Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. 63673 Stanley Genser, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.).
Karen B. Stalter, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, R. Keith Davis, Deputy County Counsel, for Plaintiff and Respondent.
BOREN, P.J.
N.C. (mother) appeals following the order terminating parental rights as to two of her children, R.S. (born May 2001) and J.S. (born December 2002). Contrary to mother’s contentions: (1) the notice requirement of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; hereinafter, ICWA) was satisfied because the requested return receipt of the notice to the tribes (25 U.S.C. § 1912, subd (a); Welf. & Inst. Code, § 224.2, subds. (a)(1), (c)) was ultimately received by the court; and (2) the juvenile court did not abuse its broad discretion when it denied mother’s section 388 petition after a full evidentiary hearing.
A third child, H. A. (born July 2004), is not a subject of this appeal.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL SUMMARY
As the result of a section 300 dependency petition filed on June 12, 2006, the children, R.S., then age five and J.S., then age three, were removed from mother’s custody. The dependency petition alleged the children’s exposure to mother’s violent confrontation with another person, mother’s history of domestic violence with the father of the children’s stepsister, and mother’s abuse of alcohol and marijuana.
At the detention hearing, mother informed the juvenile court that there was Chippewa Indian ancestry in her family. The court ordered the Department of Children and Family Services (DCFS) to send out appropriate notices. DCFS then complied with ICWA by sending notices of the children’s possible Indian heritage to the 25 Chippewa tribes, the Bureau of Indian Affairs, and the Department of the Interior. The Department of the Interior submitted a copy of the notice that it sent to the tribes, as well as copies of letters that it received for two of the tribes, but it did not promptly submit to the juvenile court proof of certified mailing or copies of any signed return receipts from the tribes.
However, after mother filed her opening brief in this appeal, on June 16, 2008, the juvenile court held a hearing at which time it received the certified mail receipts and response letters. As indicated in the clerk’s minute order, of which we have previously taken judicial notice (Code Civ. Proc., § 909; see In re Josiah Z. (2005) 36 Cal.4th 664, 676), the juvenile court found that notice of proceedings had been given as required by law. Specifically, the court found that “letters and receipts regarding I.C.W.A. have been received and that I.C.W.A. does not apply,” and that the children are “not [ ] member[s] of any American Indian tribe.”
Prior to this belated ICWA finding, on August 2, 2006, the dependency petition was resolved by a mediated agreement with mother pleading no contest to an amended petition. The amended petition specified as follows: (1) mother has a history of periodically demonstrating compulsive and sometimes assaultive behavior which has periodically interfered with her ability to provide appropriate care and supervision of the three children and placed the children at risk of physical and emotional harm; (2) on June 2, 2006, mother and the female companion of H.A.’s father (D.A.) had an altercation in the presence of the three children resulting in police intervention and mother’s inappropriate behavior, which placed the children at risk of serious physical and emotional harm; and (3) mother, her three children, and D.A. have a history of domestic violence and altercations, with such conduct by mother endangering the children’s physical and emotional health and safety.
The court ordered family reunification services for mother while the children remained placed with a relative caretaker. The court ordered mother to enroll in individual counseling with a licensed therapist to deal with issues of anger management, domestic violence, impulse control, and her use of alcohol. The court also ordered mother to comply with the orders of the criminal court, including completion of an alcohol program and refraining from alcohol in the presence of the children, to test for alcohol, and to attend Parents Beyond Conflict with D.A. Although mother was willing to comply with the case plan, she continued to deny the allegations, denied that her children were affected by her actions, and wanted the children returned to her care.
On August 12, 2006, mother was arrested for being drunk in public. In the ensuing several months, mother had visitation with the children (with the paternal grandmother monitoring), and the visits were usually interactive and appropriate. However, mother canceled a few of the visits with the children, missed four of eight individual counseling sessions, initially consulted with a counselor who was not licensed, tested positive for marijuana and missed two drug tests. Meanwhile, the children were doing well, continued with their individual therapy, and were happy in the home of their caretakers, domestic partners Ms. A. and Ms. K.
DCFS recommended six more months of family reunification services, and mother requested a contested hearing. After the contested hearing in February of 2007, the court found mother was not in compliance with the case plan, and that her visits had not been consistent and regular. The court continued reunification services and monitored visitation, with DCFS having discretion to liberalize visits if appropriate. In July of 2007, DCFS reported that mother had not been in individual therapy for months, and she had missed 16 out of 25 drug tests and had tested positive five times. Mother had enrolled in a substance abuse program, but by June she was out of the program. The children enjoyed spending time with mother, but she struggled to attend scheduled visits with the children and was often late or did not come at all.
On July 25, 2007, mother was arrested for driving a stolen car. Several days later, she enrolled in a new residential program. But the court found she had enrolled after the date of the 12-month review hearing, and that there was no basis to make any finding of substantial probability that she would regain custody of the children if the court extended reunification services, as mother had requested. The court remarked that the caretakers had cared for the children, acted in place of mother, and were interested in providing a permanent plan for them. The court found mother was not in compliance with the reunification plan and terminated reunification services.
