In re Alisha D.

Filed 11/6/07 In re Alisha D. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Kenneth Fernandez, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed in part; reversed in part with directions.

Ellen L. Bacon, under appointment by the Court of Appeal, for Defendant and Appellant Pedro P.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant Candis C.

Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant Daniel D.

Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant Julia D.

Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.

Karen J. Dodd, under appointment by the Court of Appeal, for Minors.

Candis C. (mother of A.D. and A.P.) appeals the denial of her petition to modify pursuant to Welfare and Institutions Code, section 388,^[1]and the adequacy of the notices sent pursuant to the Indian Child Welfare Act (ICWA); Daniel D. (father of A.D.) and Pedro P. (father of A.P.) appeal the termination of their respective parental rights, joining in Candis C.s arguments and challenging the adequacy of notices sent pursuant to ICWA; and Julia D. (paternal grandmother of A.D.) appeals the summary denial of her petition to modify pursuant to section 388. Each party joins in the arguments of the other parties. We affirm in part and reverse the order terminating parental rights due to inadequate notice under ICWA. We direct the juvenile court to order the Riverside County Department of Public Social Services (DPSS) to serve proper notices to the relevant Indian tribes and, thereafter, determine whether the children are Indian children.

1. Background

A.D. first came to the attention of DPSS in 2002 based on allegations of substance abuse and medical neglect. The allegations were made by a paternal aunt, Tonya D. The allegations of medical neglect (counts b-4 and b-5 of the petition) were dismissed at the detention hearing when A.D.s pediatrician confirmed mother was obtaining proper treatment for suspected chronic urinary tract disorder. At the jurisdiction hearing, the court found the remaining allegations pursuant to section 300, subdivision (b), true, declared A.D. a dependent child, and placed her directly with the mother under a plan of family maintenance. At the six-month review, dependency jurisdiction was terminated with exit orders.

On October 5, 2004, a new petition was filed respecting both A.D., then age 5, and A.P., age 16 months. The new petition alleged the children were described in section 300, subdivisions (b) and (g), by virtue of mothers recent arrests (within days of each other) for being under the influence of methamphetamines and selling drugs, and for assaulting father Daniels girlfriend. The petition also asserted mother placed the children at risk by associating with gang members and others who abused drugs in the home where the children had access. The allegations against father Daniel related to the fact he knew mother was selling drugs out of her home, and knew she had a gun, yet failed to intervene on behalf of the children, and that he also abused drugs. The new petition requested denial of reunification services on the grounds that (1) Candis and Daniel had been provided family maintenance services previously but had not benefited from them; and (2) Pedro, father of A.P., had an extensive criminal history including battery, domestic violence, and vehicle theft.

On January 11, 2005, following a contested jurisdictional hearing, both A.D. and A.P. were adjudged to be dependents under section 300, subdivision (b). Custody was removed from the parents and the children were placed in the custody of DPSS. The court denied reunification services to Candis and Daniel pursuant to section 361.5, subdivision (b)(13), and denied services to Pedro pursuant to section 361.5, subdivision (e)(1). The court directed DPSS to evaluate the homes of relatives for possible placement, and the matter was referred for a permanency planning hearing pursuant to section 366.26.

On May 3, 2005, Rosemary Y., the paternal grandmother of A.P., filed a section 388 petition seeking custody of her granddaughter and indicated possible Indian heritage. On May 5, 2005, Pattsy B., maternal great-grandmother, filed a section 388 petition, also seeking custody of the children. In the meantime, the children were placed for possible adoption by A.D.s paternal uncle and aunt, David D. and Tonya D., although in the section 366.26 report, the social worker noted some major concerns based on their harsh treatment of the children, and inappropriate punishment for the baby. There were also reports that the mother had threatened to kill the children rather than allow anyone else to have custody of them. During supervised visits with the mother, the children seemed bonded to her and mother interacted with them well. The maternal great-grandmother was interested in having the children placed with her. Nevertheless, the recommended permanent plan was adoption by the paternal aunt and uncle.

