Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK62371, S. Patricia Spear, Judge.
Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Senior Deputy County Counsel, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Gina M. (mother) appeals from an order terminating her parental rights under Welfare and Institutions Code section 366.26 and purports to appeal from an order denying her petition for modification under section 388. On appeal, she challenges various findings by the juvenile court and claims a failure to comply with the Indian Child Welfare Act (25 U.S.C. § 1902 et seq. (ICWA)). We hold the notice of appeal is untimely as to the order denying mother’s section 388 petition and dismiss as to that order. We affirm the order terminating parental rights.
All further section references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On February 9, 2006, the Department of Children and Family Services (DCFS) sent a Children’s Social Worker (CSW) to mother’s apartment after receiving a referral for allegations of neglect. The maternal grandfather let the CSW into the apartment, where she observed filthy and unsafe conditions. There was very little food and no clean clothing for the five children: seven-year-old Angelica B., four-year-old Richard B., three-year-old Regina B., two-year-old Reanna B., and one-year-old Francisco B.
The maternal grandfather stated that he had come to the apartment on February 4 after not hearing from mother for a few days. He found the children in the care of a man named Mario. Mario telephoned mother, who said she was fine and would be home soon. The maternal grandfather left, but he returned on February 8 after not hearing from mother. Mario was still at the apartment caring for the children. Believing that mother would be home soon, the maternal grandfather told Mario that he would take care of the children so that he could talk to mother when she returned home. Mother never returned home. The maternal grandfather was concerned about her. He also was concerned about the children; he did not want them to go into foster care, but he did not have the financial resources to care for them.
The CSW examined the children. Angelica and Richard were dirty and wearing dirty, holey clothes. Regina and Reanna had no clothes on; Reanna had a rash on her back and skin irritations on her legs. Francisco was filthy, covered in urine with a full diaper. He had a rash on his face, diaper rash and a large sore on his leg.
The CSW spoke to the apartment manager, who said that mother was being evicted due to complaints about drug trafficking, drinking, fighting, littering, and fire hazards. The CSW detained the children. On February 11, Regina was placed on antibiotics due to rashes on her ankles. Reanna was hospitalized due to an infection.
DCFS filed a section 300 petition on February 14, 2006, alleging failure to protect (subd. (b)), serious emotional damage (subd. (c)), no provision for support (subd. (g)), and abuse or neglect of a sibling (subd. (j)). The petition alleged that mother had a history of substance abuse and was currently using drugs, which left her incapable of caring for the children. Mother appeared at the detention hearing. At that time, she filled out a parental notification of Indian status, claiming to be a member of, or eligible for membership in, the San Carlos tribe.
Angel B., Angelica’s father, also appeared at the detention hearing. Angelica was released into his custody. Francisco B. (senior) is the father of Richard, Regina, Reanna and Francisco. At the time the section 300 petition was filed, he was in prison and due to be deported upon his release, since he is not a citizen of the United States.
Neither Angel B. nor Angelica is a subject of this appeal. Francisco B. (senior) is not a party to this appeal.
The juvenile court found a prima facie case for detention. It ordered the four younger children detained. It granted monitored visitation to mother. It ordered DCFS to give notice to the Bureau of Indian Affairs (BIA) and to contact the maternal grandmother regarding the children’s possible Indian heritage.
On February 23, 2006, Richard, Regina, Reanna and Francisco were placed in the home of a maternal cousin, Cathy G. Thereafter, DCFS reported that it had been unable to interview mother or the maternal grandmother regarding possible Indian heritage. Maternal relatives did not know how to contact the maternal grandmother; while they knew of the possible Indian heritage, they did not know of any tribal affiliation.
For the May 8, 2006 jurisdiction/disposition hearing, DCFS reported that after a number of attempts, the CSW was finally able to contact mother on May 3. Mother stated that she was living at a sober living home and had begun drug testing. At an interview on May 5, mother told the CSW that she left her children with her father and went away with friends. When she left, the house was clean, there was plenty of food. Francisco had diaper rash, which she was treating with ointment, and Regina had a pimple on her leg, which mother squeezed the pus out of, but otherwise the children were fine. Mother also stated that the maternal grandmother was from the San Carlos tribe of Arizona and was attempting to enroll. Mother said that she was not registered with the tribe.
The juvenile court sustained an amended section 300 petition. It declared the children to be dependents of the court. It ordered DCFS to provide reunification services to mother. It ordered mother to participate in counseling, parenting classes, Alcoholics or Narcotics Anonymous, drug counseling, and weekly drug testing. It granted mother monitored visitation. The court also ordered DCFS to report on its progress with ICWA notices.
