Opinion
F079821
05-11-2020
In re R.S., a Person Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. J.Y., Defendant and Appellant.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18CEJ300311-1)
OPINION
APPEAL from an order of the Superior Court of Fresno County. Brian M. Arax, Judge. Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent.
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J.Y. (mother) appeals from the juvenile court's order terminating her parental rights to her now two-year-old son, R.S. (Welf. & Inst. Code, § 366.26.) Mother contends the juvenile court erred when it denied her section 388 petition and failed to apply the beneficial parental relationship exception to adoption (§ 366.26, subd. (c)(1)(B)(i).) Mother also contends reversal is required because the juvenile court failed to comply with the Indian Child Welfare Act (ICWA). We reject mother's contentions and affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
These proceedings began in October 2018, when police investigating a referral discovered mother, A.S. (father) and eight-month-old R.S. (baby) staying in a house that was under construction, with methamphetamine and drug paraphernalia accessible to the baby. Father admitted to recent methamphetamine use, and mother admitted to past methamphetamine use. Mother and father were arrested and charged with child endangerment. Father also was charged with possession of methamphetamine and drug paraphernalia, and violating a restraining order between he and mother. The baby was taken into protective custody and placed in a foster home.
Father and mother later admitted to a social worker they used methamphetamine while caring for the baby, though they claimed they took turns using outside the home and sometimes had a friend watch the baby while they used. In 2017, mother went to the Marjaree Mason Center due to domestic violence by father; mother attended classes there, but did not complete them. Mother said she intended to have the restraining order removed, but had not done so because things had improved between her and father.
Mother admitted she used methamphetamine twice a week and had a history of methamphetamine use. She entered treatment at WestCare on October 31, 2017, but left early when she gave birth to the baby a little over three months later. She planned to return to WestCare with her son, but she was discharged from the program after he had medical complications due to heart issues and had to be transported to San Francisco. The baby was under a cardiologist's care, but only needed to be seen annually.
Mother had two older children, neither of whom were in her custody. In May 2018, a maternal aunt and uncle adopted a son mother had with father, while the maternal grandparents had legal guardianship of her daughter from a previous relationship.
The Department filed a petition alleging the baby came within the provisions of section 300, subdivision (b)(1) based on mother's and father's substance abuse. The juvenile court ordered the baby detained on October 29, 2018. Mother and father were offered services, including parenting classes, evaluations for substance abuse, mental health, and domestic violence, with any recommended treatment, and random drug testing.
Father filed a declaration on October 29, 2018 stating he may have Native American ancestry through the Yaqui tribe. Father told the social worker paternal grandmother was Yaqui, but she was not registered with the tribe. Mother filed declarations on October 29 and November 16, 2018, stating she had no known Indian ancestry.
The Department sent a Notice of Child Custody Proceeding for an Indian Child (form ICWA-030) to the Pascua Yaqui Tribal Council and Bureau of Indian Affairs. Information provided concerning the paternal grandmother, who was deceased, included her full name, a date of birth of "01/24/1935," and place of birth in Yuma, Arizona.
In a December 12, 2018 letter, the Pascua Yaqui Tribe responded that the tribe's enrollment department had indicated the baby and parents were not members of the tribe and did not have applications for membership pending. Based on the family information provided and current enrollment records, the baby was not eligible for membership and the tribe would not intervene in the matter.
Jurisdiction and Disposition Hearing
In a report prepared for the combined jurisdiction and disposition hearing, the Department recommended that the baby be adjudged a dependent and remain in out-of-home care, and the parents be denied reunification services. Father was released from jail on December 7, 2018, and had not made contact with the Department.
Mother, who was 29 years old, admitted using drugs since she was 18. During a January 11, 2019 meeting with the family reunification panel, mother told the panel she completed court-ordered drug treatment in 2009, which included six months at an outpatient drug treatment program, and went to residential drug treatment at Spirit of Women for three months in 2012. Mother was kicked out of that program when she relapsed. She completed treatment at the Evangel Home drug program and was doing well, but eventually she stopped participating in her recovery and it caught up to her. Mother claimed to no longer be in a relationship with father, as he was not making efforts to reunify with the baby.
Mother said she last used methamphetamine on January 8, 2019. She wanted to get residential treatment, because her services would be in one place and she knew she needed it. When asked what held her back from making more efforts to enter treatment since her release from jail, mother responded she was holding herself back.
The social worker noted mother had not made any effort to engage in the services offered her. Mother completed a substance abuse assessment on November 30, 2018, and was recommended to participate in residential substance abuse treatment. She was referred to Fresno First, with an intake date of December 3, 2018, but did not attend the appointment as she reported she was arrested for possessing bullet casings. Mother had not enrolled in random drug testing and admitted to continued methamphetamine use. Mother did not attend the domestic violence index appointment or mental health assessment. Mother was referred to a parenting class, but missed the first class due to a criminal court date and remained on the waiting list for the next available session. On December 10, 2018, the agency notified the Department they were unable to contact mother to enroll her.
The Department recommended mother be denied services under section 361.5, subdivisions (b)(11) and (13). The first ground for denial was based on the termination of parental rights as to mother's older son and her failure to make reasonable efforts to treat the problems that led to his removal. The second ground for denial was based on mother having been court-ordered into outpatient drug treatment by the criminal court in August 2009, her completion of that program by March 2011, and her continued use of methamphetamine.
