Opinion
G056023
08-23-2018
In re MICHAEL Y., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. A.M., Defendant and Appellant.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Robert N. Ervais, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DP026576-001) OPINION Appeal from a judgment of the Superior Court of Orange County, Antony C. Ufland, Judge. Affirmed. Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Robert N. Ervais, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
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A.M. (Mother) appeals from the juvenile court's order summarily denying an evidentiary hearing on her Welfare and Institutions Code section 388 petition seeking return of her two-year-old son Michael Y. Mother also appeals from the court's decision to terminate her parental rights at the permanency hearing held under section 366.26 because the Orange County Social Services Agency (SSA) failed to comply with the notice and inquiry requirements of the Indian Child Welfare Act (ICWA). Michael's father (Father) is not a party to this appeal. We conclude the contentions lack merit, and we affirm the juvenile court's order and judgment.
All further statutory references are to the Welfare and Institutions Code.
FACTS
In September 2015, SSA filed a petition for then seven-day-old Michael raising the following allegations: Mother tested positive for methamphetamines at the time of Michael's premature birth; Mother had a substance abuse history (methamphetamines and marijuana); Mother had a drug-related criminal history; Father had a substance abuse and significant criminal history. Father was incarcerated and failed to provide for Michael's safety and protection and could not currently care for him.
In the detention report, the social worker stated Michael was placed with his paternal aunt and uncle. During her interview, Mother indicated she was Yaqui Indian and although she had not registered through the tribe, her maternal great-grandmother was registered. Mother added she believed Father had Native American heritage as well. Mother later filed an ICWA-020 form, specifying she may have Indian ancestry through the Yaqui Tribe. Father filed an ICWA-020 form indicating he may have Indian ancestry through the Choctaw and Apache Tribes. At the detention hearing, the court ordered SSA to further investigate the ICWA claims.
In October 2015, SSA prepared a report explaining the steps taken in performing ICWA inquiry and notice. Social worker Octaviano Negrete asked Mother about her American Indian heritage. Mother stated she had Yaqui Indian Heritage, but she was unable to provide contact information for relatives having further information. Negrete next attempted to contact the paternal uncle, but he did not return her calls. The social worker telephoned Mother and was unable to leave a message at the telephone number provided. A few weeks later, Negrete interviewed Father, who claimed to have Choctaw and Apache Indian Heritage. He provided contact information for paternal grandfather. She telephoned him and left a message. He did not return her telephone call.
Negrete sent notice by certified mail (return receipt requested) to the Secretary of the Interior, Sacramento Area Director of the BIA, Pascua Yaqui, Choctaw Nation of Oklahoma, Jena Band of Choctaw Indians, Mississippi Band of Choctaw Indians, Apache Tribe of Oklahoma, Fort Sill Apache Tribe of Oklahoma, Jicarilla Apache Nation, Mescalero Apache Tribe, San Carlos Apache Tribe, Tonto Apache Tribe, White Mountain Apache Tribe, and the Yavapai-Apache Nation. She provided all available biographical information about Mother and Father, grandparents and great-grandparents. The social worker filed the return receipts and several negative responses from tribes. The court determined that notice of the hearing was given to the BIA and all appropriate tribes in accordance with ICWA.
The juvenile court detained Michael, and at the next hearing, on November 24, 2015, sustained the petition. It ordered a reunification plan for Mother, which included participation in counseling, parenting education, and substance abuse treatment and testing. Over Michael's counsel's objection, the juvenile court ordered a reunification plan for Father. The court authorized monitored visits for Mother and Father. Mother was permitted visits twice per week for two hours.
The social worker's report, prepared for the six-month review hearing, recommended the court terminate Mother's reunification services. She opined Mother had "minimally complied" with the reunification plan. Although Mother completed the six-week in home parenting education program at the Orange County Child Abuse Prevention Center of Orange County (From February through March 2016), she was terminated in February 2016 from individual counseling at La Familia due to nonparticipation. There was no evidence Mother enrolled in an outpatient drug treatment program and she missed two drug tests. Mother claimed she was attending Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meetings, but she was unable to provide any meeting attendance cards. Mother visited Michael 87 percent of the time from December 2015 through April 2016 (missing five out of the 38 possible visits).
