Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD224296
RAYE, J.Appellants S.M. (mother) and M.N. (father), parents of A.N. (minor), appeal from orders of the juvenile court terminating their parental rights (Welf. & Inst. Code, §§ 366.26, 395), and denying their respective section 388 petitions. Appellants contend (1) respondent Sacramento County Department of Health and Human Services (Department) and the juvenile court failed to provide notice in accordance with the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901, et seq.), and (2) the juvenile court abused its discretion in denying their respective section 388 petitions requesting either return of the minor to their custody or, in the alternative, provision of additional reunification services.
Appellant is also the mother of S.C. and B.C. (15 and 16 years old at the time of detention), the minor’s half-siblings, both of whom have been the subject of separate juvenile dependency proceedings. (Sacramento County case Nos. JD224297 and JD224298.) S.C. and B.C.’s father, R.C., is deceased.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The Department concedes the ICWA failure, but urges any noticing deficiency does not affect the juvenile court’s denial of appellants’ section 388 petitions or its section 366.26 order terminating parental rights.
We accept the Department’s concession that the provisions of the ICWA were not satisfied. We will vacate the juvenile court’s orders and direct the court to provide notice as required by the ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
On May 10, 2006, the Department filed a juvenile dependency petition on behalf of the minor, then seven months old, alleging mother’s failure to protect the minor and his half-siblings from domestic violence perpetrated by father, father’s continuing substance abuse and his failure and refusal to rehabilitate or participate in voluntary services, and mother’s failure to participate in voluntary services. The minor and his half-siblings were removed when it was discovered that mother had moved back into father’s residence despite having been informed that the children would be placed into protective custody if she did so.
The juvenile court sustained the allegations in the petition, adjudged the minor and his half-siblings dependent children of the court (§ 300, subd. (b)), committed them to the care and custody of the Department for suitable confidential placement, and ordered regular visitation with the minor. The court ordered mother to comply with her case plan, and ordered both parents to participate in reunification services to address problems associated with domestic violence and substance abuse.
According to the permanency report filed on December 7, 2006, mother was maintaining regular visitation and participating in individual counseling and parenting classes. She was dropped from the domestic violence group for failure to attend, but was placed back on the waiting list for another group. Random drug and alcohol testing was recommended based on information from father that mother might be using illegal substances. The report also states father attended three counseling sessions and participated in anger management and parenting classes. He was initially noncompliant with substance abuse treatment and denied having an alcohol problem, but later expressed remorse and admitted being an alcoholic. He had been participating regularly in all alcohol and other drug (AOD) services since September 27, 2006. The social worker noted that, although both parents were “fully engaged in services,” additional time was needed to ensure appropriate change before the children could safely return home. The report concluded the risk of abuse or neglect if the children were returned home was high based on the fact that “the parents have just recently begun participating in services and there is some concern that perhaps the mother has substance abuse issues that have not been addressed.” The Department recommended six more months of services because there had not been sufficient time in services for the parents to make the changes necessary to ensure the safety of the minor if he were returned home.
The addendum report filed January 17, 2007, stated that because of a positive drug test, mother’s case plan was updated to include an AOD assessment, outpatient services, random urinalysis testing, and Narcotics Anonymous (NA)/Alcoholics Anonymous (AA) support group meetings.
According to the addendum report filed February 22, 2007, mother participated in counseling; however, her therapist recommended additional sessions to further address mother’s issues. Despite being required to submit to urinalysis testing three times per week, mother had tested a total of only two times, both of which were negative. Father completed the anger management program and admitted having verbally abused the children, but he continued to deny any physical abuse. He tested negative for all substances on November 24, 2006, but relapsed thereafter. Since that time, however, father had been compliant with testing requirements. The social worker recommended an additional six months of services for both parents.
At the contested hearing on February 26, 2007, the court continued the minor and his half-siblings as dependents of the juvenile court, continued out-of-home placement, and ordered the parents to comply with the updated case plan.