At the February 6, 2019 combined jurisdiction and disposition hearing, the juvenile court granted the Department's motion to declare ICWA inapplicable to the case based on the Pascua Yaqui Tribe's response, and found ICWA inapplicable. The juvenile court found the petition's allegations true and adjudged the baby a dependent, removed him from parental custody, and denied mother and father reunification services as the Department requested. The juvenile court set a section 366.26 hearing for May 29.
Subsequent references to dates are to dates in 2019 unless otherwise stated.
The Section 388 Petition
On May 20, mother filed a section 388 petition asking the juvenile court to either return the baby to her on family maintenance or, in the alternative, order reunification services, increase her visits, and vacate the section 366.26 hearing. As changed circumstances, mother asserted she had been self-enrolled in WestCare since February 12, 2019, and continued to be fully engaged in her treatment program. In addition, she was attending AA/NA meetings, testing negative, and consistently visiting the baby on a weekly basis. Allowing mother to reunify with the baby would in his best interest, as reunification would help preserve and strengthen their family and bond, she had worked hard to become a safe and stable parent, and it would ensure the baby's fundamental interest in being part of his biological family, while keeping him safe by continued court supervision.
Attached to the petition were documents from her residential drug treatment program and two character references. Mother entered WestCare's residential drug treatment program on February 12, 2019 and was scheduled to remain in residential treatment for 120 days. Mother successfully completed 90 days of treatment on May 12, but she wanted to remain in treatment so she could have a solid foundation before transitioning to outpatient services. While in treatment, she had been actively participating in groups, including alcohol and drug education, relapse prevention, anger management and healthy relationships. She was also participating in a 15-week parenting class. Mother was in phase two of the program and an active CORE member, which is comprised of individuals selected through an interview process who engage with peers across all stages in the recovery process. She had been randomly testing while in treatment with no sign of new use.
The juvenile court granted mother a hearing on the section 388 petition, to be held at the same time as the section 366.26 hearing.
The Reports for the Combined Section 366 .26 and Section 388 Hearing
On May 22 and May 23, the Department sent facsimile transmissions to the Pascua Yaqui Tribe and the Bureau of Indian Affairs, respectively, stating that on November 19, 2018, an ICWA notice was mailed to the tribe and the Department recently received additional information regarding the family lineage, namely that father informed a social worker on April 4 that he may have provided the wrong date of birth for the paternal grandmother and another possible date of birth for her was January 25, 1938. The Department asked the tribe to research its tribal registry once again and let the Department know as soon as possible whether the baby is a member or eligible for membership based on this new information, noting that a section 366.26 hearing was set for May 29. The Department filed its request with the court, and served it on the parties, on May 23.
In the report prepared for the section 366.26 hearing, the Department recommended the termination of parental rights and a plan of adoption for the baby.
The baby appeared to be physically and cognitively age appropriate in development. He interacted well with the adults in his foster home, as well as the other infant there. He had a congenital heart defect that required surgery shortly after birth. He was seen by a cardiologist in February who stated his heart was okay, but his lungs sounded weak. In April, lab work revealed the baby had elevated platelets and he was referred to an oncology clinic at Valley Children's Hospital.
The baby was participating in bi-weekly individual therapy to address his irritability, anger and anxiety. He experienced anxiety at night and after visits with mother. The therapist was going to refer the baby to therapeutic behavioral services to address his severe tantrums. He was impatient and more irritable than other children his age. The therapist was not sure what was creating the baby's symptoms, but they were possibly due to trauma he experienced when he was with mother. It took the baby awhile to calm down after visits with mother and, in the therapist's opinion, the baby had adjusted to his care providers and was not comfortable with mother. The care providers also expressed concerns about the baby's anxiety - he would scratch himself when having an anxiety attack. In addition, he was very hyperactive, and threw himself on the floor when upset.
The Department considered the baby adoptable. He had been with his care providers from the outset of the case and thriving in their care. The baby had developed a significant bond and attachment to his care providers, who the Department considered prospective adoptive parents as they were committed to adopting him.
Mother had visited the baby regularly. During visits, mother demonstrated an ability to stimulate the baby's development, and her engagement and interactions with him were appropriate, but she had limited ability to provide structure. At the beginning of visits, mother would sit the baby down and give him a snack, but thereafter he would dictate the visits and do as he pleased, with mother following him around. Mother was affectionate and attentive toward the baby, and continually praised him when he did well. While the baby appeared okay with mother's affection, he sometimes cried and did not want to visit. For example, during a visit on April 4, the baby began to cry immediately once in the visitation room and continually tried to open the door that led to the waiting room where his care provider was waiting. Mother tried to comfort the baby, but had a difficult time getting him to calm down. During a May visit, however, the baby interacted with mother and did not cry; he appeared more comfortable around her.
The prospective adoptive parents gave the baby a structured and stable living environment, with a set routine. They demonstrated an ability to nurture the baby, and were loving and affectionate with him. The prospective adoptive parents stimulated the baby's development, and demonstrated an ability to interact and engage with him appropriately. The baby was very comfortable around them and thriving in their care, and it was evident they had developed a trusting and nurturing relationship with him. The social worker opined it was in the baby's best interest to have a stable home through adoption.
The social worker opined that based on his observations, the baby did not have a bond or attachment to mother, as evidenced by his crying and attempting to leave the room to get to his prospective adoptive mother. After every visit, the baby immediately went to his prospective adoptive mother and cried when she was out of sight, even when mother was trying to calm him. While there was a friendly bond between mother and the baby, there was no parent/child bond or attachment.
