In re Elisa S.

Filed 10/12/06 In re Elisa S. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from orders of the Superior Court of Los Angeles County, Sherri S. Sobel, Referee. Affirmed.

Andre F. F. Toscano, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION

Appellant Lisa S. (mother) is the mother of Elisa S., who was approximately 20 months old at the time of her detention.^[1] Mother appeals the order terminating parental rights asserting that notice was improper under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). Mother also appeals the summary denial of a Welfare and Institutions Code section 388 petition.^[2]

We affirm. ICWA notice was proper. In addition, the juvenile court did not abuse its discretion by summarily denying mother’s section 388 petition.

FACTUAL AND PROCEDURAL HISTORY

1. Detention

On May 20, 2005, the Los Angeles Department of Children and family Services (DCFS) received a referral concerning neglect of a child. A person known as “Shanta Doe” left a child (later identified as Elisa), under the care of a nine-year old girl. After one day, Shanta Doe did not come back to pick up the child. The nine-year-old girl’s mother contacted the police, who reported the situation to the media.

One of mother’s relatives notified mother as to what had happened to Elisa. On May 21, 2005, mother contacted the police to pick up Elisa. Elisa’s father, Efrain F., was incarcerated. The DCFS took Elisa into protective custody.

During the subsequent investigation, the DCFS learned that “Shanta Doe” was Elisa’s maternal grandmother, who had a history of drug use and child neglect. Mother had left Elisa with the maternal grandmother for two days. Mother was surprised that maternal grandmother had entrusted Elisa to a nine-year-old. Mother knew that maternal grandmother had had a substance abuse problem, but thought the problem had been resolved. Mother acknowledged that she allowed maternal grandmother to care for Elisa on prior occasions. The social worker concluded that mother did not understand the seriousness of Elisa’s situation or why the DCFS removed Elisa from mother’s custody.

Mother also stated that she wanted Elisa placed with her two older siblings, Prescilla S. and Andrew S., who were dependents of the juvenile court. As to these children, mother told the social worker that she was from the Iroquois Indian Tribe and that she was planning to have their adoptions overturned.

2. Juvenile Dependency Petition

On May 25, 2005, the DCFS filed a juvenile dependency petition pursuant to section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (j) abuse of sibling. The petition alleged that mother and father had a history of domestic violence, mother had a history of drug abuse, mother made inappropriate plans for Elisa’s care by leaving Elisa with maternal grandmother; and Elisa’s siblings (Prescilla and Andrew) were current dependents of the court.

The juvenile court found there was a prima facie case to detain Elisa as a person described under section 300, based upon mother’s history of substance abuse and domestic violence, as well as making an inappropriate plan for the care of Elisa. In addition, the court noted that mother’s two other children were not returned to mother’s care. The court ordered at least twice a week monitored visits for mother. The court ordered mother to participate in a drug-treatment program with random testing and a domestic violence group. The court warned mother that a missed drug test constituted a dirty drug test.

Based upon mother’s assertion of Indian ancestry, the juvenile court ordered the DCFS to provide ICWA notice of the proceedings to the Iroquois tribe.

3. Elisa’s Siblings Are Not Indian Children

On June 3, 2005, following an appeal, the juvenile court found that Elisa’s siblings, Prescilla and Andrew, were not Indian children. We take judicial notice that this finding affirmed the termination of parental rights.

4. Mother Misses Drug Test

On June 7, 2005, the DCFS social worker called mother in the morning to request an on-demand drug test. While mother had all day to attend, she did not arrive at the facility until after it was closed. This constituted a dirty test.

5. Jurisdiction/Disposition Report and ICWA Notice

In its June 16, 2005, report, the DCFS explained that relatives raised mother because of the maternal grandmother’s substance abuse problems. Since detention, mother had not visited Elisa.

