Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. JD07-3330
McGuiness, P.J.
P.U. (Mother), mother of C.L., born in August 2006, appeals from an order denying her petition for visitation and granting the San Francisco Human Services Agency’s (agency) petition to suspend visitation. She contends the juvenile court erred in suspending visitation and in failing to provide notice as required by the Indian Child Welfare Act (ICWA). We affirm.
Factual and Procedural Background
On October 16, 2007, the agency filed a dependency petition alleging that C.L., then one year old, and his two half-siblings, O.P. and A.U., had suffered, or were at risk of suffering, serious physical harm or illness. According to the petition, Mother went to the reporting party’s house on September 19, 2007, asking to stay there for a few days because she and her children had nowhere to go. The reporting party agreed because the children were dirty and hungry. The children disclosed that C.L., Sr., the alleged father of C.L., hits and yells at them. Mother and C.L., Sr. had a substance abuse problem and there were domestic violence issues between them. C.L., Sr. had anger management issues and was a registered sex offender with at least two other felony convictions. He was incarcerated at the time the petition was filed. Mother used crystal methamphetamine and admitted during a meeting that she was under the influence. At the time the petition was filed, Mother was on felony probation. She had an extensive history with Child Protective Services (CPS) dating back to 1994. Her three oldest children, J.V., M.U., and P.U., were being raised out of her care in long term placement.
The case also involved C.L.’s half-siblings O.P. and A.U. Appellant does not contest the juvenile court’s orders relating to O.P. and A.U. Accordingly, we refer to them only as they relate to the issues in this appeal.
According to a detention/jurisdiction report, Mother was incarcerated and charged with four felonies including taking a vehicle and giving false identification at the scene of an accident. C.L. Sr., was homeless and the children were placed with relatives. A social worker met with the maternal grandmother, who reported that Mother and C.L., Sr., “use drugs heavily” and that C.L. Sr., is emotionally and physically abusive towards the children. O.P. and A.U. told the social worker they are afraid of C.L., Sr., who “screams at them” and “has also hit them in the past including pulling their ears.” The social worker met with Mother on October 9, 2007. C.L., Sr., did not attend despite being asked by the social worker, and being reminded by Mother, to do so. Mother said she and C.L., Sr., have a history of drug use and that she was using crystal methamphetamine. She had been in numerous drug treatment programs and was willing to participate in another one. She reported that C.L., Sr., had been “in and out of San Quentin” for many years. She also reported she was the victim of domestic violence and that C.L. Sr., had been arrested for hitting her. Records showed Mother had failed to reunify with her first three children who were removed from her care and were in long term foster care. Records also showed that Mother had a CPS intervention when she was a minor and was the victim of neglect, physical and sexual abuse. The juvenile court detained C.L. and placed him, O.P. and A.U. with relatives.
On December 4, 2007, the agency filed a jurisdiction/disposition report. A new social worker who had been assigned to the case stated that C.L. Sr., reported he had some Native American ancestry and that “his mother was Sioux.” The social worker asked C.L. Sr., to submit additional information so that “a reasonable inquiry” could be made. The social worker documented Mother’s extensive history with CPS, including numerous allegations that she failed to protect her children from sexual abuse, physical abuse, and neglect. The report stated that C.L. was born with a positive toxicology for amphetamines and opiates and suffered withdrawal symptoms. C.L. was removed from his relatives’ house after he was hospitalized for medical treatment of injuries the treating physician indicated “rais[ed] a suspicion for abuse or nonaccidental trauma.” He was placed in a foster home on November 9, 2007, and appeared to be doing well in foster care. The social worker reported that C.L. Sr., “has made himself unavailable for the majority of the time that the department has been involved with this case.” C.L., Sr., failed to maintain contact with the agency and failed to go to court to have an attorney appointed, despite being advised by the agency to do so “since prior to [the social worker’s] receiving this case which was on October 25, 2007.” The agency scheduled visits for C.L., Sr., and C.L. but C.L., Sr., had missed at least two visits. The social worker believed visitation with Mother at jail was “not the best thing for any of the boys at this time,” “due to the recent upheaval in the children’s lives.” The social worker recommended that Mother not be offered reunification services due to her history.
