Opinion
C083074
05-01-2017
In re V.P., a Person Coming Under the Juvenile Court Law. TRINITY COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. R.M., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14JU005D)
R.M., mother of the minor, V.P., appeals the juvenile court's orders denying her petition for modification and terminating her parental rights. (Welf. & Inst. Code, §§ 388, 366.26, 395.) She contends the juvenile court (1) abused its discretion in denying her petition for modification, (2) erred in determining that the beneficial parent-child relationship exception to adoption does not apply. (§ 366.26, subd. (c)(1)(B)(i)), and (3) failed to make appropriate findings regarding the Indian Child Welfare Act (ICWA).
Unspecified statutory references are to the Welfare and Institutions Code.
Agreeing with the claim of ICWA error only, we shall reverse and remand for proper notice.
FACTUAL AND PROCEDURAL BACKGROUND
Mother came to the attention of law enforcement on January 5, 2014, after she became extremely intoxicated and assaulted her 14-year-old niece, C.P., who was trying to protect the 16-month-old minor and call 911 for help. Mother grabbed the minor from C.P. and " 'threw' " the child to the ground, scratched C.P. as she tried to get away, and threw a large glass cup at C.P. By the time deputies arrived, mother had taken the minor and her three siblings, put them in a vehicle, and left the residence. Deputies searched for mother and the children but were unable to find them.
On January 14, 2014, deputies located mother and the minor, as well as father, R.P., and one of the minor's siblings, J.P. Mother was charged with child endangerment (Pen. Code, § 273a) and the children were taken into protective custody. Father told the social worker he was home during the incident but " 'slept through it.' " He stated that for the past eight or nine years, mother had a drinking problem and tended to become violent and act " 'like Jekyll and Hyde' " when drinking. When asked whether he had taken any actions to protect the children, father said " 'nothing.' "
R.P. is not a party to this appeal, but will be referred to hereafter as "father" as necessity dictates. --------
On January 17, 2014, the Trinity County Department of Health and Human Services (Department) filed a petition pursuant to section 300, subdivisions (a) and (b) alleging mother threw the minor to the ground, placing the minor at substantial risk of serious physical harm, and further alleging mother and father failed to protect the minor due to the parents' history of substance abuse and domestic violence in the home, placing the minor at substantial risk of serious physical harm.
On January 21, 2014, the juvenile court ordered the minor detained and further ordered supervised two-hour visits twice weekly between mother and the minor.
Jurisdiction Report
The jurisdiction report described mother's criminal history, which included a child cruelty conviction in 2003, and alcohol- and drug-related convictions in 2011. Father's criminal history included numerous drug- and alcohol-related convictions from 2008 to 2011. The report set forth an extensive child welfare history beginning in 2000 with allegations of general neglect, physical abuse, caretaker absence or incapacity, emotional and physical abuse, and possible sexual abuse.
According to the social worker, mother stated "she believes that alcohol is a serious problem for her, and has been for over ten years." Mother also stated she "feels she cannot stop drinking when she starts" and admitted that " 'bad things happen' when she drinks."
The social worker met with the minor's 14-year-old sibling, A.A.M., who stated mother was " 'buzzed' " on January 5, 2014. He stated that mother asked C.P. to hand over the minor and when C.P. would not, mother grabbed the minor from C.P., who pulled back, causing the minor to drop. Mother "just tried to break [the minor's] fall." A.A.M. said it was C.P. who threw the large glass jar at mother, and stated C.P. and the paternal grandmother "have always treated [mother] terribly, especially when [mother's] been drinking."
The jurisdiction report recommended the court strike the section 300, subdivision (a) allegation.
At the February 20, 2014, jurisdiction hearing, the juvenile court struck the section 300, subdivision (a) allegation as recommended and sustained the remaining allegation. Both parents submitted on the petition as modified. The court found the minor was a child described by section 300, subdivision (b), adjudicated the minor as a dependent of the juvenile court, and ordered that the minor remain in foster care and that visitation continue as previously ordered.
Disposition Report
The disposition report recommended that reunification services be provided to both parents and that the minor remain in her current placement.
According to the disposition report, both parents reported that their poor family dynamic was due in part to the fact that they were living with the paternal grandmother and other extended family members. The parents were in the process of obtaining an apartment. While both mother and father were previously employed, both were unemployed and admitted struggling with ongoing alcohol abuse. Despite requests to complete the necessary paperwork for purposes of the social history interview, both parents had yet to do so.
The minor was born with bleeding and seizure disorders for which she required medication. Her current caregivers were properly administering the required medications on a daily basis. She was not talking and was making few audible sounds. The minor was being referred to the Far Northern Regional Center to assess possible speech delays and for a determination whether she would require therapy for an issue with her right hand resulting from her genetic disorder.
The report noted the parents would need to engage in services such as substance abuse treatment and parenting education in order to address their issues and to better understand the negative consequences being suffered by the children. The report concluded that, "[u]ntil [the parents] have obtained safe and stable housing and demonstrated a recovered lifestyle, the children's safety in the home cannot be ensured."
With regard to visitation, the parents were "consistent in attending their visits, and visits have gone very well." The social worker observed a strong bond between the parents and the children during visitation.
At the February 27, 2014, dispositional hearing, mother requested that she be allowed to attend all of the minor's medical appointments, that visitation increase, and that she be allowed telephonic contact with the children three times per week. Minor's counsel noted the parents needed to be "more fully engaged" in services, including alcohol and other drug services (AODS) and domestic violence services. Mother's counsel informed the court that mother "has an AODS assessment set up, she has signed up for parenting classes, and she's looking at anger management classes. . . . So she is moving forward as quickly as she can." The juvenile court continued visitation, authorizing the Department to increase visitation in its discretion. The court authorized mother to accompany the minor to medical appointments, and ordered the Department to attempt to arrange telephone contact between mother and the minor three times each week.
