Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. J31989, J31990, J31991
RAYE , Acting P.J.
N.D. (father) and S.B. (mother), the parents of S.D., S.L.B., and A.B. (the minors), each appeal from orders of the juvenile court entered after a 12-month review hearing. (Welf. & Inst. Code, §§ 366.21, subd. (f), 395.) Father and mother make multiple contentions of alleged prejudicial error, including a claim that the Butte County Department of Employment and Social Services (DESS) violated the notice requirements of the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. § 1901 et seq.) Agreeing with the claim of ICWA error only, we shall reverse and remand for proper notice as to S.D. only.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On June 7, 2005, DESS filed original juvenile dependency petitions pursuant to section 300 on behalf of the minors, who ranged in age from one to five years old. Those petitions alleged in part that mother had been arrested on multiple felony charges, including kidnapping, child endangerment, and carjacking. According to the petitions, during or near the time of the commission of the alleged offenses, mother was under the influence of methamphetamine, and the minors were with her. The petition pertaining to S.D. also alleged father had a history of substance abuse that rendered him unable to provide care for S.D., and that he was incarcerated in state prison.
N.D. is the father of only one minor, S.D. The father of the other two minors is not involved in these appeals. Accordingly, our use of “father” refers to N.D.
The juvenile court sustained the petitions as amended, adjudged the minors dependent children, and denied reunification services for father but granted them for mother. As for visitation with the minors, the court ordered DESS to “arrange visitation as in the best interest of the [minors] and at the recommendation of the [minors’] counselors.” Initially, DESS did not provide visits between mother and father and the minors. Its reasoning was that visits with either parent, while both were incarcerated, would not be in the best interests of the minors.
Mother and father’s sister reported to DESS that mother and father had Choctaw and Cherokee Indian heritage. Accordingly, the juvenile court found the ICWA might apply to the proceedings. Thereafter, DESS sent notices of the dependency proceedings to the various Cherokee and Choctaw Indian tribes. DESS received responses from most of the tribes, indicating the minors were not Indian children pursuant to the ICWA. Father later filed an ICWA related document identifying the family name “Teel.” On January 26, 2006, the juvenile court found the ICWA did not apply.
After a November 18, 2005, visit between mother and the minors at the Butte County jail, all three minors experienced various difficulties. As a result, the social worker determined that continued visitation at the jail appeared to be detrimental to the well-being of the minors. At a December 8, 2005, hearing, the juvenile court declined to order any additional visits at the jail, finding the minors had been “very, very traumatized . . . .” However, mother maintained contact with the minors by written correspondence.
On November 29, 2005, mother pled guilty to three counts of felony child endangerment. On September 10, 2006, mother was granted probation. During most of her incarceration, mother failed to maintain contact with the social worker or provide proof of her participation in any services. Moreover, an August 2006 visit between mother and the minors at a treatment facility where mother was living appeared to be problematic for one of the minors.
Father was engaging in some programs on his own initiative. Moreover, he had some monthly visits with S.D. DESS noted that S.D. did not identify father as her father and lacked a “substantial bond” with him. S.D. experienced difficulties after visits, including nightmares and behavior problems.
On August 23, 2006, father filed a petition for modification, seeking reunification services and an increase in visitation with S.D. In support of that petition, father attached numerous documents and letters on his behalf, attesting to his efforts and good character. Father averred that he had been “clean and sober” since January 31, 2005, and soon would be graduating from an outpatient drug program. Father also declared he was employed full time and regularly attended Narcotics Anonymous meetings.
Father claimed services and increased visits with S.D. were in the best interests of S.D. because for the first year of her life, S.D. lived with father and he took care of her. Father also alleged that S.D. was attached to him. According to father, during and after his incarceration he had maintained contact with S.D. and had improved his parenting skills.
At the 12-month review hearing, father testified he had cared for S.D. until she was a little over a year old. Father had participated in programs during his incarceration and currently was engaged in counseling. Since his release from custody, father had visited S.D. seven times. According to father’s counsel, by agreement with DESS father’s visits with S.D. would be increased to one hour every other week, supervised by DESS. Moreover, the juvenile court authorized supervised visits between mother and the minors, but at the discretion of DESS.
