Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Merced County, Super. Ct. No. JP000108 Harry L. Jacobs, Commissioner.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant.
James N. Fincher, County Counsel, and James B. Tarhalla, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Poochigian, J., and Detjen, J.
M.G. (mother) appeals from orders denying a modification petition she brought and terminating parental rights to two of her children. (Welf. & Inst. Code, §§ 388 & 366.26.) She contends the court erred by: denying her petition in which she sought reunification services; prematurely terminating her rights; and declining to find that termination would be detrimental to the children based on her relationship with them (§ 366.26, subd. (c)(1)(B)(i)). On review, we disagree with each of these claims and affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
Mother has had a long history of drug abuse, necessitating child welfare intervention. In 2005, she locked her eldest child in a room while she (mother) was under the influence of methamphetamine. That child was ultimately placed in a guardianship with a paternal relative. In 2006, she gave birth to a child who tested positive for methamphetamine. He was detained and mother was offered reunification services. In 2007, the juvenile court terminated mother’s reunification services and later still terminated her parental rights to that child.
She gave birth in 2008 and 2009 to the two children who are the subject of this appeal. Although there were referrals, after each child’s birth, that mother continued to use drugs, the 2008 referral was deemed unfounded while the 2009 referral was deemed inconclusive.
Over the summer of 2009, respondent Merced County Human Services Agency (agency) received a report that mother was using drugs and left the two children for days at a time with their father and without food in the house. During the investigation, the agency discovered the father was incarcerated for domestic violence. Although mother initially agreed to participate in voluntary family maintenance services, she later refused.
Allegations in October 2009 regarding continued drug use and domestic violence in the home as well as a lack of electricity once again led an agency social worker to investigate. A visit to the home revealed the parents had been without electricity and other utilities for approximately two months. They were tapping into a neighbor’s electricity and there were numerous extension cords and power strips spread throughout the home, creating a fire hazard. Also, the parents were again living together, despite the father’s earlier arrest for domestic violence. At that time, a social worker noticed mother had marks on her chin and neck. Mother reported the father punched, kicked, and strangled her; and the children were present during the assault. When asked how many times he hit her in the past, mother responded “Countless.” During this latest investigation, mother also had a small amount of marijuana in her pocket but denied smoking it in the presence of the children. A narcotic task force arrested mother on an outstanding warrant.
In a dependency petition, the agency alleged, pursuant to section 300, subdivision (b) (failure to protect), that mother exposed the children to a substantial risk of harm by using drugs, engaging in domestic violence and creating a fire hazard in the home. At a detention hearing, the juvenile court ordered mother to submit to hair follicle and urine testing. She did and tested positive at a high level for methamphetamine and marijuana.
The agency subsequently filed a report with the court, recommending the juvenile court exercise its dependency jurisdiction over the children, remove them from parental custody, and deny both parents reunification services. In particular, the agency recommended the court deny mother reunification services, pursuant to section 361.5, subdivision (b)(10) and (11), because mother’s reunification services and parental rights as to her second child had been terminated and she subsequently failed to treat her drug abuse problem.
December 2009 Jurisdictional/Dispositional Hearing
The juvenile court commenced by finding the Indian Child Welfare Act (ICWA; 25 U.S.C.§ 1901 et seq.) did not apply at that time to the children. Based on mother’s claim of Seneca-Cayuga Indian heritage, the agency had served notice of the proceedings upon certain Indian tribes. One of them, the Seneca-Cayuga Tribe of Oklahoma, responded that the maternal grandmother was an enrolled tribal member, but neither mother nor the children were members and the children were not eligible for membership. Mother, on the other hand, was eligible for membership. If she became an enrolled member, the children would become eligible for membership. Mother was aware of this and claimed she had applied for enrollment.
