Opinion
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Los Angeles County, No. J988288, David S. Milton, Judge.
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant Edward B.
Karen B. Stalter, under appointment by the Court of Appeal, for Defendant and Appellant Leeanne D.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minor.
DOI TODD, J.
Appellants Leeanne D. (Mother) and Edward B. (Father) appeal from an order summarily denying Father’s petition filed pursuant to Welfare and Institutions Code section 388 and the order pursuant to section 366.26 terminating their parental rights as to their child H.B. Mother argues that the order terminating parental rights must be reversed because the Los Angeles County Department of Children and Family Services (Department) failed to provide proper notice of the proceedings in compliance with the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1902 et seq.) The Department concedes the error under the ICWA. Father argues that the juvenile court abused its discretion in failing to hold a hearing on his section 388 petition and that he demonstrated one of the statutory exceptions to the termination of parental rights, showing he had maintained regular visitation and termination would be detrimental to H.B. (§ 366.26, subd. (c)(1)(A).) Mother and Father join in each other’s arguments.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
Effective January 1, 2008, section 366.26 was revised and subdivision (c)(1)(A) was renumbered as subdivision (c)(1)(B)(i). (Stats. 2007, ch. 565, § 4; Stats. 2007, ch. 583, § 28.5.) We will refer to the provision in effect at the time of the juvenile court’s order.
We reverse the order terminating parental rights for the limited purpose of directing the Department to provide proper notice under the ICWA. In all other respects, we affirm. Father failed to meet his burden to show that he was entitled to a hearing under section 388 or that the section 366.26, subdivision (c)(1)(A) exception applied to preclude the termination of parental rights.
FACTUAL AND PROCEDURAL BACKGROUND
Detention.
H.B., born in March 2005, came to the attention of the Department one week after she was born when Mother tested positive for methamphetamine two days after H.B.’s birth. H.B. tested negative. In an interview with a social worker at the hospital, Mother stated she had not used drugs in six years. She attributed the positive test possibly to drinking by mistake her 18-year-old son’s Coke mixed with methamphetamine. While still at the hospital, the social worker intercepted a call for Mother that Father had just been arrested for possession of methamphetamine. Mother and Father were unmarried but lived together. When the social worker spoke with Father a few days later, he attributed Mother’s positive test to prescription or over-the-counter drug use.
The Department filed a section 300 petition at the end of March, alleging under subdivisions (b) and (j) that Mother had an unresolved history of substance abuse, Father knew or should have known of the substance abuse and failed to protect H.B., and H.B.’s siblings were prior dependents of the juvenile court. H.B.’s two siblings, ages 16 and 18, had been placed with their maternal grandmother through a permanent plan of legal guardianship. The detention report indicated that the ICWA applied through the Apache tribe.
Neither Mother nor Father appeared at the March 30, 2005 detention hearing. The juvenile court detained H.B., ordered the Department to refer the parents for parenting classes and drug counseling and testing, and ordered monitored visitation. It deferred any findings under the ICWA.
Jurisdiction/Disposition.
The Department’s May 24, 2005 jurisdiction/disposition report stated that the ICWA did or may apply because Father had reported that his paternal great grandmother was possibly Cherokee. As a result of this information, the Department provided notice to the Bureau of Indian Affairs (BIA), the United States Department of the Interior and the three Cherokee tribes on April 26, 2005. The notices, however, misspelled the child’s name and failed to identify the paternal great grandmother. The Department received signed receipts from the BIA, the Cherokee Nation of Oklahoma and the United Keetoowah Band of Cherokee Indians.
In an interview with the social worker, Mother reported that she had a history of drug use, but had stopped using drugs for four years and would be off parole in August 2005. She denied using drugs during her pregnancy. She also reported that in addition to the two children placed with their grandmother, she had a third child who was living with the child’s father and a fourth child who was adopted at birth through a private adoption. The maternal grandmother told the social worker she could not care for H.B., as she and her husband were too old to care for an infant. Father stated that he knew of Mother’s drug history, but was proud she had been off drugs for four years. He speculated that Mother’s positive drug test was from nurses mixing up urine samples. Drug test results for Father attached to the report were one “no show” and one where the specimen had leaked in transit. Contradicting Mother’s and Father’s statements, Mother’s parole officer stated that Mother was last arrested in September 2004 for being under the influence and in possession of a hypodermic needle.
