Filed 11/19/18 In re Angelina L. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Appellant Monica V. (Mother) appealed after the juvenile court terminated her parental rights to her daughter, Angelina L. She argues that respondent Contra Costa County Bureau of Children and Family Services (Bureau) failed to conduct an adequate inquiry under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA). Mother also claims that the juvenile court abused its discretion when it declined to hold a hearing on her petition to provide additional reunification services. We disagree with both contentions and affirm.

I.
Factual and Procedural
Background

Then four-year-old Angelina came to the attention of authorities when someone reported that she was being neglected and was living in a home frequented by drug addicts. The Bureau filed a dependency petition in March 2016, alleging that Angelina faced a substantial risk of harm because mother was failing to protect her. (Welf. & Inst. Code, § 300, subd. (b).)[1]

Mother reported at the detention hearing that she had Native American ancestry and was Navajo. The maternal grandmother was present at the hearing and participated in discussions about her ancestry. She stated that their tribe was “out of New Mexico—Albuquerque—Navajo tribe.” Later in the hearing, the maternal grandmother said she had a document with her from the State of New Mexico that showed her Navajo affiliation. Mother’s counsel said she had “checked it [the document] out pretty carefully” and explained that “it shows that she [the maternal grandmother] has some legal rights to land.” Counsel acknowledged, however, that the document did not “make reference to the tribe or any tribal number or anything.” The juvenile court ordered Angelina detained, and she was placed in a foster home.

Angelina’s father completed a Parental Notification of Indian Status form indicating he had “no Indian ancestry as far as I know.” Mother completed the same form and indicated she was a member of, or might be a member of (or eligible for membership in), the Navajo tribe. Mother met with the Bureau on April 7, 2016, to fill out an ICWA-030 form but did not have all the necessary information to complete it. Mother said she was working to get more information about her grandmother’s family, and the Bureau instructed her to return the completed form. At a hearing on May 18, county counsel asked that Mother be ordered to return the form, because the Bureau was still waiting for it, and Mother responded that “I’m not able to get all of the information, but I’m going to give you what I can get.”

On May 24, Mother again met with the social worker and stated that “this is the only information I have on my family. Some family members are deceased and I do not have any other information tha[n] what I provided on the ICWA-030 form.” The completed ICWA-030 form included Mother’s name, current address, a former address, date and place of birth, and the tribes in which she claimed membership. The form also included the maternal grandmother’s name, current address, date and place of birth, and the tribes for which membership was claimed. In the space where it asked for her former address, the form included Mother’s quote about not having additional information. The same quote also was repeated for each question about the maternal grandfather and maternal great-grandparents, except that the names of the maternal grandfather, one maternal great-grandmother, and one maternal great-grandfather were provided. Notice of the proceedings (including the ICWA-030 form) was provided to the Navajo Nation, the Navajo regional director of the Bureau of Indian Affairs’ Navajo regional office, the Ramah Navajo School Board, and the Colorado River Indian Tribes, as well as the Sacramento area director of the Bureau of Indian Affairs and the Secretary of the Interior. No tribe indicated that Angelina was a member or eligible for membership.

The juvenile court ultimately sustained allegations that Mother had a serious and chronic substance-abuse problem that impaired her ability to care for Angelina, adjudged Angelina a dependent child, and ordered out-of-home placement for her and reunification services for Mother.

The court also held a separate hearing on compliance with ICWA. County counsel reported that the Bureau had received confirmation of receipt from each entity that had been provided notice, and the Bureau submitted its correspondence with the tribes. The juvenile court found that Angelina was not an Indian child and that ICWA did not apply. No appeal was taken from that order.

Also during the proceedings, the Bureau obtained a restraining order prohibiting Mother’s husband (Angelina’s stepfather) from contacting Angelina, but there was concern he violated the order by having unauthorized contact with Angelina at a party she attended with a paternal relative. After the juvenile court continued jurisdiction following a review hearing in December 2016, Mother failed to follow through with the Bureau’s referrals to various resources. She insisted she was not living with her husband, even though she was living in the home of his grandmother and other relatives. Mother also claimed to have left her husband and that she would not allow him to have access to Angelina, but she became pregnant with his child. The Bureau was concerned about Mother’s lack of progress in her reunification plan and her allowing Angelina to see her husband twice in violation of the restraining order, and it recommended that her reunification services be terminated.

At the 12-month review hearing on June 1, 2017, the juvenile court terminated reunification services and scheduled a selection-and-implementation hearing under section 366.26 for September 29, 2017. Mother sought review by way of extraordinary writ, which this court denied on July 27, 2017. (Monica V. v. Superior Court (A151525 [nonpub. opn.].)

