Opinion
F086578
03-26-2024
In re E.S. et al., Persons Coming Under the Juvenile Court Law. v. L.G., Defendant and Appellant. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,
Seth F. Gorman, 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NOT TO BE PUBLISHED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 an order of the Superior Court of Fresno County Super. Ct. Nos. 03CEJ300051-4, 03CEJ300051-5, 03CEJ300051-6, 03CEJ300051-7 & 03CEJ300051-8. Kim Nystrom-Geist, Judge.
Seth F. Gorman, 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
DE SANTOS, J.
L.G. (mother) appeals from the juvenile court's denial of her postpermanency Welfare and Institutions Code section 388 petition requesting reinstatement of reunification services and assessment for placement of her four minor children following the termination of the children's legal guardianship.
All further undesignated statutory references are to the Welfare and Institutions Code.
Mother contends (1) the juvenile court erred by assessing mother's request under section 388 rather than section 366.3; (2) alternatively, the juvenile court abused its discretion in denying mother's section 388 petition; and (3) reversal and remand is required due to deficient inquiry under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and related California provisions.
We affirm the juvenile court's order denying mother's section 388 petition.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2015, the Fresno County Department of Social Services (department) filed a juvenile dependency petition on behalf of mother's five children: then nine-year-old E.S., then eight-year-old S.S., then five-year-old V.A., then four-year-old A.A., and then 22-month-old D.A. It was alleged the children came within the juvenile court's jurisdiction under section 300, subdivision (b) based on mother's failure to supervise or protect the children, substance abuse issues, and domestic violence between mother and the father of V.A., A.A., and D.A. (father). It was further alleged the children came within the court's jurisdiction under section 300, subdivision (j), as the children's half siblings had undergone dependency proceedings in 2003 due to mother's general neglect and substance abuse issues, and mother failed to reunify with them.
Father is not a party to this appeal. E.S. and S.S.'s father did not participate in the dependency proceedings and also is not a party to this appeal. We only include facts regarding the fathers that are relevant to the issues on appeal. We refer to V.A., A.A., and D.A.'s father as "father" for clarity, as he shares the same initials as one of the children.
The children were ordered detained, and in January 2016, the juvenile court found the allegations in the petition true. The children were adjudged dependents of the court, were ordered removed from the parents, and only mother was ordered to participate in reunification services, including parenting classes, a substance abuse evaluation and recommended treatment, a mental health evaluation and recommended treatment, a domestic violence index and recommended treatment, and random drug testing.
V.A. and A.A. were placed with mother's maternal aunt in March 2016. D.A. was placed there in April 2016, and E.S. and S.S. were placed there in July 2016.
Mother completed a parenting class and substance abuse treatment and consistently participated in random drug testing. She attended mental health and domestic violence assessments and was recommended to participate in mental health treatment and a 52-week child abuse intervention program. She was initially noncompliant with mental health treatment and stated she disagreed with the domestic violence recommendation and refused to attend the program. She eventually began attending mental health treatment and agreed to attend the child abuse intervention program and was referred to an intake in June 2016. Ahead of the six-month status review hearing, the department was recommending continued reunification services.
Minors' counsel filed an opposition to the department's recommendation of continued services. Minors' counsel argued mother's initial refusal to participate with treatment "prevented her from making progress in areas related to domestic violence and mental health services," and there was thus insufficient evidence that the children could be returned to mother in 12 months.
In August 2016, the juvenile court terminated mother's reunification services and set a section 366.26 hearing.
On February 1, 2017, at the section 366.26 hearing, the juvenile court found the children would likely be adopted but that termination of parental rights would be detrimental to the children because (1) mother had maintained regular visitation and contact, and the children would benefit from continuing the relationship, and (2) the children were living with a relative who was unable or unwilling to adopt because of exceptional circumstances but was willing to provide them with a stable and permanent home and removal would be detrimental to the children. The court ordered legal guardianship with the maternal great aunt as the children's appropriate permanent plan and terminated dependency. Mother was ordered to be provided visits supervised by the guardian or an approved third party for a minimum of one hour per week with the guardian having discretion for unsupervised visits.
In April 2021, E.S. was removed from the guardian's home. E.S. was adjudged a dependent, and mother participated in reunification services and successfully completed parenting classes, substance abuse assessment and recommended treatment, random drug testing, and a mental health assessment and recommended treatment. In May 2022, dependency was terminated and E.S. was returned to mother's care, and mother was granted sole legal and physical custody of E.S.
