Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County No. 06CEJ300199. Dennis Caeton, Judge and Jamileh Schwartzbart, Commissioner.
Before Wiseman, Acting P.J., Levy, J., and Kane, J.
Linda K. Harvie, under appointment by the Court of Appeal, for Defendants and Appellants.
Janelle E. Kelley, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
THE COURT[*]
OPINION
INTRODUCTION
Appellant, A.L., appeals from the juvenile court’s order denying her petition pursuant to Welfare and Institutions Code section 388 to modify the court’s prior orders. Appellant also contends the children’s continuity and stability would not have been affected if the court granted her motion. Appellant contends, for the first time on appeal, that the department failed to notify all Indian tribes pursuant to the Indian Child Welfare Act (ICWA).
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
25 U.S.C. § 1901 et seq.
FACTS AND PROCEEDINGS
Earlier Proceedings
On December 1, 2006, the Fresno County Department of Children and Family Services (department) filed a petition pursuant to section 300, subdivision (b) alleging that appellant’s two children, R.V. (then nearly four years old) and Z.A. (then nearly two years old) were at risk when appellant left them unsupervised for five hours while she attempted to purchase methamphetamine. The petition alleged appellant had received substance abuse treatment in the past offered by the department and that she continued to use controlled substances. There had been three prior referrals of appellant to the department. Furthermore, Z.A. tested positive for the presence of cocaine at birth.
The children were ordered detained on December 5, 2006. A mediation agreement stated appellant wanted the maternal grandmother to be evaluated for placement. Appellant admitted an amended allegation, which was found true by the court. Because the department failed to send ICWA notices, the dispositional hearing was continued twice. On March 5, 2007, the court authorized placement of the children with the maternal grandmother.
The amendments to the allegation were that appellant left her children unattended for two hours and that she had received treatment services from Cal-Works rather than from the department.
Notice pursuant to the ICWA was given to the Bureau of Indian Affairs, the Colorado River Tribal Council, and the Navajo Nation. Both tribes responded by letter that the children were not eligible for enrollment in their tribes. Appellant contends, and respondent concedes, that the department failed to include a third federally recognized Navajo tribe, the Ramah Navajo School Board.
The social worker’s disposition report was filed on May 21, 2007. The social worker reported appellant was employed and had adequate housing. She also had support from her friends and extended family. Appellant, however, had limited insight into her family’s needs, continued to abuse drugs and continued to have positive drug tests. Appellant stated she needed substance abuse treatment. Appellant had supervised visits with her children, which were going well. Appellant interacted appropriately with the children.
Appellant had a substance abuse evaluation in December 2006. The evaluator recommended less intensive outpatient substance abuse treatment for appellant. Throughout December 2006, appellant tested positive for cocaine. Between the beginning of January 2007 to the 18th of January 2007, appellant tested positive for PCP. Appellant’s mental health was also being evaluated by a therapist. The substance abuse evaluator noted appellant had been prescribed medication for a psychological/emotional problem in the past. The evaluator believed a mental health assessment was needed and urged appellant to consider taking her medication again.
On May 21, 2007, the juvenile court declared the minors dependents and ordered a family reunification plan for appellant. The court tentatively ruled the ICWA did not apply. Without objection, the parties submitted the matter and the court found the ICWA did not apply. Appellant was ordered to follow recommended treatment for substance abuse, submit to random testing for drug use, have a mental health evaluation, and participate in domestic violence classes.
The social worker’s status review report was filed September 11, 2007. Appellant successfully completed a parenting class in March 2007. Appellant had completed her primary substance abuse treatment and was participating in an aftercare program. Appellant was referred to a therapist and had been consistently attending counseling sessions until May 25, 2007. Appellant had supervised visitation with her children twice a week. The visits were going well. The social worker found appellant to be compliant and cooperative in completing services and components of her case plan. The social worker predicted appellant would complete all of her services in order to reunify with her children.
Between January 26, 2007, and June 7, 2007, appellant was drug tested 26 times and had one positive test for cocaine on April 25, 2007. She failed to be tested on June 15, 2007.
