In re Jaquelyn M.

Filed 2/28/07 In re Jaquelyn 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. Christopher J. Sheldon, Judge. Reversed.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.

Ellen L. Bacon, under appointment by the Court of Appeal, for Minor.

1. Introduction

Mother Julie F. appeals from the juvenile courts orders terminating her parental rights under Welfare and Institutions Code section 366.26^[1]and denying her petition under section 388. Mother argues that there was insufficient evidence to support the juvenile court findings in denying her petition. Mother also argues that the Riverside County Department of Public Social Services (DPSS) failed to provide adequate notice under the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.). We reject mothers first argument because the record supports the juvenile courts finding that no change in circumstances warranted the reopening of her reunification plan. Mothers second argument has merit, however, because the record does not contain adequate documentation that DPSS complied with the notice requirements of ICWA. We reverse the courts decision with directions to effect compliance with ICWA.

2. Facts and Procedural History

Mother has three daughters, two of whom were removed and placed with their paternal grandmother under a legal guardianship. Mothers youngest daughter, 11-month-old Jaquelyn M., was removed in October 2004, a month after an incident for which mother was arrested for abusing her elderly mother, Jaquelyns maternal grandmother. Mother lived with the maternal grandmother. Mother grabbed the maternal grandmother and attempted to drag her out of her home. Mother was verbally and physically abusive toward the maternal grandmother. After initially telling mother to stay away, the maternal grandmother later allowed mother to move back home to help care for Jaquelyn. The maternal grandmother was incapable of caring for Jaquelyn alone.

The maternal grandmother reported that mother had been evaluated under section 5150 and continued to exhibit inappropriate behavior. Mothers treating physicians also indicated that mother needed further psychological evaluation.

DPSS filed a dependency petition with allegations of elder abuse, mothers unresolved mental health issues, drug abuse, criminal history, and the prior removal of mothers other children. At the contested jurisdictional hearing on January 6, 2005, the juvenile court found the allegations true. The court also ordered mother to participate in counseling and education programs.

During the reunification period, mother made significant progress in her plan objectives. Mother completed a psychological evaluation and was attending individual counseling. Mother also enrolled in a Moms program, which included parenting classes and drug treatment. Despite a couple of early positive drug tests, mothers subsequent tests in the Moms program were negative. Mother also found a job at a hotel and was able to continue living with the maternal grandmother. DPSS recommended that Jaquelyn be placed with mother under a family maintenance plan.

After mother tested positive for marijuana, however, DPSS changed its recommendation. Although mothers drug treatment program included drug testing, mother had not been consistent with her random drug testing requirement. Mother tested positive for marijuana on June 2, 2005, and June 16, 2005. In August, mother was discharged from the Moms program for poor attendance and a positive drug test. She also lost her job and was looking for a new one.

After being discharged from the Moms program, mother enrolled in a 60-day in-patient drug treatment program. By the time of the review hearing, mother had completed the in-patient program and was participating in after care. Mothers psychotherapist reported that mother was attending individual therapy sessions and continuing to make progress with anger management, parenting, and other areas. Mother also found a new job at OBrian Hyundai and provided proof of employment.

At the review hearing on January 25, 2006, the juvenile court found that DPSS had provided reasonable reunification services, but mother had failed to make substantive progress or complete the court-ordered plan. The court terminated reunification services and scheduled the selection and implementation hearing under section 366.26.

Jaquelyn had been living with the same foster family since April of 2005. Her foster parents were willing to provide a permanent home for her through adoption.

On May 12, 2006, mother filed a petition under section 388 to change the juvenile courts earlier orders. As the change of circumstances, mother listed her completion of the after care program, regular attendance at AA/NA meetings, psychotherapy sessions, regular source of income, suitable home, and strong bond with her child. Mother provided a letter of completion for her aftercare program. She also provided additional certification for completed classes and her recent progress. Mother now had two jobs: one as an assistant for a radio show and the other as a food server at a restaurant.

At the hearing on May 18, 2006, the juvenile court denied the petition. After hearing additional argument, the court also terminated mothers parental rights and set adoption as the childs permanent plan.

3. Discussion

A. Section 388 Petition

Mother argues that the juvenile court erred in denying her petition under section 388.

