Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIJ115054, Charles J. Koosed, Judge.
Teri A. Kanefield, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Minors.
OPINION
Gaut, J.
1. Introduction
Two children, J.C., born in 2004, and H.C., born in 2007, are the subject of this appeal. The children were first detained after H.C. was born and tested positive for drugs. Father had been in prison since January 2007. Both parents had criminal and drug histories. The court terminated reunification services in May 2008 and parental rights in October 2008.
Father challenges the juvenile court’s orders denying his Welfare and Institutions Code section 388 petition and terminating his parental rights. Father also questions the compliance with the Indian Child Welfare Act (ICWA), 25 United States Code section 1901 et seq. We agree that ICWA notice was not adequate. We remand for that limited purpose and we reject father’s other contentions.
All statutory references are to the Welfare and Institutions Code.
We grant father’s motion to consider additional evidence. (Code Civ. Proc., § 909; Cal. Rules of Court, rule 8.252(b).)
2. Factual and Procedural Background
The Riverside County Department of Public Social Services (Department) filed the original dependency petition in August 2007, alleging both children were at risk of harm for failure to protect because of mother’s drug use and father’s incarceration. (§ 300, subd. (b).) Hunter had tested positive for amphetamine at birth and mother had tested positive for amphetamine and methamphetamine. Mother admitted using drugs during this pregnancy and earlier pregnancies. She had started using marijuana at age 14 or 19 and methamphetamine at age 25. Father was incarcerated at the time of Hunter’s birth.
Mother has three other children, one with father, who are not subject of this appeal. The other children live with maternal relatives who are their legal guardians. Parents had a history of previous dependency referrals in 2005 and 2006.
Mother’s criminal history includes vandalism and domestic violence. Father’s criminal history includes vehicle and drug offenses. At the detention hearing, father was still incarcerated. Mother denied that either parent had Indian ancestry. The court ordered the children detained and found that ICWA did not apply. The court ordered Judicial Council Form JV-130, Parental Notification of Indian Status, to be completed and filed with the court. Apparently, that was never done.
The version of the form which became effective January 1, 2008, is ICWA-020.
At the jurisdiction hearing in September 2007, the court found the petition true by a preponderance of the evidence, removed the children from parents’ custody, and ordered reunification services.
The status review report in March 2008 described mother having no permanent residence and no employment or vehicle. Mother was not complying with her case plan, including drug testing. Mother was not in contact with father but she was planning to reunite with him in July 2008 upon his release from prison. Mother was also not in compliance with the terms of her probation.
Father had been in prison since January 2007, serving a three-year term. His possible release date was July 16, 2008. Father expressed his belief that he had changed and he wanted to leave prison and reunify with mother and the children. Father had participated in some drug testing but not parenting or substance abuse programs while in prison.
The children were in a successful placement with the maternal grandmother and they were having visits with mother. Father had talked to J.C. on the phone.
The Department recommended termination of reunification services and adoption by the maternal grandmother as the permanent plan.
In May 2008, the Department reported mother had stopped visiting the children after March 2008. Mother had requested the children remain with the maternal grandmother. The children could not be returned to father who was still in prison and planning to enroll in a sober-living program upon his release.
At the hearing on May 12, 2008, father asked the court to continue reunification services. The court found there was not a substantial probability of reunification, terminated services, and set a section 366.36 hearing.
After May 2008, mother ceased contact with the Department. In August 2008, father had been released from prison and enrolled in a six-month Salvation Army inpatient substance abuse program, allowing no outside contact for the first 30 days.
On October 16, 2008, father filed a JV-180 form (request to change order) stating that father had completed parenting education classes and was enrolled in the Salvation Army program to be completed in February 2009. Father asked for reinstatement of six months of reunification services. Father’s request was supported by the paternal uncle’s declaration describing a meeting between father and J.C. and father’s effort to find work.
The court denied the request, finding it did not state new evidence or a change of circumstances and was not in the best interests of the children. The court cited the young age of the children and their compelling need for permanence. The court terminated parental rights and made an order for adoption to be the permanent plan.
Father appeals.
3. ICWA
California Rules of Court, rule 5.481, subdivisions (a)(2) and (3), requires the court to order a parent to complete ICWA-020, the form for parental notification of Indian status. Although mother said neither parent claimed Indian ancestry, the record does not contain a completed form by either parent. Father now submits his declaration in which he claims a paternal history of Cheyenne and Choctaw heritage. Father argues the case must be reversed for compliance with ICWA. (In re Jonathan S. (2005) 129 Cal.App.4th 334, 342.)
We review the juvenile court’s factual findings in the most favorable light. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.) The absence of the completed form does not necessarily mean the ICWA inquiry was fatally deficient. During the year of proceedings below, father never challenged the court’s determination that ICWA does not apply. On the other hand, the record does not demonstrate the Department made any inquiry of father about his Indian heritage and now he is asserting he does have Indian ancestry.
Under ICWA, when a child subject to a dependency proceeding is or might be an Indian child, as that term is defined in the act, each tribe of which the child might be a member or eligible for membership must be notified of the dependency proceeding and of the tribe’s right to intervene in the proceeding. If the identity of the tribe cannot be determined, notice must be sent to the Secretary of the Interior through the Bureau of Indian Affairs (BIA). (25 U.S.C. § 1912; Cal. Rules of Court, former rule 1439(f).) If proper notice under ICWA is not given, the child, the parent, or the tribe may petition the court to invalidate the proceeding. (25 U.S.C. § 1914; Cal. Rules of Court, former rule 1439(n).)
