California Court of Appeal Apr 28, 2015 No. E061335Unpublished
Filed 4/28/15 In re J.T. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 J.T., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E061335
Plaintiff and Respondent, (Super.Ct.No. RIJ112684)
v. OPINION
S.T.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Tamara L. Wagner,
Judge. Affirmed.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and
Appellant.
Gregory P. Priamos, County Counsel, and Carole A. Nunes Fong, Deputy County
Counsel, for Plaintiff and Respondent
1
Defendant and appellant S.T. (mother) is the mother of J.T., who was three years
old at the time of the latest challenged order. Mother appeals from the juvenile court’s
order of June 5, 2014, denying her petition under Welfare and Institutions Code section
388.1 Mother argues the court abused its discretion when it denied her petition. Mother
also argues the court erred at the October 7, 2013, disposition hearing when it found the
Department of Public Social Services (DPSS) had complied with the notice requirements
imposed by the Indian Child Welfare Act (ICWA) (25 U.S.C., § 1901, et seq.) As
discussed below, we reject both arguments and affirm the juvenile court’s orders.
STATEMENT OF FACTS AND PROCEDURE
Prior Child Welfare Issues re J.T.’s Three Older Siblings—2006-2013
Mother lost her parental rights to J.T.’s three older siblings in 2013. Prior to that,
his two oldest siblings were declared dependents in 2006 because of mother’s transient
lifestyle and participation in domestic violence. Another older sibling was detained at
birth, declared a dependent child and returned to mother on family maintenance in 2007.
The two oldest siblings were returned to mother on family maintenance in 2008. The
dependency was terminated later that year. The children were again detained in 2010
because mother physically abused one of them and abused drugs and alcohol. They
never returned to mother’s care.
1All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
2
Prior Dependency for J.T.—2011-2013
In March 2011, mother gave birth to J.T., her fourth child, while in a prison
treatment program, and she received family maintenance services for him. In March
2012, J.T. was detained when mother was incarcerated for an outstanding warrant. J.T.
was returned to mother eight days later on family maintenance. In July 2012, J.T. was
again detained after mother got into a physical altercation with another resident in her
transitional living facility. In August 2012, J.T. was returned to mother’s care on family
maintenance. In February 2013, J.T.’s dependency was terminated and mother was given
full custody.
Detention on Current Dependency - July 2013
Only five months later, in July 2013, J.T. and his one-month-old brother, M.T.,
were detained after mother called police during a physical altercation with M.T’s father.2
M.T. fell off the bed during the altercation. Mother admitted to drinking alcohol earlier
in the evening and driving with the two children while drunk. DPSS detained the
children.3
On July 24, 2013, the juvenile court ordered the children detained and granted
mother supervised visits. Also on that date, mother filed a form ICWA-020, Parental
Notification of Indian Status, in which she checked the box denoting “I may have Indian
2 M.T.’s father is not J.T.’s father.
3 M.T. is not the subject of this appeal. He is mentioned only where necessary. Each of the two children was eventually placed with his respective paternal grandparents.
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ancestry” but failing to give the names of any particular tribes. The court found that
ICWA may apply and ordered DPSS to provide ICWA notices.
On August 15, 2013, DPSS sent ICWA notices to the three Cherokee tribes listing
J.T.’s father’s name, but under mother’s name the tribe was listed as “No Tribe
Specified.” No notices were sent to any Blackfeet tribes. The Cherokee tribes responded
that the two children are not eligible for tribal membership based on the information
provided.
On August 16, 2013, the social worker interviewed mother regarding her Native
American ancestry. Mother reported that she might have Cherokee ancestry on her
mother’s side through her great grandfather and Blackfeet ancestry on her father’s side
through her great grandmother. DPSS did not send additional ICWA notices based on
this new information.
