Opinion
NOT TO BE PUBLISHED
Super. Ct. No. J31989
HULL, J.N.D. (appellant), the father of S.D. (the minor), appeals from an order of the juvenile court denying appellant’s petition for modification. (Welf. & Inst. Code, §§ 388, 395; further unspecified section references are to this code.) Appellant contends the juvenile court committed reversible error in denying the petition for modification. Appellant also claims Butte County Department of Employment and Social Services (DESS) violated the notice requirements of the Indian Child Welfare Act of 1978 (ICWA). Agreeing with the latter claim only, we reverse and remand for proper notice.
Facts and Proceedings
We first note that some of the material in this discussion and Parts I and II derives from our opinion in a previous appeal filed by appellant and the mother of the minor, of which we take judicial notice, pursuant to Evidence Code section 451, subdivision (a) (In re S.D. (Dec. 21, 2007, C054534) [nonpub. opn.]).
On June 7, 2005, DESS filed an original juvenile dependency petition pursuant to section 300 on behalf of the minor. That petition alleged in part that appellant had a history of substance abuse that rendered him unable to provide care for the minor, and that he was incarcerated in state prison.
The juvenile court sustained the petition as amended, adjudged the minor a dependent child, and denied reunification services to appellant. As for visitation with the minor, the court ordered DESS to “arrange visitation as in the best interest of the [minor] and at the recommendation of the [minor’s counselor].” Initially, DESS did not provide visits between appellant and the minor. Its reasoning was that visits with appellant during his incarceration would not be in the best interests of the minor.
DESS learned that appellant and the minor’s mother had Choctaw and Cherokee Indian heritage. Accordingly, the juvenile court found 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 minor was not an Indian child pursuant to ICWA. Appellant later filed an ICWA-related document indentifying the family name “Teel.” On January 26, 2006, the juvenile court found ICWA did not apply.
Appellant was engaging in some programs on his own initiative. Moreover, he had some monthly visits with the minor. DESS noted that the minor did not indentify appellant as her father and lacked a “substantial bond” with him. The minor also experienced difficulties after visits, including nightmares and behavior problems.
On August 23, 2006, appellant filed a petition for modification, seeking reunification services and an increase in visitation with the minor. In support of that petition, appellant attached numerous documents and letters on his behalf, attesting to his efforts and good character. Appellant averred that he had been “clean and sober” since January 31, 2005, and soon would be graduating from an outpatient drug program. Appellant also declared he was employed full time and regularly attended Narcotics Anonymous meetings.
Appellant claimed services and increased visits with the minor were in the best interests of the minor because for the first year of her life, the minor lived with appellant and he took care of her. Appellant also alleged the minor was attached to him. According to appellant, during and after his incarceration he had maintained contact with the minor and had improved his parenting skills.
At the 12-month review hearing, appellant testified he had cared for the minor until she was a little over a year old. Appellant had participated in programs during his incarceration and was engaged in counseling. Since his release from custody, appellant had visited the minor seven times. According to appellant’s counsel, by agreement with DESS appellant’s visits with the minor would be increased to one hour every other week, supervised by DESS.
At the conclusion of the 12-month review hearing, counsel for appellant argued appellant had established changed circumstances but was prevented from showing services for him would be in the best interests of the minor because DESS had not provided appellant with adequate reunification services.
In denying appellant’s petition for modification, the juvenile court stated: “I think that there has been a change of circumstances. I think that [appellant] 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 [appellant’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.” (In re S.D., supra, C054534, pp. 2-6.)
In In re S.D., this court affirmed the denial of appellant’s petition for modification, ruling there was no abuse of discretion or other error in the court’s decision. (In re S.D., supra, C054534, p. 18.)
On June 20, 2007, appellant filed another petition for modification, seeking either the minor’s return to his custody under a plan of family maintenance, or a grant of reunification services to appellant and increased visitation with the minor. In his petition, appellant alleged he was discharged from parole recently, he had completed substance abuse programs and had finished a set of parenting classes. Moreover, appellant averred, he had joint custody of a half sibling of the minor. According to appellant, modification of the previous court order denying him services would be in the minor’s best interests because he had helped raise the minor during the latter’s first year of life, they were “inseparable,” and appellant would provide the minor with the love and attention she required.
According to the social worker’s report, appellant had monthly supervised visits with the minor. The minor demonstrated “a very close bond with [her foster family] and appears very happy and comfortable in the home.” The minor indicated a desire to remain in that placement, where she had been for more than two years.
At the June 20, 2007, 18-month review hearing, the juvenile court agreed to consider all evidence adduced at the hearing in its ruling on the petition for modification filed by appellant. Psychologist James Park, who had conducted an evaluation of the minor and her mother (who is not involved in this appeal), believed the minor could be returned to parental custody. According to Park, even though appellant was out of the minor’s life during his incarceration, a bond remained between appellant and the minor. However, visitation only on a monthly basis was unlikely to strengthen that bond.
Adoptions social worker Larry Levin testified he believed the minor and her half siblings, with whom she lived in foster care, had a “strong connection” to each other. Levin also opined that severing that sibling group would be detrimental. Levin told the juvenile court that he observed a “very healthy attachment” between the minor and her foster parents. According to Levin, the minor had a “deep need for a lot of holding and nurturing, reassurance, and a sense of feeling safe and secure, which she seems to be getting in her current home.”
At the conclusion of the review hearing, counsel for appellant argued appellant had demonstrated that family maintenance or services and increased visits was the appropriate disposition for the minor. The juvenile court disagreed, denying the petition for modification on the ground that appellant had failed to show the best interests of the minor required any modification.
