In re Selena C.

Filed 3/28/07 In re Selena C. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEALS from orders of the Superior Court of Los Angeles County, Robin Kessler, Juvenile Court Referee. Vacated with directions.

Lisa A. DiGrazia, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.

____________________

INTRODUCTION

Lisa B. (mother) appeals from an order denying her petition for modification under Welfare and Institutions Code section 388^[1]and an order terminating dependency jurisdiction over her two younger children, David O. and William O. She contends reversal is required due the failure of the Department of Children and Family Services (DCFS) to comply fully with the notice requirements of the Indian Child Welfare Act (ICWA, 25 U.S.C.  1901 et seq.). She also contends the juvenile court abused its discretion in denying her section 388 petition and in terminating jurisdiction over David and William. We conditionally vacate the orders from which mother appeals and remand the case for compliance with ICWA.

FACTUAL AND PROCEDURAL BACKGROUND

Mother and William O., Sr. (father, collectively parents)^[2]are the parents of Selena C., born in 1996, and twins David O. and William O., born in 1998. In February 2003, DCFS substantiated a referral based on an allegation of child abuse, after William came to school with a mark by his eye and reported that father had choked him.^[3] Parents entered into a Voluntary Family Maintenance contract with DCFS.

DCFS filed a section 300 petition on May 15, 2003, alleging father physically abused David by slapping and choking him, mother did not believe father abused David and failed to protect him, and Voluntary Family Maintenance Services had failed to resolve the familys problems. The children were placed with their maternal grandmother. Mother was granted unmonitored visitation, and father was granted monitored visitation. After mother reported that the maternal grandfather had Cherokee Indian heritage, the juvenile court ordered DCFS to provide notice under ICWA.

DCFS filed a first amended petition on May 29, 2003, alleging that then-six-year-old Selena suffered from serious emotional problems, causing severe anxiety, depression, withdrawal and explosive tantrums. It further alleged that parents had their own mental and emotional disabilities, rendering them unable to care for Selenas medical and emotional needs.

DCFS reported for the jurisdiction/disposition hearing on June 5, 2003 that Selena had been diagnosed with a number of conditions, including cerebral palsy, autism, bipolar disorder, epilepsy, attention deficit hyperactivity disorder (ADHD), and mental retardation. Several different doctors had prescribed medications for Selena, and Selena had undergone 11 surgeries. It appeared that the diagnoses were based only on mothers reports. Additionally, mother claimed Selena suffered from chronic constipation, which mother treated with enemas every other day. Selena had received a gastronomy tube (g-tube) in October 2002 to help with her constipation. Mother also had started treating David and William with enemas, believing they had the same symptoms as Selena.

Mother had not potty-trained Selena, claiming that Selena could not be trained. However, the maternal grandmother reported that since coming to live with her, Selena was eating regularly, did not suffer from constipation and was potty-trained. DCFS was concerned that mother might have fabricated or exaggerated Selenas health problems.

DCFS also reported that mother had enrolled in a parenting program and attended regularly for three months. She also was attending therapy to help her deal with Selenas behavior problems.

The juvenile court sustained the first amended petition. It ordered Evidence Code section 730 evaluations of parents and the children. It ordered mother to complete a parenting program and to participate in individual counseling addressing child protection and Selenas special needs.

Dr. Clive Kennedy performed the evaluations. Dr. Kennedy opined that mother was borderline mentally retarded and suffered from a moderate level of pathology. He diagnosed her as suffering from bipolar disorder (mixed, with psychotic features) and post-traumatic stress disorder and believed she could benefit from psychiatric treatment. It was unclear whether mother also suffered from Munchausen syndrome or factitious^[4]disorder by proxy. As to Selena, Dr. Kennedy recommended a brief hospitalization to assess her condition.

On October 2, 2003, DCFS removed the children from the maternal grandmother due to housing problems. It placed Selena and the boys in separate foster homes. The court ordered DCFS to try to arrange conjoint counseling for the family and ordered it to use section 370 funds if no other funding was available.^[5]

In November 2003, it was reported to the juvenile court that parents had found a therapist for conjoint counseling, but DCFS claimed it had no funds to pay for it. The court ordered DCFS to use section 370 funds to pay for the counseling. It also ordered parents to look into getting Medi-Cal benefits. Additionally, it was reported that Selena had been hospitalized in October because of her behavior. During her 12-day hospital stay, she ate normally and did not require enemas for normal bowel movements.

DCFS also reported incidents in which the children came back from visits with the family with injuries, and that Selena returned from visits cursing and behaving negatively. William claimed that father hit him once while they were playing.

