Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. Nos. J38174; J38175; J38886.
Richman, J.
Appellant H.F. appeals following a Welfare and Institutions Code section 366.26 hearing that resulted in the termination of his parental rights to three of his children, sons A.L. and H.L. and daughter S.L. He presents two arguments on appeal. First, he contends that the trial court abused its discretion when it denied his section 388 petition seeking to change the court’s order terminating reunification services. This argument lacks merit. Second, he contends that respondent Solano County Department of Health and Social Services (the Department) failed to comply with the notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). As the Department concedes, this argument is well taken. We therefore conditionally remand for the limited purpose of compliance with ICWA notice requirements.
All subsequent statutory references are to the Welfare and Institutions Code unless otherwise noted.
BACKGROUND
Detention
On December 12, 2007, a social worker from the Department went to an apartment building in Vallejo to conduct a welfare check after receiving information that mother P.L. was using drugs around her children, 20-month-old A.L. and four-month-old H.L. The social worker was accompanied by three Vallejo police officers in light of an outstanding warrant for P.L.’s arrest. They found P.L. and the two children in a bedroom they had been renting. The room, which smelled as if someone had recently been smoking methamphetamines, was filled to capacity with belongings piled up to four and a half feet high, with a small space on the floor for bedding. The officers found two glass pipes used to smoke methamphetamines and several small plastic baggies typically used to package narcotics for sale. H.L. was wearing a soiled diaper, and there were no clean diapers in the home. P.L. was arrested on the outstanding warrant and the children taken into protective custody.
P.L. is not a party to this appeal. We therefore omit facts regarding her except where relevant to the issues before us.
Two days later, the Department filed a section 300 petition on behalf of A.L. and H.L., alleging that father H.F., whose whereabouts were unknown, and P.L failed to protect the children (§ 300, subd. (b)), made no provision for their support while P.L. was in jail (§ 300, subd. (g)), and abused or neglected a sibling of the children (§ 300, subd. (j)).
P.L.’s two older children, Isabella and Christian, lived with her mother in Georgia. H.F. was not the father of Isabella or Christian.
In factual support, the Department detailed the circumstances surrounding the children’s detention, also explaining that P.L. had a history of untreated substance abuse which rendered her incapable of providing regular care for the children. According to the Department, P.L. first came to its attention in May 2001, when the boys’ half sister, Isabella, was born. At the time of her birth, both P.L. and Isabella tested positive for methamphetamines. P.L. denied using illegal drugs and declined all services. In April 2006 and August 2007, when A.L. and H.L. were born, P.L. again tested positive for methamphetamines, as did the babies.
As to H.F., identified in the petition as the alleged father, the Department alleged that he was unemployed, used methamphetamines with P.L., and was unable to care for the boys due to his substance abuse problems.
In an intake report filed the same day as the petition, a social worker related that she had met with P.L. the previous day. P.L. claimed that the family was being evicted from the room they were renting because they had been unable to pay rent after someone stole her purse. Their belongings were piled up because they were preparing to move. Before the police arrived, H.F. had just left to go get diapers and a moving truck. P.L. denied using drugs since she gave birth in August 2007, but was purportedly willing to address her substance abuse problems.
Following a detention hearing on December 17, 2007 (at which neither parent appeared), the court ordered both boys detained and placed in a foster home.
Arraignment
On January 2, 2008, P.L. and H.F. both signed parental notifications of Indian status representing that, to their knowledge, they had no Indian ancestry. Based on their representations, the court found that ICWA did not apply. After declaring H.F. to be the presumed father of both children, the court set a contested jurisdictional hearing for January 30, 2008.
At the January hearing, the court noted that it had previously found ICWA to be inapplicable. By agreement of the parties, the matter was then continued to February 26, 2008 for a combined jurisdictional/dispositional hearing.
Jurisdiction and Disposition
In a combined jurisdictional/dispositional report, the Department explained that P.L.’s history with the Department dated back to 2001 and that, despite her denials, she had substance abuse problems dating back at least that far. H.F., the Department noted, was aware of P.L.’s substance abuse and that she continued to abuse drugs during her pregnancies with both A.L. and H.L. According to the Department, the substance abuse problems of both parents contributed to their lack of stable housing, the lack of medical care for their children, and the poor conditions under which they were living when the children were detained.
The Department also explained that, although it had made referrals to both parents for substance abuse assessments and voluntary services, neither parent participated in the services, responded to repeated attempts to contact them, or appeared for random drug testing. Further, in the two months since detention, they had visited with the children only once, with numerous visits having been canceled because they either failed to call in advance or show up. The Department summarized: “Although the parents stated that they would ‘do anything’ to get their children back, neither parent has engaged in services and both have avoided contact with the Department. Due to the lack of cooperation with services, coupled with the young ages of the minors in question, the risk to the children remains very high. The Department is looking forward to working with the family and with the children doing well in their transition to foster care and continuing to thrive, the Department is hopeful that these children can be returned to the care of their parents quickly.”
The Department recommended that the court adjudge A.L. and H.L. dependents of the juvenile court, continue their detention, and order reunification services for P.L. and H.F. Appended to the report was a case plan (prepared without input by P.L. and H.F. who failed to meet with the case manager or the social worker) that required both parents to participate in substance abuse treatment, obtain suitable housing for the family, and attend a parenting skills program. Supervised visitation was to be permitted for a minimum of three hours per week.
On February 26, 2008, counsel for H.F. requested a continuance of the contested jurisdictional/dispositional hearing because she could not locate H.F. The court set a trial management conference for March 5 and continued the jurisdictional/dispositional hearing to March 25, 2008. By the time of the March 5 hearing, H.F. had been located at the Solano County Detention Facility, where he had been incarcerated since February. He did not appear at the trial management conference, but requested a paternity test through his attorney, which the court then ordered.
The court would later make a finding of paternity as to both A.L. and H.L. and enter a judgment of paternity.
