Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JD16334
RUSHING, P.J.
STATEMENT OF THE CASE
R.D. (mother) appeals from an order of the juvenile court terminating parental rights to her son John D. and denying her petition to change that order and restart unification services. (Welf. & Inst. Code, §§ 366.26, 388, 395.) On appeal, mother claims the juvenile court failed to provide adequate notice to Indian tribes as required by the Indian Child Welfare Act (the ICWA) (25 U.S.C. § 1901 et seq.). She claims the court erred in terminating her parental rights without an adequate adoption assessment. She claims the court abused its discretion in denying her petition to restart reunification. And last, mother claims the court impaired her ability to avoid termination and thereby denied her due process.
All further unspecified statutory references are to the Welfare and Institutions Code.
We affirm the order.
We take judicial notice of our previous decision in R.D. v. Superior Court (DFCS) (Oct. 11, 2006, H030423) [nonpub. opn.], in which we denied mother’s petition for a writ challenging the order terminating reunification services and setting the matter for a hearing to terminate parental rights under section section 366.26. (Evid. Code, § 451, subd. (a) [decisional law].) The record in that writ proceeding has been included as part of the record in this appeal.
John was born in August 2005. At that time both he and mother tested positive for methamphetamines, and John was placed in protective custody. His alleged father, Joseph G., was escorted from the hospital because of inappropriate behavior.
Father is not a party to this appeal.
On August 10, the Santa Clara County Department of Family and Children’s Services (the Department) filed a petition alleging that John came within section 300, subdivision (b), based on his parents’ failure to protect him.
The record reveals that mother had admitted to a social worker that she had used drugs before she knew she was pregnant but she had denied using drugs after March 2005. According to a doctor, however, John’s positive test indicated that mother used methamphetamine within 20 hours of his birth. Mother denied responsibility, saying that father may have put the drugs in her food or drink without her knowledge.
Mother also has a 10-year-old daughter. She lives with her father, who has physical custody of her.
The trial court found the allegation in the petition true, assumed jurisdiction, placed John in foster care, and ordered reunification services for both parents. Mother’s plan included attendance at a parent orientation class and a basic parenting class, random drug testing twice per week, and attendance at a 12-step anti-addiction program at least three times per week. Thereafter, mother regularly visited John, attended classes and 12-step meetings, and continued to test negative for drugs after her first test on August 23, 2005.
In an interim report in November 2005, mother’s social worker, Vicki Machado, opined that mother was reluctant to discuss her mental health history because she did not consider it related to John’s dependency. She noted, however, that mother previously had been involuntarily hospitalized in a psychiatric facility after she had threatened her family members with a baseball bat and an axe. Hospital records also indicated that mother had auditory hallucinations, posed a risk of assault, and had tested positive for drugs.
Based on this report, the court ordered a psychological evaluation. After evaluating mother, the psychologist determined that she suffered from methamphetamine abuse and some compulsive and paranoid personality features that interfered with her ability to understand and meet John’s needs. The psychologist recommended psychotherapy and substance abuse treatment. In an interim report in December 2005, Machado asserted that counseling could be helpful to address mother’s pattern of denial, her minimization and avoidance of issues, and her hostility when frustrated. In January 2006, the court added individual counseling to mother’s case plan. Mother’s therapist later opined that mother suffered from an adjustment disorder and substance abuse.
In a report dated March 14, 2006, for the six-month review, Machado noted that mother had completed parenting classes, drug and alcohol assessment, drug and alcohol testing, and 12-step meetings did not yet have a substance-abuse sponsor. Machado opined, however, that mother did not understand the underlying reason for the services she had received and viewed them simply as tasks to be completed to secure John’s return. Thus, although mother showed a commitment to reunification, she continued “to deny and minimize problems and attribute responsibility for them to others.” For example, Machado noted that mother denied having problems with her daughter despite ample evidence to the contrary.
The report stated that although mother had consistently kept her visitation appointments, she had conflicts with staff, displayed a negative attitude toward them, and avoided eye contact. The visitation reports indicated that John often cried, whined, fussed, and looked toward the door during visits. Some visits had ended early because John’s crying had lasted over 15 minutes. However, the records also reveal that at other times, John did well and played with mother and his half-sister.
Mother notes that visitation logs reveal that on one visit, John was teething and did not have his medicine. On another visit, John had stomach flu, and his foster mother had been unable to inform visitation staff that he was sick.
John’s Early Start Program Assessment, dated February 7, 2006, noted that Spanish was the primary language spoken in his foster home. Mother, who grew up in San Jose, was “very acculturated” and did not speak Spanish.
The assessment reported that John suffered from chronic bronchitis and asthma, and his immune system had been weakened by prenatal exposure to drugs. Moreover, although his development was within the normal range, he had “persistent tonal problems in his lower body” and was very active and jittery.
In an addendum to the March 14 report, Machado said that mother was having difficulty dealing with issues that made her feel angry or frustrated. The review recommended continued additional reunification services, including completion of a 16-week class for parenting without violence.
In a second addendum, Machado recommended the termination of reunification services. She said that there were ongoing visitation problems with mother. She reported that during recent visits, John had had persistent emotional distress; and, instead of empathizing with him, mother tried to explain away his distress and “appear[ed] unable to separate his needs form her desire to spend time with him.” Machado opined that mother’s visits were detrimental to John and should be terminated. She was also concerned that John’s foster mother and the visitation staff might fail to protect John because they feared that terminating a visit would upset mother.
