IN RE A.E.

No. A149302.

In re A.E. et al., Persons Coming Under the Juvenile Court Law. SOLANO COUNTY HEALTH & SOCIAL SERVICES DEPARTMENT, Plaintiff and Respondent, v. R.E., Defendant and Appellant.

Court of Appeals of California, First District, Division Four.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.115.

RIVERA, J.

R.E. (Father) appeals an order terminating his reunification services to his four children, A.E.-1, R.E., A.E.-2, and J.C. (collectively, Minors) at the six-month review hearing. He challenges the order on the grounds that the reunification services he was offered were not tailored to his mental health needs and cognitive disabilities; that the services were inadequate under the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.), section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794), and related state law; that Minors were not all part of the same sibling group; and that the proceedings did not meet the requirements of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.; see also Welf. & Inst. Code,1 § 224 et seq.). We shall affirm the order.

I. BACKGROUND

The Solano County Health and Social Services Department (the Department) filed a petition pursuant to section 300 on behalf of Minors in September 2015. At the time, A.E.-1 was seven years old, R.E. was five years old, A.E.-2 was almost two years old, and J.C. was eight months old. As later sustained, the petition alleged the children's mother, K.C. (Mother), had a history of opiate abuse that impaired her judgment and ability to care for Minors; Mother had unresolved mental health and/or emotional problems that periodically rendered her unable to care for Minors; Father had cognitive delays that periodically impaired his ability to provide safe and appropriate care; Father knew of Mother's opiate use and had not made safe arrangements for Minors' care in his absence; Father had not made arrangements to meet Minors' medical, dental, and developmental needs; and Mother and Father had participated in voluntary family maintenance services that had not resolved the family's problems.

A. Detention Report

The youngest child, J.C., tested positive for Percocet and Oxycodone when she was born in January 2015. Mother admitted using prescription pain medication that had not been prescribed to her, and Father knew she was taking non-prescribed medication. Father admitted he had been using marijuana but said he had stopped using it three weeks previously. Mother and Father agreed to participate in voluntary family maintenance services. During the course of the services, Father failed to drug test on three occasions, and on other occasions waited several days before testing.

Father reported that he suffered from a learning disability and received Supplemental Security Income (SSI). He said he could not drive, read, follow directions, or complete forms. A worker from the North Bay Regional Center (Regional Center) reported that Father suffered from mild retardation, dyslexia, and learning disabilities. The detention report noted that because of Father's cognitive delays, he could not schedule medical or dental appointments or respond promptly to Minors' medical and developmental needs.

Mother submitted several positive drug tests while she was receiving voluntary family maintenance services. Mother did not attend her substance abuse treatment regularly, and on several home visits and meetings was found to be "sleeping, exhausted, withdrawn, unresponsive, and lethargic." She had suffered from depression since she was 15 years old and had not consistently engaged in mental health treatment or medication management. Her symptoms included "depressed mood, anhedonia, crying spells, significant appetite change, insomnia, irritability, agitation, decreased energy, and decreased concentration." She also reported relationship problems.

The children's medical, dental, and developmental needs had not been attended to properly. Some of R.E. and A.E.-1's teeth were completely decayed. R.E.'s front teeth had to be surgically removed. Minors were referred for developmental screenings in January, February, and June 2015, but Mother and Father did not seek services until July 2015. R.E., A.E.-2, and J.C. were found to be developmentally delayed. A.E.-1 had an Individualized Education Program (IEP).

Several times between May 2015 and September 2015, a social worker found Minors with dirt caked on their skin, rashes, rotten teeth, and flea bites. A.E.-2 had eczema that appeared to be untreated; his arms, hands, and legs were usually covered with scabs, open sores, and severe dry skin. The front yard of the family home was cluttered with debris. There were wires and debris throughout the living room. Food wrappers and crumbs, empty bottles, debris, and dirty clothing were in the children's bedroom. The family had been given a 60-day notice to leave their home because of the debris and non-payment of rent. On one home visit, the social worker saw a flea on R.E.'s forearm, and A.E.-1 reported that he and the other children "always" had fleas or ants crawling on them.

