In re S.K.

Filed 12/10/07 In re S.K. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the orders of the Superior Court of Los Angeles County, Sherri Sobel, Juvenile Court Referee. Affirmed.

Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Frank J. Da Vanzo, Principal Deputy County Counsel, for Plaintiff and Respondent.

Tammy N. (mother) appeals from the orders denying her petition under Welfare and Institutions Code section 388^[1]for return of S. K. (Tino) and M. D. (Mark) to her custody and terminating parental rights under section 366.26 to Tino, Mark, and I. S. (Jay). Mother contends the denial of her section 388 petition was an abuse of discretion and notice of the proceedings was not given as required by the Indian Child Welfare Act of 1978 (the ICWA) (92 Stat. 3069, 25 U.S.C. 1901-1963). We affirm.

FACTS AND PROCEDURAL BACKGROUND

Tino, born in 1993, Mark, born in 1997, and Jay (the children) and four of their siblings^[2]lived with mother and Agustin S., who was Jays father. Tino and Mark had special emotional needs; Jay had special medical needs. Agustin inflicted domestic violence on mother. Mother had a history of failing to maintain the home in a habitable condition, falling behind on her rent, and relying on funds from others to avoid eviction. In 2004, the children and siblings were removed by the Department of Children and Family Services (Department) until the home was habitable.

In 2005, the home was again unsanitary, foul-smelling, trash-filled, and roach-infested from months of neglect. Agustin assaulted a sibling causing an injury. The Department detained the children on August 7, 2005, and filed a petition under section 300. The dependency court awarded mother monitored visits at least twice per week, ordered that Agustin have no contact with the children, and ordered the Department to provide mother with reunification services.

On November 4, 2005, the children were declared dependents of the court based on sustained allegations under section 300, subdivisions (a) (substantial risk of serious physical harm inflicted nonaccidentally), (b) (substantial risk of serious physical harm due to failure to properly supervise), and (j) (sibling abuse). Custody of the children was taken from mother and reunification services were ordered. Mother was ordered to participate in parenting, individual counseling, and when appropriate, conjoint counseling with Tino and Mark. Tino and Mark were placed in the home of a nonrelative extended family member, Paris B., where they were joined at a later date by Jay.

Mother failed to reunify after 15 months of reunification services. She did not consistently maintain her home in a clean, sanitary, and uncluttered condition or maintain stable, appropriate housing. She took in strangers who abused drugs and alcohol. She manipulated the social worker and service providers with deceptions. She did not take parenting or individual counseling. Psychiatric medications were prescribed, but she discontinued them in May 2006 and never resumed. She allowed Agustin to live in the home. He mistreated the sibling he had previously injured and was involved in physical and verbal altercations with mother.

Visitation was irregular, infrequent, and substantially less than the dependency court awarded. Mother did not engage with the children during visits and never called them. Visitation was detrimental to the children, especially to Mark, who mutilated his arms after visits and underwent a psychiatric hospitalization. Visitation interfered with the placement in Pariss home by causing Tino and Mark to act out bad behaviors. Mother told the children when hearings dates were approaching and coached them to say they wanted to come home. Jay did not know mother and ran away from her during visits.

The children were assessed for permanency and found adoptable. Paris wanted to adopt them. Tino and Mark wanted to return home, but not if they would just have to be removed again. The social worker concluded: The children . . . cannot make suitable progress in behavior, development and education and [Mark] will not stop self-mutilating until they have a permanent home. It is not in the best interest of these children to hear [from mother] every time there is a hearing that they are going home. . . . [] . . . Mother has no record of being able to maintain a sanitary home, has not been truthful about her housing situation and about her pregnancy and is moving from place to place.

The 12-month review hearing was held. On November 9, 2006, at the conclusion of the hearing, the dependency court stated that although one might think from mothers testimony that all was going well, the court had presided over the case since its inception and knew that in reality things were otherwise: Moms moved again, one month ago. We have spent thousands and thousands and thousands of dollars to keep her in one bad place after another . . . . [] . . . [] At all times, her life has been one chaotic day after the next chaotic day. There is not one day in her life where she has been able, to this court, to get up in the morning, properly bathe, feed, and clothe her children, get them off to school without a problem, get them home from school without a problem, have them do their homework, have their dinner, and go to sleep without a problem. . . . [] . . . [] We have done everything we can to help her, and her response has been, its someone elses responsibility. Its not mine. I havent done anything wrong. [] . . . [] Day after day after day. Every one of these kids is special-needs. None of them are getting their needs met appropriately. . . . [] . . . [] Mom is not responsible for her children. The dependency court found that returning the children to mothers care would create a substantial risk of danger to their physical or emotional well-being, terminated family reunification services, and set the matter for a permanent plan hearing on March 8, 2007, under section 366.26 (referral orders).^[3]

Mark suffered from attention deficit hyperactivity and oppositional defiant disorders. He had an overwhelming fear rooted in the past, a posttraumatic stress disorder of a chronic nature. Tino suffered from depressive disorder with anxiety resulting in disruptive behavior, and he had a learning disability. Their conditions worsened after contact with mother. She would tell them they were coming home and was very hostile to Paris in their presence.