Section 388 allows a parent to petition the juvenile court to change its order because of a change of circumstance or new evidence. The parent must show both that there has been a change in circumstance and that the requested modification would promote the childs best interest. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446; 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. (In re Aaliyah R., supra, at pp. 446-447.) 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.)

After reviewing the record, it is apparent that mother made significant efforts during and after the reunification period. What is also apparent, however, is that mothers efforts were thwarted by some significant setbacks, including her relapse into drug use, discharge from her treatment plan, and periods of unemployment. For a child under three years of age, the reunification period is six months. ( 361.5, subd. (a)(2); In re James C. (2002) 104 Cal.App.4th 470, 485.) In this case, the court extended services for another six months. (See 366.21, subd. (e).) Because mother was given over a year of reunification services, the juvenile court reasonably found that mothers completion of her court-ordered plan several months after the reunification period did not warrant the reversal of its prior orders.

The setbacks prevented mother not only from completing the reunification plan in time, but also from demonstrating to the court that she was able to provide Jaquelyn with a stable home, which is what Jaquelyn needed. As mentioned, the most damaging setback was mothers relapse into drug use in June 2005. Mothers initial progress was so promising that DPSS had recommended that Jaquelyn be placed with mother under a family maintenance plan. Two positive drug tests in June, however, wiped out six months of progress. Mother was dropped from her drug treatment program because of her drug use and poor attendance.

Mother resumed her efforts in August 2005 by voluntarily admitting herself into an in-patient drug treatment facility. Mother completed the in-patient program and was making progress in other areas. By January 2006, the extended reunification period had expired, but mother had not demonstrated to the courts satisfaction that she had made substantial progress in the problems leading to the childs removal.

Between January and May, the only change in circumstance was the completion of 90 days of after care, as required under the court-ordered plan. Although mother listed several other circumstances, these circumstances were largely the same as before. As mother testified at the January hearing, she had completed anger management and parenting classes, had found a new job, and was regularly attending AA/NA sessions and meeting with her psychotherapist. She also testified that she had maintained her relationship with her daughter through regular visits. The only real change was the completion of the court-ordered plan. A successful petition under these facts would circumvent the statutory limits. The limits would mean nothing if a parent could complete the plan after the reunification period and then file a petition under section 388.

Completion of the court-ordered plan after the reunification period would not justify a reversal of the prior orders unless mother shows that she has resolved the problems leading to the dependency and now was able to provide the child with a safe and stable home. Under these facts, we cannot say that the juvenile court abused its discretion in finding that the showing was inadequate. Although mother had completed her drug treatment requirement, by the time of the hearing on mothers petition, she had been out of the in-patient facility for only about six months.

The record also is unclear as to whether mother has resolved her abusive tendencies toward the maternal grandmother. Mother has not been able to secure an independent residence and still lives with the maternal grandmother in her two-bedroom apartment. Although both claimed that they are getting along amiably, the record indicates that mother has not entirely resolved her hostility toward the maternal grandmother.

In addition to her living situation, mother has failed to demonstrate stability in her employment situation. While her efforts to be employed are to be commended, mothers employment record does not show an ability to maintain a stable source of income. By June 2005, mother reported that she was laid off of her job at a country club. She was able to find a new job at a hotel. By December 2005, mother was unemployed again and looking for a new job. She then began working for a car dealership. By the time of the hearing on mothers petition in May 2006, mother had a different job at a radio station. She also worked as a food server at a restaurant. Despite mothers repeated efforts to secure employment, this has not been an area of proven stability.

While mothers progress in resolving the problems leading to the dependency has been uncertain, the now two-year-old child has been living with the same fost-adopt family for over a year. Jaquelyn has bonded with her prospective adoptive parents and their three other children. The parents are willing and able to provide Jaquelyn with a permanent home.

Even if mother has maintained a bond with her daughter, the record shows that Jaquelyn appears to have a stronger bond with her prospective adoptive mother. At this stage in the dependency, the focus is the childs need for permanency and stability. (See In re Stephanie M. (1994) 7 Cal.4th 295, 317.) While it remains to be seen whether mother can provide Jaquelyn with a stable living environment, a loving and permanent adoptive home awaits. Under these facts, we conclude that the juvenile court did not abuse its discretion in denying mothers petition.

