Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 6002
BLEASE, Acting P. J.
Aaron M. (appellant), the father of Michael M. (the minor), appeals from the juvenile court’s orders denying his petition for modification and terminating his parental rights. (Welf. & Inst. Code, §§ 366.26, 388, 395; further undesignated statutory references are to the Welfare and Institutions Code.) Appellant makes four contentions of alleged prejudicial error, including a claim that Plumas County Department of Social Services (DSS) and the juvenile court violated the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. § 1901 et seq.)
Agreeing with the ICWA claim only, we conditionally vacate the order terminating parental rights and remand for inquiry into possible Indian heritage and notice to the relevant tribal entities, if necessary.
FACTUAL AND PROCEDURAL BACKGROUND
On November 28, 2006, DSS filed an original juvenile dependency petition pursuant to section 300 on behalf of the five-year-old minor. That petition alleged in part that dangerous conditions in the minor’s home placed the minor at a substantial risk of suffering serious physical harm or illness. The juvenile court sustained an amended petition, adjudged the minor a dependent child, removed the minor from parental custody, and denied appellant reunification services.
Social worker’s reports indicated that appellant and the mother of the minor had reported they did not have Indian heritage. Accordingly, DSS found ICWA was inapplicable to the proceedings.
Although the mother of the minor is not a party to this appeal, she will be referred to again as necessary.
Appellant was on parole for a substance abuse-related conviction until February 2009. DSS arranged once weekly, two-hour supervised visits between appellant and the minor. On two occasions, appellant was late to scheduled visits. Moreover, according to a DSS report, apparently appellant had cited his parole status as a barrier to visiting the minor, although appellant’s parole officer disputed appellant’s claim.
The minor was living in foster care in Oroville, where he was doing well. The minor’s foster parents were interested in adopting him. DSS and the state’s social services department both recommended adoption as the most suitable permanent plan for the minor. According to the state report, termination of parental rights would not be detrimental to the minor.
When DSS prepared its April 2007 report for the section 366.26 hearing, appellant was incarcerated. According to that report, appellant was arrested in December 2006, and had an approximate release date of May 20, 2007. Due to appellant’s incarceration, he had not seen the minor in recent months. However, DSS arranged for bi-weekly telephone visitation between the minor and appellant. DSS noted the minor appeared to enjoy that contact with appellant. According to its report, the minor “[did] not ask for contact, but willingly engage[d] in conversation when given the opportunity.”
On April 30, 2007, appellant filed a petition for modification, seeking a psychological evaluation of the minor and reunification services for appellant. According to appellant, the minor could suffer permanent harm if his relationship with appellant was severed. The petition also averred appellant had been receiving services on his own initiative. In support of his petition, appellant attached several documents, including a declaration by a psychiatric nurse regarding the necessity for a psychological evaluation of the minor.
At the April 30, 2007, hearing on the recommendation by DSS to terminate parental rights and on the petition for modification, after hearing argument, the juvenile court denied the petition on the ground that it failed to show it was in the best interests of the minor to modify the court’s previous order denying appellant reunification services.
As to selection of a permanent plan for the minor, both parents testified. The minor’s mother told the juvenile court she had Cherokee Indian heritage, but that she had never been asked about any possible Indian heritage. According to the mother, her mother and her mother’s parents were Cherokee, and she thought her maternal grandmother was registered with a Cherokee tribe. The mother also denied telling DSS in a previous dependency proceeding that she did not have Indian heritage.
Appellant testified he attended Alcoholics Anonymous meetings even while incarcerated. According to appellant, he was determined to do whatever he could to secure the return of the minor to his custody. Appellant also was receiving mental health counseling, and had made other efforts to obtain assistance.
Appellant’s counsel opposed severance of the parental relationship on the ground the minor was “strongly bonded” with appellant. The juvenile court declined to apply a statutory exception to adoption, ruling appellant had failed to establish the minor would benefit from continuing his relationship with appellant. At the conclusion of the hearing, the juvenile court found it likely the minor would be adopted and terminated appellant’s parental rights.
DISCUSSION
I
Appellant claims the juvenile court and DSS failed to inquire into the question whether he and the minor’s mother had Indian heritage, and that the record does not reflect either parent of the minor ever was directed to complete a document pertaining to possible Indian ancestry. According to appellant, remand is required for a determination whether the notice provisions of ICWA are applicable. We agree.
