as: 127 Cal.App.4th 377, 25 Cal.Rptr.3d 590)
of Appeal, Second District, Division 2, California.
re BROOKE C., a Person Coming Under the Juvenile Court
Angeles County Department of Children and Family Services, Plaintiff and
C., Defendant and Appellant.
Modified March 1, 2005.
Pamela Rae Tripp for Defendant and Appellant.
Larry Cory, Assistant County Counsel, and Jerry M. Custis, Senior
Deputy County Counsel, for Plaintiff and Respondent.
NOTT, Acting P.J.
In this dependency case, it is conceded that the notice
requirements under the Indian Child Welfare Act (25 U.S.C. § 1901
et seq.) (ICWA) were not met. We hold that this
deficiency does not impact the jurisdictional and dispositional orders previously
made in this proceeding.
Bridget C., mother of Brooke C. (born in 1998), appeals
from an order denying family
reunification services based upon a finding that Bridget had *380
resisted treatment pursuant to section 361.5, subdivision (b)(13) of the
Welfare and Institutions Code.
[FN1] Bridget contends that the court erred: (1) in failing
to grant her reunification services because the evidence does not
show that Bridget resisted treatment and the court failed to
properly consider the detriment to Brooke, and (2) in failing
to ensure that the notice requirements under the (ICWA) were
All statutory references are to the Welfare and Institutions Code,
unless otherwise indicated.
In December 2003, Brooke's father, Robert G., notified police that
while visiting Brooke, he saw Bridget showing symptoms of drug
use. He found a Vicodin pill near Bridget's bed and
within Brooke's reach. Officers arrived and found Bridget disoriented, lethargic,
confused, and unable to speak clearly or walk straight. A
social worker interviewed Bridget, and reported that she could not
walk straight and had difficulty understanding what was said to
her. Brooke said that Bridget had fallen out of bed,
slept all the time, and acted like a zombie. Bridget
told the social worker that her condition was caused by
Brooke was placed in the home of her paternal aunt,
where she remained throughout
the period reported in the record. The Los Angeles County
Department of Children and Family Services (Department) filed a dependency
petition on December 24, 2003, alleging that Bridget had a
history of substance abuse and that her drug use endangered
Brooke and had led to the filing of an earlier
dependency case. The Department gave notice that it might seek
an order denying reunification services.
In an interview, Bridget told a social worker that she
believed she was of Navajo heritage, although she did not
know if her family was registered. Robert said that he
was of Apache heritage, and also did not know if
his family was registered. In December 2003, the court ordered
the Department to send notice "to the Bureau **592
of Indian Affairs and the Secretary of the Interior referencing
the Navajo Nation and Apache Nation, and also do further
investigation to try to determine the specific tribal counsel that
might have an interest in Brooke," and to provide the
court with documentation. The February social study report states without
explanation that the ICWA does not apply. The April social
study report states that the ICWA does or may apply,
and attaches two Indian Nation letters. The letter from the
Navajo Nation states: "We have been unable to verify the
above child's eligibility for enrollment with the Navajo Indian Tribe
based on the information you have provided." The letter from
the Apache Tribe of Oklahoma states that it is only
one of nine bands of federally recognized Apache Tribes, and
that a search
based upon the information provided reveals that neither Brooke, Robert,
nor Sophie A. (presumably an ancestor) is enrolled with or
eligible for enrollment with the Apache Tribe of Oklahoma.
The Department's evidence showed that Brooke had been the subject
of three earlier dependency proceedings. She was born with a
positive toxicology screen for an illicit drug. A voluntary family
maintenance contract was signed by Bridget and Robert.
The family maintenance program failed, and Brooke was detained in
January 1999. She was declared a dependent of the juvenile
court based upon the drug in her system at birth
and Bridget's history of abusing prescription drugs. The court ordered
Bridget to participate in drug counseling, a substance abuse rehabilitation
program, and random drug testing. Although she completed a parent
enhancement program and a pain management program, Bridget tested positive
in August 2000 for Propoxyphene (Darvon). The court nevertheless terminated
jurisdiction in May 2001, placing Brooke with Bridget.
In December 2002, a family maintenance program was begun for
Brooke after Bridget was arrested for driving under the influence
of drugs with Brooke in the car. The case was
terminated in September 2003.
At the contested adjudication hearing, Bridget conceded that she had
used drugs on and off for the previous 15 years.
In addition to the dependency proceedings, Bridget had been convicted
in October 1999 of driving under the influence
of drugs, arrested in September 2001 for drug possession, and
arrested in March 2002 for driving under the influence of
Bridget had enrolled in a number of drug treatment programs
during the previous years. She failed to complete a four-month
residential program begun in February 2003 and completed an outpatient
drug abuse program in December 2003, in which she committed
to being sober. Bridget testified that Brooke was detained from
her in the present matter three days after she committed
to being sober. Bridget tested for drugs in January 2004,
and benzodiazepines were found in her system. Bridget also had
participated in additional detoxification stays and a number of additional
drug abuse programs. She conceded that she had in the
past just "gone through the motions" *382
of rehabilitating. In November 2001, when she was admitted to
a detoxification program, she told admitting staff that she had
used heroin, Soma, and Loracet daily during the preceding three
months. Robert's adult daughter stated that on at least one
occasion she had provided Bridget with a urine sample at
her request to use in a drug test.
