Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from orders of the Superior Court for Los Angeles County No. CK54716, Stephen Marpet, Commissioner.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Frank J. DaVanzo, Deputy County Counsel, for Plaintiff and Respondent.
WILLHITE, Acting P. J.
T.P. (mother) appeals from orders of the juvenile court denying a hearing on her petition filed under Welfare and Institutions Code section 388 and terminating her parental rights with regard to her daughter, S.K. We hold that the juvenile court erred by denying mother a hearing on her section 388 petition. We reverse both orders and remand with directions to the juvenile court to hold a hearing to determine if a modification of the court’s previous orders would be in S.’s best interests.
Further undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
S. came to the attention of the Los Angeles Department of Children and Family Services (the Department) on July 22, 2006, when she was hospitalized after being attacked by a pit bull. S., who was 14 months old, was under the care of her father at her paternal grandmother’s house at the time of the attack. Mother had been arrested in May 2006 for domestic abuse after she argued with father and scratched him, and she left S. in father’s care while she moved in with her sister, a correctional officer in San Diego.
Mother had four other children -- S.’s half siblings -- who were the subject of an earlier dependency proceeding. The sustained petition in that case alleged that mother: (1) used inappropriate physical discipline with the children; (2) put the children at risk by having them reside in a home with three pit bulls (the same home at which S. was attacked), which resulted in one of her children being bitten in 2004; and (3) was a user of methamphetamine. The juvenile court in that case terminated mother’s parental rights, and the children were adopted by their maternal grandparents.
In this case, the Department filed a petition under section 300, alleging that (1) mother and father engaged in a violent altercation in May 2006; (2) mother and father left S. in the care of paternal grandmother, who has three pit bulls, one of which attacked S. and had previously attacked S.’s half sibling; (3) mother has a five-year history of substance abuse; (4) father has a history of substance abuse and is a current user of methamphetamine; and (5) S.’s half siblings are former dependent children of the juvenile court due to mother’s substance abuse and her failure to protect her child from a pit bull attack in 2004, and mother failed to reunify with the half siblings.
Father is not a party to this appeal. Therefore, we limit our discussion to issues related to mother.
At the jurisdiction/disposition hearing, in August 2006, mother waived her rights and the juvenile court sustained the petition. The court denied mother family reunification services under section 361.5, subdivision (b)(10), (11), and (13), and ordered monitored visitation for mother, with discretion to liberalize. Since family reunification services were granted for father, the court set a date for the six-month review hearing. Mother’s attorney asked the court to order the Department to file a progress report before the six-month review hearing. The court initially ordered the progress report for father only, stating there was no need to report on mother’s progress because she had been denied reunification services. Mother’s attorney then informed the court that mother had entered a residential program, and needed the Department to report on it. The court agreed.
Section 361.5, subdivision (b) provides that the juvenile court may deny family reunification services if it finds by clear and convincing evidence that certain circumstances exist. Those circumstances include: (1) the parent failed to reunify with the minor’s sibling or half sibling and has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling (§ 361, subd. (b)(10)); (2) the parental rights of a parent over any sibling or half sibling of the minor had been permanently severed and the parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling (§ 361, subd. (b)(11)); and (3) the parent “has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court’s attention” (§ 361.5, subd. (b)(13)).
The Department filed the progress report in November 2006. The Department reported that mother began attending a drug treatment program in September 2006. The program lasts six to nine months, and includes “day care rehabilitation, individual and group counseling, which includes drug education, relapse prevention and women’s issues,” as well as a treatment plan group.
In a report filed in February 2007 for the six-month review hearing, the Department reported that mother was maintaining regular contact with the social worker and was actively participating in a drug treatment program. According to mother’s counselor in the program, mother was doing everything that was asked of her, she had complied with random drug testing and had tested clean, and she had progressed to “phase 3” of the program. The Department also noted that mother asked the social worker about how she might get reunification services reinstated for her, and the social worker told her to contact her attorney. The Department noted that mother had asked for increased visitation with S., but it denied her request, although it also reported there were “no concerns to report as to [mother’s] visits.” The Department cited as its reason for denying increased visitation “mother’s prior dependency and substance abuse history.” Mother acknowledged that in the prior dependency case involving S.’s half siblings, she had not taken the matter seriously, in part because she felt comfortable with the fact that her children were placed with her parents.