The contested jurisdictional/dispositional hearing was held on March 27, 2008. Though P.L. did not appear, H.F. was transported from jail for the hearing. At the outset of the hearing, the court reiterated its prior finding that ICWA did not apply. After H.F. submitted on the basis of the Department’s report, the court adjudged A.L. and H.L. dependents of the juvenile court, ordered reunification services and supervised visitation for both parents, and continued the matter for a six-month status review.
Six-Month Review
On September 19, 2008, in advance of the six-month review, the Department filed a status report recommending termination of reunification services as to P.L. She had visited with the children once in August and had not been in contact with the Department since. She failed to provide an address, the telephone numbers she had provided were unreliable, and her whereabouts were unknown. And she had been provided with numerous referrals for services but had not participated in parenting classes or substance abuse services, nor had she cooperated with a required substance abuse assessment or submitted to drug testing.
As to H.F., however, the Department recommended continuing reunification services. It noted that while in custody, he was participating in the Keys to Recovery drug and alcohol treatment program, attending five days per week, three hours per day. The program also included parenting classes. H.F. had been receiving visits with the boys since September 4, although jail rules required him to be shackled which restricted his visits. Apparently due to his incarceration, the Department had no drug testing results for H.F. for any date.
According to the report, A.L. and H.L. were both doing well. They were receiving regular medical care and were meeting their developmental targets. They were residing in the foster home where they had been placed at the time of their initial detention, and their caregiver was willing to provide a permanent home for the boys.
In the report, the Department raised for the first time the possible applicability of ICWA, reporting that “On March 4, 2008, P.L. spoke to her mother by telephone and reported to [the social worker] that her mother is part Cherokee Indian.... P.L.’s mother reported that P.L.’s great grandmother was full-blooded Cherokee and was named Lillie Green (née Belk). P.L.’s mother reported that Lillie Belk lived in Savannah, Georgia, having moved there from the Charlotte, North Caroline [sic] reservation. [¶] In light of this information, the Department is in the process of notifying the identified tribes and Bureau of Indian Affairs.”
At the September 24, 2008 six-month review hearing, counsel for P.L. contested termination of reunification services, and the court set a contested hearing for October 8, 2008. It also rescinded its previous finding that ICWA was inapplicable.
On October 8, 2008, the Department filed a copy of the notice of child custody proceeding for Indian child (ICWA-030) that it had sent to the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee, the Cherokee Nation, and the BIA the previous day. The notice provided the names, birthdates, birth places, and past and present addresses for P.L. and H.F. It also identified the name and address of P.L.’s mother, and the name, city of residence, and birth date of P.L.’s grandmother. When asked to identify the potential tribe or band in which P.L., her mother, and her grandmother may have been eligible for membership, the Department identified the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee, and the Cherokee Nation. It left blank a section inquiring whether the child or any ancestor had ever lived on a reservation and, if so, the relationship to the child and the name of the property. Significantly for our purposes, the form made no mention of P.L.’s great grandmother, failing to list her maiden or married names and the fact that she had lived on a reservation in Charlotte, North Carolina.
On October 9, 2008, P.L. gave birth to S.L., A.L. and H.L.’s sister. Like her brothers, S.L. tested positive for methamphetamines at birth and was thus removed from P.L.’s care and placed in the same foster home as her brothers. The Department filed a section 300 petition as to S.L., alleging that P.L. and H.F. failed to protect her due to their substance abuse problems (§ 300, subd. (b)), made no provision for her support (§ 300, subd. (g)), and had abused or neglected her siblings (§ 300, subd. (j)).
At a contested six-month review hearing on October 29, 2008, the court found that P.L. failed to participate in her case plan and to make substantial progress in treatment. Because there was not a substantial probability of returning A.L. and H.L. to her care within six months, the court terminated reunification services as to P.L. It did, however, continue services as to H.F. As to ICWA applicability, the court noted that the Department was still at the “noticing level of procedure....”
On December 12, 2008, the Department filed ICWA compliance documents. The supporting documents included letters from the Cherokee Nation, the Eastern Band of Cherokee Indians, and the United Keetoowah Band of Cherokee, all of which indicated that based upon the information provided by the Department, A.L. and H.L. were not considered Indian children within the meaning of ICWA.
At a January 22, 2009 contested jurisdictional/dispositional hearing concerning S.L., the court found her to be within the jurisdiction of the juvenile court, bypassed reunification services for P.L., and ordered reunification services for H.F.
12-Month Status Review
In a February 25, 2009 12-month status review report, the Department represented that the three Cherokee bands notified of the dependency proceeding had responded that they were unable to determine that A.L. and H.L. were eligible for membership and enrollment and therefore the children did not come under ICWA laws. Further, sixty days had passed since the BIA was notified and it had not responded. The Department therefore requested a finding that ICWA did not apply.
The Department also recommended extending reunification services to H.F. for an additional four months, to the 18-month review period. While incarcerated, H.F. had completed 90 days of substance abuse treatment and had been awarded a certificate of completion for parenting classes. Following his release, however, he failed to follow up on a referral to an outpatient substance abuse program and was no longer eligible for the group. He was then referred for a substance abuse assessment and had an appointed scheduled on January 29, 2009.
As to visitation, H.F. had one visit per week with A.L. and H.L. during his incarceration. Since his release, he was offered two supervised visits per week. He had visited on January 2, 2009 and January 15, 2009 but did not cancel or show up for a scheduled visit on January 8, 2009. The Department explained that it required H.F. to contact it by 5:00 p.m. the evening before a visit to confirm his attendance or the visit would be considered canceled. Despite this request, visits on January 12 and 22, 2009, were cancelled because H.F. did not call the night before to confirm. The Department noted that H.F. was struggling with the request because he had difficulties making telephone calls, and it was trying to allow some flexibility while accommodating the foster mother’s need for sufficient notice so she could prepare the three children for the visit. The Department observed that H.F. “will need to demonstrate consistency in visitation and maintain a relationship with his children.”
