Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. William A. Anderson, Jr., Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Super.Ct.No. SWJ001450
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant Maria R.
Maryann M. Milcetic, under appointment by the Court of Appeal, for Defendant and Appellant Mario H.
Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.
Leslie A. Barry, under appointment by the Court of Appeal, for Minor.
OPINION
McKinster, J.
Maria R. and Mario H. (hereafter mother and father, respectively) appeal from the trial court’s order under Welfare and Institutions Code section 366.26 terminating their parental rights to M.H., their then two-year-old daughter. When M.H. was three months old, Riverside County Department of Public Social Services (DPSS) took her into protective custody and filed a section 300 petition alleging that M.H. came within the provisions of subdivisions (b) and (g) because her mother and father had been arrested on child endangerment and drug charges. According to the report prepared for the detention hearing, mother and father both admitted they regularly used methamphetamine. The trial court detained M.H. at a hearing in September 2005, and placed her in foster care. At the combined jurisdiction and disposition hearing, the trial court, among other things, ordered reunification services for father but denied them to mother under section 361.5, subdivisions (b)(10) and (11) because mother had failed to reunify with two of her other children, M.H.’s half siblings. By the time of the six-month review hearing, both mother and father were serving terms in prison. Because he was incarcerated, father had not made progress toward reunification. Consequently, the trial court terminated his services and set the matter for a selection and implementation hearing under section 366.26.
All further statutory references are to the Welfare and Institutions Code unless indicated otherwise.
Father was sentenced to six years and mother to two years, but with nearly a year of credit for time served, mother was scheduled to be released before the date set for the selection and implementation hearing.
Mother was released from custody in November 2006 and immediately enrolled in a residential recovery program. By the time of the selection and implementation hearing on April 3, 2007, mother was in phase 3 of a four phase recovery program, and DPSS had placed M.H. with a prospective adoptive parent, the same woman who had adopted one of M.H.’s older half siblings. Because she had made progress toward recovery, at the selection and implementation hearing mother made an oral motion under section 388 seeking, “at the minimum,” reunification services. The trial court found that mother had not demonstrated changed circumstances and therefore denied that motion. Thereafter, all parties submitted on the various DPSS reports, and the trial court terminated the parental rights of both parents. Mother and father both appeal from that order.
DISCUSSION
1.
INDIAN CHILD WELFARE ACT COMPLIANCE
Father and mother both claim that DPSS failed to comply with the notice provisions of the Indian Child Welfare Act (hereafter ICWA; 25 U.S.C. § 1901 et seq.) which requires, among other things, that notice of the proceedings be given to the pertinent Indian tribe, or tribes, when the court knows or has reason to know that the child who is the subject of the dependency is or may be an Indian child. (25 U.S.C. § 1912(a).) To comply with the notice requirement, the social services agency must notify the child’s tribe, or the Bureau of Indian Affairs if the tribal affiliation is not known, by registered mail with return receipt requested, of the pending proceedings and of the tribe’s right to intervene. (25 U.S.C. § 1912(a).) If there is more than one possible tribal affiliation, the agency must provide notice to each tribe through the tribe’s chairperson, or its designated agent for service of process, as published in the Federal Register. (In re H.A. (2002) 103 Cal.App.4th 1206, 1213.) Because the failure to give proper notice forecloses participation by interested Indian tribes, ICWA notice requirements are strictly construed, and strict compliance is required. (In re Desiree F. (2000) 83 Cal.App.4th 460, 474-475.) Accordingly, former rule 1439(f) of the California Rules of Court (now rule 5.664), the rule in effect when this dependency proceeding was initiated, requires the social services agency to file with the court copies of all notices sent, the return receipts, and any response received from the tribe or tribes. (See also In re Jennifer A. (2002) 103 Cal.App.4th 692, 703-704; In re Asia L. (2003) 107 Cal.App.4th 498, 507-509 [court cannot make knowing finding as to applicability of ICWA without evidence that notice was given in compliance with ICWA requirements].)
California enacted its own version of ICWA, which went into effect on January 1, 2007, after this proceeding was initiated. (See § 224.)
In this case, father indicated at the time of the detention hearing, and several times thereafter, that he might have Indian ancestry. DPSS, in turn, advised the court that it had sent ICWA notices to various tribes and the Bureau of Indian Affairs. The trial court thereafter found that ICWA did not apply. The record on appeal, however, does not contain any evidence to show that DPSS sent the requisite notice to the appropriate tribes and agencies. DPSS concedes that the evidence is insufficient to support the trial court’s ICWA finding and that a limited reversal is appropriate. Therefore, we will reverse the order terminating parental rights and remand the matter to the trial court for the limited purpose of complying with the ICWA notice provisions.
2.
DENIAL OF REUNIFICATION SERVICES TO MOTHER
In the guise of raising a due process challenge to the termination of her parental rights, mother challenges the trial court’s order denying reunification services to her under section 361.5, subdivision (b). Mother raises the due process claim because she did not object in the trial court to the order denying reunification services and therefore has not preserved the issue for review on appeal. (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222 [Failure to raise error in the trial court results in forfeiture of that error claim on appeal; forfeiture applies in juvenile dependency litigation].) Whether viewed as a due process claim or a direct challenge to the order denying reunification services, mother’s claim fails, for reasons we now explain.
