Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. J35952, Ct. No. J35952
SIMONS, Acting P.J.
D.R. (Father) and A.R. (Mother) appeal from denial of their petitions under Welfare and Institutions Code section 388 and from a judgment terminating their parental rights to U.R. Mother contends the juvenile court erred in denying her section 388 petition seeking resumption of reunification services and in finding inapplicable the beneficial relationship exception to termination of parental rights. Both Mother and Father (collectively, appellants) contend the court erred in terminating their parental rights because the Solano County Health and Social Services Department (Department) failed to comply with the notice requirements of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). We affirm the denial of the section 388 petitions and the juvenile court’s finding regarding the beneficial relationship exception, but we reverse the judgment and remand for the limited purpose of complying with the ICWA notice requirements.
All undesignated section references are to the Welfare and Institutions Code.
This court granted the Department’s motion to consolidate the appeals in A120908 and A121454 for purposes of briefing, oral argument, and decision.
BACKGROUND
Appellants are the biological parents of U.R., born in November 2004. In October 2005, the Department placed U.R., who was almost 11 months old, in protective custody and filed a juvenile dependency petition pursuant to section 300, subdivision (b). An amended petition alleged that U.R.’s medical and other needs were not being taken care of, appellants had substance abuse problems, and Father was physically abusive towards Mother. The juvenile court sustained the amended petition and ordered that U.R. remain detained and that appellants be offered reunification services. Those orders were continued at the 90-day and six-month status review hearings.
In November 2006, the Department submitted a report for the 12-month review hearing. Father barely visited U.R. during the prior six months and Mother missed approximately half the visits. Mother missed four out of nine parenting classes during the reporting period and Father missed three. Mother and Father began substance abuse treatment programs in August and September 2006, respectively. Neither parent had begun individual or domestic violence therapy. The Department recommended termination of reunification services. The matter was resolved on November 9, 2006, pursuant to a stipulation of the parties that, among other things, reunification services would be terminated and the section 366.26 permanent plan selection hearing would be set for May 2007. That date was later than originally proposed by the Department and was intended to provide additional time for appellants to comply with their case plans.
Mother gave birth to twin boys in February 2007. The juvenile court found that the twins came under section 300 and ordered them placed with Mother under Department supervision.
The Department’s April 2007 section 366.26 hearing report concluded that U.R. is adoptable and termination of appellants’ parental rights would not be detrimental to him. Mother continued to miss some visits with U.R., did not plan appropriate activities for the visits, and sometimes watched television or spoke on the telephone during the visits. The Department stated U.R.’s interactions with Mother were more social than parental: He did not look to her for emotional stability, did not express anxiety on separating from her, and did not initiate affection towards her. Father was not visiting U.R. U.R. had been residing with a potential adoptive foster family for five months, and he was bonded to them. The Department recommended termination of appellants’ parental rights.
On May 10 and 11, 2007, respectively, both Father and Mother filed section 388 petitions requesting that the court’s orders be changed. Father alleged he had not used methamphetamines since August 2006, had been in a residential treatment program since December 2006, and had attended anger management classes. He requested reinstatement of reunification services. Mother alleged she had been sober since August 2006 and had participated in substance abuse treatment, therapy, domestic violence counseling, and parenting classes. She requested either return of U.R. with family maintenance services, or reinstatement of reunification services.
On June 14, 2007, the Department filed an addendum to its section 366.26 hearing report. Service providers had expressed concern that Mother was feeling overwhelmed trying to care for her infant twins. Mother had left the children with another parent, who was seeking to reunify with her own children, and with Mother’s mother, who is on probation and was found with “a hypodermic needle or crystal meth” in her car. The Department pointed out that leaving U.R. with friends was one of the circumstances that originally led to his detention. Moreover, the quality of the visits between U.R. and Mother was deteriorating. U.R. was stating that he did not want to visit Mother and he experienced anxiety before visits. Mother had canceled four visits during May and June.
U.R.’s counsel filed a response opposing the section 388 petitions and arguing that services should have been terminated after six months of reunification services.
Evidentiary hearings on the section 388 petitions took place in September, October, and December 2007. Appellants generally testified consistently with the allegations of their petitions. The Department presented a number of witnesses. A marriage and family therapist testified that U.R. displayed inappropriate attachment behaviors, he was at risk of developing a severe attachment disorder due to the repeated disruptions in caregivers, and the most important thing for him was to have consistency and reliability. The social worker assigned to manage Mother’s family maintenance case regarding the twins testified that Mother told her she was overwhelmed with caring for the twins and that Mother once asked her whether the Department would allow Mother’s substance abuse sponsor to take guardianship of the twins. The social worker assigned to U.R.’s case testified U.R. was “very integrated” into the foster home and viewed the other children in the foster home as siblings.