On February 16, 2023, mother filed a section 388 petition requesting, as relevant to the issues presented in this appeal, that as to S.S., V.A., A.A., and D.A., the children still in the care of the guardian, the court reopen reunification services to mother and order the department to assess her for placement. As for changed circumstances, the petition alleged that mother "completed services" with E.S. As to why the requests were in the best interests of the children, the petition alleged the guardian was refusing to follow visitation orders since mother had reported abuse occurring in the guardian's home.
The department later reported almost 35 referrals had been made to the department based on mother's reports of physical abuse, neglect, and that the guardian's boyfriend was sexually abusing the children. Mother had called the police 81 times to report similar concerns. At the time of mother's section 388 petition hearing at issue in this appeal, a criminal investigation was pending regarding the sexual abuse allegations, though it was reported the police suspected mother had coached the children.
The court set an evidentiary hearing on mother's petition to occur in March 2023. On the date scheduled for the hearing, the department requested a continuance for more time to prepare a report, and the matter was continued to May 31, 2023.
On May 10, 2023, the guardian filed a section 388 petition requesting the court to terminate the legal guardianship. The petition alleged the guardian thought it was "to[o] much for [her] to care for all the [children] due to behavior problems." The guardian had filed a statement two days' prior which read: "[A]s much as I love all of these children and did the best I could with them, … mother always gets involved and [is] always feeding the [children] negative things about myself and my household. [A]s a result I see a lot of bad behavior problems with the [children] so I feel it is better for them to be remove[d] as soon as possible from my care."
The court set an evidentiary hearing on the guardian's petition for May 31, 2023, to coincide with the hearing on mother's petition.
In response to mother and the guardian's section 388 petitions, the department filed a report, dated May 25, 2023, recommending the juvenile court deny mother's petition and grant the guardian's petition. The department further recommended dependency to be reinstated, visits between mother and the children to be supervised and monthly, a mental health assessment and recommended treatment for the children, and a permanency planning hearing to be set within 60 days.
The report indicated that mother continued to be in an unhealthy relationship with father. There were calls for service due to reports of domestic violence between mother and father in December 2021 and September 2022. During the September 2022 contact, mother reported father had lived with her for the past year.
The report further indicated that in August 2022, the department received a referral because it was reported mother and E.S. were hitting each other. Mother made a plan of care for E.S. to go to her grandmother's house. E.S. reported that she did not feel safe with mother and mother mentally was in no condition to care for her. E.S. reported feeling safe with the guardian but did not want to live there because mother would "harass" her there. She further reported father was physically and verbally abusive towards mother.
Additionally, in April 2023, while the children were on a visit with mother, E.S. was stabbed. While mother was at work, the children went to the roof of the school building across from mother's apartment. The children got into an altercation with another group of children, and one of the other children stabbed E.S. Mother delayed responding to the hospital where E.S. was being treated and was uncooperative with the investigation, stating it was a private matter.
A.A., V.A., and D.A. reported they had been having overnight visits with mother and they enjoyed visits. They wanted to return to her home.
S.S. reported mother always told her to "speak up" for her siblings at the guardian's home, but S.S. felt her siblings were safe living with the guardian. S.S. further reported that during every visit mother put things in her siblings' heads to be "petty" to the guardian, including that her uncle inappropriately touched D.A. S.S. said mother made it seem like everything was "horrible" when it was not. S.S. reported she liked visits because she liked seeing E.S. She did not like visiting with mother, however, because they argued about things that happened at the guardian's home. S.S. defended the guardian which caused arguments between S.S. and mother. When asked if S.S. wanted to continue visiting with mother, she responded that she wanted to visit with E.S. so she only wanted to visit with mother if E.S. was there. When asked if she would be more comfortable having visits at a supervised agency, she stated she had done that, and mother "put[s] up a front as she knows they are observing her, however behind closed doors she is something else." S.S. reported mother was stressful and had a habit of lying and characteristics of narcissism. She felt there would be a lot of chaos at mother's home if the children were returned to her home, but she and E.S. would be there for her siblings.
