Opinion
NOT TO BE PUBLISHED
Superior. Ct. Nos. JD223075 JD223408
MORRISON , J.
J.B. (appellant), the mother of O.W., A.W., and E.B. (the minors), appeals from orders of the juvenile court denying her petitions for modification (Welf. & Inst. Code, § 388 ) and terminating her parental rights as to O.W. and A.W. (§§ 366.26, 395.) Appellant makes six contentions of alleged prejudicial error in the proceedings, including a claim that Sacramento County Department of Health and Human Services (DHHS) 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 proper notice to the tribes.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On September 30, 2005, DHHS filed original juvenile dependency petitions pursuant to section 300 on behalf of one-year-old O.W. and six-year-old E.B. Those petitions alleged appellant’s mental health issues rendered her incapable of providing adequate care for and supervision of O.W. and E.B. According to the petitions, appellant had allowed E.B. to “wander the neighborhood for extended periods of time” without supervision. The petitions also averred appellant’s parental rights to a sibling of O.W. and E.B. had been terminated, due to appellant’s inability to provide adequate care. Thereafter, DHHS also filed a dependency petition on behalf of days-old A.W., making allegations similar to those contained in the previous petitions.
The juvenile court sustained the petitions in part as amended on behalf of O.W. and E.B., and also sustained the petition as to A.W. The court adjudged the minors dependent children, ordered them removed from parental custody, and granted appellant reunification services. O.W. and E.B. were placed together in foster care, where they shared a close relationship and had weekly visits with A.W.
For much of the reunification period, appellant visited the minors regularly, and initially those visits went well. Appellant and the minors appeared to have a close bond with each other. However, the social worker characterized some subsequent visits as “chaotic”, and appellant cancelled or appeared late for some of those visits with the minors.
A November 2006 DHHS report recommended return of E.B. to appellant’s custody and the gradual return of O.W. and A.W. to her care. On November 30, 2006, the juvenile court ordered E.B. placed with appellant under DHHS supervision. In its April 2007 report, DHHS recommended termination of appellant’s reunification services as to O.W. and A.W. and a permanent plan of adoption for them. According to the social worker, the risk to O.W. and A.W. was high if they were returned to appellant’s custody, as she continued to suffer mental health difficulties and to display a lack of acceptable boundaries with the father of the minors. At its June 2007 hearing, the juvenile court terminated appellant’s services pertaining to O.W. and A.W. and scheduled a section 366.26 hearing.
The September 2007 report prepared for the section 366.26 hearing recommended that the juvenile court find O.W. and A.W. likely to be adopted. O.W. and A.W. had been in the same foster home since December 2006. According to DHHS, they were adjusting well to their placement. Moreover, O.W. and A.W. appeared to be “bonding positively” with their foster family. A.W. appeared to be developmentally on target. O.W., on the other hand, apparently had some speech difficulties, for which he would be evaluated. The foster mother was committed to adopting O.W. and A.W.
On October 26, 2007, appellant filed petitions for modification as to O.W. and A.W., requesting their return to appellant’s custody or, alternatively, that she receive an additional period of reunification services. According to appellant, she had treated her mental health condition and was providing care for E.B. Moreover, appellant averred, it would be in the best interests of O.W. and A.W. to be placed with her, as such a placement would “allow them to have daily sibling contact and a strong relationship with their family of origin.” During the dependency proceedings, appellant indicated to the juvenile court that she might have Indian ancestry. Appellant identified the relevant tribe as Cherokee. Thereafter, DHHS sent notices of the proceedings to three Cherokee Indian tribes and to Bureau of Indian Affairs (BIA). Based on information received from the father of the minors, DHHS also sent notices to the Blackfeet Tribe and to BIA. The tribes responded that, based on the information provided, the minors were not Indian children. DHHS concluded that ICWA did not apply to the proceedings.
