Opinion
G031554.
7-23-2003
In re ERICKA R., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. MISTY P., Defendant and Appellant.
Stephanie M. Davis and Patrick DuNah, under appointment by the Court of Appeal, for Defendant and Appellant. Benjamin P. de Mayo, County Counsel, and Mark R. Howe, Deputy County Counsel, for Plaintiff and Respondent. Steven D. Schatz, under appointment by the Court of Appeal, for the Minor.
Misty P. appeals the juvenile courts judgment terminating her parental rights and freeing now three-year-old Ericka R. for adoption. Misty contends the juvenile court abused its discretion in denying her Welfare and Institutions Code section 388 modification petition. In addition, she asserts the court should have applied the statutory benefit exception set forth in section 366.26, subdivision (c)(1)(A). Finally, she claims the court committed reversible error by failing to ensure Orange County Social Services Agency (SSA) had complied with the notice requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) We find this last argument has merit and, for this reason only reverse with directions for further proceedings.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Facts and Procedural Background
Several months ago, we reviewed Mistys petition for writ relief from orders of the juvenile court terminating reunification services and scheduling a permanency hearing for Ericka. (Misty P. v. Superior Court (Nov. 8, 2002) GO30981 [nonpub. opn.].) Before that, we considered Mistys appeal of the courts decision to declare then two-year-old Ericka a dependent of the court and removed Ericka from her mothers custody. (In re Ericka R. (Feb. 26, 2002) GO29303 [nonpub. opn.].) In those prior opinions we gave a detailed account of the facts beginning with the April 2001 detention of Ericka. Suffice it to say, Ericka was left alone on a third-story hotel balcony and seriously injured when she fell to the ground floor. Misty was arrested for child endangerment. This was not the first time the toddler had been hurt while playing unsupervised.
We need not repeat the details of Mistys progress under the court-ordered program. Misty received reunification services for approximately 14 months. At first, Misty made substantial progress in resolving the problems that had led to Erickas removal. She completed several parenting classes, participated in a drug treatment program, continually tested clean, and moved to a first floor apartment. However, after several months, Misty suffered a few setbacks. She stopped taking her depression medicine, she discontinued her regular psychological counseling, and she exercised poor parental judgment during some visits with Ericka. In addition, she was unable to find stable and suitable housing, and she was completely reliant on a new boyfriend for money and housing.
After reunification services were terminated in July 2002, Misty enrolled in the Mariposa Womens Center Drug and Alcohol Treatment Program. In November, her primary counselor reported that Misty missed only one class of the first phase and was doing well in the program. The counselor indicated the program had several phases and that Misty would not complete the program until mid-February 2003.
Misty could no longer continue drug and alcohol testing because SSA was no longer able to pay for these services. However, SSA did pay to have Misty continue with counseling sessions at the Child Guidance Center. In October 2002, the social worker attended a therapy session and asked about Mistys ability to care for her mental health. Misty admitted she was sometimes depressed but did not appear to understand the need to take medication or continue with counseling. The next month, Mistys therapist, Dr. Hassan, informed the social worker that Misty had been "terminated" because she had missed three counseling sessions.
In December 2002, Misty filed a section 388 motion seeking return of her child or additional reunification services. In her declaration, Misty claimed her circumstances had changed and improved in the past five months. She asserted she had learned a great deal from additional parenting classes and counseling sessions at the Mariposa drug program. She added that she had also received valuable counseling from Dr. Hassan, and was attending Narcotics Anonymous/Alcoholics Anonymous meetings twice a week. Misty maintained she was living in her own one bedroom apartment with her baby and she had a bed for Ericka. She stated that she could pay the rent and financially support Ericka with the government assistance she receives. Finally, she noted she continues to visit Ericka two hours each week. She opined that Ericka "enjoys these visits and loves to play with her little brother. I believe she recognizes me as her mother and looks to me for love and comfort."
