Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Ct. No. RIJ103069 Christopher J. Sheldon, Judge.
Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
Susan Lookout, under appointment by the Court of Appeal, for Minor.
Stephen V. Quesenberry and David Clifford for Morongo Band of Mission Indians.
OPINION
RAMIREZ, P.J.
Appellant Marcella S. (mother) is the mother of L.S., now nearly three years old. In this appeal, mother challenges the juvenile court’s judgment terminating mother’s parental rights at a hearing held pursuant to Welfare and Institutions Code, section 366.26, and denying her section 388 petition to modify court order. Specifically, mother argues the juvenile court erred when it: 1) found that the Department of Public Social Services (DPSS) made “active efforts” to reunify the family as required by the Indian Child Welfare Act (ICWA) 25 U.S.C. § 1901 et seq.; 2) found beyond a reasonable doubt the serious emotional or physical damage would occur to L.S. if she were returned to mother; and 3) abused its discretion by denying mother’s section 388 petition for modification. As discussed below, we affirm the judgment.
All further statutory references shall be to the Welfare and Institutions Code unless otherwise indicated.
Statement of Facts
1. Detention
L.S. three months old at the time was removed from mother on April 25, 2005, when a social worker discovered that mother’s husband Charlie S. (who was initially declared L.S.’s presumed father) had moved back into the home in violation of a restraining order. Three of mother’s other children (L.S.’s half-siblings) had been returned to the home on family maintenance just five days earlier, after mother had participated in her case plan, tested clean for drugs, and obtained a restraining order against father because of a domestic violence incident in March 2005.
At the April 28, 2005, detention hearing, the juvenile court detained L.S. and informed mother and Charlie S. that family reunification services would not exceed the statutory time limit of six months. The trial court ordered liberal, supervised visitation for both parents upon proof of a clean drug test and either an assessment for an “appropriate program” or attendance with a sponsor at Alcoholics Anonymous or Narcotics Anonymous. Neither mother nor Charlie S. visited with the minor after she was detained.
2. Mother’s Move to Oregon
Charlie S. moved to Oregon in late May, 2005, and mother followed in mid-June. Charlie S. is an enrolled member of the Confederated Tribes of the Warm Springs Reservation of Oregon (Warm Springs Tribe). Mother declined an offered visit with the minor before she left, stating she had too many things to do to prepare for her move to Oregon. Both parents were admitted to a residential treatment program in Oregon on June 20, 2005. Mother was about two months pregnant at that time.
3. Jurisdiction Hearing
At the jurisdiction hearing on June 30, 2005, the juvenile court found true allegations of failure to protect (§ 300, subd. (b)) and abuse of sibling (§ 300, subd. (j)) and ordered the Department to provide the parents with reunification services. The social worker began the ICPC process regarding a paternal aunt in Oregon. The aunt was not approved.
ICPC stands for the “Interstate Compact on Placement of Children” found at Family Code sections 7900 to 7912.
4. Six-Month Review Hearing
In the status review report dated November 30, 2005, the social worker recommended that services to the parents be terminated and a section 366.26 hearing be set. The reason given was that the parents had not complied with the juvenile court’s orders. First, the parents left the state prior to the jurisdiction/disposition hearing. Second, the parents had had no contact with L.S. since she was removed the previous April. Third, the parents lived together in violation of their service plan for the three half-siblings and in violation of a restraining order.
Neither parent was present at the contested six-month review hearing on December 13, 2005, as they were both living in Oregon. Counsel for each parent submitted on the status review report. The juvenile court terminated reunification services and set a section 366.26 hearing for April 5, 2006. Mother and father each timely filed their notices of intent to file a writ petition. This Court denied both petitions in a written opinion in Case Number E039477.
5. Section 342 Dependency Petition
On December 27, 2005, DPSS filed a subsequent juvenile dependency petition (§ 342) alleging that Eric M. had failed to provide for L.S. Eric M. had fathered one of mother’s older children and it was alleged that he was L.S.’s father. The social worker had received information that Charlie S. was incarcerated when L.S. was conceived, although he was married to mother at the time of L.S.’s conception and birth, and his name appears on L.S.’s birth certificate. In addition, the social worker received from an anonymous source the results of an alleged paternity test that excluded Charlie S. as L.S.’s father.
In October 2005 L.S. was placed with Eric M.’s cousin, Cheryl O., who lived on the Morongo Indian reservation. Mother’s other child with Eric M. (L.S.’s full sister), and another of Eric M’s children also lived with Cheryl O.