At the six-month review hearing in February 2007, the attorney who represented mother at the detention and jurisdiction/disposition hearings (Sue Dell) was relieved and a new attorney (William Pirtle) was appointed for her. The court found that father was not in compliance with his case plan and terminated family reunification services for him. Although mother had been denied reunification services at the jurisdiction/disposition hearing, the minute order states that the court also found that she was not in compliance with her case plan and terminated reunification services for her as well. The court set a permanent plan hearing in June 2007.
There was no court reporter present at the February 2007 hearing; therefore our summary of the proceeding is based upon the minute order for that hearing.
In the report filed for the June 2007 hearing, the Department reported that mother maintained regular contact with the social worker and that her counselor in her drug treatment program told the social worker that mother was “doing pretty good” in the program, in which she had been participating for almost nine months, and was still providing clean random drug tests. The Department also reported that S. had been placed with the paternal great-grandmother since August 3, 2006, and was thriving in her placement. The paternal great-grandmother had initially told the Department that she was not sure if she would be pursuing adoption, and did not complete a homestudy packet or return calls to her by the adoption social worker. A week before the June 2007 hearing, however, the adoption social worker called the paternal great-grandmother, who agreed to meet to begin the homestudy process. Therefore, the Department asked the court to continue the permanent plan hearing to allow the paternal great-grandmother to complete the homestudy documentation. Nevertheless, the Department recommended that parental rights be terminated and that S. be referred for adoptive planning.
In a request for de facto parent status filed by paternal great-grandmother, she stated that S. was placed with her on August 28, 2006.
At the June 2007 hearing, S.’s appointed attorney noted that the maternal grandparents, who had adopted S.’s half siblings, wanted to be considered for placement of S. Counsel stated that S. had weekly visits with the maternal grandparents and her half siblings, and that it would be in S.’s best interest if the maternal grandparents’ home were assessed as a possible placement. The court ordered the Department to initiate a “TDM” (i.e., team decision making) meeting with the paternal and maternal relatives to assess what would be the best placement for S., and whether mother should be permitted overnight visits with S. The court also directed mother’s attorney “to file the appropriate 388 petition on behalf of his client in a timely manner if a change of circumstances is in place.” Mother’s attorney stated that he would file a section 388 “by the end of next week.” The court set a hearing in six weeks (July 27, 2007) to address the results of the TDM meeting, and continued the permanent plan hearing for three months, to September 14, 2007.
Mother’s attorney had not filed a section 388 petition by the time of the July hearing, despite his statement at the previous hearing. Mother asked the court to replace her attorney because he had not yet filed the petition. She told the court that in February her attorney told her the petition would be filed in June. The court denied her request. The court then reviewed the results of the TDM meeting. The Department stated that both the maternal and paternal families wanted S. placed with them, but it was recommending that she remain placed with the paternal great-grandmother because she was doing well there. Mother’s attorney announced that “there will be a 388 filed immediately.”
No section 388 petition was filed before the September 14 hearing, two months later. The Department noted in its report filed for that hearing that mother maintained regular contact with the social worker and that mother successfully completed her drug treatment program, which involved parent education, drug education, life skills, introduction to 12-steps, HIV education, nutrition, and random drug testing. It also noted that she “has expressed a continual interest in having reunification services offered” and in having a section 388 petition filed, but “has experienced ongoing difficulty in establishing contact with her attorney to inquire/request that said petition be filed.”
At the hearing, mother was represented by a new appointed attorney, Ellen Bacon. Ms. Bacon requested a continuance of the permanent plan hearing, stating, “The court is aware we have had a recent personnel change on this matter, and, unfortunately, I have not had sufficient time to be able to review the file to represent the client appropriately today.” The court put the matter over until October and set it for contest.