In an addendum report, the social worker pointed out several problems with Mistys section 388 motion. She clarified that Mistys parenting class ended early due to budgetary cuts. The social worker questioned whether Misty could successfully apply what she had learned in all the parenting classes she has taken. As an example, the social worker recounted a recent visit she observed where Misty opened two containers of cookies, two bags of chips, a Kool-Aid drink for Ericka, and then purchased a McDonalds happy meal and ice cream sundae for the child. When the social worker questioned the dietary wisdom of this, mother simply responded that Ericka wanted all of the food. The social worker opined this was another example of Misty abdicating the parental "decision-making role to the child."
The social worker also noted that Misty had trouble with disciplining Ericka during visits. For example, during one visit Misty repeatedly told Ericka not to climb on a high chair and threatened to give Ericka a "time-out" if she did not stop. However, Ericka continued to climb on the chair without any recourse. When the chair eventually tipped over, almost falling on the child, Misty again asked Ericka to stop or she would get a "time-out." Ericka said "no" and walked away to play on the slide. Misty stayed seated and then yelled across the room when Ericka attempted to then climb up the wrong side of the slide. Only after being prompted by the social worker did Misty get up to assist Ericka. The social worker observed that Ericka continually moved away from Misty and "did not easily listen to her directions." The social worker concluded that Misty had yet to display that she could manage Erickas behavior or provide the necessary redirection for the child. She opined Misty "appears to continue to need supervision and directives in order to manage her visitations with the child."
As for the Mariposa program, the social worker noted that Misty has been discharged from two other perinatal programs. In November, Mistys counselor at Mariposa told the social worker that Misty had missed two classes in two weeks and she would be discharged from the program if she missed one more. In addition, the social worker reviewed Mistys NA/AA meeting signature cards and noticed she had missed three meetings in a period of approximately three months.
The social worker rebutted Mistys claim to being in counseling with Dr. Hassan. She reported Misty had been "terminated" because she missed three classes. The social worker spoke with the therapist, who noted that despite discussions with Misty about the importance of taking depression medication, Misty had not taken any action to address the issue. The therapist opined Misty had the emotional capacity to care for two young children, "but has not been tested by real life situations." The therapist was not sure about Mistys financial capacity to care for the children.
The social worker questioned Mistys assertion that she had stable housing. The social worker visited Mistys one-bedroom apartment and confirmed she had space for Ericka. However, the social worker noted Misty had a history of frequently moving. Misty was receiving financial support from her boyfriend, who she claimed did not live with her. However, Mistys therapist reported the couple was living together and he was helping Misty care for their new baby. Dr. Hassan stated Misty appeared to be financially dependent on her boyfriend and she would have money problems if the relationship ended or he needed to leave the country. The social worker was having difficulty conducting a background check on the boyfriend because the records were in Mexico. Accordingly, she could not make any conclusions about whether it would be appropriate to let the boyfriend live in the same house as Ericka.
At the December hearing on Mistys section 388 motion, both Misty and the social worker testified. After considering the testimony and argument, the court denied the motion. It concluded Misty had failed to meet her burden of proof stating, "The best interest for return clearly has not been met in regards to the best interest for more services." In addition, the court concluded it did not believe that "even if the law would permit three more months of services, that mom would complete [her case plan]. Im only basing that on moms past history. [P] . . . [P] The court finds that there has not been a change in circumstances proved in regards to moms mental stability. . . . The only evidence that was presented to the court was moms testimony and in the past and today the court has serious concerns regarding moms accuracy in reporting and ability to credibly report to this court facts about her condition. [P] [This] court has serious concerns . . . the most glaring is moms decision[-]making process as it relates directly to the raising and safety of raising a child. Mom made choices and moms made some bad choices and she continues to make bad choices." The permanency hearing was held next. The parties stated they had no further evidence to present. The court determined Ericka was adoptable and terminated Mistys parental rights, finding none of the exceptions applied.
