Opinion
E079185
07-11-2023
In re G.H. et al., Persons Coming Under the Juvenile Court Law. v. A.B., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Sean Angele Burleigh, under appointment by the Court of Appeal, for Defendant and Appellant. Minh C. Tran, County Counsel, Teresa K.B. Beecham and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. INJ2100027 Susanne S. Cho, Judge. Affirmed with directions.
Sean Angele Burleigh, under appointment by the Court of Appeal, for Defendant and Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
CODRINGTON, J.
I.
INTRODUCTION
A.B. (Mother) appeals the juvenile court's denial of her petition under Welfare and Institutions Code section 388 and the court's finding that the Indian Child Welfare Act of 1978 and related California law (collectively, ICWA) does not apply to the dependency proceedings concerning her minor children. The Riverside County Department of Social Services (the Department) contends the juvenile court properly denied Mother's section 388 petition, but concedes the court's ICWA finding was erroneous because the Department failed to discharge its duty of inquiry into the children's possible Indian ancestry. We vacate that finding and remand for compliance with ICWA, but we otherwise affirm.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
"[B]ecause ICWA uses the term 'Indian,' we do the same for consistency, even though we recognize that other terms, such as 'Native American' or 'indigenous,' are preferred by many." (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1)
II.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2021, the Department received a referral alleging general neglect and emotional abuse of Mother's four minor children, seven-year-old Ga.H., five-year-old N.H., four-year-old E.H. and twenty-month-old Gi.H. Ga.H. reported he saw Father hitting Mother.
Because Father is not a party to this appeal, we need not discuss the facts and dependency proceedings concerning him.
A Department social worker investigating the referral interviewed the parents and children. Mother confirmed Father's recent abuse and reported that they both have a history of using methamphetamine. Mother has been in several substance abuse programs, but none had been successful. The social worker offered Mother drug treatment and other services, but she declined them.
In February 2021, the Department filed a section 300 petition on behalf of Ga.H., N.H., E.H., and Gi.H., alleging that the parents had engaged in domestic violence and had substance abuse issues. After a contested detention hearing, the juvenile court ordered the children detained while ordering visitation and substance abuse and parenting services for the parents. The children were placed in foster care.
In April 2021, the juvenile court held a contested jurisdictional hearing. The juvenile court found that ICWA did not apply and that the Department conducted an adequate inquiry regarding whether the children may have Indian ancestry. The court also found the allegations in the petition true, adjudged the children dependents of the court, removed physical custody from the parents, and ordered family reunification services for the parents.
The juvenile court again found ICWA did not apply in June 2022.
In a July 2021 review hearing report, the Department reported that Mother tested positive for methamphetamine in April 2021 and had missed all recent random drug tests. At the July 2021 review hearing, the juvenile court ordered Mother to participate in a substance abuse program. Although the Department offered her drug treatment services in March 2021, Mother had not enrolled in them.
Mother eventually enrolled in a drug treatment program on November 1, 2021, but told the social worker she would complete it by December 2, 2021. The social worker asked Mother if the program was a 90-day program, and Mother confirmed that she could stay up to 90 days but would only stay for 30. Mother also refused to take her prescribed psychiatric medication and had trouble following the directions and rules of her drug treatment program. Her boyfriend also struggled with substance abuse. Although Mother had recently attended therapy three times, she stopped attending domestic violence courses.
For all of these reasons, the Department recommended the juvenile court terminate services for Mother. The juvenile court did so at a hearing on December 1, 2021, and set a section 366.26 hearing.
In March 2022, however, Mother filed a section 388 petition requesting family reunification or family maintenance services. Mother argued her circumstances had changed because she had completed a substance abuse program and a parenting program in January 2022, she was participating in therapy, she tested negative for drugs six times since February 10, 2022, she began domestic violence classes in February and was scheduled to complete them by April, she had resumed working, and she had a home for the children. Mother argued further services were in the children's best interests because she had addressed the issues that led to their removal, she had regularly visited them, and they would be best served by reuniting with her. Mother later filed an amended section 388 petition making the same requests but with additional supporting documentation.
The juvenile court held a hearing on Mother's section 388 petition in June 2022. After hearing argument from counsel and testimony from Mother, Father, and a Department social worker, the juvenile court denied Mother's petition. The court found that, despite Mother's recent period of sobriety, her circumstances had not changed given her long history of methamphetamine use and her extensive domestic violence history with Father. The court also found that granting Mother's petition was not in the children's best interests because they were thriving and were free of the "very traumatic" environment while in parents' care. Mother timely appealed.
III.
DISCUSSION
Mother argues the juvenile court prejudicially erred by (1) holding the hearing on her section 388 petition in a "haphazard manner" that "violat[ed] basic rules of procedure and evidence" and her due process rights, and (2) denying her petition.
As for Mother's first contention, she claims the juvenile court erroneously solicited and received unsworn statements containing hearsay from the parents, the social worker, and the children's attorney. We conclude Mother forfeited any argument that the juvenile court erred by holding the section 388 hearing the way that it did because she never objected on the grounds she now raises on appeal for the first time. (See In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on another ground as stated in In re Aaron J. (2018) 22 Cal.App.5th 1038, 1050.)