According to the Department, H.F. consistently expressed his desire to reunify with his children and recognized the need to obtain employment and housing in order to care for his three children. He claimed that he had developed tools that would help him remain drug-free, but was feeling discouraged about finding a job due to his criminal history and the poor job market.
Testing had since confirmed that H.L. was S.L.’s biological father.
The Department noted that H.F. needed to make an active effort to continue substance abuse treatment and parenting classes following his release from jail and to be consistent with visitation. It concluded that “Four additional months of family reunification services will allow the father to demonstrate commitment to his children, including full participation in visitation and his case plan service objectives. The father’s strengths include his work history in the health care field, his ability to identify his substance abuse issues and seek treatment, and positive interactions with his children. The father was reported to being [sic] a playful, patient, and nurturing parent to his sons, A.L. and H.L., during visits. A.L. is interactive with his father and calls him ‘daddy.’ Although H.L. appears to be attached to the substitute care provider, he does respond to the father when his name is called, and was observed interacting with him during play. With the arrival of his daughter, S.L., the father is determined to reunify with all three children. The father is aware of the challenges of caring for three small children all under the age of 5, and plans to refer to his family for support. The Department will continue to work with community organizations to help the father access services that are relevant to his case plan, and housing and financial resources in preparation for him to resume care of his children.”
At the February 25, 2009 12-month review hearing, the court began with a discussion of ICWA applicability. In light of P.L.’s prior representation that she was of Cherokee Indian descent, the court wanted to “take a careful look as to what information went to the Cherokee tribes, if any, and the BIA, [to] make sure that all the information that [P.L.] may have is on those notices.” The following colloquy between the court and counsel for P.L. ensued:
“THE COURT:... [¶] Let’s just take a moment to go over that with Mr. Solt and his client, make sure that there isn’t anything that mother knows that is not already on the notices. [¶]... [¶]
“MR. SOLT: My client indicates that her mother or grandmother spoke with the Department about the Cherokee tribes that they were affiliated with. And it looks like that they have complied with those tribes. I don’t know if my client-I don’t have a copy of that with me right now.
“THE COURT: Well, what I would ask you to take a moment to do is, just to make sure that the information contained on the notices that went to the tribes is not missing anything that your client knows about. She wouldn’t know what was told by the other person. But while we have her here, if she has information that she knows that was not supplied, let’s catch it now rather than a year down the road.
“MR. SOLT: Thank you, your Honor.
“THE COURT: Sure. Okay? As far as your client knows, is that all the information she has?
“MR. SOLT: Yes.
“THE COURT: Okay. Very good. All right. And I am assuming that the Department has included on the notice all the information, that it goes for any other relative. [¶] So I am prepared to make a finding today that ICWA does not apply.”
Despite the court’s urging, no one raised the fact that the notice failed to include information regarding P.L.’s great grandmother.
After the parties submitted on the Department’s report, the court continued reunification services for H.F. for four months and set the matter for a June 10, 2009 18 month review hearing.
18-Month Review
In a May 22, 2009 18-month status review report, the Department recommended that A.L., H.L. and S.L. remain in out-of-home placement and that reunification services for H.F. be continued. The Department noted that H.F. was unemployed but searching for work, although he continued to feel discouraged about his job prospects. In the meanwhile, he was receiving food stamps and Medi-Cal while awaiting a response from General Assistance regarding his application for financial assistance. Although he was participating in an outpatient substance abuse treatment program, he had relapsed three times in late April and early May 2009. According to the Department, when questioned about his first positive methamphetamine test, H.F. did not admit to his relapse, claiming instead that he drank a contaminated soda at a party.
It was the six-month review for S.L.
Despite these relapses, the Department opined that H.F. was making progress with his case plan objectives. He was consistently attending and participating in a parenting support group. He agreed to attend two NA/AA meetings per week, submit a list of people whom he could immediately contact should he use drugs or feel the urge to do so, and submit to random drug testing. He was also assigned a substance abuse counselor to complement the weekly group sessions he was to attend. Based on the recommendation of his counselor, H.F. was referred for a residential drug treatment program. Because there was no bed available at the time, however, he was placed on a waiting list and was to continue outpatient treatment until a residential program had an opening.
With respect to visitation, the Department noted that H.F. had attended 22 out of 25 visits since February 26, 2009. He had been granted unsupervised visits, but that arrangement was revoked after he allowed P.L., who was only permitted supervised visits, to be present at two of the visits. Additionally, H.F. had taken the children to his home without the social worker having first assessed its appropriateness for visits.
The Department concluded that while H.F. was attempting to remedy the problems that led to his children’s detention, he needed to demonstrate that he could maintain his abstinence, comply with the terms of visitation, and provide safe and stable housing for his children. It recommended that the children remain in out-of-home placement and reunification services be continued.
At the June 10, 2009 18-month status review hearing, counsel for the children opposed the Department’s recommendation for continuation of services. The court expressed skepticism that it could terminate services at that point because H.F. had only been provided services as to S.L. for six months. It then set a contest date for July 28, 2009.
Two days later, H.F. was terminated from his drug treatment program following a positive drug test. The discharge summary explained that he “had too many positive tests. He was unable to stay clean in outpatient.” Residential treatment was again recommended on the ground that H.F. needed a “higher level of treatment.”