Jurisdiction and Disposition—October 2013
On October 7, 2013, the juvenile court took jurisdiction of the two children and
denied mother reunification services under section 361.5, subdivision (b)(10), because
mother had failed to reunify with J.T.’s three older siblings. The court set a section
366.26 hearing and limited mother’s visits to once per month. The court followed the
DPSS recommendation and found that ICWA noticing requirements has been fulfilled
On January 31, 2014, mother filed a section 388 petition regarding J.T.’s sibling,
M.T., asking for reunification services.
The hearing on the section 388 petition was held on February 13, 2014. Mother
testified about the services she had completed, her visits with M.T., and her relationship
with him. The juvenile court denied the section 388 petition, stating it “would find that
these do represent changed circumstances, but the Court’s not able to say that this finding
of changed circumstances is an indication that the Court has any reasonable belief that
her future course of conduct or future history, if you will, is going to be any different than
her past history.”
On February 18, 2014, mother appealed from the juvenile court’s denial of the
section 388 petition regarding M.T., argued DPSS had not complied with ICWA notice
requirements, and challenged the October 7, 2013, visitation order. On August 19, 2014,
this court issued a limited remand so DPSS could properly notice all identified Native
American tribes, but otherwise affirmed the court’s orders.
Placement with Paternal Grandparents—March 2014
On March 14, 2014, J.T. was placed with his paternal grandparents in Arkansas.
The paternal grandparents had expressed interest in adopting J.T. and raising him with his
sister, who had previously been placed with the paternal grandparents in legal
guardianship.
5
Section 388 Petition—May 2014
On May 15, 2014, mother filed a section 388 petition regarding J.T. This petition
is the subject of this appeal. In this petition, as with the previous petition regarding M.T.,
mother asked for reunification services. Mother claimed that her circumstances had
changed in that she had completed an outpatient substance abuse program, consistently
tested negative for drugs, completed parenting and “aggressive replacement” classes,
participated in NA/AA meetings, was currently attending an additional outpatient
substance abuse program and parenting program, was visiting J.T. regularly, and had
obtained housing and employment. Mother stated the requested order would be in J.T.’s
best interest because he has a bond with mother.
In an addendum report filed June 2, 2014, DPSS reported it could not assess
mother’s current circumstances in response to the section 388 petition because mother’s
telephone had been disconnected and mother had not contacted the social worker or
provided a new means of contacting mother. DPSS recommended the court terminate
mother’s parental rights to J.T. and set a Planned Permanent Living Arrangement with
the paternal grandparents, with the goal of adoption, as J.T.’s permanent plan.
On June 5, 2014, the juvenile court held a combined hearing on the section 388
petition and to determine a permanent plan for J.T. under section 366.26. Mother
testified that, after the court denied her reunification services at the disposition hearing on
October 7, 2013, she had completed a seven- or eight- month outpatient substance abuse
program at MFI, attended AA/NA meetings, tested negative for drugs, completed an
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aftercare program through MFI, completed an “aggressive replacement treatment” and a
parenting program, and was currently in an outpatient aftercare program to maintain her
sobriety. Mother had an AA/NA sponsor and had learned coping skills to deal with her
anger. Many services were available through the aftercare program, including drug
testing, parenting, anger management and domestic violence. Mother testified she had
her own one-bedroom apartment and was working full time providing day care for her
uncle’s children. Mother testified about her relationship with J.T., how she had visited
him regularly and had maintained telephone contact with him after he moved to
Arkansas, despite the lack of cooperation from the paternal grandparents. After hearing
mother’s testimony and argument from counsel, the court found that mother’s
circumstances were changing but not changed, and that it would not be in J.T.’s best
interest to give up the stability he had acquired. The court denied the petition.
County counsel pointed out that DPSS would need to conduct further ICWA
noticing and, “in an abundance of caution” asked that the section 366.26 hearing be
continued until that could be accomplished. The court pointed out the importance of
complying with ICWA and proceeded to extensively question mother and the two
maternal aunts who were present about any Native American heritage in mother’s family.
The section 366.26 hearing was continued to October 3, 2014.
Mother filed her notice of appeal on June 9, 2014.
On October 20, 2014, DPSS filed a Request for Judicial Notice containing the
ICWA noticing documentation sent to the Blackfeet Nation in July 2014 and to the three
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Cherokee tribes in September 2014. We hereby GRANT the request for judicial notice.