The agency filed an addendum report on February 13, 2008, stating Mother was charged with six felony counts of high speed hit and run and was sentenced to one year in a substance abuse program. Mother enrolled in Walden House, a residential treatment program, where she was actively participating. The social worker recommended that Mother receive reunification services, including visits “on a regular basis” as arranged by the child welfare worker. According to the report, C.L. was still in foster care and had many medical problems, including respiratory problems and speech and hearing delays.
At a jurisdictional and dispositional hearing on March 19, 2008, the juvenile court found the allegations in the petition true as amended and declared C.L. to be a dependent. C.L. Sr., was incarcerated at the time of the hearing but had retained counsel to represent him in the dependency action. He filed Judicial Council form ICWA-020 indicating that his mother, F.S., is or was a member of the Sioux Tribe. The juvenile court ordered C.L. Sr., to stay away from Mother and ordered “supportive services” for him. On April 21, 2008, C.L., Sr., filed a statement regarding parentage and requested a judgment of parentage.
There is nothing in the record indicating the juvenile court ruled on this request.
On June 5, 2008, the agency filed a status review report. A new social worker assigned to the case wrote that Mother had left Walden House on her own accord in April 2008. She failed to re-enroll in another treatment program and tested positive for methamphetamine on April 1 and May 5, 2008. The social worker had not heard from Mother since May 5, 2008, and Mother had not visited C.L. since April 7, 2008. C.L., Sr., was still incarcerated. C.L. was doing well in foster care and was attached to his foster parents. The agency recommended terminating reunification services to Mother because she failed to comply with her reunification plan, tested positive for drugs, and was not visiting her children. The agency believed adoption was the appropriate permanent plan for C.L.
In an addendum report filed July 17, 2008, the social worker stated he learned on or about July 15, 2008, that Mother was incarcerated on charges of kidnapping and robbery. She was facing a three year sentence and was pregnant.
Neither parent attended the six-month review hearing on July 17, 2008. The juvenile court terminated reunification services and scheduled a permanency hearing for C.L. under Welfare and Institutions Code section 366.26 (section 366.26 hearing). On August 8, 2008, the agency sent notices under ICWA to 16 Sioux Nation Tribes and to the Bureau of Indian Affairs (BIA) regarding the section 366.26 hearing. The agency did not include C.L., Sr.’s mother’s name in the notice. The agency filed certified receipts indicating it had sent the notices and filed the return receipts requested from the Tribes and the BIA, indicating they had received the notice. The agency also filed the tribal responses and the response from the BIA indicating C.L. was not an Indian child for purposes of ICWA.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
It appears some of the tribes did not respond in writing to the ICWA notices.
On October 17, 2008, Mother filed a petition under section 388 (section 388 petition) asking for weekly jail visits and regular telephone contact with C.L. She asserted the “social worker... has not permitted visitation or contact between [her] and [the] children.”
On October 23, 2008, the agency filed a report for the section 366.26 hearing, recommending terminating Mother’s parental rights to C.L. and selecting adoption as his permanent plan. The report stated that C.L.’s “age and health status makes him highly adoptable.” The report stated with respect to ICWA that “ICWA noticing for [C.L.] was overlooked by the previous social worker... As a result, the undersigned completed and mailed all notices in August 2008. 60 days will expire on or around October 25, 2008 at which time an ICWA ruling can be made.”
On October 30, 2008, the agency filed its own section 388 petition asking the juvenile court to suspend Mother’s visitation with the children. According to the agency’s petition, Mother had not visited C.L. since April 2008. The social worker believed visits would be detrimental because Mother admitted she was using drugs again and was inconsistent with visits, and because the “children require a consistent, stable structure in their lives” and Mother’s “pattern of inconsistency... might jeopardize the progress [the] children ha[d] made over the past year.”