Visitation and Interim Review
On March 27, 2014, the Department informed the juvenile court that while visitation was going well, the parents had yet to engage in services, complete their AODS assessments, or drug test. The court ordered the parents to begin doing those things immediately.
On May 22, 2014, the Department reported that visitation was going well and that the parents were engaging in services.
Six-Month Review
The six-month status review report recommended that reunification services be continued to both parents, and that the children remain in their current out-of-home placement but that the court set a special interim hearing "to discuss the possibility of placement of the children with their parents."
According to the report, mother reported she ended her relationship with father "to enable her to work on her own recovery," and was residing at a local homeless trailer provided by Human Response Network. Mother had recently become employed. Father had been incarcerated for one month for violation of probation, but was living with family in Lewiston. When he was released from jail, he met with the social worker to submit to substance abuse testing and review his case plan. However, father had made few attempts to communicate with the social worker since then.
Meanwhile, the minor was attending medical appointments and speaking "a handful of audible words." She appeared happy and displayed appropriate affection, but had reportedly had a few biting incidents and aggressive behavior toward other children in her current placement.
Mother attended an AODS assessment on March 7, 2014, after which it was recommended that she attend a residential treatment program for at least 90 days followed by a perinatal outpatient treatment program for a minimum of six months. Mother requested but was denied funds for inpatient treatment because she failed to demonstrate motivation in receiving residential inpatient treatment services and appeared to instead be seeking to relocate in order to end her relationship with father. It was reported that mother was regularly attending AODS and voluntarily receiving domestic violence supportive services. In light of her compliance, the AODS treatment team modified the plan to recommend outpatient treatment for a minimum of six months and a minimum of twice weekly 12-step meetings. The substance abuse specialist commented that mother was an active participant in the AODS program, appeared motivated towards treatment, had developed a strong support system, and had obtained employment. The specialist opined that mother attended 24 of 30 sessions with no unexcused absences and was " 'continuing to work hard on her recovery.' "
The Department noted that mother was attending 12-step support groups three days a week and, although she did not actively engage in services as promptly as the Department would have hoped, "even with many disappointments and obstacles in her way, once she became engaged, she has demonstrated 100% effort and commitment."
The report stated mother substantially complied with substance abuse testing, submitting to 57 tests as of the time of the report but failing to appear six times and testing " 'dilute' " on two occasions. As of the date of the report, all of mother's tests were negative for all substances.
Mother substantially complied with parenting education, attending a total of 11 hours and missing one scheduled visit due to job training. She was reportedly engaged in learning.
Mother attended five domestic violence support group meetings but had not attended any classes or made contact since July 29, 2014. Mother attended five sessions of anger management education and her compliance was deemed adequate. The Department recommended she attend a total of 26 sessions.
At a family team meeting on August 1, 2014, mother reported a verbal altercation between her and father at their residence (the homeless trailer provided by Human Response Network) after which the parents agreed father would vacate the residence. Mother was cited for a violation of the Human Response Network's program rules and suspended from entry into transitional housing for an additional 60 to 90 days.
On August 7, 2014, the Department received a complaint from the foster agency after mother became combative with staff and began yelling and swearing at staff in front of the children. Mother immediately contacted the Department and, while speaking with a social worker, was upset and defensive and had to be asked several times to calm down. Mother minimized her part in the confrontation, but acknowledged that she was upset and could have handled the situation differently. Mother eventually calmed down.
The report stated both parents had successfully transitioned from supervised to unsupervised visitation with all of the children. Overall, mother was consistent with visitation other than recently missing three nonconsecutive visits. The visits reportedly went well and the children were happy.
Mother was reportedly focused on her recovery while learning to balance employment, visitation, and compliance with her case plan. The Department was cautiously optimistic regarding the potential to return the children to mother, but noted that, given the prior child welfare history and history of drug use and chronic domestic violence, as well as the fact that both parents had only recently engaged in services, it wanted to "move slowly to assure that reunification efforts will remain stable." The Department recommended that both parents receive an additional six months of services.
At the August 21, 2014, six-month review hearing, given mother's reported substantial compliance with services, the juvenile court found there was a substantial likelihood the minor would be returned to mother within the extended six-month period and ordered an additional six months of reunification services to her. Finding it was not substantially likely the children would be returned to father, the court terminated reunification services to father and ordered continued supervised visitation subject to clean drug tests. The court authorized the Department to increase mother's visitation with possible overnight visits.
Interim Review
The interim review report stated mother failed to test for substances on six occasions and tested positive for alcohol on another occasion. On September 3, 2014, mother admitted to the substance abuse specialist that she missed the scheduled testing on two days due to drinking alcohol, and stated she relapsed the previous week on methamphetamine. The report noted that the number of scheduled testing days missed by mother was "becoming increasingly concerning."
The report also noted mother's "attitude and demeanor toward the Department and staff has been of great concern as she is increasingly confrontational, demanding, and unpredictable."
At the November 20, 2014. interim review hearing, mother informed the juvenile court she secured housing (a three-bedroom home). Mother's counsel stated the Department had visited mother's home and found it to be adequate for the children. It was also noted that mother had a "relapse" in September during which she had an "emotional reaction" when she learned father was in a new relationship with another woman. However, it was an isolated incident and had not been repeated.
