In re Maddison R. CA2/6

Filed 8/18/16 In re Maddison R. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SIX
In re MADDISON R., a Person Coming 2d Juv. No. B270257
Under the Juvenile Court Law. (Super. Ct. No. 15JD-00095)
(San Luis Obispo County)
SAN LUIS OBISPO COUNTY
DEPARTMENT OF SOCIAL SERVICES,
Plaintiff and Respondent,
v.
CHAD L. and BARBARA J.,
Defendants and Appellants.
Chad L. and Barbara J., the biological parents of three-year-old Maddison
R., appeal from the juvenile court’s order denying a petition for modification (Welf. &
Inst. Code, § 388)1 and terminating their parental rights. (§ 366.26). Appellants contend,
among other things, that San Luis Obispo County Department of Social Services (DSS),
did not comply with the inquiry and notice provisions of the Indian Child Welfare Act
(ICWA) (25 U.S.C.S. § 1901 et seq.). We affirm.
Facts and Procedural History
On April 1, 2015, San Luis Obispo County Department of Social Services
(DSS) filed a dependency petition after mother was arrested for child endangerment,
1
Unless otherwise noted all statutory references are to the Welfare and Institutions
Code.
felon in possession of a firearm, and violating probation. (§ 300, subds. (b) & (g).)
Mother was arrested at home with drug paraphernalia and had a long history of substance
abuse.
Active drug users were in the home with Maddison who was in close
proximity to a shotgun and methamphetamine pipe. The police found trash piled to the
ceiling, broken glass, spoiled food, broken pieces of flooring, and a potty training chair
that was overflowing. Mother reported that father’s whereabouts were unknown and that
he had limited involvement in Maddison’s life.
Maddison was treated for a seizure disorder (epilepsy) and dehydration.
The infant could not regulate her food intake and quickly gravitated from tears to
laughter. Maddison hoarded food, was sexually reactive, and suffered panic attacks
whenever an adult displayed affection.
DSS reported that father was in Wasco State Prison and had a lengthy
criminal history for assault, vandalism, and drug related offenses. The trial court
removed Maddison from mother’s custody and ordered paternity testing which confirmed
that Chad L. was the biological father.
The trial court sustained the petition and bypassed reunification services
based on mother’s substance abuse which led to the termination of parental rights of her
two older children. (§361.5, subds. (b)(10) and (b)(11).) Services were bypassed for
father who was serving a four year prison sentence. (§ 361.5, subd. (e)(1).)
The trial court ordered the parties to discuss possible placement with a
relative and ordered a July 16, 2015 placement review.2 On November 4, 2015, the trial
court calendared the section 366.26 hearing for a contested hearing and said that it would
rule on relative “placement issues” at that time. DSS was ordered to “invite anyone that
is interested in being a placement to attend th[e] hearing . . . .”
2
On July 14, 2015, prior to the placement review hearing, mother filed a notice of
intent to file a petition for extraordinary writ review but failed to file the petition. (Cal.
Rules of Court, rule 8.450.) We dismissed the matter as abandoned. (B265463.)
2
Mother filed a section 388 petition for services on the eve of the hearing,
which was denied at the section 366.26 hearing on December 22, 2015. The trial court
found that Maddison was adoptable and terminated parental rights. With respect to
Maddison’s placement, the trial court ordered that Maddison remain in the care of her
“fost-adopt” parents. The trial court found that “I don’t need to move Maddison” and
“I have a good placement for this little girl that is clearly meeting her needs . . . .”
Section 388 Petition for Services
Mother contends that the trial court erred in denying her section 388
petition for services. Father joins in mother’s argument.
The grant or denial of a section 388 petition is committed to the sound
discretion of the trial court and will not be disturbed on appeal unless an abuse of
discretion is clearly established. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71.)
To prevail on the petition, the parent must show a change of circumstances and that
modification of the prior order would be in the best interest of the child. (In re S. J.
(2008) 167 Cal.App.4th 953, 959.) “After the termination of reunification services, the
parents’ interest in the care, custody and companionship of the child are no longer
paramount. Rather, at this point ‘the focus shifts to the needs of the child for permanency
and stability’ . . . . [Citation.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Denial
of a section 388 petition rarely merits reversal as an abuse of discretion. (In re Amber M.
(2002) 103 Cal.App.4th 681, 685-686.)
The trial court reasonably concluded that reunification services were not in
Maddison’s best interests. Mother was serving a jail sentence and receiving counseling
but there was no change of circumstances. DSS reported that mother was scheduled to be
released in February 2016, but as part of her sentence, still had to undergo nine months of
drug treatment at a residential facility. Denying the section 388 petition, the trial court
found that Maddison “has unique needs. The mother’s visitation, when she was out of
custody, was sporadic. There’s been limited contact while she’s been in custody. And
there’s no evidence . . . that the mother has actually acquired the skills that can meet
Maddison’s unique needs.”
