Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, No. J1252486, James E. Herman, Judge
Lee S. Gulliver, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall, County Counsel, Toni Lorien, Deputy Counsel, County of Santa Barbara for Plaintiff and Respondent.
PERREN, J.
Erica Z. (E.Z.), mother, appeals an order of the juvenile court denying a modification petition (Welf. & Inst. Code, § 388) requesting that her daughter, Cecilia C. (C.C.), be returned to her care under a family maintenance plan. She also appeals the order on the ground that the Indian Child Welfare Act (ICWA) was violated. We affirm.
All statutory references are to the Welfare and Institutions Code unless stated otherwise.
FACTS AND PROCEDURAL HISTORY
Child Welfare Services (CWS) detained two-month old C.C. on March 8, 2008, when her father brought her to the county's welfare benefits office. Father smelled strongly of alcohol and said that he was homeless and staying in a motel. When contacted by a social worker, mother explained that she left C.C. in the care of her father because she was being incarcerated for outstanding warrants.
In a petition filed pursuant to section 300, subdivisions (b) and (j), CWS alleged that C.C. was at risk of harm due to her parents' inability to provide appropriate supervision, shelter and medical care. The petition also alleged the child was endangered by her parents' lengthy criminal histories and mother's child welfare history. Mother's history included a conviction for driving under the influence and causing bodily injury and subsequent probation violations. The petition further alleged that there was a substantial risk that C.C. would be abused or neglected in the same manner as her half-siblings, M.C. and U.R. E.Z.'s older daughter, Mia, was removed in 2006 when she was nine months old after E.Z. left her in the care of a severely intoxicated male. Her family reunification services and parental rights to Mia were terminated in 2007. The juvenile court detained C.C. on March 10, 2008. C.C. was placed with relative caregivers in May 2008.
Father submitted a Parental Notification of Indian Status in which he indicated that he had no Indian ancestry. Mother stated she had no Indian ancestry. On March 28, 2008, father informed the case worker that his mother, Tanya C., was of Cherokee ancestry and that his paternal grandmother had Apache affiliation. CWS sent notice of the proceedings to the Bureau of Indian Affairs (BIA), three Cherokee tribes and eight Apache tribes. The notices contained the name of Tanya C., but did not contain any other information about her and did not provide any information about father's paternal grandmother. The nine tribes which responded each stated that C.C. was not a tribal member or eligible for tribal enrollment.
United Keetoowah Band of Cherokee Indians, the Cherokee Nation, and the Eastern Band of Cherokee Indians.
Apache Tribe of Oklahoma, Fort Sill Apache Tribe of Oklahoma, Jacarilla Apache Nation, Mescalero Apache Tribe, Tonto Apache Tribal Council, San Carlos Tribal Council, Yavapai-Apache Nation, White Mountain Apache Tribe.
The United Keetoowah Band of Cherokee Indians and the Fort Sill Apache Tribe did not respond.
In a report dated May 5, 2008, CWS recommended that mother receive family reunification services and father receive no reunification services. Mother's case plan required her to complete a parenting program and participate in a substance abuse program which included drug testing and individual and group counseling. She was given twice-weekly supervised visitation with C.C. The report noted that mother admitted herself to an inpatient drug treatment program on March 31, 2008, attended all group sessions and parenting classes, and consistently tested negative for illegal substances. She had not missed any visits with C.C. and had been cooperative with the case worker.
On August 11, 2008, mother filed a Request to Change Court Order, asking that she be permitted to act as C.C.'s babysitter at the drug treatment facility where she resided while C.C.'s relative care provider was at work. Attached to her request were several letters of support from her treatment counselors and 36 drug tests showing negative results. Mother's visitation with C.C. was increased from twice a week to four mornings a week at the drug treatment facility.
The record on appeal was augmented by a reporter's volume containing transcripts from hearings held on November 3, 2008; April 2, August 31, and October 26, 2009; and March 8, 2010.
Father was arrested in September 2008 on several federal drug-related offenses and incarcerated. He remains incarcerated.
