Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super. Ct. Nos. J205971, 205972 & 205973. Deborah A. Daniel Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Julie J. Surber, Deputy County Counsel, for Plaintiff and Respondent.
Sharon S. Rollo, under appointment by the Court of Appeal, for Minors.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Leticia M. (mother) appeals from the termination of her parental rights under Welfare and Institutions Code section 366.26 as to her children D.M. (born in March 2000), T.M. (born in July 2001), and L.M. (born in January 2004). Mother contends (1) the juvenile court erred in denying her section 388 petition without conducting a hearing; (2) the juvenile court should have applied the exception to termination of parental rights under section 366.26, subdivision (c)(1)(A); and (3) the Indian Child Welfare Act (ICWA) was not complied with because the notices omitted the name of a known grandparent who claimed Apache heritage. We find no prejudicial error, and we affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Counsel for the children joins with the position of the San Bernardino County Department of Children’s Services with respect to issues (1) and (2), and joins with mother’s position with respect to issue (3).
II. FACTS AND PROCEDURAL BACKGROUND
In January 2006, law enforcement officers conducted a search at mother’s home after receiving a tip of drug sales occurring there.. During the search, they found methamphetamine on top of a children’s dresser within a child’s reach. Mother was living with two parolees, one of whom was her boyfriend, who told the officers they had stolen the drugs during a recent carjacking and were selling the drugs. The children’s father was incarcerated.
The children’s father is not a party to this appeal.
The San Bernardino County Department of Children’s Services (Department) filed petitions under section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). In the detention report, the Department stated mother had told a social worker she had a criminal history for “‘an assault with a deadly weapon against my husband and welfare fraud.’” Mother also had had a recent arrest for violation of probation. The juvenile court found a prima facie case was established for detention of the children outside the home.
The Department filed a jurisdictional/dispositional report in February 2006. The report stated that mother admitted using marijuana at a New Year’s Eve party, but a January drug test was negative.
In an addendum report filed in March 2006, the Department stated the children had been placed with a paternal aunt. In March 2006, mother was arrested for three counts of willful cruelty to a child; the charges were related to the current case. The social worker referred mother to Highland Guidance Center for services. She had negative drug tests in January, February, and March 2006.
At the jurisdictional/dispositional hearing in March 2006, the juvenile court found the children came within section 300, subdivisions (b) and (g). The court ordered parents to participate in reunification services and ordered supervised visitation.
The Department filed a status review report in August 2006 recommending the termination of reunification services and a permanent plan of legal guardianship. The report stated that mother had been incarcerated for about five weeks on child endangerment charges, and upon her release from jail, she did not have stable housing. The social worker had had difficulty in contacting mother and had referred mother to an agency for homelessness assistance. Mother worked as a bartender and then at a dry cleaning business. In August 2006, mother rented two bedrooms in a house. She was still in a relationship with her boyfriend, who had recently been sentenced to serve 18 months in prison, and she indicated they would resume their relationship upon his release.
Mother had completed a parenting class and had contacted Highland Guidance Center for counseling, but mother rejected their services because they wanted her to attend three days a week, and she wanted a less demanding program. Mother had attended three sessions at another counseling center. Mother was requested to drug test eight times between May and August. She failed to test three times, three tests were negative, another test was negative but was completed after the approved time period, and the last test was negative but was a “dilute” suspicious sample. Based on the drug testing, the social worker told mother she needed to enroll in a substance abuse program as earlier ordered by the court in the event of unsatisfactory drug testing. The criminal court had recently ordered mother to complete a 52-week child abuse class. In the social worker’s opinion, mother had not demonstrated significant benefit from her services.
Mother was visiting the children weekly and assumed a parental role during the visits; she appeared bonded to the children. The children remained placed with a paternal aunt and uncle, who were willing to become the children’s legal guardians.
The Department filed an addendum report in November 2006. The report stated mother was attending counseling and substance abuse treatment. She had been requested to drug test four times in October and November; one test was positive for methamphetamines, one test was negative, and two tests were “no-show positives.” With regard to the positive test for methamphetamine, mother denied she had used the drug herself, but explained she had spent time with a cousin who was smoking methamphetamine.