Angelina struggled in her foster home. She suffered insomnia, nightmares, and sleep disturbances, for which she took prescriptive medication. She had severe tantrums that included stomping her feet, rubbing her knees on the carpet, screaming and yelling so loudly that she could be heard from outside her home, hurting herself or others, throwing things, trying to hit or swing her arms, shaking the child gates in the doorway to the point where she made cracks in the walls, and slamming doors. During tantrums she would say things to her foster mother such as, “[Y]ou hate me and you are going to get rid of me like my family did.” After tantrums, she would be apologetic and say things such as, “I am a bad kid” or “I have bad thinking and it scares me.” Angelina also had tantrums in preschool, and in kindergarten she had similar behavior and also was inattentive, disrupted class, and stared at other children during lunchtime instead of eating her food. She further expressed “very negative feelings” toward Mother’s unborn baby and said she “hate[d] the baby” and wanted to “hurt the baby.” Because of Angelina’s behaviors, she received therapy twice a week and was assigned an intensive care coordinator, who worked to secure more intensive behavioral services for Angelina. She was diagnosed with disruptive mood disorder.

Angelina continued to visit with Mother after reunification services were terminated, and Angelina’s behavior regressed after visits. Her tantrums would increase in frequency and severity. It also became difficult to feed Angelina after visits, because she refused to eat anything except the snacks, soda, and candy that Mother provided.

Before the scheduled selection-and-implementation hearing, the Bureau recommended that the matter be continued for up to six months so that a prospective adoptive home could be identified for Angelina. At that time, the Bureau did not consider Angelina to be a “generally adoptable child.” Mother gave birth to a baby boy by emergency Cesarean section a few days before the scheduled hearing, and she was not present at the hearing. The juvenile court continued the matter until March 1, 2018.

The Bureau identified a prospective adoptive home for Angelina, and Angelina was placed with the family in November 2017 after a long transition period. She fit in well with the family and asked to call her prospective adoptive parents “mommy” and “daddy.” The family had two adopted sons and had experience with tantrums because one of the boys had displayed similar behavior. The family worked closely with Angelina’s mental health providers. By February 2018, the family reported that Angelina’s behavior was improving, she was doing well socially and emotionally in kindergarten, and she had adjusted well with the family. She was sleeping through the night and no longer asked to have a light beside her bed. And although Angelina had experienced either sleepwalking or night terrors, this happened when she had the flu, and the family attributed the behavior to her illness. The Bureau further reported that Angelina had made “huge strides in her hygiene and eating behavior.” Angelina was overall doing well in school, with some minor behavioral problems that ended when her teacher and her prospective adoptive parents talked to her about it.

Mother continued to visit quarterly with her daughter. She was instructed not to bring her newborn son to the visits because of Angelina’s past comments about wanting to hurt the baby, but she brought the baby to a visit in October 2017. The infant was not allowed into the visit, and Mother’s mother-in-law watched him during visitation. The visit went well, but Angelina saw the baby on the way into the building and later commented that Mother “only loves the baby and doesn’t love me.” Angelina also was “distraught” when she learned that her brother was named after her stepfather, whom she did not like and whom she called her “mean daddy.” A visit in January 2018 went well.

On February 28, 2018, Mother filed a petition to change court order under section 388 requesting additional reunification services (section 388 petition). On the form where it asked what new evidence the juvenile court should consider, the response, in full, was that “[o]n 6-1-17 the MO presented evidence of completion of a parenting class, DV Program, substance abuse program, anger management class, and consistent participation in an outpatient program. She continues in therapy consistently since Spring 2017. She is clean and sober since May of 2017. She visits when allowed to do so.” And on the form where it asked why the change in court order would benefit the child, the response, in full, was that “MO and child have a significant, positive relationship. The MO can provide the child a safe home with a clean and sober parent. MO has given birth to the child’s sibling. The child has an extended bio family and would benefit from a relationship with her baby brother and extended family.” The Bureau, by contrast, recommended that parental rights be terminated and that the juvenile court select adoption as the permanent plan.

At the continued hearing on March 1, 2018, the juvenile court first addressed Mother’s section 388 petition, which the court had received on the day of the hearing. The court characterized the petition’s allegations as “really ludicrously late especially looking through this, and nothing has been brought to the attention of the Court before this.” After hearing argument from county counsel and the attorneys for Mother and Angelina, the court denied the petition without a hearing, stating, “I don’t feel there’s a sufficient showing it is in the child’s best interest, and frankly, I have no evidence of a change, and even if I had evidence of a change, I still wouldn’t see it in the child’s best interest, so I’m denying the 388 on its face.”

