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In re S. E. et al., Persons Coming Under the Juvenile Court v. P. E

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


November 30, 2010

IN RE S. E. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
P. E., DEFENDANT AND APPELLANT.

The opinion of the court was delivered by: Robie, J.

In re S.E.

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

P. E., mother of the minors, appeals from orders of the juvenile court terminating her parental rights. (Welf. & Inst. Code,*fn1 §§ 366.26, 395.) Appellant challenges findings made at the permanency planning hearing, arguing there is good cause to grant her relief from the requirement of filing a petition for extraordinary writ to address those issues. (Cal. Rules of Court, rule 8.450.) Appellant further contends that the court erred in denying her petition for modification and that reversal is required to provide proper notice pursuant to the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) We affirm.

FACTS

Two-year-old Pa. E. and eight-month-old S. E. were removed from appellant's custody in March 2008 due primarily to appellant's mental health issues which led her to neglect the minors.*fn2 The minors' father was in custody. Subsequent investigation revealed that domestic violence and substance abuse were also issues in the home. The minors showed significant physical and behavioral effects of neglect.

The court adopted a reunification plan which required appellant to demonstrate consistent stable behavior, and to participate in therapy, a domestic violence program, a parenting class, a substance abuse assessment, and psychotropic medication monitoring. Appellant agreed to attend drug court. At the six-month review, appellant and the father were living together again although appellant previously said she was filing for divorce and there was a no-contact order in effect. Neither parent was fully compliant with the service plan; however, appellant was participating in some of the services. The court ordered further services for both parents as recommended by the Sacramento County Department of Health and Human Services (the department).

By the 12-month permanency review hearing in August 2009, appellant was generally compliant with the service plan but her progress was superficial and she did not acknowledge that domestic violence in the home had affected the minors. Appellant said she had documentation from her doctor that she no longer needed psychotropic medication or counseling but did not provide the documentation to the social worker.*fn3 Appellant was having difficulty managing all three minors at visits. Appellant had filed a police report following a incident of domestic violence with the father in May 2009. The father was later arrested for the incident. Appellant had not been forthcoming about the recent domestic violence to her therapist or the social worker. The social worker recommended termination of services. At the permanency hearing, which occurred 17 months after the minors' removal, the court ordered appellant's services to continue to the maximum period of 18 months; directed the department to increase the frequency of visitation and refer appellant for additional therapy; and terminated services for the father, who remained in custody.

The report for the permanency planning hearing stated expedited referrals for the therapy ordered at the permanency hearing were made and the length of visits increased. Appellant continued to have difficulty managing the minors' behavior in visits and had the grandparents present at one visit although they were not approved for visitation and their presence was a violation of visit rules. Appellant had completed most services but still had not provided the social worker proof of her medical evaluation and had not benefited from the services provided to her.

At the hearing, the social worker confirmed he made the therapy referrals which were intended to improve appellant's ability to control the minors at visits. The social worker said there were scheduling problems with the interactive therapy and concerns from the service provider that the therapy was not appropriate because there was no plan to return the minors to appellant within 10 weeks. The social worker testified appellant and the minors were on a waiting list for joint therapy. The social worker described appellant's continuing problems in visits and failure to abide by visit rules by having unauthorized people come to visits. After argument, the court stated it would not make a finding reasonable services were not provided based on the lack of completion of the interactive and conjoint therapy that had been ordered to strengthen the parent-child relationship rather than to effect reunification. The court noted appellant had been provided a wealth of services, yet violated visit rules after she was given a second chance. The court expressed concerns that appellant continued to be in a relationship with the father which was marked by serious violence. Based on the evidence and the fact that more than 18 months had elapsed, the court adopted the recommended findings and orders terminating services.

Appellant filed a notice of intent to file a petition for extraordinary writ. Five days before the petition was due to be filed, counsel for appellant filed a motion to be relieved for the limited purpose of allowing appellant to file a writ petition in pro. per. Counsel had determined there were no legal grounds for filing such a petition and had declined to do so. Appellant had asked to proceed on her own. The record does not disclose that appellant had notice of the motion and she was not present at the hearing when the court granted the motion four days prior to the date the petition was due. Appellant did not file a petition and the case was closed.

