In re D.P and J.W.

Filed 11/21/07 In re D.P and J.W. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

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

Elena E. Matsis, under appointment by the Court of Appeal, for Defendant and Appellant.

B.C. Barmann, Sr., County Counsel, and Susan M. Gill, Deputy County Counsel, for Plaintiff and Respondent.

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Jacqueline P. (Mother) appeals from an order at a post permanency planning review hearing (Welf. & Inst. Code,^[1] 366.3) in which the juvenile court continued her sons J.W. and D.P. in long-term foster care. Mother contends: (1) the court failed to comply with the Indian Child Welfare Act (25 U.S.C.  1901 et seq.; ICWA), and (2) the court erred in finding the boys should not be returned to her and denying reunification services. We affirm.

BACKGROUND

J.W. was 10 years old and his half-sibling D.P. was 13 years old when they were taken into protective custody on June 13, 2003, after Mother was arrested for being under the influence of a controlled substance.

On June 17, 2003, the Kern County Department of Human Services (Department) filed petitions alleging J.W. and D.P. came within section 300, subdivision (b). The petitions alleged the circumstance ofMothers arrest, her use of controlled substances, including but not limited to methamphetamine, and a drug history dating back to 1990. The petitions further alleged that on June 16, 2003, Mothers residence was deemed a health and safety hazard in that her backyard was full of dog feces, trash, and debris, including an old sink and rusted water heater.

At the detention hearing on June 18, 2003, Mother, who was represented by counsel, said no when the juvenile court asked her whether she was a member of any American Indian tribe or was eligible to be a member. Mother testified that D.P.s father was Clark H. and that J.W.s father was Jerry W. To her knowledge, neither man was American Indian.

At the continued detention hearing on June 19, 2003, the juvenile court found Jerry W. to be the presumed father of J.W. and entered a judgment of paternity declaring him to be the boys father. D.P.s alleged father, Clark H., never appeared or participated in the dependency proceedings. When asked if he was a member of any American Indian tribe, Jerry W. answered, No. I do have some Cherokee in me. The court asked if he, his parents, or grandparents were enrolled in the tribe. Jerry W. answered no. The court then found it had no reason to know the child might be an Indian child as defined by the ICWA and that ICWA did not apply. Mother was excused from appearing at the June 19 hearing but was served by mail with a certified copy of the juvenile courts minute order, which included the courts ICWA finding.

At a combined jurisdiction and disposition hearing on July 29, 2003, the juvenile court sustained the petitions and ordered out-of-home placement for J.W. and D.P. and reunification services to Mother. Mother was to submit to random drug tests, attend parenting classes, and obtain counseling focusing on substance abuse.

At the six-month review hearing, the juvenile court continued its previous orders. At the 12-month review hearings, the juvenile court terminated reunification services. At the 18-month review hearings, a permanent plan of long-term foster care was ordered for the boys.

During the next two years, J.W. and D.P. continued in out-of-home placement while Mother attempted to complete her case plan. In early January 2007, the Department reported that Mother was to complete substance abuse counseling that month, at which time she was to have successfully completed all aspects of her case plan. Consequently, the Department recommended the boys be returned to Mother and that family maintenance services be ordered.

In a subsequent report, the Department stated that Mothers drug test on January 3, 2007, had come back positive for methamphetamine. It was further reported that, during a weekend visit with the children, Mother failed to seek medical treatment after D.P. was injured falling from his bike. He was later diagnosed with a fractured clavicle and received orthopedic treatment. Citing the confirmed positive drug test and Mothers general medical neglect, the Department recommended it was in the childrens best interests to remain in out-of-home placement and for all prior orders of the juvenile court to remain in effect.

The juvenile court held a post permanency planning review hearing on January 29, 2007. At the hearing, the parties submitted on the Departments reports. Noting that Mother had nearly completed her case plan, except for a single positive drug test, Mothers attorney requested that the children be returned to her and family maintenance services be provided with the understanding that if she gives any more bad tests the children would be removed. Mother also agreed to remain on the Departments call-in drug testing system at her own expense.

