Opinion
E068758
02-07-2018
In re B.A. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. A.P., Defendant and Appellant.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIJ1101197) OPINION APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson, Judge. Affirmed. Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
Mother appeals orders which resulted in the termination of her parental rights over BA, her six-year-old daughter, and JA, her three-year-old son. She argues the trial court erred when it determined (i) the protections of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) do not apply to her children, (ii) she did not establish a change of circumstances to justify reinstating reunification services (Welf. & Inst. Code, § 388), and (iii) the parent-child relationship did not outweigh the benefits of adoption as to BA (§ 366.26, subd. (c)(1)(B)(i)).
The children were four and one when removed from mother's custody.
Unlabeled statutory citations refer to the Welfare and Institutions Code.
Mother's appeal of the trial court's ICWA ruling presents the question: Does California Rule of Court, rule 5.484(c)(2) require social services departments to take affirmative steps "to secure tribal membership for a child if the child is eligible for membership in a given tribe," even if the eligible child does not qualify as an "Indian child" as defined by statute? Because we conclude the answer is no and the department provided substantial evidence BA and JA, though eligible for membership, do not satisfy that definition, we affirm the trial court.
We also affirm as within its discretion the trial court's denial of mother's section 388 petition and its determination the parent-child relationship exception does not apply.
I
FACTUAL BACKGROUND
A. Referral, Investigation, and Protective Custody
Mother and her children came to the attention of the Riverside County Department of Public Social Services (department) on August 27, 2015, when the department received a neglect referral claiming mother abused methamphetamine, acted violently with her children when coming down, whipped BA when she wet her pants, and kept their home in an unhealthy condition. The referral also said the children's juvenile maternal aunt lived in the home, sometimes watched the children, and abused methamphetamine and alcohol.
Social workers and sheriff's deputies visited the home on September 3, 2015. The social workers found the children well cared for and without marks or bruises. Mother said she did not have a relationship with the children's father and he was not involved in their lives. She said she was unemployed and depended on borrowing money from friends. She denied a history of using methamphetamine, but refused to take a saliva drug test. She denied the accusations in the referral, and said she knew who reported on her and claimed the report was malicious. The social workers observed the home had food, running water, and electricity. Mother eventually agreed to take a drug test the next day, which later came back positive for methamphetamine.
On September 9, 2015, the social workers met with the aunt at the home. She was enrolled in high school at the time. She said she planned to enter an inpatient substance abuse program. The social workers performed a home evaluation and observed the home to be clean, with no safety hazards, and with working utilities and plenty of food. The aunt said her sister and the children had left the home and were living in motels in the area, hoping to avoid contact with the department until the methamphetamine was out of mother's system.
The next day, the aunt went to a hospital with social workers to take a drug test, and mother came to provide adult consent. The social workers reported mother appeared sober and showed no signs of drug use. Before mother arrived, the aunt told the social workers her sister "needs help" and suffers from anxiety. She said mother is a good parent, but has trouble remaining sober and distancing herself from people who come to the house to party. The aunt's drug test came back positive for marijuana, and she was cleared to enroll in the substance abuse program. Mother agreed to take her to the program, and the social workers took them back home. There, the social workers saw BA and JA, who appeared happy, clean, and well cared for, showing no signs of abuse or neglect. JA reached out to be held by mother and BA was wearing a princess dress and was friendly to the social workers. The next day mother arranged to have a friend drive her sister to the substance abuse program, where she was to stay for five to eight weeks.
Soon after, the department received two additional abuse and neglect referrals. On September 18, 2015, they received a report that mother was depressed and unable to get out of bed. A social worker contacted her by text message, trying to set up a meeting for the following week, but due to slow responses and the social worker's taking time off, they were unable to connect. On September 29, 2015, the department received an immediate response referral saying the aunt had returned to the home in the middle of the night and found strangers in her room, which precipitated a fight between the aunt and mother. The referral said the children were not present for the fight, but reported the aunt had left her drug program early due to methamphetamine addiction, both the aunt and mother were taking methamphetamine, and strangers were in and out of the house, using both methamphetamine and marijuana.
Social workers and sheriff's deputies responded to the home the evening of the referral. A man opened the door, but refused them entry. The aunt was present with about 10 men, but mother and the children were gone. One of the deputies said he recognized some of the men from the criminal court and said they were "not good news." Eventually, the aunt came out to talk to the social workers. She denied there had been a fight, denied the other allegations in the referral, and did not appear to have any injuries. She refused to drug test and claimed to be clean. The aunt and other people at the home told conflicting stories about the whereabouts of mother and the children. Eventually, one of the men contacted mother by telephone and the social workers attempted to get them and bring them back. However, when the social workers arrived to pick them up, mother and children were gone.
