IN RE: I.D. (2011)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

O P I N I O N

R.C. (mother) appeals from juvenile dependency orders denying her petition to reopen reunification services and terminating parental rights to her son, I.D. (the child).  (Welf. & Inst.Code, §§ 388 & 366.26.) ¹  She contends the juvenile court abused its discretion by summarily denying her modification petition.   She also argues that the juvenile court violated the Indian Child Welfare Act (ICWA;  25 U.S.C., § 1901 et seq.)   On review, we disagree and affirm.

PROCEDURAL AND FACTUAL HISTORY

The juvenile court removed the child from mother's custody because mother had schizophrenia, which she had not been treating for at least two years.   Mother was sufficiently paranoid and delusional that a simple attempt by police officers to question her in April 2009 escalated into a physical altercation initiated by mother.   The child, then 17 months old, was in the middle.   Police eventually arrested mother on multiple charges.

Mother's untreated schizophrenia previously interfered with her ability to parent.   She had two much older children.   Over time, a court had placed each of them with the maternal grandmother as legal guardian because of mother's schizophrenia.

Indian Ancestry Claim and ICWA

At an April 2009 detention hearing in this case, the maternal grandfather informed the juvenile court that his grandfather and grandmother had Indian ancestry, although he did not know what percent.²  “It was Cherokee on my grandfather's side and Apache on my grandmother's side.”   The maternal grandfather was not a member of a tribe and had never attempted to see if he was eligible.   Asked if he had any reason to believe that his daughter would be eligible for enrollment, he replied “I don't know what is involved in that.”

The juvenile court found there was insufficient reason to know that the child was an Indian child.   However, it did direct respondent Tulare County Health and Human Services Agency (the agency) to provide notice to the Bureau of Indian Affairs (BIA) and any federally recognized tribes.   It also ordered the parents to provide within a matter of days any names, addresses, and phone numbers of any relatives that might have information regarding the Indian ancestry claim.

According to a May 2009 jurisdiction/disposition report, the maternal grandmother provided names of the child's maternal great grandparents and great-great grandparents, all of whom were deceased.   Then, on May 7, a social worker sent notice of hearing and the underlying proceedings to the BIA, the Department of Interior, three federally-recognized Cherokee tribes, and eight federally-recognized Apache tribes.   Attached to the report was a copy of the notice purportedly sent.   No proofs of certified or registered mailing were included.

The same social worker filed a report entitled “ICWA Information/Additional Information” in mid-July 2009.   According to this report, she received responses, of which she attached copies, from three Cherokee tribes, five Apache tribes, and the BIA. Each stated it had no record of the child or his family.

At a July 2009 dispositional hearing, the juvenile court ordered reunification services for mother.   Her services consisted of parenting, mental health treatment, and random drug testing.   In addition, the court gave the social worker discretion to modify the case plan to include substance abuse treatment, if needed.   It once again found there was insufficient reason to believe that the child was or might be an Indian child covered by ICWA. Mother did not appeal from the juvenile court's dispositional findings and orders.

Failed Reunification Efforts

Although mother made some effort to participate in services, it was short lived.   By October 2009, mother had missed a drug test.   She told a social worker that she was no longer going to drug test, participate in mental health treatment, or attend parenting classes.   Mother also said she was not taking and did not need to take her medication.   She admitted using methamphetamine, which she claimed helped her focus and communicate.   When the social worker suggested mother take her medication and speak to her therapist, mother refused.   She later resumed some services, but not for long.

The agency recommended the juvenile court terminate mother's reunification services and set a section 366.26 hearing with a goal of adoption.   By the end of 2009, mother was not taking her medication or attending her medication management appointments and therapy sessions.   In addition, she had not completed the parenting class and was not drug testing.   At best, she regularly visited the child.

In January 2010, the juvenile court conducted its status review hearing, which mother did not attend.   The juvenile court found:  it would be detrimental to return the child to mother's custody;  and despite reasonable services, mother failed to regularly participate and make substantive progress in her court-ordered services.   Consequently, the court terminated reunification services and set a section 366.26 hearing to select and implement a permanent plan for the child.

Mother challenged the setting of the section 366.26 hearing by way of petition for extraordinary writ to this court.  (F059393;  R.C. v. Superior Court.)   We denied her petition in which she claimed to have received unreasonable reunification services.

Section 388 Petition

Days before the eventual section 366.26 hearing, mother's trial counsel executed a section 388 petition to reopen reunification services.   He alleged that mother:  completed her parenting classes;  tested clean;  consistently took a prescribed medication for her mental health condition;  continued monthly appointments with her psychiatrist and bi-monthly meetings with a therapist;  and obtained stable housing.   Attached to the petition was a certificate issued to mother confirming she had completed a parenting support group.   Trial counsel also asserted an order for services was in the child's best interest because “[i]t would allow [him] to be raised by his natural mother who is strongly bonded to the child and dedicated to raising [him] well.”   The juvenile court denied the petition without a hearing, citing that the proposed change of order did not promote the child's best interest.

