In re Rebecca R. CA5 ( 2013 )

Filed 8/1/13 In re Rebecca R. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
In re Rebecca R., a Person Coming Under the
Juvenile Court Law.
FRESNO COUNTY DEPARTMENT OF F066061
SOCIAL SERVICES,
(Super. Ct. No. 11CEJ300064-4)
Plaintiff and Respondent,
v. OPINION
IGNACIO R.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. Brian M.
Arax, Judge.
Laloni A. Montgomery, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kevin Briggs, County Counsel, and William G. Smith, Deputy County Counsel,
for Plaintiff and Respondent.
-ooOoo-
Appellant Ignacio R. (father) challenges the disposition in this case. He contends
(1) the juvenile court erred in failing to assure he received adequate notice of the
proceedings; (2) he was denied his right to counsel; (3) the jurisdictional finding was not
supported by substantial evidence; (4) substantial evidence did not support the denial of
reunification services; (5) required findings on denial of reunification were not made by
the juvenile court; and (6) the juvenile court failed to comply with the Indian Child
Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA). We conclude all of the issues
raised by father are either forfeited or without merit, with the exception of the ICWA
issue, which we will remand to the juvenile court for a limited purpose.
FACTUAL AND PROCEDURAL SUMMARY
On April 23, 2012, the Fresno County Department of Social Services (the
Department) filed a Welfare and Institutions Code section 3001 petition on behalf of
Rebecca R., then seven months old. Ignacio is the presumed father. The petition alleged
that Rebecca’s mother’s (mother) substance abuse affected her ability to provide care,
supervision, and protection of Rebecca, and drug paraphernalia was found in a location
where Rebecca could access it. Father’s whereabouts were listed as unknown, but he was
shown on the birth certificate as Rebecca’s father.
At the time Rebecca’s petition was filed, a case already was pending on behalf of
her sister, Isabella, and two half siblings (collectively siblings). These three children had
been removed from the home in March 2011, and the juvenile court assumed jurisdiction
over them on March 30, 2011.
Two declarations of due diligence regarding attempts to locate father were filed.
The first declaration of due diligence lists the attempts to locate father in the siblings’
case. The documentation attached to the declaration of due diligence refers to only the
1All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
2.
three children who were the subject of the petition filed in March 2011. The second
declaration of due diligence attempts to describe a search for Rebecca’s father. An
examination of the supporting documentation, however, revealed those documents were
the same as those attached to the declaration of due diligence regarding Rebecca’s
siblings, and they do not refer to Rebecca or contain any information about her. On
May 9, 2012, the juvenile court found, based on these declarations, that the Department
had exercised due diligence in attempting to locate Rebecca’s father.
On May 23, 2012, a first amended petition was filed on behalf of Rebecca, adding
allegations as to father. The amended petition alleged father had a history of substance
abuse that negatively affected his ability to provide care and supervision of Rebecca, the
substance abuse contributed to an unstable lifestyle and ongoing arrests for criminal
offenses, and father was in the home on the day Rebecca was placed in custody and had
failed to protect Rebecca from mother’s substance abuse.
On June 6, 2012, the juvenile court held a 12-month review hearing on the
siblings’ case and also a scheduled jurisdictional and dispositional hearing on Rebecca’s
case. Father was represented by counsel in the siblings’ case, but counsel made clear she
did not represent father in Rebecca’s case.
At the July 25, 2012, interim review hearing in Rebecca’s case, the juvenile court
found all three allegations pursuant to section 300, subdivision (b) to be true.
On October 26, 2012, a combined jurisdictional and dispositional hearing was held
on the section 387 supplemental petition in Rebecca’s case. Father appeared in person
with counsel. Counsel for father asked the juvenile court to vacate the jurisdictional
findings that pertained to father because “he was not present.” Counsel also asked the
juvenile court to reject the recommendation that reunification services be denied and
asked to be provided services and visitation.
The juvenile court denied the request to vacate the jurisdictional findings. The
juvenile court later asked, “Are we okay on notice [counsel] as far as now that we have
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him physically present?” Counsel replied, “Yes.” The juvenile court proceeded to make
a finding that ICWA did not apply. Thereafter, the juvenile court referred to information
found in the social study, with references to specific pages, and found that the provisions
of section 361.5, subdivision (b)(10) and (13) were “adequately proven.” The juvenile
court denied reunification services pursuant to these provisions.
