Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. J41012
Mihara, Acting P. J.
T. L., the mother of S. R., appeals from the order denying her petition under Welfare and Institutions Code section 388. She contends: (1) she was deprived of due process when the Monterey County Department of Social and Employment Services (Department) failed to notify her of its intent to change S. R.’s placement; (2) the Department’s failure to consider relative placement violated her due process rights; (3) the juvenile court abused its discretion in denying her section 388 petition; and (4) there was inadequate compliance with the Indian Child Welfare Act (ICWA). Since the Department failed to comply with the notice provisions of the ICWA, we reverse the order.
All further statutory references are to the Welfare and Institutions Code.
S. R. joins in the arguments presented in Ms. L.’s brief. (Cal. Rules of Court, rule 8.200(a)(5).)
I. Factual and Procedural Background
On May 18, 2006, the Department filed a juvenile dependency petition, alleging that S. R. came within section 300, subdivisions (b) (failure to protect), (g) (no provision for support), and (j) (abuse of sibling). The petition stated that three of Ms. L.’s four other children were dependents of the juvenile court due to her extensive criminal and substance abuse history. The whereabouts of S. R.’s father Julius R. were unknown. Mr. R. had a criminal and substance abuse history dating back to 1981. While Ms. L. was incarcerated in state prison in May 2006, S. R. was born. Upon S. R.’s release from the hospital, she was placed in protective custody. Shortly thereafter, the juvenile court ordered that S. R. be detained.
One of the children, L. M. (age 3), is not a dependent of the juvenile court, because she lives with her father.
In the report prepared for the jurisdictional and dispositional hearing, the social worker recommended that the juvenile court sustain the petition under section 300, subdivisions (b) and (g), adjudge S. R. a dependent of the court, remove her from Ms. L.’s custody, deny reunification services for Ms. L., and offer reunification services for Mr. R. After Ms. L. had reported at the detention hearing that she was Apache and Navajo, the social worker sent notices of the jurisdictional and dispositional hearing to the Apache and Navajo tribes. The social worker also summarized the information regarding the other children, noting that Ms. L.’s parental rights had been terminated as to A. M. (age 11 months) in June 2006 and the section 366.26 hearing for A. G. (age 15) and V. R. (age 10) was set for August 2, 2006.
The report outlined Ms. L.’s criminal history, including numerous arrests, convictions, and parole violations between 1988 and 2005. As of July 2006, Ms. L. was in county jail, charged with five drug-related counts, one count of child endangerment, and one count of receiving stolen property. The trial on these charges was set for July 31, 2006.
The report also stated that S. R. was bonding well with her foster parents. After Ms. L. suggested her mother Lucy L. as a possible placement, the social worker interviewed her. Lucy L., however, was seeking approval to become a foster parent for A. G. and V. R., and felt that she could not care for an infant. Mr. R. provided no information about potential relative placements.
The report noted that there had been one visit between Ms. L. and S. R. on July 3, 2006, and Ms. L. was “very appropriate” in caring for her. The social worker recommended that no reunification services be provided to Ms. L. pursuant to section 361.5, subd. (b)(10) and (11), which authorizes the juvenile court to deny such services when the court finds that the parent has previously had children in the dependency system, has had reunification services and/or parental rights terminated as to such children, and has not subsequently made a reasonable effort to treat the problems that led to the removal of these children.
On July 12, 2006, the social worker filed a family mental health assessment. The evaluator interviewed Ms. L., who stated that she began abusing drugs in 1988. She attempted drug treatment several times, but was always unsuccessful. Ms. L. spent three months at Genesis House in 1990, attended an outpatient program briefly in 1995, and lived in a locked treatment facility between November 1997 and October 1999. However, Ms. L. asserted that she had been clean since her pregnancy with S. R. and during her current incarceration. The evaluator did not express an opinion as to Ms. L.’s prognosis for overcoming her substance abuse problems, but noted that Ms. L. had only been able to maintain her sobriety when she was incarcerated.
An addendum report provided further information relating to Ms. L.’s criminal history. This report stated that Ms. L. had pleaded guilty to various charged offenses, would be sentenced to a six-year prison term, including a 13-month substance abuse program at the California Rehabilitation Center (CRC), and if she successfully completed the program, she would be released on parole.
