Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. J-31508, J-31509, J-31510
DAVIS, J.
Appellants G.K. (mother) and J.B. (father), parents of J.B., Jr., J.B. and C.B. (the minors), appeal from an order of the juvenile court terminating parental rights. (Welf. & Inst. Code, §§ 366.26, 395.)
At the time the minors were detained, J.B., Jr., was 11 years old, J.B. was seven years old and C.B. was three years old.
Hereafter, undesignated section references are to the Welfare and Institutions Code.
Mother contends (1) there is insufficient evidence to support the juvenile court’s finding of adoptability, and (2) the court failed to make a determination regarding the minors’ possible Indian heritage and failed to provide notice in accordance with the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). Father joins in mother’s claims, and further contends (1) the juvenile court abused its discretion in denying his section 388 motion to change the court’s order terminating reunification services and setting the case for a hearing on termination of parental rights, and (2) the court erred when it terminated parental rights without applying the section 366.26, subdivision (c)(1) exception. We agree that the provisions of ICWA were not satisfied and will reverse and remand in that regard. In all other respects, we will affirm.
FACTS AND PROCEDURAL HISTORY
G.K. and J.B. (collectively, the parents) were arrested on October 18, 2004, when a probation search of their home revealed a small amount of marijuana and two methamphetamine pipes, as well as unclean conditions in the house, including a strong odor of marijuana, a strong smell of urine in the minors’ bedroom, cluttered bedrooms, a leaking roof and dirty dishes in the kitchen sink.
The parents were charged with child endangerment and possession of marijuana and drug paraphernalia. The father was also arrested for violation of probation. Due to “the parents[’] agitated state” at the time of their arrest, the Department of Employment and Social Services, Children’s Services Program (the Department) was unable to question the parents about the minors’ Indian heritage. However, the October 20, 2004, detention report noted a prior finding in a previous Alameda County Juvenile Court proceeding that ICWA did not apply to the minors.
According to the detention report, as a result of the parents’ “drug use, probation violations and condition of their home,” the minors were dependents in Alameda County “from April 2, 1998[,] until May 31, 2000[,] when dependency was dismissed.”
The parents submitted to the juvenile court’s jurisdiction. The court adopted the findings and recommendations in the detention report, including a finding that ICWA does not apply, and ordered that the minors be placed in suitable foster care.
All three minors were placed with the same foster family, where they remained throughout the proceedings.
At the dispositional hearing, the court assumed jurisdiction over the minors (§ 300, subd. (b)) and ordered that they continue in foster care placement. Requests by relatives to foster the children were denied due to out-of-county residence, inability to accommodate all three minors at once, or the criminal history of a member of the household. The court’s order provided for reunification services and visitation with the minors, and directed that the parents comply with a case plan that included general counseling, parenting classes and regular drug testing.
At the six-month review hearing, the Department reported the parents had made some progress improving the condition of the home, but denied access to the bedrooms for evaluation and had yet to fix the leak in the roof. The minors were reportedly in good health, each of them having received much needed dental work, and were doing well in school. J.B., Jr., had been involved in several fights at school, but those incidents had been addressed by the foster parents and his behavior reportedly improved as a result.
The Department reported that both parents completed their required parenting classes. However, the father failed to attend counseling sessions or participate in alcohol assessment or treatment. The mother was regularly attending drug and alcohol treatment, but had only attended two of four scheduled counseling sessions. The mother’s compliance with drug testing was sporadic (she submitted to just seven of 16 requests), and the father’s was almost nonexistent (of 17 requests to drug test, he submitted to only four, two of which were positive for benzodiazepines and two for alcohol). Both parents participated in twice-weekly visitation with the minors. However, it was reported that the father arrived once smelling of alcohol and on several other occasions appeared “flushed and disheveled,” raising concerns that he might be under the influence of alcohol or other substances.
Due to the criminal history of the paternal grandmother, a request to place the minors with the paternal grandparents was denied.
The court continued the minors’ foster placement and ordered that reunification services and visitation continue, finding the parents “failed to participate and make substantial progress in services identified in the case plan.” The parents were again ordered to participate in substance abuse testing.
