Filed 2/21/18 In re M.W. CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Shasta)
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In re M.W., a Person Coming Under the Juvenile Court Law. C081823


SHASTA COUNTY HEALTH AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

K.A.,

Defendant and Appellant.

(Super. Ct. No. 12JVSQ2930801)


K.A., mother of minor M.W., appeals from the juvenile court’s order denying her petition for modification. (Welf. & Inst. Code, §§ 388, 395.) She contends the juvenile court abused its discretion in denying her petition for modification and that the judge showed bias in questioning her at the hearing. We affirm.
I. BACKGROUND
On May 1, 2012, a juvenile dependency petition was filed alleging that newborn M.W. came within section 300, subdivision (b), in that the parents had mental health problems that interfered with their ability to provide regular and adequate care for the child. Mother acknowledged that she did not know how to care for an infant. Both parents admitted to mental health issues and failure to take medications prescribed for those conditions. Mother indicated Indian heritage.
The social worker’s July 2012 report for the disposition hearing recommended that M.W. remain in foster care and that the parents receive reunification services. The parents had failed to appear at a June 2012 family team meeting and their attendance at visitations with M.W. had been inconsistent. Mother and the maternal grandfather were enrolled in the Tlingit/Haida tribe. A tribal council member indicated that the tribe hoped to build family connections between M.W. and the maternal extended family.
In September 2012, the juvenile court held the contested jurisdiction and disposition hearing. The court adjudged M.W. its dependent, found that the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) applied to the case, removed M.W. from his parents’ physical custody, and ordered reunification services for both parents.
The social worker’s March 2013 report for the six-month review hearing recommended that reunification services be terminated and a selection and implementation hearing be set. M.W. had been moved to an ICWA-approved placement in December 2012. He had adjusted well to this placement and showed comfort in the presence of caretakers who wanted to provide permanency.
At this time, mother was homeless. She told the social worker that she and father were no longer a couple but they were seen together in the community almost daily. Mother’s parent educator noted mother had trouble keeping her appointments and her anxiety prevented her from participating in large group settings. Mother’s family dynamics counselor reported that mother attended only one session, missed the second session, and failed to schedule any further sessions. Mother attended one session of a Native American counseling program, the Women’s Talking Circle, but she made no further attempts to participate in any of the support groups. The social worker further noted that “[mother] has been offered counseling through Mental Health and Family Dynamics and has not taken advantage of those opportunities. [Mother] continues to have anxiety to the degree that she is unable to eat, cannot sleep at night and as a result sleeps late and . . . is constantly tired. [Mother’s] mental health issues interfere with her ability to safely parent her child. She is unable to verbalize how she would ensure her child is fed and kept on a consistent schedule. [Mother] has been unwilling or unable to participate in the development of a plan.” Mother also had difficulty keeping scheduled visitation with M.W. Visits were put on will-call as of August 1, 2012, and, shortly thereafter, reduced to one visit per week due to her inability to arrive at visitation on time. Reunification services were terminated on March 29, 2013.
The social worker’s July 2013 report for the selection and implementation hearing recommended a permanent plan of adoption and a 90-day continuance to consult as to whether a tribal customary adoption would be in M.W.’s best interest. (See generally In re H.R. (2012) 208 Cal.App.4th 751, 759-764.) M.W. was in good health and doing well in his tribal home placement. Mother’s visitation had become more consistent since the six-month review.
Although the juvenile court had initially identified adoption as the permanent plan, it later (in October 2013) ruled that termination of parental rights would be detrimental to the child in that it would interfere with M.W.’s connection to his tribal community or membership rights. The court identified M.W.’s permanent plan as placement with the caregiver with a specific goal of tribal adoption.
The social worker’s March 2014 report for the postpermanent plan review stated that M.W. continued in his approved placement and that the providers were meeting his needs and capable of providing continued care and supervision. The current providers were open to a tribal adoption. The report stated that M.W. “presents as secure in their care and seeks them out for comfort and affection. His foster family sees him as a member of their family. He has been fully accepted as a member of the family. He has developed a close relationship with his foster parents and views them as his parents. He relates to his foster parents as his parents and appears completely comfortable in their home.” Mother was visiting M.W. on a monthly basis, had obtained housing, and was living separately from father. The tribe subsequently indicated that it supported a tribal adoption.