The Department further reported that H.B. was doing well in her placement. Mother and Father had a monitored visit with H.B. and the monitor reported “there seemed to be an obvious bond between the parents and the child.” But because of Mother’s drug-related criminal history and recent drug use, the Department recommended that Mother receive no reunification services. It recommended that Father receive six months of reunification services despite his co-dependency with Mother and denial of her drug use.
Mother and Father appeared in court for the first time on May 24, 2005. Mother indicated that she was adopted and believed she had some Native American heritage. The juvenile court ordered the Department to investigate both Mother’s adoptive and biological parents for any Native American heritage and to provide proper notice to the BIA, the Department of the Interior and the affected tribes. Father also claimed Native American heritage, stating that one side of his family was Cherokee and the other was Blackfoot, “[p]ossibly 1/16th, if any.” The juvenile court further ordered that notice to the tribes also be provided for Father. The same day, Mother and Father also completed JV-130 forms, indicating that they may have Indian ancestry.
At the hearing the juvenile court continued the order for monitored visitation and advised the parents that they would have a maximum of six months following disposition within which to reunify with H.B. The matter was referred to mediation on July 6, 2005, but the parties were unable to reach an agreement. The juvenile court continued the matter to August 4, 2005 for adjudication. Also on July 6, 2005, the Department reported that a further interview with Father revealed that he claimed only Cherokee heritage. Attached to the Department’s report were the receipts from the original notices, as well as responses from the three Cherokee tribes stating that H.B. was not eligible for enrollment. The Department also reported that it had learned both Mother’s biological parents and her adoptive maternal grandmother had some Native American heritage. The maternal grandmother’s great grandfather was one-quarter Cherokee. The Department attached the new notices sent pursuant to the ICWA.
The Department’s new notices identified both parents as claiming Cherokee heritage. They identified the maternal grandmother by her full name, including the middle name “Juanita,” and her birth date, but did not include her address, place of birth or the tribe through which she was claiming. The maternal grandfather was similarly identified. The notice identified the paternal great grandmother by name, birth date of “[a]bout 1900” and the tribe through which she claimed. Her great grandmother and great grandfather were identified by name, approximate birth dates and no tribal affiliation.
By June 30, 2005, both parents were enrolled in parenting classes. Both had begun drug testing, each having tested negative on occasion and failing to show up for tests. The parents also confirmed that H.B.’s name was misspelled on several court documents. The Department reported that H.B. was doing well and responded to her foster parents as well as Mother and Father, who had regular monitored visitation. A letter from the Cherokee Nation dated July 25, 2005 provided that H.B. could not be traced based on the information provided.
By August 3, 2005, Mother and Father had almost completed their parenting classes, though they had not enrolled in drug counseling. They had failed to appear for their most recent drug tests. The Department had interviewed a physician at the hospital where H.B. was born, who stated that Mother’s positive toxicology test could not have resulted from common medications. A nurse there stated that newborns sometimes test negative while their mothers test positive because the newborns have their first urination before their test. A police report from Father’s March 2005 arrest indicated that Father possessed a small ziplock bag of methamphetamine, which he admitted was for personal use; he further admitted to using methamphetamine three times per month.
At the August 4, 2005 hearing, the juvenile court corrected the prior minute orders to reflect the correct spelling of H.B.’s name. Father failed to appear for the next scheduled hearing on August 18, 2005 because he had been arrested.
The Department’s supplemental report for the October 26, 2005 jurisdiction/disposition hearing stated that the ICWA “does or may apply.” No additional notices had been sent. Mother was one class short of completing her parenting classes, but had not begun drug counseling. She had one negative drug test and failed to appear for the balance of the scheduled tests. Father had completed his parenting classes, had two negative drug tests and had failed to appear for several tests. The social worker observed that Father seemed more interested in visiting H.B. and that Mother appeared to be under the influence during one of her visits. At the jurisdiction hearing, Mother and Father admitted the allegations contained in paragraph b-1 of the section 300 petition concerning Mother’s unresolved history of substance abuse and Father’s failure to protect H.B., and submitted on the allegations in paragraphs b-3 and j-1 concerning Mother’s other children. The juvenile court sustained those allegations and dismissed paragraph b-2 relating to Mother’s and Father’s allowing known drug users into the home with H.B.
The juvenile court proceeded immediately to disposition. The court ordered that Mother receive no reunification services. (See § 361.5, subds. (b)(11) & (13).) Pursuant to a disposition case plan agreed to by the Department and Father, the juvenile court ordered Father to attend parenting education and individual counseling, submit six random drug tests and complete a drug treatment program. He received monitored visitation with the Department having discretion to liberalize.
