In re E.L.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICTMay 24, 2018
F076373 (Cal. Ct. App. May. 24, 2018)

F076373

05-24-2018

In re E.L., et al., Persons Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. JERRY L., Defendant and Appellant.

Seth F. Gorman, under appointment by the Court of Appeal, for Defendant and Appellant. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 516821, 516822, 516823)

OPINION

THE COURT APPEAL from an order of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge. Seth F. Gorman, under appointment by the Court of Appeal, for Defendant and Appellant. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.

Before Peña, Acting P.J., Smith, J. and Ellison, J.

-ooOoo-

Jerry L. (father) appeals from the juvenile court's order denying his Welfare and Institutions Code section 388 petition, by which he sought to reinstate his reunification services. Father contends the juvenile court abused its discretion in denying the petition without an evidentiary hearing. He also contends the juvenile court erred in failing to address whether active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, as required by the Indian Child Welfare Act (ICWA), 25 United States Code section 1901 et seq., and there is no substantial evidence to support an implied active efforts finding. We reject father's contentions and affirm.

Undesignated statutory provisions are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL BACKGROUND

Jerry and A.C. (mother) are the parents of now 12- and eight-year-old sons E.L. and T.L., and a five-year-old daughter M.L. (collectively the children).

In April 2013, mother agreed to voluntary family maintenance services after the Stanislaus County Community Services Agency (Agency) substantiated a referral alleging that seven-year-old E. was receiving inadequate medical care, food, and sleep. E. had a history of seizures, asthma, and anemia which required daily medications and ongoing medical treatment at Valley Children's Hospital (VCH) and Pleasanton for neurosurgery and neurological check-ups. In March 2013, he became unconscious while at school and was hospitalized at VCH, where he had brain surgery and a pacemaker was implanted. E., who was discharged home, disclosed to the social worker that mother sometimes forgot to give him his anti-seizure medications. Mother told the social worker there had been domestic violence with father, who had moved out of the family's home. Mother tested positive for "OPI" and father for THC.

Over the next six months, mother did not participate in services and failed to take E. to his medical appointments or refill his anti-seizure medication prescription. After mother and the children were evicted from their home in June 2013, they moved from motel to motel, and camped or stayed in shelters. Mother admitted she was using methamphetamine and needed help, but she had not followed through with her substance abuse assessment.

On September 30, 2013, the Agency received a referral that E. had been transported to the hospital because he had vomited and school staff could not wake him up. When the staff tried to reach mother, three-year-old T. answered the phone and said she was asleep. Two days later, mother was arrested for child endangerment when she left the children unsupervised at the motel. The children were taken into protective custody. Father said he was unable to take the children because he was living with paternal grandparents, who were unwilling to have the children in their home due to a lack of space. Father later admitted to the social worker that he was aware of the condition of mother's home, as well as the ongoing concerns regarding medical treatment and lack of supervision. He wanted the children to live with him, but he was without work or stable housing.

The Dependency Petition and Detention Hearing

The Agency filed a dependency petition on October 4, 2013, which alleged the children came within the provisions of section 300, subdivision (b) (failure to protect), based on mother's failure to provide for E.'s medical needs, her lack of supervision of the children, her ongoing substance abuse issues, and the unsafe and unsanitary condition of the motel room in which the family was staying. As to father, it was alleged: (1) he was made aware of the children's circumstances, but he was unable to care for them as he lived with paternal grandparents who were unwilling to have the children in the home due to space limitations (§ 300, subd. (b)); (2) the children were taken into protective custody, in part, due to father's inability or unwillingness to care for them (§ 300, subd. (b)); and (3) he was unwilling or unable to provide care for the children (§ 300, subd. (g) [no provision for support].).

Father completed a "Parental Notification of Indian Status" (ICWA-020) form in which he stated he may have Cherokee ancestry, while mother's form indicated she did not have any Indian ancestry. At the detention hearing, the juvenile court found ICWA may apply to the proceedings. The juvenile court ordered the children detained and ordered the parents to have weekly supervised visits with the children at the Agency. The parents were provided with referrals for counseling, parenting classes, and substance abuse assessments.

Notice of the proceedings was sent to three Cherokee tribes. The social worker later spoke with a representative of the Cherokee Nation of Oklahoma, who advised the family's lineage could be traced in their records.