Mother testified her November 2005 and August 2006 visits with the minors went well. Mother also had a visit with two of the minors on October 12, 2006, which she stated also “went very well.” Mother acknowledged she was a methamphetamine addict but had been “clean” for more than 16 months.
At the conclusion of the review hearing, counsel for father argued that mother had not received reasonable reunification services because of a lack of visitation and therefore should be offered an additional six months of services. In addition, counsel argued that father had established changed circumstances but was prevented from showing services for him would be in the best interests of S.D. because DESS had not provided father with adequate reunification services. Mother’s counsel joined father’s petition for modification.
In denying father’s petition for modification, the juvenile court stated: “I think that there has been a change of circumstances. I think that [father] gets out of prison and does make a change and also I think that he’s made some improvements in his life compared to the way he was before he went in. He’s a different guy, and I think everybody has to be impressed by that fact. So I think [father’s counsel] has proved that part of the case. But what has not been proved is that it would be beneficial to the child to make the change requested under the 388 petition. And for that reason it’s denied.”
The juvenile court found that as to S.L.B. and A.B., the two oldest minors, reasonable services had been provided; the court ruled visits with mother would have been “traumatic” to them. Therefore, the court terminated mother’s services as to the two oldest minors. However, as to S.D., the youngest minor, the court found that mother had not received reasonable reunification services because of a lack of adequate visitation and granted mother three additional months of services.
DISCUSSION
I
Mother contends substantial evidence does not support the juvenile court’s order terminating her reunification services with respect to S.L.B. and A.B., the two oldest minors. In support of her claim, mother argues she received an insufficient number of visits with the minors, DESS did little to assist her, and the court delegated improperly to DESS and the minors’ therapists the decision whether visitation even would occur.
Father and mother join in each other’s arguments. For purposes of deciding the appeals, we presume each has a sufficient legal interest in the other’s claims and may properly join the other’s contentions.
“The strong preference of the law in dependency matters, expressed both judicially and legislatively, is reuniting children with their natural families whenever possible.” (In re Joanna Y. (1992) 8 Cal.App.4th 433, 438 (Joanna Y.).) “To effectuate this paramount goal of reunification, the law requires that reasonable reunification services, tailored to the parents’ individual needs be offered . . . . [Citations.] The agency supervising the children must identify the problems leading to the loss of custody, offer services designed to remedy these problems, and maintain reasonable contact with the parents to assist in areas where compliance proves difficult, such as transportation.” (Ibid.) “A reunification service plan should be well defined, specific, and tailored to provide services that will lead to the resumption of a family relationship.” (In re Mario C. (1990) 226 Cal.App.3d 599, 603-604.)
We must determine whether there is substantial evidence supporting the juvenile court’s finding that reasonable services were provided. (Joanna Y., supra, 8 Cal.App.4th at p. 439.)
In its report filed June 27, 2006, DESS stated, in part: “Social Worker Hamilton has been diligent in attempting to identify services available to [mother]. Additionally, Social Worker Hamilton has requested on multiple occasions that [mother] identify services that were not available that may have been of benefit to her while incarcerated. While [mother] has not responded to Social Worker Hamilton’s request, she has maintained, on average, weekly correspondence with her daughters. [Mother], at Social Worker Hamilton’s request, has recently reported that while incarcerated, she has maintained participation in a ‘Bridging Program’ that focused on life skills. [Mother] has provided no documentation of proof of participation in services during her incarceration.”
DESS concluded that “[mother] has maintained a high level of denial and blame throughout the last year. Social Worker Hamilton has been diligent in efforts to provide [mother] with reasonable services throughout the current reporting period. [Mother] has maintained written correspondence to her daughters, but has failed to maintain written contact with Social Worker Hamilton. In her written correspondence with her daughters, [mother] has continued to include inappropriate promises regarding her eventual release and future goals, as well as included statements that appear to be directed at Social Worker Hamilton. The inappropriate nature of [mother’s] contact with her daughters has continued throughout the course of the Children’s Services case.”
The social worker must make a good faith effort to provide reasonable services responding to the unique needs of each family. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777; In re Kristin W. (1990) 222 Cal.App.3d 234, 254.) The question is not whether more or better services could have been provided, but “whether the services were reasonable under the circumstances.” (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
The record reflects mother was ordered to participate in parenting classes, receive substance abuse services, and engage in counseling. In return, DESS was committed to providing referrals, arranging appointments, and maintaining contact with mother. As for contact between the minors and mother, DESS would arrange visits and facilitate written communication.