Section 366.26 Proceedings

In the meanwhile, the agency submitted a report and recommendation to the court that it find the child was likely to be adopted and order parental rights terminated.   Because it is undisputed that the child is adoptable, we do not recite the supporting evidence here.   According to an addendum report, an adoption social worker assigned to the child's case could not find “any green return receipts or letters from” three Apache tribes to whom the previous social worker claimed to have served notice.

At a July 2010 hearing, the agency's representative submitted on its reports while mother's counsel had no evidence to present.   The juvenile court received the reports into evidence as well as took judicial notice of the entire case file.   No mention of ICWA was made by either the court or the parties.   Having found the child was likely to be adopted, the court terminated parental rights.

DISCUSSION

I. Summary Denial of Section 388 Petition

Mother contends the juvenile court abused its discretion by summarily denying her attorney's section 388 petition.   In her view, she made a prima facie showing of changed circumstances and the record supported her claim that an order reopening services would serve the child's best interests, thereby entitling her to a hearing on the merits of her petition.   As discussed below, we disagree with mother.   The court did not abuse its discretion when it denied her petition.

A parent may petition the juvenile court to vacate or modify a previous order on grounds of change of circumstance or new evidence. (§ 388, subd. (a).)  The parent, however, must also show that the proposed change would promote the best interests of the child. (§ 388, subd. (d);  Cal. Rules of Court, rule 5.570;  In re Stephanie M. (1994) 7 Cal.4th 295, 317.)

A court shall liberally construe such a petition in favor of its sufficiency.  (In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H ).)   Nonetheless, section 388 contemplates that a petitioner make a prima facie showing of both elements to trigger an evidentiary hearing on the petition.   (In re Zachary G. (1999) 77 Cal.App.4th 799, 806;  see also Marilyn H., at p. 310.)   For instance, if a parent makes a prima facie showing of changed circumstances or new evidence sufficient to satisfy the first prong under section 388, a court may deny a section 388 petition without an evidentiary hearing if the parent does not make a prima facie showing that the relief sought would promote the child's best interests.  (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)

A prima facie showing refers to those facts that will sustain a favorable decision if the evidence submitted in support of the petitioner's allegations is credited.  (In re Edward H. (1996) 43 Cal.App.4th 584, 593.)   Consequently, section 388 petitions with general, conclusory allegations do not suffice.   Otherwise the decision to grant a hearing on a section 388 petition would be nothing more than a pointless formality.  (In re Edward H., at p. 593.)   To obtain a hearing, successful petitions include declarations, certificates or other attachments, which demonstrate the showing the petitioner will make.  (In re Anthony W. (2001) 87 Cal.App.4th 246, 250-251.)

The petition executed by mother's counsel failed to make a prima facie showing of either changed circumstances or the child's best interests.   At most, it included a single certificate supporting the petition's claim that mother completed a parenting course.   Otherwise, its changed circumstances allegations were conclusory.   There was no supporting evidence for the petition's allegations that mother tested clean, consistently took a prescribed medication for her mental health condition, continued monthly appointments with her psychiatrist and bi-monthly meetings with a therapist, and obtained stable housing.

Mother ignores the law regarding what constitutes a prima facie showing.   She instead cites In re Hashem H. (1996) 45 Cal.App.4th 1791, 1799 (Hashem H.) for the proposition that her allegations sufficed because she had “the availability of admissible evidence” at a full hearing to establish her changed circumstances.   This is not what Hashem H. holds.   The petitioning parent in that case described her continuous participation in therapy and attached her therapist's letter describing the mother's progress in therapy and ability to care for her child.  (Id. at p. 1796.)   The trial court, however, denied her a hearing.   In reversing the denial, the Hashem H. court observed the therapist's letter demonstrated the availability of admissible evidence of changed circumstances.  (Id. at p. 1799.)   Here, there was no therapist letter or other evidence to demonstrate the availability of admissible evidence in support of the petition's allegations of changed circumstances.

Likewise, the petition's claim that an order for services was in the child's best interest because it would allow him to be raised by his natural mother who was strongly bonded to the child and dedicated to raising him well was nothing more than a conclusory allegation.   In her appellate briefing, however, mother reverses the petition's allegation to claim it stated the child was strongly bonded to her.   From there, she goes on to argue there was supporting evidence for this proposition contained in the agency's reports.   She adds that a juvenile court may consider the entire factual and procedural history of a case in determining whether a hearing is warranted.  (In re Skyler H. (2010) 186 Cal.App.4th 1411, 1429 (Skyler H.).)   Despite the fact that her petition did not ask the court to so exercise its discretion (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339), she concludes it was error for the juvenile court not to review the procedural and factual history.   We are not persuaded by mother's efforts to essentially rewrite the record, which was before the juvenile court.

