Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. OJO7006785
Pollak, J.
The mother of C.R. appeals from orders of the juvenile court denying a petition for modification and terminating her parental rights. She contends that her participation in a drug rehabilitation program and parenting classes for almost two months prior to the termination hearing warranted modification of the reunification plan; that the record does not support the court’s finding that the parental relationship exception to termination was not applicable; and that the orders must be reversed because the court failed to secure compliance with the notice provisions of the Indian Child Welfare Act, 25 United States Code section 1901 et seq. (ICWA). We affirm.
Factual and Procedural History
The following evidence, facts, and procedural history are taken from our prior opinion ([K.S.] v. Superior Court (Oct. 25, 2007, A118894) [nonpub. opn.]) and the subsequent proceedings on remand.
On April 28, 2007, C.R. was taken into protective custody by the Oakland Police Department after being found in a home that was described as filthy and uninhabitable. The officer who detained the child reported that the house smelled of urine and feces and that there was garbage throughout. The child was barefoot, extremely dirty and appeared to be wearing a soiled diaper. The child had been left “with a woman and other individuals that appear to [have been] complete strangers.” The woman with whom the child had been left did not know the name of the child’s caregiver or when she would return to pick him up.
After investigating, the Alameda County Social Services Agency (the agency) learned that approximately five months before, the mother had left C.R. with a woman who, although not biologically related to the child, considers herself to be the child’s maternal grandmother. The fictive grandmother explained that “she had an informal agreement with the parents who gave her custody of the minor[]. [She] stated that she did not know the whereabouts of the parents and that they were not appropriate caretakers of the minor.” She informed the agency that “[t]he parents sign[ed] over custody to her due to the mother using drugs in the street and the father going in and out of prison. She indicated that she has been trying to get the minor updated with his immunizations because the mother never brought him for his immunizations. The minor is also delayed because the mother has neglected the minor. The minor is only now learning to walk because he wasn’t given the opportunity to learn how to walk since [they] lived in a vehicle. She described the mother to be a drug addict and on the streets.” The fictive grandmother explained that the day the child was detained, she had left him with a babysitter because her daughter had been in a car accident. “She did not think the babysitter would take the minor into the house. . . . She did not know how severe the car accident scene was so she didn’t want to bring the minor and expose him to the accident scene. . . . [I]f she knew the babysitter was going to take the minor into the house, she would not have left the minor with her.” She acknowledged using bad judgment when she allowed the child to stay with the babysitter.
On May 2, 2007, the agency filed a petition for dependency under Welfare and Institutions Code section 300, subdivisions (b), (g) and (j). The petition alleges under subdivision (b), among other things, that “1. The parents are unable to provide adequate care for the minor, to wit: [¶] a) The mother has a long history of substance abuse where the minor’s sibling was born with a positive toxicology screen for methamphetamine. [¶] b) The mother failed to provide the minor with adequate medical care where he is not up to date with his immunizations. [¶] c) The mother has a transient lifestyle and does not have a stable place of abode. [¶] d) The father has a history of substance abuse and criminal history where he is on parole. [¶] 2. The caretaker . . . placed the minor in an unsafe environment when she left the minor in the home of the babysitter whose home is considered to be uninhabitable . . . . [¶] . . . [¶] 4. The minor was found in the home and he was observed to be dirty with a foul odor.” The petition alleges under subdivision (g) that “[t]he parents’ exact whereabouts are unknown and their ability to provide care for the minor is unknown.” Finally, the petition alleges under subdivision (j) that “[t]he parents have prior [child protective services] history where the minor’s sibling . . . was removed from their care due to substance abuse issues and was permanently planned.” At a hearing held the same day, the court ordered the child’s further detention. The mother did not attend the detention hearing.
All statutory references are to the Welfare and Institutions Code.
