Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. J34687
Haerle, J.
I. INTRODUCTION
Derrick J., the father of Julian J., appeals from the juvenile court’s orders denying appellant’s Welfare and Institutions Code section 388 petition to reinstate reunification services and terminating his parental rights. Appellant contends that an additional six months of services would be in Julian’s best interest and that the beneficial relationship exception to termination is applicable. These arguments have no merit. We will, however, reverse the orders to allow the juvenile court to fully comply with the notice requirements of the Indian Child Welfare Act (ICWA).
All further unspecified statutory references are to the Welfare and Institutions Code.
Amanda J. is Julian’s mother. Her section 388 petition was also denied by the juvenile court and her parental rights were terminated. She has filed no appeal in this matter.
II. FACTUAL AND PROCEDURAL BACKGROUND
Julian J. was born in December 2002. On May 3, 2004, the Solano County Health and Human Services Department (Department) filed an original petition pursuant to section 300, subdivisions (a), (b), (c), and (e). The petition was based on a referral the Department received on April 29, 2004, in which the reporting party indicated that Julian sustained burns after appellant placed him in a bathtub with water that was too hot. Julian suffered second and third degree burns and resulting blisters on his buttocks, right leg and right foot. The Department placed him in protective custody.
The petition specifically alleged:
The family had a prior CPS history, including allegations of general neglect. In addition, on November 14, 2003, the Department received a referral alleging physical abuse after Julian was taken to the hospital for burns on the left side of his body to his ear, face, arm, knee and leg. Appellant reported that he spilled hot water on Julian. The Department determined, based on the parents’ account of how the injury occurred and the fact that they sought medical treatment, that the allegation was unfounded. On November 26, 2003, the Department received a referral reporting that Amanda J. was heard telling appellant to “stop hitting the baby.” The reporting party said Julian had previously been taken to the hospital for seizures. Following an investigation, the Department determined that the allegation of physical abuse was unfounded.
At the detention hearing on May 4, 2004, appellant indicated that he might possibly be of Apache ancestry, but he was not sure. That month, the Department sent notices pursuant to ICWA to a number of Apache tribes as well as to the Bureau of Indian Affairs (BIA). The notices included the names and birthdates of Julian and his mother, but did not include appellant’s name or any other information about him or his family.
On July 28, 2004, appellant submitted to the petition as amended. The juvenile court sustained the petition and found that Julian was a person described by section 300, subdivision (b).
Appellant submitted to the following sustained petition allegations:
The report for the August 12, 2004, dispositional hearing stated that appellant was convicted of cruelty to a child in connection with the incident that resulted in the filing of the petition in this matter. One of the terms of appellant’s probation was to complete a 52-week parenting class. The report stated that Julian had been placed in a foster home and was adjusting well. The foster family expressed interest in adopting Julian if the parents failed to reunify.
Appellant was not present at the dispositional hearing on August 12, 2004. Since the Department was offering services, appellant’s counsel submitted on his behalf with 10 days leave to recalendar. The juvenile court signed the dispositional findings and orders on August 12, 2004, finding by clear and convincing evidence that there was a substantial danger to Julian’s physical health and safety, and that there were no reasonable means by which his physical health could be protected without removing him from the custody of his parents. The court ordered reunification services for the parents.
The report for the January 5, 2005, six-month review hearing stated that the parents were homeless, had no physical address, and were staying in a vehicle with appellant’s brother. The parents maintained consistent weekly visitation with Julian, but both mother and appellant exhibited deficiencies in their parenting skills. Specifically, it was noted in the report that the parents continued to exhibit a lack of awareness of environmental hazards to Julian, inadequate knowledge of age appropriate development, and insufficient supervision. Although Julian appeared to be well bonded to his parents, appellant was observed to be somewhat of a “bully to Julian” by intentionally irritating Julian despite the child’s gestures of annoyance and frustration. Both parents required constant monitoring and redirection during their visits. At the time of the report, both parents had completed a 21-hour parenting class. Appellant was in the process of completing a 52-week parenting class pursuant to the terms of his probation. Despite these classes, appellant continued to need services to strengthen his parenting skills. Dr. Lilia Salazar, a psychologist who examined both parents, felt that both parents could benefit significantly from direct parenting guidance and supervision due to their immaturity and inexperience.