Following a contested jurisdictional hearing in August 2006, the juvenile court adjudged S. R. a dependent child, placed S. R. in foster care, denied reunification services to Ms. L., extended reunification services to Mr. R., and ordered visitation between S. R. and her siblings. The juvenile court also ordered that there be no visitation with Ms. L. until the Department determined that it would be safe for S. R. or until further court order.
In January 2007, the report prepared for the six-month review hearing was filed. It stated that reunification services to Ms. L. were terminated as to A. G. and V. R., who were dependents under the permanent plan of long term foster care. Ms. L. was currently in a substance abuse program at the CRC, and her approximate release date was September 2007. She had not had visitation with S. R. since August 2006. S. R.’s placement with her foster parents continued to be “appropriate and necessary,” and her foster parents were willing to adopt her.
In February 2007, the uncontested six-month review hearing was held. The juvenile court continued all prior orders.
On July 3, 2007, the twelve-month review report was filed. The social worker recommended termination of reunification services to Mr. R., and that the matter be set for a section 366.26 hearing. The social worker also stated that Mr. R. and Ms. L. were in custody, and that S. R. was continuing to do well in the concurrent foster home.
While the Department conducted an adoption home study during the summer of 2007, concerns arose regarding the foster parents’ frequent changes of address and cell phone numbers and their failure to provide the documentation required for completion of the adoption home study. On September 10, 2007, the Department received an anonymous report that a “suspicious individual” was visiting the foster parents’ home. Following an investigation, the Department learned that this individual was the foster mother’s ex-husband, who had been convicted of molesting her daughter. The foster parents had also allowed him to be with their children when they were not home.
On September 12, 2007, the social worker, Sharon Gold, contacted a maternal aunt, Lucille D. She declined placement for S. R., because she and her husband worked full time and they were caring for Ms. L.’s older daughters V. R. and A. G. Gold also contacted Patti R., whose husband is Ms. L.’s cousin. Ms. R. also declined placement, because she and her husband worked full time, they had their own children, and they did not think that they could care for a baby. Gold was unaware that Ms. L. had a brother in Illinois.
On September 20, 2007, the social worker prepared an addendum report regarding the applicability of the ICWA. Mr. R. reported that he might have Native American heritage on August 10, 2007, and he provided a friend’s phone number who had contact with Mr. R.’s paternal uncle, Eddie R. The social worker contacted Eddie R. who stated that his mother’s father was “ ‘part-Indian.’ ” However, his mother was deceased and Eddie R. did not know which tribe was related to his family.
On September 21, 2007, the 12-month permanency hearing was held. Gold did not inform the parties or the court that the placement was under investigation. Following the hearing, the juvenile court terminated reunification services to Mr. R., continued prior orders, and set the matter for a section 366.26 hearing.
On September 27, 2007, Ms. L. was transferred from state prison to the drug and alcohol treatment program at Walden House in San Francisco.
In later September or early October 2007, Gold transferred the case to another social worker, Thinh Ngo.
On October 5, 2007, the Department gave notice to the foster parents that S. R. would be moved. The foster parents objected to S. R.’s removal and requested a grievance hearing, which was held on October 15 and 18, 2007. The Department notified S. R.’s attorney, who was unable to attend. Neither the parents nor the parents’ attorneys were notified. On October 29, 2007, the hearing officer upheld the Department’s decision. On November 2, 2007, the Department moved S. R. from the foster parents’ home.
On December 7, 2007, Ngo spoke with Ms. L. at a review hearing for A. M. He told her that S. R. had been moved to a new foster home. Ms. L. asked for visits with S. R., but she did not provide the names of relatives who might be willing to have S. R. placed with them.
On January 9, 2008, the report for the section 366.26 hearing was filed. Ngo recommended the termination of parental rights for both parents and approval of adoption as the permanent plan. He explained the circumstances leading to the change in S. R.’s placement. Ngo then described S. R.’s adjustment to the new prospective adoptive parents. Though S. R. initially experienced some difficulties, she became increasingly attached to them, referring to them as “ ‘dad’ ” and “ ‘mom.’ ” The prospective adoptive parents had completed an adoption home study. Ngo also reported that there was not a solid bond between Ms. L. and S. R., and consequently S. R. did not recognize Ms. L. at the last visit on December 10, 2007. S. R. was “very anxious and scared” during the beginning of this visit.
On January 18, 2008, Ms. L.’s attorney requested a continuance. The juvenile court continued the matter until March 14, 2008.