A July 27, 2009 addendum filed by the Department advised the court that in light of H.F.’s positive drug tests and termination from his substance abuse treatment program, it was now recommending that the court terminate reunification services and set a section 366.26 hearing. It explained: “Since being discharged from the program, the father reported that he was attending NA/AA meetings but has provided no verification of attendance. On July 15, 2009, the father was asked to submit a hair and urine test at C-Dat the following day which would have been July 16, 2009. On July 23, 2009, the undersigned contacted C-Dat who confirmed that the father did not drug test that day. The undersigned attempted to contact the father... but has been unable to reach him for drug testing. The father has moved to a new home and has not provided the undersigned with his new address and telephone number as requested. Since the filing of the Status Review Report, the father has missed six (6) scheduled visits with his children and struggles to call to confirm his attendance as required. [¶]... [¶] Over Eighteen (18) months of reunification services has [sic] been offered and the father has not demonstrated that he can stay clean in the community. The father’s substance abuse renders him incapable of providing adequate care, protection, and supervision for his children; in addition, his housing situation has been unstable during this reporting period. The conditions that originally brought this family before the Juvenile Court continues [sic] to exist and there is no substantial probability that the minors will be able to safely return home within the next six months.”
At the September 1, 2009 contested hearing, which had been continued from July 28 due to the Department’s change in position and filing of the addendum, the Department requested termination of services for H.F. Neither P.L. nor H.F. appeared. Following testimony by the social worker regarding H.F.’s failure to comply with his case plan, including his drug relapses, and the Department’s efforts to refer H.F. to a residential drug treatment program, the court questioned whether it could find that the Department had provided reasonable services when it was made clear by H.F.’s outpatient treatment program that he needed residential treatment but that no space in such a program was available. The court then continued the matter so the parties could brief two issues: (1) whether reasonable services were provided to H.F.; and (2) whether services could be extended for all of the children based upon their status as a sibling group in which S.L., who was under three, had received only six months of services, or whether services on behalf of all of the children must be terminated because H.F. had received 18 months of reunification services as to A.L. and H.L.
The parties submitted the requested briefing, and the hearing resumed on September 15, 2009. At the conclusion of the hearing, the court adopted the recommendation of the Department and terminated services. It explained that it was a difficult decision but that after weighing the pros and cons, H.F. “came up short....” If it were a situation where H.F. had been availing himself of offered services while waiting for a residential bed to become available, that would, opined the court, constitute extraordinary circumstances justifying the extension of services. But that was not what had happened. Instead, the court explained, since H.F.’s discharge from his treatment program in May, the Department was unable to reach him, and he failed to submit to drug testing and maintain regular visitation with the children. Furthermore, he essentially had been through a residential program, having completed the Keys to Recovery substance abuse program while incarcerated, but he nevertheless relapsed after his release. Finally, the court noted that H.F. was not new to services, as A.L. and H.L. had been detained for more than 18 months. With that, the court terminated services and set the matter for a section 366.26 hearing on January 6, 2010. At the request of counsel for the Department, it also reiterated its prior finding that ICWA did not apply.
On September 21, 2009, H.F. filed a notice of appeal challenging the termination of reunification services (no. A126195). Because the order was not appealable but was reviewable by a petition for an extraordinary writ, we deemed the notice of appeal to be a notice of intent to file a petition pursuant to California Rules of Court, rule 8.450. Because H.F. had not signed the notice, however, we advised that in the event a petition was filed, counsel must include a declaration that satisfied the requirements of rule 8.450(e)(3). No writ petition or declaration was filed.
Section 366.26 Hearing
On December 15, 2009, the Department submitted its section 366.26 report recommending termination of parental rights and a permanent plan of adoption. It summarized H.F.’s visitation history, noting that he had eight visits in 2008 (seven of which occurred while he was in jail), 14 out of 24 visits from January to March 2009, seven visits in April 2009, no visits in September and October 2009, and one visit each in November and December 2009. The Department characterized the visits as positive, noting that H.F. would play with the children, bring them snacks, and change their diapers.
The report related a social worker’s recent interview with P.L. and H.F.: “On December 3, 2009, when I interviewed Mr. F. and Ms. L., they blamed the Department for not helping them. They admitted that they have been together on and off for seven years. They reported that they were told to pretend that they were not together and that they do not know who to trust at Child Welfare. Mr. F. and Ms. L. are still struggling and trying to get on their feet. Mr. F. and Ms. L. have been provided family reunification services and they have not completed their case plans. They have not progressed in services sufficiently to have unsupervised visitation. Mr. F. was provided 18 months of family reunification services and the children have been in foster care for two years already. Mr. F. and Ms. L. would like to have custody of their children. However, they cannot provide for the children’s basic needs, they still have inadequate housing for a family of five, they do not have financial stability, Ms. L. has not maintained a relationship with the children, they have not shown for any substantial period of time that they can stay drug free, and both of the parents appear to be suffering from depression. Mr. F. and Ms. L. are both missing teeth, which is indicative of long-term methamphetamine abuse. Although Mr. F. has maintained some visitation with his children, the visitation has been sporadic and the benefits of adoption outweigh the relationship between Mr. F. and his children.”
After noting that the children were young, healthy, able to attach to parental figures, and adoptable, the Department concluded: “The L. children are young children in need to [sic] a permanent home. The children have been in foster care for a substantial period of time and they deserve to be in a permanent home with stability. The children have been assessed as adoptable. Their caretaker has expressed her desire to adopt the children. The children are doing well in their placement. Termination of parental rights is not detrimental to the children. Adoption is in the best interest of the children. There is clear and convincing evidence that the children will likely be adopted.”
Section 388 Requests to Change Orders
Shortly before the section 366.26 hearing, H.F. and P.L. both filed requests to change an order of the court pursuant to section 388. P.L. sought to change the court’s January 22, 2009 order bypassing reunification services for S.L. She claimed to have been clean and sober for over six months and to be participating in a structured substance abuse program. Pregnant once again, she was also obtaining prenatal care and education regarding how to have a healthy pregnancy and baby. Appended to P.L.’s request was a six-month certificate of sobriety from Vallejo Fellowship, an attendance sheet for AA/NA meetings, and a letter confirming her participation in a substance abuse treatment program through Youth and Family Services.
Referred to as JV-180 requests or section 388 petitions or requests.