After the court made its ICWA finding, mother testified in opposition to the agency’s recommendation for no reunification services. In mother’s view, she and the children were bonded and it would be in their best interest to reunify with her. Mother also testified she had not used methamphetamine for over two years, despite the fact she tested positive for methamphetamine at a high level in October 2009. She did admit using marijuana approximately a month and a half prior to the hearing.
Mother further testified she previously checked herself into Tranquility Village, a substance abuse treatment program, on two occasions. The last time was in August 2007 when she was pregnant with her third child. She apparently did not complete drug treatment either time however. Since then, she claimed to have attended Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meetings, although she had not recently attended meetings.
At the hearing’s conclusion, the juvenile court found the agency’s petition true and adjudged the children dependents. The juvenile court removed the children from parental custody and denied both parents reunification services pursuant to section 361.5, subdivision (b)(10) and (11). In doing so, the juvenile court stated mother was in “deep denial about her addiction” and had not made substantial progress. It also reduced mother’s visits with the children from once a week to once a month. The juvenile court concluded by setting a section 366.26 hearing to select and implement a permanent plan for the children.
Mother challenged, by way of writ petition, the juvenile court’s decision. (M.G. v. Superior Court, F059135.) In an opinion filed in early March 2010, this court denied mother writ relief.
Mother’s Section 388 Petition
On April 8, 2010, mother once again entered Tranquility Village. The following month, on the date set for the section 366.26 hearing, mother’s trial counsel filed a section 388 petition seeking to modify the dispositional order denying mother reunification services based on alleged changed circumstances. The petition described mother’s efforts to address her addiction as well as alleged that she had part time employment and had ceased contact with the children’s father. The petition also stated “Tribal enrollment is pending.” The court set the modification petition for hearing to be followed by the section 366.26 hearing.
The Agency’s “366.26 WIC Report”
In the meantime, the agency recommended that the juvenile court find the children adoptable and terminate parental rights. A social worker with the agency’s “Adoption Team, ” a licensed adoption agency, assessed each child as likely to be adopted. The children were healthy with no significant developmental delays and were “within the 0-5 age group of children that most adoptive parents seek to adopt.”
Out of state relatives expressed interest in adopting the children. The agency was awaiting a placement evaluation and approval through the Interstate Compact for Placement of Children (ICPC). If the relatives were not approved through the ICPC, it nevertheless remained likely an adoptive home would be found for the children.
As for the children’s relationship with their parents, the agency reported the parents received supervised visits with the children and had visited approximately 16 hours in 6 months’ time. In the Adoption Team social worker’s opinion, this amount of time was insufficient to maintain a parent-child relationship with toddlers, such as these children.
May 2010 Combined Hearing
At the combined hearing on May 24, 2010, the juvenile court stated that it read and considered the agency’s “.26 report” as well as prior reports in the court’s file and the mother’s modification petition. Mother testified she currently resided in the live-in treatment program at Tranquility Village where she was attending frequent substance abuse classes. She had been there for a little over one month. Since starting the program in April, she claimed she had learned how to live drug free and be a good mother. She also learned her triggers and realized she had to learn to live a new lifestyle. She last used drugs and alcohol around the date she entered the program. She admitted she should have entered treatment much sooner.
Mother also testified she had once-a-month visits with the children. At their last visit in April, the children were excited to see her and their father. The children said “mom, dad” and ran up and hugged them. The family played games together and the children did not show any fear towards mother. Her son on a few prior occasions expressed a desire to go with her at the end of a visit, but not at the end of their most recent visit. Mother felt she had a strong bond with the children.
She thought either an order for reunification services or an order returning the children to her would be in the children’s best interest. The children would be able to reside with her at Tranquility. She planned to stay clean and sober and believed children should be with their mother.
Her exit date from Tranquility would be in July. However, she could stay longer if she chose to and the children could remain with her there. She had considered asking for a 90-day extension.
On cross-examination, mother admitted she had previously tried to quit drugs and alcohol but was unsuccessful. She also acknowledged she was in a “very controlled environment” at Tranquility Village where she could not access drugs or alcohol.