The court found the following. Bridget had a history of
substance abuse and tested **593
positive for drugs in January 2004; Bridget's drug use impaired
her ability to care for Brooke; Brooke was a former
dependent of the court owing to Bridget's and Robert's drug
use; and Bridget had unresolved drug-related issues. The court found
that the Department had proved the applicability
of section 361.5, subdivision (b)(13), and denied Bridget reunification services.
The court expressly declined to apply the exception for best
interest of the child (§
361.5, subd. (c)), stating: "Here's a child that's had to
go through the system three different times. And she's what?
Six years old. And that's enough. And it's not in
the best interests of the child to offer reunification services
to mother now. It hasn't been shown by clear and
convincing evidence." The court ordered reunification services for Robert.
361.5, subdivision (b)(13) provides that reunification services need not
be provided to a parent or guardian who "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."
The statute reflects "a legislative determination that an attempt
to facilitate reunification between a parent and child generally is not
in the minor's best interests when the parent is shown to be a chronic
abuser of drugs who has resisted prior treatment for drug abuse. [Citation.]
In effect, the Legislature has recognized that, under those circumstances,
'it may be fruitless to provide reunification services....' [Citation.]"
(In re Levi U.
(2000) 78 Cal.App.4th 191, 200, 92 Cal.Rptr.2d 648.) Resistance
to prior treatment for chronic use of drugs may be shown where the parent
has participated in a substance abuse treatment program but continues
to abuse illicit drugs. (Ibid.)
On appeal, we review the record for substantial evidence. (See In
re Brian M. (2000)
82 Cal.App.4th 1398, 1401, 98 Cal.Rptr.2d 881.)
Bridget does not challenge the finding that her drug use
is extensive, abusive, and chronic. Nor does she dispute that
she was ordered in 1999 to participate in drug counseling
and substance abuse rehabilitation programs and in 2000 to participate
in a first-offender's program due to her conviction for driving
under the influence of drugs. Instead, she urges that her
conduct during the three years preceding the filing of the
petition, which occurred in December 2003, does not amount to
resistance to treatment as required by section 361.5, subdivision (b)(13).
evidence adduced at the contested disposition hearing shows that during
the relevant period, Bridget participated in several substance abuse treatment
programs, but continued to abuse illicit drugs. After many years
of substance abuse, she failed to complete her February 2003 drug abuse
treatment program. Bridget subsequently completed an outpatient
drug abuse program, but was under the influence of drugs a few days later
and tested positive for an illicit drug in January 2004. The court
could properly find that Bridget had engaged
in more than a brief relapse, that she had instead resisted treatment.
The court was not required to
apply the exception contained in section 361.5, subdivision (c),
which states in relevant part: "The court may not order reunification
for a parent or guardian described in paragraph [(b)(13)] unless the court
finds, by clear and convincing evidence, that reunification is in the
best interest **594
of the child." The court considered the detriment to Brooke
if family reunification services were denied, and determined that because
Brooke had been the subject of dependency proceedings three times during
her six years, additional reunification services were not in her best
interest. The fact that Bridget and Brooke shared a mother-daughter
relationship does not require a different outcome. The court properly
determined that it would be fruitless to continue to provide reunification
Bridget contends that the Department failed to comply with the
notice requirements of the ICWA. The Department concedes the point.
We conclude that notice was not proper and shall remand
When a dependency court has reason
to know the proceeding involves an Indian child, the Department must notify
the Indian child's tribe, or, if the tribe's identity or location cannot
be determined, the Bureau of Indian Affairs, of the pending proceedings
and of the right to intervene; and no
proceeding to place the child in foster care or terminate parental rights
shall be held until at least 10 days after the tribe or Bureau of Indian
Affairs has received the notice. (25 U.S.C. § 1912, subd.
(a); 25 C.F.R. § 23.11(c)(12) *384
(2003).) Notice must be sent to all tribes of which a child may
be a member or eligible for membership. (See In
re Louis S. (2004)
117 Cal.App.4th 622, 632-633, 12 Cal.Rptr.3d 110.) The notice must
include the names of the child's ancestors and other identifying information,
if known, and be sent registered mail, return receipt requested. (In
re Karla C. (2003)
113 Cal.App.4th 166, 175, 6 Cal.Rptr.3d 205.) When proper notice
is not given, the dependency court's order is voidable. (In
re Karla C., supra,
113 Cal.App.4th at p. 174, 6 Cal.Rptr.3d 205; 25 U.S.C. § 1914.)
Here, the Department was advised of possible Indian ancestry by
both Bridget and Robert. The record does not reflect that
notice of the proceedings was sent to the Bureau of
Indian Affairs. Although responses from two tribes are in the
record, it does not contain proof that known ancestors were
properly identified. The record is silent on whether additional Apache
tribes should have been or were notified. We conclude that
the notice requirements of the ICWA were not satisfied.