DISCUSSION
Father raises several challenges to the disposition order in this case. He contends
(1) the juvenile court erred in failing to assure he received adequate notice of the
proceedings; (2) he was denied his right to counsel; (3) the jurisdictional finding was not
supported by substantial evidence; (4) substantial evidence did not support the denial of
reunification services; (5) required findings on denial of reunification were not made by
the juvenile court; and (6) the juvenile court failed to comply with ICWA.
I. Notice and Due Process
Father contends the Department made insufficient efforts to locate him and
provide him notice of the proceedings, thus depriving him of due process. The
Department contends reasonable efforts were made and there was no due process
violation. We conclude any defects in notice were waived and father has forfeited this
issue.
“In juvenile dependency proceedings, due process requires parents be given notice
that is reasonably calculated to advise them an action is pending and afford them an
opportunity to defend. [Citation.]” (In re Jasmine G. (2005) 127 Cal.App.4th 1109,
1114.) Section 316.2, subdivision (b) requires that a presumed father be provided notice
at his last and usual place of abode by certified mail, return receipt requested. The notice
must state that the child is subject to proceedings under section 300 and that the
proceedings could result in the termination of parental rights and adoption of the child.
(Ibid.) If the presumed father’s whereabouts are unknown, the child welfare agency must
act with diligence to locate him. (In re Justice P. (2004) 123 Cal.App.4th 181, 188
4.
(Justice P.).) Reasonable diligence implies “a thorough, systematic investigation and an
inquiry conducted in good faith. [Citation.]” (Ibid.)
Notice and Due Process Requirements
“The child dependency statutory scheme requires parents be notified of all
proceedings involving the child. [Citation.] When a social worker, police officer or
probation officer takes a child into protective custody, that person must immediately
inform the parent and provide a written statement which explains the parent’s procedural
rights and the preliminary stages of the dependency investigation and hearing. [Citation.]
“The parent must also be notified of the detention hearing and given a copy of the
dependency petition ‘if the whereabouts of each parent … can be ascertained by due
diligence .…’ [Citation.] If it appears the parent cannot read, notice may be given orally.
[Citation.] The parent must be informed of the conditions under which the child will be
released, the hearings which may be required, the right to counsel, the privilege against
self-incrimination and appeal rights. [Citation.] The parent must also be notified of each
review hearing by mail or personal service. [Citation.]” (In re Raymond R. (1994) 26
Cal.4th 436, 440 (Raymond R.).)
“Parents are entitled to due process notice of juvenile court proceedings affecting
the care and custody of their children .… Due process requires ‘notice reasonably
calculated, under all the circumstances, to apprise interested parties of the pendency of
the action and afford them an opportunity to present their objections.’ [Citation.] The
means employed to give a party notice for due process purposes must be such as one,
desirous of actually informing the party, might reasonably adopt to accomplish it.
[Citations.]
“If the whereabouts of a parent are unknown, the issue becomes whether due
diligence was used to locate the parent. [Citations.] The term ‘reasonable or due
diligence’ ‘“denotes a thorough, systematic investigation and inquiry conducted in good
faith.”’ [Citation.] Due process notice requirements are deemed satisfied where a parent
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cannot be located despite a reasonable search effort and the failure to give actual notice
will not render the proceedings invalid. [Citation.]” (In re Claudia S. (2005) 131
Cal.App.4th 236, 247.)
Father here was identified as a presumed father in the petition at the outset of these
proceedings, with a post office box as the address. As a presumed father, he was entitled
to notice of the proceedings and an opportunity to appear. Once this occurs, both the
constitutional requirements of due process and the statutory requirements are satisfied.
(§§ 316.2, subd. (b), 290.2, subd. (a)(2), 291, subd. (e)(1); In re Karla C. (2003) 113
Cal.App.4th 166, 179; In re Paul H. (2003) 111 Cal.App.4th 753, 760.) To satisfy these
due process rights, the juvenile court must ask the mother at the detention hearing or soon
afterward about the identity of any alleged or presumed father. (§ 316.2, subd. (a); Cal.
Rules of Court, rule 5.635(b); Paul H., at p. 760.)
Section 291, the statute governing notice of the jurisdictional and dispositional
hearings, requires that where, as here, the parent of a detained minor is not present at the
detention hearing, the parent must be notified of the jurisdictional hearing by personal
service or by certified mail, return receipt requested. (§ 291, subd. (e)(1).) Notice to an
alleged father must be given “at his last and usual place of abode by certified mail return
receipt requested alleging that he is or could be the father of the child.” (§ 316.2, subd.