When the social worker arrived for a home visit in September 2015, A.E.-1 and R.E. told her Mother was sleeping in the living room and Father was not at home. It took five minutes for Mother to open the door, rubbing her eyes as if she had just woken up. A.E.-2 was sitting on the bed watching television, and the social worker did not see any other adults in the home. A.E.-1 later told the social worker his parents slept all day and he had to wait for them to wake up to feed him. Mother appeared to be sleeping and Father was absent when the social worker arrived for two other home visits. A.E.-1 also said he had to wake his parents up in the morning to take him to school. He said he usually played a video game all day.

A.E.-1 was chronically absent or tardy at school; he had been absent 46 days and tardy 33 days during the 2014-2015 school year, and he had to repeat first grade. In March 2015, the Department received a report that school staff had picked up A.E.-1 at home to bring him to school; Father stumbled out of the door, appearing despondent, lost, and discombobulated, and it appeared he had been "partying all night."

A family friend reported that Father used methamphetamine and that she saw him caring for the children, inattentive to their needs, while under the influence of methamphetamine. On one occasion, she found the children unattended and unsupervised. A.E.-2 had untreated eczema; she had seen him "rocking and scratching," causing his skin to bleed and bruise; his face, ankle, wrist, and hands were covered in open wounds, dirt, and blood. She suspected he suffered from autism, since he did not talk and he rocked constantly. She reported that A.E.-1 and R.E. had rotten teeth and that they only ate ramen noodles because they could not chew hard foods.

During the voluntary family maintenance period, the Department also received reports that Mother abused pain medication in the presence of Minors, that they were left unsupervised for long periods, that their diapers and clothing were dirty, and that people came in and out of the home and it appeared that the people in the home were using methamphetamine.

As part of their voluntary plan, Mother and Father were offered referrals to the Vallejo Family Resource Center for Parenting and Public Health Nursing, but failed to take advantage of these referrals.

Minors were detained and placed in foster homes; A.E.-1 and R.E. were placed together in one foster home, and A.E.-2 and J.C. were placed together in another.

B. Jurisdiction and Disposition

The October 2015 jurisdiction report explained that the social worker had an appointment with Mother and Father after the children were detained, but that Father did not attend the meeting because he was not feeling well. Mother reported that Father got "high anxiety" due to the child welfare case, which "periodically cause[d] him to feel under the weather." The social worker scheduled a phone call with Father the following day to discuss the case, but no one answered the phone when she called. She left two voicemail messages.

Mother acknowledged she was addicted to opiates and that Father did not always know she was taking pills. She denied being at home alone with the children while she was sleeping. She said she did not suspect Father of using drugs and denied that drug use had occurred around Minors. She did not think Father's learning disabilities had led to neglect of the children. She said that he sometimes "takes a while to accomplish tasks but he is able to do it, especially when he is on a schedule and has things planned out."

Father's mother (Grandmother) told the social worker Father had a severe learning disability and was dyslexic, and that he had anxiety that affected his daily functioning. She said he was able to drive but was anxious about the test. He needed to have a routine to follow and had to be reminded how to do certain things and when to do them. Grandmother said Father had not used marijuana for several months and that she was unaware of him using methamphetamine.

According to the November 2015 disposition report, Father had recently become a client of the Regional Center, but was not taking advantage of the resources available there. Father reported that he had always had learning disabilities and that he received services for them. Because of the disabilities, it took him longer to do things he needed to do, but he was working on this problem and on getting less distracted. He said he no longer used marijuana and denied having used methamphetamine or any other substances. He was not a heavy drinker. He denied having any major mental health concerns.

Mother and Father would have to leave the home they were living in at the end of November, and Father said that services through the Regional Center could help them get housing. He planned to contact the worker there.

Mother and Father were visiting with Minors. On alternate weeks they either visited all four together or visited them in two groups on different days, one with the older two children and one with the younger two children.

The Department had offered Father substance abuse testing, contact information for a parent education course, and services at the Regional Center. The social worker had tried to contact the Regional Center and had encouraged Father and Mother to reach out to the case worker there.