Termination of Reunification Services.
The Department’s next report prepared for the six-month review hearing on December 21, 2005 stated that the ICWA did not apply. The Department reported that Father had begun a three-year probation period in September 2005. Though Father earlier had admitted possessing the methamphetamine found on him, he now stated that someone must have planted it on him. Father had some negative drug tests; results were pending on other tests and he failed to appear for a few scheduled drug tests. He had begun drug counseling and was attending weekly Narcotics Anonymous and Alcoholics Anonymous meetings. He reported that he had lost his job due to missing work to attend court-ordered classes and counseling, but had found a new part-time job. The report stated that H.B. had been replaced into a new foster home in September 2005 and was adjusting well. Mother and Father continued to have regularly scheduled monitored visits with H.B., and the monitors reported that H.B. and Father appeared to have a special relationship, as H.B. “recognizes him and smiles as soon as she sees him.” At the December 21, 2005 hearing, the juvenile court followed the Department’s recommendation and continued reunification services for Father.
On June 14, 2006, the juvenile court granted a de facto parent request filed by H.B.’s foster parents. The Department’s June 21, 2006 report stated that H.B. had become very attached to her foster parents. Father’s recent drug tests were all negative and his case manager characterized him as “an active and motivated participant within treatment.” Additional information from Father’s probation officer, however, indicated that Father failed a drug test on June 7, 2006. The probation officer was attempting to contact Father for an explanation. Mother had begun testing on her own in January 2006 and had a positive test that month. Mother claimed the positive test was the result of prescription drugs, but she was unable to produce any information from a doctor to support that claim. Her subsequent tests were negative or no-shows. Mother and Father were living together; Father stated that he did not believe Mother was using drugs. Mother and Father continued with regular monitored visitation. The foster parents expressed concern because H.B. returned from the visits exhausted, unclean and with stomach pains.
On the basis of Mother’s continued drug use and Father’s support of Mother, the Department recommended that reunification services be terminated. At the June 21, 2006 hearing, the juvenile court granted the parents’ request for a contested 12-month review hearing.
Before the contested hearing, the Department submitted information showing that Mother had tested positive for methamphetamine on July 12, 2006 and Father had tested positive for cocaine on July 5, 2005. Father’s case manager reported that Father had developed behaviors of concern and that, although he initially denied any drug use, he later admitted that he had relapsed. The case manager noted that Father appeared to be “unable to fully accept responsibility for overall addict behaviors, i.e., manipulation, blame, and denial” and characterized Father’s prognosis as fair to guarded.
On August 10, 2006, the date ultimately set for the 12-month review hearing, Father withdrew his request for a contested hearing. Observing that Father continued to struggle with narcotics use, the juvenile court terminated reunification services and set the matter for a permanency planning hearing under section 366.26.
Section 388 Petition and Termination of Parental Rights.
In the December 7, 2006 section 366.26 report, the Department acknowledged that the juvenile court had not yet made any ruling as to whether the ICWA applied and requested the court to find that it did not apply. The report further stated that Mother and Father had maintained a regular monitored visitation schedule of six hours per week. During one visit in November 2006, Mother appeared to be intoxicated, but she claimed to be taking only allergy medication. In November 2006, H.B.’s foster parents completed their home study; they were committed to adopting H.B. At the December 7, 2006 hearing, the juvenile court reviewed the file and saw that the prior notices under the ICWA did not identify the paternal grandparents by name, even though Father had provided those names to the Department. The court directed the Department to notify the BIA, Department of the Interior and the Cherokee tribes regarding the paternal grandparents, providing their names and their approximate dates of birth and death.
In a March 1, 2007 supplemental report, the Department attached copies of the ICWA notices it sent to the BIA, the United Keetoowah Band of Cherokee Indians and the Cherokee Nation of Oklahoma, together with signed return receipts. The attached ICWA notices misspelled the child’s name and identified the March 1, 2007 hearing as “jurisdi/dispositional.” The paternal grandparents were identified by name, approximate date of birth and approximate date of death. No tribal affiliation was listed for the paternal grandfather. The maternal grandparents were identified by name—including the middle name “Juanita” for the maternal grandmother—and date of birth. No tribal affiliation was listed for the maternal grandmother. In addition, the notices contained some information about the paternal and maternal great grandparents, including their names and approximate dates of birth. The paternal great grandmother was identified as “Cherokee, Oklahoma”; the maternal great grandfather was identified as “1/4 Cherokee” but not enrolled; and the maternal great grandmother was not identified by any tribal affiliation. The notices contained no information about Mother’s biological mother’s Indian heritage. The return receipts from the Cherokee tribes were dated February 20, 2007, while the BIA receipt was undated. The Department also submitted unsigned return receipts from the Department of the Interior and the Eastern Band of Cherokee Indians.