The social worker’s October 2014 report for the selection and implementation hearing and permanent plan review stated: “[M.W.] is starting toilet training. He is talking more and talking in sentences at times. [M.W.] is active; he loves playing with his trucks. He also enjoys playing baseball with his plastic ball and bat, and enjoys hitting the ball when his foster parents throw it. Emotionally, [M.W.] is a happy child who enjoys interacting with his foster parents and their extended family. [M.W.] loves to dance and goes to Native American dance classes at the Redding Rancheria; he has performed dancing at several local Native American cultural events.”
Mother was visiting M.W. once a month for two-hour sessions. Visits usually consisted of mother and child playing together. Both mother and child enjoyed the visits. The foster parents had met mother at different Native American events where she could interact with her son.
The foster parents had been approved as a tribal home. They had discussed with a tribal representative issues related to tribal adoption, their willingness to allow contact with mother if the tribe so requests per the tribal adoption, and the incorporation of tribal customs and traditions into their family life.
On October 20, 2014, mother filed a section 388 petition for modification of the juvenile court’s order terminating reunification services and requesting the juvenile court “[t]ransition the child back into mother’s care under a plan of Family Maintenance.” The petition was denied, mother appealed, and this court affirmed the order. Remittitur issued on August 13, 2015.
On June 1, 2015, mother filed another section 388 petition for modification of the juvenile court’s order terminating reunification services and requesting the juvenile court transition the minor to her home and provide family maintenance services. The petition alleged mother’s health had continued to stabilize and improve and she had a close bond with the minor. Mother alleged she had proven her ability to parent safely and adequately by parenting her boyfriend’s children, caring for the maternal grandfather prior to his passing, and caring for her sister and being her sister’s payee. Mother alleged she was maintaining safe and appropriate housing. She had enrolled in beauty school and anticipated graduating on February 19, 2016.
Because the tribe supported return of the minor to mother’s custody, the Shasta County Health and Human Services Agency (Agency) undertook an extensive assessment of mother and her ability to provide a safe, stable, loving, and appropriate home for the minor. During the announced visit, the home was somewhat cluttered, but clean. There was no running water in the bathroom sink. The home was chaotic due to the number of people residing in the two-bedroom apartment, but there was nothing observed to be unsafe.
Mother’s medical records included numerous reports between July 2014 and April 2015 of increased anxiety, headaches, and panic attacks. Mother had reported to her physician as recently as February 11, 2015, that she was not taking her anxiety medications.
On July 9, 2015, at 2:06 a.m., a 911 call was placed reporting mother had been drinking and there was concern of a possible overdose. The reporting party indicated mother was aggressive and violent. Medical units were dispatched and it was determined there was no overdose. Law enforcement was canceled. Another 911 call was made at 4:33 a.m. The party indicated once again that mother was extremely intoxicated and was causing a family disturbance. Law enforcement determined a psychiatric hold was unnecessary and that mother had been drinking in her own home.
Lenora Walker of the Tlingit and Haida Tribes of Alaska was contacted regarding the new information gathered during the Agency’s assessment and the log report of what had happened on July 9, 2015. The log report was very concerning to both the Agency and the tribe. Family members had been concerned enough about mother’s drinking that they had placed the 911 call. During an unannounced visit on August 17, 2015, marijuana joints were observed on a bench outside of the home and within reach of children, which further increased the Agency’s concerns about possible substance abuse.
The Agency also increased visitation as part of its assessment to determine if visits between mother and the minor would improve. While mother was consistent in making her visits, the quality of the visits failed to improve. Even with the increased visits, the social worker stated there was a limited parental relationship between mother and the minor. The social worker reported that “[the minor] clearly has a strong bond with the caregivers and seeks them out for comfort and relates to them as his parents. The mother struggles to maintain interactions with [him]. [He] and the mother often engage in parallel play in which the mother and child are sitting next to each other playing separately with minimal interaction. Visit observations describe [M.W.] as engaged in his activit[ies] and [he] does not make eye contact with [mother].”