The juvenile court found appellants had made significant progress and had shown a change in circumstances by a preponderance of the evidence. However, the court found appellants had not shown the proposed changes in the court’s orders were in U.R.’s best interest, in light of the length of time he had been in foster care and the degree of his attachment to his foster parents. The court denied the section 388 petitions and set the matter for a section 366.26 hearing in February 2008. The hearing was subsequently continued to April 2008.
On February 5, 2008, the Department filed a second addendum to the section 366.26 hearing report. Over the preceding 14 months, U.R. had found stability in his foster home. In contrast, during the reporting period Mother had attended most but not all the visits with U.R.; Father attended one visit. Mother often failed to bring lunch for U.R. or an activity for him to do. During visits, appellants did not assume a caretaking role with U.R. Although U.R. sought out his foster parents for comfort when in their presence, during the visits with appellants he looked to the social workers to soothe him. Mother was living with friends. Because there was drinking and marijuana smoking in the home, Mother was having the twins stay with other friends.
U.R.’s counsel filed a brief requesting that appellants’ parental rights be terminated and that U.R. be freed for adoption. The section 366.26 hearing took place on April 23, 2008. Mother’s counsel stated Mother’s objection to termination of her rights and asked that Mother be excused; Father testified regarding the logistical difficulty of visiting U.R. and the bond he felt with his son; and the social worker assigned to the matter testified regarding U.R.’s relationship with his foster family. Following oral argument from counsel, the juvenile court found that U.R. was adoptable, no exception to the termination of parental rights applied, and there would be no detriment to U.R. should the court terminate parental rights. The court terminated parental rights and selected adoption as the permanent plan.
At various points in the proceedings the Department sent notices pursuant to the ICWA. In October 2005, the Department mailed a notice to the Bureau of Indian Affairs (BIA) because Father claimed his family had unspecified Indian ancestry. Father subsequently filed a notice indicating he had possible Cherokee ancestry, and Mother filed a notice indicating she had possible Blackfeet and Cherokee ancestry. In June and August 2006, the Department sent notices to the BIA, the Blackfeet Tribe, and three Cherokee tribes, referring to U.R. and Mother’s possible Indian ancestry. The notices did not refer to Father’s possible Indian ancestry.
On March 7, 2008, the Department sent an additional notice to the BIA, the Blackfeet Tribe, and three Cherokee tribes. The notice once again failed to indicate Father’s possible Indian ancestry. On March 17, 2008, another notice was sent to the BIA and the same tribes. The notice included a copy of U.R.’s birth certificate, a copy of the original section 300 petition, and additional information regarding the names of some of U.R.’s relatives. The notice once again failed to include Father’s possible Indian ancestry. In April 2008, the Department filed a supplemental report attaching letters received from two Cherokee tribes, both determining that U.R. was not a member or eligible for membership. At the start of the section 366.26 hearing on April 23, 2008, the juvenile court found the ICWA inapplicable, with the concurrence of all counsel.
DISCUSSION
I. Denial of Mother’s Section 388 Petition
Appellants contend the juvenile court erred in denying Mother’s section 388 petition, seeking either return of U.R. or resumption of family reunification services. Under section 388, a parent may seek modification of a previous order of the court upon a showing of a change of circumstances and that the proposed change is in the “best interests” of the dependent minor. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.); In re Jasmon O. (1994) 8 Cal.4th 398, 415 (Jasmon O.); see also In re Casey D. (1999) 70 Cal.App.4th 38, 47 (Casey D.).) The moving party, here Mother, has the burden of making the required showings by a preponderance of the evidence. (Stephanie M., at p. 317.) The denial of a section 388 petition is reviewed under the abuse of discretion standard. (Id. at p. 318.) “ ‘ [“]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.” ’ [Citations.]” (Id. at pp. 318-319.)
Father joins in Mother’s arguments regarding denial of her section 388 petition; he does not contend the juvenile court erred in denying his petition.
Section 388, subdivision (a) provides in pertinent part that: “Any 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 in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.”
