Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court No. CK48074 of Los Angeles County, Valerie Skeba, Robin Kesler and Robert L. Stevenson, Juvenile Court Referees.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant Robert O.
Michael A. Salazar, under appointment by the Court of Appeal for Defendant and Appellant April J.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Deborah L. Hale, Deputy County Counsel, for Plaintiff and Respondent.
MANELLA, J.
INTRODUCTION
Father appeals from the denial of his Welfare and Institutions Code section 388 petition requesting the return of his son Sean to mother and father’s custody. Father contends that the juvenile court abused its discretion in denying the petition, and mother joins in father’s contentions. We disagree, and affirm the order. Father seeks reversal of the order terminating his parental rights to Sean, and mother seeks reversal of the order terminating her parental rights to Sean and his siblings David and Noel, on the ground that the juvenile court failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA). Respondent concedes there was no compliance, and we find none. Thus, we reverse and remand for proper notice.
“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. . . .” (Welf. & Inst. Code, § 388, subd. (a).) All further references are to the Welfare and Institutions Code, unless otherwise indicated.
See Title 25 United States Code section 1901 et seq.
BACKGROUND
Sean is the third of mother’s five children, and father’s first of three children with mother. Sean was detained at birth in early 2003 due to symptoms of drug withdrawal. At that time, mother’s two older children, David and Noel, had already been brought within the jurisdiction of the juvenile court, but were in mother’s custody. David and Noel had been detained in 2002 at the time of Noel’s birth, after Noel tested positive for opiates and amphetamine, and David was discovered in the care of his father, a drug abuser who was arrested for possession of heroin.
The identity of Noel’s father was unknown. After his arrest following Noel’s birth, David’s father, Edward, remained incarcerated until 2006.
All three children were returned to mother’s custody September 15, 2003, but were detained again soon afterward, when mother was arrested for felony child abuse after Noel was found to have multiple bruises, burn injuries on her foot and missing hair. At that time, father was serving a 120-day jail sentence for spousal abuse. In October 2003, while both parents were incarcerated, Los Angeles County Department of Children and Family Services (DCFS) filed new petitions, which were later sustained. When mother was released in early November 2003 pending trial, the children were again returned to her custody. Father was released from jail at the end of December.
Father had an extensive arrest record on charges of drug possession, plus an arrest for spousal abuse and one for child abuse. In 1995, father was convicted of misdemeanor child abuse after disciplining a five-year-old child by choking. He was sentenced to one year in jail and three years probation.
On November 21, 2003, the DCFS social worker paid an unannounced visit to mother’s home and determined that mother had failed to obtain medical care for the children. The home was cluttered with dirty dishes, and the floor was filthy and littered with trash. Sean was in a cradle, and David and Noel were asleep on the couch, all with dirty faces, unkempt clothing, runny noses and dirt under their finger and toenails.
On November 26, 2003, staff at mother’s drug treatment center told the social worker they had observed the children in a dirty, unkempt condition, and smelling of urine. Sean’s diaper had not been changed in some time, and David was very lethargic and spoke only in a whisper. Mother was unable to give a drug test, because she repeatedly fell off the toilet. Later that day, two reunification services workers came to the home and found all three children with cold symptoms. Sean felt hot, and had greenish mucous coming from his nose. He needed a diaper change, and his bottle contained thick, clumpy milk. The workers transported the children to a hospital, where David and Sean were diagnosed with fever and inflamed ears, and Noel was diagnosed with an ear infection. The reunification services workers transported the family back home and explained the prescribed medications to mother.
On December 3, 2003, mother brought the children into the DCFS office for observation, as ordered by the criminal court. The children were observed by several social workers and a public health nurse. David was dirty and had a rash on his arm, later diagnosed as impetigo. Noel was dirty, and had scratches on her face, bruises on her face and body, and scabs throughout her scalp. Her nose was red and runny, and there was dried blood near her nostril. Sean’s cheeks were very red, and he had a rash on both thighs. The children were taken to a medical clinic, where Sean was diagnosed with pneumonia, placed on oxygen, and prescribed antibiotics. David and Noel were given ointment for their rashes. The next day, after a more thorough examination, Noel was diagnosed with physical abuse and impetigo, which had given her a rash with blisters and sores over her entire body.