(b).) When an alleged father’s address is unknown and cannot be determined with due
diligence, notice by publication is sufficient for due process. (In re Emily R. (2000) 80
Cal.App.4th 1344, 1352.) If supported by substantial evidence, a trial court’s findings
that notice by mail and by publication were proper will be upheld on appeal. (Id. at p.
1354.)
Here, although the Department filed declarations of due diligence setting forth all
the efforts presumably taken to locate father, the declarations appear to be defective on
their face. First, the attachments to the declarations state that there were efforts to locate
the father of Isabella, who is Rebecca’s sibling. The children identified by birth dates in
6.
the letters that were sent were Isabella and her half siblings; Rebecca was not identified
by name or birth date. Furthermore, there is no evidence that any of these mailings were
sent by certified mail, return receipt requested, or that they included copies of the section
300 petition or any other pleadings, such as notices of hearings, filed in Rebecca’s case.
Lastly, there is no indication in the record that the Department took the next step of
seeking to notify father by publication or that the juvenile court required notification by
publication in order to satisfy due process.
As we discuss below, had father not waived the defect in notice, we would
conclude that the Department did not satisfy due diligence and notice was defective.
Waiver
At the time law enforcement and social workers arrived to investigate a referral
and place Rebecca into custody, father was observed looking out the window of the
home. Father was not found in the home after law enforcement and social workers
entered. A nearby back window, however, was open and it had no screen. The bedroom
of the home had adult male clothing in the closet. At the time Rebecca was taken into
custody, there was an active warrant for father’s arrest. Evidently, father fled the scene
when law enforcement and social workers arrived to investigate the referral and place
Rebecca in custody.
Father was represented by counsel throughout proceedings related to Rebecca’s
three siblings, but this same counsel was not appointed formally to represent father in
Rebecca’s case until October 26, 2012, at the combined jurisdictional and dispositional
hearings for Rebecca. Father first physically appeared in Rebecca’s case at that time.
Father now contends that efforts to locate him after he fled were insufficient and
the juvenile court’s finding on May 9, 2012—the Department had made reasonable
efforts to try and locate him—was not supported by the evidence. Our problem with
father’s contention is that he failed to raise this objection in the juvenile court. He asserts
in his opening brief that he affirmatively failed to waive the defective notice at the
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October 26, 2012, hearing; therefore, the issue is preserved for appeal and is not forfeited.
Father misconstrues the law on this point.
Parents are not permitted to raise for the first time on appeal issues that could have
been raised in the juvenile court. Any other rule would allow a party to play fast and
loose with the administration of justice by deliberately standing by without making an
objection, of which he or she is aware, and thereby permitting the proceedings to
conclude, which he or she may acquiesce in, if favorable, and which he or she may avoid,
if not. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339; In re Aaron B. (1996)
46 Cal.App.4th 843, 846.)
Here, when the proceedings commenced on October 26, 2012, after the juvenile
court had called the cases involving all four children, the juvenile court asked for
appearances for the record. Counsel for father stated she was appearing “on behalf of the
father,” who was present in court; counsel did not limit her appearance in Rebecca’s case.
There is no indication this was other than a general appearance. Later during that same
proceeding, counsel informed the juvenile court her appointment in Rebecca’s case had
not been formally ordered, which the juvenile court promptly did.
After being formally appointed to represent father in Rebecca’s case, counsel did
not object to the lack of notice or assert any defect in notice. Instead, counsel asked for
two jurisdictional findings to be vacated as to father and found not true. This request was
followed with an objection to the denial of reunification services in the recommended
disposition. Father, through counsel, requested reunification services be provided.
A parent’s general appearance will be considered a waiver of the parent’s right to
challenge adequacy of notice of the proceedings. (In re B.G. (1974) 11 Cal.3d 679, 688-
692 (B.G.); In re Gilberto M. (1992) 6 Cal.App.4th 1194, 1198; Raymond R., supra, 26
Cal.App.4th at pp. 440-441; In re S.B. (2004) 32 Cal.4th 1287, 1293.) Here, father, with
his counsel, made a general appearance on October 26, 2012, not a special appearance,
and did not challenge any defective notice. Nor does the record disclose any section 388
8.
petition based upon a due process challenge and lack of notice. (Ansley v. Superior Court
(1986) 185 Cal.App.3d 477, 481, 487-488.)