On June 20, the court held a contested jurisdictional hearing. The mother attended the hearing but did not testify. After reviewing the evidence, the court stated, “There’s really no dispute here that the mother . . . [is] unable to care for the minor at the present time. There’s simply no question about that, and the mother acknowledged that by making other arrangements for [her son]. [¶] So then the subsidiary question becomes whether the mother made what Court of Appeals decisions call appropriate arrangements for the care of her child, and the issue is whether leaving him with [his fictive grandmother] was an appropriate arrangement under the law. [¶] I think it’s a close question frankly. I think the mother had [her son’s] best interest at heart, but I simply can’t accept the situation as being appropriate given the incredibly poor judgment that [the fictive grandmother] used on the date the child was left with persons that she simply didn’t know.” Thereafter, the court found true the subdivision (b) and (j) allegations set forth above and modified the subdivision (g) allegation to state that the mother admits her inability to care for the child.
The dispositional hearing was held on August 1. The mother did not attend. The court denied reunification services to the mother and set a permanency planning hearing pursuant to section 366.26. The mother timely filed a writ petition challenging the order, which this court denied on the merits.
On November, 26, 2007, the agency filed a section 366.26 report recommending adoption as the permanent plan. The report indicated that an adoption assessment had been completed and that “[the child] was found to be adoptable and that it appears likely that [he] will be adopted. . . . [He] is currently placed in a foster-adopt home with foster parents who wish to adopt him.” The social worker reported that “[t]he mother’s visits with [her son], since his dependency have been very sporadic and infrequent. . . . Due to the mother’s inconsistency, she was asked to call and confirm on Friday evenings before 5 p.m. At times the mother has called to confirm and then does not show up for the visit. The mother also has frequently not call[ed] or shown for the visits.” A supplemental report was filed on February 4 indicating that the mother had given birth to another child on January 1 and that she reportedly had begun an outpatient drug treatment program.
On February 4, 2008, the mother filed a motion requesting that her son be returned to her custody. The motion explained that the mother had been in a drug treatment program since November 2007 and had been participating in parenting education and relapse prevention classes. The motion provided further that “[t]here is a bond between the mother and her child. It would not be in [the child’s] best interest to sever that bond.” The social worker opposed the request. She clarified that the mother enrolled in an 18-month drug treatment program on November 26, 2007 and that the program had reported that the mother’s attendance was “pretty good” and her drug tests had been clean.
On March 26, the court held a combined hearing on the request for modification and the contested permanency plan. An employee from the drug treatment program testified that the mother had participated regularly in the program, with a brief lapse due to childbirth. The mother had been referred to the program under Proposition 36 as an alternative to a jail sentence. She was attending the program five days a week, one and one-half hours a day. During that time, she was participating in parenting classes, a sober living class and a relapse prevention group. Her drug and alcohol tests have been clean since November 2007. She believed that the mother “appears to be very serious about the program. She comes early. She stays in communication. She participates openly in group and discussions. She talks about issues that she is going through and working through openly in the groups.”
The social worker testified that since 2007 she had been observing the mother’s visits with her son. While the mother was initially inconsistent about visitation, lately she had been more prompt and her participation had improved. Nonetheless, based on her experience, the mother’s parental involvement during visits “is not the higher level of involvement I’ve seen with other supervised visits [she had observed] with other families.” The social worker opined that the son recognizes his mother but “he just barely knows her.” In her opinion, “there is not a bond there.” In contrast, she believed the child had a strong bond with his foster parents. He “calls them mommy and daddy and goes to them for safety, comfort, looks to her to find out if something’s okay, checks to make sure she’s still around.”
The mother testified that she entered the drug treatment program to resolve an outstanding criminal charge. She explained, “I could have done 90 days in jail, but instead I opted [for] the 18-month program because I knew it would help me with this case.” She acknowledged that if her son was “not in the picture” she “probably would have done the 90 days and had it dropped.” She asserted that her son should be returned to her because she had a home, an income and more support now. She stated, “The only reason my son isn’t with me is because I couldn’t provide for him. I can now.” When questioned about why she had been late to a recent monthly visit she stated, “It’s not my fault if the bus driver doesn’t get there on time and I can’t make it on time.” Finally, she acknowledged that she has had a drug problem for five to ten years and that five years ago she made one unsuccessful attempt at drug treatment. As of the hearing, she was working on the second step of the 10-step Narcotics Anonymous program but she could not remember what that step required her to do.
