Filed 1/29/18 In re C.C. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Introduction

After C.C. ran away from his group home placement, Humboldt County Department of Health & Human Services (Department) filed a Welfare and Institutions Code section 388 petition[1] seeking to change his placement to a higher level group home. The juvenile court granted the petition, and also reduced appellant’s [Mother’s] visitation with C.C. from 16 hours per month to 8 hours per month. Mother appeals from the order, maintaining the Department failed to comply with the Indian Child Welfare Act of 1978[2] (ICWA) inquiry and notice requirements. She also asserts the juvenile court abused its discretion in changing C.C.’s placement, and acted in excess of its authority in reducing her visitation. We conclude any ICWA deficiency does not impact the dispositional orders, but remand with directions for the juvenile court to direct the Department to comply with the notice provisions of ICWA, if it has not already done so. As to the order reducing C.C.’s visitation with Mother, we conclude Mother was not given notice that a change in the visitation order was sought, and reverse. As to the order changing C.C.’s placement, we affirm.

Background

We set forth a portion of the factual background as previously stated in our November 27, 2017 opinion in Mother’s prior appeal. (In re C.C. (Nov. 27, 2017, A150735) [nonpub. opn.].)

“In November 2016, Mother was arrested in a motel room on an outstanding 1997 warrant from Texas. She was wanted for a violation of her parole on a felony conviction, and also had outstanding warrants for her arrest from Florida.

“In the motel room with her were three of her children, then four years old (G.G.), seven years old (J.G.), and 16 years old (C.C.). There was also an unknown woman, apparently ‘high on heroin,’ ‘who was observed to be passed out with her shirt up over her stomach and her hand down her pants.’ The room also contained marijuana pipes, dried marijuana, and a bag containing 10 white pills.

“Mother had been using an alias and ‘had been on the run from law enforcement for twenty years.’ The children had also been using aliases. The birth certificates of the two younger children listed the name of an alias used by Mother. C.C., the 16-year-old, reported that Jason G., a man who had ‘not been involved in their lives since [the youngest child] was approximately two weeks old,’ was the father of the two younger children. C.C. reported his father was D.F., but Mother denied knowing who D.F. was, and named a third man as C.C.’s father. The Department was able to contact Jason G., who indicated he had not been involved with the children’s lives in ‘some time.’ He also indicated Mother listed a different name for herself on at least one of the children’s birth certificates ‘to help [her] hide her true identity.’

“C.C. wanted to stay with his ‘uncle’ T.H., a family friend. T.H. told the Department he was ‘the most stable adult in the children’s lives,’ but he did not currently have enough room for them, and ‘could not name anyone else they could be safe with.’

“Mother had four prior child welfare referrals in California, the most recent one being four months earlier. Mother reportedly had a long history of mental illness and substance abuse. A fourth child, by then an adult, had been adopted by Mother’s parents but was sent to live with Mother when she was 13. Mother reportedly gave that child ‘substances to smoke or ingest and then [Mother] allowed men to have sex with her.’

“Mother ‘worked in the marijuana industry’ and made methamphetamine. She encouraged the oldest minor to use marijuana. The minors were not enrolled in school, nor did Mother ensure they received medical care.

“The Department filed Welfare and Institutions Code section 300 petitions regarding the three minors, alleging failure to protect and no provision for support. (Welf. & Inst. Code, § 300, subds. (b), (g).) The petitions noted the minors might have Choctaw and Cherokee ancestry. At the detention hearing, Mother agreed that she was the mother of all three minors, but identified different fathers. She indicated she believed she had Chickasaw ancestry, in addition to Choctaw and Cherokee, stating, ‘my grandma was the only one on the roles. I just never applied.’

“The court ordered continued detention of the three children, and found that active efforts were made to provide services designed to prevent the breakup of a potential Indian family. The court ordered Mother to complete the ICWA parental notification of Indian Status form and file it with the court. The court ordered bi-weekly visitation for the children with Mother at the Humboldt County Correctional Facility. It also ordered services be provided to Mother, including parent education, drug monitoring, and substance abuse assessment. A contested jurisdictional hearing was set for December.

