In re J.W. CA2/2 ( 2021 )

Filed 9/2/21 In re J.W. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re J.W., a Person Coming B310298
Under the Juvenile Court Law. (Los Angeles County Super.
Ct. No. 19CCJP02345A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
AMBER M.,
Defendant and Appellant.
APPEAL from an order the Superior Court of Los Angeles
County, Daniel Zeke Zeidler, Judge. Affirmed.
Konrad S. Lee, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Peter Ferrera, Deputy County
Counsel, for Plaintiff and Respondent.
******
The juvenile court terminated a mother’s parental rights
over her two-year-old daughter after 18 months of reunification
services. The mother argues that the court erred in (1)
summarily denying her pretermination petition to reinstate
reunification services, and (2) finding that the Indian Child
Welfare Act (Welfare and Institutions Code section 225 et seq.; 25
U.S.C. § 1901 et seq.)1 (ICWA) did not apply. Neither argument
has merit, so we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
In 2018, Amber M. (mother) gave birth to J.W.; J.W.’s
father is Jeremy W. (father).
Prior to J.W.’s birth, father suffered a juvenile adjudication
for shooting at a peace officer, multiple convictions for being a
felon in possession of a firearm, and a conviction for carrying a
concealed dirk or dagger.
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
In November 2018, father went to his mother’s house (the
paternal grandmother), threatened to kill her and her dogs, and
brandished a gun. Although J.W. was not present, father’s
younger brother—who was a minor—was.
In December 2018, mother was incarcerated in Texas on
drug charges. Mother arranged to have father and paternal
grandmother care for J.W. until her anticipated release in June
2019.
II. Procedural Background
A. Petition
In April 2019, the Los Angeles Department of Children and
Family Services (the Department) filed a petition asking the
juvenile court to exert dependency jurisdiction over J.W. In the
operative, first amended petition, the Department alleged that
jurisdiction was appropriate due to (1) father’s “aggressive and
assaultive behaviors,” including the November 2018 incident,
which placed J.W. “at risk of serious physical harm, damage and
danger” (thereby rendering jurisdiction appropriate under section
300, subdivisions (a) and (b)(1)), and (2) mother’s “inappropriate
plan for [J.W.’s] care and supervision” by leaving J.W. with father
during her incarceration, despite knowing of father’s criminal
history, which placed J.W. “at risk of physical and emotional
harm and damage and failure to protect” (thereby rendering
jurisdiction appropriate under section 300, subdivisions (b)(1)
and (g)).
B. Detention, jurisdiction, and disposition
In April 2019, the juvenile court detained J.W. from father
and placed her with paternal great-grandmother, and
subsequently with a maternal cousin.
3
In July 2019, mother entered a no contest plea to an
amended allegation that she “made an inappropriate plan for
[J.W.’s] ongoing care and supervision” by leaving her with father,
despite his “history of aggressive and assaultive behavior” and
“criminal history,” which “placed” J.W. “at risk of serious physical
harm” (thereby rendering jurisdiction appropriate under section
300, subdivision (b)(1)).2
The court removed J.W. from mother and father. The court
also ordered mother to (1) complete eight random or on-demand
drug tests, and if she missed any test or tested positive, to
participate in a full rehabilitation program with random testing,
(2) complete a parenting course, and (3) participate in individual
counseling to address “child safety and mother’s criminal
history.” The court ordered monitored visits between J.W. and
mother.
C. Progress during 18 months of reunification
services
The Department provided mother with reunification
services from July 2019 through October 2020.
1. Mother’s progress with case plan
During that period, mother’s progress on her case plan was
mixed. Mother failed to appear for drug testing seven times, and
of the times she did appear, she had some negative tests, but also
tested positive for marijuana nine times, tested positive for
methamphetamines once, and tested positive for alcohol once.
