In re Angelina M.

Filed 10/20/06 In re Angelina M. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge.

Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.

B.C. Barmann, Sr., County Counsel, and Jennifer E. Zahry, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant, Gina J., appeals from an order of the juvenile court rejecting her petition pursuant to Welfare and Institutions Code section 388 to modify earlier orders of the court denying her reunification services.^[1] Appellant further contends the court failed to comply with the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; ICWA).^[2] On April 22, 2006, the trial court denied appellant’s modification petition pursuant to section 388 and terminated her parental rights pursuant to section 366.26.^[3]

FACTS AND DEPENDENCY COURT PROCEEDINGS

When Angelina was born in September 2005, she and her mother tested positive for Phencyclidine (PCP) and amphetamine. The Kern County Department of Human Services (Department) placed Angelina into protective custody.^[4] On September 13, 2005, the Department filed a juvenile dependency petition pursuant to sections 300, subdivisions (b) and (j). The three section 300, subdivision (j) allegations set forth there was substantial risk Angelina might be neglected or abused because six of Angelina’s half-siblings had been previously found to be abused or neglected pursuant to section 300, subdivision (b), due to appellant’s substance abuse.

Appellant appeared at the September 14, 2005, detention hearing. Angelina’s father did not appear. Appellant informed the social worker investigating her case that she had American Indian heritage and was an enrolled member of the Paiute-Castanoan tribe. When asked why she checked a box stating she had American Indian ancestry, appellant explained she was enrolled in a tribe. Appellant quickly added her tribe was “not fully recognized.” The court noted that did not count and asked appellant which tribe she was enrolled in. Appellant replied she was a member of the Paiute-Shoshone tribe.^[5]

The social worker told the court she had called the Bureau of Indian Affairs (BIA) that morning and they had told her appellant’s tribe was not federally recognized. The court explained to appellant the ICWA was not applicable unless she was a member of a federally recognized tribe.

Appellant had admitted to the social worker that she had a history of drug abuse dating back 13 years and had been using PCP and methamphetamine during her pregnancy with Angelina. The court ordered the minor detained and set the jurisdictional hearing for October 25, 2005.

Appellant expressed early interest to the social worker in ending her drug addiction. On September 14, 2005, however, appellant tested positive for PCP use and on September 19, 2005, she admitted using PCP. Appellant told the social worker she had never completed a substance abuse program. The Department reported appellant had briefly entered a resident drug treatment program, but had left the program by October 4, 2005.

On October 25, 2005, the court commenced the jurisdictional hearing. The court granted the Department’s motion to take judicial notice of the findings and orders in six earlier petitions involving Angelina’s siblings and half-siblings. The court noted it had all the files from the earlier cases before it and had reviewed them.

Appellant and Angelina’s father waived their rights to a contested hearing and submitted the matter to the court. The court found all of the allegations in the petition to be true and found Angelina was a person described by section 300, subdivisions (b) and (j). The matter was continued until December 6, 2005, for the disposition hearing.

On November 4, 2005, appellant entered a residential treatment program. As of December 6, 2005, she successfully remained in the program. The social study report prepared for the disposition hearing detailed appellant’s failed attempts in the past to reunify with her other six children dating back to 2000, when appellant received reunification services. Appellant’s parental rights as to four of the six children had already been terminated prior to the instant proceedings. Appellant had been denied further reunification services as to the other two children, who were no longer in their mother’s custody. Based on appellant’s unsuccessful history at reunifying with her six older children, the Department recommended that appellant not receive reunification services.

At the December 6, 2005, disposition hearing, the court found that Mark M. was Angelina’s biological father.^[6] The court again took judicial notice of the prior proceedings involving Angelina’s six siblings and half-siblings. Appellant’s counsel requested reunification services for his client. Counsel noted appellant had been free of drug use for a month.

The court found Angelina to be a dependent of the court pursuant to section 300, subdivisions (b) and (j) and placed her into the care, custody, and control of the Department. The court further found there was clear and convincing evidence Angelina came within the provisions of section 361.5, subdivisions (10), (11), and (13). The court denied appellant reunification services.

The court noted reunification services had been terminated for other siblings and half-siblings and appellant has not made every reasonable effort to treat the problems that led to removal of the other children from appellant. The court found the mother’s parental rights had been terminated as to other siblings and half-siblings. The court also noted appellant had a history of extensive, abusive, and chronic drug or alcohol abuse during a three-year period immediately prior to the filing of Angelina’s petition, or, appellant had failed or refused to comply with the program of drug and alcohol treatment set forth in the case plan on at least two prior occasions even though the programs were available and accessible. The court ordered a termination hearing pursuant to section 366.26 within 120 days and for the Department to prepare an assessment of Angelina for adoption.