At the December 4, 2007, section 366.26 hearing and hearing on the petitions for modification, the juvenile court first denied the petitions, ruling “[t]he Court cannot find that there has been a change of circumstances nor new evidence nor that it is in the best interests of either [of the] children to basically start over by either reopening reunification services or returning either of the children to [appellant’s] care. [¶] At this time the focus is on the children and their entitlement to legal permanence, . . .”
Counsel for appellant objected to the adoption recommendation for O.W. and A.W., urging instead that the juvenile court choose either guardianship or long-term foster care. Appellant’s counsel also argued that two statutory exceptions to termination of parental rights applied to the proceedings.
At the conclusion of the section 366.26 hearing, the juvenile court found it likely O.W. and A.W. would be adopted and terminated appellant’s parental rights as to those minors. The court also ordered E.B. to continue as a dependent child under DHHS supervision. In rejecting application of two statutory exceptions to adoption, the court stated in part: “Termination of parental rights would not be detrimental to [the minors] . . . . [¶] The Court is of the opinion that neither of the exceptions . . . would apply in that the benefit to be derived by the children would not be outweighed by continuing to have them remain -- excuse me -- that the benefit to be derived through legal permanence or through adoption far exceeds the benefit of continuing the relationship, and . . . the Court has to focus upon [A.W.] and [O.W.] and what is ultimately to their benefit and in their best interests as well. [¶] It would be nice to have a situation where all siblings can remain together and continue their relationships. The Court has to look at what harm, if any, would be derived to these two children and what benefit, if any, would be derived to them by continuing that sibling relationship and denying them legal permanence.”
DISCUSSION
I
Sufficiency of Evidence for Adoptability Finding
Emphasizing both the difficulties encountered in previous foster care placements and the minor’s developmental issues, appellant contends the juvenile court’s finding of a likelihood that O.W. would be adopted was not supported by substantial evidence. According to appellant, although O.W. was living in a prospective adoptive home, it was unclear whether the foster mother would be able to address the minor’s needs adequately. Appellant also contends O.W. might become a legal orphan, separated from E.B., the sibling he had spent much of his childhood with.
“In order for the court to select and implement adoption as the permanent plan, it must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated.” (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; see also § 366.26, subd. (c)(1).) Usually, the issue of adoptability focuses on the minor, “e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor.” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) However, “in some cases a minor who ordinarily might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability is nonetheless likely to be adopted because a prospective adoptive family has been identified as willing to adopt the child.” (Id. at p. 1650.)
It is true O.W. had one failed placement, and that another foster parent had expressed uncertainty about assuming a guardianship or adopting O.W. However, O.W. had been in his current prospective adoptive placement for nearly one year, and was doing well there. Moreover, O.W. was young and in good health.
Contrary to appellant’s claim, O.W. had not been prescribed psychotropic medication. The record reflects it was E.B., who was in counseling, who had been prescribed that medication.
The juvenile court could have deferred termination of parental rights if it had found O.W. difficult to place due to his membership in a sibling group. (§ 366.26, subd. (c)(3).) But the court made no such finding, nor could it have done so reasonably, for the minor was not difficult to place; he was placed with a prospective adoptive parent. Moreover, the social worker concluded that O.W. was generally adoptable.
Substantial evidence supports that conclusion. Cases cited by appellant do not compel a different result. In re Asia L. (2003) 107 Cal.App.4th 498, 510-511, involved five-and-seven-year-old siblings who exhibited significant emotional and behavioral problems and who needed specialized placement. Although the social worker reported that her agency was “confident” an adoptive home could be located, the minors’ current foster parents were not committed to adoption and there was no evidence of other approved families willing to adopt children with the problems faced by the siblings. (Id. at pp. 511-512.) Under those circumstances, the appellate court reversed the juvenile court’s finding of adoptability. (Id. at pp. 512, 515.)
