Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD224695, JD224696
CANTIL-SAKAUYE, J.
C.P., father of the two children, appeals from orders of the juvenile court terminating his parental rights. (Welf. & Inst. Code, §§ 366.26, 395.) Appellant contends the court erred in denying his petition for modification and in failing to apply either the benefit or sibling exception to avoid the preference for adoption. Appellant further contends that the Department of Health and Human Services (DHHS) failed to comply with the notice provisions of the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.). We affirm.
Hereafter, undesignated statutory references are to the Welfare and Institutions Code.
FACTS
D.P., age two, A.P., age nine, and their teenage half brothers, were removed from parental custody in August 2006, due to appellant’s physical abuse of one of the half brothers and the mother’s substance abuse. At the detention hearing, appellant claimed Cherokee Indian ancestry and the court ordered DHHS to notify the tribes. Notices were sent as ordered. Subsequently, the mother claimed Blackfoot heritage through her grandfather. This information was not included in the notices and no notice was sent to the Blackfoot tribe. After clarifying that Cherokee Indian heritage was claimed only through appellant and not the mother, DHHS received responses from all three Cherokee tribes that the children would not be considered Indian children within the meaning of ICWA.
The older, half siblings are not involved in this appeal.
The court ordered reunification services and the children were placed in foster care in November 2006. By January 2007, both parents were doing well in services and brought petitions for modification of the court’s orders removing the children. The court granted the petitions and returned the children to parental custody. The in-home dependency continued until November 2007.
In late November 2007, DHHS again removed the children from appellant’s custody due to the mother’s death and appellant’s anger management problems and arrest for physical abuse of the mother. The children, now three and 10 years old, were detained and placed together in a confidential foster home.
In December 2007, the children were moved to separate foster placements due to incidents of sexualized behavior. This behavior also had occurred when the children were living with appellant; however, he minimized its significance. Both children otherwise appeared to be free of signs of neglect and A.P. expressed a desire to return to appellant’s custody. The social worker was concerned about appellant’s ability to care for the children during the day due to his numerous psychotropic medicines which caused him to sleep a lot. Further, appellant stored his medication in areas accessible to the children.
The jurisdiction/disposition report stated the statutory time for reunification services had expired and recommended that the court set a section 366.26 hearing for the children with a permanent plan of adoption. An addendum stated D.P. was moved to a new foster home due to ongoing sexualized behavior with other foster children in the previous home. A.P. insisted the characterization of the siblings’ interaction in the previous foster home as sexual was erroneous but was resistant to discussing the matter further with either the social worker or her therapist. At visits, appellant tended to be more attentive to D.P. than to A.P. and became more irritated with A.P. Relative placement with a cousin was assessed and eventually recommended for both children. The court sustained the petitions, ordered the recommended relative placement and set a section 366.26 hearing.
The August 2008 report for the section 366.26 hearing stated the two-hour visits were chaotic and characterized by a lack of structure and failure to address the children’s aggressive behaviors. After intervention on these issues, appellant became more appropriate but still tended to favor D.P. over A.P. The children’s visits were separated and, thereafter, appellant’s visits with A.P. improved. Both children were doing well in the relative placement and the relative was interested in adoption.
Two months later, the relative refused to care for the children anymore after D.P. set a fire in the home and A.P. was being aggressive to the relative’s child. The children were removed pursuant to a section 387 supplemental petition and returned to separate foster care placements. The section 366.26 hearing was continued to find permanent placements for the children.
Appellant filed a section 388 petition for modification seeking reopening of services or placement of the children, alleging he had maintained consistent visitation, was drug free, and had completed parenting, anger management and counseling services. Appellant alleged the modification was in the children’s best interests because he could give them a permanent home where they could be together.
An addendum to the previous social worker’s reports stated D.P. was thriving in his current placement and his destructive aggressive behaviors had subsided due to the stability and structure offered there. D.P. reacted negatively to visits with appellant, showing increased aggression and anxiety in the foster home after visits, although the visits themselves were largely positive. According to the report, the children had been living with appellant and the relative caregiver for some time before the relative caregiver declined further responsibility. While living with appellant, both children had decompensated into aggression and D.P. became destructive. These behaviors disappeared after the children were removed from the relative caregiver’s home and placed in stable, structured foster homes. DHHS recommended guardianship for A.P., who objected to adoption, and termination of parental rights and adoption for D.P.
At the combined hearing on the petition for modification and selection of a permanent plan for the children in June 2009, appellant testified about his current living circumstances and said he had room for both children to live with him. He further testified he continued to have monthly supervised visits with the children and they were happy to see him. Appellant told the court he was going to have knee surgery and his sister and brother-in-law could care for the children while he was hospitalized. He agreed that these were the relatives he and the children were living with when the children were removed on the section 387 supplemental petition. Appellant acknowledged that both children had health problems at that time and there had been incidents of domestic violence in that home which frightened them. The social worker testified the children had serious aggression problems when removed under the section 387 petition but the problems had resolved in their current stable placement. D.P. appeared healthier, was progressing educationally and was no longer withdrawn or prone to sexualized behavior. In argument, appellant addressed only the petition for modification and generally opposed the recommendations for adoption and guardianship.