Julian was described as “a cute two year old toddler” and “a happy and energetic child.” A developmental specialist determined that he demonstrated “below average skills in all areas of development,” with particular concerns noted in his fine motor, language, restricted range of emotions, reciprocal engagement and representational play skills. Julian had been placed in a fost/adopt home on June 15, 2004. The status report indicated that Julian was doing well in his placement and was exceptionally bonded to his foster parents. The report also indicated that it was in Julian’s best interest to remain in his current placement as the concurrent plan was adoption if his parents failed to reunify with him. Julian had no unmet needs and was deemed highly adoptable. Julian’s foster family expressed their desire to adopt Julian if the parents failed to reunify.
Neither parent was present at the six-month review hearing on January 5, 2005. The parents’ attorneys submitted on their behalf. The court adopted the recommendations of the Department and extended reunification services for six more months. The case was set for a status review on June 21, 2005.
The 12-month status review report prepared for the June 21, 2005, hearing stated that both parents had received additional parenting and hands-on skills training, but that both continued to exhibit deficiencies in their parenting skills. At one visit, appellant did not seem concerned about Julian’s falling off a slide. There were times when Julian stepped down and fell to the ground head-first during a visit with his parents. On other occasions, the parents were observed playing computer games while Julian played by himself. During another visit, appellant placed Julian on a regular chair instead of a high chair and the supervising social worker had to catch Julian from falling backwards off the chair. On a different visit, Julian fell from the high chair. Appellant was looking at some pictures on his cell phone and did not get up to check on Julian, but rather let the mother take care of him.
The social worker identified “risks preventing reunification” as “the child’s young age and vulnerability, the uncertainty about the parents’ ability to recognize and provide safety for the child’s well-being, as well as their own personal functioning; [and appellant]’s minimizing the reasons for the child’s removal from the home.” Appellant stated to the social worker that he did not remember “the details of what happened to involve Child Protective Services in their lives.” The social worker acknowledged the parents’ compliance with their case plans and stated desire to reunify with Julian. However, due to “the uncertainty of their ability to keep the child safe, the continued need for intense supervision of in-home care, and the lack of time for continued services,” the Department recommended termination of services and setting the matter for a section 366.26 hearing.
Julian was under the age of three at the time of his initial out-of-home placement, and the parents had received 12 months of services.
An adoptability review was conducted in February 2005. Julian was deemed highly adoptable. The maternal grandmother expressed interest in obtaining guardianship of Julian and then allowing one of her sisters in Michigan to adopt him. The social worker told her this would be too many moves for Julian and that he needed stability in his life. The current foster family had provided for Julian for a year and continued to express the desire to adopt him if reunification failed.
The parents requested a hearing, which was heard on October 27, 2005, after numerous continuances and a change of mother’s counsel. The reporting social worker testified that after more than 12 months of parenting instruction by Child Haven and welfare department personnel, the parents were not able to demonstrate an ability to apply what they learned from parenting classes during their supervised visits with Julian. The Department contended that reasonable services had been provided and the parents did not make substantive progress in addressing the issues of Julian’s safety. The parents argued that reasonable services had not been provided. The court took the matter under submission.
On November 10, 2005, the juvenile court issued its ruling adopting the recommendations of the Department and terminating services to the parents. The matter was set for a section 366.26 hearing on March 2, 2006.
On November 14, 2005, appellant filed a Notice of Intent to File Writ Petition and Request of Records. On January 26, 2006, the filing of the record was stricken for failure to timely file a petition for extraordinary writ.
The Department filed a section 366.26 Permanency Planning Hearing/Adoptability Review Report on February 21, 2006, for the hearing on March 2, 2006. The Department’s recommendation was to terminate parental rights. The social worker reported that Julian was receiving speech therapy services and was “experiencing global delays in all areas of development;” that Julian had a difficult time communicating his needs and desires which led to frustration and temper tantrums. Relatives had been ruled out as potential placements for Julian.