3
Substantial evidence supports the finding that the proposed order for
services was not in Maddison’s best interests. Mother was still addressing a long term
substance abuse problem and unable to care for the child. (In re Levi U. (2000) 78
Cal.App.4th 191, 200; see In re Cassey D. (1999) 70 Cal.App.4th 38, 48-49 [nine months
of sobriety insufficient to warrant section 388 modification]; In re Cliffton B. (2000) 81
Cal.App.4th 415, 423 [seven months of sobriety since relapse, “while commendable, was
nothing new”]; In re Angel B. (2002) 97 Cal.App.4th 454, 463 [parent’s sobriety very
brief compared to many years of addiction].) Renewed attempts to facilitate reunification
are not in the child’s best interests where the parent is a chronic drug user and has
resisted prior treatment. (In re Levi U., supra, 78 Cal.App.4th at p. 200.) The trial court
reasonably concluded that ordering services in the hope that mother could stay clean and
sober would be detrimental to Maddison and undermine the permanency and stability of
an adoptive placement that Maddison so badly needs. Childhood is fleeting and does not
wait until the parents grow up. (In re Rikki D. (1991) 227 Cal.App.3d 1624, 1632.)
Preferential Relative Placement
Mother argues that DSS and the trial court did not properly consider
Maddison’s placement with a relative. Although there is no requirement that a dependent
child be placed with a relative, adult family members who are grandparents, aunts, uncles
or siblings of the child are given preferential consideration for placement. (§ 361.3, subd.
(c)(2).)
Section 361.3, subdivision (a) provides: “In any case in which a child is
removed from the physical custody of his or her parents pursuant to Section 361,
preferential consideration shall be given to a request by a relative of the child for
placement of the child with the relative . . . . In determining whether placement with a
relative is appropriate, the county social worker and court shall consider, but shall not be
limited to, consideration of . . . [¶] [t]he best interest of the child, including special
physical, psychological, educational, medical, or emotional needs.” (§ 361.3, subd.
(a)(1).) The statute does “not supply an evidentiary presumption that placement with a
relative is in the child’s best interests” but does require that the social services agency
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and juvenile court determine whether such a placement is appropriate, taking into account
multiple factors including the best interest of the child, the parents’ wishes, and the
fitness of the relative. (In re Stephanie M., supra, 7 Cal.4th at pp. 320-321.)
Mother argues that the trial court failed to properly consider placement with
the maternal grandmother, a cousin, and a maternal great aunt. The statutory preference
for a relative placement applies at the dispositional hearing and “whenever a new
placement of the child must be made,” in which case, “the county social worker shall
consider whether the relative has established and maintained a relationship with the
child.” (§ 361.3, subd. (d); see § 361.3, subd. (a)(7)(H) [relative preference applies
where child moved after dispositional order made]; Cesar V. v. Superior Court (2001) 91
Cal.App.4th 1023, 1032 [relative placement preference applicable when new placement
necessary after reunification services terminated but before parental rights terminated].)
Substantial evidence supports the finding that placement with a relative was
not in Maddison’s best interests. (§ 361.3, subd. (a)(1); In re Robert L. (1993) 21
Cal.App.4th 1057, 1068 [linchpin of section 361.3(a) analysis is “best interests of the
child”].) The maternal grandmother requested placement but was disqualified based on
her criminal and child welfare history. She had an extensive substance abuse history and
multiple convictions for driving under the influence and vandalism, plus multiple
probation violations. Grandmother lived at a sober living facility, was currently on
probation, and violated probation a year before the section 366.26 hearing, all of which
created a licensing barrier for placement.
Maddison had a cousin who lived in Bakersfield but there were concerns
about the cousin’s ability to address Maddison’s special needs. The cousin was a single
parent with three children, was pregnant, and on welfare assistance. The cousin saw
Maddison only three times, the last time was more than a year before the 366.26 hearing.
In a July 14, 2015 review report, the social worker stated that the cousin was re-contacted
to see if she wanted to proceed with home placement approval after mother’s services
were bypassed. DSS did not hear back from the cousin. Mother claims that the cousin’s
5
placement request was ignored but the trial court reasonably inferred that the cousin was
no longer interested in the placement.
Mother argues that the trial court erred in not placing Maddison with the
maternal great aunt in Idaho. On July 16, 2015, the trial court ordered DSS to initiate an
evaluation of the aunt’s home under the Interstate Compact on the Placement of Children
(ICPC; Fam. Code, § 7900 et seq.; Cal. Rules of Ct., rule 5.616). The social worker did
not request the ICPC evaluation until August 27, 2015, about three weeks after DSS
contacted the prospective adoptive parents about moving Maddison into their home.
