Opinion
B205739 B190397
4-25-2008
JAVIER C. and F.F., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Javier C., in pro. per., for Petitioner. Victoria Doherty for Petitioner F.F. No appearance for Respondent. Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Judith A. Luby, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED
F.F. and Javier C. (collectively "parents"), the mother and father of dependent child A.C. (born in 2007), petition for extraordinary writ review of an order, pursuant to Welfare and Institutions Code section 361.5, subdivision (b), denying them reunification services. In his brief in propria persona, Javier contends the dependency court was unfair to him because it failed to recognize his changed mental state and his new, sincere commitment to being a responsible parent. F.s appointed counsel declined, pursuant to Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, to file a brief. We find no error and deny both parents petitions.
All undesignated code section references are to the Welfare and Institutions Code.
BACKGROUND
F. and Javier both have a long history with the dependency system. On January 24, 2003, the Los Angeles County Department of Children and Family Services (DCFS) removed two older children, one of whom was Javiers child, from F.s custody. On August 19, 2004, after receiving reunification services for more than 18 months, the dependency court terminated F.s and Javiers parental rights to their respective children. F. appealed that order, and we affirmed. (In re Alicia C. (Aug. 25, 2005, B181582) [nonpub. opn.].) In concluding that the record supported the courts finding that the children would not benefit from continuing their relationship with F., we observed that F. had not visited the children regularly, the children did not show a strong attachment to her, and "F. has a continuing drug problem, has not completed the reunification plan, and has remained in a violent relationship with Javier who is now her husband." We also noted that Javier was incarcerated during the dependency proceedings. (Ibid.) In September 2005, a daughter, J.C., was born. Both the baby and F. had phencyclidine (PCP) in their systems. DCFS detained J.C. On November 28, 2005, the dependency court denied F. and Javier reunification services with J.C., noting the parents previous record with the dependency system, their drug problems, missed drug tests, failed drug tests, and general lack of compliance with court-ordered programs. On April 12, 2006, the court terminated their parental rights. F. appealed, and we affirmed the dependency courts order, holding that substantial evidence supported the courts finding that it would not benefit J.C. to continue her relationship with F. and that the requirements of the federal Indian Child Welfare Act (ICWA) had been met. (In re J.C. (Dec. 28, 2006, B190397) [nonpub. opn.].) A.C. was born in 2007. She tested positive for PCP, although F. denied using drugs. DCFS detained A.C., who had seizures at the hospital, possibly from drug withdrawal. DCFS filed a petition that included allegations that A.C. tested positive for PCP at birth, the parents had failed to reunify with their other children in earlier dependency proceedings, F. had a record of drug abuse, and both parents had a history of domestic violence. On November 5, 2007, at the jurisdiction/disposition hearing, the court sustained the petition, continued the hearing regarding both parents reunification services, and ordered DCFS immediately to provide F. with appropriate referrals and services and to investigate Javiers Indian heritage status.
At the hearing on January 23, 2008, the DCFS report described the parents prior criminal and dependency histories, including a recent incident in July 2007 at F.s home during which Javier, by then separated from F., and while under the influence of PCP, attempted to rape F.s cousin and, after being arrested, kicked out the window of a police car. The police report noted that Javier said he was unable to control himself, he "ha[d] a drug problem and wanted help because he was unable to stop using PCP[,]" and he had a black eye and a bandage around his head from F. hitting him. Counsel for DCFS and for the children both urged the court to deny reunification services. F.s counsel requested that the court grant F. reunification services and asserted that F. was visiting A.C. regularly and was making progress on reunification before she was hit by a car, injured, and immobilized; counsel for DCFS disagreed, asserting that before F. was hit by the car she had been discharged from her drug rehabilitation program before completing it. Javiers counsel also requested reunification services and said that Javier was planning to enroll in a 9- to 12-month residential drug treatment program. The court found by clear and convincing evidence that reunification services were not in A.C.s best interest, denied services, pursuant to section 361.5, subdivisions (b)(10), (b)(11), and (b)(13), and set a section 366.26 permanent plan hearing for May 21, 2008. The court also ordered DCFS to send out new ICWA notices to potentially concerned tribes. Javier and F. filed timely notices of intent to seek the instant writ.
Section 361.5, subdivision (b)(10) provides, in pertinent part, "Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶] (10) That the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian . . . and that . . . this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian."
Section 361.5, subdivision (b)(11) provides, in pertinent part, "Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, . . .: [¶] (11) That the parental rights of a parent over any sibling or half sibling of the child had been permanently severed . . . and that . . . this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from the parent."
Section 361.5, subdivision (b)(13) provides, in pertinent part, "Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, . . .: [¶] (13) That the parent or guardian of the child has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought the child to the courts attention, or has failed or refused to comply with a program of drug or alcohol treatment [pursuant to a dependency case plan] on at least two prior occasions, even though the programs identified were available and accessible."
