Opinion
E072602
11-04-2019
In re C.E. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. T.E., Defendant and Appellant.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. J225902 & J225903) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed. Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
In February 2009, C.E. and D.E., who are currently 14 and 17 years old, respectively, were removed from their parents, T.E. (Mother) and P.E. (Father), pursuant to Welfare and Institutions Code section 300, due to domestic violence in the home and the parents' substance abuse history. Following a short family maintenance period when the children were returned to Mother's care, in November 2010, the San Bernardino County Children and Family Services (CFS) re-removed the children from Mother's custody under section 387. In November 2011, the juvenile court issued letters and orders of guardianship awarding custody of C.E. and D.E. to their paternal grandmother, terminated its jurisdiction, and dismissed the matter.
Father is not a party to this appeal.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
Approximately eight years later, in April 2019, Mother filed two section 388 petitions seeking to reopen the dependency proceedings, primarily to reinstate her reunification services and to apply the Indian Child Welfare Act (ICWA) to the case. The juvenile court denied both petitions, finding that even if Mother's circumstances had changed, there was no evidence to show the proposed change would be in the children's best interest. On appeal, Mother contends that the juvenile court abused its discretion in denying her section 388 petitions because under ICWA there is a presumption it is in the best interest of the child to retain tribal ties and cultural heritage and the court violated its duty to ensure notice to the tribe of its right to intervene. We find no error and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
On February 24, 2009, an investigating social worker responded to a referral alleging emotional abuse and general neglect of C.E., then age four, D.E., then age seven, and a half sibling, C.S., then age 13. Prior similar referrals alleged additional abuse to the children as a result of domestic violence between the parents. The allegations stated that Father physically abused Mother in the presence of the children and that C.S. sustained physical injuries when she attempted to stop her parents from fighting. C.S. reported she was constantly worried about Mother and was afraid to leave Mother alone. C.S. also reported drug use in the home. Mother denied the allegations. Father was arrested on charges of inflicting injuries on a child and violation of parole.
C.S., who is over the age of majority, is not a subject of this appeal.
Given Mother's denial and minimization of domestic violence, CFS took the children into protective custody. On February 26, 2009, CFS filed petitions on behalf of the children pursuant to section 300, subdivisions (b) (failure to protect), (c) (serious emotional damage), (g) (no provision for support), and (j) (abuse of sibling).
The Judicial Council ICWA-010(A) form indicated that C.E. and D.E. may be a member or eligible for membership in "Navajo-Dine, Little Water, New Mexico" tribes, "Clan: Golden Metal People," through the maternal side of the family. The detention report noted that ICWA "does or may apply."
At the detention hearing held on February 27, 2009, Mother filled out a Judicial Council ICWA-020 form indicating that she is or may be a member of, or is eligible to enroll in a federally recognized tribe. Mother named "Navajo-Dine, [c]lan—Golden Meadow People" as the eligible tribe. At the hearing, Mother stated that she had Navajo Indian heritage and that she was "an enrolled member of the Navajo Indian tribe." Mother was ordered to provide the information to the social worker. Mother also indicated that Father had no Indian heritage. Father reported he had no Indian ancestry on March 2, 2009.
CFS recommended the court find true the allegations in the petition and offer reunification services to Mother. Regarding ICWA, the social worker noted that Mother claimed "Navajo from New Mexico ancestry traced through her maternal and paternal family." In her interview with the social worker on March 11, 2009, Mother explained that her mother (the children's maternal grandmother) gave custody of Mother to her maternal grandmother (the children's maternal great-grandmother) and her mother moved to New Mexico. Mother also reported that she had three half siblings who were raised by her mother (the maternal grandmother) "in New Mexico in the Navajo reservation." Mother remained in California and was not raised by her mother.
On March 20, 2009, CFS requested a continuance to initiate ICWA notice. The court granted the request and a further hearing was set for April 13, 2009.
On April 9, 2009, CFS filed Judicial Council ICWA-030 notices. An ICWA Declaration of Due Diligence dated April 13, 2009, indicated that CFS had noticed the Navajo Nation, the Colorado River Indian Tribes, the U.S Department of the Interior Bureau of Indian Affairs (BIA), and the BIA.
At the April 13, 2009 hearing, the court set the matter for mediation and a contested jurisdictional/dispositional hearing. CFS advised the court that ICWA noticing had been initiated. However, "additional information" had to be sent out.
