Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. CK 66123, Marilyn H. Mackel, Commissioner.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant.
Robert E. Kalunian, Acting County Counsel, James M. Owens, Assistant County Counsel, and Timothy M. O’Crowley, Deputy County Counsel, for Plaintiff and Respondent.
S.W., the mother of T.S., born in February 2008, appeals from the denial of her Welfare and Institutions Code section 388 petition and from the order of the court terminating parental rights. We affirm.
All further statutory references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL HISTORY
In the family of cases that are usually steeped in loss and sorrow, this case stands out. T.S. is S.W.’s seventh child. S.W. has had all of her previous six children taken from her. These children represent two decades of S.W.’s life; her oldest child was born in 1987. At least two of her children showed narcotics, including cocaine, at birth.
When T.S. was born, S.W. was serving a prison sentence at Chowchilla State Prison for a narcotics offense. S.W. gave T.S. to a woman she had known for some years. It turned out that this woman had a history of arrests for willful cruelty to a child, for possession of narcotics and for being under the influence of narcotics. This led to the filing of a petition under section 300 by the Los Angeles County Department of Children and Family Services (DCFS), which resulted in an order removing T.S. from the custody of her parents.
T.S.’s father has a criminal history composed of narcotics offenses, with the most recent conviction in November 2007. While the father voluntarily contacted DCFS, he did not have an address or a telephone number.
S.W.’s personal history includes a criminal record for narcotics offenses beginning in 1989 and prostitution. She suffers from anxiety, obsessive compulsive behavior and hallucinations. In July 2008, S.W. was being treated for schizoaffective and bipolar disorders, was under psychiatric care and was taking a range of medications for these disorders. She was released from prison in July 2008 on parole after having served 13 months of a two-year term for possession of a controlled substance. S.W.’s own mother was a heroin addict who was killed when S.W. was six years old.
Given these predicates, we turn to a history of the proceedings that led to this appeal.
The child was removed from her parents’ custody on April 21, 2008. The father appeared at a hearing on May 29, 2008, represented by counsel, and informed the court that he may have Indian heritage with the Cherokee Nation of Oklahoma. DCFS mailed notices to two Cherokee Indian tribes in Oklahoma and received in return the information that T.S. is not an Indian child.
S.W.’s first appearance in court was on July 7, 2008, when she requested that DCFS interview her; S.W. was about to be released from prison. This interview took place on July 10, 2008. S.W. admitted that she has used drugs in the past but stated that she was not abusing them currently. S.W. also stated that she wanted to be enrolled in a substance abuse program at the Tarzana Treatment Center after her release from prison.
In September 2008, DCFS recommended against providing reunification services to the parents. DCFS reported that the child was in a foster home with one of her siblings.
The first dispositional hearing took place on September 15, 2008. The court found that S.W. had a five-year history of abusing amphetamines and methamphetamines and that, as a result of this, she was not capable of providing the child with regular care and supervision. The court also found that S.W. had placed the child with a person who was completely unable to take care of the child and that the child had been exposed to the danger of emotional and physical harm. The court noted that the father has a history of illicit drug abuse.
In early October 2008, DCFS reported that S.W. was enrolled in a four-week program but that she had not attended lately because of a hospitalization. S.W. was now living with the child’s father. S.W. had failed to appear for a scheduled visit with the child, and neither she nor the father had requested any visits with T.S.
On October 7, the court declined to order reunification services for S.W. based on subdivision (b)(10), (11) and (13) of section 361.5. Respectively, these grounds are that unification services had been terminated for T.S.’s siblings, that parental rights to siblings had been terminated and that S.W. has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem.
S.W. filed her section 388 petition in January 2009. The changed circumstance that the petition cited was that S.W. was participating in the court-ordered case plan. A treatment center by the name of Reach for the Top confirmed that she was residing at the center, that S.W. was attending three narcotics anonymous meetings per week and that she was being tested for drugs. A certificate stated that S.W. had completed 42 days of drug and alcohol treatment as of November 21, 2008.
DCFS reported that S.W. had one visit with T.S. in November and another visit in December 2008. DCFS also reported that T.S.’s prospective adoptive parents had taken care of T.S. since the child was two months old and were giving T.S. the love and care that the child needed.
A further interim report by DCFS stated that S.W. had completed only 42 days of a six-month program and had been discharged due to a medical condition. S.W. was being treated as an outpatient for schizoaffective and bipolar disorders, was under psychiatric care and was taking medications appropriate for her condition. DCFS opined that due to S.W.’s 20-year history of drug abuse she needed treatment in a dependency program for at least six months to a year. DCFS also expressed an understandable concern for S.W.’s mental health and recommended that the section 388 petition be denied.