Machado asserted that although additional reunification services had been recommended, there were still some “deep seated mental health issues”; and, despite counseling, mother still minimized and denied responsibility for the risks she had posed to her children’s safety. Machado also included information from mother’s psychotherapist, Doctor Antoine Moore, who observed that mother had difficulty with reality and denial issues, and she failed to accept responsibility for John’s problems and his removal from her custody. Doctor Moore also opined that mother may never fully accept responsibility or move beyond her denial.
Machado filed another addendum on May 18, 2006. She related information from the psychologist who had interviewed and evaluated mother in December 2005. Based on his testing results, he opined that mother would need counseling for at least a year before she could make significant changes. Machado acknowledged that mother had substantially complied with her case plan. However, she did not believe mother had integrated what she had learned and had failed to make substantial progress in resolving the issues that prevented her from safely parenting John.
At the six-month review hearing, Machado was qualified to testify as an expert in child development, risk assessment to children and families in the dependency system, case management and reunification services, and social services for clients with mental disorders.
Machado described John’s special needs. He was anxious and jittery and suffered from asthma and a weakened immune system. Machado noted that according to the public health nurse and John’s physician, his weakened immune system was due to intra-uterine drug exposure. Machado testified that although John had to see a doctor 16 times since October 2005, mother had difficulty accepting that John had special medical needs or that she had anything to do with causing them.
Mother’s therapist Moore testified that although mother complained about Machado, she was motivated to get John back and was willing to do whatever was necessary. Over time, mother started to accept more responsibility and discuss her anger.
Among other things, mother testified that she did not knowingly take drugs the day before John’s birth. She admitted that she first told the social worker that her sister had put drugs into her drink. But she testified that father had recently told mother’s attorney that he had put drugs into her drink. Mother also denied the violent events with her family that had triggered her psychiatric hospitalization in 2004. She explained that she tested positive for drugs at that time because her sister had put drugs into her drink.
On July 14, 2006, the court terminated reunification services and set the section 366.26 hearing for November 6, 2006. Visitation was continued at a reduced rate of one visit per month. (See § 366.21, subd. (e).) As noted, mother challenged the court’s order, and we denied her petition for relief. (R.D. v. Superior Court (DFCS), supra, H030423, see fn. 2, ante.)
On November 3, 2006, mother filed a petition under section 388 to change the court’s order terminating services. She sought a transition period increasing visits to allow her to bond with John. The court consolidated the petition and the section 366.26 petition for hearing, which was then repeatedly continued until February 14, 2007.
For the combined hearing, Machado prepared two reports, both dated November 6, 2006. One recommended denial of mother’s petition, and the other recommended termination of parental rights. Because of John’s documented history of serious medical problems, anxiety, and distress, Machado opined that his caregiver had to be vigilant, skilled, and able to collaborate with medical professions in order to properly and adequately deal with John’s medical, physical, and emotional needs. Machado opposed mother’s petition because restarting reunification would place the minor “at very serious risk of both physical and emotional harm,” in that mother “has not demonstrated the high level of parenting skill, the high level of vigilance and understanding of John’s needs, nor the strong and healthy social support system needed to safely parent this high risk child.”
Machado asserted that the circumstances had changed since the termination of reunification only in that mother had had another child, Michael, whose health was not compromised by prenatal drug abuse; who appears happy, healthy, and robust; and for whom mother appeared to be providing adequate care. Machado noted that Michael remained with mother under a family maintenance plan, with which she was generally complying. However, mother was aware that her failure to comply would result in Michael’s removal. Again, however, Machado asserted that mother’s compliance was not a new or changed circumstance because mother had complied with her case plan before services had been terminated.
On the other hand, Machado noted that despite mother’s compliance with reunification services, some circumstances had not changed. Specifically, mother had not admitted that she knowingly used drugs before John’s birth and appeared to still be in denial about the risks that she had previously posed to her daughter and that her family members had posed to other children in their care. In this regard, Machado said she had emphasized mother’s need to develop a support system outside her family members because they had significant criminal and child welfare histories, and their behavior reinforced her own. However, mother apparently had not addressed this matter with her counselor.
Machado noted that mother and her family remained in denial concerning John’s special needs, the likelihood his physical problems were caused by prenatal exposure to drugs, and the need for skill, vigilance, and consistence in providing for his safety and wellbeing. Machado further noted that mother continued to exhibit confusion and forgetfulness, opining that such problems could be “compensated for” when caring for a healthy child like Michael but could be “very detrimental, even life-threatening to a special needs child, like [John].”
On January 12, 2007, at the trial management conference, Machado filed her own section 388 petition to change the order allowing monthly visitation. In support, Machado cited her conversation on December 7, 2006, with John’s pediatrician, who explained that John suffered great emotional distress during mother’s visits and had remained unsettled for days thereafter. The doctor opined that John was not old enough to understand who is visiting and why he is being separated from this foster mother, and the stress was aggravating his asthma. Accordingly, the doctor recommended that visitation be terminated to protect John’s health. The court found good cause and suspended visitation.
On February 14, 2007, at the hearing on mother’s section 388 petition, Antoinette Arroyo, mother’s Narcotics Anonymous (NA) sponsor since October 2005, testified that she had guided mother to step six of the 12-step program, where they had remained for a couple of months. Mother had consistently called or met with her every week and been very cooperative, and there was no cause to think she had relapsed. Arroyo testified that mother was attentive and loving and never aggressive around Michael, and she was impressed with mother’s parenting abilities.
As of that date, John was 18 months old.
According to Arroyo, mother admitted that she had taken drugs when she was first pregnant with John. However, concerning John’s positive drug test at birth, mother had said that someone had put drugs in her drink. Arroyo said that she and mother spent some time on step 4 of the program, which involves “cleaning up the wreckage of [one’s] past.” In that regard, however, mother spoke only about having lost John due to drug use.
