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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     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.



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       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.


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       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.



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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.


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       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



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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




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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.




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                                     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.]



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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.



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       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.



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       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.




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