CFS sent another set of Judicial Council ICWA-030 notices dated April 30, 2009. These notices contained additional information regarding Mother's biological grandmother (the children's maternal great-grandmother). The notices included an additional last name, date of birth, and tribal membership/enrollment number. Mother's biological grandfather's (the children's maternal great-grandfather) information was also updated, and included the missing date of birth, tribal affiliation, and tribal membership number. An attachment to the notices included a "Certificate of Navajo Indian Blood" dated August 27, 1954, certifying that the maternal biological grandfather (the children's maternal great-grandfather) was listed on the Navajo Indian Census Roll. Another attachment for "Order for Name Change" from the Family Law Court of the Navajo Nation indicated a name change for the maternal grandmother (the children's maternal great-grandmother) with the corresponding change of the tribal enrollment records.
On April 24, 2009, the Colorado River Indian Tribes sent CFS a letter noting the children were not members or eligible for enrollment with the Colorado River Indian Tribes.
On April 28, 2009, CFS received correspondence from the Navajo Nation explaining that because "the children do not meet the 1/4 Navajo blood quantum requirement for enrollment by the Navajo Nation[,] therefore, the children [are] not eligible for enrollment or ICWA services with the Navajo Tribe. The Navajo Children & Family Services (ICWA) will not be opening a case file." The Navajo Nation also sent Mother a "Notice of Denial of Your Request for Social Services," stating that the children did not meet the quarter blood quantum requirement and provided Mother with the notice of appeal of the decision.
An ICWA Declaration of Due Diligence dated May 5, 2009, indicated that CFS noticed the Navajo Nation, the Colorado River Indian Tribes, the U.S Department of the Interior BIA, and the BIA. Return receipts were received from the BIA dated April 20, 2009, the U.S. Department of the Interior dated April 24, 2009, the Colorado River Indian Tribes dated April 20, 2009, and the Navajo Nation dated April 20, 2009.
The jurisdictional/dispositional hearing was held on May 5, 2009. At that time, the court took jurisdiction over the children pursuant to the mediation agreement, declared them dependents of the court, and ordered Mother to participate in reunification services. Mother's case plan required her to complete a domestic violence program, general counseling, a parenting program, and an outpatient substance abuse program, and randomly drug test. The children were placed together in a foster home. However, CFS had begun a relative placement assessment of the maternal great-grandparents.
On July 8, 2009, CFS filed a non-appearance packet regarding "ICWA Determination." Based on the responses received from all sources indicating that the children were not members of an Indian tribe or eligible to enroll in the tribe, CFS requested the court to make a finding that CFS complied with the ICWA noticing requirements and that ICWA did not apply. The court made the ICWA findings on July 29, 2009.
In July 2009, the children were placed with the maternal great-grandparents.
On October 14, 2009, CFS submitted a request authorizing the children to travel to New Mexico to attend the maternal grandfather's funeral. Mother was authorized to travel with the children and their relative caregivers.
On November 5, 2009, CFS recommended returning the children to Mother on family maintenance. The social worker reported that Mother made substantial progress in maintaining her sobriety and participating in counseling, domestic violence, and parenting programs. Mother completed a domestic violence program, a substance abuse program, and a parenting program and received in-home parenting sessions through an Indian parent trainer.
On November 30, 2009, the children were returned to Mother's care on family maintenance services.
By June 2010, CFS continued to recommend family maintenance services for Mother. Mother's therapist recommended that Mother resume participation in Narcotics Anonymous (NA) meetings because the therapist believed Mother relapsed in engaging in addict behavior. The social worker was also concerned that Mother had allowed Father to spend the night at the home when the court had granted him supervised visits only. In addition, Mother was missing her therapy sessions and "reverting back to old coping styles by minimizing and avoiding," which previously led to violent behavior. As a result, the social worker recommended an additional six months of family maintenance services.
On June 1, 2010, the court provided Mother with additional family maintenance services and ordered her to participate in her case plan.
By November 2010, the social worker learned that Mother had visited Father with the children in violation of a stay away order and the juvenile court's order for supervised visits for Father. Because Father violated his parole conditions by testing positive for methamphetamine and failing to report subsequent drug tests, he had to wear an ankle monitoring bracelet, which prevented him from leaving Los Angeles County. Mother then began taking the children to Father for unauthorized visits. Additionally, Mother failed to drug test in November and December 2010 and appeared to have relapsed. The social worker noticed Mother's rapid speech, weight loss, and restlessness, and concluded there was a "substantial probability" that Mother had resumed drug use. Mother's therapist expressed concern that Mother may have returned to using drugs based on her demeanor and erratic behavior.
On November 19, 2010, CFS filed a section 387 supplemental petition on behalf of the children detaining them from Mother's custody. The children were placed with the paternal grandmother. The social worker did not believe the maternal relatives were appropriate for placement. The social worker discovered that the maternal great-grandmother did not supervise the contact between the children and Father, and Mother was able to take the children out of the county to see Father.