Unfortunately, as the record reflects, in most respects mother failed to comply in a timely manner with the requirements of her reunification plan. She did not maintain regular contact with the social worker, did not provide documentation of her participation in services, and included inappropriate information in letters to the minors. Doubtless it was mother’s minimal compliance with her service plan that led DESS to recommend the termination of its reunification efforts for mother.
The record contains substantial evidence to support the juvenile court’s order that continued visits for the two oldest minors would be detrimental to their well-being. In her December 5, 2005, letter to mother, the social worker recounted various facts brought to her attention regarding the difficulties experienced by the minors following their jailhouse visit with mother. Thereafter, the juvenile court, finding the minors had been “very, very traumatized” by the visit, refused to order any further visits. However, after mother’s release, she was permitted to visit the minors. We conclude the court’s order was proper as it is supported by substantial evidence.
Mother asserts “there is also a question” whether the juvenile court delegated improperly to DESS and to the minors’ counselors the decision whether there would be visits. The court had ordered visits arranged by DESS “as in the best interest of the children and at the recommendation of the children’s counselors.”
The difficulty with mother’s claim in this case is that the record does not reveal counsel for mother or father tendered in the juvenile court at the review hearing any objection to the juvenile court’s visitation order. The record reflects mother had ample opportunities to bring that issue to the attention of the juvenile court if she had wished to do so. Yet she failed to avail herself of that opportunity.
The California Supreme Court has stated: “‘“An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.”’ (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1 [151 Cal.Rptr. 837, 588 P.2d 1261], italics in Doers.) ‘“The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had . . . .”’ (People v. Walker (1991) 54 Cal.3d 1013, 1023 [1 Cal.Rptr.2d 902, 819 P.2d 861].) ‘“No procedural principle is more familiar to this Court than that a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” [Citation.]’ [Citation.]” (People v. Saunders (1993) 5 Cal.4th 580, 589-590, fns. omitted; cf. In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2 [stating that the correct legal term for loss of right based on failure to assert it in a timely fashion is forfeiture, not waiver].)
Here, as the record shows, at no time during the review hearing did mother or father tender an objection to the visitation order on improper delegation grounds. Thus, mother is precluded from raising the claim here. (In re Erik P. (2002) 104 Cal.App.4th 395, 403; In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502; In re Gilberto M. (1992) 6 Cal.App.4th 1194, 1198-1200.) Mother has forfeited her claim. (In re S.B., supra, 32 Cal.4th at p. 1293, fn. 2.)
In this case, the record establishes that mother’s services were reasonable but that she failed to make progress in ameliorating the conditions that led to the filing of the dependency petitions. Substantial evidence supports the juvenile court’s order terminating appellant’s reunification services with respect to the two oldest minors. There was no denial of due process or abuse of discretion in the court’s decision.
II
Mother claims the juvenile court erred when it ordered only three additional months of reunification services as to S.D. According to mother, in light of the court’s finding that reasonable services had not been provided with respect to S.D., the court had the power to extend the reunification period to six months, and it should have done so under the circumstances presented.
The record does not support mother’s contention. In part I we rejected mother’s claim that the reunification services provided to her for all of the minors were inadequate. Although we agree with mother that the juvenile court had the power to grant six additional months of services, we disagree with her claim that the three-month period granted by the court was inadequate.
At a December 7, 2006, hearing, counsel for mother suggested that weekly visitation between mother and S.D. for one hour would not facilitate reunification with mother. Although the juvenile court indicated its disagreement with counsel’s suggestion, it also made it clear the court would consider modifying the visitation terms in the future, depending on the circumstances. Previously, the court had worked with all parties to fashion a visitation schedule that would remedy the deficiency it had identified in mother’s reunification plan.
Ordinarily, a parent receives reunification services for six months. However, as we have held recently, “a parent is not entitled to a prescribed minimum period of services.” (In re Aryanna C. (2005) 132 Cal.App.4th 1234, 1243.) The juvenile court retains the discretion to determine whether services should be ended at some point before six months have passed. (Ibid.)