On November 23, 2015, the juvenile court adjudged Minors dependent children, found they were part of a sibling group, removed them from Mother and Father, and ordered reunification services.

In January 2016, A.E.-1 and R.E. were moved to Grandmother's home.

C. Interim Review

An interim review hearing took place in March 2016. A.E.-2 continued to have dry skin and rashes as a result of his eczema, and an allergy test showed he was allergic to feathers and egg whites. He had been diagnosed with global developmental delays and would be receiving treatment. He required 24-hour supervision because he was active and constantly wanted to explore his surroundings. He had tantrums several times a day, falling on the floor, kicking, screaming, banging his head, rocking, throwing things, and ripping paper. J.C. was doing well overall.

The social worker had had a hard time reaching Mother and Father by telephone, and they had not stayed in touch with her. In February 2016, she met with them following a visit with the children and gave them a copy of a letter outlining their service objectives and providing the contact information for each service provider. Mother and Father had reported they were going to begin parenting classes on March 10, 2016.

Grandmother, with whom A.E.-1 and R.E. were living, told the social worker she had invited Mother and Father to call during the week to see how they were doing, but they had not done so. She was concerned that Father was "`dabbling in methamphetamines,' "and a relative had told her Mother had tried to get Vicodin pills in the past month. She had tried to help Father find housing through the Regional Center, but he had not followed through.

The report noted that during visits, both Mother and Father appeared overwhelmed. One parent would chase J.C. or hold her while the other ran after A.E.-2, leaving A.E.-1 and R.E. to entertain themselves. The social worker was concerned that Mother and Father did not encourage the younger children to meet developmental milestones: they did not encourage J.C. to walk or A.E.-2 to talk or learn new behaviors.

As part of his case plan, Father was required to participate in a parenting program. Although he was given contact information and referred to the Vallejo Family Resource Center in the latter part of 2015, he delayed contacting the agency, and was going to start a class later in March 2016. He had been directed to engage in services through the Regional Center, but had not contacted his case manager since October 2015. In February 2016, the social worker offered to transport Father to appointments with his case manager or the Housing Coalition to ensure he had access to services. Father had missed three drug tests.

D. Six-Month Review

The six-month review hearing was scheduled for May 10, 2016. The Department prepared a report recommending that reunification services be terminated as to both parents.

Mother and Father were staying with relatives and working with the Housing Coalition through the Regional Center to find low-income housing.

A.E.-1 was developmentally on track, was doing well in school, and no longer needed an IEP. R.E. was developmentally on track, but required language and speech services and specialized academic instruction. He had tantrums, but was becoming more able to regulate his emotions. He had been seeing a therapist. During a therapy session in April, he had said he was sad because he missed his parents, and he wished they would get a home.

A.E.-2 had severe allergies, eczema, autism, and global developmental delays. His behavior had improved since he was placed in a new foster home. J.C. was developmentally on track for a 15-month old. She had learned to walk, could feed herself, and was babbling words.

A.E.-1 and R.E. had been placed with Grandmother, who wanted to adopt them or become their legal guardian. She was unable to care for all four children. The foster parents of A.E.-2 and J.C. wanted to adopt them if they did not reunify with their parents. Both Grandmother and the foster parents wanted to support future contact among all four children.

Father and Mother had been scheduled to take parenting classes beginning in March 2016. Mother attended two classes before stopping her attendance, and Father did not attend any of them. A worker at the Family Resource Center tried to reach Mother several times without success before Mother told her she and Father were homeless and could not attend the classes. Mother and Father then missed a scheduled meeting with her. Father had not contacted the Housing Coalition since November 2015.

Mother and Father had been visiting Minors consistently. A.E.-2 and J.C. showed little emotion when they saw their parents, treating them as "familiar strangers." A.E.-1 and R.E. seemed to understand they were visiting their parents and hugged them after being prompted, but did not show much excitement. Father gave snack crackers to A.E.-2 without checking to see whether they had eggs; when asked to check, he read the list of ingredients and saw that there were no eggs.