The guardian reported mother sometimes showed up unexpectedly and took the children to the store or to eat without her permission. Additionally, mother would bring the children home early when they misbehaved in her care. When the children returned home from visits with mother, they wanted to be up all night and were disrespectful and told her she could not tell them what to do. She reported that mother ran into the guardian's son in the grocery store and slammed her son in the face and told father, who was also present, to beat him up and that her son made a police report about the incident. The guardian said she did not think the children should be returned to mother's care because S.S. had told her numerous times that mother could not handle the children and that she and E.S. would end up raising the children if they were returned home. Six months prior, mother asked the guardian to take care of E.S. because she was homeless. Six or seven months ago, E.S. called the guardian asking her if she could pick E.S. up because she had an argument with mother, and the police were involved.
The social worker made an unannounced visit to mother's home on May 4, 2023. Mother's home was appropriately furnished, and mother and E.S. were the only residents. Mother reported being employed and denied any mental health issues. She reported that she did not drink alcohol and had not used methamphetamine for 17 years. Mother reported that she was no longer in a relationship with father, but then later stated she was in a relationship with him. She denied having domestic violence issues with him. Mother said the visits with the children went well, and they reported bad things to her that were going on at the guardian's home. Mother stated she did not complete the 52-week child abuse intervention program previously recommended because there was no domestic violence in her relationship with father, and the department told her she did not need to do it. She stated she was willing to comply with anything the department recommended, if granted more reunification services.
The department further reported it was concerned about the children's emotional wellbeing if returned to mother, as S.S. was showing signs of depression, mother did not complete the 52-week child abuse intervention program originally recommended for her, and still appeared to be in a relationship with father. S.S. and V.A. had begun smoking marijuana; S.S., V.A., and A.A. were not doing well in school; and S.S. was refusing to go to school due to her depression over having to arrange visits between her mother and her guardian because mother would not talk to the guardian. The department also had concerns that mother was coaching the children during visits and telling them to talk negatively about the guardian.
At the hearing on May 31, 2023, the juvenile court granted the guardian's section 388 petition and terminated the guardianship. Because there was not adequate time for mother's testimony, the court continued the matter as to mother's petition to June 26, 2023. Mother's counsel noted mother was requesting to be considered for placement, to which the court responded, "That request is denied. That request is part of her JV-180, so I am certainly not granting that request at this time. Her JV-180, I will hear whatever there is to say when we come back on the 26th."
In early June 2023, the department filed a dependency petition on behalf of E.S., then 17 years old, alleging she came within the juvenile court's jurisdiction under section 300, subdivision (a) due to the physical altercation she and mother got into; section 300, subdivision (b) because mother had refused to continue to care for E.S.; section 300, subdivision (c) based on mother's "history of denigration, threats and ongoing emotional tension between [E.S.] and [mother]"; and section 300, subdivision (j) due to mother's failure to reunify with S.S.'s siblings.
On June 12, 2023, the court found a prima facie showing had been made that E.S. was described by section 300, that continuance in mother's home was contrary to her welfare, and that there was substantial danger to E.S.'s physical and/or emotional health and there were no reasonable means to protect her safety without removal. E.S. was ordered detained from mother.
On June 26, 2023, the court conducted the contested hearing on mother's section 388 petition. Mother testified she was not aware V.A. smoked marijuana, and if she were, she would have gotten him treatment and reported it to the department and to the police. She did not tell the children anything to discourage their relationships with the guardian. She testified she did not have father in her or the children's lives, and that he had not lived with her recently, but further stated the guardian had physically assaulted father, so she supervises visits between father and the children. She had been clean and sober since 2002.
Mother further testified she had not had overnight visits with the children since the case was "closed." Visits with the children were at the guardian's discretion. During visits, she took the children to the park or places like Boomers or Chuck E. Cheese or swimming, bought them food, and took them shopping at the mall. She did not tell the children they were coming back into her care. She testified E.S. was not stabbed while in her care. Rather, the guardian was giving the children to E.S. to watch while mother was at work.
When asked if she got into an altercation with E.S. some time the previous year, mother stated that E.S. "assaulted [mother] in front of the sheriff department," which caused law enforcement to have to take E.S. off mother and arrest her and put her back into the guardian's custody. When asked if there was anything else she thought the court should know, she responded, "That I love my children, all my children, and I was not aware of [E.S.] being stabbed and my other kids being together. At the time I was at work."