On November 24, 2010, the court formally detained the children and ordered Mother to complete a Judicial Council ICWA-020 form.
CFS recommended that the court find true the allegations in the section 387 petition and that no reunification services be provided to the parents. All three children had emotional issues. The eldest child, C.S., suffered from anxiety, depression and suicidal ideation, and blamed herself for CFS's involvement with the family and her parents' problems. C.E. and D.E. exhibited a high level of anxiety and felt the need to protect their parents and had tremendous guilt. D.E. was described as an overly aggressive child because she acted out, was combative with little provocation, and violent with other children. The social worker believed the children had emotional problems due to their exposure to domestic violence.
At the contested jurisdictional/dispositional hearing on January 11, 2011, the juvenile court found the allegations in the supplemental petition true, formally removed the children from Mother's custody, and terminated Mother's services. The court ordered CFS to provide services to the children under the Permanency Planning Program.
By July 2011, CFS recommended establishing guardianship for C.E. and D.E. with the paternal grandmother. The social worker reported that the children were thriving in the paternal grandmother's home and that the paternal grandmother had provided consistent routines which had helped both girls feel more secure. Both C.E. and D.E. reported that they loved living with their paternal grandmother.
In a section 366.26 report dated October 7, 2011, the social worker detailed the paternal grandmother's commitment to C.E. and D.E. The paternal grandmother followed the court orders and set boundaries with Mother and Father. The social worker reported that Mother failed to appear at her scheduled visits numerous times, which prompted the paternal grandmother to implement a 24-hour confirmation policy and a request for reduced visits. On average, Mother visited on a monthly basis. The social worker was also concerned about Mother's promises to the children that they would return home, causing the children to feel "uncertain and insecure."
At the contested section 366.26 hearing on November 3, 2011, the court issued letters and orders granting the paternal grandmother legal guardianship of C.E. and D.E. At the same hearing, the court terminated jurisdiction over the children and dismissed the matter.
On May 21, 2012, Mother filed a section 388 petition seeking to reinstate family reunification services, to transfer the case to Los Angeles County, and to increase visits with the children. Mother claimed that the paternal grandmother had not allowed her to visit or speak with the children.
On May 29, 2012, the court denied the request in part and ordered CFS to investigate compliance with the court's orders regarding visitation and report to the court.
CFS filed its response with the court on June 12, 2012. The social worker reported that CFS investigated Mother's current circumstances and discovered that Mother had another child with Father in October 2011, which violated his parole conditions that he have no contact with Mother. Following the child's birth, the Los Angeles County Department of Children and Family Services (LA CFS) removed the child from the parents' custody due to Mother having tested positive for methamphetamines during the pregnancy and the parents having a history of domestic violence and child protective services. Mother's fourth child was declared a dependent of the juvenile court in February 2012, and LA CFS provided reunification services to the parents. In reviewing Mother's progress in reunification services in Los Angeles County, the social worker noted that Mother failed to drug test in March 2012, despite her claims of maintaining her sobriety.
Regarding visitation, the paternal grandmother reported that Mother failed to maintain a regular visitation schedule with the children, causing the children to suffer emotionally. C.E. and D.E. "were deeply affected by their mother's inability to keep her appointments, either crying with frustration or acting out both at home and at school." The paternal grandmother also reported that she was extremely upset when she learned the parents had returned to using drugs and noted that she finally understood the reason behind Mother's erratic behavior over the past year. The paternal grandmother recalled a phone call from Mother in October 2011, wherein Mother wanted to see the children, was extremely angry, and her speech was erratic. The paternal grandmother believed Mother to be under the influence and decided not to allow Mother to visit the children.
The paternal grandmother was also concerned about the children's emotional well-being as a result of the visits. During phone calls, Mother seemed to focus on the children's new sibling. As a result, C.E. and D.E. felt "hurt and angry with their mother because she only wanted to talk about her new baby" and "felt as if they were being replaced." After the paternal grandmother received confirmation that Mother had tested positive for drugs, coupled with the children's mental health, the paternal grandmother believed it was best for the children to terminate all visitation. Since that time, the paternal grandmother noted that the children had made great strides behaviorally and academically. C.E. and D.E. agreed to visit Mother, but they did not feel excited about the visits and did not want to leave their placement with the paternal grandmother. The children appeared relieved when the social worker informed them that they would not be leaving their paternal grandmother's home. The social worker recommended monthly visits to resume.
On June 19, 2012, the juvenile court confirmed the monthly visits and denied the remainder of Mother's section 388 petition.
