Opinion
B323845
06-15-2023
In re ALEX M. et al., Persons Coming Under Juvenile Court Law. v. ARTURO M. et al., Defendants and Appellants. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant Jasmine E. Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant Arturo M. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. 19CCJP03458, Gabriela H. Shapiro, Judge Pro Tempore.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant Jasmine E.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant Arturo M.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
CHANEY, J.
In September 2022, the juvenile court denied a petition brought by appellant Jasmine E. (Mother) under Welfare and Institutions Code section 388 and terminated her parental rights and those of appellant Arturo M. (Father) over their children Alex M. and Jasmine M. On appeal, Mother contends the court erred in denying her petition and in finding the parental-benefit exception inapplicable when terminating her parental rights. Father contends the court erred in finding the Indian Child Welfare Act (ICWA) inapplicable when the Los Angeles County Department of Children and Family Services (DCFS) conducted an allegedly inadequate inquiry into the children's potential Indian heritage.
Undesignated statutory references are to the Welfare and Institutions Code.
Mother and Father also join each other's arguments under rule 8.200(a)(5) of the California Rules of Court.
We conclude the court did not err in denying Mother's petition or in terminating the parents' parental rights. We additionally conclude that any shortcomings in DCFS's inquiry into the children's potential Indian heritage was not prejudicial. We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We limit our summary to the facts and procedural history relevant to the issues appellant raises on appeal.
A. Prior Child Welfare History
Mother has ten children, three with non-party Antonio G., and seven with Father. In December 2014, DCFS filed a petition on behalf of seven of Mother's children (the other three were not yet born), alleging they were endangered by Mother's substance abuse-including her use of amphetamines and methamphetamines while recently pregnant-and their respective fathers' failure to protect them from Mother's substance abuse. The juvenile court sustained the petition. Antonio G.'s children were eventually released to him, but the court terminated Mother's and Father's parental rights to the remaining four children in 2017; those children were adopted by a maternal aunt.
B. DCFS Files a Petition
In May 2019, DCFS received a referral reporting that Mother had just given birth and both she and the newborn, Jasmine, tested positive for amphetamines. Mother was reported to have denied any drug use and proclaimed ignorance as to how she tested positive, although she admitted a" 'history'" of substance abuse.
A Children's Social Worker (CSW) met with Mother. When asked about her past drug use, Mother claimed she had tried amphetamines only once. As to her current positive test, she explained that a day before she gave birth to Jasmine, "she went to an Herbal Life store [sic] where they gave her women's multivitamins . . . and she took them." She also "got a shake there, 'cookies and cream' and that was possibly what could have cause[d] a positive drug test."
In a conversation with the CSW the next day, Father acknowledged Mother's history of drug use had led to four of their other children being adopted but denied knowledge that Mother was currently using any drugs. Father echoed Mother's hypothesis that vitamins and shakes caused the current positive drug test result. Father informed the CSW that he had recently lost his apartment and had no one to watch the couple's one-year-old son, Alex (born February 2018). Over Father's objection, Mother asked one of her sisters, H.M., to watch Alex; H.M. agreed.
On May 28, 2019, DCFS obtained a removal order for Alex and Jasmine. Alex remained with his aunt, and it was expected that Jasmine, who was still in the Neonatal Intensive Care Unit, would join him once she was discharged. Three days later, DCFS filed a petition on behalf of Alex and Jasmine under section 300, subdivisions (b)(1) and (j), alleging the children were endangered by Mother's substance abuse and Father's failure to protect them from Mother's substance abuse. The petition also alleged that the children's seven siblings and half siblings were dependents of the court due to Mother's past substance abuse.
In June 2019, both parents filed an ICWA-020 form, declaring under penalty of perjury that each had "no Indian ancestry" as far as they knew. At the detention hearing, the court found a prima facie case had been made and detained both children from the parents. The court ordered both parents were permitted to have monitored visits. At Mother's request, the court also ordered DCFS to provide referrals for weekly, random, on-demand drug-testing. C. The Court Removes the Children
In subsequent conversations with DCFS, Mother continued denying current drug use, blaming her positive test on "some natural pills she ingested." However, Mother could provide no information about the pills. Mother did admit to using crystal methamphetamine for approximately three months in the past, and to using drugs while pregnant with a previous child, but denied any other drug use. Mother stated that she was" 'conscious that the drugs were the cause for me losing my kids,'" but that" 'this time around [she was] going [to do] everything differently.'" Mother claimed she was attending Narcotics Anonymous meetings and had enrolled in a substance abuse program.
