In re N.A.

Filed 6/21/07 In re N.A. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. David Cohn, Judge. Affirmed.

Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant, Jennifer P.

Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant, Daniel A.

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

Jacquelyn E. Gentry, under appointment by the Court of Appeal, for Minors.

Introduction

This juvenile dependency case concerns two very young children who were removed from parental custody because of their parents drug use and criminal activity. The juvenile court provided six months of reunification services and then terminated services and parental rights. The court also denied the mothers petition under Welfare and Institutions Code section 388.^[1] This appeal involves the following questions: whether the juvenile court erred in denying the mothers petition, and whether the court complied with the procedural requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.).

We conclude that substantial evidence supported the juvenile courts finding that the reinstatement of reunification services would not have been in the childrens best interests. As to the second question, we conclude that parents cannot demonstrate any prejudicial error under ICWA. We affirm the juvenile courts findings and orders.

Factual and Procedural History

Jennifer P. (mother) had four children, two of whom are the subjects of this appeal. At the time of their removal, L.A. was 14 months old and N.A. was one month old. At N.A.s birth, both mother and child tested positive for methamphetamine. N.A. was born six to seven weeks premature. During a home visit, the social worker observed that mother, who appeared to be under the influence, was inattentive to the needs of her children. About a month later, on July 29, 2005, mother was arrested on two different warrants. Mothers criminal record included being charged with domestic violence and being charged and arrested for being under the influence of a controlled substance. The social worker returned to the home and removed all four children.

On July 2, 2005, the San Bernardino County Department of Childrens Services (DCS) filed a petition under section 300, subdivisions (b) and (g). The petition included the following allegations: mother had a problem with substance abuse; mother failed to provide the children with adequate housing; mother was incarcerated leaving the children without provision, and fathers whereabouts were unknown. DCS later discovered that L.A. and N.A.s father, Daniel A. (father), was incarcerated at Tehachapi State Prison.^[2]

At the joint jurisdictional/dispositional hearing on November 15, 2005, the juvenile court found the allegations in the petition true as amended. The court struck the allegation concerning mothers incarceration. The court modified the allegation as to father to reflect his in-custody status. The court also ordered parents to participate in reunification services.

While the children were in foster care, one of the foster parents noticed that L.A. and N.A.s older brother, J.R., had a BB gun bullet lodged under the skin of his head below the hairline. Mother admitted that she shot J.R. accidentally. Mother was arrested for willfully harming and injuring a child under Penal Code section 273a. After pleading guilty, mother was sentenced to 12 months in jail.

On February 9, 2006, DCS filed a subsequent petition under section 342, adding an allegation under section 300, subdivision (j), for physical abuse. The court found the allegation true at the contested jurisdictional/dispositional hearing on the subsequent petition.

Both parents were incarcerated during the reunification period. While incarcerated, mother made efforts to enroll in parenting classes and a drug treatment program. Father also made efforts to take classes and participate in counseling. The social worker, however, had not received proof of their compliance with their case plans. The social worker recommended that the court extend reunification services for another six months.

At the six-month review hearing on May 9, 2006, the juvenile court considered the social workers report, but decided to terminate reunification services in N.A and L.A.s case. The court found that parents had made insufficient progress in their case plans. The court scheduled the selection and implementation hearing under section 366.26.

Father filed a writ petition, which was denied by this court. (Daniel A. v. San Bernardino Dept. of Childrens Services (Aug. 7, 2006, E040596) [nonpub. opn.].)

Mother filed a petition under section 388 for a change of placement. Mother claimed that she had participated in a parenting class, a drug program, and counseling. Mother was willing to enroll in an inpatient drug treatment program after her release from custody on September 24, 2006. Mother requested that the court reinstate reunification services and authorize additional visitation.

The juvenile court held a hearing on mothers petition on October 11, 2006. After hearing evidence and argument, the court denied the petition. The court found that additional reunification services would not have been in the childrens best interest. On the same date, the court also held the section 366.26 hearing. The court found that the children were likely to be adopted and terminated mother and fathers parental rights.

Discussion

A. Section 388 Petition

Mother claims the trial court erred in denying her petition for the reinstatement of reunification services.