In an addendum report filed the same day as the section 366.26 report, the social worker noted problems with the three grandmothers harassing the relative caretakers. Another report filed the same day recommended discontinuing parental visits, issuance of restraining orders against the three grandmothers, and termination of parental rights. The children appeared to be improving and no changes in behavior were noted after visits with mother, but after telephonic visits with her father, Daniel, A.D. wet the bed. The social worker reported A.D. and A.P. had a sibling bond.

The addendum report recommended discontinuing visits with mother because she inquired about A.D.s placement and school raising the fear she might attempt to abduct A.D. It also reported that mother had claimed to have completed a substance abuse program but had not provided documentation. The social worker commented about the three grandmothers who had aligned in an effort to have the children removed from the paternal aunt and uncle, and recommended discontinuing relative visits and issuing restraining orders. The social workers log entries expressed concern about the caretakers dishonesty in not reporting the paternal uncles criminal history of domestic violence and the paternal aunts conviction for driving on a suspended license.

On June 9, 2005, the court commenced the hearing on paternal grandmother Rosie Y.s (A.P.s paternal grandmother) 388 petition. The court found that the Costanoan Rumsen tribe, of which Rosie was a member, was not a federally recognized tribe. During further proceedings on the petition, maternal great-grandmother Pattsy B. informed the court she was half Cherokee. The trial court directed her to provide information relating to Indian heritage to the social worker and directed that notices be sent pursuant to ICWA. Notices were sent to the various Cherokee tribes and the Bureau of Indian Affairs.

On July 13, 2005, paternal grandmother Julia D. filed a section 388 petition seeking relative placement of both children. The petition was summarily denied without a hearing. At the selection and implementation hearing which was conducted that same day, the court denied the DPSSs motion to suspend visitation, but conditioned future visits on 24-hour prior notice of intent to visit. This matter, as well as the matter of Rosie Y.s 388 petition, was continued to give notice to tribes.

The selection and implementation hearing was continued several times over the next two years. By August 23, 2005, the social worker reported that the children were removed from the home of the paternal aunt and uncle because of several incidents, including a failure to supervise the children which resulted in A.P. nearly drowning in a pool that lacked an adequate fence, and an incident where she fell off a trampoline, hitting her head. Additionally, A.D. reported she had been spanked a lot. The social worker complained the relatives were trying to cause confusion and delay the case. The report revealed that the maternal great-grandmothers home had been evaluated for relative placement but could not be approved because she had a criminal conviction, and because she was the primary caretaker of an adult son who was disabled due to a brain aneurism.

On August 25, 2005, the court concluded the hearing on both 388 petitions and denied the requested modification. The court also terminated the visits of all parents and relatives because the children were in adoptive status and A.D. was experiencing behavioral problems, such that visitation was not beneficial.

An updated section 366.26 report was filed on November 10, 2005. The social worker reported that mother had visited the children until the visits were suspended by the court. The social worker indicated the children had been screened and were considered adoptable; they were placed in a preadoptive placement. In another addendum report, however, this placement proved unsuccessful because the prospective adoptive mother suffered from fibromyalgia and hypothyroidism; additionally, she had two biological children to care for, one of whom suffered from autism, and she was in the process of adopting two other children, including a disabled boy. The social worker was concerned about her ability to care for so many children with her own health issues.

By December 9, 2005, the children were placed with the paternal grandparents of A.D., Julia D. and Victor D. Follow up assessments of the maternal great-grandmother and the paternal grandmother of A.P. were negative and reflected a guarded prognosis for successful adoption. At the continued hearing date for the selection and implementation hearing on December 13, 2005, the court reinstated the parents visits, but had to continue the matter for 120 days to complete the adoption assessment, and to allow time for the grandparents to benefit from services. By February 1, 2006, in a preliminary assessment, the DPSS continued to express concerns about the paternal grandparents poor parenting skills, lack of insight as to the reasons for DPSS intervention, lack of insight relating to both sons propensities for domestic violence, poor boundary setting, conflicting parenting views, and an argumentative communication style.