Mother complains that DSS “play[ed] both ends against the middle” by
delaying and not following up on the Idaho ICPC. The alleged error, if any, was
harmless. The great aunt was not entitled to preferential consideration (§ 361.3, subd.
(c)(2) [preferential placement limited to grandparent, aunt, uncle or sibling]) and was not
diligent in getting ICPC home approval for the placement. The record reflects that the
great aunt had never met Maddison and there was no evidence that she was able to care
for Maddison’s special needs.
Substantial evidence supported the finding that it was not in the best
interests of the child to change the foster care placement. (§ 361.3, subd. (a)(1).)
Maddison was a “‘higher-needs’” child, was slow to adjust to new people and
environments, and was thriving in the fost-adopt home. The fost-adopt parents were
committed to maintaining Maddison’s connections with the birth family she was closest
to and who were nearby. The social worker opined that placing Maddison in Idaho
would be detrimental because it would remove her from all the people she knew and was
connected to.
At the 366.26 hearing, the trial court was not required to consider a new
placement but, in an abundance of caution, ruled on the placement requests. It found
there was no evidence that the maternal grandmother or the great aunt could meet
Maddison’s special needs or were ready or able to care for Maddison when the child was
placed with the fost-adopt parents in August 2015. The trial court found that Maddison
had ongoing therapy needs and that a change of placement to Idaho would be “a drastic
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move considering this child’s circumstances and her age and her lack of knowledge” of
the maternal aunt.
Mother’s remaining arguments have been considered but merit no further
discussion. The alleged error, if any, in not following relative placement procedures was
harmless. (In re Joseph T. (2008) 163 Cal.App.4th 787, 798.) “The relative placement
preference . . . is not a relative placement guarantee [citations], and the record contains
ample evidence that the preference was overridden in this case.” (Ibid.)
ICWA Notice
Father contends, and DSS agrees, that the trial court failed to comply with
ICWA because the ICWA notices omit information about the paternal grandmother and
paternal aunt. Mother joins in the argument.
At the jurisdiction hearing, father indicated that he had Indian ancestry with
the Cherokee tribes. DSS assessed the paternal grandmother and aunt for placement but
failed to list their names and addresses on the ICWA notice. DSS and the trial court had
a continuing duty to inquire about whether Maddison was or may be an Indian child.
(§ 224.3, subd. (a); Cal. Rules of Ct., rule 5.481(a); see In re I.B. (2015) 239 Cal.App.4th
367, 376-377; In re S.M. (2004) 118 Cal.App.4th 1108, 1116.)
We have granted DSS’s motions to augment the record which reflects that
DSS, on May 26, 2016, mailed revised ICWA notices listing identifying information
about the father, paternal grandfather and grandmother, and paternal aunt. (See In re
Christopher I. (2003) 106 Cal.App.4th 533, 562-567 [appellate record augmented to
reflect that newly sent ICWA notices were adequate]; Alicia B. v. Superior Court (2004)
116 Cal.App.4th 856, 867 [same].) Each of the Cherokee Tribes (Cherokee Nation,
United Keetoowah Band of Cherokee Indians, and the Eastern Band of Cherokee Indians)
responded with a determination that Maddison is not an Indian child or eligible to be a
tribe member within the meaning of ICWA. The tribes’ determinations are conclusive.
(§ 224.3, subd. (e)(1); Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 255; In
re Karla C. (2003) 113 Cal.App.4th 166, 174.) Based on the tribes’ responses, the
7
alleged error in the original ICWA notice has been rendered harmless. (In re Antoinette
S. (2002) 104 Cal.App.4th 1401, 1412-1413.) Reversal or remand here would exalt form
over substance. (Id., at p. 1413.) “There is no reason to believe that [Maddison] is an
Indian child, nor is there any reason to believe more notices over more time will result in
any more information.” (In re Christopher I. (2003) 106 Cal.App.4th 553, 567.)
The judgment (order denying the section 388 petition and order terminating
parental rights) is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
8
Linda D. Hurst, Judge
Superior Court County of San Luis Obispo
______________________________
Patricia McCourt, under appointment by the Court of Appeal, for
Defendant and Appellant, Barbara J.
Jack A. Love, under appointment by the Court of Appeal, for
Defendant and Appellant, Chad L.
Rita L. Neal, County Counsel, Leslie H. Kraut, Deputy County
Counsel, for Petitioner and Respondent, San Luis Obispo County Dept. of Social
Services.