A contested review hearing was set for June 28, 2016. Before the hearing, the Department filed a "Request to Change Court Order." The request noted that Mother had only recently begun participating in services, after being informed of the Department's recommendation that services be terminated, and that Minors were living in two separate groups. In the event the court determined Minors were no longer part of one sibling group, the Department asked the court to terminate reunification services as to A.E.-1 and R.E. pursuant to section 388, subdivision (c)(1)(B), under which a court may terminate reunification services if a parent's action or inaction "creates a substantial likelihood that reunification will not occur, including . . . the failure of the parent or guardian to participate regularly and make substantive progress in a court-ordered treatment plan."

At the six-month review hearing, the social worker assigned to Minors testified that Father was referred to the Family Resource Center for parenting classes in November 2015, but the referral was closed in mid-April 2016 because Father had not participated. Father had an intake appointment on June 2, 2016 and was scheduled for weekly appointments. Father cancelled one appointment due to illness, and the parenting instructor cancelled the following week due to illness. She had been unsuccessful in contacting Father to reschedule the appointment. Father was seeking stable housing, but the Housing Coalition had had difficulty in maintaining contact with him. He had missed all of his random drug tests during April, May, and June 2016. He had missed two visits with Minors in May and two in June. Father and Mother had ended their relationship, and since the breakup Father had been less involved with Minors during visits. His behavior during visits was appropriate.

Father had been offered services through the Regional Center and the Housing Coalition. Father had relied on Mother to make arrangements and remind him of things. Grandmother was now helping him by making arrangements and phone calls with the Housing Coalition. The social worker helped Father by asking him about his services, providing names and phone numbers of service providers, advising him to call for parenting classes and to maintain contact with his Regional Center worker, and providing bus passes.

Mother had begun participating in services. She was taking part in a parenting group and substance abuse services, was randomly testing for substances, and was living at a residential program.

The social worker testified that Father had had unstable housing and was now living with a cousin. He had been seeking assistance from the Housing Coalition, but it was not clear he would be able to afford to pay rent because he was not working. Father's case worker at the Regional Center had spoken with Father about obtaining employment, but he was not interested in finding work because he became anxious and angry when under stress. He received disability benefits because of a mild intellectual disability. The social worker had seen a report from the Regional Center indicating Father had anxiety; she said, "I don't recall seeing [anxiety] as an actual diagnosis versus possibly a symptom."

Father had told the social worker he was depressed about his break-up with Mother. He had never been alone before and was unhappy about it.

Father had claimed he could not read, but the leader of the parenting class had reported that he could read things out loud and understand them, and the social worker had seen him filling out a form correctly. She thought he had become accustomed to depending on others for help rather than relying on his own abilities. Father had not been required to engage in a mental health assessment or mental health counseling to address his dependency.

The juvenile court continued reunification services for Mother and terminated them for Father, finding that the Department had provided reasonable services and that Father had not regularly participated in services or made substantive progress. The court found that Minors continued to form one sibling group.

II. DISCUSSION

A. Reasonable Services

Father contends he was not provided reasonable services because (1) the Department did not consider whether he had a mental health condition, manifested in his "paralyzing anxiety" and "`dependence'" on Mother and Grandmother, that interfered with his ability to address the problems preventing reunification, and (2) his case plan did not specifically address his cognitive disabilities.

"[W]ith regard to the sufficiency of reunification services, our sole task on review is to determine whether the record discloses substantial evidence which supports the juvenile court's finding that reasonable services were provided or offered." (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) We view the evidence in the light most favorable to the respondent, indulging all reasonable inferences to uphold the order. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) In making this determination, we are mindful that "[i]n almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect. 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." (Id. at p. 547; accord Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.)

However, the Department must make "`[a] good faith effort' to provide reasonable services responding to the unique needs of each family." (In re Monica C. (1995) 31 Cal.App.4th 296, 306.) Where a parent is mentally ill or has a developmental disability, those services must be designed to meet the parent's needs. (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1789-1790; In re Victoria M. (1989) 207 Cal.App.3d 1317, 1320.)