The report stated that ICWA did not apply, noting that the juvenile court found ICWA inapplicable on February 6. On April 4, the social worker again asked father whether he had Native American ancestry. Father responded he did through paternal grandmother who was born on a reservation in Yuma, Arizona. Father said paternal grandmother passed away before she could register with the tribe, but she belonged to the Yaqui tribe. On May 14 and 22, the social worker attempted to contact father to schedule an appointment to meet with the Department's ICWA liaison to verify the information he provided regarding his Indian ancestry, but was unable to reach him as his phone was not in service. The Department recommended the court continue to find ICWA inapplicable.
At the May 29 section 366.26 hearing, the juvenile court set the matter for trial at the request of mother's attorney and ordered the Department to file a report assessing the section 388 petition.
On July 19, the Department submitted its response to the section 388 petition, recommending the juvenile court deny the petition. The Department acknowledged mother's progress toward sobriety by participating in a substance abuse treatment program during the past five months, which demonstrated her willingness to change her current circumstances and maintain her sobriety. However, mother's drug use dated back to when she was 17 years old and by her own account, she had been in multiple substance abuse programs, yet she continued to use drugs. In addition, mother had two older children who were not in her care due to her ongoing substance abuse problems. Mother continued to use drugs even after the baby was removed from her care and her history showed she had not remained sober for a significant period of time despite being provided services. Mother had been unable to demonstrate the ability to remain sober outside a controlled environment and to adequately care for her children due to her substance abuse problem. While mother had shown her circumstances were changing, she had not shown she had changed by remaining sober for a significant period of time.
In addition, the Department was concerned that there appeared to be no significant attachment between mother and the baby, even though mother had been visiting the baby consistently since the inception of the case. The social worker noted the baby was one year old and needed continuity and stability, as well as a stable and sober care provider to meet his needs. The baby was stable and thriving in his current placement. The social worker opined it would be detrimental to remove him from the care of his care providers.
The Combined Section 366 .26 and Section 388 Hearing
At the August 5 combined section 366.26 and section 388 hearing, the Department submitted on all of its reports. As to ICWA, County counsel informed the court the Department had contact with father in April, when father indicated he may have provided the wrong date of birth for the paternal grandmother, and on May 22, the Department faxed an updated information request to the tribe, which was filed with the court. County counsel stated that to date, the tribe had not responded, although both he and the Department's ICWA liaison had been attempting to contact the tribe. The Department was asking to proceed since no response had been received, it had been over 60 days since the new information was provided to the tribe, and the prior information from the tribe was that the baby and father were not subject to ICWA. The juvenile court agreed to proceed based on County counsel's representations. County counsel then submitted on the recommendations. The baby's attorney agreed with the Department's recommendations.
Two visitation monitors employed at the visitation center testified. Mother had consistently visited and was prepared for the one-hour visits. Mother played with the baby, taught him things like how to stack blocks, and was appropriate and nurturing. Mother redirected the baby when he misbehaved. She brought snacks and juice. One of the monitors who observed visits for four months testified the quality of the visits improved over time; at first, the baby was not familiar with the facility and would cry for 15 to 30 minutes, but as the months progressed, he got used to it and no longer fussed. The other monitor testified that in the two and a half months he had been monitoring mother's visits, the visits had improved. For the first three visits, the baby was reluctant to do anything, cried frequently and wanted to leave as soon as he got in the room, but then the baby became very excited to be in the room and play with mother. If the baby fell, he would look to mother for comfort. One of the monitors observed the baby crying when separating from mother one or two times, but that was not very frequently and usually occurred on days they were playing a particular game together.
The lead childcare worker in the WestCare learning center testified that mother participated in the learning center and the nurturing parenting class she facilitated. Mother completed the parenting class on June 23 and was an active participant. The worker knew mother from the time she was at WestCare when she was pregnant with the baby. The worker had seen a difference in mother's participation from the first time she was there. The first time, mother was very quiet and did not interact with others, but this time she had grown in her ability to advocate for herself and was very open with others. The worker had seen mother interact with children at the learning center; mother met their needs, talked to them, and interacted and played with them.
Mother's residential counselor at WestCare testified that mother was in the WestCare inpatient program for 120 days and had transitioned into sober living and the outpatient program in June. Mother randomly drug tested while in the inpatient program and tested negative. The counselor was also mother's counselor the last time mother sought treatment at WestCare, when she was pregnant with the baby. The counselor said mother did not complete treatment the first time because she had medical issues with her pregnancy and had to stay in San Francisco because the baby had problems after birth. The biggest difference this time was that mother was no longer in a relationship with father, which the counselor understood was an unhealthy relationship. In addition, mother was more focused on her own recovery, rather than what her peers were doing, and she came into treatment willingly with an open attitude, and wanted to live differently even though she was unsure what would happen with the baby.
Mother was part of WestCare's core program, in which the participant acts as a liaison between staff and the clients. The participant has to apply for and be interviewed for the position, and is a role model for the community. The counselor approved mother's application because she was focused on her programming and participating in groups. Mother did well as a core member - she was able to report certain participants as not complying with the rules, although it was uncomfortable for her to do so. The counselor believed the biggest hurdle mother had was her relationship with father, and when she separated from him, she was able to focus on her treatment.
The social worker assigned to mother's case testified the Department did not recommend the baby reunify with mother because the baby was stable and doing well in his placement, where he had been for nine months, and mother had not demonstrated the ability to provide for the baby's safety and well-being due to her substance abuse. His opinion was based on mother's ongoing substance abuse history; while mother was working toward changing, she had not demonstrated she had changed and overcome her substance abuse. He did not feel it would be in the baby's best interest to give mother reunification services because the baby was stable and thriving in his placement.