The children remained with the paternal grandparents until July 25, 2006, when they were moved to a new nonrelative adoptive placement. During the interim, the final assessment of the paternal grandparents raised new concerns, including, but not limited to, the fact the paternal grandfather locked two-year-old A.P. in a bedroom alone, while the social worker was present, and the paternal grandmother behaved as if this were not unusual. The addendum report noted the children were clearly attached to their grandparents, and the grandparents clearly loved their granddaughters, but several issues precluded adoption by the grandparents. The DPSS therefore recommended termination of parental rights and adoption by the new nonrelative caretakers.

On July 27, 2006, mother filed a section 388 petition seeking reinstatement of reunification services or placement with the maternal great-grandmother. The petition included documents showing she had reached a one-year milestone of sobriety, regularly submitting negative drug tests, and had completed a parenting class. The petition was summarily denied.

On September 8, 2006, the maternal great-grandmother filed a new section 388 petition requesting further evaluation of her home and to grant her relative placement status.^[2] This petition was set for a hearing. Following an evidentiary hearing, the petition was later denied.

On September 15, 2006, Julia D., the paternal grandmother of A.D., filed a section 388 petition, seeking return of the children to her custody. This petition was summarily denied. On September 22, 2006, the mother filed a new section 388 petition, seeking reinstatement of reunification efforts based on her rehabilitation, or, in the alternative, placement of the children with a relative. The petition was summarily denied because it did not show how the proposed modification would be in the best interests of the children.

The selection and implementation hearing was finally heard over several days in October 2006, culminating in a determination that the children were adoptable. Parental rights were terminated. The mother, Candis C., the respective fathers of A.D. and A.P., Daniel D., and Pedro P., as well as Julia D., the paternal grandmother of A.D., all appeal.^[3] We affirm in part and reverse in part and direct compliance with ICWA.

2. Discussion

The various appeals include overlapping issues, so we will deal with the questions presented in an issue-by-issue manner, addressing the parties specific points in the process, to avoid the duplication that would result otherwise.

A.     Summary Denials of Mothers and Julias Respective 388 Petitions Do Not Require Reversal.

Both mother, and Julia D., the paternal grandmother of A.D., argue that the trial courts summary denials of their respective section 388 petitions was error. Mother contends the summary denial violated due process, but analyzes the issue as an abuse of discretion. Both fathers join. We disagree.

A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist, and (2) the proposed change would promote the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 316-317.) To trigger the right to a hearing on the petition, the petitioner need only make a prima facie showing of these elements, and the petition should be liberally construed in favor of granting a hearing to consider the petitioners request. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.)

A prima facie showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) Where the allegations of the petition, even when liberally construed, do not make a prima facie showing of either changed circumstances or that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.) A petition which includes general, conclusory allegations, does not rise to the level of a prima facie showing. (In re Edward H., supra, at p. 593.)

The juvenile court has discretion whether to provide a hearing on a petition alleging changed circumstances. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 431.) We review a summary denial of a section 388 petition for abuse of discretion. (In re Angel B. (2002) 97 Cal.App.4th 454, 460.) We examine each to determine if the juvenile court abused its discretion.

Mothers second petition alleged that she had cleaned up her life to demonstrate to the court that she had the ability to presently provide care for the children. She supplied documentation of her participation in a parenting class. However, in addition to drug use, the presenting problems which led to the current dependency were mothers two arrests, on separate occasions within a matter of days, for drug sales and battery. One of the jurisdictional bases related specifically to her anger management problems. While drug use was a serious issue for mother to resolve in order to establish changed circumstances, resolving only one identified problem and taking a parenting course is insufficient proof of changed circumstances where the issues relating to violence and anger management have not been addressed. Mother did not make a prima facie showing of changed circumstances.