On September 18, a section 388 petition was filed on behalf of mother, using Judicial Council Form JV-180 (as required by Cal. Rules of Court, rule 5.570(b)). The petition sought modification of the August 2006 order (1) denying mother reunification services; (2) placing S. with paternal great-grandmother; (3) declining to place S. with maternal grandparents, with whom her half siblings reside; and (4) ordering monitored visitation for mother. The petition alleged that (1) mother had been enrolled in and participated in drug rehabilitation, anger management, and parenting classes since September 2006 and consistently randomly tested clean during that time; (2) mother consistently visited S. at the home of the maternal grandparents on a weekly basis, and S. is bonded to mother, the maternal grandparents, and her half siblings; and (3) the maternal grandparents completed a large addition to their home, and therefore the original impediment to placing S. with the maternal grandparents (insufficient space in the home) has been remedied. The petition sought an order returning S. to mother’s custody with family preservation services or, in the alternative, placing S. with her half siblings in the maternal grandparents’ home, with unmonitored visitation for mother. The petition alleged the proposed order would be in S.’s best interests because S. would benefit from inclusion in a family unit that includes her mother and/or her half siblings and maternal grandparents, and because the paternal great-grandmother is aged and S. would benefit from having younger caretakers who are better able to supervise an increasingly active young child.
The petition is dated September 4, 2007, and lists Mr. Pirtle as counsel of record (although it is signed by Ms. Bacon on his behalf). The petition was not filed, however, until September 18, after Mr. Pirtle had been relieved as mother’s counsel.
Exhibits attached to the petition include letters confirming mother’s participation in various programs. For example, a letter from McAlister Institute Treatment and Education states that on September 7, 2007, mother successfully completed a year-long program that included parenting classes, drug education, life skills, introduction to 12-steps, HIV education, nutrition, aftercare, anger management, group and individual counseling, and random drug testing. There also is a letter from the University of California, San Diego Perinatal and Parenting Case Management Program, stating the mother voluntarily enrolled for services on May 2, 2007, and a progress report showing that she completed 17 sessions of domestic violence classes.
At the time the petition was filed, the paternal great-grandmother was almost 68 years old and S. was just over two years old.
At the October 2007 hearing, mother was represented by a new appointed attorney, Diane Fisher. The juvenile court began the hearing by noting the section 388 petition filed on behalf of mother. The court stated, “Based upon the report before the court, although mother has made substantial progress with her drug addiction, that, at this point, the court is going to find that it is still not in this minor’s best interest. [¶] I’m dealing with a child under the age of three, who is now only a little over two years of age, needs permanency in its life, and I’m denying the 388.” When mother’s counsel asked to set a contest on the petition, the court responded, “I’m denying it for a hearing.”
The court then moved on to the permanent plan hearing. Mother’s attorney asked that it be set for contest, and was surprised to learn that it had already been set for contest. Ms. Fisher asked for further time because she needed time to prepare, and the court continued the hearing to the afternoon session to give her time to talk to her client.
At the afternoon session, mother and the maternal grandmother testified in support of mother’s argument that the parental relationship exception applied (§ 366.26, subd. (c)(1)(B)(i) [formerly § 366.26, subd. (c)(1)(A)]). Mother testified that during the first three months after S. was placed with the paternal great-grandmother, mother and the paternal great-grandmother did not understand the visitation order, and mother had overnight visits with S. at the maternal grandparents’ home every weekend, from Friday to Sunday. When they were informed that this was not allowed, she began having day visits with S. for one day every weekend, from 10:00 a.m. until 8:00 p.m. Mother testified that she usually drives with her sister (the maternal aunt) to pick up S., and S. is always happy to see them, wanting hugs and kisses as she is carried by mother or the maternal aunt to the car. On the drive to the maternal grandparents’ home, S. talks about her maternal grandparents and half siblings, and gives everyone hugs and kisses when she arrives. She is particularly attached to her nine-year-old half sister, and she often holds her hand and “kind of drags her throughout the whole house.” Mother also testified that she takes care of S. during the visits, bathing her, changing her clothes, feeding her, putting her down for naps, playing with her and reading to her. S., who calls mother “mom,” sings to mother, tells her she loves her, kisses her, and sits on mother’s lap or right next to her when she is not running around. When it is time to get in the car to leave, S. gets sad and tells mother, “I stay with you. I stay with you.”
The maternal grandmother testified that S. is excited when she sees mother, waving and raising her arms to be picked up. She talks about her half siblings and maternal grandfather in the car throughout the drive to the maternal grandparents’ house. Once there, she plays with her half siblings and clings to her mother, telling her she loves her and giving her hugs and kisses.
The juvenile court found that S. was likely to be adopted, and that the parental relationship exception did not apply. The court noted that mother had not sufficiently assumed a parental role because she had never had anything but monitored visitation and thus had never been able to parent S. all by herself. Therefore, the court terminated mother’s parental rights and ordered adoption as the permanent plan. Mother timely filed a notice of appeal from the order denying her section 388 petition and the order terminating her parental rights.