Father contends the services were inadequate because they did not include mental health services to address what he describes as his "paralyzing anxiety" and dependence on Mother and Grandmother. As support for this argument, he points to the facts that, when he missed an appointment with the social worker in October 2015, Mother said he got "high anxiety" about the child welfare case, which caused him to feel under the weather; that at the same meeting, Grandmother said Father had anxiety that affected his daily functioning and prevented him from taking a driving test; and that at the six-month review hearing, the social worker indicated the Regional Center had told her that Father did not want to work because he became anxious and angry when under stress.

We are not persuaded that the services were therefore inadequate. Father denied having any major mental health concerns, either in the past or currently. (See In re Misako R., supra, 2 Cal.App.4th at p. 546 [rejecting claim that services were unreasonable in light of mother's intellectual deficiencies in part on ground that "the record here, when viewed in the light most favorable to the respondent, indicates everyone was not aware [that the mother] had mental limitations," and distinguishing on that ground In re Victoria M., supra, 207 Cal.App.3d at p. 1329].) Moreover, the Department was aware that Father was a client of the Regional Center, which had evaluated him.2 There is no indication its evaluation showed that Father's reported anxiety and dependence on others constituted a mental illness that required treatment.

We also reject Father's contention that the services he was offered were not tailored to his cognitive and developmental needs. Father was assessed at the Regional Center, which determined he suffered from mild retardation, dyslexia, and learning disabilities. In October 2015, Grandmother reported that the Regional Center was figuring out the extent of Father's eligibility for services. Part of the "Family Preservation Services" portion of Father's case plan was to engage in services that best met his special needs through the Regional Center. The social worker repeatedly encouraged Father to reach out to his worker at the Regional Center and ensured he had contact information for his service providers, but he did not take advantage of the center's resources. This case is thus unlike In re Victoria M., supra, 207 Cal.App.3d at pp. 1329-1330, in which services through a regional center were never considered for a developmentally disabled parent. Rather, Father had access to services tailored to his challenges but did not avail himself of them. The juvenile court could reasonably conclude that Father was offered reasonable services.

Father also argues his services were inadequate under the ADA and section 504 of the Rehabilitation Act, which he contends apply to California dependency cases.3 For his argument, he relies on two documents prepared by federal agencies.4 Father did not raise this claim below, and he has therefore forfeited it. (In re M.S., supra, 174 Cal.App.4th at p. 1252.)

We reject Father's contention that his counsel rendered ineffective assistance by not raising this issue below. He cannot prevail on this claim on appeal unless he shows "`"there simply could be no satisfactory explanation" for trial counsel's action or inaction. [Citation.]' [Citation.]" (In re Darlice C. (2003) 105 Cal.App.4th 459, 463.) A satisfactory explanation for counsel's failure to raise this issue below is found in the consistent California case law holding that the ADA does not provide a defense in dependency cases. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1139, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6 [parent may have separate cause of action in federal court for violation of ADA but "the ADA does not directly apply to juvenile dependency proceedings and cannot be used as a defense in them."]; In re Anthony P. (2000) 84 Cal.App.4th 1112, 1116 [same]; In re M.S., supra, 174 Cal.App.4th at p. 1253 [finding analysis of Diamond H. applicable to section 602 proceeding].) Moreover, we see no "`reasonabl[e] probab[ility] that a result more favorable to [Father] would have been reached'" if his counsel had raised this issue. (See In re Kristin H. (1996) 46 Cal.App.4th 1635, 1668.) The juvenile court was aware of Father's learning disability, his counsel emphasized that disability when asking the court to continue services to Father, and the court concluded there was "really no argument" that the Department had not provided reasonable services. There is no basis to conclude the juvenile court would have acted differently if Father had invoked the ADA and section 504 of the Rehabilitation Act.