At the July 2019 adjudication hearing, both parents pled no contest to one count under section 300, subdivision (b)(1). The amended count struck an allegation that Mother was a current user of amphetamines, but retained the allegation that she had used amphetamine during her pregnancy with Jasmine, and that Jasmine tested positive for amphetamines at birth. Mother was ordered to participate in weekly, random, on-demand drugtesting and to enroll in a 12-step program. Both parents were granted visitation, with Mother's visits monitored and Father's unmonitored.
The court's minute order from this hearing stated that the parents also pled no contest to the count brought under section 300, subdivision (j) as pled, but the transcript from the hearing indicated this count was dismissed. Because this discrepancy has no bearing on our decision, we do not resolve it.
In a September 2019 Last Minute Information, DCFS informed the court that Mother had provided proof that she had attended Alcoholics Anonymous / Narcotics Anonymous meetings from June 11 to July 2, 2019. Mother had also enrolled in a sixmonth, outpatient substance abuse program on June 18, 2019, and, as of July 18, 2019, she had "maintained a regular attendance for treatment sessions." However, on July 22, 2019, Mother failed to appear for her drug test and then tested positive for methamphetamines the next day. Though DCFS reported Mother's other tests came back negative, it also noted that the positive sample was "diluted" and speculated whether "the mother continues to dilute her specimen in order to test negative or whether the mother is actually clean and sober." At the September 2019 disposition hearing, the court removed both children from both parents, ordered Mother to participate in a full drug and alcohol program, in random, on-demand, weekly drug testing, and in a 12-step program. It maintained visitation as previously ordered.
D. Mother Cycles Between Sobriety and Relapse
In October 2019, Mother's drug counselor reported that Mother did not test consistently "due to having excuses and stories involving mixing up test dates." Mother again tested positive for methamphetamine on August 2, 2019, and missed a test on August 20. Mother explained her positive test by claiming she had "gone into a public restroom where a couple had been smoking the Meth . . . and inhaled unintentionally." The counselor also reported she had confronted Mother about "complaints from other students . . . that she is advising others how to alter urine drug test[s] by using cleansing methods." The counselor stated Mother had been inconsistent with the counseling and treatment program and had avoided participating in individual counseling sessions.
In February 2020, the same counselor claimed Mother had "not been consistent with attending her recovery support services program," postulating that Mother was "trying to beat the system by counting the days after she completes a drug test to determine how much time in between to be able to use drugs and clear [them] from her system before [the] next drug test is required." Mother tested positive for amphetamines and methamphetamines in January 2020, February 2020, and March 2020, and missed three tests.
In April 2020, Mother's drug counselor reported Mother was "not being truthful," was "in denial about her drug problem," and was "not ready to change." The counselor further reported Mother had "tested positive for drugs" but "continue[d] to deny using or having relapsed." The counselor opined that Mother was "definitely not ready to have her children returned." When DCFS asked Mother about the positive drug tests, she continued to deny drug use, suggesting that one positive result occurred because, on the day of her test, she had "handled an old pouch that she used to store her drugs," which "must have contaminated her urine sample."
In July 2020, Mother was removed from her recovery support meetings due to missing more than 30 sessions; she then enrolled in a different six-month drug program. However, Mother continued to miss drug tests.
In a status review report for a March 2021 review hearing, DCFS reported Mother's drug tests were negative and she had "completed a drug program and voluntarily re-enrolled a second time to stay on track." However, in April 2021, Mother once again tested positive for methamphetamines. Mother's drug counselor reported that Mother denied using drugs and stated that she was pregnant, so a positive test result was not possible. She had also missed five drug tests between February and April 2021.
In May 2021, Mother gave birth to a baby girl. In a May 2021 review hearing, the court found that Mother's progress in her case plan had not been substantial, but nevertheless ordered further reunification services for both parents.
The newborn (Emma) was detained from the parents due to Mother's positive drug test and placed with the maternal aunt caring for Alex and Jasmine. In August 2022, the court terminated family reunification services for Emma as to Mother. This appeal concerns only Alex and Jasmine.
E. The Court Denies Mother's Section 388 Petition and Terminates Parental Rights
In June 2021, Mother again tested positive for methamphetamines but continued to deny drug use. She missed six tests between August and November 2021. In February 2022, the court terminated reunification services for both parents, finding they had made inadequate progress and had "run out of time." The court set a hearing under section 366.26 for June 2022.