The Jurisdiction and Disposition Hearing

At the January 2014 jurisdiction and disposition hearing, the juvenile court found the petition's allegations true after mother made a short offer of proof and father submitted on the petition. The juvenile court found that neither parent had been properly attending to E.'s medical needs and appointments, or providing him with his medications; mother had an ongoing history of substance abuse and had shown an inability to supervise the children; and during voluntary family maintenance services, father was unable to provide care for the children.

Father's attorney informed the juvenile court that father was no longer living with his parents, but he was not in a position to take care of the children because he did not have a home where the children could live. The juvenile court responded that it could not remove the children based on homelessness. Father's attorney stated that father informed him that while he wanted to take the children, he did not have a place to take them and the section 300, subdivision (g) allegation remained the same - he was not willing to take them that day. The juvenile court responded that father was not willing or able, and there were still ongoing issues of failure to protect.

The juvenile court adjudged the children dependents, removed them from parental custody, and found that active efforts had been made to prevent or eliminate the need for removal and to provide remedial services and rehabilitative programs designed to prevent the breakup of the potential Indian family, but those efforts were unsuccessful. Reunification services were offered to both parents and the court approved the Agency's case plan.

When this case began, under the provisions of former California Rule of Court, rule 5.482(c), when a tribe indicated a child was eligible for membership if certain steps were followed, the juvenile court was required to proceed "as if the child is an Indian child" and direct the Agency to provide active efforts under rule 5.484(c) to secure tribal membership for the child. The juvenile court and Agency complied with this rule throughout the proceedings. The California Supreme Court held the rule invalid in July 2016 in In re Abbigail A. (2016) 1 Cal.5th 83.

Father's service plan included objectives of obtaining and maintaining a suitable residence for himself and his children, consistently parenting the children, and showing his ability to provide adequate care for his child's special needs. Father's services were comprised of individual counseling services to address parenting a child with special medical needs and his willingness to have custody of the children, a parenting program, random drug testing, and a substance abuse assessment and following any recommended treatment.

While the juvenile court found at an earlier hearing that ICWA applied based on the children's eligibility for membership in the Cherokee Nation, at the January 2014 hearing, it found that ICWA might apply, because the children were not yet enrolled members. County counsel urged father and his attorney to consider applying for enrollment. At an April 2014 progress review hearing, the juvenile court ordered the Agency and father's attorney to assist with enrolling father and the children in the Cherokee Nation.

The Six-Month Review Hearing

The six-month review hearing was continued several times and ultimately concluded on August 15, 2014. The Agency initially recommended both father's and mother's services be continued, but it changed its recommendation as to father and asked that his services be terminated.

Father had not been compliant with his services. While he completed the intake for individual counseling, he did not attend any counseling sessions. He completed only three parenting classes. Father was referred for substance abuse treatment services. The social worker and his counselor agreed that instead of attending the treatment program, he would attend three AA/NA meetings per week as long as he continued to test clean. Father, however, failed to submit to substance abuse testing and did not provide AA/NA attendance meeting slips. The Agency was concerned about father's commitment to reunifying with the children, noting that while father had a full-time job, he was homeless and unwilling to share his plans with the Agency and court as to how he would care for the children.

The Cherokee Nation notified the Agency that the children were eligible for enrollment in the tribe, but the tribe was not empowered to intervene in the matter. Although the Agency had given father the tribal registration paperwork and original state birth certificates to enroll the children in the Cherokee Nation, father had not submitted the paperwork to the tribe.

At the contested review hearing, father's attorney made an offer of proof that father was working full-time, and asserted he would like custody of the children and objected to the termination of his services. The juvenile court found that father had not done much of anything to be able to reunify with the children, his visits were almost nil, and although father had been asked numerous times to enroll the children in the tribe, he failed to do so. The juvenile court made an active efforts finding. The court terminated father's reunification services, continued mother's services, and gave the social worker discretion to begin overnight visits with mother. Father's visits were reduced to a minimum of once per month.

The 12- and 18-Month Review Hearings

Mother's services were continued until the 18-month review hearing, which was conducted in July 2015. Between August 2014 and July 2015, father visited the children only once, in October 2014. The children had been placed with mother on a trial visit at her treatment facility in February 2015, but mother was discharged from the facility in May 2015 for violating her behavior contract and the children were returned to foster care. E., who had been in individual counseling since 2013 and had reached his treatment goals before being returned to mother, regressed while in mother's care - he became aggressive toward mother and his siblings, and refused to participate in therapy if his family was present.