After discussing with Mother the importance of using the drug-testing system to demonstrate her ability to stay off drugs, the juvenile court ruled:

THE COURT: All right. The Court is going to make what is a difficult decision. I acknowledge the progress that the mother has made. And she is on the verge of being in a position where she probably would have had the children returned to her care, but she fell off the path and used illegal drugs again. And you cant do that.

THE MOTHER: But I tested after that, the positive. The next day I was tested, and it came back negative.

THE COURT: Maam, that doesnt matter. We have a confirmed positive test for methamphetamine. Unless there is some evidence thats wrong, I find that you are using illegal drugs.

Do you understand?

And you have just got to kick the habit. These boys want to go home. The Court wants to send them home. But you have to be in a position where I am satisfied that you are clean and sober before I am willing to do that. So you need to prove to yourself and to your two sons that you have the ability to do this.

And we are going to keep you on the drug call-in system at your own expense. If you have tested clean for a sufficient period of time, talk to your attorney about it. He can come back to court and ask for the Court to see if theres a change of circumstances and let these boys go home with you, as long as everything else is still going well too. You still have a chance to get the boys back. You need to be serious about this now and stay off the drugs, and lets see if you can do it.

DISCUSSION

I. ICWA

Mother argues the juvenile court failed in its duty to notify the Bureau of Indian Affairs pursuant to ICWA that J.W. had potential American Indian heritage based on his father Jerry W.s statement that he had some Cherokee in him. Mother further argues the court and the Department failed to fulfill their ongoing duty to inquire into the childs Indian heritage. In support of her argument, Mother complains the record fails to show affirmatively that the Department complied with its duty to inquire of the parents whether they had Indian ancestry but instead suggests the Department relied on the courts finding at the June 2003 detention hearing that ICWA was inapplicable.^[2] As to the juvenile court, Mother complains the court failed to ask her or Jerry W. to fill out a Judicial Council form JV-130, which seeks information about Indian status. We reject Mothers arguments as untimely and lacking merit.

In In re Pedro N. (1995) 35 Cal.App.4th 183, 185 (Pedro N.), we held that a parent who fails to timely challenge a juvenile courts action regarding ICWA is foreclosed from raising ICWA notice issues in a subsequent appeal once the courts ruling is final. In this case, the time to raise such issues was at the dispositional phase, not now. Here, the courts dispositional findings and orders included an implicit finding that ICWA was inapplicable. (See e.g., In re Levi U. (2000) 78 Cal.App.4th 191, 199 [court ruled an explicit ICWA finding was not required because it was apparent the juvenile court had found it inapplicable].) Mother appeared at the jurisdiction/disposition hearing represented by counsel. The court indicated that it had read and considered the Departments reports. Mother did not challenge the Departments assertion or the courts explicit finding at the detention hearing that ICWA was inapplicable. On this record, the courts failure to refer specifically to the ICWA during the dispositional phase can be fairly construed as an implicit finding it did not apply. The juvenile courts 2003 dispositional findings and orders are final and no longer subject to attack by Mother. (Pedro N., supra, 35 Cal.App.4th at p. 185.)

To the extent Mother cites other decisions, such as In re Marinna J. (2001) 90 Cal.App.4th 731 and In re Nikki R. (2003) 106 Cal.App.4th 844, which disagreed with our Pedro N. holding on a theory that it is inconsistent with the protections ICWA affords to the interests of Indian tribes, we are not persuaded. We do not foreclose a tribes rights under ICWA on account of a parents appellate waiver. (Pedro N., supra, 35 Cal.App.4th at p. 185; see also In re Desiree F. (2000) 83 Cal.App.4th 460 [we reversed denial of tribes motion to intervene after final order terminating parental rights and invalidated actions dating back to outset of dependency and taken in violation of ICWA].) In so ruling, we held we were addressing only the rights of the parent to a heightened evidentiary standard for removal and termination, not those of the tribe (Pedro N., supra, 35 Cal.App.4th at p. 191), or, for that matter, the rights of the child. As a result, we conclude Mother has forfeited her personal right to complain of any ICWA violation. Moreover, because Mother was represented by counsel when she was questioned regarding her potential Indian ancestry, the issue of ICWA was addressed early on both by the court at the continued detention hearing and in the Departments subsequent jurisdiction/disposition reports, and, as discussed, the courts detentional finding that ICWA was inapplicable was implicit in its dispositional findings and orders, we reject Mothers claim that any forfeiture was unknowing and should be excused.

