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In re Brooke C.2/1/2005
CERTIFIED FOR PUBLICATION
Opinion ordered published March 1, 2005.
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.
BACKGROUND
Bridget C., mother of Brooke C. (born in 1998), appeals from an order denying family reunification services based upon a finding that Bridget had resisted treatment pursuant to section 361.5, subdivision (b)(13) of the Welfare and Institutions Code. 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 met.
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 the flu.
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 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 Januar
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