The report detailed five months of visits between Julian and his parents. Of 21 available visits, the parents had attended 20 and were late for six of them. The social worker opined that, although Julian appeared comfortable during visits with his parents, the interaction was not “significant enough to make a determination that there is a strong parent-child bond.” Julian had been in the same foster placement since June 2004, and the foster parents continued to express interest in adopting Julian. The social worker indicated that there was a high probability that the foster parents, who had previously adopted another child, would be approved for adoptive placement if Julian were freed for adoption.
On May 12, 2006, appellant filed a JV-180 Request to Change Court Order. He asserted that the changed circumstances were “his ability to care for the basic needs of the child;” his completion of a psychological evaluation; and his participation in the Responsible Fathers program. He also stated that he and Julian’s mother were divorcing. Appellant asserted that reinstatement of family reunification services was in Julian’s best interest because Julian was very attached to his father and services would strengthen that bond; and appellant had made “significant changes . . . that increase the probability of successful reunification . . . .” The juvenile court granted a hearing which was consolidated with the section 366.26 hearing.
The contested section 366.26 hearing and the hearing on appellant’s petition were held simultaneously on June 26, 2006. The reporting social worker, Cindy Halliday, testified that Julian had been in foster care for 25 months, and that she continued to recommend freeing Julian for adoption. Her assessment was based on reviewing the case file and social worker notes, observing the interaction between Julian and his parents and Julian and his foster parents, and speaking with the foster parents, birth parents, and service providers.
Ms. Halliday did not recommend that Julian be returned to appellant because appellant had only re-engaged with the Responsible Fathers program in March. Appellant’s mood had seemed to have stabilized due to medication, but the visits with Julian were still supervised. She acknowledged that she was “a little conflicted about the relationship he has with his father.” Ms. Halliday had observed that Julian sought comfort from his father during visits, but stated that she had witnessed the same type of interaction with his foster parents. She felt that Julian had at least as strong a bond, if not stronger, with his foster parents as with his father.
Based on her experience having worked with over 300 families as a social worker, Ms. Halliday did not believe it was in Julian’s best interest to reinitiate reunification services because 25 months had passed and Julian needed “the opportunity to move on with his life.”
Ms. Halliday testified that she spoke with the foster mother who indicated that, if Julian were freed for adoption, she would welcome contact with the parents “as long as it was in Julian’s best interest” and “the parents could get along and be respectful . . . .” The foster mother told her that appellant had been “hostile towards the foster father, and they [were] a bit concerned about that continuing.” Ms. Halliday testified that if parental rights were terminated, the foster parents would be able to adopt Julian. She had no concerns about their being approved as adoptive parents because they had adopted before. The foster parents indicated that they would in fact adopt Julian and were committed in maintaining a permanent home for Julian and meeting all his needs.
On cross-examination, Ms. Halliday testified that, during visits, the parents exhibited appropriate behavior, and Julian was happy to see his parents and enjoyed the visits. Julian had called them “mommy and daddy,” and interacted affectionately with them. She testified that it was significant that Julian went to his father for comfort and fell asleep in his arms.
Appellant testified that after reunification services were terminated in November 2005, he completed an assessment with Solano County Mental Health, attended meetings with the Responsible Fathers program, attended visits with Julian, worked on providing a suitable living environment, and stayed active and able to take care of his responsibilities. He began taking medication for depression and noticed a positive change in how he felt, including having more energy to work two jobs. He also testified that he had had support from his church for the past two years, he had a history of mental health problems that dated back to high school, and he had previously had a psychological evaluation in order to qualify for supplemental social security income because of depression. He stated that he did not attend Responsible Fathers from June 2005 to March 2006 because a social worker had told him that the program was going to close due to lack of funding. He was unaware of the program’s re-opening.
