Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD227802
HULL, J.T.T. was born in July 2008. His mother, defendant F.D., appeals from orders of the juvenile court denying her petition to modify a dispositional order that did not provide for reunification services, and terminating her parental rights. (Welf. & Inst. Code, §§ 361.5, subds. (b)(13) & (c), 366.26, 388, 395; undesignated section references are to this code.)
We note at this point that plaintiff Sacramento County Department of Health and Human Services (DHHS) suggests that the mother did not perfect her appeal from the order denying her petition to modify because the notice of appeal did not specifically reference that order. The suggestion is not well taken. The notice of appeal in fact states that it is from “All Findings and Orders made on March 27, 2009, including the termination of parental rights” (italics added). Moreover, even a notice of appeal entirely omitting any reference to a section 388 order is deemed amended to include any section 388 order as to which it is timely. (In re Madison W. (2006) 141 Cal.App.4th 1447, 1450.)
The mother argues that she presented adequate evidence of a change in circumstances (her progress in programs for substance abuse and other issues after the termination of unification services) to warrant a modification that would be in the best interests of the minor. She also contends that the juvenile court erred in failing to apply the “child-benefit” exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)), and its finding of adoptability is not supported by sufficient evidence. Finally, she asserts for the first time on appeal that DHHS and the juvenile court failed to give proper notice under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.), and failed to make any efforts to enroll the minor in the tribe for which he was eligible. We affirm the orders.
Facts and Proceedings
In February 2008, the minor’s four-year-old sibling was adjudicated a dependent child based on the mother’s domestic violence (apparently directed at her grandmother in the presence of the sibling), substance abuse, and anger-management problems. The court ordered reunification services.
The minor tested positive for methamphetamine at the time of his birth in 2008. DHHS took him into protective custody and filed a petition alleging that the mother was unable to care for T.T. due to her substance abuse (dating back to 2005), noting that she had used marijuana and ecstasy during the pregnancy (§ 300, subd. (b)), and that the minor was at risk because his sibling had also been found to suffer such abuse (id., subd. (j)). The father was in county jail on felony charges of grand theft.
Both parents filed declarations that disclaimed any Indian ancestry. However, based on information from the file in the minor’s sibling’s case (where the mother’s maternal grandmother showed a case worker a tribal registration card mentioning Cherokee and Choctaw), DHHS sent notices to those tribes. In the notices, it identified the great-grandmother only by her married name. The Choctaw Nation of Oklahoma replied that it was able to establish that the minor’s maternal grandmother had Indian heritage (ascribing to her the minor’s date of birth), but could not intervene because neither the mother nor the minor were members. The reply also asserted that “We will be glad to assist you in obtaining family members CDIB and membership cards.”
In its report for the jurisdictional hearing, DHHS noted that the mother was under the influence of methamphetamine in a July 2008 interview, where she admitted having a problem with substance abuse throughout her pregnancy. She did not seem to be able to make a connection between her use of drugs and its effect on an unborn child. However, she recently completed a detoxification program and was presently committed to that program. She also failed to keep visitation appointments with the minor. The minor’s maternal grandmother and step-grandfather also had problems with substance abuse. In an amended petition, DHHS expanded on the extent of the mother’s history of substance abuse (now dating back to 1997) and included allegations that she had tested positive for methamphetamine in the month after the minor’s birth, and that she was not consistently participating in services in the sibling’s case (for which reason DHHS was seeking an order terminating services). The mother submitted on the issue of jurisdiction, and the court sustained the petition.
In a supplemental report on the issue of services (§ 361.5, subd. (c)), DHHS noted that the mother had been discharged from her treatment program for inappropriate behavior with another client, but was eligible to re-enroll. The mother had also failed to participate in services in the sibling’s case or to visit him. Therefore, DHHS now asked that the mother be denied services because of her lack of commitment to treatment of her substance abuse. (§ 361.5, subd. (b)(13).) The report noted that when the mother did participate in a visitation with the minor, there was good interaction.
In light of this change with regard to services, the mother obtained a continuance at the start of the dispositional hearing on September 22, 2008. The juvenile court then asked why there had been notices under ICWA when the mother had disclaimed heritage. The mother explained she had done so only because the court in the sibling’s case had determined ICWA did not apply. The court also learned of the error with respect to the great-grandmother’s surname and directed DHHS to make follow-up contacts with the tribe.