Mother testified that after reunification services were terminated, she continued drug testing and NA meetings because she wanted to recover from the consequences of being under the influence when John was born. She had not tested positive since he was born. She admitted using drugs when first pregnant and initially testified that she knowingly took some drugs in a drink that father had given her. She testified that she had told family members, her counselor, and her NA sponsor about this, but she had not told Machado. Mother said that she now understood that her drug use resulted in John’s being born drug positive. She claimed that she had admitted to Machado that her drug use had harmed John and that she was willing to take responsibility for having done so.
On cross-examination, mother admitted that she previously had testified that she did not know her drink had drugs in it. She claimed her previous testimony was truthful because at that time, she was in denial. She then admitted that she had not told her counselor and family that she knew about the drugs in her drink. She explained that John’s father was a drug addict and that said she should have known he had drugs around him. She said she knew now that there were drugs in her drink, but she did not know at that time. She testified that she did not see anyone put drugs into her drink, and father did not tell her that he had done so. Thus, she testified that she did not intentionally take drugs at that time. She realized she had taken drugs only after reunification services were terminated.
Mother further testified that at NA, she was working on step 6. Although she had read ahead to later steps, her sponsor said there was no rush to complete the steps because when finished, she would begin again. Mother testified that she trusted Arroyo and found her helpful because Arroyo was not a family member. In addition to Arroyo, mother claimed support from people at an agency called Envision, the Sacred Heart Church, her NA meetings, a social worker, and God. She said that if she did not have help from the agency and church, she would get support from her family, including her mother, sister Cynthia, brother-in-law, her sponsor, her counselor, and the people she works for.
Mother testified that she finished one year of counseling in January 2007, and her counselor said that their work had been completed. She said she benefited from counseling because she was now able to discuss family issues and was more able to talk to others about her mistakes.
Mother testified that she maintained visitation with John after services were terminated. She fed and changed him, played with him, and sang to him. Mother said he still has not gotten used to her and cried; but when he did, she gave him space and then talked to him. When he continued, she terminated the visit. She also brought one or both of her other children to the visits, and they interacted positively with John. Mother felt that if she had more visitations, she and John’s siblings could bond with John more and thereby lessen John’s crying and distress.
Mother testified that she worked at a full-time county-paid job providing a range of in-home support services to an elderly, blind, diabetic woman. She said she enjoys her work because she had always taken care of other people’s children. She said she had a one-bedroom apartment that would be big enough for her and John and Michael. She felt confident that she could care for both of them.
Mother disagreed with Machado’s report. She testified that she fully understood that John had special medical and emotional needs and cared about them. Because she had so much experience taking care of other children, she felt she had the ability to learn about John’s problems and provide adequate care. She said she would do everything she could for him. Mother also believed that she had the parenting skills necessary to raise John.
Mother denied that she had ever posed a serious risk to her daughter. She admitted using drugs when her daughter was in her care but said she never used drugs in front of her. She also admitted that her daughter was living with her when she was taken to a psychiatric hospital, but she denied that she had ever threatened anyone with a bat and did not know why she was hospitalized or even why the police were called. She denied that other family members had posed a risk to their children and said she would not allow them near her children if she thought they had. She denied that she relied on her mother too much for support. And she denied that she was confused and forgetful, saying that she never forgets anything regarding her children or the elderly woman she cared for.
Finally, mother opined that John belonged with his family and believed that if she were not given a second chance, then sooner or later he would seek them out. She believed that it was in John’s best interest to be living with her even though he had started to bond with his foster family.
Machado testified that mother was receiving family maintenance services so that Michael could remain in her care. Concerning mother’s visits with John, Machado testified that although mother acted appropriately, the visits were difficult for him, in that he did not act as if she were a significant person to him, and he did not express positive emotion toward her. Instead, he would cry a lot and not accept her efforts to soothe him.
Machado reiterated that John’s doctor had reported that the stress of visitation exacerbated John’s asthma. Machado explained that managing John’s medical problems required special vigilance and skill. His foster parents had to administer two medications for asthma and be watchful for allergic responses. In addition, they had to give him nebulizer treatments four times per day, which required patience and persistence because he had become resistant to wearing a face mask. They also had to pay special attention when John caught a cold because he easily became feverish, often at night, and his temperature would spike, requiring a trip to the emergency room, where they had had to bring him on four occasions. Machado noted that John’s foster parents were meeting his special medical needs and were able to do so because he was very bonded to them, and they were able to comfort him when he was in ill and in distress. Machado doubted that John would successfully bond with mother if she were slowly reintroduced into his life. Moreover, she opined that it would be very detrimental to remove him from his foster parents and return him to mother
Based on the reports, supporting information, and testimony, the court denied mother’s section 388 petition. It did not find that circumstances had changed enough to warrant modifying the order terminating services. According to the court, the central problem at that time was mother’s denial of fault in taking drugs the night before John was born. The court noted that mother still denied intentionally taking drugs and merely took responsibility for knowingly associating with someone who might have put drugs in her drink. The court did not find that change to be significant. The court opined that mother was “still in the very early stages of acknowledgement of the role that the use of those drugs played in John’s fragile medical condition at this time and the specific events that led to him being born with appositive Toxicology for Methamphetamine.”
Next, the court concluded that it would not be in John’s best interests to modify the underlying order. The court found that “John has never lived with any of his family members. His entire relationship with members of his blood family has been through visitation of decreasing frequency and of increasing distress to John.”