Father filed a section 388 petition on March 1, 2007 seeking reinstatement of reunification services on the ground that he was in compliance with all his treatment requirements and had maintained weekly visitation with H.B. He alleged that the proposed change was in H.B.’s best interests because she would be reunified with a biological parent. In support of his petition, he attached a January 2007 progress report from Santa Anita Family Services, indicating that since August 2007 Father had complied with his treatment requirements and had tested negative for drugs in 25 random tests. The report indicated that Father had “managed to confront issues of anger and has continued to grow in sobriety” and characterized Father’s prognosis as “fair to good.”
At the March 1, 2007 hearing, Mother did not appear because she was ill; Father testified that she had a mild seizure and fainted the day before during a visit. Father testified further that Mother told him she did not want to attend the hearing because it might be the last time she could fight for H.B. and she did not want to suffer the stress associated with that event. The juvenile court found that Mother’s absence was not due to illness or physical inability to attend the hearing. Nonetheless, the juvenile court continued the section 366.26 hearing due to Father’s counsel’s illness. Because Mother’s counsel was not prepared to respond in her absence, the court similarly deferred ruling on the issue of the applicability of the ICWA. Thereafter, the juvenile court denied the section 388 petition without a hearing on the ground the petition did not show that a change of order would be in H.B.’s best interests.
For the March 5, 2007 hearing, the Department reported that it had sent new ICWA notices with the correct spelling of H.B.’s name. But only the old notices for the March 1, 2007 hearing were attached to that report, together an undated signed return receipt from the Department of the Interior. Moreover, page four of the notices was completely blank. At the March 5, 2007 hearing, Mother disclosed that the maternal grandmother’s middle name was Juanelle, not Juanita as indicated on the ICWA notices. Her counsel also raised the issue of the lack of an investigation into Mother’s biological parents’ heritage. The juvenile court continued the ICWA issue, directing the Department to provide new notices with the maternal grandmother’s correct name, locate page four of the notices and research whether Mother’s biological family must be included in the notices.
The juvenile court then proceeded to the section 366.26 hearing, receiving the Department’s prior reports into evidence. It denied Mother’s request to resolve the ICWA issues first. Father testified that he visited with H.B. for six hours one day per week during the past year. H.B. always recognized him when he arrived and would generally run into his arms for a hug and kiss. During the visits, he and Mother usually played, watched movies, ate lunch and took a nap with H.B. H.B. called Father “dad” or “daddy.” Father further testified that he was employed, had been participating in a family counseling program for the past 18 months and had participated in a Proposition 36 drug counseling program that included random drug testing. The juvenile court received into evidence the report from Father’s counselor that was attached to his section 388 petition. Father testified that although he and Mother had separated for a short time, they were now living together permanently. At the time Father relapsed in July 2006, he and Mother had separated at the request of the Department and he was trying to locate her.
Following counsels’ arguments, the juvenile court found by clear and convincing evidence that H.B. was adoptable and that Father did not meet his burden to show that it would be detrimental to H.B. to terminate parental rights under section 366.26, subdivision (c)(1)(A). The juvenile court observed that the pertinent inquiry was whether there was such a bond between Father and H.B. that it would be detrimental to her to terminate parental rights, noting “[w]e’re not talking about detriment to the parents, the anxiety that they suffer.” According to the court, “it’s not even a close question, in the court’s assessment. There is not—that bond does not exist. The bond is with the present caretaker. This child has never been in the physical custody of the parents.” The juvenile court terminated Mother’s and Father’s parental rights as to H.B. and identified adoption as the permanent plan.
Returning to the ICWA issue, the Department reported it had learned that the Indian tribes had been properly noticed of H.B.’s name as it appeared on her birth certificate and that page four of the notices were intentionally blank; it suggested that the misspelling of the maternal grandmother’s middle name could be considered harmless error. On the basis of the Department’s representation, the juvenile court stated that it was satisfied the ICWA notices were sent with the correct spelling of H.B’s name. It set a hearing for a progress report on the limited issue of confirming that proper ICWA notice was sent with the maternal grandmother’s correct name. It refused to delay the proceedings “to address those minor technical concerns” and declined to stay the termination order pending that hearing.