DISCUSSION
Mother raises three issues on appeal. First, she argues the juvenile court abused its discretion by denying her section 388 petition without a hearing. Second, she contends the court erred by finding the parental relationship exception did not apply and terminating her parental rights. Finally, she argues the order terminating parental rights must be conditionally reversed because the notice required under the Indian Child Welfare Act (ICWA) was incomplete and the court failed to make the requisite finding under ICWA. We conclude that mother’s first and third assertions are well taken.
A. Mother Is Entitled To A Hearing On Her Section 388 Petition
Section 388 provides that “[a]ny parent or other person having an interest in a child who is a dependent child of the juvenile court . . . 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 the court previously made or to terminate the jurisdiction of the court. The petition shall be verified and . . . shall set forth in concise language any change of circumstance or new evidence which are alleged to require the change of order or termination of jurisdiction. [¶] . . . 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.” (Italics added.)
The Supreme Court has described section 388 as an “escape mechanism” that “accommodate[s] the possibility that circumstances may change after the reunification period that may justify a change in a prior reunification order.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) The statute affords parents who “complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528) a “final opportunity to reinstate reunification services before the issue of custody is finally resolved” (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1506). “As such, section 388 is vital to the constitutionality of our dependency scheme as a whole, and the termination statute, section 366.26, in particular. [Citation.]” (In re Kimberly F., supra, 56 Cal.App.4th at p. 528, citing In re Marilyn H., supra, 5 Cal.4th at p. 309; see also In re Hunter S., supra, 142 Cal.App.4th at p. 1506.)
A section 388 petition must be “liberally construed in favor of granting a hearing to consider the parent’s request.” (In re Marilyn H., supra, 5 Cal.4th at p. 309.) A hearing on the petition may be denied “only if the petition fails to state a change of circumstance or new evidence that even might require a change of order or termination of jurisdiction.” (In re Angel B. (2002) 97 Cal.App.4th 454, 461; see also In re Aljamie D. (2000) 84 Cal.App.4th 424, 431-432; In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799.) The parent is not required to establish a probability of prevailing on the petition in order to be entitled to a hearing: “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., supra, 5 Cal.4th at p. 310; see also In re Aljamie D., supra, 84 Cal.App.4th at p. 432; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414.)
In this case, there is no question that mother made a prima facie showing of changed circumstances. The petition alleged that mother had completed a year-long drug rehabilitation program, which included anger management and parenting classes, and that she had randomly tested clean throughout the program. The petition also attached evidence that mother was enrolled in an after care program to continue her drug rehabilitation, and was taking domestic violence classes. Thus, the petition presented evidence that mother was successfully addressing the issues that led to S.’s detention. Indeed, the juvenile court acknowledged that “mother has made substantial progress with her drug addiction.”
Nevertheless, the court denied the petition without a hearing, finding that “it is still not in this minor’s best interest” because S. was just over two years old and “needs permanency in [her] life.” The court’s finding that the proposed change of order was not in S.’s best interests was premature. Mother was not required to establish in her petition that the proposed change is in S.’s best interests; she simply had to make a prima facie showing “that the best interests of the child may be promoted by the proposed change of order.” (§ 388, subd. (c), italics added; see also In re Aljamie D., supra, 84 Cal.App.4th at p. 432.) If she makes that showing, she is entitled to an evidentiary hearing. It is only after she is given an opportunity to present evidence at a hearing that the court is to decide whether, in fact, the proposed change is in S.’s best interests.
We note that the juvenile court signed the form order included in Judicial Council Form JV-180 (the form required to be used for a section 388 petition), and checked the a box indicating that the petition was denied because “[t]he request does not show that it will be in the best interest of the child to change the order.” As discussed above, this is an improper standard for denying the petition without a hearing, because the petition need only show that the proposed change might be in the child’s best interests. This use of an improper standard in the form order is yet another example of the form’s legal infirmity. (See In re Lesly G. (2008) 162 Cal.App.4th 904, 914.)
Mother made a prima facie showing in her petition. In addition to alleging changed circumstances, she alleged that she had consistently visited with S. and that S. was closely bonded with her and her half siblings and maternal grandparents. She also alleged that S. would benefit from being included in a family unit that includes her mother, half siblings, and maternal grandparents, and from having younger caretakers, since her current caretaker was 68 years old. Liberally construed, these alleged facts are sufficient to show that the proposed change of order might be in S.’s best interests. Therefore, the trial court abused its discretion by denying the petition without an evidentiary hearing.