(Evid. Code, §§ 459, 452; In re Marina S. (2005) 132 Cal.App.4th 158, 166)
DISCUSSION
1. ICWA Notice
Mother first argues the juvenile court erred when it found at the disposition
hearing on October 7, 2013, that the Indian tribes had been properly noticed and that
ICWA does not apply. Specifically, mother contends the ICWA notices mailed on
August 15, 2013, were inadequate because they did not include the information she
supplied the following day that she had possible Cherokee and Blackfoot heritage. We
agree that the notices were inadequate and that the juvenile court erred when it found that
the notices complied with ICWA. However, as mother acknowledges in her reply brief,
the notices sent in July and September of 2014 do fully comply with ICWA. Given that
the purposes4 of the ICWA noticing requirements have been fulfilled here, we see no
need to reverse the disposition and subsequent orders. Mother has not carried her burden
on appeal to establish that reversal is required.
2. Section 388 Petition
Mother also argues the juvenile court erred in June 2014 when it denied her
section 388 petition. We disagree, as explained below.
4 No tribe with which J.T. may be affiliated was denied participation in these dependency proceedings. (See In re Karla C. (2003) 113 Cal.App.4th 166, 174.) Two of the three Cherokee tribes responded that J.T. did not meet the definition of an Indian child within their tribes, as did the Blackfeet Nation.
8
“Under section 388, a person with an interest in a dependent child may petition the
court to change, modify, or set aside a previous court order. The petitioning party has the
burden of showing, by a preponderance of the evidence, that there is a change of
circumstances or new evidence, and the proposed modification is in the child’s best
interest. [Citations.]” (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)
“The grant or denial of a section 388 petition is committed to the sound discretion
of the trial court and will not be disturbed on appeal unless an abuse of discretion is
clearly established. [Citation.]” (In re Shirley K. (2006) 140 Cal.App.4th 65, 71.) “‘The
appropriate test for abuse of discretion is whether the trial court exceeded the bounds of
reason. When two or more inferences can reasonably be deduced from the facts, the
reviewing court has no authority to substitute its decision for that of the trial court.’
[Citation.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Here, as described above, mother testified that, after the court’s order denying
reunification services, she participated in drug treatment and was enrolled in an aftercare
program, was testing negative for drugs and attending AA/NA meetings, had participated
in parenting, anger management and domestic violence classes and “aggressive
replacement treatment,” and had obtained her own apartment and employment so she
could support J.T. should she be reunited with him.
However, as the People point out, in the eight months between the denial of
reunification services and the section 388 hearing, mother missed an entire month of
AA/NA meetings in December 2013/January 2014. Further, the record shows she last
9
attended a meeting on March 19, 2014, and did not resume attendance for another two
months—after filing the section 388 petition. In addition, the record in the prior appeal
shows that mother had participated in reunification services during at least three previous
dependencies to address her drug and alcohol abuse and physical abuse of J.T.’s siblings,
but failed to benefit from them. Given this evidence of mother’s long-term struggle with
substance abuse and physical violence, and her history of failing to derive lasting benefit
from reunification services designed to help her safely parent J.T. and his three older
siblings, we cannot say that the juvenile court abused its discretion when it denied her
section 388 petition.
DISPOSITION
The juvenile court’s orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.
We concur:
McKINSTER J.
KING J.
10
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the denial of the mother's section 388 petition, finding no abuse of discretion in the juvenile court's determination that the mother failed to demonstrate changed circumstances or that modification was in the child's best interest. The court also held that while initial ICWA notices were inadequate, subsequent compliance rendered reversal unnecessary.
Issues
Did the juvenile court abuse its discretion in denying the mother's section 388 petition for reunification services?
Did the juvenile court err in its initial finding that ICWA notice requirements were satisfied?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The grant or denial of a section 388 petition is committed to the sound discretion of the trial court and will not be disturbed on appeal unless an abuse of discretion is clearly established.”