Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court for the County of Los Angeles, County Super. Ct. No. CK60873, Anthony Trendacosta, Juvenile Court Referee.
Merrill Lee Toole, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Kim Nemoy, Senior Deputy County Counsel, for Plaintiff and Respondent.
PERLUSS, P. J.
Anthony E., the father of four-year-old A. S. and two-year-old C. S., appeals from the juvenile court’s February 20, 2008 order terminating his parental rights under Welfare and Institutions Code section 366.26 as to A. S., terminating reunification services as to C. S. and denying his petition pursuant to section 388 to obtain custody of both boys. Anthony E. contends the juvenile court was prohibited from terminating his parental rights absent a finding of “parental unfitness,” which he asserts was not made in this case. He also contends the court erred in denying his petition to obtain custody of the boys, refusing to continue the February 20, 2008 hearing and failing to ensure compliance with the notice provisions of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). Although we reject most of Anthony E.’s contentions, we conditionally reverse the order terminating parental rights and remand to the juvenile court for the limited purpose of ensuring compliance with ICWA.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. A. S.’s Detention
On September 21, 2005 the Los Angeles County Department of Children and Family Services (Department) filed a section 300 petition alleging A. S.’s mother, Tabitha S., and Anthony E. had a history of domestic violence that put A. S. at risk (§ 300, subds. (a) & (b)); Tabitha S. was a chronic user of methamphetamine rendering her incapable of caring for A. S. (§ 300, subd. (b)); and Tabitha S. either could not or had refused to provide A. S. with the basic necessities of life (§ 300, subd. (g)).
When contacted by telephone at his home in Colorado, Anthony E. told a Department case worker he was unaware of Tabitha S.’s drug use and expressed interest in obtaining custody of A. S. Tabitha S. also advised the Department she wanted A. S. to live with Anthony E.
Neither Anthony E. nor Tabitha S. appeared at the detention hearing. After appointing counsel for both parents, as well as for A. S., the juvenile court found the Department had established a prima facie case A. S. was a person described by section 300 and ordered him detained and placed in foster care pending a jurisdiction hearing. The court ordered Tabitha S. to attend substance abuse counseling and Anthony E. to obtain domestic violence counseling. Both Tabitha S. and Anthony E. were ordered to participate in parenting classes. The court also ordered the Department to provide reunification services for both parents and to notify the federal Bureau of Indian Affairs (BIA) and appropriate tribes of the pending dependency proceedings, based on Tabitha S.’s representation to the Department of A. S.’s possible American Indian heritage. The court scheduled the jurisdiction hearing for October 21, 2005.
2. The Jurisdiction Hearings
Anthony E. appeared at the October 21, 2005 jurisdiction hearing. According to the Department’s report prepared for that hearing, Anthony E. arrived in Los Angeles on October 17, 2005 from his home in Colorado specifically to attend the hearing and to obtain custody of his son. Anthony E. told the Department he had not engaged in any violent confrontations with Tabitha S. but had been in a previous relationship that involved domestic violence and, in connection with that relationship, had “done what the court [in that case had] ordered him to do.” He informed the Department his extended family lived in Colorado. He also lived in Colorado in a two-bedroom townhouse and desired custody of A. S.
The Department reported it had not been able to evaluate Anthony E.’s stability or interview anyone in his family, but questioned Anthony E.’s declared ignorance of Tabitha S.’s drug use and expressed concern over whether he could protect A. S. from her. The Department also stated it had not been able to fully investigate the allegations of domestic violence. Before recommending the release of A. S. to Anthony E., the Department requested it be allowed to conduct a “further investigation” of the domestic violence allegation “to assure that [Anthony E.] does not have a pattern of domestic violence in relationships.”
At the hearing the court found Anthony E. to be A. S.’s presumed father, sustained several counts in the petition relating to Tabitha S. and dismissed others in the interests of justice. The court ordered an expedited evaluation of Anthony E.’s home in Colorado pursuant to the Interstate Compact for the Placement of Children (ICPC) and continued the adjudication of the domestic violence allegations relating to Anthony E. to a contested hearing on December 14, 2005.
When Anthony E. inquired why he could not take A. S. home with him to Colorado, the court explained, “My problem is that I’ve got a 20-month-old baby, and quite honestly, my obligation is to protect the child. And I’m not going to release the child to go out of state, where I have no control over that child, to someone who walks in the door today and says ‘I’m the father and I want my child.’ It’s not going to happen. I’m not saying that you’re a bad person. I just [have] to check it out. . . . I’m obligated to protect that child. And the only way I can do that . . . is to make sure that everything that you said and you’ve told me is correct. And if it is, you’re getting the kid.”