The June 2007 permanency review report noted that mother completed parenting classes and a 15-week domestic violence support group. She completed the AOD assessment and was referred to outpatient AOD services, but failed to test consistently. She tested positive for methamphetamines on two occasions, both in April 2007, but continued to deny using those substances. Father was regularly attending and contributing to anger management groups, and according to the group instructor, he no longer posed a threat to the minor or his siblings. He completed parenting education classes and was compliant with outpatient drug treatment, testing negative for all substances. Both parents were maintaining regular visitation with the minor. While the report concluded reunification of the minor with father was appropriate, reunification with mother was not, based on her recent positive drug tests, her denial of substance abuse, and her lack of appropriate housing accommodations. The report recommended mother’s reunification services be terminated given her limited progress and continued denial of drug use. Based on father’s progress in services, it was recommended that the minor be placed with him.
At the contested permanency hearing on July 5, 2007, the court terminated mother’s reunification services as to all three children, finding by clear and convincing evidence that she had not regularly participated, nor made substantive progress, in services. The minor was placed with father under the Department’s intensive supervision.
Several weeks later, the minor’s paternal uncle informed the social worker that both parents were together and were abusing alcohol, noting father appeared to be extremely inebriated, slurring his speech, staggering, posturing aggressively, and trying to pick a fight with the uncle when confronted. The minor’s paternal grandmother reported father had left the minor “in the home” two days prior, and when she called him to pick up the minor, father “sounded like he’d been drinking.” A social worker went to father’s home and found him to be intoxicated. The Department filed a supplemental petition pursuant to section 387 alleging father was found to be under the influence of alcohol, had failed to participate in services, and was noncompliant with testing, placing the minor at risk of abuse and/or neglect. The minor was detained and returned to foster care. The court ordered reunification services to be provided to father.
Mother appealed the juvenile court’s order terminating reunification services. We affirmed the court’s order.
According to the addendum report filed September 28, 2007, father had been, and continued to be, noncompliant with substance abuse treatment since removal of the minor in July 2007. Since that date, he failed to test, missed meetings with his treatment provider, failed to attend support meetings, and tested positive for alcohol on August 22, 2007. It was also reported that as of September 19, 2007, he had not visited the minor in two weeks and had made no attempt to contact the Department.
Meanwhile, the foster family with which the minor had been placed since May 2006 was considering adoption. The minor had become very bonded to his foster family and was adjusting well to his placement. The report also concluded that because the minor was eight months old when he was removed from mother on May 11, 2006, the allotted time for reunification services for both parents had expired pursuant to section 361.5, subdivision (a)(2). Given the parents’ failure to address issues that led to the minor’s removal, and father’s continued noncompliance with substance abuse treatment, the Department recommended that no reunification services be offered to either parent.
On October 1, 2007, the juvenile court sustained the allegations in the supplemental petition. At a subsequent hearing, the court terminated father’s reunification services, and declined to reinstate services to mother.
The section 366.26 hearing originally scheduled for February 4, 2008, was continued to March 21, 2008. In the interim, mother and father filed section 388 petitions, each seeking return of the minor or, alternatively, additional reunification services.
The February 2008 selection and implementation report states father was admitted to a 90-day residential substance abuse program on October 31, 2007, and was therefore unable to visit the minor. However, his drug and alcohol tests were negative. Mother’s two-hour visits with the minor each week went well. It was reported, however, that mother made inappropriate comments when the foster parent was not around, telling the minor, “Don’t worry, Mommy and Daddy will get you back,” and objected that the foster parent did not correct the minor for calling the foster parent “Mommy.”
The foster parent reported that the minor was doing well and thriving in his placement. She further reported that the minor’s half-sibling, S.C., who also lives in the foster home, was causing some confusion by directing the minor to call the foster mother by her name instead of “Mommy.” The report notes the minor “responds to [the foster mother] as the primary parent figure.”
