Opinion
NOT TO BE PUBLISHED
Superior Court Santa Barbara County Nos. J-1286037, J-1286038, James E. Herman, Judge
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall, County Counsel, Sarah A. McElhinney, Deputy Counsel, for Plaintiff and Respondent.
PERREN, J.
Brandy B. (mother) appeals the juvenile court's order denying her petition for modification, terminating her parental rights, and establishing adoption as the permanent plan for her minor children, Nathaniel B. and David P. (Welf. & Inst. Code, §§ 366.26, 388). Mother contends the order must be reversed for failure to comply with the notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.), and that the court abused its discretion in denying her modification petition. We affirm.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL HISTORY
On May 15, 2009, a dependency petition was filed as to three-year-old Nathaniel and two-year-old David after mother and Nathaniel's father were arrested for being under the influence of methamphetamine. The petition also alleged that the children were living in a filthy, trash-filled house with little food. At the detention hearing on May 18, 2009, mother and Nathaniel's father each claimed Native American ancestry. In filling out the standard form (ICWA – 020), mother claimed to have Navajo and Apache heritage, while Nathaniel's father indicated that he may have Chumash and Santa Ynez ancestry. Both parents left blank the spaces asking them to identify parents, grandparents, or other lineal ancestors who were members of or eligible for membership in a federally recognized tribe. Nathaniel's father, however, told the court that Nathaniel's paternal grandmother was descended from the Chumash Santa Ynez Band of Mission Indians (the Chumash tribe). Child Welfare Services (CWS) recommended that the children be detained and the juvenile court followed that recommendation.
For ease of reference we shall refer to the minors by their first names only.
Nathaniel's father, Vincent R., is not a party to this appeal.
On June 1, 2009, mother told CWS that she did not have any information regarding her possible Native American heritage. Mother's father claimed that his father was Apache, but both of his parents (the minors' maternal great-grandparents) stated that they had never been able to prove any Native American heritage. On June 1, CWS sent a letter to Nathaniel's father requesting that he make a collect telephone call from jail so that he could be questioned regarding his claim of Native American heritage. No such call was made.
Based on the information provided by mother and Nathaniel's father, ICWA notices (form ICWA-030) were sent on behalf of both minors to the 10 federally-recognized Apache and Navajo tribes, and on behalf of Nathaniel to the Chumash tribe. The forms sent to the Apache and Navajo tribes listed mother's name along with the names of the minors' maternal grandfather and great-grandfather along with their dates of birth. The form sent to the Chumash tribe listed the name and date of birth of Nathaniel's father. On June 25, 1009, CWS filed copies of the certified receipts from each of the tribes responding that neither minor was enrolled or eligible for membership.
At the jurisdiction and disposition hearing held in July 2009, CWS recommended that mother and Nathaniel's father be offered reunification services and ordered to participate in the defined case plan. CWS reported that mother had recently been arrested again for possessing drugs. At the conclusion of the hearing, the court adopted CWS's recommendation and granted reunification services to mother and Nathaniel's father.
David's father, who was incarcerated at the time the hearing was held, appeared and stated that he was unaware of any Native American heritage. David's father was denied reunification services, and he is not a party to this appeal.
In a six-month status review report filed on January 14, 2010, CWS recommended that reunification services be terminated. CWS reported that mother had been discharged from an inpatient treatment program for bringing drugs into the facility, testing positive, and consuming bleach to mask her drug use. Mother had also been incarcerated during part of the review period and had submitted forged narcotics anonymous meeting attendance logs. She had also failed to maintain regular visitation, and when she visited she was preoccupied with her cell phone and responding to text messages. Mother had also failed to comply with her case plan by securing safe and suitable housing for her children, and instead was living with other adults known for using and selling drugs. Mother had also failed to complete a CWS-approved parenting class as required by her case plan.
On January 21, 2010, CWS spoke with Nathaniel's paternal grandmother about her possible Native American heritage. After she submitted additional information, CWS resent notice to the Chumash tribe that included the names of Nathaniel's paternal grandparents and great-grandparents along with any known birthdates and addresses, as well as a parental family tree with the names of 25 additional family members. In a subsequent response, the Chumash tribe stated that Nathaniel was not enrolled or eligible for enrollment.
Neither mother nor Nathaniel's father appeared at the continued status review hearing held on March 4, 2010, and their attorneys stated that they had not heard from either of them since February 18. Mother's attorney also informed the court that mother was on Lompoc's most wanted list. CWS reiterated its recommendation that reunification services be terminated. CWS also asked the court to find that the ICWA did not apply to either child, and submitted the Chumash tribe's response to the updated notice. At the conclusion of the hearing, the court found that the ICWA did not apply, terminated reunification services, and set the matter for a permanency planning hearing on July 1, 2010.