DISCUSSION
I. Javier
Javiers brief in propria persona reads, "I feel the order on 1-23-08 was unfair to me because now Im in a positive state of mind. Ive changed my behavior and thinking to become a positive father to my children. . . . I know the change that Ive made [and] I truly love my children and want them back in my life. My past is over[.]" Whether we view Javiers petition as challenging the sufficiency of the evidence or contending that the trial court abused its discretion in denying him reunification services, we deny the petition for lack of merit.
Under the substantial evidence standard of review, Javier bears the burden to show insufficient evidence. We review the evidence in the light most favorable to the dependency courts order, drawing all reasonable inferences and resolving doubts in favor of upholding the ruling. (See In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) We must affirm the dependency courts factual findings if there is any substantial evidence that is reasonable, credible, and of solid value to support those findings. (See Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 119.) Under the abuse of discretion standard of review, we may not disturb the dependency courts order unless the court exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (See Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.) The dependency court has broad discretion in determining whether offering an appellant reunification services would be in a childs best interest. (In re Angelique C. (2003) 113 Cal.App.4th 509, 523.)
A review of the record shows that substantial evidence supports the courts findings pursuant to section 361.5, subdivisions (b)(10), (b)(11), and (b)(13). Likewise, the dependency court did not abuse its discretion in denying Javier reunification services. Javiers and F.s reunification services (§ 361.5, subd. (b)(10)) and parental rights (§ 361.5, subd. (b)(11)) to the older children had been terminated in earlier dependency proceedings. As required for the application of section 361.5, subdivision (b)(13), both parents have a history of extensive, abusive, and chronic use of drugs, and both resisted court-ordered drug rehabilitation during a three-year period before A.C. was detained. The persistence of the problems that led to the removal and permanent placement of their older children, and both parents irregular performance in earlier dependency case plans, provide substantial evidence that both Javier and F. have not made reasonable efforts to treat these problems. Nor do we find that the court acted arbitrarily or capriciously in denying reunification services to parents with such serious and persistent problems.
II. F.
We have reviewed the entire record, and for the reasons discussed above regarding Javiers petition, we find no error in the dependency courts denial of reunification services to F.
III. ICWA Compliance
DCFS, in its reply brief, raises the issue of compliance with ICWAs notice requirements and concedes that ICWA notice appears to have been incomplete before the January 2008 hearing but contends that neither reversal nor remand is necessary. We agree.
In our review of an order from an earlier dependency proceeding, we rejected both Javiers and F.s contentions that the requirements of ICWA were not met. (See In re J.C. (Dec. 28, 2006, B190397) [nonpub. opn.].)
When there is reason to know that a dependency proceeding involves an Indian child, the responsible agency must notify the federal Bureau of Indian Affairs and the childs tribe, if known, of the pending proceedings by registered mail, return receipt requested. (In re Brooke C. (2005) 127 Cal.App.4th 377, 383-384.) This notice must include the name of the childs Indian ancestor and any other identifying information, if known, and no proceeding to terminate parental rights is to be held until at least 10 days after receipt of this notice. (Ibid.; see also 25 U.S.C. § 1912, subd. (a); 25 C.F.R. § 23.11(c)(12)(2003).) If notice is not given according to these federal statutory requirements, then the dependency courts order is voidable. (In re Brooke C., supra, 127 Cal.App.4th at p. 384; 25 U.S.C. § 1914.) This notice requirement applies even if a childs Indian ancestry is uncertain. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422.) Because federal statutory requirements under ICWA protect the rights of Indian tribes and children along with parents, a parents failure to raise the notice issue does not waive it. (In re Marinna J. (2001) 90 Cal.App.4th 731, 735-736.) DCFS acknowledges that Javiers indication of possible Navajo heritage was sufficient to trigger these notice requirements under ICWA.
We agree with decisions of the Court of Appeal holding that failure to give proper notice under ICWA is not jurisdictional error. (In re Brooke C., supra, 127 Cal.App.4th at p. 384; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1409-1411.) The only order that would be reversible for failure to give ICWA notice would be an order terminating parental rights under section 366.26. (In re Brooke C., supra, 127 Cal.App.4th at p. 385.) Because the dependency court, in January 2008, already appropriately ordered DCFS to send additional ICWA notice to potentially concerned tribes, and that notice would have been received and responded to long before the scheduled section 366.26 hearing set for May 21, 2008, the record shows no need for a remand to assure ICWA compliance. (See In re Brooke C., supra, 127 Cal.App.4th at p. 384.)
DISPOSITION
The petitions for extraordinary writs are denied.
We Concur:
VOGEL, Acting P. J.
JACKSON, J.