On March 7, 2008, Ms. L. filed a modification petition under section 388 in which she sought return of S. R. to her. Ms. L. alleged that she would have had “the opportunity to lobby and seek related relative placement of” S. R. if she had been notified of the change in S. R.’s placement in November 2007. Ms. L. also attached a declaration by Avonelle Hanley-Mills, the parenting coordinator at Walden House, who described Ms. L.’s progress at Walden House.
On March 25, 2008, Ngo filed an addendum report in which he included a Foster Parent/Child Attachment Assessment prepared by Gayle Ward of the Kinship Center. Noting that S. R. had lived with the prospective adoptive parents for one quarter of her life, Ward reported a significant attachment between them. However, S. R. became clingy, anxious, and unable to sleep for a couple of weeks after a supervised visit with Ms. L.
On March 28, 2008, the juvenile court held a hearing. At that time, Ms. L.’s counsel argued that Ms. L. was entitled to notice regarding the change in S. R.’s placement. He asserted that Ms. L. suffered detriment from lack of notice, because if she had known about the change in placement, she could have sought the return of S. R. to her or a placement with one of her relatives. The juvenile court continued the matter. At no time during the hearing did Ms. L. or her attorney suggest the names of relatives who might be considered for placement of S. R.
On April 2 and 8, 2008, Ngo filed addendum reports. He provided information regarding Ms. L.’s progress at Walden House, a 15-month substance abuse recovery program that promotes the reunification of mothers and their children. He stated that Ms. L. had successfully completed various classes at Walden House, and that S. R. would be allowed to live with Ms. L. in the program. However, he also noted that Ms. L. had completed a different 15-month recovery program after her release from jail in 1997. At that time, V. R., who was two years old, was allowed to live with Ms. L. in the program. When Ms. L. graduated from this program, she lived with two of her daughters for two years. However, she was unable to maintain her sobriety, and was incarcerated three more times. Ngo recognized that Ms. L. was currently doing well in a structured environment. However, he concluded that she was not ready to parent S. R. on her own in the community based on her lengthy substance abuse and criminal history. Ngo also stated that Ms. L. was never able to successfully parent any of her five children for any extended period of time. She had no relationship with A. M. and S. R., and had visited S. R. only seven times in two years.
On April 15, 2008, Ngo filed a report on visitation in which he included Ward’s observations of S. R.’s interactions with Ms. L., and her view that S. R.’s demeanor and behavior was different in other situations. According to Ward, “[n]ormally [S. R.] is an exuberant, talkative, intense, strong willed, often very funny and joyful child who laughs and talks very loudly.” However, her demeanor changes when she visits Ms. L. When S. R. realizes that she is going to a visit with Ms. L., she becomes “quite anxious.” Though Ms. L. was attentive and tried to engage S. R., S. R. remained cautious and eager to leave.
On April 18, 2008, the juvenile court granted Ms. L.’s request for a continuance so that she could be evaluated by Dr. Joseph Greene.
In May 2008, Marni Sandoval, a psychologist, conducted a Bonding and Attachment Evaluation regarding S. R.’s attachment to her current foster parents. She concluded that S. R. had fears and worries of being separated from and left by them, but that she had bonded with them and found comfort and safety in their presence. Sandoval also stated that “with continued nurturance, reassurance, structure, and unconditional caring and affection she will likely continue to grow more securely attached” to them.
On May 30, 2008, the juvenile court began the hearing on the section 388 petition. Dr. Greene, a child and adolescent psychiatrist, testified that he had reviewed various social worker reports and service logs in the present case. In his opinion, S. R. was securely attached to her prior foster parents, and would have been able to bond with Ms. L. in November 2007. About a month earlier, Dr. Greene also observed Ms. L. and S. R. at their sixth visit for one hour. The current foster father was present. Ms. L.’s interaction with S. R. was appropriate. However, the foster parent was the psychological parent to whom S. R. was attached. According to Dr. Greene, S. R. was anxious about her attachment to the current foster parents as a result of the trauma she suffered when she was removed from the prior foster parents, and thus it would be harmful to disrupt S. R.’s current placement. Dr. Greene found it sad that S. R. was not given the opportunity to be placed with Ms. L. in a highly supervised environment in November 2007. In his view, the soonest that S. R. could tolerate another change in placement would be when she was three years old. Dr. Greene did not conduct a mental status examination of Ms. L., and he did not review any prior psychiatric records. He also did not know much about Ms. L.’s substance abuse history.