“In the report for the jurisdictional hearing, the Department reported Mother had been released from the Humboldt County Correctional Facility and had attempted to arrange unsupervised visitation with the oldest minor, C.C. C.C. told his younger sibling, J.G., to ‘only report good things’ about Mother to the Department. When a social worker initially spoke with J.G., she said she loved Mother and was safe with her. She reported never seeing anyone use needles, and could not remember anything bad about living with Mother. J.G. later told the social worker she had lied because her brother told her ‘not [t]o say the bad stuff,’ but that Mother actually used needles twice in the morning and three or more times at night. She said Mother ‘buys big black balls and she takes them in her arms and legs and feels better,’ and gave a detailed description of how to inject drugs. J.G. also described Mother’s drug sales, her fabrication of marijuana-laced chocolate in a crockpot, and being given marijuana edibles on at least two occasions.

“The foster parent reported C.C. ‘was talking about his former drug use and how he missed eating magic mushrooms and smoking marijuana.’ He was ‘not able to maintain’ in the foster home, and was moved to a group home.

“The Department submitted a letter written by Mother in which she explained her nomadic lifestyle was due to being threatened by D.F. Mother asserted D.F. had been violent with her.

“After striking the allegation in the petition regarding 10 white unidentified pills, the court sustained the remaining allegations of the petitions. D.F. appeared and requested he be elevated to presumed father status of C.C. The court deferred that determination to the disposition hearing, which it set for January. [¶] . . . [¶]

“Mother had a hair follicle drug test in early January. Although she ‘consistently denied substance abuse,’ she tested positive for methamphetamine, codeine, morphine, and heroin metabolites, as well as high levels of THC.

“The Department reported it had sent an ‘ICWA 030’ notice to the Choctaw and Cherokee tribes in December 2016, but received no response yet. The Department indicated it would ‘continue to inquire about possible Native ancestry.’

“With its report for the disposition hearing, the Department submitted the declaration and report of an ICWA expert, who was a tribal psychotherapist, tribal social worker, and tribal social services director. Based on his education, experience, review of the records and communications with the social worker, he opined if the minors were to remain in the care and custody of Mother, ‘it is likely to result in serious emotional or physical damage to them.’ Although it was still unknown if the minors were eligible to become members of any tribe, the ICWA expert stated Mother ‘has not parented in a manner that is reflective of the child-rearing practices’ of the tribes to which she may belong. The expert opined that ‘due to the emergent nature of the circumstances, preplacement preventive services were unable to be offered. Active efforts are being made at this time to provide remedial services and rehabilitative programs’ to Mother, including ‘mental health services, alcohol and other drug services, healthy moms program, and a psychological evaluation.’

“The court made no findings regarding whether ICWA applied, but found active efforts had been made to provide services designed to prevent the breakup of a possible Indian family, but that the efforts were unsuccessful. The court also found there was a substantial danger to the physical health, safety, protection or physical or emotional well-being of the minors if they were returned home. The court ordered maternity testing for Mother and all three children. The court granted D.F. presumed father status as to C.C.” (In re C.C., supra, A150735)

In our opinion in case number A150735, we affirmed the dispositional orders, concluding any ICWA deficiency did not impact those orders. We remanded the matter with directions for the juvenile court to direct the Department to comply with the notice provisions of ICWA, if it had not already done so. (In re C.C., supra, A150735.)

In early May 2017, the Department sought a protective custody warrant for C.C. because he allegedly ran away from his placement at Jaz Kidz group home, a level nine facility. The Department then filed a section 388 petition, seeking a change in C.C.’s placement to another group home “up to a level 14.” The Department indicated C.C.’s current group home, Jaz Kidz, “gave a 7 day notice for removal” in late April. The Department’s report described the incident leading to the removal notice. C.C. “was upset when his cell phone was taken away by staff and reacted by becoming physically assaultive to a staff member who was driving with [C.C.] at the time. [C.C.] then ran away and was missing for two days. He returned to the [group] home under the influence.”