In November of 2007, at a hearing to select a permanent, out-of-home plan for the children pursuant to section 366.26, DCFS reported that the children continued to do well in the caretakers’ home. Mother was still inconsistent in her visitation. The caretakers are related to the children and have loved them since birth. They were committed to providing the children permanency through adoption, and an adoptive home study was approved. The matter was continued for a contested hearing and to give proper notice to the father of the two boys.
On February 28, 2008, the contested section 366.26 hearing ensued with the court hearing evidence concurrently on mother’s section 388 petition, which was filed on the date of the hearing. The section 388 petition alleged that mother had visited the children on a regular basis and had complied with all court orders, including completing a substance abuse rehabilitation program with random drug testing (at House of Hope), attending 24 parenting classes, and completing a Within My Reach relationship enhancement program. Mother’s section 388 petition sought to change the placement order to “home of parent,” or to reinstate reunification services, or to establish unmonitored visits, or to any other order consistent with return of the children to mother. Mother alleged that such a change would be better for the children because they “love their mother and would benefit from reuniting with her.”
At the combined sections 366.26 and 388 hearing, mother testified that she completed a six-month residential program that provided anger management, parenting classes, relapse prevention, and relationship enhancement. She also participated in individual counseling and had a sponsor and a support group. When mother described some of the courses at the program, the court remarked, “I’m more interested in what would be in the best interest of the children.”
Mother then testified that she had weekly monitored visits at the DCFS office, where she played with the children and they talked to her about school. On occasion, the children said they wanted to live with her and that they loved her. Mother did not attend school functions, and thought it best not to do so because at the time she had been drinking. Mother asserted it was in the children’s best interest to reopen reunification because she is their mother. She believed the children deserved to be with her and that she could take care of them.
Under cross-examination by counsel for the caretakers, mother acknowledged that she had never spoken to the children’s therapists. She was not aware of what the therapists recommended on the issue of the children returning to her custody. When questioned by counsel for the children, mother indicated that the monitors for her visitation changed over time because “we had conflicts.”
The court opted not to hear from the children because it deemed them too young to provide meaningful input. The court noted that, “There’s a high standard that mother has to meet and I haven’t heard any evidence to support that it would be in the best interest of the children to grant mother additional reunification services. [¶] She made a statement [that] the kids deserve to be with their mother; that’s not the standard this court uses. The kids deserve to be in the best home possible that will provide permanency, stability, taking into consideration the history and relationships they form now. And mother has not occupied a parental role for these children in almost two years and the role that she played when she did have custody was not a very good one for whatever reason.”
The prospective adoptive mother, Ms. K., also testified at the hearing. She monitored mother’s visits and believed mother was under the influence during visits before she enrolled in the program (House of Hope). For that reason, the visits were moved to the DCFS office. She acknowledged that the children loved their mother, but she was opposed to more reunification services for mother because mother could not meet their needs in view of what was occurring in her life at that time, including her current pregnancy. Ms. K. confirmed that mother had a history of inconsistent visits, no-shows, and cancellations. Although the children were happy to see their mother at scheduled visits, they never reported wanting to see her. Ms. K. was committed to maintaining a relationship between mother and the children, because Ms. K. had known mother since mother was five years old, and Ms. K.’s own children and R.S. and J.S. are cousins and part of a bonded family unit.
At the conclusion of the hearing, the court observed, “I agree [that] to the extent that there is a substantial change in circumstances that mother is working on sobriety and is now demonstrating sobriety, although she hasn’t fully completed the case plan.” Regarding the children’s best interest, the court stated, “There’s been no professional evidence submitted as the best interest of the children. Mother’s not in a position to testify as to the best interest of the children since her contact with the children over the last two years [has] been monitored.” And, “She’s never assumed, since the case came to the system, any kind of parental role in the children’s life.” Further, “Mother has been unable to articulate a reason why the children should be returned to her other than they deserve to be with their mother. . . . [I]f I were to grant mother’s [section] 388 [petition] it would create instability, uncertainty and anxiety.”
The court denied mother’s section 388 petition and terminated parental rights. The court then ordered the parties to work out a postadoption visitation plan. The court also checked the box on mother’s section 388 petition form indicating that the request was denied because the petition “does not state new evidence or a change of circumstances.”
This appeal ensued.
DISCUSSION
I. The ICWA notice requirement was satisfied.
Mother contends that the juvenile court erred in terminating parental rights as to R.S. and J.S. absent proof of compliance with the notice requirements of ICWA. Specifically, mother contends that the notice to the Indian entities was deficient because the Department of the Interior did not file with the juvenile court evidence of mailing by registered or certified mail with return receipt requested.
The purpose of ICWA is to promote the stability of Indian tribes and families by ensuring that adoptive placements are made preferentially with members of the Indian child’s extended family, other member of the same tribe, or other Indian families. (25 U.S.C. § 1901 et seq.; Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30, 36-37.) To effectuate this goal, ICWA sets forth various procedural safeguards, including a notice requirement. In a state court dependency proceeding, where the court knows or has reason to know that an Indian child is involved, the party seeking foster care placement or termination of parental rights shall notify the tribe “by registered mail with return receipt requested” of the pending proceedings and of their right of intervention. (25 U.S.C. § 1912, subd. (a); see also §§ 224.2, subd. (b), 224.3, subd. (a).) California law permits DCFS to provide notice by either registered or certified mail with return receipt requested. (§ 224.2, subd. (a)(1).)