During an interview, mother reiterated her understanding that maternal grandmother had resolved her substance abuse problem after attending a Salvation Army program. She stated that she allowed her mother to care for Elisa two times a month for two to three days. Mother stated that maternal grandmother had all of her contact phone numbers. Mother also stated that she was no longer with father.

The DCFS recommended no reunification services for mother pursuant to section 361.5, subdivision (b)(11).

The DCFS attached a JV-135 form to its report, entitled: “Notice of Involuntary Child Custody Proceedings for an Indian Child.” The form provided notice of the proceedings and, specifically, the June 16, 2005 juvenile court hearing. It stated Elisa’s name and date of birth. The Indian tribe was indicated to be “Iroquis Member of Hohak [sic].” The form also identified the names of the maternal grandmother and grandfather, as well as the names of the maternal great-grandmother and great-grandfather.

The accompanying certificate of mailing was dated June 9, 2005. The certificate of mailing indicated that the DCFS sent notice to the St. Regis Band of Mohawk Indians, 412 State Route Road, Akwesasne, New York 13655.^[3] The DCFS also sent notice to the Bureau of Indian Affairs in Sacramento, California; and to the Secretary of the Interior, Indian Child Welfare Specialist, Bureau of Indian Affairs in Washington, D.C.

At the June 16, 2005 hearing, mother indicated that her Indian Ancestry was Mohawk. The court explained that there was one federally recognized Mohawk tribe, located in Hogansburg, New York. Mother explained that her grandfather was registered and that she was still researching her heritage. Mother provided the court with the names of her grandparents and great-grandparents.

The juvenile court ordered the DCFS to provide notice (with return receipt requested) of the proceedings to the Mohawk tribe in Hogansburg, New York, as well as the Bureau of Indian Affairs in Sacramento. Counsel for the DCFS noted that the social worker had provided notice to the St. Regis Band of Mohawk Indians in New York.

6. Mother Misses Intake Appointment

After reviewing her case plan with the social worker, mother scheduled an intake appointment at the Tarzana Treatment Center for June 30, 2005. Because the intake appointment conflicted with a scheduled visit with Elisa, the social worker re-scheduled the visit with Elisa for the following day. Mother missed both the intake appointment at the Tarzana Treatment Center and the visit with Elisa.

7. New ICWA Notices and Status Update

On July 18, 2005, the DCFS filed an “Information for Court Officer” stating that new ICWA notices were sent on June 29, 2005. The record on appeal does not contain the actual notice sent by the DCFS on June 29, 2005. Counsel for mother indicates that the DCFS failed to file with the juvenile court the actual ICWA notices sent on June 29, 2005.

The DCFS did attach, however, the certified mail return receipts for the ICWA notices sent on June 9, 2005. The return receipts indicated that the St. Regis Band of Mohawk Indians and the Bureau of Indian Affairs in Washington D.C. received notice of the proceedings. On behalf of the St. Regis Band of Mohawk Indians in New York, a Terry Cree signed the return receipt on June 17, 2005.

The DCFS also attached return receipts related to the June 29, 2005 ICWA notices. The return receipts indicated that the St. Regis Band of Mohawk Indians and the Bureau of Indian Affairs in Sacramento received notice of the proceedings. On behalf of the St. Regis Band of Mohawk Indians in New York, Terry Cree signed the second return receipt, but left it undated.

By July 18, 2005, mother had not participated in any drug testing. She had not enrolled in any programs. In addition, mother had attended approximately half of the visits with Elisa. Due to mother’s transportation problems, the visits were changed from twice a week to once a week for four hours each visit.

As for the visits, mother was appropriate with Elisa. She gave Elisa “lots of positive attention and affection.” She demonstrated “excellent parenting skills.” The social worker monitor concluded there was a “good emotional attachment between mother and Elisa.”

In addition, during this time period, mother attempted to visit Elisa’s father in jail. However, she was arrested on outstanding traffic warrants. She was released a few days later.