After hearing testimony from Ms. Halliday, appellant, and Julian’s mother, and arguments by counsel, the juvenile court took the matter under submission. On July 7, 2006, the court filed its ruling denying the section 388 petitions of both parents to reinstate reunification services: “Although the circumstances of each parent before the court has changed to a degree and for the better, neither parent has ultimately addressed the issues that brought the minor before this court nor alleviated the risk of returning the minor to their individual care. Even assuming it was appropriate to reinstate services under this showing, it would not be possible to find that there was a reasonable likelihood that the minor could be returned to either parent with the addition of six more months of services.” The court found clear and convincing evidence that it was likely that Julian would be adopted, and terminated the parental rights of both parents.
Appellant timely appealed on September 6, 2006.
III. DISCUSSION
A. The Denial of Appellant’s Motion Seeking to Reinstate Reunification Services
Appellant contends the juvenile court abused its discretion in denying his section 388 petition for further reunification services. Appellant asserts he showed changed circumstances and that further services would be in Julian’s best interests.
Under section 388, a parent in a dependency proceeding may petition the court to change, modify or set aside any previous court order. (§ 388, subd. (a).) A parent attempting to modify or change a previous order has the burden of showing, by a preponderance of the evidence, that there is a change in circumstances or new evidence, and that the proposed change is in the child’s best interests. (§ 388, subds. (a) & (c); In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) Whether a previous order should be modified and a change would be in the child’s best interests are questions within the sound discretion of the juvenile court, and its decision will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) When two or more inferences reasonably can be deduced from the facts, we have no authority to reweigh the evidence or substitute our decision for that of the trial court. (In re Stephanie M., supra, 7 Cal.4th at p. 319.) The denial of a section 388 petition rarely merits reversal as an abuse of discretion. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 522.)
When a section 388 petition is filed after reunification services have been terminated, the juvenile court must recognize a shift of focus in determining the best interests of the child. (Stephanie M., supra, 7 Cal.4th at p. 317.) “After the termination of reunification services, the parents’ interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point ‘the focus shifts to the needs of the child for permanency and stability’ [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.]” (Ibid.)
Appellant testified that after reunification services were terminated, he completed a mental health assessment, attended meetings with the Responsible Fathers program, attended visits with Julian, worked on providing a suitable living environment, and stayed active and able to take care of his responsibilities. He also began taking medication for depression, and noticed a positive change in how he felt, including having the energy to work two jobs. He testified that he had had a lot of support from his church for the past two years. He further testified that his history of mental health problems dated back to high school, that he had been on medication before, and that he had previously completed a psychological evaluation in order to qualify for supplemental social security income because he had previously been depressed.
In his briefs on appeal, appellant also relies on information contained in the social worker’s report that was prepared for the 12-month status review, such as appellant’s participation in a parenting class and his compliance with various elements of his case plan. However, this information was before the court when it terminated reunification services. It does not support a contention of “changed circumstances.”
The juvenile court acknowledged appellant’s progress, but determined that this was not sufficient evidence of changed circumstances. We discern no abuse of discretion. The evidence reflects that appellant’s “circumstances were changing, rather than changed . . . .” (In re Casey D. (1999) 70 Cal.App.4th 38, 49.) Appellant was addressing some of the goals outlined in his case plan, but had not addressed the issues that brought the family into the dependency system. Service providers had no basis upon which to find that Julian would be safe in appellant’s care outside of a supervised visitation setting. A petition that alleges merely changing circumstances does not promote stability for the child or the child’s best interests because it would mean delaying the selection of a permanent home to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point. (Id. at p. 47.) “Childhood does not wait for the parent to become adequate.” (In re Marilyn H. (1993) 5 Cal.4th 295, 310.)
Even if appellant had shown sufficiently changed circumstances, ample evidence supports the juvenile court’s conclusion that appellant failed to show by a preponderance of the evidence that reinstating services would be in Julian’s best interests. At the time of the hearing, the focus of the proceedings had shifted from family preservation to providing Julian with a safe and stable home. (See In re Marilyn H., supra, 5 Cal.4th at p. 309.) In his petition, appellant stated that Julian was very attached to him and the additional services would strengthen this bond. It is undisputed that Julian and appellant had a significant relationship. However, the evidence also showed that Julian was doing well in his foster placement and was at least as well bonded to his foster parents as to his father. The foster parents had cared for Julian and had met all his needs for the past two years, a longer period of time than Julian had lived with his parents. The trial court did not err in determining that it better served Julian’s best interests to be freed for adoption by his foster parents.
