In re M.M.
Filed 9/10/07 In re M.M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
In re M.M., a Person Coming Under the Juvenile Court Law. | |
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. VERONICA G., Defendant and Appellant. | E041083 (Super.Ct.No. J89964) OPINION |
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed with directions.
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Jennifer Mack, under appointment by the Court of Appeal, for Minor.
1. Introduction[1]
Mothers appeal challenges the juvenile courts order removing her daughter, M., from a paternal aunt and changing her placement to a prospective adoptive home. Mother also raises the issue of inadequate ICWA notice (Indian Child Welfare Act, 25 U.S.C., 1901 et seq.), which respondent concedes. We affirm with directions to comply with ICWA.
2. Factual and Procedural Background
Immediately after the birth of M. in January 2005, the Riverside County Department of Public Social Services (DPSS) filed an original juvenile dependency petition, alleging failure to protect and abuse of a sibling ( 300, subds. (b) and (j)) because of mothers failure to reunify with a half-sibling in 2004; mothers drug use during pregnancy with fathers knowledge; parents criminal histories; and fathers drug use.
The baby had been born prematurely, weighing only two and one-half pounds. Mother had previously lost custody of three other children. She was diagnosed with schizophrenia. Her drug use dated back to 1997. Mother had tested positive for cocaine. Mother was hostile, uncooperative, and belligerent.
The detention report commented that the ICWA does or may apply based on fathers information that his mother could be one-eighth Blackfoot. Certified letters were mailed to the Secretary of the Department of the Interior, the Bureau of Indian Affairs, and the Blackfoot Tribe of Montana.
At the detention hearing, the court found father to be the presumed father.[2] He completed the paternity inquiry form indicating he was Cherokee.
An amended dependency petition added allegations that father had not benefited from receiving family maintenance services in 2000 and he was presently incarcerated. ( 300, subds. (b) and (g).) The jurisdiction report identified two more of fathers children who were under the dependency courts jurisdiction, as well as four others in dependency in 2000 and at least two more. Fathers release date was in April 2005.
At the contested jurisdictional hearing, the court inquired about fathers Cherokee heritage and ordered DPSS to give ICWA notice.
In April 2005, mother was incarcerated.
The disposition report submitted in May 2005 stated neither parent claimed Native American ancestry. Beginning in 1990, mother had an extensive history with child welfare as both a victim and as a perpetrator. Mothers criminal history began in 1996 and included a charge of attempted murder. Mother had enrolled in a drug treatment program and participated in three classes. Father also had an extensive history with child welfare beginning in 1997 as a perpetrator. Fathers lengthy criminal history began in 1984 and continued at regular intervals through the present. DPSS recommended denying reunification services for both parents. A paternal aunt was being assessed for placement.
In June 2005, mother had attended 19 twelve-step meetings. At the continued contested jurisdictional and dispositional hearing, both parents waived their rights and submitted to the petition. The court declared M. to be a dependent of the court, denied mother reunification services, and ordered six months of services to father. The court made a general placement order under section 361.2, subdivision (e), and former California Rules of Court, rule 1456(a)(7)(C),[3]and further ordered [c]are, custody, and control of M. placed with DPSS for placement in a suitable licensed foster home, relative home, or facility suitable to meet specific needs.
The status review report submitted in September 2005 stated DPSS had placed M. with her paternal aunt on June 24, 2005, and recommended terminating fathers services and setting a selection and implementation hearing with adoption as the permanent plan. Father was unemployed. Father and mother appeared to be living in a van. Father was identified as having 10 or 11 children.[4] Father was not participating in a drug treatment program. Mother was on disability for schizophrenia. She was taking several medications and submitting to random drug testing. M. was developmentally delayed due to her prematurity and drug exposure. Parents did not acknowledge her fragile condition. Parents had been having supervised weekly one-hour visits with M. The paternal aunt was willing to adopt.
In October 2005, DPSS recommended reunification services to father be terminated. Father was living with his mother and was employed as a mechanic and selling cars. Father had enrolled in a substance abuse program in September. Two or three of his other children were being adopted.
Mother did not appear for the six-month contested review hearing. The court terminated fathers reunification services and set a section 366.26 hearing.
Mother was served by publication with a citation to appear for the section 366.26 hearing terminating her parental rights.
In January 2006, DPSS recommended terminating parental rights and proceeding with adoption by the paternal aunt. The aunt was willing to facilitate and supervise parental contact. Mother and father had attended M.s first birthday party.