Following argument, the court denied mother’s petition. The juvenile court found the circumstances had not changed sufficiently to compel a change in its order. Rather, mother’s situation was “an example where there’s the glimmer of changed circumstances, but only a glimmer. This is the very beginning for you, not the end.” In addition, given the children’s young ages and their need for permanency the juvenile court was not persuaded that an order for services was in the children’s best interest.
The juvenile court then announced it would consider mother’s testimony as part of the permanency planning proceedings. The agency submitted the matter on its report. Mother asked the court to give her a chance by not terminating her rights. The court found the children adoptable and, having selected adoption as their permanent plan, terminated parental rights.
DISCUSSION
I. Section 388 Petition
Any party to a dependency proceeding may petition the court to modify or set aside a prior order on grounds of change of circumstance or new evidence. (§ 388, subd. (a).) The party must also show the proposed change would promote the dependent child’s best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) The procedure under section 388 accommodates the possibility that circumstances may change so as to justify a change in a prior order. (In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).) Whether the juvenile court should modify a previously made order rests within its discretion and its determination may not be disturbed unless there has been a clear abuse of discretion. (Stephanie M., supra, 7 Cal.4th at p. 318.)
Mother contends the juvenile court abused its discretion when it denied her modification petition for reunification services and placement. According to mother, her petition established a legitimate change of circumstances. She also claims that moving forward with reunification and returning the children to her care were in the children’s best interests. Having reviewed the record as summarized above, we conclude the court did not abuse its discretion by denying mother’s section 388 request. (Stephanie M., supra, 7 Cal.4th at p. 318.)
The juvenile court properly could find mother did not establish circumstances had sufficiently changed -- since its order denying her reunification services -- to warrant services at this late stage. Mother had a years-long history of drug abuse, but she had been sober for only a matter of weeks. While she touts her recent entry into Tranquility Village, she overlooks the evidence that this was not the first time she had entered the program. In fact, it was the third time and she had yet to complete the program. Her current sobriety was also untested outside the very controlled environment of the program. Further, the court could have given mother’s testimony about what she believed she had learned so far at Tranquility Village little weight, especially given the absence of any evidence from her treatment providers or counselors about the extent of her progress or prognosis for a stable future. Thus, on this record, mother’s changing circumstances were insufficient to justify modifying its prior order. (Marilyn H., supra, 5 Cal.4th at p. 309; In re Casey D. (1999) 70 Cal.App.4th 38, 49.)
Because mother did not establish her circumstances were sufficiently changed to warrant reunification services, she was not entitled to the modification she sought under section 388. Accordingly, we need not address the second element required for modification under section 388, namely that the proposed change - here, reunification services, would promote the children’s best interests. (Stephanie M., supra, 7 Cal.4th at p. 317.)
II. Permanency Planning was Not Premature
Mother next argues that the juvenile court’s selection of adoption as the permanent plan for the children was premature because (1) they were not as yet in a potential adoptive placement and (2) her application for tribal enrollment was pending, according to her section 388 petition. We disagree.
The fact that the children were not in a potential adoptive placement at the time of the section 366.26 hearing did not render the juvenile court’s decision premature. It is not necessary that a dependent child already be in a potential adoptive home or that there be a proposed adoptive parent “‘waiting in the wings’” for a court to find a child adoptable and select adoption as the child’s permanent plan. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn. 11.) Instead, the legal question, before the juvenile court may terminate parental rights, is whether there is clear and convincing evidence that it is likely the dependent child will be adopted. (§ 366.26, subd. (c)(1).) The adoptability question focuses on the dependent child, e.g., whether his or her age, physical condition, and emotional state make it difficult to find a person willing to adopt. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) In this case, there was undisputed evidence that these children were likely to be adopted and no evidence that the children had any attribute which made it difficult to find a person willing to adopt them.