B. ICWA Notice

Mother claims the juvenile court failed to ensure that DPSS provided adequate notice to the Narrangansett Tribe and the Bureau of Indian Affairs (BIA), as required under ICWA. DPSS concedes that the record does not include evidence of the notices, return receipt confirmations, or any responses from the tribe or the BIA. DPSS argues, however, that any error was harmless because there was no evidence that further compliance would have resulted in a different outcome.

DPSS first learned of the familys possible Native Indian heritage on November 11, 2004. Although fathers whereabouts remained unknown, mother informed the social worker that the father may have some connection with a Canadian tribe, the Narrangansett Tribe. The social worker called the BIA and obtained contact information for the Eastern Region Narragansett Tribe in Rhode Island. The social worker contacted the tribe and provided verbal notice. Although the social worker claimed that she completed the written notice form, the record does not contain a copy of the form or any certification that the tribe received notice of the dependency case.

At the jurisdictional hearing on January 6, 2005, the juvenile court made the following comments: Again, in this matter, the Department, in abundance of caution, did give notice. However, in conversation with the family members, they all indicated at this time there was no proof. And there was thought that the Native Indian heritage related to a Canadian tribe -- and we did provide notice, and no tribe has responded. And so I would find as matter of law this is not an ICWA case.

To comply with ICWA, DPSS first must identify any potential affiliation with an Indian tribe and send notices using a prescribed form to the tribe or the BIA of the pending proceedings and the right to intervene by registered mail with return receipt requested. (25 U.S.C. 1912(a); see 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. DPSS must file with the court the ICWA notices, return receipts, and any responses received from the tribe or the BIA. (In re Karla C. (2003) 113 Cal.App.4th 166, 178-179.) Where the record shows unequivocally that proper notice was given to the proper tribes and that responses were received, and the only omission is the failure to file a proof of service establishing that the notice and a copy of the petition were sent by certified mail, error will not be presumed and compliance will be deemed sufficient. [Citations.] But where, as here, there is no more than a conclusory statement in the social workers report that notice was sent, and the only document that was submitted to the court is incomplete, there is no substantial compliance with either the letter or the spirit of the ICWA. [Citations.] (In re Elizabeth W., supra, 120 Cal.App.4th at p. 907.)

In this case, the record contains the social workers report describing her own efforts, including that she called the Narragansett tribe and provided verbal notice. She also completed the Notice of Involuntary Child Custody Proceedings for an Indian Child and the Notice of Hearing Request to send to the tribe and the BIA. The report does not state whether the social worker actually sent the notices. The record also contains notices of continuance for the jurisdictional hearing which includes the tribe and the BIA in the list of the persons served. These notices of continuance, however, do not contain information relevant to confirm tribal membership or any notation that the case involves an Indian child. As the parties agree, the record does not contain copies of the ICWA notices, the return receipts, or any responses from the tribe or the BIA.

The juvenile court nevertheless found that, because no tribe had responded, ICWA did not apply. Without the proper documentation, however, the court could not ensure that the notices were sent and that they were accurate and complete. (See In re Asia L. (2003) 107 Cal.App.4th 498, 507; see also In reJeffrey A. (2002) 103 Cal.App.4th 1103, 1108; In re Marinna J. (2001) 90 Cal.App.4th 731, 739.) We conclude that the evidence was inadequate to support the courts finding.

Even where, as likely the case here, the possibility of Indian heritage is slim, the federal statute still requires compliance. (In re Elizabeth W., supra, 120 Cal.App.4th at p. 908.) As stated in our case, In re Jonathon S. (2005) 129 Cal.App.4th 334, we continue to hold that the proper procedure is to remand the case for the limited purpose of effecting compliance with ICWAs notice requirements.

4. Disposition

We reverse the trial courts order. On remand, the juvenile court is directed to conduct further proceedings as necessary to ensure full compliance with ICWAs notice requirements. If the court finds that ICWA does not apply, the court must reinstate the original order terminating mothers parental rights. If the court finds that Jaquelyn is an Indian child, it must hold a new hearing under section 366.26.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Ramirez

P.J.

We concur:

s/Hollenhorst

J.

s/Richli

J.

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