The social worker testified she last interviewed the children in May 2023, when they stated they wanted to visit with mother. She was recommending one supervised visit per month because it was "usually the recommendation we make" but would not consider recommending more time "based on the concerns that are placed [i]n my report and because the children do not want to visit with her." The social worker clarified that for the last visit prior to the hearing, D.A wanted to visit mother, but A.A. and V.A. told her they did not want to.
After hearing argument from the parties, the juvenile court denied mother's petition, finding the proposed change was not in the children's best interest. The court noted it did not find mother to be credible as to the amount of time she has spent with the children nor her awareness or responsibility for the children's supervision during the time that E.S. was stabbed. The court also cited S.S.'s statements from the report that mother did not know how to discipline the children and yelled at them and that she and E.S. mostly take care of the siblings when mother was not home. The court also highlighted mother's inconsistent statements regarding whether she was in a relationship with father and that she refused to talk about the stabbing incident with E.S. The court further stated it accepted there was a change in circumstances as to the children in that the guardianship had been terminated, but nonetheless found the proposed change was not in the best interest of the children.
The court further ordered mother to have supervised visits once per month and added, "I am making that order not because it is a normal order or because it is an order that is made sometimes at this particular juncture of a case, but having considered the significant danger to the children, the mother's lack of credibility, the mother's indication that she was serving as the supervisor for the father's visits … both sides of the story are conflicting regarding whether she does or does not have a relationship with the father, the mother's lack of credibility and the stabbing of one of the children when the mother was to be supervising them," "led the Court to this conclusion."
The juvenile court set a permanency planning hearing for August 2023.
DISCUSSION
I. Denial of Mother's February 16, 2023 Section 388 Petition
Mother contends the court erred by denying her February 16, 2023 section 388 petition requesting reunification services or placement of the children. 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; In re Stephanie M. (1994) 7 Cal.4th 295, 316‒317.) The petitioner bears the burden of showing both a legitimate change of circumstances and that undoing the prior order would be in the best interest of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) In determining whether the petitioner has carried his or her burden, "the court may consider the entire factual and procedural history of the case." (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)
Whether to grant a section 388 petition is within the sound discretion of the juvenile court, and its decision shall not be overturned on appeal absent a clear abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at p. 318.) A reviewing court will not disturb the juvenile court's decision unless it has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (Ibid.)"' "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." '" (Id. at p. 319.)
Here, the court concluded mother's request for reunification services was not in the best interests of the children and denied her petition. The court's determination was not an abuse of discretion. Mother had demonstrated over the course of many years that participation in reunification services has not been effective in making her a safe parent. Despite receiving reunification services, she failed to reunify with the children's half siblings in her previous dependency case in 2003, and the children themselves at the beginning of the dependency case in 2015/2016. She had relatively recently completed parenting classes, substance abuse treatment, and mental health treatment, and was ultimately able to reunify with E.S. but nonetheless demonstrated she was still unable to safely provide care for E.S., as evidenced by the dependency proceedings initiated in the month her section 388 petition was heard and E.S.'s statements about what living with mother had been like for her.
The court concluded mother had shown changed circumstances in that the guardianship had been terminated. This was a reasonable conclusion. We reject the department's argument that mother did not show changed circumstances.
Mother had previously refused to complete the program recommended as a result of her domestic violence index, and the record supported that she continued to be in an unhealthy relationship with father, as evidenced by the law enforcement calls for service and E.S.'s statements. She was inconsistent in admitting that she was in a relationship with father or that it involved recent domestic violence, and she blamed E.S. for the physical violence between the two of them, supporting a reasonable inference she would continue not to be receptive to domestic violence or child abuse intervention services.
Both E.S. and S.S. expressed that mother was not equipped to parent the children, and S.S. was exhibiting serious depressive symptoms as a result of mother putting her in the middle of her and the guardian and pressuring her to speak negatively about the guardian, which conflicted with S.S.'s own observations that the home was safe. It appears mother may have contributed to the termination of the guardianship, and consequently the children's permanency and stability, based on the guardian's statements that she felt the children's behavior problems stemmed from mother's influence on them to think and speak negatively of the guardian.
In sum, it is unclear what benefit mother would receive from further reunification services, and therefore it is unclear how providing her further services would promote the best interests of the children. The children were not doing well in school and dealing with emotional issues and had their interest in stability and permanence recently impeded by the termination of the guardianship which had been in place for over seven years. We appreciate mother's point that the children were older with no successor guardian or permanent placement available or willing to care for them following the termination of the guardianship, but attempts at reunification with mother would have introduced far more uncertainty into their lives.