The court denied the petition for modification, finding that the proposed order was not in the children’s best interests even if it could be said that circumstances had changed. The court adopted DHHS’s recommendations, selecting guardianship as the permanent plan for A.P. and terminating appellant’s parental rights as to D.P., with adoption as his permanent plan.
DISCUSSION
I.
Father contends the juvenile court erred by failing to find a statutory exception to the preference for adoption of D.P. based on interference with sibling relationships or the existence of a beneficial parent-child relationship.
At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must choose one of the several “‘possible alternative permanent plans for a minor child.... The permanent plan preferred by the Legislature is adoption. [Citation.]’ [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child. [Citation.]” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368, original emphasis.) There are only limited circumstances which permit the court to find a “compelling reason for determining that termination [of parental rights] would be detrimental to the child.” (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B).) The party claiming an exception to the preference for adoption has the burden of establishing the existence of any circumstances which constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of Court, rule 5.725(e)(3); Evid. Code, § 500.)
It was appellant’s burden to raise these exceptions at the section 366.26 hearing, and he failed to do so. Failure to raise either of these statutory exceptions to adoption forfeits the issue for purposes of appeal. (In re Erik P. (2002) 104 Cal.App.4th 395, 403; In re Daisy D. (2006) 144 Cal.App.4th 287, 291-292.)
Appellant argues there were references in his pretrial statement and evidence at trial and in the supporting evidence for the petition for modification which related to his relationship with the children and the siblings’ relationship and that the references and evidence were enough to raise the issue of the exceptions. We disagree.
The pretrial statement for the hearing on the petition for modification and selection and implementation of a permanent plan for the children specifically limits the contested issues to “Whether there has been a change in circumstances and it is in the children’s best interest to be returned to the care and custody of their father or in the alternative reopen reunification services.” The evidence cited in support of these issues was intended to show that the proposed modification would be in the children’s best interests. Although the petition for modification and the section 366.26 hearing were heard at the same time, at no time in the hearing did anyone, including appellant, suggest that the evidence was also in support of any exception to the preference for adoption of D.P. or even mention the exceptions now relied upon. The only argument appellant made was for return of the children or renewed services and a statement of general opposition to termination.
Appellant also cites the general finding adopted by the juvenile court that “termination of parental rights would not be detrimental” to D.P. as an indication that the exceptions were before the court and ruled on. Again, we disagree. The mere existence of a check in a box next to a generalized finding of no detriment, in the absence of anything in the record to support the conclusion that all parties were aware that the exclusions were at issue and being litigated, cannot transform the generalized finding into a finding that specific exceptions were considered and found not to apply. The issues have been forfeited.
II.
Father further contends the juvenile court abused its discretion in denying his section 388 petition. We disagree.
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. “The parent requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is 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., supra, at p. 317.) In assessing the best interests of the child, the juvenile court looks not to the parents’ 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.)
For three years the children had been shuttled between foster care, parental care, relative care and back to foster care. One parent had died and the other continued to subject them to the effects of his anger management issues and inadequate parenting until the children were removed from the relative placement. Once returned to the stability and security of foster placements, the children’s behaviors improved. The aggression, destructiveness and sexualized behavior which characterized them while with parents or relatives disappeared. Both children regained health and stability. D.P. reacted negatively to visits with appellant and did not even ask about either his father or his sister between visits. Under the circumstances, granting the petition for modification would have been an abuse of discretion and subjected the children to further chaos in their lives, clearly a result which was not in their best interests. The juvenile court did not err in denying the petition for modification.
III.
Father’s final claim on appeal is that DHHS failed to comply with the notice provisions of the ICWA. We disagree.
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.) 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 (BIA) if the tribal affiliation is not known. (25 U.S.C. § 1912; Welf. & Inst. Code, § 224.2; Cal. Rules of Court, rule 5.481(b).)
Appellant claimed Cherokee Indian heritage. The notices sent to the Cherokee tribes had little information about the mother. The Cherokee Nation asked for more information on any female relatives of the children. DHHS clarified that heritage was claimed only through the paternal line. Failing to provide information on the mother, if error, was harmless. (In re S.B. (2005) 130 Cal.App.4th 1148, 1162.)
Mother claimed heritage in the Blackfoot tribe. This is not a federally recognized tribe and no notice to the tribe was required. (74 Fed.Reg. 40219 (Aug. 11, 2009); In re K.P. (2009) 175 Cal.App.4th 1, 6.)
Appellant argues that the mother intended to claim heritage in the Blackfeet tribe. There is no evidence in the record that the mother intended to claim heritage in the Blackfeet rather than the Blackfoot tribe or that the two tribes are the same entity. Appellant’s claim is simply unfounded speculation and must be disregarded.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: HULL, Acting P. J. BUTZ, J.