Post-Termination ICWA Notices.
On April 24, 2007, the Department reported that it had sent new ICWA notices on March 14, 2007 which contained the correct spelling of H.B.’s name and listed the maternal grandmother’s name with the middle initial of her maiden name, consistent with her live scan results. The Department also confirmed that page four was blank due to computer-generated pagination. It submitted copies of the most recent notices, which indicated that the April 24, 2007 hearing was jurisdiction/dispositional, misspelled the full middle name of the maternal grandmother and failed to attribute any tribal affiliation to her. It submitted signed and dated return receipts from the United Keetoowah Band of Cherokee Indians, the Eastern Band of Cherokee Indians and the Department of the Interior, and signed return receipts from the Cherokee Nation of Oklahoma and the BIA. A March 20, 2007 letter from the United Keetoowah Band of Cherokee Indians indicated there was no evidence that H.B. descended from an enrolled tribal member.
The April 24, 2007 hearing was continued for one day to confirm the correct spelling of the maternal grandmother’s name and secure an additional return receipt. The Department submitted additional information that the most recent ICWA notice mailed to the BIA was received on March 22, 2007 and that it was still waiting for the certified mail green receipt. It also submitted a letter from the Eastern Band of Cherokee Indians stating that H.B. was neither registered nor eligible to register as a member of the tribe. At the hearing on April 25, 2007, Mother’s counsel expressed concern about the maternal grandmother’s identification on the ICWA notices: “The middle name Juanita may or may not be significant. The spelling of putting a ‘V’ initial rather than spelling the name V[.], may or may not be significant.” Counsel added that the maternal grandmother’s correct middle name was “Juanelle” and she believed she was part Cherokee and that the court still lacked the certified green receipt from the BIA. The Department asserted that the information presented was sufficient for the tribes to make an appropriate determination. The juvenile court ruled that the ICWA notices were properly given and that the ICWA did not apply.
Mother and Father appealed from the order terminating their parental rights and Father appealed from the denial of his section 388 petition. Thereafter, Mother appealed from the juvenile court’s ICWA determination.
DISCUSSION
Mother contends the order terminating parental rights must be reversed because the Department’s ICWA notices were deficient; the Department concedes that the notices failed to satisfy the statutory requirements. Father contends that the juvenile court abused its discretion in denying his section 388 petition and that the order terminating parental rights must be reversed because he demonstrated one of the statutory exceptions to termination. Only the first contention has merit.
I. The Department Failed to Comply With the ICWA Notice Requirements.
“In 1978, Congress enacted ICWA, which allows an Indian tribe to intervene in dependency proceedings, to ‘protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.’ (25 U.S.C. § 1902.)” (In re Francisco W. (2006) 139 Cal.App.4th 695, 702.) The ICWA includes specific notice requirements, providing “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 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 federal ICWA notice provisions are incorporated into California law. (See §§ 224–224.3.) “[T]he juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement.” (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.)
In order to comply with the ICWA notice requirements, the Department must notify the child’s tribe, by registered mail with return receipt requested, of the pending proceedings and its right to intervene. (25 U.S.C. § 1912(a).) If there is more than one possible tribal affiliation, the Department must provide notice to each tribe through the tribe’s chairperson or its designated agent for service of process, as published in the Federal Register. (In re H. A. (2002) 103 Cal.App.4th 1206, 1213; 25 U.S.C. § 1912(a); § 224.2, subd. (a); Cal. Rules of Court, rule 5.481(b)(4).)
An ICWA notice must include all required information, including the child’s name, date of birth, and place of birth; the name of the tribe or tribes in which the child is enrolled or in which the child may be eligible for enrollment; the names, and current and former addresses, of the child’s biological parents, grandparents and great grandparents, along with the birth dates, places of birth and death, and tribal enrollment numbers, and/or other identifying information; and a copy of the petition, complaint or other document by which the proceeding was initiated. (25 C.F.R. § 23.11(a), (d) & (e); § 224.2, subd. (a)(5).)