At the conclusion of Dr. Greene’s testimony, the matter was continued to June 18, 2008. Based on Mr. R.’s request, the matter was then continued until July 21, 2008.
On July 21, 2008, Lupe C., Ms. L.’s brother filed a declaration in which he stated that he lived in Illinois with his wife and two children. Mr. C. was not aware of S. R.’s placement change in October or November 2007. However, he stated that if he had been aware of the change, he would have been willing to take her into his home and adopt her.
On the same day, Patricia R., the wife of Ms. L.’s cousin, filed a declaration. She stated that she and her family had regular contact with S. R. while she was living with the prior foster parents. Ngo contacted her in the late summer of 2007, and asked if she and her husband were willing to adopt S. R. According to Ms. R., Ngo did not explain any details regarding adoption or the possibility of economic assistance. Ms. R. and her husband were “waiting for the ruling on a hearing to determine if [the prior foster mother] was going to keep” S. R. They did not learn about the results of the hearing for many weeks. According to Ms. R., they would have adopted S. R. if Ms. L. had contacted them about the placement change. Nick R., Ms. L.’s cousin and Ms. R.’s husband, filed a declaration in which he stated that he had read his wife’s declaration and confirmed it.
On July 21, 2008, the contested hearing continued. Gold testified that she was the social worker during the reunification period for Mr. R. At that time, she knew that Ms. L. was going to be transferred from state prison to Walden House, but the transfer had not yet occurred. Gold acknowledged that the Department was investigating S. R.’s placement with the prior foster parents before the 12-month hearing on September 21. However, she did not discuss the issue with Ms. L. at this hearing, because the outcome of the investigation was uncertain. Gold also did not refer to the problems with the placement in any of her reports to the juvenile court. Though Gold investigated Lucille D. as well as Nick and Patti R. as relatives who might be interested in caring for S. R., she did not ask Ms. L. for the names of any other relatives. She was not aware that Ms. L. had a brother in Illinois. Gold did not know that children could be placed with their mothers at Walden House. However, even if she had known this, she would not have recommended placing S. R. in Ms. L.’s care. Gold considered such a placement to be high risk, because Ms. L. had never received reunification services from the Department and she had not been successful for long periods in maintaining sobriety outside of either incarceration or a residential program. According to Gold, Ngo was responsible for notifying Ms. L. when S. R. was moved, and if he failed to do so, it was a violation of the Department’s policies.
In late September 2007, Ngo became the social worker on this case. He did not notify either Ms. L. or her attorney when the seven-day notice of removal was given to the former foster parents on October 5, 2007. Ngo was aware that Gold had previously contacted two relatives about a possible placement for S. R. He contacted these relatives again in October 2007, and they stated that they did not want S. R. placed with them. When Ngo told Ms. L. about the change in S. R.’s placement on December 7, 2007, she asked about the current foster parents and questioned why S. R. had been removed from the previous placement.
Ngo denied that Ms. L. had told him that she had a brother in Illinois. He stated that even if he had known, he would not have recommended placement with her brother, explaining that the Interstate Compact Placement of Children process requires approximately four to six months, and S. R. needed an immediate placement.
When Ngo was preparing the report for the section 366.26 hearing in January, he would not have recommended S. R.’s placement with Ms. L. He explained that Ms. L. had only lived at Walden House for two to three months and she had not demonstrated that she could live successfully outside of a structured environment. At the time of the section 388 hearing, Ngo did not recommend the placement of S. R. with Ms. L. based on her inability to parent her four older children, her prior relapse after an in-patient recovery program, and her minimal contact with S. R. during S. R.’s lifetime.
Eleanor Parzen, a licensed clinical social worker at Walden House, testified that she first saw Ms. L. in November 2007. At that time, Ms. L. was depressed and had “big problems.” However, she had made excellent progress, participating in her classes and volunteering in the parenting center where she interacted well with the children. As of July 2008, Ms. L. had been in the program for 10 months, and she had at least five more months of participation. Ms. L. would have been eligible and was currently eligible to have her children living with her in the program. According to Parzen, Ms. L. ranked as one of the top three participants in the program over the past eight years.
Avonelle Hanley-Mills, the parent coordinator at Walden House, testified that there were 50 mothers in the program. She explained that children begin with day visits with their mothers, and progress to overnight visits. According to Hanley-Mills, Ms. L. could have S. R. in her care at Walden House. She also stated that if S. R. was placed with Ms. L., Walden House would assist Ms. L. when she left the program to obtain daycare services in the community.
