In re Brittney C.

Filed 3/16/06 In re Brittney C. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from orders of the Superior Court of Los Angeles County. D. Zeke Zeidler, Judge. Affirmed.

Merrill Lee Toole, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Frank J. DaVanzo, Deputy County Counsel, for Plaintiff and Respondent.

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Appellant Patricia C. (Mother) appeals from orders of the juvenile court denying her Welfare and Institutions Code section 388^[1] petition requesting reunification services, unmonitored or increased visitation, and an order vacating the section 366.26 hearing with respect to Brittney C. Mother requests that we remand the matter for the juvenile court to order yet a third set of notices to Indian tribes based on the possibility that Brittney C. is a member of one of the tribes. We decline to do so, and affirm the orders of the juvenile court.

CONTENTIONS

Mother contends that the juvenile court: (1) abused its discretion by failing to grant her a hearing on her section 388 petition; and (2) failed to insist that the notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) had been complied with by respondent Los Angeles County Department of Children and Family Services (the Department).

FACTS AND PROCEDURAL HISTORY

Mother previously filed a petition for extraordinary relief, challenging the juvenile court's order of August 31, 2004 denying Mother reunification services with Brittney C. and setting a section 366.26 permanency planning hearing. We refer the reader to our nonpublished opinion Patricia C. v. Superior Court (Dec. 8, 2004, B177945) for an extensive discussion of the facts underlying our decision affirming the juvenile court's order.^[2] Briefly, Mother has a serious drug and alcohol problem which she can only control in a structured drug program environment; in the past, she has refused to take medication to control her bipolar disorder; and her parental rights have been terminated as to Brittney C.'s older siblings Brandon and Johnny. In Patricia C. v. Superior Court, supra, B177945, we concluded that the juvenile court properly found Brittney C., who was born in 2001, would be at substantial risk of detriment if she were returned to Mother. We also held that the juvenile court properly denied reunification services.

The following facts are pertinent to the instant appeal. On June 2, 2004, the disposition report of the Department indicated that Mother stated she was third generation Cherokee and her paternal grandmother was Cherokee. Mother indicated on a questionnaire that she was not registered to a tribe. She also testified that she believed that her father was of Indian ancestry, but that he was not a member of any tribe, and that his father (her grandfather) may have been Cherokee. The maternal grandmother informed the Department that the family was not registered in a tribe, but that she believed that the paternal grandmother's husband, who was deceased, may have had some Cherokee ancestry. The juvenile court ordered the Department to notify the three federally recognized Cherokee tribes and the Bureau of Indian Affairs (the Bureau).

On May 11, 2004, the Department sent notices by certified mail to the Bureau; the Cherokee Nation of Oklahoma (the Cherokee Nation); the United Keetoowah Band of Cherokee (the Keetoowah Band); and the Eastern Band of Cherokee Indians (the Eastern Band). The Indian child welfare unit of the Keetoowah Band replied that it searched the enrollment records and found that Brittney C. was not a member of the tribe. The Keetoowah Band's letter gave the address of its Indian child welfare department as P. O. Box 370, the address the Department had used. The Bureau responded by stating that it received insufficient information to substantiate membership in any federally recognized tribe.

At the next hearing, the juvenile court requested the Department to interview Mother's grandmother and determine the birthdates of Mother's grandfather, Harvey C. Despite information that Harvey C. was a step-grandfather, and therefore not biologically related to Brittney C., the juvenile court ordered the Department to mail corrected notices listing new information. The Department mailed corrected notices to the Bureau and the tribes, including one to the Keetoowah Band at the address designated on its letterhead in its previous reply. The return receipts for the Cherokee Nation and the Keetoowah Band were dated July 9, 2004. The return receipt for the Eastern Band was dated July 13, 2004. The juvenile court found that notice had been properly given.

A December 16, 2004 report, submitted by the Department to the juvenile court, stated that Brittney C. had been placed since in a foster home with the H.'s, since June 2, 2004. While Brittney C. showed developmental delays in all areas as a probable result of emotional trauma, she continued to receive individual therapy sessions, play therapy, and appropriate support and love from the H.'s. However, neither the H.'s nor brother Brandon's adoptive family were interested in adopting Brittney C. Mother's weekly visits went well. The report recommended termination of Mother's parental rights and adoption as the permanent plan.

On December 28, 2004, the juvenile court ordered the Department to find an adoptive home for Brittney C., then continued the section 366.26 hearing.

On March 18, 2005, Mother filed a section 388 petition requesting resumption of reunification services, increase in unmonitored visitation with Brittney C., release of Brittney C. to Mother in her program, and an order vacating the section 366.26 hearing. Mother attached documents showing that she had been enrolled in a drug/alcohol treatment program since May 19, 2004 with the Substance Abuse Foundation of Long Beach (the Foundation) and that the Foundation agreed to allow Brittney C. to live with Mother on the condition that Mother obtain outside childcare. Mother also included a certificate showing that she had completed seven months of parenting classes, as well as letters of recommendation from the Foundation staff, praising Mother's growth, cooperative attitude, advancement to sober living, and ability to hold a job working part-time for the Long Beach Sports Arena. A therapist stated that Mother claimed to be sober and working on the 12 steps toward recovery. Mother also enclosed a letter indicating that she was receiving mental health treatment at Pacific Resources.

On March 21, 2005, the juvenile court denied the petition on the basis that (1) the petition failed to state new evidence or a sufficient change of circumstances; (2) the petition failed to show how the requested modification would promote the best interests of Brittney C.; and (3) Mother still lived in a structured environment. The juvenile court referred to Patricia C. v. Superior Court, supra, B177945, where we concluded that the juvenile court was justified in determining that Mother cannot maintain sobriety in an unstructured environment.

This appeal followed.

DISCUSSION

I. The juvenile court did not abuse its discretion in summarily denying Mother's section 388 petition

Mother contends that the juvenile court abused its discretion by failing to grant Mother a hearing on her section 388 petition. We disagree.

Section 388, subdivision (a) provides that: â€