For the July 24, 2006 hearing, DCFS reported that the CSW had made an appointment with mother to provide mother with bus tokens and discuss her case plan, but mother failed to show up for the appointment. Mother thereafter called several times and left messages, but when the CSW attempted to call back, no one answered at the numbers mother left. When the CSW finally spoke to mother on July 13, mother stated that she had left her drug program, had enrolled in a second program, and had left that program as well. She was looking for another program, but in the meantime she was homeless, was not in any counseling or programs and was not drug testing. Mother made an appointment to see the CSW but she did not show up for it.
Mother had not called or scheduled a visit with Richard, Regina, Reanna and Francisco. She had seen them only once, at a relative’s funeral.
DCFS also reported that it had sent ICWA notices to the Apache Tribe of Oklahoma, Bureau of Indian Affairs, Fort Sill Apache Tribe of Oklahoma, Jicarilla Apache Nation, Mescalero Apache Tribe, San Carlos Tribal Council, Tonto Apache Tribal Council, White Mountain Apache Tribal Council and Yavapai/Apache Nation. It had heard back from the Jicarilla Apache Nation, San Carlos Apache Tribe, Tonto Apache Tribe, White Mountain Apache Tribe and Yavapai/Apache Nation, stating that their records did not show any enrollment in or association with their tribes.
Copies of the responses are attached to the DCFS report and included in the record, but copies of the notices are not.
The juvenile court found this was not an ICWA case. It continued the case for a six month review hearing. (§ 366.21, subd. (e).)
For the October 12, 2006 hearing, DCFS reported that mother had visited Richard, Regina, Reanna and Francisco once, in August. The CSW spoke to mother in August. The CSW provided mother with a bus pass and a list of referrals for drug treatment programs. Mother told the CSW that she wanted to regain custody of the children; she wanted to enroll in an outpatient drug program and to start visiting the children regularly. Mother acknowledged that she had been using drugs and that she had tried to commit suicide in June and been hospitalized. Mother had not contacted the CSW since then.
The CSW visited the children, who were doing well and bonded to Cathy G. and her family. The CSW spoke to Richard, who stated that he did not want to live with mother or visit with her anymore; he wanted to live with Cathy G. The CSW asked Regina about visiting mother, and Regina said she did not want to see mother.
In a supplemental report filed the day of the hearing, the CSW stated that mother entered a 30-day detox program on September 29, 2006. The program included 12-step and group meetings but not random drug testing. At the end of the 30-day program, mother would be placed in or receive referrals for a longer term program. Because mother previously had enrolled in a treatment program shortly before a court hearing then dropped out of the program after the hearing, the CSW was suspicious of mother’s enrollment in this program and concerned that mother would drop out of the program after the hearing. The CSW therefore recommended termination of reunification services.
The juvenile court continued the hearing for a month. It ordered DCFS to interview mother and prepare a supplemental report on her progress in the program.
For the November 14, 2006 hearing, DCFS reported that mother left the 30-day detox program on October 19, eight days before she was scheduled to graduate. Mother had been accepted into a residential drug treatment program. On October 30, the CSW spoke to mother, who said that she had not entered the residential drug treatment program and needed a referral letter to get into the program. The CSW asked why mother left the 30-day program before completing it, and mother stated that she thought she could just enter the residential program. The CSW reiterated her belief that mother just entered programs for court hearings and dropped out after the hearings. Mother lied about her participation in programs, was not serious about becoming sober, and was trying to manipulate the system to obtain more time for reunification. The CSW continued to believe that it was in the children’s best interests to terminate reunification services.
On November 14, 2006, the CSW filed a supplemental report noting that Cathy G. telephoned her to inform her that she had scheduled a monitored visit with mother at a local park. Mother promised to bring a cake to celebrate Regina’s and Reanna’s birthdays. Francisco B. (senior) dropped mother off at the park then hid in the bushes, attempting to get closer to the children, even though he knew he did not have permission to visit them. Cathy G. and the monitor were uncomfortable and feared Francisco B. might try to kidnap one of the children. They ended the visit after 10 minutes. Additionally, mother did not bring the promised cake. The CSW noted that Richard and Regina had told her numerous times they did not want to visit with mother. Richard showed distress after visits with and telephone calls from mother. The CSW recommended that visitation be discontinued.
The juvenile court again continued the hearing. It ordered that visitation occur at the DCFS office.
For the continued hearing, DCFS reported that mother entered a sober living program and began attending an outpatient drug rehabilitation program on November 11, 2006. Mother left the sober living program on December 25, claiming she could not afford to pay for the outpatient drug rehabilitation program and did not qualify for general relief, so she was going to look for a job to pay for the program. The director of the sober living program tried to talk mother into staying in the program while she looked for a job, but mother refused. The CSW spoke to mother, who said a friend had gotten her a job interview, and she should be starting her new job on January 2.
