Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Nos. DP012612, DP012613, & DP012614, Dennis J. Keough, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21). Reversed and remanded with directions.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Alexandra G. Morgan, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
ARONSON, J.
Mother Rachel M. (mother) challenges the rulings of the juvenile court, rejecting without hearing her petition under Welfare and Institutions Code section 388, and terminating parental rights to three of her children. She contends the trial court erred in denying her section 388 petition because her recent activities of enrolling in a drug treatment program, getting a job, and renting an apartment represented changed circumstances justifying a reversal of the court’s prior order terminating reunification services. She also contends she demonstrated that termination of her parental rights would be detrimental to her children because the children would benefit from continuing the relationship (§ 366.26, subd. (c)(1)(B)(i)), and there would be substantial interference with a children’s sibling relationship (§ 366.26, subd. (c)(1)(B)(i)). She also contends the court erred in failing to ensure the Orange County Department of Social Services (SSA) complied with its order requiring notice under the Indian Child Welfare Act of 1978, 25 U.S.C. § 1901 et seq.. (ICWA).
All statutory references are to the Welfare and Institutions Code unless otherwise noted.
We conclude the trial court did not abuse its discretion in denying mother’s section 388 petition. Mother’s petition demonstrated at most a last minute attempt to change the circumstances resulting in termination of reunification services. We also conclude substantial evidence supported the trial court’s determination that termination of Mother’s rights would not be detrimental to the children. Finally, we conclude SSA failed to provide the notice required under the ICWA and ordered by the court. Accordingly, we reverse the judgment and remand.
I
Factual and Procedural Background
On November 19, 2005, a police officer initiated a traffic stop of mother, who was driving with three of her five children, five-year-old Karlee, three-year-old Haleigh, and one-year-old David. The officer observed that mother was not wearing her seat belt and that the girls were not secured in their car seats. The officer learned mother had been driving with a suspended license, and had two outstanding traffic warrants, and a search of Mother’s purse uncovered methamphetamine and drug paraphernalia. Mother was arrested, and the children were released to their aunt, who gave them to their father, David M., Sr., (David Sr.) despite an active restraining order prohibiting him from having contact with the children. When Anaheim police officers arrived at the father’s home to retrieve the children, the father refused to answer the door and became verbally abusive when the officers entered the home. The house appeared unkempt, with a minimal food supply on hand, and David wore only an extremely soiled diaper. The officers arrested David Sr. for violating the restraining order, and the children were transported to Orangewood Children’s Home (Orangewood).
The children were placed with their paternal grandfather. SSA filed a juvenile dependency petition as to the three children, alleging both the mother and father had unresolved substance abuse problems, had a history of drug-related criminal activity, and engaged in domestic violence. The petition also alleged the mother lived a transient lifestyle and was incarcerated.
The mother and father also had two older girls –– 15-year-old Kayla and 11-year-old Ashley –– who are not the subject of this appeal. These girls were not taken into custody with the three other children because they were in Washington State with their aunt at the time. The two girls did not return to Southern California until early 2007.
At the detention hearing on November 28, mother and father informed the court they believed both sides of the family possessed American Indian heritage, and identified the tribe as Cherokee. The court found the Indian Children Welfare Act (ICWA) may apply, and directed SSA to notify the Cherokee Nation and Bureau of Indian Affairs. SSA failed to send the required notice, however.
At the jurisdictional and dispositional hearing on February 15, 2006, the court sustained the allegations in SSA’s petition concerning section 300, subdivisions (b) [failure to protect] and (g) [no provision for support]. The children were declared dependents of the court, and the court ordered SSA to prepare a case plan and provide reunification services. The court authorized monitored visits for the mother, as well as the father upon modification of the restraining order. A six-month review hearing was set.
Mother’s case plan included twice-weekly drug testing, a drug treatment program, domestic violence counseling, and parent education classes. In May, David injured himself when he rolled off the bed while his grandfather was changing his diaper, and hit his head on the corner of a bookshelf. Learning of David’s injury, the mother and father arrived at the grandfather’s house and abducted the three children, but returned the children to Orangewood several days later. In June 2006, Mother received a two-year prison sentence for receiving stolen property.
