Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County Super. Ct. No. CK39091, Sherri Sobel, Juvenile Court Referee.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, and Frank J. Da Vanzo, Principal Deputy County Counsel, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Veronica S. appeals from an order denying her Welfare and Institutions Code section 388 petition and from an order terminating her parental rights over her children Ashley O. (born 1994), Jacob O. (born 1996), Melissa D. (born 1999), Danielle O. (born 2001) and Michael T. (born 2005) (§ 366.26). Appellant contends the juvenile court erred (1) in failing to comply with the Indian Child Welfare Act with respect to Michael; (2) in failing to comply with section 366.26, subdivision (h)(2); and (3) in denying her section 388 petition. We affirm the order denying appellant’s section 388 petition, but we reverse the order terminating her parental rights with respect to Jacob and Michael and remand with directions.
All further statutory references are to the Welfare and Institutions Code.
Danielle O. sometimes is referred to Danniella S. in the record.
The juvenile court also terminated the parental rights of M.T., the “declared” father of Michael T., Eddie D., the “alleged” father of Melissa D., and Juan O., the “biological” father of Ashley, Jacob and Danielle. None of these fathers is a party to this appeal.
BACKGROUND
In September 1999, the Department of Children and Family Services (DCFS) detained Ashley, Jacob and Melissa after Melissa was born with cocaine in her system and appellant tested positive for cocaine and marijuana. The court sustained a first amended petition alleging, among other things, that appellant had a history of substance abuse, that she used cocaine and marijuana, that she had a criminal history with convictions for drug-related offenses, that her conduct endangered her children and created a detrimental home environment and that Melissa’s alleged father, Eddie D., abused alcohol, limiting his ability to care properly for Melissa (§ 300, subds. (b) & (g)). The court declared Ashley, Jacob and Melissa dependents of the court and ordered reunification services for appellant.
In April 2001, the court placed the three children back with appellant under DCFS supervision on the condition that appellant live with the children’s maternal grandparents or in her own home. In October 2001, the court awarded appellant sole legal and physical custody of Ashley, Jacob and Melissa and terminated its jurisdiction over them. Danielle was born two months later.
In October 2005, DCFS detained all five children after Michael and appellant tested positive for cocaine following Michael’s birth. Ashley, Jacob, Melissa and Danielle were detained in the home of their maternal grandmother, Delia S., with whom they already lived. Michael remained in the neonatal intensive care unit of the hospital, as he had been born prematurely and suffered from respiratory distress. Eventually, following a couple of placements, DCFS placed Michael with Delia.
In December 2005, the juvenile court declared Ashley, Jacob, and Melissa dependents of the court under section 300, subdivisions (b) and (g), and Danielle a dependent under section 300, subdivisions (b) and (j), after sustaining allegations that appellant had a history of illicit drug use and was a current abuser of cocaine, Eddie D. had a six-year history of substance abuse including alcohol, and M.T. had a history of illicit drug abuse and a violent criminal history, which included a conviction for attempted murder. The court also found that Ashley, Jacob and Melissa previously had been dependents of the court as a result of appellant’s illicit drug use and Eddie D.’s alcohol abuse and that appellant continued to abuse drugs. The court denied appellant reunification services pursuant to section 361.5, subdivision (b)(13), and denied Eddie D. and Juan O. reunification services pursuant to section 361.5, subdivision (a). A section 366.26 hearing was scheduled for the four children.
On January 3, 2006, the court declared Michael a dependent of the court pursuant to section 300, subdivision (b). The court noted that appellant had been denied reunification services pursuant to section 361.5, subdivision (b)(13), on December 12, 2005, and it denied M.T. family reunification services under section 361.5, subdivision (b)(12). A section 366.26 hearing was scheduled for Michael.
As of March 23, 2006, DCFS had no knowledge of appellant’s whereabouts. On May 22, DCFS received notification from the probation department that on May 6, appellant, who “‘has a strong addiction to crack cocaine”’ was incarcerated. On September 28, DCFS learned that appellant had been transferred to a 90-day residential chemical dependency program. Appellant’s release or termination date was unknown.
On November 7, 2006, one day prior to the date set for a contested section 366.26 hearing, appellant filed a section 388 petition in which she sought the return of her five children and family maintenance services. Appellant, who had been incarcerated from May to September 28, claimed to be drug-free since entering the residential drug program.
On November 8, the court first turned its attention to appellant’s section 388 petition. Although the court characterized the petition as “untimely, ” it voiced its belief that parents should be heard and stated it was “willing to have the 388 heard on its paperwork today.” After entertaining the arguments of counsel, the court denied appellant’s section 388 petition because she had failed to demonstrate that her circumstances had changed or that the requested modification was in her children’s best interests. In the court’s view, “[c]lean and sober for 30 days [was] not impressive” as this was “the second time through for the mother.”
