Opinion
F083439
03-04-2022
In re J.B., a Person Coming Under the Juvenile Court Law. v. C.B., Defendant and Appellant. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,
Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Fresno County. No. 20CEJ300215-1 Kimberly Nystrom-Geist, Judge.
Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT[*]
Appellant C.B. (mother) appeals the juvenile court's orders denying her modification petition (Welf. & Inst. Code, § 388) (section 388 petition) and terminating her parental rights as to her now one-year-old son, J.B. (§ 366.26). By her section 388 petition, mother sought to vacate the court's order denying her reunification services and establish grounds for an order granting her custody, custody with family maintenance services or family reunification services. On appeal, she contends she met her burden of showing her circumstances had changed such that reunification served J.B.'s best interest. Mother further contends the Fresno County Department of Social Services (department) failed to comply with the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) because it did not inquire of John R., J.B.'s father, whether he had Native American heritage. We affirm the court's order denying mother's section 388 petition but conditionally reverse the orders terminating parental rights and remand for the limited purpose of ICWA compliance.
Statutory references are to the Welfare and Institutions Code.
John R. did not appeal.
PROCEDURAL AND FACTUAL SUMMARY
In August 2020, the department received a referral that mother and newborn J.B. tested positive for amphetamine and mother was homeless. Mother denied using drugs and claimed her ex-boyfriend held her against her will for the previous week and forced her to use methamphetamine. She last used methamphetamine voluntarily two years before. She had two minor daughters who were not in her custody and a history of domestic violence with the father of one of her children. She also suffered from a mental illness. She did not claim any Native American heritage.
Mother identified John R. as J.B.'s father. John was not listed on J.B.'s birth certificate and he did not sign the declaration of paternity. The department obtained a protective custody warrant for J.B. and placed him with relatives.
Mother and John met with social workers from the department to address the department's concerns about their situation. The social workers decided J.B. should remain out of parental custody and that a dependency petition should be filed. John was not asked about his Native American heritage.
The department filed a dependency petition on J.B.'s behalf, alleging under section 300, subdivision (b)(1) that mother's drug abuse placed him at risk of harm. The petition identified John as the alleged father.
The juvenile court ordered J.B. detained pursuant to the petition at the detention hearing on August 13, 2020. John appeared and was appointed counsel. There is no indication on the minute order for the hearing that John filed an ICWA-020 form stating he did or did not have Native American ancestry. The court noted that the issue of the ICWA remained open. The court offered mother parenting classes and substance abuse, mental health and domestic violence services pending its disposition of the case. The court also ordered random drug testing. The court set a jurisdiction/disposition hearing for September 24, 2020. John appeared at the hearing on September 24, 2020. He did not file an ICWA-020 form. The court continued the hearing to January 21, 2021.
According to the department in its jurisdiction/disposition report filed on January 21, 2021, the parents had not maintained contact with the department and mother had not visited J.B. since his removal. The department recommended the juvenile court deny mother reunification services under section 361.5, subdivision (b)(13) because of her" 'extensive, abusive, and chronic use of drugs or alcohol'" and resistance to court-ordered treatment. She was convicted in September 2018 of making criminal threats and was ordered through probation to complete a drug treatment program. She completed substance abuse treatment in March 2019. She was ordered to complete a 90-day program from November 2019 to February 2020. She graduated from the program in April 2020. In August 2020, she gave birth to J.B. and tested positive for methamphetamine. The department also recommended against reunification services for John because as an alleged father he was not entitled to them. (§ 361.5, subd. (a).) As to the ICWA, the department could not say whether it applied because it had not asked John about his Native American heritage.
On January 21, 2021, the juvenile court conducted a contested jurisdiction/disposition hearing. John was not present, and mother testified. The court adjudged J.B. a dependent as alleged, found the ICWA did not apply, denied mother and John reunification services, and set a section 366.26 hearing for May 20, 2021. Mother did not seek extraordinary writ relief.