Here, there was no evidence of any special needs of O.W. that would necessitate a specialized placement or that any sibling issue was so significant as to pose an obstacle to adoption. Moreover, unlike in In re Asia L., supra, 107 Cal.App.4that pages 511-512, where only a willingness to consider adoption was present, here the record reflects the prospective adoptive mother had expressed her commitment to adopt O.W. Nor was there anything else about “the minor’s age, physical condition, and emotional state [that would] make it difficult to find a person willing to adopt the minor.” (In re Sarah M., supra,22 Cal.App.4th at p. 1649.)
None of the other cases relied on by appellant are at odds with our conclusion. Appellant cites In re Jayson T. (2002) 97 Cal.App.4th 75, 85 (Jayson T.) (disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414) as support for her suggestion that legal orphanage was a possibility for O.W. due to the lack of an alternative placement for him. To the contrary, Jayson T. recognized “it is only common sense that when there is a prospective adoptive home in which the child is already living, and the only indications are that, if matters continue, the child will be adopted into that home, adoptability is established.” (Jayson T., at p. 85.) While the reviewing court in Jayson T. referred to “th[e] trap that a trial court may easily fall into” when it terminates parental rights based on the existence of a committed prospective adoptive placement that later falls through (id. at p. 88), this statement was made in the context of deciding whether an appellate court should accept posthearing evidence on this issue. (Ibid.)
In In re Brian P. (2002) 99 Cal.App.4th 616, 624, also cited by appellant, the social worker’s opinion that a child was adoptable was held insufficient to sustain a finding of adoptability where the social worker provided no facts to support her opinion. In contrast to the characteristics of the four-and-one-half-year-old child in that case--he had only recently begun to speak, had problems with his “gait,” was still learning to dress himself and was only recently toilet-trained -- the record here does not reflect that O.W.’s speech issue would create any difficulty for purposes of placing him for adoption. (Id. at p. 619.) O.W. would be assessed for his speech difficulty, which the record suggests the foster mother was aware of.
In In re Amelia S. (1991) 229 Cal.App.3d 1060, cited by appellant, a finding of adoptability was reversed where 10 siblings had “developmental, emotional and physical problems, some of a serious nature,” and only two of the siblings’ five foster families were even “considering” adopting the large sibling group. (Id. at pp. 1062-1063, 1065-1066.) O.W.’s circumstances here are readily distinguishable--he is not a member of a sibling group for purposes of locating an adoptive placement, nor does the record reflect that any language delays prevented O.W.’s placement or made more problematical the potential for success of his prospective adoptive placement.
Appellant also cites In re Jerome D. (2000) 84 Cal.App.4th 1200, 1203, 1205, in which the prospective adoptive parent of a nearly nine-year-old child was the mother’s former boyfriend, who had various potential legal impediments to adoption. As there was insufficient evidence of the child’s “general adoptability,” the appellate court reversed the finding of adoptability. (Id. at pp. 1205-1206.) The reasoning in that case does not apply to a child such as the minor here, whose appealing characteristics and placement with a committed caretaker support the juvenile court’s finding of likely adoptability.
In In re Tamneisha S. (1997) 58 Cal.App.4th 798, the social services agency was unable, after a 10-month search, to find an adoptive home for the child. (Id. at pp. 802-803.) Ultimately, the juvenile court granted a guardianship after finding the agency had failed to show the minor was likely to be adopted. (Id. at p. 803.) The Court of Appeal affirmed the order of guardianship. (Id. at p. 808.)
This case is different from the circumstances found in In re Tamneisha S., supra, 58 Cal.App.4th 798. Here, as we have seen, O.W. had developed a close relationship with the prospective adoptive parent. Moreover, despite toilet training and speech challenges, the record suggests O.W. has the ability to form attachments with caregivers.
It is true that sometimes “special needs” children are more difficult to place than those without such needs. For example, in In re Michael G. (1983) 147 Cal.App.3d 56, the minor was developmentally disabled and suffered from serious emotional problems. According to the record in that case, the seven-year-old minor functioned below his age level, was not completely toilet-trained, and possessed limited language abilities. On that record, the court noted all parties had conceded adoptive placement would be difficult. (Id. at pp. 58-59.)