At the 12-month review hearing, the Department reported that the father failed to get involved in outpatient services through the county’s alcohol and drug services (ADS) and failed to drug test as required, and was now unable to participate in counseling services because he was incarcerated for violating probation. The mother showed progress in making repairs to the home, but had, on at least two occasions, refused the social worker entry. She failed to participate in counseling, relapsed several times while in the outpatient substance abuse treatment program and failed to drug test as required by the terms and conditions of her probation.
The minors, on the other hand, were healthy, doing well in school, and adjusting well to foster care. Visitation with the parents continued, twice a week with the mother, and once a week (at the jail) with the father. However, because the parents failed to participate regularly in services and did not “demonstrate an ability to make significant progress in the services in order to remove the barriers that led the [minors] to being removed from the home,” the Department recommended that services be terminated and a permanent plan hearing be scheduled.
The court adopted the recommendations in the status report, terminating reunification services and setting the matter for a section 366.26 hearing. The prior visitation order remained unchanged.
The section 366.26 report filed on February 2, 2006, reiterated the court’s prior finding “on October 21, 2004[,] that ICWA does not apply.” The report also noted that the minors continue to do well in foster care, were current on all medical and dental examinations and were getting good grades in school. According to the California Department of Social Services, Adoption Services Bureau, the minors were adoptable.
At the request of counsel for the mother, the court held an in camera hearing to allow J.B., Jr., the oldest of the minors (then 12 years old), to testify. J.B., Jr., told the court, “If I can’t go back home with my parents or my grandparents, then I would like to be adopted by [Paul and Judy C.], my foster parents.” He also told the court, “Well, I would want to live with my grandparents, but I heard that we can’t because [of] something they did a long time ago.” When asked whether he would want to live with his grandparents if that issue were resolved and he could not live with his parents, J.B., Jr., responded, “Yes.” He also told the court he did not want to be “bounced around a lot with [his] brother and sister,” and thought “the most permanent plan [of adoption] would be best.”
One month later, the minors’ grandmother filed a motion to change the court’s order placing the children in foster care based on the fact that her criminal record had been dismissed. Following a hearing, the court determined there were insufficient grounds to change the minors’ current placement and denied the motion.
At the section 366.26 hearing, social worker Elaina Eisenlauer testified that J.B., Jr., told her he preferred adoption because it provided the best opportunity for stability and permanency for him and his siblings.
The court found the minors were adoptable, but left the parental rights intact, setting the matter for hearing in 45 days to allow the prospective adoptive parents to get clearance from State Adoptions.
At the continued hearing, the father submitted a section 388 motion requesting that the court’s order terminating reunification services and setting the section 366.26 hearing be modified to allow the minors to be placed with him and the mother in a plan of family maintenance or, alternatively, family reunification. The request was based on the father’s representation that he had been released from jail, maintained sobriety and “participated in services on his own,” and the fact that he “works to support his family” and “has consistently visited and maintained a relationship” with the minors. The motion also indicates that the minors have possible Indian heritage through either the “Appache [sic] or Arrapaho [sic]” Indian tribes. Following oral argument and testimony from the minors’ grandparents, the court found a modification of the court’s order would not benefit the minors and denied the section 388 motion.
Regarding the issue of adoptability, state adoptions worker Cori Dennhardt testified that J.B., Jr., told her that, if given the choice between living with his grandparents and living with the current foster family, he would choose to live with his foster family.
The court terminated parental rights finding that, despite regular visitation by the parents, the exceptions to termination of parental rights under section 366.26, subdivision (c)(1) did not apply and the “benefits of permanency outweigh any possible benefits from continuing the parental relationship.”
Both parents filed timely notices of appeal.
DISCUSSION
I
Finding of Adoptability
The parents contend the evidence was insufficient to find that the minors were adoptable, arguing the finding was dependent upon the availability of an appropriate adoptive home. We disagree.
“In order for a juvenile court to terminate parental rights under section 366.26, the court must find by clear and convincing evidence that it is likely that the child will be adopted.” (In re Asia L. (2003) 107 Cal.App.4th 498, 509 (Asia L.); § 366.26, subd. (c)(1).) The issue of adoptability “focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor.” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649 (Sarah M.), italics omitted.
“‘Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.’” (Asia L., supra, 107 Cal.App.4th at p. 510, italics omitted.)