“It is not always possible to litigate a dependency case with all parties present.…
If a missing parent later surfaces, it does not automatically follow that the best interests of
the child will be promoted by going back to square one and relitigating the case.
Children need stability and permanence in their lives, not protracted legal proceedings
that prolong uncertainty for them. Further, the very nature of determining a child’s best
interests calls for a case-by-case analysis, not a mechanical rule.” (Justice P., supra, 123
Cal.App.4th at p. 191.)
In this case, father fled when social services arrived to investigate and take
Rebecca into custody. Father was represented by counsel in related dependency
proceedings, and counsel was aware of the related proceeding involving Rebecca and was
present at the four hearings in Rebecca’s case that preceded the October 26, 2012,
hearing where father first formally appeared. At his first appearance in Rebecca’s case,
father made a general appearance and did not raise defective notice as an issue. Timely
objection to statutory notice defects is required to permit the court to cure any error by
ordering proper notice or allowing a continuance. (See In re Riva M. (1991) 235
Cal.App.3d 403, 411-412.) Under these circumstances, we conclude that father has
forfeited any claim of defective notice and failure to comply with due process. (Justice
P., supra, 123 Cal.App.4th at p. 191.)
Our finding of waiver is further buttressed by the two most important legislative
goals underlying dependency proceedings -- prompt resolution of the child’s custody
status and provision of a stable environment in which to develop. (In re Erika W. (1994)
28 Cal.App.4th 470, 476.) To allow father to remain silent in the juvenile court and then
later raise this issue does not further the legislative goals.
Even defects in notice to acquire jurisdiction of the person are waiveable. (In re
B.G., supra, 11 Cal.3d at p. 689.) Accordingly, when no objection was raised in the
9.
juvenile court at the October 26, 2012, hearing, the issue was forfeited and the juvenile
court did not err in proceeding with the case.
II. Right to Counsel
Father contends his right to counsel was abridged because counsel was not
appointed to represent him at the inception of the case. He is incorrect.
In dependency proceedings, parents have a statutory right, and in some cases a due
process right, to competent counsel. (§§ 317, 317.5, subd. (a); In re Meranda P. (1997)
56 Cal.App.4th 1143, 1153, fn. 6; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1659.)
Section 317, subdivision (a)(1) provides in relevant part that when “it appears to the court
that a parent or guardian of the child desires counsel … the court may appoint
counsel .…”
A prerequisite to appointment of counsel is some indication from the indigent
parent that he or she desires counsel be appointed in the case. (In re Ebony W. (1996) 47
Cal.App.4th 1643, 1647-1648 (Ebony W.).) A juvenile court has no obligation to appoint
counsel for a parent who is absent from the proceedings, and failure to appoint counsel
for an absent parent does not infringe statutory or due process rights to counsel. (Id. at
pp. 1645-1646.)
Here, father first appeared on October 26, 2012, in Rebecca’s case and counsel
formally was appointed for him on that date immediately after he indicated a desire for
counsel. Although father argues the appointment should have been made earlier because
his counsel in the related cases was present at earlier proceedings involving Rebecca and
her siblings, there was no request made by counsel on father’s behalf that she be
appointed in Rebecca’s case. Father’s counsel affirmatively indicated the contrary to the
juvenile court -- that it would be inappropriate to appoint her in Rebecca’s case until such
time as father appeared in the case.
Thus, father’s right to counsel was not abridged. (Ebony W., supra, 47
Cal.App.4th at pp. 1645-1646.)
10.
III. Substantial Evidence
Father contends the juvenile court’s jurisdictional findings and the order denying
reunification services were not supported by substantial evidence. We disagree.
Standard of Review
On a challenge to the sufficiency of the evidence to support a finding, we apply
the substantial evidence standard of review. (In re Dakota H. (2005) 132 Cal.App.4th
212, 228.) In doing so, we view the evidence in a light most favorable to the juvenile
court’s findings. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) If there is substantial
evidence supporting the finding or judgment, our duty ends and the finding or judgment
must not be disturbed. (In re Precious J. (1996) 42 Cal.App.4th 1463, 1472.) We also
note that we review judicial action and not judicial reasoning. (People v. Lawley (2002)
27 Cal.4th 102, 175 (conc. opn. of Brown, J.).)
“In juvenile cases, as in other areas of the law, the power of an appellate court
asked to assess the sufficiency of the evidence begins and ends with a determination as to
whether or not there is any substantial evidence, whether or not contradicted, which will
support the conclusion of the trier of fact. All conflicts must be resolved in favor of the
respondent and all legitimate inferences indulged in to uphold the verdict, if possible.