At the July 2015 review hearing, the juvenile court terminated mother's reunification services and set a section 366.26 hearing for December 8, 2015. Neither father nor the children had been enrolled in the Cherokee Nation. While the tribe had received father's enrollment application, the children's applications had not been received and the Agency was preparing their applications.

Both parents filed notice of intent to file a writ petition, but neither parent filed a subsequent writ petition. Accordingly, we dismissed both matters as abandoned.

The Section 366.26 Hearing

The children were moved to a concurrent foster home on August 5, 2015. Initially the Agency recommended termination of parental rights and a permanent plan of adoption by the children's foster parents. The Agency, however, changed its recommendation and asked the court to find, pursuant to section 366.26, subdivision (c)(3), that termination of parental rights would not be detrimental to the children and the children had a probability of adoption, but were difficult to place. The Agency asked the court to identify adoption as the permanent placement goal without terminating parental rights, order the Agency to locate an appropriate adoptive family for the children, and continue the case for 180 days.

A bonding study of mother's relationship with the children had been performed by Dr. Cheryl K. Carmichael. Dr. Carmichael opined the children required significant medical, educational, and psychiatric intervention. Mother, however, did not have the endurance or capacity to meet the children's needs, and her interactions with the children escalated their dysfunctional behavior and emotional reactivity. In Dr. Carmichael's opinion, a continued relationship with mother would interfere with the children's well-being due to their dysfunctional relationship with mother and mother's inability to change her behavior.

Father visited the children only once in 2015 - on November 30, 2015. Based on Dr. Carmichael's report and father's lack of visits, the Agency recommended that mother's and father's visits be discontinued as visits were not in the children's best interest.

The December 2015 section 366.26 hearing was continued to February 2016. At the February 2016 hearing, the juvenile court found that visits would be detrimental and suspended them, noting that the issue of visitation could be revisited in the future. The juvenile court adopted the Agency's recommendation regarding the permanent plan and continued the hearing to August 2016. The Cherokee Nation received the children's enrollment applications in December 2015, but in January 2016, the tribe requested an affidavit signed by father and father's original state-certified birth certificate. The court found that ICWA may apply to the children and made an active efforts finding.

By the August 2016 hearing, the Agency had received the children's Certificates of Degree of Indian Blood, but the children's enrollment was not complete. The children had been in their foster home for one year, and although the foster parents were committed to the children, they were cautious about adopting all three due to their difficult behaviors. While the two younger children had demonstrated the ability to change their behavior, there were concerns about whether E. could do so, as he continued to struggle with difficult behaviors despite having multiple service providers.

At the August 2016 hearing, the juvenile court adopted the Agency's recommendation that the plan remain the same and continued the section 366.26 hearing to February 2017. The court found that active efforts had been made.

By February 2017, the children were enrolled in the Cherokee Nation; the social worker received their registration cards in October and November 2016. At the February 2017 hearing, the juvenile court granted the foster parents' request for de facto parent status and continued the hearing to March 2017, so the tribe could review the documents in the case.

The Agency subsequently recommended that the court establish a permanent plan of continuance in foster care, as barriers existed for a permanent plan of adoption. The Cherokee Nation did not support a placement that varied from the ICWA placement preferences and while the Agency was attempting to identify an ICWA-compliant adoptive home, no tribal adoptive home had been identified.

At the March 30, 2017 hearing, the juvenile court found that ICWA applied. The Cherokee Nation's ICWA representative, Amanda Neugin, stated that while the tribe did not necessarily object to the children's placement, it wanted the Agency to make active efforts to look for an ICWA-compliant placement. County counsel explained the tribe had participated in Agency meetings on the case and everyone agreed the Agency needed to attempt to find an ICWA-compliant home, which it was in the process of doing. Because of this, the Agency asked that the case be put on a section 366.3 track until either the Agency had exhausted its efforts to find an ICWA-compliant home or such a home was found. Neugin stated the tribe agreed with the plan.

Subsequent references to dates are to dates in 2017.

The juvenile court found the children were adoptable, but they were Indian children and an appropriate Indian adoptive family had not been identified. The court further found active efforts had been made to provide remedial services in rehabilitative programs designed to prevent the breakup of the Indian family and those efforts had been unsuccessful. With Neugin's approval, the court found good cause existed to deviate from the ICWA placement preferences, but the Agency would continue to make active efforts to locate an appropriate adoptive placement. A section 366.3 review hearing was set for September 26.

