(Super. Ct. Nos. J32522, J32523, J32524)
The opinion of the court was delivered by: Duarte , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
M.M. (mother) appeals from the juvenile court's orders denying her petition to modify previous orders and terminating her parental rights as to minors J.M., Ma.M., and L.M. (Welf. & Inst. Code,*fn1 §§ 366.26, 388, 395.) Mother contends that the court erred by denying her section 388 petition and by finding several statutory exceptions to adoption inapplicable.
Mother's youngest child, Me.M., currently in mother's custody under a family maintenance plan, has also appealed the termination of parental rights and filed a separate brief containing several additional contentions, with which mother joins. As we will explain, we reject the claims of error and shall affirm the orders of the juvenile court.
FACTUAL AND PROCEDURAL BACKGROUND
Petitions and Initial Proceedings
On August 22, 2008, the Butte County Department of Employment and Social Services (the Department) filed section 300 petitions as to J.M. (a girl born in November 2000), Ma.M. (a boy born in November 2001), L.M. (a boy born in June 2003), and Me.M. (a girl born in May 2004). The petitions alleged that mother maintained a filthy home, had a longstanding substance abuse problem, and had gone through a prior dependency proceeding with the minors, during which the services of father (now an incarcerated felon) had been terminated.
Pursuant to the Indian Child Welfare Act (ICWA), the parents claimed ancestry in the "Big Valley Pomo Tribe"*fn2 and Mechoopda Indian Tribe of the Chico Rancheria, and that the minors were members/might be eligible for membership in both tribes.
The detention reports confirmed that the minors and father were enrolled members of the Big Valley Tribe; mother was an enrolled member of the Mechoopda Tribe and eligible for membership in the Big Valley Tribe and possibly other tribes.
On August 26, 2008, ICWA notice was sent to the Big Valley Tribe, the Mechoopda Tribe, and other tribes.
As of September 29, 2008, the Department had return receipts from all the noticed tribes. The record shows no response from the Mechoopda Tribe. However, the Big Valley Tribe applied to intervene in the proceedings, and the juvenile court granted the application.*fn3
At the jurisdictional hearing, the juvenile court found the allegations of the section 300 petitions true and authorized the appointment of an Indian expert.
The disposition report recommended out-of-home placement for the minors and reunification services for mother, but not for father.
The minors were placed together in a certified non-Indian foster home. They had not been placed in an Indian home because no known Indian home could take all four minors, the tribe had not provided a placement, and there were no appropriate relatives who could be approved for placement.
The minors were developmentally normal, except for J.M., who had Down's Syndrome and a heart murmur. The three younger minors attended Four Winds School (Me.M. in preschool, L.M. in kindergarten, and Ma.M. in first grade).*fn4 J.M. was in third grade at a regular elementary school, where she attended a special education class and used an Individualized Education Plan (IEP). The minors were all receiving counseling or therapy in school.
Mother denied a substance abuse problem and saw no reason why the minors needed to be removed from her home. She continued to associate with parolees and participate in domestic violence. She was participating inconsistently in services and had not made her home clean and safe. Her visitation was still supervised.
The report of Indian expert Nanette Gledhill opined that the breakup of the Indian family by removing the minors from mother's custody was necessary, active but unsuccessful efforts had been made to prevent the breakup of the family, and clear and convincing evidence showed a likelihood of serious emotional or physical damage to the minors if they were not removed from mother's custody. Mother had improved the conditions at her home but not enough to safely house the children; the home still lacked heat and electricity.
An addendum report stated that mother continued to associate with dangerous people. She had been involved in a romantic relationship with her husband's cousin, a parolee and sex offender who had previously assaulted her. The social worker discovered mother "having a romantic interlude with" father, recently paroled on conditions that barred contact with mother or the minors; he was returned to prison for parole violations.
At the dispositional hearing, the juvenile court ordered all four minors detained and that mother be provided with reunification services.
The six-month status review report recommended further out-of-home placement for the minors and services for mother. Me.M. was now in a different foster home from the others. She was moved in May 2009 because her brothers had acted out sexually with her. She said her brothers had "touched her on the butt" and all the minors had seen mother "do the 'nasty'" with father. Ma.M., who was molested in 2005,*fn5 had inappropriately touched L.M. while in placement. They now had separate bedrooms. L.M. continued to have "melt down issues and temper tantrums." He was diagnosed as depressed, but had not been prescribed medication.
At the six-month review hearing, the juvenile court continued the minors' placements and mother's services.
