In re Michael C.

Filed 8/4/06 In re Michael C. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. Thomas DeSantos, Judge.

Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.

Peter D. Moock, County Counsel, and Rebecca Speer-Mathews, Deputy County Counsel, for Plaintiff and Respondent.

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Leola A. (appellant) appeals from the juvenile court's order denying her petition under Welfare and Institutions Code, section 388^[1] in which she requested reinstatement of family maintenance services for her three youngest children, Michael and twins William and Brad. She claims the juvenile court abused its discretion in denying her petition. She also claims the juvenile court erred in finding it gave proper notice under the Indian Child and Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.). While we affirm the court's order denying appellant's section 388 petition, we agree the court erred in failing to comply with the ICWA. Accordingly, we will remand the matter with directions to comply.

FACTS AND PROCEEDINGS

Appellant is the mother of nine children, six sons and three daughters. She has a long history of substance abuse and transience. In 1990, appellant relinquished her fourth child, an infant son, to his biological father and sought no further contact. The other eight children have, over the years since 1995, been removed from appellant's custody and declared dependents of the juvenile court in several California counties. All but four of the children have been permanently placed in other homes.

The instant dependency proceedings were initiated in January 2003 in Alameda County after police responded to a disturbance at a homeless shelter where appellant was residing with her five youngest children, then 10 and 6-year-old daughters T. and B., four-year-old Michael and two-year-old William and Brad. Appellant was arrested for being under the influence of narcotics after she failed a field sobriety test. She also had a controlled substance in pill form for which she had no prescription. The children were taken into protective custody and a dependency petition was filed on their behalf.

The Alameda County juvenile court assumed dependency jurisdiction and ordered a plan of reunification for appellant that required her to undergo a psychological evaluation, participate in individual therapy, complete a parenting program and submit to random drug testing. The court also ordered reunification services for Robert, the father of Michael, William and Brad. At that time, Robert was incarcerated at the California Rehabilitation Center awaiting his release in February 2003. Upon his release, he checked into a recovery center in Hanford, California. The whereabouts of T. and B.'s father were unknown.

Over the next six months, appellant partially complied with her case plan. She participated in a parenting program and regularly visited the children. Appellant also completed a psychological evaluation during which she reported that she suffered chronic back and neck pain caused by automobile accidents in 2000 and 2001. After conducting a series of interviews and administering a battery of psychological tests, the psychologist diagnosed appellant with dysthymic disorder (chronic low level depression), dependence to four prescription medications and dependent personality disorder. The psychologist also confirmed appellant's strong love for her children but concluded she was emotionally unavailable to care for them. The psychologist explained in her report:

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