Father's Section 388 Petition

On June 1, father's attorney filed section 388 petitions as to each child on his behalf, asking the juvenile court to consider reopening father's reunification services, and to assess and consider his home for placement of the children.

As changed circumstances, the attorney stated: "Mr. L[] has proven to want a better life for his children by getting clean and sober by attending and completing the SRC and IOP After Care Program, gaining employment and renting an apartment that is sufficient and appropriate to accommodate his 3 children[,]" and he was "now capable of being a proper father." Attached to the petition were the following documents: (1) an undated "Move-In Contact/Track Sheet" for Archway Commons Apartments, which lists father as an applicant; (2) an undated letter stating that father worked for Valley Reception, a satellite television installation business apparently owned by paternal grandparents; and (3) a Stanislaus Recovery Center Completion Certificate awarded to father for completing the SRC After-Care Program, signed on January 31.

The petition stated the proposed order was in the children's best interest because they had been under the court's jurisdiction for nearly four years and still had not achieved permanency in an ICWA-approved concurrent placement, and father had "achieved sufficient recovery and fitness to provide a loving home to the children so the family should be reunified."

The juvenile court set a hearing for June 26 to address whether it should grant or deny an evidentiary hearing on the petition. At the June 26 hearing, the juvenile court decided to trail the matter to give the Agency, which was opposed to the motion, an opportunity to file a report. The court denied father's attorney's request that the report include an assessment of father's home. County counsel stated the Agency's position was not set in stone and the social worker wanted to speak with the therapeutic providers. The matter was trailed to July 31.

In the Agency's addendum report, the Agency opposed father's petition to reopen reunification services for six months. Father was granted family reunification services on January 21, 2014, but he never participated in the offered services and he visited the children inconsistently throughout 2014, at one point no-showing for six out of eight visits. He visited the children only once in 2015. At that visit, in November 2015, the boys were happy to see father, but M. did not appear to know who he was at first, although she warmed up to him during the course of the visit. The social worker did not have any current information on father's ability to meet the children's needs, as father had not contacted the social worker. The social worker stated it was not in the children's best interest to reopen father's services, as the children had been moved to an ICWA-approved concurrent home on July 17, they were bonding with their new caregivers, and the home may prove to provide the children with permanency.

Neither parent was present at the July 31 hearing. The children's attorney opposed father's section 388 petition, while mother supported it. Neugin had not seen enough evidence to warrant the tribe's agreement to reinstate father's services. Father's attorney was concerned because the matter was put over to assess father and he had not been assessed. Father's attorney added that father was not asking for the children to move in with him tomorrow, but just that he be permitted to reopen services and if he did well, "that might be something that might go farther." The attorney asserted that father was a normal, appropriately functioning member of society, as shown by the documentation provided of the things father had done, such as working full-time and having a home, and he should at least be given the opportunity to be assessed, start services, and prove himself.

The juvenile court responded that "your client didn't even think it was appropriate to be here today, which I find very concerning. And Mr. L[] has had a significant period of time to get his act together. And he says he's concerned, but he never does anything to show his real concern. And at this time, his visits were suspended a year and a half ago, and I just don't see any basis for the Court to grant the 388." The court did not see any benefit to the children in granting the petition and delaying permanency by giving father "some nebulous chance," when he had not even visited with the children for a year and a half. In addition, the court did not think it was the Agency's obligation to go through a major assessment when the only determination to be made was whether to grant or deny an evidentiary hearing. The juvenile court denied father's petition without an evidentiary hearing, finding that granting a hearing was not in the children's best interest and a significant change of circumstances had not been shown.

At the same hearing, the juvenile court considered whether to grant an evidentiary hearing on a section 388 petition the de facto parents filed, by which they sought return of the children to their care. The juvenile court denied the petition without an evidentiary hearing. While it found there was a significant change of circumstances based on the children's removal from the de facto parents' home, it found it was not in the children's best interest to grant a hearing, especially since the Cherokee Nation recommended the children remain in the ICWA-compliant home.

The Agency subsequently filed a section 388 petition as to each child to transfer the children's educational rights holder from the de facto parents to the children's current caregivers. The juvenile court granted the petitions at the August 28 hearing on the petitions.

While father's notice of appeal states that he is appealing from the orders made at the July 31 and August 28 hearings, he only challenges the order made at the July 31 hearing with respect to his section 388 petition.