The fact that mother’s application for tribal enrollment remained pending also did not foreclose the juvenile court from selecting and implementing a permanent plan for the children. First, mother fails to cite any authority to support her argument in this regard. At most, our research reveals only that, according to California Rules of Court, a court should proceed as if a dependent child were Indian and therefore according to the ICWA when a tribe responds indicating the child is eligible for membership if certain steps were taken. (Cal. Rules of Court, rule 5.482(c).) In this case, however, the tribe responded that mother was eligible but, the children were not. It was only if the mother became a member that the children would be eligible to apply for enrollment in the tribe. Mother’s application, however, had been pending since December 2009, according to her earlier statement to the court. Other than the one line in mother’s May 2010 section 388 petition that “tribal enrollment is pending, ” mother offered no evidence about the status of her application. Also, she did not ask the court to exercise its discretion and continue the matter for an application update from the tribe and thus may be deemed to have forfeited her argument. (In re S.B. (2004) 32 Cal.4th 1287, 1293.)
Further, the juvenile court found at the December 2009 dispositional hearing that ICWA did not apply, a ruling mother did not challenge in her writ petition to this court. Thus, that determination was final unless and until the tribe enrolled mother, so as to make the children eligible for membership and entitled to the benefits of ICWA. (25 U.S.C. §§ 1902 & 1903(4); Welf. & Inst. Code, § 224, subd. (c).)
Given that the ICWA did not apply to these children at the time of the permanency planning hearing and mother did not ask the court to exercise its discretion and defer the matter, we conclude that the juvenile court did not act prematurely in selecting and implementing a permanent plan for the children.
III. Post Judgment Evidence
Mother asks that we take postjudgment evidence in the form of a Certificate of Indian Blood dated July 13, 2010, that she is an enrolled member of the Seneca-Cayuga Tribe of Oklahoma and therefore the children are now eligible for enrollment. (Code Civ. Proc., § 909; Cal. Rules of Court, rule 8.252(b).) Her attorney acknowledges the mother’s tribal enrollment is a postjudgment event.
Mother recognizes absent exceptional circumstances, findings of fact on appeal should not be made (In re Zeth S. (2003) 31 Cal.4th 396, 405). She insists, nonetheless, this case involves exceptional circumstances because there was evidence in the record that the children would be eligible for enrollment in the Seneca-Cayuga Tribe of Oklahoma if mother became an enrolled member and her application for enrollment was pending as of the section 366.26 hearing. Although this court granted leave for the agency to address mother’s request, the agency did not file any objection or otherwise respond.
Preliminarily, we observe that mother’s request includes no attempt to authenticate the Certificate of Indian Blood (Evid. Code, § 1400 et seq.) or lay a foundation for its admissibility as evidence (Evid. Code, § 400 et seq.). In addition, mother fails to take into account both the general rule that postjudgment evidence is inadmissible in a juvenile dependency appeal from an order terminating parental rights (In re Zeth S., supra, 31 Cal.4th at p. 413, fn. 11) and that an appellate court should not consider postjudgment evidence going to the merits of an appeal and introduced for the purposes of attacking the trial court’s judgment (In re Josiah Z. (2005) 36 Cal.4th 664, 676). Clearly, however, this is the very relief mother seeks by her request.
Mother also overlooks the state Supreme Court’s discussion about one notable exception to these rules.