On May 18, 2021, mother filed a section 388 petition asking the juvenile court to place J.B. in her custody with or without family maintenance services or provide her family reunification services. As changed circumstances, she alleged that she completed residential substance abuse treatment at WestCare in April 2021, obtained housing and employment, and consistently visited J.B. Granting her petition served J.B.'s best interest, she asserted, by strengthening her bond with him and allowing him to be raised with his biological family. Mother attached various certificates of completion and verification of attendance at Narcotics Anonymous/Alcoholics Anonymous (NA/AA) meetings to her petition.
On May 20, 2021, the juvenile court continued the section 366.26 hearing to July 1, 2021, and combined it with a hearing on mother's section 388 petition. The court elevated John's paternity status to that of biological father and ordered the department to assess him for reunification services. The combined hearing was subsequently set as a contested hearing to be conducted on August 16, 2021, and then continued until August 17, 2021. John was present at all of the hearings but did not file an ICWA-020 form.
The department recommended the juvenile court deny mother's section 388 petition, deny John reunification services, and terminate parental rights. The department reported having difficulty getting in touch with mother between August and December 2020. On January 12 or 13, 2021, she checked into an inpatient drug treatment facility. She disclosed being homeless and a victim of sex trafficking for four months. She had her first visit with J.B. on January 19, 2021, and began regularly visiting him. Although mother consistently visited J.B. subsequent to their first visit, the department did not believe it would be detrimental to terminate her parental rights because he had been in the care of his prospective adoptive parents since August 14, 2020.
On July 20, 2021, John filed a section 388 petition requesting family maintenance or family reunification services. Since John had reserved his right to join mother's contest for the hearing on August 16, 2021, the juvenile court did not schedule a separate hearing.
The contested combined sections 388/366.26 hearing was continued and conducted on August 17, 2021. The department submitted the matter on its reports and, at mother's request, the juvenile court admitted into evidence visitation narratives for in-person visits between mother and J.B. from May 24 to June 30, 2021, several certificates of participation and completion of various programs and sign-in sheets for attendance at NA/AA meetings.
Social worker Mayla Vang testified she observed J.B. with his prospective adoptive parents once a month and observed him with mother once. She believed he had a significant relationship with his prospective adoptive parents. J.B. did not cry while in mother's care. He smiled at her and giggled and was actively engaged with her. He did not demonstrate any distress when being handed back to the prospective adoptive father but then he also did not demonstrate any distress when being handed to mother. She was not able to observe J.B. with John.
Mother testified she had a rough beginning when the case started, explaining that she started having substance abuse problems five years before when she had her first experience with domestic violence. She was also being sexually trafficked and was unaware that the court was offering her services. She completed a 90-day residential drug treatment program which included mental health and parenting classes and NA meetings. After completing inpatient treatment, she completed outpatient treatment and aftercare. She transitioned into her own apartment and was employed. She also attended nine of 12 classes required to complete a parenting class. She learned about neglect, abuse and domestic violence and its effect on children. She was participating in a 52-week domestic violence program and had attended three classes. She visited J.B. twice a week for an hour each visit. He called her" 'mom'" and his father" 'dad.'" He was "very, very happy" and never upset. She spoke to him in Spanish as well as English. They counted to two together and practiced saying colors. John was present for six or seven of the visits. J.B. was very happy when John held him.
Mother wanted the court to know that she had changed since the court intervened. She took responsibility for her actions and was "motivated and inspired." She was very remorseful and would do anything to be in her son's life and to make amends to him. She wanted to be the best she could for him and herself. She believed she could provide him a stable, loving, and caring home if he were returned to her custody and she was willing to participate in any and every service that the court may require. She no longer associated with people who used drugs and had support that she did not have before. She also had a sponsor and counselors.
On cross-examination, mother acknowledged a five-year history of drug use. She estimated her longest period of sobriety in that five years was from January 2018 until August 2020 when J.B. was born. However, she also acknowledged completing a court-ordered drug treatment program at Spirit of Women in March 2019 and a 90-day inpatient program at WestCare in April 2020 as a condition of parole. She relapsed three months later and completed a program at WestCare in April 2021.