Anthony E. did not appear at the December 14, 2005 hearing, but, through his counsel, expressly submitted to the jurisdiction of the court. At the Department’s request the juvenile court struck the domestic violence allegation from the petition, leaving no allegation as to Anthony E. Informed by the Department and by Anthony E.’s counsel that Anthony E. was currently residing in California, the court ordered the Department to “assess [Anthony E.’s Los Angeles] home as soon as possible” to determine whether A. S. could be released to him. The court ordered unmonitored visitation for Anthony E. as soon as the Department was able to evaluate his home and stated the Department had discretion to “liberalize visitation” up to and including returning or placing A. S. in Anthony E.’s home. The court scheduled a disposition hearing for January 13, 2006.
3. The Disposition Hearings
Anthony E. did not appear at the January 13, 2006 hearing. The report prepared for the hearing indicated Anthony E. had told a Department case worker he and Tabitha S. had been arrested on January 9, 2006. The Department reported Anthony E. did not appear to be interested in caring for A. S: According to the case worker, Anthony E. did not express interest in visiting A. S., had long periods of no contact with him and then, just before a hearing, would call the Department sounding frantic. The case worker also reported Anthony E. had given the Department a false address to disguise the fact he was living with Tabitha S. According to the Department, Anthony E. stated he “does not want this child and the mother is making him do this.” The Department recommended monitored visitation for Anthony E. until it could sort out Anthony E.’s relationship with Tabitha S. and determine whether the two were living together.
The court continued the disposition hearing to February 15, 2006 to allow the Department to send notice to the BIA and appropriate tribes regarding Tabitha S.’s claim of American Indian heritage. Pursuant to the Department’s recommendation, the court also changed Anthony E.’s visitation from unmonitored to monitored.
When Anthony E.’s counsel questioned why visits would be monitored when Anthony E. was a nonoffending parent, the court responded, “I know I struck [Anthony E.] from the petition. But the court can make orders that protect the child based upon the information that I have to date. And until he comes back and provides information, I’m monitoring his visitation.”
Anthony E., who had been arrested in January 2006 on check fraud charges, appeared at the February 15, 2006 hearing in custody. The court ordered expedited ICPC investigations of the homes of A. S.’s paternal uncle, M. E., who lived in Colorado, and an extended family member, Amanda S., who lived in Oklahoma, both of whom had declared an interest in obtaining custody of A. S. The disposition hearing was continued to March 2, 2006.
Anthony E. was released from jail on February 27, 2006 and appeared at the March 2, 2006 hearing. Through his counsel Anthony E. represented he was currently on probation as a result of the check fraud charge and insisted he was not living with Tabitha S. He hoped to have his probation transferred to Colorado, where he intended to live, and wanted A. S. to join him. Until then he sought unmonitored visitation with A. S.
The court declared A. S. a dependent child and found by clear and convincing evidence that return of A. S. to his mother or placement with his father would create a substantial risk of detriment to A. S. With regard to visitation, the court ordered monitored visitation for Anthony E., with some limited unmonitored time per visit, on the condition he ensure Tabitha S. has no contact with A. S. during his visits. The court also ordered Anthony E. to complete six random drug tests. The court found, in light of the failure of any tribe to respond to the ICWA notices within the requisite time period, there was no American Indian heritage.
4. A. S.’s Six-month Review Hearing
The six-month review hearing took place on June 22, 2006. In its report prepared for the hearing, the Department stated A. S.’s paternal uncle, M. E., wished to adopt A. S. if Anthony E. could not gain custody of him. Anthony E. also told the Department, if he could not obtain custody of A. S., he wanted his brother to raise A. S. Anthony E. had visited A. S. eight times during the period October 2005 to May 1, 2006, and the visits were going well. Furthermore, Anthony E.’s probation officer represented he was in compliance with his probation terms. At the time of the report, Anthony E. was homeless and was staying with friends.
After the completed ICPC study for M. E. showed his home would be a suitable placement for A. S., the Department recommended placing A. S. with M. E. and his wife in Colorado. The court accepted the Department’s recommendation. It ordered A. S. placed with M. E. and terminated reunification services for Anthony E. and Tabitha S. Observing that Anthony E. had restrictions arising from the criminal (probation) proceedings that prevented him from leaving California, the court found it was unlikely A. S. could reunify with Anthony E., who was placed with M. E. in Colorado, by the next review period. Moreover, it found Anthony E. was only in partial compliance with the case plan, having not completed all of the ordered drug tests. The court explained Anthony E. could file a section 388 petition to attempt to regain custody at a later date and set a section 366.26 selection and implementation hearing for October 19, 2006. Anthony E. did not file a writ petition seeking appellate review of any of those orders.