Further, mothers petition did not show how the proposed modification would be in the childrens best interests, although she attempts to show best interests by arguing she raised A.D. for five years and the child was in good health when detained. Candis acknowledges her unstable lifestyle may have justified removal, and that her tendency to cross the boundaries resulted in canceled visits. Mother has come a long way, but by not addressing all the major jurisdictional issues, she could not establish that the proposed modification would be in the childrens best interests. It was not an abuse of discretion to deny the petition without a hearing, nor did it violate mothers due process rights.

Regarding the paternal grandmothers petition, Julia D. acknowledges she did not allege any changed circumstances or new evidence. These are not merely technical flaws, and it is doubtful a different result would have occurred if Julia had drafted a more artful petition or if she had had the benefit of counsel in the juvenile court. The circumstances that led to removal of the children from Julias home were serious concerns about the grandparents ability to properly parent the children, as well as to protect them. The failure to address these issues cannot be overlooked and no amount of grandparents love for a grandchild could justify a return of the children to their custody withoutat a minimuma prima facie showing that these problems have been resolved.

Given the grandparents consistent denial that their son was in any way responsible for the childrens dependent status, their lack of judgment in locking a toddler in a bedroom alone, their lack of a proper plan to care for the children in case anything happened to them, and their insistence they did not need counseling or therapy, it was not an abuse of discretion to deny the section 388 petition ex parte, even under the most liberal construction.

B.     ICWA Notice Requirements Were Not Satisfied.

Mother argues the juvenile court erred in finding that ICWA notice had been sent as required by law because the notices sent by the DPSS contained errors which made it impossible for the tribes to determine the minors eligibility for membership. Both fathers, as well as grandmother Julia D., join this argument. We agree in part.

When the court knows or has reason to know that an Indian child is involved, the party seeking foster care placement of, or termination of parental rights to, an Indian child must notify the Indian childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right to intervention. (25 U.S.C. 1912(a).) The juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement. (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.) ICWA notice requirements are strictly construed. (In re Karla C. (2003) 113 Cal.App.4th 166, 174.) To enable the court to review whether sufficient information was supplied, the DPSS must file with the court the ICWA notice, return receipts, and responses received from the BIA and tribes. (In re Karla C., supra, at pp. 175, 178-179.)

It is essential to provide the Indian tribe with all available information about the childs ancestors, especially the ones with the alleged Indian heritage. (In re Louis S. (2004) 117 Cal.App.4th 622, 633.) It should go without saying that efforts should be made to provide the tribe with correct information.

Mother points out that in June of 2005, the maternal great-grandmother, Pattsy B., reported she was an unregistered Cherokee Indian from Missouri, and the paternal grandmother of A.P.,^[4]Rosemary Y., informed the court that the minor had relatives from the Apache Tribe in New Mexico. However, the information contained in the Notice of Involuntary Child Custody Proceedings respecting the possible Cherokee affiliation of the maternal great-grandmother describes the possible Indian ancestor in the box for mother and designates this person as grandmother to Rosemary B[.] The maternal great-grandmother, who provided this information, is named Pattsy not Rosemary, and the social worker misspelled her last name, further reducing any chance the tribes might find her name on any tribal registry. This notice was inadequate.

Corrected notices were sent on July 18, 2005, but the maternal great-grandmother was still misnamed Rosemary, and the surname was again misspelled. This notice is also defective, and therefore inadequate for purposes of aiding the tribe in determining whether or not the children are eligible for tribal membership. (In re Louis S., supra, 117 Cal.App.4th at p. 631.)

