In re Nathan A.

Filed 11/27/07 In re Nathan A. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

APPEAL from an order of the Los Angeles County Superior Court. Sherri Sobel, Juvenile Division Referee. Affirmed in part and reversed in part with directions.

Leslie A. Barry, by appointment of the Court of Appeal, for Appellant Henry A.

Andre F. F. Toscano, by appointment of the Court of Appeal, for Appellant Veronica C.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Respondent.

________________________

SUMMARY

Parents appeal the juvenile courts summary denial of a fathers petition for modification under section 388 of the Welfare and Institutions Code[1] seeking return to his custody of his seven children, or the provision of additional family reunification services. We conclude fathers petition failed to make an adequate showing triggering a right to a hearing, and affirm.

The parents also contend the juvenile court failed to comply with the notice provisions of the Indian Child Welfare Act (ICWA). The respondent concedes, and we agree, reversible error occurred, and the matter is remanded for the limited purpose of providing proper notice.

FACTUAL AND PROCEDURAL BACKGROUND

Appellants Henry A. (father) and Veronica C. (mother) are the parents of seven children, ranging in age from eight years old to seventeen months.[2] In May 2005, mother tested positive for methamphetamine at the time she gave birth to her sixth child. Respondent Department of Children and Family Services (DCFS) offered mother a voluntary family maintenance services contract, under which she agreed to enroll in parenting and drug rehabilitation programs. However, the children were taken into protective custody in mid-July 2005 and placed with their maternal grandmother and an aunt after mother again tested positive for methamphetamine.

As ultimately sustained, the petition alleged the children were subject to dependency court jurisdiction under section 300, subdivision (b), because mother and father abused drugs and engaged in domestic violence, father had a criminal history, and mother had failed to comply with her family maintenance services contract. At the detention hearing, and later in a DCFS report prepared for the jurisdictional/dispositional hearing in August 2005, the juvenile court received information father had some Native American affiliation through the Yaqui and Cherokee tribes. DCFS was ordered to and did provide notice under the ICWA. (25 U.S.C. 1912(a).)[3]

In September, mother and father submitted to juvenile court jurisdiction based on the amended petition. The court found true the allegations of domestic violence, mothers substance abuse, and fathers criminal and drug history. The children were declared dependents of the court. Mother was ordered to participate in a 52-week program for victims of domestic violence and individual counseling. Father was ordered to participate in a 52-week program for perpetrators of domestic violence. Both parents were ordered to participate in a substance abuse program with random drug testing. The children were placed with their maternal aunt and grandmother, and each parent was given monitored visits on a twice weekly basis. The juvenile court - - inappropriately - - found the ICWA inapplicable.

The parents case plan changed periodically. In December 2005, individual counseling was removed from the case plan, and the parents were directed to attend domestic violence and parenting programs after DCFS reported the parents visited regularly, but were unable to control their children. At that time, father had obtained employment at a liquor store and had drug tested on occasion, but had not enrolled in any court-ordered program. Mother had enrolled in a drug rehabilitation program, but had missed two tests.

A six-month review hearing was conducted on March 13, 2006. DCFS reported mother had partially complied with the case plan. However, she was at risk of being terminated from her drug program due to excessive absences, tardiness, failure to attend AA/NA meetings, and four missed drug tests in a six-month period. Father had not enrolled in any court-ordered program and had missed six drug tests during the same period. Both parents visited the children regularly, but continued to experience difficulty controlling the childrens disruptive behavior. With the exception of Nathan A., the eldest child, who was having difficulty adjusting to his placement, all the children were thriving in the care of their aunt and grandmother, who wished to adopt them. DCFS recommended family reunification services be continued for mother, but terminated for father. The court ordered that the parents need not complete the 52-week domestic violence program if each obtained individual counseling, and continued the matter to late March for a contested hearing.