The situation here is different. Although O.W. arguably has some “special needs,” the evidence before the juvenile court suggested his circumstances had improved. Moreover, as the evidence also showed, the health of O.W. was good and he was capable of developing close attachments to new adults in his life.
The record in this case reflects that, contrary to appellant’s claim, the prospective adoptive mother was well aware of and prepared to handle O.W.’s difficulties. Moreover, as the social worker’s report indicates, O.W. was doing well in the placement and showing some improvement. This evidence provides ample support for the juvenile court’s determination that O.W. was likely to be adopted within a reasonable time. (Cf. In re Scott M. (1993) 13 Cal.App.4th 839, 843-844.)
II
Beneficial Relationship Exception
Appellant contends the juvenile court committed reversible error in finding that O.W. would not benefit from continuing his relationship with appellant. Noting evidence of the parental role she occupied in the life of the minor, the regular contact she had with the minor, and the benefit to the minor in continuing their relationship, appellant argues that terminating her parental rights would place the minor in danger of suffering detriment.
“‘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, original italics.)
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.” (Former § 366.26, subd. (c)(1)(A).) The benefit to the child must promote “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.” (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 a 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.)
In this case, although the record discloses that appellant had had some regular contact with O.W., there also is evidence that some of their recent supervised contact was sporadic, largely due to appellant’s cancellations. Moreover, O.W. was doing well in the home of the prospective adoptive family, with whom he was bonding. O.W. had been with that family for nearly one year.
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 567, 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 suggestion that O.W. would benefit from continuing his relationship with appellant simply because of the attachment existing between them and due to their visits. (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 O.W. and herself, 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. (Former § 366.26, subd. (c)(1)(A).) Here, as the court determined, the record was bereft of such a showing. Instead, there was evidence suggesting it was critical for O.W. 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, 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. at pp. 1537, 1538.) Here, by contrast, the record supports the juvenile court’s conclusion that there would not be sufficient benefit to O.W. if his relationship with appellant were continued. Moreover, as the record also suggests, O.W. had a great need for stability and security, a need which only adoption could satisfy.
Appellant suggests that because she had maintained a significant parent-child relationship with O.W., which included regular, unsupervised contact while in placement, the circumstances of her case compare favorably with those found in other cases. We disagree. In In re Casey D. (1999) 70 Cal.App.4th 38, 51, cited by appellant, the Court of Appeal did not find an “exceptional case” where a beneficial relationship existed that would preclude adoption. Accordingly, the court in In re Casey D. affirmed the order that terminated parental rights. (Id. at pp. 53, 54.) However, the court in In re 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, as the juvenile court found, is that she failed to establish the requisite beneficial relationship with O.W., in the absence of which the exception does not apply.
Here, the issue was as follows: In light of the minor’s adoptability, would a continued relationship with appellant benefit O.W. to such a degree that it would outweigh the benefits he 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 the social worker’s report, a letter pertaining to visitation, and an evaluation of the minor.
After it became apparent that appellant would not reunify with O.W., 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 O.W. would not benefit from continuing his relationship with appellant to such a degree that termination of parental rights would be detrimental to him. 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 parental rights. (In re Amanda D., supra, 55 Cal.App.4th at pp. 821-822.)
III
Sibling Relationship Exception
Appellant also claims the juvenile court committed reversible error in failing to apply the sibling relationship exception to adoption to the dependency proceedings. According to appellant, the record contains evidence that O.W. and E.B. had a significant bond with each other, as seen by their past joint residence together. Noting evidence of enjoyment by O.W. of contact with his sibling, appellant suggests O.W.’s sibling relationship was of great importance to him. Appellant also asserts the benefits obtained by O.W. from maintenance of that relationship outweigh the benefits of adoption to him, and that adoption would not be in the best interests of O.W.