At the jurisdiction and disposition hearing on February 15, 2006, the juvenile court found the allegations in the supplemental petition to be true, re-detained L.S., vacated the section 366.26 hearing set for April 5, 2006, and re-set the date for June 6, 2006.
6. Tribal Motions to Intervene
On May 11, 2006, the Confederated Tribes of the Warm Springs Reservation of Oregon, of which Charlie S. is a member, filed a motion to intervene and transfer the dependency case to the Warm Springs Tribal Court pursuant to ICWA. On May 22, 2006, the Morongo Band of Mission Indians, of which Eric M. is an enrolled member, also filed a notice of tribal intervention and a request for paternity test and stay of proceedings. The hearing on both petitions was held on May 31, 2006. The Warm Springs Tribe withdrew its petition. The juvenile court granted the petition of the Morongo Band of Mission Indians and ordered a stay so that paternity testing could be completed.
7. Section 388 Petition
On February 15, 2007, mother filed a motion under section 388 to change the juvenile court’s order terminating reunification services and setting a section 366.26 hearing. In the petition, mother alleged that she had completed the reunification plan, had monthly visits with L.S., and had obtained housing and a means of support. Mother requested that L.S. be returned to her on a plan of family maintenance.
8. Section 366.26 Hearing
The section 366.26 hearing set for June 6, 2006, was continued a number of times, mostly because Eric M. did not make himself available for a paternity test. Eventually, Eric M.’s mother and daughter, who is L.S.’s full sister, participated in genetic testing that confirmed Eric M. is L.S.’s father. The section 366.26 hearing was held on April 5, 2007, at which the juvenile court also considered mother’s section 388 petition for modification. The court heard testimony from the designated ICWA “expert” and from mother. At the conclusion of the hearing, the juvenile court found that DPSS had complied with ICWA by making active efforts to provide reunification services. The court also denied mother’s section 388 petition. Finally, the court terminated parental rights and selected adoption as L.S.’s permanent placement, with preference to L.S.’s current caretakers. This appeal followed.
Discussion
1. “Active Efforts” Under ICWA
Mother argues the termination of her parental rights to L.S. should be reversed because DPSS failed to establish by clear and convincing evidence that it made active efforts to provide her and L.S. with reunification services as required by ICWA.
25 U.S.C. section 1912, subdivision (d) provides that “[a]ny party seeking to effect a . . . termination of parental rights to [] an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.”
Here, the juvenile court found that DPSS had made active efforts to prevent the breakup of this Indian family when it: 1) offered mother services at the outset of the dependency, which she rejected when she chose to follow Charlie S. to Oregon; and 2) placed L.S. with the cousin of her biological father, which cousin is an enrolled member of the Morongo Band of Mission Indians and lives on the reservation. Further, the court reasoned that DPSS “is not required to chase [mother] all over the country and make her take steps.”
Mother’s main complaint is that DPSS did not facilitate interstate visits between mother and L.S. while mother lived in Oregon. We reject this claim of error here, as we did when Mother raised it in her writ petition, because she provides no legal authority to support her argument that DPSS had any duty to provide interstate visitation. (Cal. Rules of Court, rule 14(a)(1)(B); Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [contentions waived when there is failure to support them with reasoned argument and citations to authority]; People v. Dougherty (1982) 138 Cal.App.3d 278, 282-283 [argument of counsel is insufficient; briefs must contain factual underpinning, record references, argument, and authority].)
Mother also argues that DPSS should have, but did not, make active efforts to involve the Warm Springs Tribe in providing reunification services. This argument is problematic. First, when DPSS contacted the Warm Springs Tribe in October 2005, DPSS informed the tribe that the parents “were in compliance with DPSS requirements except that, since they were now living in Oregon, they were not completing regular visitation.” At that time, the Warm Springs Tribe itself decided to informally monitor the case, but to take no formal action until Charlie S.’s paternity was established. Thus, since the parents were already fulfilling each of the case plan requirements except visitation, interstate visitation was the only service that the Warm Springs Tribe could have helped with, and the tribe itself declined to get involved while Charlie S.’s paternity was in doubt. Second, any error in failing to more actively involve the Warm Springs Tribe in the case plan was harmless. This is because, as DPSS points out, mother failed to accurately identify L.S.’s true biological father during the reunification period, and so any further active efforts during the reunification period would have been associated with the Warm Springs Tribe, not the Morongo Band of Mission Indians, which was the tribe with which L.S. was actually eligible to enroll.