For the January 12, 2004 six-month review hearing, DCFS indicated that ICWA did not apply. It reported that conjoint counseling had not taken place, in that parents had not obtained Medi-Cal benefits.

In February 2004, the juvenile court was told that an application for Medi-Cal benefits was pending. The court ordered DCFS to use section 370 funds if Medi-Cal did not cover the cost of conjoint counseling.

On March 4, 2004, mother reported that the application for Medi-Cal benefits was denied. The court ordered conjoint counseling to begin immediately, and DCFS was to use section 370 or other available funds to pay for it.

DCFS filed a section 342 supplemental petition on March 26, 2004, alleging father had caused bruises and scratches on Selenas face and mother had failed to protect her. DCFS reported that mother claimed David had hit Selena. Additionally, parents were living in a van and could not provide a suitable environment for visitation. DCFS further claimed that it had no section 370 funds to pay for conjoint counseling. The court stated that if parents and the children were not in conjoint counseling by April 14, it would consider imposing sanctions on DCFS.

The section 342 petition was dismissed without prejudice on May 5, 2004. The dismissal was conditioned on fathers having only monitored visitation with the children.

For the August 10, 2004 12-month review hearing, DCFS reported that Selena was hospitalized between April and June due to uncontrollable tantrums. Selena subsequently was placed in a new foster home. David and William had begun taking medication for ADHD.

DCFS reported that mother had completed parenting education classes, although she was displaying inappropriate behavior toward the children during visitation. Mother was not employed, she and father still were living in a van, and they were not maintaining regular contact with DCFS.

Thereafter, mothers attorney reported that mother had found housing and just needed to complete some paperwork. The juvenile court found parents in compliance with their case plan and ordered reunification services continued to the 18-month date.

On October 18, 2004, DCFS filed a second section 342 petition. It alleged that mothers new boyfriend, Rene, had hit David in the face and had hit Selena, causing bruises and marks on both children. In response, the juvenile court ordered that mothers visitation with the children be monitored.^[6]

In a report prepared for the section 366.22 18-month review hearing, DCFS reported that mother claimed she had rented a four-bedroom furnished home, obtained employment and stopped seeing Rene. DCFS had not verified mothers claims, but it did verify that she had completed a parenting program.

The hearing was continued several times. In March 2005, DCFS reported that mother was under the care of a psychiatrist and taking psychotropic medication. The psychiatrist opined that mother was stable and compliant, and she did not pose a danger to herself or others. DCFS also reported that mother had enrolled in a nursing assistant training program. She had been trained and certified to care for Selenas g-tube.

On March 10, 2005, pursuant to stipulation of the attorneys, the juvenile court dismissed the section 342 petition. It found mother in partial compliance with her case plan. It terminated reunification services and set a section 366.26 permanent plan hearing.^[7] It also ordered DCFS to prepare a report on mothers progress in individual counseling and on the status of the conjoint counseling previously ordered. On April 22, after learning that conjoint counseling had not commenced, the court ordered conjoint counseling to being immediately.

DCFS reported that mother had begun individual counseling on March 25, 2005. She was doing well, and her counselor was willing to conduct conjoint counseling. DCFS expressed concern over the quality of mothers visits with the children and noted that the childrens foster parents reported that the childrens behavior was difficult for several days after visitation. Following a hearing, the juvenile court ordered DCFS to arrange and fund conjoint counseling with either mothers counselor or Selenas therapist.

In its June 2005 report for the section 366.26 hearing, DCFS reported that Selena had been diagnosed with multiple problems, including autism, ADHD, obsessive disorder and behavioral problems. She was taking numerous medications. Because she was now able to take them orally, she was being assessed for removal of her g-tube. David and William were also showing behavioral problems.

Mothers visits with the children were of fair quality, but Selena sometimes refused to visit with mother or exhibited behavioral problems at the visits. DCFS recommended legal guardianships be established for the children with their foster parents, although it urged the court to consider adoption as the permanent plan goal.

At the June 9, 2005 hearing, the juvenile court observed that the children appeared to be bonded to their foster parents. It expressed displeasure with DCFS over the failure to begin conjoint counseling and ordered that the counseling begin immediately. It continued the hearing for a supplemental report on the childrens special needs, the progress of conjoint counseling and a permanent plan recommendation.

On August 30, 2005, Selenas therapist reported that she had begun conducting conjoint counseling on June 20. The counseling sessions were progressing well, and the children had expressed their desire to return to mother.