At the initial June 2022 section 366.26 hearing, the court noted that notice for the hearing was improper and continued it to September 2022. The court also ordered DCFS to prepare a "detailed ICWA statement in terms of everyone interviewed, the inquiry, and the results of those inquiries."
In August 2022, Mother filed a section 388 petition for each child, asking the court to return the children to her care, and/or reinstate family reunification services, and/or permit her unmonitored visits, and/or permit overnight visits. Under a section in the form petition where she was asked what had happened since the February 2022 order terminating reunification services that could change the court's mind, Mother recited that she had been "consistently addressing all the issue that ha[d] brought this matter before the Court," had "completed a Parenting Program, attended Individual Counseling Sessions for over a year, ha[d] been attending AA/NA meetings since 2019," had "completed an Outpatient Program through Hopics on 02/03/2022," and had been "steadily working her 12 steps." The court set Mother's petition to be heard immediately before the September 2022 section 366.26 hearing.
HOPICS stands for Homeless Outreach Program/Integrated Care System.
In a Last Minute Information filed with the court, DCFS reported that it had inquired about the children's potential Indian heritage with Mother, Father, and three maternal aunts, all of whom denied any such heritage. In a response to Mother's section 388 petition, DCFS informed the court that Mother had tested positive for amphetamines on both September 1 and September 2. Mother claimed "false/positive results" due to second-hand smoke from her neighborhood and people smoking outside her home. Mother's drug counselor disputed her claim, opining that Mother was "adamant about using excuses and lies to manipulate people into believing her justifications."
At a September 2022 hearing, the court denied Mother's section 388 petition, finding she had failed to carry her burden to show both changed circumstances and that her requested relief was in the children's best interest. As to changed circumstances, the court cited Mother's most recent positive drug test results, as well as her explanation that they were caused by second-hand smoke-which the court found was "not credible whatsoever"- and Mother's lengthy history of substance abuse and her failure to complete a 12-step program. The court additionally found the requested relief would not be in the children's best interest because of Mother's continued substance abuse.
As to ICWA, the court noted DCFS had not asked any paternal family members (other than Father) about potential Indian heritage. Responding to the court's question of whether he had family members who might have such information, Father stated "not here," but indicated he had relatives in Mexico who had not spoken with DCFS. He provided no further information on the identity of these relatives, how to contact them, why they might have knowledge differing from his, or even how many such relatives there were. The court found that DCFS had inquired of "all available known relatives" and determined that ICWA was inapplicable.
Moving on to the section 366.26 hearing, the court found that the parents had visited "more consistently than not" and acknowledged the children played with the parents during those visits, but also found a lack of "emotional attachment between the children and the mother, such that, if visits were to stop or the contact were to end, that the children would be harmed in any way." The court found it was required to "determine whether the relationship that the parents and the children currently have . . . outweigh[ed] the consistency and stability the children are receiving in the care of their maternal aunt who has indicated an interest in adopting the children." Concluding it did not, the court found the parental-benefit exception inapplicable and terminated the parents' parental rights. Both parents timely appealed the order terminating parental rights, and Mother additionally timely appealed the order denying her section 388 petition.
DISCUSSION
A. The Court Did Not Err in Denying Mother's Section 388 Petition
"Section 388 allows a parent to petition to change, modify, or set aside any previous juvenile court order. (§ 388, subd. (a).) 'The petitioner has the burden of showing by a preponderance of the evidence (1) that there is new evidence or a change of circumstances and (2) that the proposed modification would be in the best interests of the child.'" (In re J.M. (2020) 50 Cal.App.5th 833, 845.) "We normally review the grant or denial of a section 388 petition for an abuse of discretion." (In re Alayah J. (2017) 9 Cal.App.5th 469, 478.) "A court exceeds the limits of legal discretion if its determination is arbitrary, capricious or patently absurd. The appropriate test is whether the court exceeded the bounds of reason." (In re L.W. (2019) 32 Cal.App.5th 840, 851, citing In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
1. Changed Circumstances
"To support a section 388 petition, the change in circumstances must be substantial." (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) "A parent establishes a substantial change of circumstances for purposes of section 388 by showing that, during the period between termination of reunification services and the permanency planning hearing, he or she has resolved the previously unresolved issues supporting juvenile court jurisdiction." (In re J.M., supra, 50 Cal.App.5th at p. 846.)
Mother contends she demonstrated such a change because she: (1) "was participating in a full drug and alcohol program with HOPICS, including weekly drug education, relapse prevention, individual sessions, random tests"; (2) "participated in AA / NA meetings"; and (3) had "requested participation in 12-step with a sponsor." These actions do not constitute a substantial change.