On March 9, 2006, at the section 366.26 hearing, all counsel stipulated that the court could consider the testimony at the previous section 388 hearing. The court also considered Machado’s report of November 6, 2006, which reiterated information about John’s background; mother’s visitation; and John’s medical, developmental, emotional problems, needs, and treatment. That report also concluded that John had bonded with his foster family, which was committed to adopting him, had demonstrated the ability to meet his special needs, and had initiated an adoption home study and completed PRIDE classes.
The court adopted Machado’s recommendation, found that John was likely to be adopted, and terminated parental rights. The court further ruled that “I have considered the possibility of all of the exceptions that would lead the court to order no adoption, even thought the child is likely to be adopted, and find that there’s insufficient evidence to bring the case under any of those exceptions.”
ADEQUACY OF NOTICE TO INDIAN TRIBES
Mother claims the court failed to provide adequate notice to a tribe connected to John’s father’s paternal uncle as required by ICWA (25 U.S.C. § 1901 et seq.).
Based on mother’s information that John’s maternal grandmother and great grandparents claimed Indian heritage, the Department sent ICWA notices to Cherokee and Navajo Tribes on August 17, 2005. After father’s paternity was established, he informed the Department that his paternal uncle was a member of the Mescalero Apache Tribe and mentioned “possible Mescalero Apache tribal affiliation of his ancestors.” However, he provided no contact or personal information about his uncle except for his name.
The Department then sent notices concerning father’s possible Indian heritage to all Apache tribes, including the Mescalero Apache Tribe. The notices listed the names and birthdates of John’s paternal grandmother, Mariana G., grandfather, Jose Antonio G., and their possible tribal affiliations. The notices also indicated that John’s paternal uncle, Randy F., lived on federal trust land, a reservation or racheria, or an allotment, but they did not specify any tribal affiliation.
The notices were standard form JV-135. The form requires information concerning grandparents and great grandparents but does not require information concerning uncles or their possible tribal affiliation.
The Department received returned receipts from all Apache tribes and responses from six of them, including the Mescalero Apache Tribe. That tribe declined to intervene, stating, “According to our records [father] is not a member of the Mescalero Tribe. Therefore, [John] does not meet the necessary requirements needed to become eligible for enrollment with the Mescalero Apache Tribe.” (Italics added.)
At the six-month review, the court found that the ICWA did not apply.
The ICWA requires notice when there is reason to know that a child affected by certain custody proceedings may be an Indian child. (25 U.S.C. § 1912(a).) “Notice is mandatory, regardless of how late in the proceedings a child’s possible Indian heritage is uncovered.” (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424.)
Mother claims notice to the Mascalero Apache tribe was incomplete because it failed to state that John’s paternal uncle was an enrolled member of the tribe.
Although the ICWA defines an “ ‘Indian child’ ” as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe” (25 U.S.C. § 1903(4)), that definition is not determinative because Indian tribes are free to set their own membership requirements. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471.) A tribe’s determination that a child is not an Indian child within the meaning of the ICWA is conclusive. (In re Junious M. (1983) 144 Cal.App.3d 786, 793; Cal. Rules of Court, rule 5.664(g).)
As noted, in declining to intervene, the Mescalero Apache Tribe concluded that John does not meet “the necessary requirements” to become eligible for enrollment because his father was not a member of the tribe. In other words, tribal eligibility requires that the child be the biological child of a tribe member.
Mother argues that one cannot reasonably infer any membership criteria from the tribe’s letter and urges us not to speculate concerning what the tribe would have done had it been given more information about Randy F. We disagree.
The tribe’s letter did not qualify its determination, for example, by stating that it was based on the information provided but could be invalidated if that information was inaccurate or some information was omitted. Rather, the tribe simply checked to see whether father was a member and used the phrase “necessary requirements,” which is unequivocal and unambiguous. Thus, the tribe’s letter clearly reflects that paternal (or maternal) membership in the tribe is an essential requirement for a child’s eligibility. Mother provides no evidence to the contrary. And given the letter, we consider it speculation to suggest that additional information about a paternal great uncle would have made any difference in the tribe’s determination.
For example, mother does not provide evidence of the Mescalero Tribe’s official membership criteria for us to take judicial notice of. (See Evid. Code, § 452, subd. (h) [facts not reasonably subject to dispute and verifiable by resort to sources of reasonably indisputable accuracy].)
“Notice under the ICWA must . . . contain enough information to constitute meaningful notice.” (In re Karla C. (2003) 113 Cal.App.4th 166, 175.) The notice to the Mescalero Tribe provided enough information for the tribe to determine whether father was a tribe member and thus whether John was eligible for enrollment. Indeed, the notice provided enough information to determine whether father was eligible for membership based information concerning his own father and grandfather. Moreover, it provided Randy F.’s name and information that he had lived on tribal related land, making it possible to check his name against membership records, if it were relevant in determining John’s eligibility. Under the circumstances, therefore, we find that notice was adequate, and further find that any failure to include additional information about John’s great uncle Randy was harmless. (See In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1409-1410 [failure to follow ICWA not jurisdictional error, but instead subject to harmless error analysis].)
We reject mother’s claim that the enactment of section 224 (stats 2006, ch. 838, § 29) established that errors in providing notice are no longer subject to harmless error analysis. (See, e.g., In re J.T. (2007) 154 Cal.App.4th 986, 994 [discussing statute and applying harmless error standard].) The statute does not make errors in notice reversible per se; nor does the legislative history cited by mother suggest that the Legislature intended to reverse the approach taken by reviewing courts to claims of inadequate notice.
Mother’s reliance on In re Jennifer A. (2002) 103 Cal.App.4th 692 (Jennifer A.), In re Louis S. (2004) 117 Cal.App.4th 622 (Louis S.), and Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779 (Nicole K.) is misplaced.