David, Noel and Sean were detained December 3, 2003, and the criminal court issued an order that mother have no contact with them. The children were placed in foster care and have not been returned to parents’ custody since then. Sean has consistently been placed with his sister Noel, and they have been in the same placement with David some of that time.
Shannon, mother and father’s second child together, was detained at birth in May 2004. Reunification services regarding David and Noel were terminated June 14, 2004. Sean’s contested adjudication/disposition hearing, which had been continued many times, went forward the same day, along with Shannon’s adjudication hearing. The social worker testified that beginning in February 2004, she made periodic requests to inspect parents’ home, but they told her that they had no address yet, other than a mailing address. Father informed her that they moved in May 2004, but he would not give her the address.
In May or June 2004, when the social worker suspected father to be under the influence of drugs, she asked him to submit to a drug test. He refused. He and mother had both refused a test in February, awaiting the advice of their criminal lawyer. Mother had been taking prescribed Methadone, but neither she nor Shannon tested positive for Methadone or other drugs at birth. However, Shannon showed severe symptoms of withdrawal from an undetected drug, consistent with Methadone withdrawal. The social worker reported that mother had not been submitting to court-ordered drug tests since the case was assigned to her in November 2003.
The following day, July 15, 2004, Sean and Shannon were adjudicated dependent children of the court. The court set a permanency review for Sean, to be heard November 4, 2004. It ordered further reunification services and monitored visits for father, and ordered both parents to submit to random drug testing and enroll in an aftercare program. Both mother and father continued to take prescribed Methadone, and their tests were positive only for that substance until August 30, 2004, when father’s random test showed a blood alcohol content of .03 percent on the same day a monitored visit with Sean had been scheduled.
Parental rights were eventually terminated as to Shannon and she was adopted. Ireland, parents’ third child together (mother’s fifth), was born in 2005, and remains in parents’ custody.
See sections 366.21, subdivision (f), and 366.22, subdivision (a).
An aftercare program follows inpatient care or rehabilitation, and may consist of various programs, including a 12-step program. (See, e.g., In re Neil D. (2007) 155 Cal.App.4th 219.)
At a review hearing held September 9, 2004, DCFS requested the court to order father not to ingest alcoholic beverages. Father’s attorney objected, explaining to the court that there had never been any evidence of alcohol abuse, that father worked in construction and sometimes had a beer with his coworkers at lunchtime, and that he routinely drank a beer with dinner. The court granted DCFS’s request, and ordered father not to consume alcohol. The court explained that although there was no evidence that father abused alcohol, he did have a history of substance abuse, and as the court considered alcohol to be an addictive substance, any inability to comply with the order would indicate a problem. In addition, the court was concerned that father had consumed alcohol prior to visiting Sean. The court ordered father to refrain from consuming alcohol pending the next hearing.
Father had submitted to a random test the day before the hearing, September 8, 2004, but the results, unknown at that hearing, were later determined to be positive for a blood alcohol content of .05 percent.
At the same status hearing, the social worker reported that during a recent home visit, parents’ one-bedroom apartment appeared to be tidy and organized, and all utilities were in working order. The court liberalized father’s visits with Sean and Shannon to unmonitored two-hour daytime visits, unaccompanied by mother. By that time, mother had pled no contest to one count of felony child abuse, and had been sentenced to five years’ probation. The criminal court’s stay-away order was to remain in effect as to Noel until 2009, but had been modified to allow mother to have peaceful contact with David, Sean and Shannon. The juvenile court ordered monitored visits for mother, provided they were not monitored by father.
On November 4, 2004, DCFS reported that mother had told the social worker she had been attending parenting, anger management and substance abuse treatment programs, and that she continued to receive Methadone daily. The director of Changing Steps, which provided the programs, reported to DCFS that mother had attended one session, but was sent away from the second session, as she was 45 minutes late. In the director’s opinion, mother would not make progress in her recovery until she attended Narcotics Anonymous and was able to discontinue the Methadone. The agency which provided the parenting program reported that mother paid little attention in class, and had fallen asleep during one lesson. The social worker was of the opinion that normal Methadone use should not act as a sedative.
The social worker also reported on November 4, 2004, that she had learned that father had recently enrolled in parenting, anger management and substance abuse programs, but had attended just one session, where he displayed a poor attitude. Like mother, father was sent away from the second session after arriving 45 minutes late. The director of Changing Steps told the social worker that father also was unlikely to make progress until he attended Narcotics Anonymous and was able to discontinue the Methadone.
