Opinion
D072077
11-07-2017
In re JOSIAH A., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. R.S. et al., Defendants and Appellants.
Denise M. Hippach, under appointment by the Court of Appeal, for Defendant and Appellant R.S. Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant Joseph A. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Kristen M. Ojeil, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J505897D) APPEALS from orders of the Superior Court of San Diego County, Michael J. Imhoff, Commissioner. Affirmed in part; conditionally reversed in part and remanded with directions. Denise M. Hippach, under appointment by the Court of Appeal, for Defendant and Appellant R.S. Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant Joseph A. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Kristen M. Ojeil, Deputy County Counsel, for Plaintiff and Respondent.
Joseph A. and R.S. appeal orders denying Joseph's petition for modification under Welfare and Institutions Code section 388 and terminating parental rights to their son, Josiah A., under section 366.26. Joseph argues the juvenile court abused its discretion when it summarily denied his petition for modification. Appellants also contend the court erred when it determined that Josiah was not an Indian child within the meaning of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.; Welf. & Inst. Code, § 224 et seq.)
Further unspecified statutory references are to the Welfare and Institutions Code.
R.S. joins with Joseph's argument. (Cal. Rules of Court, rule 8.200(a)(5).)
The Agency concedes the matter must be conditionally reversed to allow compliance with ICWA inquiry and notice provisions. We accept the Agency's concession as to ICWA but otherwise find no error.
FACTUAL AND PROCEDURAL BACKGROUND
Josiah A. is the eight-year-old son of Joseph and R.S. (together, parents). Joseph and R.S. have extensive and lengthy histories of substance abuse, crime, and periodic incarceration. Starting in 1987, child protective services intervened to protect R.S.'s children. During the next 25 years, R.S. lost custody or parental rights to her eight children. Josiah is her ninth child.
Joseph is not the father of Josiah's siblings. --------
In 2008, Josiah was born more than two months premature. He tested positive for opiates at birth. R.S. used heroin throughout her pregnancy with him. The San Diego County Health and Human Services Agency (Agency) detained newborn Josiah with R.S.'s first cousin, A.B. A.B. cared for Josiah for approximately a year before he was returned to R.S.'s care in November 2009. Joseph did not participate in court-ordered reunification services in Josiah's first dependency case.
In 2012 and 2013, the Agency provided voluntary services to the family after R.S. assaulted Joseph. Joseph was participating in substance abuse treatment but relapsed, violated a restraining order, kidnapped Josiah from preschool, and stole R.S.'s car. After the case was closed, Joseph was subject to a restraining order permitting only supervised visits with Josiah.
In June 2015, Amanda M., an extended family member, found R.S. and Josiah sleeping under bushes in a San Diego park. R.S. allowed Amanda to take Josiah for a few days. He was very dirty and had only the clothes he was wearing, two T-shirts, and a bicycle. Josiah said there were times he did not have anything to eat, and his parents fought and hit each other with sticks. After several days, when Amanda tried to contact R.S., she was unable to do so. Amanda asked A.B., Josiah's previous caregiver, to take him. R.S.'s family and the Agency were unable to locate R.S. or Joseph. The Agency detained Josiah with A.B., who lived in Riverside County, and initiated dependency proceedings.
A.B. enrolled six-year-old Josiah in school for the first time. His teacher reported that he lacked exposure to many things children his age knew. Josiah did not understand print, could not track words, and his motor skills were deficient. He was very impulsive and was aggressive toward other children.
Josiah wished "that everything can be normal. Normal means when it is right. When I was with my mom and dad they were always throwing stuff and I'd have to duck. And my dad would go to jail and everywhere we went it was not normal (when on street). It's really normal here [at A.B.'s home]." He said, "I want to stay here."
In September 2015, R.S. contacted the social worker. She said she could not care for Josiah and was willing to allow A.B. to assume guardianship of him. In December, Joseph telephoned the social worker, saying he had been unable to locate R.S. and had just learned Josiah was a dependent of the juvenile court. Joseph frequently telephoned Josiah, who was excited to talk to him.
Joseph completed parentage and ICWA forms. On both forms, he stated he may have Pima Indian heritage. In February 2016, the juvenile court ordered Joseph to complete another ICWA form and continued the matter. The juvenile court did not make further ICWA inquiry at the next hearing, or at any subsequent hearing.