Ms. L. testified that she was in state prison for a year, and then moved to Walden House on September 27, 2007. She notified Gold by letter of her progress and that she sought reunification with her children. She received reports, but no letters, from Gold and Ngo. The social workers also did not return her telephone calls. When Ngo informed her in early December 2007 that S. R.’s placement had been changed, she asked about reunification with S. R. Ngo told her it was impossible, because S. R. was in a concurrent adoption placement. Ngo did not explain why she had not been notified regarding the change in placement.
Ms. L. testified that she told Ngo about her brother in Illinois when Ngo interviewed her about possible placements for A. M. Ngo told her that it would be “too hard” to place S. R. with her brother, because he was in another state. Ms. L.’s brother was never contacted, and he told her that he was “interested in considering adopting” S. R.
Ms. L. testified that she had been sober for two years and 11 months. She attended Alcoholics Anonymous and Narcotics Anonymous meetings two to three times per week. She had day passes for these meetings, doctor appointments, shopping, and visits with her children. She was also subject to random drug testing. Ms. L. had 10 hours every weekend when she was entirely on her own. She also used passes to travel to Barstow where she visited her older daughters for four days in May 2007.
Following argument, the juvenile court denied the section 388 petition. The juvenile court acknowledged that Ms. L. had made “phenomenal progress.” Though the court had not heard or seen anything that required the social workers to notify the parents of a placement change, it believed that as a matter of fairness that they should be notified when a change in placement occurs. The juvenile court also stated: “If the Department had told you last July that a possible change was upcoming and if they had recognized that... you had finished a long-term program to deal with your substance abuse issues and were going into Walden House, then that might have been an appropriate time to start the transition of again having [S. R.] returned to you, because at that point she was only fourteen months old.” However, the court concluded that it would not be in S. R.’s best interest to reunify with Ms. L., because she was over two years old and had bonded with her current foster parents. The juvenile court also found that Gold and Ngo had contacted the possible relative placements “that they were aware of here in Salinas.”
II. Discussion
A. Failure to Provide Advance Notice of Change of Placement
Ms. L. contends that the Department’s failure to provide advance notice of S. R.’s change of placement violated her due process rights. She asserts that the Department was required to notify her in the summer of 2007, so that the juvenile court could have reviewed the matter at the twelve-month review hearing in September 2007. We conclude that there was no statutory or constitutional requirement to provide such notice.
1. Background
The Department became concerned about the foster parents’ frequent changes of address and cell phone numbers during the summer of 2007. On September 10, 2007, it received an anonymous report that a “suspicious individual” was visiting the home, and an investigation disclosed that this individual was a sex offender who had been left alone with the children. On October 5, 2007, the Department notified the foster parents that S. R. was being moved. After the foster parents sought administrative review of this decision, the Department removed S. R. from their home on November 2, 2007. Ms. L. was informed of the change of placement on December 7, 2007, approximately five weeks before the scheduled section 366.26 hearing. The section 366.26 hearing was continued, and 12 weeks after learning that S. R. had been removed from the foster parents’ home, Ms. L. brought the section 388 petition.
2. Analysis
The California constitution does not prohibit the juvenile court’s delegation of subordinate judicial duties. (In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1477.) However, the juvenile court retains jurisdiction to supervise the Department in the performance of these duties, thereby ensuring that the parent’s due process rights are protected. (In re Robert A. (1992) 4 Cal.App.4th 174, 188 (Robert A.).) The placement of dependent children is one of the subordinate judicial duties. Section 361.2, subdivision (e) permits the juvenile court to delegate direct supervision of a dependent child to the social worker, who may place the child in one of the statutorily enumerated placements. Pursuant to section 361.2, subdivision (g), the social worker must provide advance notice to the parent if the child will be placed outside the county to allow the parent the opportunity to object to such placement. However, neither section 361.2 nor any other dependency statute requires the social worker to provide advance notice to the parent when there is a change of placement under other circumstances. Thus, there is no statutory right to such notice.
Though placement with a relative is given preference in the dependency scheme, none of the statutes relating to this type of placement requires advance notice to the parents of a change in placement. (See §§ 361.3, 361.31, 361.4.)