Mother had visited with Sean twice per week, but arrived unkempt, disoriented and unbalanced, with poor eye contact. She fell asleep during some visits, and fed Sean food inappropriate for a toddler. Father was not employed at that time, except for occasional handyman work in parents’ apartment complex. Parents were living on father’s disability benefits paid as a result of a back injury. Father continued to receive Methadone daily and to submit to random drug tests, but he tested very low on the two occasions that mother tested high, suggesting to the social worker that he had given his Methadone to mother.
Father regularly attended his own two-hour unmonitored visits with Sean, as well as mother’s monitored visits. Like mother, father arrived for visits looking unkempt and was seen giving Sean food that was inappropriate for his age.
DCFS also informed the court in the November 2004 report that Sean was in good health and developing appropriately for his age. He was in foster care with David and Noel, and had been in the same foster home since he was removed from his mother’s custody in 2003.
The permanency review hearing was continued several times. In the meantime, the social worker reported that father had informed her that he had not enrolled in any programs other than Methadone treatment, and that he had refused to sign releases so that she could verify his information. She also reported that father had again tested positive for alcohol twice, once in November 2004, and again in December 2004. The first reading was .06 percent and the second was .09 percent. On February 8, 2005, the court determined that father had not disobeyed its previous order not to consume alcohol, as that order had expired October 12, 2004. The court renewed the order, effective for the duration of the case. Father’s visits were to remain unmonitored, so long as his tests showed no alcohol. The permanency review hearing was continued several more times.
In its interim review report of August 22, 2005, DCFS reported that mother had given birth to Ireland, parents’ third child together. Parents were dividing their time between two homes in order to help father’s ailing father. A home visit revealed both homes to be well-kept, orderly and clean, with no safety hazards. The baby had been in parents’ care for two months, and appeared to be developing at a normal rate. She was clean, alert, healthy, rash free and appropriately dressed. Mother interacted appropriately with the baby, and had successfully completed a parenting course. Both parents had completed a 10-week life skills course.
Father’s Methadone maintenance counselor reported to DCFS that father had remained drug-free except for Methadone for approximately 18 months. However, father had tested positive for alcohol on August 4, 2005. When the social worker telephoned father to inform him of the positive test, he admitted that he continued to have an occasional “beer or two,” and that he knew he had been ordered not to drink alcohol. He also told the social worker that his counselor had told him not to drink alcohol. Because of the positive test, the court changed father’s visits from unmonitored to monitored, and again continued the permanency review hearing.
On February 15, 2006, DCFS reported that father continued to be treated with Methadone, but had not enrolled in any other programs. Mother had made progress in her programs. She attended an outpatient drug program every day, and anger management on Saturdays. Her counselor reported that mother was still taking Methadone daily, and had done so for over six years. The social worker concluded that parents were no longer taking illicit drugs, but continued to be dependent upon Methadone. DCFS recommended terminating reunification services.
Sean’s permanency review went forward March 8, 2006, at the same time as Shannon’s, and the matter was submitted on the court’s file and argument of counsel. Father’s counsel argued that no evidence indicated father was ever intoxicated while visiting the children, or that the children would be at risk because of his occasional use of alcohol. Mother’s attorney argued that the Methadone program should be deemed an aftercare program with which parents had complied. Counsel also urged the court to find that the children would not be at risk in parents’ care while they continued on Methadone, as DCFS had determined that Ireland, who had been in parents’ care for 10 months, was not at risk. The children’s attorney recommended terminating reunification services as to both Sean and Shannon. Counsel noted that the children had been in the system a long time -- approximately 30 months for Sean -- and that parents were still dependent on Methadone at high levels without much improvement. Counsel also expressed concerned about father’s positive alcohol tests, noting his long history of drug abuse.
The court found that Sean and Shannon would continue to be at risk if returned to parents’ custody, as neither parent had complied with the reunification plan of completing a substance abuse program or becoming substance free. The court found that reasonable reunification services had been provided, and that parents had not complied with the plan. The court terminated reunification services and scheduled a hearing pursuant to section 366.26 to consider terminating parental rights.