While the dependency courts recognize a mothers interest in the care, custody, and companionship of her child, the courts also recognize the states compelling interest in protecting children and providing them with a stable and permanent home. (In re Richard C. (1998) 68 Cal.App.4th 1191, 1196.) After reunification efforts have been unsuccessful, the focus shifts to the childs needs for stability and permanency. (Ibid.)

Although section 388 affords an opportunity for the parent to prove changed circumstances, the parent bears the burden of showing both that there has been a change in circumstance and that the requested modification would promote the childs best interests. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446 (Aaliyah R.); In re Aaron R. (2005) 130 Cal.App.4th 697, 705.) In determining whether this showing has been made, the court may consider certain factors, including the problem leading to the childs removal, the reason the problem was not resolved, the passage of time since the childs removal, the relative strength of the bonds between the parent and child and the caretaker and child, and the nature of change of circumstance, and the reason the change was not made sooner. (Aaliyah R., supra, at pp. 446-447; see also In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-532.) The courts determination on a section 388 petition will not be disturbed absent an abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)

In this case, mother sought the reinstatement of reunification services based on her release from custody and her progress in completing the components of her reunification plan. While in custody, mother completed a parenting course and attended AA classes and group counseling.

At the hearing on mothers petition, the juvenile court recognized that there was some change in mothers circumstances as a result of her efforts while being incarcerated. The court, however, found that the change in circumstances was not material and that mother had failed to show that additional services would have been in the childrens best interests. Because substantial evidence supported the courts finding as to the childrens best interests, we conclude that mother has failed to satisfy her burden in seeking modification of the courts order under section 388.

The evidence showed that mother did not have a parent-child bond with the children. The children were in mothers care for a short period of time and, during that time, they were often neglected. When the social worker visited the home, she noted that mother left N.A. in an infant car seat, although her diaper was wet and her diaper area was red. Mother appeared apathetic and there was little interaction between her and the children.

Mothers drug use and criminal activity prevented her from forming a bond with the children. Both L.A. and N.A. tested positive for methamphetamine at birth. L.A. was about 14 months old when she was removed from mothers custody. N.A. was discharged from the hospital on June 21, 2005. She was removed from mothers custody on July 29, 2005. Because of her incarceration, mother was unable to visit the children during most of the reunification period. When mother was not incarcerated, the evidence showed that mother was inconsistent in attending the scheduled visits, sometimes because of a lack of transportation.

Although mother now seeks an opportunity to develop a bond with her children, the children have formed strong bonds with their foster mothers. The court found that it would be detrimental to remove them from their current stable placements. L.A. and N.A. have been residing in their current homes since June or July of 2005. Although they live in separate homes, they visit each other occasionally. The childrens best interests would be to allow them to remain in their current placements.

Moreover, although mother claims to have resolved her drug problem, the record shows that, at the time of the hearing on her petition, mother was out of custody for less than a month. Mother was willing to participate in further drug treatment, but the evidence fell far short of demonstrating an ability to remain drug free in an unstructured environment. Because of mothers unproven recovery and her lack of attachment to the children, the juvenile court reasonably decided not to disturb the childrens current placement. We conclude that the trial court did not abuse its discretion in denying mothers petition.

B. ICWA

Parents claim that the juvenile court failed to ensure compliance with the procedural requirements of ICWA. In particular, they argue that DCS or the court failed to conduct an adequate inquiry into fathers Indian heritage by having him complete form JV-130. They argue that the notice to the Bureau of Indian Affairs (BIA) was inadequate because it did not contain a copy of the section 300 petition and other available information. They also note that the juvenile court failed to make a finding as to ICWAs applicability.

To comply with ICWA, DCS must identify any potential affiliation with an Indian tribe and send notice by registered mail to the tribe or the BIA of the pending proceedings and its right to intervene. (25 U.S.C. 1912(a); see In re Jonathon S. (2005) 129 Cal.App.4th 334, 338; In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906.) The notice requirements are mandatory and cannot be waived by the parties. (In re Jennifer A. (2002) 103 Cal.App.4th 692, 707.) The burden lies with DPSS to present evidence of its compliance. (See In re Karla C. (2003) 113 Cal.App.4th 166, 178-179.)