The social worker's recommendation was to terminate parental rights and place the baby for adoption. The baby's heart condition was addressed after birth, he suffered from asthma, which was under control, and there were concerns regarding platelet levels, but the oncologist at Valley Children's examined him and everything was normal. He was receiving therapy for anxiety.
Mother testified she called WestCare for an intake appointment around February 8, and was told she could show up on February 12 to see if someone canceled. At that time, she was still in a relationship with father. He was not supportive of her going into the program and tried to prevent her from going. He was very violent and there was a lot of domestic violence in their relationship. She ran away from him on February 11 and ended up at WestCare the next day.
Mother completed the WestCare program. Through the program, she learned one of her biggest downfalls was having unhealthy relationships with violent men and now she was able to set healthy boundaries, advocate for herself, and walk away from unhealthy things. She took classes in relapse prevention, women in recovery, victims of crimes, co-occurring, anger management and parenting, and felt she benefited from them. She had graduated from WestCare on June 4. She enrolled in WestCare's outpatient program and was residing in sober living, where she would be for another two or three months. The facility allowed children to be placed with her. Mother was drug testing more than once a week and attended groups twice a week. She also attended a co-occurring class and a "fundings group." In addition, she was in weekly therapy through the prenatal program and taking weekly domestic violence child abuse classes, which she started at the beginning of July. She was not taking these classes to get the baby back, but rather because she was sick of how she was living.
This was the second time she had been in the WestCare program. The first time she was medically discharged from the program after the baby's birth. While in the hospital, a problem was found with his heart and he was rushed to San Francisco, where he had surgery. Mother tried to keep her spot in the program, but her son was in San Francisco for a month and she did not want to leave him there by himself. The first time she was in treatment at WestCare she was still with father, who said he would change, but after she returned from San Francisco, things became the same. Eventually, she decided she did not want to live like that anymore. Mother was pregnant by father; she found out she was pregnant the first month she was in WestCare. Mother was on probation and was in compliance with it.
Mother said she now had self-confidence. Her relationships with her family were pretty much nonexistent due to her addiction, but they were beginning to be repaired. Mother agreed there had been a change in the visits. At the beginning she did not have a bond or connection with the baby, as he had not seen her for three or four weeks since she had been in jail. Mother claimed the baby cried when separated from the care provider because the care provider had started fostering a new child. Mother believed the visits had improved. The baby called her mom and she was using the tools she learned in parenting to redirect the baby. Mother believed she could have the baby in her care at that time, but she still wanted help because she was not a perfect parent. Mother recognized the baby had a bond with the care provider and she wanted to keep her involved.
Finally, mother's probation officer testified that mother had been sentenced in January and was complying with probation. The terms of her probation included completing a substance abuse program and a 52-week child abuse treatment program in which she enrolled on July 11. Mother had completed two classes with one absence. The probation officer believed mother had entered WestCare on her own, as he never gave her a referral.
A July 19 letter from a WestCare outpatient treatment counselor was entered into evidence. In it, the counselor confirmed mother entered the outpatient program on June 4; at the time, she was required to attend group two days a week, provide "UA sample" twice a month, and attend individual sessions; she tested negative three times; and she was an active participant during group and individual sessions.
County counsel argued the Department was recommending denial of mother's section 388 petition because she had not demonstrated her circumstances had changed. In addition, the Department provided sufficient evidence the baby was adoptable and mother had not provided sufficient evidence to show the beneficial relationship exception to adoption applied. While mother had been visiting, she and baby did not appear to have a relationship that rose to the level where the exception applied. While the Department was proud of mother and her progress, it was requesting the court follow through with the Department's recommendation for adoption.
The baby's attorney asked the juvenile court to deny the section 388 petition. While mother was in the process of getting her life together, she was in the very early stages. The baby's attorney did not believe it would be in the baby's best interest to make changes in his life, as he was benefitting from his current placement and the care providers were committed to him. The attorney agreed with the Department's recommendation concerning adoption and did not believe mother established any exception to the termination of parental rights.
Mother's attorney asked the juvenile court to grant the section 388 petition, as mother had changed her circumstances, since she had been sober since February and excelled in her inpatient program. Mother was continuing on the path of sobriety by enrolling in outpatient services and sober living. In addition, she was testing negative and complying with her probation. Mother's relationship with the baby had improved and mother was nurturing during visits. Mother's attorney argued it would be in the baby's best interest to allow either family maintenance or reunification services because it would strengthen the bond between mother and the baby, and allow him to be with his biological family, including his siblings. While it was impossible for there to be a complete change, mother had done a lot of what she needed.
Mother's attorney further argued that mother had established the requirements for the beneficial relationship exception to adoption. Mother had regularly and consistently visited the baby on a weekly basis, and their relationship had improved such that the baby would benefit from continuing it and cutting off mother's visits would be detrimental to him. While the care provider seemed to be doing a good job, there was no evidence the baby had anxiety attacks or tantrums during mother's visits. Finally, mother objected to the court finding the baby generally adoptable and asked the court, were it inclined to go forward with the section 366.26 hearing, to order guardianship rather than adoption.