Minor's counsel objected to giving the Department discretion to increase visitation to overnight visits and trial home visits in light of mother's failure to drug test on six occasions (two of which, according to mother, were missed due to her drinking alcohol) and her positive test for alcohol on September 3, 2014.
The Department also expressed concerns regarding an incident during visitation in which mother hit the minor across the face. While acknowledging that mother had accomplished one month of sobriety, the Department stated it did not support the return of any of the children to mother because her anger management "has become incredibly unstable," noting her outbursts at the Department and her failure to take responsibility for her actions.
The juvenile court continued out-of-home placement of all of the children, encouraged mother to continue to utilize services, particularly for anger management, and authorized the Department to increase visitation at its discretion.
At the interim review hearing on January 8, 2015, the Department expressed concern that, although mother was proceeding through services and learning skills, she was not applying those skills to her relationship with her children. For example, while she completed anger management and parenting education, she continued to have behavioral issues during her interaction with her children, including threatening violence to her child during supervised visitation. Mother's counsel indicated mother's perception of the issues raised by the Department differs, but she is nonetheless prepared to do whatever is necessary for all four children to be returned to her.
12-Month Status Review
At the 12-month review hearing on February 19, 2015, the parties submitted on the status review report. The minor was reportedly doing well in foster care. Her current caregivers had filed for and were granted de facto parent status.
Mother was residing in a two-bedroom home, which the social worker found to be safe and appropriate for children. Mother continued to be employed, working up to thirty hours per week.
Mother's compliance in counseling and mental health services was deemed adequate. Although she completed anger management services, the Department expressed concern regarding mother's ability to implement the learned skills, noting several occasions when mother became visibly upset, yelled and cursed at staff, and made comments stating staff are " 'fucking bitches' " and " 'you just want to adopt out my fucking kids.' "
Mother completed 24 hours of parenting education, but the Department was again concerned about her ability to implement the tools she learned. For example, there were several incidents causing the Department concern regarding mother's ability to control her temper and not resort to threats of or actual physical violence as a means to control the children. When confronted with these concerns on January 5, 2015, mother was receptive and there were no reported incidents during visitation or towards staff since that time. Mother was reportedly making "a significant effort to be more thoughtful and respectful in her communications with the Department and her children" and was implementing the tools learned in her parenting education.
Mother substantially complied with substance abuse services, attending 77 out of 92 sessions of a 12-step program and actively engaging in treatment. Mother's compliance with substance abuse testing was also considered adequate. She submitted to 119 substance use tests, but had 13 unexcused failures to appear, and two tests resulting in " 'dilute.' " Testing was consistent and negative for all substances since October 8, 2014.
The Department reported that mother's visitation with the children was " 'chaotic' " and mother appeared " 'overwhelmed.' " Despite being advised not to discuss court-related matters with the children, mother had to be redirected several different times. The social worker suggested mother refrain from speaking negatively to the children and not speak about court matters. On several occasions, mother threatened one of the minor's siblings that she would " 'whip [his] ass' " if he did not get down from where he was walking. Mother had difficulty staying calm and keeping track of all of the children. However, following discussion of the Department's specific concerns during a family team meeting on January 5, 2015, visitation "significantly improved." The Department noted it felt it was appropriate to lower mother's level of supervision during visitation.
The Department expressed "great concern" regarding mother's management of the minor's medical care. The minor was considered to be " 'extremely medically fragile' " and required daily medication and ongoing medical appointments to monitor her condition and progress. Mother had weaned the minor off prescribed medications without the guidance or approval of a medical professional; failed to properly store the minor's medications; became very defensive during a conversation about the complexity of the minor's medical needs; denied the inadequacy of the minor's medical treatment while in mother's care; lacked accountability and insight; and had failed to attend any of the minor's scheduled medical appointments since September 2014 despite having been provided with gas vouchers. Additionally, the social worker had a difficult time discussing the Department's concerns regarding the minor's medical care with mother.
The report noted that one aspect of mother's ability to meet the minor's medical needs was mother's lack of transportation. The Department learned that, during unsupervised visitation, mother was transporting the children in her van without a valid driver's license, registration, or insurance. In order to obtain a valid driver's license, mother would need to pay off $900 in court fines. The Department noted the minor had made significant progress over the past year and expressed concern that such progress would diminish if mother could not transport the minor to medical appointments and speech therapy on a consistent basis. The Department opined that to return the minor to mother's care "would be incredibly premature and would place [the minor] at substantial risk of physical harm."
The Department recommended that the level of supervision gradually be reduced subject to a "thoughtful and realistic" plan to transition the minor to mother's care. It recommended placement of the minor with mother in the following 90 days under a plan of family maintenance after mother demonstrated an ability to safely and appropriately care for her during unsupervised or extended visitation, and an ability to maintain sobriety and engagement in vital services.
Interim Review
At the April 16, 2015, interim review hearing, the Department expressed "serious concern" regarding mother's compliance with her case plan and progress with reunification services. During an unannounced home visit on March 24, 2015, the social worker discovered father was hiding in the shower. Reunification services for father had been terminated over six months prior due to father's lack of progress. The following day, father tested positive for alcohol. Mother stated on multiple occasions that she intended to remain in a relationship with father and use father as the children's babysitter while she was at work.
The Department reiterated that the minor was "extremely medically fragile" and had been diagnosed with cerebral palsy and a genetic disorder. Mother was unable to discuss the minor's medical conditions or needs and became defensive or "escalated" when those issues were discussed. Mother did not attend the minor's sleep study on March 31, 2015, as required under her case plan, and failed to attend two appointments with the foster care nurse to discuss the minor's medical needs, also required under the case plan.