We also reject as without merit Mothers claim that the juvenile court and the Department failed in their ongoing duty of inquiry under ICWA. Once the court determined ICWA did not apply, that finding applied to all subsequent hearings. At the time, the applicable court rule provided: Notice must be sent whenever there is reason to believe the child may be an Indian child, and for every hearing thereafter unless and until it is determined that the act does not apply to the case. (Former Cal. Rules of Court, rule 1439(f)(5), italics added.) Because the issue was determined early on, there was no reason to inquire further. Moreover, the earlier finding was not invalidated by the failure to use JV-130 as Mother contends. The form was not required until after January 1, 2005, nearly two years after the juvenile court made its ICWA finding. (See Historical Notes, 23, pt. 2, Wests Ann. Codes, Rules (2006 ed.) foll. rule 5.664, pp. 61-63; see also In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430 [no requirement to file form JV-130 in 2004 because form did not exist or become mandatory until after January 1, 2005].)

II. Section 366.3

Mother contends the juvenile court erred in failing to return the children to her custody and denying her reunification services under section 366.3. We reject Mothers contention.

Subdivision (d) of section 366.3 provides in pertinent part: If the child is in a placement other than the home of a legal guardian and jurisdiction has not been dismissed, the status of the child shall be reviewed at least every six months.... The review of the status of a child for whom the court has not ordered parental rights terminated and who has not been ordered placed for adoption may be conducted by the court or an appropriate local agency. The court shall conduct the review under the following circumstances: []... Upon the request of the childs parents .... At the review, the juvenile court is authorized to assess [t]he continuing necessity for and appropriateness of the placement. ( 366.3, subd. (e)(1).)

Insofar as the parent seeks to recover custody of the child at the section 366.3 hearing, the burden and standard of proof on the parent ... is the same as under section 388. (In re Dakota H. (2005) 132 Cal.App.4th 212, 226; see also Nahid H.v. Superior Court (1997) 53 Cal.App.4th 1051, 1068 (Nahid H.) [the standard at a section 366.3 hearing mirrors the standard applicable to petitions to modify under section 388].)^[3] Section 388 allows a parent to petition the juvenile court to change, modify or set aside any previous order, including an order terminating reunification services. ( 388, subd. (a).) [U]p until the time the section 366.26 hearing is set, the parents interest in reunification is given precedence over the childs need for stability and permanency. (In re Marilyn H. (1993) 5 Cal.4th 295, 310 (Marilyn H.) Once, as here, family reunification services have been terminated, the focus of dependency proceedings shifts to the childs needs for stability and permanency. (Id. at p. 309.) [I]n fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) The burden is on the parent to prove changed circumstances pursuant to section 388 to revive the reunification issue. Section 388 provides the escape mechanism that must be built into the process to allow the court to consider new information. (Marilyn H., supra, 5 Cal.4th at p. 309; see also In re Zacharia D. (1993) 6 Cal.4th 435, 447; Stephanie M., supra, 7 Cal.4th at p. 317.)

Thus, the parent, as the moving party, has the burden of showing by a preponderance of the evidence both that (1) there is new evidence of a change of circumstances, and (2) the proposed modification would be in the best interests of the child. ( 388; Nahid H., supra, 53 Cal.App.4th at p. 1068; In re Casey D. (1999) 70 Cal.App.4th 38, 47 (Casey D.) A parent must show changed, not changing, circumstances. (Casey D., supra, 70 Cal.App.4th at p. 47.) The change of circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged prior order. (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485; In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.) In view of the equivalence between the section 366.3 hearing and a proceeding under section 388, the juvenile courts ruling is reviewed for abuse of discretion. (Casey D., supra, 70 Cal.App.4th at p 47.)

Here, Mother did not show a genuine change of circumstances or that the undoing of the prior orders would be in the childrens best interests. Mother presented no new evidence but relied on the Departments reports that she had completed most of her case plan except for the single positive drug test. On appeal, she notes that by the time of Januarys section 366.3 hearing, the reports reflect she had completed parenting classes and substance abuse counseling, submitted to random drug testing for a year, consistently visited with the boys, and was living in a clean and appropriate home. The boys had also expressed a strong desire to live with Mother, and neither was in a prospective adoptive foster home.