We begin our discussion of mother’s due process claim with Cynthia D. v. Superior Court (1993) 5 Cal.4th 242 (Cynthia D.), in which the California Supreme Court held that California’s procedure for terminating parental rights comports with due process even though section 366.26, the provision under which rights are ultimately terminated, does not require a finding of parental unfitness by clear and convincing evidence as required by Santosky v. Kramer (1982) 455 U.S. 745. The Cynthia D. court reasoned, “By the time dependency proceedings have reached the stage of a section 366.26 hearing, there have been multiple specific findings of parental unfitness. Except for a temporary period, the grounds for initial removal of the child from parental custody have been established under a clear and convincing standard (see § 361, [former] subd. (b) [now subd. (c)]); in addition, there have been a series of hearings involving ongoing reunification efforts and, at each hearing, there was a statutory presumption that the child should be returned to the custody of the parent. (§§ 366.21, subds. (e), (f), 366.22, subd. (a).)” (Cynthia D., at p. 253.)
Mother argues because the trial court denied reunifications services to her, and therefore did not conduct periodic review hearings, that she was deprived of her fundamental right to parent without due process of law. Mother’s argument ignores the procedural safeguards embodied in section 361.5, subdivision (b)(10), one of the provisions the trial court relied on to deny reunification services to mother. As we observed in Riverside County Dept. of Public Social Services v. Superior Court (1999) 71 Cal.App.4th 483, 488, “The premise for [section 361.5, subdivision (b)(10)] is clear: that a parent who has failed in one course of reunification services, or who has suffered the drastic step of termination of parental rights, is unlikely to succeed with a new round of services. [Citation.] The reasonableness of this premise is buttressed by the fact that subdivision (b)(10) does not have any effect unless the state had found it necessary to make the subject minor a dependent too. Thus, built into the statute is not only one prior completed parental failure, but a new, additional parental failure to provide adequate care.” Mother’s contrary claim notwithstanding, section 361.5, subdivision (b) incorporates the requisites of due process.
The trial court also properly denied reunification services to mother. Mother did not present any evidence at the disposition hearing to refute the trial court’s finding that section 361.5, subdivision (b) applied. In fact, mother concedes that the order denying reunification services was correct at the time the trial court made the order. Mother claims, however, that her later action of enrolling in a drug recovery program vitiated the trial court’s order and was sufficient to overcome what mother describes as a presumption of unfitness created by section 361.5, subdivision (b). Mother simply is wrong. We assess the validity of an order according to the circumstances and evidence that existed at the time the order was made, a principle mother effectively concedes by acknowledging that the order denying reunification services was correct when made. Because mother did not present any evidence at the disposition hearing, she did not demonstrate her amenability to benefit from services and therefore did not rebut what mother describes as the statutory presumption. Her showing at the selection and implementation hearing was too late.
If mother has any arguable claim on appeal, it is limited to the trial court’s order denying her oral motion under section 388, which provides in pertinent part, that various persons and entities, including parents, “may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made . . . .” (§ 388, subd. (a).) “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).)
The trial court in this case found that mother’s showing did not demonstrate changed circumstances. Although the trial court commended mother on her effort to turn her life around by “taking steps towards sobriety,” the trial court found that mother’s circumstances had not changed. In other words, mother’s showing, at best, revealed that her circumstances were in the process of changing, but that the process was not yet complete. Because mother did not meet her burden to make the threshold showing, the trial court was not even required to conduct a hearing on mother’s motion. (See § 388, subd. (a), quoted above.) In any event, the trial court correctly denied mother’s request to modify its order denying reunification services to her. (In re Casey D. (1999) 70 Cal.App.4th 38, 47, 49.)
DISPOSITION
The order denying mother’s section 388 motion is affirmed.
The order terminating the parental rights of mother and father is reversed for the limited purpose of determining whether ICWA applies. To that end, the trial court is directed to order DPSS to either provide evidence that it complied with the notice requirements of ICWA and the related state and federal laws, or to give such notice in compliance with ICWA and the related federal and state laws. After the court finds that there has been substantial compliance with the notice requirements of ICWA, it shall make a finding with respect to whether M.H. is an Indian child. (See § 224.3, subd. (e)(3); Cal. Rules of Court, former rule 1439(g)(5) (now rule 5.664).) If at any time within 60 days after notice was given there is a determinative response and the trial court finds that M.H. is an Indian child, the court shall set a new section 366.26 hearing and thereafter shall proceed in accordance with ICWA and all related federal and state laws. If the court receives a determinative response at anytime within 60 days after the notice was given and the court finds that M.H. is not an Indian child, the court shall reinstate the order terminating parental rights. If there is no such determinative response within 60 days, the trial court shall find that M.H. is not an Indian child, and the court shall determine that ICWA does not apply and shall reinstate the original order terminating parental rights. (Cal. Rules of Court, former rule 1439(f)(6) (now rule 5.664).)
We concur: Ramirez P.J. King J.