In re R.W.

Filed 8/25/09 In re R.W. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Martin H. Swanson, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant.

Pamela J. Walls, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.

William Caldwell, under appointment by the Court of Appeal, for Minors.

L. (mother), the mother of R., who is now 13 years old, and the now 10-year-old K., appeals from a judgment of the dependency court terminating her parental rights. On appeal she raises three issues: (1) there was no compliance with ICWA;^[1](2) the court erred in denying her Welfare and Institutions Code section 388^[2]petition alleging changed circumstances and seeking custody of the two children; and (3) the court erred in terminating her parental rights because the beneficial relationship exception to adoption applies. Finding no error, we affirm the judgment.^[3]

PROCEDURAL AND FACTUAL HISTORY

A petition was filed pursuant to section 300 on June 11, 2002. The children were then six and three years old. Among other things, it alleged that mother committed an aggravated sexual assault on her then 13-year-old half brother in violation of Penal Code section 269, subdivision (a). Mother was then almost 25 years old.

The detention report states that mother was caught by her aunt P. in flagrantedelicto on top of her brother. Both were naked from the waist down, and mother was holding a screwdriver in her hand. Mother told a deputy sheriff that she had sat on her brothers erect penis and had penetrative intercourse for about 15 minutes in his bedroom, but he initiated it. She denied holding a screwdriver to his temple.

The jurisdiction/disposition report states that mother has a history of mental illness and has been diagnosed with schizophrenia for which she is prescribed Risperdal. P. stated that mother is a good mother to her children when she takes her prescription medication and does not take street drugs. Mother admitted she uses speed and marijuana. P. stated that mother had been 5150d ( 5150) on two occasions due to violent outbursts. On one such occasion mother had chased P. around the house with a butcher knife with the children present.

The jurisdictional hearing was held on October 9, 2002. Mother was not present. The petition was amended. No testimonial evidence was presented. All the parties submitted on the reports prepared for the hearing. The court sustained the petition and found that the children came within section 300, subdivisions (b) and (g). Custody was taken from mother. The children were placed with P. with whom mother and the children had been residing for about six months before the petition was filed.

A six-month review hearing was held on April 7, 2003, and mother was present and in custody and given six more months of services. The 12-month review hearing was held on October 7, 2003. Mother was out of custody and living with another woman. R. indicated his desire to return to mother. The court referred the case for a selection and implementation hearing.

The report prepared for the section 366.26 hearing indicates that the children were doing well in the care of P. and their extended family. Mother visited once per month, sometimes bringing toys and clothing. The children were happy to see her, greeting her with hugs and kisses, and they played together. The report stated: The likelihood of adoption is not an option at this time. The children have a good relationship with their mother and the caregiver does not want to terminate [mothers] parental rights. (Emphasis added.) The section 366.26 hearing was held on December 23, 2003. The court terminated the dependency and ordered a guardianship with P.

On April 5, 2007, M. filed a section 388 petition seeking to be appointed the guardian of the children due to the death of P. M. is the cousin of mother, and she had been living with P. and the children since 2002. M. was appointed the successor guardian on May 30, 2007. Supervised visitation was ordered because mother had been convicted of lewd conduct with a child under the age of 14 years and was a registered sex offender.

On April 2, 2008, mother filed a section 388 petition seeking to terminate the guardianship and to gain custody of the children. She alleged that the children were not clean and M.s house was in a filthy, deplorable condition. She further alleged that the children were malnourished; were exposed to alcohol abuse, drug use and dealing in and around the house; and M. lacked the ability to parent the children. Mother alleged that she was happily married and living in a clean and safe environment. Mother alleged that the only reason the children were taken from her was that she was incarcerated for having sex with a minor who appeared to be an adult. She did not mention that the minor was her 13-year-old half brother.

On May 1, 2008, M. filed her own section 388 petition requesting to adopt the children.

A report was prepared recommending that mothers petition be denied. The social worker interviewed both children who denied ever seeing drugs in M.s house. They were happy living with M. Both stated that they wanted to be adopted by M. The children stated that they did not wish to live with mother and they did not want to continue to visit with her. When mother visited, her husband would stay outside in the car. She would stay for a short time and mostly watch TV without interacting with them. The children appeared clean and healthy. M.s home appeared clean and in order. A school employee said that the children came to school clean and appropriately dressed. Mother told the social worker that she still took medication for depression, but she no longer heard voices and no longer used medication for that condition. The report essentially indicated that mothers allegations were all unfounded. The recommendation was to grant M.s petition and deny mothers.

On June 23, 2008, the court denied mothers petition, granted M.s petition and set the matter for a new selection and implementation hearing. The childrens attorney supported M.s petition.