The Department also described C.C.’s “increasingly concerning behaviors over the past few months.” C.C. “was found in possession of glass pipes with meth residue, an air soft gun that was loaded, [was] bullying and threatening younger children in the same placement, calling all of the female staff and females in the placement [a sexual slur], [and] exhibiting behaviors indicating possible gang involvement. . . .”

Police were called to the group home after a staff member heard C.C. and another minor talking about stealing money and hiding drugs. The staff member went to contact C.C. and the other minor, but “they ran hiding a backpack near the back yard.” The backpack contained marijuana, drug paraphernalia, and a “CO2 pellet gun, . . . [but] no identifying information. . . .” The sheriff’s department was dispatched to the group home. The sheriff’s report indicated that when questioned, C.C. denied the backpack was his and denied burglarizing the office.

At the hearing on the section 388 petition, the executive director of Jaz Kidz, the only group home in Humboldt County, testified. She stated C.C. told her the backpack and everything in it was his. She asked C.C. “ ‘Are you sure that everything in here is yours,’ [and] he said, ‘Yes, that backpack is mine.’ ”

The executive director explained Jaz Kidz provided housing and stabilization, but no counseling or drug and alcohol treatment. More services are provided at group homes rated at higher levels. At the time of the hearing, C.C. had been “on the run” from Jaz Kidz for 11 days. Jaz Kidz was “not allowed” to physically stop a minor from leaving. Only a level 12 or higher group home could do that.

The executive director testified C.C.’s behaviors had progressively worsened over the past two-to-three months. C.C. was “aggressive towards the other children in the home, threatening towards staff, not attending school, not following rules, as well as the final incident was him using inappropriate names to an eight year old . . . [and] dumping a jar of salsa over her head. . . .” He had been “punching holes in the wall, headbutting [sic] the wall . . . [and] thrashing his room; meaning throwing stuff around, yelling, screaming, slamming his door, hitting the windows. . . .” C.C. had also bullied three “little girls,” ages eight, 10 and 11 years old, who lived in the group home.

The executive director testified C.C. needed a higher level of care than Jaz Kidz could provide, and indicated “he needs more therapeutic intervention on a daily basis. He needs to be in a school setting where there are trained professionals—not just school professionals—that can handle the trauma-based stuff that he has to deal with on a daily basis, and going to public school right now is not appropriate for him. [¶] So typically those happen at a level twelve or higher” group home.

Mother testified, and sought placement of C.C. with her rather than in a group home. She explained she was “very old fashioned and . . . on the strict side,” and that C.C. was “very respectful and he minds very well.” When C.C. lived with her, he spent his time doing “productive activities” such as canning food, hunting, dressing a buck, making venison jerky, doing woodworking, and working in a machine shop.

Mother testified C.C. used marijuana for medical reasons, to “balance his emotions.” He decided himself to begin smoking marijuana, because “[h]e knew the only thing that he was ever going to do in his life was to smoke, but he would wait until his body had developed and he had grown to man status.” Mother did not believe C.C. needed any mental health services, because “[h]e was emotionally balanced, healthy, [and] happy when he went into the system.”

When asked what she was doing to support her sobriety, Mother explained she had “started with my own appointments with my own counseling of my own accord medically.” She conceded, however, that she had attended no counseling sessions yet because she “had to cancel” them. When asked about her hair follicle drug test, which indicated the presence of methamphetamine, opiates, codeine, morphine and heroin, she explained she had a “prescription for Oxycodone and Oxymorphone,” and “the hair test went back to the past.”