John testified he was not given a chance to be a father to his son. The social worker told him there was not much he could do to reunify with his son until he was declared the biological father. Once he established his paternity and was able to visit, he believed they developed a strong bond. He believed it would be harmful to his son if his parental rights were terminated. He wanted the court to know that he loved his son and could provide for him.
The juvenile court denied the parents' section 388 petitions. As to mother, the court found she failed to show that her circumstances had changed; rather, she was making an effort to change. The court did not believe she was being deceptive in overestimating her longest period of sobriety while testifying but was confused. Of great significance to the court was the fact that mother completed the same program she completed in April 2020 while she was pregnant with J.B. and yet tested positive for methamphetamine when he was born a few months later. The court also found mother failed to show that her request for custody with family maintenance services or reunification services served J.B.'s best interest. As to John, the court found that his paternity test may establish a change in circumstances but that it was not in J.B.'s best interest to offer him reunification services.
The juvenile court found by clear and convincing evidence J.B. was likely to be adopted and terminated parental rights. This appeal ensued.
DISCUSSION
The Juvenile Court Did Not Err in Denying Mother's Section 388 Petition
Mother contends she demonstrated that she resolved her substance abuse problem, and that J.B. was very bonded to her. Therefore, she asserts, the juvenile court erred by denying her section 388 petition. We disagree.
A juvenile court order in a dependency proceeding may be changed, modified, or set aside if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist, and (2) the proposed change would promote the best interests of the child. (§ 388.) The petitioner bears the burden of showing both a legitimate change of circumstances and that undoing the prior order would serve the child's best interests. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) To make a showing of a change of circumstances, the problem that initially brought the child within the dependency system must be removed or ameliorated. (In re A.A. (2012) 203 Cal.App.4th 597, 612.)
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. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)"' "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason." '" (Id. at pp. 318-319.) All conflicts in the record must be resolved in favor of the juvenile court's decision and all legitimate inferences indulged in to uphold that decision. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.)"' "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." '" (Stephanie M., supra, 7 Cal.4th at p. 319.)
Here, mother requested the juvenile court change its order from denying her reunification services to granting her custody, granting her custody with family maintenance services or providing her reunification services. When the court determines a reunification bypass provision applies, the general rule favoring reunification is replaced with the legislative presumption that reunification services would be an unwise use of government resources. (In re William B. (2008) 163 Cal.App.4th 1220, 1227.)
Mother was denied reunification services because of her chronic substance abuse and recent resistance to treatment. (§ 361.5, subd. (b)(13).) Since the reporter's transcript was not made part of the appellate record, we do not know what testimony she may have offered at the dispositional hearing on January 21, 2021, regarding her efforts to treat her substance abuse problem to that point. We know, however, based on the department's report that she had entered inpatient drug treatment approximately a week before the dispositional hearing.
The evidence adduced at the section 388 hearing supported that mother completed the inpatient drug treatment program that she started in January 2021, progressed through outpatient treatment and aftercare, and transitioned into independent living in her own apartment. She was also employed, had nearly completed a parenting class, and had attended three of the 52 required classes to complete a domestic violence program. She claimed her circumstances were different because she had taken responsibility for her actions and was motivated and inspired to maintain sobriety.
The juvenile court, however, did not find mother's circumstances had changed but were changing, noting she completed the same drug treatment program just a year before and yet relapsed. In addition, she attributed her substance abuse to domestic violence, yet had only attended three weeks of a yearlong program. Given mother's drug use and relapse history and newness to domestic violence treatment, it was not unreasonable for the juvenile court to conclude her recent sobriety and recovery efforts did not constitute a change of circumstances. We conclude the court did not abuse its discretion in finding mother had not carried her burden of proving there existed a change of circumstances to justify the court's modification of its order bypassing her for services.