Although mother was testing clean, she missed three scheduled appointments with the Department in the previous 30 days, missed 16 of 33 AODS sessions and had several unexcused absences since January 20, 2015, and attended just one 12-step program per week.
The Department reported that the minor's sibling A.M. urinated in her pants following a recent supervised visit with mother. During one of mother's visits, which were reportedly going "very poorly," mother berated A.M. about her relationship with her biological father, causing A.M. emotional distress. During some of the visits, mother called father several times and, most recently, left several angry voicemails for him while in the presence of the children. Mother was no longer engaged in mental health services and had, just two days prior to the hearing, requested monetary assistance to buy food for the minor's sibling, A.A.M., who had been returned to mother's care on March 19, 2015.
According to the interim review report filed June 4, 2015, the minor was moved to a new foster care home on March 5, 2015, after the previous foster family indicated it could no longer foster. Mother's compliance with counseling and mental health services was reportedly minimal. She was not engaged in counseling from March 19, 2015, until April 28, 2015, when she reengaged in regular weekly counseling sessions. Mother submitted to a psychiatric evaluation and was prescribed medication to assist in managing her depression and anxiety. She attended a follow-up appointment and was reportedly " 'compliant with her treatment plan.' "
Mother's compliance with substance abuse services was also minimal. She began a perinatal program on May 28, 2014, but had not been consistently attending treatment services since January 20, 2015. Mother had reportedly attended 16 out of 33 sessions of a 12-step program, but her attendance had decreased since January and she had several unexcused absences. Her AODS attendance was rated " 'poor.' " Since May 13, 2015, however, mother was regularly attending AODS group meetings twice weekly and one individual session per week.
Mother submitted to 174 substance abuse tests since the inception of the dependency proceedings and failed to appear for 13 required tests. While she tested negative for all substances since October 8, 2014, the Department noted her attitude regarding her testing schedule and requests to change her testing was a concern. The Department suspected mother might be " 'packing urine' " (utilizing someone else's clean urine) during her test on May 27, 2015, and the social workers went to mother's home that afternoon to conduct an oral test. The results of that test were still pending as of the time of the report.
The Department also had concerns regarding mother's monitored visitation with all four children, as well as mother's ability to exhibit her parenting education skills over the previous several months. Mother was reportedly resorting to threats of physical violence towards the children on various occasions. Instead of focusing on spending quality time with the children, mother often utilized the visitation time to run errands and instructed the two older children to supervise their younger siblings.
The Department concluded that, over the last 15 months, mother had not consistently demonstrated that the issues which led to the removal of the children had been resolved. In particular, mother had not demonstrated an ability to free herself from her relationship with father, discuss the minor's medical needs in a productive manner, or utilize her parenting education or anger management skills. The Department noted that mother had completed parenting and anger management education, had maintained housing for several months, was focused on her recovery, and had greatly increased her attendance at 12-step meetings. It was also noted that her most recent interactions with the Department had been "pleasant."
Despite mother's agreement to a safety plan, she permitted the father to stay in the home two to three nights a week, was vocal about her intention for father to provide childcare for the children, and was focused on continuing her relationship with father. Due to the history of domestic violence and substance abuse in the relationship, mother's conduct put placement of the remaining children with her in jeopardy.
The Department had continuing concerns regarding mother's ability to adequately and consistently care for the minor's complicated medical needs, attend medical appointments, and properly administer the minor's prescribed medications, placing the minor's progress in jeopardy. Mother missed several scheduled appointments with the foster care nurse until the past 30 days during which her attendance improved. However, those meetings were unproductive due to mother's resistance to having an open discussion regarding the minor's needs. The minor's older sibling, A.M., was afraid to return to mother's home, fearing she would once again be required to care for the minor, including changing diapers and administering the minor's medication. The Department recommended the children remain in out-of-home placement.
An interim review hearing was held on June 4, 2015. The juvenile court continued out-of-home placement and set the matter for an 18-month review, finding return of the children to mother would be detrimental.
18-Month Review
The 18-month status review report summarized the minor's serious medical conditions and disorders and her scheduled medical appointments and discussed the need for ongoing treatment. It was noted that the minor was continuing to make progress in her speech development and her ability to communicate. The minor was reportedly emotionally stable and content and comfortable with her current foster placement.
Mother was adequately compliant with counseling and mental health services, and substantially compliant with her substance abuse services. The Department received an AODS progress report on May 19, 2015, stating mother was " 'completely engaged' " and " 'an active participant' " in the program. Mother successfully completed outpatient treatment and was attending 12-step meetings two to three times per week. Her compliance with substance abuse testing was deemed adequate.
However, with regard to the minor's education and health, mother was deemed noncompliant due to her failure to regularly attend biweekly meetings with the foster care nurse, failing to attend 8 out of 12 scheduled meetings over the past six months, and attending only one out of seven appointments.
The Department noted mother had not demonstrated an ability to work cooperatively in the minor's best interest, attend the minor's medical appointments, or discuss the minor's ongoing medical needs. While acknowledging mother's efforts and progress in recent months, the Department noted mother's lack of insight into the minor's medical needs and her failure to take responsibility for the lack of medical attention and care for the minor prior to detention.
Mother testified at the 18-month review hearing on August 20, 2015. She agreed that she was noncompliant with the minor's educational and medical needs in that she missed meetings with the foster care nurse. Mother explained her schedule was "very very rigorous" making it difficult for her to attend meetings. Mother agreed she failed to attend 8 out of 12 scheduled meetings over the past six months but explained she otherwise had contact with the foster care nurse. She testified she attended two neurology appointments and one hematologist appointment, and planned to attend another appointment the following day. Mother denied having ever failed to refrigerate the minor's medication, and further denied that any of the other children had ever administered any of the minor's medications. Mother claimed she failed to attend meetings with the foster care nurse because either she knew the nurse did not have any test results to share or she was given late notice of the meeting.