Meanwhile, on March 11, 2006, mother gave birth to a seventh child, Desare A.[4] At the time of the birth, both mother and newborn tested positive for amphetamines. Mother denied knowing she was pregnant until she had given birth, and denied using drugs. She said she drank from someone elses drink that must have had something in it; father agreed with mothers account. The newborn was detained and placed in the preadoptive home of a different maternal aunt and uncle. DCFS recommended the parents be denied reunification services. At a hearing in late March, the court terminated family reunification services as to the six eldest children, and ordered no reunification services offered as to Desare. ( 361.5, subd. (10).) A selection and implementation hearing ( 366.26) was scheduled for July 26, 2006 for all seven children.

In its report for the July 26, 2006 hearing, DCFS noted the children were healthy, developing appropriately, and comfortable in their placements. The childrens aunt and grandmother wanted to adopt the six older siblings, as did the other aunt with respect to Desare. The three eldest children told DCFS they felt good about living with their grandmother and about adoption, and did not want to leave her to live with anyone other than their parents. The other four children were too young to be consulted regarding their wishes. Father still had not enrolled in any court-ordered program. He had missed three drug tests, and twice tested negative. Mother was on a waiting list to enroll in a residential drug treatment program. She had six negative tests since April 2006, and missed one test. Parental visitation had become sporadic. Mother regularly cancelled visits, and the caretakers had cancelled some visits due to medical appointments. The parents were supposed to, but did not, call to reschedule the visits. No one attempted to set up visits with Desare. DCFS recommended termination of parental rights and requested time to complete adoptive home studies. The parents requested a contested hearing. The matter was continued to late October 2006.

In October, father filed a section 388 petition in an effort to get the juvenile court to modify its order terminating reunification services as to the older children, and denying them altogether as to Desare. He sought six additional months of reunification services or, in the alternative, return of the children to his custody. With respect to changed circumstances, father said he had participated in a drug rehabilitation program since May 2006, had completed a seven-week parenting program, had a full-time job and appropriate housing, and was ready, willing and able to assume custody of all seven children. Father attested the proposed change would serve the childrens best interest because he had visited them regularly, the visits had gone well, and the children, particularly the two eldest, wished to return to their parents. The juvenile court scheduled a hearing on the petition for December 6, 2006, and continued the section 366.26 hearing to the same date.

In its report for the December 6 hearing, DCFS noted mother had not completed her case plan and had not contacted DCFS since October. Father had not completed his case plan: he had completed only a 26-week substance abuse program, not the court-ordered 52-week program, had not participated in individual counseling, had not submitted to drug testing, and had not addressed the domestic violence issue. Both he and mother missed two drug tests in October and November 2006. DCFS continued to recommend adoption as the childrens permanent plan, and said it expected the home studies would be done by February 2007.

At the hearing on December 6, the juvenile court found fathers petition demonstrated, at best, changing, not changed, circumstances. He had not shown either proposed modification would promote the childrens best interest. The court observed that this case was absolutely outrageous in that the parents had done nothing and were willing to allow their seven children to be raised by relatives. Nevertheless, the court indicated that, if it received proof of sobriety and completion of parenting classes, it would take another look at where [they were] and give mother and father another opportunity to demonstrate their ability to parent their children and file another section 388 petition. The section 366.26 hearing was continued to February 1, 2007.

On February 1, 2007, father filed another section 388 petition seeking the same relief sought in his earlier petition. As for changed circumstances, he said he had completed a parenting program and a 26-week substance abuse program, was participating in a domestic violence program, and was visiting his children regularly. He asserted the proposed modification advanced the childrens best interests because the two oldest children wanted to come home, and their prospective adoptive home was not yet approved. DCFS confirmed that father had completed the substance abuse program. However, he did not have a certificate of completion because he still owed the program money. Father also had completed a parenting program and was participating in a domestic violence program. Father had not yet provided DCFS a drug test and had missed three tests since November 2006. DCFS continued to recommend adoption as the childrens permanent plan, and informed the court the home study was approved.