A social worker returned to the home on October 1, 2015, and took BA and JA into protective custody. In an interview, BA said she was four years old. She said she always had food, running water, and electricity, though she repeatedly claimed she ate only pop tarts and cookies. She denied receiving physical discipline. She told the social worker she had seen a man she did not know put his hand around her mother's neck the night before. She said she was hiding in the bathroom at the time because she was scared. The social worker could not interview JA because of his young age, but reported he appeared to be developmentally on track.
The social worker interviewed mother separately. She denied having a fight with her sister and appeared shocked at the accusation. She admitted she was using drugs at the time of her positive drug test and had used methamphetamine a few days earlier. She said she does not use drugs in front of the children. She blamed a tenant and one of her friends for bringing strangers in the house. The social worker expressed concern about the heavy traffic and drug use and said he thought the house may be "a drug home or a party home." She responded, "Yeah, I know, it is." She expressed a willingness to enter an inpatient substance abuse program and work on keeping people out of her home. The social worker told mother there would be a detention hearing on October 6, 2015.
B. Detention
On October 5, 2015, the department filed an amended dependency petition on the grounds BA and JA had suffered or were at substantial risk of suffering serious physical harm or illness due to mother's failure to protect, failure to provide adequate food, clothing, shelter, or medical treatment, and failure to provide regular care due to substance abuse. (§ 300, subd. (b).) The department alleged mother (i) had a chronic, unresolved substance abuse problem, including methamphetamine, and cared for her children while under the influence and (ii) exposed the children to a detrimental home environment by allowing known drug users to frequent her home.
The department also alleged the children were at risk because father (i) has an extensive criminal history, including arrests and/or convictions for burglary, vehicle theft, battery, and drug related offenses, and (ii) was not a member of the household and therefore failed to provide for the children. In addition, the department alleged father was incarcerated and unable to provide care or support for the children. (§ 300, subd. (g).) Ultimately, the trial court terminated father's parental rights. However, because he is not a party to this appeal, we limit our discussion of him to those facts relevant to mother's case.
On October 7, 2015, based on the detention report, the juvenile court found the department had established a prima facie case both children came within section 300, subdivision (b), and ordered them detained. The court ordered the children placed in a licensed foster family home and authorized supervised visits for mother at least two times a week. It also found the children were not Indian children, but ordered the parents to complete a form concerning parental notification of Indian status.
C. Jurisdiction and Removal
The department filed a jurisdiction/disposition report on November 4, 2015. The department reported the children were adjusting well in their placement with a foster family. BA said the foster family was nice and met their needs. The caregivers reported the children were getting along well with everyone and had not shown any concerning behavior. The children had been examined and appeared to be physically, developmentally, and emotionally healthy. The department recommended continuing the children in their placement.
A social worker interviewed mother, who admitted—but attempted to minimize—most of the allegations against her. Mother conceded she began abusing methamphetamine when she was 15 years old and had been using it "off and on" over 12 years, but said calling her use chronic was "a little bit extreme." She claimed to use methamphetamine only socially. She disagreed with the allegation she let known drug users in the home, saying "[i]t might have seemed that there were a lot of people here at home, but I did not know them" and she had no knowledge they were drug users.
A social worker also interviewed BA, who, at age four, could not provide much information. The social worker described her as cooperative but said it was difficult to keep her attention. She said she had seen her mother smoking cigarettes, but nothing else, and she was unable to connect mother's drug use with problems providing supervision. She admitted people she did not know visited the house, but denied any had hurt her and denied seeing them use drugs. The social worker did not interview her brother because he was too young.
A social worker confirmed the identity of the children's father. On October 20, 2015, father admitted he is the biological father of both children, though his name does not appear on their birth certificates. On October 21, 2015, mother also identified him as the biological father.
The social worker reported mother's visits had been acceptable. She maintained consistent contact with the children by telephone and in person. The foster parent said mother calls BA daily and the conversations make BA happy. She reported mother is attentive to the children's needs and interacts with them during their visits.
The department recommended a case plan for mother aimed at helping her stay free from illegal drugs and maintain a stable and suitable residence for the children. The case plan would require mother to refrain from drug use, attend general counseling and a psychiatric medication evaluation, participate in a parent education program, take random drug tests, and enroll in a substance abuse treatment program. The department recommended continuing mother's twice-weekly supervised visit schedule.