With respect to the section 388 petition, the juvenile court noted that mother's challenge in establishing that circumstances had changed was that she had been in drug treatment before over the course of nine plus years, and while she had shown a capacity and ability to enter treatment programs repeatedly, she had not shown the ability to maintain long-term sobriety once out of a structured environment. In the past six months, mother had once more shown the capacity and ability to do a program well, but the reality was she was still in treatment and had not established long-term sobriety or an independent means of support to keep herself away from father or anyone who might not be good for her. While mother was maintaining visitation and developing a bond with the baby in a nurturing, appropriate fashion, she was still working on domestic violence, codependence and drug issues, and had taken only a few child abuse classes.
The juvenile court found mother's circumstances had not changed, explaining: "so when we see the record everything ends in an I-N-G. It's happening instead of happened. Your treatment is happening. Your compliance with treatment is so far that is in the midst of happening where that gets dismissed. Your bond is developing. You're learning is with domestic violence issues is just that, learning. [ ] So under these circumstances it would be impossible to say that circumstances have changed adequately . . . and that's how I find that your burden to show that circumstances have changed."
The juvenile court noted that in this situation it is required to consider, if not prioritize, the child's permanence and stability, and the younger the child and the longer duration of care, the more likely the child's interest is served by the current situation rather than taking a risk on a parent who has struggled for many years through a horribly addictive situation and is in the process of changing. The care providers had been providing good care for the baby and the placement was successful, with a bond developing.
The juvenile court adopted the reasoning on permanency planning contained in the Department's report. The court had no problems with mother's ability to provide nurture and structure, "but clearly given the day-to-day care there's been superior opportunity of the care providers to demonstrate their capabilities and commitment." The juvenile court also found the baby was, by clear and convincing evidence, generally and specifically adoptable.
The juvenile court therefore denied the section 388 petition. The juvenile court found there was clear and convincing evidence the baby was likely to be adopted and ordered adoption as the permanent plan. The juvenile court found ICWA remained inapplicable. The juvenile court terminated parental rights and ordered the child placed for adoption.
DISCUSSION
I. The Section 388 Petition
Mother contends the juvenile court abused its discretion when it denied her section 388 petition. We disagree.
A petition to modify a juvenile court order under section 388 must allege facts showing new evidence or changed circumstances exist, and that changing the order will serve the child's best interests. (§ 388, subd. (a)(1); In re Nolan W. (2009) 45 Cal.4th 1217, 1235.) We review the denial of a section 388 petition after an evidentiary hearing for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318 (Stephanie M.).) When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. (Id. at pp. 318, 319.) Where there is conflicting evidence, we reverse only if the evidence compels a finding for the appellant as a matter of law. (In re I.W. (2009) 180 Cal.App.4th 1517, 1527-1529 (I.W.).)
A parent may petition the court for such a modification on grounds of change of circumstances or new evidence. (§ 388, subd. (a)(1).) The parent, however, must also establish by clear and convincing evidence that the proposed change would promote the child's best interests. (§ 388, subd. (b)(1); Cal. Rules of Court, rule 5.570(h)(1)(C).)
Subsequent references to rules are to the California Rules of Court.
The child's best interests are of paramount consideration when, as here, a section 388 petition is brought after reunification services have been terminated. (See Stephanie M., supra, 7 Cal.4th at p. 317.) In assessing the child's best interests at this juncture, the juvenile court's focus is on the needs of the child for permanence and stability rather than the parent's interests in reunification. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47 (Casey D.).)
The "escape mechanism" provided by section 388 after reunification efforts have ceased is only available when a parent has completed a reformation before parental rights have been terminated. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.) This is because, if a parent's circumstances have not changed sufficiently to permit placement of the child with that parent, reopening reunification "does not promote stability for the child or the child's best interests" when the child is otherwise adoptable. (Casey D., supra, 70 Cal.App.4th at p. 47.) In assessing whether to grant the section 388 petition, the juvenile court may consider the entire history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)
Here, mother failed to demonstrate that circumstances had changed. While mother commendably entered drug treatment on her own and made extensive progress in addressing her sobriety, mother had reached this stage before only to relapse once she left the treatment program's structured environment. Mother had an 11-year history of drug abuse without demonstrated sobriety outside a structured setting. Moreover, while mother was maintaining visitation and developing a bond with the baby, she was still working on domestic violence issues and had taken only a few child abuse classes.
Mother asserts she has only entered treatment twice - the first time in October 2017, when she was medically discharged from the program due to the baby's surgery, and the second time in February 2019. The record, however, shows that mother completed six months of outpatient drug treatment at Fresno New Connections after being court-ordered to treatment in 2009, she had three months of residential drug treatment at Spirit of Women in 2012, but was kicked out when she relapsed, and thereafter she completed the Evangel Home drug treatment program. Mother was denied services based on her continued use of drugs following completion of court-ordered drug treatment.
Mother's efforts at sobriety were too recent to establish that her circumstances had changed and granting the section 388 request to change order was in the baby's best interest. (See In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [parents with extensive drug use history did not show changed circumstances where rehabilitation efforts were only three months old at time of § 366.26 hearing]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 [seven months' sobriety does not constitute changed circumstance where parent has history of periods of sobriety and relapse]; In re Kimberly F., supra, 56 Cal.App.4th at p. 531, fn. 9 ["It is the nature of addiction that one must be 'clean' for a much longer period than 120 days to show real reform."].)
Moreover, because the juvenile court found mother's circumstances were changing, rather than changed, it was entitled to conclude that granting her request for family maintenance or reunification services was not in the baby's best interest given his strong and immediate need for stability. (Casey D., supra, 70 Cal.App.4th at p. 49.) If a parent's circumstances have not changed sufficiently to permit placement of the child with that parent, reopening reunification "does not promote stability for the child or the child's best interests" when the child is otherwise adoptable. (Id. at p. 47.)
