In re Maxwell S.

Filed 6/19/07 In re Maxwell S. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. James C. McGuire, Judge. Affirmed.

Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, Acting County Counsel, and Jacqueline Carey-Wilson, Deputy County Counsel, for Plaintiff and Respondent.

Konrad S. Lee, under appointment by the Court of Appeal, for Minors.

In this juvenile dependency appeal, David S. (father) challenges an order summarily denying his petition, under Welfare and Institutions Code^[1]section 388, to modify a prior court order establishing a legal guardianship over his children, Jazmine (born September 1995), Jennifer (born February 1997), and Maxwell (born September 1998). He also argues reversal of the guardianship order is required for noncompliance with the Indian Child Welfare Act (ICWA). Upon review, we find no abuse by the juvenile court in denying fathers petition without affording him a hearing. As for fathers ICWA claim, we agree that the San Bernardino Department of Childrens Services (DCS) failed to comply with the ICWAs notice requirements. However, because the time to appeal has passed and we therefore lack jurisdiction to review the guardianship order, we are not in a position to provide any effectual relief, although father may choose to assert his position in the juvenile court.

FACTUAL AND PROCEDURAL BACKGROUND

A juvenile dependency petition filed in October 2001 alleged that Maxwell, then three years of age, had been physically abused by his parents in that they had burned him with cigarettes and cigarette lighters; that Jennifer, then four, had rotten teeth filled with cavities; and that Maxwell, Jennifer, and their six-year-old sister, Jazmine, were living in unfit conditions and had been infested with lice. The petition also alleged that the childrens mother, Elizabeth S., and father both abused controlled substances.

At the jurisdictional hearing in early December, the children were declared dependents of the court. Elizabeth S. appeared at the hearing, and the court ordered her to participate in reunification services; father did not appear.

In March 2002, the children were removed from the home of their paternal grandmother, where they had been residing since being removed from their parents, amidst allegations their grandmother was not attending to their needs and they had been abused by her live-in boyfriend. A section 387 petition was filed and the children were placed in foster care. At a hearing in April, the court sustained the allegations of the section 387 petition and ordered that the children remain in foster care. In her report for that hearing, the social worker stated she had learned from Elizabeth S. that the children were half Apache from the fathers side of the family. A month later, the childrens paternal grandmother informed the social worker that the paternal grandfather, now deceased, was an Apache Indian. Upon that representation, DCS determined that the ICWA does or may apply and reportedly sent a referral to the Bureau of Indian Affairs (BIA).

At the six-month hearing in July 2002, father appeared in court for the first time. He was granted supervised visitation and ordered to participate in reunification services. In September, the children were removed from their foster home after Jazmine reported that the foster mother smacked her when she wet her bed. The children were then placed with their maternal aunt, Catrina F., and her husband.

A 12-month review hearing was held in January 2003. The social workers report indicated that the ICWA did not apply, with no further word as to what had transpired since the prior report. The report further disclosed that father was in compliance with his service plan and had consistently and regularly made efforts to visit with the children. The report further stated that [on] the occasion that [father] missed a visit, the children became upset and began crying at the realization that he was not coming. The court gave DCS discretion to liberalize fathers visits with the children and found that both parents had made progress towards alleviating or mitigating the causes necessitating the childrens out-of-home placement. At this time, father was living with Dee Dee S. and their six-month-old son, David, Jr., in a bedroom he had rented from a cousin.

By the time of the 18-month review hearing in July, the social worker had determined that although the childrens parents had made progress, neither was quite ready to resume the role of parent. The social worker was confident, however, that with more time, the parents would achieve that goal: It is the assessment of the undersigned that despite their individual success and personal growth, neither [father] nor [mother] has progressed to the point of being completely able to adequately provide for, and meet the needs of, their children for a safe and stable home. Both parents have grown in their maturity and improved in their ability to accept responsibility for their lifestyle choices. Both are making individual efforts to establish themselves in the employment arena and are living free from substance abuse behaviors for what may be the first time in their adult lives. With a continued commitment and desire for success, it is likely that the parents can develop themselves to the point of appropriate stability. [The parents] are both proud of their accomplishments to this point, and would be pleased to have additional time for services to be provided. However, they are both cognizant of the fact that they were somewhat delinquent in their initial efforts and have not reached the point of being fully prepared to reunify with their children within the given timeframe. Both parents have acknowledged their shortcomings in regards to their reunification efforts and have stated the fact that they feel comfortable with the [F.s] as caretakers for their children.