A status review report dated November 3, 2008, noted that, on September 25, 2008, mother was told to leave the drug treatment facility after an altercation with another resident. She moved into a transitional shelter, obtained employment, and attended an outpatient treatment program. She continued to test negative for drugs. She also participated in parenting classes and twice-weekly counseling sessions. However, she had unauthorized contact with father and was not truthful when asked about it. In the social worker's opinion, mother had difficulty with authority and anger management, and a mental health assessment was added to the case plan. According to the report, C.C. appeared happy and secure in her placement with the relative caregivers. At the six-month review hearing on December 1, 2008, the court ordered continued reunification services for mother.
An interim review report dated March 30, 2009, stated that mother continued to do well in outpatient drug treatment, drug testing, and individual counseling and was either employed or actively searching for a job. However, mother failed provide proof of attendance at twelve-step meetings from October 2008 to March 15, 2009.
Mother was permitted unsupervised visitation with C.C. for four hour visits four times a week. The great-aunt reported that the visits went well and that mother was appropriate with and attentive to C.C. Overnight visitation was not commenced because mother continued to have contact with father who remained incarcerated.
At the interim review hearing on April 2, 2009, CWS requested the court to change mother's visitation from unsupervised to supervised because she had not attended twelve-step meetings consistently. Counsel for mother explained that mother had taken a job as a live-in caretaker and was unable to leave her client unattended. The court denied CWS's request to reinstate supervised visitation.
Mother had a psychological assessment on January 6, 2009. The report recounted mother's troubled adolescence. She was placed on probation after several fights. She began using drugs at the age of 13, including alcohol, marijuana, methamphetamines, LSD and Ecstasy. Mother was convicted of driving under the influence when she was 19 after an accident in which her passenger was injured. Mother said she stopped using methamphetamine when she found out she was pregnant in 2007.
Mother's counselor stated that mother related to other women in a hostile manner. She questioned whether mother was sincere about recovery and believed mother was in treatment only because it was a requirement.
The report stated that mother had made excellent progress in learning to live drug-free and in being a good mother to C.C. However, she needed work regarding anger management with female peers and authority figures. She also needed to understand the necessity of avoiding involvement with male partners who had ongoing criminal and drug problems. The report concluded that mother would be able to overcome these problems with ongoing counseling and supervision, and that mother should be able to reunify with C.C. At the 12-month review hearing on June 1, 2009, the court ordered additional reunification services for mother.
Mother began weekly overnight, unsupervised visitation with C.C. in addition to her unsupervised day visitation in June 2009. Mother was now living with C.C.'s maternal grandmother. Mother's older daughter, Mia, who had been adopted by grandmother, also resided in the home.
Mother continued to drug test with negative results, with two missed tests, until she tested positive for alcohol in July 2009. Mother admitted to drinking the day before the test. Mother did not provide proof of attendance at twelve-step meetings from May 16, 2009, to June 14, 2009. She also had not obtained a sponsor as required by her case plan. Mother discontinued therapy on May 24, 2009, and discontinued counseling on July 10, 2009.
At the 18-month status review hearing on August 31, 2009, CWS recommended that mother's reunification services be terminated and that the matter be set for a section 366.26 hearing. At the continued hearing on October 26, 2009, CWS informed the court it had changed its recommendation and recommended that mother receive additional services to 24 months. Mother's revised case plan required her to obtain suitable housing, continue with outpatient drug treatment, and attend two weekly twelve-step meetings.
During the final review period, mother missed a drug test on December 23, 2009. Her drug treatment counselor did not believe the missed test to be significant in light of mother's overall progress and believed that she remained drug-free. Following the missed test, visits with C.C. again became supervised.
On February 11, 2010, mother drank a beer. Immediately afterward, she called her drug counselor and admitted the incident, stating she did not want "the weight of a lie on her shoulders." She did not contact CWS about this relapse.