Meanwhile, the social worker undertook additional steps to determine if Michael had any American Indian heritage. Mother reported she had Theoyu and Youke Indian heritage. In April 2016, Negrete telephoned and sent a letter to Mother asking for additional information regarding the family's American Indian heritage. Mother left a voicemail message stating there was Tigua Indian heritage through the paternal grandfather's family of origin. Mother indicated her cousin "'Frankie'" could provide further information. Negrete made several attempts to speak with Frankie, but he did not return her telephone calls. In May 2016, Mother provided contact information for a maternal cousin and maternal grandfather. Mother was unable to provide any further information regarding her relatives. The maternal cousin confirmed there was Tigua Indian heritage, but he did not have contact information for his paternal relatives that would have more information. Maternal grandfather did not return Negrete's telephone calls. The social worker filed with the court several more return receipt notice cards and six negative responses from tribes. Negrete declared she included in the ICWA notices all the biographical information available. In June 2016, the trial court ruled ICWA did not apply
Before the six-month review hearing, SSA removed Michael from his paternal aunt and uncle's care after there were substantiated neglect allegations. His paternal grandmother, who lived out of state, requested placement. Michael lived in foster care while his paternal grandparents' Interstate Compact for the Placement of Children (ICPC) was being processed. The paternal grandparents expressed their desire to adopt Michael if reunification efforts failed.
At the six-month hearing, the court ordered the parents would continue to receive reunification services. The social worker's next report, dated November 3, 2016, again recommended termination of reunification services due to Mother's lack of progress and noncompliance with her case plan. The social worker explained that while Mother was attending counseling and recently enrolled in drug treatment, she had not provided any negative drug test results. The drug treatment counselor reported Mother may have tested positive but the laboratory had not yet confirmed the results. The social worker acknowledged Mother was appropriate and loving towards Michael during visits, however, she was living with maternal grandparents, who had an extensive child abuse history. The social worker did not know if Mother was employed.
The hearing was continued and the social worker's next report, dated January 5, 2017, stated Mother continued to have difficulty with her case plan. Mother was discharged from the drug treatment program because she kept making excuses and had not shown up to group therapy. Thereafter, Mother failed to keep a scheduled appointment with the social worker. In December, Mother's counselor told the social worker Mother had missed three appointments and she would be terminated. The social worker noted this would be Mother's third time being reinstated in counseling and her fourth attempt at completion. At the end of December, Mother contacted the social worker to provide her new address, and she agreed to a meeting one week later. Mother did not show up to the appointment. Mother did not take any drug tests in November or December 2016.
The hearing was again continued, and the social worker's next addendum report stated Mother ignored a request to schedule an appointment, as required by the case plan, and because she needed a new referral to counseling. The social worker sent Mother a letter specifying a meeting date and time, but Mother did not show up on the designated day. The social worker received a report from Mother's therapist, stating Mother attended 10 out of 13 sessions. The therapist opined Mother was receptive to treatment and exhibited several strengths but she dropped out of therapy.
The 12-month review hearing was continued to March 2017, which was scheduled concurrently with the 18-month review hearing. These hearings were continued several more times. There was a hearing on April 11, 2017, where the court heard testimony from the social worker and Father, but it was continued several more times.
In her addendum report dated May 17, 2017, the social worker reported she spoke to Mother on April 27, 2017, because Mother was in jail. Mother asked the social worker if her parental rights had been terminated and the social worker explained the status of the case. Mother stated she wanted to regain custody of Michael and she was willing to do anything. Mother stated her boss would bail her out of jail and she would call the social worker as soon as she was released.