B. Sibling Group

When it terminated Father's reunification services, the juvenile court found Minors still constituted one sibling group. Father contends the evidence does not support this finding because A.E.-1 and R.E. were placed in a different home than A.E.-2 and J.C., Minors did not seem to have a strong bond, and it appeared they would not be placed in the same home if reunification failed. As a result, Father argues, he was entitled to an additional six months of services to reunite with the two older children

Unless certain exceptions apply, a juvenile court must normally provide 12 months of reunification services to a parent whose child three years of age or older has been removed. (§ 361.5, subd. (a)(1)(A); M.C. v. Superior Court (2016) 3 Cal.App.5th 838, 841, 849.) A parent of a child under three years of age at the time of removal from the parent's physical custody is normally provided six months of services. (§ 361.5, subd. (a)(1)(B).) However, "[f]or the purpose of placing and maintaining a sibling group together in a permanent home should reunification efforts fail, for a child in a sibling group whose members were removed from parental custody at the same time, and in which one member of the sibling group was under three years of age on the date of initial removal from the physical custody of his or her parent or guardian, court-ordered services for some or all of the sibling group may be limited as set forth in subparagraph (B) [providing for six months of services]. For the purposes of this paragraph, `a sibling group' shall mean two or more children who are related to each other as full or half siblings." (§ 361.5, subd. (a)(1)(C).)

Father argues A.E.-1 and R.E., who were older than three at the time of removal, are no longer part of the same sibling group as the younger children, A.E.-2 and J.C., and that he is therefore entitled to additional services as to the older children. But, as the Department points out, Minors meet the statutory definition of "a sibling group," because they are related to each other as full or half siblings. (§ 361.5, subd. (a)(1)(C).)

Father points out that for purposes of deciding whether to set a hearing pursuant to section 366.26 for some or all members of a sibling group, the court must consider "whether the sibling group was removed from parental care as a group, the closeness and strength of the sibling bond, the ages of the siblings, the appropriateness of maintaining the sibling group together, the detriment to the child if sibling ties are not maintained, the likelihood of finding a permanent home for the sibling group, whether the sibling group is currently placed together in a preadoptive home or has a concurrent plan goal of legal permanency in the same home, the wishes of each child whose age and physical and emotional condition permits a meaningful response, and the best interests of each child in the sibling group." (§ 366.21, subd. (e)(4); see also Abraham L. v. Superior Court (2003) 112 Cal.App.4th 9, 14.) However, in this case, the court did not set a hearing pursuant to section 366.26 because it offered Mother additional reunification services.

In any case, even assuming Minors are properly viewed as forming two separate groups—one with the older children, A.E.-1 and R.E., and one with the younger children, A.E.-2 and J.C.—we would not reverse the order denying Father reunification services as to the older children. A motion to terminate reunification services for a child over the age of three, who is not part of a sibling group including children under the age of three, must be made pursuant to the requirements of subdivision (c) of section 388. (§ 361.5, subd. (a)(2); § 366.21, subds. (e), (f).) That statute, in turn, allows a party to petition the court to terminate reunification services, as relevant here, if "[t]he action or inaction of the parent or guardian creates a substantial likelihood that reunification will not occur, including, but not limited to, . . . the failure of the parent or guardian to participate regularly and make substantive progress in a court-ordered treatment plan." (§ 388, subd. (c)(1)(B).) Upon receiving such a petition, the court may terminate reunification services only if it finds by a preponderance of the evidence that reasonable services were offered or provided, and finds by clear and convincing evidence that one of the specified conditions exists. (§ 388, subd. (c)(3).)

The Department filed a section 388 petition asking the court to terminate services as to the older children pursuant to section 388, subdivision (c)(1)(B), if the court found they were no longer in the same sibling group as the younger children. Although the juvenile court found the children were all part of the same sibling group and hence did not need to rule on this petition, it made the necessary findings that the Department had provided reasonable services and, by clear and convincing evidence, that Father had not participated regularly and he had not made substantive progress. Under the circumstances, it is clear that the court would have made the same decision if it had treated Minors as part of two sibling groups. (Compare M.C. v. Superior Court, supra, 3 Cal.App.5th at pp. 849-850 [error in terminating reunification services not harmless where juvenile court acted under incorrect legal standard, did not act pursuant to section 388 petition, and did not make necessary findings].)