In declining to return the children to Mothers custody, the juvenile court duly considered all the circumstances Mother cites in her favor but concluded the positive test for methamphetamine showed that, despite the considerable progress she had made, mother continued to use illegal drugs and thus it would not be appropriate to return the children to her home until she could demonstrate she had overcome her drug habit. As the court noted, Mother presented no evidence to show that the confirmed positive test for methamphetamine was erroneous or that her negative test the next day invalidated the previous days positive test. We see no error in the juvenile courts ruling. The circumstances Mother relies on indicate only that she had made progress in resolving the problems that warranted the removal of the children from her custody, not that she had resolved them. (Casey D., supra, 70 Cal.App.4th at p. 47.) Because appellate courts accord broad deference to the juvenile courts exercise of its discretion, we will disturb its ruling only if we find that under all the evidence, viewed most favorably in support of the trial courts action, no judge could reasonably have made the order that he did. [Citations.] (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) No such error occurred here.

Mothers reliance on Rita L. v. Superior Court (2005) 128 Cal.App.4th 495 (Rita L.) is misplaced. In Rita L., the mother, who had an extensive history of substance abuse but was doing well with her case plan, had been sober until she took a Tylenol with Codeine tablet prescribed for her daughter to treat a headache. (Rita L., supra, at pp. 498, 499, 501.) The mother immediately told the drug-testing center, her Alcoholics Anonymous sponsor and the social worker that she took the tablet. (Id. at p. 501.) Disbelieving the mothers relapse was unintentional; the juvenile court terminated reunification services and set a section 366.26 hearing. (Rita L., supra, at pp. 502-504.)

In reversing the juvenile courts order, the appellate court held that mothers one dirty drug test, when viewed in the context of the entire case, did not constitute substantial evidence that the return of the child presented a substantial risk of detriment. (Rita L., supra, 128 Cal.App.4th at p. 505.) The appellate court criticized the juvenile court for treating this incident as simply a dirty drug test as though all dirty tests are the same. They are not. And the particular dirty test at issue in this case, arising as it did from Ritas ingestion of a single prescription pain killer to combat a headache in the absence of any prior listing of prescription drug abuse was simply insufficient to justify the courts conclusion that Blaine could not safely be returned to her custody. (Id. at p. 506.)

Aside from being procedurally distinguishable and thus involving a different burden of proof and standard of review, this case is clearly factually distinguishable. Here, the children were removed, in large part, because of Mothers methamphetamine use and Mother tested positive for methamphetamine. Notably, Mother did not deny that she used methamphetamine or present any evidence that would support a conclusion that the positive test was a false positive. In the context of this case, Mothers use of methamphetamine indicates that she has not resolved her long-standing drug problem. Accordingly, the juvenile court did not err under section 366.3, in continuing J.W. and D.P. in foster care.

DISPOSITION

The findings and orders of the juvenile court are affirmed.

_____________________

HILL, J.

WE CONCUR:

_____________________

HARRIS, Acting P.J.

_____________________

LEVY, J.

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^[1] Further statutory references are to the Welfare and Institutions Code unless otherwise specified.

^[2] The social workers reports prepared for the jurisdiction/disposition hearing described the parents characteristics, in relevant part, as follows: [Mother] is a Caucasian female with no American Indian or Eskimo heritage. Further, the mother is not enrolled nor eligible for enrollment in a federally-recognized tribe, therefore, ICWA does not apply. [] [] [Jerry W.] is a Caucasian female [sic] with no American Indian or Eskimo heritage. Further, the father is not enrolled nor eligible for enrollment in a federally-recognized tribe, therefore ICWA does not apply. Mother notes the Departments erroneous use of female in reference to Jerry W., and argues it supports an inference the Department failed to inquire into the parents Indian heritage.

^[3] Although Mother claims the juvenile court erred in denying her reunification services, there is no record of a specific request for services. Rather, she voluntarily agreed to continue drug-testing at her own expense. Accordingly, we limit our discussion to Mothers claim the court erred in denying her request that the children be returned to her custody.