Discussion
The Section 388 Modification Petition
Section 388 allows a parent to petition the juvenile court to change, modify, or set aside any previous dependency order based on the grounds of changed circumstances or new evidence. At the hearing, the parent must prove by a preponderance of the evidence that circumstances have changed and the minors best interests require modification of an existing order. (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) We will not disturb the courts order unless the parent shows an abuse of discretion. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
Misty asserts the trial court used an improper standard when considering her section 388 motion. She claims the court was under the mistaken belief it could only offer her three more months of reunification services, and she could not resolve her mental health and parenting issues within that period of time. Misty claims this error resulted in a "miscarriage of justice because she lost the last opportunity to derail the train that headed toward termination of her parental rights. If the court had not made this error, it is reasonably probable additional services would have been offered." She concludes, there is "no support in statute or case law for the idea held by the trial court that once reunification services have been terminated, [18] months remains the outer limit of time that services may be offered." She is wrong.
If Misty had been given reunification services past the 18-month deadline, we would have found the court abused its discretion and acted in excess of its jurisdiction. "The Legislature has recognized there must be a limitation on the length of time a child has to wait for a parent to become adequate in order to prevent children from spending their lives in the uncertainty of foster care. [Citation.] Thus, family reunification services may be extended up to a maximum time period not to exceed 18 months if it can be shown that the objectives of the service plan can be achieved within the extended time period. ( § 361.5, subd. (a)(2).)" (Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1388.)
"A juvenile court may exercise its discretion to extend family reunification services beyond the statutory limit in a special needs case. [Citations.] However, in these cases, there were extraordinary circumstances, which militated in favor of extension of family reunification services beyond the 18-month limit. These circumstances uniformly involved some external factor which prevented the parent from participating in the case plan." (Andrea L. v. Superior Court, supra, 64 Cal.App.4th at p. 1388, italics added.) For example, in In re Elizabeth R. (1995) 35 Cal.App.4th, 1774, 1790-1792, further reunification services were given to a mother who had worked hard to comply with her case plan but was hospitalized for mental illness treatment during a critical stage of the reunification period. Similarly, the courts in In re Daniel G. (1994) 25 Cal.App.4th 1205, 1213-1214, and In re Dino E. (1992) 6 Cal.App.4th 1768, 1777-1778, extended the 18-month limit because they found adequate reunification services were not provided to the parents.
In this case, Misty does not contend she was denied adequate reunification services or that this is a special needs case. She provides no direct authority, and we find none, holding that the "escape mechanism" provided by section 388 allows parents, who have already received 18 months of services, to receive more simply by showing "last-minute reform." (See In re Jayson T. (2002) 97 Cal.App.4th 75, 80 [section 388 cannot be used by mentally ill parents as a mechanism to automatically extend the statutorily set time frames for reunification services].)
Misty maintains she "demonstrated a major change in her attitude about her mental health" and it would be in Erickas best interests if additional reunification services were offered. However, she does not challenge the trial courts conclusion that three months of additional services (assuming there were three months remaining) would be long enough for Misty to successfully complete the case plan and have Ericka returned. As we noted in our last opinion, "The reality is that childhood is brief; it does not wait while a parent rehabilitates himself or herself." (Misty P. v. Superior Court, supra, G029303 [nonpub. opn.], citing In re Debra M. (1987) 189 Cal. App. 3d 1032, 1038, 234 Cal. Rptr. 739.)
The record indicates that the trial court was not convinced that three months remained before the 18-month deadline. Indeed, November 2002 marked Erickas 18th month in the dependency system. Misty filed her section 388 motion the following month and the matter was heard on December 5, 2002.
The Benefit Exception
Misty contends the trial court erred by refusing to apply the benefit exception of section 366.26, subdivision (c)(1)(A). At the permanency hearing, the court must choose the Legislatures preferred plan of adoption "unless the court finds a compelling reason for determining that termination [of the parents rights] would be detrimental to the child . . . ." ( § 366.26, subd. (c)(1), italics added; see In re Autumn H. (1994) 27 Cal.App.4th 567, 573-574.) The parents must establish they have "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(A).) "The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (In re Autumn H., supra, 27 Cal.App.4th at p. 575, italics added.) The parent-child relationship must "promote[] the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home . . . ." (Ibid.)
