In re Destinie L

Filed 6/20/06 In re Destinie L. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 SIX

Darian L. (Mother), appeals from orders of the juvenile court terminating her parental rights and selecting adoption as the permanent plan for her biological daughter, Destinie L. Destinie was born in February 2005, while Mother was in jail. (Welf. & Inst. Code, § 366.26, subd. (b)(1), (c)(1).)[1] While this dependency matter was pending, mother was enrolled in, expelled from and then re-enrolled in a Department of Corrections program that allows incarcerated women to be housed with their infant children while they undergo drug treatment. Mother contends the trial court erred when it declined to give her custody of Destinie so they could participate in the program. She further contends the trial court erred because it did not make a finding concerning the applicability of the Indian Child Welfare Act (25 U.S.C.A. §§ 1901, et seq.) (ICWA) to this matter or insure compliance with it before holding the section 366.26 hearing. We affirm.

Facts

Mother was pregnant with Destinie when she was arrested in December 2004 for forgery, identity theft, receiving stolen property, grand theft, and two counts of using or being under the influence of methamphetamine. (Health & Saf. Code, § 11550, subd. (a).) She has a long criminal history relating to methamphetamine use. Destinie was born while Mother was in custody. The infant was detained in foster care three days after her birth because Mother's incarceration and substance abuse prevented her from providing for Destinie's care and support. Destinie's paternal grandmother, who also cares for five of Destinie's half-siblings, indicated a willingness to adopt Destinie.[2] Mother also has a five-year old son, Joseph. Joseph lives with his maternal grandparents who are his legal guardians.

Mother was sentenced to prison and selected for participation in the Department of Corrections' "Family Foundations Program" which allows women with young children to participate in a drug treatment program while caring for their children. Respondent initially agreed to consider having Destinie participate in the program with Mother. Before that arrangement could be made, however, Mother was removed from the program for an alleged disciplinary infraction. Meanwhile, Destinie remained in foster care. At the jurisdiction and disposition hearing, respondent recommended that reunification services be denied because Mother did not complete treatment and would be incarcerated for two years. (§ 361.5, subd. (b)(13), (e)(1).) The trial court agreed and scheduled a section 366.26 hearing.

Between the two hearings, Mother prevailed in her prison disciplinary proceeding.[3] Corrections officials offered to reinstate Mother to the Family Foundations Program. Mother filed a section 388 petition to modify the dependency order, contending that Destinie should be restored to Mother's custody so they could participate in the program. Respondent opposed that placement because Mother had no relationship with Destinie and because Destinie's prospective adoptive parents are her paternal grandparents who also have custody of her half-siblings.

The juvenile court denied Mother's section 388 modification petition, terminated her parental rights and selected adoption as the permanent plan for Destinie. The trial court found that Mother showed "the circumstances have changed but not substantially. . . . [¶] What is clear to me though is that not only do I not think it's in the child's best interest to grant this motion, but I think it actually would be detrimental to the child. The mother is not raising her other child. Her mother is. We don't know how she's going to do. . . . . [¶] The child has no relationship with the mother at all. The placement she is in, she is going to be with her half sibling[s] in a secure and nurturing environment. So it's difficult to see how it would be in the child's best interest to place this girl with the mother she doesn't know to try to reunify with a parent that's been unable to raise the older sibling and has had to give that obligation to her mother. So this is all very speculative that she would succeed. . . . [¶] . . . . I just don't see how it's in the child's best interest to start this process."

Discussion

Section 388

We review the trial court's ruling on Mother's section 388 petition for abuse of discretion. Its decision will not be disturbed on appeal unless Mother establishes clearly that the trial court " ' "has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]." ' (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421 [159 Cal.Rptr. 460]; see In re Mark V. (1986) 177 Cal.App.3d 754, 759 [225 Cal.Rptr. 460] [accord]; see also Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 831 [284 Cal.Rptr. 839].)" (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)

Section 388 allows a parent to petition the court for a change in a dependency order based on a change of circumstances. "The parent bears the burden of showing both a change of circumstance exists and that the proposed change is in the child's best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) In determining whether a proposed change is in the child's best interests, we focus on the child's need for stability and permanence rather than on the parent's interest in reunification. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Relevant factors include, "(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of the relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been . . . ." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.)

The trial court here denied Mother's section 388 petition, finding that she had established a change in circumstances, but not a "substantial change," and that she failed to prove the proposed change was in Destinie's best interests. These findings were not an abuse of discretion. Destinie became a dependent child because Mother was incarcerated for crimes related to her long-standing and severe addiction to methamphetamine. Mother has no track record of success in drug treatment nor did she successfully reunify with her older child. She has no relationship with Destinie, who was removed from her custody three days after birth. Destinie's prospective adoptive parents are her paternal grandparents, who have had a loving relationship with Destinie since her birth and who are presently the legal guardians of her five paternal half-siblings.