The paternal grandmother of A.P., Rosemary Y., whose own affiliation was with a non-federally recognized tribe (the Costanoan Rumsen tribe), informed the court that Pedros paternal grandmother, Lorraine P., was affiliated with a New Mexico branch of the Apache tribe. The corrected notice sent after Rosemary Y. provided this information, appears to include all the information provided by the family. It was sent to nine Apache tribes, two of which are located in New Mexico. We find this notice was adequate, based on the information available.

We reverse the termination of parental rights because the finding that adequate notice was given to the Cherokee tribes, and that ICWA does not apply, is not supported by the record. (In re J.T. (2007) 154 Cal.App.4th 986, 991.) We direct compliance with ICWA. (In re Francisco W. (2006) 139 Cal.App.4th 695, 705-706.) Although A.D.s father denied having any Indian heritage, we reverse the termination of his parental rights, also, because A.D. cannot be adopted unless both parents rights have been terminated. (In re DeJohn B. (2000) 84 Cal.App.4th 100, 110.)

C.     Any Violation of Julia D.s Due Process Rights in Removing the Children Without Filing a Section 387 Petition Was Waived By Failure to Timely Object or Appeal.

Julia D. argues the juvenile court violated her due process rights by removing the children from her care without filing a section 387 petition. Respondent argues that Julia D. forfeited any challenge by failing to timely object. We agree with respondent.

Julia acknowledges that when a general placement order vests the DPSS with the minors custody and the discretion to select suitable placement, the agency may, without further court order, react to changed circumstances by removing the child from an environment it deems no longer suitable and selecting another placement. (In re Cynthia C. (1997) 58 Cal.App.4th 1479.) To avoid this result, however, Julia argues there was an implied specific placement with the grandparents.

After an exhaustive search, we could find no cases, statutes or rules which recognize an implied specific placement, and Julia cites none. Even if we could find such authority, we could not apply it where the only placement order we could find in the record was the juvenile courts order of January 11, 2005, which removed custody of both children from the parents, and placed care, custody and control of said minor(s) . . . with DPSS. Throughout the balance of the proceedings, the trial court reaffirmed the full force and effect of its prior orders to the extent they were not inconsistent with new orders. There was no specified placement order in this case, so no section 387 petition was required.

In addition, Julia D. failed to preserve the issue for appeal by timely objecting in the trial court. Although she did file a section 388 petition seeking return of the children, she did not object to the lack of a section 387 petition. The children were removed from her home on July 25, 2006, and she filed her section 388 petition on September 15, 2006. Her petition said nothing about the lack of a hearing prior to removal of the children. She was present at the hearing on September 18, 2006, when the court considered the section 388 petition filed by the maternal grandmother. She was also present at the ongoing proceedings relating to the selection and implementation hearing on October 10, 2006, and October 12, 2006.

As our sister court, Division One of this district, has held under similar circumstances, The parents may not stand idly by and raise the issue for the first time on appeal. (In re X.V. (2005) 132 Cal.App.4th 794, 806.) The same rule applies to grandparents. The failure to file a section 387 petition prior to moving the children to a nonrelative adoptive home did not violate Julias due process rights.

3. Disposition

The orders denying the section 388 petitions are affirmed. The judgment terminating parental rights is reversed, and we direct the juvenile court to order the DPSS to comply with the notice provisions of ICWA and file all required documentation with the juvenile court for the courts inspection. If, after proper notice, a tribe claims A.P. is

an Indian child, the juvenile court shall proceed in conformity with all provisions of ICWA. If no tribe claims A.P. is an Indian child, the judgment terminating parental rights shall be reinstated.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Ramirez

P. J.

s/McKinster

J.

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^[1] All further references are to the Welfare and Institutions Code unless otherwise stated.

^[2] The petition refers to an attached declaration for its factual basis, but the clerk of the court issued a certificate indicating no such declaration could be located in the case file.

^[3] The maternal grandmother had also filed a notice of appeal, but her appeal was dismissed by this court on January 29, 2007.

^[4] Candis refers to the paternal aunt in her argument, but we assume she means the paternal grandmother, based on the record references.