In re A.B. CA4/1

Filed 5/16/14 In re A.B. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re A.B., a Person Coming Under the
Juvenile Court Law.
D065188
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. NJ13887D)
Plaintiff and Respondent,

v.

K.B.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of San Diego County, Michael J. Imhoff,

Commissioner. Affirmed.

Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and

Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.

K.B. appeals orders summarily denying her petition for modification under Welfare and

Institutions Code section 388 and terminating parental rights to her daughter. (Unless
otherwise indicated, all further statutory references are to the Welfare and Institutions Code.)

She also challenges the finding the Indian Child Welfare Act (ICWA), title 25 United States

Code section 1901 et seq. and Welfare and Institutions Code section 224 et seq. does not apply.

We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

In February 2013, K.B. was arrested and incarcerated for possession of

methamphetamine, being a felon/addict in possession of ammunition, resisting arrest,

destruction of evidence, and possession of drug paraphernalia. K.B. was seven months

pregnant. She acknowledged using methamphetamine during the days preceding her arrest and

during the first trimester of her pregnancy.

A.B. was born five weeks early. The San Diego County Health and Human Services

Agency (Agency) detained A.B. in protective custody and filed a section 300 petition on her

behalf. K.B. was addicted to methamphetamine. She had been using for approximately 11

years, since she was 12 years old. In earlier dependency proceedings, K.B. lost her parental

rights to her eldest child and to her twin sons. K.B.'s probation officer said K.B. was on

"continuous probation" due to her criminal history and noncompliance with court-ordered

residential substance abuse treatment.

The Agency detained A.B. in foster care with the adoptive parents of her eldest brother.

In April, K.B. was released from jail to a residential substance abuse treatment program.

She began having visits with A.B. A social worker said K.B. did not seem to be connected to

the baby, and did not feed or change her unless prompted.

K.B. said Rolando E. was her daughter's father. Rolando denied paternity. He said he

had been incarcerated during most of 2012 and had not had sexual relations with K.B. in 20
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months. During the earlier dependency proceedings for her twin sons, K.B. alleged that he was

the father. That allegation was disproved by a paternity test. The juvenile court found that

Rolando's representations were credible and entered a judgment of nonpaternity in A.B.'s case,

without objection.

At the jurisdiction and disposition hearing, the juvenile court bypassed reunification

services and referred the case to a permanency plan selection and implementation hearing.

(§ 366.26.)

In October, K.B. filed a modification petition (petition) seeking reunification services.

(§ 388.) She claimed changed circumstances in that she had been in an inpatient substance

abuse treatment program since April. All 10 of her drug tests were negative. In addition to the

programs at the treatment center, she was attending weekly counseling, focusing on parenting,

maintaining a drug free lifestyle, and making positive life choices. K.B. completed the Global

Infant Program at Healthy Development Services and was participating in Systematic Training

for Effective Parenting. Her counselor described her as "an ideal resident." She visited with

A.B. several times a week and regularly contacted the foster mother for updates on the baby's

health and development. K.B. did not explicitly state in the petition why it would be in A.B.'s

best interests to grant her petition for reunification services.

On November 5, the juvenile court held an initial hearing on K.B.'s petition. The court

read and considered K.B.'s petition, and found that K.B. did not meet her burden to show

changed circumstances or that it would be in A.B.'s best interests to grant the modification

sought, and denied the petition.

The section 366.26 hearing was held on November 20. The juvenile court admitted the

Agency's reports and K.B.'s petition and supporting documents in evidence. The social worker
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reported that overall A.B. was a healthy baby but there were some concerns about her

development. For example, she was not sitting up unassisted or directly reaching for objects.

Her physician referred her to physical and occupational therapy. A.B.'s caregiver was

dedicated to meeting all of A.B.'s needs and wanted to adopt her. She had adopted A.B.'s

brother three years earlier. The social worker did not believe that A.B. was bonded with K.B.