The court held the six-month status review hearing in August 2006. The SSA’s six-month status review report noted mother’s incarceration, and reported that mother had not worked on her case plan before she was jailed. After incarceration, mother attended a small number of substance abuse and domestic violence classes. The status review report noted the father was in jail for a probation violation, and that relatives were unwilling to take the children for fear the parents would abduct the children again. The report cited mother’s lack of progress, and recommended terminating reunification services. The court, however, continued services and adopted a plan calling for twice-monthly visitation with mother during the time she was incarcerated at a local jail.
After the August hearing, mother was transferred to state prison in Chowchilla. In September, SSA placed the children with a foster mother, and they remained in her care at the 12-month review on January 16, 2007. At that hearing the court continued family reunification services and set a date for an 18-month review.
On January 31, 2007, mother was transferred to a drug treatment facility, where she attended and participated in services such as relapse prevention and recovery education groups. She also received one-on-one counseling and underwent random urine testing. The children began weekly monitored visitation with mother there around February 25, their first contact with her since October 8, 2006. David appeared apprehensive about going to mother at first, and remained aloof towards her. During visits, the children played games, sang songs, and colored. Karlee made statements such as “nobody wants me,” and on one occasion sat in the corner and cried, and did not want her mother to hug her.
The children’s two older siblings were present at two of these visits. During the first visit, mother spent most of her time interacting with Kayla, her eldest daughter. Karlee started acting out because she was not getting enough attention, and Haleigh and David played with other inmates. Also, mother attempted to take a necklace, shampoo, and other items from Kayla in violation of the facility’s rules.
In March or April of 2007, mother was arrested on an outstanding warrant regarding the abduction of the children. During this period of incarceration, mother failed to enroll in any programs required by her reunification plan. The children visited mother twice, and played on a playground in the prison.
At the 18-month hearing on May 14, 2007, the court terminated reunification services for both parents and set a section 366.26 hearing. On June 6, mother was transferred to Riverside County Jail. She refused visits from the children while she was there, fearing it would be too emotional for them. On July 31, mother was released from jail, and had two visitations over the next month. While Karlee appeared attached to mother on the first visit, David distanced himself and ignored some of his mother’s attempts to get his attention. Haleigh played independently or with David.
Mother enrolled in a sober living home on August 8, but on August 17, tested positive for marijuana. She was discharged for failing to attend mandatory meetings, and placed on lockdown for thirty days. After mother was released from lockdown, she failed to attend her Alcoholics and Narcotics Anonymous programs.
On September 6, 2007, the children moved in with new caregivers who had become acquainted with the children over the course of a year. When a social worker asked the children how they liked their new placement, all three excitedly jumped out of their seats, cheered, and said they liked their “mom and dad.” David seemed attached to the foster father, and the two girls constantly hugged the foster mother. In October, when Karlee was asked how she felt about remaining with her foster parents, she replied, “Good, I like it here a lot.” When asked if there was any other place she would like to live, she replied, “No. I want to live here.”
On October 1, the children preferred to stay at the Annual Foster Care picnic they were attending rather than keep a scheduled visitation with mother. On October 14, when the monitor arrived at the caretakers’ home to take the children to visit their mother, David cried uncontrollably, went to his caregiver’s arms, and protested he did not want to visit his mother. Both girls also refused to visit mother. On October 20, the children once again refused to visit their mother, even when encouraged by their foster parents to do so.
On October 22, mother filed a section 388 petition, which the court rejected without a hearing. The section 366.26 hearing was then held on October 25. Karlee testified at the hearing. When the court asked her who she would like to live with while she was growing up, she responded, “Tom and Marcy,” her foster parents. When she was asked if she wanted to be able to visit her mother in the future, Karlee responded, “I don’t know.”
Mother also testified at the hearing. She admitted being a drug addict, and ingesting drugs while the children lived with her before SSA intervened in November 2005. She admitted that for the present the best thing for the children was to remain with their caretakers. She also admitted that she did not know how the children would react if separated from their older siblings.
The court held that the parents did not prove the “sibling exception” (§ 366.26, subd. (c)(1)(B)(i)), finding the benefits of legal permanency outweighed the children’s connections to their older siblings. The court also held that the parents did not prove the benefit exception (§ 366.26, subd. (c)(1)(B)(v)). Although the court found mother exercised regular and consistent visitation, it concluded the children’s interests in legal permanency outweighed the nature of the children’s relationship with the parents. The court found the children adoptable, terminated parental rights, and ordered adoption as the permanent plan. Mother now appeals.
The trial court determined the applicability of the sibling and benefit exceptions under the former section 366.26, subdivision (c)(1), which was amended and renumbered effective January 1, 2008. Because the minor changes to the statute do not affect the outcome here, we cite to the current version.