The trial court ruled that Misty satisfied the first prong of the benefit exception: Misty enjoyed frequent and unmonitored visits for much of the dependency proceedings. There were periods when such visits were not possible due to the social workers inability to verify Mistys residence. One month was particularly problematic, visits were restricted and missed. When visits resumed, it was reported that Ericka would scream to stay with her mother and would cry herself to sleep during the car ride home. When the frequency and length of visits improved the following month, Ericka had less trouble separating. The foster home coordinator attributed the change to the fact Ericka was now being transported to the visits by a person she was familiar with.
Misty maintains she proved the "benefit" prong of the statutory exception. She points to the social workers reports indicating Ericka was always happy and excited to see her, and openly displayed affection and love towards her. She claims that Erickas issues with separation anxiety demonstrate her strong bond to Misty. She asserted Ericka lived with her for the first 21 months of her life and understands Misty is her mommy. Misty believes Ericka is now forming an attachment to her new baby brother. She notes Ericka has been in several placements and an adoptive home has not yet been found for her. Finally, Misty focuses on the social workers testimony that Ericka talks about her mother when they are not together. She claims this is more evidence they share a positive parent-child relationship that would outweigh the feelings of permanency and stability that come with adoption.
We do not reverse merely because some facts favor an appellants position. It is our task to ascertain whether substantial evidence supports the decision. Misty ignores the portion of the social workers report and testimony questioning Erickas attachment to her mother. In the report prepared for the permanency hearing, the social worker summarized, "The child clearly enjoys playing with [Misty] and does identify her as her mother. However, the child also has shown signs of ambivalence towards her mother, showing no distress when her mother did not show at a visitation. . . . The undersigned has noted that the child is able to leave her mother with little separation anxiety and is engaged with her present caregivers in a healthy manner, and has mutual attachment." In addition, minors counsel below and on appeal both opined Erickas best interests would be promoted by adoption.
As for Erickas attachment to her new brother, the social worker concluded, "The child does appear to enjoy seeing her infant brother. However, the child also enjoys engaging in play and activities with her foster siblings. The child is good-natured and enjoys being with a variety of persons. The child does not appear to show signs of attachment to her infant sibling due to the limited exposure she has to him." In short, Ericka likes to play with the baby when she sees him, but there is no indication she misses him when they are apart.
It is apparent that Mistys contact with Ericka has been loving and frequent. However, there is little else to establish the "benefit from a continuing relationship" contemplated by the exception. It cannot be said, based on the record, that their relationship transcended the kind a child would enjoy with any relative or family friend. And while we recognize Ericka would certainly benefit from such an affectionate relationship, the court below was justified in finding such benefit was outweighed by Erickas need for a stable and permanent home that will come with adoption.
The Indian Child Welfare Act
A few months after Ericka was taken into protective custody, a social worker reported to the court that Misty claimed to be of Cherokee heritage. In a later report, the social worker noted that on May 31, 2001, SSA received a letter from the Cherokee Nation located in Tahlequah, Oklahoma. It advised SSA that "that the Indian Child Welfare Program had examined tribal records and that the child would not be considered an Indian child in relationship to the Cherokee Nation as defined in the Federal [ICWA]." At the permanency hearing, the court asked SSA for the first time if notice had been given to Indian tribes. SSA replied, "Theres no notice required, your honor." SSA explained, "Your honor, based on the letter we [received from the Cherokee Nation] we ask the court make a finding ICWA does not apply." The court ruled, "Based on information provided to the court today, the court will find ICWA does not apply in this matter."