It is apparent from the argument considered by the court and the court’s comments that “substance free” included free from parents’ dependency upon Methadone. After the court made its ruling, it took up the matter of Ireland’s custody, noted parents’ Methadone dependency, and approved their remaining in the Methadone program with the goal of ultimately freeing themselves from that dependency.
On March 8, 2006, DCFS notified the court that David, Noel and Sean had been removed a few days earlier from the foster home in which they had lived together since December 2004. David was placed separately from Noel and Sean due to his behavioral problems. Sean and Noel continued to be very close, and David did better when visiting them than when living with them. In July, the social worker visited the homes, and found the children happy and well. However, Sean’s foster mother reported that Sean was clingy and emotional, and constantly sought attention.
On September 6, 2006, DCFS reported that father continued in Methadone maintenance, but had not enrolled in any other programs. He had again tested positive for alcohol in July, and when so informed, he told the social worker that he drank only beer, and that he had a right to drink in his own home. Later, he told the social worker he did not intend to enroll in a 12-step program, because he found that church attendance provided sufficient support. Mother continued in Methadone maintenance treatment and had completed a substance dependency treatment program in May 2006. Parents continued to have custody of Ireland. In an unannounced home visit, the social worker found her to be happy, outgoing and well cared for. The only safety hazard observed was access to the backyard swimming pool through a French door, which parents locked upon advice of the social worker. The social worker also advised parents to obtain a pool alarm.
On December 5, 2006, after another continuance of the section 366.26 hearing, and nine months after reunification services had been terminated as to Sean, father filed his section 388 petition. As changed circumstances, the petition alleged that parents had been “successfully ‘treated,’” had “recovered from their disabilities . . ., bonded to the child . . ., [and] no longer pose[d] a risk to the child,” as demonstrated by their care of Ireland for nearly two years. The court granted a hearing and set it for the following month. Attached to the petition was a letter dated July 10, 2006, from Koinonia Foster Homes, the foster home placement agency responsible for the placements in this case. Social worker Kristin Dean wrote that she had observed parents’ monitored visits for three years and during that time, parents had changed a great deal, showing much improvement. Dean thought that parents demonstrated effective parenting skills during visits with David, Sean and Ireland, that the children seemed comfortable and excited to see them, and that parents and children were well bonded. She observed that mother and father had exhibited changed behavior and appropriate parenting skills for a long time, and were doing a good job keeping Ireland safe and healthy. She believed the court was considering the termination of parental rights solely because of the boys’ long separation from parents, and recommended against it, as she believed the separation was due to court continuances beyond parents’ control.
On December 6, 2006, DCFS reported that Sean and Noel’s foster parents were no longer willing to adopt, and it was necessary to find a new home, which would be Sean’s sixth foster home. David’s foster parents wanted to adopt David, and were willing to adopt Sean and Noel, as well, but two additional children would exceed their licensing capacity. Further, DCFS did not recommend placing Sean and Noel with David, as David had been aggressive toward Noel and had experienced other behavior problems when he lived with them. However, DCFS was investigating another home for Sean and Noel, a couple committed to sibling visitation. The children were in therapy, doing well and continued to have monitored visits with parents.
In January 2007, DCFS reported that Sean had exhibited tantrums and aggressive behavior toward younger foster siblings, beyond what might have been expected from a toddler, and his psychiatrist recommended that he not be placed in a home with infants. After that report, Sean and Noel were placed with David’s foster parents, John and Lender, who had been approved to adopt all three siblings. The children were very happy to be together again, and told the social worker that they felt at home and never wanted to move again. Sean and Noel were healthy and developmentally normal. By then, David was in the second grade, had been diagnosed with attention deficit hyperactivity disorder and anuresis, and had been placed on medication for both conditions. His teacher reported a drastic improvement in his ability to focus and participate. DCFS also reported that parents consistently attended their visits with Sean and David. Sean enjoyed them, but had no difficulty separating, and showed no interest in Ireland. The social worker who monitored the visits did not discern a strong bond between Sean and parents.
By April 25, 2007, the children appeared to have adjusted extremely well and to have bonded to foster mother. All three siblings seemed happy, secure and bonded with the prospective adoptive family and each other. Noel had not seen her mother since 2003, due to the criminal court’s stay-away order. The social worker was of the opinion that it would be more detrimental for Sean to lose his relationship with his sister than with his parents. Further, although she found the parents to be well motivated and cooperative, with a good attitude, she doubted that the quality of their parenting skills would be sufficient to allow Sean to heal from the loss of his sister and possibly his brother.