2. ICWA Detriment Finding
Mother also contends that the juvenile court erred when it found that continued custody of L.S. by mother would result in serious emotional or physical damage to L.S. ICWA provides that a state juvenile court may not order the termination of parental rights “in the absence of a determination, supported by evidence beyond a reasonable doubt, including the testimony of qualified expert witnesses, that the continued custody of the child by the parent . . . is likely to result in serious emotional or physical damage to the child.” (25 U.S.C., § 1912, subd. (f).) We review this detriment determination to see if it is supported by substantial evidence. (In re Barbara R. (2006) 137 Cal.App.4th 941, 949-950.)
Here, mother argues that L.S. would not suffer serious emotional damage if returned to her because L.S. is “bonded” with mother. We agree with the ICWA expert, in that we find it difficult to believe that L.S., who was just two years old at the time of the section 366.26 hearing, had formed a bond with mother. This is because mother did not visit with L.S. at all between the April 25, 2005 detention, when L.S. was three months old, and June 2006, when L.S. was seventeen months old. According to the social worker’s reports, mother thereafter visited with L.S. in August 2006 and November 20, 2006. Mother testified that she visited L.S. monthly from June to November 2006, including September 11 and October 19, 2006, although the social workers reports do not reflect this. Mother testified that she separated from Charlie S. and moved to San Diego on November 20, 2006. She also admitted that, since moving to San Diego, she had only visited with L.S. on February 5, 2007, and the day before the section 366.26 hearing. Overall, then, mother had no visits with her infant daughter for 14 months, and either four (if one believes the social worker’s reports) or as many as eight (if one believes mother’s testimony) visits between June 2006 and April 2007, when L.S. was ages one and two. These facts are the basis of the ICWA expert’s opinion that returning L.S. to mother would be detrimental to her: “[B]ased on the lack of visitation and contact over a long period of time, I would see it—I would find it very difficult for me to believe that a relationship exists between the mother and the child.”
The June and August 2006 visits took place because L.S.’s caretaker, Cheryl O., purchased airline tickets for mother to attend court hearings in this case.
In addition, the record shows that L.S. is bonded with her current caretakers. L.S. has lived with Cheryl O. and her husband since October 2005, when she was nine months old, and has known no other parents. L.S. calls her caretakers “Momma” and “Papa” and consistently appeared happy and healthy during the social workers’ in-home visits. This supports the opinion of the ICWA expert that it would be detrimental to L.S. to be taken from their home and placed with mother.
3. Section 388 Petition
Mother argues that the juvenile court abused its discretion when it determined that, although mother may have changed her circumstances somewhat since the court terminated her reunification services and set the section 366.26 hearing, she had not established that modifying these orders to place L.S. with mother on family maintenance was in L.S.’s best interest.
Section 388 provides “Any parent . . . may, upon grounds of change of circumstances or new evidence, petition the court . . . to change, modify or set aside any order of court previously made . . . .” The petitioner must show by a “preponderance of the evidence” that: (1) there is new evidence or a change of circumstances; and (2) that the proposed modification based on the new evidence or change of circumstances would be in the child’s “best interests.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526-27, fn. 5.) We review the juvenile court’s decision on a section 388 petition for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.)
As did the juvenile court, we assume for the purpose of argument that mother established a change in her circumstances. In the petition, mother stated that placing L.S. with her on family maintenance would be in the child’s best interest because she and the child had established a relationship and L.S. would be raised with her three half-brothers. We have already addressed the depth of L.S.’s relationship with mother. We also note that, while L.S. had not lived with her three half-brothers since she was three months old, she had lived in Cheryl O.’s home with her full sister and a cousin since October 21, 2005, and presumably had established a relationship with them. In addition, while mother testified that she had lived on the Morongo reservation for 18 years and participated in Morongo cultural events, living on the Morongo Indian reservation was undoubtedly more beneficial for L.S. culturally, as opposed to living with her mother in a town home in San Diego, away from the reservation. In sum, because mother did not present substantial, credible evidence that the proposed modification would be in L.S.’s best interest, the juvenile court did not abuse its discretion when it denied the petition.
Mother is not a Morongo tribal member.
Disposition
The judgment of the juvenile court is affirmed.
We concur: McKINSTER, J., KING, J.