  nor that Alana was at risk of being physically abused by him;  nor that he failed to protect Alana;  nor that his history of drug abuse rendered him incapable of providing care for Alana;  nor that he posed a substantial risk for sexual abuse of Alana.   Although the evidence is not sufficient to support all of the dependency court's findings, we find there is sufficient evidence to sustain the court's jurisdiction over Alana.

We agree with Father that the evidence in the record does not support the court's findings on counts b-3 and d-1.   His criminal history, as framed by the allegations in the petition, does not place Alana at risk of physical or sexual abuse.   However, we believe the evidence supports the court's remaining findings.

There were two prior dependency proceedings involving multiple children and those proceedings were precipitated by drug abuse problems.   Those children were permanently removed from Mother and Father.   Drug use remains a problem because Mother tested positive for methamphetamine only a matter of a few weeks after Alana was born.   Further, the record shows Father allowed Alana and Mother to be together alone, despite his testimony to the contrary.   Father was otherwise evasive or untruthful with DCFS when inquires began.   Under the substantial evidence standard of review, there is more than ample evidence from which the dependency court could infer that Father knew Mother's drug issues continued, and that he was not going to do anything meaningful to protect Alana from the situation.  (In re Katrina W. (1994) 31 Cal.App.4th 441, 447.)   Because valid evidentiary grounds exist for the dependency court to assume jurisdiction, the absence of evidence to sustain all of the petition's allegations does not warrant reversal.  (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72 (Randi R.).)

III. Removal

Father alleges the dependency court's orders removing Alana from the family home are not supported by substantial evidence.   We disagree.

The decision to remove a child from the family home is a matter within the broad discretion of the dependency court, and its decision will not be disturbed by a reviewing court unless the decision is not supported by substantial evidence, and/or amounts to an abuse of discretion in light of the historical facts.  (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.)   A court abuses its discretion when it makes an arbitrary or capricious decision, or a decision that is beyond the bounds of reason, all circumstances considered.  (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

The dependency court's decision is not arbitrary or capricious, nor is it beyond the bounds of reason.   On the contrary, the court's decision must be considered reasonable in light of the family's history.   Mother and Father have a years-long history of drug issues, prior dependency court intervention, counseling and classes.   Nevertheless, when Mother and Father had their most recent child, Alana, the home environment provided remains essentially indistinguishable from that which first led to dependency court intervention years before.   The dependency court, in order to act reasonably, did not need to find that Alana could remain in the home while still further reunification efforts were undertaken.   Given the family history, and the most recent drug problems, the court was well within its discretion to rule removal first, and other issues next.

IV. Reunification Services

Father alleges the dependency court erred in denying him family reunification services.   We disagree.

Family reunification is the cornerstone of the dependency system, and, for this reason, the dependency statutes embody a presumption that a parent, and a dependent child, will receive family reunification services.  (Riverside County Dept. of Public Social Services v. Superior Court (1999) 71 Cal.App.4th 483, 487.)   At the same time, however, section 361.5 embodies the Legislature's recognition that it may be “ ‘fruitless to provide reunification services under certain circumstances.  [Citation.]’  “ (Randi R., supra, 64 Cal.App.4th at p. 70.)   In the current case, the dependency court denied family reunification services to Father under section 361.5, subdivision (b)(10), (b)(11), and (b)(13).   A dependency court's decision to deny family reunification services under section 361.5 is reviewed, as its removal decision, under a combination of the substantial evidence and the abuse of discretion standards.  (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401-1402;  In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.)   Father's presentation does not persuade us that the dependency court's decision to deny reunification services is not supported by substantial evidence nor has he persuaded us that the court's decision rose to an abuse of discretion.