After several continuances, the hearing on father’s section 388 petition took place June 7, 2007, the same date as the section 366.26 hearing. The section 388 issues were submitted on the court’s file and argument of counsel. The children’s counsel, Ms. Wang, represented to the court that she had visited Sean three days before, and when asked who his mother was, Sean replied that his mother was Lender. Wang noted that a return to parents’ custody would separate Sean from Noel and David, which would be detrimental to Sean, as Noel has been the only permanent part of Sean’s life for the past four years. Wang also noted that although Sean had been with John and Lender for only four months, he had spent no more time with his biological parents.
The court found that although father had shown some change of circumstances, it would not be in Sean’s best interest to be returned to parents’ custody. The court found that father continued to consume alcohol, and that both parents were still on Methadone. Further, although there existed a bond between parents and Sean, there was no parent-child relationship. Sean had an important bond with his siblings, and a growing bond and stable relationship with his foster parents. The court concluded that it was in Sean’s best interest to remain with his siblings in the current placement.
The court denied the section 388 petition June 7, 2007, and turned to the section 366.26 hearing. After hearing father’s testimony and argument of counsel, the court declared the children free from the custody and control of their parents. Mother and father timely filed their notices of appeal from the denial of the section 388 petition and the termination of their parental rights.
DISCUSSION
1. Section 388 Petition
Father contends that the juvenile court erred in denying his section 388 petition because he demonstrated changed circumstances and further established that a return to father’s custody would be in Sean’s best interest. Father also challenges the termination of his parental rights in order to preserve his claim that the order denying his section 388 petition should be reversed. Mother joins in his arguments.
There is no appellate jurisdiction to reverse or modify the denial of a section 388 petition, unless a timely notice of appeal has been filed from the order terminating parental rights. (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1317.)
Reunification services were terminated March 8, 2006, and the court set a hearing pursuant to section 366.26. Father did not challenge that order. Nine months later, he filed his section 388 petition. “‘[T]he proceeding terminating reunification services and setting a section 366.26 hearing is generally a party’s last opportunity to litigate the issue of parental fitness as it relates to any subsequent termination of parental rights, or to seek the child’s return to parental custody.’ [Citation.] . . . [¶] . . . ‘Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.’ [Citation.]” (In re Zacharia D. (1993) 6 Cal.4th 435, 447.)
The entry of the order terminating reunification services and setting the section 366.26 hearing required father to petition for extraordinary writ, if he desired to seek relief from any order made by the dependency court on or prior to the entry of that order. (§ 366.26, subd. (l); In re Tabitha W. (2006) 143 Cal.App.4th 811, 815-816.) “A challenge to the most recent order entered in a dependency matter may not challenge prior orders for which the statutory time for filing an appeal has passed. [Citation.]” (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811.)
Thus, in the proceedings below, father bore the burden to establish a change of circumstances demonstrating that his regaining custody was in Sean’s best interests. (See In re Jasmon O. (1994) 8 Cal.4th 398, 415; § 388.) The burden was a difficult one, as father was required to overcome a rebuttable presumption that a return to his custody was not in the child’s best interests. (See In re Marilyn H. (1993) 5 Cal.4th 295, 302.) Father’s burden of proof was by a preponderance of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie).) The determination whether father met his burden rested within the sound discretion of the juvenile court. (In re Zacharia D., supra, 6 Cal.4th at p. 447.)
On appeal, father’s burden is to show a clear abuse of discretion. (Stephanie, supra, 7 Cal.4th at p. 318.) The court’s discretion will not be disturbed on appeal unless it is shown to have been “‘“an arbitrary, capricious, or patently absurd determination [citations].”’ [Citations.]” (Ibid.) “The denial of a section 388 motion rarely merits reversal as an abuse of discretion. [Citation.]” (In re Amber M. (2002) 103 Cal.App.4th 681, 685-686.)
a. Changed Circumstances
Father contends that a change in circumstances was established and undisputed. As noted by respondent, however, the juvenile court found only “‘some change of circumstances.’” (Italics added.) Father was required to show a substantial change in circumstances. (In re Heraclio A. (1996) 42 Cal.App.4th 569, 577.)
