Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. 76816
Sepulveda, J.
In this consolidated writ proceeding, N.P. (Mother) and W.B. (Father) (collectively petitioners or parents) seek relief from the juvenile court’s order terminating reunification services and setting a permanency planning hearing for November 17, 2008 (see Cal. Rules of Court, rule 8.452; Welf. & Inst. Code, §§ 366.21, 366.26), with respect to their four-year-old daughter, A.P. Petitioners claim the juvenile court order should be reversed for failure to comply with the notification requirements of the Indian Child Welfare Act (ICWA). Petitioners further claim that the juvenile court erroneously granted the section 388 petition filed by San Mateo County Human Services Agency (Agency), which terminated reunification services prior to the expiration of the 12-month status review period. Finding no error in the termination of reunification services, we deny the consolidated petition to the extent it seeks reversal of the order granting the Agency’s section 388 petition. The Agency, however, concedes that it did not fully comply with the ICWA’s notice provisions. Because the Agency did not fully comply with those provisions, we grant limited relief solely for the purpose of ensuring compliance with the ICWA. In all other respects, we deny the consolidated petition on the merits.
The parties filed separate writ petitions. On our own motion, we consolidated appeal numbers A122342 and A122343 for purposes of argument and decision. Since both parents raise substantially the same issues, for the sake of convenience we do not distinguish between the arguments of Mother and Father, unless otherwise indicated.
All further rule references are to the California Rules of Court. Additionally, all further undesignated section references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
This family has a significant child welfare history, with six previous referrals from 1996-2008, due to chronic and pervasive substance abuse. Since 1996, Mother has given birth to three children, who were exposed in utero to various narcotics, including cocaine, heroin, and methadone. Recently, Mother gave birth to D.P., a two-pound, eight-ounce baby boy, who was born three months premature. During Mother’s pregnancy with D.P., she tested positive for crack cocaine approximately 20 times, heroin two times, and benzodiazepene two times.
Mother’s eldest child, Ar.P., who was born in 1996, was not subject to the proceedings below and is not part of the instant appeal; W.B. is not the father of Ar.P.
D.P. was subject to the proceedings below; according to our court records, a section 366.26 hearing regarding D.P. is currently scheduled for December 8, 2008, and separate writ petitions by Father and Mother have been filed.
A. Prior Dependency
The instant writ pertains to A.P., who was born in 2004 at a gas station. When it was determined that A.P. was born with a positive toxicology for cocaine, opiates, and methadone, a section 300 petition was filed on her behalf, and she was declared a dependent of the San Francisco County Juvenile Court from July 2004 until that case was dismissed in September 2005.
B. Second Section 300 Petition
The present dependency proceeding was commenced on March 13, 2007, when the Agency filed a petition pursuant to section 300, subdivision (b), alleging that A.P. was at risk of harm and neglect due to petitioners’ substance abuse. A.P. was ordered detained; she remained at home with petitioners.
At the combined jurisdiction and disposition hearing on April 26, 2007, the juvenile court found a factual basis for the allegations and declared A.P. to be a dependent child of San Mateo County. The juvenile court ordered that A.P. remain in petitioners’ home with petitioners participating in family maintenance services. Petitioners were also ordered to participate in counseling/psychiatric therapy, to complete a substance abuse assessment and attend recommended treatment, to refrain from using alcohol and illegal substances, and to submit to random drug testing.
C. Section 387 Petition
On August 15, 2007, the Agency filed a section 387 petition, seeking a more restrictive placement due to petitioners’ failure to comply with court-ordered services, as they both continued to abuse illegal drugs as evidenced by positive random drug tests. The petition alleged: (1) Mother had positive drug tests on July 18, 2007 and on August 6, 2007; (2) Mother was terminated from her drug abuse treatment program after she stopped attending the program; (3) Father had positive drug tests on August 6, 2007 and on August 9, 2007; Father also missed three drug testing appointments on August 2, 2007, August 13, 2007, and August 14, 2007, which resulted in “administrative dirty” results; and (4) Father, who had been ordered to participate in a drug treatment program on April 26, 2007, had only recently enrolled in a program on or about August 9, 2007.
At the detention hearing on August 16, 2007, A.P. was ordered detained in shelter care pending the jurisdictional hearing. Petitioners were again ordered to participate in counseling/psychiatric therapy, to complete a substance abuse assessment and to attend recommended treatment, to refrain from using alcohol and illegal substances, and to submit to random drug testing.
At the combined jurisdiction and disposition hearing on September 27, 2007, the juvenile court determined that A.P. continued to be a dependent child and ordered that she remain in the care and custody of the Agency for placement in foster care or other suitable placement. As before, petitioners were ordered to participate in counseling/psychiatric therapy, to complete a substance abuse assessment and to attend recommended treatment, to refrain from using alcohol and illegal substances, and to submit to random drug testing. The juvenile court further ordered that A.P. be placed with Mother at Jelani House once Mother had completed four weeks of successful residential treatment. Mother, however, never followed through with her plan to attend Jelani House.
D. Six-Month Review on Section 387 Petition
In a March 2008 six-month status review report, the Agency advised the court that Mother was 17 weeks pregnant, was underweight, and recently had lost eight pounds. The Agency reported that Mother had failed to report for drug testing on October 25, 2007, November 30, 2007, and December 31, 2007. Additionally, the Agency reported that Mother’s drug testing results for the previous six months indicated that “out of thirteen tests, [Mother] tested positive for Crack eleven times, Speed one time, Heroin two times, and Benzos one time.” With respect to Father’s substance abuse treatment, the Agency reported that he failed to report for drug testing on October 25, 2007, November 30, 2007, and December 31, 2007. Additionally, it was reported that Father had tested positive for alcohol four times during the past six months.
