Filed 7/22/13 In re Nicole H. CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


In re NICOLE H. et al., Persons Coming                               B244748
Under the Juvenile Court Law.
                                                                     (Los Angeles County
                                                                     Super. Ct. No. CK82834)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

AMY H.,

         Defendant and Appellant.




         APPEAL from orders of the Superior Court of Los Angeles County, Elizabeth
Kim, Juvenile Court Referee. Affirmed in part and reversed in part.
         Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant
and Appellant.
         John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
                                             ____________________
      Amy H. appeals from orders of the juvenile court summarily denying her petitions
under Welfare and Institutions Code section 3881 and the termination of her parental
rights under section 366.26. She also contends the record does not demonstrate
compliance with the Indian Child Welfare Act, title 25 United States Code section
1900 et seq. (ICWA). We affirm with the exception of the court‟s compliance with
ICWA, which requires a limited remand for further proceedings.
                 FACTUAL AND PROCEDURAL BACKGROUND
      Amy is the mother of six children, two of whom were removed from her custody
when she was incarcerated in the State of Texas and four of whom, including Nicole and
Alberto (the subjects of this appeal), have been removed upon petition by the Los
Angeles County Department of Children and Family Services (Department). Nicole, then
aged 9, and Alberto, eight months, were detained by the Department, along with their 11-
year-old brother, Damian H., on June 23, 2010 after a neighbor reported the older
children had been physically and emotionally abused.
      The Department‟s initial investigation revealed the older children had multiple
bruises on their face, limbs and torso. Amy acknowledged the bruises “looked bad” but
said Nicole bruised easily and had been roughhousing with her uncle, who had been
visiting the family. Damian claimed most of his multiple bruises and scratches resulted
from playing sports but admitted one bruise on his thigh was caused by Amy whipping
him with a belt. Alberto did not appear to have any physical injuries. During a tour of
the children‟s bedroom, the investigating social worker observed marijuana lying on the
dresser. Amy acknowledged she smoked marijuana. She insisted she had a medical
marijuana card but was unable to locate it. The Department detained the children.
Forensic examinations of the children the next day yielded findings of suspected
nonaccidental injury and physical abuse of Damian and Nicole.
      Relatives advised the Department Amy had been diagnosed with bipolar disorder
and had been incarcerated in Texas for possession of marijuana, assault and drug
1
       Statutory references are to the Welfare and Institutions Code unless otherwise
specified.

                                            2
trafficking. Amy confirmed she had a criminal record in Texas and had spent time in
prison. She also admitted two of her children had been placed in foster care in Texas and
one of the two had been adopted. Until her death the previous year Amy‟s mother had
been the legal guardian of Damian and Nicole.
       The Department filed a dependency petition on behalf of the children alleging
multiple counts of physical abuse of the older children (§ 300, subd. (a)), failure to
protect all three as a result of mental illness and drug abuse (§ 300, subd. (b)) and abuse
of siblings (§ 300, subd. (j)). At the detention hearing the court found a prima facie case
for detaining the children and ordered them placed in foster care. Amy was allowed
monitored visitation.
       Amy informed the Department she had Cherokee or Blackfoot ancestry through
her great-great-grandfather, whom she believed had been an enrolled member of a tribe,
and executed the form entitled “Parental Notification of Indian Status” (ICWA-020). On
July 8, 2010 the Department submitted notices to the Cherokee and Blackfoot tribes with
the information provided by Amy. The notices, however, along with the responses from
the tribes, are missing from the record.
       The jurisdiction/disposition report disclosed the extent of Amy‟s criminal history
in Texas: A November 1991 arrest and conviction for interfering with the duties of a
public servant; a March 2000 arrest and conviction for abandonment of a child with the
intent to return; a March 2001 federal arrest and guilty plea for possession with intent to
distribute marijuana; a September 2001 federal arrest and conviction for importing
marijuana; a January 2003 arrest and conviction for criminal mischief, assault of a public
servant and resisting arrest; an August 2003 federal arrest and conviction for importing
marijuana; a May 2006 arrest and conviction for assaulting a public servant; separate
March 2007 arrests and convictions for assaulting a public servant and criminal mischief;
and a September 2007 arrest and conviction for assault of a public servant. Amy was
released from prison in 2009.2

2
       Many of the assault charges arose during her extended time in prison.

                                             3
       The Department also reported Amy had been diagnosed with oppositional defiance
disorder when she was a child and had been placed in foster care when she was nine
years old because her family could not control her. She was later diagnosed with bipolar
disorder and borderline personality disorder while incarcerated in federal prison.3 Nicole
and two other children were born when she was incarcerated. According to relatives,
Amy had never formed a real relationship with the children, who were in the custody of
her mother.
       Based on these facts the Department recommended Amy not be provided with
family reunification services. At the July 20, 2010 jurisdiction hearing the juvenile court
sustained the allegations in the petition (as amended) and declared the children
dependents of the court under section 300, subdivisions (a), (b) and (j). Notwithstanding
the Department‟s recommendation no services be provided, the court ordered Amy be
provided with reunification services. As part of the court-ordered disposition plan, she
agreed to submit to a psychological examination and to enroll in drug and alcohol
rehabilitation programs with random testing, parent education class and individual and
conjoint counseling with the children (if appropriate). Visitation remained monitored.
       In September 2010 Amy was arrested and incarcerated for check forgery. She was
released in December 2010 and entered a sober living home. On January 10, 2011 a
service provider reported she had completed nine of 20 parenting and anger management
classes, 10 of 20 domestic violence classes and 12 of 20 substance abuse classes. Amy‟s
visits with the children, when she was not incarcerated, had gone well. Meanwhile, the
children had been placed together in a foster home and were thriving. At the January 18,
2011 six-month review hearing, the court found Amy was in compliance with the case
plan and ordered services to continue.
       In March 2011 Amy stopped visiting the children. The Department subsequently
learned she had left the sober home and had disappeared to avoid being reincarcerated for


3
       Amy claimed she was unable to take psychotropic medication due to adverse side
effects and instead smoked marijuana to self-medicate.

