Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court No. DP010411 of Orange County, Carolyn Kirkwood, Judge.
Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Paula A. Whaley, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
Blanca R. appeals from the termination of parental rights to her son, Mario R. She contends the juvenile court erred in denying her petition under Welfare and Institutions Code section 388 without a hearing and in failing to make proper inquiries under the Indian Child Welfare Act (25 U.S.C. § 1900 et seq.) (ICWA). We affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTS
In June 2004, five-year-old Mario and his half sister, three-month-old Margarita, were detained by the Orange County Social Services Agency (SSA). A week before, the mother had called police after Margarita’s father, H.J., hit the baby and beat Mario and the mother with his belt. H.J. was arrested for spousal abuse and possession of drugs. The mother and children took refuge with a friend. When SSA came to the friend’s house to investigate, the social worker found the mother “verbally non-responsive” and called paramedics. The mother was hospitalized under section 5250, and the children were placed at Orangewood Children’s Home. Mario’s father, P.M., could not be located.
H.J. appeared in custody at the detention hearing and denied any American Indian heritage. The juvenile court found ICWA did not apply “[a]s to this particular father.” The mother was released from the hospital on July 28 and appeared at the pretrial hearing on August 3. She denied any American Indian heritage and was unaware of any in either H.J.’s or the father’s family. The court found, “[I]t does not appear ICWA applies, based on the information available today.” On August 25, the juvenile court entered P.M.’s default, adjudicated the children dependents, and removed them from parental custody. The mother was offered reunification services, which included psychotropic medication.
Margarita is not the subject of this appeal.
The six-month review hearing was held in February 2005. The children had been placed in the foster home of Norma H. and were doing well. The mother had completed a domestic violence counseling program, but her participation in other aspects of her case plan was unsatisfactory. Until mid-January 2005, the mother consistently visited the children weekly for four hours. The foster mother monitored the visits and reported that the mother “‘does well with the children.’” On February 1, however, the foster mother reported that the mother had not visited for two and one-half weeks. When the social worker investigated, the mother said she wanted to give the children up for adoption and commit suicide. The social worker encouraged the mother not to give up and urged her to start taking her psychotropic medication again. The mother appeared at the hearing; the court ordered six more months of reunification services and ordered the mother to undergo a psychological evaluation by Dr. Patricia Yglesias (Evid. Code, § 730).
In June 2005, the social worker reported she had lost contact with the mother in March. The mother had lost her job at K-Mart, and her visits with the children became sporadic. Her compliance with the case plan was unsatisfactory. She showed up for the twelve-month review hearing, however, and gave the court a new address. The hearing was continued to August, when the court adopted the stipulation of the parties and ordered six more months of services. The mother had not yet had a psychological evaluation with Dr. Yglesias. The court again ordered the mother to undergo a psychological evaluation under Evidence Code section 730, this time appointing Dr. Kenneth Fineman to perform it.
The 18-month review hearing was held in January 2006. Dr. Fineman concluded the mother probably was substance dependent and had significant psychiatric issues. He recommended “[a]n intensive and multifaceted therapeutic program to enable her parenting capacity to reach a level where she can deal independently with her children.” The mother had not visited her children or participated in services for four months. The court terminated reunification services and set a permanent plan selection hearing for May 2006.
In March 2006, P.M. made his first appearance at a notice review hearing. The court asked him if he had American Indian heritage in his family. He replied, “I have no idea.” The court asked, “You have never heard that you had any Native American heritage in your family?” P.M. answered, “I am from Mexico. I believe my dad -- “ The court said, “I didn’t hear the last part.” P.M. continued, “I consider myself an Indian, but I am from Mexico. I have no idea.” County Counsel said, “I will take that as he has no reason to believe he has any Native American Indian heritage.” The court advised P.M., “[I]f you come up with any other information regarding any possible American Indian heritage, please make sure that you let the social worker know, all right?”
The court found P.M. to be Mario’s presumed father and ordered visits for him. The permanent plan selection hearing was continued, and the court granted P.M.’s petition under section 388, granting him six months of reunification services. The mother also filed a section 388 petition requesting more reunification services. Although she had not been visiting Mario, she was “nurturing [her] newborn” and receiving “financial and emotional support from [her] fiancé.” The court denied the mother’s petition.
Unfortunately, P.M.’s interest in Mario was short lived. After two months of visitation and services, P.M. dropped out of sight. SSA placed Mario with a prospective adoptive family in November 2006; in December, the court terminated P.M.’s services and set another permanent plan selection hearing for June 2007.
Shortly before the hearing, the mother filed a second section 388 petition. She declared she had been living with her baby at Kathy’s House, a residential program for women, since April 16, 2007. She attended “parenting classes, NA meetings, bible studies, counseling, lifeworks (helps with life skills), study for a career, random drug testing.” She had been hired at a supermarket less than a week before signing her declaration and had completed her orientation session. She had visited once with Mario, and the visit went well. The mother stated, “I am participating in courses that were required by my case plan, additionally, I am learning life skills to care for and provide my children with a stable environment. . . . I have worked hard and continue to work hard while residing at Kathy’s House to be a great Mother and role model for Mario.” She claimed that returning Mario to her or reinstating reunification services would be in Mario’s best interests “because I can give him a loving stable environment and a good role model as a mother.”