The Department submitted as to the minor's three siblings, but argued that, as to the minor, mother's reunification services should be terminated and the matter set for a section 366.26 hearing given mother's failure to comply with the minor's medical needs. Minor's counsel agreed.
The juvenile court found that, despite mother's "great efforts" and "amazing progress" and the fact that she "loves [the minor] with all her heart," there was sufficient evidence of mother's "non-compliance with the most important aspect of the case plan having to do with the medical appointments." The court found that return of the minor to mother would create a substantial risk of detriment to the minor's safety, terminated reunification services to mother, and set a section 366.26 hearing.
Mother's Section 388 Petition
On December 17, 2015, mother filed a petition pursuant to section 388 requesting that the court change its order terminating reunification services and setting a section 366.26 hearing. The petition requested a plan of family maintenance, asserting mother had consistently attended all medical appointments and therapy sessions for the minor, participated in visitation with the minor, attended weekly 12-step meetings, and met regularly with her sponsor.
Termination of Dependency of Minor's Siblings
On February 25, 2016, the juvenile court terminated dependency proceedings related to the minor's three siblings and returned those three children to mother's sole physical custody, with legal custody shared by the children's respective fathers.
Combined Section 388/366.26 Hearing
At the April 7, 2016, combined hearing on mother's section 388 petition and section 366.26, mother testified that, since the termination of reunification services in August 2015, she was visiting the minor regularly and consistently and attending the minor's medical appointments "to the best of my ability," explaining that "[l]ack of communication, lack of transportation, [and] lack of a support system" were to blame for missed appointments. Mother attended AODS sessions until she graduated in October. She worked the 10:00 p.m. to 7:00 a.m. shift at CVS, but later began new full-time employment at the Corner Mart, working the 6:00 a.m. to 2:00 p.m. shift. Her employer allowed her time off for medical appointments. She recalled attending five of the minor's appointments at U.C. Davis, as well as therapy appointments every other Tuesday. Mother testified she attended every appointment of which she was notified, including the minor's dental appointment and a surgery the previous week.
Mother initially agreed the minor was medically fragile, but stated the child was medically stable and seizure-free according to the minor's doctor. On cross-examination, however, mother testified the minor has been medically stable since the doctors got her seizures under control several days after birth. Mother testified she disagreed with the doctor's recommendation that the minor have surgery to remove her tonsils and adenoids, as well as the recommendation that the minor be given melatonin to help her sleep. Mother stated that, if the minor were in her care, mother would not give the minor melatonin.
Social worker Sarah Peery testified regarding mother's disruptive behavior at several of the minor's medical appointments. Peery testified regarding the minor's past, current, and future medical challenges and the fact that the minor would require a "high level of care" in the future.
Section 366.26 Report
The section 366.26 report stated the minor's medical needs "are extensive and require careful ongoing monitoring and treatment by specialists." The minor was continuing to make progress in her speech development and vocabulary, and was attending physical and occupational therapy weekly. The minor was placed with foster parents L.B. and S.B. for the first 14 months of placement. The child was moved to her second placement in March 2015 when the foster parents indicated they could not longer provide foster care for children due to personal reasons. However, L.B. and S.B. maintained ongoing contact with the minor, including attending each of the minor's medical appointments, and "[d]ue to the [foster parents'] strong connection to [the minor] and desire to provide permanency for the child," the minor was moved back into their home on September 18, 2015, where she remained as of the date of the report. The minor was reportedly thriving in her current placement, where she was comfortable and her development was flourishing. The report noted that the minor had resided with her caregivers "longer than her biological family and refers to them as 'mom and poppa.'"
Mother was maintaining consistent visitation with the minor. However, it was noted that the minor had begun refusing physical affection from mother, stating " 'Don't touch me' " and " 'No, don't hold me' " on one occasion. It was also reported that there were " 'pronounced differences' " in the minor's behavior and demeanor following visitation with mother, including the minor yelling loudly in the car immediately following visitation, and a soaring energy level with the minor running around the home and saying " 'no' " more often. The caregivers reported that the behaviors were " 'out of character' " and did not manifest any other time, and the amount of loud yelling and high energy levels had increased in the past several months. It was also reported that the minor requested her foster parents during visitation with mother. The Department recommended that visitation between mother and the minor be terminated.
With regard to the beneficial parent-child relationship exception to adoption (§ 366.26, subd. (c)(1)(B)(i)), the report stated that while mother had maintained consistent visitation, "the visitation lacks quality and substance," noting that there was a "visible change" in the minor's behavior and demeanor during and after visitation with mother, the minor did not refer to mother as " 'mom,' " the minor often refused physical affection from mother, the minor did not appear to be interested in engaging with mother during visits, and the minor's level of refusal of physical contact and affection from mother had "steadily increased."
The Department acknowledged mother's "deep love and adoration" for the minor, but concluded it was not enough to outweigh the benefits the minor would gain in a permanent home.
The report noted that one of the minor's siblings, A.A.M., supervised the other siblings in mother's home, and that A.A.M. reported he regularly uses marijuana. This situation continued despite the Department having previously addressed its concerns with mother on more than one occasion. Mother was also making "questionable choices" regarding her decision to allow the maternal grandmother, M.F., to move into the home and help care for the children given the child welfare and criminal history associated with M.F.