“In In re Elise K. (1982) 33 Cal.3d 138, all of the parties were in agreement, and offered to stipulate, that due to changed circumstances and the minor’s advanced age, the minor in that case was no longer adoptable within the meaning of former Civil Code section 232, subdivision (a)(7), thereby undermining the foundational basis of the trial court’s order terminating mother’s custody and control over the minor. This court determined that it was appropriate to accept that stipulation, and on that basis the judgment of the superior court was reversed. (33 Cal.3d at p. 139.) [¶] Elise K. therefore serves as precedent for the proposition that where postjudgment evidence stands to completely undermine the legal underpinnings of the juvenile court’s judgment under review, and all parties recognize as much and express a willingness to stipulate to reversal of the juvenile court’s judgment, an appellate court acts within its discretion in accepting such a stipulation and reversing the judgment. Beyond that scenario, however, the nature and scope of any exception to the general rule of nonadmissibility of postjudgment evidence in an appeal by a parent or parents from an order terminating parental rights must await a case in which the facts squarely present the issue.” (In re Zeth S., supra, 31 Cal.4th at pp. 413, 414, fn. 11.)
However, the Elise K. scenario is not present in this case.
We therefore deny mother’s request.
Out of an abundance of caution, we add even if we took the mother’s recent tribal enrollment into consideration, it would not compel us to reverse. The fact that postjudgment mother became an enrolled tribal member does not mean the order terminating her parental rights is suspect. Mother fails to cite and we know of no authority compelling retroactive application of ICWA’s substantive provisions to the dependency proceedings prior to and including the order terminating her parental rights based on the postjudgment fact of a parent’s tribal enrollment. Rather, it simply would mean if the tribe’s requirements for enrollment remain the same, that the children are apparently now eligible for tribal membership and would meet the definition of “Indian child.” At most, ICWA henceforth would apply to the children’s preadoptive and adoptive placement (§ 224.1, subd. (c) [Indian child custody proceedings include a proceeding for preadoptive placement after termination of parental rights and adoptive placement]). It would not invalidate the dependency proceedings to this point.
This is unless under tribal law the order terminating parental rights disqualified the children from membership eligibility.
IV. No detriment
Mother alternatively contends the court erred by rejecting her claim that the children would benefit from an on-going relationship with her such that termination would be detrimental to them (§ 366.26, subd. (c)(1)(B)(i)). We disagree.
Section 366.26, subdivision (c)(1)(B), acknowledges termination may be detrimental to a dependent child under specifically designated and compelling circumstances. (In re Celine R. (2003) 31 Cal.4th 45, 53.) One of those circumstances is when a parent has maintained regular visitation and contact and the child would benefit from continuing the relationship to such a degree that the child would be greatly harmed by termination. (§ 366.26, subd. (c)(1)(B)(i); In re Autumn H. (1994) 27 Cal.App.4th 567, 575 [beneficial relationship exception].)
A finding that termination would not be detrimental, however, is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1347.) The statutory presumption is that termination and permanency through adoption is in the child’s best interests and therefore not detrimental. (§ 366.26, subd. (b); In re Lorenzo C. (1997)54 Cal.App.4th 1330, 1343-1344.) A party opposed to termination bears the burden of showing that termination would be detrimental under one of the statutory exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
Consequently, when a court rejects a detriment claim and terminates parental rights, the appellate issue is not whether substantial evidence exists to support the court’s rejection of the detriment claim. The issue for the reviewing court is instead whether the court abused its discretion in rejecting the detriment claim. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) For this to happen, the proof offered would have to be uncontradicted and unimpeached so that discretion could be exercised only in one way, compelling a finding in favor of the appellant as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571; In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)
We do not doubt that mother loves her children and they had pleasant visits. However, in order for the beneficial relationship exception to apply, the parent/child relationship must promote the child’s well-being to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) A juvenile court must balance the strength and quality of the parent/child relationship in a tenuous placement against the security and the sense of belonging that a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated. (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342; citing In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Here, mother did not offer any evidence, let alone undisputed and unimpeached proof, that either child had such a substantial, positive relationship with her that termination would greatly harm him or her. To the extent mother argues the fact that the children were awaiting an adoptive placement somehow strengthened her detriment argument below, she relies on little more than speculation. We conclude therefore the court did not abuse its discretion by rejecting mother’s claim and terminating parental rights.
DISPOSITION
The orders denying mother’s section 388 petition and terminating parental rights are affirmed.