With regard to the mother’s petition for modification, the court stated, “I’m extremely glad that she’s finally gotten into recovery. I thought it was a very, very sad situation that she lost her older child and that she seemed to have no relationship with this child and didn’t seem to have any care about him. And I truly hoped that she had gone into the program for the benefit of her new baby. But that’s not what she told us. She went into the program as a Prop 36 client to avoid jail and, in her words, for the purposes of [my son’s] case because I was about to lose my child. [¶] You don’t go into drug treatment sincerely because of collateral consequences. After what seems to me to be at least a nine- or ten-year history of addiction here, I just can’t find that participation for roughly three out of the last four months in an outpatient program that only allows one and a half hours a day has made it clear to the mother what her problem truly is and what she needs to address.” The court credited the social worker’s testimony, finding that the mother has “virtually no relationship” with her son. “He really barely knows her. I don’t think he’s as afraid of her now as he was previously, but it is absolutely not in [the child’s] best interest to grant the mother’s [modification] petition.”
With respect to the termination of parental rights, the court found that the child is adoptable and that adoption is in the child’s best interests. The court rejected application of the parental exception to adoption, explaining, “To use the parental exception, we’d have to show that there’s a parent-child relationship between the mother . . . and the child and it just doesn’t exist in this case. This is a little boy who has largely been abandoned by his parents for the vast majority of his life, and there is no parent-child bond there.” The mother filed a timely notice of appeal.
Discussion
1. The Request for Modification
The mother contends the juvenile court abused its discretion by denying her section 388 petition. Section 388 allows a parent in a dependency proceeding to petition the juvenile court to change, modify, or set aside any previous order. (§ 388, subd. (a).) The parent must show by a preponderance of the evidence that (1) there is new evidence or a change in circumstance, and (2) the proposed modification would be in the best interest of the child. (§ 388, subds. (a) & (c); In re Stephanie M. (1994) 7 Cal.4th 295, 317.) A section 388 motion “is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.” (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
When a section 388 petition is filed following the termination of reunification services, the petition serves as “an ‘escape mechanism’ when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.) The juvenile court must recognize, however, a “shift of focus” in determining the best interests of the child. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) After services have been terminated, “the parents’ interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point ‘the focus shifts to the needs of the child for permanency and stability’ [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child.” (Ibid.)
The mother contends she demonstrated a change of circumstances based on her having obtained stable housing and her participation in the drug treatment program. Like the juvenile court, we are not persuaded that the mother proved a sufficient change of circumstances. After failing to take any action for seven months, she enrolled in an out-patient drug treatment program only after the intervention of the criminal court. At the time of the hearing, she had completed approximately three months of the 18-month program. While she is to be commended for her efforts, her “circumstances were changing, rather than changed.” (In re Casey D. (1999) 70 Cal.App.4th 38, 49; see also In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610 [a showing of changing circumstances, as opposed to changed circumstances, is not enough to justify or require returning a child to a parent].) Granting the section 388 petition would delay the selection of a permanent home for the child without reliable assurance that the mother, who has repeatedly failed to reunify with this and another child, will be able to reunify at some future point. (See In re Casey D., supra, at p. 47.) Even if we were to conclude that the mother had demonstrated a sufficient change in circumstances, we could not conclude that the juvenile court abused its discretion in finding that the proposed modifications would not be in the child’s best interest. There is substantial evidence that the parent-child bond here is minimal at best, so that the preservation of that bond does not outweigh the benefit to the child of a stable, loving adoptive home.