5. The Detention of A. S.’s Brother, C. S.
On July 6, 2006 the Department filed a section 300 petition alleging that Tabitha S. had given birth to another son, C. S.; Tabitha S. was incarcerated and had not made an appropriate plan for the child’s care; she had a history of substance abuse; and A. S. was currently a dependent child of the court. The court ordered C. S. detained.
6. The Jurisdiction Hearing for C. S.
On September 12, 2006 the court ordered paternity tests for Anthony E. and another man Tabitha S. had identified as the potential biological father of C. S. At the jurisdiction hearing the court sustained the new petition and found C. S. to be a child described by section 300, subdivisions (b) and (g), based on the allegations concerning Tabitha S.’s current incarceration and unresolved substance abuse problem. At disposition the court found Anthony E. to be C. S.’s biological father based on paternity tests and ordered C. S. suitably placed. Although still a nonoffending parent, Anthony E. was again ordered to participate in a series of random drug tests.
7. The Section 366.26 Hearing for A. S.
In light of the new petition against C. S., the court continued A. S.’s selection and implementation hearing to December 21, 2006. Initially, the Department reported A. S. was doing well with his paternal uncle in Colorado and recommended freeing A. S. for adoption by M. E. and his wife. However, on December 21, 2006 the court received an emergency report that A. S. had been detained in Colorado after he was found wandering near his grandmother’s home. M. E. told authorities he had been on vacation and had left A. S. in the custody of his mother (A. S.’s paternal grandmother) and Anthony E., who was either visiting or living with his mother. The court continued the matter to December 28, 2006 to obtain further information from Colorado authorities.
At the next hearing the Department reported A. S. was in foster care in Colorado and the Colorado Department of Family Services, upon further investigation, had concluded that A. S. had not truly resided with M. E., but rather with his paternal grandmother. The Colorado Department of Family Services denied the ICPC request for approval of M. E.’s home and recommended A. S. be returned to California.
In January 2007 A. S. was returned to California and placed in a new preadoptive home. The court continued A. S.’s selection and implementation hearing to May 31, 2006 and set a six-month review hearing for C. S. for March 6, 2006.
Several hearings with respect to A. S. and C. S. were continued for various reasons unrelated to the issues on appeal. C. S.’s six-month review hearing ultimately took place on June 11, 2007. Anthony E. did not attend the hearing because he was in federal custody pending a deportation hearing. The court continued the six-month review hearing and the selection and implementation hearing for contest.
Anthony E. is a Nigerian citizen.
8. Anthony E.’s Section 388 Petition To Obtain Custody of A. S. and C. S.
While awaiting the combined, contested six-month review hearing for C. S. and contested selection and implementation hearing for A. S., in September 2007 Anthony E. filed a section 388 motion to gain custody of both children. In that motion Anthony E. represented he had successfully completed his probation/parole, all immigration problems had been resolved and he was seeking custody of his children based on his changed circumstances. He also argued he was legally entitled to custody as a nonoffending parent.
9. The Combined Review Hearing for C. S., the Selection and Implementation Hearing for A. S. and the Hearing on the Section 388 Petition
The contested selection and implementation hearing for A. S., the contested 12-month review hearing (§ 366.22, subd. (f)) for C. S. and the hearing on Anthony E.’s section 388 petition were held on February 20, 2008. Anthony E. did not appear at the hearing and had not been in contact his counsel or the Department to explain the reason for his absence. The court denied his counsel’s request for a continuance. Anthony E.’s counsel then reminded the court Anthony E. was a nonoffending parent as to both children. A. S.’s counsel stated A. S. was doing very well in his preadoptive home, where he now resided with C. S., and urged termination of parental rights to free A. S. for adoption.
Because of the delays in conducting C. S.’s six-month review hearing, that hearing was combined with the 12-month review hearing under section 366.22, subdivision (f).
The court found return of A. S. to Anthony E. or Tabitha S. would create a substantial risk of detriment to the child, found A. S. was adoptable and terminated the parental rights of both parents. The court explained Anthony E. need not be identified as an offending parent in a sustained section 300 petition to have his parental rights terminated and stated termination was appropriate in light of its finding that return of A. S. to Anthony E. would be detrimental to A. S.
As to C. S., the court found Tabitha S. was not in compliance with the case plan and Anthony E. was only in partial compliance. The court terminated reunification services for both parents and set a selection and implementation hearing for C. S. for June 18, 2008.