We next consider whether the Department’s failure to notify Ms. L. in the summer of 2007 violated her procedural due process rights. The state and federal Constitutions guarantee that no state shall deprive a person of life, liberty or property without due process of law. (In re Marilyn H. (1993) 5 Cal.4th 295, 306 (Marilyn H.).) In David B. v. Superior Court (2006) 140 Cal.App.4th 772 (David B.), the appellate court outlined the principles applicable to a due process analysis. “ ‘Although the state and federal Constitutions differ somewhat in determining when due process rights are triggered, once it has been concluded that a due process right exists we balance similar factors under both approaches to decide what process is due. [Citation.] This flexible balancing standard considers “ ‘(1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the [dignity] interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.’ ” [Citation.]’ ” (David. B., at pp. 777-778.)
Ms. L. relies on Robert A, supra, 4 Cal.App.4th 174, 188, for the proposition that “[d]ue process requires notice of a change of placement.” This reliance is misplaced. In that case, the reviewing court held that the juvenile court erred in denying the children’s counsel’s request to be given notice of placement changes so that she could maintain contact with the children. (Robert A., at pp. 191-192.) The court did not consider whether a parent is also entitled to such notice. Here, S. R.’s counsel received notice of the administrative hearing in which the Department sought to move S. R. from the foster parents’ home.
Though a parent’s interest in his or her child’s companionship, care, custody, and management is ranked among the most basic of civil rights (In re B. G. (1974) 11 Cal.3d 679, 688), Ms. L.’s interest that could be affected by the official action, that is, the change in placement, was insignificant. Ms. L.’s interest in S. R.’s companionship, care, custody, and management had already been severely restricted. Her custody rights had been taken away, she was never offered reunification services, her visitation rights were extremely limited, and she had no practical or psychological relationship with S. R. Though section 361.3, subdivision (a)(1) required that the Department consider Ms. L.’s wishes regarding S. R.’s placement with a relative, her wishes were only one of many factors that the Department was required to consider in determining the child’s best interests. Since Ms. L.’s interest in S. R.’s placement was minimal, this factor weighs against a due process requirement of advance notice of a placement change.
The risk of an erroneous deprivation of Ms. L.’s interest was minimal. The Department had already been given the authority to determine S. R.’s placement as well as to change that placement, and it possessed far greater information and expertise regarding the various possibilities for placement than Ms. L. did. Moreover, Ms. L. had the opportunity to object to the placement change shortly after it occurred. Thus, this factor also weighs against a due process requirement of advance notice.
The dignity interest in notifying Ms. L. of the “nature, grounds, and consequences” of the placement change and providing her with the opportunity to tell her “side of the story before a responsible governmental official” weighs in Ms. L.’s favor. (David B., supra, 140 Cal.App.4th at pp. 777-778.) Ms. L.’s parental rights had not yet been terminated, and thus she retained a dignity interest in learning about where S. R. was living and enabling her to discuss or challenge the placement determination with the social worker.
The governmental interest is a factor that weighs against the requirement of providing advance notice of a placement change in the present case. Though providing such notice would have a minimal, if any, fiscal effect, it could potentially have created a significant administrative burden. Under certain circumstances, a parent’s involvement before the Department had reached a final decision could create substantial delays that would interfere with the child’s need for an expeditious determination regarding the change of placement. Moreover, some placements must be made confidentially to prevent the parent from interfering with the placement.
Here, though Ms. L. had a dignity interest in receiving notice regarding the change of placement, her liberty interest in the decision was minimal, her contribution to this decision was not likely to be significant, and the governmental interest in determining the best placement for S. R. with as few impediments as possible was substantial. Balancing these factors, we conclude that due process did not require that the Department provide advance notice of S. R.’s change of placement. However, we also note that if Ms. L. had been receiving reunification services or her visits with S. R. had been affected by the placement change, our conclusion might very well have been different. Thus, we agree with the Department and the juvenile court that it is a better practice to provide a parent with advance notice of any change of placement.
B. Failure to Consider Relative Placement
Ms. L. also contends that the Department’s failure to consider relatives for placement when S. R.’s concurrent foster home became unavailable violated her and S. R.’s substantive due process rights. Assuming that Ms. L. has standing to raise this issue (see In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1053-1054 (Esperanza C.), we find no merit to this contention. Ms. L. has presented no legal authority that either she or S. R. had a substantive due process right that was violated by the Department.