The social worker learned Mother was convicted of four felony charges related to identify theft. She was sentenced to three years of probation and 110 days in jail (but with credit for time served). Mother telephoned the social worker when she was released from jail on May 10, 2017. She wanted to resume visits with Michael and meet with the social worker to discuss services.
The combined 12/18-month review hearings were continued several more times. On May 16, 2017, Mother met with the social worker and was "cooperative." The social worker gave her a bus pass and referrals to many different services. Mother informed the social worker she was pregnant and she intended to stay clean so the infant would not be removed from her care. Mother did not want Michael to move out of state to be with his paternal grandparents. She did not want him to forget her. The social worker reported Mother's first drug test was negative and she had enrolled in an inpatient drug treatment program. Father wanted Michael to be adopted by the paternal grandparents and he indicated he was no longer pursuing reunification.
Michael visited his paternal grandparents for a few days in April. Mother requested, in the beginning of May, that the social worker initiate ICPC with a maternal aunt who lived out of state.
The combined 12/18-month hearings were completed at the end of May 2017, and the court scheduled a permanency hearing for September 20, 2017. In July 2017, Michael was placed with his paternal grandparents. Thereafter, Mother's visits were over the telephone or via FaceTime. All of Mother's visits with Michael were positive and appropriately loving.
The social worker's next report recommended the court find Michael adoptable and terminate parental rights. Michael and his grandparents had quickly developed a relationship, and they wished to adopt him. However, the permanency hearing was continued several more times.
On October 18, 2017, Mother filed a section 388 petition requesting Michael be placed with her in a sober living home. She had successfully completed a 90-day inpatient substance abuse treatment program. Mother declared she realized she needed to become a better person and she was learning how to deal with daily triggers. Mother stated that in mid-September she moved into Collette's Emergency Housing Program, where she was subject to random drug tests. Her two tests in September were negative. She was living in a one-bedroom family unit that could accommodate Michael. Mother was employed as an administrative assistant and she was given flexible hours to continue complying with her case plan and probation terms. She was meeting regularly with her probation officer and attending NA meetings. She enjoyed FaceTime calls four times a week with Michael, who just turned two years old. She admitted these calls were not the same as playing together, which they often did during their visits before he moved out of state to be with his paternal grandparents. She described all the activities and things they did during their visits. Michael called her "mom" on the telephone and would blow kisses with his hands. When she told him that she loved him, he always smiled. She concluded the declaration by stating she was working hard to be the best parent possible and she was willing to do anything to get her son back. She had taken responsibility for her actions and stated, "[m]y son needs to be with his mother."
The social worker's next report discussed the petition. She stated, "While it is commendable that in the five months since services have been terminated [Mother] has accomplished [everything mentioned her petition], it is important to point out that [she] failed to actively participate in services for the first 18 months that she had reunification services available to her." The social worker pointed out that nowhere in Mother's petition did she take any responsibility for or acknowledge why Michael was removed from her care, i.e., her lengthy history of drug abuse. Mother did not indicate how she planned to provide for Michael's medical, dental, educational, emotional, or other basic needs. She did not mention that she was trying to reunify with Michael's sibling who is also a dependent, or how she would be able to handle the responsibility of raising both children.
The social worker stated Michael had been in the dependency system for almost his entire life and had never been in Mother's care. Although Mother visited Michael for the first 18 months of his life, it did not appear reunification was her priority. Meanwhile, Michael endured three placements "in his short life" and was unable to truly form bonds or establish permanency with any of them. In his current placement, Michael was with caregivers who want to adopt him. He was reported to be healthy, happy, and loved.
The court considered Mother's petition on November 15, 2017. After considering argument, the court determined there was no showing of changed circumstances or that Mother's request was in Michael's best interests. The court denied Mother's request for a hearing on the petition and rescheduled the permanency hearing for December 14, 2017.