A hearing was conducted on February 1, 2007. At the outset, the court stated it was conducting the hearing based solely on documentary evidence, under former California Rules of Court, rule 1432 [it should have referred to Rule 5.570, the renumbered Rule 1432 which became effective January 1, 2007]. The court denied the petition on the grounds it was untimely, fail[ed] to state new facts, fail[ed] to state new evidence, [and] fail[ed] to show how the modification would promote the best interest of the child[ren]. Neither parent raised any objection to the chosen procedure or the courts ruling.

The court proceeded with the selection and implementation hearing. Father argued termination of parental rights was inappropriate because of concerns the maternal grandmother and aunt were overwhelmed by the children and were not providing appropriate care. DCFS and the childrens attorneys requested the court terminate parental rights. The court found the children adoptable and found no statutory exception applied. Parental rights were terminated. This appeal followed.

DISCUSSION

1. The court did not err in denying fathers section 388 petition.

Father insists he was entitled to an evidentiary hearing on the section 388 petition he filed on February 1, 2007, and the court erred by summarily denied the petition after having inviting him to submit it.[5]

Section 388 authorizes a petition to modify a prior order of the juvenile court upon grounds of change of circumstance or new evidence. ( 388, subd. (a); see also In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) If it appears that the best interests of the child may be promoted by the proposed change of order . . . the court shall order that a hearing be held. ( 388, subd. (c).) The parent seeking modification must make a prima facie showing of both elements to trigger the right to proceed by way of an evidentiary hearing. The parent must demonstrate a genuine change of circumstance or new evidence, and must show that revocation of the extant order would promote the best interests of the child. (In re Marilyn H. (1993) 5 Cal.4th 295, 310; In re Anthony W., supra, 87 Cal.App.4th at p. 250.) To be entitled to a hearing on the merits, a petitioner need not establish a probability of prevailing on his petition. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414.) Rather, if the petition presents any evidence that a hearing would promote the best interest of the child, the court will order the hearing. (In re Heather P. (1989) 209 Cal.App.3d 886, 891.) But if the liberally construed allegations of the petition do not show changed circumstances such that the childs best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) A summary denial of a section 388 petition is reviewed for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 316-318.) Father does not take issue with the juvenile court findings that he failed adequately to demonstrate changed circumstances or that the proposed modification would advance the childrens interests. He contends only that summary denial of his right to an evidentiary hearing was a denial of due process.

a. Father was not deprived of due process.

Father relies on In re Matthew P. (1999) 71 Cal.App.4th 841, to support his assertion the courts denial of an evidentiary hearing on his petition deprived him of due process. In that case, de facto and former foster parents insisted the juvenile courts denial of their request to cross-examine a social worker deprived them of due process and required reversal of the courts order summarily denying their section 388 petition seeking return of the children. (Id. at p. 844.) The petition was denied based on the contents of social services reports. The foster mother wrote a letter taking issue with and attempting to explain certain representations in one report, and objected to admission of the reports. The court admitted the foster mothers letter in evidence, but refused to allow cross-examination of the social worker. (Ibid.) The foster parents appealed, asserting summary denial of their section 388 petition amounted to a denial of due process. The court of appeal agreed. Under the circumstances of that action, including the de facto parents three-year history with the children, their undisputed care and concern for them and their allegations that the social workers statements were inaccurate, the juvenile court was required to conduct an evidentiary hearing. (Id. at p. 851.) Here, father did not object to admission of any DCFS report, did not demand to cross-examine the social worker, and did not offer any additional evidence or make any offer of proof. He did not take issue with any statement made in the DCFS reports, and raised no objection when the court indicated its intention to resolve the petition based on the documentation submitted. Having made no attempt to object before, he cannot complain now that he was disallowed from doing so. A party on appeal cannot successfully complain because the trial court failed to do something it was not asked to do . . . . (In re Cheryl E. (1984) 161 Cal.App.3d 587, 603.) Moreover, unlike the circumstances of In re Matthew P., the DCFS reports in this action do not contradict fathers factual allegations and no credibility issues require resolution. (See In re Clifton V. (2001) 93 Cal.App.4th 1400, 1405 [concluding summary denial of hearing on section 388 petition was a denial of due process because there was a clear credibility contest between representations by parents and social services agency that required live testimony].) Accordingly, we conclude father was not denied due process.

b. No showing proposed change served the childrens best interest.   