The claim by appellant is premised on the statutory exception to adoption contained in section 366.26, former subdivision (c)(1)(E). Under that provision, the juvenile court may find a compelling reason for determining that termination of parental rights would be detrimental to the minor where “[t]here would be substantial interference with a child’s sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child’s best interests, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.” (§ 366.26, former subd. (c)(1)(E).)
Effective January 1, 2008, that provision has been renumbered as subdivision (c)(1)(B)(v).
Pursuant to former subdivision (c)(1)(E) of section 366.26, the juvenile court is given the discretion to determine that termination of parental rights would be detrimental under certain circumstances. To make such a determination, the court must find a “compelling reason.” (§ 366.26, former subd. (c)(1).) Moreover, the statute contains a number of criteria that the court may consider. But the court is not required by the statute even to consider the applicability of the statutory exception. (Cf. In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.)
In this case, the juvenile court determined that termination of parental rights would not be detrimental to O.W. based on the sibling relationship existing in this case. The record indicates O.W. had regular contact with E.B., with whom admittedly he shared a close relationship. However, on this record, there was no “compelling reason” to apply the former subdivision (c)(1)(E) exception. (See § 366.26, former subd. (c)(1).)
The record supports the determination by the juvenile court that termination of parental rights would not be detrimental to O.W. based on substantial interference with his sibling relationship. It is true that, as appellant argues, there is no guarantee O.W. and E.B. will continue to maintain contact. However, there is no indication that contact might be terminated, and the record reflects the visits between O.W. and E.B. generally went well. Accordingly, the court impliedly found no evidence to support a finding that termination of parental rights would result in a substantial interference with a sibling relationship.
On the record before us, we cannot say the juvenile court’s determination was an abuse of its discretion. Under the circumstances presented, although, as we have said, there is no guarantee, it is likely that O.W. and E.B. will remain in contact and continue to enjoy the emotional benefits of their relationship. Moreover, O.W. and A.W. have shared the same placement for some time now, and O.W. has been apart from E.B. for nearly one year. We conclude there was no error in the court’s ruling that termination of parental rights was not detrimental to O.W.
The California Supreme Court has held the juvenile court may reject adoption under the sibling relationship exception only if it determines adoption would be detrimental to the minor whose welfare is being considered. (In re Celine R. (2003) 31 Cal.4th 45, 49-50.) Here, it is indisputable that a strong sibling relationship existed between O.W. and E.B. But, as we have seen, before adoption can be rejected, the statute requires something more: the showing of a substantial interference with a sibling relationship if adoption is chosen as the permanent plan. (§ 366.26, former subd. (c)(1)(E), italics added.)
The record in this case does not demonstrate substantial interference with a significant sibling relationship due to the recommended adoption of O.W. Moreover, considering the history of O.W. and E.B. seeing each other, the fact the caregiver wanted to adopt A.W., and the commitment of the caregiver to the adoption of O.W. and A.W. together, there is little reason to expect that adoption necessarily will mean the prospect of interference with the relationship between O.W. and E.B. in the future. Finally, as the court found and the record reflects, O.W. would benefit greatly from adoption.
In this case, in considering the statutory exception, the record reflects the juvenile court had before it all of the facts and circumstances pertaining to O.W.’s sibling relationships. After evaluating them, the court did not find a “compelling reason” under former subdivision (c)(1)(E) of section 366.26 to apply the exception. The explanation for that is, as the record suggests and the court found, there would be no substantial interference with sibling relationships, and no detriment to O.W. On the record before it, the court concluded impliedly that O.W.’s need for permanency outweighed the benefits a continued relationship with E.B. would afford.
Here, as we have seen, the record suggests the benefits of adoption for O.W. outweigh the benefits of continuing his sibling relationship with E.B., even assuming there would be some interference with that relationship. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 951-953.) Considering all pertinent factors, the record supports the juvenile court’s finding that adoption would not be detrimental to O.W. Accordingly, we reject the claim.