Though the court initially found ICWA does not apply, the department reported information that could establish it does. The children's paternal aunt advised the social worker she and her children were registered tribe members of the Pit River Tribe, and their membership traces to the paternal great-grandfather. She said father (her brother) "was never around" when the family completed their registration. The aunt said she and her children receive services through Tribal TANF, Soboba Family Services, and Soboba Indian Clinic. She said father is likely eligible for registration. She also suggested the family may have ancestors in the Klamath Tribe. The social worker passed the information to the department's unit in charge of sending tribal notices, but they suggested the paperwork would not be complete by the next hearing. The jurisdiction/disposition report says the department sent notices to the Bureau of Indian Affairs, Indian Child & Family Services, the Klamath Tribes, the Modoc Tribe of Oklahoma, but not the Pit River Tribe.
The trial court, Judge Harry A. Staley presiding, held a contested jurisdictional and dispositional hearing on November 18, 2015. The court accepted a second amended petition, which amended the language of the counts without altering their number. Based on the social worker's reports, the juvenile court found all the allegations true by a preponderance of the evidence. The court found ICWA may apply and noted the department had sent notices to the tribes and the Bureau of Indian Affairs. The court sustained the petition and adjudged BA and JA dependents of the court, removed the children from mother, ordered the department to provide mother with reunification services, and approved her case plan. The court ordered visits to continue.
D. Six-month Review Hearing
The department filed a six-month status review report on May 5, 2016 and an addendum report on June 8, 2016, both prepared and signed by a new set of social workers.
1. Foster placement and progress on case plan
The children continued to do well in the same foster placement. They were healthy and current on their vaccinations. BA got along well with her brother and other people in the home, despite some normal disagreements about toys and games. JA loved to play with his sister and communicated in three or four word sentences. Both presented as emotionally healthy and neither needed mental health services. The social worker reported the children had adjusted well and established a bond with the foster family. The caregiver was attentive, the home was suitable, and the family was willing to keep the children long-term if reunification failed.
Initially, mother made progress on her case plan. The department referred her on October 8, 2015 for parenting classes, substance abuse treatment, and general counseling. She entered inpatient treatment on October 22, 2015, successfully completed the program on December 4, 2015, and said she had begun attending an outpatient program. She attended general counseling sessions while at the inpatient program and completed her program on December 6, 2015. She also successfully completed her first parent class on December 6, 2015.
After the inpatient treatment ended, her performance suffered. She sought additional counseling, but was discharged on March 14, 2016 for lack of attendance. She returned negative drug tests during her inpatient program, but tested positive for THC, amphetamines, and methamphetamines on March 8 and March 10, 2016. She denied the results were accurate, but then failed to test when directed to take follow-up urine tests. She returned negative tests on March 22 and April 21, 2016. She did not receive a reference for a psychotropic medication evaluation until February 1, 2016, and the report does not reflect any results. By May 2016, she had not obtained her own residence, but lived with friends in Corona. She had gained part-time work at an animal hospital and received food stamps.
2. Mother's visits and relationship with the children
Mother visited regularly over the first six months of reunification services. The social worker reported "she is attentive to BA and JA's needs. BA and JA appear to be calm in the visits and they interact well." The social worker noted mother occasionally cancelled a visit or left early, claiming her work schedule was constantly changing. Overall, the social worker concluded, mother "has been consistent with her visitation. The efforts reflect her level of commitment, towards the department no longer being involved in her life. Mother has a close and loving bond with her children. BA and JA are very responsive to their mother and when in her presence they are full of smiles and laughter, and appear to feel at ease."
Where names appear in quoted documents or transcripts, we substitute pronouns or the person's role or initials to safeguard confidentiality.
3. The children's status as Indian children
On April 27, 2016, the department sent a notice of the child custody proceedings to the Pit River Tribe, informing the tribe of the six-month review hearing. On May 13, 2016, the Pit River Tribe informed the department both children were eligible for enrollment "based on [their] parents['] names." The department filed the tribe's response with the court on May 27, 2016.
However, the department did not raise these facts in its report or addendum report. It also ignored its prior conclusion and the trial court's order that the children may be eligible for membership in the Pit River Tribe. In the six-month review report, the social worker says only, "On October 07, 2015, at the Detention Hearing, the Court made the determination that the Indian Child Welfare Act does not apply." The social worker said the department had talked with mother seven times and father once, and they had provided no information to suggest ICWA applied to the children. The addendum report says nothing about the children's status as Indian children.
4. The trial court's six-month review order
The department recommended the court order mother have an additional six months of reunification services. It also recommended the court find ICWA protections do not apply to the children.