At the March 21, 2008, selection and implementation hearing (§ 366.26), the court first heard testimony and argument on appellants’ section 388 petitions. Mother testified that she and father had, for the past two weeks or so, been living in a home with her brother and sister-in-law. That home would accommodate the minor if he were returned to her. She stated she had been drug testing three times a week and going to AA and NA meetings, and had been taking Lithium to treat her bipolar disorder since about February 15, 2008. She stated she had been visiting the minor at a McDonald’s restaurant once a week “[f]or two years consistently,” missing only one visit in 2006. During the visits, she and the minor played and watched television together. The minor also enjoyed playing with father.
Mother testified she began drug testing “consistently” sometime in July or August of 2006.
Father testified that he and mother were currently living with her brother and sister-in-law in a home. When asked whether there would be room in the home for the minor if the minor were returned to their care, he replied, “it’d be kind of heavy. It’d be tight. It’d be off the street,...” He stated he was looking into different living arrangements for himself and the minor. Father stated that, after reunification services were terminated, he participated in a seven-week course in a homeless shelter and qualified for a 91-day residential substance abuse rehabilitation program, which he completed on January 30, 2008. He also regularly attended AA and NA meetings, as well as a relapse prevention program, where he learned “[i]t’s okay not to drink.” Father testified he went from the rehabilitation program to an outpatient program, and had been clean and sober over seven months. Once he completed the residential treatment program, father resumed weekly visits with the minor. During those visits, the two played together. The minor calls his father “Dad.”
The minor’s half-sibling, S.C., testified that in the event appellants were deemed unfit to care for the minor, she was “in agreement” with his adoption by the foster family. She stated her relationship with the minor was very close.
The court denied the section 388 petitions, finding that circumstances were changing but had not changed “sufficiently enough to grant these motions.” Even assuming a sufficient change in circumstances, the court held, it would not be in the minor’s best interests to reopen services given the amount of time the minor had been in the “very stable [foster] home where he is being well cared for.” The court commended father on his efforts in substance abuse treatment but expressed concern that he lacked a history of stable housing. After hearing argument from counsel, the court terminated parental rights.
Appellants filed timely notices of appeal.
DISCUSSION
I. Failure to Comply with ICWA Notice Requirements
Appellants contend, and the Department concedes, that the court failed to provide adequate notice pursuant to the ICWA. We agree.
ICWA Background
Mother attended the detention hearing on May 12, 2006. The court was informed mother had possible Native American heritage with an Apache tribe. Mother was provided with an Indian ancestry questionnaire.
Based on information provided by mother regarding the minor and his two siblings, the Department sent notices of involuntary child custody proceedings for an Indian child (JV-135 form) on June 1, 2006, to the Bureau of Indian Affairs (BIA); the Chiricahua Apache Tribe at Fort Sill, Oklahoma; and the Blackfeet Tribe.
A second notice regarding the minor’s proceedings was mailed to the Fort Sill Chiricahua Apache Tribe, the Blackfeet Tribe, and the Sacramento BIA on November 20, 2006. That notice contained information identical to the June 1 notice, except it incorrectly identified the minor’s father as R.C. and included information regarding R.C.’s family.
At the February 26, 2007, six-month review hearing, mother made corrections to the JV-135 form regarding the maternal grandmother’s birthdate, the maternal grandfather’s name, and the identity and spelling of the names of several relatives.
The erroneous information in the November 20 notice was corrected in a third notice, sent to the Fort Sill Chiricahua Apache Tribe and the Sacramento BIA on March 19, 2007, identifying appellant M.N. as the minor’s father and providing information regarding his family.
The Fort Sill Chiricahua Apache Tribe sent a letter dated November 27, 2006, finding the minor was neither enrolled nor eligible for membership in the tribe.
At the August 20, 2007, disposition hearing, the juvenile court found the minor was not an Indian child pursuant to the ICWA.
ICWA Law
The ICWA provides, in part: “In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” (25 U.S.C. § 1912(a).) The Indian status of a child need not be certain or conclusive to trigger the ICWA’s notice requirements. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471.) California Rules of Court, former rule 1439, contains identical requirements. (Cal. Rules of Court, former rule 1439(f).)