IV
Petitions for Modification
Appellant claims the juvenile court abused its discretion in denying her petitions for modification. Noting the evidence of changed circumstances adduced at the hearing, appellant asserts the best interests of O.W. and A.W. would have been promoted either by returning them to her custody or by granting appellant additional reunification services. According to appellant, the record also reflects the existence of a strong bond between appellant and other family members and the minors.
Section 388, subdivision (a), provides that the parent of a dependent child may petition the juvenile court “upon grounds of change of circumstance or new evidence . . . for a hearing to change, modify or set aside any order of court previously made. . . .” Section 388 permits modification of a dependency order if a change of circumstance or new evidence is shown and if the proposed modification is in the best interests of the minor. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526 (Kimberly F.).)
When a petition for modification is brought after the end of the reunification period, the best interests of the child are the paramount consideration. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In assessing the best interests of the child at this stage of the proceedings, the juvenile court looks to the child’s needs for permanence and stability. (Ibid.)
The party petitioning for modification has the burden of proof by a preponderance of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 48.) A modification petition “is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.” (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
In denying appellant’s petitions for modification, the juvenile court had before it evidence of appellant’s efforts to ameliorate the difficulties underlying the dependency petitions. However, doubtless out of concern for the needs of O.W. and A.W., the court found it would not be in the best interests of those minors to return them to parental custody.
The determination by the juvenile court was well within its discretion. As the record reflects, appellant had made much progress, and her efforts are to be commended. But the record also suggests more time lay ahead for appellant in which she would need to continue to prove her fitness as a parent. In the meantime, it was likely that, as the record suggests, O.W. and A.W. would continue to develop, maintain stability, and attach to adult figures.
In her petitions, appellant averred it was in the best interests of O.W. and A.W. to return them to parental custody or provide appellant with additional reunification services, due to the close bond they and other family members shared. However, at this point in the proceedings, the focus of the case had shifted to the minors’ interests, and it was unreasonable to expect the minors to wait for appellant to establish her fitness as a parent. As the record suggests, appellant requires more time in order to improve her parenting skills.
The difficulty with appellant’s petitions for modification is her failure to allege pertinent facts in support of her belief that the minors’ 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 minors’ best interests. Here, it is not enough to assert, as appellant does, that O.W. and A.W. should be returned to her because only then will they be assured of continuing contact with their “family of origin.” At the time of the hearing on the modification petitions, O.W. and A.W. had been out of appellant’s custody for a substantial period of time. Appellant’s petitions are deficient because they contain few, if any, facts relating to the minors’ current circumstances.
Appellant’s brief emphasizes the strength of her bond with O.W. and A.W. and the effort she had made to become a better parent. But appellant says little about the minors’ circumstances and feelings, nor about the possibility that, even after modification in the form of reunification services, she might not be able to achieve reunification with the minors. The focus of appellant’s brief appears to be on appellant, rather than on O.W. and A.W.
Most importantly, in her petitions appellant did not allege any facts that the minors’ needs for permanence and stability would be promoted either by a potentially lengthy period of reunification services or by return to a parent who had been out of their lives for a substantial period of time.
In Kimberly F., supra, 56 Cal.App.4th 519, the appellate court warned against the juvenile court simply comparing the situation of the natural parent with that of a caretaker in determining a section 388 petition. It termed such an approach the “‘simple best interest test.’” (Id. at p. 529.) Instead, the appellate court found that determining a child’s best interests under section 388 required an evaluation of a number of factors, including the seriousness of the reason for the dependency action, the existing bond between parent and child and caretaker and child, and the nature of the changed circumstances. (Id. at pp. 529, 532.) The court suggested it was unlikely a parent who lost custody because of sexual abuse of a minor could prevail on a section 388 petition, whereas in a “dirty house” case, which was present in Kimberly F., the chances of success were greater. (Id. at pp. 531, fn. 9, 532.) In Kimberly F., the court concluded the decision to deny the section 388 petition was based largely and improperly on the juvenile court judge’s adoption of the “‘narcissistic personality’ rationale[,]” which the judge had applied to the mother in that case. (Id. at p. 533; see also id. at pp. 526, 527, 532-533.)