The report also noted that, while mother had increased her attendance at medical appointments for the minor in the past 90 days, her lack of attendance for the first 18 months was "greatly concerning." Mother had not successfully demonstrated the ability to consistently attend the minor's appointments over a substantial period of time while balancing the needs and well-being of the other three children in the home.
Because of the minor's medical fragility and numerous conditions, and the fact that her conditions will become more complex as she grows and develops, the Department considered consistent attendance at all of the minor's medical appointments and close supervision by medical professionals to be vital. The prospective adoptive parents had reportedly been "dedicated in ensuring [the minor] attends any and all appointments" and were capable of advocating for her and ensuring her needs were met.
The report noted that the minor, who had been in foster care for two-thirds of her life, demonstrated through her behavior that her primary attachment was to her caregivers, showing physical affection, seeking them out for comfort during visitation, and referring to them as " 'mom and poppa.' "
The Department recommended termination of both parents' parental rights to the minor and imposition of a permanent plan of adoption by the minor's current caregivers. August 18, 2016, Continued Combined Section 388/366.26 Hearing
At the continued combined section 388 and section 366.26 hearing on August 18, 2016, social worker Peery testified that mother was not always appropriate during visitation with the minor. For example, during supervised medical appointments for the minor, Peery observed that mother was inappropriate in her dealings with the other adults present, and was not respectful of the minor's wishes, such as asking not to be touched or hugged. Peery stated mother had been very consistent with visitation since October 2015. Mother had also been consistent in attending the minor's medical appointments at U.C. Davis, and had attended the majority of the minor's occupational therapy appointments.
Following testimony from foster and potential adoptive mother, S.B., and social worker Angela Henderson, mother testified she had regularly attended visitation with the minor, cancelling just one visit due to a work conflict. When asked whether she would place the minor on medication if a doctor requested it, mother said, "Yes."
With regard to the section 388 petition, mother's counsel argued there was a change of circumstances in that mother had been consistent with visitation, had the ability and willingness to care for the minor on an everyday basis, and had received the appropriate medical training to care for the minor. Counsel also argued the minor was no longer as medically fragile as she once was.
The Department requested that the court deny the section 388 petition and terminate parental rights pursuant to section 366.26, arguing there had been no change in circumstances in that the minor still suffered from the same medical conditions present when she was removed and her condition had not changed, other than the fact that she was now in a stable foster environment where she was receiving constant care. The Department expressed its continuing concern that, as the minor goes through puberty and her medical condition changes, she will be vulnerable given her "life-and-death" medical condition and will need constant care. Despite that, mother had expressed that she did not believe the minor needed medication and would not follow a doctor's orders to provide medication, placing the minor at risk. Mother was also disruptive in the minor's medical appointments. Additionally, mother was already having trouble getting the minor's three siblings to attend school. Minor's counsel joined in the Department's concerns and comments, adding that much of the improvement in the minor's condition was attributable to the foster parents.
The juvenile court agreed that mother failed to meet her burden of showing changed circumstances. The court noted that while mother "loves [the minor] and adores her beyond measure," the best interests of the minor militated in favor of permanence. The court denied mother's section 388 petition and ordered that her parental rights as to the minor be terminated.
Mother filed a timely notice of appeal of the juvenile court's August 18, 2016, order denying mother's section 388 petition and terminating her parental rights.
DISCUSSION
I
Denial of Mother's Section 388 Petition
Mother contends the juvenile court erred in denying her section 388 petition to modify its order denying her reunification services. She claims she demonstrated changed circumstances and that a plan of family maintenance was in the minor's best interest. The claim lacks merit.
Section 388, subdivision (a)(1) provides that a parent may petition the juvenile court "upon grounds of change of circumstance or new evidence . . . for a hearing to change, modify, or set aside any order of court previously made . . . ." Section 388 permits modification of a dependency order if a change of circumstances or new evidence is shown and if the proposed modification is in the best interests of the minor. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.)
The party petitioning the court for modification has the burden of proof by a preponderance of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 48.) A modification petition "is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion." (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
Here, the juvenile court did not abuse its discretion. First, mother failed to demonstrate a sufficient change of circumstances. While the record supports mother's testimony that she made progress in some areas, securing and maintaining employment, participating fully in substance abuse treatment, and maintaining consistent visitation with the minor, matters concerning the minor's disabilities and extensive medical needs remained a serious concern. Mother was still having trouble attending all of the minor's medical appointments and was reportedly disruptive during several of those she did attend, confronting and arguing with medical personnel and challenging their recommendations for surgery and medications. She blamed missed appointments on lack of communication, transportation, and a support system, despite the fact that the social worker testified she was given notice of appointments, or received notice while attending one, and was provided with transportation vouchers. Contrary to the social worker's opinion that the minor would require a high level of care in the future, mother insisted that the minor was no longer medically fragile and testified she would not give the minor melatonin to aid sleep despite a doctor's recommendation to do so. Notwithstanding mother's progress and consistency in certain areas, she lacked consistency and progress regarding what the Department and juvenile court deemed the most important aspect of this parent-child relationship--consistent and ongoing care of the minor's extensive medical needs in cooperation with the various medical providers.
Mother also failed to demonstrate that returning the minor to a plan of family maintenance was in the minor's best interest. The minor spent the last two-thirds of her young life in the home of the prospective adoptive parents, who attended all of her medical appointments and helped support the minor and facilitate her progress in other areas, including her speech and physical therapy.
Mother did not make the necessary showing, as required by section 388, that a modification of the juvenile court's order was compelled by a change in circumstances or that such a modification would promote the best interest of the minor. Therefore, we conclude the juvenile court did not abuse its discretion when it denied mother's petition for modification.