Father cites as changed circumstances the modification of the criminal stay-away order to apply only to Noel, the fact that parents were no longer incarcerated, and parents’ success in caring for Ireland for two years without incident. Father also claims that parents had completely ameliorated every problem leading to Sean’s dependency. At the same time, however, he concedes that one of those problems had not changed -- parents’ continued dependence on Methadone. Father suggests this fact is overcome by mother’s negative tests for illegal drugs for several years, and father’s not having tested positive for illegal drugs. Father also attempts to minimize his alcohol consumption as “one or two beers” that, along with the Methadone dependency, “obviously did not interfere with his ability to parent.” He argues that the court should have given greater weight to parents’ success with Ireland than to his consumption of prescribed opiates and alcohol. Father also suggests that the DCFS social worker’s opinion -- that the bond was not strong between Sean and his parents -- should have been given less weight than the opinion of Dean, the foster agency social worker who monitored visits for three years.
We note that parents had been released from jail and the stay-away order had been modified prior to the section 366.22 order terminating reunification services and setting of the section 366.26 hearing. To justify modification of that order, the changes in circumstances must occur after its entry. (See In re Marilyn H., supra, 5 Cal.4th at p. 309.) The successful care of Ireland was noted in the section 366.22 hearing; the only change since then was the length of time she had been in parents’ care.
Changed circumstances are insufficient when the parent has not eliminated the specific factors that required placement outside his home. (In re Angel B. (2002) 97 Cal.App.4th 454, 463-464.) Father has not eliminated or reduced his dependence upon Methadone, and he has refused to enroll in an aftercare program. Father’s arguments amount to a contention that the court should have drawn different inferences from the evidence. Father does not challenge the evidence from which the court’s inferences were drawn -- father’s history of addiction, his failure to obey the court’s order not to consume alcohol, his refusal to complete a substance abuse program and his failure to become substance-free, not simply to test negative for illegal substances. Father’s failure to obey the court order that would help him progress beyond monitored visits with his son negates the inference urged by father that his drinking “obviously did not interfere with his ability to parent.”
“‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ [Citation.]” (Stephanie, supra, 7 Cal.4th at pp. 318-319.) Further, an abuse of discretion is never shown merely by demonstrating the existence of grounds for a difference of opinion. (People v. Stewart (1985) 171 Cal.App.3d 59, 65.) We conclude that father has not established an abuse of discretion.
b. Sean’s Best Interests
Nor has father established that the court abused its discretion in concluding that Sean’s return to father’s custody would not be in Sean’s best interest. Some of the factors to be considered when determining the child’s best interest are: “(1) [T]he seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532, italics omitted (Kimberly).) The court should also consider the relative strength of all familial bonds, including those of brother and sister. (Id. at pp. 529-530.)
Giving scant attention to the evidence, father argues that this court should find that the conditions giving rise to father’s loss of custody were not severe. Further, he argues that we should give less weight than the juvenile court did to the sibling bond between Sean, David and Noel, suggesting that visits might be arranged for Sean and his siblings. Father also argues that we should give little weight to Sean’s bond with the prospective adoptive parents, in whose care he had spent only five months.
Applying the first Kimberly factor to the evidence, we conclude that the conditions leading to Sean’s detention were not, as father contends, “mild.” (See Kimberly, supra, 56 Cal.App.4th at p. 532.) Parents had a history of illegal substance abuse and dependence on Methadone, and Sean had initially been found in withdrawal from opiates. Just prior to his detention, Sean was suffering from pneumonia, David and Noel both had impetigo, and Noel was suffering from blisters and sores over her entire body. Her body was also covered with bruises consistent with intentionally caused trauma.
Applying the second Kimberly factor, we conclude the evidence did not establish that Sean was well bonded to his parents. (Kimberly, supra, 56 Cal.App.4th at p. 532.) Sean enjoyed the monitored visits with his parents and called them mommy and daddy, but he called all adults mommy and daddy. Sean had no difficulty separating from parents and never spoke of them when he was not with them. Sean was well bonded to Lender and John. Sean, like David and Noel, told the social worker he felt he was home at John and Lender’s, and “‘never want[ed] to move again.’” The social worker observed that the only constant in Sean’s life had been his relationship with David and Noel. She reported that the three siblings also enjoyed a loving relationship with their foster siblings, while Sean showed no interest in Ireland.