On September 29, 2015, the social worker filed an addendum report in opposition to mother’s petition for modification. The social worker reported that mother’s boyfriend had seven child welfare referrals between August 23, 2005, and April 11, 2014. The social worker also noted that on July 8, 2015, mother reported that she was not taking medication for mental health conditions, but then later stated that her doctor had prescribed psychotropic medications to be taken once a day. She then stated that she does not take the medication every day, and only takes it “ ‘as needed when she goes out.’ ” Mother also reported that she had increased her monthly therapy due to worsening depression. When the social worker spoke to the therapist, the therapist was surprised to discover mother was taking medications for anxiety and depression and had not been aware that mother was taking any psychotropic medications. Mother also reported that she had stopped taking the beauty school classes and her boyfriend had quit his job. Visits had been increased to two visits a week, each for two hours, but the minor interacted only minimally with mother at the visits and expressed minimal affection. At the end of the visits, the minor ran to his caregivers and appeared ready to leave. The social worker concluded that mother “continues to present and demonstrate a pattern of instability, and due to the mother’s ongoing mental and physical health challenges, there is a substantial probability, that the mother would not be able to meet [her son’s] needs long-term.”
Mother filed a hearing brief on February 2, 2016. In it, she argued she had gotten her medical issues under control, had been parenting her boyfriend’s minor children for over a year, and was training to become an apartment manager for the complex at which she resides. She believed her visits with the minor had gone well and that they had a close bond.
The hearing on mother’s petition for modification took place over the course of several days in January, February and March 2016. It was held in conjunction with the selection and implementation hearing.
In a report dated June 28, 2015, ICWA expert witness Percy Tejada had concluded that there was no existing detriment to returning the minor to mother’s custody. During his testimony, however, he agreed that he had no college education in the area of child development or bonding or the signs of bonding itself. Nor did he speak with the minor’s caregivers or observe the minor in the caregivers’ presence. Tejada opined that the services provided by the Agency had been appropriate and mother had, despite her mental health challenges, addressed the Agency’s concerns. He conceded, however, that mother’s efforts had been “marginal” since the termination of reunification services.
ICWA expert witness Richard England, a licensed clinical social worker, filed a report dated January 21, 2016. England considered that, at the time of the child’s removal, both mother and father had mental health issues and the home was not an appropriate environment for the infant. Mother had suffered a traumatic loss when her own mother died within days of the minor’s birth. The maternal grandmother likely would have been a primary source of support and caregiver to the minor—which is reflective of the tribe’s child rearing practices. From the time of M.W.’s removal until sometime near January or February of 2013, shortly before termination of reunification services, mother had completed parenting classes and domestic violence classes. Mother continued to receive mental health services. Mother had assured him that she did not have a substance abuse problem. She had also told him she was pregnant, living with her boyfriend and his two children, and was working on obtaining a drivers license. He could not state beyond a reasonable doubt that “if [M.W.] were returned to [mother] that it would likely cause emotional and physical damage to him at this time.” On the other hand, he testified, “at the same time I think that return home would not be in the best interest at this time.” He explained, “I think that based on the fact that we do have many attachments and he has shown that he is able to attach [in] a healthy way that that is possible. And I also think that would be a very difficult adjustment, and it would be—or could be damaging.”
Psychologist J. Reid McKellar conducted a bonding assessment between the caregivers and M.W. In his November 17, 2015, report, Dr. McKellar concluded that M.W. had “an extremely close and vital bond” with his foster parents and it would be “emotionally and psychologically detrimental” to him if his current placement were changed. Dr. McKellar testified that M.W. and his foster parents have the same strong bond as a positive healthy relationship between biological parents and a biological child. Severing this “essential primary attachment bond” would be “extremely traumatic” and be the same to the minor as suffering a death and a loss of his life base. Dr. McKellar also opined that M.W. was “not at an age in which it would be easier for him to process such a loss and move on without significant psychological, emotional, and developmental damage.” He testified, “it would be—absolutely be detrimental to him[] to sever this bond.” Moreover, Dr. McKellar had reviewed all the reports and did not “receive any information to suggest that [mother] was the type of person that c[ould] help mitigate the loss and the grief and the inevitable developmental derailment that would occur” if he was removed from his current caretakers.
Mother testified that she has been with her current boyfriend since January of 2014 and they planned to marry in August 2016. She had recently resumed her counseling and was working on the grieving process surrounding the loss of her mother. She did not know much about her culture but wanted to learn more about it and about her family history. She also wanted to continue the relationship her son had with his foster parents.
The juvenile court then asked mother some questions, as follows:
“THE COURT: I just have a question for you, Mom, and this is a difficult decision that the Court is going to have to make, and it would appear from your testimony that you understand the profound effects of the loss of a parent. Your testimony that you just provided to the Court was fraught with emotion and you appeared clearly distraught when you speak about the loss of your father and the loss of your mother. Would you agree?
“[Mother]: Yes.
“THE COURT: Okay. And that’s painful for you, correct? It appears to be painful for you to the Court.
“[Mother]: Yes.
“THE COURT: And it has—it has an accompanying emotional impact upon you as well, correct?
“[Mother]: Yes.
“THE COURT: Do you understand that Dr. McKellar is telling this Court that the loss of [M.W.’s] current care providers is going to have a similar profound effect upon your child’s well-being?
“[Mother]: Yes. I take second—I can understand how he would feel because I have been through the same thing.
“THE COURT: Right. And does that concern you? I mean, you’re an adult and as we get older—and I think Mr. England spoke a little bit about it. He was a little, you know, little torn as well and spoke a little bit about it. As we get older—and I think Dr. McKellar spoke a little bit about it also—that as we get older, perhaps the impacts wouldn’t be as great but because you have a child—a young child that you want back in your care, the emotional impacts of this child might be greater because of his age and the loss that he would feel and his lack of ability to communicate and understand. How—how do you—how do we deal with that?
“[Mother]: I know it’s really something hard to deal with. It is a lot of work to work through. You can’t really do it by yourself, would have to go ask for help.
“THE COURT: And how does this young child ask for help?
“[Mother]: Well, it’s kind of hard to do that because he is three. He’s still learning how to speak, but he can—you can tell when a child is grieving whether be in distance or doesn’t want to do anything or if she’s [sic] acting out.
“THE COURT: Right. So we recognize it, but how do we help him?
“[Mother]: You would probably have to spend more time with him and talk with him and try to give him longer attention that he needs so he feels safe and secured.
“THE COURT: And it was Dr. McKellar’s opinion that pretty much a new care provider would have to be there 24/7 for this child, and he was—it seemed that Dr. McKellar was concerned about your current situation and whether you could give that devotion and attention to that child not because you wouldn’t want to but just because you’re pregnant, you have a child on the way, and you have two other children, a 7- and a 12-year-old you’re caring for. Are you concerned that you might not be able to give your full attention to [M.W.] when he will need so much of that?
“[Mother]: I can be concerned about that, but I have to be more focused and work with him with it because it is a lot to deal with. And as far as with my stepkids they understand the loss of—especially when I have talked to them about it, and it’s really something hard to talk about with anybody.
“THE COURT: How do you deal with your newborn child that you’ll have?
“[Mother]: I don’t—I’m not just doing it by myself. I do have my fiancé who helps me with everything else that goes on in the household. But I do know that I would have to work with [M.W.] more because he’s not related to [my fiancé] or those kids. It would be mostly my more focus to help him work through it.
“THE COURT: Do you think this is the right time to have [M.W.] in your care?
“[Mother]: I would concede that everyone else would have to—it is going to be a lot to deal with because I do have two stepkids and one on the way because a pregnancy is a lot to deal with, but—I really don’t know how to answer that.
“THE COURT: But you would agree that we could profoundly affect the outcome of the child’s life, [M.W.’s] life?
“[Mother]: Yes.
“THE COURT: Thank you.”
At the conclusion of the hearing, the juvenile court found that, despite the list of things mother had not done (such as any parenting or domestic violence services since termination of reunification services), there had been “some change in circumstances” in that mother had obtained housing and periodic employment. However, in considering the minor’s need for permanency and stability, the juvenile court found that removal from the current caretakers would not be in the minor’s best interest. The juvenile court expressly considered the minor’s bond with mother and his caretakers in making that determination. It specifically found that if the court were to sever the primary bond with the minor’s current caregivers, the new caregiver “would have to be [an] extremely stable, focused, resourceful adult with a pre-established connection to the [minor], and even then[,] severance would be detrimental.” Although mother had made changes in her life, she had not demonstrated the sustained stability, focus, or resourcefulness that would be needed by her to mitigate the detriment that would be caused to M.W. if the court were to grant the petition for modification. Accordingly mother’s petition for modification was denied.
II. DISCUSSION
A. Petition for Modification
Mother contends the juvenile court’s denial of her section 388 petition for modification seeking return of the minors to her custody constituted an abuse of discretion. We find no abuse of discretion.