As for the Bureau’s recommendations, Mother’s counsel did not offer evidence but stated that Mother “adamantly object[ed] to the termination of parental rights” because “she still does have a relationship [with] Angelina, and . . . Angelina would benefit from that relationship with her mother.”

The juvenile court praised the Bureau for ensuring an adequate transition for Angelina into her prospective adoptive home and stated it was obvious that Angelina was thriving there. The court also found by clear and convincing evidence that Angelina was likely to be adopted, and it terminated the parental rights of Mother and Angelina’s father. Mother timely appealed.

II.
Discussion

1. It Is Unnecessary to Remand for Compliance with ICWA.

For the first time in these proceedings, and two years after the juvenile court concluded that ICWA did not apply, Mother argues that the Bureau failed to adequately investigate Mother’s Indian heritage. She faults the Bureau for failing to conduct its own investigation, including failing to interview the maternal grandmother or maternal grandfather “and any other family members they were able to find,” thereby “abdicat[ing] its duty of inquiry to Mother.” The Bureau stops short of admitting that it failed to comply with ICWA but concedes that it did not properly document what it did to investigate Angelina’s Indian heritage, and it concludes that conditional reversal and remand for ICWA compliance is appropriate. We are not persuaded that reversal is necessary.

True, “federal and state law require that the notice sent to the potentially concerned tribes include ‘available information about the maternal and paternal grandparents and great-grandparents, including maiden, married and former names or aliases; birthdays; place of birth and death; current and former addresses; tribal enrollment numbers; and other identifying data.’ [Citations.] To fulfill its responsibility, the [social services agency] has an affirmative and continuing duty to inquire about, and if possible obtain, this information. [Citations.] Thus, a social worker who knows or has reason to know the child is Indian ‘is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members to gather the information required in paragraph (5) of subdivision (a) of Section 224.2 . . . .’ (§ 224.3, subd. (c).) That information ‘shall include’ ‘[a]ll names known of the Indian child’s biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known.’ (§ 224.2, subd. (a)(5)(C).) Because of their critical importance, ICWA’s notice requirements are strictly construed.” (In re A.G. (2012) 204 Cal.App.4th 1390, 1396–1397 (A.G.).)

In A.G., an attachment to the dependency petition noted that the father reported that the minor and his sister might have Indian ancestry. (A.G., supra, 204 Cal.App.4th at p. 1394.) The detention report stated that the father believed he had “Creek heritage” and was “gathering more information regarding tribal affiliation and would inform the [social services agency] when he knew more.” (Ibid.) Apparently without first asking father what his further investigation revealed, the social services agency sent notice to various Creek and Choctaw tribes that included the father’s name and birth date and the paternal grandmother’s name, address, and telephone number. (Id. at pp. 1394, 1397.) The notice provided no information about the paternal grandfather, great-grandparents, or any other relatives. (Id. at p. 1394.) Division Three of this court reversed the finding that ICWA did not apply, because there was “no indication” that the social services agency followed up with the father after he said he was gathering additional information. (Id. at p. 1397.) And there was no indication in the record that the agency had interviewed the father’s immediate or extended family members despite the fact that several family members—including the paternal grandmother, a paternal uncle, an aunt, and a great-aunt—were involved in the proceedings or had been in contact with the agency. (Ibid.) Error was thus “obvious.” (Ibid.)

Mother places excessive reliance on A.G. Unlike in A.G., here the Bureau meaningfully followed up with the parent (Mother) who had reported possible Indian ancestry. (A.G., supra, 204 Cal.App.4th at p. 1397.) The Bureau met twice with Mother after the detention hearing to press her for more information, and it went so far as to ask the juvenile court to order Mother to produce all available information. Mother had the opportunity, which she either exercised or could have, to find out additional ancestral information from the maternal grandmother, who indisputably was aware of the proceedings and the need to provide further information. These additional efforts resulted in more information being provided to tribes than what had been provided to the tribes in A.G. The ICWA-030 form included the maternal grandmother’s date and place of birth, and it named a maternal great-grandmother and a maternal great-grandfather. (Cf. A.G., at p. 1394.) In A.G., the social services agency failed to identify in its ICWA notice relatives who actively participated in the proceedings and thus were indisputably known to the social services agency. (Id. at p. 1397.) Here, by contrast, there are no allegations that relatives who were known to the Bureau were omitted from its ICWA notice.