An addendum report was filed by the department on September 11, 2007, requesting that reunification services be terminated as to both parents. Appellant met with her social worker and a substance abuse specialist on July 9, 2007, because recently appellant had not been in compliance with her plan. Appellant was told she needed to complete a 90-day program. Because of her job, appellant explained she could only attend a 30-day program. Appellant was told she needed to increase the frequency of her random testing.
Appellant told the social worker, on July 12, 2007, that she might be able to take a leave of absence from her job to attend a 90-day treatment program but would need help in paying her rent. Social work supervisors told the social worker that there were no funds to assist appellant with her rent. On July 23, 2007, appellant told the social worker she was not granted a leave of absence from her job. Appellant had not been attending treatment for a program she was referred to at Universal Health. There was only one other treatment program available for appellant, but it conflicted with her work schedule. Appellant gave no explanation as to why she was not drug testing. The social worker recommended that reunification services to appellant be terminated.
A representative of Universal Health confirmed that appellant attended one session, despite failing to attend her single intake appointment scheduled for July 10, 2007, but failed to return since that time. Appellant was scheduled to resume therapy in July 2007, but missed scheduled sessions. Records from Global Drug Testing service showed appellant consistently failed to show up for drug testing from June 15, 2007, through July 18, 2007, missing seven testing sessions. On July 26, 2007, appellant tested positive for cocaine. In August 2007, appellant failed to show up for drug testing on six occasions. Appellant had two negative drug tests in early September 2007.
At the review hearing on September 11, 2007, appellant submitted to the recommendations, including that reunification services be terminated. The court terminated appellant’s reunification services.
Section 366.26 Hearing and Section 388 Petition
At the section 366.26 hearing on January 14, 2008, appellant stated she wished to contest the department’s recommendation of guardianship and termination of parental rights. The hearing was continued.
In February 2008, the court received a section 388 petition from appellant seeking to modify the court’s prior orders to have reunification services reinstated. Appellant stated she completed an intensive drug treatment program and a parenting education program. Appellant stated she was in therapy, taking medication, and was tested regularly for drugs and had no positive test since 2007. Appellant further stated she was regularly attending AA/NA meetings two to three times a week, was employed full-time, and was attending a community college working towards her AA degree. Appellant alleged that she had a close bond with her children, established a clean and sober lifestyle, and could provide stability for her children.
The department filed an addendum report in response to appellant’s section 388 petition stating it would be in the best interests of the children to remain in guardianship with relatives (a grandmother and adult sister). The children had been in this placement since March 20, 2007, they were doing well and had a strong bond with their care providers. The social worker noted appellant maintained regular visitation with the children and that the children would benefit from regular visitation with appellant. The social worker did not recommend a change in the court’s prior orders. Since failing to show for a drug test in late August 2007, appellant had negative test results through February 20, 2008.
The social worker’s report for the section 366.26 hearing was filed on March 10, 2008. The grandmother and older sister were committed and suitable to provide guardianship to both children. The children continued to do well under their care and supervision. The sister reported that she considered herself to be the sole care provider to the children since they were born. The social worker thought it would be in the best interests of both children for their current care providers to provide for them through guardianship.
The section 366.26 hearing and hearing on appellant’s section 388 petition were heard on March 3, 2008. Appellant testified that she completed an intensive outpatient program and was in aftercare with four sessions to complete. Appellant was seeing a physician for “medication therapy.” Appellant took these medications for depression and anxiety. Appellant was receiving group therapy and individual therapy. Appellant was testing negative for drugs and was attending AA/NA meetings. Appellant explained that her relapse in July 2007 changed her life because she had new friends, went to the library, attended meetings, and took care of herself.
Appellant was renting a room from a friend, had a full-time job, and was attending junior college. Appellant saw her children for two hours once a week. The children call her mom, mommy, or momma. Appellant has a close bond with her children and they are affectionate toward her.
On cross-examination, appellant explained her drug of choice was crack cocaine and her second drug of choice was PCP. Appellant would drink alcohol socially. For appellant, triggers for using drugs included bad relationships, having the wrong friends, and disappointments such as not getting a promotion. Appellant acknowledged her life had been unmanageable but that she was still in sobriety. Appellant was in the fourth step of her 12-step program and still did not have a sponsor. Appellant said she did not start using drugs until 2002 or 2003. Appellant said her sobriety date was August 18, 2007.