H.F. sought to change the court’s September 15, 2009 order terminating reunification services. In Exhibit A to the request, identifying “what changed after the judge’s order that would change the judge’s mind, ” H.F. claimed to have made “substantial progress” toward addressing his substance abuse issues, purportedly having been clean and sober since May 2009. He was regularly attending NA/AA meetings and church and was participating in prenatal classes with P.L. In Exhibit B, addressing why the requested changes would be better for the children, H.F. stated, “A significant bond exists between these three children and their parents. The parents continue to live together and could provide a two parent home for the children upon successful reunification. As both parents have made significant progress in dealing with their substance abuse issues, there is now a substantial likelihood of reunification.” Like P.L., H.F. appended attendance sheets for AA/NA meetings, purporting to reflect attendance at 35 meetings, 27 of which had occurred between December 12, 2009 and January 8, 2010, and a letter confirming H.F.’s participation in prenatal classes.
The other eight meetings occurred in April, May, and June 2009.
The court granted an evidentiary hearing on the requests, scheduled to coincide with the February 3, 2010 contested section 366.26 hearing.
Hearing on the Section 388 Requests
On February 3, 2010, the court heard the section 388 requests, with H.F. the first to testify. He explained that he and P.L. had been living together, but she had recently moved. He was planning to do the same, renting a room from someone in his bible study group, although he did not know the address of his intended residence. He testified that he had been clean since May 2009, was attending three to five AA/NA meetings per week, was working on the second of the 12 steps, and received a key chain for being clean for six months. He was submitting to drug testing as required by the terms of his probation, and as far as he knew, his tests had been clean since September 2009. Similarly, he had not been advised of any probation violations since September 2009. He had been attending prenatal classes with P.L., including car seat, parenting, and childcare classes. He was participating in visits with his three children, but his lack of transportation sometimes made it difficult to get to the visits. He was allowed two visits per month, and made two visits in November 2009, two in December 2009, and one in January 2010. H.F. denied that he recently refused a drug test requested by the Department, claiming instead that he was ill at the time, and did not recall failing to take a drug test requested by the Department in August 2009.
P.L. testified next, explaining that she had just moved out of the home where she and H.F. had been tenants because it was not a safe living environment. She had moved into a sober living home called “The Renaissance Family Center, ” which allowed children. She and H.F. were still a couple and were in fact expecting another child. She had been clean and sober for the past seven months and was participating in a program called Project Aurora, a program for pregnant women that included individual and group counseling and parenting instruction. She was attending NA/AA meetings three to five times a week and church on a regular basis. She was getting prenatal care, was enrolled in a smoking cessation program, and had taken classes in baby care, breastfeeding, and car seat usage.
P.L. acknowledged that she had missed numerous visits with her children, including all visits during a seven-month period when she was homeless, had no telephone, and was stressed and depressed due to H.F.’s incarceration. She lacked reliable transportation and funds and had difficulty trusting people who let her down about transportation. She found it hard to express herself, had a problem dealing with people, and made little effort to maintain contact with the social worker. P.L. acknowledged that the problems were her own fault, but claimed that the programs in which she was participating had helped changed her perspective.
Franceen Rea, a social worker from the Department, testified that she had reviewed the documents submitted in support of the parents’ section 388 requests. As to the signatures purportedly attesting to their attendance at NA/AA meetings, she testified that both parents submitted attendance records containing duplicate signatures. Particularly as to H.F., nine of the signatures from December 2009 and January 2010 were duplicates, meaning that he had attended at least nine fewer meetings than he claimed. She also testified that the week before the hearing, she had requested that H.F. and P.L. submit to a hair strand test which would test for drug use over the past 90 days, but they did not show up for the test. Neither parent had supplied her with any evidence of drug testing since September 2009.
As to visits, Ms. Rea testified that H.F. did not visit with his children in September 2009 or October 2009. He visited once in November, twice in December, and once in January 2010. Ms. Rea observed H.F.’s visits during November and December, testifying that he brought snacks and acted appropriately, and that the children appeared to follow his directions. She confirmed that previous social workers had noted that the children appeared bonded to him. His visits had previously been reduced to two per month because he had missed a number of visits and then services were terminated. As to visitation by P.L., Ms. Rea testified that that P.L. had not visited with the children from September through November 2009. She visited twice in December 2009 and once in January 2010.
The Department’s report noted one visit in December. Presumably H.F. had visited with the children for a second time in December after the Department submitted its report.
Following the presentation of evidence, counsel for H.F. argued that the change of circumstances justified granting H.F.’s request to change the order terminating reunification services. His substance abuse problems had prompted the Department’s involvement, and while he had been assessed as needing residential treatment, there was no such program available to him before reunification services were terminated. Despite this, he had “done his best to cobble together services since that time without the help of the Department, ” abstaining from the use of drugs, remaining clean and sober, regularly attending NA meetings, complying with the terms of his probation, and becoming involved in church. In light of this change in circumstances, his counsel submitted, it would be in the children’s best interest to reinstitute reunification services.
Counsel for P.L. likewise argued that she had changed her circumstances by obtaining housing, remaining clean and sober, participating in a drug treatment program, and changing her attitude. Counsel claimed it would be in the children’s best interest “to remain in a sibling group with two parents who are both committed to their recovery and who are both committed to the children as a family.”
Counsel for the children disagreed, arguing instead that the circumstances were not very different from those at the inception of the dependency. H.F. was about to lose his housing again and was unable to provide a new address. He had lengthy period of time when he did not visit the children, and while he had resumed visitation, it was still sporadic. There were, she argued, changing circumstances, but not changed circumstances that warranted the reinstitution of reunification services.
Counsel for the Department likewise urged the court to deny the requests. She argued that the circumstances had not changed sufficiently to justify granting the parents’ request. She described their living situation as “tenuous, ” noting that they were being evicted from the house where they had been living, and H.F. was unable to provide an address of where he would be moving. She also noted that the NA attendance sheets contained duplicate signatures, making it appear that H.F. had attended more meetings than he actually had. She further argued that under section 388, H.F. bore the burden of showing not only a genuine change of circumstances, but also that modifying the court’s prior order was in the child’s best interest. And here, she argued, there was no evidence that extending reunification services was in the children’s best interest.