The six-month review hearing was held in November 2006. The juvenile court found that the Department had provided reasonable reunification services, but that the parents had failed to complete or make substantive progress in their plans. The court terminated reunification services and set the matter for a hearing under section 366.26.
Mother filed a notice of intent to file a writ petition. (Case No. E041766.) After her appointed counsel filed a letter stating she had reviewed the record and had found no legal or factual issues on which to base a writ, this court ordered the petition dismissed.
The Department filed an adoption assessment report in January 2007 and a section 366.26 report in February. The Department found the children adoptable because of their young age and because their aunt and uncle were willing to adopt them. The children had no physical, mental, or emotional delays and were well adjusted to their placement. The children had a strong bond with their aunt and uncle, and the two older children stated they wanted to live with the aunt and uncle forever.
Mother filed a petition under section 388, which the juvenile court summarily denied because the facts did not support what was requested, the request did not state new evidence or a change in circumstances, and the request did not show the change would be in the best interest of the children.
The section 366.26 hearing took place in April 2007. Mother testified she visited the children four hours per week, and the visits were supervised by the aunt and uncle. The children called her “Mommy,” and she disciplined them, read to them, bathed them, and talked about school. She also spoke to the children twice a week on the telephone. She testified the older children knew they could not come home with her and “[t]hey’re not sure why but they’re pretty content with what’s going on.” Mother stated she and the children had a strong bond, and she requested the court to continue guardianship for the children. On cross-examination, mother stated that she had never progressed to unsupervised visitation with the children, and the children’s caretaker had agreed to continued visitation between mother and the children after termination of parental rights.
The paternal aunt testified that the children referred to her and her husband as “auntie and uncle.” The aunt testified that mother cared for the children during visitations, but the aunt had been filling the day-to-day parental role to the children and would continue to do so. She was “absolutely” willing to adopt the children and would provide them with stability and structure, and she would allow mother to have contact with the children after adoption.
The juvenile court found by clear and convincing evidence that it was likely the children would be adopted. The court further found the beneficial parental relationship to the termination of parental rights did not apply. The court stated, “Although mother has testified the children had told her they want to live with her, particularly the two boys, in the adoption assessment, which was received into evidence by the Court, the children have stated clearly to the social worker that they want to live with their current caretakers forever. They have not indicated that they view this as a temporary home. Clearly, there is loving and positive contact. I do not find that the benefit of this relationship and the slim possibility that mother’s contact could be terminated, should the adoption proceed and the caretaker decide no longer to allow contact, outweighs the benefit to these children of adoption. The child [L.M.] was barely 2 years old at the time of the removal; therefore, I don’t find the evidence sufficient to make a finding [that] termination of parental rights would be detrimental.” The court ordered termination of mother and father’s parental rights.
Other facts are set forth in the discussion of the issues to which they pertain.
III. DISCUSSION
A. Denial of Section 388 Petition Without Conducting a Hearing
Mother contends the juvenile court erred in denying her section 388 petition without conducting a hearing.
1. Background
At a hearing on March 13, 2007, mother’s counsel stated mother would file a section 388 petition. The court stated the petition should be filed by March 29. On April 24, mother filed a JV-180 form under section 388 seeking additional reunification services.
In the petition, Mother stated the changed circumstances were as follows: “(1) As of 2/28/07 [mother] completed 62 sessions at Vista Guidance — has 4 sessions left previously attended Family Svcs of Redlands (9 sessions); (2) has attended 14 sessions at child abuse program as of 2/5/07 — now up to 24 sessions; (3) has been attending [San Bernardino Valley College] since 1/19/07; (4) has 2 bedroom apt, part-time job; [and] (5) visits . . . 4 hrs/wk & involved with children’s school.” Mother stated the requested change would be better for the children because (1) she would maintain a constant parent-child relationship with the children, (2) minors wanted to go “home” and believed the aunt was just a temporary caretaker, and (3) mother would complete her court-ordered plan by May 19, 2007. Mother attached various documents supporting her claims.