The report for the section 366.26 hearing stated appellant continued to have difficulty interacting with all three minors at visits although visits did have positive aspects. The report recommended terminating parental rights for S. E. and Pa. E. who were considered generally adoptable. The father remained in custody.

Appellant filed a petition for modification seeking placement of the minors or renewed services. She alleged circumstances had changed because she had filed for divorce from the minors' father, continued to have loving visits with the minors, and maintained a job and a home. She further alleged she desired to move on from her domestically violent past to a happy and healthy future. Appellant alleged the proposed order was in the minors' best interests because return would allow them to live in one home and grow up together.

At the hearing, appellant acknowledged she had just begun the divorce proceedings, having filed the summons that day. She stated she had not had contact with the father since the last hearing seven months earlier. She described a typical visit, the minors' reactions to her, and how she managed their interactions. The father remained in custody and did not attend the hearing. The court denied the petition for modification, finding there had been neither a change in circumstances nor a showing that the proposed order was in the minors' best interests. The court recognized that appellant had filed for divorce and had not been in contact with the father but found there was no indication she had addressed the underlying issues in the case through further therapy or other services. The court concluded appellant failed to meet her burden to justify a favorable ruling on her petition for modification. The court terminated parental rights as to S. E. and Pa. E.

DISCUSSION

I Appeal Of The Permanency Review Hearing

Appellant attempts to challenge the orders made at the permanency review hearing terminating her reunification services and setting a section 366.26 hearing. Appellant recognizes that the orders are not appealable and must be reviewed by the extraordinary writ procedure authorized by section 366.26, subdivision (l) and detailed in California Rules of Court, rules 8.450 and 8.452. She contends she should be relieved from the writ requirement because she did file a notice of intent but her counsel did not file a petition.

In support of this argument, appellant relies upon two lines of cases which provide relief from complying with the writ requirements if good cause is shown. In the first, late filing of either the notice of intent or the petition could be excused if there was good cause for the delay. (Karl S. v. Superior Court (1995) 34 Cal.App.4th 1397, 1403-1404 [dismissing petition for late filing of notice of intent but recognizing the existence of a good cause showing to explain delay]; Roxanne H. v. Superior Court (1995) 35 Cal.App.4th 1008, 1012 [dismissal of petition as untimely filed and noting, but not applying, a good cause exception]; Jonathan M. v. Superior Court (1995) 39 Cal.App.4th 1826, 1830-1831 [dismissing petition for untimely filed notice of intent and limiting the Karl S. exception to circumstances where delay was attributable to a third party].) These cases are factually distinguishable from the matter before us in that they involved attempts to excuse late filing of either the petition or the notice of intent. Here, the notice of intent was timely filed and no petition was ever filed. The good cause exception in this line of cases is inapplicable to this appeal.

In the second line of cases, courts have found good cause to excuse the complete failure to file a notice of intent and a petition where a parent who did not attend the hearing received no notice or inadequate notice of the right to writ review of the order setting the section 366.26 hearing. (In re Cathina W. (1998) 68 Cal.App.4th 716, 722 [court failed to give timely and accurate notice of the right to writ review]; In re Rashad B. (1999) 76 Cal.App.4th 442, 450 [court's error in failing to secure permanent mailing address led to lack of notice of right to writ review].) These cases are also factually distinguishable from the instant case. Appellant was present in court when the section 366.26 hearing was set, was given notice of her right of writ review, and filed a timely notice of intent.

In an attempt to invoke the "good cause" exception, appellant argues that counsel's failure to file a petition on her behalf violated counsel's professional responsibilities thereby creating good cause to avoid the requirement of writ review. We disagree.

It is well settled that "when an attorney evaluates a case and determines there is no potentially meritorious issue to be raised, a petition for extraordinary writ simply should not be filed." (Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 584.) Indeed, a "petition that the attorney did not believe to be 'legal or just' would violate the attorney's professional obligation and would be frivolous." (Ibid.)