II
Beneficial Parent-Child Relationship Exception
Mother contends the juvenile court erred in determining that the beneficial parent-child relationship exception to adoption does not apply. (§ 366.26, subd. (c)(1)(B)(i).) We disagree.
At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must choose one of several " 'possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]' [Citation.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child. [Citation.]" (In re Ronnell A. (1996) 44 Cal.App.4th 1352, 1368, italics omitted.)
One of the limited circumstances under which a juvenile court may find a "compelling reason for determining that termination [of parental rights] would be detrimental to the child" is when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B).)
The parent has the burden of establishing an exception to termination of parental rights. (Cal. Rules of Court, rule 5.725(d)(2); In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) " '[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.' [Citation.]" (In re C.F. (2011) 193 Cal.App.4th 549, 555.)
"A parent must show more than frequent and loving contact or pleasant visits. [Citation.] 'Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from day-to-day interaction, companionship and shared experiences.' [Citation.] The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment between child and parent. [Citations.] Further, to establish the section 366.26, subdivision (c)(1)(B)(i) exception the parent must show the child would suffer detriment if his or her relationship with the parent were terminated. [Citation.]" (In re C.F., supra, 193 Cal.App.4th at p. 555, fn. omitted.)
We review a juvenile court's finding regarding the beneficial relationship exception for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) "On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. [Citations.]" (Ibid.)
There is substantial evidence to support the juvenile court's order. Mother claims she regularly visited the minor. During those visits, she and the minor worked together on skills the minor learned in therapy, talked about the importance of skin brushing, and exchanged physical affection. She claims that, at each visit, the minor said she loved mother and wanted to live with her. Mother also notes she attended those medical appointments "she was notified of." Mother contends that, for the same reasons, her relationship with the minor was more than frequent or loving contact and constituted a beneficial parental relationship the benefits of which outweighed the benefits of permanency through adoption. We are not persuaded.
As previously discussed, at the time of the selection and implementation hearing the minor had already spent two-thirds of her young life in the home of the prospective adoptive parents, who made the child comfortable, consistently cared for her, and attended all of her medical appointments. The minor was thriving and flourishing in her placement and had developed a strong connection to her caregivers, sometimes refusing physical affection from mother and instead seeking out her caregivers for affection and support.
While it is undisputed that mother was maintaining consistent visitation with the minor, it was reported that the minor's behavior and demeanor following those visits was markedly different, with the minor yelling loudly in the car after visitation, exhibiting soaring energy levels after visits, and running around the home and saying " 'no' " more often. The minor's level of refusal of physical contact with and affection from mother had also "steadily increased" during visits. It was reported that the minor did not refer to mother as " 'mom' " and often requested her foster parents during visits with mother.
Substantial evidence supports the court's finding that the beneficial relationship exception does not apply and termination of parental rights is in the best interest of the minor.
III
ICWA
Finally, mother contends the juvenile court erred in terminating parental rights without first determining whether the ICWA applied.
"For purposes of ICWA, an 'Indian child' is one who is either a 'member of an Indian tribe' or is 'eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.' (25 U.S.C. § 1903(4).) The juvenile court and social services agencies have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. [Citation.]" (In re K.M. (2009) 172 Cal.App.4th 115, 118-119.)
The Indian status of a child need not be certain to trigger the ICWA's notice requirements. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471 (Desiree F.).) When the juvenile court knows or has reason to know that a child involved in a dependency proceeding is an Indian child, the ICWA requires that notice of the proceedings be given to any federally recognized Indian tribe of which the child might be a member or eligible for membership. (25 U.S.C. §§ 1903(8), 1912(a); In re Robert A. (2007) 147 Cal.App.4th 982, 989 (Robert A.).) A mere suggestion of Indian ancestry is sufficient to trigger the notice requirements, which are construed strictly. (Robert A., at p. 989.)
Section 224.3, subdivision (a) imposes "an affirmative and continuing duty to inquire" whether a child is or may be an Indian child. Notice must include all of the following information, if known: the child's name, birthplace, and birth date; the name of the tribe in which the child is enrolled or may be eligible for membership; names and addresses (including former addresses) of the child's parents, grandparents, and great-grandparents, and other identifying information; and a copy of the dependency petition. (25 C.F.R. § 23.11(d)(1)(4) (2015); § 224.2, subd. (a)(5)(A)-(D); In re D.W. (2011) 193 Cal.App.4th 413, 417; In re Mary G. (2007) 151 Cal.App.4th 184, 209.)
A non-Indian parent may raise an ICWA claim on behalf of the other biological parent. (See In re Jonathon S. (2005) 129 Cal.App.4th 334, 339-340; In re Riva M. (1991) 235 Cal.App.3d 403, 411, fn. 6.)
Neither parent raised an ICWA claim below. However, because the ICWA's primary purpose is to protect and preserve Indian tribes, a parent does not forfeit a claim of ICWA notice violation by failing to raise it in the juvenile court. (In re J.T. (2007) 154 Cal.App.4th 986, 991; Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 783, fn. 1; In re Marinna J. (2001) 90 Cal.App.4th 731, 738-739.)
Here, father told the social worker on January 21, 2014, that he "may have Navajo and/or Cherokee Indian ancestry." That was sufficient to trigger the duty of notice and inquiry under the ICWA. (Robert A., supra, 147 Cal.App.4th at p. 989.) However, the February 20, 2014, jurisdictional report stated father had "repeatedly failed to come to the Department as requested to fill out the ICWA-020 form and provide additional information" in that regard, and the Department requested that the juvenile court order father to do so. Father was present with his attorney at the February 20, 2014, jurisdiction hearing and acknowledged receipt of the jurisdictional report. The juvenile court admitted the report into evidence, accepted the Department's recommendations, and "ma[d]e orders accordingly."