As the Supreme Court explained in Stephanie M., by the time a child's dependency has reached the permanency planning stage, a parent's interest in the care, custody, and companionship of the child is no longer paramount. Rather, the focus shifts to the child's needs for permanency and stability, and, in fact, there is a rebuttable presumption that continued out-of-home care is in the child's best interests. A court hearing on a modification petition at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the child's best interests. (Stephanie M., supra, 7 Cal.4th at p. 317.)
Thus, the juvenile court properly considered the baby's need for stability when it discussed how his interest was better served by remaining with the care providers rather than taking a risk on a parent who had struggled with a drug addiction for many years and was in the process of changing. There was no abuse of discretion.
II. The Beneficial Parental Relationship Exception
Mother contends the juvenile court erred in failing to find the beneficial parental relationship exception to the termination of parental rights under section 366.26, subdivision (c)(1)(B)(i). We disagree.
At a permanency planning hearing, once the juvenile court finds by clear and convincing evidence the child is likely to be adopted within a reasonable time, the court is required to terminate parental rights and select adoption as the permanent plan unless the parent shows that termination of parental rights would be detrimental to the child under one of several statutory exceptions. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).) One of these statutory exceptions is the beneficial relationship exception to adoption, which applies when it would be detrimental to the child to terminate parental rights in that "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).)
" 'To trigger the application of the parental relationship exception, the parent must show the parent-child relationship is sufficiently strong that the child would suffer detriment from its termination.' [Citation.] A beneficial relationship 'is one that "promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." [Citation.] The existence of this relationship is determined by "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs." ' " (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643 (Marcelo B.).)
Thus, the nature of the relationship between the parent and child is key in determining the existence of a beneficial relationship; it is not sufficient to show that the child derives some benefit from the relationship or shares some " 'emotional bond' " with the parent. (In re K.P. (2012) 203 Cal.App.4th 614, 621 (K.P.).) "To overcome the preference for adoption and avoid termination of the natural parent's rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) In other words, the parent must show he or she occupies a " 'parental role' " in the child's life. (K.P., at p. 621.)
The parent has the burden of proving the statutory exception applies. (In re Megan S. (2002) 104 Cal.App.4th 247, 252.) The juvenile court's decision a parent has not satisfied this burden is based on whether a beneficial parental relationship exists and whether the existence of that relationship constitutes "a compelling reason for determining that termination would be detrimental to the child . . . ." (§ 366.26, subd. (c)(1)(B).) "Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 (Jasmine D.).)
Appellate courts are divided over the appropriate standard of review to apply to an order determining the applicability of the beneficial parent-child relationship exception. Some courts have applied the substantial evidence test (e.g., In re G.B. (2014) 227 Cal.App.4th 1147, 1166), while others have applied the abuse of discretion standard (e.g., Jasmine D., supra, 78 Cal.App.4th at p. 1351.) Still other courts have adopted a mixture of both standards, applying the " 'substantial evidence standard of review to the factual issue of the existence of a beneficial parental relationship, and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination would be detrimental to the child.' " (In re E.T. (2018) 31 Cal.App.5th 68, 76 (E.T.).)
The issue is currently pending before our Supreme Court in In re Caden C. (2019) 34 Cal.App.5th 87, review granted July 24, 2019, S255839 (Caden C.).
In her reply brief, mother argues the language "whether there is a compelling reason for finding that termination would be detrimental to the child" (E.T., supra, 31 Cal.App.5th at p. 76; Bailey J., supra, 189 Cal.App.4th at p. 1315) imposes a "third prong" on review. Under longstanding principles set forth in In re Autumn H. (1994) 27 Cal.App.4th 567, 575, a finding "the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed" constitutes a compelling reason for finding that termination would be detrimental to the child. This is not a third prong. It is a balancing test to determine whether the parent has met the second "benefit" prong of section 366.26, subdivision (c)(1)(B)(i). If the juvenile court determines the parent has met his or her burden to do so, this circumstance or any of the other circumstances described in section 366.26, subdivision (c)(1)(B), by statutory definition, constitutes a compelling reason to determine termination would be detrimental to the child. (Ibid.)
Our conclusion in this case would be the same under any of these standards because the practical differences between them are "not significant," as they all give deference to the juvenile court's judgment. (See Jasmine D., supra, 78 Cal.App.4th at p. 1351.) " '[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only " 'if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he [or she] did.' " ' " (Ibid.) Moreover, a substantial evidence challenge to the juvenile court's failure to find a beneficial parental relationship cannot succeed unless the undisputed facts establish the existence of those relationships, since such a challenge amounts to a contention that the "undisputed facts lead to only one conclusion." (I.W., supra, 180 Cal.App.4th at p. 1529; Bailey J., supra, 189 Cal.App.4th at p. 1314.)
Here, there is no question mother fulfilled the first prong of the beneficial relationship exception, as she regularly visited the baby. Thus, the issue before us is whether mother met her burden on the second prong that the baby would benefit from continuing the parent-child relationship. We do not find the evidence favoring mother's position compelled the juvenile court to find the exception applied or that this is one of the extraordinary cases where this exception should have been applied.
We acknowledge there was evidence that mother's visits with the baby went well and the baby reacted positively to her during them. But this evidence fell short of establishing mother's relationship with the baby promoted his well-being to such an extent that it outweighed the well-being he would gain in a permanent home with adoptive parents. Rather, it was noted the baby was doing well with his care providers and appeared bonded to them. While visits with mother were positive, the baby went with his care providers after visits with little or no distress. The baby was only eight months old at removal and spent more than half his life with his care providers, looked to them as parental figures, and relied on them for safety and stability.