A different trial court judge, Judge Jacqueline C. Jackson, presided over a six-month review hearing on June 16, 2016. Based on the social worker's reports, the juvenile court found mother had made minimal progress in alleviating or mitigating the causes of the children's removal. The court continued the foster care placement, ordered the department to provide six more months of reunification services to mother, and continued its visitation order. The trial court also found ICWA does not apply to the children.
The court also found father failed to make substantive progress on his case plan and terminated his reunification services.
E. Twelve-month Review Hearing
The department filed a 12-month status review report on October 27, 2016 and an addendum report on December 21, 2016.
1. Foster placement and progress on case plan
The children remained in the same foster care placement. They continued to do well and had established a bond with the family. They were physically and emotionally healthy and current on their vaccinations. BA had begun kindergarten, loved school, and was doing well academically. The foster family remained willing to keep the children in the long term if reunification failed.
Mother failed to make progress on her case plan and again suffered a drug relapse. In May 2016, she received referrals for counseling, a psychotropic medication evaluation, and an outpatient substance abuse treatment program. However, she had not attended the psychotropic medication evaluation, attended only two substance abuse sessions, and was not permitted to schedule a counseling session until she had been sober for 30 days. Meanwhile, she failed to test and returned positive drug tests. On July 14, 2016, she could not produce enough saliva to test and did not appear for an on-demand test. She tested negative for all substances on July 21, 2016. But on August 23, 2016, she tested positive for amphetamines, methamphetamines, and opiates. On September 22, 2016, she tested positive for opiates again, though she claimed she had a prescription for opiates "to treat a spot in the middle of her head." The social worker also reported mother was living in a sober living home in San Jacinto and continued to work part-time at an animal hospital. In addition, law enforcement arrested mother on September 16, 2016 for possessing drugs, counterfeit currency, and stolen mail.
In the December 21, 2016 addendum report, the social worker said mother was still not enrolled in services. Mother reported she had moved to a new sober living facility, but could not provide the name or address. She said she planned to attend an outpatient program starting December 6, 2016, but the department had not received any confirmation of her enrollment at the time of the report.
2. Mother's visits and relationship with the children
Mother continued to visit the children regularly, though she again canceled or shortened occasional visits due to her irregular work schedule. The visits went well. Mother was attentive and the children responded well.
3. The children's status as Indian children
The department again ignored its own original report, the Pit River Tribe notification, and the court's prior finding that the children may be of Indian heritage, saying only that "On October 07, 2015, at the Detention Hearing, the Court made the determination that the Indian Child Welfare Act does not apply."
4. The trial court's 12-month review order
The department recommended the court terminate services for mother and set a section 366.26 selection and implementation hearing to establish a permanent plan of adoption.
The trial court, Judge Jean Pfeiffer Leonard presiding, held a 12-month review hearing on December 21, 2016. Based on the social worker's reports, the court found ICWA did not apply to the children. It also found mother had made minimal progress in alleviating or mitigating the causes of the children's removal. The court found by clear and convincing evidence there was no substantial probability the children could return to her custody with additional reunification services. The court terminated mother's services and set a hearing under section 366.26 to select a permanent placement plan for the children. The court reduced mother's visits to a minimum of two times a month and awarded educational rights to the current caregivers.
F. Termination of Parental Rights
In a section 366.26 report filed on April 10, 2017, the social worker reported BA and JA continued doing well in the same foster placement. They had bonded with the foster family and were comfortable in the placement. The social worker concluded the children are adoptable and the foster caregiver had filed an application to adopt them. The social worker said the children "are happy to be in the home. They have established a close bond with the prospective adoptive parent[] throughout the time being placed in the home. They are always smiling and full of joy. The interaction is loving and affectionate with the family."
In an addendum report, the social worker described the placement. The prospective adoptive mother is a Hispanic woman in her mid-fifties who had worked for the same employer for 22 years. She lived with two adult daughters, ages 21 and 25. The father had not been a part of the household for many years. The family lived in a rented two-story home located in a quiet neighborhood. The house had four bedrooms, three bathrooms, a living room, dining room, kitchen, and loft. Each child had a bedroom.
The social worker reported the prospective adoptive mother is very bonded with the children. She said it was easy for her to decide to adopt because she had fallen in love with both children. She said she could not imagine the children going to another home and is very committed to providing a loving and stable home. The social worker said the children and the prospective adoptive mother had developed a strong, reciprocal bond. The social worker said BA did not understand the concept of adoption. However, she said she likes her home and would not want to live anywhere else. The social worker said JA had "an amazing connection and attachment with the prospective adoptive mother and her adult daughters."
