In re C.B.
Filed 4/19/13 In re C.B. 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(Sacramento
----
In re C.B. et al.,
Persons Coming Under the Juvenile Court Law.
C071989
(Super. Ct. Nos.
JD231151, JD232057,
JD232058, JD232124)
SACRAMENTO
COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Plaintiff and Respondent,
v.
MICHAEL B.,
Defendant and Appellant.
Michael B.
(father) appeals from the juvenile court’s order terminating his parental
rights as to minors C.B., Matthew B., M.B., and Phillip B. (Welf. & Inst. Code, § 395.)
Father contends the court erred by denying his petition to modify court orders
(§ 388) and by failing to conduct an adequate investigation under the
Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In
December 2010, Sacramento County
Department of Health and Human Services (the Department) filed a section 300
petition as to the newborn infant C.B., alleging that due to the substance
abuse problem of mother (Miriam L.), the minor tested positive at birth for
hydromorphone and tetrahydrocannabinol.
Father
said that although he and mother had been divorced since 2004 or 2005, he was
C.B.’s father. He and mother had had
intercourse around the time of C.B.’s conception, he was listed as the father
on the birth certificate and signed a declaration of paternity at the hospital,
and he held the child out as his own. He
acknowledged, however, that another person whom he did not name might be the
biological father.
Father
reported bipolar disorder,
diagnosed in childhood, for which he was currently being treated. He also claimed to have smoked medical
marijuana, but not in six months. He
received Supplemental Security Income (SSI) for his bipolar disorder and for
back problems. He had recently tested
negative for drugs.
An AOD
(alcohol and other drugs) assessment found him to be “an occasional user with
no or minimal related problems.†He was
referred for random drug testing.
Father
said he was taking care of his other two children, aged nine and 11, over whom
he had primary custody. He had recently
relocated from the Redding area to look for work. Once he had stable housing he wanted the
infant minor placed with him.
Father
filed an ICWA-020 form claiming Seminole ancestry. Mother filed an ICWA-020 form claiming Apache
ancestry.
At the
contested detention hearing, the juvenile court found father to be C.B.’s
presumed father and ordered an ICWA investigation. But after the Apache and Seminole tribes
returned negative responses to the notices sent, and father retracted his claim
of Indian ancestry, the court ruled in March 2011 that the ICWA did not apply.
The
juvenile court ordered the minor’s placement in foster care and granted
reunification services to both parents.
On March
22, 2011, the Department recommended placing the minor with father under
dependent supervision because father now had adequate housing, his visits had
gone well, he was testing negative for drugs, he was attending group
counseling, and he planned to attend parenting classes. The juvenile court made the requested
order.
Shortly
afterward, the Department petitioned the juvenile court under section 388,
requesting that the juvenile court remove the minor from father’s custody and
place him with mother under dependent supervision. The petition alleged that father had
“relapsed,†had left his apartment, and had left the minor and the older minors
with mother. On April 1, 2011, mother
allegedly found father smoking crack cocaine in the minors’ presence. The Department had been unable to contact
him, and his whereabouts were unknown.
In May
2011, the juvenile court placed the minor with mother under dependent supervision.
On
December 29, 2011, the Department filed a subsequent supplemental petition as
to C.B. (§ 342/387), alleging that mother had failed to rehabilitate from
her substance abuse problem and to participate in services. Furthermore, mother had reported that father,
who was using illegal substances, had located mother and the minors and had
verbally and physically abused her, requiring her to move from her
residence.
On
January 4, 2012, the Department filed section 300 petitions as to the older minors
presently in mother’s custody, 12-year-old Matthew B. and 10-year-old
M.B. The petitions alleged: Both parents had untreated substance abuse
problems. In December 2011, mother and
the maternal aunt reported that father continued to abuse illegal drugs and
engaged in domestic violence with mother.
Unknown men had come to the maternal aunt’s home demanding payment for
father’s unpaid drug bills. C.B. was
taken into protective custody on December 30, 2011.
The
detention report as to C.B. stated that mother now claimed C.B.’s biological
father was K.W., who was shot and killed by Redding police in August 2011.
At the
initial hearing on the consolidated petitions, the juvenile court found that
the ICWA did not apply as to any of the minors.
The
jurisdiction/disposition report as to C.B., Matthew B., and M.B.
recommended their placement in the maternal grandparents’ home in Redding,
where they were currently staying.
name="_ftnref4" title="">[4] The maternal grandparents were willing to
become the minors’ legal guardians.
The
maternal grandmother reported that mother was pregnant with an anticipated due
date in March 2012.