On November 12, 2008, the agency filed an addendum report in support of its section 388 petition. The report described how visitation would be detrimental to O.P. and A.U., who were refusing to see Mother. According to O.P. and A.U.’s caretaker, Mother said she did not want her children to visit her in jail. The agency was searching for an adoptive home for C.L. and believed any visitation with Mother could disturb the bonding and attachment process between C.L. and his new family.
At a contested hearing on the section 388 petitions, a social worker testified that at the time he was assigned to the case in March 2008, Mother was visiting the children “pretty regularly,” twice a week for three hours per visit, at O.P. and A.U.’s caretakers’ house. The visits were supervised by O.P. and A.U.’s caretakers. The visits became less consistent after Mother left her residential treatment program at Walden House. She canceled or did not show up to the visit on April 2. She came half an hour late to her visit on April 7. She did not show up or call to cancel her visits after that date, so the last day Mother saw C.L. was April 7, 2008. The social worker attempted to contact Mother at the maternal grandmother’s house, where he had been informed she was staying. He left several messages but did not hear back from her.
The social worker later testified that Mother “dropped out of the [residential treatment] program” after testing positive for methamphetamine.
The social worker further testified that at the end of May 2008, he spoke to Mother and told her she could visit C.L. by arranging visits with C.L.’s foster mother. He gave Mother the telephone number to call. Mother called the social worker on June 11 to tell him she had lost the number. The social worker called Mother back to give her the number again but was unable to reach her. On July 1, 2008, C.L., Sr., told the social worker that Mother’s friend said Mother was incarcerated at an unknown location. On July 15, 2008, O.P. and A.U.’s caretaker told the social worker she received a letter from Mother indicating she was incarcerated in Richmond. On September 23, 2008, the social worker learned that Mother was in jail in San Francisco. The social worker testified he did not assist Mother in visiting her children between July and September 2008 because he understood it was her responsibility, after reunification services were terminated on July 17, 2008, to contact him if she wished to visit the children. On October 6, 2008, Mother contacted the social worker for the first time since June 2008 and told him she was in jail. The social worker did not believe visits were appropriate at that time due to Mother’s long period of absence. He believed that visitation could be appropriate, at the discretion of the caretakers, if Mother could show she was living free of drugs and has housing.
Mother testified she never told O.P. and A.U.’s caretaker that she did not want her children to visit her in jail. She testified that the visits “from mid-November up until May 7th” were “all good visits,” and that she missed only “a couple of visits.” She said that when she had her first visit with her children after not having seen them for a while, O.P. and A.U. hugged her. C.L. “was a little sketchy at first but then he hugged [her].” She testified she attempted to visit C.L. before she was incarcerated by calling the social worker. She became aware she could arrange visits with C.L.’s foster mother but lost the foster mother’s telephone number. She testified, “so I called [the social worker] and asked for him to give me back the number. And I don’t know what happened.”
Mother further testified she was placed on felony probation in October 2007. She was incarcerated on June 16, 2008, in Contra Costa County but the charges against her were dismissed. She was transferred to jail in San Francisco on September 11, 2008, for violating her probation and was sentenced to one year in jail. She was scheduled to be released on February 16 or 17, 2009. When asked whether she attempted to contact the social worker after she was incarcerated in June 2008, she responded, “I couldn’t remember his number.” She asked O.P. and A.U.’s caretaker for the number but the caretaker told her “there was no point of me talking to him” because “my rights got terminated anyway.” She testified she called the social worker on October 6, 2008, “to get visits” and called him several times but was told she had to go to court to schedule visits. She testified she maintained contact with her children while she was in jail by calling them and sending them letters and storybook tapes. O.P. and A.U.’s caretaker initially denied Mother’s collect calls but later accepted the calls and told Mother she could call every other week. Mother was able to speak to her children several times. She testified that O.P. and A.U.’s caretakers told her the letters and tapes were being given to the children. She acknowledged she could have visited her children from May 11, 2008, until she was incarcerated on June 16, 2008, and that it was “her choice” not to see them during that time. She explained she “got into a nasty argument” with O.P. and A.U.’s caretakers and “just stopped talking to them for like two or three weeks.”