THE SECTION 388 HEARING
Three witnesses testified for S.W. They were the housing manager of the sober living home where S.W. was staying, the assistant manager of the home and S.W.
Both the housing manager and the assistant manager had only good things to say about S.W. Residents at the home were tested regularly for drugs and S.W. always tested negatively. She was participating in all activities, was responsible and was in fact a model resident. She appeared to be emotionally stable and was taking her medications.
S.W. admitted her long history of drug abuse but stated that she had been clean since June 28, 2007; she felt she was now more mature and responsible than she had been in the past. She had to cancel three visits with T.S. because of transportation problems. We are constrained to note that at times S.W.’s testimony was unclear and disjointed.
After hearing counsel’s argument, the trial court denied the section 388 petition. In a statement that we can only endorse, the trial court observed that it wasn’t going to gamble with the child’s life that S.W. would be able “to stay focus[ed] this time.”
DISCUSSION
1. The Trial Court Did Not Abuse Its Discretion in Denying the Section 388 Petition
The pertinent question is whether the trial court abused its discretion in denying the section 388 petition. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
Although we apply the abuse of discretion standard, plain common sense indicates that it is hard to imagine any other decision than the one the trial court made in this case.
It is not only that T.S. is now, and has been for most of her short life, in a stable, safe and loving environment and that she should not lose this opportunity. Nor is it unimportant that the only thing that S.W. ever did with or for T.S. was to put her into the care of a person who was a menace to the child’s safety and well being. It is that S.W.’s tragic personal history extending over two decades and the loss of six, now seven, of her children due to her chronic inability to take care of them cannot be erased by a few days or even months when, in a structured and supervised setting, S.W. has finally managed to stay off alcohol and illicit drugs.
Parenting is not an exercise in minimalism. S.W. points to the facts that she has been “sober for a significant period of time” and that she “appeared to have resolved her drug issues.” When it comes to the role of a parent, it is not saying very much that S.W. has finally managed to abstain from illicit drugs and, it is to be hoped, is beginning to be able to take care of herself, at least in a supervised and structured environment. While there is probably no such person as a perfect parent, there has to be at least an indication that a person will be able to provide for another human being in all of the meanings of that word before an adult can be looked upon as an acceptable parent. That S.W. has stopped abusing drugs and alcohol is not, standing alone, enough of an indication that S.W. has overcome the massive shortcomings in her makeup sufficiently to be considered on the road to becoming a parent.
There is, of course, also the sad circumstance that S.W. is struggling with severe mental disabilities. The most that anyone can hope for is that S.W., with professional care and assistance, will eventually be able to stabilize her condition sufficiently not to require some form of institutionalization. It is unthinkable that a person with S.W.’s serious afflictions should be asked to step into the role of a parent, especially given her personal history.
We conclude that the order denying S.W.’s section 388 petition was well within the scope of the trial court‘s discretion.
2. The Failure to Notify a Particular Cherokee Tribe Was Harmless Error
T.S.’s father indicated that he was a member of the “Cherokee” Indian tribe of the “Oklahoma” band. This triggered the notification provisions of the Indian Child Welfare Act (ICWA).
The record indicates that notices were sent to the “Cherokee Nation of Oklahoma” and the “Eastern Band of Cherokee Indians.” Both of these tribes responded by stating that T.S. was not a member of the particular tribe. Appellant contends, and respondent concedes, that a notice was not sent to the “United Keetoowah Band of Cherokee Indians.” S.W. contends that the order terminating parental rights should be reversed because this tribe did not receive an ICWA notice.
Respondent has moved to augment the record with the notice and the response to that notice by the United Keetoowah Band of Cherokee Indians in another proceeding, then pending in the Orange County Superior Court, involving one of T.S.’s siblings, also fathered by T.S.’s father. The response by this tribe was that T.S.’s sibling was not a member of the tribe.
It is true that this notice and response, generated in a proceeding in the Orange County Superior Court, was not before the trial court in this case. Normally, we would not augment the record with a document that was not before the trial court. In this case, however, the question at hand is solely whether the error in not notifying the United Keetoowah Band of Cherokee Indians, if it was error, is prejudicial. The issue is procedural and has no bearing on the substantive merits of the proceedings on appeal. Thus, as an exceptional matter, we will augment the record with this material that shows it made no difference that this particular Indian tribe was not notified of the instant case.
It is also true that the father’s claim to Indian heritage is based on his paternal great-great-great grandmother, which makes him 1/64th Cherokee. As respondent points out, this particular tribe requires 1/4th blood quantum for membership in that tribe.
It appears that the error of not notifying the United Keetoowah Band of Cherokee Indians was harmless.
DISPOSITION
The judgment is affirmed.
FLIER, J.
We concur: RUBIN, Acting P. J., BIGELOW, J.