Mother's participation in a drug and alcohol program was not a change in circumstance. Before the court terminated her reunifications services, she had already enrolled in and completed several drug programs. She had also been drugtesting for over three years, with mixed results-including two positive tests less than a month before her section 388 petition was heard. Nor was participating in Alcoholics Anonymous or Narcotics Anonymous meetings a change-she had been attending such meetings since the June 2019 detention hearing. And while it appears Mother had never requested to participate in a 12-step program with a sponsor before-despite being ordered to do so at the July 2019 adjudication hearing-in light of Mother's history of positive drug tests and unsuccessful participation in drug programs, we agree with the juvenile court that the existence of this request does not constitute a substantial change in circumstances.
Mother does not deny her previous unsuccessful participation in drug programs or her positive drug test results, but contends she nevertheless met her burden to demonstrate changed circumstances because she had "gain[ed] insight," "internalize[d] what she need[ed]," and "learned the importance of taking ownership of her mistakes." The record provides little evidence to support her claim. Less than a month before her section 388 petition was heard, Mother tested positive for amphetamines but claimed they were "false/positive results" due to second-hand smoke from her neighborhood and people smoking outside her home. Mother's drug counselor flatly disbelieved her claims, opining that Mother was "adamant about using excuses and lies to manipulate people into believing her justifications." Far from supporting that Mother had gained insight, the record demonstrates Mother had yet to accept any responsibility for her drug problem. "One cannot correct a problem one fails to acknowledge." (In re Gabriel K. (2012) 203 Cal.App.4th 188, 197.) We thus discern no error in the court's finding that Mother failed to demonstrate changed circumstances under section 388.
2. Best Interests of the Children
"[B]est interests is a complex idea." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 530.) In determining the best interests of a child, "a court must perform a more nuanced best interests analysis, considering, at a minimum: '(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers,' taking into account 'any interest of the child in preserving an existing family unit, no matter how, in modern parlance, "dysfunctional"' and 'the complexity of human existence'; and (3) the nature of the changed circumstances and the reason a change was not made sooner." (In re J.M., supra, 50 Cal.App.5th at p. 848, citing In re Kimberly F., at pp. 530, 532.) This list is not exhaustive.
Mother claims the court erred in finding her requests were not in the best interests of the children because her substance abuse problem "was not too serious to correct," because she had a strong bond with her children, and because she was "working on her problems." We are unconvinced.
Mother's substance abuse problem was apparently so endemic that she could not stop using drugs during both her pregnancy in 2014 and in 2019. Even after: (1) her parental rights to her other children had been terminated due to her substance abuse; (2) DCFS filed a petition as to the two children at issue in this appeal due to her substance abuse; (3) the court removed those children from her care; (4) the court terminated family reunification services and set a hearing under section 366.26; and (5) Mother filed a section 388 petition claiming she had changed and wanted the children back, Mother still tested positive for amphetamines. While Mother argues that "relapse is a normal part of recovery," "where a parent has . . . demonstrated an unwillingness to commit to sobriety . . . it becomes more apparent that trying the same approach so soon is unlikely to work." (In re B.E. (2020) 46 Cal.App.5th 932, 941-942.) Thus, even taking into account any bond between Mother and her children, we conclude the court did not err in finding Mother's requests were not in the children's best interests.
To prevail on her section 388 petition, Mother was required to demonstrate both changed circumstances and that her requests were in the best interests of the children. Because the court did not err in finding she demonstrated neither, it also did not err in denying her petition.
B. The Court Did Not Err in Finding the Parental-Benefit Exception Inapplicable
"Even when a court proceeds to select a permanent placement for a child who cannot be returned to a parent's care, the parent may avoid termination of parental rights in certain circumstances defined by statute. One of these is the parental-benefit exception." (In re Caden C. (2021) 11 Cal.5th 614, 629.)Our Supreme Court articulated "three elements the parent must prove to establish the exception: (1) regular visitation and contact, and (2) a relationship, the continuation of which would benefit the child such that (3) the termination of parental rights would be detrimental to the child." (Id. at p. 631, emphasis in original.)
(Section 366.26, subd. (c)(1) ["If the court determines . . . that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption . . . unless . . . [¶] . . . [¶] (B) The court finds a compelling reason for determining that termination would be detrimental to the child" because "(i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship"].)