On April 25, the juvenile court summarily denied the petition without setting a hearing. The court checked boxes on the form indicating the facts did not support what was requested, the request did not state new evidence or a change in circumstances, and the request did not show the change would be in the best interest of the children.
2. Standard of Review
We review the denial of a hearing on a section 388 petition for abuse of discretion. (See In re Zachary G. (1999) 77 Cal.App..4th 799, 808.)
3. Analysis
Under section 388, a parent may petition the court to change or set aside a previous order. (§ 388, subd. (a).) To succeed in such a petition, the parent must show by a preponderance of the evidence both that (1) new evidence or changed circumstances exist, and (2) the proposed change would promote the best interests of the child. (In re Zachary G., supra, 77 Cal.App.4th at p. 806.) If the parent makes a prima facie showing of these elements, the juvenile court should conduct a hearing on the petition, and the petition should be liberally construed in favor of granting a hearing. (Ibid.; see also In re Marilyn H. (1993) 5 Cal.4th 295, 309.) “However, if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition.” (In re Zachary G., supra, 77 Cal.App.4th at p. 806.)
Changing circumstances are not the same as changed circumstances. “A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child’s best interests.” (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
Mother argues she was requesting only 25 days of reunification services to complete her case plan. However, she had completed only 19 of the 52 required sessions for the child abuse program. She did not complete primary treatment for substance abuse until April 2007 and still needed to attend after care group sessions, which were particularly important because she had tested positive for methamphetamines as recently as November 2006 and had failed to complete a number of requested drug tests. Moreover, her visits with the children had never progressed beyond supervised visitation.
In addition, the petition did not make a prima facie showing that modification of the prior order would be in the best interests of the children. After a section 366.26 hearing has been set, “the focus of the dependency proceedings [shifts] from reunification to the child’s need for a stable and permanent home.” (In re Casey D., supra, 70 Cal.App.4th at p. 48.) The children had found a stable and loving home with an aunt and uncle who were willing to adopt them and who were willing to allow mother to continue to see them.
B. Exception to Termination of Parental Rights Under Section 366.26, Subdivision (c)(1)(A)
Mother contends the juvenile court should have applied the exception to termination of parental rights under section 366.26, subdivision (c)(1)(A).
At a section 366.26 hearing, “[a]s a matter of public policy, the juvenile court gives first priority to adoption as the most desirable permanent plan” (In re Edward R. (1993) 12 Cal.App.4th 116, 122), and the juvenile court must terminate parental rights if it finds that the child is likely to be adopted. However, an exception to the termination of parental rights applies when “[t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subdivision (c)(1)(A).)
The children were two, five, and six years old when they were taken into protective custody. Throughout the dependency proceedings, mother had visited the children regularly for four hours a week. Mother took a parental role during the visits, including assisting and guiding the children, reading to them, cutting their nails, bathing them, disciplining them, and talking about school. The children were happy to see mother and called her “Mommy.” We will thus assume for purposes of argument that mother has established the first prong of the exception under section 366.26, subdivision (c)(1)(A) — that is, regular visitation and contact with the children.
However, mother did not make a sufficient showing that the children would benefit from continuing the parental relationship. Although mother contended the children considered the aunt to be only a temporary caretaker, the evidence showed their aunt in fact fulfilled the day-to-day parental role for the children, and the children looked to the aunt and uncle for comfort, security, affection and for meeting their needs. The older children stated they wanted to live with the aunt and uncle forever. The children were not distressed when mother left after visits, and the aunt was willing to allow mother continued contact with the children even after adoption.
C. ICWA Compliance
Mother contends the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) was not complied with because the notices omitted the name of a known grandparent who claimed Apache heritage.
1. Background
At the detention hearing on January 26, 2006, mother stated she had no Indian heritage. The parental grandmother also appeared at the detention hearing and was asked if father had any Native American heritage. She responded, “Yes, but it’s so f[a]r in line, I mean, it’s from way, way back. There is very little but there is some, yes.” When asked which tribe, the paternal grandmother first stated “Mayan” and then “Apache.” The court stated it would ask the court officer to give the paternal grandmother “the Indian notification form” and asked the paternal grandmother to help her son fill it out with “[w]hatever information that you have.”