In Jennifer A, supra, 103 Cal.App.4th at page 705, mother and father were participating in the dependency proceeding and may have been available to provide pertinent information. However, the social services agency sent notice that indicated that the birthplaces of the mother and the father were unknown and that identified the minor’s birthplace only as “ ‘California.’ ” The court faulted the social services agency for making “little effort to provide the tribe with sufficient information for a thorough examination of tribal records.” (Ibid.)
Here, the Department was diligent in securing all of the relevant information known to mother and father about John’s possible Indian heritage and including all of the information that was required on the standard notice form to numerous tribes, including the Mescalero Apache Tribe.
In Louis S, the court explained that notice “must include the name, birthdate, and birthplace of the Indian child; his or her tribal affiliation; a copy of the dependency petition; the petitioner’s name; a statement of the right to the tribe to intervene in the proceeding; and information about the Indian child’s biological mother, biological father, maternal and paternal grandparents and great-grandparents or Indian custodians, including maiden, married and former names or aliases; birthdates; places of birth and death; current and former addresses; tribal enrollment numbers, and/or other identifying information.” (Louis S., supra, 117 Cal.App.4th at p. 630.) There, the notice was inaccurately filled out, the names of mother and grandmother were misspelled, and pertinent information about birthdates, which was readily available, was omitted. (Id. at p. 631.)
Here, the notice included all of the information identified in Louis S. that was known and readily available to the Department and did not contain the sort of omissions and inaccuracies that rendered the notice defective in Louis S.
In Nicole K., notice to the pertinent tribe was sent to the wrong address. (Nicole K., supra, 146 Cal.App.4th at p. 783.) The court found that this error rendered the notice inadequate. The court concluded that the error was not harmless because there was no conclusive evidence that the tribe ever received actual notice of the proceedings. (Id. at p. 784.) Here, the record conclusively establishes that the Mescalero Apache Tribe received notice.
ADEQUACY OF THE ADOPTION ASSESSMENT
Mother contends that the Department’s adoption assessment was defective and does not support the juvenile court’s order terminating parental rights.
Section 366.21, subdivision (i) provides, “Whenever a court orders that a hearing pursuant to Section 366.26 shall be held, it shall direct the agency supervising the child and the licensed county adoption agency, or the State Department of Social Services when it is acting as an adoption agency in counties that are not served by a county adoption agency, to prepare an assessment . . . .”
Mother argues that the Department failed to comply with section 366.21, subdivision (i), in that “[t]he county adoption agency does not appear to have been involved at all in the preparation of [the adoption assessment] report. In the absence of a report prepared jointly by the adoptions agency and the social worker, the court lacked the statutorily required foundation for making its determination in this case that parental rights should be terminated.”
When reunification services were terminated, the court directed the Department to prepare “an Assessment Report under the applicable law with recommendation for the child’s permanent placement.” Machado prepared the report for the section 366.26 hearing, which was held on March 9, 2006. At that time, the court considered the report and followed its recommendation to terminate parental rights.
Mother failed to object to the assessment on the ground that it did not appear to have been jointly prepared by the Department and a county adoption agency. Thus, she has forfeited her claim on appeal. (See In re Eric P. (2002) 104 Cal.App.4th 395, 399 [points not urged below cannot be raised on appeal]; e.g., In re Crystal J. (1993) 12 Cal.App.4th 407, 411 [failure to object to adequacy and sufficiency of assessment report]; In re L.Y.L. (2002) 101 Cal.App.4th 942, 956, fn. 8.)
In seeking to avoid forfeiture, mother claims she is not challenging the adequacy of the report but the sufficiency of evidence, that is, she claims that because the assessment was written by only a social worker, it is insufficient as a matter of law to support the court’s decision to terminate her parental rights.
Even if we were to accept mother’s characterization of her claim as one of sufficiency of evidence rather than adequacy of the report, we would reject it.
Section 366.21, subdivision (i) does not expressly required that the assessment report be signed by an official from an adoption agency. Thus, although the record shows that Machado wrote the assessment, mother cannot establish that an adoption agency was not involved in its preparation. As noted, she speculates that it “does not appear” so. Under the circumstances, we may presume that Machado properly performed her official duty under section 366.21, subdivision (i) and prepared the report with the involvement of an adoption agency. (Evid. Code, § 664; e.g., In re Asia L. (2003) 107 Cal.App.4th 498, 508 [appellate court presumes duty performed]; In re Linda D. (1970) 3 Cal.App.3d 567, 571 [same].)
Moreover, an adoption agency was involved in preparing the report. The Department notes that it is both the agency supervising a dependent child’s placement and a licensed county adoption agency, citing the directory published by the California State Department of Social Services, which lists the Department as a county (public) adoption agency. Mother does not respond to this assertion and citation, and we treat it as request for judicial notice of the state directory and listing, which confirm the Department’s assertion. (Evid. Code, §452, subd. (h).)
Finally, even if the assessment were not signed by someone from a county adoption agency, it is not substantively deficient or insufficient to support the court’s order. Section 366.21, subdivision (i) requires that an assessment include (1) an explanation of efforts to locate an absent parent; (2) a review of the amount and nature of contact between the child and parent; (3) an evaluation of the child’s medical, developmental, scholastic, mental, and emotional status; (4) a preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent; (5) a statement of the relationship of the child to any identified prospective adoptive parent, the duration of the relationship, and the motivation of the prospective adoptive parent; and (6) a description of efforts to be made to identify a prospective adoptive parent or legal guardian. (§ 366.21, subd.)(i)(1)-(6).)