Misty maintains the juvenile court failed to comply with the notice provisions of ICWA. She claims SSA was required to notify all appropriate tribes and there are at least three Cherokee tribes eligible to receive service. The record shows SSA told the court about correspondence received from only one Cherokee tribe located in Oklahoma. She maintains the court did not require evidence the other two Cherokee tribes were served. In addition, she argues there is inadequate proof the Oklahoma Cherokee tribe was provided with proper notice. In light of the above, Misty concludes the order terminating parental rights was invalid and the matter must be reversed. County Counsel admits SSA failed to make a record of its efforts to identify and notify the appropriate tribes. Moreover, SSA recognizes that "it is a trial court[s] function to receive evidence of SSAs notice efforts and to determine if they measure up to ICWA standards." (In re Nikki R. (2003) 106 Cal.App.4th 844, 852 (Nikki R.).) Nevertheless, SSA attempts to convince us that proper notice was given and filed a motion requesting that this court take additional evidence allegedly reflecting the agencys notification efforts. Misty filed an opposition to this motion.
The question of whether to consider SSAs evidence of its ICWA notice efforts is not a new issue for our court. Just a few months ago, a different panel of this court published an opinion analyzing the issue in great depth. (In re Nikki R., supra, 106 Cal.App.4th 844.) In Nikki R., this court reasoned, "ICWAs notice provisions open the door to the identification of a dependent child as an Indian child and to the tribes right to intervene in the proceedings. Furthermore, if the juvenile court has reason to believe the child is an Indian child, it must conduct the proceedings in accordance with ICWA. It is axiomatic that the earlier these issues are resolved, the better. SSAs apparent practice of holding onto the evidence of its notice efforts and revealing it only when an issue arises on appeal is unacceptable. Making the appellate court the trier of fact is not the solution. [Citation.]" (Id. at pp. 852-853.)
As a general rule, defective "ICWA notice is usually prejudicial [citation], resulting in reversal and remand to the juvenile court so proper notice can be given. [Citations.]" (In re Nikki R., supra, 106 Cal.App.4th at p. 850.) As with most rules, there are exceptions. As this court concluded in Nikki R., in cases involving "extraordinary circumstances" the appellate court may be compelled "to act as the juvenile court and determine whether ICWA notice was adequate based on the proffered additional evidence." (Id. at p. 855; see, e.g., In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1414 [error held harmless because remand would serve no purpose in a case where SSA failed to provide information to the Bureau of Indian Affairs that it could not utilize]; In re Christopher I. (2003) 106 Cal.App.4th 533, 564-565 [remand would be futile and only prolong the suffering of comatose infant in a persistent vegetative condition].)
We find no extraordinary circumstances in the case before us now. County counsel does not suggest otherwise. Accordingly, we must deny the motion to take additional evidence. Absent extraordinary circumstances, the reasons for denial are succinctly summarized in Nikki R. as follows: "First, the additional evidence does not convince us that proper notice was given as a matter of law. We do not know whether more and better avenues of information are open to SSA. Second, if the juvenile court finds the notice sufficient on remand, no new hearing would be necessary and the case can proceed normally. And third, we share the concern of other courts that SSA fully satisfy ICWAs notice requirements. [Citations.] It is not acceptable for juvenile courts to completely ignore indications that a child may be of Indian ancestry. [Citation.] (In re Nikki R., supra, 106 Cal.App.4th at p. 855, fn. omitted.)
Disposition
The motion to take additional evidence is denied. The judgment terminating parental rights is reversed, and the matter is remanded to the trial court with directions to conduct further proceedings to determine whether SSA complied with the notice provisions of ICWA. If not, the juvenile court shall direct SSA to comply. If Ericka is determined to be an Indian child, a new hearing shall be held. If notice is found to be sufficient, all previous findings and orders shall be reinstated, subject to the juvenile courts consideration of any circumstances that may have arisen during this appeal that may affect the outcome.
WE CONCUR: RYLAARSDAM, ACTING P. J., MOORE, J.