Mother's primary argument is that her progress in addressing her substance abuse and taking classes such as parenting, domestic violence, and child abuse, merited the application of the exception. She compares her case to E.T., supra, 31 Cal.App.5th 68, in which the appellate court reversed the juvenile court's order declining to apply the relationship exception, as an example of when the parent's good progress justifies application of the beneficial parent-child relationship exception. This case, however, does not help mother, as it serves as an example of the type of evidence normally required for the court to find the beneficial relationship exception exists which goes beyond participation in a case plan.
The issue of whether a showing that a parent has made progress in addressing the issues that led to dependency is necessary to meet the beneficial parental relationship exception is currently pending before the California Supreme Court in Caden C., supra, 34 Cal.App.5th 87, review granted July 24, 2019, S255839. --------
E.T. involved four-year-old twins who were "very tied" to their mother, and the mother was able to ease the children's fear and anxiety during weekly visits described as "therapeutic." (E.T., supra, 31 Cal.App.5th at p. 77.) The appellate court found the juvenile court erred by declining to apply the beneficial parent-child relationship exception because the juvenile court applied the wrong standard when it found the bond "was not to such an extent that they can't be happy in their godparents' placement." (Id. at p. 77.) The appellate court explained "[t]he standard is whether the children benefit from [the m]other's presence in their lives, not whether they could eventually be happy without her." (Id. at p. 77.)
In contrast here, mother presented no evidence to show what detriment the baby would suffer were the parent-child relationship terminated. (See, e.g., E.T., supra, 31 Cal.App.5th at p. 72 [testimony of social worker that separation from mother caused the children anxiety].) At the time of the section 366.26 hearing, the baby had been living with his care providers full time for approximately 10 months and had bonded with them. There were no reported problems with the baby transitioning from mother to the care providers. While visits with mother were positive and went well, we note the strong statutory preference for adoption at the stage of the section 366.26 hearing to ensure permanency and stability for the baby. We do not doubt mother cares deeply for the baby and has made significant progress in addressing issues of substance abuse and domestic violence, but she has not shown the juvenile court erred in terminating her parental rights.
Mother also contends the juvenile court should have ordered legal guardianship as the appropriate permanent plan for the baby instead of terminating parental rights. We disagree.
Under section 366.26, the statutory preference is to terminate parental rights and order the child placed for adoption. (§ 366.26, subd. (b)(1).) "The Legislature has thus determined that, where possible, adoption is the first choice. 'Adoption is the Legislature's first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker.' [Citation.] 'Guardianship, while a more stable placement than foster care, is not irrevocable and thus falls short of the secure and permanent future the Legislature had in mind for the dependent child.' " (In re Celine R. (2003) 31 Cal.4th 45, 53.)
Because the baby was likely to be adopted and the beneficial relationship exception did not apply to preclude adoption, the juvenile court properly selected adoption as the legislatively preferred permanent plan. Mother has not carried her burden on appeal to show the court erred by selecting a permanent plan of adoption and instead should have ordered a permanent plan of guardianship.
The juvenile court reasonably determined, and substantial evidence showed, that terminating parental rights and discontinuing mother' relationship with the baby would not be detrimental to him. The juvenile court properly considered all the facts before it and its rejection of the beneficial parental relationship exception is amply supported by the record.
III. ICWA
Finally, mother contends the juvenile court erred because it failed to ensure compliance with ICWA before terminating parental rights. She contends the Department's May 22 facsimile transmission to the Pascua Yaqui Tribe providing the tribe with a different birthdate for the paternal grandmother was inadequate because it did not comply with ICWA's notice provision, and no response was received from the tribe before parental rights were terminated.
If the trial court knows or has reason to know that an Indian child is involved in a dependency proceeding, notice of the proceeding must be given to the relevant tribes. (25 U.S.C. § 1912(a); § 224.3, subd. (a); In re Isaiah W. (2016) 1 Cal.5th 1, 8.) The notice must be sent by registered or certified mail with return receipt requested, and must include the time, date and location of any scheduled hearings. (§ 224.3, subds. (a)(1) & (5)(G).) The notice also must include "the name, birth date and birthplace of the Indian child, if known; the name of the Indian tribe in which the child is a member or may be eligible for membership, if known; and all names known of the Indian child's biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birth dates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known." (In re D.W. (2011) 193 Cal.App.4th 413, 417 (D.W.).)
A hearing may not be held until at least 10 days after receipt of notice by the requisite persons, including the tribe and the Bureau of Indian Affairs. (§ 224.3, subd. (d).) Once notice is provided, it must be sent for each subsequent hearing until it is determined the ICWA does not apply. (§ 224.2, subd. (b); D.W., supra, 193 Cal.App.4th at p. 417.)
Here, the Department originally provided the Pascua Yaqui Tribe with the paternal grandmother's name and a birthdate of "1/24/1935." The tribe responded that the baby was not eligible for tribal membership based on the information provided. Father later told the social worker he may have provided the wrong date of birth for the paternal grandmother and another possible date of birth was January 25, 1938. Rather than send a revised ICWA-030 form with this identifying information to the tribe by certified mail, the Department sent a facsimile transmission to the tribe.