Based on its findings regarding A. S.’s best interests, the court denied Anthony E.’s section 388 petition. The court also relieved Anthony E.’s counsel as to both A. S. and C. S. “either 60 days from today’s date or upon the timely filing of a notice of appeal, whichever occurs first.” The court directed the clerk to serve on both Anthony E. and Tabitha S. notice of their writ petition and appeal rights.
Anthony E. filed a notice of appeal on his own behalf on March 17, 2008. The juvenile court’s order relieving his trial counsel, Ronald Stenlake, thus became effective no earlier than that date, although Stenlake apparently continued to represent Anthony E. at least through April 14, 2008 when Stenlake filed a second notice of appeal on behalf of Anthony E. Whichever of those two dates applies, however, Anthony E.’s appellate counsel is wrong when she asserts Anthony E. was left without representation while facing the prospect of filing the required Notice of Intent to File Writ Petition within seven (actually 12) days of the court’s February 20, 2008 orders. In addition, the juvenile court appointed new counsel for Anthony E. at the next hearing in the case, held on June 18, 2008, and continued the selection and implementation hearing for C. S. to September 10, 2008 for a contest. (We previously granted the Department’s request to take judicial notice of the minute order from that hearing, which reflects the appointment of new counsel and continuance of the hearing without taking substantive action.)
CONTENTIONS
Anthony E. contends the juvenile court erred in terminating his parental rights absent a finding he was “unfit”; abused its discretion in denying his section 388 petition and his request for a continuance of the February 20, 2008 hearing; and erred in relieving his counsel at a “critical” stage of the dependency proceedings. He also contends the court failed to ensure strict compliance with the notice requirements of ICWA.
DISCUSSION
1. The Juvenile Court’s February 20, 2008 Orders Relating to C. S. Are Not Properly Before this Court
All court orders, regardless of their nature, made at a hearing at which a section 366.26 permanency planning hearing is set must be challenged by a petition for extraordinary writ. (§ 366.26, subd. (l)(1); In re Merrick V. (2004) 122 Cal.App.4th 235, 247; In re Anthony B. (1999) 72 Cal.App.4th 1017, 1021-1024; In re Charmice G. (1998) 66 Cal.App.4th 659, 671.) “The goals of expedition and finality would be compromised if the validity of these types of contemporaneous, collateral orders were permitted to be raised by appeal from the order itself or from a later permanent planning order and therefore allowed to remain undecided until well after the permanent plan was decided upon. The desired expedition and finality obviously would be most threatened when the permanent plan was adoption and termination of parental rights, the preferred plan which must be ordered if the child is found adoptable and the juvenile court cannot make any of the findings set out in section 366.26, [former] subdivision (c)(1)(A) through (D) [now subdivision (c)(1(B)(i) through (vi)].” (Anthony B., at p. 1023.)
As required by California Rules of Court, rules 5.585(e) and 5.600(b), the juvenile court directed the clerk to notify Anthony E., who was not present at the February 20, 2008 hearing, of the requirement that appellate review of the orders made at the hearing regarding C. S. must be sought by petition for extraordinary writ. No petition was filed. Accordingly, to the extent Anthony E. now seeks to challenge the juvenile court’s orders relating to C. S. (including denial of his section 388 petition and his request for a continuance), those issues are not properly before us.
As noted above, Anthony E.’s trial counsel was not relieved until a notice of appeal was filed or the time for appeal expired. Accordingly, Anthony E. remained represented during the period for filing a Notice of Intent to File Writ Petition and Request for Record, as well as the Petition for Extraordinary Relief pursuant to California Rules of Court, rules 8.450 and 8.452. Moreover, although the order relieving counsel as it relates to C. S. is not properly before us, no possible prejudice could have resulted from that order in light of the court’s appointment of new counsel for Anthony E. prior to conducting any further substantive proceedings.
2. The Juvenile Court Did Not Err in Terminating Anthony E.’s Parental Rights as to A. S.
Parents enjoy a fundamental interest in the care, companionship and custody of their children. (In re B. G. (1974) 11 Cal.3d 679, 688 [“the interest of a parent in the companionship, care, custody, and management of his [or her] children is a compelling one, ranked among the most basic of civil rights”]; accord, Santosky v. Kramer (1982) 455 U.S. 745, 758 [102 S.Ct. 1388, 71 L.Ed.2d 599] (Santosky) [a parent’s right to the companionship, care, custody and management of his or her children is a fundamental liberty interest “far more precious than any property right”].) Thus, “[b]efore a State may sever completely and irrevocably” the rights of parents in their natural child, due process requires a finding by clear and convincing evidence of “parental unfitness.” (Santosky, at p. 760.)