Smith v. City of Fontana (9th Cir. 1987) 818 F.2d 1411 (Smith) cert. denied Nov. 2, 1987, 484 U.S. 935, overruled on other grounds Hodgers-Durgin v. De La Vina (9th Cir. 1999) 199 F.3d 1037, and Esperanza C., supra, 165 Cal.App.4th 1042 do not support her contention. In Smith, children brought a civil rights action for the violation of their substantive due process rights after the police shot their father. The appellate court held that a constitutionally protected liberty interest “in familial companionship and society logically extends to protect children from unwarranted state interference with their relationships with their parents.” (Smith, at p. 1418.) In Esperanza C., the agency rejected an aunt and uncle’s request for placement of a dependent child in their home after she had been placed in protective custody, because the uncle had previously been convicted of various crimes. (Esperanza C., at p. 1050.) The appellate court held that the juvenile court had jurisdiction to review the agency’s denial of a criminal records exemption under the abuse of discretion standard. (Esperanza C., at p. 1060.) In discussing whether the mother and the child had standing to challenge the agency’s action, the court stated that “a child has a legally cognizable interest in his or her placement with a relative.” (Esperanza C., at p. 1053.) In neither Smith nor Esperanza C. did the courts hold that the parent or the child had a substantive due process right that extended to other familial relationships.
C. Section 388 Petition
Ms. L. next argues that the juvenile court abused its discretion in denying her section 388 petition in which she sought placement of S. R. with her.
Section 388 provides in relevant part that “[a]ny parent or other person having an interest in a child who is a dependent child of the juvenile court... may, upon grounds of change of circumstance or new evidence, petition the court... for a hearing to change, modify, or set aside any order of court previously made.... [¶]... [¶] If it appears that the best interests of the child may be promoted by the proposed change or order... the court shall order that a hearing be held....”
As the court explained in In re Daniel C. (2006) 141 Cal.App.4th 1438, “[t]he 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. The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. The denial of a section 388 motion rarely merits reversal as an abuse of discretion.” (Id. at p. 1445, internal citations and quotation marks omitted.)
After the juvenile court has set a section 366.26 hearing, the child’s need for stability and permanency is paramount and outweighs the parent’s interest in reunification. At that point, the parent can succeed on a section 388 petition only by overcoming the rebuttable presumption in favor of continued foster care and proving that, due to changed circumstances, reunification is in the child’s best interest. (In re Marilyn H., supra, 5 Cal.4th 295, 309-310.) The proper factors for a juvenile court to consider in deciding whether to grant a section 388 petition are: “(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.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.)
Here, Ms. L. demonstrated a change of circumstances by making significant progress in an in-patient substance abuse treatment program. After reunification services were terminated, she completed parenting classes, participated in drug and alcohol treatment and 12-step programs, and submitted to random drug testing. However, Ms. L. failed to show that a change in placement would be in S. R.’s best interest. Long-term substance abuse is a very serious problem, and is enormously difficult to overcome. When the section 388 hearing was held, Ms. L. had seriously engaged in recovery efforts for approximately two years and 11 months in institutional settings. Though Ms. L. had previously participated in an in-patient recovery program for 15 months in 1997, she eventually lost custody of her two older daughters. Given her 17 years of substance abuse and her failure to maintain sobriety outside of an institutional setting, the likelihood that her efforts in the community would be successful could not reliably be discerned. Moreover, Ms. L. had had very few visits with S. R., and thus, S. R. did not have a bond to Ms. L. Meanwhile, S. R. had become increasingly attached to the foster parents who sought to adopt her. S. R.’s attachment was much stronger to the foster parents than it was to Ms. L. In addition, expert testimony established that a present change in placement would be psychologically damaging to S. R. Under these circumstances, the juvenile court could reasonably conclude that Ms. L.’s admirable efforts to improve her life were inadequate to justify imperiling S. R.’s opportunity to be adopted by the foster parents with whom she had formed a significant bond. Thus, the juvenile court did not abuse its discretion in denying Ms. L.’s section 388 petition that S. R. be returned to her custody.
Ms. L. also argues that the juvenile court abused its discretion in denying the section 388 petition and failing to order the Department to locate and evaluate relatives as placements for S. R. Assuming that Ms. L. has standing to challenge the juvenile court’s order on this ground (see Esperanza C., supra, 165 Cal.App.4th 1042, 1053-1054), the argument has no merit.