DHHS was able to contact the minor’s great-grandmother in Oklahoma, to which she had moved, and spoke with a tribal representative about the corrected information. The tribe then confirmed that both the great-grandmother and the grandmother were enrolled members, but that the mother and the minor were merely eligible for membership.
At the dispositional hearing on October 17, 2008, the mother testified that she was at that time participating successfully in an in-patient program for drug abuse that had started at the beginning of October. The foster parents had been bringing the minor for weekly two-hour visits, during which she would play with him, feed him, and change his diaper. She admitted that in the sibling’s case there was a recommendation for termination of services for noncompliance. She claimed she was more motivated than she had been in past.
After finding it would be detrimental to place the minor with the mother, the court found that the mother had a history of being resistant to treatment for drug abuse, and had not established a sufficiently lengthy period of present sobriety or a particular bond on the part of the minor toward her such that in would be in his best interest to order reunification services. It set the permanency planning hearing (§ 366.26) for February 2009, with continued visitation between the mother and the minor.
In its reports submitted in connection with the section 366.26 hearing, DHHS noted that the minor’s sibling had little interest in him during joint visitations. During an observed visitation in January, the mother held the minor in a precarious position while using both hands to feed him, and did not burp him afterward. She also took him outside on a chilly day without a jacket. She did not maintain watch over the sibling, who ran around unattended. The foster mother reported that even though she sent diapers, solid food, and formula for the mother’s visits, the mother did not change him, used very little of the solid food, and watered down the formula.
The minor did not have any apparent physical or mental conditions, other than a treatable drug-related gastric-reflux condition (likely to correct itself by his first birthday) and eczema. The reflux condition required feedings at consistent intervals. Having completed withdrawal from methamphetamine, he was a pleasant infant with a good disposition. The great-grandmother had been evaluated for possible placement, and determined unsuitable for numerous reasons.
The report asserted that the minor was generally adoptable; the present foster placement was not interested, but there was a prospective foster placement out-of-county that was willing to adopt him and his sibling (if the latter’s parental rights were terminated as well). The foster family had begun transitional visitations with the minor and were arranging to visit the sibling.
Shortly before the scheduled hearing date, the mother filed a petition to modify the dispositional order that had denied reunification services, based on her successful completion of her residential drug program (and programs dealing with other issues), and her ongoing visitations with the minor. She also adverted to the minor’s interest in preserving his sibling relationship. The court set the matter for hearing jointly with the permanency planning hearing.
At the joint hearing in March 2009, the counselor at the drug-treatment program attested to the mother’s willingness and motivation. A foster-care case manager testified that the mother was attentive to the minor’s needs during visits, and she behaved appropriately. It was difficult for her to keep visitation appointments because of transportation problems. The mother testified that she had not used drugs since October 2008. This was the first residential program that she had successfully completed, which program also included guidance in anger management and relapse prevention. She was also then participating in a 12-step program under the guidance of a sponsor, attending nine meetings a week. This had been the longest period during which she had not used drugs since she was 14 years old, other than when she was in custody for failure to participate in treatment ordered as a condition of probation. She has not felt at risk of relapse. She was now more motivated to succeed because she was doing this for herself rather than being ordered to do it. The social worker reaffirmed that a “culturally appropriate” adoptive family was available out-of-county for the minor, and there had been inquiries from other families as well.
While commending her on her progress, the court denied the modification petition because it was still too early in the recovery process to find a changed circumstance. The court agreed that the minor was likely to be adopted, terminated the mother’s parental rights, and referred the matter for an adoptive placement. It also authorized an out-of-county placement as part of the plan of adoption.
DISCUSSION
I
Indian Child Welfare Act Notice
The mother argues the ICWA notices were defective because they included the great-grandmother’s married rather than maiden surname, and she and the minor “may also be eligible for enrollment in or [be] enrolled members of other tribes.” She correctly notes that the issue of notice is not forfeited as a result of her failure to raise it in the juvenile court. (In re Nikki R. (2003) 106 Cal.App.4th 844, 849.)
The only information in the possession of DHHS regarding Indian ancestry involved the great-grandmother as being Cherokee or Choctaw, whose actual Choctaw tribe responded that the minor or the mother were not enrolled members (although eligible for membership). No other evidence exists of any other tribal membership through the minor’s great-grandmother. The error regarding the great-grandmother’s maiden surname is thus harmless. (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576.)