The report continued: Given the above information, there remains a clear detriment to returning the children to the care and custody of either parent based upon their inability to provide safe and adequate housing. In addition, there is no foreseeable prognosis that would indicate the timeframe in which the children could be safely returned. The social worker recommended a permanent plan of legal guardianship. Accordingly, the court terminated services and scheduled a permanency hearing.

The permanency hearing proceeded as scheduled on September 19, 2003. Finding that the parents had maintained regular visitation and contact with the children, that the children would benefit from continuing that relationship, that termination of parental rights would be detrimental to the children, and that the children were living with a relative who was unable or unwilling to adopt because of exceptional circumstances, but were willing and able to provide the children with a stable and permanent home, the court appointed the maternal aunt and uncle as legal guardians. The court provided for the parents to have reasonable visitation with the children, to be arranged by the guardians.

Two and one-half years later, father sought modification of the guardianship order by means of a section 388 petition. Utilizing form JV-180 (Request to Change Court Order) he alleged, in essence, that he was living in a four-bedroom house with four small children he was then raising; he had completed classes in parenting, anger management and domestic violence; and he had tested clean for three years. He wanted the children placed with him so that he could care for them and be the best father possible. He believed it would be best for the children to live with him so that they could grow up with their siblings. A hearing was scheduled for February 24, 2006.

On the scheduled date, before the hearing got under way, the court proclaimed, I should never have set this. Theres no change of circumstance. A moment or two later, directing its comment to father, the court said it had made a legal error. I didnt read it well enough. There are no change of circumstances in this petition. and I am not allowed to set things unless I can find theres a change, and there isnt. In response to fathers assertion, theres a lot of changes actually, the court stated: Well, change in your life but no change that affects the custody of the children. Thats where I was wrong. In response to an inquiry as to what needed to be done to rectify the situation, the court suggested that father talk to a lawyer and file a corrected petition. Thus, the court denied the petition, finding there has been no change in circumstances to grant relief requested in 388 petition that would be in the minors [sic] best interest.

Counsel for the children promptly reminded the court that at the time the guardianship was established, [t]he only reason the children couldnt be returned was because the parents lacked employment and a house, to which no one present voiced any objection or took any exception. In fact, the childrens mother remarked, Thats exactly right, and that is what has changed, whereupon the court said, If you file a petition, Ill hear it.

On April 24, 2006, father filed a renewed petition. Again utilizing form JV-180, he alleged as changed circumstances the fact he had completed his reunification services and was residing in a home with four bedrooms and two bathrooms. He submitted certificates of achievement indicating his completion in December 2004 of a 16-week course in anger management and in October 2004 of a parenting class. He also submitted a letter dated December 21, 2004, indicating that his son David, Jr., who had previously been in foster care, had been returned to his care on December 21, 2004. Further, he submitted a copy of an undated residential lease indicating that an apartment had been leased to Dee Dee S., the mother of David, Jr., for occupancy by two adults and four children. He asked that the court order his children returned to him under a plan of family maintenance or, alternatively, that the court reinstate reunification services. Finally, he alleged that the requested change would benefit his children in that he had maintained consistent contact with them, they had visited his home for extended periods of time including unsupervised and overnight visits, and his children had expressed a desire to come home.

The court denied the petition that same day, finding that the request does not show how it will be in the best interest of the child.

DISCUSSION

A. The juvenile court acted within its discretion in denying fathers section 388 petition without affording him a hearing.

Under section 388, a parent may petition the court to change, modify, or set aside a previous court order on the grounds of changed circumstances or new evidence. ( 388, subd. (a).) The petition must allege why the requested change is in the best interest of the dependent child. ( 388, subd. (b).) If it appears the best interests of the child may be promoted by the proposed change or order, the court is required to hold a hearing on the petition. ( 388, subd. (c).)