The social worker characterized mother's visits as sporadic through this period, though she described them in the same terms she had used in earlier reports which characterized her visits as regular. The social worker said the visits went well, mother was attentive to the children's needs, and the children were calm and interacted well, but mother occasionally canceled visits or left early.
Before the 366.26 hearing, mother filed section 388 petitions asking the court to reinstate reunification services for both children. She argued her circumstances had changed since the 12-month review hearing. She claimed she had stopped using drugs, was seeking treatment, and had found work and a residence for herself and her children.
The court, Judge Jacqueline C. Jackson presiding, held a section 366.26 hearing on June 30, 2017. The court reviewed the social worker reports and admitted them into evidence. Mother submitted stipulated testimony about her circumstances. She said she had been attending a drug counseling program at Cerritos Mission Church for four months, during which period she had tested negative between six and eight times. The church program had referred her to Alternative Options, an outpatient mental health and drug counseling program, and mother had been trying to schedule an intake meeting for the last two weeks. She claimed she had been sober since October 2016, though provided no substantiation of that claim. Finally, she said she had worked for the last four months as a live-in caregiver, earning $400 a week. Her employer was willing to have the children live in the home.
The court also heard BA's testimony about her relationship with her mother. BA said she loves her mother, enjoys her visits, and misses her when she is not around. She said she would rather live with her mother than her foster caregiver. Asked why, she said it was because mother cooks her foods she likes, such as pancakes and brownies, but the caregiver does not know how to cook those foods. BA also said she loved the caregiver and misses the caregiver when they are apart.
The court found by clear and convincing evidence it was likely the children would be adopted. The court then determined its findings at the December 21, 2016 hearing provided a sufficient basis for terminating mother's parental rights. Specifically, the court based its determination on findings reasonable services had been provided to mother to overcome the problems that led to removal; despite those services, the children could not be returned to her custody; and there was no substantial probability of return within six months. The court also found by clear and convincing evidence none of the exceptions to terminating parental rights applied and adoption would be in the children's best interest. The court ordered mother's parental rights severed, referred BA and JA to the county adoption agency for placement, and ordered an application for adoption by the current caregiver be given preference over any other application.
II
DISCUSSION
A. ICWA Protections Do Not Apply to Enrollment-Eligible Children Whose Parents Are Not Tribe Members
Mother argues we should reverse the order terminating parental rights because insufficient evidence supports the juvenile court's finding ICWA does not apply to her children. She points out the Pit River Tribe informed the department and the department informed the court that the children were eligible for enrollment. Citing California Rules of Court, rule 5484(c)(2), mother claims their eligibility alone required the department to take affirmative steps to help her children enroll in the tribe. It is uncontested the department did not take such steps.
ICWA imposes heightened protections for Indian families involved in state child custody proceedings. The party seeking to remove an Indian child or terminate parental rights over the child must notify the child's tribe of the proceeding and their right to intervene. (25 U.S.C. § 1912(a); In re Abbigail A. (2016) 1 Cal.5th 83, 91 (Abbigail A.).) The tribe may intervene in the proceedings at any point. (25 U.S.C. § 1911(c); Abbigail A., at p. 91.) In some cases, the court must transfer the proceedings to the jurisdiction of the tribe. (25 U.S.C. § 1911(b); Abbigail A., at p. 91.) Where the state court retains jurisdiction, it may not remove the child unless it determines by clear and convincing evidence—including testimony of qualified expert witnesses—that continuing custody with the parent or Indian custodian may result in serious emotional or physical damage to the child. (25 U.S.C. § 1912(e); Abbigail A., at p. 91.) The court may not terminate parental rights unless it determines beyond a reasonable doubt that continuing custody with the parent or custodian would create such a risk. (25 U.S.C. § 1912(f); Abbigail A., at p. 91.) The court must give preference to adoption with the child's extended family, other tribe members, or other Indian families. (25 U.S.C. § 1915(a).) In addition, the child, parent, custodian, or tribe may bring a collateral challenge to any placement or termination that has not complied with these protections. (25 U.S.C. § 1914; Abbigail A., at p. 91.)