The Department completed form JV-135, Notice of Involuntary Child Custody Proceedings for an Indian Child. On the form, the Department listed the children’s names; mother’s current name and maiden name, birth date, and current and former addresses; and father’s name, current address, and birth date. The form stated that the paternal grandmother had Apache Indian heritage but also stated her name was unknown, even though she had appeared at the detention hearing. The JV-135 form and the section 300 petitions were sent by certified mail to the nine Apache tribes and the Bureau of Indian Affairs (BIA).
Six of the tribes responded. The Yavapai/Apache Nation from Camp Verde stated that based on the information provided, the parents were not enrolled members of the tribe, and the children were not eligible for enrollment. The Yavapai Prescott Indian Tribe stated their census research revealed no information that would make the children eligible for enrollment. The Mescalero Apache Tribe stated that the children did not meet requirements to be eligible for enrollment because their father was not a member of the tribe. The San Carlos Apache Tribe stated the enrollment records did not find the children or their ancestors listed, and there was no evidence to indicate the children were enrolled members of the tribe. The Jicarilla Apache Tribe stated the children were not eligible for enrollment because the records did not show that they had three-eighths or more Jicarilla Apache Indian blood. The Tonto Apache Tribe stated the children were not enrolled members or eligible for enrollment. In addition, the BIA sent a letter to the Department stating that the documents were being returned because “[a]n appropriate notice by the county to the tribe or tribes has been provided.”
In May 2006, the juvenile court found that ICWA notice had been given as required by law, and the ICWA did not apply.
2. Analysis
The purposes of the ICWA are to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families . . . .” (25 U.S.C. § 1902.) When an Indian child subject to a dependency proceeding is or may be of Indian heritage, each tribe of which the child might be a member or eligible for membership must be notified of the dependency proceeding and of the tribe’s right to intervene in the proceeding. (25 U.S.C. § 1912(a).) An “Indian child” is defined as an unmarried person under age 18 who is either (a) a member of an Indian tribe or (b) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4).) The tribe makes the exclusive determination whether a child is a member or eligible for membership. (Cal. Rules of Court, rule 5.664(g).)
Neither the child nor the parents must be enrolled members of a tribe to trigger the ICWA notice requirements. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 254.) Rather, notice is required when the “court knows or has reason to know that an Indian child is involved . . . .” (25 U.S.C. § 1912(a).)
Here, the Department did provide notice to nine Apache tribes; however, mother contends the notices were deficient because they did not include the name of the paternal grandmother. The social worker is charged with obtaining as much information as possible about the child’s potential Indian heritage and to include that information in the notices sent to the tribes and the BIA. (In re S.M. (2004) 118 Cal.App.4th 1108, 1116.) Substantial compliance with the ICWA notice provisions is sufficient. (In re Christopher I. (2003) 106 Cal.App.4th 533, 566.)
We conclude it was error to fail to include the paternal grandmother’s name in the ICWA notices when her name was known to the Department. However, an ICWA notice violation may be harmless “when, even if notice had been given, the child would not have been found to be an Indian child, and hence the substantive provisions of the ICWA would not have applied. [Citations.] Moreover, any failure to comply with a higher state standard, above and beyond what the ICWA itself requires, must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error. [Citations.]” (In re S.B. (2005) 130 Cal.App.4th 1148, 1162.)
Here, the paternal grandmother provided only vague information about possible distant Indian heritage, stating that such heritage was “from way, way back” and identifying the possible tribe first as Mayan and then as Apache. Thus, mother has failed to show a reasonable probability the result would have been any different even if the paternal grandmother’s name had been included in the notice. We conclude the error was harmless. (In re S.B., supra, 130 Cal.App.4th at p. 1162.)
IV. DISPOSITION
The order appealed from is affirmed.
We concur: GAUT, J., MILLER, J.