2. The Parent-Child Exception
The mother asserts that the juvenile court erred in refusing to apply the beneficial relationship exception to termination of parental rights. (§ 366.26, subd. (c)(1)(A).) At a permanency planning hearing, the juvenile court must choose the appropriate long-term placement for a minor child. (See § 366.26, subd. (b)(1)-(4).) Adoption is the permanent plan preferred by the Legislature because it gives the child the best chance for a stable, permanent home with a responsible caretaker. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) If the juvenile court finds a child adoptable, it must terminate parental rights and order the child placed for adoption unless the court determines that termination would be detrimental to the child due to any of four specified circumstances. (§ 366.26, subd. (c)(1)(A)-(D)). The first of these, and the only one at issue in this case, provides an exception when “[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)(A).) The parent has the burden of proving termination would be detrimental to the child under this exception. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) “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.” (Id. at p. 1350.)
Although the mother’s visitation had improved in the few months prior to the hearing, the social worker characterized her visitation prior to December 2007 as “very sporadic and infrequent.” Even after entering the drug treatment program, the mother continued to be late for visits and failed to take responsibility for her tardiness. As the trial court noted, the child had “largely been abandoned by his parents for the vast majority of his life, and there is no parent-child bond there.” The record amply supports the trial court’s conclusion that the parents lacked a beneficial parent-child relationship significant enough to outweigh the strong legislative preference for adoption. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
3. ICWA Compliance
The mother contends that the agency failed to comply with the notice provisions of ICWA. She contends that the ICWA notices were improperly completed and addressed. These claims do not support reversal, either individually or in concert. The record reflects the efforts of the agency and its substantial compliance with ICWA’s notice requirement.
Before addressing the agency’s ICWA compliance, we first address the agency’s claim that the mother forfeited her right to challenge any defects in ICWA notice by raising the issue for the first time in this appeal. 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, 1902, 1903(1), 1911(c), 1912.) 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 Bureau of Indian Affairs if the tribal affiliation is not known. (25 U.S.C. § 1912(a); Cal. Rules of Court, rule 1439(f).) In In re Marinna J. (2001) 90 Cal.App.4th 731, 739, the court held that where the notice requirements of the ICWA were violated and the parents did not raise that claim in a timely fashion, the waiver doctrine could not be invoked to bar appellate consideration of the claim. This and other decisions establish a general rule that ICWA notice error is not subject to forfeiture. (See In re Nikki R. (2003) 106 Cal.App.4th 844, 849.) In In re Jonathon S. (2005) 129 Cal.App.4th 334, 340-341, relied upon by the agency, the court reiterated this general rule. The court clarified, however, that ICWA notice error invalidates only the order or judgment being appealed, and does not invalidate prior orders in which ICWA notice error could have been, but was not raised on appeal. (Id. at pp. 340-341.) That case does not support the agency’s suggestion that a prior unchallenged determination that ICWA did not apply bars a subsequent challenge to the ICWA compliance under the doctrine of res judicata. To the contrary, since the failure to give proper ICWA notice is a continuing error (see Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 261), the mother can raise defective notice in any appeal until the alleged errors are addressed.
“Notice under the ICWA must, of course, contain enough information to constitute meaningful notice. The Guidelines for State Courts; Indian Child Custody Proceedings (44 Fed.Reg. 67584 (Nov. 26, 1979)) . . ., which are designed to implement the ICWA, require that the notice include, among other things, the name of the Indian child; his or her tribal affiliation; a copy of the dependency petition; the petitioner's name and address of the petitioner’s attorney; and a statement of the right of the tribe to intervene in the proceeding. [Citation.] [¶] . . . [¶] Additionally, by federal regulation an ICWA notice must include, if known, (1) the name, birthplace, and birth date of the Indian child; (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. [Citations.] ‘[T]o establish tribal identity, it is necessary to provide as much information as is known on the Indian child’s direct lineal ancestors.’ ” (In re Karla C. (2003) 113 Cal.App.4th 166, 175.)