A new selection and implementation hearing was held on October 21, 2008. The childrens counsel supported the recommendation of adoption. All parties submitted on the reports without additional testimony, but mothers attorney argued for guardianship instead of adoption. The court terminated mothers rights and selected adoption as the permanent plan.

DISCUSSION

I

ICWA

Mother claims that the court did not comply with the inquiry and notice provisions of ICWA. The dependency began in 2002. The various forms that must be used in determining whether ICWA applies under current law (Cal. Rules of Court, rule 5.481(a)(1))^[4]had no application then, including the Parental Notification of Indian Status form that became mandatory January 1, 2005, by former rule 1439. As a consequence, none of the usual forms used currently to make an ICWA inquiry are in the record.

When the dependency petition was filed, the preprinted forms had two check boxes to indicate whether the child was a member of a recognized tribe or eligible for membership, or may have Indian ancestry. Neither box was checked when the petition was filed. Thereafter throughout the dependency, the reports filed with the court just indicated that ICWA did not apply. The record does not show that at any time mother or her attorney ever indicated that she, or the fathers of these children, may have Indian ancestry.

Mother raises noncompliance with ICWA for the first time on appeal. Mother urges us to reverse the judgment and return the case to the trial court to comply with ICWA. Counsel for mother baldly avers, The children may have Indian ancestry. However, even at this very late stage of the proceedings, there is still no offer of proof by mother as to what the basis for this assertion would be.

Our opinion in InreRebecca R. (2006) 143 Cal.App.4th 1426 is directly on point and dispositive of mothers ICWA claims. There, we rejected nearly identical ICWA issues raised on very similar facts. For the reasons stated there, we reject mothers ICWA claims. There certainly has been no miscarriage of justice demonstrated. ICWA is not a get out of jail free card when there is no showing that the interests protected by ICWA are not implicated in any way. In the absence of a factual representation to demonstrate that the children may have Indian ancestry, the ICWA claim raised for the first time on appeal amounts to nothing more than trifling with the court. (Rebecca R., at pp. 1430-1431.)

II

MOTHERS SECTION 388 PETITION

We lack jurisdiction to entertain mothers appeal of the denial of her section 388 petition. (Rule 8.104(b).)

An order of the dependency court is appealable as an order after judgment. ( 395.) However, the notice of appeal must be filed within 60 days of service of notice of entry of judgment or mailing of notice of entry of judgment or the service of a file-stamped copy of the judgment with proof of service appended. (Rule 8.104(a).)

Mother did not file a separate notice of appeal from the order denying her section 388 petition within the 60-day appeal period. The denial of her section 388 petition occurred on June 23, 2008. The order terminating her parental rights occurred on October 21, 2008. Mother belatedly attempts to seek review of the section 388 order from the separately appealable order terminating her parental rights.

In mothers notice of appeal, she only checked the box indicating that she was appealing the termination order. There is a separate check box to indicate that the appeal is also from an order made at a section 388 hearing. Mother did not check that box, and in any event, even if she had, it was beyond the 60 days.

We are to construe notices of appeal liberally. One court, lamenting the failure of many to include an order denying a section 388 petition along with the appeal terminating parental rights, has construed an appeal from only the order terminating parental rights to include an appeal of the denial of a section 388 petition, but only if the section 388 order occurred within 60 days of the termination order. (InreMadison W. (2006) 141 Cal.App.4th 1447, 1450-1451.)

For these reasons, mothers purported appeal from the section 388 order is inoperable from the appeal of the termination order.^[5] Mothers claim of error in denying her section 388 petition fails on the merits in any event, as we explain below.

Mother has the burden of showing by a preponderance of the evidence (1) that there is a change in circumstances, and (2) that the proposed modification of the previous court order is in the childrens best interest. (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.) The denial of a section 388 petition is committed to the sound discretion of the trial court, and its decision 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.) The appropriate test for abuse of discretion is whether the court has exceeded the bounds of reason by making an arbitrary, capricious, or patently absurd determination. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Mother has failed to establish an abuse of discretion.

Mothers petition sought immediate custody of the children. She did not request reinstatement of reunification services with the aim of eventually regaining custody. Mother contends that the only reason she was denied custody of the children in 2003 was because she was living in a group home, and her criminal charges were then unresolved. Her petition alleged that she was now stable, married and living in a three-bedroom home.

These changes have nothing to do with the underlying cause of the dependency which emanated from mothers sexual assault on her 13-year-old brother while holding a screwdriver and her history of mental illness. Mother states nothing in her petition regarding what, if any, therapy she has taken or is currently engaged in regarding the underlying sexual misconduct. Mother stated that she was taking medication for depression, but no longer took medication for her auditory hallucinations. She was not then seeing any physician. There is nothing in her petition to indicate whether a physician took her off her medication or she just stopped taking it on her own. R. stated that he did not want to live with his mother because when she is off her medication . . . she goes psycho.