We agree that it would be preferable if the record in this case included more information on how and whether the Bureau followed up on the information it received from Mother and the maternal grandmother about their possible Native American ancestry. We do not know, for example, whether the Bureau talked with the grandmother further or relied on Mother to ask her mother for more information. But although we lack specific details, we are unable to conclude, as the court was compelled to conclude in A.G., that the Bureau failed meaningfully to followed up with the parent about potential Indian ancestry.

Mother overstates grandmother’s involvement in proceedings when she asserts that she “appeared at court hearings and was a regular caretaker of Angelina, presumably making her readily available to be interviewed by the Bureau.” While it is true that the paternal relatives were active in proceedings, the sole support for the assertion that the maternal grandmother regularly cared for Angelina is a passing reference in the detention report that Angelina “enjoys going” to her house. And so far as the record on appeal reveals, the maternal grandmother appeared only at the detention hearing and the 12‑month review hearing. She was not present at the jurisdictional hearing, dispositional hearing, ICWA compliance hearing, or permanency-planning hearing,

The court in A.G. directed the juvenile court to order the social services agency “to investigate and obtain complete and accurate information about paternal relatives and to provide corrected ICWA notices to the relevant tribes.” (A.G., supra, 204 Cal.App.4th at p. 1402.) It is unclear how further investigation here would reveal additional information. The Bureau could not have been more clear that Mother had no further information to provide despite being given ample time to investigate. The maternal grandmother was aware at the detention hearing of the need for information about tribal affiliation yet apparently provided only a state (as opposed to tribal) document that did not, in fact, establish tribal affiliation. It is difficult to imagine what further inquiry would produce.

A.G. observed that delaying proceedings for remand to comply with ICWA “needlessly delays a victimized child’s ability to find security and stability in a permanent home” and that “[t]he cost is disruption and trauma for both the child and [the child’s] caretakers.” (A.G., supra, 204 Cal.App.4th at p. 1401.) The court “[r]eluctantly” reversed because it had “no choice in the matter.” (Ibid.) Here, we need not needlessly delay permanency for Angelina, given the substantial evidence supporting the juvenile court’s finding of compliance with ICWA.

2. The Juvenile Court Did Not Abuse Its Discretion When It Denied Mother’s Request to Provide Additional Reunification Services.

Mother next argues that the juvenile court abused its discretion when it failed to grant an evidentiary hearing on her section 388 petition, but she is mistaken.

A parent may petition under section 388 to change or set aside a prior order “upon grounds of change of circumstance or new evidence.” (§ 388, subd. (a)(1); see Cal. Rules of Court, rule 5.570(a).) The juvenile court shall order a hearing where “[i]t appears that the best interests of the child . . . may be promoted” by the new order. (§ 388, subd. (d).) “Thus, the parent must sufficiently allege both a change in circumstances or new evidence and the promotion of the child’s best interests.” (In re G.B. (2014) 227 Cal.App.4th 1147, 1157.) “A prima facie case is made if the allegations demonstrate that these two elements are supported by probable cause.” (Ibid.) “It is not made, however, if the allegations would fail to sustain a favorable decision even if they were found to be true at a hearing. [Citations.] While the petition must be liberally construed in favor of its sufficiency [citations], the allegations must nonetheless describe specifically how the petition will advance the child’s best interests.” (Ibid.) We review the denial of a section 388 petition without a hearing for an abuse of discretion. (Id. at p. 1158.)

Mother stresses the important role that section 388 plays in dependency proceedings but offers little in the way of establishing that she alleged a prima case of both changed circumstances or new evidence and the promotion of Angelina’s best interests. As county counsel stressed in the juvenile court, none of the documentation submitted with Mother’s petition postdated the hearing where reunification services were terminated in June 2017. While it is commendable that Mother continued to participate in therapy and had remained clean and sober for nine months, these are not the kinds of allegations that, even if true, would sustain a favorable decision even if they were found true at a hearing. (In re G.B., supra, 227 Cal.App.4th at p. 1157.) That is because there was not probable cause to show that delaying the proceedings to provide additional services to Mother would be in Angelina’s best interests. (Ibid.) There was overwhelming evidence to the contrary. That is, the evidence clearly showed that Angelina suffered severe emotional issues that were exacerbated after visits with Mother, but that she was improving as she transitioned to a stable and loving prospective adoptive home that would provide permanency and stability for her. While it may be true that Mother’s visits with Angelina went well, Mother did not specifically describe how providing additional services at this late stage would benefit Angelina, other than to allege generally that the two have a “significant, positive relationship.” The juvenile court did not abuse its discretion when it denied Mother’s petition without a hearing.

III.
Disposition

The order terminating Mother’s parental rights is affirmed.

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Humes, P.J.

We concur:

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Margulies, J.

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Banke, J.

In re A.L. A154141