Where there is more than one inference which can reasonably be deduced from the facts,
the appellate court is without power to substitute its deductions for those of the trier of
fact.” (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.)
Jurisdictional Findings
Section 300 and its subdivisions describe those minor children over whom the
juvenile court may exercise its dependency jurisdiction. The juvenile court’s
jurisdictional finding that a child falls within one of these statutory descriptions must be
supported by a preponderance of the evidence. (§ 355, subd. (a); Cynthia D. v. Superior
Court (1993) 5 Cal.4th 242, 248.)
11.
On review, we determine whether the juvenile court’s jurisdictional finding was
supported by substantial evidence. (In re P.A. (2006) 144 Cal.App.4th 1339, 1344.) In
so doing, we “must accept the evidence most favorable to the order as true and discard
the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact.
[Citation.]” (In re Casey D. (1999) 70 Cal.App.4th 38, 53.) Under this standard, the
juvenile court, not this court, assesses the credibility of witnesses, resolves conflicts in
the evidence, and determines where the weight of the evidence lies. (Id. at pp. 52-53.)
“We affirm the rulings of the juvenile court if there is reasonable, credible evidence of
solid value to support them. [Citations.]” (In re Matthew S. (1996) 41 Cal.App.4th 1311,
1319.)
Because the juvenile court in this case assumed dependency jurisdiction over
Rebecca under subdivision (b) of section 300 based upon several separate allegations,
two of which pertained to father, the juvenile court’s ruling must be affirmed if there was
sufficient evidence to support a finding of jurisdiction under any of those allegations. (In
re Jonathan B. (1992) 5 Cal.App.4th 873, 875-876.)
The thrust of father’s argument is that the allegations of the petition contained
conclusions without facts. This contention fails. The first amended petition, which the
juvenile court found true on July 25, 2012, contained a concise statement of facts.
The juvenile court found true two findings as to father pursuant to subdivision (b)
of section 300. First, that his history of substance abuse negatively affected his ability to
provide adequate care, supervision, and protection of his child, and that Rebecca was at
substantial risk of serious physical harm or illness as result. In support of this allegation
the Department alleged father abused methamphetamine, cocaine, and alcohol. Despite
receiving substance abuse treatment from the Department, he still had an unstable
lifestyle with ongoing arrests for drug-related charges. Second, father failed to protect
Rebecca from mother’s substance abuse because on April 20, 2012, law enforcement
found drug paraphernalia, a glass pipe, inside mother’s purse and mother stated to the
12.
social worker she had used the day prior. Father was found to be in the home at the time
law enforcement arrived.
The evidence supporting the jurisdictional findings is found in the Department’s
social study prepared for the June 6, 2012, hearing date. A social study and the hearsay
statements contained there are admissible and constitute competent evidence upon which
to base a finding. (In re Malinda S. (1990) 51 Cal.3d 368, 382.) The social study stated
that on April 20, 2012, when the social worker and law enforcement arrived at mother’s
house to investigate a crisis referral, father was present in the home, in violation of a
restraining order. Mother admitted having used methamphetamine the day before; the
glass pipe in her purse was in Rebecca’s reach as the purse was on the floor where
Rebecca was crawling.
This same social study report stated that in the dependency involving Isabella,
Rebecca’s sibling, it had been recommended that father participate in intensive outpatient
substance abuse treatment. He did not participate because he had been incarcerated and
upon release failed to maintain contact with the Department. A warrant subsequently was
issued in November 2011 for father’s arrest on charges of possession of a controlled
substance, driving under the influence of a controlled substance, and driving with a
suspended license. In March 2012, father was arrested and charged with possession of a
controlled substance, possession of burglary tools, and providing false information.
The social study set forth father’s extensive criminal history for burglary,
possession of a stolen vehicle, theft of personal property, and possession of burglary
tools. It also noted that father previously was physically abusive to the children, addicted
to an illegal substance, and had engaged in domestic violence against mother in front of
Rebecca.
Father’s chronic substance abuse problem, his failure or inability to participate in
treatment because of his decision to engage in criminal activity and suffer the
consequence of incarceration, his failure to maintain contact with the Department and
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address his issues in Isabella’s case, and his failure to protect Rebecca and prevent her
having access to drug paraphernalia all supported the jurisdictional findings.
The Legislature has recognized that, in general, substance abuse has a negative
effect on the home environment and the safety of children living in that environment.