Mother had an admitted history of drug use which she failed to address in her petition. She did not indicate whether she has taken drug classes or done current drug testing. She is simply silent on the subject of illicit drug use.

Additionally, in her petition she minimized the gravity of her sexual offense against a minor by stating that he appeared to be an adult and conveniently left out that the person she sexually assaulted was her half brother who was then 13 years old. R. is now 13 years old.

Both children have been out of mothers custody for six years now. They have lived with M. in P.s house since the outset of the dependency. Both state that they want to continue to live with M. and be adopted. They love M. Both have voiced dissatisfaction with mothers visits. Her husband did not participate in visits, and he just sat in the car while they watched television together. There was little interaction between mother and the children during visits. R. is angry over lies that he believes mother has told against M. K. stated that mother makes her feel bad about not wanting to live with her, and that makes her angry. Both children expressed a desire to stop visitation with mother.

Mother has failed to prove either changed circumstances or that the best interests of the children would be served by granting her custody.

III

THE COURT DID NOT ERR IN TERMINATING MOTHERS PARENTAL RIGHTS

Mother contends that the court erred in terminating her parental rights because she has a beneficial relationship with the children. She claims she has visited regularly with the children, and they would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(B)(i).) We disagree.

Mother bears the burden of proving the beneficial relationship applies. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373.) Adoption is the preferred permanent plan when a child cannot be returned to the custody of parents. (In re Brian R. (1991) 2 Cal.App.4th 904, 923-924.)

On appeal, we review the order terminating parental rights under a substantial evidence standard. (In re Jasmon O. (1994) 8 Cal.4th 398, 423.)^[6] In doing so, we do not reweigh the evidence or exercise our independent judgment. Rather, we review the evidence in the light most favorable to the judgment and decide if the evidence in support of the judgment is reasonable, credible and of solid value such that a reasonable trier of fact could find that termination of parental rights is appropriate based on clear and convincing evidence. (Ibid.)

Mother dwells on the relationship of the children with her at the beginning of the dependency in 2002 to establish that there is a beneficial relationship. Then, the children were glad to see her and gave her hugs and kisses. But by 2008, six years later, circumstances and their relationship with each other had changed.

After the guardianship was granted, mother had supervised^[7]visitation for two hours on Monday nights. The visits have been somewhat consistent. The visits were described as strained. Mother would watch TV with the children without much interaction or conversation between them. Her husband would just wait in the car, and they have minimal contact with him. Visits often did not last the allowed two hours. R. stated that the visits only lasted 15 to 30 minutes. The children had not lived with her since 2002 when the dependency petition was filed. In 2008, they were bonded with M. with whom they had lived, along with P. until her death, from the beginning of the dependency. The children expressed their love for M. and their desire to continue to live with and be adopted by her. The children wanted to stop visitation with mother after the adoption was completed.^[8]

We will assume, without actually deciding, that mother did visit regularly, but she failed to establish that the nature of the relationship was such that the children would suffer detriment as a result of its severance. Mother did not really stand in a parental relationship to the children. She failed to show that the nature of their relationship was beneficial such that its continuation promoted the well-being of the children to such a degree that it outweighed the well-being the children would gain in a permanent home with M. as their adoptive parent. Stated another way, mother did not show that severance of the parental relationship would be detrimental to the children because the children were not emotionally attached to her. (In re Brittany C. (1999) 76 Cal.App.4th 847, 853; In re Casey D. (1999) 70 Cal.App.4th 38, 50-51; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418; In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

After a review of the entire record, we conclude substantial evidence supports the courts finding that the section 366.26, subdivision (c)(1)(B)(i) exception did not apply. At very most, mother can only show that the evidence is in conflict on the issue. The court resolved the conflict against her and did not err in terminating her rights.

DISPOSITION

The order terminating parental rights is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Hollenhorst

Acting P.J.

/s/ King

J.

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^[1]The Indian Child Welfare Act (25 U.S.C. 1901 et seq.).

^[2]All further statutory references are to the Welfare and Institutions Code unless otherwise stated.

^[3]The respective fathers of the two children are not parties to this appeal. Throughout the dependency the whereabouts of the alleged father of K. has not been known. The man named on R.s birth certificate took a paternity test which excluded him as the father of R.

^[4]All further rule references are to the California Rules of Court.

^[5]In mothers reply brief, she concedes that her appeal of the denial of her section 388 petition is untimely.

^[6]Some courts have used an abuse of discretion standard. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) Under either standard mothers contention fails.

^[7]Mother is required to register as a sex offender, having been convicted of lewd conduct with a child under the age of 14 years old.

^[8]M., who is 27 years old and the maternal second cousin of R. and K., is amenable to occasional visits with mother, but not weekly ones, following adoption if appropriate. There is also a very large, extended family with whom the children have frequent positive contact.