On June 23, 2010, mother filed a section 388 petition seeking reinstatement of family reunification services. In support of the petition, mother claimed that she had been enrolled in a substance abuse program since April 8 and had been sober for almost three months. She also offered that she had attempted to sign up for parenting classes and had visited the children for three hours once per month for each of the preceding three months. In its section 366.26 report, CWS recommended that parental rights be terminated and that adoption be ordered as the permanent plan for both children. CWS noted that mother had only been sober for a few months and therefore had not maintained a sufficient length of sobriety to regain custody. It was also noted that mother had been discharged from her previous substance abuse program for using drugs and had been incarcerated during a substantial portion of the reunification period.
A combined section 366.26 and section 388 hearing was held over two days in August and September of 2010. CWS reported that the children had been placed throughout the proceedings with their maternal great-grandparents, who were willing to adopt. The program director of mother's substance abuse program testified that mother had been enrolled since April 8 and had undergone weekly drug tests during that period. Mother was also receiving individual and group therapy, attended parenting classes once every week, and was scheduled to complete the program in October. Mother testified that she had been sober for almost six months and that her substance abuse program would assist her in finding a job. Mother's father testified that she was no longer associating with her old friends.
At the conclusion of the hearing, CWS urged the court to deny mother's section 388 motion and terminate her parental rights. CWS offered that mother intended to live with her father, in the same house from which the minors had been removed. Moreover, mother had only been sober for a short period of time in a controlled setting and did not offer any plans for employment. The evidence at best showed that mother was just beginning to effect a change, which was insufficient to establish that further reunification services would be in the minors' best interests. The minors' attorney stated his belief that mother would be unable to consistently participate in her drug plan due to geographic considerations, and was concerned as to how mother would deal with Vincent R. following his upcoming release from jail. Mother's attorney asked the court to grant further reunification services because mother would be completing her substance abuse program in October, while the end of the statutory period for services was in November.
Mother planned to live in Lompoc, while the treatment program was in Grover Beach.
The court stated that it was inclined to grant mother's motion, but for its concerns regarding a couple of issues. The court believed it was a bad idea for mother to live with her father, who in the past did not appear to have any awareness or control over mother's drug use. The court was also concerned about mother's relationship with Nathaniel's father, who was about to be released from prison. Although mother claimed to have no relationship with Nathaniel's father, on questioning from the court she admitted that she had spoken to him after the last court date. The court also concluded that mother did not have a realistic plan for outpatient drug treatment and would not continue with the program due to the distance between the program facility and her residence.
The court ultimately concluded that mother had merely demonstrated changing circumstances, and not changed circumstances. The court was unable to find mother would be able to reunify with the minors within the 18-month statutory period, and would be uncomfortable returning the minors to mother given her recent contact with Vincent R. The court accordingly denied mother's section 388 motion and terminated her parental rights as to both minors.
DISCUSSION
ICWA
Mother contends that the order terminating her parental rights must be reversed because CWS failed to comply with the notice requirements of the ICWA. We disagree.
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 the ICWA arises when "the court knows or has reason to know that an Indian child is involved...." (25 U.S.C. § 1912(a).) 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).) 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.]" (Ibid.; In re C.D. (2003) 110 Cal.App.4th 214, 224-225.)
We review compliance with the 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 the applicable provisions of the ICWA. (In re Christopher I. (2003) 106 Cal.App.4th 533, 566.)
Mother asserts that the ICWA notices sent to the Navaho and Apache tribes were insufficient because they did not include any identifying information regarding the minors' maternal grandmother. We conclude that any error in this regard was harmless because mother claimed Native American heritage through her father, not her mother. (See In re Cheyanne F. (2008) 164 Cal.App.4th 571, 575-578 [absence of information regarding parent who does not claim Native American heritage is subject to harmless error analysis].) For the same reason, there is no merit to mother's claim that the notices to the Navaho and Apache tribes were deficient to the extent they did not include information regarding Nathaniel's paternal grandparents. Nathaniel's father did not claim to have Navaho or Apache ancestry, and mother fails to explain how information regarding his heritage might have assisted those tribes in determining whether Nathaniel was eligible for enrollment. (Ibid.)