Mother did not appear for the July 18, 2005, hearing. The juvenile court found that notice pursuant to ICWA was proper. The court also found that ICWA did not apply. The court sustained a number of counts of the petition, as amended, and declared Elisa a dependent. The court denied reunification services for mother and scheduled a section 366.26 hearing. The court also denied further visitation until mother returned to court.^[4]

8. Juvenile Court Denies Placement with Paternal Aunt

By August 17, 2005, mother indicated that she wanted Elisa placed with a paternal aunt. The paternal aunt wanted to adopt. The DCFS investigated the paternal aunt and discovered that she was on probation for a welfare fraud violation. The court noted that a regulation prevented placement with an individual on probation. The court denied the requested placement. The court ordered the DCFS to appear at the next hearing to explain why Elisa was not in a pre-adoptive home.

9. Mother Files Application for Re-Hearing

On September 2, 2005, mother filed an application for rehearing of the order denying placement with the paternal aunt. Mother explained that when the DCFS detained Elisa, she was a healthy and happy little girl. Mother explained that she ended the relationship with father, which was a domestic violence relationship. Mother also noted that she had found her own apartment and had been successfully parenting Elisa since birth. The court (per the Honorable Emily Stevens) denied the application for rehearing.

10. Mother Files a Section 388 Petition

On October 5, 2005, mother filed a section 388 petition. Mother asserted that Elisa was happy and healthy when living with mother. Mother explained that Elisa appeared thinner and less happy in her current placement. Mother sought to have Elisa returned to her custody. The juvenile court denied the motion.

11. Mother Files Second Section 388 Petition and Court Holds 366.26 Hearing

By the time of the section 366.26 hearing, the DCFS had placed Elisa in a pre-adoptive home. The home study had been approved.

On December 6, 2005, the day of the section 366.26 hearing, mother filed a section 388 petition. No party received service of the petition.

Mother requested custody of Elisa. She also asserted that she had Indian ancestry. As for changed circumstances, mother explained that she was capable of caring for Elisa, she had left her husband and had her own two bedroom apartment. Mother also stated that she accepted and was aware of her issues.

Mother attached a December 5, 2005 letter from “Networks Organizing for Gang Unity and Neighborhood Safety.” In the letter, the program director indicated that since October 3, 2005, mother had enrolled in a parenting class, a substance abuse program, and a mental health program. The December 5, 2005 letter noted that mother had attended seven of 15 sessions, had missed zero sessions and that continued participation was recommended.

Mother also attached: (1) an August 7, 2003 certificate of completion in a basic skills literacy course; (2) a November 2003 certificate of achievement from Shields for Families, Inc. Healthy Start Intervention Program; (3) a February 17, 2004 certificate of completion of a class related to prevention of Tuberculosis and Hepatitis; (4) an April 21, 2004 certificate of completion of parent education from Health Start; (5) an April 23, 2004 certificate of completion of a 12-week Mommy, Daddy, and Me class presented by Shields for Families, Inc.; and (6) an October 2004 certificate of completion of a 10-week HIV/AIDS Education Series.

The court summarily denied mother’s section 388 petition. The court explained that the petition was untimely and that mother had not demonstrated changed circumstances. The court also noted that mother failed to show that the requested change was in the best interests of Elisa.

At the contested section 366.26 hearing, the court found, over mother’s objection, that this was not an ICWA case. The juvenile court admitted a number of DCFS reports into the record.

Mother testified that Elisa lived with mother for approximately 20 months, during which time mother was the primary care provider. They had a close relationship, and Elisa could recognize mother from a distance.

Mother acknowledged that she allowed Elisa to visit the maternal grandmother, but stated that the maternal grandmother had completed a drug program and was clean and sober. Mother had no advanced warning that the maternal grandmother would fail to provide proper childcare.

Elisa rarely spent time away from mother. Elisa was well-cared for in mother’s custody. The last time mother visited Elisa, it took four social workers to put Elisa in the car because she wanted to be with her mother. Mother acknowledged that she had not seen Elisa since September 2005, but stated that Elisa still knew who her mother was and still had memories of her.