The question remains whether the error requires reversal. We recognize
the split of authority as to whether a violation of
the ICWA constitutes jurisdictional error. We agree with the thorough
analysis by the court in In
re Antoinette S.
(2002) 104 Cal.App.4th 1401, 129 Cal.Rptr.2d 15 (Antoinette
which concluded that it is not, disagreeing with language in
cases reaching a contrary conclusion. The Antoinette
court noted language in In
re Desiree F.
(2000) 83 Cal.App.4th 460, 474, 99 Cal.Rptr.2d 688: " '[S]tate
courts have no jurisdiction to proceed with dependency proceedings involving
a possible Indian child until a period of at least
10 days after the receipt
of [notice as required by the ICWA].' " (Antoinette
at p. 1409, 129 Cal.Rptr.2d 15.) Two other California cases,
re Jonathan D.
(2001) 92 Cal.App.4th 105, 110, 111 Cal.Rptr.2d 628 and In
re Samuel P.
(2002) 99 Cal.App.4th 1259, 1267, 121 Cal.Rptr.2d 820, have quoted
this language from In
re Desiree F.
reviewed the California constitutional and statutory provisions granting
the juvenile court original jurisdiction in dependency proceedings. It
concluded that the statements in the cases to the effect that the juvenile
courts had no jurisdiction when the notice provisions **595
of the ICWA are not met "appear[ ] to have been simply a shorthand
way of saying the ICWA violations under consideration in those cases constituted
serious legal error. Indeed, the statements regarding 'no jurisdiction'
are only dicta. In each case, the reviewing court reversed or remanded
because the lack of notice was prejudicial error--any additional language
regarding 'jurisdiction' was mere surplusage. [Citations.]"
Cal.App.4th at *385
p. 1410, 129 Cal.Rptr.2d 15.) The court in Antoinette
S. concluded that violation
of the notice required by the ICWA is not jurisdictional error, observing
that to hold otherwise would deprive the juvenile court of all authority
over the dependent child, requiring the immediate return of the child
to the parents whose fitness was in doubt. (Id.
at pp. 1410-1411, 129 Cal.Rptr.2d 15.)
Applying this legal reasoning and following the majority of the
cases, the only order which would be subject to reversal
for failure to give notice would be an order terminating
parental rights. (See, e.g., In
re Nikki R.
(2003) 106 Cal.App.4th 844, 855-856, 131 Cal.Rptr.2d 256.) No such
order exists in these proceedings. Accordingly, all jurisdictional and dispositional
orders, including the order from which Bridget appeals, remain in
We note that in In
re Louis S., supra,
117 Cal.App.4th 622, 12 Cal.Rptr.3d 110, the court reversed an
order entered at the 12-month review hearing terminating the mother's
reunification services and all subsequent orders for failure to comply
with the ICWA's notice requirements. (Id.
at p. 634, 12 Cal.Rptr.3d 110.) While In
re Louis S.
re Desiree F., supra,
83 Cal.App.4th at pages 475-478, 99 Cal.Rptr.2d 688 in support
of its order, it did not engage in any discussion
of reversible error or even mention Antoinette
and the analysis we adopt herein. We therefore decline to
follow it in this regard.
The lack of statutory notice nonetheless requires a limited remand
to the juvenile court for the Department to comply with
the notice requirements of the ICWA, with directions to the
juvenile court depending on the outcome of such notice. If,
after proper notice is given under the ICWA, Brooke is
determined not to be an Indian child and the ICWA
does not apply, prior defective notice becomes harmless error. (Antoinette
104 Cal.App.4th at pp. 1413- 1414, 129 Cal.Rptr.2d 15.) In
this event, no basis exists to attack a prior order
because of failure to comply with the ICWA. Moreover, reversal
of the order denying reunification rights on the ground of
inadequate notice under the ICWA would not be in Brooke's
best interests if she is not an Indian child. Alternatively,
after proper notice under the ICWA, if Brooke is determined
to be an Indian child and the ICWA applies to
these proceedings, Bridget can then petition the juvenile court to
invalidate orders which violated title 25 United States Code sections
1911, 1912, and 1913. (25 U.S.C. § 1914;
Cal. Rules of Court, rule 1439(n)(1).)
The dispositional order denying reunification services to Bridget is affirmed
and the matter is remanded to the juvenile court with
directions that the juvenile court shall direct the Department to
comply with the notice provisions of the ICWA. After proper
notice under the ICWA, if Brooke is determined to be
an Indian child and the ICWA applies to these proceedings,
Bridget is then entitled
to petition the juvenile court to invalidate orders which violated
title 25 United States Code sections 1911, 1912, and 1913.
(See 25 U.S.C. § 1914;
Cal. Rules of Court, rule 1439(n)(1).)
We concur: DOI TODD and ASHMANN-GERST, JJ.