Mark and Tino had great difficulty coping with the uncertainty of not knowing whether they would be adopted or returned to mothers custody. Mark, who had been in three placements, need[ed] to begin to realize the safety and security of the home that he is in[.] Tino, who had been in two placements, became anxious when asked if he wanted to be adopted and stated he did not want to make the decision. He still has a connection with his family and would like to be with them. He also seems to be gaining a sense of security within his current home. He seems confused over what has occurred in his life. The children felt anxious as each date approached. They wanted the decision to be made for them and the case to end so they could move on with their lives.

At the recommendation of mental health experts working with the children, all visits with mother were suspended on January 25, 2007, because of the negative effect visitation was having on the children. In February 2007, it was learned that mother berated, belittled, and cursed the siblings in her custody. On March 8, 2007, by agreement of the parties, mother was granted two one-hour monitored visits per month with Tino and Mark only.

Mark acted up in school in March 2007 due to the stress of the upcoming section 366.26 hearing. Mother told the boys they should not be bad because her visits would be cut. Mother persisted in telling them Paris did not treat them right, they missed her, and she was fighting for them.

Paris had known the children since birth, was bonded to them, and intended to adopt them. She made efforts to ensure sibling visitation occurred, and she planned to continue the visits with siblings and mother after the adoption. Tino and Mark felt safe and well-cared for in Pariss home.

On April 20, 2007, the day of the section 366.26 hearing, mother filed a petition under section 388 asking the dependency court to return the children to her custody. She alleged the children would be better off in her custody, because Tino and Mark complained about living with Paris and wanted to live with mother. The Department and children opposed the petition. In support of the petition, mother declared she had completed a parenting class, participated in individual and group therapy, and lived in a three-bedroom house with three of the childrens siblings. She attached photographs taken of her home in January 2007, a certificate of completion of a parenting class issued December 5, 2006, a letter dated February 28, 2007, stating she completed ten sessions of individual therapy, and a letter dated October 3, 2006, stating she completed a group therapy program in October 2006. She recounted negative statements about Pariss home that Tino and Mark made in the past. She stated Paris told her on December 15, 2006, that there was a restraining order against Paris. Paris denied knowledge of any restraining order against her.

An investigation of the allegations of the section 388 petition revealed that mother did not participate in long-term counseling. Two siblings in her custody were sexually abused by their father, resulting in a voluntary contract, but mother did not comply with the contracts counseling requirements and permitted the abuser to live in the home. The home was found to be extremely cluttered when the social worker visited in March and April 2007. It had two bedrooms and another room that was unusable as a bedroom due to enormous clutter. Mother currently permitted non-family members to live in the home. Agustin still had access to the home and slept there. Jay thought mother was one of his sisters and had no bond with her.

At the combined sections 388 and 366.26 hearing, Tino testified Paris never refused to let him have contact with his family, and he wanted the contact to continue. He wanted to be adopted by Paris. Paris had reassured him she understood he would always love mother and, although mother might be angry with Paris, mother will get over it and Tino would still visit mother. Mark testified he wanted to be adopted by Paris. He was confident Paris would let him continue to have contact with his siblings and mother.

Mother testified the changed circumstances were that she had a three-bedroom home now, it was clean and uncluttered, and the children and their four siblings could fit into two of the bedrooms. She testified the home was clean because the siblings in her custody were keeping up with the cleaning as they were supposed to. The situation with the sibling who had been physically abused had improved because the sibling was taking more responsibility for his actions and was less angry. Mother had been living in her present house for seven months. Mother stated the children did not start having the problems they currently displayed until they were removed from her custody.