Mother does not claim that the assessment fails to address one of these subjects or that it’s treatment of a particular subject is erroneous or inadequate. On the contrary, the assessment properly addresses all relevant issues. This is no surprise given the fact that Machado has 14 years of experience as a child welfare social worker and was qualified to testify as an expert in child development, risk assessment to children and families in the dependency system, case management and reunification services, and social services for clients with mental disorders.
DENIAL OF MOTHER’S SECTION 388 PETITION
Mother contends that the court abused its discretion in denying her motion to change the order terminating reunification services.
“After the termination of reunification services, the parents’ interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point ‘the focus shifts to the needs of the child for permanency and stability’ [Citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interest of the child. [Citation.] A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interest of the child.” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
A ruling on a section 388 petition after reunification services have been terminated is “committed to the sound discretion of the juvenile court, and the trial court’s ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. [Citations.] . . . [W]hen a court has made a custody determination in a dependency proceeding, ‘ “a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].” ’ [Citations.] And we have recently warned: ‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. 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.’ [Citations.]” (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
Mother argues that she presented overwhelming evidence that she had addressed her drug problem, completed individual psychotherapy, maintained stable employment and housing, and was complying with the terms of the family maintenance plan for her newborn son Michael. She claims that this evidence established as a matter of law that there were changed circumstances that justified further reunification services. Under the circumstances, she argues that the court abused its discretion in finding no significant change in circumstances and in failing to find that additional services would be in John’s best interests.
In determining what was in John’s best interests, the court was required to consider (1) the gravity of the problem leading to the original dependency and the reasons this problem was not overcome by final review; (2) the strength of the existing bonds between the minor and the parent and the minor and the caretaker; and (3) the degree to which the problem may be easily ameliorated, and the degree to which it has actually been. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.)
Here, mother’s drug problem, John’s positive toxicology report at birth, and mother’s denial of responsibility or at least knowing that she ingested drugs just before John’s birth were the primary reasons for the original dependency. Although, as mother notes, she complied with the court’s orders, and, since John’s birth, she has been clean and sober, the record reveals that mother never admitted to Machado her responsibility for knowingly taking drugs just before John was born. At the hearing on her motion, she continued to deny responsibility, admitting only that it had been a mistake to use drugs and be around a drug user. Thus, the record supports the court’s finding that mother attitude of denial had not significantly changed, and she was still in “the very early stages of acknowledgment” of the role that her use of those drugs played in John’s fragile medical condition and the specific events that led to his birth with drugs in his system.
The record also supports a finding that the bond between John and his foster parents is very strong, while the bond between him and mother and his siblings is tentative and weak. The record also supports a finding that visitation tended to increase John’s emotional distress and exacerbate his asthma. Moreover, it is undisputed that John suffers from serious medical problems that require great vigilance, effort, skill, patience, and trust. It is also undisputed that John’s foster parents have consistently displayed their commitment to his care and demonstrated an ability to take care of and protect John and meet his medical needs. Although mother believed she could take care of both Michael and John and meet John’s medical needs, the court could reasonably question mother’s ability to do so.
In Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748, the court stated, “The harder cases are, like the one before us, where the parent has complied with the service plan, but for some reason has not convinced a psychologist or social worker that it would be safe to return the child to the parent.” Notwithstanding mother’s accomplishments in complying with the service plan, changing her lifestyle, and providing a home and support for Michael, the record does not compel a finding that it would be in John’s best interest to restart unification services or that the court’s refusal to grant mother’s petition exceeded the bounds of reason or was arbitrary, capricious, or patently absurd.
Relying primarily on In re Jasmine G. (2000) 82 Cal.App.4th 282 (Jasmine G.), mother argues that the court erred in relying on Machado’s subjective evaluations and opinions.
In Jasmine G., the court assumed jurisdiction over a 15-year old girl because her parents had used corporal punishment against her for bringing a strange boy into the house and failing to wash the dishes. (Jasmine G., supra, 82 Cal.App.4th at p. 285.) At the dispositional hearing, both parents testified that they had attended parenting classes and changed their attitudes toward corporal punishment. They also expressed remorse that their punishment had led to the dependency. The girl’s therapist testified that the girl was not angry or fearful of her parents, she would be in no danger if returned, and her parents had motivation to change their approach to discipline. The girl testified that she wanted to return home and believed her parents had learned from this incident and would not hit her. (Id. at p. 286.) The social worker noted that both parents were employed and law-abiding; they had no alcohol or drug problems; and they had never been involved in a dependency proceeding. Nevertheless, the social worker recommended against returning the girl because it did not “ ‘seem’ ” that they understood their roles and responsibility for the dependency proceeding. (Ibid.) The court adopted the recommendation and declined to return the girl to either parent.
On appeal, the court reversed. The court noted that there was clear and convincing evidence that it would be safe for the girl to return home and insufficient evidence to support a contrary finding. (Jasmine G., supra, 82 Cal.App.4th at pp. 288-289.) In particular, the court opined that if the social worker’s subjective belief that the parents had failed to understand their roles in the incident and had not sufficiently internalized their parenting classes were enough to remove a child, then the statutory emphasis on maintaining children in their natural parent’s homes where it was safe to do (see § 361) “would be effectively rendered a nullity, as social workers would become the de facto highest power in determining whether parents have their children returned to them. [Citation.] Such a conclusion flies in the face of the balance between family preservation and child well-being struck by the Legislature.” (Id. at p. 289.)
Jasmine G. is distinguishable and does not reasonably suggest that the court here abused its discretion. First, the procedural context of this case differs significantly from that in Jasmine G. There, the matter was at the dispositional stage of a dependency, the issue was simply whether it was safe to return the child to a parent, and the applicable statute favors return if it is safe. Here, John had already been removed from mother, reunification services had already been terminated, and the controlling issues were whether (1) the circumstances had changed and (2) it was in John’s best interests to restart those services.