For these reasons, we conclude the court did not abuse its discretion by denying mother's section 388 petition and find no error.
II. Failure to Apply Section 366.3
Mother further contends the juvenile court erred by failing to "offer mother the consideration required by section 366.3, subdivision (f)" and instead erroneously assessed her for placement and additional reunification services under section 388. Section 366.3, subdivision (f) reads:
"Unless their parental rights have been permanently terminated, the parent or parents of the child are entitled to receive notice of, and participate in, those [section 366.3 review] hearings. It shall be presumed that continued care is in the best interests of the child, unless the parent or parents prove, by a preponderance of the evidence, that further efforts at reunification are the best alternative for the child. In those cases, the court may order that further reunification services to return the child to a safe home environment be provided to the parent or parents up to a period of six months, and family maintenance services, as needed for an additional six months in order to return the child to a safe home environment. This subdivision shall not apply to the parents of a nonminor dependent." (Italics added.)
Mother contends the court applying the section 388 standard (the "changed circumstances/best interests" test) rather than the section 366.3, subdivision (f) standard (the "best alternative" test) constitutes reversible error, and the matter must be remanded for the court to apply section 366.3, subdivision (f). We disagree.
Mother's claim is primarily based upon In re R.N. (2009) 178 Cal.App.4th 557 (R.N.). In R.N., the appellant father's child was the subject of a dependency proceeding that culminated in a legal guardianship with her grandparents. (Id. at p. 561.) When the grandparents subsequently passed away, the child's aunt filed a petition seeking to be her legal guardian. (Ibid.) The father opposed the section 388 petition, contending he had rehabilitated his life, had become sober, was employed, and had been involved with the child's upbringing while she was in the guardianship with the grandparents. (R.N., at p. 562.) At the hearing, the court noted that because the father had not filed his own section 388 petition to obtain custody, the court could only rule on the aunt's section 388 petition. (R.N., at p. 563.) The court granted the aunt's petition, appointed her the child's guardian, and terminated dependency jurisdiction. (Ibid.) The father subsequently filed a section 388 petition seeking custody of the child and termination of the aunt's guardianship. (R.N., at p. 563.) The court summarily denied the father's petition on the grounds it did not establish it would be in the child's best interest to change her placement. (Id. at p. 564.) The father appealed.
The R.N. court held, citing section 366.3, subdivision (f), that the juvenile court erred by requiring the father to file his own section 388 petition because he had the right to participate, be considered as the child's guardian, and be eligible to receive reunification services. (R.N., supra, 178 Cal.App.4th at p. 566.) The R.N. court reversed the juvenile court's orders and remanded the matter for "further proceedings consistent with section 366.3." (R.N., at p. 567.) The R.N. court did not reach the issue of whether it erred by summarily denying the father's subsequent section 388 petition. (R.N., at p. 566, fn. 8.) In light of the circumstances before the R.N. court, it "effectively imposed on the juvenile court a sua sponte duty to consider a parent's eligibility for reunification services under section 366.3, even where the parent had not filed a section 388 petition invoking that section." (D.T. v. Superior Court (2015) 241 Cal.App.4th 1017, 1040 (D.T.).)