The juvenile court determined that mother had not established an exception to the termination of parental rights. The court noted mother’s conduct in allowing Elisa to be with the maternal grandmother. The court explained that mother had visited Elisa only half the number of scheduled visits. The court also noted that mother did not complete her program, she never appeared for an appointment at the Tarzana Treatment Center, and never drug-tested. The court also noted that mother’s visit to father in jail contradicted mother’s statement that she had left father.

The court found by clear and convincing evidence that Elisa was adoptable. The court terminated parental rights. The court referred Elisa for adoptive planning. Mother timely filed a notice of appeal.

CONTENTIONS

Mother contends: (1) the juvenile court did not comply with ICWA notice requirements; and (2) the juvenile court abused its discretion by summarily denying mother’s section 388 petition.

DISCUSSION

1. ICWA Notice Was Proper

Mother asserts that the juvenile court erred by finding ICWA notice proper because there are seven Iroquois tribes, not one as the juvenile court concluded; the DCFS did not file a copy of the June 29, 2005 ICWA notice with the juvenile court, thus the juvenile court could not determine if the notice was sufficient; the notice to the St. Regis Band of Mohawk Indians was sent to an incorrect address; and the juvenile court prematurely determined that ICWA did not apply on July 18, 2004, before the designated 60-day time period had expired (Cal. Rules of Court, rule 1439(f)(6)). We conclude that notice was proper.

a. Relevant ICWA Provisions and Requirements

Section 1912(a) of the ICWA provides that in juvenile court proceedings, “where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify . . . the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings, and of [the] right of intervention. If the identity or location of . . . the tribe cannot be determined, such notice shall be given to the Secretary [of the Interior] in like manner . . . . No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by . . . the tribe or the Secretary[.]” (See also Cal. Rules of Court, rule 1439(f).)

The application of the ICWA notice procedures in dependency proceedings is mandatory. (§ 360.6; Cal. Rules of Court, rule 1439(b).) Failure to comply with the ICWA notice requirements constitutes prejudicial error. (In re C.D. (2003) 110 Cal.App.4th 214, 223.)

b. Service on the One Mohawk Tribe Was Sufficient

In In re C.D., supra, 110 Cal.App.4th 214, the court found ICWA notice proper on similar facts. There, the mother thought that she was Cherokee, but did not specify a heritage. The DCFS gave notice to two of the three federally recognized Cherokee tribes. The DCFS also gave notice the Bureau of Indian Affairs and asked it to confirm the children’s status with the Cherokee. (Id. at p. 227.)

The C.D. court rejected the father’s claim that the DCFS should have given notice to all three federally recognized Cherokee tribes. The court explained: “While we agree it would have been optimal if DCFS had given notice of the proceedings to all three of the federally recognized Cherokee Tribes, we disagree with father’s position the failure to do so constitutes noncompliance with the ICWA or prejudicial error. Once DCFS sends notice to the BIA ‘the burden of identifying and providing notice to the proper tribe . . . shifts from the state court to the Secretary . . . .’ Because DCFS did not know which specific Cherokee Tribe the children might belong to, and it gave notice of the proceedings to the BIA, we conclude DCFS complied with the notice requirements of the ICWA.” (In re C.D., supra, 110 Cal.App.4th at p. 227; italics & fn. omitted.)

In this case, mother first claimed Cherokee heritage with respect to the older children, Prescilla and Andrew. Mother then identified an unspecified Iroquois tribe. During the detention of Elisa, mother narrowed it down to the Mohawk tribe. The DCFS sent notice to the Mohawk tribe as ordered by the juvenile court.

Importantly, like the C.D. case, the DCFS also sent notice to the Bureaus of Indian Affairs in Sacramento, California and Washington, D.C. The record shows that both bureaus received actual notice. The actual notice referred to both the Iroquois and the Mohawk tribes.