At the August 30, 2005 hearing, mothers attorney indicated that she planned to file a section 388 petition. The court continued the hearing to October 13 to permit filing of the petition as well as additional conjoint counseling sessions and a determination as to whether the children could be returned to mother.

Mother filed her section 388 petition on October 6, 2005 seeking reinstatement of reunification services or return of the children to her custody. She claimed that she had complied with all of the juvenile courts orders, had obtained adequate housing and had an income. She further claimed it was in the childrens best interests to be returned to her, in that the therapist stated that the children had expressed a strong desire to return to her.

On October 13, 2005, the juvenile court proceeded with the section 366.26 hearing over mothers objection. Mother testified as to her visitation with the children, her awareness of their special needs and their desire to return home to her.

At the continued hearing on October 19, 2005, the court appointed legal guardians for the children, although the order of legal guardianship was stayed pending receipt of the necessary paperwork. It also ordered a continuation of conjoint counseling and visitation. It continued the matter for a contested hearing on mothers section 388 petition.

In November 2005, DCFS reported that the children had expressed a desire to remain with their foster parents. DCFS recommended denial of the section 388 petition. On November 7, 2005, the court filed the guardianship orders for David and William. It ordered visitation and continued the hearing.

On December 5, 2005, the court filed a guardianship order for Selena. The hearing was continued several times thereafter.

The contested hearing on mothers section 388 petition was held on March 13, 2006. Mother testified as to the progress of her individual counseling and the conjoint counseling, although she stated that she did not know why conjoint counseling stopped in December 2005. She testified that the children wanted to return to her, and she felt capable of caring for them. She stated that she had housing and a full-time job.

Mother acknowledged that she did not know what medications the children were taking and was unfamiliar with their schedules of medical and therapy appointments. She also acknowledged that she did not have a car. She recognized that the children were well-cared for by their foster parents and removing them from their foster homes would be disruptive.

The juvenile court denied mothers section 388 petition. It acknowledged that mother had made improvement in her life and had been stable since termination of reunification services. It felt that obtaining a job and a home were not necessarily changed circumstances. It explained that, in considering mothers section 388 petition, the primary concern was the childrens best interests. In claiming that it was in the childrens best interests to be returned to her, mother focused on herself and did not seem to recognize it would be disruptive to the children to remove them from the homes they had been in for the last few years. Love for the children and the ability to provide them with a home was not enough. Additionally, the court wanted to be sure that mother could maintain the improvements she had made.

The court also ordered DCFS to notify mother of the childrens medical and educational appointments and to resume conjoint therapy. The court noted that while it was not reunifying the children with mother, she remained their mother, and the court wanted to monitor her progress.

In its report for a May 24, 2006 hearing, DCFS noted that while mother continued to participate in individual counseling, conjoint therapy had not resumed; DCFS was not sure why. Mother perceived herself as a capable parent. She did not recognize the childrens mental health and other special needs or view those needs as a problem. DCFS recommended that the children remain dependents of the juvenile court and suitably placed.

At the hearing, the childrens attorney recommended termination of dependency jurisdiction as to David and William. The boys had been with their legal guardians for over two years. Their situation was stable. They were doing well, and neither the attorney nor her investigator had any concerns about them. Mothers attorney objected to termination of jurisdiction until the court-ordered resumption of conjoint counseling got going.

The juvenile court asked the DCFS attorney what would happen to the conjoint therapy order if it were to terminate jurisdiction. The attorney seemed to suggest the therapy could be ordered in conjunction with the boys legal guardianship. The court terminated jurisdiction as to the boys and ordered conjoint counseling between mother and David and William to continue.

DISCUSSION

Failure to Comply with ICWA

Mother raises a number of challenges to DCFSs compliance with ICWA. DCFS concedes that there were irregularities in the ICWA notices, specifically the failure to provide information on the childrens maternal grandparents and great-grandparents. Mother contends these irregularities require reversal of the juvenile courts orders denying her section 388 petition and terminating jurisdiction over David and William. DCFS asserts that reversal is not required but only a limited remand for compliance with ICWA.

In In re Brooke C. (2005) 127 Cal.App.4th 377, Division Two of this District noted the split of authority as to whether an ICWA violation constitutes jurisdictional error. (At p. 384.) The court agreed with the majority of the cases and concluded that an ICWA violation is not jurisdictional error, and the only order which would be subject to reversal for failure to give notice would be an order terminating parental rights. (Id. at p. 385.) We agree with Division Two and hold that the violation of ICWAs notice provisions here was not jurisdictional error. (Ibid.; but see In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.)