At the permanency hearing on January 30, 2018, the court admitted the reports and heard the social worker and Mother testify. The matter was continued to February 21, 2018, where Mother argued exceptions to termination of parental rights applied. The court disagreed, terminated parental rights, and determined Michael was adoptable.
We are very concerned to see Michael's dependency case lasted 27 months. The court sustained the petition in November 2015 when he was two months old. Due to numerous continuances, the 12-month review hearing was held concurrently with the 18-month review hearing in May 2017. As a result of more continuances, the permanency hearing (§ 366.26) was not completed until 8 months later (February 2018). Michael will be three years old in September. In the 1990's the dependency legislation was overhauled in recognition of the need for an expedited track for children under three years of age. (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 847 [Legislature recognized "time is of the essence, most especially for the very young"].) --------
DISCUSSION
I. Section 388 Petition
Mother contends the court erred in denying her request for a hearing on her section 388 petition. We review such a summary denial for abuse of discretion. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
Section 388 provides, in relevant part, "(a) [¶] (1) Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall . . . set forth in concise language any change of circumstance or new evidence that is alleged to require the change of order or termination of jurisdiction. [¶] . . . [¶] (d) If it appears that the best interests of the child . . . may be promoted by the proposed change of order, . . . the court shall order that a hearing be held and shall give prior notice . . . ." (Italics added.)
A petition under this section must be liberally construed in favor of its sufficiency. (Cal. Rules of Court, rule 1432(a).) "'"Thus, if the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing."' [Citations.]" (In re Aljamie D. (2000) 84 Cal.App.4th 424, 431-432.)
Whether Mother made a prima facie showing entitling her to a hearing depends on the facts alleged in her petition, as well as the previously established undisputed facts in the court's own file. The facts alleged in the petition are that after Mother's reunification services were terminated, she began to address her drug addiction. By all accounts, she successfully completed two drug tests, a treatment program, and attended counseling and NA meetings. She had a place where Michael could live and she was employed. Mother believed Michael would benefit from further reunification efforts because they had a caring and affectionate connection, evidenced from their positive visits.
The facts established in the court's file support the conclusion it was not Mother's priority to reunify with Michael during the 18 months of services. To the contrary, Mother kept up her drug habit and engaged in serious criminal behavior, spending time in jail away from Michael. Indeed, her contact with Michael was limited to a mere few hours a week via monitored visitation, telephone calls, or FaceTime conversations. He had lived almost all of his life away from Mother, and because he changed placement three times, he had not experienced feelings of stability or permanency until residing with his paternal grandparents. He was happy and thriving in their care, and they wished to adopt Michael and give him a stable loving home.
In light of this evidence, we cannot say the court abused its discretion in refusing to hold a hearing on Mother's section 388 petition. The completion of a three-month substance abuse program and other evidence Mother had taken to begin tackling her drug addiction was not prima facie evidence the requested modification would be in Michael's best interests. This is especially true since there was no evidence Mother was ready to assume custody or provide suitable care for Michael. Mother's newfound sobriety was evidence of changing, not changed circumstances, when compared to her many years of drug addiction and inability to remain sober for the 18 months she expressed her desire to reunify with Michael. Although Mother was recently able to secure a job and temporary housing for Michael, she failed to mention what childcare arrangements would be made for her son while she worked or how she could provide medical care for Michael as well as her newborn child.
It is not surprising that Michael, as a happy, easygoing, and friendly toddler, was affectionate and loving towards Mother for the brief periods of time he saw her in person or over FaceTime. However, there was no evidence he expressed a desire or preference to live with her rather than his paternal grandparents, who had lovingly cared for his daily needs for nearly a year. There was evidence Michael was "securely attached" to these caregivers who were willing to offer him a permanent and stable home. (In re Edward H. (1996) 43 Cal.App.4th 584, 594 (Edward H.) ["At the point of these proceedings . . . the children's interest in stability was the court's foremost concern and outweighed any interest in reunification].)