The Department and the juvenile court have an affirmative and continuing duty to inquire whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, former rule 1439(d).) If, after the petition is filed, the court “knows or has reason to know that an Indian child is involved,” notice of the pending proceeding and the right to intervene must be sent to the tribe, or to the BIA if the tribal affiliation is not known. (25 U.S.C. § 1912(a); Cal. Rules of Court, former rule 1439(f).) Failure to comply with the notice provisions and determine whether the ICWA applies is prejudicial error. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424; In re Desiree F., supra, 83 Cal.App.4th at p. 472.)
Through its initial ICWA inquiries, the Department learned the minor had possible Apache Indian heritage. Notices were sent to the Fort Sill Chiricahua Apache Tribe in Oklahoma, and also to the Blackfeet Tribe and the BIA. There is no evidence in the record, however, that any research was done or any conclusions were drawn as to whether any other Apache tribe should be noticed, nor is there any evidence that any other Apache tribe was noticed, despite the fact that there are a total of eight federally recognized Apache tribes. (In re Louis S. (2004) 117 Cal.App.4th 622, 632.) Notice must be sent to all tribes of which the minor may be a member or eligible for membership. (Ibid.) Failure to notice all Apache tribes, or provide any explanation for not doing so, was error.
Additionally, some of the information in the notices was incorrect. “ICWA notice must include the following information, if known: the name of the child; the child’s birth date and birthplace; the name of the tribe in which the child is enrolled or may be eligible for enrollment; names of the child’s mother, father, grandparents and great grandparents or Indian custodians, including maiden, married, and former names or aliases, as well as their birth dates, places of birth and death, tribal enrollment numbers, and current and former addresses; and a copy of the petition. (25 C.F.R. § 23.11(a) & (d) (2003); 25 U.S.C. § 1952.).” (In re D. T. (2003) 113 Cal.App.4th 1449, 1454.) Here, the initial notice sent to the Fort Sill Chiricahua Apache Tribe contained information that was incorrect. Mother reviewed the JV-135, identified the inaccuracies, and made corrections. New notices were sent out. However, a number of the corrections inexplicably were not included in the amended notices (e.g., the maternal grandmother’s birth year, the maternal grandfather’s correct name, the maternal great-grandmother’s correct name, etc.). Failure to provide the tribes and the BIA with correct information known to the Department was error.
Given the inadequate notice, we conclude the court erroneously proceeded to determine jurisdiction and terminate parental rights. (In re Kahlen W., supra, 233 Cal.App.3d at p. 1424.) The failure to provide the necessary notice constitutes prejudicial error, requiring this court to remand the case for further ICWA inquiry. (Id. at p. 1422; Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 781.)
II. Denial of Section 388 PETITIONs Was Proper
Appellants contend the court erred in denying their section 388 petitions. Specifically, they urge that circumstances were sufficiently changed such that it was in the best interests of the minor to either return him to appellants’ custody or, alternatively, to provide appellants with additional reunification services.
For purposes of this opinion, we assume appellants’ respective section 388 petitions for additional reunification services were timely. We consider appellants’ claim on the merits and conclude that it fails.
A dependency order may be modified if the parent or other person shows a change of circumstances or new evidence, and that the proposed modification would be in the best interests of the minor. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-418.) The petitioning party has the burden of showing by a preponderance of the evidence that the modification is warranted. (Cal. Rules of Court, rule 5.570(h)(1); In re Audrey D. (1979) 100 Cal.App.3d 34, 43; In re Fred J. (1979) 89 Cal.App.3d 168, 174.) The juvenile court's determination on a modification request is within its discretion. Such a determination will not be disturbed absent a showing of a clear abuse of that discretion. (In re Jasmon O., supra, 8 Cal.4th at pp. 415-416.) Discretion is abused only when it is exercised in an arbitrary, capricious, or patently absurd manner that results in a manifest miscarriage of justice. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Changed Circumstances
Mother points to the following facts offered at the hearing on March 21, 2008, as evidence of changed circumstances: she voluntarily drug tested for four months prior to the date of the hearing and had tested negative since April 2007; she attended NA and AA meetings; her alcohol and drug assessment was “good”; she had been taking Lithium since February 15, 2008, to treat her bipolar disorder; she was living with father, whose circumstances had changed for the better as well (i.e., he had been clean and sober for the past seven months); and she was doing “whatever it takes” to keep herself clean. She notes that the petition only alleged domestic violence, her failure to comply with the case plan, and father’s substance abuse as causes for removal, arguing her drug use was not what led to the dependency, and even if it was, the problem was “ameliorated.” We are not persuaded.