It is not clear from Mother’s testimony whether she called or sent letters and storybook tapes to C.L. in addition to O.P. and A.U.
At the end of the hearing, the juvenile court stated it had insufficient information from which to rule whether O.P. and A.U.’s behavior deteriorated as a result of their visits with Mother. He noted that O.P.’s therapist had submitted a report that visitation was not in O.P.’s best interests, but that the report was not clear as to the facts on which that opinion was based. The juvenile court continued the hearing to allow the therapist to provide more information, and to allow Mother’s counsel to speak to or cross-examine the therapist.
A progress report including a letter from the therapist was filed, and a continued hearing was held. The therapist testified regarding his view that visitation between Mother and O.P. would be detrimental to O.P. At the end of the hearing, the juvenile court found that Mother had not met her burden of showing there was a change in circumstances or that visits were in the best interests of C.L. or his half-siblings. The court noted that Mother stopped visiting the children in May and did not file a request for visits until “a significant amount of time [had] passed.” It noted that the agency’s motion, which was a “request to change the court order regarding visitation,” was “actually a move to reflect the reality of the situation,” i.e., that visits were not occurring. The juvenile court stated, “I’m satisfied by listening to the evidence that the visits at this point are not in the best interest of the children and would be detrimental to the children.” It authorized continued contact between Mother and the children by “letters and photographs.”
Discussion
Visitation
Section 388, subdivision (a), provides that a parent of a dependent child of the juvenile court “may, upon grounds of change of circumstance or new evidence, petition the court... for a hearing to change, modify, or set aside any order of court previously made....” “The petitioner must first show in pleadings that ‘the best interests of the child may be promoted by the proposed change of order’ before the court will conduct a noticed hearing. (§ 388, subd. (c).) The petitioner must then prove by a preponderance of the evidence that there is new evidence or changed circumstances that make the change of order in the best interest of the child.” (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1077.) “The burden of proof in such a proceeding is on the petitioning parent to show that change is warranted.” (In re Audrey D. (1979) 100 Cal.App.3d 34, 43.)
In making the best interests determination, the juvenile court is to consider: (1) the seriousness of the problem that led to the dependency and the reason the problem was not overcome at the time reunification services were denied; (2) the degree to which the parent has addressed the problem that led to the dependency at the time of the petition to modify; and (3) the child’s bonds to the parent and the current caregivers. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-531 (Kimberly F.).) A showing of changing circumstances as opposed to changed circumstances does not render modification in the child’s best interests. (See In re Carl R. (2005) 128 Cal.App.4th 1051, 1072 [“At best, his petition showed the circumstances were changing, which is insufficient to warrant a hearing on a section 388 modification petition”]; see also In re Marilyn H. (1993) 5 Cal.4th 295, 310 [“childhood does not wait for the parent to become adequate”].)
“The petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.” (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) A court exceeds the limits of legal discretion if its determination is arbitrary, capricious or patently absurd. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) The appropriate test is whether the court “exceeds the bounds of reason.” (Id. at pp. 318-319.) “Hence, when two or more inferences can be reasonably deduced from the facts, we may not substitute our decision for the juvenile court’s decision.” (In re Josiah S. (2002) 102 Cal.App.4th 403, 419.) It is rare, therefore, that the denial of a petition to modify merits reversal as an abuse of discretion. (Kimberly F., supra, 56 Cal.App.4th at p. 522.)
Here, the juvenile court did not abuse its discretion in denying Mother’s petition for visits or granting the agency’s petition to suspend visits because there was substantial evidence to support the finding that visits were not in C.L.’s best interests. Applying the factors set forth in Kimberly F. to this case, we note the problems that led to C.L.’s dependency were serious and included, among other things, Mother’s substance abuse issues, her criminal history, and her extensive history with CPS. Further, by the time the section 388 petitions were filed one year later, not much had changed. Mother had left her residential treatment program after testing positive for methamphetamine. She was incarcerated in June 2008 on felony charges. At the time of the hearing on the section 388 petitions she was in jail for violating her probation and was not scheduled to be released until February 16 or 17, 2009. She was engaging in the same type of behavior that brought C.L. and his half-siblings into dependency court.