These heightened protections apply only to children who satisfy the ICWA definition of "Indian child." (Abbigail A., supra, 1 Cal.5th at p. 90.) Both the federal statute and our Supreme Court have made clear a child is an "Indian child" only if the child or one of her parents is a tribe member. "Congress defined 'Indian child' . . . to mean 'any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) [...] eligible for membership in an Indian tribe and [...] the biological child of a member of an Indian tribe.'" (Ibid., quoting 25 U.S.C. § 1903(4), italics added.) In 2006, the Legislature incorporated ICWA's requirements into California statutory law, specifying "'Indian child' and ICWA's other critical terms 'shall be defined as provided in [ICWA].'" (Abbigail A., at p. 91, quoting Welf. & Inst. Code, § 224.1, subd. (a).)
In Abbigail A., the Supreme Court held the Judicial Council had improperly extended the ICWA protections by adopting former California Rules of Court, rule 5.482(c), which explicitly required the courts to apply ICWA protections to some children who are not Indian children as defined by statute. The former rule provided if a tribe says "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." (Cal. Rules of Court, former rule 5.482(c) (2016 ed.), italics added.) Because, as in Abbigail A. and this case, a child may be eligible to enroll in a tribe even if her parent is not a member, the rule required the juvenile court to apply the ICWA protections to some children who were not Indian children as defined by statute. (Abbigail A., supra, 1 Cal.5th at p. 92.) The Abbigail A. court explained the Legislature's purpose in incorporating ICWA's provisions into California statutory law was to increase compliance with ICWA, not "to apply ICWA's requirements to, or require membership applications be made on behalf of, children who are not Indian children as defined in ICWA. Instead, the Legislature left cases not involving Indian children subject to the statutes generally applicable in dependency proceedings." (Abbigail A., at p. 93.) Accordingly, the court invalidated the rule as inconsistent with the statutory scheme.
The same reasoning applies to mother's request that we read California Rules of Court, rule 5.484(c)(2) as requiring the department to take active steps to aid any eligible child to enroll in a tribe for which they are eligible. The rule says "to place an Indian child with someone other than a parent or Indian custodian, or to terminate parental rights, the court must find that active efforts have been made . . . to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family," and that such efforts "include[d] pursuit of any steps necessary to secure tribal membership for a child if the child is eligible for membership in a given tribe." (Rule 5.484(c)(2).) Under mother's interpretation, the department is required to actively assist a child who is eligible for tribal enrollment whose parent is a tribe member (that is, an eligible Indian child) as well as a child who is eligible for tribal enrollment neither of whose parents is a tribe member (that is, an eligible non-Indian child).
Unlabeled rule citations refer to the California Rules of Court.
The Supreme Court's construction of rule 5.484(c)(2) in Abbigail A. is instructive. There, the court upheld rule 5.484(c)(2) at the same time it invalidated rule 5.482(c). (Abbigail A., supra, 1 Cal.5th at pp. 90-91, 96.) It did so because it determined rule 5.484(c)(2) applies only to those children who satisfy the statutory definition of "Indian child." (Id. at p. 96.) "Unlike rule 5.482(c), which directs the juvenile court to proceed in certain cases 'as if' a child were an Indian child, rule 5.484(c)(2) speaks only to the court's obligations in a case involving an 'Indian child' as defined by law. Read in this manner, according to its plain language, the rule is not inconsistent with any state statute implementing ICWA." (Ibid.) It follows neither the court nor the department has a duty under the rule to actively assist a non-enrolled eligible child to obtain tribal membership if neither parent is a member. Such a child is not an Indian child as defined by statute.
It is undisputed both children are eligible for membership in the Pit River Tribe. It is also undisputed neither child was, during the proceedings in the juvenile court, a member of the tribe. Thus, whether BA and JA are Indian children, as defined by statute, turns entirely on whether one of their parents is a tribe member. If neither parent is a member, they do not satisfy the definition of Indian child and the proceedings in the trial court were not governed by ICWA. The state of the evidence on this point is similarly clear. The department reported it had conducted several interviews with the children's biological parents, and they did not provide any information to suggest ICWA applied to the children. Moreover, father's sister, who is a tribe member, said father was not around when their family enrolled in the Pit River Tribe, but said she believes he likely is eligible for the same reasons she was. Thus, there is substantial support for finding father was eligible for membership, but not a member. Mother points us to no contrary evidence on appeal.
It follows that, although both children are eligible for membership in the Pit River Tribe, neither qualifies as an Indian child. Consequently, unless and until one of the children or one of their parents becomes enrolled, neither ICWA nor rule 5484(c)(2) applies to these dependency proceedings. We therefore conclude the trial court's determination that BA and JA were not Indian children and the protections of ICWA did not apply to their case was supported by substantial evidence. And while the record suggests both the department and the court dropped the ball in handling this issue, we affirm the trial court where, as here, the record supports its ruling. (Day v. Alta Bates Medical Ctr. (2002) 98 Cal.App.4th 243, 252, fn. 1 ["[W]e may affirm a trial court judgment on any basis presented by the record whether or not relied upon by the trial court"].)
