Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD223053, JD223054
BUTZ, J.
Appellant Cecilia W., mother of the minors C.A. and R.W., appeals from the juvenile court’s orders denying her petitions to reopen reunification services and terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 388, 395.) We shall affirm the orders.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2005 the Sacramento County Department of Health and Human Services (DHHS) filed section 300 petitions on behalf of three-day-old C.A. and three-year-old R.W. The petitions alleged that appellant had substance abuse problems dating back to at least 1997, and that C.A. tested positive for methamphetamine at birth.
According to the detention report, in 1997 the minors’ half siblings were detained after one of them tested positive for methamphetamine at birth. Appellant was offered reunification services in that case, but failed to reunify with either child, and the children were placed in a “permanent plan living arrangement of guardianship” with their paternal grandmother.
The detention report also noted that the minors might have Indian heritage. More specifically, the minors’ maternal grandmother “reported that her mother is from the Mono Tribe in Fresno and her father is from the Chuckchan-Si [sic] Tribe” (referring to the Picayune Rancheria of Chukchansi Indians of California) and “she is currently registered with an enrollment number through the Bureau of Indian Affairs [(BIA)].”
At the detention hearing in September 2005, appellant’s counsel told the court that appellant has Mono, Me-Wuk/Miwok and Chukchansi heritage, the minors’ maternal grandmother is an enrolled member of the Mono and Chukchansi tribes, and the maternal grandfather is an enrolled member of the Miwok tribe.
The court ordered the minors detained and that notice be sent to the Mono, Miwok, and Chukchansi tribes.
On September 29, 2005, DHHS sent copies of the petitions, notice of the next hearing, and form JV-135 to the BIA, the four bands of the Mono tribe, the Chukchansi tribe, and the 11 bands of the Miwok tribe. Among other things, the form JV-135 indicated that a maternal grandmother, two maternal great-grandmothers, and a maternal great-grandfather were enrolled members of the Big Sandy Rancheria of Mono Indians of California tribe and listed their enrollment numbers. Proof of service on the tribes/bands along with return receipts were filed with the juvenile court.
By February 2, 2006, nine of the 16 tribes/bands had responded. Big Sandy Rancheria (Mono) was among the tribes/bands that did not respond.
At the contested jurisdictional/dispositional hearing on November 18, 2005, the juvenile court assumed jurisdiction and ordered that reunification services be offered to appellant.
In the permanency report prepared in anticipation of the six-month review hearing, the social worker indicated that the Indian Child Welfare Act of 1978 (ICWA) did not apply. (25 U.S.C. § 1901 et seq.)
By the time of the six-month review hearing on June 9, 2006, appellant had “successfully completed [the] Options [four]-day outpatient program, 90 days in Dependency Drug Court and the STARS program[;] . . . actively participat[ed] in individual counseling through Strategies for Change”; “completed nine parenting classes, the parenting pre[-]test[,] and scored a 96% on her post[-]test.” In addition, she visited the minors twice a week, including unsupervised visits every weekend for a four-hour period, and overnight visits had begun in late April. She had one relapse with alcohol in December 2005. The juvenile court found appellant “made substantial progress in the past six months” and ordered that reunification services continue.
Less than two weeks later, appellant tested positive for methamphetamine. She reluctantly entered a residential treatment program and remained there at the time of the 12-month review hearing on December 18, 2006.
At that hearing, the juvenile court terminated appellant’s reunification services, citing appellant’s “relapse and resistance to residential treatment.” The court set a section 366.26 hearing for April 13, 2007, and ordered that a bonding assessment be completed.
According to the bonding assessment, the benefits of adoption outweighed any detriment the minors would suffer from termination of their relationship with appellant. While R.W. “continue[d] to show a positive emotional attachment to [appellant],” she was “accustomed to having her needs provided for . . . by other caretakers and . . . ha[d] adjusted reasonably well to not living . . . with [appellant].” C.A., who had never lived with appellant, did not demonstrate any attachment to appellant beyond what would be expected with any nonthreatening adult.
On April 6, 2007, appellant filed two section 388 petitions, one on behalf of each child, requesting that reunification services be reinstated and the section 366.26 hearing be vacated. In support of the petitions, she asserted that she had been clean and sober since her relapse in June 2006, had completed the residential treatment program, and had moved to a transitional housing program where she participated in “groups” three hours a day, three days per week, met with a counselor twice a month, and worked on life skills. Appellant had applied for housing so the minors could be placed with her. She also claimed that the minors were bonded with her and noted that she had not missed any visits with them.
At the hearing on the petitions, which occurred immediately prior to the section 366.26 hearing, appellant’s counsel clarified that “our primary request is to return the [minors] to [appellant] and reopen reunification services and to basically set a [section] 364 hearing. In the alternative, we would just ask for reunification services and proceed to a [section] 366.26 hearing to give [appellant] a chance to regain custody of [the minors].”