ICWA protects the interests of Indian children and promotes the stability and security of Indian children and Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(l), 1911(c), 1912.) The juvenile court and DSS have an affirmative and continuing duty to inquire whether a child who is subject to the proceedings is, or may be, an Indian child. (Former Cal. Rules of Court, rule 5.664(d) (hereafter former rule 5.664).) If after the petition is filed, the court knows or has “reason to know that an Indian child is involved,” notice of the pending proceeding and the right to intervene must be sent to the tribe or to the Bureau of Indian Affairs (BIA) if the tribal affiliation is not known. (25 U.S.C. § 1912(a); former rule 5.664(f).)
“The burden is on [DSS] to obtain all possible information about the minor’s potential Indian background and provide that information to the relevant tribe or, if the tribe is unknown, to the BIA.” (In re Louis S. (2004) 117 Cal.App.4th 622, 630.) Failure to comply with the notice provisions and to determine whether ICWA applies is prejudicial error. (In re Desiree F. (2000) 83 Cal.App.4th 460, 472; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424.)
Former rule 5.664(d)(3) states: “At the first appearance by a parent or guardian in any dependency case, . . . the parent or guardian must be ordered to complete Parental Notification of Indian Status (Juvenile Court) (form JV-130).”
The obligation of DSS and the juvenile court pertaining to a minor’s Indian ancestry “is only one of inquiry and not an absolute duty to ascertain or refute Native American ancestry.” (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413.) Here, although it had the matter before it, in the form of social worker’s reports and, at the section 366.26 hearing, testimony by the minor’s mother, the juvenile court failed to conduct a full inquiry into and determine whether ICWA applied to the proceedings. On remand, the court must consider the issue, with the record of all matters pertaining to ICWA before it, including social workers’ reports and the mother’s testimony.
Appellant requests that all orders in this matter be reversed. We disagree. In light of the previous social worker’s reports, which were not contradicted until the minor’s mother’s testimony at the section 366.26 hearing, we conclude only the termination of parental rights order made after the court learned of the minor’s possible Indian ancestry need be vacated.
II
Appellant contends the juvenile court abused its discretion in denying his petition for modification because he established changed circumstances and new evidence demonstrating reunification was in the best interests of the minor.
Section 388, subdivision (a), provides that a parent of a dependent child may petition the juvenile court “upon grounds of change of circumstance or new evidence . . . for a hearing to change, modify, or set aside any order of court previously made . . . .” Section 388 permits modification of a dependency order if a change of circumstance or new evidence is shown and if the proposed modification is in the best interests of the minor. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526 (Kimberly F.).)
When a petition for modification is brought after the 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 recognized the parents had made efforts to ameliorate the difficulties underlying the dependency petition. However, doubtless out of its concern for the minor’s needs, the court ruled appellant’s petition failed to demonstrate a modification would be in the best interests of the minor.
The juvenile court also denied a petition for modification filed by the minor’s mother.
The determination by the juvenile court was well within its discretion. As the record reflects, appellant had made some 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 participate in programs. In the meantime, it was likely, as the record suggests, that the minor would continue to develop and attach to his foster parents.
In his petition, appellant averred it was in the best interests of the minor to provide appellant with reunification services because the minor could suffer permanent harm if the parental relationship was severed. 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 develop appropriate parenting skills.
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 he should receive reunification services to avoid a possible risk of harm to the minor, based on the opinion of a nurse who never saw the minor. At the time of the hearing on his modification petition, appellant was incarcerated and had enjoyed very little recent personal contact with the minor, who in general was doing well with his prospective adoptive parents. Appellant’s petition, therefore, 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 was making to become a better parent. But appellant says little about the minor’s circumstances and feelings. The focus of appellant’s brief appears to be on appellant, rather than on the minor and his current circumstances. Finally, the record suggests the minor was more attached to his prospective adoptive parents than to appellant, as DSS opined that the minor appeared to consider the prospective adoptive parents to be his “emotional parents.”
Most importantly, in his petition appellant did not allege any facts that the minor’s needs for permanence and stability would be promoted by his eventual return to a parent who DSS believed had not made significant improvement in his situation.
In Kimberly F., supra, 56 Cal.App.4th 519, cited by appellant, 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.’” (Kimberly F., supra, 56 Cal.App.4th 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 pp. 526, 527, 532-533.)
In this case, in denying appellant’s section 388 petition, the juvenile court did not cite 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. Moreover, the court’s comments about the case suggest it considered carefully all pertinent circumstances. On the record before it, the court concluded 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 appellant’s 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 adjusted well in his foster care placement. On the other hand, appellant was still working on the difficulties that had contributed to the dependency proceedings. On this record, it is not surprising the court implied the minor should not be forced to wait any longer.