The Agency further reported that during the past six months, Mother attended 11 of the 22 scheduled visits and that Father had attended 16 of the 22 visits. Petitioners were described as interacting well with A.P. and reciprocating her love and tenderness. A.P. was “extremely happy to see her parents at the visits.” A.P. was sad and unhappy when she was unable to see her parents due to their missed visits.
The Agency further reported: “The parents have admitted to an extensive history of substance abuse. [Mother] has not been able to commit to a residential program . . . . [She] has tested positive for cocaine/crack the majority of the six month report. [Father] has not been able to start out-patient treatment, according to him, because of financial challenges. He tested positive for alcohol four times over the past six months in addition to having missed tests. The parents have not begun to address their substance abuse, which would place the child at risk if she was returned to the parents. Despite the father’s consistent visitation and the mother’s sporadic visitation,” it could not recommend the return of A.P. to petitioners. However, the Agency noted there was a “substantial probability of the child returning home by September 19, 2008.”
In conclusion, the Agency stated there was “a strong bond with this family” and that there was a “substantial probability that the parents can reunify” with A.P. if they were provided six more months of services.
At the six-month status review hearing on March 20, 2008, the juvenile court denied Father’s section 388 motion, requesting the Agency pay for his out-patient treatment because he could not afford to pay for such treatment. The juvenile court determined that A.P. continued to be a dependent child and ordered that she remain in the care and custody of the Agency for placement in foster care or other suitable placement. An additional six months of reunification services were ordered, and the matter was then continued to September 18, 2008 for a 12-month review.
E. Agency’s Section 388 Petition
On April 29, 2008, the Agency filed a section 388 petition, requesting the termination of reunification services based on the following change in circumstances: “The parents have failed to make substantial progress in the court ordered services. The mother and the father were ordered to participate in substance abuse treatment, parenting classes, to submit to random drug testing, and psychological evaluations. Neither parent has participated in substance abuse treatment or parenting classes at any time. The mother completed her psychological evaluation on April 22, 2008, and the father is scheduled for April 29, 2008. The parents did submit to drug testing as of April 16, 2008. The results for April 16, 2008 were clean for both parents. [¶] On April 12, 2008, the mother gave birth to a premature baby boy at 28 weeks gestation in San Francisco. At that time the mother tested positive for methodone [sic] and the baby’s meconium is being tested at this time.” The social worker from the Agency who prepared the section 388 petition, averred that on April 15, 2008, she spoke with a representative at Mother’s methadone clinic, “who reported that the mother tested positive approximately twenty times for crack cocaine, one time for amphetamines and heroin/opiates during her pregnancy.” The matter was set for hearing on May 29, 2008, and subsequently continued to July 21, 2008.
In a May 2008 interim review report, the Agency advised the court that Mother had recently given birth to D.P., a two-pound, eight-ounce baby boy, who was born three months premature. During Mother’s pregnancy with D.P., she tested positive for crack cocaine approximately 20 times, heroin two times, and benzodiazepene two times. The Agency further advised the court that Father had lived with Mother for over four years, and, as such, he was aware of Mother’s substance abuse during her pregnancy.
Additionally, Mother and Father had only recently started attending out-patient treatment programs, despite the fact that it was twelve months after A.P. had been declared a dependent of the court. Also, neither Mother nor Father had participated in the court-ordered parenting class. The Agency opined that there was “not a substantial probability of return to [the parents] within the next four months of the remaining statutory time and that the parents have not made substantive progress in relation to the issues that brought the family to the Agency’s attention resulting in Court involvement.”
The May 2008 addendum report also noted that A.P. had been placed in a secure and loving foster/adoptive home. According to the Agency, “[t]his family loves [A.P.] unconditionally, and has been providing her with stability . . . .” The family had enrolled A.P. in preschool, swimming, and the Girl Scouts. The Agency further reported that A.P. “has begun to develop a close bond with this family.”
In a July 2008 addendum report, the Agency reported that “[t]he parents believe that because they have recently started engaging in services, they should receive more time to reunify with [A.P.] and [D.P.]” The Agency further reported that although the parents had some clean drug tests in April and May of 2008, Mother and Father each tested positive for opiates on May 19, 2008. Mother and Father claimed that their positive test results were due to some poppyseed muffins that they had eaten. In conclusion, the Agency opined that it did “not believe that the parents fully accept responsibility or understand the impact their substance abuse has had on their children[,] which puts [A.P.] and [D.P.] at risk if they were returned to them. The parents did not take any ownership [of their substance abuse] . . . waiting until the thirteenth month after being offered Court ordered services to start substance abuse treatment. Given the parents’ past participation in multiple failed drug treatment programs, and chronic substance abuse history, and their history of placing their substance abuse ahead of the needs of their children, the prognosis for a successful reunification is not likely.”
Prior to the hearing on the section 388 petition, the Agency submitted the psychological evaluations of Mother and Father, which were prepared by Robin Press, Ph.D. According to Dr. Press, Mother reported a “twenty-five year history of chronic, severe drug addiction” and she had been “unsuccessful in any attempt to place her children ahead of her addiction to drugs.” Dr. Press opined that “the large body of evidence” suggested that Mother “is not competent . . . of sustaining a solid sobriety at this time without much more treatment and demonstrated success.”