Mother does not explain how it would be in Michael's best interests to change his current secure placement simply because she finally grasped the concept that as a good mother she must remain sober and provide stability in Michael's life. Mother's explanation she must satisfy multiple conditions to keep her place in an emergency housing program does not suggest she has achieved any stability or consistency in her life. She has only taken the first steps towards recovery and it is too soon to tell if she will be able to maintain consistent housing. Mother's self-serving assertion that her son needs to be with his mother was insufficient to warrant modification of his placement. In light of the serious reasons Michael was taken into protective custody, and Mother's failure to progress past monitored visitation in over two years of these dependency proceedings, the trial court recognized Mother would require additional services and supervision before gaining full custody. We agree with the trial court's conclusion the prospect of additional reunification services to see if Mother would and could do what was required to keep custody would not have promoted stability for nearly three-year-old Michael, and thus would not have promoted his best interests. (Edward H., supra, 43 Cal.App.4th at p. 594.)
II. ICWA Notice
Mother maintains the notices sent to the Indian tribes were deficient because they omitted the name of the maternal great-grandmother, who Mother told SSA was a registered member of the Pascua Yaqui Tribe. She asserts information about a registered relative should be included under questions 7 and 8 of the notices sent to the tribes, but Negrete left these sections blank. She asserts SSA's notices sent to the Indian tribes were defective because they failed to include maternal great-grandmother's name, and therefore, the tribes would not have been able to make "an informed determination" about Michael's American Indian heritage.
In her briefing Mother does not reveal the name of her maternal great-grandmother. Instead, she asserts the information was available because Mother sometimes lived with her parents, and therefore, SSA had "direct and on-going access" to the maternal grandparents and other maternal relatives "to gather the missing information." She asserts the social worker's failure to ask for the identifying information of the sole registered member requires reversal of the court's judgment for proper compliance with ICWA. This contention is not supported by the record.
In her many reports, Negrete recounted her contacts with various members of Mother's family and her efforts to gather relevant information for the notices sent to numerous Indian tribes. Negrete stated she included on the notices "all information that the family was able or willing to provide." Mother cites to these reports as evidence Negrete did not specifically ask anyone for the name of maternal great-grandmother. Nothing in the reports supports this assertion.
To the contrary, the record shows Negrete did eventually learn the name of maternal great-grandmother and included the full name (P.G.), in section "5.d" on the three notices sent to all the tribes. The social worker included maternal great-grandmother's middle name, the locations she was born and died, and a partial date of birth. She wrote P.G.'s ancestry was the Pascua Yaqui Tribe.
Contrary to Mother's assertion, Negrete's responses to questions 7 and 8 on the notice form did not somehow render it invalid. Above these two questions, in bold print, is the following statement: "The following optional questions may be helpful in tracing the ancestry of the child in 1." (Bold type omitted, italics added.) Question 7 asked a series of questions about whether the minor's relatives attended an Indian school, received treatment at an Indian health clinic, or lived on a reservation. Negrete checked the "No" box with respect to these questions. The last section of question 7 asked for the names of other relatives (uncles, siblings, and cousins) not listed in section 5 (describing parents, grandparents, and great-grandparents). Negrete included the names of uncles and a maternal great-great-grandfather. She left blank question 8 that asked for tribal affiliation and location of child on the 1906 Final Roll, Roll of 1924, or California Judgment Roll. We disagree with Mother's assertion P.G.'s name should have been listed in section 5 and repeated in Negrete's responses to questions 7 or 8. Moreover, she provides no case authority holding the social worker is obligated to answer "optional questions" on the notice form.
We conclude the ICWA notice that included P.G.'s and other family members' identifying information, contained sufficient information to permit the tribes "to conduct a meaningful review of its records to determine the child's eligibility for membership. [Citations.]" (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576.) Substantial evidence supports the juvenile court's finding there was proper notice and ICWA did not apply in this case.
DISPOSITION
The judgment is affirmed.
O'LEARY, P. J. WE CONCUR: ARONSON, J. IKOLA, J.