The failure to comply with ICWA here requires a limited remand to the juvenile court for [DCFS] to comply with the notice requirements of the ICWA, with directions to the juvenile court depending on the outcome of such notice. If, after proper notice is given under the ICWA, [Selena, David and William are] determined not to be [Indian children] and the ICWA does not apply, prior defective notice becomes harmless error. [Citation.] (In re Brooke C., supra, 127 Cal.App.4th at p. 385.) Reversal of the challenged orders due to defective notice is not automatically required. (Ibid.)

Denial of Mothers Section 388 Petition

Section 388 permits a party to petition the juvenile court to change its prior orders based upon a change of circumstances. (In re Amber M. (2002) 103 Cal.App.4th 681, 685; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The party seeking a change must demonstrate both that a change of circumstances exists and that the proposed change of court order is in the childs best interests. (Casey D., supra, at p. 47.) We review the courts rulings on the petitions for abuse of discretion. (Amber M., supra, at p. 685; Casey D., supra, at p. 47.) Discretion is abused when the courts ruling is arbitrary or capricious or exceeds the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Rarely does the denial of a section 388 petition require reversal. (Amber M., supra, at pp. 685-686.)

In denying mothers section 388 petition, the juvenile court found it in the childrens best interests not to have their lives disrupted by a return to mothers custody. Additionally, the court wanted to be sure mother could maintain the positive changes in her life and care for three children with special needs. In determining whether a proposed change is in the childs best interests, a primary consideration . . . is the goal of assuring stability and continuity. [Citation.] When custody continues over a significant period, the childs need for continuity and stability assumes an increasingly important role. [Citation.] That need often will dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child. [Citation.] Thus, one moving for a change of placement bears the burden of proof to show, by a preponderance of the evidence, that there is new evidence or that there are changed circumstances that may mean a change of placement is in the best interest of the child. [Citations.] (In re Angel B. (2002) 97 Cal.App.4th 454, 464.)

The court acknowledged that mother presented evidence of changed circumstances, i.e., she had a job and a home. This evidence was insufficient to establish that a change in the childrens placement was in their best interests. (In re Angel B., supra, 97 Cal.App.4th at pp. 464-465.) What was missing was evidence of mothers ability to provide the children with the care they needed. On this record, therefore, we cannot say that the courts denial of mothers petition constituted an abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at p. 318; In re Amber M., supra, 103 Cal.App.4th at pp. 685-686.)^[8]

Termination of Jurisdiction over David and William

Mother argues that the order terminating dependency jurisdiction over David and William must be reversed based on the failure of the DCFS to comply with ICWA and the juvenile courts erroneous denial of her section 388 petition. As stated above, we disagree that the ICWA violation mandates reversal of all subsequent orders. (In re Brooke C., supra, 127 Cal.App.4th at p. 385.) We also find no error in the denial of mothers petition. Mother therefore has shown no basis for reversing the order terminating jurisdiction over the boys.

DISPOSITION

The orders denying mothers section 388 petition and terminating dependency jurisdiction over David and William are vacated. The case is remanded with directions that the juvenile court order DCFS to comply with the notice provisions of ICWA. If no response to the ICWA notices is received, or if the response is negative, the juvenile court shall reinstate the orders. If the response is positive and the children are determined to be Indian children within the meaning of ICWA, then the juvenile court shall proceed accordingly.

NOT TO BE PUBLISHED

SPENCER, P. J.

We concur:

VOGEL, J.

ROTHSCHILD, J.

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^[1] Unless otherwise stated, all section references are to the Welfare and Institutions Code.

^[2] Father is not a party to this appeal.

^[3] Ten previous referrals were found to be either unsubstantiated or inconclusive.

^[4] Factitious means produced by human art, skill, or effort: not occurring or arising through unaided nature, or produced artificially or by special effort. (Websters Third New Internat. Dict. (1993) p. 813, col. 2.)

^[5] Section 370 provides that the juvenile court may order the social worker to obtain psychiatric or psychological services and charge the county for those services.

^[6] By this time, father no longer lived with mother and no longer communicated or visited with the children. He also failed to remain in contact with DCFS.

^[7] Mother did not file a petition for extraordinary writ (Cal. Rules of Court, rule 8.452) challenging the juvenile courts order.

^[8] The court did order that mother be notified of the childrens medical and educational appointments, so she could learn more about their needs and thus how to care for them, and that conjoint therapy resume, with the ultimate goal of reunification.