As to Father’s evaluation, Dr. Press noted that he was a “mediocre historian due to lapses in memory and questionable credibility regarding . . . his substance abuse history.” Dr. Press explained that Father had failed to participate in drug treatment in 2007. Dr. Press further noted that Father had failed to protect his children from in utero exposure to drugs caused by Mother and he “registered little observable concern about the devastating teratogenic impact” on his children. Dr. Press concluded that the “children would not be safe in the care of their father until he makes a concerted effort to achieve a clean and sober lifestyle and to demonstrate the stability of this clean and sober lifestyle over a period of at least four to six months.”
At the hearings on the section 388 petition, a social worker from the Agency testified that since A.P. was placed in her foster/adoptive family in March 2008, she no longer talks about her parents on a daily basis. The social worker further explained that on at least three occasions since March 2008, A.P. has become upset and cried when she had to visit with her parents. The social worker testified that A.P “is really bonded to her fost-adopt parents now.”
At the hearing on the section 388 petition, the juvenile court quoted extensively from Dr. Press’s evaluations. In granting the petition, the juvenile court found that there was new evidence to support the petition and that it would be in A.P.’s best interests to terminate reunification services.
DISCUSSION
A. ICWA
1. Background
In the beginning of March 2007, petitioners each signed a parental notification of Indian status (JV-130), in which Mother and Father declared, under penalty of perjury, that, as far as they knew, they had no Indian ancestry.
In August 2007, following the filing of the section 387 petition, the Agency asked petitioners to sign another JV-130. Mother again declared that she had no Indian ancestry. However, this time Father indicated that he may have Indian ancestry. According to the detention report, Father indicated that A.P. may have Indian ancestry through his grandfather, but he did not know what state his grandfather was from or his tribe. Father stated that he had “a picture of his grandfather . . . that portrays him as an Indian.” Accordingly, in the August 2007 detention report, the Agency indicated that the ICWA “does or may apply[,]” and noted that it would send notification to the Bureau of Indian Affairs (BIA). The Agency further noted that it could only provide the BIA with “the limited information” provided by Father; the Agency indicated that it would attempt to gather further information from Father regarding his possible Indian ancestry.
In the September 2007 jurisdiction/disposition report, the Agency again indicated that the ICWA may apply. The Agency reiterated the same information contained in the detention report regarding Father’s possible Indian ancestry. At the time of this report, the Agency had not yet notified the BIA or attempted to gather further information from Father.
In the March 2008 six-month status review report, the Agency indicated that it had sent notice to the BIA and the United States Department of the Interior (Department of Interior) on March 10, 2008 regarding Father’s possible Indian ancestry. The notices were neither attached to the report nor filed with the court. At the six-month status review hearing on March 20, 2008, the juvenile court determined that the ICWA may apply because “Father states he has Indian ancestry.”
In the May 2008 interim review report, the Agency stated that on March 10, 2008, it sent notice, by certified mail return receipt requested, to the BIA and the Department of Interior. It was further reported that the BIA received the notice on March 13, 2008, and responded with a letter dated March 24, 2008, stating that the family had “provided insufficient information substantiating any federally recognized tribes.” Also, on March 18, 2008, the Department of Interior had received the notice, but as of the date of the interim review report, had not replied. The return receipts from the BIA and the Department of Interior were attached to the report, along with the March 24, 2008 letter from the BIA. Additionally, on May 23, 2008, Father’s sister informed the Agency that the paternal great-grandfather is “ ‘full-blooded Cherokee Indian.’ ” As of the date of the interim review report, the Agency was in the process of noticing all Cherokee tribes, as Father’s sister did not know the particular Band of Cherokee.
In the July 2008 addendum report, the Agency stated that it had sent notice, by certified mail return receipt requested to the BIA, the Department of Interior, the Cherokee Nation, the Eastern Band of Cherokee Indians (Eastern Band), and the United Keetoowah Band of Cherokee Indians (United Keetoowah Band). On July 3, 2008, the Cherokee Nation responded that A.P. would not be considered an Indian child in relation to the Cherokee Nation. The Agency attached the certified mail returned receipts from the Cherokee Nation, Eastern Band, the United Keetoowah Band, the BIA, and the Department of Interior, as well as the July 3, 2008 letter from the Cherokee Nation.
At the first hearing day on the Agency’s 388 petition, held on hearing July 21, 2008, Mother’s counsel requested a continuance on the grounds that the parents had not received copies of the notices sent to the tribes and that 60 days had not elapsed since the notices were sent. After hearing argument, the juvenile court stated that the notice was “in the report.” Mother’s counsel then advised the court that the reports included only the certified return receipts and not the actual notice. The trial court denied the motion to continue, ruling there was “sufficient information . . . to justify a finding of notice.”
Following the second hearing day on July 23, 2008, the juvenile court granted the Agency’s section 388 petition and found “[t]he child is/may be an Indian child, & notice of the proceedings & the right of the tribe to intervene was provided to all identified tribes &/or the [BIA] as required by law. Proof of such notice was filed with this Court.”