The court granted the section 388 petition, and authorized C.C.’s placement in an “out of county group home up to a level 14 setting.” At the end of the hearing, after the court granted the petition, the Department’s attorney said, “I’m sorry, your Honor, should we fashion some kind of visitation order—maybe one time per month for four hours?” The court responded “Yes, by all means, and you’re going to provide assistance on the transportation?” Mother’s counsel objected, noting “Your honor, one time for four hours, that’s reducing the mother’s contact. I don’t think this Court can without another motion as to why her visitation should be reduced.” Without hearing any testimony on the matter, the court stated “In large part it’s in the discretion of the Department. [¶] Given the distance, the minimum of eight hours a month and possibly more if that can be [arranged] through the group home.” The written order contains no mention of visitation, but the minute order states “Mother to receive visitation a minimum of 8 hours per month.”

Discussion

ICWA Notice

Mother maintains the orders made following the section 388 hearing must be reversed because ICWA notice requirements were violated. She claims in her briefs, filed before our opinion in her first appeal, that the February 2017 orders challenged in her first appeal and all subsequent orders must be reversed due to the claimed ICWA notice violations. In our November 27, 2017 opinion, we affirmed those orders, but remanded to the juvenile court with directions to direct the Department to comply with the notice provisions of ICWA, if it had not already done so. (In re C.C., supra, A150735.)

Mother also asserts the orders and findings made following the May 8, 2017 hearing must be reversed because “ICWA notice was required for the hearings on the section 388 petition, and no such notice was provided.”

As it did in the previous appeal, the Department seeks judicial notice of documents filed with the juvenile court after the date of the challenged order, which it asserts show ICWA compliance. The Department indicates the request “consists of many of the same documents that were previously filed in connection with Respondent’s Request for Judicial Notice in Case No. A150735.” We declined the request in that case. For the same reasons stated in the opinion in In re C.C., supra, A150735, we likewise decline to take judicial notice of the contents of these documents in this case.

Mother claims, as she did in her prior appeal, we should make a finding that the ICWA inquiry and notice requirements were violated and reverse the challenged orders. As we concluded in our prior opinion, an ICWA notice violation is not jurisdictional, and the appropriate remedy is a remand to the juvenile court with directions to direct the Department to comply with the notice provisions of ICWA. (In re Veronica G. (2007) 157 Cal.App.4th 179, 187–188; In re Brooke C. (2005) 127 Cal.App.4th 377, 385–386.) We likewise so conclude in this case. In the event the court determines C.C. is an Indian child, Mother may petition the juvenile court to invalidate orders that violated ICWA. (In re Veronica G., at p. 188; Cal. Rules of Court, rule 5.486(a).)[3]

Section 388 Petition

Mother claims the juvenile court abused its discretion in granting the Department’s section 388 petition seeking to change C.C.’s placement from a local group home to an out-of-county group home with a higher level of care.

“Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall be verified and, if made by a person other than the child . . . shall set forth in concise language any change of circumstance or new evidence that is alleged to require the change of order or termination of jurisdiction.” (§ 388, subd. (a)(1).) “The burden of proof at any such hearing is on the moving party to show by a preponderance of the evidence both that there are changed circumstances or new evidence and that also a change in court order would be in the best interest of the child.” (In re D.B. (2013) 217 Cal.App.4th 1080, 1089.) “We review the grant or denial of a petition for modification under section 388 for an abuse of discretion.” (In re Y.M. (2012) 207 Cal.App.4th 892, 918.)

Mother does not challenge the juvenile court’s finding of a change in circumstances, but claims instead the Department failed to prove placement in a higher level group home was in C.C.’s best interests. To the contrary, the Department introduced evidence showing C.C.’s current level nine group home placement could not meet his needs, and had given notice that he must leave in seven days. The executive director of Jaz Kidz testified a higher level group home could provide services the current group home did not, such as alcohol and drug treatment, counseling, an associated non-public school, and more intensive supervision to prevent him from running away. She believed that “he needs more therapeutic intervention on a daily basis. He needs to be in a school setting where there are trained professionals—not just school professionals—that can handle the trauma-based stuff that he has to deal with on a daily basis, and going to public school right now is not appropriate for him. [¶] So typically those happen at a level twelve [group home] or higher.” The Department made an offer of proof that the social worker would testify that there were no local level 12 group homes.