In the present case, on October 16, 2006, when the juvenile court made its ICWA finding DCFS had provided the court with a certificate of mailing, which certified that notices had been mailed by registered or certified mail, return receipt requested. Also, DCFS submitted two tribal response letters. However, the record did not indicate that the court had received any certified or registered mail receipts.
Nonetheless, this deficiency was cured on June 16, 2008. On that date, the juvenile court convened a hearing, read and considered the DCFS report of that date, and found that letters and receipts regarding ICWA had been received, and that ICWA did not apply because the children had no American Indian tribal ancestry.
Accordingly, on June 16, 2008, the juvenile court made the requisite ICWA finding with the belatedly acknowledged mail receipts. Thus, the October 16, 2006, error regarding the certified or registered mail receipts is a moot point because no effective relief can be granted in this appeal. (See In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1316.)
II. The juvenile court did not abuse its broad discretion when it denied mother’s section 388 petition.
A parent may petition the juvenile court for a hearing to “change, modify, or set aside any order of court previously made” upon the grounds of “change of circumstance or new evidence.” (§ 388.) The burden of showing that the requested modification should be granted is on the parent. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) When, as in the present case, a section 388 petition is filed after reunification services have been terminated and the section 366.26 selection and implementation hearing has been set, the focus of the proceedings shifts from the parent’s interest in the care, custody and companionship of the child, to the child’s best interests and need for permanency and stability. (Ibid.)
Under section 388, “the change of circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged prior order.” (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485.) The parent must show both that (1) there is a change of circumstance or new evidence, and (2) the proposed modification is in the child’s best interests. (§ 388; see In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
Whether a previous order should be modified and whether a change would be in the child’s best interests are questions to be answered within the sound discretion of the juvenile court. (In Stephanie M., supra, 7 Cal.4th at p. 318.) The juvenile court’s decision on a section 388 petition is reviewed on appeal for abuse of discretion. (Id. at pp. 318-319.)
DCFS contends that mother showed a changed or changing circumstances only as to the issue of her sobriety, not as to problems related to altercations and domestic violence. DCFS also asserts that the juvenile court made only a qualified and limited finding of changed or changing circumstances, and it did not concede that mother had met her burden to show significantly changed circumstances.
Apart from whether mother demonstrated changed circumstances only as to her sobriety and not as to problems related to compulsiveness and domestic violence, it is apparent that mother has failed to show that the modification requested would be in the children’s best interests. “It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) An analysis of the child’s best interests under section 388 involves consideration of (1) the seriousness and continuing nature of the problem which led to the dependency, (2) the strength of the child’s bond to the parent and to the present caretakers, and (3) the degree to which the problem may be easily removed or ameliorated and the extent to which that has occurred. (Id. at pp. 530-532.)
In the present case, mother initially minimized the allegations, and even denied that her children were affected by her actions. Prior to the 12-month review hearing, mother was unable or unwilling to comply with the case plan. She now belatedly acknowledges on appeal the seriousness of her problems.
The children were four and five when they were placed in foster care and have lived with their caretakers since June of 2006. Even prior to involvement by DCFS, the children lived on repeated occasions with the caretakers. As early as March of 2006, they began providing the children with daily care--approximately two years prior to the juvenile court’s termination of parental rights. The children are now approximately five and seven years of age and have thrived emotionally and educationally while in the care of the caretakers. The caretakers have tended to medical needs (i.e., extensive dental work for both children), schooling, private tutoring, and therapy when needed. The children lived with the caretakers the entire time they were detained from mother. In other words, the caretakers provided for all of the daily emotional, psychological and physical needs of the children.
Mother, on the other hand, had a history of inconsistent visits with the children, no-shows, and cancellations. Although the children love their mother and were happy to see her at scheduled visits, when she was not present they never stated they wanted to see her.
Also, Ms. K. stated she is willing to maintain a relationship between mother and the children, noting that mother is the cousin of Ms. K.’s partner and that Ms. K. has known mother since mother was five years old. The children are part of an extended family unit with cousins viewing themselves as siblings.
Moreover, although mother addressed her substance abuse problem, she did not show that she had adequately addressed significant domestic violence issues, including violence in front of her children. Between the time of the termination of reunification services and the combined sections 366.26 and 388 hearings, mother had not shown a complete transformation or substantial compliance with her case plan. The juvenile court aptly found that the proposed change sought by mother would create instability, uncertainty and anxiety for the children and noted that she has “never assumed, since the case came to the system, any kind of parental role in the children’s life.”
Accordingly, the court did not abuse its broad discretion in denying the section 388 petition.
DISPOSITION
The order under review is affirmed.
We concur: ASHMANN-GERST, J. CHAVEZ, J.