First, the purpose of providing services to parents is to facilitate reunification of the family. (§ 361.5; In re John B. (1984) 159 Cal.App.3d 268, 273-274.) Each reunification plan must be appropriate to the parent’s circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) Reunification is possible only if the minor can be safely returned to the care and custody of the parent or guardian without court supervision. (§ 361.5.) While mother’s drug use may not have been alleged in the petition, she subsequently tested positive for drugs and her case plan was updated to include services directly tailored to that problem. As such, reunification was dependent, at least in part, on mother’s progress in drug treatment and related services.
The juvenile court found circumstances were changing but not yet changed. There is sufficient evidence in the record to support that finding. While mother was participating in services, she tested positive for methamphetamine in April 2007 and received “administrative positives” after that date because of her failure to test. As of the June 2007 permanency review report, she was continuing to deny her drug use, even at times blaming father for her positive test results. It was not until approximately four months before the hearing that mother began drug testing regularly, producing negative test results. Given that mother’s sobriety is in its infancy, the juvenile court did not abuse its discretion in denying her request for additional services.
The same analysis applies to father. As evidence of changed circumstances, father points to the following facts: he engaged in domestic violence classes, anger management services, and individual counseling; and he was living with mother, whose circumstances had changed for the better. He, too, urges his problem with alcohol was “ameliorated,” as demonstrated by the fact that after his July 2007 relapse resulting in removal of the minor for a second time, he continued to participate in services on his own after termination of services, completing a 91-day treatment program and enrolling in an outpatient program. He urges that the behaviors alleged in the initial petition have either been addressed or “ameliorated,” and the only allegations at issue were those in the supplemental petition, i.e., his alcohol abuse and failure to engage in court-ordered services. Again, we are not persuaded.
First, while father may have fully addressed the domestic violence allegations set forth in the initial petition, he clearly was far from resolving his problem of abusing alcohol. Reunification with the minor was dependent on whether he could demonstrate sustained progress in that regard.
Next, while the juvenile court recognized father was more successful in his most recent attempts at substance abuse treatment and commended him on strides made, the court was not prepared to find that his progress was sufficient to constitute changed circumstances. Given that his prior nine-month period of sobriety (November 2006 through July 2007) was followed by a relapse that led to the removal of the minor a second time, and the fact that he completed the 91-day treatment program just one month prior to the hearing, the juvenile court’s denial of father’s request for additional services was not arbitrary, capricious, or patently absurd. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
Best Interests of the Minor
Given that there is sufficient evidence in the record to support the juvenile court’s finding that circumstances were not yet changed for purposes of section 388, we need not address appellants’ claim that provision of additional reunification services was in the best interests of the minor.
The juvenile court did not abuse its discretion in denying appellants’ section 388 petitions.
DISPOSITION
The juvenile court’s orders denying appellants’ section 388 petitions and terminating parental rights pursuant to section 366.26 are hereby vacated and the matter is remanded to the juvenile court to provide proper ICWA notice to the designated agents for all eight federally recognized Apache Tribes. If, following such notice, any noticed tribe determines that the minor is an Indian child, or if other information is presented showing the minor is an Indian child as defined by ICWA, the juvenile court shall conduct a new review hearing in conformity with all the provisions of ICWA.
If, however, all tribes determine the minor is not an Indian child, or if no response is received indicating the minor is an Indian child, the juvenile court shall reinstate the vacated orders.
We concur: SCOTLAND , P.J. BUTZ , J.