Appellant had attended four substance abuse programs. The first program was the Spirit of Woman program in 2005, an inpatient program. Appellant attended the program for five months and left, failing to successfully complete that program. The second program in 2005 was Paths, an outpatient program. Appellant attended, and completed, the 90-day inpatient CAP program in 2006. Appellant attended the outpatient, intensive Fresno New Connections program after relapsing. Appellant relapsed in April and in July 2007 she tested positive for cocaine. The hearing was continued.
On March 10, 2008, the juvenile court noted appellant and Z.A. tested positive for cocaine at Z.A.’s birth, appellant began her substance abuse in 2003, and appellant had 16 months of sobriety after starting to use drugs. Since her last relapse, appellant had about six months of sobriety. The court found appellant had been in a number of substance abuse programs, two of which she failed to complete. The court found appellant had a number of relapses and her drugs of choice were crack cocaine and PCP.
The court observed that appellant was in an aftercare substance abuse program, was taking psychiatric medications, and obtaining mental health treatment. Appellant finished parenting training before reunification services were terminated. The primary change the court saw in appellant was her use of psychiatric medications. The court found appellant’s circumstances were changing, but not changed. Appellant was in a five-year cycle of drug use, treatment, and relapse but it was difficult for the court to find that six months of sobriety constituted changed circumstances. Appellant was in the fourth step of a 12-step program. The court found appellant had not met her burden of showing changed, rather than changing, circumstances.
The court further found the requested modifications of its prior orders would not be in the best interests of the children. The court found appellant had not met her burden to show changed circumstances which support the return of family reunification services and it denied appellant’s petition for the return of those services.
As to the issues concerning the section 366.26 hearing, the court found the relative caring for the children was unwilling or unable to adopt them and that removal of the children from their guardian would be detrimental to the emotional well-being of the children. The court found legal guardianship was the appropriate permanent plan for the children. The court found continued dependency was necessary and that the department had made reasonable efforts to place the children in a safe home and to finalize their permanent placement. The grandmother and adult sister were appointed legal guardians of the children. The court permitted appellant unsupervised visits with the consent of the minor’s counsel.
APPELLANT’S SECTION 388 PETITION
Appellant argues the court abused its discretion by denying her section 388 petition. We disagree.
It was appellant’s burden of proof to show there was new evidence or there were changed circumstances that made a change of the children’s placement in their best interest. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) If the petition presents any evidence that a hearing would promote the best interests of the children, the court will order the hearing. (In re Jasmon O. (1994) 8 Cal.4th 398, 415 (Jasmon O.).) The petition must be liberally construed in favor of its sufficiency. (Ibid.)
“The references in In re Marilyn H., supra, 5 Cal.4th at page 310, to a ‘prima facie’ showing is not an invitation to section 388 petitioners to play ‘hide the ball’ in pleading changed circumstances or new evidence. A ‘prima facie’ showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 719, fn. 6.) If a petitioner could get by with general, conclusory allegations, there would be no need for an initial determination by the juvenile court about whether an evidentiary hearing was warranted. In such circumstances, the decision to grant a hearing on a section 388 petition would be nothing more than a pointless formality.” (In re Edward H. (1996) 43 Cal.App.4th 584, 593.)
Likewise, the mandate for liberal construction of a section 388 petition does not entitle a petitioner to avoid describing the changed circumstances or new evidence. Section 388 and the pertinent rule of court (Cal. Rules of Court, rule 5.570 [formerly rule 1432(a)(6)]) require the petition allege changed circumstance or new evidence that requires changing a prior order. (Jasmon O., supra, 8 Cal.4th at p. 415.)
We agree with the juvenile court’s ruling that appellant failed to sustain her burden for a section 388 petition. Since her last relapse, appellant had been sober about six months. She was only in the fourth step of her 12-step program and, at the time of the hearing, had not yet found a sponsor. Appellant had been in multiple treatment programs and still relapsed. She admitted having bad personal relationships and choosing the wrong friends, which were triggers for her use of drugs. Although appellant was getting mental health treatment, including medications, she was still in the early stages of sobriety. Appellant showed changing circumstances, but not changed circumstances.