Section 366.3, subdivision (f) did not directly apply to the circumstances presented in R.N., as the subdivision applies to section 366.3 review hearings, and R.N. arose from an order made at a hearing on the aunt's section 388 petition to be appointed legal guardian. As the D.T. court noted, R.N.'s application of section 366.3, subdivision (f) constituted "borrow[ing]" of the statute because the order did not take place at a section 366.3 review hearing. (D.T., supra, 241 Cal.App.4th at pp. 1039‒1040.) Here, like R.N., neither the termination of the guardianship nor the hearing on mother's section 388 petition took place at a section 366.3 review hearing; however, the "borrowing" that R.N. engaged in was unnecessary under the circumstances of the present case. That is because there is a more specific subdivision that applies to the stage at which a guardianship is terminated. Section 366.3, subdivision (b)(3) reads:
"Unless the parental rights of the child's parent or parents have been terminated, they shall be notified that the legal guardianship has been revoked or terminated and shall be entitled to participate in the new permanency planning hearing. The court shall try to place the child in another permanent placement. At the hearing, the parents may be considered as custodians but the child shall not be returned to the parent or parents unless they prove, by a preponderance of the evidence, that reunification is the best alternative for the child. The court may, if it is in the best interests of the child, order that reunification services again be provided to the parent or parents." (Italics added.)Notably, under section 366.3, subdivision (b)(3), the opportunity to prove reunification is the best alternative to another plan must be given at the permanency planning hearing, which in the present case had not yet occurred. Rather, in the present case, instead of giving mother this opportunity at the permanency planning hearing, the court granted her an evidentiary hearing on her section 388 petition where she was requesting substantively the same consideration as what the court is required to give under section 366.3. This is all to say, arguably, section 366.3 does not apply to this appeal at all because the permanency planning hearing had not taken place. It could also be argued, however, that because the court considered mother's request outside of the context of the permanency planning hearing, it was still required to apply the "best alternative" test given the substance and timing of mother's request. In any event, because we find any error in not applying section 366.3 was harmless, as explained in the body of this opinion, we need not discuss this issue at any additional length.
R.N. is inapposite. The proceeding in R.N. resulted in a permanent placement of the child without any meaningful consideration of the father's request for custody or reunification services. The reversible error in R.N. was that the father was not given an opportunity to prove he should be awarded reunification services or placement. Here, mother was given an opportunity to prove she should be awarded reunification services or placement in the context of her section 388 petition. Unlike in R.N., even though the court terminated the children's guardianship, it did not decide upon a successor guardian or permanent plan at that hearing, a permanency planning hearing, or any other hearing before considering mother's request. To the contrary, the court conducted an evidentiary hearing where mother was given the opportunity to carry her burden that reunification was in the children's best interest and did not set a permanency planning hearing until the conclusion of that hearing.
Mother argues that even though she was given the opportunity to present evidence and argument on the issue of reunification, the juvenile court's application of the test set forth in section 366.3-the "best alternative" test-would have resulted in a more favorable outcome to her than the test the court did apply under section 388-the "changed circumstances/best interest" test. Assuming for the purpose of this appeal, the court should have applied the section 366.3 "best alternative" test rather than the section 388 "changed circumstances/best interest" test, we conclude any error was harmless.
Generally, claims of juvenile dependency error are subject to the miscarriage of justice standard of prejudice. (Cal. Cons., art. VI, § 13.) The "miscarriage of justice" standard has been interpreted "as permitting reversal only if the reviewing court finds it reasonably probable the result would have been more favorable to the appealing party but for the error." (In re Celine R. (2003) 31 Cal.4th 45, 60, citing People v. Watson (1956) 46 Cal.2d 818, 836.)
We reject mother's suggestion that a "harmless-beyond-a-reasonable doubt standard" applies because she was not deprived of consideration to reopen reunification services. However, even if we were to apply such a standard, our conclusion would be the same because we can conclude any error resulting from the court's failure to apply section 366.3 was harmless beyond a reasonable doubt for the reasons set forth in the body of this opinion.
Here, after hearing the evidence mother presented, the juvenile court affirmatively found reunification was not in the best interests of the children. We cannot imagine a scenario where the court would find that reunification with mother was not in the best interests of the children but that placement with mother was the "best alternative" to another placement or permanent plan. In addition to finding reunification was not in the best interests of the children, the court only ordered mother to have once monthly supervised visits with the children and emphasized its order was in part because of its finding mother posed "significant danger to the children." We conclude the court's findings and comments leave no doubt it would have also found that reunification was not the "best alternative" for the children. (See D.T., supra, 241 Cal.App.4th at p. 1042 [juvenile court's findings in the context of a § 387 petition hearing that mother would" 'create a substantial risk of detriment'" to the children and a" 'substantial danger to the[ir] physical health'" "encompass an implicit finding that reunification was not the 'best alternative' for these children and that their best interest would not be served by postponing permanency even longer while [the parent] is offered services to try, once again, to achieve sobriety and to exercise responsible supervision over them"].)