Section 361.5, subdivision (b)(10), states that reunification services need not be provided to a parent when the dependency court finds, by clear and convincing evidence, that it has previously ordered termination of reunification services for any sibling because the parent failed to reunify with the sibling after being removed from that parent, and the parent has not subsequently made a reasonable effort to treat the problems that led to the removal of the sibling.   Under subdivision (b)(11), reunification services need not be provided when the court finds, by clear and convincing evidence, that there has been a termination of parental rights over any sibling of the child, and the parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling from the parent.   Under subdivision (b)(13), reunification services need not be provided when the court finds, by clear and convincing evidence, that there is a parental history of extensive, abusive, and chronic use of drugs or alcohol, and a parent has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought a 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 agree with Father that the evidence is not sufficient to support the dependency court's finding under section 361.5, subdivision (b)(13), because there is no evidence that he failed a prior court-ordered drug program.   However, we believe the court's other findings under subdivision (b)(10) and (b)(11), are supported by the evidence.   The record shows that this family's involvement in the dependency system results from ongoing problems with drug abuse and a failure to protect children from that drug abuse.   The evidence supports the dependency court's conclusion that Father has failed to make reasonable efforts to address the drug problems that have poisoned the family.   Father has not made any effort to distance himself from Mother.   The dependency court was not compelled to accept as true his testimony that he undertook efforts to ferret out Mother's drug use, and to prevent Mother from being alone with Alana.   A reasonable decision-maker could have found, and did find, that past behaviors and omissions continued and would continue.   Given the record before us, we cannot declare that the dependency court's decision to deny reunification services must be vacated.   The court's decision is not an abuse of judicial discretion.

DISPOSITION

Father's petition is denied.

BIGELOW, P. J.

We concur:

RUBIN, J. GRIMES, J.

FOOTNOTES

FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated..  FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FN2. Multiple proceedings have been initiated in the dependency court under the same case number, CK56164.   Kyle and April were placed with relatives with Mother's agreement after the earliest referrals to DCFS. In July 2007, the dependency court terminated parental rights as to D.J., and Mother filed an appeal.   We addressed Mother's appeal concerning D.J. in an opinion we issued approximately two years before Alana was born.  (In re D.J. (June 23, 2008, B201269 [nonpub. opn.].) In the prior opinion, we held that DCFS had properly conceded its notices to various Indian tribes concerning D.J. were deficient under Indian Child Welfare Act (ICWA).   Following our opinion, DCFS submitted reports to the dependency court showing that ICWA notices had been sent to multiple Indian tribes;  all of the tribes denied any record of Indian heritage for D.J. and his sibling, Jared, Jr..  FN2. Multiple proceedings have been initiated in the dependency court under the same case number, CK56164.   Kyle and April were placed with relatives with Mother's agreement after the earliest referrals to DCFS. In July 2007, the dependency court terminated parental rights as to D.J., and Mother filed an appeal.   We addressed Mother's appeal concerning D.J. in an opinion we issued approximately two years before Alana was born.  (In re D.J. (June 23, 2008, B201269 [nonpub. opn.].) In the prior opinion, we held that DCFS had properly conceded its notices to various Indian tribes concerning D.J. were deficient under Indian Child Welfare Act (ICWA).   Following our opinion, DCFS submitted reports to the dependency court showing that ICWA notices had been sent to multiple Indian tribes;  all of the tribes denied any record of Indian heritage for D.J. and his sibling, Jared, Jr.

FN3. Father filed a petition for extraordinary writ challenging the denial of his affidavit;  we summarily denied his petition.  (Case No. B227681.).  FN3. Father filed a petition for extraordinary writ challenging the denial of his affidavit;  we summarily denied his petition.  (Case No. B227681.)

FN4. The court's September 2010 minute order reads:  “Father indicates that he has American Indian heritage.   After inquiry from the court and Father's non cooperation, the court finds that it has no reason to know that minor fall[s] under the [ICWA].”.  FN4. The court's September 2010 minute order reads:  “Father indicates that he has American Indian heritage.   After inquiry from the court and Father's non cooperation, the court finds that it has no reason to know that minor fall[s] under the [ICWA].”