In re S.S. CA3 ( 2014 )

Filed 10/9/14 In re S.S. CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Calaveras)
----
In re S. S., a Person Coming Under the Juvenile Court C075545
Law.
CALAVERAS WORKS AND HUMAN SERVICES (Super. Ct. No. 13JD5402)
AGENCY,
Plaintiff and Respondent,
v.
MICHAEL S.,
Defendant and Appellant.
Michael S., father of the minor, appeals from the denial of his petition for
modification and from orders of the juvenile court terminating his parental rights. (Welf.
& Inst. Code,1 §§ 366.26, 388.) Father contends the Calaveras County Works and
1 Further undesignated statutory references are to this code.
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Human Service Agency (Agency) failed to comply with the notice requirements of the
Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) Father also argues the
juvenile court abused its discretion in denying his petition for modification. We agree
with the first contention and reverse and remand for the ICWA notice compliance.
FACTS
In February 2013, the juvenile court detained 15-month-old S. S. due to mother’s
methamphetamine abuse and mental health issues and the ongoing domestic violence in
the home. The Agency placed the minor with a relative. The juvenile court sustained the
petition and ordered reunification services for the parents.
The six-month review report filed in August 2013 recommended termination of
services. The report stated the parents continued to live together at the paternal
grandmother’s home and admitted to continued drug use. Neither parent had made any
significant progress in services despite being referred to appropriate service providers.
The parents visited only four times and did not ask to schedule any more visits.
Unsurprisingly, there was no apparent bond between the parents and the minor. The
report concluded the parents had failed to make even minimal progress in correcting the
problems which led to removal. At the review hearing in September 2013, the court
adopted the Agency’s recommendation, terminated services for the parents and set a
section 366.26 hearing to select a permanent plan for the minor.
The assessment for the section 366.26 hearing stated the minor was in a relative
placement, which was also an adoptive home. The minor needed dental work but was
otherwise a generally healthy child with no developmental delays. The assessment
recommended termination of parental rights.
A week before the scheduled section 366.26 hearing, father filed a petition for
modification seeking return of the minor to his care while he completed his case plan.
Father alleged, as changed circumstances, that he had made substantial progress in the
case plan, finishing parenting classes, inpatient substance abuse treatment and the
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required fingerprinting. Father further alleged he had stable housing and had reenrolled
in counseling. Several supporting documents were attached to the petition.
At the contested hearing in December 2013, a counselor from father’s drug
treatment and parenting program testified father entered the program in August 2013, had
shown exceptional attendance, and had gone beyond expectations in the programs.
Father benefited from the programs and tested clean while there. The counselor agreed
that a nine-month aftercare program was needed and believed that father had entered one
near his current residence. He acknowledged father had a serious drug problem but felt
father would succeed if he continued applying what he had learned in the program.
Father testified about his participation in the Recovery House program and how he
had benefited from it. He stated he was again visiting monthly, and had asked for
increased visitation. Father testified he shared an apartment with an elderly man for
whom he performed some caretaking services while father’s mother, who was the
primary caretaker, lived in an apartment downstairs. He had also enrolled in anger
management classes. Father was looking for work and had filled out divorce papers. He
had no explanation for his delay in starting services except his nine-year addiction to
methamphetamine. Father testified he had quit using drugs before but resumed use after
about a year. He previously did not have a relapse prevention plan and had not known
his triggers. The aftercare program he was starting would provide him a support system.
Mother testified she and father had lived in his current housing before and she
knew it was not stable housing. Mother said the paternal grandmother had furnished
them drugs before father went into Recovery House.
The court congratulated father on his progress, but observed he had made no effort
to engage in services until the six-month review. Moreover, much of his recovery and
projected stability was still in the planning stage and his living arrangements were the
same as when he was doing drugs. The court found there had been some change in
circumstances but the minor had bonded to the current foster parents and breaking that
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bond could be detrimental. Father had only limited visitation with the minor and the
court could not return the minor to parental custody. Accordingly, the court denied
father’s petition for modification because the change was too little and too late.
Further facts appear where necessary in the following discussion.
DISCUSSION
I
Compliance With ICWA
At the outset of the case, mother reported no Indian heritage but father claimed
Blackfoot ancestry. The Agency sent notice to the Blackfeet tribe which contained
information about each parent but nothing about grandparents or great-grandparents. The
tribe responded that, based on their records, the minor was not an Indian child.
Father argues the Agency failed to comply with the notice requirements of the
ICWA by failing to include all known information in the notice which was sent.
The ICWA protects the interests of Indian children and promotes the stability and
security of Indian tribes by establishing minimum standards for, and permitting tribal
participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.)
The juvenile court and the Agency 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. (Cal. Rules of Court, rule 5.481(a).) If, after the petition is filed, the court “knows
or has reason to know that an Indian child is involved,” notice of the pending proceeding
and the right to intervene must be sent to the tribe. (25 U.S.C. § 1912; § 224.2; Cal.