2. Legal Framework
The ICWA requires that when the court has reason to know that a child involved in the dependency system might be an Indian child, which requires only the suggestion of Indian ancestry, notice of the proceedings must be provided to the child’s tribe, or to the BIA if the tribal affiliation is unknown. (In re Francisco W. (2006) 139 Cal.App.4th 695, 702-703.) In providing the notice, “It is essential to provide the Indian tribe with all available information about the child’s ancestors, especially the ones with the alleged Indian heritage. [Citation.] Notice to the tribe must include available information about the maternal and paternal grandparents and great-grandparents, including maiden, married and former names or aliases; birth dates; place of birth and death; current and former addresses; tribal enrollment numbers; and other identifying data. [Citation.]” (Id. at p. 703; see also § 224.2.) “The social worker has ‘a duty to inquire about and obtain, if possible, all of the information about a child’s family history’ required by 25 Code of Federal Regulations part 23.11(d)(3). [Citation.]” (In re S.M. (2004) 118 Cal.App.4th 1108, 1116; see also In re Louis S. (2004) 117 Cal.App.4th 622, 630; rule 5.481(a)(4).) Further, proof of the notice, consisting of the notice itself, return receipts, and any responses received from the tribes and/or the BIA, must be filed with the juvenile court, since in the absence of such evidence it cannot be determined whether meaningful notice has been provided. (In re Karla C. (2003) 113 Cal.App.4th 166, 175-178; In re Jennifer A. (2002) 103 Cal.App.4th 692, 702-704; § 224.2, subd. (c); rule 5.482(a)(2)(B) & (b).)
3. Analysis
a. Proof of Notice
The Agency concedes it failed to file with the juvenile court the notices it sent to the tribes and does not oppose remand for the limited purpose of assuring proper compliance with the ICWA. In light of this concession, a protracted discussion of the notice requirements is not required. When notice is required but not properly given, the juvenile court’s orders are voidable. (In re Karla C., supra, 113 Cal.App.4th at p. 174.) Here, the instant case must be reversed for the limited purpose of requiring that the juvenile court assure that the required notices were properly given and, if not, to assure proper notice is given and, then, based on the results, determine whether A.P. is an Indian child under the ICWA. (In re Rayna N. (2008) 163 Cal.App.4th 262, 264.)
b. 60-day Rule
By the time of the hearings on July 21 and 23, 2008, the Agency had provided the juvenile court with proofs of service to the BIA, Department of Interior, the Cherokee Nation, the United Keetowah Band, and the Eastern Band, together with responses from the BIA and the Cherokee Nation. Specifically, the record contains proof of service by certified mail, return receipt requested, delivered to the BIA on May 14, 2008 and to the Department of Interior on May 19, 2008, each with the signed receipt. Also, included in the record are the proofs of service by certified mail postmarked June 26, 2008, return receipt requested to the Cherokee Nation and to the United Keetoowah Band, each with a signed receipt. The Agency also provided a proof of service by certified mail postmarked July 1, 2008, return receipt requested to the Eastern Band, also with a signed receipt. The July 3, 2008 response from the Cherokee Nation, which stated that A.P. would not be considered an Indian child and the tribe would not intervene, was also presented to the juvenile court. At the time of the hearings, no response had been received from either the United Keetoowah Band or the Eastern Band.
Petitioners argue that the juvenile court erred in commencing the hearing fewer than 60 days from the date of notice to the tribes. Citing rule 5.482(d), petitioners contend that the juvenile court should have either waited 60 days after notice to the tribes or applied the substantive ICWA provisions to the proceeding as if A.P. were an Indian child. Subdivision (d), upon which petitioners rely, provides: “(1) If after notice has been provided as required by federal and state law and neither the tribe nor the Bureau of Indian Affairs has provided a determinative response within 60 days after receiving that notice, then the court may determine that the Indian Child Welfare Act does not apply to the proceedings, provided that the court must reverse its determination of the inapplicability of the act and must apply it prospectively if a tribe or the Bureau of Indian Affairs subsequently confirms that the child is an Indian child. [¶] (2) If at any time, based on the petition or other information, the court knows or has reason to know the child is an Indian child, the court must proceed as if the child were an Indian child. [¶] (3) The court is not required to delay proceedings until a response to notice is received.” (Rule 5.482(d), italics added.)
We note, notwithstanding that the adequacy of the notice must be reviewed on remand because key documents were not filed with the juvenile court, the Cherokee Nation did provide a determinative response.
The plain language of rule 5.482(d)(3) states that the juvenile court is not required to delay proceedings until responses to the ICWA notices are received. Moreover, we do not agree that the 60-day provision should be construed as requiring our dependency system to shut down for 60 days awaiting response from a tribe, thereby overriding the statutory timeframes that have been carefully crafted to minimize delays, move dependency cases forward expeditiously, and achieve finality of decision. Clearly, the juvenile court must defer making the finding that the ICWA does not apply until the earlier of a determinative response from a tribe, or 60 days after receipt of notice. (Rule 5.482(d)(1); § 224.3, subd. (e)(3).) But the 60-day provision does not dictate the timing of juvenile court proceedings in a given matter.
In other words, in absence of responses by the tribes or the BIA, the juvenile court must wait 60 days before making a definitive determination that the ICWA does not apply. (Rule 5.482(d)(1); § 224.3, subd. (e)(3).) However, contrary to petitioners’ assertion, the juvenile court is not required to delay proceedings during this period. (Rule 5.482(d)(3); see also Seiser & Kumli, California Juvenile Courts Practice and Procedure (2008-A ed.) § 2.32A[2][b], pp. 2-72-2-73 (Seiser).) Furthermore, the juvenile court is not required to proceed as if the child is an Indian child during this period, unless it “knows or has reason to know the child is an Indian child . . . .” (Rule 5.482(d)(2), italics added.)