DISCUSSION

The Section 388 Petitions

Father claims the juvenile court erroneously denied his section 388 petition without conducting an evidentiary hearing. He asserts he made a prima facie showing his circumstances had changed and the proposed modification - returning the children to his custody or providing further reunification services - was in the children's best interests.

Section 388 allows a parent of a dependent child to petition the juvenile court to change, modify, or set aside any previous juvenile court order. When it appears from the petition that the best interests of the child "may" be promoted by the proposed modifications, the court "shall" order a hearing on the petition. (§ 388, subd. (d); see In re Marilyn H. (1993) 5 Cal.4th 295, 309-310 (Marilyn H.) ["[t]he parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing"].) The juvenile court, however, may summarily deny a section 388 petition without a hearing if the petition fails to make the required prima facie showing, or it may order a hearing for the parties to argue whether the petition's allegations are sufficient to warrant an evidentiary hearing. (Cal. Rules of Court, rule 5.570(d) & (f); In re Alayah J. (2017) 9 Cal.App.5th 469, 479-480.) Here, the juvenile court did the latter.

Subsequent references to rules are to the California Rules of Court.

To trigger the hearing requirement under section 388, the parent must present a prima facie case of "(1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children." (In re Anthony W. (2001) 87 Cal.App.4th 246, 250 (Anthony W.).) A section 388 petition must be liberally construed in favor of its prima facie sufficiency (Rule 5.570(a); Marilyn H., supra, 5 Cal.4th at p. 309), but conclusory allegations in a petition or its supporting declarations, without supporting evidence, are insufficient to make the required prima facie showing. (Anthony W., supra, 87 Cal.App.4th at pp. 250-251.)

The prima facie showing "refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited." (In re Edward H. (1996) 43 Cal.App.4th 584, 593 (Edward H.).) This standard is not met by "general averments rather than specific allegations describing the evidence constituting the proffered changed circumstances or new evidence." (Ibid.) In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189.)

Once reunification services have been terminated, the focus of the proceedings shifts from reunification of the family to the child's needs for permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) At that point, there is a rebuttable presumption that continued foster care is in the best interest of the child. (Ibid.) Accordingly, in order to make a prima facie showing warranting a hearing at that point in the proceedings, the petition must state facts which would support the conclusion that the requested order would promote the child's interest in permanence and stability. (In re J.C. (2014) 226 Cal.App.4th 503, 527.) Moreover, not every change in circumstance justifies modification of the prior order - the change in circumstance must relate to the order's purpose and demonstrate that modification of the order is appropriate. (In re A.A. (2012) 203 Cal.App.4th 597, 612.) "In other words, the problem that initially brought the child within the dependency system must be removed or ameliorated. [Citations.] The change in circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged order." (Ibid.)

We review an order denying a section 388 petition for abuse of discretion. (Stephanie M., supra, 7 Cal.4th at p. 318.) The reviewing court will not disturb a juvenile court's " ' "decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination" ' " or, put another way, the trial court has exceeded the bounds of reason. (Id. at pp. 318-319). We find no abuse of discretion in this case.

As changed circumstances, father alleged he had secured suitable housing and a job, and he had gotten clean and sober by completing drug treatment and an aftercare program. Assuming these allegations were true and they would have been proven at an evidentiary hearing, "a change of circumstance warranting renewed reunification efforts . . . would not have been established." (Edward H., supra, 43 Cal.App.4th at p. 591.) To establish a prima facie case of changed circumstances, father needed to allege the circumstances that led to the children's removal were no longer present. He failed to do this.

Father asserts that he showed a "significant" change in circumstances because he ameliorated the primary cause for the children's removal from him, namely his lack of housing, and completed substance abuse treatment. The juvenile court, however, did not remove the children from father based solely on his lack of housing. Instead, it was father's unwillingness to provide them with housing, coupled with his failure to protect the children, that led to the children's removal from father's custody. In particular, father failed to ensure that E. received his medication and was taken to his medical appointments.