Mother cites In re C.B. (2010) 190 Cal.App.4th 102 as holding rule 5484(c)(2) requires the department to make reasonable efforts to enroll an eligible child even if she does not qualify as an Indian child. On the contrary, the court noted the statutory active efforts requirements "apply only to an 'Indian child' as defined by the ICWA" and "question[ed] whether rule 5.482(c) and rule 5.484(c) are consistent with the controlling statute." (Id. at p. 135.) The trial court merely assumed the rules applied and affirmed on the basis that the agency's efforts were in fact reasonable. (Id. at pp. 136-138.) --------
B. The Trial Court Did Not Abuse Its Discretion by Finding No Changed Circumstances
Mother argues the juvenile court abused its discretion in denying her section 388 petitions. We disagree.
"A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new or changed circumstances exist, and (2) the proposed change would promote the best interest of the child. [Citation.] The parent bears the burden to show both a '"legitimate change of circumstances"' and that undoing the prior order would be in the best interest of the child." (In re S.J. (2008) 167 Cal.App.4th 953, 959.) To support a section 388 petition, the change in circumstances must be substantial. (In re Heraclio A. (1996) 42 Cal.App.4th 569, 577.) A petition must allege changed circumstances, not merely circumstances that are in the process of changing. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) Addressing a section 388 petition lies within the discretion of the juvenile court, and we will not overturn its decision unless the juvenile court clearly abused that discretion by making an arbitrary, capricious or patently absurd determination. (In re S.J., at pp. 959-960; In re A.S. (2009) 180 Cal.App.4th 351, 358.)
Here, the primary cause of the removal was mother's long-term abuse of methamphetamine and other drugs. Her dependence on drugs interfered with her ability to provide a safe environment for her children. She was not able to maintain regular work, relied on borrowing money to live, and resided with her children in a home she acknowledged was a "party home."
Mother contends she showed a change in circumstances. She points out she had enrolled in a new outpatient drug counseling program four months before the termination of her parental rights, claimed she had stayed off drugs since October 2016, and obtained a stable residence for her children by obtaining work as a live-in caregiver. She claimed to have returned six to eight negative drug tests during the course of her outpatient program.
We commend mother for seeking substance abuse treatment, maintaining her sobriety, and obtaining work. However, her efforts came too late to save her parental rights. It is well established a short period of sobriety does not demonstrate changed circumstances. On the contrary, "[i]t is the nature of addiction that one must be 'clean' for a much longer period . . . to show real reform." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9; see also In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [no changed circumstances where "recent efforts at rehabilitation were only three months old at the time of the section 366.26 hearing"].)
Mother's own experience early in this case shows why the courts are reasonable to be skeptical of last-minute rehabilitation. Soon after the jolt of losing custody of her children, mother entered a six-week inpatient drug treatment program. She completed the program successfully on December 6, 2015 and said she had begun attending an outpatient program. But within months, she had suffered a relapse. She tested positive several times between March and September 2016. In September 2016, she suffered an arrest for drug possession among other offenses. Only the fresh jolt of scrutiny for her 12-month review hearing and the termination of reunification services brought her back to treatment. Within two months she had entered an outpatient treatment and presented some indicia of success. But this is a case of too little, too late, and the trial court reasonably concluded mother had established her circumstances were changing, not that they had changed. (In re Casey D., supra, 70 Cal.App.4th at p. 47.)
To convince the trial court her circumstances had changed, mother needed to provide stronger support. Mother had a very long history of substance abuse. She began using methamphetamine at age 15. She had taken the initial steps toward sobriety in the past, only to relapse. Her testimony that she had attended a drug counseling and group therapy program for four months at her church and returned several negative drug tests were simply not enough to reassure the trial court that she had gone beyond those first steps in her current recovery effort. On these facts, we cannot conclude the trial court's determination that her efforts were insufficient to show a change in circumstances with respect to her drug addiction was arbitrary, capricious, or patently absurd. (In re Casey D., supra, 70 Cal.App.4th at p. 47.)