Here, the notice sent by the agency included the child’s name, date and place of birth. The notice indicated that both the mother and the biological father had possible Indian heritage. The mother’s name, current address and birthday was listed on the form, as was the father’s name, address and date and place of birth. The notice identified six possible tribe affiliations for the father. The names of father’s grandparents and great-grandfather, their possible tribe affiliations and the great-grandfather’s date and place of birth were also included. The mother contends that the notice was insufficient because (1) the agency omitted the mother’s birth place and any former addresses; (2) no other maternal information was included on the form; (3) the only information about the paternal grandparents was their names and the agency did not include the paternal great-grandfather’s place of death; and (4) the child’s birth certificate was not included with the notice.
The mother’s arguments can be dismissed summarily. There is no requirement that the child’s birth certificate be attached to the notice. The relevant information, including the child’s name, date and place of birth and parent’s names were properly included in the notice. It is undisputed that the mother has been homeless for much of her adult life, thus the failure to include her former addresses is understandable. The mother does not claim that she was born on or near a reservation, thus the omission of her birthplace, California, is undoubtedly harmless. Finally, with regards to the lack of additional information about the grandparents, it is clear that the agency did all that was required of it to obtain the relevant information. Although the father filled out a form claiming possible Indian heritage through his paternal grandfather and great-grandfather, when interviewed by the social worker he did not know any birthdates, where they were born, whether they were enrolled in a tribe, or whether they were dead. It does not appear that the mother filled out the “Parental Notice of Indian Status” form, as requested by the agency, and the information obtained by the agency through its interviews with the mother and the fictive grandmother was very limited. According to the social worker, she interviewed all available family members about the child’s possible Indian heritage and there were no other relatives available to provide any additional information. Based on this record, the agency satisfied its “duty to inquire about and obtain, if possible, all of the [relevant] information about a child’s family history.” (In re C.D. (2003) 110 Cal.App.4th 214, 225; see also In re Levi U. (2000) 78 Cal.App.4th 191, 199 [the department is not required to conduct an extensive independent investigation or to “cast about, attempting to learn the names of possible tribal units to which to send notices”].)
The mother also contends that the agency did not use the correct mailing addresses, as listed in the Federal Register, to give notice to the tribes. For example, the record shows that the agency addressed the notice to the Cherokee Nation as follows: ICWA Representative, Cherokee Nation, P.O. Box 948, Tahlequah, Oklahoma 74465. The address listed in the Federal Register is as follows: Cherokee Nation of Oklahoma, Chadwick Smith, Principal Chief, P.O. Box 948, Tahlequah, Oklahoma 74465. The mother argues that the notice was “technically deficient because service was to the tribe itself and not to it’s chairperson or authorized agent.” As the agency notes, however, the address used by the agency comports with the information published by the California State Department of Social Services. In In re N.M. (2008) 161 Cal.App.4th 253, 268 the court found that the child welfare agency did not err in using the addresses provided by the state publication. “Requiring literal compliance solely by reference to the names and addresses listed in the last published Federal Register would exalt form over substance. The Department should not be hamstrung by limitation to only the names and addresses provided for the tribes in the Federal Register if a more current or accurate listing is available and is reasonably calculated to provide prompt and actual notice to the tribes.” (Ibid.) Accordingly, we find no insufficiency in the notice or the other notices to the extent that they have similar discrepancies in the addresses. Finally, although it appears that the notice to the Mississippi Band of Choctaw Indians was mailed to the wrong post office box number, the record includes letters from the tribe indicating that they received the notice and that the child was not eligible for enrollment. Accordingly, any error in this regard is harmless.
As requested by the agency, we take judicial notice of the relevant pages of the Federal Register, 71 Federal Register 43788 et seq. (Aug. 2, 2006), and the list provided by the State Department of Social Services on the California government website at as of October 15, 2008. (Evid. Code, §§ 452, subd. (c), 459, subd. (a).)
Disposition
The order terminating parental rights is affirmed.
We concur: McGuiness, P. J., Jenkins, J.