A.B. was fussy and uncomfortable when visiting K.B. A.B. was not upset when the visits were

done and, in fact, calmed down when she was returned to her caregiver. A.B. spent most of the

visits with K.B. sleeping after crying for extended periods of time. Visit times were changed

to avoid A.B.'s nap time, but the same pattern occurred. A.B. was bonded with her caregiver.

At the end of one visit, when K.B. tried to kiss A.B., A.B. physically turned away from her and

put her head on the caregiver's shoulder.

K.B. argued that she was dedicated to her daughter and wanted to be a parent. She

asked the court not to terminate her parental rights because she and A.B. shared an attachment.

The juvenile court found that K.B. had regular and consistent contact with A.B. and that

their visits were pleasant. However, the social worker or visitation monitor often had to

intervene to help K.B. recognize A.B.'s cues and prompt a parental response to those cues. The

court said whatever benefit was conferred upon A.B. by the continuation of the mother/child

relationship was greatly outweighed by A.B.'s need for the stability and permanency of an

adoptive placement. The court terminated parental rights.

DISCUSSION

A

Under section 388, a party 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
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the evidence, there is a change of circumstances or new evidence, and the proposed

modification is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415;

In re Amber M. (2002) 103 Cal.App.4th 681, 685.)

The court must liberally construe the petition in favor of its sufficiency. (In re Marilyn

H. (1993) 5 Cal.4th 295, 309; Cal. Rules of Court, rule 5.570(a).) "The parent need only make

a prima facie showing to trigger the right to proceed by way of a full hearing." (In re Marilyn

H., at p. 310; In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799.) "The prima facie

requirement is not met unless the facts alleged, if supported by evidence given credit at the

hearing, would sustain a favorable decision on the petition." (In re Zachary G. (1999) 77

Cal.App.4th 799, 806.) When 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.)

We review a summary denial of a modification petition for abuse of discretion. (In re

Zachary G., supra, 77 Cal.App.4th at p. 808.)

The juvenile court reasonably determined that K.B. did not allege facts in her petition

sufficient to sustain a favorable decision on the petition. The factual and procedural history of

the case, which included the history of K.B.'s loss of her parental rights to her three other

children, shows that K.B. had only recently started to address her methamphetamine addiction,

and her parenting skills were deficient. Generally, A.B. did not respond well to K.B. during

the visits. K.B.'s petition did not contain any statement why the proposed modification was in

A.B.'s best interests, and the petition fails for that reason alone. (§ 388.) The juvenile court

noted that K.B.'s implied assertion of best interests―that a bonded parent/child relationship

had developed between K.B. and A.B.―was not supported by any alleged facts. The history
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of the case also shows that A.B. had been placed with her proposed adoptive parent when she

was only a few days old, and was thriving in that home. She was being raised with her brother

and was bonding with him. We conclude that the juvenile court did not abuse its discretion

when it denied K.B.'s request for reunification services.

B

K.B. asserts the court erred when it determined the beneficial parent/child relationship

exception under section 366.26, subdivision (c)(1)(B)(i) did not apply and terminated her

parental rights. Her contention is without merit.

At a permanency plan hearing, the court may order one of three alternatives—adoption,

guardianship, or long-term foster care. (In re S.B. (2008) 164 Cal.App.4th 289, 296-297.) If a

child is adoptable, there is a strong preference for adoption over the alternative permanency

plans. (Id. at p. 297; San Diego County Dept. of Social Services v. Superior Court (1996) 13

Cal.4th 882, 888.) Once the court determines that a child is likely to be adopted, the burden

shifts to the parent to show that termination of parental rights would be detrimental to the child

under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re Lorenzo C.

(1997) 54 Cal.App.4th 1330, 1343-1345.)

Section 366.26, subdivision (c)(1)(B)(i) provides an exception to termination of parental

rights when "[t]he parents have maintained regular visitation and contact with the child and the

child would benefit from continuing the relationship." In order to overcome the statutory

preference for adoption, the parent must prove that he or she occupies a parental role in the

child's life, resulting in a significant, positive emotional attachment of the child to the parent.