First, we note that mother, as the appellant, "has the duty to present error affirmatively by an adequate record; error is never presumed." (D.W., supra, 193 Cal.App.4th at pp. 417-418.) Because the record does not establish which birthdate is the correct one, mother has not shown affirmatively that the birthdate used in the original ICWA notice was erroneous. (Ibid.)
Assuming the ICWA notice contained an incorrect date of birth, no prejudice appears. There is no claim that any of the other information about the paternal grandmother was incorrect, which was comprised of her full name and place of birth. Mother has not shown an incorrect birthdate would have thwarted the tribe's search; had the tribe determined a person with the same name but a different birthdate was "a member of the tribe or eligible for membership, surely the tribe would have said so." (D.W., supra, 193 Cal.App.4th at p. 418.)
Finally, the Department asks us to augment the record with the Pascua Yaqui Tribe's January 8, 2020 letter, along with a cover sheet showing the letter was filed in the juvenile court on January 10, 2020. In the letter, the tribe stated that, based on the family information provided by the Department through the facsimiles on May 22 and 23, and the current enrollment records, the baby was not eligible for membership and the tribe would not intervene in the matter. The Department asserts the tribe's response renders any failure to provide the tribe with formal notice harmless. (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1414 ["errors in an ICWA notice are subject to review under a harmless error analysis"].)
Mother objects to our augmenting the record on the grounds that an appeal reviews the correctness of a judgment as of the time of its rendition and the power conferred on appellate courts to take additional evidence under Code of Civil Procedure section 909 should be used sparingly and only in exceptional circumstances. Mother argues this is not an exceptional circumstance, as ICWA compliance cannot be summarily found based on "an informal post-appeal letter from the tribe," citing In re K.M. (2015) 242 Cal.App.4th 450 (K.M.).
These objections do not prevent our consideration of the tribe's response. We may take judicial notice of post-judgment records in exceptional circumstances like these in order to assess whether ICWA noncompliance resulted in prejudice to any affected tribe. (In re Z.N. (2009) 181 Cal.App.4th 282, 298-299 (Z.N.).) And we may take additional evidence and make factual determinations in the interests of justice when "causes may be finally disposed of by a single appeal and without further proceedings in the trial court." (Code Civ. Proc., § 909; rule 8.252(c)(2), (3); K.M., supra, 242 Cal.App.4th at p. 456.)
As for mother's contention that we should not decide this issue based on an informal letter from the tribe, we observe that the letter is a document which speaks for itself, the interpretation of which, in the absence of conflicting evidence, is a pure question of law. (Z.N., supra, 181 Cal.App.4th at p. 299.) Mother raises no challenge to the accuracy or authenticity of the document, other than to say it is an "informal letter" from the tribe. The letter, however, is in the same format as the tribe's December 12, 2018 response, which the juvenile court relied on in making its initial finding that ICWA did not apply. We note the question of prejudice is one of law for this court (Cal. Const., art. VI, § 13), not for the trier below. (Z.N., supra, at p. 299.)
The case mother relies on in resisting our consideration of this evidence, K.M., supra, 242 Cal.App.4th 450, is distinguishable. There, the parents appealed from the termination of their parental rights, arguing reversal was required due to the agency's lack of inquiry regarding their child's Native American heritage. (K.M., supra, at p. 452.) The agency argued the appeal was moot and filed a motion asking the appellate court to consider post-judgment evidence of ICWA compliance it produced at a juvenile court hearing held after the termination order, as well as the juvenile court's order concerning the agency's ICWA investigation and remedial efforts at notification. (K.M., supra, at p. 452.) While the appellate court agreed to consider the post-judgment evidence under Code of Civil Procedure section 909, it concluded the new evidence did not render the appeal moot because the juvenile court acted in excess of its jurisdiction in revisiting the termination order while the matter was being reviewed on appeal. (K.M., supra, at pp. 456-457.)
In contrast here, the Department is not asking us to consider a post-judgment juvenile court order. Instead, it is asking us to consider the tribe's January 2020 letter to assess prejudice on appeal, i.e. whether there is a reasonable probability of a different result absent the error or, "as sometimes phrased in the ICWA context, whether there is ' "no basis to believe" ' a different result would occur as to the child's Indian status." (Z.N., supra, 181 Cal.App.4th at p. 300.) The state has a strong interest in expediting proceedings and promoting finality of juvenile dependency proceedings. (In re Josiah Z. (2005) 36 Cal.4th 664, 676; In re Zeth S. (2003) 31 Cal.4th 396, 412-413.) In this case, " 'a conditional reversal with limited remand would be an empty formality and waste of ever-more-scarce judicial resources,' " as there is no doubt the tribe would respond to any ICWA notice with the same answer. (Z.N., supra, 181 Cal.App.4th at p. 300.) We further note the "strong policy in dependency cases that they 'be resolved expeditiously.' " (Id. at p. 301.)
Accordingly, in the interests of justice, we grant the motion to augment the record on appeal with the Department's January 10, 2020 filing in the superior court of the tribe's January 8, 2020 response, and consider the document as new evidence under Code of Civil Procedure section 909. (In re Christopher I. (2003) 106 Cal.App.4th 533, 562; rule 8.155.) The tribe's unequivocal response establishes that ICWA does not apply, as the baby is not eligible for tribal membership and the tribe would not intervene, thereby rendering any defect in notice harmless.
DISPOSITION
The juvenile court's order terminating parental rights is affirmed.
/s/_________
SNAUFFER, J. WE CONCUR: /s/_________
DETJEN, Acting P.J. /s/_________
DE SANTOS, J.