A petition under section 388 plays a particularly important role in juvenile dependency cases, because it is the mechanism by which the changing conditions of a family and a childs life may be taken into account. [Citation.] (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1260, disapproved on another ground by In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) Such a petition must be liberally construed in favor of its sufficiency. [Citation.] Thus, if the petition presents any evidence that a hearing would promote the best interests of the child, the court must order the hearing. [Citation.] The court may deny the application ex parte only if the petition fails to state a change of circumstance or new evidence that even might require a change of order or termination of jurisdiction. [Citations.] (In re Angel B. (2002) 97 Cal.App.4th 454, 461 (Angel B.).) A parent is not required to establish a probability of prevailing on [the] petition (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414), but rather need only make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.] (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) A determination as to whether a parent has made a prima facie showing entitling him or her to a hearing depends upon the facts alleged in the petition, as well as the facts established as without dispute by the courts own file . . . .  (Angel B., at p. 461.)

Following a prima facie showing, failure to provide a full and fair hearing on the merits of a section 388 petition violates the petitioning partys procedural due process rights. (In re Jeremy W., supra, 3 Cal.App.4th at p. 1416.) We review denial of a section 388 hearing for abuse of discretion. (In re Zachary G. (1999) 77 Cal.App.4th 799, 808.)

In summarily denying fathers request, the court found that his petition failed to show how a modification of the prior order would serve the childrens best interests. Applying the principles set forth above, we discern no abuse.

While we cannot ignore the reality that DCS, in urging us to affirm the juvenile courts order, relies almost exclusively on past events and circumstances which occurred as many as four years earlier and were stale at best, the fact remains that father failed to make the prima facie showing necessary to warrant a hearing. His petition alleged that he was living in a house with four bedrooms and two bathrooms. He was confident that the requested change would be in his childrens best interests in that he had maintained consistent contact with them, they had visited his home for extended periods, including unsupervised and overnight visits, and they had told him that they want to come home. As we now explain, these allegations were not enough.

In July 2003, at the time reunification services were terminated, the status review report indicated that father, who at that time had been employed for two months through a temporary agency and was renting a room in a private residence for himself, Dee Dee S., and their infant son, was aware that his current situation regarding unstable residence and employment impacted his desire to reunify with his three children. Thus, the social worker opined there remains a clear detriment to returning the children to the care and custody of either parent based upon their inability to provide safe and adequate housing. On that basis, a permanent plan of legal guardianship was recommended and implemented.

In February 2006, after the court retracted its decision to grant a hearing on fathers first section 388 petition, minors counsel informed the court that the reason for placing the children in a guardianship rather than returning them to either parent was that the parents lacked employment and a house.^[2] The court then expressly told father that if he filed a corrected petition, it would hold a hearing.

Two months later, father filed another petition. This time he alleged that he was living in a four-bedroom home with Dee Dee S., their son, David, and her three children. Nothing, however, was said about father being gainfully employed. Moreover, DCS raises legitimate concerns that the undated lease appended to the petition was not in fathers name, but rather was in the name of Dee Dee S. Indeed, the juvenile court could well have concluded that even if it was true that father was then able to provide safe and adequate housing for his children, there was no assurance that he himself was financially capable of maintaining these arrangements for any appreciable period of time. While father was not required to demonstrate that he would prevail on his petition, but rather, only to present evidence that a hearing may promote the childrens best interests (Angel B., supra, 97 Cal.App.4th at p. 461), by failing to present sufficient evidence of this nature, he fell short of his burden. Accordingly, we cannot say the court abused its discretion in determining that, even if everything alleged in the petition turned out to be true, father had not demonstrated that returning the children to his custody would serve their best interests.

B. Although DCS failed to comply with the ICWAs notice requirements, fathers remedy is a motion in the juvenile court..

We turn now to fathers contention that DCS failed to comply with the ICWAs notice requirements and that the number and magnitude of the violations are striking. Before addressing fathers claims, however, we address DCSs position that, by reason of fathers failure to appeal from the order appointing legal guardians for his children, he is precluded from now asserting noncompliance.

Citing this courts opinion in In re Jonathan S. (2005) 129 Cal.App.4th 334, 340 (Jonathan S.), DCS contends the juvenile courts appointment of the childrens aunt and uncle as guardians is res judicata, and that father may not appeal the appointment in his appeal from the denial of his section 388 petition. Indeed, Jonathan S. stands for the proposition that ICWA error only invalidates the judgment being appealed, and does not invalidate prior orders in which ICWA notice error could have been, but was not raised on appeal. (Jonathan S., at pp. 340-341.) However, while DCS is correct that we lack appellate jurisdiction to invalidate the guardianship order in this appeal, the fact remains that father has not forfeited his ability to contest DCSs noncompliance with the ICWA.