II
Discussion
A. SSA Failed to Comply With the Trial Court’s Order to Provide Notice Under ICWA
Congress passed ICWA to combat “abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.” (Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30, 32.) 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).)
“Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under [ICWA] irrespective of the position of the parents, Indian custodian or state agencies.” (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421 (Kahlen W.).) Accordingly, ICWA requires notice to the child’s Indian tribe of the dependency proceeding and of the tribe's right of intervention “where the court knows or has reason to know” the child is an Indian child. (25 U.S.C. § 1912(a); see also § 224.2, subd. (b).) “The circumstances that may provide reason to know the child is an Indian child include . . .: [¶] A person having an interest in the child . . . provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child's biological parents, grandparents, or great-grandparents are or were a member of a tribe.” (§ 224.3, subd. (b).)
“Both the juvenile court and DCFS have an affirmative duty to inquire whether a child declared a dependent minor of the juvenile court qualifies as an Indian child for ICWA purposes. [Citation.] It is the duty of the juvenile court to receive evidence of the notice efforts by DCFS and to determine if they comply with ICWA. [Citation.] The juvenile court may not rely on mere representations that proper notice was given; there must be a court record of the notice documents. [Citation.] ‘When proper notice is not given under the ICWA, the court's order is voidable. [Citation.]’ [Citation.]” (In re Glorianna K. (2005) 125 Cal.App.4th 1443, 1449.)
Here, mother filed a JV-120 judicial council form indicating she may have Indian ancestry. Mother also stated the children’s great-grandfather may have Indian ancestry, which she thought might be Cherokee. Mother noted the children’s maternal grandmother may have additional information about the father’s Indian heritage. Father also expressed his belief he was Cherokee from his biological father’s side. At the detention hearing, father’s counsel stated: “There is American Indian heritage on father’s side of the family. I believe it’s Cherokee.”
Based on these representations, the trial court ordered the SSA to investigate Indian heritage and to provide notice to the Cherokee Nation and the Bureau of Indian Affairs. But SSA concedes it failed to provide the required notices, and the trial court did not make any findings regarding the applicability of ICWA. Accordingly, we reverse the judgment.
B. The Trial Court Did Not Abuse its Discretion in Denying Mother a Hearing on Her Section 388 Petition
Mother contends the trial court abused its discretion in denying her a hearing on her petition under section 388. We disagree.
Section 388 serves “as an ‘escape mechanism’ to ensure that new evidence may be considered before the actual, final termination of parental rights.” (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1506.) Under section 388, subdivision (a), a parent “may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change” a previous court order. “If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . .” (§ 388, subd. (c).) Conversely, “[i]f the liberally construed allegations of the petition do not show changed circumstances such that the child’s best interests will be promoted by the proposed change of order, the dependency court need not order a hearing.” (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) Allegations of changing, rather than changed, circumstances are not sufficient to warrant a hearing. (See In re Casey D. (1999) 70 Cal.App.4th 38, 49.) Not just any change in circumstance will entitle a petitioner to a hearing under section 388. Rather, “the change of circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged prior order.” (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485.) A juvenile court’s summary denial of a section 388 petition is reviewed for an abuse of discretion (In re Stephanie M. (1994) 7 Cal.4th 295, 316-318) and we will affirm unless the decision “‘“exceeded the bounds of reason.”’” (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)
Here, the changed circumstances asserted in mother’s section 388 petition included her voluntary enrollment in a substance abuse treatment after the court terminated reunification services, her visitation with the children, and her newly acquired apartment and job. As noted in the petition, however, mother had used drugs upon her release from prison, after the court terminated reunification services and just three months before she filed the section 388 petition. Indeed, the drug screening record attached to mother’s petition reflected her testing positive for THC on both August 8 and 17, 2007, and that her last drug test was on August 28, 2007. The pay stub attached to the section 388 petition disclosed that mother had completed only one week of employment when she filed the petition. Similarly, another attachment to the petition demonstrated mother rented the apartment just one week before she filed the petition.
At best, mother’s section 388 petition reflects her understanding of the problems that led to her children’s detention and a last ditch effort to rectify them. It does not, however, demonstrate sufficiently changed circumstances requiring the trial court to grant mother a hearing on the merits. Accordingly, we conclude the trial court did not abuse its discretion in summarily denying the petition.