Joseph said he was not able to provide a home to his son at that time but wanted to reunify with him and was willing to participate in services. He immediately enrolled in a substance abuse program and began visiting Josiah. After Joseph successfully completed his program in March 2016, he sought out more intensive services. Joseph visited Josiah three times from January through March, and attended five of seven visits scheduled in April and May. He did not visit Josiah from June 2016 to February 2017.
Josiah consistently told the social worker he wanted to live with A.B. He referred to A.B. and her husband (the B.'s) as "mom and dad." Josiah showed improvement in school but was a full grade level below his peers. He was aggressive with his classmates and exhibited some sexualized behaviors when distressed. A.B. said she did not realize how much attention Josiah needed and was concerned about the impact on her family. She continually advocated for the Agency to provide services to Josiah. The Agency found it "very difficult" to provide services to Josiah because he was living out of the county. In May, A.B. told the Agency to find another placement for Josiah when the school year ended in June. In June, A.B. rescinded her removal notice when the Agency was able to secure needed services for Josiah.
In November 2016, at the 12-month review hearing, the juvenile court terminated reunification services and set a section 366.26 hearing. The Agency reported that Joseph was arrested in September for possession of methamphetamine and drug paraphernalia, carrying a concealed dirk or dagger, and giving false identification to a police officer. Joseph was incarcerated until November 14, when he was released to a six-month treatment program.
Joseph's weekly supervised visits with Josiah were reinstated in February 2017. Josiah was also visiting with R.S. The social worker reported, "The visits have gone well with the exception of Josiah not wanting to attend." A.B. said Josiah asked to cancel visits and telephone calls with his parents.
On March 28, the date of the scheduled section 366.26 hearing, Joseph filed a petition for modification asking the juvenile court to vacate the section 366.26 hearing and reinstate his reunification services. He completed a parenting program and was participating in a drug and alcohol recovery program, which offered 12-step meetings, anger management, parenting classes, and group therapy. The petition stated it would be in Josiah's best interests to be reunited with his family because Joseph could provide more stability and commitment to Josiah in view of past uncertainty about A.B.'s commitment to him.
The social worker acknowledged Joseph's circumstances appeared to be slowly changing. However, in view of Joseph's history of treatment and relapse, the social worker opined Joseph's current sobriety while in an intensive treatment facility did not demonstrate changed circumstances. She was concerned that reinstating reunification services would cause Josiah to suffer additional emotional trauma. The B.'s wanted to adopt Josiah and were in the process of completing an adoptive home study. A.B. loved Josiah and was fully committed to meet all his needs. Josiah wanted the B.'s to adopt him.
The juvenile court set an initial hearing on Joseph's petition for modification and continued the section 366.26 hearing. Josiah was upset about the outcome of the hearing. He left a message on the social worker's telephone saying he "just wants to be a normal kid and have a normal life." Josiah was very upset with his parents for not letting him be "a normal kid." The social worker suggested that Josiah write a letter to the judge explaining how he felt. Josiah wrote:
"To Judge From [Josiah],
Joseph and [R.S.] I feel angry, sad, frustrated, mad at you because you stopped me from being adopted and I don't like that because I don't get to have a great life. You guys already messed my life up and you weren't a very good mom and dad. You always fight, smoke, do drugs and fall asleep. I want to be adopted by my mom and dad and my great brothers and sisters. They also want me to be adopted and when I am I will love it. I feel happy with the family that I have. I don't like to do visits. I want to be a normal kid. You always stop me. [¶] I am doing so good in school and I do not get in trouble and my home is big and we have a great family. I love it there and I do not want to go on the streets."
On April 18, the juvenile court summarily denied Joseph's petition for modification. The juvenile court said it believed for the first time Joseph sincerely wanted to maintain his sobriety and regretted the consequences of his prior lifestyle. Joseph was making progress. However, in view of his history and the complexity and duration of his addictions, he showed only that his circumstances were changing. In addition, to the extent Joseph's circumstances were changed, he could not show that a modification of the prior order was in Josiah's best interests.
On May 8, without further discussion of ICWA issues, the juvenile court adopted the Agency's proposed findings that reasonable inquiry was made to determine whether the child was or may be an Indian child and ICWA notice was not required. The court terminated parental rights and granted the B.'s status as Josiah's prospective adoptive parents.