Given these test results, mother was required to complete a drug
rehabilitation program, and she ultimately did so. However, she
was arrested in February 2020 for possessing a controlled
2 The court sustained the allegation against father under
subdivision (b)(1), but father is not a party to this appeal.
4
substance, but reported to the Department that a friend had
some pills and said it was only a misdemeanor. Mother
completed a parenting course. Mother also enrolled in individual
counseling, but the counselor was evasive about—and the
Department could not verify—his qualifications, and the
counselor provided no concrete details regarding mother’s
treatment goals or growth.
2. Mother’s new behaviors
Around the same time as her arrest for drug possession,
mother “reverted to old behaviors” by “running around” with
father. She suffered a black eye and busted lips, and thereafter
skipped parenting classes and downplayed her injuries to the
Department. In June 2020, mother got into a heated argument
with another woman at a party where people were smoking
marijuana, and had to be physically restrained from attacking
the other woman; the entire incident was recorded on video and
posted to social media.
3. Mother’s visitation with J.W.
Although at first mother regularly attended visits with
J.W., her visits became “sporadic” after she resumed her
relationship with father in February 2020, as she often failed to
show for scheduled visits.
In April 2020, the COVID-19 pandemic necessitated a shift
to virtual visits. During those virtual visits, mother would
sometimes become verbally aggressive in frustration over two-
year-old J.W.’s disinterest in communicating over video. On
those occasions when J.W.’s caregiver declined mother’s same-
day requests for visits due to the caregiver’s work schedule,
mother sent multiple threatening text messages warning the
caregiver that “the games you play would get a person smoked.”
5
4. J.W.’s well-being
J.W. developed a loving bond with her caregiver (the
maternal cousin) and the caregiver’s children (J.W.’s second
cousins). The caregiver also exhibited a vested interest in
providing J.W. a stable, loving, and safe home.
D. Review hearing and termination of
reunification services
Because mother continued to “demonstrate[] highly
concerning behaviors,” including missing drug tests, maintaining
acquaintances that exposed her drug use, making implied threats
toward J.W.’s caregiver, and engaging in unsafe relationships
that would place J.W. at risk, the Department recommended that
the juvenile court terminate family reunification services for
mother.
At the 18-month review hearing on October 8, 2020, the
juvenile court acknowledged that mother’s compliance with her
case plan had been “partial” and “substantial,” yet nevertheless
concluded that J.W. still could not “safely be returned to . . .
mother’s care.”
The court terminated family reunification services for
mother and set a permanency planning hearing for February 1,
2021.3 (§ 366.26.)
E. Section 388 petition and termination of
parental rights
On January 28, 2021, mother filed a petition asking the
juvenile court to modify its October 2020 order terminating
family reunification services and setting a permanency planning
3 Mother filed a notice of intent to file a writ petition from
the order setting the permanency planning hearing, but no writ
was ever filed.
6
hearing. In her petition, mother cited three changed
circumstances—namely, that (1) she had “enrolled in” and
“attend[ed]” seven sessions of “individual counseling,” (2) her
“virtual visits” with J.W. had been “issue”-free since December
2020, and (3) she had “not maintained any contact with” father.
The petition asserted that resuming reunification services was in
J.W.’s best interests because “[i]t is in the child’s interest to have
more contact and further strengthen her bond with” mother.
In its December 10, 2020, report to the juvenile court, the
Department reported that mother—shortly after the October
2020 hearing—had told a relative that she (mother) intended to
kidnap J.W.
At the permanency planning hearing on February 1, 2021,
the court summarily denied mother’s petition without a hearing
because (1) mother showed merely “changing circumstances, not
changed circumstances,” (2) the letter from the individual
counselor noting that mother had made some “progress” “toward
[her] goal of emotional management” was “vague as to the extent
of the progress,” and (3) mother’s recent “threat to kidnap the
child” showed that mother continued to be “aggressive.”
The court then terminated mother’s parental rights over
J.W.
F. Appeal
Mother filed this timely appeal.