In a status review report dated March 1, 2010, CWS reported that mother continued regular supervised visits with C.C. In the assessment/evaluation portion of the report the case worker states: "The undersigned has reflected at great length and conferred with 2 separate Social Services Supervisors regarding the recommendation for this case. The undersigned wishes to acknowledge [E.Z.]'s progress and hard work throughout her 24 months of services. The undersigned has observed a change in [E.Z.], from an angry, defensive participant who would not take responsibility for her actions, to one who as attempted to become clean and sober, work her recovery steps, and has obtained housing, a job and a car, where before she had none. ¶ However, the undersigned remains concerned as to the risk to the child [C.C.], and observes that [E.Z.]'s change has not been complete[.]" The concerns noted by the case worker included her missed drug test in December 2009, her failure to report the missed test to CWS, and her relapse in February 2010. CWS recommended that family reunification services be terminated and that a section 366.26 hearing be set.
Mother submitted on CWS's recommendation that her reunification services be terminated and that the matter be set for a section 366.26 hearing for the selection of a permanent plan for C.C. The court terminated reunification services and set a selection and implementation hearing. It ordered that mother continued to have supervised visitation with C.C. three times a week provided she tested for drugs prior to each visit.
On May 11, 2010, mother filed a modification petition requesting that one of her weekly visits be unsupervised so that she could work toward a family maintenance plan. She provided documentation of negative random drug tests and attendance at an outpatient drug treatment program. She also participated in twelve-step meetings and weekly individual therapy sessions. Mother stated that she had been voluntarily participating in services for which she was paying, had two jobs, had had no positive drug tests, and continued to attend twelve-step meetings. CWS and C.C.'s counsel opposed mother's request for unsupervised visitation. The court continued the matter.
A report filed for the May 27, 2010, hearing contained a statement from the relative care provider that mother fed and bathed C.C. during visits, but that she was not completely focused on C.C. for the entire visit, often talking on her cell phone and doing other activities that were not child related. She also allowed C.C. to play with Mia. The case worker supervised one visit and reported that mother played with C.C. during the entire visit. At the hearing, the court ordered that the previous schedule of supervised visitation for three hours, three times a week be maintained. It directed the case worker to provide the court with a description of the quality of those visits. The court stated that one of the weekly visits could be unsupervised if and when CWS believed the change to be appropriate and safe.
On June 28, 2010, mother filed another modification petition requesting that C.C. be returned to her under a plan of family maintenance. The court ordered that the petition be heard at the time of the section 366.26 hearing. In its report prepared for the modification/section 366.26 hearing, CWS opposed the modification requested by mother because, although mother had made progress during the dependency, she had regressed. The report discussed mother's substance abuse, continued lack of honesty, problems with anger management, and contact with father and other individuals who were not authorized to have contact with C.C. Appellant failed to test on August 5, 2008, was discharged from treatment before completing her inpatient program on September 25, 2008, due to an altercation with another resident, failed to attend twelve-step meetings from October 15, 2008, through March 15, 2009, failed to provide proof of attendance at twelve-step meetings through June 1, 2009, had no sponsor as required by the treatment program, discontinued therapy required by her case plan on May 24, 2009, had a positive alcohol test on June 16, 2009, missed drug tests on September 18, 2009, and December 23, 2009, and admitted to drinking alcohol on February 10, 2010. Mother placed C.C. at risk by leaving the relative caretaker's home with the child during unsupervised overnight visitation. Concerns about mother's honesty and anger management issues continued throughout the case. In May 2010, CWS was informed that mother's older daughter, Mia, was visiting mother at the transition shelter without authorization from CWS. In addition, mother told the relative care provider that if mother discovered she was providing information to the social worker, the relative care provider would never see C.C. after she was returned to mother.
The report also contained information concerning the ICWA. On February 22, 2010, mother stated she had no contact information for the paternal relatives. On March 22, 2010, CWS sent an "ICWA packet" to father, who did not respond. The court found that ICWA did not apply on July 15, 2010.