DCFS reported that the CSW supervised a visit between mother and the children on December 27, 2006. Mother brought Christmas presents for the children. Although Cathy G. encouraged Richard to talk to mother, he clung to her and stayed away from mother. Regina “warmed up to mother” after 15 minutes but interacted more with Cathy G. and her siblings. Reanna interacted well with mother. Francisco appeared to be afraid of mother and only let her hold him toward the end of the visit. After the visit, Richard and Regina were upset and anxious over the possibility of being returned to mother.
On January 3, 2007, the juvenile court found visitation with mother was detrimental to the children and terminated visitation. It further found reasonable services had been provided but it was not likely the children could be returned to mother’s custody within six months. It therefore terminated reunification services. It set a section 366.26 permanent plan hearing for May 2, 2007.
The juvenile court also ordered visitation for Francisco B. (senior). On March 8, 2007, DCFS filed a section 388 petition seeking modification of this order. It explained that the CSW had told Francisco B. that visitation was to take place at a neutral location and that mother was not allowed visitation. However, on February 2, Francisco B. and mother showed up unannounced and without permission at Cathy G.’s house. The CSW then spoke to Francisco B. and said she would arrange a visit for March. However, on February 23, someone wearing a black ski mask tried to break into Cathy G.’s house. Cathy G. related that the same thing had happened in November 2006, just before the visit at which Francisco B. was found hiding in the bushes at the park. On February 24, mother telephoned and said she was coming over with gifts for the children. Mother arrived with Francisco B. Cathy G. would not let them in the house and reminded them of the court orders. Mother and Francisco B. just smirked.
On March 13, 2007, the juvenile court set a hearing on DCFS’s section 388 petition. On April 9, the court granted the petition and suspended Francisco B.’s visitation.
Mother filed a section 388 petition on April 9. She sought to restore her visitation, claiming that she was complying with the court’s orders and should receive visitation. She explained the change would be in the children’s best interests because they were being punished for her past mistakes and they should be able to visit with her regardless of her disagreements with Cathy G.
The juvenile court denied the petition. It explained that the petition set forth no new evidence or a change of circumstances justifying the requested change of court order.
On June 27, 2007, DCFS reported that mother met with the CSW on June 5. Since November 2006, mother had attended 23 sessions of the outpatient drug rehabilitation program and three counseling sessions. Mother completed a parenting class. She had moved to a women’s home on February 6, but it was not a sober living home and did not do drug testing.
The CSW asked mother why she had not started to comply with her case plan earlier. She said she was not ready to become sober earlier. She claimed she had ceased all contact with Francisco B. (senior). She wanted to regain custody of the children.
DCFS reported that Cathy G. and her husband wanted to adopt the children and were capable of caring for them. Richard and Regina both stated that they wanted to stay with Cathy G. “forever” and did not want to live with mother.
Reanna and Francisco were still too young to make statements.
On June 27, 2007, the juvenile court terminated mother’s parental rights over the children and ordered adoption as the children’s permanent plan. It found no reasonable likelihood that the children could be returned to mother’s custody in the next six months.
DISCUSSION
A. Review of the Order Terminating Reunification Services and Visitation
Mother contends she may seek review of the January 3, 2007 order terminating visitation and setting a section 366.26 hearing, normally reviewable only by petition for extraordinary writ (§ 366.26, subd. (l); Cal. Rules of Court, rules 8.450, 8.452), in that the juvenile court failed to give her timely notice of her right to file a writ petition. DCFS acknowledges that the record does not show that mother received notice of her right to file a writ petition, and that ordinarily would allow her to challenge the January 3 order in her appeal from the subsequent order terminating her parental rights (see In re Cathina W. (1998) 68 Cal.App.4th 716, 725-726).
DCFS notes, however, that after the juvenile court issued the January 3 order, mother filed a section 388 petition, which the court denied. DCFS asserts that mother did not file a timely notice of appeal from the order denying her section 388 petition, and she was required to challenge the January 3 order on appeal from the next appealable order—the order denying her section 388 petition. Her failure to do so waives her right to challenge the January 3 order.
An appeal from a juvenile court order must be filed within 60 days after the rendition of the order. (Cal. Rules of Court, rule 8.400(d).) The court denied mother’s section 300 petition on April 10, 2007. Mother did not file a notice of appeal until June 27, more than 60 days later. Her notice of appeal therefore is untimely as to the order denying her section 388 petition.
Assuming arguendo that mother’s failure to file a timely notice of appeal from the order denying her section 388 petition does not preclude review of the January 3 order on appeal from the order terminating parental rights, we conclude the juvenile court did not abuse its discretion in terminating mother’s visitation.
As mother argues, “[m]eaningful visitation is pivotal to the parent-child relationship, even after reunification services are terminated. [Citation.] Under section 366.26, subdivision (c)(1)(A), the Legislature has provided a means by which even a parent to whose custody a child cannot currently be returned has a final chance to avoid termination of parental rights if she can show she has maintained regular contact and visitation with her child, and the child would benefit from continuing the relationship. Obviously, the only way a parent has any hope of satisfying this statutory exception is if she maintains regular contact with her child.” (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1504-1505.)