On March 30, 2006, appellant filed a petition for modification pursuant to section 388. Appellant alleged she had completed parenting, neglect, and substance abuse counseling and remained sober for five months. Appellant further alleged that the changes would be better for her child because she would be raised by her natural mother and have contact with a large extended family, including siblings and many relatives. The Department confirmed appellant completed neglect and parenting counseling and was enrolled in a substance abuse treatment facility. Appellant was expected to complete her treatment in October 2006. The Department reported appellant had six negative drug screen tests over three months.

The social worker’s report for the April 11, 2006, hearings set forth that Angelina was delayed in her gross motor development. At six months old, she was not rolling over or sitting up. Angelina’s caregiver was interested in adopting Angelina. Angelina appeared to be happy and no emotional or behavioral problems were noted by the caregiver. As of the time of the report, all of Angelina’s siblings and half-siblings had been adopted.^[7]

Since Angelina was brought into protective custody, she had 18 recorded visits with appellant. On five occasions, appellant failed to attend a scheduled visitation. Appellant said she loved all of her children and wanted to get Angelina back. During a visit on February 15, 2006, appellant told the caretaker that she did not know if she could continue with the rehabilitation program and felt like going back onto drugs again.

The social worker reported appellant did not have a substantial relationship with Angelina. Angelina does not know, and would not recognize, appellant as her parent. Angelina had no contact with her siblings. Appellant admitted to the social worker that she was unsuccessful in completing counseling or staying drug free.

The prospective adoptive parents have four biological children and have been married for 17 years. Even if the prospective adoptive parents do not adopt Angelina, the social worker noted Angelina is happy and healthy and it is likely another adoptive home could be found for her. The social worker recommended appellant’s parental rights be terminated.

On April 11, 2006, the court held hearings pursuant to sections 388 and 366.26. Appellant testified that she had a motel room provided rent free by a government agency and was currently residing alone. Appellant received money from her family for personal items such as toothpaste and food. She would have sufficient income to provide Angelina with food, diapers, and other necessities. Within 30 days, appellant was going to be employed at a beauty shop.

Appellant admitted she had taken parenting classes in the past and failed to finish her instruction. Appellant recently finished a class on neglect and abuse provided by Kern County Mental Health. Appellant had finished phase one of her substance abuse counseling and was beginning phase two. Appellant said the last time she used an illegal drug was November 3, 2005. Appellant tested positive for PCP use. Appellant explained she has new friends and a support system through Narcotics Anonymous and her own family. Appellant was taking a prescribed drug to treat depression.

The court found the particular form of drug testing used on appellant was not as reliable as other testing methods. The court still considered appellant’s voluntary drug testing as evidence of her efforts to overcome her drug-abuse problems. The court was pleased appellant was addressing a long-term problem. The court found appellant’s circumstances were changing but had “not yet evolved to a point that it is a changed circumstance.” Although the court thought appellant was making sincere efforts toward overcoming her drug dependency, the court did not find proof by a preponderance of the evidence appellant has actually changed the circumstances that caused drugs to interfere with her ability as a mother to safely care for her children.

The court further found appellant was only in a transitional period and the outcome of her attempt to overcome her drug dependency was far from certain. The court found there was no proof by a preponderance of the evidence that the best interests of the child would be promoted by placing Angelina with appellant. The court denied appellant’s section 388 petition.

The court adopted the social worker’s section 366.26 recommendations. The court found both parents were properly notified. The court found by clear and convincing evidence it was likely Angelina would be adopted and terminated the parental rights of both parents.

ICWA CHALLENGE

In her appeal from the termination order, appellant challenges for the first time the court’s September 14, 2005, finding and order that ICWA did not apply to Angelina’s dependency. Appellant contends the Department failed in its duty to notify the BIA pursuant to ICWA that she had potential American Indian heritage. The problem for appellant is that the juvenile court’s finding and order have long been final.

In In re Pedro N. (1995) 35 Cal.App.4th 183, 185, this court held a parent who fails to timely challenge a juvenile court’s action regarding ICWA is foreclosed from raising ICWA notice issues once the court’s ruling is final in a subsequent appeal. In so ruling, we specifically held we were only addressing the rights of the parent, not those of a tribe.

Appellant argues she has not waived this issue, citing another appellate court’s ruling in In re Marinna J. (2001) 90 Cal.App.4th 731. The Marinna J. court disagreed with our holding in Pedro N. on the theory it was inconsistent with the protections ICWA affords to the interests of Indian tribes. On this point, we differ. This court did not foreclose a tribe’s rights under ICWA on account of a parent’s appellate waiver. (Pedro N., supra, 35 Cal.App.4th at p. 185; see also In re Desiree F. (2000) 83 Cal.App.4th 460 [where this court reversed the denial of a tribe’s motion to intervene after a final order terminating parental rights and invalidated actions dating back to the outset of the dependency and taken in violation of ICWA].)