Mother objects to the court’s reliance on the testimony of the executive director of Jaz Kidz, asserting she is “not a licensed mental health professional” and noting “the [D]epartment’s own attorney emphasized . . . [she] was not qualified as [an] expert witness.” The juvenile court, however, concluded: “I think she’s eminently qualified. [¶] . . . [¶] And she is suggesting the higher level of care for two reasons: One, her level nine is not able to handle the kid and therefore she’s given notice and she believes he needs to have more staff and more hands-on and more services provided to him. [¶] So I think the witness is qualified.”

Mother also asserts the order must be reversed because there “was no finding on the record that the group home placement would serve C.C.’s interests,” relying on In re M.V. (2006) 146 Cal.App.4th 1048, 1059–1060 (M.V). M.V. involved a section 388 petition to remove a minor from a placement with foster parents because he had been scratched or bitten by the family dog. (Id. at p. 1050.) The minor was 20 months old, and had lived with the foster parents for about 16 months. (Id. at pp. 1050–1051.) The court’s sole findings were “ ‘When I look at these photographs and know that there was a prior injury to a child by this same animal, I can do nothing but grant the motion.’ ” (Id. at p. 1059.) There was no indication the court considered the other evidence adduced at the hearing.

On appeal, the court found the lower court’s findings so inadequate as to prevent meaningful review. It noted “the undisputed evidence establishes that the foster parents were willing to remove the dog, . . . [thus] it would appear that the changed circumstances posing a threat to M.V. had been ameliorated.” (M.V., supra, 146 Cal.App.4th at p. 1060, fn. omitted.) The court also noted “there is nothing in this record to establish that the court even considered what was in the child’s best interests.” (Id. at p. 1061.) The child’s court appointed special advocate and the child’s attorney both recommended the child remain with the foster parents, with whom they believed he had bonded, and reported the child had become “withdrawn” in his new placement. (Ibid.) The court concluded “the findings before us are not sufficient to support a finding of changed circumstances or a finding that the proposed change was in M.V.’s best interests. Our conclusion is bolstered by the absence of any indication on the record that the court understood the necessity of finding that the agency had the burden of proving by a preponderance of the evidence that changed circumstances existed and that the proposed change was in M.V.’s best interests.” (Id. at p. 1060, italics omitted.)

In contrast, in this case the record demonstrates both that the change in placement was in C.C.’s best interests, and that the juvenile court considered that factor and made such a finding. The juvenile court indicated in its signed order “The best interest of the child is promoted by the proposed modification.” Indeed, Mother concedes “the court made such a finding in its written findings and orders, [but] it did not have a valid basis for doing so. . . .”[4]

At the conclusion of the hearing, the court stated the following: “Everything all counsel has said has merit. [¶] Mr. Barraza [Mother’s counsel], your client’s son is angry that he’s separated from his mother. He’s used to this lifestyle that she’s created for him and his siblings. [¶] Ms. Balden [C.C.’s counsel], returning him to his mother is not in his best interests. Ms. Avenmarg [Department counsel], he needs counseling and therapy. The motion is granted. He may well run from the new place. It’s not a secure facility. There’s more staff there. I would wish that someone could get through to him and have him sit down for awhile and just understand that he’s approaching adulthood and he’s ill-equipped and his mother is clearly to blame for that—the lifestyle she’s lived for so many years anonymously. I never did read that the child was ever in any public school. I wish you well and I’m sympathetic to mom that she’s not going to be able to visit him, but we don’t have much choice in the matter and we need to try a higher level.”