At the time of the section 388 hearing in the instant case, the juvenile court had not yet determined A.P.’s status as an Indian child or the applicability of the provisions set forth in the ICWA. As such, there is no violation of the 60-day rule. Finally, just prior to the section 388 hearing, the only evidence of A.P.’s possible Indian ancestry had been Father’s statement that he believed his grandfather was an Indian because there was a “picture” of his grandfather that “portray[ed] him as an Indian.” Then in May 2008, Father’s sister told the Agency that “their great-grandfather is ‘full-blooded Cherokee Indian.’ ” This evidence, while triggering the requirement of notice to the tribes and possible further inquiry of the family, did not require the juvenile court to apply the substantive and procedural protections of the ICWA. On this record, requiring the juvenile court to treat this case as if A.P. is an Indian child before such a finding is made would be both costly and highly impractical. (See Seiser, supra, at p. 2-73.)
B. Section 388
1. Standard of Review
The juvenile court may modify an order if a petitioning party shows, by a preponderance of the evidence, changed circumstances or new evidence and that modification would promote the dependent child’s best interests. (§ 388; see In re Stephanie M. (1994) 7 Cal.4th 295, 322; In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) We review the juvenile court’s order for an abuse of discretion. (In re Michael B., supra, 8 Cal.App.4th at p. 1704; In re Kimberly F. (1997) 56 Cal.App.4th 519, 522.)
2. New Evidence and/or Changed Circumstances
Father argues that the Agency impermissibly used the modification petition as a “ ‘do over’ ” of the six-month status review hearing, where six additional months of reunifications were recommended and ordered. We disagree.
Although it appears from the record that the Agency, in hindsight, regretted its decision to recommend services for another six months, the section 388 hearing was not a “ ‘do over’ ” of the six-month status review hearing. Rather, the Agency was challenging the continuing efficacy of one particular order made at that hearing, the extension of petitioners’ reunification services for an additional six months, in light of circumstances subsequent to the hearing. Under section 388 that was proper.
The Agency presented ample new evidence and/or changed circumstances, which supported its petition for modification. Specifically, during the 12-month reporting period, Mother gave birth to a premature and drug-exposed infant, D.P. Although petitioners had a long history of substance abuse, the full extent did not became known until after D.P.’s birth, when the Agency was informed by a representative at Mother’s methadone clinic that Mother had tested positive at least 20 times for crack cocaine and one time for amphetamines and heroin/opiates during her pregnancy with D.P.
Further, as noted in the section 388 petition, Mother had finally participated in her psychological evaluation and Father was scheduled for his evaluation. Although these evaluations were not complete at the time the modification petition was filed, they were available before the section 388 hearings in July 2008. The juvenile court relied on these evaluations in its determination that the new evidence existed to support a modification of the order granting continued services to the parents, and its determination that such modification was in A.P.’s best interest.
In finding that new evidence supported the termination of reunification services, the juvenile court also pointed to Father’s own testimony at the section 388 hearing, which demonstrated that Father had not made sufficient efforts to stop Mother from using drugs during her pregnancy with D.P., just as Mother had done in her pregnancies with A.P., and Ar.P. Additionally, on May 19, 2008, a month after D.P. was born, petitioners failed yet another drug test. In light of their lengthy history of chronic drug abuse, the juvenile court did not find credible petitioners’ explanation that their tests were positive for opiates due to poppyseed muffins they allegedly had eaten prior to the tests.
These new circumstances and new evidence were more than sufficient to support the section 388 petition. In any event, the juvenile court has inherent statutory and constitutional authority to modify its own orders regarding provisions of services to parents and to terminate such services, even without a section 388 petition having been filed, provided that the parties receive notice and an opportunity to be heard. (See In re Nickolas F. (2006) 144 Cal.App.4th 92, 111-112; § 385; see also In re Aryanna C. (2005) 132 Cal.App.4th 1234, 1243 (Aryanna C.).) We conclude that the juvenile court did not abuse its discretion in finding that a change in circumstance or new evidence supported the requested modification to terminate reunification services.
3. Best Interests
The determination of a child’s best interests under section 388 involves looking at a number of factors generally falling along a continuum. (In re Kimberly F., supra, 56 Cal.App.4th at p. 530.) The factors to be considered include the seriousness of the problem leading to the dependency and the reason for its continuation; the strength of the parent-child and child-caretaker bonds and the time the child has been in the system; and the nature of the change of circumstance, the ease by which the change could be achieved, and the reason the change did not occur sooner. (Id. at pp. 530-532.)
Here, we find no abuse of discretion in the juvenile court’s determination that termination of reunification services is in A.P.’s best interests. Petitioners have a history of chronic and pervasive substance abuse. Although the record indicates that petitioners have recently begun to participate in services, these efforts were too little and too late. Moreover, this recent participation must be viewed in light of petitioners’ repeated failures to treat their substance abuse, which the psychological evaluations found was likely to continue. According to Dr. Press, there is a “huge discrepancy” between Mother’s intentions to “stay clean” and her past behavior. As to Father’s progress, Dr. Press opined that Father “does not appear to be a credible historian with regard to the central problem of his drug and alcohol use, nor has he demonstrated any genuine effort towards admitting or treating his drug and alcohol problems.” Dr. Press also noted that Father “demonstrated no observable emotional response in discussing the plight of his infant son or toddler daughter . . . .”