On April 23, 2007, mothers section 388 petition was denied and parental rights were terminated. Mother did not contest termination of parental rights to Jay. The dependency court stated: I must tell you that every time we have a trial on one of these kids--and we have had many, many, many trials--mother presents a new life situation to the court. Its all been changed. Its all a new life. Everythings better. The kids are better. [] Four of the children are home because they were so disturbed and moved around so much that this court felt that they were going to be on the street if I didnt find something for them and, at that point, mother had at least enough of a home so that the older kids could go home. [] We have eight kids; a bunch of fathers. My goodness, where do I go? [] [Mother] has never been able to provide stability to any of these children which is why the children are so close and have such needs to be together because they need to be watching out for each other. [] [Mother] is self-absorbed and manipulative. She will sabotage her children if it means getting what she wants. [] [There are no changed circumstances.] [] I think [mother] has been able, somehow or another, with the help of her mother--we use stop funds--Ive never had a case in the entire time Ive been doing this where I have made so many concessions to the family to try to keep these children safe; so many concessions to the mother to try to do something for her to get her children. We . . . have volume after volume in this case of the courts saying, well, lets try this. Okay? Lets try this. Were at volume five. Okay? She doesnt have to do this. Lets do this so she doesnt have to do this. Lets do this. [] And still there comes a point where the children determine for themselves what constitutes a safe home, what constitutes a family.

The issue for the court regarding the 388 is whether or not there are changed circumstances enough so that it would be in the best interest of the children to return them to their mother. [] The children have indicated their wishes regarding that as clearly as they probably can. [] In addition, just . . . a couple of months ago, the Department had to file to . . . stop the visitation with the mother because [Mark] was having so much trouble with the visitation that [his] therapist believed it was not in the childs best interest to continue seeing his mother at all. Now, that, I did not do. But at all. [] Do the children love each other? Yes. Has the mother changed circumstances enough so that I have anything from any therapist, anyone, any person whos done an evaluation? Anything that tells me that this mother can properly care for these eight children on a day-to-day basis with all of these special needs? No. [] So . . . I do not find that there are changed circumstances. I find that mom has a clean house. And, you know, Ive been taken to task before about this house business. The house is the tip of the iceberg. Its not the house thats the issue. Its the person in the house thats the issue. Maintaining a clean house for a couple of months does not alter the person. And Im happy that the mother has been able to maintain housing for a reasonable period of time. She has four kids at home that need it. [] So it is not in the best interest of the children based on their own testimony, and the [section] 388 is denied.

Concerning termination of parental rights to Tino and Mark, the dependency court said: What I am asked to do is determine whether the relationship they have with their mother or their siblings is such that it outweighs the need for permanency, keeping in mind that the family court has a mechanism by which the family can maintain post adoptive contact and . . . [Paris] has indicated she was willing to do that. [] I cannot see how anything else can serve permanency for these children but allowing the adoption. Why? Because I expect that [mother] will be here constantly, filing again and again and again regardless of the circumstances and regardless of what the children have said and regardless of . . . what the children want. Does . . . the relationship with the mother [outweigh the need for permanency]? No, I dont believe it [does]. [] [Tino and Mark] are clear as to their wishes. Going back and forth in front of their mother is not quite the same thing as saying in front of a judge, under oath, that they wish to be adopted. That takes enormous amounts of courage. Most children cannot do that.

The timely appeal orders denying the section 388 petition and terminating parental rights was filed on April 23, 2007.

DISCUSSION

1. Section 388 Petition

Mother contends the dependency court abused its discretion by denying her petition to return Tino and Mark to her custody. The contention is without merit.

Under section 388,^[4]if circumstances have changed such that it would be in the childs best interests for an order to be modified, the dependency court should modify the order. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526 & fn. 5.) Whether a previously made order should be modified rests within the dependency courts discretion, and its determination will not be disturbed on appeal unless an abuse of discretion is clearly established. (In re Michael B. (1992) 8 Cal.App.4th 1698, 1704.) Abuse of discretion is established if the determination is not supported by substantial evidence. (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 796.) The party requesting the change of order has the burden of proof. (Rule 5.570(h)(1); In re Michael B., supra, 8 Cal.App.4th at p. 1703.)

Once reunification efforts are terminated, the focus shifts from reunification to promoting the best interests of the child by obtaining permanency and stability for the child. (In re Marilyn H. (1993) 5 Cal.4th 295, 309; In re Zachary G. (1999) 77 Cal.App.4th 799, 808.) After reunification efforts have failed, it is not only important to seek an appropriate permanent solutionusually adoption when possibleit is also important to implement that solution reasonably promptly to minimize the time during which the child is in legal limbo. A child has a compelling right to a stable, permanent placement that allows a caretaker to make a full emotional commitment to the child. [Citation.] Courts should strive to give the child this stable, permanent placement, and this full emotional commitment, as promptly as reasonably possible . . . . [Citation.] (In re Zeth S. (2003) 31 Cal.4th 396, 413, fn. 10.) A hearing pursuant to section 366.26 to select and implement a permanent plan is to be heard within 120 days from the time it was set. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) While this may not seem a long period of time to an adult, it can be a lifetime to a young child. (Id. at p. 310.) [O]n the eve of the section 366.26 permanency planning hearing[,] the child[]s interest in stability [is] the courts foremost concern . . . . (In re Edward H. (1996) 43 Cal.App.4th 584, 594.)