We review the termination order “to determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence” the minor was likely to be adopted. (Asia L., supra, 107 Cal.App.4th at pp. 509-510.) We find such evidence here.
The adoption assessment report relied on by the court indicates that the oldest sibling, J.B. Jr., is in good physical, mental and emotional health, is at the appropriate age level developmentally, and is doing well in school. Prior behavioral difficulties have “greatly improved since he got involved in sports.”
J.B., the middle sibling, is reportedly “fairly healthy” physically. She is overweight but active, and is receiving help from her foster family in making better eating choices. J.B. is at the appropriate age level developmentally, does very well in school and has no behavioral problems. Her mental and emotional status is also reportedly “fairly healthy,” although she “does portray some behaviors indicative of mental health concerns,” such as fears and nightmares, overeating and making frequent grunting noises. The report also notes possible attachment issues manifested by being overly friendly and problems making eye contact. However, it is also noted that she is making “a great deal of progress” in foster care and is functioning well on a daily basis.
C.B., the youngest of the siblings, is reportedly “fairly healthy” physically. C.B. was overweight and in need of extensive dental repairs; however, the dental work was done and, at the time of the report, he had slimmed down to a “healthy weight.” C.B. is reportedly at the appropriate age level developmentally and, aside from some tantrums and occasionally testing boundaries, he is doing well in school and is mentally and emotionally healthy.
According to the report, the social worker was unable to contact the minors’ parents and had not personally observed any interaction between the parents and the minors, but had been informed that visits were “basically appropriate” and the minors enjoyed the contact with their parents.
The report concludes that the prospective adoptive father and mother (69 years old and 65 years old, respectively) are “suitable and committed to the adoption” of the minors, and that the minors have a good relationship with their adoptive family and would benefit from permanent placement there through adoption.
On the whole, all three minors appear to be in relatively good physical, mental and emotional health, with only minor needs that are being addressed by the foster parents with whom they have lived for the past two years and with whom they have developed a close, healthy bond. The foster family’s desire to adopt all three children is further evidence of the adoptability of the minors. On this record, the juvenile court reasonably could find, as it did, that although the minors may present some challenges to their prospective adoptive parents, they are likely to be adopted. (Cf. In re Roderick U. (1993) 14 Cal.App.4th 1543, 1550.)
Parents assert that the prospective adoptive parents with whom the minors have resided since detention cannot be considered for permanent placement because, due to their respective ages and “serious health problems” (i.e., Paul C.’s prior cardiovascular surgery and Judy C.’s arthritis and need for hip replacement), they are likely to die before all three minors reach the age of majority, making the need for a new placement inevitable.
The Department argues that questions regarding the suitability of prospective adoptive parents are irrelevant to the issue of the minors’ adoptability and should be “reserved for the [subsequent] adoption proceeding.” (In re T.S. (2003) 113 Cal.App.4th 1323, 1328-1329; Cf. In re Scott M. (1993) 13 Cal.App.4th 839, 844.) The Department is correct.
The juvenile court based its finding of adoptability on the findings in the adoption report, namely that all three minors were healthy, developmentally age appropriate, doing well in school and flourishing in foster care, with only minor issues being attended to by the foster family. Those findings support the juvenile court’s finding of adoptability. (Sarah M., supra, 22 Cal.App.4th at p. 1649.) We find no error.
II
Denial of Father’s Section 388 Motion
Father contends the court erred by denying his request to modify its previous order. We disagree.
Section 388, subdivision (a) provides, in 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.”
Section 388 permits a modification of a dependency order if a change of circumstance or new evidence is shown and if the proposed modification is in the best interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526 (Kimberly F.).) The petitioning party has the burden of proof by a preponderance of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 48 (Casey D.).)
One of the functions of section 388 is to provide “an ‘escape mechanism’ when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights.” (Kimberly F., supra, 56 Cal.App.4th at p. 528, citing In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).) “Even after the focus has shifted from reunification, the scheme provides a means for the court to address a legitimate change of circumstances while protecting the child’s need for prompt resolution of his custody status.” (Marilyn H., supra, at p. 309.)