Mother asserts she “met all of the requirements of the case plan and presented a legitimate change of circumstances.” The juvenile court largely agreed, finding she “made significant and even remarkable progress in rectifying the issues that caused the removal of U.R. . . . The court finds that the parents have shown a change of circumstances by a preponderance of the evidence.” However, “[i]t is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child. [Citation.]” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529 (Kimberly F.).) The juvenile court found that Mother failed to make that showing: U.R. “has been in foster placement too long and has become too attached to his foster parent. The severing of the bonds that have been formed is detrimental to him and not in his best interests.”
In considering whether granting a section 388 petition is in a dependent minor’s best interests, the juvenile court should consider a number of factors, including the seriousness of the original reason for the dependency, the nature of the change in circumstances, the strength of the existing bond between the parent and minor, the strength of the minor’s bond to his present caretakers, and “the length of time a child has been in the dependency system in relationship to the parental bond.” (Kimberly F., supra, 56 Cal.App.4th at pp. 530-531.)
The Kimberly F. factors demonstrate the juvenile court did not abuse its discretion in concluding Mother failed to show a grant of the section 388 petition was in U.R.’s best interest. In contrast to Kimberly F., supra, 56 Cal.App.4th at p. 532, which was a “dirty house” case, the circumstances resulting in removal of U.R. were very serious, involving drug use, neglect, and domestic violence. Mother made a substantial effort to improve her personal circumstances, but there continued to be concerns regarding the stability of her situation. Although the evidence showed Mother had tested negative for drugs for over a year, she was only at step one of the 12 steps of her drug treatment program. (See Casey D., supra, 70 Cal.App.4th at p. 43.) Mother reported being overwhelmed with caring for the twins, going so far as to once explore the idea of giving custody of them to her sponsor under a guardianship.
Mother asserts the primary reason her petition was denied was because she lacked proper housing; she contends it was improper to deny her petition due to her economic circumstances. She relies on language in Kimberly F., supra, 56 Cal.App.4th at pp. 529-530, cautioning that the “best interests” analysis is not a simple comparison between two households, which would improperly favor socioeconomically advantaged households. However, the record does not reflect that the juvenile court engaged in such a comparison, or that Mother’s lack of appropriate housing was the dominant factor in denial of her section 388 petition.
Furthermore, the record did not reflect a particularly strong bond between Mother and U.R. At the time of the late 2007 section 388 hearing dates, U.R. was about three years old. He was detained when he was only about 11 months old, and during at least a portion of those first eleven months of life he suffered serious neglect, including being left for days with friends. During the first year of the dependency, Mother was inconsistent in her visitation, and she occasionally missed visits thereafter. The record is mixed regarding the quality of the visits between Mother and U.R. and the degree of affection displayed by U.R. There was substantial evidence that, starting in spring 2007, U.R. exhibited great resistance to visiting with Mother and displayed anxiety and anger around the visits. When the visits went well during 2007, it was often due to the involvement of a social worker in initiating play and role modeling for Mother. Mother often did not plan appropriate activities and snacks for the visits, and sometimes she watched television or spoke on the telephone during the visits. U.R.’s interactions with Mother were more social than parental: He did not look to her for emotional stability, did not express anxiety on separating from her, and did not initiate affection towards her.
Mother suggests that U.R.’s foster mother was undermining her visits with U.R. However, there is no evidence in the record supporting that speculation. To the contrary, the social worker assigned to the case testified that the foster parents wanted the visits to be a positive experience and sought ways to make them less traumatic. The foster mother testified regarding her efforts to make the transitions to the visits easier and more positive.
On the other hand, there is no significant dispute that, after an initial period of adjustment, U.R. developed a substantial bond with his foster family. He was well integrated into the foster home and viewed the other children in the foster home as siblings. “While the bond to the caretaker cannot be dispositive [citation], lest it create its own self-fulfilling prophecy, . . . the disruption of an existing psychological bond between dependent children and their caretakers is an extremely important factor bearing on any section 388 motion. [Citation.]” (Kimberly F., supra, 56 Cal.App.4th at p. 531.) This is especially true after termination of reunification services, when “the parents’ interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point ‘the focus shifts to the needs of the child for permanency and stability’ [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interest of the child. [Citation.]” (Stephanie M., supra, 7 Cal.4th at p. 317; see also Jasmon O., supra, 8 Cal.App.4th at p. 419; Crystal R. v. Superior Court (1997) 59 Cal.App.4th 703, 724.)
The juvenile court did not abuse its discretion in denying Mother’s section 388 petition.
II. Termination of Parental Rights
Appellants also argue the juvenile court erred in terminating their parental rights at the April 2008 section 366.26 hearing. Mother contends the court erred in finding there did not exist a beneficial parent-child relationship between her and U.R. such that termination of parental rights would be detrimental to U.R. Mother does not contest the court’s finding that U.R. was likely to be adopted if parental rights were terminated.