The juvenile court denied fathers petition because, among other things, it failed to state new evidence or a change of circumstances, and failed to demonstrate how the proposed change of order would promote the childrens best interests. By his petition, father alleged he had completed some components of his case plan, was participating in a domestic violence program, and his visitation had become regular. Given his near total failure to comply with the case plan in earlier months, and his sporadic visitation, we assume, for purposes of discussion, that this minimal evidence of progress constituted a facial showing of changed circumstances. But more is required. It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that undoing of the prior order would be in the best interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529; see also In re Zachary G., supra, 77 Cal.App.4th at p. 807 [evidentiary hearing required only if it appears proposed change will promote childs best interests].) Although the specific factors considered in determining a childs best interests will naturally vary among children and from case to case, each childs best interests would necessarily involve eliminating the specific factors which required placement outside the parents home. (In re Heather P., supra, 209 Cal. App.3d at p. 892.)

Fathers petition alleged his childrens best interests required their return to his care and custody because two children wanted to live with him, and because the caretakers were overwhelmed and their home was inappropriate in that the home study had not yet been approved. Fathers showing did not necessitate a hearing on his petition. He failed to make even a prima facie demonstration that his seven children, all but one of whom had been out of his custody for eighteen months, would benefit from a further delay in establishing permanency and stability. Father presented no evidence to support his assertion the children would benefit by returning to his care or, indeed, he was fully able or ready to care for them at the time.

Father also failed to make a prima facie showing the childrens best interests would be served by the provision of more services. The children were removed from mother and father after they failed to comply with a family maintenance agreement and their sixth child was born with a positive toxicology. Even after that event, the parents continued to abuse drugs, and a seventh child was removed from their care because of the same drug problem. Father did not even begin participating in a drug rehabilitation program until the children had already been detained for almost a year. Throughout the case, he repeatedly either failed to show up for drug testing or had dirty tests. Even as late as the time his second petition was pending before the juvenile court - - and after he had ostensibly completed a 26-week substance abuse program - - he had failed to show up for three drug tests between late November 2006 and early January 2007. Under the circumstances, the juvenile court could have questioned the credibility of fathers assertion of sobriety. Fathers conduct raises serious lingering concerns about his ability to remain sober and to care for and protect his children from the very danger that led to their removal. The juvenile court, incorporating its awareness of the case history, could evaluate the allegations of the petition and conclude father failed to demonstrate a probability that the provision of more services would serve the childrens interests. There was no denial of due process, abuse of discretion, or error in the courts summary denial of fathers petition. (In re Angel B. ( 2002) 97 Cal.App.4th 454, 461; In re Marilyn H., supra, 5 Cal.4th at pp. 309-310.)

We reject fathers contention that a prima facie showing the childrens best interests would be promoted by the proposed modification because two children wanted to live with him, and because the prospective adoptive home was allegedly inappropriate because the home study was incomplete. First, fathers facts are incorrect. The record reflects the home study for the six older children had been approved by the date of the section 366.26 hearing, and no evidence indicated the home was inappropriate. While the grandmother had some difficulty in the past controlling all six children, family services had been provided to assist her, and things had improved. As for the wishes of two children to live with mother and father, the record reflects those children were quite comfortable with adoption by their relatives if they could not live with their parents. Moreover, although a childs concerns are factors to consider, the childs desire to live with a parent does not constitute evidence that fulfilling that wish will promote the childs best interests. The record indicates that five of the six children living with their aunt and maternal grandmother were thriving in that home, and that even Nathan, who had struggled in the past, had improved since he began receiving counseling.