California’s dependency system protects that fundamental interest by requiring, before parental rights may be terminated, a finding by clear and convincing evidence that permitting the parent to retain custody would be “detrimental to the child.” (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254 (Cynthia D.).) This finding of detriment is the equivalent of a finding of parental unfitness. (Id. at p. 256; see also In re Jasmon O. (1994) 8 Cal.4th 398, 423 [finding of detriment to the child if child is returned to parent is the “equivalent of a finding of unfitness”]; In re Dakota H. (2005) 132 Cal.App.4th 212, 224, fn. 3.) Anthony E.’s argument a specific finding of “parental unfitness” -- apparently in those exact words -- is required before parental rights can be terminated is simply wrong.
Anthony E. also errs in insisting the absence of sustained allegations in a dependency petition involving one of a child’s parents precludes the termination of parental rights as to the nonoffending parent. Termination is proper if there is a finding supported by clear and convincing evidence that awarding or returning custody to the nonoffending parent would be detrimental to the child. (In re P. A. (2007) 155 Cal.App.4th 1197, 1212 [“absence of a jurisdictional finding that related specifically to Robert A. [(nonoffending father)] does not [alone] prevent termination of [his] parental rights”]; In re G. S. R. (2008) 159 Cal.App.4th 1202, 1214 [“findings of detriment, if supported by clear and convincing evidence, may provide an adequate foundation for an order terminating parental rights even in the absence of a jurisdictional finding relating specifically to a parent”].)
Anthony E.’s additional contention that, as a nonoffending, noncustodial parent, he was entitled to custody of A. S. at the disposition hearing (see § 361.2, subd. (a)), is not properly before us on this appeal. Anthony E. argues the juvenile court erred in requiring an evaluation of his out-of-state-home before A. S. could be placed with him. (See In re Johnny S. (1995) 40 Cal.App.4th 969, 977 [“we are persuaded that the ICPC is intended to apply only to interstate placements for foster care and preliminary to a possible adoption, and not to placements with a parent”].) However, Anthony E. did not appeal from the disposition order, which denied his request for A. S. to be placed with him. His current challenge to that order is untimely and thus beyond the scope of our review. (See In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150 [“unappealed disposition or postdisposition order is final and binding and may not be attacked on appeal from a later appealable order”].)
Section 361.2, subdivision (a), provides, “When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.”
The factual premise for Anthony E.’s untimely challenge to the disposition order is incorrect: The juvenile court refused to place A. S. with Anthony E. and ordered monitored visitation not because of a pending ICPC study of Anthony E.’s home in Colorado, but because the court was concerned, particularly in light of the Department’s information that Anthony E. was actually residing with Tabitha S. in Los Angeles, that placing A. S. with Anthony E. would be detrimental to A. S.
Finally, contending the circumstances in this case closely resemble those of the nonoffending parent in In re G. S. R., supra, 159 Cal.App.4th 1202, Anthony E. argues the juvenile court’s finding of detriment to A. S. is not supported by substantial evidence. In In re G. S. R. our Division Eight colleagues reversed the juvenile court’s order terminating the parental rights of a nonoffending father, concluding the court’s findings at disposition and subsequent review hearings that returning the dependent children “to the parents’ custody would pose a substantial risk of detriment to their well-being” was not supported by substantial evidence. Observing that the only evidence of detriment to the child if returned to the nonoffending father was rooted in father’s poverty and homelessness, the court explained “poverty alone, even abject poverty resulting in homelessness, is not a valid basis for assertion of juvenile court jurisdiction.” (Id. at p. 1212.)
The G. S. R. court also rejected the Department’s argument that the nonoffending father’s failure to attend court-ordered Alcoholics Anonymous (A.A.) meetings was sufficient evidence of detriment. The court observed the father had attended several A.A. meetings and his failure to continue regular attendance, absent any evidence he had an alcohol problem, was insufficient to warrant a finding of detriment justifying termination of his parental rights. (In re G. S. R., supra, 159 Cal.App.4th at pp. 1211-1212.) Anthony E. contends, like the father in In re G. S. R., his noncompliance with random drug tests when there was no evidence he had a drug problem cannot serve as a sufficient basis for finding detriment.