In this case, in denying appellant’s section 388 petitions, the juvenile court did not discuss the factors analyzed in Kimberly F., supra, 56 Cal.App.4th 519. However, evidence of all of the critical factors contained in Kimberly F., including the basis of the dependency action, the relationship between appellant and O.W. and A.W., and the nature of the alleged changed circumstances, was before the court. The court’s extensive comments about the case suggest it considered carefully all pertinent circumstances. On the record before it, the court ruled impliedly that appellant failed to sustain her burden. Under the abuse of discretion standard, we see no error in that determination.
We disagree with appellant’s claim that the juvenile court overemphasized the current foster care placement of O.W. and A.W. The court’s comments reflect, on the contrary, a proper focus on the minors themselves.
The juvenile court was required by statute (§ 388) to focus on the minors’ best interests in deciding whether to grant the petitions for modification. As we have seen, those interests consist of the minors’ 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, O.W. and A.W. had shown the ability to adjust to a stable foster care placement. On the other hand, in her petitions appellant acknowledged the possibility she might require additional reunification services.
We agree with appellant that the record of her efforts demonstrates a showing of changed circumstances. However, by including a request for services in her petitions, even appellant acknowledged the possibility of a continuing need for assistance. In the past, appellant had had difficulty supervising all of the minors during visits, and one of appellant’s counselors had reported that appellant had many issues with which to deal. The record suggests the minors require the stability afforded by a nurturing and loving family, for which the minors should not have to wait.
Under the circumstances of this case, the juvenile court did not act arbitrarily, capriciously, or beyond the bounds of reason in denying appellant’s petitions for modification. The court’s determination that the needs of O.W. and A.W. for permanency compelled denial of the petitions and served those minors’ 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 O.W. and A.W. (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.)
V
Separate Counsel for Minors
Appellant claims the juvenile court committed reversible error for its failure to timely appoint separate counsel for the minors, when an actual conflict of interest among the minors developed. According to appellant, that conflict arose when DHHS recommended a permanent plan of adoption for O.W. and A.W., following the return of E.B. to appellant’s custody. Appellant asserts that O.W. enjoyed a strong relationship with E.B., and suggests that separate counsel appointed in a timely manner for O.W. would have conveyed O.W.’s wishes to maintain his relationship with E.B.
In November 2006, the juvenile court ordered E.B. placed with appellant, and also ruled the permanent plan for O.W. and A.W. was to return home. It was not until April 2007 that DHHS recommended adoption as the permanent plan for O.W. and A.W. Thereafter, on September 27, 2007, the juvenile court appointed separate counsel for O.W. and A.W. and for E.B., due to the latter’s disagreement with the proposed plan of adoption for O.W. and A.W.
At the December 4, 2007 section 366.26 hearing, E.B. was represented by counsel and O.W. and A.W. had their own single counsel. Counsel for E.B. did not argue for the sibling relationship exception or against adoption, nor did counsel for O.W. and A.W. Previously, O.W. had indicated he wanted to remain in his prospective adoptive placement.
The issue of counsel for multiple minors was addressed by the Supreme Court in In re Celine R. (2003) 31 Cal.4th 45. The court held “the [juvenile] court may appoint a single attorney to represent all of the siblings unless, at the time of appointment, an actual conflict of interest exists among them or it appears from circumstances specific to the case that it is reasonably likely an actual conflict will arise. After the initial appointment, the court must relieve counsel from the joint representation when, but only when, an actual conflict of interest arises.” (Id. at p. 50.) Further, “error in not appointing separate counsel for a child or relieving conflicted counsel” requires reversal only if it is reasonably probable the outcome would have been different but for the error. (Id. at pp. 59-60.)