Section 364 provides in pertinent part: “Every hearing in which an order is made placing a child under the supervision of the juvenile court pursuant to Section 300 and in which the child is not removed from the physical custody of his or her parent or guardian shall be continued to a specific future date not to exceed six months after the date of the original dispositional hearing.” (§ 364, subd. (a).)
The juvenile court found appellant “prove[d] by a preponderance of the evidence changed circumstances since December 2006 when family reunification services were terminated. . . . She’s made substantial progress in her drug treatment and she is to be admired for dedication to her sobriety.” Nevertheless, the court denied appellant’s request to reopen reunification services, finding that “[o]pening reunification services and placing the [minors] in limbo . . . would be contrary to their best interest[s].” The court further concluded that returning the minors to appellant would not be in the minors’ best interests given her “long history of substance abuse” and past failures at rehabilitation. The court explained that appellant had “not shown as of today that she can live outside of a structured program free from drugs. She . . . apparently still needs a very intense structured program.” The court further observed that “[i]f the legal criteria were to do everything possible even at this late stage to get the [minors] with [appellant], even if there’s some delay or hindering their stability, [appellant] would win, but that is not the law.” Accordingly, the court denied the petitions and terminated appellant’s parental rights as to and C.A. and R.W.
DISCUSSION
I
Appellant claims the juvenile court abused its discretion “by reframing her request [to reopen reunification services] as a request for immediate placement, and then determining that immediate placement was not in the [minors’] best interests,” thereby “ignor[ing] substantial evidence that the [minors’] best interests would be furthered by reopening reunification services.” We are not persuaded.
As a preliminary matter, we note that appellant, not the juvenile court, reframed the relief sought in the petitions. While the petitions indicated that appellant sought to reopen reunification services and vacate the section 366.26 hearing, at the hearing on the petitions, appellant’s counsel clarified that “our primary request is to return the [minors] to [appellant].” (Italics added.) In denying the petitions, the juvenile court found that neither reopening reunification services nor returning the minors to appellant was in the minors’ best interests.
Turning to the merits, a parent may bring a petition for modification of any order of the juvenile court pursuant to section 388 based on new evidence or a showing of changed circumstances. (§ 388; former Cal. Rules of Court, rule 1432(c) [now rule 5.570(a)(7), (e)].) “The parent requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is a preponderance of the evidence.” (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) Determination of a petition to modify is committed to the sound discretion of the juvenile court; absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Further rule references are to the California Rules of Court.
The best interests of the child are of paramount consideration when, as here, the section 388 petition is brought after the termination of reunification services. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) In assessing the child’s best interests, the juvenile court looks not to the parent’s interests in reunification but to the needs of the child for permanence and stability. (Ibid.; In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
In ruling on a petition for modification, the juvenile court may consider “(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532, italics omitted.)
Here, appellant has a long history of substance abuse and an established pattern of abstaining for long periods of time and then relapsing. Prior to reunification services being terminated, appellant relapsed twice while in treatment. Although she eventually completed a residential treatment program and had been sober for approximately 11 months, she lived in transitional housing and failed to demonstrate that she could abstain from drug use while living outside a highly structured environment. Moreover, while R.W. continued to have a positive emotional attachment to appellant, the record reflects that any detriment the minors might experience as a result of appellant’s parental rights being terminated was outweighed by the advantages of permanent placement. There was no abuse of discretion.
Contrary to the People’s assertion, the juvenile court did not lack jurisdiction to reopen reunification services. While services ordinarily may be extended beyond the 18-month statutory period “only under extraordinary circumstances ‘involv[ing] some external factor which prevented the parent from participating in the case plan’” (Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1510, quoting Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1388), “reunification pursuant to section 388 must remain a viable possibility even after the formal termination of reunification services in a 12- or 18-month review if there is . . . a ‘legitimate change of circumstances’” (In re Kimberly F., supra, 56 Cal.App.4th at p. 529, quoting In re Marilyn H., supra, 5 Cal.4th at p. 309.)
II
Appellant next contends the juvenile court prejudicially erred in terminating her parental rights by failing to comply with the ICWA’s notice and procedural requirements. In particular, she claims the court erred in failing to (1) conduct the dispositional and section 366.26 termination hearings in compliance with the ICWA procedural and evidentiary requirements; (2) find that the ICWA did not apply; and (3) require that notices be sent for each hearing. We disagree with each of her contentions.