Obtaining stable and suitable housing was one of the goals of father's case plan. But there were two other goals: consistently parenting the children and showing his ability to provide adequate care for E.'s special needs. Father's new circumstances of having a job and housing did not accomplish these goals. While maintaining sobriety would help father in parenting the children, father needed the individual counseling and parenting classes that were part of his case plan to enable him to gain the insight and capability to adequately address E.'s special needs and parent the children. Father, however, did not offer any evidence that he had participated in or completed either service. While father asserted in his petition that he was "now capable of being a proper father," his belief is insufficient to make a prima facie showing of changed circumstances. Father simply failed to demonstrate he was prepared to safely parent the children such that the juvenile court should consider him a viable placement option.

Furthermore, father's petition did not make an adequate showing that his requested change - reopening his reunification services and assessing his home for placement of the children - would be in the children's best interests. While the children had not achieved permanency, father had not demonstrated, as alleged in his petition, that he had "achieved sufficient recovery and fitness to provide a loving home to the children so the family could be reunified." During the course of child welfare involvement, father did not demonstrate the capacity or desire to understand his children's needs and advocate for the children, or even be present in their lives. Father did not maintain a relationship with the children; his visits were inconsistent in 2014 and he had not seen the children for a year and a half, since his last visit with them in November 2015. His failure to visit led to the suspension of visits, which he did not seek to reinstate.

Father's attorney stated at the hearing that father was not asking for return of the children that day, but that services be reopened which, if father did well, could lead to "something that might go farther," and he merely wanted the opportunity to prove himself. Delaying permanency to determine whether a parent who has not reunified with the child might be able to reunify at some future point does not promote a child's best interests or stability for the child. (See Edward H., supra, 43 Cal.App.4th at p. 594.) "Childhood does not wait for the parent to become adequate." (Marilyn H., supra, 5 Cal.4th at p. 310.)

Father asserts there is no basis to conclude the children would achieve permanency with their new foster family, as they had only been in the home for two weeks, and therefore placing the children with him would result in only "temporary emotional discomfort or distress." But father's ability to take the children was far from certain, as even his attorney recognized. In contrast, the juvenile court had found the children adoptable and they had been placed in an ICWA-compliant, concurrent, home approved by the Cherokee Nation. Keeping in mind that the focus had shifted to the children's need for permanency and stability, rather than father's interest in reunification, it was not in the children's best interest to grant father further services and delay the permanency to which the children are entitled, whether that was with their current foster family or in another adoptive home.

Father complains because the juvenile court commented at the hearing that it was concerned that father "did not think it was appropriate to be here today." Father contends the juvenile court was speculating as to the reason for his absence, and the court's "heavy reliance" on this "irrelevant consideration" prejudiced him and should either be rejected or the case remanded for the court to properly exercise its discretion, citing E.C. v. J.V. (2012) 202 Cal.App.4th 1076, 1090-1091. Contrary to father's assertion, the court's comment does not indicate that it did not understand the law or improperly exercised its discretion. Moreover, his absence at the hearing, for whatever reason, does not change the fact that father failed to set forth evidence that would have sustained a favorable decision on his petition.

Father contends that the recent applicability of ICWA to the proceedings and his assertion that the record "strongly suggests" the children were removed from his custody without a finding of parental unfitness, supports a finding of changed circumstances and best interest. He asserts that in order for the court to successfully terminate his parental rights, it must again offer him services so that it can make an active efforts finding at the time of the termination of parental rights hearing, as well as findings of parental unfitness and that continued custody by father is likely to result in serious emotional or physical damage to the children.

Father did not raise these issues below, either in his section 388 petition or at the hearing. If a parent fails to object or raise an issue in the juvenile court, the parent is prevented from presenting the issue on appeal. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339; In re Aaron B. (1996) 46 Cal.App.4th 843, 846.) Raising an issue on appeal that was not asserted in the lower court "amounts to nothing more than an attempted sandbagging of the trial court." (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 813.) Here, the basis for father's section 388 petition was obtaining housing, gaining employment, and completing drug treatment, which made him a better parent, and providing father services was in the children's best interest because they had not achieved permanency and father could provide the children with a loving home. Father's appellate arguments that ICWA constitutes changed circumstances or factors into the best interest analysis were not even mentioned in the section 388 petition. Father simply did not alert the juvenile court to these potential issues so the court could attempt to resolve them at that time.