At a hearing on September 2, 2005, when the court asked whether father had any Native American heritage in his family, father replied, [a] little and clarified, [l]ike not much. Not enough worth mentioning. Father was unable to give any specific tribal affiliation. He indicated that he would have to ask his mother. The court ordered DCS to provide notice to the BIA.

1. Adequate Inquiry

Parents first argue that DCS failed to make sufficient inquiry into fathers Indian heritage. Father specifically contends that DCS should have asked him to fill out form JV-130 to gather the information necessary for proper notice.

ICWA requires notice if the juvenile court knows or has reason to know that the case involves an Indian child. (25 U.S.C. 1912(a).) Although ICWA does not specify whether the court or DCS has an affirmative obligation to inquire as to whether the child has any Indian heritage, the state and federal rules include specific requirements. ICWA permits state and federal law to provide higher standards of protection. (In re S.B. (2005) 130 Cal.App.4th 1148, 1158.) In this context, the federal guidelines require that the court make an inquiry to determine whether the child or the childs parent is a member of an Indian tribe. (Ibid., citing Guidelines, B.5.a, 44 Fed.Reg. 67588 (Nov. 26, 1979).) Similarly, the state rules of court provide that the court and the county welfare department have an affirmative and continuing duty to inquire as to whether the child is an Indian child. (In re S.B., supra, at p. 1158, citing Cal. Rules of Court, rule 5.664(d) (formerly rule 1439(d)); In re Aaliyah G. (2003) 109 Cal.App.4th 939, 942.)

Furthermore, under California Rules of Court, rule 5.662(d)(3) (formerly 1439(d)(3)) the court must order the parents to complete form JV-130, Parental Notification of Indian Status, which affords an opportunity for the parent to notify the court concerning any Indian heritage and provide other relevant information for further investigation. (See In re. J.N. (2006) 138 Cal.App.4th 450, 461.)

While state and federal law may impose additional requirements, these requirements are not incorporated into ICWA. (In re S.B., supra, 130 Cal.App.4th at p. 1158.) Under ICWA, the requirement to send notice depends on whether the court had reason to know that the children were Indian children. In this case, father mentioned only that the children may have had a little Indian heritage, but [n]ot enough worth mentioning. Although fathers response was vague and speculative (see In re O.K. (2003) 106 Cal.App.4th 152, 157), the court found it sufficient to order DCS to give notice to the BIA (see In re Miguel E. (2004) 120 Cal.App.4th 521, 549).

Based on the state and federal rules, while parents may argue that fathers other comments suggested that the paternal grandmother may have had additional information about the childrens potential Indian heritage, father and his attorney did not provide any additional information at this particular hearing or at any other hearing. While the social worker and the trial court have a duty to inquire into the childs Indian ancestry, a parent has superior access to this information. (In re S.B., supra, 130 Cal.App.4th at p. 1160.) If such information existed, the parent or his attorney also would have an interest in bringing this information forward early in the proceedings. (Ibid.)

Furthermore, although DCS did not have father complete form JV-130, parents fail to show that the form would have produced additional useful information. (See In re S.B., supra, 130 Cal.App.4th at p. 1162.) The court asked father about his Indian heritage and father offered a vague reply. He provided no information concerning the childs family history or tribal affiliation. DCS also was not required to ask other relatives and family elders about the possibility of Indian heritage. (In re Gerardo A. (2004) 119 Cal.App.4th 988, 995.) While father was not ordered to complete form JV-130, as required under California Rules of Court, rule 5.662(d)(3), we conclude that parents have failed to demonstrate any prejudice where the record reveals that the court made a meaningful inquiry into the childs potential Indian heritage and the parents responses were insufficient to warrant further inquiry.

2. Adequate Notice

Parents next argue that the notice sent to the BIA was inadequate. The notice apparently did not include all the available information, including fathers date of birth and birthplace and paternal grandmothers name and date of birth. The notice also did not include a copy of the dependency petition.