Second, the minor in Jasmine G. was a 15 year-old-girl who had lived with her parents for her entire life but recently had suffered physically abusive discipline. Moreover, the parents had no history of drug use or involvement in dependency proceedings. Here, John was a newborn when taken from mother because of her drug use immediately before he was born. As a result of her drug use, John had serious medical problems that required special attention and care. Moreover, mother admitted that she used drugs when her daughter was in her care. Mother had also been hospitalized for erratic behavior, and she relied on her mother, who had had eight of her own children removed from her care in 2005.
Finally, Machado’s reports contain more than her own subjective beliefs about mother’s state of denial and inability to raise John. Machado’s views concerning mother’s relationship to John and potential ability to provide adequate care were supported by the evidence of her visitations and the observations of staff. Moreover, mother admitted her prior drug use but denied purposefully taking drugs just before John was born.
In short, Jasmine G. is distinguishable and does not suggest that the court erred in denying mother’s section 388 petition.
DENIAL OF DUE PROCESS
Mother contends that her ability to raise a section 366.26, subdivision (c)(1)(A) exception to termination was impaired because the court suspended visitation with John without notice and a hearing and the Department placed him in a primarily Spanish-speaking foster home. As a result, she claims she was denied due process.
Section 366.26, subdivision (c)(1)(A) provides that if the court determines that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. That the court has continued to remove the child from the custody of the parent and has terminated reunification services constitutes a sufficient basis to terminate parental rights “unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: (A) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
Suspension of Visitation
As noted, on January 12, 2007, at a trial management conference, at which mother’s presence had been waived, Machado served her section 388 petition requesting that visitation be suspended pending the outcome of mediation and the hearing on mother’s section 388 petition. The petition was based on the advice of John’s pediatrician, who found that the stress of mother’s visits was detrimental to his physical and emotional health. The court found good cause to immediately suspend visitation and continued a hearing on the petition until February 14, at which time the court would deal with visitation.
At the time, mother’s counsel stated, “I would just like to note, your honor—I’m sure the court knows this—that I obviously have not had a chance to speak to my client about this. [¶] I waived her appearance. I thought we were just dealing with the trial management issues.” The court said it was granting a hearing on the petition for the same day as trial and was now simply entering an interim order to protect the child. Counsel said “Okay.”
On February 14, 2007, the court heard testimony on mother’s section 388 petition. Machado’s petition was not addressed or even discussed. Thereafter, the court never made a formal ruling on Machado’s petition. However, the interim suspension continued up to and including the March 9 section 366.26 hearing.
We conclude that mother forfeited her claim by failing to object on January 12, when the court granted an interim suspension, or later at the subsequent hearing on February 14. (See In re S.B. (2004) 32 Cal.4th 1287, 1293 [purpose of rule is to encourage parties to bring errors to the attention of the court so that they may be corrected].)
Mother argues that counsel’s comments on January 12 constituted a proper objection. We disagree. Counsel simply noted for the record that he had waived mother’s appearance and had not had an opportunity to discuss Machado’s petition with mother. However, he did not object to the interim suspension, argue against it, or seek a continuance to confer with mother. Nor did he seek a writ to overturn it.
In any event, even if we were to accept mother’s position, we would find that her claim lacks merit. Mother had visitation from August 2005, when John was first detained, until January 12, 2007. As noted, counsel did not challenge Machado’s petition or argue against an interim suspension, and mother does not now suggest that there were no grounds for a temporary suspension or that an objection to a temporary suspension would have been sustained.
We further note that as a result of the suspension, mother apparently lost visitation in January. At the February hearing, counsel did not challenge the interim suspension or otherwise raise the issue of Machado’s section 388 petition. As a result mother apparently lost visitation in February. The section 366.26 hearing was held in March, at which time, mother’s parental rights were terminated. Thus, the interim suspension resulted in the loss of only two visits. Given the length of time that mother visited John, the record of her visitation, the evidence concerning John’s limited connection with mother up to January 12, and the loss of only two visits in January and February, we reject mother’s claim that the interim suspension had a significant impact on her ability to show that “the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A).)
In July 2006, after reunification services had been terminated, visitation was reduced to once per month.
Mother’s reliance on In re David D. (1994) 28 Cal.App.4th 941 (David D.) does not compel a contrary conclusion. We summarize the facts in some detail because they are so strikingly different from those in this case.
There, in March 1990, the mother voluntarily placed her children with the welfare department because she could not properly care for them at that time. Over the next year, she had regular, highly positive visitation with her children that grew in frequency and duration to unsupervised overnight visits at her home. By March 1991, the social worker opined that the children would be returned within six months. However, in April 1991, mother attempted to commit suicide. In May, overnight visits were suspended; in July, all visitation was suspended pending receipt of the mother’s psychiatric records; and in August, all telephone communication was suspended. (David D. (1994) 28 Cal.App.4th at pp. 943-945.)
At the contested permanency planning hearing in November 1991, mother challenged the order requiring disclosure of her psychiatric records. A referee denied the challenge, but a court later reversed that decision, finding that the records were privileged. Later, at a new hearing, the mother asked that the proceedings be suspended because her proper refusal to tender her records had resulted in the termination of her visitation rights and thus jeopardized her parental rights. She argued that but for that termination, the social worker’s report would have reached a different conclusion concerning termination of parental rights. The referee denied the request. At the hearing, the doctor who performed a bonding assessment testified that it would be beneficial, not detrimental, for the children to have a continued relationship with the mother because they were psychologically and emotionally attached to her and visitation ceased only because of her refusal to produce medical records. Indeed, no visitation could be detrimental to the children because they all loved her and their grief over not seeing her could linger for a long time. (David D., supra, 28 Cal.App.4th at pp. 946-948.)