As Division Three of this court articulated in In re Nikki R. (2003) 106 Cal.App.4th 844, 849: Case law is clear that the issue of ICWA notice is not waived by the parents failure to first raise it in the trial court. [Citation.] And two recent cases have concluded it is not waived by the parents failure to appeal the claimed error at the earliest opportunity. [Citations.] Finding the reasoning of Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 261 and In re Marinna J. (2001) 90 Cal.App.4th 731, 739 to be persuasive, the Nikki R. court stated: The notice requirement is designed to protect the interests of the tribe; to the extent a notice defect impairs the tribes ability to participate, another party cannot waive it. (In re Nikki R., supra, 106 Cal.App.4th at p. 849) Ascribing to the same rationale, we conclude the issue has not been waived and thus proceed to the merits of fathers claim.

The purpose of the ICWA is, of course, to protect the best interests of Indian children and to promote the stability and security of Indian tribes and Families. (25 U.S.C. 1902; In re Karla C. (2003) 113 Cal.App.4th 166, 173-174.) The ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource. (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) The provisions of the ICWA, which are said to be the highest standard of protection for Indian children, apply to juvenile dependency proceedings in this state. (In re Junious M. (1983) 144 Cal.App.3d 786, 796.)

Among other things, the ICWA requires proper notice before the juvenile court may place an Indian child in a foster home or under a legal guardianship. Where the court knows or has reason to know that an Indian child is involved, the agency is required to notify the childs Indian tribe, or if the tribe is unknown, the Bureau of Indian Affairs (BIA), of the pending proceedings and the tribes right to intervene. (25 U.S.C. 1912(a); In re Samuel P. (2002) 99 Cal.App.4th 1259, 1265.) The Indian status of the child need not be certain in order to trigger the notice requirement. (In re Jonathan D. (2001) 92 Cal.App.4th 105, 110.) In all such circumstances, the court must seek verification of the childs status from either the childs tribe or the BIA. Whether the minor actually is an Indian child is an issue for one or the other of those entities to determine. (In re Junious M.,supra, 144 Cal.App.3d at pp. 792, 794.)

The courts of this state have declared this notice requirement to be a key component of the ICWA. The purposes of the ICWA cannot be fulfilled unless proper notice is given to either the identified Indian tribe or the BIA. (In re C.D. (2003) 110 Cal.App.4th 214, 224.) Notice, as prescribed by the ICWA, ensures that the tribe will be afforded the opportunity to assert its rights under the Act irrespective of the position of the parents, Indian custodian or state agencies. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) Furthermore, the ICWA unequivocally requires that notice to the Indian childs tribe include both actual notice of the juvenile dependency proceedings, and notice to the tribe of its right to intervene. (Id. at p. 1422.) A tribes mere awareness of the existence of a dependency proceeding is not sufficient notice under the ICWA. (Ibid.) Because the failure to give proper notice forecloses participation by interested Indian tribes, ICWA notice requirements are strictly construed and strict compliance is required. (In re Desiree F., supra, 83 Cal.App.4th at pp. 474-475.)

Moreover, [n]otice is meaningless if no information or insufficient information is presented to the tribe to make that determination. [Citation.] (In re Louis S. (2004) 117 Cal.App.4th 622, 630.) The notice must include all required information, including the childs name, date of birth, and place of birth; the names and addresses of the childs parents, grandparents, and great-grandparents, along with dates of birth or death and/or other identifying information. A copy of the dependency petition must also be provided. (Ibid.) It is the agencys responsibility to obtain as much information as possible about the childs potential Indian background and to provide that information to the relevant tribe or, if the name of the tribe is not known, to the BIA. (Ibid.) Failure to provide notice in a manner consistent with the ICWA mandates reversal. (Adoption of Lindsay C. (1991) 229 Cal.App.3d 404, 416; In re Junious M., supra, 144 Cal.App.3d at p. 796.)