Discussion
I
Petition for Modification
Appellant claims the juvenile court abused its discretion in denying his petition for modification. Noting the evidence of changed circumstances adduced at the hearing, appellant asserts the best interests of the minor would have been promoted either by returning the minor to his custody or by granting appellant reunification services with increased visitation. According to appellant, the record also reflects the existence of a strong bond between appellant and the minor.
Before addressing appellant’s argument on its merits, we note that appellant suggests he did not receive an evidentiary hearing on his petition for modification. The record refutes that suggestion. The juvenile court made it clear that, in determining the petition for modification, it would consider the evidence adduced at the review hearing.
Section 388, subdivision (a), provides that the 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 end of the reunification period, 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 appellant’s petition for modification, the juvenile court had before it evidence of appellant’s efforts to ameliorate the difficulties underlying the dependency petition. However, doubtless out of concern for the minor’s needs, the court suggested it would not be in the best interests of the minor to return her to parental custody.
The determination by the juvenile court was well within its discretion. As the record reflects, appellant had made much progress, and his efforts are to be commended. But the record also suggests more time lay ahead for appellant in which he would continue to prove his fitness as a parent. In the meantime, it was likely, as the record suggests, that the minor would continue to develop, maintain stability, and attach to adult figures.
In his petition, appellant averred it was in the best interests of the minor to return the minor to parental custody or provide appellant with reunification services, due to the close bond they shared. But, at this point in the proceedings, the focus of the case had shifted to the minor’s interests, and it was unreasonable to expect the minor to wait for appellant to establish his fitness as a parent. As the record suggests, appellant requires more time in order to maintain and strengthen his relationship with the minor.
The difficulty with appellant’s petition is his failure to allege pertinent facts in support of his belief that the minor’s best interests required reunification with appellant. 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.) 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 appellant does, that the minor should be returned to him because he can provide her with the love and attention she requires. At the time of the hearing on the modification petition, the minor had been out of appellant’s custody for a substantial period of time, more than two years. Appellant’s petition is deficient because it contains few, if any, facts relating to the minor’s current circumstances.
Appellant’s brief emphasizes the strength of the bond with the minor and the efforts he had made to become a better parent. But appellant says little about the minor’s circumstances and feelings, nor about the possibility that, even after modification in the form of reunification services, he might not be able to achieve reunification with the minor. The statement by the minor’s counsel at the review hearing that the minor had indicated she enjoyed her visits and wished she could live with appellant is not evidence. The focus of appellant’s brief appears to be on appellant, rather than on the minor.
Most importantly, in his petition appellant did not allege any facts that the minor’s needs for permanence and stability would be promoted either by a potentially lengthy period of reunification services or by return to a parent who had been out of appellant’s life for a substantial period of time.
In Kimberly F., supra, 56 Cal.App.4th 519, the appellate court warned against the juvenile court 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.’” (Id. 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 bond between parent and child and caretaker and child, and the nature of the changed circumstances. (Id. at pp. 529, 532.) The court suggested it was unlikely a parent who lost custody because of sexual abuse of a minor could prevail on a section 388 petition, whereas in a “dirty house” case, which was present in Kimberly F., the chances of success were greater. (Id. at pp. 531, fn. 9, 532.) In Kimberly F., supra, 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. (Id. at p. 533; see also id. at pp. 526, 527, 532-533.)
In this case, in denying appellant’s section 388 petition, the juvenile court did not discuss 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 appellant and the minor, and the nature of the alleged changed circumstances, was before the court. The court’s extensive comments about the case suggest it considered carefully all pertinent circumstances. On the record before it, the court ruled impliedly that appellant 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, the minor had shown the ability to adjust to a stable foster care placement. On the other hand, in his petition appellant acknowledged the possibility he might require reunification services or a future period of increased visitation with the minor.
We agree with appellant that the record of his efforts demonstrates a showing of changed circumstances. However, by including a request for services in his petition, even appellant acknowledged the possibility of a continuing need for assistance. Moreover, appellant only recently had been discharged from parole. The record suggests the minor requires the stability afforded by a nurturing and loving family, for which the minor should not have to wait.
Under the circumstances of this case, the juvenile court did not act arbitrarily, capriciously, or beyond the bounds of reason in denying appellant’s petition for modification. The court’s determination that the minor’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. In re Edward H., supra, 43 Cal.App.4th at p. 594.) In sum, appellant 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.)
II
Indian Child Welfare Act
As he did in the previous appeal, appellant again (In re S.D., supra, C054534, p. 18) contends the juvenile court and DESS failed in various respects to comply with the notice requirements of ICWA.
The notice provisions of 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 ICWA’s notice requirements. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471.) “[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 birthdates, places of birth and death, tribal enrollment numbers, current and former addresses, and other indentifying information. (25 C.F.R. § 23.11(a) & (d)(3); 25 U.S.C. § 1952.)
As we stated in the previous appeal (In re S.D., supra, C054534, p. 19), when DESS received additional information from appellant 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. Until that action was taken, the juvenile court’s ruling that ICWA did not apply to the dependency proceedings was premature and erroneous. (Ibid.)
On remand, unless the juvenile court has decided the matter already pursuant to our directions in the previous appeal, DESS must send new notices of the dependency proceedings to each of the tribes previously notified, with all of the information about appellant, including the family name Teel, listed.
DESS does not oppose a remand for compliance with ICWA.
Disposition
The June 20, 2007, orders of the juvenile court pertaining to the minor 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 ICWA, unless the matter already was decided. If, after receiving notice under ICWA, no tribe indicates the minor is an Indian child within the meaning of ICWA, then the juvenile court shall reinstate the June 20, 2007, 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 ICWA. In all other respects, the orders are affirmed.
We concur: BLEASE, Acting P.J., NICHOLSON, J.