Subsequently the adoption social worker expressed reservations about adoption by the paternal aunt. The paternal aunt volunteered that father has 27 children but did not admit that many of his children were involved in dependency proceedings. She did not acknowledge that he and mother were using drugs and that M. is developmentally delayed. The aunt was not employed and was receiving public assistance for herself and her three children. Her childrens father, and her boyfriend of 17 years, visited her house four or five days a week.
In March 2006, the juvenile court ordered DPSS to remove M. from placement with the paternal aunt and be placed in foster care.
In April 2006, a different social worker recommended again that the paternal aunt adopt M., citing further positive information about the aunts expressed willingness to protect M.; her subsequent acknowledgement of fathers drug use and criminal involvement; her plan to become a licensed daycare provider; and her boyfriends absence of criminal history. M. was developing fairly well in view of her medical history.
At the continued section 366.26 hearing on April 10, minors counsel, Dawn Shipley, opposed placement with the paternal aunt based on another change by DPSS recommending against placement. The court rejected the recommendation for placement with the paternal aunt, stating it was not appropriate, and ordered DPSS to seek an adoptive home or placement with another relative.
In June 2006, DPSS placed M. in an adoptive home. The court refused mothers request to conduct an evidentiary hearing on the issue of placement with the paternal aunt.
3. Standing and Due Process Right to an Evidentiary Hearing
Mother contends she has standing to object to the juvenile court removing M. from the paternal aunt and that the court violated her rights of due process when it denied her an evidentiary hearing concerning the removal. Mother does not have standing because the record demonstrates the juvenile court made a general placement rather than a specific placement with the paternal aunt. Therefore, no section 387 supplemental petition was necessary (In re H.G. (2006) 146 Cal.App.4th 1, 10) and mother failed to file the proper section 388 petition below. (Seiser & Kumli, Cal. Juvenile Courts, Practice and Procedure (2006) 2.127[2], p. 2-241.)
At the dispositional hearing on June 22, 2005, the juvenile court ordered the care, custody, and control of minor placed with DPSS and general placement in [a] suitable licensed foster home, relative home, or facility suitable to meet specific needs. The court did not order a specific placement with the paternal aunt. DPSS placed M. with the paternal aunt on June 24. The courts general placement order remained in effect in October 2005 and again in February 2006 but the court never made a specific order of placement with the paternal aunt.
When no specific placement has been made with a specific caretaker, section 387 does not require there be a supplemental petition and a noticed hearing before the child is removed to another placement. (In re Cynthia C. (1997) 58 Cal.App.4th 1479, 1481.) Furthermore, the juvenile court has the authority to change a childs placement if section 387 does not apply. (Fresno County Dept. of Children & Family Services v. Superior Court (2004) 122 Cal.App.4th 626, 648; In re Robert A. (1992) 4 Cal.App.4th 174, 188-189.)
Mothers reliance on In re H.G., supra, 146 Cal.App.4th 1 is not persuasive because that case involved a hearing pursuant to a section 387 petition. In the present case, no evidentiary hearing was required because no section 387 was required and no section 388 petition was filed. Even if mother had not forfeited her claims by failure to object at the time of the removal in March 2006 and failing to object until June 2006, her appellate challenge would fail because the court had the authority to change the general placement order.
4. ICWA Notice
Respondent concedes ICWA notice was deficient. No return receipts were filed for the notice by certified mail given on January 5, 2005, to the Secretary of the Department of the Interior, the Bureau of Indian Affairs, and the Blackfoot tribe. (Cal. Rules of Court, rule 5.664(f).) Apparently no notice at all was given regarding fathers claim of Cherokee ancestry. The issue of proper ICWA notice seems to have been abandoned as of May 2005. Although the ICWA deficiencies are not grounds to reverse the order removing M. from her paternal aunt, upon remand, the juvenile court should order DPSS to comply with ICWA before proceeding further.
5. Disposition
We affirm the orders of the juvenile court but direct the juvenile court to order DPSS to comply with ICWA notice requirements.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
s/Gaut
J.
We concur:
s/McKinster
Acting P. J.
s/King
J.
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[1] All statutory references are to the Welfare and Institutions Code.
[2] Father was later determined to be the biological father. He is not a party to this appeal.
[3] Former California Rules of Court, rule 1456 was renumbered rule 5.695 and amended, effective Jan. 1, 2007.
[4] Ultimately, the record indicated father had 27 children.