In In re Kimberly F., supra, 56 Cal.App.4th at p. 532, upon which both parties rely, the appellate court identified three factors to consider in evaluating a section 388 petition: “(1) the 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.” (Ibid.) The children were removed from the home in Kimberly F. because the home was filthy and unsanitary. The appellate court determined that the juvenile court abused its discretion in denying the mother’s section 388 petition because the mother demonstrated that the home had been cleaned up. In addition, there was an “undisputedly strong bond” between the children and their mother, and the children did not want to be adopted by their caretaker. (Ibid.)
The circumstances of this case are different. The problem which led to the dependency here was more serious. Apparently as a result of the parents’ limited parenting skills, inability to supervise Julian adequately, and lack of understanding of Julian’s developmental needs, Julian suffered second and third degree burns. During the supervised visits, the supervising social worker observed a number of instances in which the parents failed to adequately supervise Julian. At the hearing, Ms. Halliday testified that appellant had not sufficiently addressed the issues that brought Julian before the court and had not demonstrated that Julian would be safe in his care unsupervised. Regarding the second factor, while Julian was comfortable during visits and enjoyed seeing his father, the social worker concluded at the time she prepared the section 366.26 report that the interaction was not significant enough to make a determination that there was a strong parent-child bond. Julian was three years old at the time of the hearing, and had been with the same foster family for 25 months. In the social worker’s opinion, Julian had “equally as strong a bond if not more with his foster parents than he does with his father.” With respect to the third factor, while appellant had made progress in several areas identified in his case plan, the changed circumstances he presented did not address the problems of his limited parenting skills or lack of ability to appropriately supervise Julian and keep him safe. Appellant had not progressed to unsupervised visitation with Julian. The social worker was concerned that Julian continued to be at risk if he were returned to appellant’s care. The court evaluated the evidence presented in support of the section 388 petition, and concluded that Julian’s best interests would not be served by ordering further reunification services. The court acted well within its discretion in denying appellant’s section 388 petition.
B. The Order Terminating Parental Rights
At the section 366.26 hearing, the court must select and implement a permanent plan for the dependent child. “Adoption, where possible, is the permanent plan preferred by the Legislature.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).) If the court finds a minor is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the minor under one of the specified statutory exceptions. (§ 366.26, subd. (c)(1); In re Jamie R. (2001) 90 Cal.App.4th 766, 773; In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
Section 366.26, subdivision (c)(1)(A), “authorizes the juvenile court to avoid the termination of parental rights to an adoptable child if it finds ‘a compelling reason for determining that termination would be detrimental to the child [because] . . . [t]he parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.’ ” (In re Clifton B. (2000) 81 Cal.App.4th 415, 424.) It is the parent’s burden to demonstrate the applicability of this exception. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 (Jasmine D.); Autumn H., supra, 27 Cal.App.4th at p. 574.)
There is no dispute that appellant maintained regular visitation and contact with Julian. The court’s ruling was based on its finding that appellant had failed to establish that the benefit to the child of maintaining the relationship with the parent outweighed the benefit of adoption.
Appellant contends that Julian was strongly bonded to him as his father, citing evidence in the record that Julian looked to him for comfort during visits, had fallen asleep in his arms, was affectionate with him and called him “daddy.”
The cases construing the beneficial relationship exception have made clear that not every beneficial relationship will overcome the preference for adoption. (Autumn H., supra, 27 Cal.App.4th at p. 575; In re Jasmine D., supra, 78 Cal.App.4th at pp. 1347-1350; In re Casey D., supra, 70 Cal.App.4th at p. 52, fn. 4.) In order for the exception to apply, the parent/child relationship must promote “the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (Autumn H., supra, 27 Cal.App.4th at p. 575; see also In re Jamie R., supra, 90 Cal.App.4th at p. 773; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.)