Although both Mother and the agency filed section 388 petitions, the juvenile court determined the agency’s petition to suspend visits was in effect “a move to reflect the reality of the situation,” i.e., that visits were not occurring. It therefore placed the burden on Mother to show that the change, i.e., resuming visits, was warranted. We conclude there was no abuse of discretion even if the burden should have been placed on the agency to show that a change was warranted because there is substantial evidence supporting a finding that the agency met that burden.
In addition, although Mother visited C.L. “pretty regularly” during the first six months of the proceedings and she thought the visits went well, she stopped visiting him after April 7, 2008, and did not see him for approximately six months. For C.L., who was only 13 months old when he was removed from his Mother’s care, six months was a significant period of time to go without visits, and he was understandably “a little sketchy” according to Mother when he first saw her again. (See In re Kimberly F., supra, 56 Cal.App.4th at p. 532 [the length of time the child has been in the dependency system in relation to parental bond is vital in determining the child’s best interests].)
Mother complains the agency did not do enough to arrange visits while she was in jail and asserts it was improper to suspend visits because there was no evidence that visits would be detrimental to C.L. She stresses the importance of visitation and cites to In re Precious J. (1996) 42 Cal.App.4th 1463, 1479, In re Monica C. (1995) 31 Cal.App.4th 296, 307, and In re Brittany S. (1993) 17 Cal.App.4th 1399, 1407, all of which held the agency did not provide adequate services where it did not arrange visits for an incarcerated mother and her children during the reunification period. The cases are distinguishable because here, the agency did arrange for visits between Mother and her children during Mother’s reunification period. It was Mother who voluntarily stopped visiting C.L. after April 7, 2008, over two months before she was incarcerated, despite the fact that the agency had arranged for further visits. The social worker contacted Mother after she missed visits and provided her with instructions on how to resume visits, but Mother failed to follow up. After being incarcerated, she did not contact the social worker to inform him she was in jail and did not seek the agency’s or the court’s assistance in resuming visits until October 2008. In light of Mother’s inability to address her problems, her failure to visit C.L. for a significant period of C.L.’s life, her failure to contact the social worker for several months, the lack of evidence of a special or strong bond between them, and C.L.’s young age and his adoptability, the juvenile court could reasonably determine that any benefit to C.L. of resuming visits with Mother at this late stage was outweighed by the likelihood the visits would disturb the bonding and attachment process between him and a prospective adoptive family. (See In re Marilyn H., supra, 5 Cal.4th at pp. 309-310 [once reunification services are terminated, the parent’s fundamental right to parent her child is superseded by the child’s interest in stability and permanence].)
Moreover, Mother failed to show any changed circumstances. (See Kimberly R. v. Superior Court, supra, 96 Cal.App.4th at p. 1077 [the petitioner must prove there is new evidence or changed circumstances that make the change of order in the best interest of the child].) The agency, on the other hand, showed circumstances had changed since the juvenile court ordered visits for Mother and her children because Mother had not visited C.L. since April 7, 2008, she was incarcerated again, and reunification services had been terminated. There was no abuse of discretion.
ICWA
Mother contends the order terminating visitation should be vacated because ICWA notice requirements were not followed. The agency asserts the issue is not cognizable in this appeal because there is “no court order or judgment from which she appeals regarding the ICWA.” We agree with the agency.
Congress enacted ICWA in 1978 “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture....” (25 U.S.C. § 1902; In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) ICWA sets forth specific notice requirements so that tribes will be made aware that a dependency action is pending and will have the opportunity to exercise their right to intervene in the action. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253.)
ICWA’s requirements must be followed in involuntary child custody proceedings when a court “knows or has reason to know that an Indian child” is involved....” (25 U.S.C. § 1912(a); In re S.B. (2005) 130 Cal.App.4th 1148, 1157; see also Cal. Rules of Court, rule 5.480; Crystal R. v. Superior Court (1997) 59 Cal.App.4th 703, 711.) An “Indian child” is “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....” (25 U.S.C. § 1903(4).) California has adopted this definition of “Indian child.” (§ 224.1, subd. (a).) An Indian child, parent or Indian custodian or tribe may challenge the termination of parental rights on the ground that the notice requirements of ICWA were not followed. (25 U.S.C. § 1914.) A “parent” is defined as “any biological parent or parents or any Indian person who has lawfully adopted an Indian child.” (25 U.S.C. § 1903(9).)