When an ICWA notice contains insufficient information, it is effectively meaningless. (In re D. T. (2003) 113 Cal.App.4th 1449, 1455.) Because the failure to give proper notice forecloses participation by interested Indian tribes, the ICWA notice requirements are strictly construed, and strict compliance is required. (In re Desiree F. (2000) 83 Cal.App.4th 460, 474–475.) “Courts have held that without discharging their duty to provide the notice required under the ICWA, state courts do not have jurisdiction to proceed with the dependency proceedings. [Citations.] Thus the failure to provide proper notice is prejudicial error requiring reversal and remand. [Citations.]” (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.)
As the Department concedes, the record shows it did not comply with the ICWA notice requirements as the notices either incorrectly stated or omitted information about H.B.’s relatives that could have helped identify tribal membership. Specifically, despite the Department’s knowledge of correct information pertaining to the maternal grandmother, the notices erroneously listed the maternal grandmother’s middle name as “Juanita” instead of “Juanelle,” failed to provide an address for her and failed to reflect that she was claiming Cherokee heritage. Moreover, the Department learned that Mother’s biological parents had some Indian heritage, but failed to include such information in the notices. Finally, the notices incorrectly identified the pertinent proceeding as a jurisdictional/dispositional hearing. (See § 224.2, subd. (a)(5)(G).)
We do not intend to suggest that an investigation into an adopted parent’s biological heritage is required for the purpose of the ICWA in all instances. Here, the Department had received a copy of a letter from the County of Los Angeles Department of Adoptions stating that Mother’s biological mother was “one-sixth American Indian.” Under these unique circumstances, the Department was required to include this information in the notices to enable the tribes and the BIA to investigate and determine whether H.B. is an “Indian child.” (See In re Gerardo A. (2004) 119 Cal.App.4th 988, 995 [“Because the record reveals that the department possessed identifying Indian heritage information and it did not share that information with one or more tribes of whom a dependent child could be a member, we cannot conclude the department’s effort to serve notice satisfied ICWA”].)
In view of the errors and omissions in the ICWA notices, the juvenile court erred in finding that the ICWA did not pertain to H.B. (In re Gerardo A., supra, 119 Cal.App.4th at p. 996; In re H. A., supra, 103 Cal.App.4th at p. 1211.) “Where there is reason to believe a dependent child may be an Indian child, defective ICWA notice is ‘usually prejudicial’ [citation], resulting in reversal and remand to the juvenile court so proper notice can be given. [Citations.]” (In re Nikki R., supra, 106 Cal.App.4th at p. 850.) Accordingly, we must reverse the order terminating parental rights and remand the matter for the limited purpose of effectuating proper ICWA notice. If H.B. is neither a member of nor eligible for membership in a tribe, the juvenile court must reinstate the order terminating parental rights. If H.B. is an Indian child, then the juvenile court must proceed in accordance with the ICWA.
II. The Juvenile Court Properly Exercised Its Discretion in Denying a Hearing on Father’s Section 388 Petition.
The court in In re Anthony W. (2001) 87 Cal.App.4th 246, 250, described what must be shown to warrant a hearing on a section 388 petition: “The parent seeking modification must ‘make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]’ (In re Marilyn H. (1993) 5 Cal.4th 295, 310; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1412–1414.) There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) If the liberally construed allegations of the petition do not show changed circumstances such that the child’s best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) We review the juvenile court’s summary denial of a section 388 petition for abuse of discretion. (In re Jeremy W., supra, 3 Cal.App.4th at p. 1413.)”
Father’s section 388 petition did not make an adequate prima facie showing triggering any right to a hearing. With respect to changed circumstances, Father alleged and attached reports confirming that he had been participating in a treatment program and had 25 negative drugs tests during the prior six-month period. But this information mirrored Father’s progress during an earlier six-month period immediately preceding his positive test, when he was characterized as “an active and motivated participant within treatment” and had 24 negative drug tests. A section 388 modification request must be viewed in the context of the dependency proceedings as a whole. (In re Marilyn H. (1993) 5 Cal.4th 295, 307; In re Heather P. (1989) 209 Cal.App.3d 886, 891.) Given Father’s history of periods of compliance alternating with periods of relapse, the juvenile court was within its discretion to conclude that Father’s most recent period of compliance was not a changed circumstance.
In any event, the juvenile court premised its hearing denial on the second prong of the requisite prima facie showing—that a change of order would not be in H.B.’s best interests. “[S]ection 388 makes clear that the hearing is only to be held if it appears that the best interests of the child may be promoted by the proposed change of order, which necessarily contemplates that a court need not order a hearing if this element is absent from the showing made by the petition.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 807.) Relevant to H.B.’s best interests, the petition alleged that the “child would be reunified with a biological parent.” But the petition failed to demonstrate how reunification was in H.B.’s best interests.