Mother correctly notes that the notices did not include the maternal grandfather's address, even though CWS had been in contact with him and he had claimed Apache heritage. Mother fails, however, to demonstrate that the omission of this information renders the notices ineffective. Although the maternal grandfather's address should have been included, "'... technical compliance with the [ICWA's] notice requirements may not be required where there has been substantial compliance.'" (In re I.W. (2009) 180 Cal.App.4th 1517, 1531.) "The purpose of the ICWA notice provisions is to enable the tribe or the [Bureau of Indian Affairs] to investigate and determine whether the child is in fact an Indian child. [Citation.] Notice given under ICWA must therefore contain enough information to permit the tribe to conduct a meaningful review of its records to determine the child's eligibility for membership." (In re Cheyanne F., supra, 164 Cal.App.4th at p. 576.) The notices at issue here included the maternal grandfather's name and date of birth. The notices also included the name and birth date of the maternal great-grandfather, the ancestor through whom the children purportedly obtained their Indian heritage. The tribes who received this information deemed it sufficient to determine that the children were not eligible for membership. This amounts to substantial compliance.
To the extent mother claims that CWS failed to conduct an adequate investigation regarding the parents' claims of Indian heritage, the record reflects otherwise. CWS attempted to interview Nathaniel's father and urged him to make a collect telephone call from jail, but he never did so. Mother was given a form with spaces for information regarding any family members who might be members of a federally recognized tribe, yet she left those spaces blank. Moreover, she later verified that she had no information or evidence that would support her claim of Indian heritage. Inquiries were also made of mother's father and his parents, all of whom stated that they were unable to provide any additional information to substantiate their claim of Apache ancestry. CWS also spoke to David's paternal grandmother, who provided extensive information regarding the child's ancestry that was included in an updated notice to the Chumash tribe. On appeal, mother provides no additional information suggesting that her children have Indian heritage. "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 up their sleeves." (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431.) Mother's ICWA claim fails.
In her opening brief, mother also contends that the responses from one of the Navaho tribes, the Colorado River Tribal Council, are deficient in that they "address only actual enrollment, and fail to address eligibility for enrollment." As CWS demonstrates, this claim is belied by the record.
The Section 388 Modification Petition
Mother asserts the court erred in denying her modification petition on the ground of changed circumstances. We conclude otherwise.
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.) The court has broad discretion in resolving a petition to modify a prior order, and its determination will not be disturbed on appeal unless an abuse of discretion is clearly shown. (Id. at p. 318.)
"'[U]p until the time the section 366.26 hearing is set, the parent's interest in reunification is given precedence over a child's need for stability and permanency.' [Citation.] 'Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.' [Citation.] 'The burden thereafter is on the parent to prove changed circumstances pursuant to section 388 to revive the reunification issue....'" (In re Zacharia D. (1993) 6 Cal.4th 435, 447; In re Vincent M. (2008) 161 Cal.App.4th 943, 955.) 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.) "[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.)
Mother contends that "[t]he proper inquiry was not whether mother completed all services or was the perfect mother, but rather whether she demonstrated changed circumstances, a relatively low standard which [CWS] and the juvenile court, failed to apply. (§ 388.)" This simply is not the law. Mother appears to confuse the standard that applied in determining whether she was entitled to hearing on her petition—which merely required her to make a prima facie case—with her burden of proving changed circumstances by a preponderance of the evidence. (See In re Zacharia D., supra, 6 Cal.4th at p. 447.) To meet that burden, mother had to do more than demonstrate that circumstances were changing; she had to prove that the circumstances had in fact changed. (In re Casey D. (1999) 70 Cal.App.4th 38, 49.)
In arguing that her modification petition was erroneously denied, mother refers to the fact that she had maintained over five months of sobriety by the time of the hearing. She fails, however, to mention her history of relapse. During the reunification period, mother was arrested for being in possession of drugs and lived with known drug users. The significance of her sobriety was further undermined by the fact that she had been discharged from her previous substance abuse program for using drugs. The court further found that even if it were to grant additional reunification services, it was unlikely that mother would be able to reunify with the children given the fact that she would not complete her substance abuse treatment program until a month prior to the end of the 18-month reunification period. Moreover, other evidence demonstrated that both children were doing well in their long-term placement with their maternal great-grandparents, who were willing to adopt them. While mother's attempts to remedy the deficiencies that led to the minors' removal are commendable, the evidence with which the court was presented supports its conclusion that mother had merely demonstrated changing circumstances, not changed circumstances. (In re Casey D., supra, 70 Cal.App.4th at p. 49.) Accordingly, mother's modification motion was properly denied.
The order terminating mother's parental rights and denying her modification petition is affirmed.
We concur: YEGAN, A.P.J., COFFEE, J.