Mother's arguments to the contrary are not persuasive. For the first time in her reply brief, she advances the argument that the section 366.3 "best alternative" test is substantively different than the section 388 "changed circumstances/best interest" test. Mother points out that a parent seeking to change an order under section 388 must show changed circumstances, which is not a requirement under section 366.3. We appreciate mother's point, which may have merit if the court had denied mother's petition based on a lack of showing of changed circumstances alone, but as applied to the circumstances of the present case, this point is not relevant because in evaluating mother's section 388 petition, the juvenile court did find changed circumstances and expressly denied mother's petition because it found mother's proposed orders were not in the best interests of the children. We are not convinced that a "best interest" assessment is substantively different than a "best alternative" assessment, and under both standards, the parent bears the burden by a preponderance of the evidence.
To support her point, mother cites several arguments from the department's respondent's brief regarding what must be shown as to "changed circumstances," arguing that such requirements are not part of the "best alternative" standard. As we stated in footnote 5, ante, we reject and have not considered the department's arguments regarding changed circumstances. We find the court's conclusion that mother had shown changed circumstances to be reasonable. The crux of the issue in the present case is whether the court's affirmative finding that reunification with mother was not in the children's best interest encompasses a finding that reunification was not the "best alternative" for the children. As we explain in the body of the opinion, we conclude that it does, and that it was not reasonably probable the court would order reunification under section 366.3 based on the court's finding that reunification was not in the best interests of the children.
For the reasons set forth, we conclude mother has not shown a reasonable probability that she would have obtained a more favorable outcome had the court applied the standard set forth in section 366.3.
III. Alleged ICWA Error
A. Relevant Background
In September 2015, mother claimed she had Native American ancestry. The presumed fathers claimed no Native American ancestry. The department gathered some information about mother's relatives and sent notice to eight federally recognized tribes and the Bureau of Indian Affairs based on mother's assertions. The department received responses from three of the tribes indicating the children were not members or eligible for membership and did not receive responses within 60 days from the other five tribes.
In December 2015, the department moved for the juvenile court to find the children were not Indian children as defined in ICWA.
On January 6, 2016, the juvenile court found ICWA was not applicable to the proceedings.
According to the department's detention report prepared in conjunction with the petition filed on behalf of E.S., mother and the maternal grandmother both advised the department they did not have any Native American ancestry in June 2023.
B. Analysis
Mother contends the department and juvenile court violated the duties of initial and further inquiry, citing extensively from the current California provisions to comply with ICWA and cases interpreting them. She lists several alleged deficiencies in the department's duty of initial and further inquiry, mostly dating back to 2015.
We decline to address mother's claims on their merits as part of the present appeal. To the extent mother is arguing the juvenile court's January 6, 2016 findings that ICWA was inapplicable must be reversed, her briefing does not support grounds for reversal because she exclusively cites law that was not in effect at the time the findings were made. California provisions on ICWA inquiry and notice duties underwent amendments to conform with new federal regulations, which became effective January 1, 2019. (In re D.S. (2020) 46 Cal.App.5th 1041, 1048.) In addition, the ICWA findings made in this case have long become final (see In re N.F. (2023) 95 Cal.App.5th 170, 178‒179 [parent could not challenge § 366.26 findings and orders including that ICWA did not apply in appeal from postpermanency § 388 ruling]), and since the juvenile court's 2016 ICWA findings, neither mother nor any other relatives have come forward with additional information which could affect the 2016 findings.
We agree with mother that the juvenile court and department "have an affirmative and continuing duty to inquire whether a child," who is the subject of a juvenile dependency petition, "is or may be an Indian child" within the meaning of ICWA. (§ 224.2, subd. (a); see In re Isaiah W. (2016) 1 Cal.5th 1, 9; Cal. Rules of Court, rule 5.481(a).) Had anyone with an interest in the children come forward with additional information, the department would have had the duty to investigate. In addition, any future ICWA findings made by the juvenile court must comply with the current ICWA statutes. (See In re A.M. (2020) 47 Cal.App.5th 303, 321 [2019 amendments do not apply retroactively to findings made before the amendments went into effect, but ICWA findings made after the effective date must comply with current ICWA statutes and may be challenged.] However, the juvenile court did not make any ICWA findings at mother's section 388 petition hearing nor any other ICWA findings that would implicate the amended inquiry and notice statutes; therefore, there are no findings for us to review. We conclude mother's claim is not properly before us and accordingly decline to address it.
DISPOSITION
The juvenile court's order denying mother's February 16, 2023 section 388 petition is affirmed.
WE CONCUR: POOCHIGIAN, Acting P. J. MEEHAN, J.