Father joins in Mother’s arguments on this issue. He contends that, if the juvenile court erred in terminating Mother’s parental rights, the court erred in terminating his as well. But, aside from the ICWA issue, he does not otherwise contend the juvenile court erred in terminating his parental rights.
“At a section 366.26 hearing the court is charged with determining a permanent plan of care for the child. If a child is likely to be adopted, adoption is the plan preferred by the Legislature. [Citation.] The Legislature has provided an exception to the general rule of adoption: the court should not order a permanent plan of adoption when termination of parental rights would be detrimental to the child because ‘[t]he parents . . . have maintained regular visitation and contact with the [child] and the [child] would benefit from continuing the relationship.’ (§ 366.26, subd. (c)(1)(A).)” (Casey D., supra, 70 Cal.App.4th at p. 50.) We review the juvenile court’s finding regarding the beneficial relationship exception under the substantial evidence standard. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576 (Autumn H.).)
At least one published decision, In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351, has held that the proper standard of review is abuse of discretion. Both standards of review accord substantial deference to the juvenile court’s determination.
The beneficial relationship exception contemplates a relationship that “promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated. [¶] Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.” (Autumn H., supra, 27 Cal.App.4th at p. 575; see also Casey D., supra, 70 Cal.App.4th at pp. 50-51.) That standard “reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist.” (Casey D., at p. 51.)
Although the beneficial relationship exception does not require proof that the dependent minor has a “primary attachment” to the noncustodial parent or that the noncustodial parent has maintained day-to-day contact with the minor (In re S.B. (2008) 164 Cal.App.4th 289, 300), the showing required to justify application of the exception will be difficult to make in a situation, such as the present one, where the parents had custody of the dependent minor for a relatively short time and never advanced beyond supervised visitation. (See Casey D., supra, 70 Cal.App.4th at p. 51.) “The difficulty is due to the factual circumstances of the parents in failing to reunify and establish a parental, rather than caretaker or friendly visitor relationship with the child.” (Ibid.)
This is not an exceptional case where a beneficial parent-child relationship existed at the time of the section 366.26 hearing. As noted previously, the record does not reflect a particularly strong bond between Mother and U.R. In the case Mother relies on, In re S.B., supra, 164 Cal.App.4th 289, the appellant father was the minor’s primary caregiver for three years (id. at p. 298) and the record showed that the minor “loved her father, wanted their relationship to continue and derived some measure of benefit from his visits” (id. at p. 301). Moreover, when the minor was removed from the father’s care he “immediately recognized that his drug use was untenable, started services, maintained his sobriety, sought medical and psychological services and maintained consistent and regular visitation with [the minor]. He complied with ‘every aspect’ of his case plan.” (Id. at p. 298.) The facts in this case are different. Mother was U.R.’s primary caregiver for less than 11 months and was negligent in caring for him during that period. Mother’s visitation record over the entire dependency is inconsistent, both in terms of regularity and the appropriateness of her conduct. It took Mother a long time to come into substantial compliance with her case plan. Finally, the record shows that U.R. at times strongly resisted visits with Mother.
The record does not show that the relationship between Mother and U.R. promotes the well-being of U.R. to such a degree that it outweighs the well-being he would gain in a permanent home with adoptive parents. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Substantial evidence supports the juvenile court’s finding that the beneficial relationship exception does not apply.
III. Notice Under the ICWA
Father contends termination of parental rights violated the ICWA because the Department failed to provide proper notice to the relevant tribes. We agree.
Mother joins in Father’s arguments on the ICWA issue.
“The ICWA provides that ‘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).) If the tribe is unknown, the notice must be given to the Bureau of Indian Affairs as the agent for the Secretary of the Interior. (Ibid.; 25 C.F.R. § 23.11 (2003); In re Edward H. (2002) 100 Cal.App.4th 1, 4.) ‘No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the . . . tribe or the [Bureau].’ (25 U.S.C. § 1912(a).)” (In re Daniel M. (2003) 110 Cal.App.4th 703, 707; see also §§ 224.2, 224.3.)
“Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families.” (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) Section 224.2, subd. (a)(5), specifies that the notice must include, among other things, if known: (1) the name, birthplace, and birth date of the Indian child; (2) the name of the tribe in which the Indian child is a member or may be eligible for membership; (3) names and addresses of the child’s parents, grandparents, great-grandparents and other identifying information; (4) a copy of the dependency petition; (5) a copy of the child’s birth certificate; (6) contact information for the court and the parties; and (6) a statement of the right of the tribe to intervene in the proceedings. All tribes of which the child may be a member or eligible for membership must be provided notice. (§ 224.2, subd. (a)(3); In re Louis S. (2004) 117 Cal.App.4th 622, 632-633.) Notice to a tribe provides it an opportunity to assert its rights. (In re Karla C. (2003) 113 Cal.App.4th 166, 174 (Karla C.).) The goal of the Legislature in enacting section 224.2 was to increase compliance with the ICWA in order to foster Indian children’s connections with their tribal heritages. (In re J.T. (2007) 154 Cal.App.4th 986, 993.) Any time additional information comes to light, renewed notice must be provided to the relevant tribes. (§ 224.3, subd. (f).) “[S]trict adherence” to the ICWA notice provisions is required. (In re Desiree F. (2000) 83 Cal.App.4th 460, 474-475; see also In re Francisco W. (2006) 139 Cal.App.4th 695, 703.)
In this case, Father contends the Department failed to comply with the ICWA in various respects: (1) the Department’s notices did not indicate Father claimed Cherokee heritage; (2) copies of the March 17, 2008 notice to two tribes were not properly addressed; and (3) no receipts evidencing the fact and date of delivery of the March 17, 2008 notice were provided to the court.
In December 2005, Father filed a “Parental Notification of Indian Status” form indicating that he is or may be a member of or eligible for membership in the Cherokee tribe. Nevertheless, none of the Department’s notices, including the final notice (dated March 17, 2008), indicated that Father might have Cherokee heritage.
The Department contends there was no violation of the ICWA because all three federally-registered Cherokee tribes were sent notices indicating that U.R. may be eligible for membership, including the March 17, 2008 notice. The March 17 notice indicates that Mother is potentially affiliated with the Cherokee and Blackfeet tribes, but Father’s affiliation is listed as “Unknown.” Without citation to authority, the Department asserts that, based on the notice, the Cherokee tribes had “sufficient reason and opportunity to check the names of all [Father’s] known ancestors on their tribal rolls.”
“ ‘[T]o establish tribal identity, it is necessary to provide as much information as is known on the Indian child’s direct lineal ancestors.’ (25 C.F.R. § 23.11(b) (2003).)” (Karla C., supra, 113 Cal.App.4th at p. 175; see also § 224.2., subd. (a)(5)(C) [tribes should be provided “all” known “identifying information” regarding the minor’s parents]; Karla C., at p. 178 [“all known relevant information”]; Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 865 [same]; In re Francisco W., supra, 139 Cal.App.4th at p. 703 [“[i]t is essential to provide . . . all available information”].) That Father potentially has Cherokee heritage was relevant identifying information and indisputably important to the tribes’ investigation of U.R.’s possible eligibility for membership. The fact that a particular relative claims possible heritage with a particular tribe may trigger the tribe to conduct a more intensive investigation than it would otherwise conduct regarding a relative on a side of the family without a claim of tribal heritage. The Department does not dispute the relevance of the omitted information. Although the Cherokee tribes had an opportunity to determine whether U.R. was eligible for membership through Father, because they had his name, the Department’s notice provided no reason for the tribes to conduct such additional inquiry.
The response received from one tribe, the Cherokee Nation, specifically states that the tribe did search for Father and his listed relatives in its tribal records. The responses received from the other two Cherokee tribes indicate that they searched the enrollment records based on the information provided by the Department, but do not specifically state that they searched for Father or his ancestors.
We conclude the Department violated the ICWA in failing to notify the Cherokee tribes that Father claimed possible Cherokee heritage. The juvenile court’s implied finding that ICWA notice was adequate is not supported by substantial evidence. (In re J.T., supra, 154 Cal.App.4th at p. 991.) We remand for compliance with the ICWA. We need not resolve Father’s other claims of ICWA notice error.
DISPOSITION
The judgment terminating parental rights is reversed and the case is remanded to the juvenile court with directions to order the Department to comply with the notice provisions of the ICWA. If, after proper notice, the court finds that the dependent minor is an Indian child, the juvenile court shall proceed in conformity with all provisions of the ICWA. If, on the other hand, the court finds that the minor is not an Indian child, the judgment terminating parental rights shall be reinstated.
We concur. NEEDHAM, J., STEVENS, J.
Retired Associate Justice of the Court of Appeal, First District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.