In this case, after examining all pertinent circumstances, the juvenile court properly exercised its discretion to limit the additional period of services for mother to visit S.D. to three months. Mother does not explain how supervised one hour weekly visits would prevent her from reunifying with S.D. as she alleges in her opening brief. The record reflects a “mixed” picture regarding contact between mother and the minors, with the older minors expressing a wish not to visit mother, mother occasionally including inappropriate material in her written correspondence with the minors, and mother continuing to maintain “a high level of denial and blame” during much of her reunification period. In sum, substantial evidence supports the court’s order.
III
Father contends the juvenile court abused its discretion in denying his petition for modification. Noting the evidence of changed circumstances adduced at the hearing, father asserts the best interests of S.D. would have been promoted by granting him a period of reunification services. Father also asserts his constitutional right of parenting was violated by the court’s denial of the petition.
Section 388, subdivision (a) provides that a parent of a dependent child may petition the juvenile court “upon grounds of change of circumstance or new evidence . . . for a hearing to change, modify, or set aside any order of court previously made . . . .” Section 388 permits modification of a dependency order if a change of circumstance or new evidence is shown and if the proposed modification is in the best interests of the minor. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526 (Kimberly F.).)
When a petition for modification is brought after the termination of reunification efforts, the best interests of the child are the paramount consideration. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In assessing the best interests of the child at this stage of the proceedings, the juvenile court looks to the child’s needs for permanence and stability. (Ibid.)
The party petitioning for modification has the burden of proof by a preponderance of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 48.) A modification petition “is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.” (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
In denying father’s petition for modification, the juvenile court recognized father had made efforts to ameliorate the difficulties underlying the dependency petition pertaining to S.D. However, expressing concern for the minor’s needs, the court suggested the best interests of the minor would be promoted by proceeding to the selection of a permanent plan.
The determination by the juvenile court was well within its discretion. As the record reflects, father had made some progress, and his efforts are to be commended. But the record also suggests more time lay ahead for father in which he would continue to participate in programs. In the meantime, S.D. would continue to develop and attach to adult figures.
In his petition, father averred it was in the best interests of S.D. to provide father with services, in part because of the bond they had shared during the minor’s first year of life. The difficulty with father’s petition and attached documents is his failure to allege pertinent facts in support of his belief that S.D.’s best interests required reunification with father. A prima facie showing requires the proffering of facts relevant to the claim made. (In re Edward H. (1996) 43 Cal.App.4th 584, 593 (Edward H.).) Mere beliefs, without facts to support them, do not constitute prima facie evidence of the minor’s best interests. Here, it is not enough to assert, as father does, that he should receive services because he was improving his situation and had had a bond with S.D. in the past. At the time of the hearing on the modification petition, the minor had been out of father’s life for a substantial period of time. Father’s petition is therefore deficient because it contains few, if any, facts relating to S.D.’s current circumstances.
Father’s brief emphasizes the efforts he was making to become a better parent. But father says little about S.D.’s circumstances and feelings, and little about the possibility that even after modification in the form of additional services, he might not be able to achieve reunification with S.D.
Most importantly, father did not allege any facts that S.D.’s needs for permanence and stability would be promoted by an extended period of reunification or return to a parent who had been unable to demonstrate only months before that the programs in which he decided to participate had resulted in sufficient changes in his behavior to permit the minor to reside with him safely.
In Kimberly F., supra, 56 Cal.App.4th 519, the appellate court warned against the juvenile court’s simply comparing the situation of the natural parent with that of a caretaker in determining a section 388 petition. It termed such an approach the “‘simple best interest test.’” (Kimberly F.,at p. 529.) Instead, the appellate court found that determining a child’s best interests under section 388 required an evaluation of a number of factors, including the seriousness of the reason for the dependency action; the existing bonds between parent and child, and caretaker and child; and the nature of the changed circumstances. (Kimberly F., at pp. 529-532.) In Kimberly F., the court concluded the decision to deny the section 388 petition was based largely and improperly on the juvenile court judge’s adoption of the “‘narcissistic personality’ rationale,” which the judge had applied to the mother in that case. (Kimberly F., at pp. 526, 527, 532-533.)