The disposition report filed February 27, 2014, reiterated the minor may have Cherokee or Navajo Indian ancestry and that father failed to complete the ICWA inquiry process and the necessary documentation, preventing the Department from providing notice to the tribes. According to the report, the Department attempted to contact the paternal grandmother on February 25, 2014, to inquire of possible Indian ancestry but was only able to leave a voicemail message requesting that the paternal grandmother contact the Department. As of the filing of the report, the paternal grandmother had yet to contact the Department.
Father was present with counsel at the February 27, 2014, disposition hearing. However, ICWA was not discussed.
On May 16, 2014, father filed his parental notification of Indian status indicating he "may have Indian ancestry" including either the Navajo or Cherokee tribes.
The ICWA was not discussed at the May 22, 2014, interim review hearing, nor was it referred to in the court's order following the hearing.
The six-month review report filed August 21, 2014, noted the social worker spoke with father on August 8, 2014, about completing the ICWA-020 form. Father agreed to do so but stated he lacked transportation to get to the Department. The social worker told father she would go to his residence and offered to call the following business day to schedule an agreeable time. The social worker called father on August 12, 2014, and August 14, 2014, but was unable to reach him.
The interim review report filed November 20, 2014, reiterated the previous problems in obtaining ICWA information from father but provided no new information in that regard.
The status review report filed February 19, 2015, stated the ICWA does not apply, as did the subsequent 18-month status review report filed August 20, 2015.
On January 15, 2016, father filed another parental notification of Indian status stating he may have Indian ancestry with the Navajo and Cherokee tribes but providing no additional information.
On April 18, 2016, the Department filed a notice of child custody proceeding for Indian child providing notice of the section 366.26 selection and implementation hearing and stating that information regarding the minor was "unavailable." The notice provided father's birthdate and place of birth, the paternal grandmother's name and place of birth, and the paternal grandfather's name and place of birth. The proof of service reflected the notice was mailed to mother, father, the Bureau of Indian Affairs (BIA), the Secretary of the Interior, the Navajo Nation, and the Ramah Navajo School Board, Inc. Copies of return receipts were also attached reflecting receipt of the notice by each of the designated addressees.
The Ramah Navajo School Board, Inc., sent a letter to the Department acknowledging receipt of the ICWA notice, stating it could neither confirm nor deny the minor was a member of the Navajo Nation, and informing the Department that the ICWA notice had been forwarded to the Navajo Nation ICWA Office.
The section 366.26 report and attachments filed August 18, 2016, stated the ICWA does not apply. The juvenile court did not discuss the ICWA at the August 18, 2016, hearing, but did incorporate in full the proposed orders set forth in the report.
There is no doubt that, despite the Department's numerous attempts to obtain information, father failed to provide any information other than the possibility of Navajo or Cherokee ancestry. Nonetheless, the Department apparently was able to obtain information regarding father's birthdate and place of birth, the paternal grandmother's name and place of birth, and the paternal grandfather's name and place of birth and, on April 18, 2016 (one week after the initial combined §§ 388 & 366.26 hearing), sent notice of the proceedings to the BIA, the Secretary of the Interior, the Navajo Nation, and the Ramah Navajo School Board, Inc., with that information.
While we appreciate the Department's attempt to fulfill its "affirmative and continuing duty" of ICWA inquiry (Cal. Rules of Court, rule 5.481(a)) in the face of father's lack of cooperation, the effort was incomplete. Father indicated possible ancestry in both Navajo and Cherokee tribal units. Because the Department undertook to notice the Navajo Nation and Ramah Navajo School Board, Inc., it should also have sent notices to the various Cherokee tribes and advised the juvenile court of the transmittal and response, if any, it received. The Department failed to do so.
We also note that while the juvenile court either adopted or incorporated the Department's ICWA findings throughout the proceedings, the court never made an express ICWA inquiry of father or an express finding that ICWA did or did not apply, particularly after the notices were sent by the Department on April 18, 2016. "[T]he juvenile court had a continuing duty to inquire whether [the minor] was an Indian child in all dependency proceedings, including a proceeding to terminate parental rights." (In re Isaiah W. (2016) 1 Cal.5th 1, 10.) The prior finding of ICWA's inapplicability before notices were sent did not relieve the court of its continuing duty. (Id. at pp. 10-11.)
Under the circumstances presented here, until the Department sent the notices to the relevant Cherokee tribes, the juvenile court's ruling that ICWA did not apply was at best premature. The failure to comply with the notice provisions and determine whether the ICWA applies is prejudicial error. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424; see also Desiree F., supra, 83 Cal.App.4th at p. 472.)
On remand, the Department must send notices of the dependency proceedings to all relevant Cherokee and Navajo tribes.
DISPOSITION
The juvenile court's August 18, 2016, order is reversed and the matter is remanded to the court with directions to order the Department to provide the Cherokee and Navajo tribes with proper notice of the proceedings under the ICWA. If, after receiving notice under the ICWA, no tribe indicates that the minor is an Indian child within the meaning of the ICWA, then the juvenile court shall reinstate the August 18, 2016, order. If, on the other hand, a tribe responds affirmatively, then the court must consider the issues pursuant to the procedural and evidentiary requirements of the ICWA. In all other respects, the order is affirmed.
/s/_________
Blease, J. We concur:
/s/_________
Raye, P. J.
/s/_________
Murray, J.