Rules of Court, rule 5.481(b).) 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; In re Desiree F. (2000) 83 Cal. App. 4th 460, 472.)
State statutes, federal regulations, and the federal guidelines on Indian child
custody proceedings all specify the contents of the notice to be sent to the tribe in order to
inform the tribe of the proceedings and assist the tribe in determining if the child is a
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member or eligible for membership. (§ 224.2; 25 C.F.R. § 23.11(a), (d), (e); 44 Fed.Reg.
67588, No. 228, B.5, (Nov. 26, 1979).) If known, the agency should provide name and
date of birth of the child; the tribe in which membership is claimed; the names,
birthdates, and places of birth and death, current addresses and tribal enrollment numbers
of the parents, grandparents and great-grandparents as this information will assist the
tribe in making its determination of whether the child is eligible for membership and
whether to intervene. (§ 224.2; 25 C.F.R. § 23.11(a), (d), (e); 44 Fed.Reg. 67588, No.
228, B.5 (Nov. 26, 1979); In re D. T. (2003) 113 Cal. App. 4th 1449, 1454-1455.)
Here, the Agency knew of the immediate relatives of both parents and with
minimal inquiry could have provided some information about the grandparents and
possibly the great-grandparents of the minor. The additional information would have
facilitated the tribe’s search of its records when determining whether the minor was
eligible for membership in the tribe. Reversal is required for the limited purpose of
complying with the inquiry and notice requirements of the ICWA.
II
Denial Of The Petition For Modification
Father contends the juvenile court erred in denying his petition for modification
because he demonstrated changed circumstances and, he asserts, the proposed change
would be in the minor’s best interests.
A parent may bring a petition for modification of any order of the juvenile court
pursuant to section 388 based on new evidence or a showing of changed circumstances.2
2 Section 388, subdivision (a)(1) provides, in part: “Any parent . . . may, upon
grounds of change of circumstance or new evidence, petition the court in the same action
in which the child was found to be a dependent child of the juvenile court . . . for a
hearing to change, modify, or set aside any order of court previously made or to terminate
the jurisdiction of the court.” The court must set a hearing if “it appears that the best
interests of the child . . . may be promoted by the proposed change of order . . . .” (§ 388,
subd. (d).)
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“The parent requesting the change of order has the burden of establishing that the change
is justified. [Citation.] The standard of proof is preponderance of the evidence.” (In re
Michael B. (1992) 8 Cal. App. 4th 1698, 1703.) Determination of a petition to modify is
committed to the sound discretion of the juvenile court and, absent a showing of a clear
abuse of discretion, the decision of the juvenile court must be upheld. (In re Stephanie
M. (1994) 7 Cal. 4th 295, 318-319; In re Robert L. (1993) 21 Cal. App. 4th 1057, 1067.)
The best interests of the child are of paramount consideration when the petition is brought
after termination of reunification services. (In re Stephanie M., at p. 317.) In assessing
the best interests of the child, the juvenile court looks not to the parent’s interests in
reunification but to the needs of the child for permanence and stability. (Ibid.; In re
Marilyn H. (1993) 5 Cal. 4th 295, 309.)
Here, father established that he had made changes by participating in, and
completing many of the elements of his case plan. He was currently engaging in further
services and making plans for further changes in his lifestyle. However, he was new in
his recovery from a substantial addiction history. Nonetheless, even assuming father’s
circumstances were changed, not merely changing, he cannot prevail.
Father had to demonstrate that the proposed modification of the court’s order was
in the minor’s best interests. He was unable to do so. The court ordered supervised
monthly visits at disposition. Father’s visits during the first six months were erratic and
showed no bond with the minor. Even after he began to participate in his case plan, he
made no significant attempt to increase the frequency of visitation and move to observed
or unsupervised visits. In contrast, the minor was in a loving stable placement and had
bonded to her caregivers who were willing to offer her permanency. The petition was
filed just before the section 366.26 hearing which was to determine the permanent plan
for the minor. Under the circumstances of this case, return to a reunification mode would
have destabilized the minor. Denial of the petition was the only alternative which
furthered the minor’s best interests in stability and permanence. There was no error.
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DISPOSITION
The order denying the petition for modification is affirmed. The orders
terminating parental rights are reversed and the matter is remanded for the limited
purpose of requiring the Agency to comply with the inquiry and notice provisions of the
ICWA and for the court to determine whether the ICWA applies in this case. If, after
further inquiry and notice, the juvenile court determines that the tribe was properly
noticed and there either was no response or the tribe determined that the minor is not an
Indian child, the orders shall be reinstated. However, if, after proper notice, the tribe
determines the minor is an Indian child as defined by the ICWA and the court determines
the ICWA applies to this case, the juvenile court is ordered to conduct a new
section 366.26 hearing in conformance with all provisions of the ICWA.
ROBIE , Acting P. J.
We concur:
MURRAY , J.
DUARTE , J.
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