Substantial evidence supports the finding that circumstances had not changed since reunification services were terminated on November 9, 2006, such that it would be in Tinos and Marks best interest to be returned to mothers custody. As of November 9, 2006, mother was not taking responsibility for the care of the siblings, did not have a record of maintaining a sanitary, safe home, manipulated Tino and Mark to their detriment, did not consistently visit or engage with the children during visits, and did not complete individual counseling or start conjoint counseling. The record contains substantial evidence these circumstances did not change. As of April 23, 2007, mother still had not completed counseling or started conjoint counseling. Her house was in a state of extreme clutter both in March and April 2007. She blamed the siblings for the disarray and the physical abuse Agustin inflicted, and she denied a role in Tinos and Marks behavioral and emotional problems. Visits were so detrimental to Tino and Mark that they were suspended from January 25, 2007, until March 8, 2007, and then restricted to two monitored hours per month. Mother continued to attempt manipulating the children. There was expert evidence that Tino and Mark desperately needed resolution of their status. By the time of the hearing on the section 388 petition, Tino and Mark had made up their minds they wanted to be adopted by Paris. Substantial evidence supports the denial of the section 388 petition. There was no abuse of discretion.

ICWA Notice

The ICWA was enacted to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs. (25 U.S.C. 1902.) To determine if the safeguards and standards of the ICWA apply, the dependency court must ascertain whether the child is an Indian child. (See 25 U.S.C. 1912(a).) Whenever the dependency court knows or has reason to know that an Indian child is involved, notice must be given to the tribe, and the tribes response will determine if the child is an Indian child. (25 U.S.C. 1912(a); In re Jose C. (2007) 155 Cal.App.4th 844, 848.)

At the detention hearing on August 10, 2005, maternal grandmother stated her family had Blackfeet, Sioux, and Cherokee heritage: the maternal great, great grandmother was Sioux; the maternal great, great grandfather was Blackfeet; and the maternal great, great, great grandmother was Cherokee. Maternal grandmother did not identify which of the multiple, federally-recognized Sioux tribes and Cherokee tribes the family had Indian heritage in. The Department sent notice of the proceedings to the Blackfeet tribe and 19 Sioux and Cherokee tribes, as well as to the Secretary of the Interior and the Bureau of Indian Affairs in Sacramento (BIA). The Blackfeet tribe and six other tribes replied that the children had no affiliation with the tribe, and no response was received indicating the children were Indian children. The BIA did not respond. At the dispositional hearing on November 3, 2005, the dependency court ruled without objection that notice had been given, none of the children were Indian children within the meaning of the ICWA, and the ICWA did not apply.

Mother contends the order on April 23, 2007, terminating parental rights, should be reversed because the dependency court erred in ruling that the ICWA did not apply. Mother argues the ICWA ruling is incorrect because notice of the proceedings was not given as required by the ICWA in that it was not correctly addressed to the then-currently designated agents^[5]of the 13 non-responding Cherokee and Sioux tribes. Mother does not challenge the notice to the Secretary of the Interior or the BIA. As notice to the BIA satisfied the notice requirement of the ICWA, the dependency court did not err in finding that the ICWA did not apply.

Title 25 of the United States Code section 1912(a) provides in pertinent part: If the identity or location of . . . the tribe cannot be determined, such notice shall be given to the Secretary [of the Interior]. For dependency proceedings in California, the Secretary of the Interior is served by service on the BIA in Sacramento. (25 C.F.R. 23.11(b), 23.11(c)(12).) The lack of a response from the BIA or communication from any tribe is tantamount to determinations that the minor [is] not an Indian child within the meaning of the Act. (In re Levi U. (2000) 78 Cal.App.4th 191, 194, 198-199)