On January 24, 2013, Mother and Father filed a joint section 388 petition, seeking reinstatement of family reunification services and transfer of the case to Los Angeles County.
On January 28, 2013, the juvenile court denied Mother and Father's section 388 petition, finding the request did not state new evidence or change of circumstances.
On October 29, 2013, Mother and Father filed another section 388 petition, alleging that the children were eligible for enrollment into the Navajo Nation and that the ICWA should have applied. The parents also alleged that they had regained custody of the eldest child, C.S., and the youngest child, A.E., and wanted C.E. and D.E. returned to their custody. The parents sought to "[a]djudicate all court orders." Mother believed it was in the children's best interest to return home because the "family [had] benefited from open case w[ith] LA county." In support of Mother's changed circumstances, she attached a paternity suit whereby the maternal great-great-grandfather, a deceased member of the Navajo nation of "4/4 degree Navajo Indian blood," was declared the biological father of the maternal great-grandmother. As such, the maternal great-grandmother's degree of Navajo blood was increased from "1/2 degree Navajo Indian blood," as decreed on October 1, 2012, to "4/4 degree Navajo Indian blood," as decreed pursuant to the July 31, 2013 court order. Additionally, Mother attached the Los Angeles County Juvenile Court's minute orders indicating that the children's half siblings were returned to Mother on family maintenance with a pending recommendation of a dismissal at a hearing on November 13, 2013.
On November 1, 2013, the court summarily denied the section 388 petition, finding the request did not demonstrate new evidence or changed circumstances. The court further noted that "parental rights were not terminated/ICWA found not [to] apply in 2011."
On April 17, 2019, Mother filed another section 388 petition seeking to reopen the dependency case and to return C.E. and D.E. to Mother's custody. In support of changed circumstances, Mother explained that she relapsed sometime before September 29, 2017, and as a result she gave custody of her youngest child to the maternal great-grandmother. Following the relapse, Mother stated that she decided to get clean, entered into a treatment program, and had been clean of methamphetamines for over 18 months. She registered for alcohol and drug counseling, had a sponsor, and was working on her steps to remain sober. Mother also attached Certificates of Navajo Indian Blood dated September 14, 2015, for D.E. and C.E., indicating that the children were "1/4 degree Navajo Indian blood." Mother noted that she had sent a copy of her section 388 petition to the Navajo Nation, but did know of its position.
On April 18, 2019, the juvenile court denied Mother's section 388 petition, explaining that while the reports showed "substantial change" of Mother's circumstances, "there [was] absolutely no indication that there [was] even a slight bit of evidence that [the] proposed change would be in [the] best interests of [the] children. These children have been in a stable home for well over 8 y[ea]rs."
Seven days later, on April 24, 2019, Mother filed another section 388 petition, seeking to reopen the case and grant reunification services "based on the ICWA law" and to initiate unsupervised visits, overnights, weekends, and summer visits with D.E. and C.E. Mother explained that since the case closed in 2011, the children were enrolled members of the Navajo Nation. As to the children's best interest, Mother believed that since the children had been placed with the paternal grandmother, they had been "disconnected from their [Native American] culture." Mother admitted that the children had spent more than half of their lives with family other than the maternal side, but believed it was in the children's best interests "to be involved and [to be] in touch with their Native American ancestry."
On the same day, April 24, 2019, Mother filed a timely notice of appeal from the court's April 17, 2019 order denying her section 388 petition and challenging the court's decision not to reopen the case.
On April 24, 2019, the children's eldest sibling, C.S., who was now an adult, also filed a section 388 petition, seeking unsupervised, overnight, and weekend visits with C.E. and D.E. When the social worker interviewed the children regarding C.S.'s petition, D.E. was comfortable with the frequency and duration of the visits ordered in 2011 because she was "'not too close'" with C.S. C.E. was "okay with the arrangement of [C.S.] coming to her home on weekends," but did not request more contact with Mother and/or C.S. C.S. later withdrew her section 388 petition, stating that she did not want to be involved with CFS and instructed the social worker to call her mother for further details regarding the visits.
On April 26, 2019, the court denied Mother's April 24, 2019 section 388 petition, finding it was not in the children's best interest to relitigate the ICWA issues at that time.
On June 7, 2019, Mother filed an amended notice of appeal challenging the court's denials of Mother's section 388 petitions filed on April 17, 2019 and April 24, 2019.
III
DISCUSSION
Mother contends the juvenile court abused its discretion in denying her section 388 petitions to reopen the case for application of ICWA and for reunification services because under ICWA there is a presumption it is in the children's best interest to retain ties and cultural heritage. She also asserts that she "presented a prima facie case that under the ICWA, connection with the Navajo Nation and Native community services, as facilitated by unsupervised contact with Mother, might promote her daughters' best interests." She therefore requests this court remand the matter to the juvenile court "with directions to correct the ICWA notice defect and to determine Mother's role as an unmonitored facilitator of [C.E.]'s and [D.E.]'s involvement with the native Navajo community."