Further, even assuming mother presented sufficient evidence of changed circumstances, there is no evidence J.B.'s best interests would be served by attempting reunification. J.B. had been out of mother's care since birth and was placed with caregivers who wanted to adopt him. Delaying the selection of a permanent home to see if a parent could reunify with a child eventually sometime in the future does not promote the child's stability or best interest. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The Department Failed to Comply with the ICWA's Initial Inquiry Requirement
"ICWA reflects 'a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards that a state court … must follow before removing an Indian child from his or her family.' [Citation.] Both ICWA and the Welfare and Institutions Code define an 'Indian child' as 'any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe, or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.'" (In re D.F. (2020) 55 Cal.App.5th 558, 565.)
The duties imposed by the ICWA on the juvenile court and a county welfare department can be separated into three phases: (1) a duty to inquire, (2) a duty of further inquiry, and (3) a duty to provide the ICWA notice. (In re D.F., supra, 55 Cal.App.5th at pp. 565-567.) If, after fulfilling the duty of inquiry and the duty of further inquiry, the court or the county welfare department "knows or has reason to know … that an Indian child is involved" in the dependency proceedings, then notice pursuant to the ICWA must be given. (§ 224.3, subd. (a).)
The duty to inquire begins with the "initial contact" and includes "asking the party reporting child abuse or neglect whether the party has any information that the child may be an Indian child." (§ 224.2, subd. (a).) When the child is placed in temporary custody, the county welfare department has a duty to inquire whether the child may be an Indian child. (§ 224.2, subd. (b).) "Inquiry includes, but is not limited to, asking 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 and where the child, the parents, or Indian custodian is domiciled." (Id., subd. (b).) The juvenile court has a duty at the first appearance of each parent to ask whether he or she "knows or has reason to know that the child is an Indian child." (§ 224.2, subd. (c).) The court must instruct the parties to inform the court if any of them later receives "information that provides reason to know the child is an Indian child." (Ibid.) The court must also require each parent to complete a "Parental Notification of Indian Status" (form ICWA-020). (Cal. Rules of Court, rule 5.481(a)(2)(C).)
Here, John first appeared before the juvenile court on August 13, 2020. There is no evidence he was asked to complete an ICWA-020 form or that the department or the court asked him whether he had Native American heritage. He subsequently appeared on September 24, May 20, July 1, and August 16, 2021. There is no indication on the record that he was asked at any of those hearings whether he had Native American heritage. Consequently, the court failed in its duty to conduct an initial inquiry, which is error. Respondent concedes error and proposes a limited remand to ensure ICWA compliance. We accept respondent's concession and agree a limited remand is appropriate.
In conclusion, we find no error in the juvenile court's order denying mother's section 388 petition. However, because we conclude the court failed to comply with the ICWA, we conditionally reverse its orders terminating parental rights and remand with instructions to fully comply with the inquiry and notice provisions of the ICWA and related California law.
DISPOSITION
The juvenile court's August 17, 2021 order denying mother's section 388 petition is affirmed. The court's August 17, 2021 orders terminating parental rights are conditionally reversed and the matter is remanded for the limited purpose of complying with the ICWA. Upon remand, the juvenile court shall order the department to comply with the inquiry provisions set forth in sections 224.2 and 224.3 as it pertains to John. If John says that he has no Native American heritage, then the department's duty of inquiry as to him has been satisfied and the court shall reinstate its orders. If, however, John claims Native American heritage, the department shall conduct further inquiry as required under section 224.2, subdivision (e) and notify the pertinent tribes. If no tribe claims J.B. is an Indian child, the order terminating parental rights shall be reinstated. However, if a tribe determines that J.B. is an Indian child as defined by the ICWA and the court determines the ICWA applies to this case, the court is ordered to vacate the parental rights termination orders, conduct a new hearing pursuant to section 366.26 and proceed in accordance with the ICWA and California law.
[*] Before Levy, Acting P. J., Smith, J. and DeSantos, J.