In deciding whether termination of parental rights would be detrimental to the children, the court must consider "what life would be like for the child in an adoptive home without the parent in the child's life." (In re Caden C., supra, 11 Cal.5th at p. 633.) "When it weighs whether termination would be detrimental, the court is not comparing the parent's attributes as custodial caregiver relative to those of any potential adoptive parent(s)." (Id. at p. 634.) "[T]he question is just whether losing the relationship with the parent would harm the child to an extent not outweighed, on balance, by the security of a new, adoptive home." (Ibid.) "[T]he ultimate decision-whether termination of parental rights would be detrimental to the child due to the child's relationship with his parent-is discretionary and properly reviewed for abuse of discretion." (Id. at p. 640.)
Here, the court found that while Mother had visited "more consistently than not" and the children played with her during the visits, there was no "emotional attachment between the children and the mother, such that, if visits were to stop or the contact were to end, that the children would be harmed in any way." In weighing the children's relationship with the parents against the "consistency and stability" the children were receiving from their caregiver who had expressed an interest in adopting them, the court concluded that "the children would benefit more" from the adoption than "if they were to just not be adopted today and the parents would be able to continue to enjoy their parent-child status." It therefore terminated the parents' parental rights.
Mother does not challenge the court's findings on the consistency of visitation or the apparent lack of emotional attachment between her and the children. Instead, she contends the court erred in treating the question of detriment as a "contest between who would be the better caregiver, . . . Mother or maternal aunt." We find no support in the record for Mother's assertion.
In considering this element, the court stated that it needed to "determine whether the relationship that the parents and the children currently have . . . outweigh[ed] the consistency and stability the children are receiving in the care of their maternal aunt who has indicated an interest in adopting the children." That is precisely the question our Supreme Court mandated the juvenile court consider. (In re Caden C., supra, 11 Cal.5th at p. 634 [in determining whether termination of parental rights would be detrimental to child, "question is just whether losing the relationship with the parent would harm the child to an extent not outweighed, on balance, by the security of a new, adoptive home"].) Mother cites nothing to indicate the question the court considered was anything other than what it articulated. Given the court's unchallenged finding that there was insufficient "emotional attachment between the children and the mother, such that, if visits were to stop or the contact were to end, that the children would be harmed in any way," we hold that the court's determination on that question was squarely within the bounds of reason. Thus, the juvenile court did not err in finding the parental-benefit exception inapplicable.
C. The Court Did Not Err in Finding ICWA Inapplicable
After DCFS temporarily takes a child into custody, it must "ask[] the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child." (§ 224.2, subd. (b).) Father does not dispute that, in response to queries from DCFS, he, Mother, and three maternal aunts all denied any potential Indian heritage. But he claims DCFS nevertheless conducted an insufficient inquiry because "there were five paternal relatives residing in Mexico of whom inquiry regarding Indian ancestry was not made." Assuming, without deciding, that DCFS's inquiry was insufficient, we hold there was no prejudice from DCFS's failure to speak with Father's relatives in Mexico.
In assessing whether remand is required for an allegedly insufficient inquiry, we apply the definition of prejudice set forth in In re Benjamin M. (2021) 70 Cal.App.5th 735. (In re Darian R. (2022) 75 Cal.App.5th 502, 509; In re S.S. (2022) 75 Cal.App.5th 575, 582.) "According to Benjamin M., the failure to ask extended family members about Indian ancestry would be prejudicial if 'the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child.'" (Darian R., at p. 509, citing Benjamin M., at p. 744.)
Here, we find no prejudice. Information potentially held by an unknown number of relatives living in a foreign country whose names and contact information were not provided to DCFS does not constitute "readily obtainable information." Moreover, Mother was born in Mexico and, while the record does not disclose Father's place of birth, his relatives resided in Mexico, implying that he, too, is of Mexican origin. While Mother's birthplace and Father's likely country of origin do not conclusively rule out Indian heritage, they suggest such heritage is unlikely. Because the record indicates no "readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child," we find that to the extent the court erred in finding ICWA inapplicable without requiring DCFS to speak with Father's relatives residing in Mexico, such error is harmless and does not warrant remand. (In re Benjamin M., supra, 70 Cal.App.5th at p. 744.)
The record does not support Father's claim on appeal that there were "five paternal relatives . . . of whom inquiry . . . was not made." When Father was asked about relatives that might have information, he stated simply that "they" lived in Mexico, without specifying a number.
DISPOSITION
The court's orders are affirmed.
We concur: ROTHSCHILD, P. J. BENDIX, J.