Mother’s burden at that hearing no doubt will be a difficult one to meet. She will have to overcome the presumption that continued care away from mother’s home is in S.’s best interests. (In re Marilyn H., supra, 5 Cal.4th at p. 310.) But she need only prove a change of placement is in S.’s best interests by a preponderance of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) As one court has explained, “the thrust of the legislative scheme [governing dependency cases] is to encourage parents to correct earlier problems so as to reunite them with their children. [Citation.] This intent would be thwarted if parents lost all ability to regain custody of their dependent minors, despite rehabilitation and despite having corrected earlier problems, if parents whose rights had not been terminated could only regain custody by proving the minors suffered harm in their current living situation. This would be contrary to the legislative goals, public policy and common sense.” (In re Michael D. (1996) 51 Cal.App.4th 1074, 1086.)
While we recognize that our ruling means there will be further delay in the resolution of S.’s custody status, we reiterate that the intent of the dependency scheme is to encourage parents to correct the problems that led to the removal of their child. This is the rare case in which a parent denied reunification services actually obtains on her own the services needed to correct those problems. (See, e.g., Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 750 [noting that section 361.5, subd. (b) reflects the Legislature’s determination that “it may be fruitless to provide reunification services under certain circumstances”].) She is entitled to a hearing to show that, as a result of her participation in her drug rehabilitation and after care programs, reunification is in S.’s best interests.
Given the passage of time since her petition was filed, on remand, mother should be allowed to amend her petition, if she chooses, to include allegations regarding any further changes that have occurred in the past year.
B. The Order Terminating Parental Rights Must Be Reversed
We need not address mother’s contention that the juvenile court erred in finding the parental relationship exception did not apply and terminating her parental rights. As we explained most recently in In re Lesly G., the reversal of an order denying a parent a hearing on a section 388 petition necessarily requires the reversal of a subsequent order under section 366.26 terminating parental rights. (In re Lesly G., supra, 162 Cal.App.4th at pp. 915-916; see also In re Hashem H., supra, 45 Cal.App.4th at p. 1801 [“The court must first afford appellant a fair hearing on her alleged change of circumstances before proceeding to the section 366.26 hearing and disposition”]; In re Jeremy W., supra, 3 Cal.App.4th at p. 1416 [“In the chronology of these events, a fair hearing on the section 388 petition was a procedural predicate to proceeding to the section 366.26 hearing”].)
C. The Juvenile Court Must Make Proper ICWA Findings On Remand
At the detention hearing, the paternal great-grandmother stated that she had Cherokee ancestry on both her mother’s and her father’s sides. The juvenile court ordered the Department to investigate S.’s possible Cherokee heritage. In her opening brief, mother noted that the juvenile court failed to make any ICWA findings regarding whether S. is an Indian child, and that there was no evidence in the record to show that the tribes to which the Department sent notices received or responded to the notices.
The Department conceded there was no evidence presented to the juvenile court that the tribes received or responded to the notices, and that no ICWA finding was made before the orders at issue in this appeal were made. It opposed mother’s request for a conditional reversal to remedy this error, however, by asking this court to take judicial notice of evidence from a proceeding that took place after the appellant’s opening brief was filed, in which the Department presented evidence that the tribes had received the notices and the juvenile court made the required ICWA finding that S. was not an Indian child. But as mother correctly argues, the ex parte procedure employed by the Department -- no notice was given to mother, no prior notice was given to her former attorney (who was re-appointed to represent mother at the belated hearing), and no copies of the tribal notices were provided in advance of the hearing -- was improper. (See, e.g., In re Glorianna K. (2005) 125 Cal.App.4th 1443; In re Justin S. (2007) 150 Cal.App.4th 1426.) Because we must remand this case for further proceedings, however, the Department may cure the ICWA-related errors through a properly noticed motion.
DISPOSITION
The orders denying mother’s section 388 petition and terminating her parental rights are reversed. The matter is remanded, and the juvenile court is ordered to conduct a hearing on the petition after affording mother an opportunity to amend the petition to allege additional facts regarding any changes that have occurred since her original petition was filed.
We concur: MANELLA, J., SUZUKAWA, J.