In In re Zachary G., supra, 77 Cal.App.4th at page 808, the court upheld a summary denial of a mother’s section 388 petition because there was no showing that the proposed change of order was in the child’s best interests: “The court here declined to order a hearing because it concluded that although Mother’s petition contained evidence of changed circumstances, there was no evidence or allegations that it was in [the child’s] best interests to return him to Mother’s custody. We find no abuse of discretion in the court’s ruling. Although there was evidence of changed circumstances, the petition did not show, and there was no independent evidence from Mother’s therapist or expert showing, that Mother was immediately ready to take custody of [the child] on a permanent basis. More importantly, Mother’s allegations did not show, and there was no independent evidence . . . that it was in [the child’s] best interests to be removed from the only home and caretakers he had ever known, and thereby be deprived of the stability of a permanent home, in order to be returned to a parent who remained a risk . . . .”
In In re Anthony W., supra, 87 Cal.App.4th 246, the court similarly upheld the juvenile court’s denial of a hearing on a section 388 petition. The court stated: “Most important, mother’s petition does not demonstrate how a change in the order would be in the best interest of these children. [Citation.] At this point in the proceedings, on the eve of the selection and implementation hearing, the children’s interest in stability was the court’s foremost concern, outweighing any interest mother may have in reunification. [Citation.] Mother made no showing how it would be the children’s best interest to continue reunification services, to remove them from their comfortable and secure placement to live with mother who has a long history of drug addiction and a recurring pattern of domestic violence in front of the children. The children should not be made to wait indefinitely for mother to become an adequate parent. [Citation.]” (In re Anthony W., supra, at pp. 251–252.)
Likewise, notwithstanding Father’s assertion that he believed it would be in H.B.’s best interests to reunify with him, the juvenile court acted within its discretion in concluding that the petition failed to make a prima facie showing how it would be in H.B.’s best interests to return her to Father or reinstate reunification services. By the time Father filed his section 388 petition—on the same date set for the permanency planning hearing—H.B’s “interest in stability was the court’s foremost concern and outweighed any interest in reunification. [Citation.]” (In re Edward H. (1996) 43 Cal.App.4th 584, 594.) A change of order would not have promoted H.B.’s stability and thus would not have promoted her best interests. (Ibid.) The juvenile court acted within its discretion in summarily denying the petition.
III. Substantial Evidence Supported the Findings Made at the Section 366.26 Hearing.
In order to terminate parental rights and select and implement adoption as the permanent plan at the section 366.26 hearing, the juvenile court must find by clear and convincing evidence that it is likely the child will be adopted. (§ 366.26, subds. (b)(1) & (c)(1); In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.) The Department bears the burden of showing adoptability. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1560.) If the Department meets its burden, the parent then has the burden to show by a preponderance of the evidence “a compelling reason for determining that termination would be detrimental to the child” under one of four specified exceptions, including that “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A); see also In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343–1345.) Absent evidence that termination would be detrimental to the child, the juvenile court “shall terminate parental rights . . . .” (§ 366.26, subd. (c)(1).)
We review the juvenile court’s findings under section 366.26 for substantial evidence. (E.g., In re Autumn H. (1994) 27 Cal.App.4th 567, 575; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) Under the substantial evidence test, “[i]t is the trial court’s role to assess the credibility of the various witnesses, to weigh the evidence to resolve the conflicts in the evidence. We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence.” (In re Casey D. (1999) 70 Cal.App.4th 38, 52–53.) Rather, we must presume in favor of the order and consider the evidence in the light most favorable to the Department as the prevailing party. (In re Autumn H., supra, at p. 576.)
Father does not challenge the juvenile court’s adoptability finding, but rather, contends that he met his burden to establish the exception to termination in section 366.26, subdivision (c)(1)(A). The juvenile court concluded that Father did not meet his burden to show that he had occupied such a role in H.B.’s life that it would be detrimental to H.B. to terminate parental rights.