We reject the claim on its merits. First, when counsel for all of the minors declared a conflict of interest existed, the juvenile court appointed separate counsel. Moreover, counsel for minors is charged with protecting the well-being of the child. (§ 317, subd. (c).) Here, the record contains substantial evidence that the best interests of O.W. and A.W. required that they receive the permanency afforded by adoption. Accordingly, it is sheer speculation to suggest, as appellant does, that separate counsel appointed sooner for O.W. and A.W. would have conveyed different information to the court pertaining to the selection of the most appropriate permanent plan.
For purposes of resolving the claim, we assume appellant established the alleged conflict of interest has affected her. (In re Frank L. (2000) 81 Cal.App.4th 700, 703.)
Under these circumstances, it is difficult to discern what separate counsel, had they been appointed earlier, would have done differently than what counsel did here. The only issue remaining was the choice of permanent plan for O.W. and A.W. However, no disagreement among minors’ counsel was raised at the section 366.26 hearing. Moreover, the juvenile court did consider the sibling relationship exception to adoption, as tendered by appellant.
Even were we to find an actual conflict not remedied by the appointment of separate counsel, any error was harmless. As we have seen, selecting any other permanent plan than adoption for O.W. would not have been in O.W.’s best interests. Accordingly, it is not reasonably probable the outcome of the proceedings would have been different had separate counsel for the minors been appointed earlier.
VI
ICWA Claim
Appellant contends the juvenile court and DHHS failed to comply with the notice requirements of ICWA.
The notice provisions of ICWA state, in part: “In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right to intervention.” (25 U.S.C. § 1912(a).)
The Indian status of a child need not be certain to trigger ICWA’s notice requirements. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471.) “[O]ne of the primary purposes of giving notice to the tribe is to enable the tribe to determine whether the child involved in the proceedings is an Indian child.” (Id. at p. 470.) “The [Department] must provide all known information to the tribe, particularly that of the person with the alleged Indian heritage.” (In re Louis S. (2004) 117 Cal.App.4th 622, 631.) Notice must include, if known, the names of the child’s grandparents and great-grandparents, including maiden, married and former names or aliases, as well as their birth dates, places of birth and death, tribal enrollment numbers, current and former addresses, and other identifying information. (25 C.F.R. § 23.11(a) & (d)(3); 25 U.S.C. § 1952.)
Having received information suggesting there was Cherokee and Blackfeet Indian heritage in the family, DHHS was obliged to notify each of those tribal units of the dependency proceedings with the most current and complete information available to it, in order that the tribes could make a proper determination about Indian heritage. The juvenile court also was obliged to confirm that adequate information had been obtained from family members before DHHS sent notice of the proceedings to the tribes. Here, although much of the information was contained in social worker’s reports, the notices sent to the tribes contained little information about maternal and paternal grandparents. In this case, until DHHS had obtained all relevant information and sent it to the tribes, any conclusion by the juvenile court or DHHS that ICWA did not apply was at best premature. Here, DHHS failed to send important family information, which the record reflects it had in its possession. Failure to comply with the notice provisions and determine whether ICWA applies is prejudicial error. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424; see also In re Desiree F., supra, 83 Cal.App.4th at p. 472.)
On remand, DHHS must send new notices of the dependency proceedings to each of the tribes previously notified, with all available family information included, or with “unknown” indicated on the notices where appropriate.
DISPOSITION
The order terminating parental rights as to O.W. and A.W. is reversed conditionally, and the matter is remanded to the juvenile court with directions to order DHHS to provide the tribes with proper notice of the section 366.26 hearing under ICWA. If, after proper and complete notice, any tribe determines that O.W. and A.W. are Indian children as defined by ICWA, then the juvenile court is ordered to conduct a new section 366.26 hearing in conformity with all provisions of ICWA. If, on the other hand, no response is received or the tribes determine O.W. and A.W. are not Indian children, then the juvenile court shall reinstate all previous findings and orders.
The order denying appellant’s petitions for modification is affirmed.
We concur: NICHOLSON , Acting P.J., ROBIE , J.