It is true that appellant was not seeking the immediate return of the minor to his custody. The difficulty with appellant’s situation, as we have suggested, is that it is unfair to and not in the best interests of the minor for the minor to be delayed permanence for some unknown and indefinite period of time, with no certainty or even a likelihood that appellant could progress beyond supervised visits with the minor. Moreover, although appellant suggests the minor may have been suffering detriment due to his removal from parental custody, and the record reflects DSS referred him for counseling, the record also shows that, after a relatively short four months’ time, the minor was becoming more secure with and affectionate toward his prospective adoptive parents.
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 implicit determination that the minor’s need for permanency compelled denial of appellant’s 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.)
III
Appellant claims the juvenile court erred and violated due process by denying a request for a bonding study. According to appellant, such a study was necessary to determine the current quality of the bond existing between the minor and appellant. Appellant argues a bonding study would have assisted the court in its determination of the beneficial relationship exception to adoption. More specifically, appellant asserts such a study would have aided the court in determining whether termination of parental rights would have a detrimental impact on the minor’s future stability.
As DSS notes in its brief, only the minor’s mother requested a bonding study. In his reply brief, appellant argues he has “standing” to tender the issue on appeal because he and the minor’s mother share a “unity of interest.” As appellant requested a psychological evaluation, which is similar to a bonding study, we consider the claim on its merits.
As appellant acknowledges, the standard of review of the juvenile court’s decision whether to order a bonding assessment is an abuse of discretion. Because the juvenile court is accorded wide discretion, its determination will not be disturbed on appeal absent “‘a manifest showing of abuse.’” (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) In applying this standard, we view the evidence in a light most favorable to the juvenile court’s decision and determine whether that court reasonably could have refrained from ordering a bonding study. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1341.)
The record contains several reports shedding light on the nature of the relationship existing between appellant and the minor. One report noted the minor appeared to enjoy the telephone visitation he had with appellant. On the other hand, the record also contains some evidence documenting the inconsistent visitation pattern employed by appellant. Moreover, at one point apparently appellant made excuses to avoid traveling to Oroville to visit the minor. Doubtless appellant’s incarceration also made regular visitation problematic, but that circumstance was not due to any actions by DSS. Finally, appellant adduced evidence in the form of a declaration of a psychiatric nurse from which one could infer the existence of a strong bond between the minor and appellant. Thus, the record contains sufficient evidence with which the juvenile court could evaluate the nature and strength of the bond existing between appellant and the minor.
The minor’s mother’s testimony suggested she and the minor shared a close relationship. However, other evidence in the record revealed appellant and the mother had missed visits with the minor. What is most important, however, is the juvenile court had the benefit of substantial information in the record about the nature of the bond existing between appellant and the minor. On the record before it, the juvenile court was entitled to conclude that a bonding assessment would not have been useful to the court or of assistance to appellant. (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1341.)
The juvenile court is not obliged by statute or case law to order preparation of a bonding assessment. (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1339.) Because the evidence in this case supports a conclusion that there was little, if any, benefit to be gained from ordering preparation of a bonding study, the court acted well within its discretion in not ordering a bonding assessment. (Cf. In re Stephanie M., supra, 7 Cal.4th at pp. 318-319; In re Richard C. (1998) 68 Cal.App.4th 1191, 1197.)
IV
Appellant contends the juvenile court erred reversibly in terminating his parental rights because there was substantial evidence the minor was likely to suffer detriment, unless a statutory exception to adoption based on a beneficial relationship existed between appellant and the minor was applied. Noting evidence of regular contact, a significant parental relationship, and the existence of a bond between the minor and both appellant and the minor’s mother, appellant suggests the minor would suffer if his relationship with appellant was severed.
“‘At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]’ [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child.” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)
One of the circumstances under which termination of parental rights would be detrimental to the minor is: “The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, former subd. (c)(1)(A) [now subd. (c)(1)(B)(i)].) The benefit to the child must promote “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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
Effective January 1, 2008, that provision has been renumbered as subdivision (c)(1)(B)(i).
The parent has the burden of establishing the existence of any circumstances that constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373.) The juvenile court is not required to find that termination of parental rights will not be detrimental due to specified circumstances. (Id. at p. 1373.) Even frequent and loving contact is not sufficient to establish the benefit exception absent significant, positive emotional attachment between parent and child. (In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.)