We acknowledge, as was true with respect to the father in In re G. S. R., there was no evidence Anthony E. had a drug problem; thus, his failure to comply with the case plan requiring random drug tests would not appear to be sufficient, by itself, to warrant a finding of detriment to A. S. (See In re G. S. R., supra, 159 Cal.App.4th at p. 1214 [“Although the juvenile court found it would be detrimental for the boys to be placed in his care because he had not attended A.A. meetings as promised, there was never any showing his failure to do so posed any risk to his sons. While DCFS may desire it from an abundance of caution, participation in A.A. or another rehabilitation program should not be a prerequisite for a parent who has shown no problem maintaining sobriety.”].) On the other hand, Anthony E. was not involved with A. S. to nearly the same degree as the father in In re G. S. R. Anthony E. did not visit A. S. regularly; frequently absented himself from proceedings without contacting his counsel, the court or the Department; gave the Department a nonexistent address for his Los Angeles residence to disguise the fact he was living with Tabitha S. and often expressed ambivalence about obtaining custody of A. S., telling people Tabitha S. “was making him do this” -- that is, seek custody of A. S. -- even though, if it were up to him, he was content to have A. S. adopted. When Anthony E. did visit with A. S. in Colorado, he apparently left A. S. alone with his alcoholic mother (A. S.’s grandmother), effectively unsupervised, resulting in A. S.’s redetention in Colorado.
Unlike the father in In re P. A. (2007) 155 Cal.App.4th 1197 -- a case heavily relied upon by the Department -- Anthony E. did not appear for the first time at the selection and implementation hearing. He attended a number of dependency hearings, albeit sporadically; visited A.A. occasionally during the pendency of the case; and, at times, claimed an interest in obtaining custody of A. S.
As Anthony E. correctly observes, it is not up to him to prove he is a fit parent. Rather, it is up to the Department to establish, by clear and convincing evidence, he is not, or more specifically, that returning A. S. to his custody would be detrimental to A. S.’s well-being. (Cynthia D., supra, 5 Cal.4th at p. 253; In re G. S. R., supra, 159 Cal.App.4th at p. 1215.) Both the Department and A. S.’s counsel submitted evidence to the juvenile court to justify that conclusion, focusing on Anthony E.’s ambivalence about custody and his intermittent and inconsistent attention to the pending dependency proceedings and concern for A. S.’s welfare. The juvenile court relied on that evidence, not Anthony E.’s missed drug tests, to find it would be detrimental to A. S.’s safety or well-being to place him in Anthony E.’s custody. The court explained, “I think this case more closely follows the finding in the case that I just cited, In re P. A., because in this instance father has absented himself from participation in this case, was incarcerated for some period of time during the course of this case, has not contacted the children and availed himself of a -- services of or availed himself of his ability to visit the children, has not contacted the court. I think at that point this case follows more closely In re P.A. I therefore find that that’s consistent with unfitness and therefore . . . find[] it would be detrimental for the child to be returned to the parents.”
On this record, we have no difficulty concluding the juvenile court’s findings of detriment are supported by substantial evidence. (In re Alvin R. (2003) 108 Cal.App.4th 962, 971 [in juvenile cases, as in other cases, “‘“the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact”’”]; In re Rocco M. (1991) 1 Cal.App.4th 814, 820 [same].)
3. The Juvenile Court Did Not Abuse Its Discretion in Denying Anthony E.’s Section 388 Petition
“‘A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. . . .’” (In re Mary G. (2007) 151 Cal.App.4th 184, 205.) We review the juvenile court’s decision to grant or deny a petition under section 388 for abuse of discretion. The appellate court will not disturb the juvenile court’s decision unless the juvenile court made an arbitrary, capricious or patently absurd determination. (Ibid.; see also In re Angel B. (2002) 97 Cal.App.4th 454, 460.)
Anthony E. insists he established the required changed circumstances because he had resolved his outstanding probation issues. Even accepting this point (a determination the juvenile court apparently did not make), Anthony E. failed to demonstrate the modification he sought -- a change in the custody of A. S. -- would promote the child’s best interests. Anthony E. submitted no evidence of a strong bond (indeed, of any bond at all) with A. S. or any other proof that removing A. S from his current preadoptive placement and placing the child with him would benefit A. S. Rather, the entirety of his section 388 petition rested on the fact he was a nonoffending parent. That fact alone, without a showing that the change in placement would be in the child’s best interests, is insufficient and does not justify granting the section 388 petition.
4. The Trial Court Did Not Abuse Its Discretion in Denying Anthony E.’s Request for a Continuance
The juvenile court may continue a dependency hearing upon a showing of good cause, provided the continuance is not contrary to the interest of the minor. (§ 352.) The court’s ruling denying a continuance is reviewed for abuse of discretion. (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187.)