At the combined section 388/326.26 hearing on August 9, 2010, mother's addiction treatment counselor for 11 months testified that mother had made progress and she had not observed any behaviors which indicated that mother could not safely parent C.C. She did not believe mother's lapse in February 2010 to be serious.
A child development health specialist who had worked with mother and C.C. once or twice a week over several months testified. She stated mother had attended all of the required parenting classes and her instructors indicated that mother was fully engaged in the program and with C.C. She believed mother had the necessary skills to parent C.C. She testified that she believed that C.C. and mother were very bonded. She observed that C.C. had become happier and more content and enjoyed having mother hold and comfort her.
Mother testified that she had taken additional parenting classes and a life skills course which taught her the importance of attending school and locating job resources. She was currently employed. She stated she informed her drug counselor about the February 2010 drinking incident because her recovery made it necessary to be honest. She had not drunk alcohol since that time. Mother stated she now understood the recovery process and that she had ceased all contact with father. During visits with C.C., mother cooked, bathed and played with C.C. She disciplined her when necessary by putting her in time-outs and then talking to her.
The case worker testified that she was concerned about mother's lack of honesty with regard to her participation in services. She was also concerned about mother's drinking in February 2010 after so many months of services and the risk to C.C. if mother's recovery were not permanent. The case worker also stated she was concerned about the quality of mother's parenting skills if mother and C.C. were in an unsupervised environment.
Following testimony, the court indicated it was inclined not to terminate mother's parental rights and invited the parties to negotiate an agreement. It continued the matter for several days. Following argument on August 12, 2010, the court denied the modification petition, finding that circumstances had not changed and that it was in C.C.'s best interest to remain in her great-aunt's home where she had resided for two years.
The court then proceeded with the section 366.26 hearing, considering the evidence from the section 388 hearing. It found by clear and convincing evidence that C.C. was likely to be adopted and terminated mother's parental rights.
DISCUSSION
The Section 388 Modification Petition
Section 388 authorizes a juvenile court to modify a prior order if a parent shows a change of circumstances or new evidence and establishes that modification is in the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Eric E. (2006) 137 Cal.App.4th 252, 260.) The court has broad discretion in resolving a petition to modify a prior order. Its determination will not be disturbed on appeal unless an abuse of discretion is clearly shown. (In re Stephanie M., supra, at p. 318.) "It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child. [Citation.]" (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)
In determining the best interests of the child, the juvenile court considers the reason for the dependency, the reason the problem was not overcome, the strength of the parent-child and child-caretaker bonds, the length of time the child has been a dependent, the nature of the change of circumstance, the ease by which the change could be achieved, and the reason it was not made sooner. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446-447.)
E.Z. asserts the court erred in denying her modification petition and terminating her parental rights because she complied with her case plan by attending drug treatment programs, parenting classes, and twelve-step meetings. She maintained consistent visitation with C.C. and was loving and appropriate during the visits. She had obtained a job, housing and a car and had a support system in place to provide care for C.C. while she worked.
While E.Z. did comply with most elements of her case plan, she relapsed by drinking alcohol on two occasions. Given mother's long history of substance abuse and prior child welfare history, these lapses were not insignificant. Mother was given the maximum amount of services permitted by law, but still had maintained sobriety for only six months at the time of the hearing. As the juvenile court noted, mother had not met her burden of proving a change of circumstances. She only showed that circumstances were changing. On the other hand, the record showed that C.C. had lived most of her life with her relative caregivers, she was thriving in their care, and they wanted to adopt her.