The
maternal grandmother and the maternal aunt reported that the parents continued
to see each other and mother allowed father to have daily contact with the
children. The maternal aunt reported
that father was violent with mother and the children. A domestic violence incident between the
parents was reported in December 2011.
The
jurisdiction/disposition report recommended terminating father’s services. Father’s whereabouts had been unknown for six
months, during which he had not contacted the Department or participated in
services. Furthermore, the older minors
wanted no visitation or contact with him.
On
January 25, 2012, the Department filed a section 300 petition as to the
recently born minor Phillip B., alleging inter alia that mother and the minor
tested positive for cocaine immediately after the minor’s birth. The minor was experiencing withdrawal
symptoms and remained hospitalized. Mother was discharged and both parents’
whereabouts were unknown. Phillip B. was
placed in protective custody.
In
February 2012, the Department recommended terminating both parents’ services as
to the three older minors. The parents’
whereabouts were still unknown, and the one-year statutory limit for services
as to C.B. had expired.
The
jurisdiction/disposition report as to Phillip B. stated that on January 27,
2012, the parents were located at Kaiser Hospital visiting the baby. Father reported that he was homeless because
his “Social Security†payee had not been giving him money. He claimed he had been diagnosed with
schizophrenia as well as bipolar disorder and was receiving shock treatment for
his mood swings.
title="">[5] He was taking a variety of medications for
physical and mental problems. He had
used marijuana the night before.
On
February 16, 2012, the juvenile court consolidated Phillip B.’s case with that
of the older minors.
The
juvenile court held a prejurisdictional status conference on March 1, 2012,
which neither parent attended. (The
court denied counsels’ requests for a continuance, finding that the parents had
received due notice of the hearing and no good cause had been shown to continue
the matter.) The court sustained the
allegations of the section 300 petitions as to Matthew B., M.B., and
Phillip B., and the supplemental petition as to C.B. The court terminated the parents’ services as
to C.B., bypassed services to them as to Matthew B. and M.B.
(§ 361.5, subd. (b)(1), (10),(13)), bypassed services to mother as to
Phillip B. under the same provisions, and found that father was only an alleged
father as to him. The court set a
section 366.26 status conference as to all the minors on April 12, 2012, and a
section 366.26 hearing on June 28, 2012.
At the
April 12, 2012 status conference, the parents did not appear. The juvenile court confirmed the June 28 date
for the section 366.26 hearing. Father
was served with notice of the hearing at Sacramento County Main Jail.
The section
366.26 report recommended termination of parental rights and the implementation
of a permanent plan of adoption for all the minors. The maternal grandmother and stepgrandfather
wanted to adopt the three older minors, and Phillip B.’s current caretakers
wanted to adopt him. All the minors were
generally adoptable, even though the three older minors were a sibling group
that included a toddler.
According
to the report, the minors had had no contact with the parents since being
placed in protective custody. The
parents did not call the maternal grandmother and stepgrandfather to ask about
the older minors. They had not visited
Phillip B. once. They had not contacted
the Department to ask about the minors or request visitation.
Matthew B.
had had behavior problems in school and at home, for which the grandparents
were trying to get him help and counseling.
M.B. was doing well, but needed counseling for issues relating to
separation from the parents and adoption.
Matthew B. and M.B. remained uninterested in visitation with
father. Both minors wanted to be adopted
by the grandparents.
The two
younger minors had no significant problems, and Phillip B. was doing well in
his current home. However, he was
receiving early intervention services, and continued developmental screening
was recommended due to his in utero drug exposure.
On June
28, 2012, the juvenile court granted a continuance so that father could be
transported from local custody for the section 366.26 hearing.
On July
5, 2012, father’s counsel asked for a contested section 366.26 hearing, stating
that the issue would be “parental bond†because Matthew B. and M.B. had
spent most of their lives with father.
Father said he had not contacted the minors for the last three months
because he was in custody for “petty theft
burglary.†The juvenile court set a
pretrial hearing for August 2, 2012, and a contested section 366.26 hearing for
August 10.
On August
2, 2012, after father stated that he had signed Phillip B.’s birth certificate
and executed a declaration of paternity, the juvenile court found that he was
Phillip B.’s presumed father. The court
vacated the August 10 hearing and continued the matter to August 23, 2012.