In a custody determination, a primary consideration in determining the childs best interest is the goal of assuring the childs need for stability and continuity, a need which grows in importance as the childs custody lengthens. Thus, a parent moving for a change of placement must show a change of placement is in the childs best interests. This burden is particularly difficult to meet after termination of reunification services, when the paramount interest ceases to be the parents interest in the care, custody and companionship of the child, and shifts to the childs needs for permanency and stability. (In re Angel B., supra, 97 Cal.App.4th at p. 464.) Father failed to satisfy this test. By February 1, 2007, father had made strides in his drug rehabilitation program. But, even at that late date - - the fourth date for which the section 366.26 hearing had been scheduled - - he was still not drug testing regularly. Although father showed some prospect of successfully remaining sober at this time, his time of sobriety was brief when compared to the much longer period during which he had abused drugs. (See id. at p. 463.) Moreover, no evidence indicated he was participating in the court-ordered individual counseling. No showing was made that father was ready to assume the care or custody of his children, or that the modifications he proposed would promote their interests. Six of the children had already lived with their maternal aunt and grandmother for 18 months. They were doing well in their care, happy to remain with them, and comfortable with the idea of adoption. Their relatives had no difficulty providing for the childrens needs, and were committed to adopting all six children and providing them a stable home. We conclude summary denial of fathers section 388 petition was not an abuse of the juvenile courts discretion.

2. ICWA.

The parents assert the juvenile court erred by finding the ICWA did not apply without first receiving proper notice the Cherokee tribes received notice of the proceeding with respect to the six eldest children, and without ensuring that notices were sent to the Yaqui and Cherokee tribes on behalf of Desare. DCFS correctly concedes this was reversible error.

When the sole error on appeal is failure to comply with ICWA notice requirements, the appropriate response is a limited reversal in which we order the judgment to be reinstated if no tribe intervenes after proper notice is given. (In re Francisco W. (2006) 139 Cal.App.4th 695, 704; In re Brooke C. (2005) 127 Cal.App.4th 377, 384-385 [lack of proper ICWA notice is not jurisdictional, and only order requiring reversal is termination of parental rights unless and until child is determined to be an Indian child under ICWA]; but see Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779 [disagreeing with In re Brooke C.].) A limited reversal is legally authorized, consistent with the best interests of children, and in keeping with fundamental principles of appellate practice. (In re Francisco W., supra, 139 Cal.App.4th at p. 704.) This approach allows the juvenile court to retain jurisdiction over the dependent children and determine the one remaining issue given that the parties already have litigated all other issues at the section 366.26 hearing. (Id. at p. 705.) The children retain the protection of the juvenile court while the case is simultaneously processed to cure the ICWA error, a procedure more expeditious than a full rehearing of section 366.26 issues. (Ibid.)

DISPOSITION

The order terminating parental rights is reversed and the matter is remanded to the juvenile court with directions to order DCFS to comply with the notice provisions of ICWA and to file all required documentation with the juvenile court for the courts inspection. If, after proper notice, a tribe claims a child is an Indian child, and seeks to intervene in the juvenile court proceedings, the juvenile court is directed to vacate its prior orders and conduct all proceedings in accordance with ICWA, section 360.6 and rule 5.664 of the California Rules of Court. On the other hand, if no tribe claims the children are Indian or seeks to intervene, the order terminating parental rights is to be reinstated. In all other respects, the orders appealed from are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P. J.

We concur:

RUBIN, J.

FLIER, J.

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[1]^{All further statutory references are to this code.}

[2]^{The childrens names and dates of birth are: Nathan A. (January 1999); Adriana A. (March 2000); Kimberly A. (May 2001); Destiny A. (January 2003); Henry A. (January 2004); Jacob A. (May 2005); and Desiree (Desare) (March 2006).}

[3]^{Appellants contend, and DCFS concedes, that the juvenile court failed to comply with the notice provisions of the ICWA. Accordingly, there is no need to relate the factual circumstances surrounding these procedural errors.}

[4]^{We adopt Desare as the spelling used by mother and DCFS. Father spells the name Desiree. The record does not contain a copy of the childs birth certificate.}

[5]^{Mother makes no substantive arguments of her own, but merely joins in and adopts the arguments made in fathers appellate briefs. She asserts that, if we reverse the order terminating parental rights as to father, we must also do so on her account. Accordingly, we limit our discussion to the points raised by father.}