The court next held the selection and implementation hearing as to then 12-year-old Ashley, 10-year-old Jacob, 8-year-old Melissa, 5-year-old Danielle and 1-year-old Michael. Only the two youngest children, Danielle and Michael, were present for the hearing. The court stated: “I must tell you, the .26 is giving me a little bit more trouble. [¶] I agree that [Delia S., ] the [maternal] grandmother has raised the children. I agree that the mother has a horrendous history and that things are not getting better. [¶] My problem is the age of the children. And those children are not here to testify as to their relationship with the mother. [¶] Again — so regarding the younger children, I don’t think there is as much of an issue. What’s interesting to the court as well is the post-adoptive contact. I really have to find that the children are adoptable, and I can find that by clear and convincing evidence. [¶] The only issue is the mother’s relationship with the children. Does it rise to the level — does it rise to the level necessary to not terminate parental rights? And, unfortunately, it’s going to be — if we get anywhere, it’s split given the ages of the children. I am torn, I must say.” The court then asked to hear testimony from Delia S.
Delia S. acknowledged that she had raised the children since they were born. When appellant was not incarcerated, she lived in the same house and sometimes helped Delia take care of the children. Delia, however, was the main person who on a daily basis cared for the children. Delia cooked for the children, took them to school, attended parent/teacher conferences and washed their clothes. Delia understood the difference between legal guardianship and adoption. Although her preference was legal guardianship, she was prepared to adopt all five children.
At the conclusion of Delia’s testimony, the court noted, “It is clear that the primary parent for these children since birth has been the grandmother. It is also clear that, while she is hoping that her daughter gets her life together, and does not want to take away the parental rights of her daughter, she has always been the primary parent.” The court concluded that the parental relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(A)) did not apply. Regarding the three younger children, Melissa, Dannielle and Michael, the court stated, “I don’t think there is any question that there has not been a relationship.” With respect to the two other children, Ashley and Jacob, the court noted “they have caused me a little bit of concern but the grandmother’s answers, I think, were candid, open and I think a little sorrowful. In fact, the person who has had the relationship with the children has been the grandmother. [¶] Mom’s been a visitor in her children’s lives.” In response to M.T.’s request the older children “[g]ive[] their positions as to whether they want to be adopted or whether they want to be in a guardianship, ” the court stated he lacked standing to argue about any specific permanent plan even as to his own child, let alone the older children who are not his.
The court continued: “I’m not comfortable asking children what they wish when it comes to legalities. Had the grandmother been able to establish the fact that the mother was parenting on a regular basis, my next step would have been to ask the older children everything that the mother has done. Grandmother answered those questions, and I don’t see any reason to put these children through this court situation.” The court then terminated appellant’s parental rights, as well as those of the children’s fathers.
DISCUSSION
Indian Child Welfare Act (ICWA)
Appellant maintains that the order terminating her parental rights as to her son Michael must be reversed because the juvenile court failed to make a determination as to whether ICWA applied. We agree and conditionally reverse the order as to Michael.
At the detention hearing held on October 20, 2005, the juvenile court inquired about Native American heritage. Although appellant disclaimed any such heritage, M.T., Michael’s father, claimed his paternal grandfather of was “Blackfeet” descent. The juvenile court ordered DCFS to notice the tribe with respect to Michael.
In November 2005, DCFS reported that on November 1, M.T. “reported he does not have American Indian Heritage.” DCFS further stated that M.T. provided a dependency investigator (DI) with his grandmother’s telephone number so the matter could be investigated further. The investigator did not have sufficient time to investigate but would do so.
On January 24, 2006, DCFS advised the court that on January 13, “DI Ervin contacted [Michael’s] paternal great grandmother to obtain further information for the ICWA notices. Later in the evening, father left a message in which he asked the DI not to call the great grandmother, that the information the DI needed was a matter of public record, and told the DI to do her job.”
In April 2006, DCFS reported that ICWA “does or may apply.” In its May 2, 2006, June 8, 2006 and October 6, 2006 reports, DCFS stated that ICWA “does not apply.” DCFS provided no explanation for the change in its conclusion, and it did not detail any further efforts to comply with the notice requirements of ICWA.
Except for the court’s initial order of October 20, 2005, directing DCFS to notice the Blackfeet tribe, the record contains no further ICWA orders or findings. Although DCFS acknowledges as much, it claims that any error in failing to comply with the provisions of ICWA was harmless, in that M.T. recanted his claim to Native American ancestry. We are not convinced. While M.T., in November 2005, denied being Native American, his telephone message to the DI in January 2006 suggested otherwise. Any perceived gamesmanship or lack of cooperation on the part of M.T. cannot be the justification for DCFS’s or the court’s failure to comply with ICWA, as “the right to notice belongs to the Indian tribes.” (In re Amber F. (2007) 150 Cal.App.4th 1152, 1155.)