Where, as here, the court's ruling is against the party who has the burden of proof, it is almost impossible for the party to prevail on appeal by arguing the evidence compels a ruling in her favor. Unless the trial court makes specific findings of fact in favor of the moving party we must presume the trial court found her evidence lacks sufficient weight and credibility to carry the burden of proof. (Rodney F. v. Karen M (1998) 61 Cal.App.4th 233, 241.) We have no power to judge the credibility of witnesses or to reweigh the evidence. "[W]hen a court has made a custody determination in a dependency proceeding, '"a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]."' [Citations.]... '... 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.'" [Citations.]" (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
The record here shows no arbitrary decision but a careful consideration of all the evidence by both CWS and the court. After weighing the evidence, the trial court concluded that C.C. would be at risk if returned to her mother and that maintaining her current placement would be in the child's best interest. This is a reasonable exercise of discretion that we will not disturb. (See, e.g., In re Mary G. (2007) 151 Cal.App.4th 184, 206 [where mother had abused drugs since the age of 13, had lost custody of her older children because of her drug abuse, "the court could reasonably find that her sobriety between March and the date of the hearing, June 20, was not particularly compelling"]; see also In re Clifton B. (2000) 81 Cal.App.4th 415, 423 ["Carl's seven months of sobriety since his relapse... while commendable, was nothing new"].)
Indian Child Welfare Act
We review compliance with ICWA under the harmless error standard. (In re E.W. (2009) 170 Cal.App.4th 396, 402-403.) Notice is sufficient if there was substantial compliance with ICWA. (In re Christopher I. (2003) 106 Cal.App.4th 533, 566.)
The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901 et seq.) "The ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource. [Citation.]" (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) The juvenile court and the social services agencies have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. (Id. at p. 470.)
The duty to provide notice under ICWA arises when "the court knows or has reason to know that an Indian child is involved...." (25 U.S.C. § 1912(a).) For purposes of the ICWA, an "Indian child" is one who is either a "member of an Indian tribe or... eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (Id. at § 1903(4).)
Only a hint or suggestion of Indian ancestry is required to trigger the ICWA notice requirements. (See In re Miguel E. (2004) 120 Cal.App.4th 521, 549 ["'The determination of a child's Indian status is up to the tribe; therefore, the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement'"].)
The object of tribal notice is to enable a review of tribal records to ascertain a child's status under the ICWA. (In re D.T. (2003) 113 Cal.App.4th 1449, 1455.) The notices "must contain enough information to be meaningful. [Citation.] The notice must include: if known (1) the Indian child's name, birthplace and birthdate; (2) the name of the tribe in which the Indian child is enrolled or may be eligible for enrollment; (3) names and addresses of the child's parents, grandparents, great grandparents, and other identifying information; and (4) a copy of the dependency petition. [Citation.]" (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.) "It is essential to provide the Indian tribe with all available information about the child's ancestors, especially the one with the alleged Indian heritage. [Citation.] Notice... must include available information about the maternal and paternal grandparents and great-grandparents, including maiden, married and former names and aliases; birthdates; place of birth and death; current and former addresses; tribal enrollment numbers; and other identifying data. [Citation.]" (Ibid.; In re C.D. (2003) 110 Cal.App.4th 214, 224-225.)
E.Z. asserts that CWS failed to comply with the notice provisions of the ICWA because the notices sent to the tribes did not contain any information about father's paternal relatives and only provided the name of father's mother. She asserts that CWS could have, but did not, make further inquiry. This assertion is incorrect. The record shows that, after the first notices were sent to the Cherokee and Apache tribes with the information initially provided by father, CWS sent an ICWA packet to father requesting more information. Father did not respond. On appeal, mother provides no additional information suggesting that C.C. has Indian heritage. CWS was not required to further investigate and fill this evidentiary void. On this point, we agree with the court in In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431: "The sole reason an appellate court is put into a position of 'speculation' on the matter is the parent's failure or refusal to tell us.... [¶] Father is here, now, before this court. There is nothing whatever which prevented him, in his briefing or otherwise, from removing any doubt or speculation.... [¶] The knowledge of any Indian connection is a matter wholly within the appealing parent's knowledge and disclosure is a matter entirely within the parent's present control. The ICWA is not a 'get out of jail free' card dealt to parents of non-Indian children, allowing them to avoid a termination order by withholding secret knowledge, keeping an extra ace of their sleeve."
The orders are affirmed.
We concur: YEGAN, Acting P.J., COFFEE, J.