Anthony E. did not attend the February 20, 2008 hearing. At that hearing, his counsel requested a continuance to secure his presence but did not explain the reason for Anthony E.’s absence. The court observed, in a telephone conference “a couple of hearings” earlier, Anthony E. had revealed that he was no longer in custody and intended to come to California for the dependency court hearings. Yet he did not come to California and, as had become somewhat characteristic of Anthony E., had not been in contact with the Department, his attorney or the court. Anthony E.’s counsel advised the court he had sent a letter to Anthony E. to which Anthony E. had not responded. Finding no “good cause” to support a continuance, the court denied it. Anthony E. advances nothing in this appeal suggesting that decision was an abuse of the juvenile court’s discretion.
5. Limited Remand Is Necessary To Comply with ICWA
a. Governing law
The purpose of ICWA is to “‘protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.’” (In re Karla C. (2003) 113 Cal.App.4th 166, 173-174, quoting 25 U.S.C. § 1902; see also In re Suzanna L. (2002) 104 Cal.App.4th 223, 229; In re Santos Y. (2001) 92 Cal.App.4th 1274, 1299.) “ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource.” (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) For purposes of ICWA, an “Indian child” is a child who is either a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4).)
When a court “knows or has reason to know that an Indian child is involved” in a juvenile dependency proceeding, the court must give the child’s tribe notice of the pending proceedings and its right to intervene. (25 U.S.C. § 1912(a); In re S. B. (2005) 130 Cal.App.4th 1148, 1157.) “Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under [ICWA] irrespective of the position of the parents, Indian custodian or state agencies.” (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.)
Although ICWA notice provisions apply if the court “knows or has reason to know that an Indian child is involved,” neither ICWA itself nor the federal regulations define “reason to know.” (See In re H. B. (2008) 161 Cal.App.4th 115, 120, fn. 3; In re S. B., supra, 130 Cal.App.4th at p. 1158, but see § 224.3, subd. (b) [providing examples of circumstances that may provide reason to know the child is an Indian child.)
Under federal regulations an ICWA notice must include, if known, (1) the name, birthplace and birth date of the Indian child; (2) the name of the tribe in which the Indian child is enrolled or may be eligible for enrollment; (3) names and addresses of the child’s parents, grandparents, great-grandparents and other identifying information; and (4) a copy of the dependency petition. (See 25 C.F.R. § 23.11(d)(3) (2003), 59 Fed.Reg. 2248 (eff. Feb. 14, 1994).) “[T]o establish tribal identity, it is necessary to provide as much information as is known on the Indian child’s direct lineal ancestors.” (25 C.F.R. § 23.11(b) (2003).) Because failure to provide proper notice of dependency proceedings may foreclose participation by the tribe, ICWA notice requirements are “‘strictly construed.’” (In re Karla C., supra, 113 Cal.App.4th at p. 174.)
Former rule 1439(f)(1) of the California Rules of Court, in effect at the time the notices were sent in this case, required the ICWA notice be sent, with a copy of the dependency petition, on Judicial Council Form JV-135, Notice of Involuntary Child Custody Proceedings for an Indian Child (Juvenile Court). That form, which was in fact used by the Department in this case, calls for information, including the current address, concerning the child’s parents, grandparents and great-grandparents. Effective January 1, 2007, the California Rules of Court were renumbered; and former rule 1439 because rule 5.664. Effective January 1, 2008, former rule 5.664 was repealed and replaced, in part, with current rule 5.481. Current rule 5.481(b)(1) requires notice be given as specified in section 224.2, which, effective January 1, 2007, codified as state law the existing federal notice requirements discussed in the text. (Stats. 2006, ch. 838, § 31; see In re Alice M. (2008) 161 Cal.App.4th 1189, 1198-1199.)
b. Relevant proceedings for A. S. and C. S.
At the September 21, 2005 detention hearing for A. S., the Department reported that ICWA may apply because Tabitha S. indicated A. S.’s deceased maternal great-grandmother, Maxine B., was part American Indian, had been affiliated with the Nez Perce tribe and had lived in Lewiston, Idaho. Although A. S.’s maternal grandparents disputed Tabitha S.’s representation of Indian ancestry, on January 13, 2006 the juvenile court continued the disposition hearing to February 15, 2006 and ordered the Department to provide proper notice to the appropriate tribes and to the BIA under ICWA. On January 25, 2006 the Department sent the ICWA notices. Those notices included A. S.’s name, date and place of birth and the hearing date and time; identified Tabitha S. and provided her alias and her last known address; identified A. S.’s maternal grandparents, their birthdates and places of birth; and identified A. S.’s maternal great-grandparents, their birthdates and places of birth. However, the notices did not include any addresses for the maternal grandparents, stating their address was “unknown.”