The best interests of the child are of paramount consideration when a modification petition is brought after termination of reunification services. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In assessing the best interests of the child at this juncture, the juvenile court looks not to the parent’s interests in reunification but to the needs of the child for permanence and stability. (Marilyn H., supra, 5 Cal.4th at p. 309.) “A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child’s best interests.” (Casey D., supra, 70 Cal.App.4th at p. 47.)
“[W]hen a child has been placed in foster care because of parental neglect or incapacity, after an extended period of foster care, it is within the court’s discretion to decide that a child’s interest in stability has come to outweigh the natural parent’s interest in the care, custody and companionship of the child.” (In re Jasmon O. (1994) 8 Cal.4th 398, 419 (Jasmon O.).)
A modification 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.” (Jasmon O., supra, 8 Cal.4th at p. 415.) “It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion . . . .” (Kimberly F., supra, 56 Cal.App.4th at p. 522.)
Applying these principles to the circumstances before us, we conclude that the juvenile court did not abuse its discretion when it denied the father’s request to modify the court’s previous order. As evidence of changed circumstances, father submitted a declaration stating he was no longer incarcerated and he was clean and sober, participating “in services on his own,” maintaining employment and continuing consistent visitation with his children. The declaration was supported by a certificate of completion of parenting classes, a letter from someone purporting to be the father’s employer “for the last [three] months,” and sign-in sheets for Alcoholics/Narcotics Anonymous meetings. In contrast, there was no evidence to confirm that the father drug tested, had participated in a substance abuse treatment program or was in fact drug and alcohol free. Such evidence was critical to show changed circumstances, particularly in light of the father’s failure to abide by the case plan or avail himself of reunification services prior to his incarceration. The court noted that although both parents made “some efforts towards overcoming the drug addiction,” a modification of the court’s order would not benefit the minors given their need for stability and the parents’ overall inability to engage in services necessary for reunification. It was well within the juvenile court’s discretion to decline to place the minors with the parents under such circumstances.
III
No Exception to Termination of Parental Rights Under Section 366.26(c)(1)
“At a section 366.26 hearing, once the Department has shown it is likely the child will be adopted, the burden shifts to the parents to prove that termination of parental rights would be detrimental to the child based on one of the exceptions enumerated in subdivision (c)(1). [Citations.]” (In re Erik P. (2002) 104 Cal.App.4th 395, 401.)
Section 366.26, subdivision (c)(1)(A) provides an exception to adoption when “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
However, “a parent may not claim entitlement to the exception provided by subdivision (c)(1)(A) simply by demonstrating some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349.) The benefit to the child must promote “the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) “Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (Jasmine D., supra, at p. 1350.)
Father urges that both parents consistently participated in hourly visits with the minors twice a week, during which the parents addressed the minors’ needs by bringing them age-appropriate games to play and comforting the minors by holding them on their laps, and the minors showed affection toward their parents. Father also notes that the in camera testimony of J.B., Jr., demonstrates a strong bond between the parents and the minors and shows the minors’ desire to maintain contact with their parents.
The juvenile court acknowledges, as do we, that the parents maintained regular visitation with the minors. By all accounts, those visits went well and were often marked by warm exchanges between the children and one or both of the parents. Nonetheless, the efforts by both parents to address their substance abuse problems, although somewhat improved, were still lacking and the record contains no documented evidence of sustained sobriety. The tenuous nature of placement with the parents under those circumstances does not outweigh the benefit of permanency in an adoptive home which, for nearly two years, had already provided significant stability, structure and permanency for the children, who were physically and mentally healthy, doing well in school and adjusting well to their new environment.
Father also urges that section 366.26, subdivision (c)(1)(B), which provides an exception to adoption when “[a] child 12 years of age or older objects to termination of parental rights,” applies here because J.B., Jr., implicitly objected to adoption when he stated his preference was to return to his parents or grandparents. We disagree.
J.B., Jr., told his adoption worker repeatedly that he wanted to be adopted and, if given the choice between living with his grandparents and living with the current foster family, he would choose to live with his foster family. He told his social worker he preferred adoption because it provided the best opportunity for stability and permanency for all three children. He told his foster family he would prefer adoption as a permanent option. While J.B., Jr., understandably testified in camera that his first choice would be to return to his parents, he also explained that he did not want to be “bounced around a lot with [his] brother and sister,” and thought “the most permanent plan [of adoption] would be best.” Placed into context, his testimony illuminates the fact that he understood adoption would give him and his siblings the best chance of stability and permanency in a situation where his parents have been unable to fully address and deal with the problems that led to both the prior and the current dependency.