CFS argues the appeal must be dismissed because the juvenile court had no jurisdiction to review Mother's section 388 petitions. Alternatively, CFS contends Mother failed to demonstrate that reopening the dependency proceedings was in the children's best interest.
A. Lack of Jurisdiction
CFS asserts that the juvenile court lacked jurisdiction to take any of the action Mother requested in her section 388 petitions because it had terminated dependency jurisdiction over C.E. and D.E. eight years prior in 2011. We conclude, for reasons explained, that the juvenile court did have jurisdiction over C.E. and D.E.
The juvenile court's power to appoint a guardian for a child who has been detained from his or her parents is governed by sections 360 and 366.26. The court may order a legal guardianship under section 360 if a dependent child's parent or parents waive reunification and agree to the guardianship, or under section 366.26 if the parents fail to reunify with a dependent child. (In re Carlos E. (2005) 129 Cal.App.4th 1408, 1417 (Carlos E.).) The guardianship in this case was created under section 366.26, after Mother failed to reunify with C.E. and D.E. during the prior dependency proceedings.
A guardianship may also be created by the probate court under the authority of the Probate Code. Probate guardianships and dependency guardianships exist under separate statutory schemes and are subject to different rules and procedures. (See In re Z.F. (2016) 248 Cal.App.4th 68, 72.)
Once a dependency guardianship has been created, the court may either continue dependency jurisdiction or, as it did in the present case, may terminate dependency jurisdiction and maintain jurisdiction over the child "as a ward of the guardianship." (§§ 366.3, subd. (a), 366.4; Cal. Rules of Court, rule 5.740(a)(4); B.B. v. Superior Court (2016) 6 Cal.App.5th 563, 569 (B.B.); Carlos E., supra, 129 Cal.App.4th at p. 1417.) In either case, a child for whom a guardianship has been established under section 366.26 remains "within the jurisdiction of the juvenile court. . . ." (§ 366.4; In re Z.C. (2009) 178 Cal.App.4th 1271, 1279.)
All subsequent rule references are to the California Rules of Court.
Sections 360, 366.3, and 388, and rule 5.740, set out the procedures for terminating or modifying a guardianship created pursuant to section 366.26. Under section 360, an application for termination of a guardianship "shall be filed in juvenile court in a form as may be developed by the Judicial Council," and section 388 "shall apply." (§ 360, subd. (a).) The Judicial Council has not developed a form for the specific purpose of terminating a dependency guardianship, but instead has directed in rule 5.740(c) that a petition to terminate a dependency guardianship must follow the procedures and use the Judicial Council form (form JV-180) promulgated under section 388. (See B.B., supra, 6 Cal.App.5th at p. 570 [if legal guardian can no longer safely care for child, section 388 petition should be filed to terminate the guardianship].)
If an application to terminate or modify a guardianship states a change of circumstances and it appears that the best interest of the child may be promoted by the proposed termination, the juvenile court is required to order a hearing. (Rule 5.570(e)(1), (f).) Prior to the hearing, the court will direct the social services department to prepare a report that evaluates whether the child could safely remain in the guardian's care if maintenance services were provided. If applicable, the report will also identify appropriate family maintenance or reunification services and set forth a plan for providing those services. (§ 366.3, subd. (b)(2); B.B., supra, 6 Cal.App.5th at pp. 569-570.) Proceedings to modify or terminate a dependency guardianship are held in the juvenile court and shall be determined "based on the best interests of the child." (§ 366.3, subd. (b)(2); see rule 5.570(e)(1) [court may grant petition to terminate or modify dependency guardianship if it "states a change of circumstance or new evidence and it appears that the best interest of the child . . . may be promoted by the proposed change of order"]; Carlos E., supra, 129 Cal.App.4th at p. 1418.)
Here, the juvenile court maintained jurisdiction over C.E. and D.E. as a ward of the guardianship under section 366.4. In fact, the juvenile court's orders, Judicial Council form JV-320, "Orders Under Welfare and Institutions Code Sections 366.24, 366.26, 727.3, 727.31," specifically states, on top of page 4 of 5, "The juvenile court retains jurisdiction of the guardianship under Welfare and Institutions Code section 366.4." Section 366.4, subdivision (a), provides in pertinent part, "Any minor for whom a guardianship has been established resulting from the selection or implementation of a permanency plan pursuant to Section 366.26 . . . is within the jurisdiction of the juvenile court."