The 12-month review report recommended six more months of services for mother, who had progressed to unsupervised visitation with the minors. The three oldest minors had been moved to new placements as of September 2009. Due to Ma.M.'s sexual acting-out, he had been placed separately from J.M. and L.M., who remained together. Me.M. was still placed separately from the others. At the 12-month hearing, held on October 1, 2009, the juvenile court found mother's progress to be "good" and continued the children's detention and mother's services.
In a status review report dated February 11, 2010, the Department recommended terminating mother's services at the
18-month hearing and setting a section 366.26 hearing as to all the minors. Mother had continued to drug test negative, to engage in counseling, and to improve in parenting skills. But during her first unsupervised overnight visit with the minors at her home, the boys again molested Me.M.*fn6 Thus, the minors could not safely be returned home because mother could not protect them "due to their sexual acting out behavior."
Me.M. was now a "very sexualized little girl[.]" Ma.M. was still seeing multiple counselors for his sexual acting out and other problems. J.M. still had difficulty with "boundary issues" and "constantly had to be re-directed due to her disability." L.M. still had difficulty when things did not go his way or when he left mother after their visits.
The Department planned to make an adoption referral and to consult the Big Valley Tribe on a permanent placement plan. A report by the state adoptions services bureau, filed April 7, 2010, stated that "[p]ermanency families" had not yet been found for the minors, who had all been in multiple placements since their original dependency proceeding in 2004.
At the 18-month hearing on April 13, 2010, the juvenile court terminated mother's services and set a section 366.26 hearing as to the three oldest minors, and authorized the appointment of an Indian expert. However, at the Department's request pursuant to a "resolution" of the contested proceedings, the court ordered Me.M. placed in mother's custody under a family maintenance plan and set the matter for a six-month review as to her.*fn7
On September 15, 2010, the Big Valley Tribe provided the Department with a declaration, signed by the tribe's ICWA representative, stating in summary that the tribe agreed it would be in the best interest of the minors to terminate parental rights and proceed with conventional open adoptions. The declaration also stated that a tribal resolution would be "submitted in the future."*fn8
In October 2010, the state adoptions bureau recommended that the juvenile court order a permanent plan of adoption for all three minors, but terminate mother's parental rights only as to J.M. and L.M. because Ma.M., unlike them, did not yet have foster parents willing and able to adopt him. J.M. and L.M. were bonding to their foster mother and foster siblings and finding a level of security they had lacked. The foster mother had agreed to maintain their contact with their siblings. She had also met with a tribal representative and intended to enhance the minors' connection to Big Valley culture.
The section 366.26 report, filed November 23, 2010, recommended that the juvenile court select a permanent plan of adoption for J.M., Ma.M., and L.M., but terminate parental rights only as to J.M. and L.M., while continuing the section 366.26 hearing as to Ma.M.
The report noted that the intervening tribe had never identified available Indian homes that could take any or all of the minors, provided preferential placements, or suggested appropriate relative placements; instead, it had approved the Department's plans. Because "the [t]ribe as a whole is currently not in wellness, [h]ealthy and stable options for tribal placement are virtually non-existent, and minimal options are far overridden by [J.M.'s and L.M.'s] need and desires to remain in their current situations."
Mother recently failed to show up for a meeting with J.M.'s IEP team and had not signed any of the required IEP paperwork. L.M. was moved from Four Winds School. Before his transfer to another school, he had suffered "ongoing emotional disturbances" because Me.M. taunted him about the fact that she had returned home while he and Ma.M. remained in foster care.
Mother's "heavily supervised" visits with the minors were not going well. She had asked Ma.M. and L.M. inappropriate and manipulative questions, causing them to be "preoccupied" and "very distant" from their foster parents after the visits. The supervising social worker thought even monthly visits were detrimental to the minors.
On December 30, 2010, Indian expert Annette Gledhill submitted a declaration opining that active but unsuccessful efforts had been made to prevent the breakup of the Indian family, continued care and custody by the parent was likely to result in serious emotional or physical damage to the minors, and out-of-home care and adoption for the three older minors were appropriate "beyond a reasonable doubt." Based on review of court records (including the tribe's declaration) and interviews with the social worker and social worker supervisor, Gledhill concluded that mother had failed to make "adequate, stable and consistent progress" and the tribe supported the Department's plans.*fn9
Selection and Implementation/Section 388 Hearing
On January 20, 2011, mother filed section 388 petitions requesting the return of J.M., Ma.M., and L.M. to her custody under a family maintenance plan. The juvenile court set mother's petition for hearing together with the section 366.26 proceeding. The consolidated section 388/section ...