(§ 300.2 [“The provision of a home environment free from the negative effects of
substance abuse is a necessary condition for the safety, protection and physical and
emotional well-being of the child.”].) When a parent’s drug problem amounts to a
lifestyle problem, the home environment usually is permeated with the negative effects of
drug abuse. A parent’s drug-centered lifestyle can be found, in and of itself, to expose a
child to substantial risks -- the risk that the child’s physical and emotional well-being will
be seriously compromised and the risk that the child will ingest drugs. (In re Rocco M.
(1991) 1 Cal.App.4th 814, 825-826.) Using drugs while responsible for a child’s welfare
and leaving drugs within a child’s reach simply are not “parental acts.” (In re Leticia S.
(2001) 92 Cal.App.4th 378, 382.)
In this case, there was ample evidence to support the juvenile court’s jurisdictional
finding that there was a substantial risk Rebecca would suffer serious physical harm or
illness by virtue of father’s substance abuse and its impact on his ability to supervise and
care for Rebecca. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.)
To the extent father is arguing that Rebecca did not actually suffer any serious
harm and therefore was not at risk, we reject that contention. The statutory scheme is
designed to avert harm to a child. A child need not have suffered harm to support an
assumption of jurisdiction if the risk of harm is present. (In re Diamond H. (2000) 82
Cal.App.4th 1127, 1136.)
Finally, father failed to dispute the jurisdictional finding specifically pertaining to
mother under subdivision (b) of section 300, which the juvenile court found true.
“Section 300 contemplates that jurisdiction may be based on any single subdivision.” (In
re Shelley J. (1998) 68 Cal.App.4th 322, 330.) The jurisdictional finding against mother
14.
was sufficient to bind father as well. (In re Alysha S. (1996) 51 Cal.App.4th 393, 397
(Alysha S.); see In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1552-1554 (Jeffrey P.).)
The minor is a dependent if the actions of either parent bring him or her within one of the
statutory definitions. (Alysha, at p. 397.) “This accords with the purpose of a
dependency proceeding, which is to protect the child, rather than prosecute the parent.
[Citation.]” (Ibid.)
Section 302, subdivision (a) empowers the juvenile court to assume jurisdiction
over a child described in section 300 regardless of whether the child is in the physical
custody of both parents or in the sole legal or physical custody of one parent at the time
the event or condition occurred that brought the child within the jurisdiction of the court.
“The department of social services ‘is not required to prove two petitions, one against the
mother and one against the father, in order for the court to properly sustain a petition
[pursuant to § 300] or adjudicate a dependency.’ [Citation.]” (Jeffrey P., supra, 218
Cal.App.3d at p. 1554.) A finding of jurisdiction sustainable as to one parent is
sustainable as to both. (Alysha S., supra, 51 Cal.App.4th at p. 397.)
Thus, we conclude the assumption of jurisdiction was supported by substantial
evidence.
Denial of Reunification Services
Father also contends there was not substantial evidence supporting the juvenile
court’s order denying reunification services to him pursuant to section 361.5, subdivision
(b)(10) and (13). Again, his claim is without merit.
We initially note that father did not ask for a contested hearing on these
recommended findings. Instead, he affirmatively represented that he was “not asking for
a trial but he’s objecting to not being given the opportunity to reunify with Rebecca …
and would like visitation.”
Section 361.5, subdivision (b) constitutes recognition by the Legislature “that it
may be fruitless to provide reunification services under certain circumstances. [Citation.]
15.
Once it is determined one of the situations outlined in subdivision (b) applies, the general
rule favoring reunification is replaced by a legislative assumption that offering services
would be an unwise use of governmental resources. [Citation.]” (In re Baby Boy H.
(1998) 63 Cal.App.4th 470, 478 (Baby Boy H.); Renee J. v. Superior Court (2001) 26
Cal.4th 735, 744-745 [agreeing with Baby Boy H.’s understanding of the legislative
purpose in enacting § 361.5, subd. (b)(10)].) The exceptions to the rule requiring
provision of reunification services listed in subdivision (b) “demonstrate a legislative
determination that in certain situations, attempts to facilitate reunification do not serve
and protect the child’s interests.” (Baby Boy H., at p. 474.)