In this case, in denying father’s section 388 petition, the juvenile court did not discuss explicitly the factors analyzed in Kimberly F., supra, 56 Cal.App.4th 519. However, evidence of all of the critical factors contained in Kimberly F., including the basis of the dependency action, the relationship between father and S.D., and the nature of the alleged changed circumstances, was before the court. The court’s comments about the case suggest it considered carefully all pertinent circumstances. On the record before it, the court concluded that father had failed to sustain his burden. Under the abuse of discretion standard, we see no error in that determination.
The juvenile court was required by statute (§ 388) to focus on the minor’s best interests in deciding whether to grant the petition for modification. As we have seen, those interests consist of the minor’s needs for stability and permanence. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Childhood cannot wait for a parent to establish readiness for parenting. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) Here, S.D. had shown the ability to bond with adult figures. On the other hand, father was still working on the problems that had contributed to the dependency proceedings. On this record, it is not surprising that the court ruled the minor should not be forced to wait any longer.
Under the circumstances of this case, the juvenile court did not act arbitrarily, capriciously, or beyond the bounds of reason in denying father’s petition for modification. The court’s implicit determination that S.D.’s need for permanency compelled denial of the petition and served the minor’s best interests was reasonable and is supported by the record. (Cf. Edward H., supra, 43 Cal.App.4th at p. 594.) In sum, father failed to make the necessary showing, as required by section 388, that a modification would promote the best interests of the minor. (Compare In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416 with In re Heather P. (1989) 209 Cal.App.3d 886, 891.) There was no abuse of discretion or other error in the court’s decision. (Cf. In re Daijah T. (2000) 83 Cal.App.4th 666, 673-675.)
By failing to raise the claim in the juvenile court, we hold father has forfeited his contention that denying the modification petition violated his constitutional rights.
IV
Father contends the juvenile court and DESS failed to comply with the notice requirements of the ICWA as to S.D.
The notice provisions of the ICWA state, in part: “In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” (25 U.S.C. § 1912(a).)
The Indian status of a child need not be certain to trigger the ICWA’s notice requirements. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471 (Desiree F.).) “[O]ne of the primary purposes of giving notice to the tribe is to enable the tribe to determine whether the child involved in the proceedings is an Indian child.” (Id. at p. 470.) “The [Department] must provide all known information to the tribe, particularly that of the person with the alleged Indian heritage.” (In re Louis S. (2004) 117 Cal.App.4th 622, 631.) Notice must include, if known, the names of the child’s grandparents and great-grandparents, including maiden, married and former names or aliases, as well as their birth dates, places of birth and death, tribal enrollment numbers, current and former addresses, and other identifying information. (25 C.F.R. § 23.11 (a) & (d)(3); 25 U.S.C. § 1952.)
Having received information from mother and father suggesting the minors had Cherokee and Choctaw Indian heritage, DESS was obliged to notify each of those tribal units of the dependency proceedings so the tribes could make a proper determination. Thereafter, when it received additional information from father that a family name was Teel, DESS should have sent that information to the tribes and advised the juvenile court of the transmittal and response, if any, it received. Inexplicably, DESS failed to do so.
In this case, until DESS had obtained all relevant information and sent it to the tribes, the juvenile court’s ruling that the ICWA did not apply was at best premature. The failure to comply with the notice provisions and determine whether the ICWA applies is prejudicial error. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424; see also Desiree F., supra, 83 Cal.App.4th at p. 472.)
On remand, DESS must send new notices of the dependency proceedings to each of the tribes previously notified as to S.D., with all of the information about father and mother, including the family name Teel, listed.
DISPOSITION
The November 16, 2006, orders of the juvenile court as to S.D. are reversed, and the matter is remanded to the juvenile court with directions to order DESS to provide the tribes with proper notice of the proceedings under the ICWA. If, after receiving notice under the ICWA, no tribe indicates that S.D. is an Indian child within the meaning of the ICWA, then the juvenile court shall reinstate the November 16, 2006, orders. If, on the other hand, a tribe responds affirmatively, then the court must consider the issues pursuant to the procedural and evidentiary requirements of the ICWA. In all other respects, the orders are affirmed.
We concur: HULL , J., CANTIL-SAKAUYE , J.