At the conclusion of arguments, the court the denied the section 388 requests, having this to say:
“I think there has been a change in circumstances and I think that the parents should be recognized for the efforts that they’ve made recently regarding their drug addiction issues. It’s important that they continue those efforts. There’s another child coming and to give that child a chance to remain with the parents, it’s very important that they be successful in their drug treatment.
“However, in view of the amount of time that has been spent on the children who are presently before the court, the change isn’t enough for me to make the additional findings that are necessary to recommence reunification efforts. I don’t think that the general requirements of 388 apply to this case. I think what is-what is required is what would be sufficient for an extension of reunification services or at the time of the 26 hearing. I cannot make a finding that there’s a substantial likelihood that the children will be returned in the next six months. I cannot find that visits have been consistent and regular. They have been at times, but at times they have not been, so I think the designation ‘sporadic’ is the best that I can give.
“I don’t think that the children’s need for permanency at this stage is outweighed by any benefit that would be caused by reopening reunification services based on just a possibility of return rather than a substantial probability. So for those reasons I’m going to deny the petitions.”
Section 366.26 Hearing
After a brief recess, the court then commenced the section 366.26 hearing. Ms. Rea again took the stand, testifying that the children all assessed as adoptable, that it was very likely they would be adopted if they were freed for adoption, and that their caretaker was committed to adopting them.
When asked about the children’s relationship with their parents, Ms. Rea testified that P.L. did “not have a relationship with the children.” P.L. had visited three times since September 2009, and during the visits she interacted with the children very little, talking to them without playing with them. As Ms. Rea described it, “She was affectionate with them and she helped feed them, but I didn’t see a strong relationship between the children and her.”
Ms. Rea testified that she had personally observed two of H.F.’s visits with his children, who seemed to enjoy the time together. H.F. interacted with them, brought them toys and food, and played with them such that the visits were generally positive in nature. Nevertheless, she did not view the relationship between father and children as “strong, ” noting that although the two boys addressed him as “Daddy” and listened to him, they did not have a significant attachment to him. She reiterated that H.F. had not visited in September and October and had made four visits since November.
As to the children’s relationship with their foster mother, Ms. Rea described it as “very attached” such that the children looked to her for a parent/child relationship. The case had been going on for 25 months, and the three children had lived with their foster mother since their respective detentions. She had taken very good care of them, and the Department had no concerns about the placement.
H.F. also testified at the section 366.26 hearing. He stated that prior to the removal of A.L. and H.L., he was regularly involved in their care, such as feeding them and changing their diapers. Since the commencement of the case in December 2007, he had made as many visits as possible, including while he was incarcerated. When he arrived, often bearing food, toys, and birthday and Christmas presents, the children would run to him and call him “Daddy.” During the visits, he would play with and read to them, and correct them when they misbehaved. At the conclusion of some visits, the children wanted to leave with him because the visit was not long enough. He acknowledged that he missed some visits, but claimed it was because of difficulties with transportation (he traveled by bus from Vallejo to Fairfield) or “some misunderstanding.” Despite his separation from the children, he connected with them as their father and loved them very much.
P.L. did not testify, claiming it would be too emotionally challenging to do so. Instead, her attorney made an offer of proof as to what her testimony would be, representing that P.L. believed she had stayed connected to the children through visitation and that she had a bond with the children.
Argument followed the testimony. Counsel for the Department argued that at that stage in the proceeding, the focus was no longer on the parents but rather on permanence for the children. Based on the evidence presented, unless the court found that one of the exceptions to termination to apply, the court was compelled to terminate parental rights and free the children for adoption. The parent bond exception was, she argued, inapplicable because the parents did not and could not show that the children would be greatly harmed if the parental rights were terminated. The evidence showed sporadic visitation of a generally positive nature, which was insufficient to override the goal of permanency for the children. Given the age of the children and the length of time they had been in family reunification, it was time for permanence. She concluded: “[W]hile the Department commends the parents for the changes they appear to be making for the benefit of the child they are about to welcome, it’s time for permanency for A.L., H.L., and S.L. They’ve waited long enough. It’s time to free them so they can be adopted into a safe, secure, and stable home.”
Section 366.26, subdivision (c)(1)(B)(i).
Counsel for H.F. urged the court not to terminate parental rights, claiming the evidence established that the parental bond exception applied. The exception, she explained, prohibited the termination of parental rights where the parent has maintained regular contact with the child and where the child would benefit from continuing the relationship with the parent. This was, she contended, the case here. There was a strong bond between H.F. and his three children, he had lived with A.L. for one and a half years and H.L. for five months before the dependency action began, and since their detention, he had done his best to maintain regular contact with his children. The children were happy when he arrived for a visit, the interactions were appropriate and loving, and the children often cried or were sad when the visits were over.
Counsel for the minor concurred with the Department, disagreeing that the parental relationship exception applied in this case. Visitation had not been regular and consistent, nor did the evidence establish that it would be detrimental to the children to terminate parental rights.
Following the conclusion of argument, the court terminated the parental rights of P.L. and H.F. to all three children, explaining: “It is clear-it has been shown by clear and convincing evidence that it is likely that each of the three children will be adopted, which leads me to the exceptions. The only possible exception is the first one that counsel have mentioned. I do think that the visitation has been substantial and regular, but-and I do think that there is a bond between the children and their parents-but I don’t think it rises to the level that is contemplated by Autumn H. in that the parents have not shown that the termination of the relationship would be detrimental to the children. It’s not a compelling reason as what is required by the statute and I’m going to find that no exception applies. I’m going to find that the child’s permanent plan is adoption.”
In re Autumn H. (1994) 27 Cal.App.4th 567.