Petitioners nevertheless insist that it was error to terminate their reunification services because there was demonstrable mutual love and affection at their visits with A.P. However, petitioners ignore the fact that they often missed scheduled visits. Petitioners also overlook the fact that A.P. had become reluctant to visit with them and that she had bonded with her foster/adoptive parents.
The juvenile court did not err in determining A.P.’s interests would be best served by the termination of reunification of services and the implementation of an appropriate permanent plan.
4. Termination of Reunification Services Before Expiration of the 12-Month Period
Father argues that the juvenile court erred in granting the section 388 petition to terminate reunification services before the expiration of the statutory period, without making a finding that the probability of reunification was “extremely low.” Father does not dispute that a section 388 petition is an appropriate vehicle for terminating reunification services prior to the expiration of the 12-month period. (See Sheila S. v. Superior Court (2000) 84 Cal.App.4th at 872, 877-879 (Sheila S.) [upholding termination after four months of services].) Rather, Father argues that the juvenile court abused its discretion in granting the Agency’s section 388 petition because it applied a “lower burden of proof” that is contrary to California law. We are not quite sure what this means. Here, the Agency sought to modify, under section 388, an order granting reunification services. As indicated previously, the petitioning party under section 388 has the burden of showing by a preponderance of the evidence that the modification is warranted, by establishing a change of circumstances or new evidence and that the requested change is in the child’s best interests. (§ 388; see In re Stephanie M., supra, 7 Cal.4th at p. 322; In re Michael B., supra, 8 Cal.App.4th at p. 1703; In re Manolito L. (2001) 90 Cal.App.4th 753, 760.)
Focusing on the issue of termination of reunification services, we start with the proposition that “[i]t is difficult, if not impossible, to exaggerate the importance of reunification in the dependency system. With but few exceptions, whenever a minor is removed from parental custody, the juvenile court is required to provide services to the parent for the purpose of facilitating reunification of the family.” (In re Luke L. (1996) 44 Cal.App.4th 670, 678; accord, In re Michael G. (1998) 63 Cal.App.4th 700, 714.) The statutory language set forth in section 361.5, subdivision (a) “establishes a dual-track approach based on the dependent minor’s age. If the child is under three, the default position is six months of reunification services. If the child is over three, the default position is 12 months. For both categories, the outer limit is 18 months. But none of these time periods is immutable.” (In re Derrick S. (2007) 156 Cal.App.4th 436, 444-445 (Derrick S.).) Here, inasmuch as A.P. was over the age of three when she was removed from parental custody, the default period for reunification services was 12 months. However, as noted by the court in Derrick S., “there is no absolute right to receive the maximum amount of statutorily fixed services in any and all circumstances.” (Id. at p. 445.) This follows from the principle noted in In re Aryanna C., supra, 132 Cal.App.4th 1234 that “reunification services constitute a benefit; there is no constitutional ‘ “entitlement” ’ to those services.” (Id., at p. 1242; Derrick S., at p. 445.) Thus, for dependent children over the age of three “ ‘[n]owhere is it provided that a minimum of 12 months of services is required.’ ” (Derrick S., supra, 156 Cal.App.4th at p. 445.)
The statutory language set forth in section 366.21, subdivision (e) fortifies this conclusion, which provides, in part, as follows: “At the review hearing held six months after the initial dispositional hearing, the court shall order the return of the child to the physical custody of his or her parent . . . unless the court finds . . . that the return of the child . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child . . . . The failure of the parent . . . to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. In making its determination, the court shall . . . consider the efforts or progress, or both, demonstrated by the parent . . . and the extent to which he or she availed himself or herself to services provided.”
After addressing various situations that are not applicable to the instant case, subdivision (e) goes on to state: “In all other cases, the court shall direct that any reunification services previously ordered shall continue to be offered to the parent . . . pursuant to the time periods set forth in subdivision (a) of Section 361.5, provided that the court may modify the terms and conditions of those services. [¶] If the child is not returned to his or her parent . . ., the court shall determine whether reasonable services that were designed to aid the parent . . . have been provided or offered to the parent . . . . The court shall order that those services be initiated, continued, or terminated.” (Italics added.)
In Aryanna C., supra, 132 Cal.App.4th 1234, the court was faced with the issue of whether the juvenile court had acted appropriately when it terminated services for the parent of a child under the age of three, even before the conclusion of the initial six-month reunification period. In support of its conclusion the juvenile court had acted appropriately, the appellate court explained such a termination was not only consistent with the language of the applicable statutes, but also “with the purposes underlying the dependency system. Where, as the record shows in this case, the likelihood of reunification is extremely low [citation], a continuation of the reunification period would waste scarce resources and delay permanency for dependent minors.” The court noted that its “interpretation of the pertinent statutes is consistent with the legislative intent behind the statutory scheme—‘to balance efforts to reunify the family with the child’s need for stability.’ ” (Id., at p. 1242.) Moreover, the court emphasized that “reunification services constitute a benefit; there is no constitutional ‘ “entitlement” ’ to those services. [Citation.] [¶] . . . [Thus it] remains within the discretion of the juvenile court to determine whether continued services are in the best interests of the minor, or whether those services should be ended at some point before six months have elapsed.” (Id. pp. 1242-1243, fn. omitted.)