“The substantive provisions of the ICWA apply to the minor’s placement in adoption and foster care and to other hearings, such as termination of parental rights, which affect the minor’s status. It does not apply to related issues affecting the minor such as paternity [or] child support....” (In re Holly B. (2009) 172 Cal.App.4th 1261, 1266 (Holly B.), citing e.g., 25 U.S.C. §§ 1912(e) & (f) [ICWA applies to foster care placement and termination of parental rights]; Cal. Rules of Court, rule 5.480 [ICWA applies to “all proceedings... [¶]... in which the child is at risk of entering foster care or is in foster care, including [various hearings]... affecting the status of the Indian child”]; State ex rel. Department of Human Services v. Jojola (1983) 99 N.M. 500, 502 [660 P.2d 590, 592] [paternity and child support proceedings did not interfere with Indian tribe’s rights to self-government and exclusive jurisdiction].)
In Holly B., supra, 172 Cal.App.4th at pages 1263, 1264, the minor was removed from her parents’ custody and placed in various foster homes. After the juvenile court ordered a psychological evaluation for the minor, the agency filed a section 388 petition for modification of that order and the juvenile court granted the petition. (Ibid.) The minor’s father appealed, contending the juvenile court abused its discretion in granting the agency’s petition and that the juvenile court failed to comply with ICWA’s notice provisions. (Id. at p. 1263.) Holly B. concluded: “The ICWA is not implicated in the orders appealed from and, unlike orders placing a child in foster care or terminating parental rights, failure to comply with the ICWA notice provisions has no impact upon the court’s orders. Accordingly, any failure to comply with the ICWA is not cognizable in this appeal and this court can provide no appellate remedy, if any.” (Id. at p. 1267.)
Similarly, here, any lack of compliance with ICWA does not impact the visitation order from which Mother appeals and we are unable to provide any appellate remedy, even if we were to conclude that ICWA notice was inadequate. Mother did not ask that C.L. be returned to her care, reunification services had been terminated, and the section 388 petitions involved only the narrow issue of whether Mother was entitled to visitation pending the section 366.26 hearing. The order denying Mother’s petition for visits and granting the agency’s petition to suspend visits therefore did not affect C.L.’s “status” (see Cal. Rules of Court, rule 5.480), and ICWA was not implicated. Because ICWA cannot serve as a basis to reverse the order suspending visits, we conclude the issue is not cognizable in this appeal.
This is in contrast to a situation in which a parent shows non-compliance with ICWA in an appeal from orders placing a minor in foster care or terminating parental rights, which clearly affect the minor’s “status.” Here, if proper notice is given for the section 366.26 hearing and C.L. is determined to be an “Indian child,” any Indian tribe would have the opportunity to intervene at that time.
Finally, we note the agency filed a “motion to consider additional evidence or in the alternative, request for judicial notice.” The additional evidence consists of a judicial council form (ICWA-030) the agency filed on May 14, 2009, which, according to the agency, shows it provided proper ICWA notice after this appeal was filed. Mother opposes this request on various grounds, including: (1) the motion was not timely filed; (2) this court should not serve as a trier of fact; (3) “this [c]ourt’s consideration of post-judgment evidence weakens the ICWA notice provisions and policies”; and (4) the requested document does not establish compliance with the ICWA notice provisions because it does not show the “notice was actually sent to the tribes, that it was sent registered mail, or that any of the tribes actually responded to the notice.” Having concluded that we need not reach the ICWA issue at this time, we deny the agency’s motion.
Disposition
The juvenile court’s order denying Mother’s petition for visitation and granting the agency’s petition to suspend visitation is affirmed.
We concur: Pollak, J., Jenkins, J.