Fifteen days after the section 366.26 hearing, the Department filed an advisement of placement change, notifying the court that on February 9, 2010-a mere six days after the hearing-the three children were removed from their foster home and placed in a new foster home in Nevada City. The reason for this change does not appear in the record.
H.F. timely appealed from the denial of his section 388 petition and the termination of his parental rights.
DISCUSSION
A. The Juvenile Court Did Not Abuse Its Discretion In Denying H.F.’s Section 388 Request
Section 388, subdivision (a) provides in pertinent part: “Any parent... may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court... for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.” Under this section, the juvenile court may modify or set aside a previous order if new evidence or changed circumstances exist, and the proposed modification is in the best interests of the minor. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 [section 388 permits the modification of a prior order where the evidence shows that (1) changed circumstances or new evidence exists; and (2) the proposed change would promote the best interests of the child].) The parent seeking to change the court’s prior order bears the burden of proof by a preponderance of the evidence (Zachary G., supra, at p. 806), and the juvenile court must liberally construe a section 388 petition in favor of its sufficiency. (Cal. Rules of Court, rule 5.570(a); In re Marilyn H. (1993) 5 Cal.4th 295, 309; In re Edward H. (1996)43 Cal.App.4th 584, 592.) The petition is addressed to the sound discretion of the juvenile court, and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.)
The record here supports the juvenile court’s conclusion that H.F. failed to meet his burden.
As to the question of changed circumstances, the evidence showed that H.F. had a history of chronic substance abuse. It was this abuse, and that of P.L., that led to the initial detention. H.F. had attempted to address his drug problems before, but was unable to stay clean. His section 388 petition appended evidence suggesting that he was once again participating in a treatment program, but that evidence must be viewed in light of H.F.’s prior failures to either address his problems or relapses. It did not show that H.F. had, as he puts it, “overcome” the substance abuse problems, but rather that he was overcoming the problems. Or in the words of the court in In re Casey D. (1999) 70 Cal.App.4th 38, 49, it showed “changing” circumstances, not “changed” ones.
Further, although H.F. claimed at the February 3, 2010 hearing to have been clean and sober since May 2009, the record showed that he was discharged from his treatment program in June 2009 for failing drug tests in May and June. He presented no evidence of drug testing since June 2009, and had, according to Ms. Rea’s testimony, failed to show for tests requested by the Department in August 2009 and January 2010.
Ms. Rea also testified that the NA/AA attendance verification forms H.F. submitted with his petition contained duplicate signatures, making it appear as if he had attended 27 meetings in December 2009 and January 2010, when in fact he had attended nine fewer meetings than he claimed. H.F. presented no evidence to refute this representation by the Department, and made no effort to explain the appearance of the duplicate signatures.
Additionally, the original detention was in part necessitated by the failure of H.F. and P.L. to provide their children with a safe and stable living situation. At the section 388 hearing, H.F. failed to present evidence that he had remediated that problem. He testified that P.L. had recently moved out of the room that they were renting in a house, and he was soon planning to do the same. While P.L. presented evidence that she had moved to Project Aurora, a residential program for pregnant woman with substance abuse problems, H.F. was unable to confirm where he would be living. He dismisses the relevance of this, questioning “[w]hy not recalling his new address was relevant to the question of whether he should get more reunification services....” The relevance is obvious: H.F. bore the burden of demonstrating changed circumstances, and his inability to provide evidence of a safe and stable living arrangement undermined that burden.
Lastly, while H.F.’s visitation record was most certainly stronger than that of P.L.’s, it was nevertheless sporadic. He missed 10 scheduled visits with the children in early 2009, had no visits in September and October 2009, and had one visit in November 2009, two in December 2009, and one in January 2010. H.F. argues that his “more recent visitation history” was what mattered. We agree. And according to the record, from September 2009 to the February 3, 2010 hearing, he had seen his children all of four times.
But even if H.F. had carried his burden of establishing changed circumstances, the court was well within its discretion in concluding that reopening reunification services was not in the best interest of the children. At the point of permanency in a dependency case, there is a rebuttable presumption that continuing the children in their placement outside of the home is in their best interest. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The determination of a child’s best interests under section 388 involves looking at a number of factors, including the seriousness of the problem leading to the dependency and the reason for its continuation; the strength of the parent-child and child-caretaker bonds and the time the child has been in the system; and the nature of the change of circumstance, the ease by which the change could be achieved, and the reason the change did not occur sooner. (In re Kimberly F., supra, 56 Cal.App.4that pp. 530-532.)
Here, A.L. and H.L. had been living with their foster mother for 25 months, A.L. since he was 20 months old and H.L. since he was four months old. S.L., who was detained at birth, had never lived with either of her parents. Ms. Rea testified that the children had an enjoyable relationship with H.F. but that they looked to their foster mother for a parent/child relationship. By all indications, the foster mother had provided a loving, stable home for over two years and would continue to do so. In light of this, we cannot conclude that the juvenile court exceeded the bounds of reason when it found that the best interests of the children would not be served by reinstituting reunification services.
H.F. presents multiple arguments as to why the court erred in finding that reinstituting reunification services was not in the children’s best interest, none of which is availing. He claims that in evaluating the best interests of the children, the court placed too much emphasis on their relationship with their foster mother. He argues that contrary to the court’s admonition in In re Kimberly F., supra, 56 Cal.App.4th 519, the court here used “a one-dimensional ‘better household’ test” when it considered H.F.’s petition. In so doing, H.F. surmises, “the trial court was overly-influenced by the Department’s descriptions of the quality of life the children would enjoy upon being adopted by a foster parent, ” this despite the fact that the children were removed from the care of their long term foster mother just days after the hearing. This argument ignores the fact that the strength of the relationship between the foster mother and the children was a relevant consideration for the court. (In re Kimberly F., supra, 56 Cal.App.4that pp. 530-532.) The court did not place undue emphasis on this factor, but rather gave this important issue its due consideration.