Under California law at the time the ICWA ruling was made,^[6]if the child welfare agency could not determine the identity of the tribe in which Indian heritage was claimed, service of notice on the Secretary of the Interior was sufficient under the ICWA. (In re C.D. (2003) 110 Cal.App.4th 214, 219, 226-227; In re Suzanna L. (2002) 104 Cal.App.4th 223, 232; In re Edward H. (2002) 100 Cal.App.4th 1, 4-6; In re Levi U., supra, 78 Cal.App.4th at pp. 198-199.) Thus, for example, in the case of multiple federally-recognized Cherokee tribes, if a family member claimed Cherokee heritage but did not identify the specific Cherokee tribe, the notice requirement of the ICWA was satisfied by notice to the BIA. (In re C.D., supra 110 Cal.App.4th at p. 227 [Because [the Department] did not know which specific Cherokee Tribe the children might belong to, and it gave notice of the proceedings to the BIA, we conclude [the Department] complied with the notice requirements of the ICWA]; In re Edward H., supra, 100 Cal.App.4th at pp. 4-6.) [P]roper notice to some but not all possible tribes in which a dependent child may be eligible for membership does not violate the ICWA provided the agency also gives notice pursuant to [title] 25 [of the] United States Code section 1912 to the [BIA]. [Citation.] [Title 25 of the] United States Code section 1912 specifically authorizes service of notice upon the Secretary of the Interior when the agency cannot determine the identity or location of the tribe. (In re C.D., supra, 110 Cal.App.4th at p. 227.) Here, as the Department could not determine which of the multiple Cherokee and Sioux tribes heritage was claimed in, notice to the BIA in Sacramento satisfied the ICWA.

None of the cases cited by mother support her contention that, prior to 2007, notice to the BIA did not satisfy the ICWA when it was uncertain which Cherokee tribe, for example, heritage was claimed in. The issue was not addressed in Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, In re Gerardo A. (2004) 119 Cal.App.4th 988, In re Miguel E. (2004) 120 Cal.App.4th 521, or In re L.B. (2003) 110 Cal.App.4th 1420. It is axiomatic that cases are not authority for propositions not considered. [Citation.] (People v. Avila (2006) 38 Cal.4th 491, 566.) In In re J.T. (2007) 154 Cal.App.4th 987, 990-994, the ICWA ruling at issue was made after January 1, 2007, and the court applied newly enacted section 224.2, subdivision (a).

We do not need to decide whether the application of section 224.2 to the facts of this case would yield a different conclusion than the one we reach, as the ICWA ruling was made prior to the enactment of the statute. (See In re J.T., supra, 154 Cal.App.4th at pp. 991-992 [section 224.2 applied because the ICWA ruling was made after the effective date of the statute].) The ICWA ruling in this case was correct under the law in effect at the time it was made in 2005. In the absence of legislative intent to apply section 224.2 retroactively, the statute has prospective application and is only effective as to rulings made after its effective date. (See Stenger v. Anderson (1967) 66 Cal.2d 970, 977, fn. 13 [amendment to Welfare and Institutions Code not retroactive unless expressly made so by the Legislature]; Collins v. Woods (1984) 158 Cal.App.3d 439, 445 [amendment to the Welfare and Institutions Code is prospective only, as the Legislature did not clearly intend retroactive application].)

DISPOSITION

The orders are affirmed.

KRIEGLER, J.

We concur:

TURNER, P. J.

MOSK, J.

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^[1] Hereinafter, all statutory references are to the Welfare and Institutions Code unless otherwise specified. All references to rules will refer to the California Rules of Court unless otherwise specified.

^[2] The siblings were born in 1991, 1992, 1995, and 2002. Mother also had two adult children. In September 2006, mother gave birth to a tenth child.

^[3] Mother petitioned for extraordinary writ review of the referral orders (rule 8.452 [formerly rule 38.1]), contending substantial evidence did not support the referral orders. Finding the contentions had no merit, we denied the petition. (Tammy K. v. Superior Court (Feb. 20, 2007, B195087).)

^[4] Section 388 provides in pertinent part that a parent may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made . . . . [] . . . [] If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . .

^[5] From time to time, the BIA publishes a list of the names and addresses of the tribal agents designated to receive service of process. (In re H. A. (2002) 103 Cal.App.4th 1206, 1213.)

^[6] Effective January 1, 2007, section 224 et seq. were added to the Welfare and Institutions Code concerning Indian child custody proceedings. Pursuant to section 224.2, subdivision (a): (3) Notice [in an Indian child custody proceeding] shall be sent to all tribes of which the child may be a member or eligible for membership, until the court makes a determination as to which tribe is the childs tribe in accordance with subdivision (d) of Section 224.1, after which notice need only be sent to the tribe determined to be the Indian childs tribe. [] (4)  Notice, to the extent required by federal law, shall be sent to the Secretary of the Interiors designated agent, the Sacramento Area Director, Bureau of Indian Affairs. . . .