DISCUSSION
In this appeal, mother argues that the juvenile court (1)
erred in summarily denying her section 388 petition; and (2)
failed to comply with the provisions of ICWA.
7
I. Section 388 Petition
A. Applicable law
To establish entitlement to modification of a prior juvenile
order under section 388, the petitioning parent must show (1) “a
change of circumstances,” and (2) that the “modification of the
prior order would be in the best interests of the minor child.” (In
re Ernesto R. (2014) 230 Cal.App.4th 219, 223; In re Mickel O.
(2011) 197 Cal.App.4th 586, 615 (Mickel O.).)
The burden of making each showing rests with the parent
(In re Angel B. (2002) 97 Cal.App.4th 454, 461 (Angel B.)), and
that burden is particularly heavy where, as here, reunification
services have been terminated. That is because, by that time, the
focus of dependency proceedings has shifted to addressing the
child’s need for a “‘stable [and] permanent’” home rather than the
parent’s desire for reunification. (In re Jasmon O. (1994) 8
Cal.4th 398, 419-420; cf. In re William B. (2008) 163 Cal.App.4th
1220, 1228 [focus on reunification at the outset].) Thus, with
respect to the first element, the petitioning parent must show
“changed, not changing circumstances,” because “stability for the
child” is not “promote[d]” by “delaying” “the selection of a
permanent home for a child” “[just] to see if a parent, who has
repeatedly failed to reunify with the child, might be able to
reunify at some future point.” (Mickel O., supra, 197 Cal.App.4th
at p. 615; In re Casey D. (1999) 70 Cal.App.4th 38, 47 (Casey D.),
disapproved on other grounds by In re Caden C. (2021) 11 Cal.5th
614.) Where, as here, a parent files a section 388 petition after
reunification services have been terminated, “stability and
continuity” “assume[] an increasingly important role” in
assessing the best interests of the child. (Angel B., at p. 464;
Mickel O., at pp. 616-617; In re Marilyn H. (1993) 5 Cal.4th 295,
8
310 [“after termination of reunification services,” “continued care
[by her current caregiver] is [presumptively] in the best interest
of the child”].)
The petitioning parent is entitled to a hearing on her
petition if she makes a “‘“prima facie showing”’”—that is, if she
alleges facts that, if accepted as true and liberally construed,
demonstrate “‘probable cause’” to believe she could prevail in
obtaining the requested modification. (In re Aljamie D. (2000) 84
Cal.App.4th 424, 432 (Aljamie D.); In re Zachary G. (1999) 77
Cal.App.4th 799, 806; In re Jeremy W. (1992) 3 Cal.App.4th 1407,
1413-1414 (Jeremy W.).) “‘[G]eneral, conclusory allegations’” are
insufficient to make a prima facie showing. (In re Samuel A.
(2020) 55 Cal.App.5th 1, 7 (Samuel A.).) Put differently, a
petition may be summarily denied only if the petition fails to
“‘“present[] any evidence”’” of a change in circumstance or that a
modification of the prior order would be in the child’s best
interests. (Aljamie D., at p. 432; Jeremy W., at pp. 1413-1414; see
also Cal. Rules of Court, rule 5.570(d)(1).)
We review the summary denial of a section 388 petition for
an abuse of discretion. (Samuel A., supra, 55 Cal.App.5th at p. 7;
In re Alayah J. (2017) 9 Cal.App.5th 469, 478.)