Moreover, father's argument is based on an incorrect premise - that the Agency was required to provide him services after the children were enrolled in the tribe and the juvenile court found ICWA applied. It is true that the parental rights to an Indian child may not be terminated if the court finds that active efforts, as required by section 361.7, have not been made, or if the court does not make a determination, supported by evidence beyond a reasonable doubt, "including testimony of one or more 'qualified expert witnesses' as defined in Section 224.6, that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child." (§ 366.26, subd. (c)(2)(B)(i), (ii).) Under section 361.7, when a party is "seeking an involuntary foster care placement of, or termination of parental rights over, an Indian child[,]" the juvenile court is required to find that "active efforts [were] made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." (§ 361.7, subd. (a).)

Thus, at a termination of parental rights hearing, the juvenile court must find that active efforts were provided, but were unsuccessful. But this does not mean that additional services must be provided to a parent whose services have been terminated after a child is belatedly determined to be an Indian child. (In re K.B. (2009) 173 Cal.App.4th 1275, 1288 [rejecting the parents' contention that a termination order cannot be sustained if no services were provided after the children were determined to be Indian children].) Instead, the juvenile court may comply with the directive by finding active efforts were made over the period of the dependency proceeding. (Ibid.)

The cases father cites, In re A.L. (2015) 243 Cal.App.4th 628, In re Barbara R. (2006) 137 Cal.App.4th 941, and In re Matthew Z. (2000) 80 Cal.App.4th 545, do not stand for the proposition that new active efforts must be made before a juvenile court may terminate parental rights. --------

In sum, because the liberally construed allegations would not have sustained a favorable decision on the section 388 petition, father was not entitled to an evidentiary hearing. (In re Zachary G. (1999) 77 Cal.App.4th 799, 808; In re Mary G. (2007) 151 Cal.App.4th 184, 205-206.)

Active Efforts

Father contends that the juvenile court was required to make an active efforts finding at the July 31 hearing on whether to grant an evidentiary hearing on his section 388 petition because the children recently had been moved to an ICWA-compliant home. He argues the record does not support an implied finding of active efforts and therefore "the denial of [his] request for services must be reversed" and the case remanded with directions to the superior court to ensure that active efforts are made.

Father recognizes this issue was not raised below, but nevertheless asserts it is cognizable on appeal, in part, because he may raise the question of substantial evidence to support a required finding even if he did not object below. The Agency agrees, but contends an active efforts finding was not required to deny an evidentiary hearing on father's section 388 petition. We agree with the Agency.

ICWA provides: "Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." (25 U.S.C. § 1912(d).) ICWA defines a "foster care placement" as "any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the children returned upon demand, but where parental rights have not been terminated." (25 U.S.C. § 1903(l)(i).) Section 361.7 specifically incorporates the "active efforts" provision of ICWA, requiring the juvenile court to find active efforts were made, but were unsuccessful, when "a party [is] seeking an involuntary foster care placement of, or termination of parental rights over," an Indian child. (§ 361.7, subd. (a).) Under these provisions, as applicable here, the juvenile court is required to make an active efforts finding when the Agency is seeking to place a child in foster care or terminate parental rights.

The July 31 hearing, however, was not a hearing at which the Agency was seeking to place the children in foster care or to terminate parental rights. Instead, the juvenile court was deciding at that hearing whether to grant father a hearing on his section 388 petition to reopen services. This required the juvenile court to determine whether father had made a prima facie showing of changed circumstances or new evidence, and reopening services would be in the children's best interest. The juvenile court found such a showing had not been made and denied the petition without an evidentiary hearing. The juvenile court did not make an order placing the children in foster care or terminating parental rights. Accordingly, it was not required to make an active efforts finding.

Father contends that moving the children from the de facto parents' home to the ICWA-compliant home was a "foster care placement" under ICWA that required the juvenile court to make an active efforts finding. In support of this contention, he relies on an Oregon case, Department of Human Services v. J.G. (2014) 260 Or.App. 500 (J.G.). In that case, the Oregon court concluded that "ICWA's definition of 'foster care placement' should not be read narrowly to include only the initial removal of the child from his or her parents[,]" but that ICWA's provisions also are intended to apply to subsequent placements. (Id. at p. 947.) The court went on to hold that the establishment of a guardianship with the child's current foster parents was a "foster care placement" under ICWA, as the guardianship terminated the social service department's custody of the child, and placed legal and physical custody of the child with the guardian, and the guardianship was a "significant shift in legal rights" that legally removed the child from the foster care placement to the guardianship. (Id. at p. 948.)