Setting aside the question of whether this court would have accepted a petition filed by appellant following the juvenile court's order relieving trial counsel for the limited purpose of allowing appellant to file the writ petition on her own, in light of the fact that counsel had no duty to file a petition she clearly evaluated as lacking in merit, we view counsel's motion to be relieved for a limited purpose and the court's ruling to have no effect on the proceedings. Further, if appellant was concerned that counsel's representation either in failing to file a petition or in failing to provide notice of the motion to be relieved was inadequate, she could, and should, have raised the issue in the trial court either by a petition for writ of habeas corpus (In re Darlice C. (2003) 105 Cal.App.4th 459, 467) or a request for new counsel (People v. Marsden (1970) 2 Cal.3d 118). This would have provided the trial court the opportunity to reset the section 366.26 hearing and restart the time for writ review if it found merit in appellant's claims. Appellant appeared in court several times before her parental rights were terminated but did not raise any question regarding counsel's representation. Nothing in the record before us suggests counsel's representation was in any way inadequate. (Strickland v. Washington (1984) 466 U.S. 668, 688; [80 L.Ed.2d 674, 693]; People v. Pope (1979) 23 Cal.3d 412, 426.)

Appellant has not established any good cause to avoid the requirement of filing a petition for writ review. Any issues relating to the hearing terminating reunification services and setting a section 366.26 hearing may not now be asserted. (§ 366.26, subd. (l).)

II ICWA Requests

Appellant contends notice to the tribes did not comply with the ICWA because there were errors in the information on the father's Indian ancestry.

The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) The juvenile court and the department have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.481(a).) If, after the petition is filed, the court "knows or has reason to know that an Indian child is involved," notice of the pending proceeding and the right to intervene must be sent to the tribe or the Bureau of Indian Affairs if the tribal affiliation is not known. (25 U.S.C. § 1912; § 224.2; see Cal. Rules of Court, rule 5.481(b).) Failure to comply with the notice provisions and determine whether the ICWA applies is prejudicial error. (In re Kahlen W. (1991) 233 Cal.App.3d. 1414, 1424; In re Desiree F. (2000) 83 Cal.App.4th 460, 472.)

At the outset of the case, the paralegal investigating ICWA claims questioned appellant about her Indian heritage. Appellant said she believed she had Cherokee and Choctaw heritage and provided some family history. Appellant further told the paralegal she believed the father also had Cherokee ancestry. The paralegal sent notices to the tribes with the information appellant provided although the spelling of the paternal grandmother's name differed from the spelling in a later social worker's report. When the social worker questioned the father, he denied he had any Indian heritage.

The only reason information on the father was included in the initial notices to the tribes was that appellant told the social worker he had Indian ancestry. However, the father disclaimed any Indian heritage. Accordingly, any misspelling of the names of his ancestors was harmless since his ancestry could have no impact on the tribes' decisions about the status of the minors. (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576.)

III Petition For Modification

Appellant argues the juvenile court erred in denying her petition for modification.

A parent may bring a petition for modification of any order of the juvenile court pursuant to section 388 based on new evidence or a showing of changed circumstances.*fn4 "The parent requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is a preponderance of the evidence. [Citation.]" (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) Determination of a petition to modify is committed to the sound discretion of the juvenile court and, absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) The best interests of the child are of paramount consideration when the petition is brought after termination of reunification services. (In re Stephanie M., at p. 317.) In assessing the best interests of the child, the juvenile court looks not to the parent's interests in reunification but to the needs of the child for permanence and stability. (Ibid.; In re Marilyn H. (1993) 5 Cal.4th 295, 309.)

The sole change in circumstances in evidence at the hearing on the petition for modification was that appellant had filed for divorce and served the father with the documents just prior to the hearing. Appellant also testified she had not been in contact with the father in months; however, as the court observed, he had been in continuous custody and it was relatively simple to avoid contact. Appellant did not establish she had renewed participation in any services or had dealt with the issues underlying the dependency in any positive way. Given the seriousness of the minors' neglect as a result of appellant's significant mental health issues, substance abuse, and domestic violence problems at the beginning of the proceedings, simply maintaining the status quo after termination of services was not enough to outweigh the minors' interests in permanence and stability and justify a modification of the prior orders. Further, the petition did not allege and appellant did not testify to any facts at the hearing from which the court could conclude the proposed order was in the minors' best interests. At best, she expressed a desire to move on to a healthy future. However there was no evidence she had made such a move possible by taking positive rehabilitative steps. The juvenile court did not abuse its discretion in denying the petition for modification.*fn5

DISPOSITION

The orders of the juvenile court are affirmed.

We concur: RAYE, Acting P.J. HULL, J.


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