B. Analysis
Viewed in the context of the “entire factual and procedural
history of the case” (Mickel O., supra, 197 Cal.App.4th at p. 616),
the juvenile court did not abuse its discretion in summarily
denying mother’s section 388 petition. Even accepting and
liberally construing the allegations of mother’s petition, mother’s
petition did not demonstrate probable cause to find changed
circumstances or that resuming reunification services would be in
J.W.’s best interests. Mother did not present evidence that the
9
circumstances had changed between the October 2020 order she
sought to modify and the filing of her section 388 petition in
January 2021. Mother may have enrolled in and attended seven
sessions of “individual counseling,” but, as the juvenile court
found, the counselor’s “vague” report that mother had made
“some progress” “toward [her] goal of emotional management”—
even liberally construed—was not enough to demonstrate
probable cause to believe that circumstances had changed,
especially when that counseling did not dissuade mother from
threatening to kidnap J.W. Mother’s “virtual visits” may have
been “issue”-free, but that was because mother had not voiced her
intent to kidnap during the visits. And mother’s distancing from
father, while admirable, was recent and short-lived. In sum, this
evidence at best demonstrated that mother’s circumstances were
changing, but had not yet changed. Mother also did not present
evidence that resuming reunification services was in J.W.’s best
interest. Mother’s petition alleged that “[i]t is in a child’s interest
to have more contact and further strengthen her bond with
mother,” but this allegation is both too general and too conclusory
to establish a prima facie case and ignores the increased
importance of stability and continuity where, as here, the petition
is filed after reunification services are terminated.
Mother resists this conclusion with what boil down to two
arguments.
First, she contends that she should have a lighter burden of
showing changed circumstances because the jurisdictional
allegations sustained against her involve her “faulty judgment”
rather than her personal infliction of physical harm upon J.W.
We reject this contention. Not only does mother offer no
precedent to support it, but mother’s attendance at seven
10
counseling sessions (even if she made “some progress”) and recent
distancing from father do not amount to a prima facie showing
when one considers the record as a whole, which demonstrates
that mother has continued to exercise “faulty judgment” by
having an on-again, off-again relationship with father; by being
arrested for drug possession; by getting into altercations at
parties where substances are used; and by threatening to kidnap
her own child.
Second, mother argues that the COVID-19 pandemic
should be considered a “changed circumstance.” It is not in this
case because the pandemic was ongoing at the time the juvenile
court terminated reunification services in October 2020. Nor
does the record support mother’s related contention that her bond
with J.W. was not as strong due to the shift from in-person to
virtual visitation due to the pandemic. That is because mother
missed in-person visits before the pandemic hit and because
mother lashed out at J.W. during virtual visits.
II. ICWA
A. Pertinent facts and procedural background
1. Mother’s ancestry
Mother has no reported Indian ancestry.
2. Father’s ancestry
In February 2019, father’s mother (the paternal
grandmother) initially reported that J.W. may have Indian
ancestry through her grandmother (the paternal great-great-
grandmother), who is named Eloise J. The Department spoke to
the paternal great-grandmother—Eloise J.’s daughter—who
reported that the family had no Indian ancestry and refused to
provide Eloise J.’s contact information because she was “80 years
old and . . . not to be bothered.”
11
On the basis of this information, the juvenile court
determined that ICWA did not apply.
In July 2019, father reported that he “may have” Indian
ancestry with the “Blackfeet” tribe. Father said that Eloise J.
would have more information and provided her contact
information. The Department spoke with Eloise J., who reported
that (1) she never heard that her “family had Blackfoot heritage,”
(2) “her family believed her grandmother Ella M[.]” (the paternal
great-great-great-great-grandmother) may have “had Native
American heritage because of her long hair” and that “[s]he
thinks maybe” that her grandfather (the paternal great-great-
great-great grandfather) “could have been registered” with some
tribe (but she does not know which tribe), and (3) she “is not sure
whether” any of her ancestors “had Native American heritage” or
“belonged to any [Native American] tribe.”
After receiving this report, the juvenile court did not alter
its prior conclusion that ICWA does not apply.