In Derrick S., supra, 56 Cal.App.4th 436, the court applied the reasoning of Aryanna C., supra, 132 Cal.App.4th 1234 to a case involving the termination of services for the parent of a child who was over the age of three. There, the court addressed the issue of whether it was ever appropriate to terminate services short of the 12-month point in a case of an older child. Based upon the reasoning of Aryanna C., the court concluded it was: “No statute or rule of court restricts a juvenile court’s discretion to order less than the maximum amount of reunification services when confronted with a parent who is unwilling or unable to benefit from additional reunification services, or if for other reasons the likelihood of reunifying the family is faint.” (Derrick, S., at p. 439.)
Although the termination of services in Derrick S. had been requested at the six-month review hearing, rather than by way of a section 388 motion filed within the second six-month reunification period as happened here, that is a distinction without a difference. As previously indicated, a section 388 petition may be used to modify or terminate a parent’s reunification services prior to the 12-month period. (Sheila S., supra, 84 Cal.App.4th at pp. 877-879.) Moreover, “ ‘[d]ependency proceedings are proceedings of an ongoing nature. While different hearings within the dependency process have different standards and purposes, they are part of an overall process and ongoing case. One section of the dependency law may not be considered in a vacuum. It must be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect.’ [Citation.] Section 388 plays a vital role in the statutory scheme by allowing the juvenile court to modify existing orders in response to new evidence and changed circumstances.” (Id. at pp. 878-879.)
Here, the juvenile court granted the Agency’s petition, finding, in part, that it did “not believe that there would be a likelihood of reunification.” Although this language deviates somewhat from the “extremely low” standard applied in Aryanna C., supra, 132 Cal.App.4th at p. 1242 and from the “faint” standard discussed in Derrick S., supra, 56 Cal.App.4th at p. 439, we are not persuaded that this distinction is material. The standard employed by the juvenile court, if anything, provides a more compelling basis for terminating reunification services prior to the expiration of the statutory period because more than just finding that the likelihood of reunification was “extremely low” or “faint,” here, the juvenile court determined there was no such likelihood at all.
“We end the discussion where we began it, confirming the critical importance of reunification services. [Citation.] That said, there are some situations where a juvenile court may in the exercise of its discretion terminate reunification services earlier than the applicable default period here of 12 months. (§ 361.5, subd. (a).) The exercise of that discretion to terminate services short of 12 months will, we confide, be very infrequent. Such a decision will be warranted only in those situations where the parent has already received or been offered reunification services, thus giving the juvenile court a basis for evaluating whether additional services will be utilized by the parent in the time remaining for reunification. Only from this historical perspective will the juvenile court be able to conclude, as the Aryanna C. court emphasized, that ‘the likelihood of reunification is extremely low.’ (Aryanna C., supra, 132 Cal.App.4th 1234, 1242 . . . .)” (Derrick S., supra, 156 Cal.App.4th at p. 450.)
This, we conclude, is one of those rare situations. The evidence was more than sufficient to support the juvenile court’s conclusion that there was no likelihood of reunification within the statutory period. The Agency provided psychological evaluations, as well as detailed reports, setting forth petitioners’ repeated failure to adequately acknowledge and remediate their chronic substance abuse, which led to this dependency case. Accordingly, the trial court did not abuse its discretion by granting the section 388 petition to terminate reunification services.
5. Other Evidentiary Issues
Mother argues that the juvenile court violated her due process rights by considering the psychological evaluations because she did not have an opportunity to cross-examine Dr. Press. She also contends that the juvenile court prejudicially erred when it considered a prior dependency in San Francisco County. Both arguments are without merit.
a. Psychological Evaluations
The psychological evaluations were ordered by the juvenile court in September 2007, in connection with the Agency’s section 387 petition to remove A.P. from her parents’ custody. The parents finally participated in the court-ordered evaluations in April and May 2008. These evaluations were referenced in the section 388 petition, as well as in the Agency’s May 2008 interim review report. However, the written evaluations from Dr. Press were not available at the time of the hearing originally scheduled for May 29, 2008. The hearing was continued in part due to the unavailability of these evaluations. In fact, Mother’s trial counsel had asked that the continued hearing be set on a date that would allow the written reports generated from the psychological evaluations to be considered by the juvenile court. It was only after both written reports had been completed that the parents asserted that the juvenile court should not consider them on the sole ground that they were not submitted with the section 388 petition.
Now, for the first time, Mother claims that she did not have an opportunity to cross-examine Dr. Press and, as such, the trial court violated her due process rights by considering this evidence. Inasmuch as Mother did not raise this issue below, she has forfeited this claim on appeal. (See In re S.B. (2004) 32 Cal.4th 1287, 1293.)
In any event, even if this claim had been preserved, it nevertheless fails on the merits. The record reflects that Mother was well aware of Dr. Press and the preparation of the written reports. More importantly, she offers no support and the record discloses no evidence that Mother was, in any way, precluded from cross-examining Dr. Press, had she wished to do so.
