In re Carmen S

Filed 4/21/06 In re Carmen S. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from an order of the Superior Court of Los Angeles County, Valerie Skeba, Referee. Affirmed in part; reversed in part.

Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.

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Melody S. contends that (1) the juvenile court abused its discretion in summarily denying her petition for modification (Welf. & Inst. Code, § 388),^[1] (2) there was insufficient evidence to support severance of her parental rights to her two-year-old daughter, Carmen (§ 366.26), and (3) there was insufficient compliance with the notice provisions of the Indian Child Welfare Act (ICWA). We find no merit in the first two issues. Error on the third issue is conceded by respondent, the Los Angeles County Department of Children and Family Services (the Department). We remand for compliance with the notice requirements of the ICWA, and otherwise affirm.

FACTS AND PROCEDURAL HISTORY

When Carmen was born in August 2003, 19-year-old Melody tested positive for amphetamines. She was on probation and had been living in a group home. She had abused drugs since she was 13 or 14 years old, and was resistant to treatment in the past. Her parents are also drug abusers.

Melody left the hospital with Carmen before the Department could become involved. She spent the next two months eluding the Department. She and Carmen spent two weeks at the home of a cousin, Patricia S., whom Melody viewed as an aunt. Melody's much-older boyfriend, Javier B., also was at Patricia's house. Javier was named on the birth certificate, but he is not Carmen's father.^[2] Patricia took care of Carmen while Melody and Javier disappeared for hours and used drugs. Property of Patricia's disappeared. Several weeks after Melody, Carmen and Javier left Patricia's house, Melody's sister called the Department, to report that Melody lacked formula and diapers for Carmen when she dropped in on other family members.

Melody surfaced when she was arrested for drug possession on October 13, 2003. She left Carmen with Francis S., who ran an alcohol and drug treatment program. Francis took Carmen to the Department. She said that she did not know Melody well, but knew her brother, and had been searching for Melody and Carmen on â€