H.F. also asserts that “the Department appeared anxious to speed the case along what one appellate court has called the ‘conveyor belt’ toward adoption.” At the time of the section 388 hearing, A.L. and H.L. had been in foster care for 25 months and S.L. for 15 months-the entirety of her life. To claim that the Department was rushing the case is fatuous.
H.F. focuses particularly on S.L., arguing that because of her young age, she was the “most easily transitioned” to H.F.’s care and there did not appear to be “any emotional or physical impediment” to such a transition. This argument, however, overlooks the facts that she was detained at birth, had never resided in H.F.’s care, and was deserving of permanence and stability. The fact that H.F. was finally beginning to address his substance abuse problem was insufficient to negate this need.
Lastly, H.F. argues that the court should have, but failed to, consider his section 388 request separately from that of P.L. In claimed support, he points to argument by counsel for the Department and the children which, he claims, “barely differentiated the two parents’ situations, ” “[i]nstead of addressing the merits of each parent’s petition separately....” Similarly, he claims that the court “failed to differentiate between the two parents’ petitions and the evidence offered by each parent, ” saying “nothing at all to indicate it had separately considered the evidence as to [H.F.], as distinguished from [P.L.’s] evidence.”
H.F.’s contention that the court failed to consider his petition and its supporting evidence separately from that of P.L. is nothing more than conjecture. We also note the irony in this argument, given that H.F. himself failed to make a distinction between himself and P.L. in portions of his section 388 request. Specifically, in Exhibit B, he stated, “A significant bond exists between these three children and their parents. The parents continue to live together and could provide a two parent home for the children upon successful reunification. As both parents have made significant progress in dealing with their substance abuse issues, there is now a substantial likelihood of reunification.”
Finally, we close with an observation that within days of the section 388 and 366.26 hearings, the Department removed the children from their long-term foster home with their prospective adoptive mother and placed them in a foster home in a different county-a point H.F. often repeats in an effort to demonstrate that the reinstitution of reunification services was in the best interest of the children. We do find this curious because the children had been placed with their foster mother since their respective detentions, the Department’s reports all spoke very highly of her parenting skills and relationship with the children, and it appeared likely that she would adopt the children. But, as noted, the reason for the change in placement does not appear in the record, and we must consider the evidence before the court at the time it ruled on the H.F.’s section 388 request. And that evidence amply supports the court’s decision to deny H.F.’s request.
B. The Department Failed To Comply With the Notice Requirements of ICWA
ICWA was enacted in 1978 to address the “rising concern... over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.” (Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30, 32.) It grants an Indian tribe exclusive jurisdiction over custody proceedings involving an Indian child who resides or is domiciled within a reservation (25 U.S.C. § 1911(a)), and the right to intervene in a state custody proceeding involving an Indian child. (25 U.S.C. § 1911(c).)
Strict notice requirements are a fundamental component of ICWA. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421 [“Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families.”].) They require that when a social services agency-such as the Department here-has reason to know that a child involved in a dependency proceeding might be an Indian child, which requires only the suggestion of Indian ancestry, notice of the proceeding must be provided to the child’s potential tribe, or to the Bureau of Indian Affairs (BIA) if the tribal affiliation is unknown. (In re Francisco W. (2006) 139 Cal.App.4th 695, 702-703; 25 U.S.C. § 1912(a).) In providing the notice, “[i]t is essential to provide the Indian tribe with all available information about the child’s ancestors, especially the ones with the alleged Indian heritage.” (In re Francisco W., supra, 139 Cal.App.4th at p. 703.)
Section 224.2, subdivision (a)(5) sets forth specific categories of information that the agency must provide to a tribe, including, as relevant here: (1) the name, birthplace, and birth date of the Indian child; (2) the name of the tribe in which the Indian child is a member or may be eligible for membership; and (3) names and addresses of the child’s parents, grandparents, great grandparents, and other identifying information. (Accord, 25 C.F.R. 23.11(a), (d) (2010) [BIA guidelines setting forth specific categories of information that the agency should provide in its notice to a tribe, including “All names known, and current and former addresses of the Indian child’s biological mother, biological father, maternal and paternal grandparents and great grandparents or Indian custodians, including maiden, married and former names or aliases”]; In re Francisco W., supra, 139 Cal.App.4th at p. 703 [“Notice to the tribe must include available information about the maternal and paternal grandparents and great-grandparents, including maiden, married and former names or aliases; birthdates; place of birth and death; current and former addresses; tribal enrollment numbers; and other identifying data.”].)
Here, the Department was aware that P.L.’s great grandmother, Lillie Green (née Belk), was of Cherokee descent and had once lived on a Cherokee reservation in Charlotte, North Carolina before moving to Savannah, Georgia. Although this information prompted the Department to send notices to three Cherokee bands and the BIA, astonishingly-and despite the court’s admonition to “make sure that the information contained on the notices that went to the tribes is not missing anything that [P.L.] knows about”-the Department failed to include this critical identifying information in the notice. Neither the name Lillie Green nor her maiden name Lillie Belk appeared anywhere in the notice, nor did it indicate that she had lived on a North Carolina Cherokee reservation. In light of the foregoing, and as the Department rightly concedes, the notice was deficient. We therefore conditionally reverse for failure to comply with the notice requirements of ICWA. (See In re Francisco W., supra, 139 Cal.App.4th at p. 711.)
DISPOSITION
The judgment terminating the parental rights of H.F. to A.L., H.L., and S.L. is reversed and the matter remanded to the juvenile court with directions to order the Department to comply with the notice provisions of ICWA and related provisions of California law, and to file all required documentation with the juvenile court. If, after proper notice, a tribe claims that A.L., H.L., and S.L. are Indian children, the juvenile court shall proceed in conformity with all provisions of ICWA. If, on the other hand, no tribe claims the children to be Indian children, the judgment terminating H.F.’s parental rights shall be reinstated.
We concur: Haerle, Acting P.J., Lambden, J.