The mother claims that, despite the juvenile court’s finding under section 361.5 that she was not entitled to any further reunification services, she was entitled to “active efforts... designed to prevent the breakup of the Indian family” (§ 361.7, subd. (a)). She focuses her claim on the failure of DHHS to pursue the steps necessary to secure the minor’s tribal membership, pending which the minor must be treated as an Indian child. (Cal. Rules of Court, rule 5.482(c) (hereafter rule 5.482(c)).) Rule 5.482(c) provides, “If... a tribe responds indicating that the child is eligible for membership if certain steps are followed, the court must proceed as if the child is an Indian child and direct the appropriate individual or agency to provide active efforts under rule 5.484(c) to secure tribal membership for the child.” (Italics added.)
Mother acknowledges that she did not raise this issue in the juvenile court, but asserts we should not treat it as forfeited.
The minor was not an Indian child within the meaning of ICWA. It is insufficient for the minor simply to be eligible for membership. He must be either a member or the child of a member of the tribe to be an Indian child. Neither the minor nor the mother are enrolled, and thus are not members of the Choctaw tribe. The juvenile court was thus correct that ICWA did not apply. (In re Jose C. (2007) 155 Cal.App.4th 844, 849; 25 U.S.C. § 1903(4); § 224.1, subd. (a) [applies the federal definition of Indian child]; § 224, subd. (c) [tribe must determine minor eligible for membership and the biological child of a member for ICWA to apply].) Rule 5.482(c), however, goes beyond ICWA to include potential Indian children within its provisions pending the tribe’s adjudication of the application for membership. (Compare Jose C., supra, 155 Cal.App.4th at p. 849 & fn. 2 [predating rule 5.482(c), finding that nothing in ICWA or California statues gives juvenile court authority to require minor’s enrollment in tribe].)
While a tribe’s right under ICWA to notice of dependency proceedings is not subject to forfeiture as a result of a parent’s inaction (In re Jennifer A. (2002) 103 Cal.App.4th 692, 707; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1425), the same is not true of other procedural ICWA provisions. (Jennifer A., supra, 103 Cal.App.4th at pp. 707-708; In re Riva M. (1991) 235 Cal.App.3d 403, 412 [burden of proof and need for expert testimony].) These other procedural ICWA provisions relating to the burden of proof and need for expert testimony are nevertheless subject to a rule requiring a showing that a waiver of them is knowing and voluntary. (Jennifer A., supra, 103 Cal.App.4th at p. 708 [declining to find such requirement under case law]; Cal. Rules of Court, rule 5.484(a)(2).) That rule, however, does not include the failure to object to a court’s failure to direct an agency to take steps to secure a minor’s membership in a tribe under rule 5.482(c). We decline to add a requirement of obtaining a knowing and voluntary waiver to that rule as a matter of judicial fiat where the drafters did not include any such provision. We thus find that the mother has forfeited this issue on appeal.
II
Petition for Modification
A petition for modification must demonstrate that there is a changed circumstance or new evidence, and the modification would be in the minor’s best interests. (§ 388; In re Amber M. (2002) 103 Cal.App.4th 681, 685-686.) After the termination of reunification services, the focus in evaluating a minor’s best interests is on the need for permanency and stability. (Ibid.) We review the ruling on a petition for modification under the deferential standard of abuse of discretion, which is rarely established in connection with a denial. (Ibid.)
Reassessing the facts we have related above, the mother argues the ruling was an abuse of discretion because she had successfully rehabilitated herself, had what she describes as a bonded relationship with the minor, and the minor was not bonded with anyone else. We disagree.
Where a parent has a long history of addiction, even a seven-month period of sobriety is insufficient evidence to establish the changed circumstance of having successfully turned over a new leaf. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 423-424; In re Casey D. (1999) 70 Cal.App.4th 38, 47-49; see In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn.9 [must be much longer than 120 days “to show real reform”].) “A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child’s best interests.” (Casey D., supra, 70 Cal.App.4th at p. 47.) Moreover, to the extent the petition was concerned with preserving a sibling bond, DHHS was pursuing that option with potential adoptive parents. The mother has spent only minimal time with the minor each week, which does not reflect any particular orientation on the part of the minor toward the mother. Given the absence of evidence of changed circumstances and the conclusory nature of the claimed bond between the mother and the minor, the juvenile court’s resolution on these facts is reasonable, so we cannot find an abuse of discretion.