DISCUSSION
A
Under section 388, a party may petition the court to change, modify, or set aside a previous court order. The petitioning party has the burden of showing there is a change of circumstances or new evidence, and the proposed modification is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Amber M. (2002) 103 Cal.App.4th 681, 685.) The petitioner need only make a prima facie showing to trigger the right to proceed by way of a full hearing. (In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799.) The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
The court must liberally construe the petition in favor of its sufficiency. (In re Marilyn H. (1993) 5 Cal.4th 295, 309; Cal. Rules of Court, rule 5.570(a).) When determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189; see In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.) We review a summary denial of a hearing on a modification petition for abuse of discretion. (In re D.R. (2007) 155 Cal.App.4th 480, 487.)
We adopt the juvenile court's reasoning. In view of Joseph's history of addiction, substance abuse treatment and relapse, and his inconsistent presence in Josiah's life, Joseph did not make a prima facie showing of changed circumstances. When Josiah was detained in protective custody in July 2015, Joseph's whereabouts were unknown. He did not have any contact with Josiah from July until December 2015. Joseph then participated in his reunification case plan and was doing well. He contacted and visited his son. However, in June 2016, Joseph disappeared again. The Agency later learned he had relapsed and had been incarcerated on criminal charges. Joseph was released to a substance abuse treatment program in November 2016 and resumed visiting Josiah in February 2017. He filed a petition for modification approximately two months after visitation was reinstated. The record shows Joseph maintained contact with Josiah for approximately eight months out of the 22-month-long dependency case. Thus, the juvenile court could reasonably find that Joseph had not demonstrated he could maintain his sobriety or stability for any substantial period of time and therefore, he did not meet his burden to show a prima facie case of changed circumstances.
A primary consideration in determining the child's best interests is the goal of assuring stability and continuity. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The record shows that Josiah had been traumatized by his parents' lifestyles. Josiah desperately wanted to have the "normal life" his caregivers provided to him. He wanted his "mom and dad" and their children to adopt him. Josiah remained acutely aware of his parents' failures to provide him with safety and stability. He was reluctant to visit his father. The record amply supports the juvenile court's finding that a modification of the prior order terminating reunification services and setting a section 366.26 hearing was not in Josiah's best interests.
We conclude that the juvenile court reasonably determined the alleged facts did not show that Joseph's circumstances were changed and that a modification of the prior order terminating reunification services was in Josiah's best interests. Because the liberally construed allegations would not have sustained a favorable decision on the section 388 petition, Joseph was not entitled to an evidentiary hearing. (In re Jackson W. (2010) 184 Cal.App.4th 247, 260.)
B
We Accept the Agency's Concession of ICWA Error
The court and social worker have an affirmative and continuing duty in all dependency proceedings to inquire whether a dependent child is, or may be, an Indian child. (§ 224.3, subd. (a).) The circumstances that may provide reason to know the child is an Indian child include when a member of the child's extended family provides information suggesting the child is a member of a tribe or eligible for membership in a tribe, or one or more of the child's biological parents, grandparents, or great-grandparents are or were a member of a tribe. (§ 224.3, subd. (b).) If the court or social worker knows or has reason to know that an Indian child is involved, the social worker is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable by interviewing the parents, Indian custodian, and extended family members, to gather the information required for notice. (§ 224.3, subd. (c); In re A.G. (2012) 204 Cal.App.4th 1390, 1396-1397.)
Here, Joseph stated he had Pima Indian heritage. There is no indication in the record to show that the social worker made any further inquiry regarding Josiah's possible Indian status during the pendency of the case. (See § 224.3.) The Agency concedes, and the record shows, the court and the social worker did not make adequate inquiry regarding the possible Indian status of the child. Reversal of the finding Josiah is not an Indian child within the meaning of ICWA is therefore required. (See In re J.N. (2006) 138 Cal.App.4th 450, 461-462.)
DISPOSITION
The May 8, 2017 order terminating parental rights is reversed and the case is remanded to the juvenile court with directions to order the social worker, if the Agency has not already done so, to conduct an inquiry into the child's possible Indian heritage and to provide proper notice of the proceedings to the Indian tribe under ICWA, if so indicated. If, after proper inquiry, the juvenile court determines notice to any Indian tribe or the Bureau of Indian Affairs is not required, or, after proper notice, no tribe indicates Josiah is an Indian child within the meaning of ICWA, the juvenile court shall reinstate the order terminating parental rights.
IRION, J. WE CONCUR: NARES, Acting P. J. O'ROURKE, J.