In a later case, the Oregon appellate court emphasized "that the 'active efforts' determination requirement remains applicable in the event of either a change in the character of the foster care placement, e.g., to a permanent plan of guardianship, see J.G., 260 Or.App. at 515-520, 317 P.3d 936, or termination of parental rights." (Department of Human Services v. S.R.H. (2016) 278 Or.App. 427 [381 P.3d 1059, 1068, fn. 17], italics added (S.R.H.).) Thus, the court in S.R.H. held that so long as the permanency plan of planned permanent living arrangement continued without change, an active efforts determination was not required, even if one had not been made previously. (S.R.H., supra, 381 P.3d at pp. 1067-1068.) Similarly, the Oregon appellate court has held continuation of a permanent plan of adoption after a permanency hearing, even though the child had been moved from one potential adoptive placement to another, did not "effect[] a foster care placement" and therefore did not require a showing of active efforts. (Department of Human Services v. W.H.F. (2012) 254 Or.App. 298 [295 P.3d 78, 81-82]; see also Department of Human Services v. J.M. (2014) 266 Or.App. 453 [338 P.3d 191, 202] [change in permanency plan from reunification to adoption was not a "foster care placement" under ICWA; court distinguished J.G. on the basis that it involved the " 'significant shift in legal rights' that occurs when a guardianship is established"].)

Here, the children had already been removed from their parents and there was no change in the character of their placement when they were moved from the de facto parents' home to the ICWA-compliant home - both were concurrent foster homes and the permanency plan remained the same, namely continuance in foster care under the continued supervision of the Agency. The move to an ICWA-compliant foster home within that plan did not effect a foster care placement, and therefore the move did not require an active efforts determination.

Aside from the Oregon case, father cites to provisions of ICWA and California law that he contends support his position. He cites to 25 United States Code section 1916, subdivision (b), which provides that "[w]henever an Indian child is removed from a foster care home or institution for the purpose of further foster care, preadoptive, or adoptive placement, such placement shall be in accordance with the provisions of this chapter, except in the case where an Indian child is being returned to the parent or Indian custodian from whose custody the child was originally removed." Section 224, subdivision (b) similarly provides, in relevant part, that "[w]henever an Indian child is removed from a foster care home or institution, guardianship, or adoptive placement for the purpose of further foster care, guardianship, or adoptive placement, placement of the child shall be in accordance with the [ICWA]."

Father asserts that because these statutes mention removing an Indian child from a foster care home for the purpose of further foster care, they must require an active efforts finding whenever an Indian child is moved from one foster home to another. These statutes, however, by their terms address placement of the child, not when an active efforts finding is required. Where ICWA applies, the juvenile court must adhere to the placement preferences set forth in the act absent good cause to the contrary. (25 U.S.C. § 1915; rule 5.484(b).) Here, the juvenile court found at the March 2017 hearing that there was good cause to deviate from the placement preferences, but ordered the Agency to continue to make active efforts to locate an appropriate adoptive placement. For an adoptive placement, preferential consideration is to be given to the following, in descending order: (1) a member of the child's extended family; (2) other members of the child's tribe; or (3) other Indian families. (25 U.S.C. § 1915, subd. (a); § 361.31, subd. (c).) It is this placement preference that must be followed, absent a showing of good cause, when a child is moved from one adoptive placement to another.

Finally, father cites rule 5.484(c), which provides, in relevant part: "In addition to any other required findings to place an Indian child with someone other than a parent or Indian custodian, or to terminate parental rights, the court must find that active efforts have been made . . . to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and must find that these efforts were unsuccessful." He broadly reads the rule to require an active efforts finding whenever an Indian child is being placed with someone other than a parent, which he asserts includes a move from one foster home to another.

Rule 5.484, however, governs the placement of an Indian child and the requirements that must be satisfied when a court removes the child from parental custody and orders placement with someone other than the parents. This rule does not apply here for the simple reason that the juvenile court did not order a change of placement at the July 31 hearing. Instead, the juvenile court ordered the change of placement at the March 30 section 366.26 hearing, when it found good cause to deviate from the ICWA placement preferences and ordered the Agency to find an ICWA-compliant adoptive home. We agree with the Agency that the move of the children to the ICWA-compliant foster home was simply a step in the execution of the plan approved at the March 2017 permanency hearing, during which the juvenile court made an active efforts finding. Father did not appeal from this hearing; therefore, the finding is now res judicata and may not be raised in this appeal. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1152.)

DISPOSITION

The July 31, 2017 order denying father's section 388 petition is affirmed.

Retired judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.