Pursuant to section 366.3, when the juvenile court orders a permanent plan of legal guardianship, the court retains jurisdiction over the child until the guardianship is established. The court may thereafter continue jurisdiction over the child, or may terminate jurisdiction and retain jurisdiction over the child as a ward of the guardianship established by section 366.26 and as authorized by section 366.4. (§ 366.3, subd. (a); In re Heraclio A. (1996) 42 Cal.App.4th 569, 574.) Thus, even though the juvenile court terminated dependency jurisdiction in this case, the juvenile court still retained jurisdiction over the guardianship. (In re D.R. (2007) 155 Cal.App.4th 480, 486-487.)
CFS relies on this court's decision in In re A.S. (2009) 174 Cal.App.4th 1511 (A.S.) to support its position that the juvenile court lacked jurisdiction over C.E. and D.E., and therefore could not act on Mother's section 388 petitions. However, A.S. is distinguishable from the present matter.
In A.S., the juvenile court returned A.S. to her mother's custody and terminated jurisdiction without a hearing. (A.S., supra, 174 Cal.App.4th at p. 1513.) Following the father's first appeal, this court remanded the matter for a hearing regarding termination of jurisdiction. The department then filed a section 388 petition in which it requested termination of the dependency with a family law order granting custody to the mother and visitation to the father. (Ibid.) The father stipulated to termination of the dependency after the filing of a family law order giving legal and physical custody to the mother and visitation to him. Later, the father sought to rescind his agreement. In August 2002, the juvenile court denied the father's motion to set aside his stipulation, made family law exit orders, and dismissed the dependency. The father appealed again, and this court affirmed the juvenile court's orders. (Ibid.)
In December 2002, the father, in pro se, filed a section 388 petition, "seeking to overturn all orders of the juvenile court from detention forward and to obtain relief from the stipulated agreement based on an alleged improper relationship between the judge who had presided over the case and counsel for [the department]." (A.S., supra, 174 Cal.App.4th at p. 1513.) Following a hearing, the juvenile court denied the petition "on the grounds that father had knowingly entered into the stipulation and that he had not shown good cause to reopen the dependency. The juvenile court indicated that it was no longer involved and the case was a family law matter now." (Ibid.) The father again appealed, and this court again affirmed the juvenile court's orders. (Ibid.)
Six years after the juvenile court terminated the dependency, the father filed another section 388 petition asking the juvenile court to set aside its original jurisdictional findings. (A.S., supra, 174 Cal.App.4th at pp. 1513-1514.) The juvenile court again summarily denied the father's petition, "this time finding that it lacked authority to grant the relief father requested because the dependency had been terminated when the family law orders were filed." (Id. at p. 1514.) The father again appealed from the order summarily denying his most recent section 388 petition. (Ibid.)
We dismissed the father's fourth appeal, explaining: "In this case, the juvenile court terminated the dependency with respect to A.S. in 2002. As a result, at the time father filed his section 388 petition, A.S. was not a 'dependent child of the juvenile court' and there was no action pending in which the juvenile court could change, modify, or set aside a previously made order. In short, because the dependency proceeding was terminated six years earlier, the juvenile court no longer had jurisdiction of the parties and therefore lacked any ability to act at the time father filed his section 388 petition. [Citation.]" (A.S., supra, 174 Cal.App.4th at pp. 1514-1515, citing In re Sarah M. (1991) 233 Cal.App.3d 1486, 1504 ["The moment the juvenile court terminates the dependency proceedings, the child passes completely from the mandatory jurisdiction of the juvenile court . . ."], disapproved on other grounds in In re Chantal S. (1996) 13 Cal.4th 196, 204, fn. omitted.)
This case is procedurally distinguishable from A.S. Here, unlike in A.S., the juvenile court retained jurisdiction of the guardianship under section 366.4. As such, CFS's reliance on A.S. is unavailing.
Based on the foregoing, we find that the juvenile court had jurisdiction over the guardianship and could act on Mother's section 388 petitions.
B. Denial of Section 388 Petition
Mother contends the juvenile court abused its discretion in denying her section 388 petitions without an evidentiary hearing because she made a prima facie showing for reopening the case and under ICWA there is a presumption it is in the children's best interest to retain tribal ties and cultural heritage.
Under section 388, a parent may petition the juvenile court to modify its previous orders upon the grounds of new evidence or changed circumstances. (§ 388, subd. (a).) The juvenile court may summarily deny a section 388 petition if the petition fails to make a prima facie showing either (1) of a genuine change of circumstances or new evidence, or (2) that the requested change would promote the best interest of the child. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189 (Justice P.); In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413-1414.)