The record reflects the court had a valid basis for finding the change in placement was in C.C.’s best interests and considered those interests, specifically noting the Jaz Kidz director testified “he needs to have more staff and more hands-on and more services provided to him.”[5]

Mother next maintains there was no evidence that “other, less restrictive placements were considered before recommending a high level group home.” To the contrary, C.C. was initially placed in foster care, but was “not able to maintain” there, and was moved to the Jaz Kidz group home. (In re C.C., supra, A150735.) There was evidence regarding C.C.’s serious escalating behavioral issues while at Jaz Kidz, and the opinion of the executive director that he needed more extensive services that could only be offered by a higher level group home. The court also heard evidence regarding the suitability of placing C.C. with Mother. Counsel for the Department submitted a declaration indicating “[t]here are no in county placements available that will accept [C.C.] or be able to meet his needs. There are placements out of county that will accept [C.C.] and be able to provide for his needs.” Thus, other less restrictive placements were considered.

Lastly, Mother claims there was “little evidence before the court regarding the detriment to C.C. of placing him far away from his mother and siblings.” To the contrary, there was evidence C.C. was “really frustrated with not being with his family” and “concerned about his mom and his siblings and that he’s not there to protect them.” Mother’s attorney maintained C.C’s “emotional state would worsen” if he was moved further away from his siblings and mother.

Mother has failed to demonstrate the grant of the change in placement was an abuse of discretion.

Reduced Visitation with Mother

Mother claims the juvenile court acted in excess of its authority in reducing her hours of visitation from four hours per week to a “minimum of eight hours per month and possibly more.” She asserts the Department failed to give notice in the section 388 petition it was seeking a reduction in visitation.

A change to an existing order in a dependency proceeding may be made either via a petition for modification under section 388, or sua sponte on the juvenile court’s own motion. “A petition for modification hearing must be used if there is a change of circumstances or new evidence that may require the court to: (1) Change, modify or set aside an order previously made.” (Cal. Rules of Court, rule 5.560(d)(1); § 388.) The juvenile court also “has the inherent jurisdiction to modify any previously made interim order, except for the termination of parental rights. . . . Such modification can be made sua sponte, on the court’s own motion, without a Welf. & Inst. Code § 388 petition.” (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2017) § 2.140, at p. 2-504.) In either case, notice and an opportunity to be heard are required. (Ibid.; §§ 386, 387.) “No order changing, modifying, or setting aside a previous order of the juvenile court shall be made either in chambers, or otherwise, unless prior notice of the application therefore has been given by the judge or the clerk of the court to the social worker and to the child’s counsel of record, or, if there is no counsel of record, to the child and his or her parent or guardian.” (§ 386.)

“The parties to dependency proceedings have a due process right, confirmed by court rule, to confront and cross-examine witnesses. [California Rules of Court r]ule 1412(j), which governs the conduct of all proceedings, directs the juvenile court to advise ‘the child, parent, and guardian . . . of the following rights: [¶] . . . [¶] (2) The right to confront and cross-examine the persons who prepared reports or documents submitted to the court by the petitioner, and the witnesses called to testify at the hearing; [¶] (3) The right to use the process of the court to bring in witnesses; [¶] (4) The right to present evidence to the court. [¶] The child, parent or guardian, and their attorneys have the right (i) to receive probation officer or social worker reports, and (ii) to inspect the documents used by the preparer of the report.’ ” (In re Matthew P. (1999) 71 Cal.App.4th 841, 849.) “ ‘Due process generally requires . . . that parents be given the right to present evidence, and to cross-examine adversarial witnesses, such as the caseworker and persons whose hearsay statements are contained in the reports, “i.e., the right to be heard in a meaningful manner.” ’ ” (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1463.)

The section 388 petition made no mention of reducing Mother’s visitation with C.C. Neither did the Department’s report, filed in support of its petition. And, no mention was made of changing visitation at the hearing until after the close of evidence and the juvenile court’s ruling on the section 388 petition to change C.C.’s placement. At that point, counsel for the Department stated “should we fashion some kind of visitation order—maybe one time per month for four hours?” The only reason given for the reduction in visitation was that “t’s impractical” to continue visitation at the current number of hours per week, noting the visitation was supervised.