Under section 361.5, subdivision (b)(10), reunification services need not be
ordered where a child previously was removed from the custody of a parent, the parent
failed to reunify with the child, and the parent failed to make reasonable efforts to correct
the problems that led to the removal. The statute was enacted in recognition that despite
the basic policy of seeking to reunify dependent minors with their parents, in some
circumstances “attempts to facilitate reunification do not serve and protect the child’s
interests,” and would be an exercise in futility. (Baby Boy H., supra, 63 Cal.App.4th at
p. 474; see In re Jasmine C. (1999) 70 Cal.App.4th 71, 78; cf. Deborah S. v. Superior
Court (1996) 43 Cal.App.4th 741, 750-751.)
Section 361.5, subdivision (b)(13) provides: “Reunification services need not be
provided to a parent … when the court finds, by clear and convincing evidence, any of
the following: [¶] … [¶] … That the parent … 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.”
16.
With respect to the section 361.5, subdivision (b)(10) grounds for denial of
reunification services, the evidence established that Isabella, Rebecca’s sister, had been
removed from father’s care on March 28, 2011; reunification services were ordered for
father in that case; father failed to participate in services or maintain contact with the
Department; and services were terminated on December 7, 2011. These facts satisfy the
requirements of section 361.5, subdivision (b)(10).
As for section 361.5, subdivision (b)(13), evidence supports a denial of
reunification as well. The evidence established that father admitted using
methamphetamine for the past 10 years; he had a history of abusing illegal substances
and alcohol since he was 22 years of age; and he had never maintained sobriety for any
length of time. Between June 15 and December 7, 2011, father was offered substance
abuse treatment services, but failed to participate.
Father’s admitted drug use satisfies the first prong of section 361.5, subdivision
(b)(13) in that it establishes current and chronic drug use. The second prong, resistance
to treatment within a three-year period immediately prior to the filing of the petition on
behalf of Rebecca, is satisfied by the failure to participate in services, including substance
abuse services, which were offered during June 15 to December 7, 2011. Resistance to
treatment can be manifested by failing to attend treatment programs, dropping out of
treatment programs, or resuming drug use after participating in a program. (Laura B. v.
Superior Court (1998) 68 Cal.App.4th 776, 779-780; In re Brooke C. (2005) 127
Cal.App.4th 377, 382.)
We conclude the denial of reunification services was supported by substantial
evidence.
IV. Required Findings
Father contends the juvenile court “failed to make required findings to support its
orders denying reunification services.” (Boldface and capitalization omitted.) Again, the
record establishes that father has forfeited any claim of error.
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We first note father has failed to identity any finding, let alone any statutorily
required finding, the juvenile court failed to make with respect to section 361.5,
subdivision (b)(10) and (13) that he contends should have been made. The juvenile court
articulated the basis for its finding that reunification services should be denied pursuant
to section 361.5, subdivision (b)(10) and (13), including reference to specific pages of
the social study.
The general rule is that an objection must be raised in the juvenile court to
preserve an issue for appeal. (In re Christopher B. (1996) 43 Cal.App.4th 551, 558
[“nonjurisdictional issues must be the subject of objection or appropriate motions in the
juvenile court”].) Findings of fact generally are required in dependency proceedings only
if they are requested by a party to the proceeding. (In re Marcel N. (1991) 235
Cal.App.3d 1007, 1013-1014.) A parent may not assert on appeal a failure to comply
with a statutory requirement if the alleged failure was not asserted in the juvenile court.
(In re Dakota S. (2000) 85 Cal.App.4th 494, 502.) The failure to request findings
constitutes a waiver of factual findings and legal conclusions. (In re Randi D. (1989) 209
Cal.App.3d 624, 631.)
Moreover, necessary findings can be implied if supported by substantial evidence.
(In re Steve W. (1990) 217 Cal.App.3d 10, 27.) As discussed in part III., ante, substantial
evidence supported the section 361.5, subdivision (b)(10) and (13) findings.
V. ICWA
When father first appeared in this case on October 26, 2012, it was a combined
jurisdictional and dispositional hearing for Rebecca on a section 387 petition. Nowhere
in the transcript of that hearing was father ever asked if he had any Indian ancestry. The
juvenile court proceeded to conduct a combined jurisdictional and dispositional hearing
for Rebecca on October 26.
Father maintains that failure to make affirmative inquiry of him regarding possible
Indian ancestry violates state-mandated requirements. Father relies on section 224.3,
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subdivision (a), which establishes an affirmative and continuing duty of the juvenile court
and the county welfare department to inquire in all dependency proceedings whether a
child for whom a section 300 petition has been filed is or may be an Indian child.