"'The petition [is] liberally construed in favor of its sufficiency.'" (In re Daijah T. (2000) 83 Cal.App.4th 666, 672.) Nonetheless, the person seeking modification must "make a prima facie showing to trigger the right to proceed by way of a full hearing." (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) A hearing "is only to be held if it appears that the best interests of the child may be promoted by the proposed change of order, which necessarily contemplates that a court need not order a hearing if this element is absent from the showing made by the petition." (In re Zachary G. (1999) 77 Cal.App.4th 799, 807.) If, for instance, the parent makes a prima facie showing of changed circumstances, the juvenile court can still deny the petition without an evidentiary hearing if the parent fails to make a prima facie showing the relief sought would promote the child's best interest. (Justice P., supra, 123 Cal.App.4th at pp. 188-190; see In re Elizabeth M. (1997) 52 Cal.App.4th 318, 322-323.)
"'A "prima facie" showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited.'" (In re Josiah S. (2002) 102 Cal.App.4th 403, 418.) Consequently, section 388 petitions with general, conclusory allegations do not suffice. The petitions must include specific allegations describing the evidence that constitutes the proffered new evidence or changed circumstances and the best interest of the child. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) Otherwise, the decision to grant a hearing on a section 388 petition would be nothing more than a pointless formality. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Jackson W. (2010) 184 Cal.App.4th 247, 258.)
We review the summary denial of a section 388 petition for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Angel B. (2002) 97 Cal.App.4th 454, 460.) We will not disturb the juvenile court's decision unless the juvenile court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (In re Stephanie M., at p. 318.) "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.)
In her April 17, 2019 section 388 petition, Mother sought (1) to reopen the case and (2) to return the children to Mother's care. In her April 24, 2019 petition, Mother requested (1) to apply ICWA, (2) to reinstate reunification services and (3) to grant unsupervised, overnight, and weekend visits with the children. On appeal, the only error Mother alleges is the court's failure to apply ICWA to this case and "to remand the case to the juvenile court with directions to correct the ICWA notice defect and to determine Mother's role as an unmonitored facilitator of [C.E.]'s and [D.E.]'s involvement with the native Navajo community."
The juvenile court did not abuse its discretion in denying Mother's section 388 petitions without a full evidentiary hearing. Even if Mother had established her circumstances had changed, Mother had not shown reopening the case, terminating the guardianship, and providing her with additional reunification services and liberalized visitation would be in the children's best interest. In the eight years since the establishment of the legal guardianship, C.E. and D.E. had been safely and securely placed with their paternal grandmother. The paternal grandmother had provided C.E. and D.E. with permanency, structure, and stability, which allowed the children to thrive. Both C.E. and D.E. desired to remain with the paternal grandmother, and there was no evidence that they wanted to return to Mother's custody. There was also no evidence that the paternal grandmother did not meet the children's emotional, developmental, and educational needs. There was no evidence that C.E. and D.E. even wanted to see their mother more frequently or return to her custody. In 2012, C.E. and D.E. both informed the social worker that they did not want to leave their placement with the paternal grandmother. Mother presented no evidence that their desire to remain with the paternal grandmother had changed by 2019. Children have a fundamental interest in stability and permanency deserving of constitutional protection. (In re Jasmon O. (1994) 8 Cal.4th 398, 419.)
In addition, when the social worker interviewed C.E. and D.E. in April 2019, after their eldest sibling filed a section 388 petition requesting unsupervised and overnight visits, D.E. and C.E. were both comfortable with the frequency and duration of the visits ordered in 2011 and did not request more contact with Mother. Moreover, it appears that the paternal grandmother and Mother had negotiated and implemented more frequent visits for Mother. The initial court order at the close of the dependency in 2011 stated that Mother was to receive "[a] minimum of one time per month for two hours[,] supervised by legal guardian." At the hearing on June 19, 2012, the court confirmed the monthly visits. According to Mother's April 24, 2019 section 388 petition, Mother had visited C.E. and D.E. on a weekly basis.
Mother also has not shown that reopening the case to allow correction of "the ICWA notice defect and to determine Mother's role as an unmonitored facilitator of [C.E.]'s and [D.E.]'s involvement with the native Navajo community" would be in the children's best interest. Relying on In re Alexandria P. (2014) 228 Cal.App.4th 1322, 1355-1356 (Alexandria P.), Mother contends that "there is a presumption it is in the best interests of the child to retain tribal ties and cultural heritage." However, Mother's reliance on this presumption is misplaced. Alexandria P. dealt with ICWA placement preferences in pre-adoptive placement where the juvenile court is required to consider the child's best interest in determining whether there is good cause to depart from the preference. (Alexandria P., at pp. 1338, 1356.) The presumption of best interest when considering an ICWA compliant placement is not tantamount to the presumption that a request for modification of a prior court order promotes the child's best interest.
