In re Brittney C.

Filed 6/1/06 In re Brittney C. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from orders of the Superior Court of Los Angeles County. D. Zeke Zeidler, Judge. Affirmed.

Merrill Lee Toole, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Frank J. DaVanzo, Deputy County Counsel, for Plaintiff and Respondent.

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Appellant Patricia C. (Mother) appeals from orders of the juvenile court denying her Welfare and Institutions Code section 388^[1] petition and terminating her parental rights under section 366.26, with respect to Brittney C. In our recent nonpublished opinion In re Brittney C. (Mar. 16, 2006, B182961), we affirmed the orders of the juvenile court denying Mother's previous section 388 petition, as well as her request that we remand the matter to the juvenile court to order yet a third set of notices to Indian tribes based on the possibility that Brittney C. is a member of one of the tribes.

Once again, we affirm the orders of the juvenile court.

CONTENTIONS

Mother contends that the juvenile court: (1) abused its discretion by failing to grant her section 388 petition; (2) erred in finding that the exception to termination of parental rights under section 366.26, subdivision (c)(1)(A), did not apply; and (3) failed to insist that the notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) had been complied with by respondent Los Angeles County Department of Children and Family Services (the Department).

FACTS AND PROCEDURAL HISTORY

Mother previously filed a petition for extraordinary relief, challenging the juvenile court's order of August 31, 2004, denying Mother reunification services with Brittney C. and setting a section 366.26 permanency planning hearing. We refer the reader to our nonpublished opinion Patricia C. v. Superior Court (Dec. 8, 2004, B177945) for an extensive discussion of the facts underlying our decision affirming the juvenile court's order. As noted above, Mother subsequently filed an appeal from orders of the juvenile court denying her section 388 petition, which we denied in our nonpublished opinion, In re Brittney C., supra, B182961. We also refer the reader to that unpublished opinion for a discussion of the facts pertinent to that appeal.

Briefly, Mother has a serious drug and alcohol problem which she can only control in a structured drug program environment. In the past, she has refused to take medication to control her bipolar disorder, and her parental rights have been terminated as to Brittney C.'s older siblings Brandon and Johnny. In Patricia C. v. Superior Court, supra, B177945, we concluded that the juvenile court properly found Brittney C., who was born in 2001, would be at substantial risk of detriment if she were returned to Mother. We also held that the juvenile court properly denied reunification services. In In re Brittney C., supra, B182961, we determined that the juvenile court did not abuse its discretion by failing to grant Mother a hearing on her section 388 petition, because Mother did not make a prima facie showing of a change in circumstance requiring a change of order to promote Brittney C.'s best interest. We also found that tribal notice was adequate where the Department had mailed notices to three tribes, to either the correct address specified in the federal register, or to the address appearing on a tribe's letterhead for its designated agent. Moreover, all three tribes signed the return receipts.

The following facts are pertinent to the instant appeal. On June 27, 2005, Mother filed a new section 388 petition, in which she alleged that she had completed her residential program and was in ongoing aftercare. She alleged that since May 1, 2005, she had been living independently and away from a structured environment in her own apartment. She also alleged that she was gainfully employed and that she had made daycare arrangements with Brittney C.'s former foster mother. Mother attached documentation showing that she had completed a drug and alcohol treatment program; was participating in activities designed to assist her with recovery and relapse prevention; was receiving appropriate mental health services; and had entered into a lease agreement for an apartment. Mother also included a letter from a therapist indicating that she was doing very well under medication and therapy, as well as her own letter attesting to her love for Brittney C.

The contested hearing commenced on September 1, 2005. The trial court considered the June 28, 2005 section 366.26 report, which recommended termination of parental rights; the July 15, 2005 social worker's report; the entire dependency file; the social worker's case notes; and our previous nonpublished opinion Patricia C. v. Superior Court, supra, B177945.

The June 28, 2005 report stated that Brittney C. had been replaced to a foster/adoptive home on April 26, 2005. The prospective adoptive family consisted of two women, who had filed a domestic partnership, and their two boys, ages nine and six. The family lived in a three-bedroom house; had a foster care license; had completed adoption training; and were committed to adopting Brittney C. One partner, who was an administrator for a utility company, had gone through drug rehabilitation and had been sober since 1994. The other partner, a stay-at-home mother, was arrested and assessed a minor fine for theft of personal property in 1988. Neither woman has had any such problems since. The report stated that Brittney C. had bonded quickly to the adoptive family, that the family gave her personal attention, and that the two boys had adjusted well to having a little sister.

The June 28, 2005 report indicated that at her former foster home, Brittney C. had episodes where she ingested her feces, which coincided with Mother's visits. However, she had not engaged in similar behavior since she was placed in her new foster/adoptive home.

The July 15, 2005 social worker's report recommended termination of Mother's rights and that the plan of adoption remain in force. The report indicated that at her new adoptive home, Brittney C. had blossomed into an affectionate, happy, active, assertive child. Moreover, her bond with her new adoptive family was stronger than her bond with Mother. The report noted that Mother worked only two to three days per week, and that Mother acknowledged it would be a challenge for her to meet the basic needs of Brittney C. The report stated that Mother had achieved her present level of sobriety numerous times in the past, then relapsed.

The social worker testified that Brittney C. should not be returned to Mother because Brittney C. was now bonded to her present foster parents; she was comfortable with Mother only if the foster parents were nearby, and often asked for them and tried to rejoin them during Mother's visits; and he did not believe Mother could maintain her present sobriety.

Brittney C.'s grandmother (Mother's mother) opined that Mother could not successfully care for Brittney C. once out of a supportive environment, and that she had relapsed many times before.

Mrs. H., Brittney C.'s former foster mother, testified on behalf of Mother that Brittney C. and Mother interacted well during Mother's visits, and she believed that there was no connection between Mother's visits and Brittney C.'s feces-eating incidents.

Mother testified that she believed she could maintain her present sobriety because God was now giving her direction in her life; she was learning to cope and live on a day-by-day basis; and the program she was involved in was much more effective than the previous programs. Mother's longest period of sobriety had been three years two months, and she had currently been sober for the past 19 months.

The juvenile court denied Mother's section 388 petition. The juvenile court found that the Mother had not shown a change of circumstance or that placing Brittney C. with Mother would be in Brittney C.'s best interests. The juvenile court noted that Mother had not progressed as far as she had before her last relapse, and Brittney C. was developing well within her current stable environment.

The juvenile court then conducted the section 366.26 hearing and terminated Mother's parental rights. The juvenile court found that while Mother had maintained regular and consistent visitation, she had been a friendly playmate, rather than a parent. The juvenile court found that it would be detrimental to Brittney C. to return her to Mother, and that Brittney C. was adoptable.

This appeal followed.

DISCUSSION

The juvenile court did not abuse its discretion in denying Mother's section 388 petition

I. Mother did not show a substantial change in circumstance

Mother contends that the juvenile court abused its discretion in denying her section 388 petition. We disagree.

Under section 388, subdivision (a), a parent may petition the juvenile court to modify a previous order. The burden is on the parent to show by a preponderance of the evidence that there is a change of circumstance or new evidence, and that the requested change is in the best interests of the dependent child. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The parent must show a change of circumstance of â€