Adoption should be ordered unless exceptional circumstances exist. Emphasizing this point, in 1998 the Legislature revised section 366.26, subdivision (c)(1), “to require the court to find not only that one of the listed circumstances exists, but also that it provide ‘a compelling reason for determining that termination would be detrimental to the child.’ (Stats. 1998, ch. 1054, § 36.6.) This amendment . . . makes it plain that a parent may not claim entitlement to the exception provided by subdivision (c)(1)(A) simply by demonstrating some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1349.) “Although the statute does not specify the type of relationship necessary to derail termination of parental rights, case law has required more than ‘frequent and loving contact.’” (In re Clifton B., supra, 81 Cal.App.4th at p. 424, quoting In re Beatrice M., supra, 29 Cal.App.4th at p. 1418.)
Substantial evidence supports the trial court’s conclusion that Julian’s need for a permanent, stable home outweighed any benefit to him from a continued legal relationship with appellant. Factors to be considered in making this determination include “‘[t]he 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 . . . .’” (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206; Autumn H., supra, 27 Cal.App.4th at p. 576.) Julian was removed from appellant’s care in April 2004 when he was 16 months old. At the time of the section 366.26 hearing in June 2006, he had lived with his foster parents for two years, more than half his life. Although the evidence established that there was a bond between Julian and appellant and that Julian enjoyed the visits, there was also evidence that the interaction during the hour-long, supervised visits was not significant enough to determine that there was a strong parent-child bond. Appellant failed to show more than appropriate supervised visits with Julian. In contrast, the evidence showed that Julian was bonded to the foster parents, that they had provided for all of Julian’s needs in the two years he had lived with them, and that they wanted to adopt him if he were freed for adoption.
The requirement that the parent seeking to avoid termination of parental rights must prove that the child would be greatly harmed must be viewed in the context of the dependency law, whose purpose is to protect children who have been abused, neglected or exploited by their parents. (In re Brittany C. (1999) 76 Cal.App.4th 847, 853.) On this record, appellant has failed to show that Julian would be greatly harmed. He has not met his burden of demonstrating that his relationship with Julian promotes Julian’s well-being to such an extent that it outweighs the benefit to Julian of being adopted into a secure and permanent home.
C. The ICWA Notice Requirements
Appellant alleges that the Department failed to comply with the notice requirements of the Indian Child Welfare Act, 25 United States Code section 1901 et seq. (ICWA). The record on appeal contains copies of the notice forms the Department mailed to the Bureau of Indian Affairs (BIA) and ten federally-recognized Apache tribes on May 20, 2004. The Department concedes that the forms did not include appellant’s name and other information regarding Julian’s paternal ancestry through which the Indian heritage was claimed. On reply, appellant claims the notice deficiencies were numerous and not limited to the failure to include appellant’s ancestral information. We will order a limited remand for strict compliance with the requirements of ICWA and applicable state law. (In re I.G. (2005) 133 Cal.App.4th 1246, 1254-1255; see, generally, In re Francisco W. (2006) 139 Cal.App.4th 695, 704-711.)
IV. DISPOSITION
The orders appealed from are reversed and the case is remanded to the juvenile court with directions to order the Department to comply with the notice provisions of ICWA and the relevant case law interpreting ICWA, and to file all required documentation with the juvenile court. The juvenile court shall hold a new hearing, with notice to the parents, to determine whether the Department has made proper inquiry and complied with the notice provisions of ICWA. If, after proper notice, a tribe claims Julian is an Indian child, the juvenile court shall proceed in conformity with all provisions of ICWA. If, on the other hand, no tribe claims that Julian is an Indian child, the juvenile court shall reinstate the orders denying appellant’s section 388 petition and terminating his parental rights.
We concur: Kline, P.J., Richman, J.