The court found the mother “has not met her burden of proof to establish by prima facie evidence either that there be a change of circumstances or that it would be the best interests of the child to change the order [terminating reunification services to the mother]. And I do note that the evidence that the court has received in this case indicates that Mother, until a very recent visit, had not seen the child for a very long period of time.” The court denied a hearing on the petition. Subsequently, the court found Mario to be adoptable and terminated parental rights.
DISCUSSION
The mother argues the juvenile court erred in failing to grant a hearing on her section 388 petition. She claims she made the required showing that her circumstances had changed. The juvenile court correctly found she did not make the required showing.
Under section 388, a parent may petition the court to change, modify, or set aside a previous court order on the grounds of changed circumstances or new evidence. (§ 388, subd. (a).) The petition must allege why the requested change is ‘in the best interest of the dependent child.’ (§ 388, subd. (b).) Section 388 goes on to state: ‘If it appears that the best interests of the child may be promoted by the proposed change or order . . . the court shall order that a hearing be held.’ (§ 388, subd. (c).) However, the court may summarily deny the motion if the petition fails to make a prima facie showing (1) of a change of circumstances or new evidence requiring a changed order, and (2) the requested change would promote the best interests of the child. [Citation.] In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. [Citation.]” (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189.) We review the trial court’s decision for an abuse of discretion. (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)
At the time of the section 388 petition, the mother had been at Kathy’s House for two months. Although she was doing well, the court had to balance that recent improvement against the preceding 22 months of unsatisfactory progress. At most, the mother demonstrated changing, not changed, circumstances, which is an insufficient showing to require a hearing on a section 388 petition. (In re Casey D. (1999) 70 Cal.App.4th 38, 49.) Furthermore, the mother presented no evidence and made no argument to the juvenile court that reinstating services would be in Mario’s best interests. Such a showing is essential to a successful section 388 petition. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1036.)
Mario’s dependency proceeding is long past the reunification stage. He is on the verge of being adopted and finding the stability of a permanent home. After reunification services are terminated, the juvenile court’s focus shifts from the parent’s interest in reunification to the child’s need for permanence and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Marilyn H. (1993) 5 Cal.4th 295, 309.) The mother failed to make a prima facie showing that delaying the proceedings would be in Mario’s best interests.
The mother also claims the termination of her parental rights must be reversed because the juvenile court determined that ICWA did not apply without making proper inquiries of the parents. We disagree.
The reporter’s transcript shows both parents were asked about their Native American Indian heritage when they first appeared in court. The mother was questioned in August 2004, and denied any Indian heritage. P.M. was asked in March 2006 and said he had no idea about American Indian heritage; he considered himself an Indian from Mexico.
The mother complains the court should have ordered the parents to fill out and file the Judicial Council form, “Parental Notification of Indian Status,” required by former rule 5.664(d)(3) of the California Rules of Court. That rule states: “At the first appearance by a parent or guardian in any dependency case . . ., the parent or guardian must be ordered to complete [the form].”
The form required by former rule 5.664(d) was Judicial Council Form JV-130. Effective January 2008, the relevant rule is now rule 5.481(a)(2) & (3), and the form is Judicial Council Form ICWA-020.
There was no error with respect to the mother. She first appeared and was asked about her Native American Indian ancestry in August 2004; Form JV-130 was neither in existence nor required until January 2005. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1429; see Historical Notes, 23 pt. 2 West’s Ann. Codes, Rules (2006 ed.) foll. rule 5.664, p. 61.) P.M., however, first appeared in March 2006, when the form was clearly required. The juvenile court’s failure to order him to complete it was error.
The mother urges us to find this error reversible per se, citing In re J.N. (2006) 138 Cal.App.4th 450. But we find the error is amenable to a harmless error analysis and find no prejudice.
In In re J.N., the court reversed an order terminating parental rights where the juvenile court failed to ask the mother whether she had any Indian ancestry and failed to order her to complete Form JV-130. Although there was nothing in the record to suggest any Indian ancestry, the court rejected a harmless error analysis: “We refuse to speculate about what mother’s response to any inquiry would be, . . . and instead remand the matter to the trial court with directions . . . .” (In re J.N., supra, 138 Cal.App.4th at p. 461.)
In contrast, the juvenile court here asked P.M. about his Native American Indian ancestry, and he gave no information suggesting any existed. Had the form been completed, it is highly unlikely that Mario would have been found to be “a member of an Indian tribe,” or “eligible for membership in an Indian tribe and . . . the biological child of a member of an Indian tribe.” (Cal. Rules of Court, former rule 5.664(a)(1)(A) & (B).) This error implicates statutory, not constitutional rights, and is thus subject to the harmless error standard under People v. Watson (1956) 46 Cal.2d 818, 837, i.e., whether it is reasonably probable that a different result would have been reached in the absence of the error. (In re Stacy T. (1997) 52 Cal.App.4th 1415, 1426, fn. 9.) Under this standard, the error is harmless.
DISPOSITION
The judgment terminating parental rights is affirmed.
WE CONCUR: RYLAARSDAM, J., ARONSON, J.