California Rules of Court, rule 5.481(a)(1) also requires the Department to include with
any section 300 petition an “Indian Child Inquiry Attachment (form ICWA-010(A))”
affirmatively disclosing whether an Indian child inquiry was made, and, if so, what
information was learned. This was done as to mother. The form attached to the section
300 petition states mother was interviewed and she reported Rebecca had no known
Indian ancestry.
California Rules of Court, rule 5.481(a)(2) similarly requires a juvenile court at the
first appearance of a parent in any dependency case to order the parent to complete a
“Parental Notification of Indian Status (form ICWA-020).” Completion of this form
enables a parent to claim or deny affirmatively Indian heritage. There is no indication in
the record this was done in Rebecca’s case with father. Later, however, in the October
26, 2012, proceeding, the juvenile court did make a specific finding that Rebecca was not
an Indian child and ICWA did not apply. Father, who was at this time represented by
counsel and was present in court, did not object.
Although acknowledging the juvenile court failed to comply with the California
Rules of Court and inquire of father about Indian ancestry, the Department maintains that
father’s failure to assert affirmatively in this appeal that he has Indian ancestry and his
failure to object in the juvenile court to the finding that ICWA did not apply constitute a
forfeiture of this issue.
As a preliminary matter, we reject the Department’s contention that father’s failure
to raise this point in juvenile court precludes its consideration on appeal. “The generally
accepted rule in dependency cases is that the forfeiture doctrine does not bar
consideration of ICWA notice issues on appeal. [Citation.]” (In re Alice M. (2008) 161
Cal.App.4th 1189, 1195.) “A parent in a dependency proceeding is permitted to raise
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ICWA notice issues not only in the juvenile court, but also on appeal even where, as here,
no mention was made of the issue in the juvenile court.” (In re Justin S. (2007) 150
Cal.App.4th 1426, 1435.)
Accordingly, we conclude that because father’s ICWA challenge was raised in a
timely appeal from the dispositional order, and the juvenile court has a sua sponte duty to
assure compliance with the notice requirements of the ICWA, father’s ICWA challenge is
cognizable. (In re H.A. (2002) 103 Cal.App.4th 1206, 1213.) The record reflects the
juvenile court failed to fulfill its sua sponte obligation.
On motion by father, this court ordered on January 3, 2013, that the clerk’s record
in Isabella’s case, up to and including October 26, 2012, augment the record on appeal in
Rebecca’s case. There was no compliance with this order. The deputy clerk’s affidavit
filed with this court January 18, 2013, erroneously states that all documents in Isabella’s
dependency case were included with the record on appeal in Rebecca’s case. A cursory
review of the record on appeal, however, disclosed that not even the original petition in
Isabella’s case was included, let alone any subsequent orders that may reveal an ICWA
finding. The only documents in the record on appeal were those filed on or after the
original petition in Rebecca’s case. Since the petition on behalf of Isabella was filed over
a year prior to Rebecca’s petition, clearly, documents covered by this court’s order exist
but were not provided. For some reason, appellate counsel did not follow through to
assure compliance with the augmentation. Hence, there is nothing in the record to
indicate whether or not ICWA was found to apply in Isabella’s case, a finding that would
be determinative in Rebecca’s case since the two children have the same mother and
father. Consequently, the order will be reversed and remanded for the limited purpose of
complying with the ICWA requirements.
DISPOSITION
The order is reversed and the matter is remanded for the limited purposes of
(1) conducting an ICWA inquiry of father, and (2) providing proper ICWA notice if the
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juvenile court has reason to believe Rebecca is or may be an Indian child. If the juvenile
court determines there is no reason to believe that ICWA applies after conducting the
ICWA inquiry of father, the juvenile court shall reinstate its order. Should the juvenile
court determine that there is sufficient reason to trigger the notice requirements under
ICWA and the California Rules of Court, it shall direct the Department to provide proper
ICWA notice to the BIA and all identified tribes. The Department shall document its
efforts to provide such notice by filing such documentation and any and all responses
received with the juvenile court. If within 60 days of sending proper notice under ICWA
to the BIA and any identified tribes an identified tribe responds by confirming that
Rebecca is or may be eligible for membership, the juvenile court shall proceed pursuant
to the terms of IWCA. If no tribe so responds, the juvenile court shall reinstate its order.
_____________________
CORNELL, Acting P.J.
WE CONCUR:
_____________________
DETJEN, J.
_____________________
FRANSON, J.
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