On August
8, 2012, father filed a section 388 petition requesting (1) reunification
services as to all the minors, (2) the vacation of the section 366.26 hearing,
and (3) an ICPC (Interstate Compact on the Placement of Children) (Fam. Code,
§ 7900 et seq.) study for the paternal grandmother. In support, he alleged: He had recently been released from
custody. While in custody he
participated in services, including Narcotics Anonymous/Alcoholics Anonymous
(NA/AA) meetings, the “Man Alive†program, and parenting classes, and regularly
took psychotropic medications. He was
currently reinstating his SSI, which he believed would help him with mental
health treatment.
He had
not known the minors were removed from mother’s custody; he thought they
remained with her and she had refused to let him see them. He also had not known that Phillip B. was in
foster care, and wanted the paternal grandmother considered for placement.
It would
be in the best interests of all the minors to be reunited with father and for
them all to live as a family. Therefore,
it would be in their best interests for him to receive reunification
services.
The
juvenile court scheduled the section 388 petition to be heard along with the
section 366.26 proceeding.
The
Department opposed the section 388 petition on the following grounds: Father had already reunified with C.B., but
relapsed. Father had not visited the
minors since January 2012.
Matthew B. and M.B. said they did not want to live with him and did
not even want to visit with him for now.
The three older minors had been placed with the maternal grandparents
since January 2012, and Matthew B. and M.B. wanted the grandparents (who
were working to complete their adoption homestudy) to adopt them. Phillip B. was happily placed in a prospective
adoptive home with an approved adoption homestudy. The Department had no information as to the
paternal grandmother, but a new placement for any of the minors would not be in
their best interests. Finally, the
Department did not know if father was presently clean and sober. On August 6, 2012, father told the social
worker that since his release from jail he had been trying to get into drug
treatment and mental health treatment programs; he was not taking any
medications, although he had taken “ ‘like thirteen medications’ †in
jail; he could not remember all the medications he was given or the purposes
for which they were given to him; and he was feeling “anxious.â€
On August
23, 2012, the juvenile court continued the consolidated section 366.26/ 388
hearing because father was again in local custody.
On August
29, 2012, the consolidated section 366.26/388 hearing took place. County counsel informed the juvenile court
that father had been convicted of petty theft and resisting an officer, had
received a sentence of 126 days, and was due to be released on October 28,
2012.
The
juvenile court summarily denied the section 388 petition, finding it did not
establish that father had shown changed circumstances or that reopening
services would be in the minors’ best interests.
As to
section 366.26, father testified about the strength of his parental bonds with
the minors.
title="">[6] However, the juvenile court found he had not
shown that any exception to adoption applied.
The court therefore terminated parental rights and referred the minors
to the Department for adoptive placement.
DISCUSSION
I. Section 388
Petition
Father
contends the juvenile court abused its discretion by denying his section 388
petition.
A
petition to modify a juvenile court order under section 388 must factually
allege the existence of new evidence or changed circumstances, and that the
proposed modification of existing orders will serve the minors’ best
interests. (In re Daijah T. (2000) 83 Cal.App.4th 666, 672.)
The petitioner has the burden of proof on both points by a preponderance
of the evidence. (Cal. Rules of Court,
rule 5.570(h)(1)(D).)
name="_ftnref8" title="">[8] In assessing the petition, the court may
consider the entire history of the case.
(In re Justice P. (2004)
123 Cal.App.4th 181, 189.)
To decide
whether a parent has met his burden under section 388, the juvenile court must
consider such factors as the seriousness of the problem that led to the
dependency, and the reasons for the problem’s continuation; the degree to which
the problem may be and has been removed or ameliorated; and the strength of the
relative bonds between the dependent child and the child’s parents or
caretakers. However, this list is not
exhaustive. (In re B.D. (2008) 159 Cal.App.4th 1218, 1229;
56 Cal.App.4th 519, 532 (Kimberly F.).)
When a
parent brings a section 388 petition after a section 366.26 hearing has been
set, the best interests of the child are of paramount importance. (See In
re Stephanie M. (1994) 7 Cal.4th
295, 317.) Therefore, the
juvenile court looks not to the parent’s interest in reunification but to the
child’s need for permanence and stability.
(In re Marilyn H. (1993)
5 Cal.4th 295, 309.)
The
petition must be liberally construed in favor of its sufficiency. (Rule 5.570(a).) However, if the juvenile court finds that
even so construed the petition fails to make a prima facie case as to either or
both tests under section 388, the court may deny the petition without an
evidentiary hearing. (§ 388, subd.
(d); rule 5.570(d), (h)(2); In re Justice
P., supra, 123 Cal.App.4th
at p. 189.)
We review
a ruling denying a section 388 petition for abuse of discretion. (In re
S.R. (2009) 173 Cal.App.4th 864, 866.)