The purposes of ICWA are to protect the interests of Indian children and to promote the stability and security of Indian tribes and families. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) The court and Department have an affirmative duty to inquire whether a dependent child is or may be an Indian child. (Cal. Rules of Court, former rule 1439(d).) Moreover, it is up to the party seeking to terminate parental rights to notify the BIA or the tribe in order to determine the child’s ICWA eligibility. (In re Marinna J. (2001) 90 Cal.App.4th 731, 734-735.) The Indian status of the child does not need to be certain for the notice provisions to apply. (In re Jonathan D. (2001) 92 Cal.App.4th 105, 110.) The duty to give notice under ICWA arises when there is information suggesting the child is either a member of a tribe or eligible for membership and is the child of a tribe member. (25 U.S.C. § 1912(a); In re Samuel P. (2002) 99 Cal.App.4th 1259, 1265.)
Among other things, ICWA requires proper notice before the juvenile court may terminate parental rights to an Indian child. The courts of this state have declared this notice requirement to be a “key component” of ICWA. The purposes of ICWA cannot be fulfilled unless proper notice is given to either the identified Indian tribe or the BIA. (In re C.D. (2003) 110 Cal.App.4th 214, 224.)
Failure to provide notice in a manner consistent with ICWA mandates reversal. (Adoption of Lindsay C. (1991) 229 Cal.App.3d 404, 416; In re Junious M. (1983) 144 Cal.App.3d 786, 796.) “Notice is mandatory, regardless of how late in the proceedings a child’s possible Indian heritage is uncovered. [Citations.]” (In re Kahlen W., supra, 233 Cal.App.3d at p. 1424.) “The ICWA confers on tribes the right to intervene at any point in state court dependency proceedings.” (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253.) However, the tribe’s right to intervene in the proceedings is meaningless if the tribe has not received notice of the pending action. (Ibid.) In this case, where no notice was given, the error cannot be considered harmless and we will remand the matter. (In re Rayna N. (2008) 163 Cal.App.4th 262, 268.)
4. Section 388 Petition
Father was in prison throughout most of the dependency proceedings between August 2007 and July or August 2008. By the time he was released, reunification services had been terminated. At that point, the focus of the juvenile court’s analysis shifted from father’s interest in custody of the children to the needs of the children for permanency. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
Father had the burden of proof to show a changed order was warranted. (In re Audrey D. (1979) 100 Cal.App.3d 34, 43.) The appellate court conducts a review for abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at p. 316.)
Father argues for an independent standard of review, asserting that the juvenile court relied on the timeliness of the petition as an improper factor, that there are no disputed facts, and that the petition was based wholly on documentary evidence. We reject these assertions.
The record demonstrates the juvenile court did not deny the petition based on timeliness. Instead, the court accepted the petition for filing and consideration. The court denied the petition on the merits.
In making its findings, the juvenile court considered the nature of the alleged circumstances, the ease of the changes, and why father had not made changes previously. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-531.) The court recognized father was trying to effect changes but he had been inhibited by his incarceration. The court concluded that it was too little and too late, especially in view of the young age of the children and the length of the dependency.
Contrary to father’s second and third arguments about an independent standard of review, the foregoing demonstrates the juvenile court’s decision was based on subjective, discretionary factors, not undisputed facts and documents. Therefore, the standard of review is abuse of discretion.
In applying the proper standard of review, we uphold the juvenile court. Before he went to prison, father countenanced mother’s ongoing drug use and her neglect of her children. Father’s incarceration stemmed from his criminal activities, including the abuse of illegal drugs. Father had rendered himself unable to care for his children. Father had no relationship with H.C., who was born after father was imprisoned. His relationship with J.C. was limited to some phone calls, letters, and a single visit. Although father had been released from prison, he did not have a job or a stable residence. He continued to be unavailable for his children because he had to seek lengthy rehabilitation for substance abuse. In other words, father had not demonstrated changed circumstances justifying relief. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
Furthermore, father made no showing a change of orders would serve the children’s best interests. (In re Casey D., supra, 70 Cal.App.4th at p. 47; In re S.J. (2008) 167 Cal.App.4th 953, 959.) Father’s single post-prison visit with J.C. was not enough to prove a bond. Father’s conduct as a parent was entirely inadequate. His criminal lifestyle “evidenced a lack of interest in the children because his incarceration precluded a full commitment to his parental responsibilities.” (In re Justice P. (2004) 123 Cal.App.4th 181, 192.)
As this court observed in In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081, the court did not abuse its discretion in denying the “section 388 petition[] based on the absence of changed circumstances or the children’s best interests.” Although father was exerting himself to improve, he did not demonstrate changed circumstances. Even if father had succeeded in doing so, “there was no showing whatsoever of how the best interests of these young children would be served by depriving them of a permanent, stable home in exchange for an uncertain future.” (Ibid.)
5. Disposition
The order terminating parental rights is conditionally reversed, and a limited remand is hereby ordered, as follows. The Department shall conduct inquiry of father and give all appropriate notices under ICWA.
If the juvenile court finds that the children are Indian children, it shall set a new section 366.26 hearing and conduct all further proceedings in compliance with ICWA and related federal and state law. If the juvenile court finds that the children are not Indian children, it shall reinstate the original order terminating parental rights.
We concur: McKinster, Acting P. J., King, J.