We review the court’s visitation order for abuse of discretion. (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465.) Discretion is abused if the court’s order is unsupported by substantial evidence. (In re Mark L. (2001) 94 Cal.App.4th 573, 581.)
Here, the children were detained on February 9, 2006. Between the detention and the court’s termination of visitation, mother made only two attempts at visitation, on November 14 and December 27, 2006. The November 14 visit was cut short because mother came with Francisco B. (senior), who hid in the bushes at the park and attempted to get close to the children, causing Cathy G. to fear for the children’s safety.
At the December 27 visit, only Reanna interacted well with mother. Richard clung to Cathy G. and stayed away from mother. Regina “warmed up to mother” after 15 minutes but interacted more with Cathy G. and her siblings. Francisco appeared to be afraid of mother and only let her hold him toward the end of the visit. After the visit, Richard and Regina were upset and anxious over the possibility of being returned to mother.
It thus is clear that, at the time the juvenile court terminated visitation, mother had not maintained regular contact and visitation with the children. There was no evidence that the children would benefit from maintaining a relationship with mother as opposed to obtaining a permanent and stable home with Cathy G., making the section 366.26, subdivision (c)(1)(A), exception to termination of parental rights applicable. In other words, it was mother’s failure to make any effort to visit regularly with the children for almost a year, rather than the order terminating visitation, that prevented her from establishing the exception to termination of parental rights.
Under section 366.22, subdivision (a), a juvenile court may terminate visitation when its sets a permanent plan hearing if it finds continued visitation would be detrimental to the child. (In re Manolito L. (2001) 90 Cal.App.4th 753, 759.) Detriment includes harm to the child’s emotional well-being. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008.) In determining whether visitation would be detrimental, the court may consider the child’s wishes. (In re S.H. (2003) 111 Cal.App.4th 310, 317.)
There is substantial evidence to support a finding of detriment and termination of visitation. The two older children, Richard and Regina, had told the CSW that they did not want to be returned to mother or even visit with her. They were clearly upset and anxious after visitation, afraid of the possibility that they would be returned to mother’s custody. Continuing visitation would add to the children’s anxiety and insecurity and accomplish nothing, since mother’s failure to maintain contact with the children for almost a year precluded her from establishing that her relationship with the children was such that the children would benefit from continuing it rather than being adopted. Accordingly, we find no abuse of discretion in the court’s termination of visitation.
B. Compliance with ICWA
ICWA “protects the interests of Indian children and promotes the stability and security of Indian tribes and families. Minimum federal standards, both substantive and procedural, effectuating these policies are set forth in the ICWA.” (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) When an Indian child is involved in a dependency proceeding, “the party seeking termination of parental rights must, in relevant part, notify the Indian child’s tribe of the pending proceedings and its right to intervene.” (Ibid.) This notice “enables the tribe to investigate and determine whether the minor is an Indian child” and gives the tribe the opportunity to intervene. (Id. at p. 470.) Failure to provide the necessary notice requires invalidation of actions taken in violation of ICWA. (Id. at p. 472; see Cal. Rules of Court, rule 5.664.)
Here, while DCFS stated in a report to the juvenile court that it had sent out numerous ICWA notices, copies of the notices are not included in the record. All that is included are responses from several of the noticed tribes stating that their records did not show any enrollment in or association with their tribes for the children, mother or the maternal grandmother. Mother contends that because no copies of the notices are included in the record, it is impossible to determine whether DCFS complied with ICWA’s notice requirements. Therefore, she claims the order terminating mother’s parental rights must be reversed and the case remanded for compliance with ICWA. (In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740.)
While there are documents missing from the record, the critical document is in the record. That is the letter from the San Carlos Apache Tribe, stating that it had no record of the family’s enrollment in or association with the tribe. Mother stated that this was the tribe in which she was eligible for membership. This tribe clearly received notice and declined to intervene in the proceedings.
As noted in In re Marinna J., supra, 90 Cal.App.4th at page 738, ICWA defines the specific tribes to which it applies. It “requires notice to the tribe if it is identified and may be the child’s affiliation.” (Ibid.) Notification of additional tribes and the BIA is required only where a specific tribal identification is not provided. (See id. at pp. 739-740, fn. 4.) Inasmuch as the record shows notice to the tribe identified as possibly that with which the children were affiliated, the record shows compliance with ICWA. The juvenile court’s finding that ICWA does not apply is supported by the record.
DISPOSITION
The appeal is dismissed as to the order denying mother’s section 388 petition. The order terminating parental rights is affirmed.
We concur: VOGEL, Acting P. J. ROTHSCHILD, J.