As to C. S., no ICWA notice was ever provided. Instead, the Department reported to the court ICWA did not apply, relying on the court’s March 2, 2006 findings relating to A. S.
c. The Department failed to comply with ICWA as to both A. S. and C. S.
Anthony E. properly asserts the ICWA notice for A. S. was defective because it omitted the address of A. S.’s maternal grandparents. Although the Department interviewed the material grandparents and thus plainly had an opportunity to verify their residence or mailing address, it failed to include any address at all for them in the notice, instead declaring the address was unknown. That omission was error. (See In re S. M. (2004) 118 Cal.App.4th 1108, 1116 [social worker “‘has a duty to inquire about and obtain, if possible, all of the information about a child’s family history’” required under the regulations promulgated to enforce ICWA].)
The Department does not defend the ICWA notice, arguing only that any omission in the information provided was harmless. To support its contention, the Department relies on In re Brandon T. (2008) 164 Cal.App.4th 1400, in which the Court of Appeal held omission of information about the child’s maternal grandfather and paternal grandmother was harmless because the claimed Indian ancestry was through the maternal grandmother and maternal great-grandmother. Here, however, the omitted information pertained directly to the relative who is alleged to be of Indian ancestry.
The inclusion of the known addresses of the grandparents is a federal ICWA requirement. (See 25 C.F.R. § 23.11(d)(3).) Deficient notice under ICWA is usually prejudicial. (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1411; see In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424 [“failure to provide the required notice requires remand unless the tribe participated in the proceedings or expressly indicated they have no interest in the proceedings”].) Because there is a direct nexus between the omission in the notice as sent and ICWA’s objectives, we are unable to conclude the violation of the federal statutory requirements is harmless error. (Cf. In re H. B. (2008) 161 Cal.App.4th 115, 122 [failure to comply with a higher state standard, above and beyond what ICWA requires, must be held harmless unless appellate can show reasonable probability he or she would have enjoyed a more favorable result absent the error]; In re S. B., supra, 130 Cal.App.4th at p. 1165.)
Although issues involving C. S. are not properly before us, the ICWA error as to A. S. was compounded when the Department relied on the lack of response to its defective notice to advise the court ICWA did not apply to A. S.’s younger brother. (See In re G. S. R., supra, 159 Cal.App.4th at p. 1216 [juvenile court’s conclusion that ICWA not implicated improperly relied on defective ICWA notice in prior dependency proceeding].) Moreover, even if the ICWA notices for A. S. had not been deficient, it would still be error for the Department to rely on those notices to conclude C. S. had no Indian ancestry. (See In re Robert A. (2007) 147 Cal.App.4th 982, 990 [ICWA notices must be sent for each child; “ICWA notices in separate dependency cases are not fungible evidence -- even when the separate cases involve half siblings who share the same parent with Indian heritage”].)
In light of the ICWA violation, we conditionally reverse the February 20, 2008 order terminating Anthony E.’s parental rights as to A. S. and remand with directions to the juvenile court to order the Department to provide proper notice under ICWA as mandated by federal law, section 224.2 and California Rules of Court, rule 5.481(b)(1). (See Tina L. v. Superior Court (2008) 163 Cal.App.4th 262, 268 [limited remand to ensure ICWA compliance]; In re Francisco W. (2006) 139 Cal.App.4th 695, 705-706 [“limited reversal disposition in defective notice ICWA appeals is in keeping with the public policy of our child dependency scheme, which favors prompt resolution of cases”].) If a tribe or the BIA responds indicating A. S. is an Indian child within the meaning of ICWA and seeks intervention, the juvenile court is to consider which, if any, of its prior orders, in addition to the order terminating parental rights, should be vacated in order to conduct new proceedings consistent with the procedural and substantive requirements of ICWA. If neither a tribe nor the BIA indicates A. S. is an Indian child, the juvenile court shall reinstate its order terminating parental rights.
DISPOSITION
The February 20, 2008 order terminating Anthony E.’s parental rights as to A. S. is conditionally reversed and the matter remanded to the juvenile court with directions to order the Department to comply with the notice provisions of ICWA. If, after proper inquiry and notice, a tribe or the BIA responds indicating A. S. is an Indian child and seeks intervention, the juvenile court is to consider which, if any, of its prior orders, in addition to the order terminating parental rights, should be vacated in order to conduct new proceedings consistent with the procedural and substantive requirements of ICWA. If neither a tribe nor the BIA indicates A. S. is an Indian child, the juvenile court shall reinstate its order terminating parental rights.
We concur: ZELON, J. JACKSON, J.