We reverse only if the ruling exceeded the scope of the juvenile court’s
discretion, or if under all of the evidence, viewed most favorably to the
ruling, no reasonable judge could have made that ruling. (In re
Jasmine D. (2000) 78 Cal.App.4th 1339, 1351; see Great West Contractors, Inc. v. Irvine Unified School Dist. (2010)
187 Cal.App.4th 1425, 1459.)
Here,
construing the evidence most favorably to the ruling, father’s petition did not
make a prima facie case either as to changed circumstances or as to the
children’s best interests. Father
alleged only that he had engaged in a few services and taken psychotropic
medications while in custody and that he hoped to obtain treatment for his
mental health problems after his release.
Given his failure to participate in services during the reunification
period and the long-standing nature of his mental health and substance abuse
problems, the evidence offered by father did not amount to a showing of changed
circumstances within the meaning of section 388. (See In
re Cliffton B. (2000) 81 Cal.App.4th 415, 423.)
Furthermore,
in considering the entire history of the case (In re Justice P., supra,
123 Cal.App.4th at p. 189), the court could hardly overlook the fact
that after father’s last release from custody he had committed another offense
and was again in custody at the time of the hearing on his section 388
petition. Given this fact, the court
could reasonably have concluded that the services father engaged in and the
medications he took while previously in custody did not create changed circumstances.
But even
if father showed changed circumstances, he did not make a prima facie showing
that granting him reunification services would be in the children’s best
interests. They were placed in homes
that were likely to adopt them, and the two who were old enough to express an
opinion on the subject clearly wanted to be adopted. When children are adoptable and their
caretakers want to adopt them, the court’s objective must be to provide them
with permanence and stability as soon as possible through adoption. (In re
Stephanie M., supra,
7 Cal.4th at p. 317; In re
Marilyn H., supra, 5 Cal.4th
at p. 309.) Providing services for
father would have frustrated this objective by delaying permanence and
stability for the minors indefinitely.
To show
why his proposed order would be in the children’s best interests, father stated
only that biological families should be reunited. But this premise no longer applies once
reunification has failed. (
Father
argues that the juvenile court abused its discretion by failing to consider the
Kimberly F. factors on the
record. But “[i]f there is any clear and
sufficient finding on which a judgment may rest, it will be presumed in favor
of the judgment that the court did rely on it[.]†(Mayes
v. Sturdy Northern Sales, Inc. (1979) 91 Cal.App.3d 69, 81; see
567, 583-584.) Therefore, absent
evidence that the court did not consider the Kimberly F. factors and impliedly find they supported its ruling,
we presume the court considered those factors.
So far as
father argues that the evidence could be construed to favor him under the
insufficient to meet his burden on appeal because we do not reweigh the
evidence under the abuse of discretion test.
(In re Jasmine D.,
p. 1351.)
Father
has shown no error in the denial of his section 388 petition.
II. The ICWA
Notice Requirements
Father
contends the juvenile court failed to give proper notice under the ICWA. We disagree.
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);
147 Cal.App.4th 982, 989.) Here,
the court did so as to C.B. after the parents claimed Indian heritage, and
found the ICWA inapplicable only after all the noticed tribes had denied that
C.B. was a member or eligible for membership.
Father does not contend the court erred in that respect.
Father
asserts, however, that after mother named the now deceased K.W. as C.B.’s biological
father, the court should have provided K.W.’s name to the tribes, first as to
C.B. and then as to the other minors when their proceedings began. Father is mistaken. Respondent’s misstatement to the contrary
notwithstanding, there is no evidence that K.W. was a Native American, let
alone a member of a specific tribe.
Thus, K.W.’s alleged biological paternity gave the juvenile court no
reason to know that C.B. was or might be an Indian child.
Where the
juvenile court has no reason to know that a minor is or might be an Indian
child, there is no duty to give the ICWA notice. (In re
Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520-1521.) Because there was no information before the
court that K.W. had Indian ancestry, the fact that he was alleged to be C.B.’s
biological father gave the court no duty to provide new or amended notice to
the tribes.
DISPOSITION
The
orders denying father’s section 388 petition and finding the ICWA inapplicable
are affirmed.
BUTZ , J.
We concur:
NICHOLSON , Acting P. J.
MAURO , J.
name="_ftn1" title="">[1] Undesignated statutory references are to the
Welfare and Institutions Code.
name="_ftn2" title="">[2] Mother’s parental rights were terminated
along with those of father. She is not a
party to this appeal. We mention only
those facts about her that help to
clarify the issues father raises.