C. Indian Child Welfare Act

Father also contends the Department did not meet its obligations under ICWA to secure Minors' membership in an Indian tribe.

1. Background

At the beginning of the dependency, both Mother and Father reported possible Indian ancestry, Mother through the Cherokee Tribe and Father through the Blackfoot and Cherokee Tribes, and the Department provided notice to the tribes in October 2015. The November 2015 disposition report noted that the Department had not yet received any notifications from the tribes. On November 24, 2015, the day after the disposition hearing, the Department received a response from the Cherokee Nation indicating Minors were eligible for enrollment through their paternal great-grandmother, who was a member. The response stated that Minors at that time did not meet ICWA's definition of an "Indian child," but enclosed a membership application.

The February 2016 interim review report did not mention the status of the enrollment applications. At the March 1, 2016 hearing, the juvenile court indicated that, based on the ICWA compliance documents it had reviewed, ICWA did not apply at that point. The Department's counsel told the court, "I believe that's correct at this time, Your Honor. The Cherokee Nation indicates the children don't meet the definition of Indian child, but I think it's just because they're not enrolled. They're eligible for enrollment. And my clients will be working on getting them enrolled. It doesn't look like the parents are really involved much."

In its April 22, 2016 status review report, the Department told the court the Cherokee Nation had requested an application be completed for each child and submitted along with original certified birth certificates for Minors, Father, and Father's mother, that the Department was in the process of submitting payment for the birth certificates, and that once the Department received the birth certificates, it would mail them and the applications to the Cherokee Nation.

The six-month status review hearing took place on June 28, June 30, and July 12, 2016. At the conclusion, the Department's counsel told the court the Cherokee Nation had all the documents it needed to determine if it would intervene in the matter and that she might seek to have an ICWA hearing before the 12-month hearing. In its written order, the court found that Minors might be Indian children, that active efforts had been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and that the efforts were unsuccessful.

2. Analysis

At the time of the proceedings in question, California Rules of Court,5 rule 5.482(c) provided: "If after notice has been provided as required by federal and state law a tribe responds indicating that the child is eligible for membership if certain steps are followed, the court must proceed as if the child is an Indian child and direct the appropriate individual or agency to provide active efforts under rule 5.484(c) to secure tribal membership for the child."

Father argues that the Department failed to carry out this directive because it did not return Minors' tribal enrollment applications promptly, depriving the family of ICWA's additional protections and services. His contention fails. Shortly after the juvenile court made its order, our Supreme Court held that rule 5.482(c) is invalid because it impermissibly "appl[ied] ICWA's requirements to, or require[d] membership applications be made on behalf of, children who are not Indian children as defined in ICWA."6 (In re Abbigail A. (2016) 1 Cal.5th 83, 93, 96.)7 Thus, because Minors were not Indian children as defined in ICWA, the juvenile court was not required to proceed as if they were in fact Indian children and the Department was not required to pursue tribal membership for them.

Father argues that we should not apply the normal rule that judicial decisions are given retroactive effect. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 851.) We recognize that "narrow exceptions to the general rule of retroactivity may sometimes be justified for compelling reasons of fairness and public policy." (Ibid.) No such reasons exist here. Our Supreme Court's holding in In re Abbigail A. was unambiguous. Moreover, although Father complains of the pace of the Department's actions, the record shows that the Department gave notice to the tribes in question, submitted Minors' membership applications, and provided the Cherokee Nation with the documents it needed to decide whether to intervene in the matter.

We are unpersuaded by Father's argument that the Department had an independent duty under section 16001.9 to facilitate Minors' membership in the tribe. Section 16001.9, subdivision (a)(13) provides that minors in foster care have the right "[t]o attend school and participate in extracurricular, cultural, and personal enrichment activities . . ." Nothing in this statute shows an intent to extend ICWA's protections beyond the reach of ICWA and its implementing regulations.