Furthermore, even if mother had demonstrated a substantial change in circumstances, reunification services would not be in the children's best interest. "After the termination of reunification services . . . 'the focus shifts to the needs of the child for permanency and stability.'" (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) BA and JA have been in the same foster care placement for most of their young lives. They have formed a strong and healthy bond with their prospective adoptive family, who have provided a nurturing environment and are committed to adopting them. Though BA testified she loved her mother and wanted to live with her, she also said she loved her caregiver, missed the caregiver when they were apart, and did not want to live in another home. Granting a section 388 petition would delay selection of a permanent home for the children and not serve their best interests. (In re Casey D., supra, 70 Cal.App.4th at p. 47.) "'Childhood does not wait for the parent to become adequate.'" (In re Ernesto R. (2014) 230 Cal.App.4th 219, 224.) Mother and her children may well feel a strong bond, but we cannot conclude the trial court acted unreasonably or arbitrarily in finding it would be detrimental to disturb the bond between the children and their prospective adoptive family and to introduce further delay in the adoption process. Denial of the petitions was proper.
C. The Beneficial Relationship Exception Does Not Apply
Mother argues the court erred in failing to find the parental benefit exception to terminating parental rights applied to her children, and especially her daughter BA. We find no abuse of discretion.
"'Adoption, where possible, is the permanent plan preferred by the Legislature.'" (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.) Once the juvenile court finds a child is adoptable, the parent bears the burden of proving one of the exceptions to terminating parental rights exist. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343.) "[I]t is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
The exception at issue here, commonly called the parental benefit exception, "applies when there is a compelling reason that the termination of parental rights would be detrimental to the child. This exception can only be found when the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (In re Anthony B. (2015) 239 Cal.App.4th 389, 395; see also § 366.26, subd. (c)(1)(B)(i).) California courts have interpreted this exception to apply to only those parent-child relationships the severance of which "would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
"[T]he court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (In re J.C. (2014) 226 Cal.App.4th 503, 528-529.) We defer to the juvenile court's determination whether a beneficial parental relationship exists, reversing only where the court has abused its discretion by basing findings of fact on less than substantial evidence or by acting arbitrarily or capriciously in determining whether the relationship provides "a 'compelling reason' for finding detriment to the child." (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1315.)
Here, mother maintained regular visitation and contact with both children, so we focus on the nature of the parent-child relationship. Mother argues the evidence demonstrates the children, and especially BA, would benefit from continued contact with her because they had positive visits and they shared a strong bond. Mother says she appropriately cared for BA, who enjoyed their visits. But a successful invocation of the parental benefit exception does not rest on whether the parent-child contacts "'confer some incidental benefit to the child.'" (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) Mother, at best, established she had pleasant contacts with a child for whom she had not provided primary care for two years, and with whom she had not progressed to unmonitored contact. That is not enough.
In re Jerome D. (2000) 84 Cal.App.4th 1200 (Jerome D.) illustrates the kind of compelling evidence that will justify applying the benefit exception. In Jerome D., the child "seemed lonely, sad, and . . . 'the odd child out'" in his placement. (Id. at p. 1206.) The child wanted to live with his mother and had enjoyed unsupervised night visits in her home. (Id. at pp. 1206-1207.) A psychologist said the child and mother "shared a 'strong and well[-]developed' parent-child relationship and a 'close attachment' approaching a primary bond." (Id. at p. 1207.) The court concluded keeping parental rights intact would prevent the child's "position as the odd child out in [placement] from becoming entrenched by a cessation of visits and the loss of his mother while [his half siblings] continued to enjoy visits and remained [the mother's] children." (Id. at p. 1208.)
Here, mother did not demonstrate any such circumstances to suggest her children would be similarly harmed by terminating her parental rights. BA had begun kindergarten and was doing well academically. Both children had bonded with their new mother, appeared to be thriving in the potential adoptive home, and BA expressed happiness with her foster family, saying she did not want to live anywhere else. Moreover, the prospective adoptive mother was committed to providing a loving and stable home for the children. Though mother's visits with her children went well, she never progressed to unsupervised visits with her children, much less overnight or weekend visits. Moreover, unlike in Jerome D., the siblings remain together.
At the permanency stage, we must balance the bond the child shares with the parent and the harm that might arise from terminating parental rights against the benefits of a permanent stable home, and "it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) The parental benefit exception will apply only where the parent has demonstrated the benefits to the child of continuing the parental relationship outweigh the benefits of permanence through adoption. Nothing in this record suggests the benefit the children might gain by continuing their relationship with mother outweighs the well-being they would gain from having a permanent home.
We cannot conclude the trial court acted arbitrarily and without substantial evidence by determining the parent-child bond did not override the children's need for the stable, permanent home with a prospective adoptive family who was already meeting their needs and interested in adopting them.
III
DISPOSITION
We affirm the trial court's orders.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: RAMIREZ
P. J. McKINSTER
J.