(In re Derek W. (1999) 73 Cal.App.4th 823, 827; In re Elizabeth M. (1997) 52 Cal.App.4th

318, 324.)
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 We determine whether there is substantial evidence to support the court's ruling by

reviewing the evidence most favorably to the prevailing party, and indulging in all legitimate

and reasonable inferences to uphold the court's ruling. (In re S.B., supra, 164 Cal.App.4th at

pp. 297-298; In re Misako R. (1991) 2 Cal.App.4th 538, 545.) We do not reweigh the

evidence, evaluate the credibility of witnesses, or indulge in inferences contrary to the findings

of the juvenile court. (In re Michael G. (2012) 203 Cal.App.4th 580, 589.)

K.B. did not prove she occupied a parental role in her daughter's life. The record

permits the reasonable inference A.B. did not have a significant, positive emotional attachment

to her mother. A.B. fussed and cried during a portion of the visits and then, worn out, slept for

the rest of the visit. Visitation monitors had to prompt K.B. to attend to A.B.'s needs. K.B.

was often unable to soothe A.B. Unlike A.B.'s interactions with her caregiver, A.B. appeared

uncomfortable and generally did not laugh or smile when she was in K.B.'s care. The social

worker did not believe that there was a parent/child bond between K.B. and A.B.

In view of the tenuous parent/child relationship and A.B.'s need for stability in the only

home she knew, the juvenile court reasonably determined that terminating parental rights

would not be detrimental to A.B. and she would greatly benefit from the security of a stable,

permanent home with committed, capable adoptive parents. (§ 366.26, subd. (c)(1)(B)(i); In re

Autumn H. (1994) 27 Cal.App.4th 567, 575.)

C

K.B. contends the juvenile court and Agency did not meet their burden to determine

whether A.B. was an Indian child within the meaning of ICWA. She argues the court should

have taken "active steps" to determine if Rolando is A.B.'s biological father. Rolando has

possible ndian ancestry in a nonfederally recogni ed tribe the uaneno Band of ission
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Indians or Diegueno Tribe. K.B. argues the juvenile court abused its discretion when it did not

provide notice to a nonfederally recognized tribe as provided under section 306.6. K.B.'s

contentions are without merit.

ICWA protects the interests of Indian children, their tribes and families by establishing

minimum federal standards for proceedings involving foster care placement or termination of

parental rights. (25 U.S.C. § 1912; Welf. & Inst. Code, § 224.) ICWA applies to an Indian

child under the age of 18 who is a member of a tribe, or who is eligible for tribal membership

and whose biological parent is a member of a tribe. (25 U.S.C. § 1903(4); Welf. & Inst. Code,

§ 224.1, subd. (a) [adopting federal definition of " 'Indian child' "].) ICWA defines " 'parent' "

as "any biological parent or parents of an Indian child or any Indian person who has lawfully

adopted an Indian child . . . . It does not include the unwed father where paternity has not been

acknowledged or established." (25 U.S.C. § 1903(9), italics added; Welf. & Inst. Code,

§ 224.1, subd. (c) [adopting federal definition of " 'parent' "].)

Rolando and K.B. were not married. He did not acknowledge paternity of A.B.

Without objection from any party, including K.B., the juvenile court found that Rolando's

representations of nonpaternity were credible and entered a judgment of nonpaternity. Thus,

the juvenile court was not required to provide notice to any federally-recognized Indian tribes

under ICWA or any nonfederally-recognized Indian tribes section 306.6. (In re E.G. (2009)

170 Cal.App.4th 1530, 1533 [until biological paternity is established, an alleged father's

possible Indian heritage does not trigger ICWA notice requirements].)

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 DISPOSITION

The orders are affirmed.

MCINTYRE, J.

WE CONCUR:

HALLER, Acting P. J.

O'ROURKE, J.

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