Finally, any error in considering these evaluations was harmless under state and federal standards. Although the psychological evaluations were certainly significant evidence, the parents’ abysmal failure at reunification and chronic substance abuse was well-documented in the Agency’s reports and by other evidence submitted at the hearings. As a result, we conclude that there was substantial new evidence supporting the juvenile court’s determination that it was in A.P.’s best interests to terminate reunification services.
b. Prior Dependency
Mother asserts that the prior dependency in San Francisco County was irrelevant and therefore admission of documents regarding that dependency was prejudicial error. As Mother has cited no authority and has offered no analysis on this issue, we hesitate even to consider this argument. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [contentions waived when there is failure to support them with reasoned argument and citations to authority]; People v. Dougherty (1982) 138 Cal.App.3d 278, 282-283 [argument of counsel is insufficient; briefs must contain factual underpinning, record references, argument, and authority].) We, nevertheless, address this claim and find that it is completely without merit.
From what we can discern from the record, the challenged evidence relates to a prior dependency matter involving A.P.’s older half-sibling, Ar.P., who was exposed in utero to cocaine and heroin. According to Mother, she voluntarily agreed to Ar.P.’s adoption by the maternal grandmother. However, the challenged document apparently indicates that Mother may have previously failed reunification with Ar.P. and had her parental rights terminated. At a minimum, the challenged evidence is relevant for purposes of assessing Mother’s credibility.
Petitioners have not provided the challenged document to this court for consideration in this consolidated writ proceeding.
Finally, in light of the other evidence supporting the termination of reunification services, any error in considering this evidence is harmless under state and federal standards.
C. Estoppel
Mother argues that she was “entitled to rely” on the Agency’s recommendation to continue reunification services made at the six-month review hearing. Mother claims that, based on this recommendation and the juvenile court order, she “correctly believed that she had until the twelve-month status review hearing . . . to complete her court-ordered treatment.” This contention is without merit. The fact that the juvenile court ordered another six months of reunification services at the six-month review hearing forms no basis for invoking equitable estoppel on Mother’s behalf. (Sheila S., supra, 84 Cal.App.4th at p. 872.) Moreover, there is no “iron rule that the parent of a dependent child who is over the age of three is entitled to, and must always receive, 12 months of reunification services.” (In re Derrick S., supra, 156 Cal.App.4th at p. 735.) Rather, “a juvenile court conducting a dependency for a child above the age of three retains the discretion to terminate the provision of reunification services before expiration of the 12-month period.” (Ibid.)
D. Permanency Planning
Father argues that the juvenile court erred when it selected adoption as the permanent plan for A.P. prior to the section 366.26 hearing, which is scheduled for November 17, 2008. At the conclusion of the section 388 hearing, the juvenile court stated that it was “going to terminate services” as to both parents and was “going to set a [.]26 hearing to make a permanent plan for [A.P.].” (Italics added.) In the order terminating reunification services, it appears that the juvenile court checked a box that “ordered” adoption as the appropriate permanent plan for A.P.
Contrary to Father’s assertion, the juvenile court did not circumvent the procedures set forth in section 366.26. Rather, the juvenile court’s order is consistent with the statutorily required concurrent permanency planning for children who are placed out of the home. (See §§ 358.1, subd. (b); 361.5, subd. (a); 366.21, subds. (f) & (i); see also Seiser, supra, at p. 2-330.) “In concurrent services planning, alternative forms of permanency are identified and implemented early in the case planning process. The case plan addresses both how reunification can be achieved . . . and how legal permanency . . . can be achieved if efforts to reunify fail . . . . The development of both tracks simultaneously is necessary to achieve the goal of timely, legal permanency. [Citation.]” (Seiser, supra, at p. 2-330.) Here, adoption has been the concurrent plan for A.P. since she was placed in a foster/adoptive family. Inasmuch as reunification efforts have failed, the trial court appropriately proceeded on the permanency track, by identifying adoption as the appropriate permanent plan for A.P.
In any event, any error made by the juvenile court in checking the box was harmless, as, at this stage in the proceedings (i.e. before the section 366.26 hearing), there has been no implementation of the permanent plan of adoption.
DISPOSITION
The consolidated petition for extraordinary writ review is granted solely for the purpose of ensuring compliance with the ICWA; in all other respects, the petition is denied on the merits. Let a writ of mandate issue directing respondent juvenile court to (1) vacate its order setting the section 366.26 hearing; (2) order the Agency to file the notice it sent to the Cherokee Nation, United Keetowah Band, Eastern Band, Department of Interior, and BIA; and (3) determine whether the notice was adequate and proper. If the notices are sufficient, and if as a result of the tribes’ nonresponse the juvenile court determines the ICWA is inapplicable, the juvenile court shall reset the hearing under section 366.26. (See Justin L. v. Superior Court (2008) 165 Cal.App.4th 1406, 1410; see also In re Karla C., supra, 113 Cal.App.4th at p. 180.) Conversely, if the notice is insufficient, the juvenile court must order the Agency to send a new notice, by registered or certified mail with return receipt requested, to the applicable tribes, and to file a copy of the notices, return receipts, and responses, if any, with the juvenile court. (§ 224.2, subd. (a)(1).) If, following such notice, any of these tribes determines that A.P. is an Indian child, the juvenile court shall proceed in conformity with the ICWA. (Rule 5.483(c).) However, if no tribe determines that A.P. is an Indian child, or if no response is received within the prescribed time (see rule 5.483(d); § 224.2, subd. (d)), the juvenile court shall reset the hearing under section 366.26 (see Justin L., supra, at p. 1410).
The order terminating reunification services is affirmed. The request for a stay of the November 17, 2008 section 366.26 hearing is denied. This decision is final immediately. (Rule 8.264(b)(3).)
We concur: Reardon, Acting P.J., Rivera, J.