Thus, even though the DCFS knew that mother claimed to be Iroquois Mohawk, the DCFS sent notice to the Bureaus of Indian Affairs. This complied with the ICWA notice requirements.

c. Failure to File a Copy of the June 29, 2005 Notice and Use of the Incorrect Address Was Harmless Error

The record contains a copy of the ICWA notice served on June 9, 2005, but not a copy of the June 29, 2005 ICWA notice. Mother does not challenge any of the information contained in the first set of ICWA notices. The record shows that the first set of ICWA notices were actually received by the Bureau of Indian Affairs in Washington, D.C., as well as by the St. Regis Band of Mohawk Indians in New York.

Thus, based upon the record presented, the failure to file the June 29, 2005 ICWA notice was not prejudicial, but, at most, constituted harmless error.

In addition, mother is correct that the ICWA notice the DCFS sent to the St. Regis Band of Mohawk Indians on June 9, 2005 contained a partially incorrect address. However, the notice had the correct name of the tribe, the correct street address and the correct zip code. In addition, two signed returned receipts (signed by Terry Cree) indicated that the St. Regis Band of Mohawk Indians received actual notice of the dependency proceedings.

Therefore, because St. Regis Band of Mohawk Indians received actual notice of the proceedings, the DCFS failure to use a completely correct address was not prejudicial, but, at most, constituted harmless error.

d. Juvenile Court’s Failure to Wait 60 Days Before Concluding that ICWA Did Not Apply Was Harmless Error

Rule 1439(f)(6) of the California Rules of Court provides: “If, after a reasonable time following the sending of notice under this rule--but in no event less than 60 days--no determinative response to the notice is received, the court may determine that the act does not apply to the case unless further evidence of the applicability of the act is later received.”

Mother correctly notes that the DCFS sent ICWA notice on June 9, 2005 and June 29, 2005. Without waiting 60 days, on July 18, 2005, the juvenile court found that notice pursuant to ICWA was proper and that ICWA did not apply.

The juvenile court, however, did not conduct the section 366.26 hearing until December 6, 2005, well after the 60-day waiting period set forth in rule 1439(f)(6) of the California Rules of Court. During this time period, the court received no response to the ICWA notices. At the December 6, 2005 hearing, the juvenile court again found that this was not an ICWA case.

Because the juvenile court ultimately complied with the 60-day waiting period before conducting the section 366.26 hearing and finding that ICWA did not apply and because no response to the ICWA notice was received during this time period, we conclude that the juvenile court’s finding on July 18, 2005 that ICWA did not apply was not prejudicial to mother, but, at most, constituted harmless error.

2. The Trial Court Did Not Abuse Its Discretion by Summarily Denying Mother’s Section 388 Petition

Mother claims the trial court abused its discretion by summarily denying without a hearing her section 388 motion seeking custody of Elisa, and contesting the finding of non-ICWA status. We review for abuse of discretion. (In re Michael D. (1996) 51 Cal.App.4th 1074, 1087.) We conclude that the trial court did not abuse its discretion.

Section 388, subdivision (a) allows any person to petition the juvenile court, “upon grounds of change of circumstance or new evidence . . . for a hearing to change, modify, or set aside any order of court previously made.” Subdivision (c) of section 388 provides: “If it appears that the best interests of the child may be promoted by the proposed change of order . . . the court shall order that a hearing be held . . . .”

In other words, to trigger a right to a section 388 hearing, a parent must make a prima facie showing of changed circumstances and that the proposed change of order would promote the best interests of the child. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)

In In re Kimberly F. (1997) 56 Cal.App.4th 519, the court reiterated some of the factors, among others, to be considered when determining the best interests of a child: (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 child’s bond to both parent and caretakers; and (3) the degree to which the problem which led to the dependency may be ameliorated and the degree to which it has been. (Id. at p. 532.) An additional factor is the length of time the child has been in the dependency system. (Id. at p. 531.)