Furthermore, appellant did not challenge the juvenile court’s finding that ICWA was inapplicable to her because she was not a member of a federally recognized tribe. If the social worker’s references in each social report that appellant was a member of the federally unrecognized Paiute-Costanoan tribe were wrong, appellant ignored opportunities at every hearing to correct the record or to challenge this information. Appellant did not file a writ with this court pursuant to section 366.26, subdivision (l) and California Rules of Court, Rule 38.1 challenging the trial court’s finding. The dispositional order constitutes an appealable judgment. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811.) We, therefore, reject appellant’s ICWA challenge.

APPELLANT’S SECTION 388 PETITION

Appellant argues the court abused its discretion by denying her section 388 petition. We disagree. It was appellant’s burden of proof to show there was new evidence or there were changed circumstances that made a change of the children’s placement in their best interest. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) If the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) The petition must be liberally construed in favor of its sufficiency. (Ibid; see also Cal. Rules of Court, rule 1432(a)).

“The references in In re Marilyn H., supra, 5 Cal.4th at page 310, to a ‘prima facie’ showing is not an invitation to section 388 petitioners to play ‘hide the ball’ in pleading changed circumstances or new evidence. 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. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 719, fn. 6.) If a petitioner could get by with general, conclusory allegations, there would be no need for an initial determination by the juvenile court about whether an evidentiary hearing was warranted. In such circumstances, the decision to grant a hearing on a section 388 petition would be nothing more than a pointless formality.” (In re Edward H. (1996) 43 Cal.App.4th 584, 593.)

Likewise, the mandate for liberal construction of a section 388 petition does not entitle a petitioner to avoid describing the changed circumstances or new evidence. Section 388 and the pertinent rule of court (Cal. Rules of Court, rule 1432(a)(6)) require the petition allege changed circumstance or new evidence that requires changing a prior order. (In re Jasmon O., supra, 8 Cal.4th at pp. 398, 415.)

We agree with the juvenile court’s analysis that while appellant made a showing that her circumstances were changing concerning her drug dependency, she was merely in a transitional stage of overcoming her drug dependency. Though appellant reiterates in her reply brief that she successfully overcame her drug dependency, the evidence before the trial court was more ambiguous. Appellant, for instance, as late as February 2006 told a care provider that she might start taking illegal drugs again.^[8]

Equally important, appellant failed to state any evidence or fact in the petition establishing it would be in the best interests of her child for appellant to have custody. Appellant only set forth a general and conclusory allegation that she had a large, extended family and it would be better for Angelina to be raised by her natural mother. Appellant alleged no facts concerning how these circumstances would be in Angelina’s best interests. Even construing appellant’s section 388 petition liberally, we cannot find she made a prima facie showing to the trial court that her changed circumstances were in the best interests of the child.

To understand the element of best interests in the context of a section 388 motion brought, as in this case, shortly before the section 366.26 hearing, we look to the Supreme Court’s decision in In re Stephanie M. At this point, a parent’s interest in the care, custody, and companionship of his or her children is no longer paramount. Rather, the focus shifts once reunification efforts end to the children’s needs for permanency and stability; there is in fact a rebuttable presumption that continued out-of-home care is in the best interests of the child. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) A court conducting a modification hearing at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child. (Ibid.) Notably, both here and in the juvenile court, appellant ignores the children’s need for permanence and stability in advocating her position. Neither the juvenile court nor this court, however, may do so.

DISPOSITION

The order denying appellant’s section 388 petition is affirmed. There being no separate challenge to the court’s selection of permanent plans for the child, the court’s section 366.26 findings and orders are affirmed as well.

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^*Before Vartabedian, Acting P.J., Harris, J., and Cornell, J.

^[1] Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.

^[2] We grant appellant’s request that we take judicial notice of a list of federally recognized tribes published by the State of California at www.childsworld.ca.gov.

^[3] Only the mother has filed an appeal in this case. The father’s parental rights were also terminated.

^[4] Angelina was originally referred to in the petition as Baby Girl J. We will refer to her by Angelina, her given name.

^[5] All of the social workers’ reports refer to appellant’s tribal membership as being with the Paiute-Castanoan tribe.

^[6] Counsel for Angelina’s father noted he was in custody until 2009 and would not be requesting custody of the minor.

^[7] The report noted appellant was a member of the Paiute-Costanoan tribe, a tribe not federally recognized. The report noted the court had earlier found the ICWA did not apply to appellant’s case.

^[8] A petition alleging merely changing circumstances does not satisfy the parent’s burden of showing both a change of circumstances and that the proposed changes are in the child’s best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)