According to the federal rules, ICWA notice must include the childs information, including date of birth and birthplace, and any information, if known, about the childs mother, father, grandparents, and great-grandparents. (25 C.F.R. 23.11(a) & (d) (2003); see In re Louis S. (2004) 117 Cal.App.4th 622, 630; In re D.T. (2003) 113 Cal.App.4th 1449, 1454.) The notice also must include a copy of the dependency petition. (25 C.F.R. 23.11(d) (2003); see In re Karla C. (2003) 113 Cal.App.4th 166, 175.) Notice under the ICWA must, of course, contain enough information to constitute meaningful notice. (Ibid.; In re S.M. (2004) 118 Cal.App.4th 1108, 1116.)

Despite fathers vague and speculative response, the court ordered DCS to give notice. DCS sent a Notice of Involuntary Child Custody Proceeding for an Indian Child to the BIA. The notice included the childrens names, birth dates, and birthplaces, the parents names and addresses, the paternal grandfathers name and address; and the paternal great-grandmothers name. As argued by parents, the notice did not include a copy of the petition and father and paternal grandmothers information. It is not clear from the record why the social worker included the paternal grandfathers information and not the name and information of the paternal grandmother. The notice also did not include a copy of the petition, but the petition did not contain any additional family information.

In any event, parents have failed to show that the lack of information in the notice resulted in any prejudicial error. As required under ICWA, DCS gave notice to the BIA of the pending dependency proceedings and its right to intervene. (25 U.S.C. 1912(a).) While DCS did not achieve technical compliance with the additional requirements in the federal rules (see In re C.D. (2003) 110 Cal.App.4th 214, 225-226), this is a case where substantial compliance was sufficient (see In re Christopher I. (2003) 106 Cal.App.4th 533, 566). Parents have not shown that the paternal grandmothers information was critical to determining whether the children in this case were Indian children. While DCS should exercise diligence and include all the available information in the ICWA notice, it would be putting form over substance to invalidate notices in cases where one or more pieces of information were omitted accidentally. Where the information was not essential, its omission cannot be the basis for invalidating the notice.

We conclude that the notice provided in this case satisfied ICWA and substantially complied with the federal rules.

3. Judicial Finding

Parents argue that the trial court erred in failing to make a finding as to ICWAs applicability.

The determination of ICWAs applicability is made exclusively by the tribe. (Cal. Rules of Court, rule 5.664(g).) If, however, the tribe or the BIA does not respond within a reasonable time after notice has been sent, the juvenile court may determine that ICWA does not apply, but this decision is not mandatory. (Cal. Rules of Court, rule 5.664(f)(6).)

In this case, the record shows that notice was sent to the BIA and the BIA did not respond. The lack of response by the BIA was tantamount to a determination that the children were not Indian children and that ICWA did not apply. (See Cal. Rules of Court, rule 5.664(g); In re Levi U. (2000) 78 Cal.App.4th 191, 542.)

Although ICWA does not require an express finding by the trial court, it stands to reason that the court should review the record and make a determination as to whether notice was given and whether it can proceed with the case without the additional requirements of ICWA. (Compare In re Jennifer A. (2002) 103 Cal.App.4th 692, 705 with In re Levi U., supra, 78 Cal.App.4th at p. 199.) This is particularly true when there is a dispute over the adequacy of the notice. The record in this case does not indicate that the court made a finding as to ICWAs applicability.

This does not, however, amount to reversible error. As stated above, DCS substantially complied with the notice requirement by informing the BIA of the dependency case and its right to intervene. Based on the return receipts and the lack of response, we can assume that the BIA received notice of the dependency and that it chose not to respond or intervene in the proceedings. Furthermore, because there was no other evidence in the record to suggest that this case involved Indian children, there was no basis for applying ICWA. Regardless of whether the court made a finding or not, the fact remains that ICWA does not apply. Under these circumstances, the lack of a judicial finding did not amount to a miscarriage of justice. (See Cal. Const., art. VI, 13.)

We conclude that parents have failed to establish any prejudicial error under ICWA.

Disposition

We affirm the juvenile courts findings and orders.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Ramirez

P.J.

We concur:

s/Hollenhorst

J.

s/King

J.

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^[1] All further statutory references will be to the Welfare and Institutions Code unless otherwise stated.

^[2] Mothers other two children have a different father, Vernon R., who also was incarcerated in Ohio.