D.B. v. Superior Court, A123439

D.B. v. Superior Court (A123439).

Court of Appeal for the First Appellate District - Decided 02/18/2009

Facts and Procedural History

The child in this case, A.H., was delivered by R.H. in July, 2008, after she was rushed to the hospital following an automobile accident. R.H. died several days later from her injuries in the accident. At birth, A.H. was two months premature and tested positive on a toxicology screen. A.H. was detained under subdivision (g) of section 300 of the Welfare and Institutions Code, because R.H. had died leaving no provision for his support, the man to whom R.H. was married denied being the child's father and was unable and unwilling to provide support, and D.B. (the presumed father) was at that time incarcerated and unable to provide care and support.

The social services agency documented that D.B. had a long history of drug abuse, including several failures to complete drug treatment as required by the terms of his parole. Nonetheless, D.B. wanted to obtain custody of A.H., even though the week after R.H. died, D.B. was again incarcerated for violating the terms of probation by possessing marijuana and using methamphetamine.

During discussions with the agency, D.B. provided notice to the agency that he had Indian blood. The agency completed ICWA notifications to the Bureau of Indian Affairs, who responded that D.B. had provided insufficient information to establish a biological link to an original ancestral tribe member. D.B. testified at the dispositional hearing that he subsequently provided to the agency the name and address of an uncle who would know more about the family's tribal connections. The social worker neither confirmed nor denied this allegation, and the agency never followed up on it.

Based upon the information before it, the juvenile court determined that reunification services for D.B. could be bypassed under Welf. & Inst. Code section 361.5(b)(13). The court further determined that, because neither R.H. nor D.B. were enrolled members of an Indian tribe, ICWA did not apply to the case. The court issued an order setting the case for a 366.26 hearing, and D.B. appealed.


  1. May a court bypass reunification pursuant to section 361.5(b)(13) for failure to comply with court ordered drug treatment, when that treatment is a condition of parole or probation rather than a condition of sentencing?

  2. Did the juvenile court err in its determination that ICWA did not apply to a case where neither parent was an enrolled tribal member and where additional information about the parents' Indian status was never pursued by the agency?


In considering the father's claim that the juvenile court erred in treating drug treatment provided as a condition of parole or probation as "court-ordered treatment" for the purposes of 361.5(b)(13), the appellate court considered the question solely one of correct statutory interpretation, and accordingly subjected it to de novo review. The court found that the purpose of 361.5(b)(13) was to determine whether a parent's failure to comply "signifies a substance abuse problem so intractable that the provision of reunification services would be a waste of time."

Viewed in that light, the court held that D.B.'s claim that drug treatment ordered as a condition of probation was not meaningfully different from drug treatment provided as a condition of sentencing. To treat them as different, the court held, would produce "an absurd consequence". The court further noted in support of its conclusion that D.B. did not offer any reason why the Legislature would consider resistance to treatment while on probation less probative of a person's ability to reunify than resistance to treatment while on parole.

As regards the question of ICWA notification, the court held that the juvenile court used the wrong standard in evaluating whether ICWA applied. Under the ICWA (25 USC 1903(4)), an Indian child is defined as "any unmarried person who is under the age of 18 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." Though D.B. was not enrolled in any Indian tribe, the Court noted that lack of enrollment is not necessarily dispositive of tribal membership as formal membership criteria differ from tribe to tribe, and enrollment is not necessarily a requirement for membership. Although the BIA was unable, based on the information provided to it in the agency's initial inquiry, to substantiate A.H.'s Indian status, the additional information provided by D.B. provided the Social Services agency with additional information that should have triggered a new round of ICWA notifications.


  1. YES, a court may bypass reunification pursuant to section 361.5(b)(13) for failure to comply with court ordered drug treatment when that treatment is a condition of parole, probation, or sentencing, since failure to comply with any kind of drug treatment is equally probative as to the question of whether such failure "signifies a substance abuse problem so intractable that the provision of reunification services would be a waste of time."

  2. YES, the juvenile court erred in allowing a 366.26 hearing to be calendared without additional ICWA notifications reflecting the new information provided by D.B. at the dispositional hearing.


The Social Services Agency conceded that the case must be remanded so that ICWA notices containing the additional information can be sent out, so the court remanded for that limited purpose. The order denying reunification services was affirmed and D.B.'s petition was denied as to that order.

The full text of the opinion can be downloaded here: PDF, Word.

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