In any event, the petition also failed to take into account the child's interest on the eve of the section 366.26 hearing.   Once reunification efforts have been terminated, the child's interest in stability and permanency is a juvenile court's primary concern, outweighing a parent's interest in reunification.  (Marilyn H., supra, 5 Cal.4th at p. 309.)   Children have a fundamental independent interest in belonging to a family unit and they have compelling rights to be protected from abuse and neglect and to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child.  (Id. at p. 306.)   Here, there was no showing that reopening reunification services for mother would advance the child's interest in stability.

On appeal, mother argues that granting her a full hearing on her petition would not have adversely impacted the child's stability.   Her argument misses the point.   In effect, she wrongly attempts to shift the evidentiary burden of showing reopening reunification services for mother would advance the child's interest in stability away from herself.

In conclusion, mother failed to make a prima facie showing of changed circumstances warranting a different order, which would serve the child's best interests.   Consequently, the juvenile court did not abuse its discretion by summarily denying the section 388 petition.

II. ICWA

Mother also contends the juvenile court failed to discharge a statutory duty to ensure compliance with ICWA at the section 366.26 hearing.   According to mother, once the agency's addendum report for the section 366.26 hearing disclosed its social worker could not find proof that three Apache tribes received notice of the proceedings, the juvenile court should have ensured the three Apache tribes received proper notice before proceeding to terminate parental rights.   To have not done so violated section 224.3, subdivision (a), in mother's opinion.   We disagree.

First, mother's reliance on section 224.3, subdivision (a), is misplaced.   The subdivision states:

“The court, county welfare department, and the probation department have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300, 601, or 602 is to be, or has been, filed is or may be an Indian child in all dependency proceedings and in any juvenile wardship proceedings if the child is at risk of entering foster care or is in foster care.”

In this case, the juvenile court and the agency complied with section 224.3, subdivision (a), when both inquired at the outset whether the child was or might be an Indian child.   In response to those inquiries, the child's father denied any Indian heritage while mother refused to respond.   Mother's refusal led the juvenile court to inquire of the maternal grandparents.   It was then that the maternal grandfather told the court:  his grandfather (the child's great-great grandfather) had Cherokee heritage;  his grandmother (the child's great-great grandmother) had Apache heritage;  he was not a tribal member;  and he had no information that mother was either.   Thus, mother's claim that the court violated section 224.3, subdivision (a), is specious.

On the other hand, the juvenile court does have a sua sponte duty to assure compliance with the notice requirements.  (In re H.A. (2002) 103 Cal.App.4th 1206, 1211.)   Relevant to mother's argument, notice must be sent by registered or certified mail with return receipt requested and all return receipts must be filed with the court in advance of the hearing. (§ 224.2, subds.(a)(1) & (c).)

However, that responsibility as well as the underlying duty to give notice assumes the court knows or has reason to know that an Indian child is involved in a particular dependency proceeding.  (See § 224.2, subds. (a) & (b);  § 224.3, subds. (b) & (d).)  While mother is quick to point out that the juvenile court ordered the agency in April 2009 to provide ICWA notice, the court did so out of an apparent abundance of caution.   Mother overlooks the court's express finding, immediately before it ordered notice, that there was insufficient reason to know that the child was an Indian child.   In other words, the maternal grandfather's information did not give the court reason to know that the child was an Indian child for purposes of ICWA.

The juvenile court had discretion to consider the totality of the information presented concerning the child's family circumstances to determine whether it met the threshold required for ICWA notice.  (Skyler H., supra, 186 Cal.App.4th at p. 1418.)   ICWA notice is not required unless the totality of the family's circumstances indicate there is a low but reasonable probability the child is an Indian child.  (Skyler H., at p. 1418.)   A family's specific but attenuated Indian heritage does not necessarily provide reason to know the child is an Indian child.  (Ibid.)

In any event, the juvenile court's detention finding is now final and no longer subject to this court's review.  (In re Pedro N. (1995) 35 Cal.App.4th 183, 185.)   Because the court found insufficient reason to know that the child was an Indian child, the fact that the agency could not find proof that three Apache tribes received notice of the proceedings did not result in reversible error.

DISPOSITION

The orders denying mother's 388 petition and terminating parental rights are affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. All statutory references are to the Welfare and Institutions Code, unless otherwise indicated..  FN1. All statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

FN2. Mother had refused to provide any information regarding possible Indian heritage while the child's father did not claim any Indian heritage..  FN2. Mother had refused to provide any information regarding possible Indian heritage while the child's father did not claim any Indian heritage.