The ICWA confers on tribes the right to make the conclusive determination if the child is an Indian child, and the right to intervene at any point in state court dependency proceedings. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253.) However, the tribes right to intervene in the proceedings is meaningless if the tribe has not received notice of the pending action. (Ibid.)

Rule 5.664(d) of the California Rules of Court^[3]provides that the court and the agency have an affirmative and continuing duty to inquire whether a child . . . is or may be an Indian child. Rule 5.664(e)(3) states, if . . . the court has reason to know the child may be an Indian child, the court must proceed as if the child were an Indian child . . . .  Rule 5.664(d)(4)(A) further provides that the court has reason to know the child may be an Indian child if, among other things, [a] person having an interest in the child . . . informs the court or the . . . welfare agency . . . or provides information suggesting that the child is an Indian child.

The record in the present case discloses that in April 2002, DCS was informed by Elizabeth S. that the children were half Apache from the fathers side of the family. The following month, the social worker reported that the ICWA does or may apply, a determination which was apparently based in part upon information received from the childrens paternal grandmother. The social worker further indicated that she had asked the grandmother to look into her deceased husbands documents regarding what organization he was registered with to allow [the social worker] to verify if ICWA applies to the children. Finally, the social worker wrote that on May 16, 2002, she filled out ICWA paperwork and mailed it out.

In her July 2002 report, a different social worker again wrote that the ICWA does or may apply. [] . . . [] . . . Referral sent to Bureau of Indian Affairs on May 16, 2002 . . . . The Bureau has not responded as to the children falling under ICWA. However, the only notice document appearing in the record is one entitled Request for Confirmation of Childs Status as Indian, sent to the BIA, which father maintains was insufficient to satisfy the notice requirements of the ICWA. We agree.^[4]

As father asserts in his brief: The ICWA notice violations in this case are almost too numerous to mention. DCS did not send out the mandatory SOC 319 form. DCS did not send out forms for each of the three children. DCS did not send forms to any Apache Indian tribes. DCS did not file a proof of service for the SOC 318 form it did send to the BIA. There is no indication in the record that DCS attached a copy of the dependency petition to the SOC 318 form it sent to the BIA. The information set forth in the SOC 318 form regarding the birth date of the childrens paternal grandfather, David S., was

even contradicted by its own report. . . . DCS did not file the response if any it received from the BIA with the juvenile court. Finally, without any apparent justification and no ruling by the juvenile court on the matter, DCS determined that ICWA did not apply and the matter was apparently forgotten.

In light of the foregoingand the fact that DCS does not dispute fathers contentions, but rather, asserts only that this court lacks jurisdiction to grant father the relief he seekswe have no doubt that DCS failed to comply with the ICWAs notice

requirements. However, as we have already said, DCS is correct in its assertion that this court lacks jurisdiction to alter the order establishing legal guardianship as a permanent

plan for the children. (In re Jonathan S., supra, 129 Cal.App.4th 334.)

Nonetheless, inasmuch as there has been no forfeiture of the ability to contest DCSs noncompliance with the ICWA, it follows that the juvenile court has continuing jurisdiction to entertain a request by father for an order directing DCS to comply with the ICWAs notice requirements. In the event father seeks and obtains such an order, and a tribe thereafter shows an interest in the children, appropriate action may be taken pursuant to rule 5.664(n) to invalidate the guardianship order as provided in 25 U.S.C. section 1914.

DISPOSITION

The order denying fathers petition under section 388 without a hearing is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ McKINSTER

Acting P. J.

/s/ RICHLI

J.

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

^[2]Although minors counsel referred to employment and housing, we note that the social workers report prepared in July 2003 expressly stated, there remains a clear detriment to returning the children to the care and custody of either parent based upon their inability to provide safe and adequate housing. And while the social worker also noted that both parents were making individual efforts to establish themselves in the employment arena and [were] living free from substance abuse behaviors for what may [have been] the first time in their adult lives, the emphasis was on the lack of safe and adequate housing.

^[3] All further rule references will be to the California Rules of Court unless otherwise indicated.

^[4] Incidentally, forms SOC 318 and SOC 319 have been superseded by the SOC 820 (, as of Jan. 26, 2005), which in turn has been superseded by Judicial Council form JV-135. (, as of Jan. 26, 2005.)