Reviewing the juvenile court’s finding of adoptability and termination of parental rights for substantial evidence (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154), we conclude the record supports the court’s order.
IV
Failure to Inquire Regarding ICWA
Both parents contend the court failed to inquire regarding the minors’ Indian heritage, and failed to provide adequate, or any, notice pursuant to ICWA. We agree.
In 1978, Congress passed ICWA, which is designed to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children “in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.” (25 U.S.C. § 1902; Mississippi Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30 [104 L.Ed.2d 29].)
To effectuate the purposes of ICWA, “‘child custody proceeding[s]’” involving, among other proceedings, the “‘foster care placement’” of an Indian child, are subject to special federal procedures. (25 U.S.C. §§ 1903(1)(i)-(iv), 1912.)
Among the procedural safeguards included in ICWA is a provision for notice, which states 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 ICWA’s notice requirements. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471 (Desiree F.).) California Rules of Court, rule 5.664(f), contains identical requirements.
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, rule 5.664(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 Bureau of Indian Affairs (BIA) if the tribal affiliation is not known. (25 U.S.C. § 1912(a); Cal. Rules of Court, rule 5.664(f).) Failure to comply with the notice provisions and determine whether ICWA applies is prejudicial error. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424 (Kahlen W.); Desiree F., supra, 83 Cal.App.4th at p. 472.)
Initially, we note that parents have failed to provide us with a sufficient record to determine whether the juvenile court engaged in any inquiry regarding the ICWA determination. The October 2004 detention report notes the following: “Due to the parents[’] agitated state, Children Services was unable to question the parents about their Indian [a]ncestry [b]ackground. According to Alameda County Juvenile Court reports, relating to a previous detention in that [c]ounty, it is stated that the Indian Child Welfare Act did not apply.” The detention hearing took place on October 21, 2004. The court’s minute order indicates a finding was made that ICWA does not apply. While it appears that an inquiry regarding the minors’ Indian heritage was made during the detention hearing, the transcript of that hearing was not made a part of the record.
It is the parents’ responsibility to provide a record that is adequate for appellate review of their claims (see Ballard v. Uribe (1986) 41 Cal.3d 564, 574); as they have failed to do so, we are unable to fully evaluate what measures the juvenile court may have taken in regard to the claimed errors.
In any event, assuming the court reviewed the records from the prior Alameda County dependency case in making its determination, we conclude that inquiry was insufficient. While the detention report notes the minors were dependents in the prior case “from April 2, 1998[,] until May 31, 2000,” the record contains no information regarding the focus or extent of the Alameda County court’s ICWA inquiry in that regard. While a finding that ICWA did not apply at that time may have been appropriate, it is certainly possible that a subsequent investigation may have turned up new information not previously known or available that may have shed some light on the minors’ heritage. Nowhere in the record is there evidence that any inquiry was made outside of the finding in the Alameda County dependency case, nor is there any evidence that the court revisited the issue after the father indicated in his section 388 motion that the minors were possibly members of either the Apache or the Arapahoe Indian tribes.
Given the inadequate inquiry and the absence of notice at any time during the proceedings, we conclude the court erroneously proceeded to determine jurisdiction, terminate parental rights, effectuate a foster care placement, and institute adoption proceedings. (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. (Id. at p. 1422.)
DISPOSITION
The order terminating parental rights is vacated, and the matter is remanded to the juvenile court with directions to order the Department to make proper inquiry and to comply with the notice provisions of ICWA. If, after proper inquiry and notice, the BIA or a tribe determines that the minors are Indian children as defined by ICWA, the juvenile court is ordered to conduct a new section 366.26 hearing in conformity with all provisions of ICWA. If, on the other hand, no response is received or the tribes and the BIA determines that the minors are not Indian children, all previous findings and orders shall be reinstated. In all other respects, the orders are affirmed.
We concur: SCOTLAND, P.J., BLEASE, J.