At the end of the permanency planning hearing, the referee found the children adoptable. The referee found that although the doctor’s testimony supported a finding that the children would benefit from a continued relationship with the mother, the referee found that she had not maintained regular visitation and contact with them because of the suspension of visitation. The referee permitted mother one final visit. In July 1992, after a section 366.26 hearing, the referee terminated mother’s parental rights. (David D., supra, 28 Cal.Ap.4th at pp. 948-949, 951)
On appeal, the court concluded that the referee had abused his discretion. The court found that the referee had erroneously suspended all visitation because of mother’s refusal to provide her psychiatric records; and by doing so, the referee had, in effect, failed to provide adequate reunification services as required. (David D., supra, 28 Cal.Ap.4th at p. 953.) The referee also erred in denying visitation pending the section 366.26 hearing without first finding that visitation would have been detrimental to the children; on the contrary, the referee found that visitation would be beneficial. (Id. at p. 954.) Last, the court noted that despite overwhelming evidence of the children’s strong bond with the mother, the referee compounded its errors by providing the mother with only one final visit between the termination of reunification services and the section 366.26 hearing. (Ibid.)
In sum, the court opined that “the referee steadfastly ignored the best interests of these minors, impeding both reunification and continued parental contact, by the initial suspension of visitation, by ignoring the recommendations of the court-appointed expert regarding the minors’ bond with their mother, by terminating reunification services, and by unreasonably limiting visitation after the termination of reunification services.” (David D., supra, 28 Cal.Ap.4th at p. 955.) Under the circumstances, the court reversed the order terminating parental rights and ordered an additional six months of reunification services, including visitation as frequently as possible consistent with the children’s well being. (Id. at p. 956.)
Here, the interim order suspending visitation is supported by substantial evidence, and mother does not suggest otherwise. She complains only that she was not present. However, counsel had waived her presence and then did not expressly object to the interim suspension or offer any argument against it. Nor did mother object at the subsequent hearing in February or otherwise seek to have the interim suspension lifted or obtain a formal ruling on Machado’s section 388 petition. Finally, unlike the overwhelming evidence of close emotional ties between the mother and her children in David D., there was no evidence that mother had a meaningful bond or relationship with John. On the contrary, there was evidence that mother’s visits had caused John emotional distress and exacerbated his asthma. Thus, whereas in David D. there was strong evidence that the mother could have, and would have, reasonably established an exception to termination had her visitation not been erroneously suspended for such a long period of time, there is no similar evidence that mother could have come within the exception had she not lost the two visits suspended by the interim order.
Placement in a Spanish-speaking Home
The Early Start Program intake assessment, dated February 13, 2006, reported that “Spanish is the primary language spoken in the foster home and English is spoken by the biological parent[,]” i.e., mother. The minor had already been in that placement for six months. The report noted that “mother is seeing the baby once a week . . . .”
Mother points out that Machado never mentioned that the minor was being raised in a Spanish-speaking home. However, she notes that the reports contained comments that the minor did not respond to mother during visits, looked serious and detached, and was at times distressed, in contrast to how he appeared in his foster home.
Mother argues that because she does not speak Spanish, John’s placement in a Spanish speaking home “effectively foreclosed [her] from ever having the opportunity to reunify with her son.”
We conclude that mother forfeited her claim by failing to object as soon as she received notice of John’s placement in the Early Start Program report. (See In re S.B., supra, 32 Cal.4th at p. 1293.)
Mother urges us to excuse her forfeiture because (1) John’s placement in a Spanish-speaking home violated her right to due process (see In re Jessica G. (2001) 93 Cal.App.4th 1180, 1190); (2) the case presents an important legal issue (see In re S.B., supra, 32 Cal.4th at p. 1293); and (3) we can advance judicial economy by avoiding a writ of habeas corpus based on ineffective assistance of counsel due to counsel’s failure to object (see People v. Butler (2003) 31 Cal.4th 1119, 1128).
We decline to apply any of these exceptions. The placement of mother’s newborn infant in a Spanish-speaking home did not implicate mother’s right to due process because it did not interfere with her ability to maintain visitation or later show that John would benefit from a continued relationship and thereby establish an exception under section 366.26, subdivision (c)(1)(A). Mother’s claim is based on speculation that John’s limited and distressed reaction to her and failure to bond during visitation was the result of a language problem. However, John was pre-verbal when placed in the foster home. Moreover, the record does not establish that the foster family spoke only Spanish. Thus, mother cannot establish an essential premise of her claim: that the placement of John created an unfair language barrier between her and John.
For the same reasons, this case does not present an issue so important that we should overlook the fact that despite notice of the foster family’s primary language in February 2006 and visitation from the time of his placement in August 2005, mother never complained about a language barrier. Nor does the possibility of a petition for a writ of habeas corpus persuade us to reach the merits of mother’s speculative claim. Indeed, we doubt that mother could sustain her burden of showing either that counsel’s “performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney” (People v. Cunningham (2001) 25 Cal.4th 926, 1003; Strickland v. Washington (1984) 466 U.S. 668, 688) or that there is “a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings.” (People v. Cunningham, supra, 25 Cal.4th at p. 1003; Strickland v. Washington, supra, 466 U.S. at p. 694.)
Indeed, because mother’s claim is based on pure speculation concerning the effect of John’s placement in a primarily Spanish-speaking home, we doubt that mother could establish that the placement was prejudicial.
DISPOSITION
The order terminating parental rights is affirmed.
WE CONCUR: PREMO, J., ELIA, J.