We likewise reject Father's argument that the Department violated its duties under rule 5.484(c)(2), which provides that efforts to provide services to an Indian child "must include pursuit of any steps necessary to secure tribal membership for a child if the child is eligible for membership in a given tribe, as well as attempts to use the available resources of extended family members, the tribe, tribal and other Indian social service agencies, and individual Indian caregivers."8 Our high court has made clear that this mandate applies to those who meet the definition of Indian children, not to those who, like Minors, are eligible for tribal membership but do not meet that definition. (In re Abbigail A., supra, 1 Cal.5th at pp. 96-97.)

Father also draws our attention to a federal guideline issued by the Bureau of Indian Affairs, which provides that "[i]n the event the child is eligible for membership in a tribe but is not yet a member of any tribe, the agency should take the steps necessary to obtain membership for the child in the tribe that is designated as the Indian child's tribe." (Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, 80 Fed.Reg. 10146 (Feb. 25, 2015).) Once again, this guideline by its terms applies only to Indian children as defined by ICWA. (80 Fed.Reg. 10146 (Feb 25, 2015).)

Father also argues the juvenile court abused its discretion in not continuing the six-month status review hearing to resolve the question of whether ICWA was applicable. In In re Abbigail A., our high court noted that, although continuances are discouraged, the juvenile court "has authority to grant brief, necessary continuances that are not inconsistent with the child's best interests," and there might be occasions when "wait[ing] a few days or weeks while a parent or child pursues an application for tribal membership might in some cases save time in the long run" by obviating the need for new jurisdictional and dispositional hearings. (In re Abbigail A., supra, 1 Cal.5th at p. 95.) Here, of course, the hearing in question was not a jurisdictional and dispositional hearing, but a six-month review hearing. In any case, nothing in In re Abbigail A. suggests a juvenile court abuses its discretion by proceeding with a hearing in a case while applications for tribal membership are pending, rather than resolving the ICWA issues, if necessary, at a hearing after the tribe has made its decisions on tribal membership and intervention.

III. DISPOSITION

The July 12, 2016 order is affirmed.

Ruvolo, P.J. and Reardon, J., concurs.

FootNotes


1. All undesignated statutory references are to the Welfare and Institutions Code.
2. Regional centers are designed to provide services to persons with developmental disabilities. (In re Victoria M., supra, 207 Cal.App.3d at pp. 1329-1330.) Those services include services directed toward the alleviation of a developmental disability, including diagnosis, evaluation, treatment, education, mental health services, counseling, and training for parents with developmental disabilities. (Ibid; § 4512, subd. (b).)
3. To state a claim under Title II of the ADA, a party must allege "`(1) the plaintiff is an individual with a disability; (2) the plaintiff is otherwise qualified to participate in or receive the benefit of some public entity's services, programs, or activities; (3) the plaintiff was either excluded from participation in or denied the benefits of the public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (4) such exclusion, denial of benefits, or discrimination was by reason of the plaintiff's disability.'" (In re M.S. (2009) 174 Cal.App.4th 1241, 1252.) Section 504 of the Rehabilitation Act prohibits a "qualified individual with a disability" from being denied the benefits of a program or activity receiving federal financial assistance. (29 U.S.C. § 794(a).)
4. The documents are United States Department of Health and Human Services and United States Department of Justice, Protecting the Rights of Parents and Prospective Parents with Disabilities: Technical Assistance for State and Local Child Welfare Agencies and Courts under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, August 10, 2015; and United States Department of Justice and United States Department of Health and Human Services, Investigation of the Massachusetts Department of Children and Families by the United States Departments of Justice and Health and Human Services Pursuant to the Americans with Disabilities Act and the Rehabilitation Act, January 29, 2015. We grant Father's request for judicial notice of these documents.
5. All rule references are to the California Rules of Court.
6. ICWA defines "Indian child" to be "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C. § 1903(4).) As we have explained, the Cherokee Nation informed the Department that although Minors were eligible for enrollment through their paternal great-grandmother, who was a member, they did not currently meet the definition of Indian child.
7. Subdivision (c) of rule 5.482 was subsequently repealed.
8. Father mistakenly refers to this subdivision as rule 5.484(c)(4).

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