Mother acknowledges she did not object during the hearing, but notes that at one point her counsel alerted the court that it was considering hearsay. Her counsel's statement came just after the children's counsel stated that the parents did not ask how Gi.H. was doing after surgery. Counsel stated, "I know [Mother] wants to make a statement also because this is a surprise, the hearsay somebody said she didn't inquire. I think Mother refutes that." Thus, when viewed in context, counsel's statement was not an objection to anything the juvenile court was or was not doing, but was instead only a request to allow Mother to testify to challenge a specific portion of the children's counsel's argument. Mother's counsel's statement cannot reasonably be construed as an objection to how the juvenile court was holding the hearing.
Mother alternatively argues that her failure to object should be excused because any objection would be futile. (See In re R.G. (2017) 18 Cal.App.5th 273, 288-289.) We disagree. Mother never objected during the hearing, and nothing in the hearing transcript (or elsewhere in the record) suggests the juvenile court would not have considered Mother's properly objections. The only objection the juvenile court considered-and overruled-at the section 388 hearing was from the children's counsel, and the court often considered and ruled on the parties' objections at other hearings. In short, "[t]here is no support for [Mother's] assertion on appeal that the [juvenile] court necessarily would have overruled objections based on the specific grounds [s]he now raises on appeal." (People v. Thomas (2012) 54 Cal.4th 908, 939.)
As a result, we conclude Mother forfeited her arguments about the way in which the juvenile court conducted the section 388 hearing. We decline to exercise our discretion to consider the arguments, which "should be exercised rarely and only in cases presenting an important legal issue." (In re C.M. (2017) 15 Cal.App.5th 376, 385.) This case does not present an important legal issue, nor do we believe it is a rare case in which Mother's forfeiture should be excused. (See e.g., In re M.S. (2019) 41 Cal.App.5th 568, 589 [considering forfeited argument in "exceptional case" where juvenile court "wrongfully terminated" parental rights after erroneously setting section 366.26 hearing].)
In any event, any error in how the juvenile court conducted the hearing on Mother's section 388 petition was harmless under any standard. (See In re Justice P. (2004) 123 Cal.App.4th 181, 193 [applying federal beyond-a-reasonable-doubt standard to assess prejudice].) Mother argues the juvenile court erred by admitting and considering unsworn testimony and statements at the hearing.
But in stating its ruling on Mother's petition, the juvenile court denied it because "[i]n terms of focusing on changed circumstances, I look at the evidence presented to th[e] court by way of [the Department's] reports," which showed that Mother's circumstances had not changed such that her petition should be granted. The juvenile court thus expressly based this finding (which is dispositive, as discussed below) on the Department's reports, not the purportedly improper testimony and statements presented at the section 388 petition hearing. There is no sign that the juvenile court relied on that evidence to deny the petition.
Mother next argues the juvenile court erroneously denied her section 388 petition. We disagree.
"Section 388 permits the parent of a dependent child to petition the juvenile court for a hearing to modify an earlier order on the basis of changed circumstances or new evidence. [Citation.] The petitioning party bears the burden of showing that there is new evidence or changed circumstances and that the proposed modification would be in the best interests of the child. [Citation.]" (In re N.F. (2021) 68 Cal.App.5th 112, 120.)
"Whether the juvenile court should modify a previously made order rests within its discretion, and its determination may not be disturbed unless there has been a clear abuse of discretion." (In re J.C. (2014) 226 Cal.App.4th 503, 525.) "It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 522.) The juvenile court's order denying a section 388 petition will be reversed only if the court "'"has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]."' [Citations.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
The juvenile court here properly found that Mother's circumstances were changing, not changed. Although Mother had remained sober for several months before the section 388 hearing, the juvenile court reasonably found that this period of sobriety was insufficient to find that Mother's circumstances had changed such that her petition should be granted. (See In re N.F., supra, 68 Cal.App.5th at p. 121 ["In the context of a substance abuse problem that has repeatedly resisted treatment in the past, a showing of materially changed circumstances requires more than a relatively brief period of sobriety or participation in yet another program."]; In re Kimberly F., supra, 56 Cal.App.4th at p. 531, fn. 9 ["It is the nature of addiction that one must be 'clean' for a much longer period than 120 days to show real reform."].) For that reason alone, the juvenile court did not abuse its discretion by denying Mother's section 388 petition. (See In re N.F., supra, at p. 121 [parent must show changed circumstances and that granting section 388 petition is in children's best interests].)
Finally, Mother argues, and the Department concedes, that the Department did not conduct an adequate inquiry into the children's potential Indian status as required by ICWA and related California law. We agree. Given that there is no dispute that the Department failed to contact various readily available relatives to ask about the children's potential Indian heritage, there is also no dispute that the Department failed to discharge its ICWA inquiry obligations. (See In re Benjamin M., supra, 70 Cal.App.5th at p. 744.) We therefore vacate the juvenile court's finding that ICWA does not apply, but we otherwise affirm and direct the juvenile court on remand to order the Department to comply with its inquiry and, if applicable, notice obligations under ICWA and related California law. (See In re Dominick D. (2022) 82 Cal.App.5th 560, 567.)
IV.
DISPOSITION
The juvenile court's denial of Mother's section 388 petition is affirmed, but the court's finding that ICWA does not apply is vacated. On remand, the juvenile court is directed to order the Department to comply with its inquiry and, if applicable, notice obligations under ICWA and related California law.
We concur: McKINSTER, Acting P. J. MILLER, J.