The parent bears the burden of showing in a section 388 petition both a change of circumstance and that the proposed change is in the best interests of the child. A petition only alleging changing circumstances, which would lead to a delay in the selection of a permanent home, to see if a parent could eventually reunify with a child at some future point, does not promote stability for the child or the child’s best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
To understand the element of best interests in the context of a section 388 motion brought, as in this case, shortly before and during the section 366.26 hearing, we look to the Supreme Court’s decision in Stephanie M. At this point in the proceedings, a parent’s interest in the care, custody, and companionship of his or her children is no longer paramount. Rather, the focus shifts once reunification efforts end to the children’s needs for permanency and stability; there is in fact a rebuttable presumption that continued out-of-home care is in the best interests of the child. (Stephanie M., supra, 7 Cal.4th at p. 317.) A court conducting a modification hearing at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child. (Ibid.) Notably, both here and in the juvenile court, appellant ignores the children’s need for permanence and stability in advocating her position. Neither the juvenile nor this court, however, may do so.
ICWA
For the first time in this appeal, appellant challenges the court’s finding on May 21, 2007, that the ICWA did not apply. Appellant criticizes the department for failing to notice the Ramah Navajo School Board, a federally recognized tribe, pursuant to the ICWA. Respondent contends the court’s May 21, 2007, dispositional finding and order concerning the ICWA have long been final and appellant cannot complain at this late stage that the ICWA has been violated. We reject Mother’s arguments as untimely.
Respondent concedes the Ramah Navajo School Board, a federally recognized Indian Tribe, was not notified pursuant to the ICWA. Respondent also argues, apparently in the alternative to its forfeiture argument, that the case can be conditionally reversed and remanded. Because we follow the long established precedent of this court, we decline respondent’s invitation to remand this case for further action pursuant to the ICWA.
In In re Pedro N. (1995) 35 Cal.App.4th 183, 185, 189 (Pedro N.), we held that a parent who fails to timely challenge a juvenile court’s action regarding ICWA is foreclosed from raising ICWA notice issues in a subsequent appeal once the court’s ruling is final. In this case, the time to raise such issues was at the dispositional phase, after the May 21, 2007, disposition hearing, not now. The juvenile court’s rulings at the disposition hearing were appealable. (Pedro N., supra, 35 Cal.App.4th at p. 189.) In Pedro N., as in the instant action, the juvenile court’s ICWA finding was made at the disposition hearing; however, the parent waited, as did appellant, to challenge the adequacy of the ICWA notice. The challenge was brought much later in an appeal from the ruling in the section 366.26 hearing. Appellant appeared at the disposition hearing represented by counsel. The court indicated that it had read and considered the department’s reports. Appellant did not challenge the department’s assertion or the court’s tentative ruling and then its explicit finding that the ICWA was inapplicable. The juvenile court’s dispositional findings and orders on May 21, 2007, are final and no longer subject to attack by appellant. (Pedro N., supra, 35 Cal.App.4th at pp. 185, 189-191.)
To the extent appellant cites other decisions, such as In re Marinna J. (2001) 90 Cal.App.4th 731 and In re Nikki R. (2003) 106 Cal.App.4th 844, which disagreed with our Pedro N. holding on a theory that it is inconsistent with the protections ICWA affords to the interests of Indian tribes, we are not persuaded. We do not foreclose a tribe’s rights under ICWA on account of a parent’s appellate waiver. (Pedro N., supra, 35 Cal.App.4th at p. 185; see also In re Desiree F. (2000) 83 Cal.App.4th 460 [we reversed denial of tribe’s motion to intervene after final order terminating parental rights and invalidated actions dating back to outset of dependency and taken in violation of ICWA].) In so ruling, we held we were addressing only the rights of the parent to a heightened evidentiary standard for removal and termination, not those of the tribe (Pedro N., supra, 35 Cal.App.4th at p. 191), or, for that matter, the rights of the child. As a result, we conclude appellant has forfeited her personal right to complain of any ICWA violation.
We also note in this case appellant was served with a copy of the notice submitted to the tribes and the Bureau of Indian Affairs and was in court at the dispositional hearing when the court addressed the ICWA issue. However, she neither voiced any objection to nor appealed from the court’s ruling. Rather, she waited until now to object. We are confident appellant, by her silence until now, has waived her right to complain.
DISPOSITION
The orders and judgment of the juvenile court are affirmed.