Moreover, even if C.E. and D.E. are now deemed "Indian children" within the meaning of the federal and state statutes and the presumption applied, reopening the case to provide additional ICWA notice and for ICWA eligibility determination would not alter the children's placement with the paternal grandmother. Federal and state ICWA statutes outline placement preferences when an Indian child is removed from the physical custody of his or her parents or from an Indian custodian. (25 U.S.C. § 1915; § 361.31; see rule 5.484(b).) "[T]he party requesting departure from the ICWA's placement preferences bears the burden of establishing the existence of good cause." (In re Alexandria P. (2016) 1 Cal.App.5th 331, 347.) "A court tasked with determining good cause will consider a constellation of factors in determining whether a party has proven good cause by clear and convincing evidence. Among those factors will be the Indian child's best interests and whether the child is at significant risk of suffering serious harm as a result of a change in placement, including the effect of breaking a child's existing attachments." (Id. at p. 350.) The "longevity of a child's foster placement [here legal guardianship] may sometimes be relevant to deciding whether good cause exists to depart from the ICWA's placement preferences." (Id. at p. 352.)
In the present matter, after the children's initial removal from Mother's care in February 2009, C.E. and D.E. were placed with the maternal great-grandmother, a member of the Navajo tribe. After the children's re-removal pursuant to a section 387 petition in November 2010, the children were placed with the paternal grandmother due to the maternal great-grandmother's failure to follow the court's orders and allowing the children unsupervised contact with Father. The children were placed with "member[s] of the Indian child's extended family" within the meaning of 25 U.S.C. section 1915. C.E. and D.E. have lived with the paternal grandmother for almost their entire lives, for approximately nine years, and looked to their paternal grandmother for security, safety, and comfort. (See In re Alexandria P., supra, 1 Cal.App.5th at p. 352 [length of time in foster care placement may be relevant to good cause determination]; Alexandria P., supra, 228 Cal.App.4th at p. 1355 [court must consider whether child's best interests support a finding of good cause].) Additionally, as acknowledged by Mother, the paternal grandmother was committed to maintaining the children's connection to the tribe. (§ 361.31, subd. (i).) Specifically, Mother claimed that the children "[had] longed to go back to Pow Wow's," suggesting that between the time the children were enrolled in the Navajo Nation in 2015 and the time Mother filed her section 388 petitions in 2019, C.E. and D.E. had attended at least one such event with their mother.
Furthermore, even though the Navajo tribe was aware of Mother's section 388 petition, there was no response from the tribe. In her April 17, 2019 section 388 petition, Mother noted that a copy of her petition was sent to the Navajo Nation and that she did not know whether the tribe agreed with her request in the section 388 petition. In addition, Mother's parental rights were not terminated. As a result, Mother was able to pursue further action with the Navajo Nation in order to enroll the children as tribal members four years after the court terminated its dependency jurisdiction. Therefore, Mother was still empowered to act on behalf and in the best interest of the children in order to preserve the children's cultural heritage and tribal ties. Mother's arguments to the contrary are speculative and not supported by the evidence.
Drawing all reasonable inferences in support of a good cause determination, we conclude substantial evidence supports a good cause finding of deviating from ICWA placement preference, even if the case was reopened to comply with ICWA. (In re N.M. (2009) 174 Cal.App.4th 328, 338 [substantial evidence supported finding that "there was good cause to deviate" from ICWA placement preferences]; In re A.A. (2008) 167 Cal.App.4th 1292, 1330 ["court's good-cause finding was supported by substantial evidence"].)
Based on the foregoing, reopening the dependency proceedings eight years after guardianship had been established with the paternal grandmother to simply determine whether ICWA applied would not have been in the children's best interest. Reopening the case would also not have benefited Mother as the ICWA finding can only be applied prospectively, not retroactively. CFS and the court initially complied with the ICWA inquiry and noticing requirements. Mother does not claim otherwise. She also does not claim there were other ICWA violations that she can use as grounds to seek the invalidation of previous court orders. (See 25 U.S.C, § 1914; Rule 5.486(a); see also §§ 224.3, subds. (e) & (f); Rule 5.482(c)(3).) Accordingly, the juvenile court did not abuse its discretion in denying Mother's section 388 petitions without an evidentiary hearing.
IV
DISPOSITION
The orders denying Mother's section 388 petitions are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: FIELDS
J. RAPHAEL
J.