“a-1) On or about April 29, 2004, Amanda [J.] and Derrick [J.] placed their sixteen month old son, Julian [J.], at substantial risk of serious physical injury by bathing him in the bathtub without appropriate supervision while his father simultaneously took a shower. The father failed to respond appropriately when the baby began to scream while in the bathtub. The mother heard the baby screaming for approximately five minutes before she took any action to check on the baby. Julian sustained second and third degree immersion burns on his buttocks and right leg. Due to the age of the child and multiple referrals regarding a prior incident of the child sustaining burns while under the supervision of his parents in November, failure to thrive with improper feeding of the child, and a report of seizures where the medical examiner’s [sic] could not rule out possible smothering; this child is at substantial risk of serious physical injury or illness in his parents’ care.”
“b-1) Derrick [J.] and Amanda [J.] do not have an understanding of age appropriate supervision and parenting. There have been prior referrals in March and July 2003, relative to Amanda [J.]’s inability to appropriately meet Julian’s needs. On November 14, 2003, Julian sustained blister burns from a bowl of hot water that Derrick [J.] left on the bed near the child. On or about April 29, 2004, Julian was placed in a tub of water without appropriate supervision causing him to sustain second and third degree immersion burns on his buttocks and right leg. Lisa Hopwood, director of the housing project that the parent’s [sic] reside at, reported that she and other adult’s [sic] in the home have had to redirect both parents on many occasions as to the safe care, handling and supervision of Julian. On one occasion, Ms. Hopwood reports that she observed the child outside on a second story balcony without any supervision.
“b-2) Derrick [J.] by his own admission has a history of mental health issues that has caused him recently to be depressed. Mr. [J.] reported his mental health history and anxiety and memory loss when he was being questioned about the injuries to Julian. Mr. [J.]’s depression and anxiety have contributed to his ability to appropriately parent and supervis[e] his son Julian.
“b-3) Amanda [J.] has developmental issues that have interfered with her ability to parent her son Julian. Ms. [J.] has had difficulty meeting h[er] son’s needs and taking appropriate measures to ensure that her son is appropriately supervised, protected and medical needs met as evidenced by the facts as alleged in allegations a-1 and e-1.”
“c-1) Julian [J.] is at substantial risk of serious emotional damage due to his parent’s [sic] lack of understanding of the developmental stages of infants, their inability to appropriately supervise and nurture their son, and the neglect and physical injuries sustained by Julian while under the care, custody and control of his parents, Amanda and Derrick [J.].”
“e-1) On or about April 29, 2004, Amanda [J.] and Derrick [J.] placed their sixteen months old son, Julian [J.], at substantial risk of serious physical injury by bathing him in the bathtub without appropriate supervision while his father simultaneously took a shower. The father failed to respond appropriately when the baby began to scream while in the bathtub. The mother heard the baby screaming for approximately five minutes before she took any action to check on the baby. Julian sustained second and third degree immersion burns on his buttocks and right leg. Due to the age of the child and multiple referrals regarding a prior incident of the child sustaining burns while under the supervision of his parents in November, failure to thrive with improper feeding of the child, and a report of seizures where the medical examiner[] could not rule out possible smothering; this child is at substantial risk of serious physical injury or illness in his parents’ care.”
“b-1) On or about April 29, 2004, Amanda [J.] and Derrick [J.] placed their sixteen months [sic] old son, Julian [J.], at substantial risk of serious physical injury by bathing him in the bathtub without appropriate supervision while his father simultaneously took a shower. The father and mother failed to respond appropriately when the baby began to scream while in the bathtub. Julian sustained second and third degree immersion burns on his buttocks and right leg. Due to multiple referrals regarding an incident of Julian sustaining burns while under the supervision of his parents in November 2003, failure to thrive due to improper feeding of the child, seizures where the medical examiners could not rule out possible smothering; the housing project director reporting the need to redirect both parents on many occasions as to the safe care, handling and supervision of Julian and the child’s young age, Julian is at substantial risk of serious physical injury or illness in his parent’s [sic] care.
b-2) Derrick [J.] by his own admission has a history of mental health issues that has caused him recently to be depressed. Mr. [J.] reported his mental health history and anxiety and memory loss when he was being questioned about the injuries to Julian. Mr. [J.]’s depression and anxiety have contributed to his ability to appropriately parent and supervis[e] his son Julian.”
The allegations pursuant to section 300, subdivisions (a), (c), and (e) were dismissed.