III
The Termination of Parental Rights
The mother contends the juvenile court erred in failing to give effect to the exception to a termination of parental rights and placement for adoption where “The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) The mother has forfeited the issue.
A juvenile court is not obligated to consider an exception sua sponte; a parent has the burden of affirmatively raising the issue at the permanency planning hearing. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.) The mother claims that in her pretrial statement she had requested the juvenile court to make a finding on this issue. However, at the page she refers us to, the legal issue is a general one, that is, “Would it be detrimental to [the minor] to terminate the mother’s rights?” without specific reference to any particular context. Defendant’s reply brief does not point to anything pertinent relating to detriment. The unchecked boxes on the Judicial Council form order regarding exceptions do not transform those exceptions into contested issues, nor do counsel’s closing remarks about the need for “more discussion about the general adoptability” or a general request that “the Court not grant the requested recommendation in the 366.26 report.”
Without squarely calling the attention of DHHS to this issue, the mother has failed to insure that the record contains all the evidence that DHHS would have wanted to introduce on the point. It would be unfair to DHHS to reach the issue on appeal in the first instance.
As the mother has forfeited plenary review of the claim, it is sufficient for us to note that “it is virtually impossible for a parent who was denied reunification services at the very beginning of the case to” assert it successfully because the Legislature intended that termination of parental rights should be “‘“relatively automatic”’” under those circumstances. (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255; see also id. at p. 1255, fn.5 [noting that this “may be the most unsuccessfully litigated issue in the history of the law”].) Parsing the scant evidence present in the record (as a result of the failure to raise the issue expressly), we do not find a compelling showing (§ 366.26, subd. (c)(1)(B)) that terminating parental rights would deprive the minor of a “substantial, positive emotional attachment such that the child would be greatly harmed” (italics added), which would warrant overcoming the preference for adoption. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The relevant factors, which include the minor’s tender age, the limited portion of his life spent with his mother, and the nature of the positive interactions between them (id. at p. 576), do not support application of the exception. As we stated above, the relations between defendant and her son do not reflect anything more than the friendly interaction between a pleasant infant of good disposition and an attentive caretaker, as opposed to the necessary child-parent relationship. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 [will not forego adoption to preserve parental rights in absence of “a real parental relationship”].)
This leaves the mother’s claim that substantial evidence does not support the juvenile court’s finding of adoptability. We note that, contrary to her suggestion, the fact that the burden of proof is “a clear and convincing standard” (§ 366.26, subd. (c)(1); see also In re Tamneisha S. (1997) 58 Cal.App.4th 798, 804-805) does not affect our assessment of substantial evidence any more than where proof beyond a reasonable doubt is required. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.)
Defendant asserts the court simply accepted the “conclusory” finding of adoptability in the DHHS report, which are contradicted by the minor’s medical conditions, lack of a current caretaker interested in adoption with whom the minor is bonded, and absence of a prospective adoptive placement.
At the time of the section 366.26 hearing, not only were there several inquiries regarding the minor, but there was a specific prospective adoptive family that was ready to adopt the minor (and his sibling, if available). The only reason the minor had not already been placed with this family by the time of the hearing was the need for a court order because this was an out-of-county placement. (§ 361.2, subd. (g).) The prospective family was well aware of the minor’s medical problems, neither of which was permanent or major. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154 [behavioral problems not severe and did not dissuade prospective adoptive homes, thus did not prevent finding of adoptability].) The mother otherwise does not present any authority for her assertion that the absence of a present “bonded” placement interested in adoption, or the out-of-county status of a placement actively pursuing a minor’s adoption, somehow negate a finding of adoptability. To the contrary, it is only the characteristics of the minor himself that are relevant, for which reason there does not need to be either a present placement interested in adoption or a proposed placement in the wings. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649; § 366.26, subd. (c)(1).) The specific interest of a prospective placement in adopting a minor is sufficient evidence of that minor’s adoptability within a reasonable time, even if by some other person. (Id. at p. 1650; Lukas B., supra, 79 Cal.App.4th at p. 1154.)
Disposition
The orders of the juvenile court are affirmed.
We concur: SCOTLAND, P. J. CANTIL-SAKAUYE, J.