Subdivision (h) of Section 366.26
Notice of a selection and implementation hearing must be given to any child “10 years of age or older.” (§ 294, subd. (a)(3).) If such a child is not present at the section 366.26 hearing, the court must determine whether the child was notified properly of his or her right to attend the hearing. (§ 349.)
Section 366.26 in pertinent part provides: “(h)(1) At all proceedings under this section, the court shall consider the wishes of the child and shall act in the best interests of the child. [¶] (2) In accordance with Section 349, the child shall be present in court if the child or the child’s counsel so requests or the court so orders. If the child is 10 years of age or older and is not present at a hearing held pursuant to this section, the court shall determine whether the minor was properly notified of his or her right to attend the hearing and inquire as to the reason why the child is not present.”
At the contested section 366.26 hearing held on November 8, 2006, only Ashley and Jacob were 10 years of age or older. As such, each child was entitled to receive notice of the section 366.26 hearing. At the commencement of the hearing, the juvenile court found that “[n]otice has been given as required by law.” Our review of the appellate record discloses that while Ashley was given notice, Jacob was not. Inasmuch as Jacob was not properly notified of his right to attend the hearing, the order terminating appellant’s and Juan O.’s parental rights as to Jacob must be reversed and the matter remanded for a new and properly noticed section 366.26 hearing.
On our own motion, we have augmented the appellate record to include the juvenile court’s file.
As for Ashley, she was given proper notice of the section 366.26 hearing and obviously elected not to be present in court. Although the court voiced its concern about the section 366.26 issues given Ashley’s age, it was able to determine through the testimony of Delia that the true parental figure in the children’s lives was Delia, not appellant. Indeed, DCFS had reported for the section 366.26 hearing that “[a]ll the children are so adapted living at maternal grandparents’ house that when this CSW discussed adoption with them, they seemed comfortable about it as long as they stay with maternal grandparents.” In particular, “Ashley . . . stated having no concern about being adopted by maternal grandmother, Delia S[.]”
Finally, we note that on October 6, 2006, when the court set the matter for a contested section 366.26 hearing, the court asked appellant’s trial counsel if the children needed to be present for the contest. When counsel responded that they were not needed, the court stated, “The children are excused.” Appellant therefore has waived any claim based Ashley’s absence at the section 366.26 hearing.
Section 388 Petition
Appellant challenges the denial of her section 388 petition, in which she sought the return of her five children and family maintenance services. Section 388 permits a party to petition the juvenile court to change its prior orders based upon a change of circumstances. (In re Amber M. (2002) 103 Cal.App.4th 681, 685; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The party seeking a change must demonstrate both that a change of circumstances exists and that the proposed change of court order is in the child’s best interests. (Casey D., supra, at p. 47.) We review the court’s rulings on the petition for abuse of discretion. (Amber M., supra, at p. 685; Casey D., supra, at p. 47.) Discretion is abused when the court’s ruling is arbitrary or capricious or exceeds the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
Under section 388, “the change of circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged prior order.” (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485.) A mere prima facie showing of changing circumstances is not enough to justify the granting of a section 388 petition. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 609-610.)
Appellant’s showing that she had been sober for a mere 30 days, following her release from custody, was insufficient to establish a “change . . . of such significant nature, ” justifying the modification of prior orders. (Ansley v. Superior Court, supra, 185 Cal.App.3d at p. 485.) The evidence also was not sufficient to establish that a change of orders would be in the children’s best interests. (In re Angel B. (2002) 97 Cal.App.4th 454, 464-465.)
DISPOSITION
The order denying appellant’s section 388 petition is affirmed. The order terminating appellant’s and Juan O.’s parental rights as to Jacob O. is reversed and the matter is remanded for a new section 366.26 hearing, following proper notice to all required persons, including Jacob O.
The order terminating appellant’s and M.T.’s parental rights as to Michael T. is reversed and remanded with directions to order DCFS to comply with the notice provisions of ICWA and to file all required documentation with the juvenile court. If, after proper notice and inquiry, a tribe claims Michael T. as an Indian child, the juvenile court shall proceed in conformity with ICWA. If, on the other hand, no response is received or no tribe claims Michael T. as an Indian child, the juvenile court shall reinstate the order terminating appellant’s and M.T.’s parental rights as to Michael T.
We concur: MALLANO, Acting P. J., ROTHSCHILD, J.