B. Pertinent Law
ICWA was enacted to curtail “the separation of large
numbers of Indian children from their families and tribes
through adoption or foster care placement.” (Miss. Band of
Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32.) Under
the ICWA and California statutes our Legislature enacted to
implement it (§§ 224-224.6), as recently amended, a juvenile
court—and, as its delegate, the Department—have duties all
aimed at assessing whether a child in a pending dependency case
is an “Indian child” entitled to the special protections of ICWA. (§
224.2, added by Stats. 2018, ch. 833, § 5; § 224.3; In re
A.M. (2020) 47 Cal.App.5th 303, 320 [applying ICWA law in effect
at time of order appealed from].) For these purposes, an “‘Indian
12
child’” is a child who (1) is “a member of an Indian tribe,” or (2)
“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), italics
added; § 224.1, subd. (a) [adopting federal law definition].) By its
terms, this definition turns “‘on the child's political affiliation
with a federally recognized Indian Tribe,’” not “necessarily” “the
child's race, ancestry or ‘blood quantum.’” (Austin J. (2020) 47
Cal.App.5th 870, 882 (Austin J.), quoting 81 Fed.Reg. 38801-
38802 (June 14, 2016).)
Under ICWA as amended, the Department and juvenile
court have “three distinct duties.” (In re D.S. (2020) 46
Cal.App.5th 1041, 1052 (D.S.) [noting amendment's creation of
three duties]; Austin J., supra, 47 Cal.App.5th at pp. 883-
884 [same].) The first duty is the initial “duty” of the
Department and the juvenile court “to inquire whether [a] child is
an Indian child.” (§ 224.2, subds. (a) & (b).) The Department
discharges this duty chiefly by “asking” family members “whether
the child is, or may be, an Indian child.” (Id., subd. (b).) For its
part, the juvenile court is required, “[a]t the first appearance” in
a dependency case, to “ask each participant present” “whether
the participant knows or has reason to know that the child is an
Indian child.” (Id., subd. (c).) The second duty is the duty of the
Department or the juvenile court to “make further inquiry
regarding the possible Indian status of the child.” (Id., subd. (e).)
This duty is triggered if the Department or court “has reason to
believe that an Indian child is involved” (ibid), and, once
triggered, obligates the Department to conduct further interviews
to gather information, to contact the Bureau of Indian Affairs and
state department of social services for assistance, and/or to
contact relevant Indian tribe(s). (Id., subd. (e)(2).) The third
13
duty is the duty to notify the relevant Indian tribe(s). (§ 224.3,
subd. (a); 25 U.S.C. § 1912(a).) This duty is triggered if the
Department or the court “knows or has reason to know . . . that
an Indian child is involved.” (§ 224.3, subd. (a).) The
Department or juvenile court has “reason to know a child
involved in a proceeding is an Indian child” in one of six
statutorily defined circumstances—namely, when (1) “[a] person
having an interest in the child . . . informs the court that the
child is an Indian child” (§ 224.2, subd. (d)(1)), (2) “[a]ny
participant in the proceeding . . . informs the court that it has
discovered information indicating that the child is an Indian
child” (id., subd. (d)(3)), (3) “[t]he child . . . gives the court reason
to know that the child is an Indian child” (id., subd. (d)(4)), (4)
the child or the parents reside, or are domiciled, “on a reservation
or in an Alaskan Native village” (id., subd. (d)(2)), (5) “the child is
or has been a ward of a tribal court” (id., subd. (d)(5)), or (6)
“either parent or the child possess an identification card
indicating membership or citizenship in an Indian tribe” (id.,
subd. (d)(6)).4
In assessing whether ICWA has been violated, we review
any questions of law de novo, but review the court’s ICWA
4 In amendments which postdate the express ICWA finding
made by the juvenile court in this case, our Legislature clarified
that the Department or juvenile court “has reason to believe that
an Indian child is involved” for purposes of the duty of further
inquiry if the Department or court “has information suggesting
that either the parent of the child or the child is a member or
may be eligible for membership in an Indian tribe,” including
information “indicat[ing]” but not “establish[ing]” the existence of
any of the above-enumerated six circumstances. (§ 224.2, subd.
(e)(1), as amended by Stats. 2020, ch. 104, § 15.)