Because Mother had a weak parental bond with Destinie, no record of addressing her drug addiction, and no history of successfully parenting her older biological child, the trial court correctly found that a change in the dependency order would not be in Destinie's best interests. It properly denied reunification services and selected adoption as the permanent plan.

Compliance with Indian Child Welfare Act

Mother contends the trial court erred because it did not make appropriate findings concerning the applicability of the ICWA to these proceedings or insure compliance with the ICWA before proceeding with the section 366.26 hearing. We conclude the trial court did not err and that respondent cured any defects in the notice provided.

The ICWA imposes upon both the trial court and respondent an affirmative duty to inquire whether a child subject to a dependency petition is or may be an Indian child and, if so, to provide notice of the proceeding to the child's tribe. (25 U.S.C.A. § 1912, subd. (a); In re Desiree F. (2000) 83 Cal.App.4th 460, 470; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422.) An "Indian child" within the meaning of the ICWA is "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe[.]" (25 U.S.C.A. § 1903, subd. (4).)

The issue arises here because Destinie's biological father, Brandon O., told a social worker that he thought his mother was a member of the Chumash tribe. Brandon's mother denied any Indian heritage, explaining that she is of Mexican ancestry. Thereafter, both Brandon and Mother signed parental notification forms declaring under penalty of perjury that they "have no Indian ancestry as far as I know." Respondent nevertheless elected to send notice to the Santa Ynez Band of Mission of Indians and the Bureau of Indian Affairs. Because the biographical information provided by the parents was inadequate, neither entity to could confirm whether Destinie was an Indian child. The trial court made no further inquiries into Destinie's status.

While this appeal was pending, Mother asserted that an aunt told her their family " 'may be Apache[,]' " although Mother refused to provide respondent with the aunt's name or contact information. Respondent obtained additional biographical information about Destinie from her paternal grandmother and provided notice under the ICWA to eight Apache tribes. None of the tribes indicated that Destinie was eligible for enrollment. When Mother finally provided respondent with her aunt's name and contact information, the aunt said she was unaware of any Apache heritage and that she never told Mother their family had Apache heritage. At a hearing on April 10, 2006, the trial court found that notice had been given as required by the ICWA and that the statute does not apply.

Mother contends the trial court did not comply with the ICWA. We disagree. When each parent originally declared, under penalty of perjury, that he or she had no Indian ancestry, "as far as I know[,]" the trial court properly concluded that the ICWA did not apply to the case. ICWA notices are required only where the trial court knows or has reason to know that a dependency proceeding involves an Indian child. (In re X.V. (2005) 132 Cal.App.4th 794, 802.) Where, as here, the trial court has no specific information indicating the dependent child is an Indian child, additional notices and inquiries under the ICWA are unnecessary. (In re Aaron R. (2005) 130 Cal.App.4th 697, 707-708; In re O.K. (2003) 106 Cal.App.4th 152, 157.) Moreover, any error in the original notice was cured when respondent obtained additional biographical information about Destinie and sent additional notices to the Apache tribes. (In re C.D. (2003) 110 Cal.App.4th 214, 224; In re Christopher I. (2003) 106 Cal.App.4th 533.) Because respondent and the trial court complied with the notice requirements of the ICWA while this appeal was pending, there was no error.

Conclusion

The judgment (order terminating parental rights) is affirmed.

NOT TO BE PUBLISHED.

YEGAN, Acting P.J.

We concur:

COFFEE, J.

PERREN, J.

Charles W. Campbell, Jr., Judge

Superior Court County of Ventura

______________________________

Catherine C. Czar, under appointment by the Court of Appeal, for Appellant.

Noel A. Klebaum, County Counsel, Count of Ventura an Oliver G. Hess, Deputy County Counsel, for Respondent.

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[1] All statutory references are to the Welfare and Institutions Code unless otherwise stated.

[2] Destinie's biological father, Brandon O., was also in custody at the time of her birth for drug related offenses. His criminal history is even longer than Mother's and is also attributable to methamphetamine use. Father has five other children who are in the care of his mother. He has not appealed the order terminating his parental rights.

[3] Mother reportedly made a joke to another inmate about stabbing someone over a missing cookie. At her disciplinary hearing, the hearing officer found her not guilty of the charged offense, attempted battery, because her comments were intended as a joke.