When the juvenile court has placed the child under the supervision of the social worker, he or she may place the child in relative or foster care. (§ 361.2, subd. (e).) However, “preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative.” (§ 361.3, subd. (a).) The agency is also required to exercise diligent efforts in locating an appropriate placement. (Fam. Code, § 7950, subd. (a)(1).)
Ms. L.’s arguments are premised on inferences from the evidence and credibility determinations that are contrary to the juvenile court’s findings. She relies primarily on the declarations submitted by her relatives, which contradicted the social workers’ testimony. However, “[t]he issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to all appeals. If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.] We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court’s order, and affirm the order even if other evidence supports a contrary conclusion.” (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333.)
Here, substantial evidence supports the juvenile court’s finding that the social workers properly evaluated the possible relative placements. Prior to the jurisdictional hearing in July 2006, the social worker asked both Ms. L. and Mr. R. for information about potential relatives that might be interested in being considered for placement for S. R. Ms. L. suggested that her mother might be a possible placement consideration. The maternal grandmother, however, stated that she was not able to care for S. R. When the Department was considering the change of placement in September 2007, Gold contacted additional maternal relatives. On September 12, 2007, she contacted Lucille D., who declined placement for S. R., because she and her husband worked full time and they were caring for Ms. L.’s older daughters V. R. and A. G. Gold also contacted Patti R., who declined placement, because she and her husband worked full time, they had their own children, and they did not think that they could care for a baby. Ngo contacted these same relatives again in October 2007, and they stated again that they did not want S. R. placed with them. Ms. L. did not tell Ngo that she had a brother in Illinois. Even if Ngo had known about this relative, he would not have recommended S. R.’s placement with him, because an out-of-state placement requires four to six months and S. R. needed an immediate placement. At that time, reunification services had been terminated for Ms. L. and were about to be terminated for Mr. R., S. R. was highly adoptable, and the Department was projecting adoption as the permanent plan. Given these factors and that S. R.’s relatives were not interested in providing a permanent home for her, the Department properly rejected them as appropriate placements. (§ 361.3, subd. (a)(7)(H).) Thus, the juvenile court did not abuse its discretion in denying the section 388 petition to the extent that it sought placement with one of Ms. L.’s relatives.
D. The ICWA
Ms. L. contends that the juvenile court failed to comply with the notice provisions of the ICWA. The Department properly concedes that the matter must be remanded for compliance with the ICWA.
The ICWA applies to juvenile dependency proceedings when an Indian child is the subject of those proceedings. (See, e.g., In re Pedro N. (1995) 35 Cal.App.4th 183, 186 188.) The Department shall provide notice to an identified tribe or the Bureau of Indian Affairs if “there is reason to know that an Indian child is involved....” (Cal. Rules of Court, rule 5.481(b); see also 25 U.S.C.A. § 1912(a).) “The failure to comply with the notice requirements of the ICWA constitutes prejudicial error unless the tribe has participated in or indicated no interest in the proceedings.” (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1265.)
Here, the Department attempted to incorporate and rely on the ICWA notices that were sent in the case involving one of Ms. L.’s other children, A. M. In In re Alice M. (2008) 161 Cal.App.4th 1189, this court held that the Department failed to properly notify the Navajo and Apache tribes and reversed. Thus, the Department had not complied with the ICWA in the present case.
The Department also failed to comply with the ICWA as it relates to Mr. R. Mr. R. claimed Indian ancestry on August 10, 2007. Though the social worker contacted Mr. R.’s relative, this relative was unable to provide any additional information. As of July 25, 2008, no one in Mr. R.’s family had identified a tribe to which he might belong. However, “[i]f the identity of the tribe cannot be determined, notice must be given to the Bureau of Indian Affairs.” (In re Robert A. (2007) 147 Cal.App.4th 982, 988, citing 25 U.S.C.A § 1912(a).) Here, the record does not include the proof of service stating that the ICWA notice was sent to the Bureau of Indian Affairs.
A. M. and S. R. have different fathers.
III. Disposition
The order is reversed. The case is remanded to the juvenile court with directions to order the Department to complete notice to the tribes and the Bureau of Indian Affairs in accordance with the ICWA. If, after proper notice, the court finds that S. R. is an Indian child, the court shall proceed in conformity with the ICWA. If, after proper notice, the court finds that S. R. is not an Indian child, the order shall be reinstated.
WE CONCUR: McAdams, J., Duffy, J.