14
findings for substantial evidence. (Dwayne P. v. Superior
Court (2002) 103 Cal.App.4th 247, 254; In re Rebecca R. (2006)
143 Cal.App.4th 1426, 1430.)
C. Analysis
Mother argues that the Department and the juvenile court
did not comply with the ICWA duty to conduct further inquiry
and the ICWA duty to notify the pertinent tribe(s).
1. Duty of further inquiry
Substantial evidence supports the juvenile court’s implicit
finding that the Department properly discharged its duty of
further inquiry under ICWA. As noted above, this duty is
triggered if there is “reason to believe that an Indian child is
involved,” and obligates the Department (or juvenile court) to
conduct further interviews to gather information, to contact the
Bureau of Indian Affairs and state department of social services
for assistance, and/or to contact relevant Indian tribe(s). (§ 224.2,
subd. (e)(2).) This duty obligates the Department (or court) to
follow up on viable leads (In re K.R. (2018) 20 Cal.App.5th 701,
709), but is discharged if the Department or court has followed up
on those leads—even if the inquiry leads to persons who failed or
refuse to provide information that might be helpful. (In re S.B.
(2005) 130 Cal.App.4th 1148, 1161; In re K.M. (2009) 172
Cal.App.4th 115, 119).
Here, the Department followed all available leads—father
and paternal grandmother said the family might have some
Native American heritage (possibly with the Blackfeet tribe) and
that the paternal great-great-grandmother would know more; the
paternal great-great-grandmother ultimately said that she was
unaware of any Blackfeet heritage, that she was “not sure”
whether the family had any Native American ancestry at all, and
15
that the most she could say is that her grandparents might have
heritage based in part upon her grandmother’s long hair.
Paternal great-great-grandmother’s statements left no further
leads. What is more, those statements effectively refuted the
earlier reports by father and paternal grandmother regarding the
family’s Native American ancestry, particularly when considered
in conjunction with paternal great-grandmother’s disavowal of
any such heritage. (Cf. In re T.G. (2020) 58 Cal.App.5th 275, 294
[bare statement of Indian ancestry can sometimes trigger a duty
to inquire further].) After interviewing the paternal great-great-
grandmother, the Department at most had a reason to speculate
that J.W. might be an Indian child; the Department certainly had
no reason to believe she was. As a consequence, the Department
(and the juvenile court) discharged their duty of further inquiry.
(Accord, In re J.D. (2010) 189 Cal.App.4th 118, 124-125 [duty to
inquire discharged because paternal grandmother’s inability to
name tribe or other possible relatives was too “speculative” to
create a “reason to believe”]; In re Hunter W. (2011) 200
Cal.App.4th 1454, 1468 [inability to identify tribe and failure to
provide contact information to substantiated unsupported belief
insufficient to trigger ICWA duties; family lore alone
insufficient]; cf. In re S.R. (2021) 64 Cal.App.5th 303, 310, 317
(S.R.) [report that paternal great-grandmother was a member of
Yaqui tribe, but Department does not investigate further; duty to
inquiry further not discharged].)
2. Duty to notify
Substantial evidence also supports the juvenile court’s
implicit finding there was no duty to notify the tribes. As noted
above, the duty to notify is triggered if the Department or the
court “knows or has reason to know . . . that an Indian child is
16
involved.” (§ 224.3, subd. (a).) Because, as we have concluded,
there is no reason to believe J.W. is an Indian child, it follows
that there is no reason to know she is. Although the trial court
orally ordered the Department to “attempt to interview . . . Eloise
J[.], and notice the Black feet tribe,” the court’s minute order
indicated that the Department was to “provide ICWA notice if
triggered.” We need not decide which of these pronouncements is
controlling because we have concluded that there was no duty
under ICWA to notify any tribe; the Department’s failure to
adhere to a possible order of the court that is not required by
ICWA cannot itself violate ICWA.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
17