In In re Autumn H., supra, 27 Cal.App.4th 567, the court explained that the circumstances triggering application of section 366.26, subdivision (c)(1)(A) must be evaluated on a case-by-case basis, “taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child’s particular needs are some of the variables which logically affect a parent/child bond.” (In re Autumn H., supra, at p. 576.) The court further acknowledged that an “incidental benefit” from the relationship is insufficient; rather, “[t]he exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.” (Id. at p. 575; see also In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418 [“frequent and loving contact” insufficient to establish benefit from continuing the parent/child relationship].) Importantly, the relationship must “meet the child’s need for a parent.” (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
Once it has evaluated the nature of the relationship between the parent and child, the juvenile court must then determine whether “the relationship promotes 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.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord, In re Cliffton B. (2000) 81 Cal.App.4th 415, 425; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1342.) This balancing is necessary because “a child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the child’s need for a parent. It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship.” (In re Jasmine D., supra, at p. 1350.)
The evidence here showed that Father had maintained regular visitation and contact with H.B. Father had visited with H.B. consistently throughout the proceedings and, by the time of the section 366.26 hearing, was having a monitored visit once a week for a six-hour period. The monitor reported that “the child [H.B.] knows her birth family. She smiles and appears excited to see them each week and also appears to have more attachment to the birth father.” At the section 366.26 hearing, Father testified about the visits, stating that he and Mother generally played with, fed and took a nap with H.B. H.B. called Father “dad” or “daddy.”
Despite evidence of regular visitation and contact, however, there was no evidence demonstrating that Father’s attachment to H.B. conferred more than an incidental benefit to her. As explained in In re Autumn H., supra, 27 Cal.App.4th at page 575: “Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.” (See also In re Angel B., supra, 97 Cal.App.4th at p. 468 [“for the exception [under § 366.26, subd. (c)(1)(A)] to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt”]; In re Beatrice M., supra, 29 Cal.App.4th at p. 1418 [“frequent and loving contact” insufficient to establish the “‘benefit from a continuing relationship’ contemplated by that statute”].)
While Father testified that he had a “close bond” with H.B., there was no evidence that he ever occupied a parental role in her life. (See In re Beatrice M., supra, 29 Cal.App.4th at p. 1419.) H.B. was detained one week after she was born and had never lived with Father. Moreover, H.B. had a strong bond with her foster parents who were ready and willing to adopt her. Under these circumstances, we are guided by In re Cliffton B., supra, 81 Cal.App.4th 415, where the appellate court affirmed the juvenile court’s refusal to apply the section 366.26, subdivision (c)(1)(A) exception, despite evidence that the father had maintained weekly visitation and had a warm, affectionate relationship with the child. The court explained: “Admittedly, this is a very close case. Considering the artificial restraints created by monitored weekly visitation, [father] has maintained a significant relationship with Cliffton. But Autumn H. teaches that the juvenile court must engage in a balancing test, juxtaposing the quality of the relationship and the detriment involved in terminating it against the potential benefit of an adoptive family. Cliffton is young and has adjusted well to his foster family, who are willing to adopt him. . . . The juvenile court balanced this potential benefit against the risk that returning him to [father] would result in another disruption in his life, further eroding his ability to develop trust and to bond with others. Substantial evidence supports the court’s conclusion, and we will not disturb it.” (In re Cliffton B., supra, 81 Cal.App.4th at pp. 424–425.)
Likewise, substantial evidence supports the juvenile court’s conclusion that Father’s relationship with H.B. did not satisfy the requirements of section 366.26, subdivision (c)(1)(A). H.B. had lived with her prospective adoptive parents since she was six months old. She had a strong emotional attachment to them and they wanted to provide her with a permanent home. H.B. “appeared to be very happy, is openly affectionate and at ease in the company of her caregivers.” “The juvenile court may reject the parent’s claim [under section 366.26, subdivision (c)(1)(A)] simply by finding that the relationship maintained during visitation does not benefit the child significantly enough to outweigh the strong preference for adoption.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) Substantial evidence supported the juvenile court’s finding that Father’s relationship with H.B. did not outweigh the benefits of permanency and stability H.B. would achieve through adoption.
DISPOSITION
The order terminating parental rights is reversed and the matter is remanded for the limited purpose of directing the Department to comply promptly with the notice provisions of the ICWA by sending complete and accurate information to the tribes, the Department of the Interior and the BIA. Once the juvenile court determines that the tribes were properly noticed and there either was no response or the tribes determined that H.B. is not an Indian child, the order shall be reinstated. If, however, a tribe determines that H.B. is an Indian child and the court determines the ICWA applies to this case, the juvenile court is ordered to conduct a new section 366.26 hearing in conformance with all provisions of the ICWA. The order denying Father’s section 388 petition is affirmed.
We concur: BOREN, P. J., CHAVEZ, J.