Section 366.26 requires both a showing of regular contact and a separate showing that the child actually would benefit from continuing the relationship. In re Autumn H., supra, 27 Cal.App.4th at page 575, interprets the statutory exception to involve a balancing test, and both In re Autumn H. and In re Beatrice M., supra, 29 Cal.App.4th 1411, posit a high level of parental-type involvement and attachment. Even assuming those decisions overemphasized the importance of the parental role, the record here does not support appellant’s assertion that the minor would benefit from continuing his relationship with appellant simply because of the attachment existing between them and due to periodic visits with him. (Cf. In re Amanda D. (1997) 55 Cal.App.4th 813, 821-822.)
Appellant suggests the record establishes the existence of a beneficial relationship between the minor and himself, which the nurse’s declaration opined would be destroyed by severance, precluding a finding of adoptability. The juvenile court was authorized to conclude the contrary was true. Evidence of a significant parent-child attachment by itself does not suffice. Instead, the record must show such benefit to the minor that termination of parental rights would be detrimental to the minor. (§ 366.26, former subd. (c)(1)(A) [now subd. (c)(1)(B)(i)].) Here, as the court determined, the record was bereft of such a showing. Instead, there was evidence suggesting it was critical for the minor to obtain the benefits of a stable placement.
In In re Brandon C. (1999) 71 Cal.App.4th 1530, cited by appellant, the juvenile court found it was in the best interests of the minors to establish a guardianship, rather than terminate parental rights, so the minors could maintain their relationship with their mother. (Id. at p. 1533.) Affirming, the Court of Appeal held substantial evidence supported the juvenile court’s conclusion that terminating parental rights would be detrimental to the minors, because their mother had maintained regular, beneficial visitation with them. (Id. at pp. 1533, 1534-1535, 1537, 1538.)
In re Brandon C., supra, 71 Cal.App.4th 1530, is distinguishable from the proceedings here. The In re Brandon C. court found ample evidence of benefit to the minors of continued contact with their mother. (Id. atpp. 1537, 1538.) Here, by contrast, the record supports the juvenile court’s conclusion that there would not be sufficient benefit to the minor if his relationship with appellant was continued. Moreover, as the record also suggests, the minor had a need for stability and security, a need which only adoption could satisfy.
Appellant suggests that because he had maintained a significant parent-child relationship with the minor -- an older child who had spent most of his life in his parents’ custody -- which included regular contact while in placement, the circumstances of his case compare favorably with those found in other cases. We disagree. In In re Casey D. (1999) 70 Cal.App.4th 38, 51, also cited by appellant, the Court of Appeal did not find an “exceptional case” where a beneficial parent-child relationship existed that would preclude adoption. Accordingly, the court in Casey D. affirmed the order that terminated parental rights. (Id. at pp. 53, 54.) However, the court in Casey D. did recognize the possibility that a beneficial relationship might exist despite the absence of daily contact between parent and child. (Id. at p. 51.) The difficulty for appellant here is that he cannot establish the requisite beneficial relationship with the minor, in the absence of which the exception does not apply.
Here, the issue was as follows: In light of the minor’s likely adoptability, would a continued relationship with appellant benefit the minor to such a degree that it would outweigh the benefits the minor would gain in a permanent adoptive home? Substantial evidence in the record supports the juvenile court’s answer in the negative. On the record before it, the juvenile court could conclude, as it did, that only adoption, which is the preferred disposition (In re Ronell A., supra, 44 Cal.App.4th at p. 1368), would promote the best interests of the minor. As the record reflects, the juvenile court had before it ample evidence on the matter, including appellant’s testimony.
After it became apparent appellant would not reunify with the minor, the juvenile court had to find an “exceptional situation existed to forego adoption.” (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) In this case, on the contrary, the court determined the minor would not benefit from continuing a relationship with appellant to such a degree that termination of parental rights would be detrimental to the minor. Appellant had the burden to demonstrate the statutory exception applied. We conclude that appellant failed to make such a showing. Therefore, the court did not err in terminating appellant’s parental rights. (In re Amanda D., supra, 55 Cal.App.4th at pp. 821-822.)
DISPOSITION
The order terminating parental rights is vacated, and the matter is remanded to the juvenile court with directions to order the juvenile court and DSS to make inquiry pursuant to ICWA and, if necessary, to comply with the notice provisions of ICWA. If, after proper and complete notice, as provided, a tribe determines the minor is an Indian child as defined by ICWA, the juvenile court is ordered to conduct a new Welfare and Institutions Code section 366.26 hearing in conformity with all provisions of ICWA. If, on the other hand, no response is received or the tribes determine the minor is not an Indian child, then all previous findings and orders shall be reinstated.
We concur: SIMS, MORRISON, J.