The ICWA protects the interests of Indian children and promotes the stability and security of Indian children and Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) The juvenile court and DHHS have an affirmative and continuing duty to inquire whether a child who is subject to the proceedings is, or may be, an Indian child. (Rule 5.664(d).) If after the petition is filed, the court knows or has “reason to know that an Indian child is involved,” notice of the pending proceeding and the right to intervene must be sent to the tribe or to the BIA if the tribal affiliation is not known. (Rule 5.664(f); 25 U.S.C. § 1912(a).) “Notice shall be sent . . . for every hearing thereafter . . . unless it is determined that the [ICWA] does not apply to the case.” (§ 224.2, subd. (b).) “If proper and adequate notice has been provided . . ., and neither a tribe nor the [BIA] has provided a determinative response within 60 days after receiving that notice, the court may determine that the [ICWA] does not apply to the proceedings, provided that the court shall reverse its determination of the inapplicability of the [ICWA] and apply the act prospectively if a tribe or the [BIA] subsequently confirms that the child is an Indian child.” (§ 224.3, subd. (e)(3).)
In 2005, when DHHS provided the ICWA notices discussed herein, former rule 1439 contained the governing requirements. Certain Welfare and Institutions Code sections have now become a part of the ICWA notice framework, most notably sections 224.2 and 224.3, and former rule 1439 has now been revised as rule 5.664. As relevant to this appeal, these new authorities are essentially the same in substance as former rule 1439.
Here, notice was sent to the tribes/bands and the BIA on September 29, 2005. At the time of the dispositional hearing on November 18, 2005, 60 days had not elapsed from the time the notice was sent. Thus, as appellant correctly points out, the juvenile court was precluded from determining that the ICWA did not apply. (§ 224.3, subd. (e)(3).) Absent such a determination, appellant asserts that “the court was required to . . . conduct the [dispositional hearing] in accordance with the ICWA.” In this latter assertion, appellant is mistaken.
“Aside from its notice provisions, the ICWA applies only to Indian children,” which the ICWA defines as those who are eligible for membership in a tribe or are members of a tribe. (In re L. B. (2003) 110 Cal.App.4th 1420, 1427; rule 5.664(a); 25 U.S.C. § 1903(4); see also In re Levi U. (2000) 78 Cal.App.4th 191, 198.) At the time of the dispositional hearing in this case, there was no evidence the minors were members of or eligible for membership in any of the identified tribes/bands--only information that they might be.
Nor does appellant point to any additional information that would support a finding that the minors are Indian children. Instead, she makes much of the fact that some of the minors’ maternal grandparents and great-grandparents were enrolled tribal members of the Big Sandy Rancheria, and on that basis contends the minors “may well have been eligible for enrollment.” The notice mailed to Big Sandy Rancheria on September 29, 2005, included the names, addresses, tribal affiliations, and enrollment numbers of the minors’ maternal grandmother, two maternal great-grandmothers, and a maternal great-grandfather. However, Big Sandy Rancheria did not respond to the notice. This lack of response was “tantamount to [a] determination[] that the minor[s] w[ere] not . . . ‘Indian child[ren]’ within the meaning of the [ICWA].” (In re Levi U., supra, 78 Cal.App.4th at p. 198.) The same is true with respect to the other tribes/bands that did not respond.
The juvenile court’s failure to make an express determination that the ICWA did not apply is of no consequence; such a finding may be implied. (In re Levi U., supra, 78 Cal.App.4th at p. 199; cf. In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413; In re Jennifer A. (2002) 103 Cal.App.4th 692, 705-706 & fn. 5.)
The social worker presented information to the juvenile court indicating the minors might be Indian children, and DHHS informed the court that notice had been sent to the tribes/bands named by appellant and to the BIA. Thereafter, responses from the various tribes/bands were filed with the juvenile court. In the permanency report prepared in anticipation of the six-month review hearing, the social worker reported the ICWA did not apply. These circumstances reasonably suggest that either no response was received from the tribe/bands or there was nothing in the responses received to indicate the minors had Indian heritage. Either of these alternatives supports the conclusion implicitly reached by the juvenile court that the ICWA did not apply. As there was no information before the juvenile court to support a finding that the minors were Indian children, the juvenile court’s implicit finding that the ICWA did not apply was correct.
Appellant also claims the juvenile court erred by (1) “not finding that active efforts were made to provide remedial services and rehabilitative programs designed to prevent the break-up of the Indian family and that these efforts were unsuccessful” and (2) “not finding by clear and convincing evidence, including expert testimony, that continued parental custody was likely to result in serious emotional or physical damage to the [minors].” A juvenile court is required to make such findings prior to terminating parental rights “to an Indian child.” (Rule 5.664, subd. (m).) As previously discussed, there was no evidence to support a finding the minors are Indian children. (See pt. II, ante, at pp. 11-12.)
Finally, given our conclusion that the juvenile court correctly found the ICWA did not apply, any error in “fail[ing] to ensure that the ICWA notices were sent for hearings subsequent to the original jurisdiction hearing date stated on the notice” was harmless.
DISPOSITION
The orders denying appellant’s petitions for modification and terminating her parental rights are affirmed.
We concur: SCOTLAND , P.J., MORRISON , J.