In In re Angel B. (2002) 97 Cal.App.4th 454, the court explained: “[O]ne moving for a change of placement bears the burden of proof to show, by a preponderance of the evidence that there is new evidence or that there are changed circumstances that may mean a change of placement is in the best interest of the child. [Citations.] This is a difficult burden to meet in many cases, and particularly so when, as here, reunification services have been terminated . . . . After the termination of reunification services, a parent’s interest in the care, custody and companionship of the child is no longer paramount. [Citation.] Rather, at this point, the focus shifts to the needs of the child for permanency and stability. [Citation.] In fact, there is a rebuttable presumption that continued foster care is in the best interest of the child . . . . A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, what is in the best interest of the child. [Citation.]” (Id. at p. 464.)

In this case, the juvenile court found that mother’s section 388 petition failed to show changed circumstances, or that the proposed change was in the best interests of Elisa. Thus, according to the juvenile court, mother did not make a prima facie showing to justify a hearing on custody.

As to the issue of changed circumstances, as new evidence, mother presented the December 5, 2005 letter from “Networks Organizing for Gang Unity and Neighborhood Safety.” The letter showed that since October 3, 2005, mother had enrolled in a parenting class, a substance abuse program, and a mental health program. She had attended seven of fifteen sessions, and missed zero, with continued participation recommended.

Given that mother was not provided reunification services and the focus of the case was on Elisa’s need for permanence (cf. In re Angel B., supra, 97 Cal.App.4th at p. 464), the trial court did not abuse its discretion by rejecting this evidence as sufficient to establish a prima facie showing of changed circumstances. The letter attached no reports from therapists, and contained no indication of the nature of the programs. Mother did not call any of the counselors to testify. The other documentary evidence mother presented was dated prior to October 2004, and had already been considered in a prior section 388 petition.

In addition, mother never drug tested, and she failed to appear for an appointment at the Tarzana Treatment Center. Likewise, the trial court did not abuse its discretion by concluding that mother’s visit to father in jail was inconsistent with her claim that she had terminated the relationship.

As for the bests interests analysis, applying the Kimberly F. factors, the record supports the juvenile court conclusion that mother did not appreciate the seriousness of the situation. (In re Kimberly F , supra, 56 Cal.App.4th 519.) She did not appreciate the risk presented by maternal grandmother. She appeared to be in denial about the adoption of her two older children.

As for the strength of the relationships, Elisa was in a pre-adoptive home with an approved home study. While Elisa had a bond with mother, mother had missed half of the visits from the initial May 2005 detention to mid-July 2005. Prior to the December 6, 2005, section 366.26 hearing, mother had apparently not visited Elisa for at least two months.

Moreover, given that mother was not drug-testing, not visiting Elisa, and was still visiting father, the juvenile court did not abuse its discretion by concluding that mother had not sufficiently ameliorated the problems which lead to the dependency. Finally, at this point in the proceedings, after termination of reunification services, Elisa’s need for permanence and stability was a factor to be given appropriate consideration by the juvenile court. (In re Angel B., supra, 97 Cal.App.4th at p. 464.)

DISPOSITION

The juvenile court orders are affirmed. No costs are awarded.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

CROSKEY, Acting P. J.

ALDRICH, J.

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^[1] The child’s father is not a party to this appeal.

^[2] Unless otherwise indicated, all unspecified statutory references are to the Welfare and Institutions Code.

^[3] The mailing address of the St. Regis Bank of Mohawk Indians was partially incorrect. The correct address appearing in the Federal Register in 2005 was: Saint Regis Band of Mohawk Indians, Rhonda Mitchell, ICWA Program Coordinator, 412 State, Route 37, Hogansburg, New York, 13655. (See No. 53, 70 Fed. Reg. 13527 (Mar. 21, 2005).)

^[4] The December 6, 2005 reporter’s transcript for the section 366.26 hearing indicates that mother did not return to court to re-establish visitation with Elisa after the juvenile court terminated visitation on July 18, 2005. It appears, however, that mother may have had visits after this court date.