A parent may bring a petition for modification of any order of the juvenile court pursuant to section 388 based on new evidence or a showing of changed circumstances. “The parent requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is a preponderance of the evidence. [Citation.]” (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) Determination of a petition to modify is committed to the sound discretion of the juvenile court and, absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) The best interests of the child are of paramount consideration when the petition is brought after termination of reunification services. (In re Stephanie M., supra, at p. 317.) In assessing the best interests of the child, the juvenile court looks not to the parent’s interests in reunification but to the needs of the child for permanence and stability. (Ibid.; In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
It is clear from the juvenile court’s findings and order that it considered the minor’s need for permanence and stability in making its ruling. It also expressly considered the minor’s relationship and bonds with his caretakers and mother, the testimony of the Indian experts, and the testimony of Dr. McKellar. And although the court found mother had made some changes and improvements in her situation, it found she had not demonstrated the sustained stability, focus, or resourcefulness the minor would require if he should have his primary attachment bond severed. This conclusion is supported by the record.
As the court noted, the minor has more than a simple bond with his caretakers. Dr. McKellar described the bond as an “essential primary attachment bond,” in which the minor looks to his caregivers as his primary source of support, nurturance, safety, and well-being. On the other hand, the minor did not appear to share a strong bond with mother. He interacted minimally with mother during visits and expressed minimal affection toward her. At the end of visits, he ran to his caregivers and appeared ready to leave.
Dr. McKellar opined that it would be extremely traumatic to the minor to have his primary attachment bond with his caregivers severed, and he would require his new care provider to be “an extremely stable, focused, and resourceful adult with a preestablished connection” to him and provide “absolute focused attention.” The court’s finding that mother is not such an individual at this time is also supported by the record. In addition to mother’s limited bond with the minor, mother was still struggling with her own mental health issues, her medication compliance was inconsistent, and she had not participated in additional services since her formal services were terminated. With regard to being able to provide “absolute focused attention,” mother was in training to be an apartment manager, was currently pregnant, and was also caring for her boyfriend’s two children. With regard to her stability, mother was living with her boyfriend, who had seven child welfare referrals in the past, including referrals for domestic violence and allegations that the boyfriend hit and choked his children on several occasions.
In sum, we find no abuse of discretion.
B. Allegation of Bias or Misconduct
Mother also contends judicial bias requires reversal. She bases her contention on the judge’s questioning her at the hearing (as set forth in its entirety in our recitation of the facts). She did not, however, object to the juvenile court’s questioning—either that the court was asking too many or was asking them in a biased manner.
The California Supreme Court has held that the lack of objection forfeits claims of judicial misconduct: “It is settled that a judge’s examination of a witness may not be assigned as error on appeal where no objection was made when the questioning occurred.” (People v. Corrigan (1957) 48 Cal.2d 551, 556; see People v. Hines (1997) 15 Cal.4th 997, 1040-1041; People v. Wright (1990) 52 Cal.3d 367, 411.) We have repeatedly applied this rule to claims of improper questioning by judges. (People v. Raviart (2001) 93 Cal.App.4th 258, 269; People v. Pierce (1970) 11 Cal.App.3d 313, 321-322; People v. Flores (1952) 113 Cal.App.2d 813, 817.)
Accordingly, the claim of judicial misconduct has been forfeited for lack of an objection at the hearing. Moreover, even if we excused the lack of objection, we would reject the contention of error.
The trial judge has the power to participate in the examination of witnesses to clarify testimony and to elicit facts material to a just determination of the cause. (Evid. Code, § 775; People v. Harris (2005) 37 Cal.4th 310, 350; In re S.C. (2006) 138 Cal.App.4th 396, 423.) It is not improper for the judge to speak up when it seems apparent that there is something about the testimony of a witness that requires clarification. (People v. Bonville (1968) 268 Cal.App.2d 107, 116; People v. Crawford (1968) 259 Cal.App.2d 874, 880.)
Here, the judge merely asked questions to elicit whether mother recognized the emotional consequences of changing the minor’s placement, and asked how she planned to address the challenges that would necessarily present themselves if the placement change was made. These questions were relevant to the decision the juvenile court was about to make. While these may have been difficult questions, they were fair. “There is a presumption in the honesty and integrity of our judicial officers. [Citation.]” (People v. Hernandez (1984) 160 Cal.App.3d 725, 746, citing Withrow v. Larkin (1975) 421 U.S. 35, 47 [43 L.Ed.2d 712, 723].) There was nothing in the manner of the questioning that overcame that presumption and demonstrated bias.
III. DISPOSITION
The juvenile court’s order is affirmed.

/S/

RENNER, J.


We concur:


/S/

RAYE, P. J.


/S/

BLEASE, J.