Finally, we look to the third Kimberly factor -- “the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.” (Kimberly, supra, 56 Cal.App.4th at p. 532.) Although the health and hygiene conditions have been removed or ameliorated, mother was convicted of inflicting grave bodily injury upon Noel, and the stay-away order remains in effect as to Noel. Father’s eventual freedom from substance dependency is less certain due to his failure to enroll in a program such as Narcotics Anonymous, and his apparent attitude of placing more importance on having an occasional beer than on obtaining custody of his son.
Father has failed to satisfy his burden on appeal to show that the juvenile court’s conclusions were patently absurd, or that the denial of his petition was arbitrary or capricious. (Stephanie, supra, 7 Cal.4th at p. 318.) Thus, we conclude that father has failed to establish an abuse of discretion.
2. ICWA Notice
Both parents contend the notice requirements of ICWA were not met. Respondent agrees. As relevant here, ICWA provides that in any involuntary child custody proceeding where “the court knows or has reason to know that an Indian child is involved, [the Department] shall notify the . . . child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of [its] right of intervention.” (25 U.S.C. § 1912(a).) “‘Indian child’ means any unmarried [minor who] is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” (25 U.S.C. § 1903(4); Cal. Rules of Court, rule 1439(a).) The notice requirement of ICWA is triggered by the trial court’s “reason to know that an Indian child is involved.” (25 U.S.C. § 1912(a).) “California courts have adopted ‘reason to believe’ as the relevant standard and have set a low threshold to trigger the notice requirements of the federal law. [Citations.]” (In re Joseph P. (2006) 140 Cal.App.4th 1524, 1529.) The juvenile court’s duty to require compliance with ICWA was a sua sponte duty which continued throughout the proceedings. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471-472.)
Throughout the proceedings relative to David and Noel, the DCFS reports consistently stated, “The Indian Child Welfare Act does not apply.” At Sean’s detention hearing on March 11, 2003, the court asked whether there was any Native American heritage in father’s or mother’s family. Mother’s counsel replied that mother was of Cherokee descent on her father’s side. DCFS continued to report that ICWA did not apply. Finally, on October 4, 2005, the court ordered DCFS to interview mother regarding her heritage, and to give the appropriate notice to the Bureau of Indian Affairs, the Department of Interior and all Cherokee tribes. Thereafter, DCFS continued to report to the court that ICWA did not apply.
There are three federally recognized Cherokee tribes. (70 Fed.Reg. 71194 (Nov. 25, 2005)); In re J.T. (2007) 154 Cal.App.4th 986, 992.) Notice must be given to all tribes with which the child might be affiliated, or if the tribe is unknown, to the Bureau of Indian Affairs, and proof of receipt of the notices must be filed with the court. (In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906; 25 U.S.C. § 1912(a).) The notice must contain all available information known about direct lineal ancestors, including the “names and addresses of the child’s parents, grandparents, great-grandparents and other identifying information . . . .” (In re Karla C. (2003) 113 Cal.App.4th 166, 175.) “The ICWA notice requirement is not onerous. ‘[C]ompliance requires no more than the completion of a preprinted form promulgated by the State of California, Health and Welfare Agency, for the benefit of county welfare agencies.’ [Citation.]” (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 254.)
The lack of statutory notice requires reversal for compliance with the notice requirements of ICWA. (In re Brooke C. (2005) 127 Cal.App.4th 377, 385.) As we have found no other error requiring reversal, only a limited remand is required; if no tribe intervenes after proper notice, the prior defective notice will become harmless error, and the judgment terminating parental rights should be reinstated. (Ibid.).
DISPOSITION
The order denying father’s section 388 petition is affirmed. The order terminating parental rights is conditionally reversed, and the matter is remanded to the juvenile court with directions to order DCFS to provide proper notice of the proceedings under ICWA and to file a copy of the notice in the juvenile court, along with proof of receipt of such notice. The juvenile court shall then determine whether the notice and proof of receipt comply with ICWA. If, after receiving proper notice, no tribe claims David, Noel or Sean as an Indian child within the meaning of ICWA, the juvenile court shall then reinstate the jurisdictional and dispositional orders. In all other respects, the judgment is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.