C. Substantial Evidence Supports the Trial Court’s Rejection of the Child Benefit Exception
“The avowed goal of dependency law is to protect children who are physically, sexually or emotionally abused, neglected or exploited. [Citation.] Although the protection must focus on the preservation of the family whenever possible, the child who cannot be returned to his or her parent must be provided a stable, permanent home. [Citation.] That child must be placed for adoption, in guardianship, or in long-term foster care. [Citation.] [¶] Adoption, where possible, is the permanent plan preferred by the Legislature. [Citation.] ‘Only if adoption is not possible, or if there are countervailing circumstances, or if it is not in the child’s best interests are other, less permanent plans, such as guardianship or long-term foster care considered.’ [Citation.] Adoption, of course, requires terminating the natural parents' legal rights to the child; guardianship and long-term foster care leave parental rights intact. After the parent has failed to reunify and the court has found the child likely to be adopted, it is the parent's burden to show exceptional circumstances exist.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 573-574 (Autumn H.).) Thus, section 366.26, subdivision (c)(1), provides that if the court determines by clear and convincing evidence “that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption.”
One exception to the foregoing, however, occurs when the court determines that termination of parental rights would be detrimental to the child because the parent has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) Courts have interpreted the phrase “benefit from continuing the relationship” to mean that “the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) The benefit exception is extremely narrow, and limited to “exceptional circumstances.” (In re Celine R. (2003) 31 Cal.4th 45, 53.)
Here, mother challenges the sufficiency of the evidence to support the court’s finding that no exceptional circumstances prevented termination of parental rights. “On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. “ (Autumn H., supra, 27 Cal.App.4th at p. 576.)
Substantial evidence supports the trial court’s order finding no exceptional circumstance exists. David was removed from mother’s care when he was only one year old, and Haleigh was only three. Neither demonstrated close attachment to mother during their brief visits. Although Karlee demonstrated some attachment to her mother, she testified she wanted her visits with mother to occur less often. Indeed, the children expressed reluctance to leave a foster care picnic to visit their mother and subsequently refused twice to visit her. The evidence shows the three children are attached to their foster parents, and call them “mom” and “dad.” The only evidence mother cites showing potential harm to the children from a termination of mother’s parental rights is Karlee’s testimony that she would be “a little bit sad” if she could not visit her mother again.
We conclude substantial evidence supports the trial court’s order rejecting mother’s assertion that termination would be detrimental to the children because they would benefit from continuing their relationship with her.
D. Substantial Evidence Supports the Trial Court’s Rejection of the Sibling Exception
Mother also attempts to invoke the “sibling” exception found in section 366.26, subdivision (c)(1)(B)(v), that termination of parental rights would be detrimental to the child because: “There would be substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption.” Under this exception, “the existence of a relationship alone is not enough; but it must be ‘sufficiently significant’ to cause detriment” to the child if it were severed. (In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017.) Like the benefit exception, the sibling exception is narrow. “[T]he court may reject adoption under this sibling relationship provision only if it finds adoption would be detrimental to the child whose welfare is being considered. It may not prevent a child from being adopted solely because of the effect the adoption may have on a sibling.” (In re Celine R., supra, 31 Cal.4th at pp. 49-50.)
Here, Karlee testified she liked her older sisters, enjoyed living with them, and would like to live with them again. She testified she would feel “really sad” if she did not see them again. Nonetheless, the record provides little insight into the nature of the children’s relationship with the two older siblings. Indeed, when the children were taken into custody, their two older siblings, Kayla and Ashley were living in Washington State. Kayla and Ashley remained in Washington until April 2007. Although the children had weekly visitation with Kayla and Ashley upon their return, visitation ended in May or June 2007, when Kayla and Ashley were detained. The record does not disclose any significant interaction between the children and their older siblings during visits with their parents. Moreover, the record is silent as to any significant common experiences between the children and their older siblings. The children’s common experience in the foster care system for over two years of their young lives was not shared by the two older siblings. In sum, substantial evidence supports the court’s decision to reject the sibling exception.
III
Disposition
The judgment is reversed. On remand, the trial court shall ensure SSA’s compliance with the ICWA notice requirements and, after reviewing any response from those noticed, determine whether ICWA applies. If ICWA is applicable, the court shall proceed in compliance therewith. If the court determines ICWA does not apply, it shall reinstate the judgment in full.
WE CONCUR: SILLS, P. J., BEDSWORTH, J.