                                             4
parole violations. In the report prepared for the 12-month review hearing, the
Department recommended reunification services be terminated and the matter set for a
section 366.26 hearing. In addition to one of Amy‟s sisters, the foster mother, with
whom the children had bonded, indicated she would be interested in adopting them.
Shortly before the scheduled hearing Amy contacted the Department and acknowledged
she understood these recommendations and asked if the children could be adopted
together. She refused to disclose her location. On July 27, 2011 the juvenile court found
Amy was not in compliance with the case plan and terminated reunification services.
       On August 23, 2011 Amy was arrested and reincarcerated. She had resumed visits
with the children in July 2011, but the visits were disrupted by her arrest. Although the
Department reported the visits had been appropriate, Alberto did not appear to be
attached to his mother and cried for his caregiver. Damian and Nicole treated Amy as a
friend rather than a mother figure. Amy was able to maintain sporadic telephone contact
with the children during her incarceration. On October 28, 2011, while still in jail, Amy
gave birth to her sixth child, Alexis H., who was also removed from her custody.
       The Department ultimately identified Damian, Nicole and Alberto‟s foster mother
as their prospective adoptive parent. The children indicated they wanted to remain with
her. At Damian‟s July 25, 2012 section 366.26 hearing, however, he objected to being
adopted. The foster mother was appointed as Damian‟s legal guardian. From July
through August 2012 Amy had no contact with the children. After her release from
custody on August 23, 2012, she resumed monitored visits.
       On September 6, 2012 Amy filed a section 388 petition requesting the court
reinstate reunification services and vacate the hearing on the scheduled section 366.26
hearing for Nicole and Alberto. As evidence of the required showing of changed
circumstances, Amy alleged she had been released from custody and had enrolled in a
drug treatment program, domestic violence classes, anger management classes and
individual counseling. The court summarily denied the petition on September 10, 2012.




                                             5
       On September 27, 2012 Amy filed another section 388 petition seeking
resumption of her reunification services. Attached to the petition were letters attesting
she had attended two group meetings of an alcohol and drug program and eight sessions
of parenting education/anger management classes.
       The section 366.26 hearing for Nicole and Alberto was held on October 1, 2012.
After argument by counsel, the court summarily denied Amy‟s section 388 petition and
proceeded with the hearing for the selection and implementation of a permanent plan.
Amy testified she had visited with the children three times since her release and had
spoken with them regularly throughout her incarceration about their schooling and other
activities. Following her testimony the court ruled Amy had not carried her burden of
establishing the parent-child exception under section 366.26, subdivision (c)(1)(B)(i),
terminated her parental rights and transferred care, custody and control of Nicole and
Alberto to the Department for the purpose of adoption planning and placement.
                                      DISCUSSION
       1. The Juvenile Court Properly Denied the Section 388 Petitions Without a
          Hearing
       Section 388 provides for modification of prior juvenile court orders when the
moving party can demonstrate new evidence or a change of circumstances and
modification of the previous order is in the child‟s best interest. (In re Aaliyah R. (2006)
136 Cal.App.4th 437, 446; In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.) “The
parent seeking modification must „make a prima facie showing to trigger the right to
proceed by way of a full hearing.‟” (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
The required prima facie showing has two elements: The parent must demonstrate (1) a
genuine, significant and substantial change of circumstances or new evidence and
(2) revoking the previous order would be in the best interests of the child. (Id. at p. 250.)
That is, “the petition must allege a change of circumstance or new evidence that requires
changing the existing order.” (In re Daijah T. (2000) 83 Cal.App.4th 666, 672.) “It is
not enough for a parent to show just a genuine change of circumstances under the statute.




                                              6
The parent must show that the undoing of the prior order would be in the best interests of
the child.” (In re Kimberly F., at p. 529.)
       “The petition [is] liberally construed in favor of its sufficiency.” (In re Daijah T.,
supra, 83 Cal.App.4th at p. 672.) To be entitled to a hearing, the petitioner “need[] only
. . . show „probable cause‟; [the petitioner is] not required to establish a probability of
prevailing on [the] petition.” (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432-433.)
Nonetheless, if the allegations fail to show changed circumstances such that the child‟s
best interests will be promoted by the proposed change of order, the dependency court
need not order a hearing. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806-807 [“the
hearing is only to be held if it appears that the best interests of the child may be promoted
by the proposed change of order”]; see In re Edward H. (1996) 43 Cal.App.4th 584, 593
[“„prima facie‟ showing refers to those facts which will sustain a favorable decision if the
evidence submitted in support of the allegations by the petitioner is credited”].)
       We review the juvenile court‟s summary denial of a section 388 petition for abuse
of discretion. (In re Angel B. (2002) 97 Cal.App.4th 454, 460; In re Anthony W., supra,
87 Cal.App.4th at p. 250.) The appellate court will not disturb the juvenile court‟s
decision unless the juvenile court has exceeded the limits of legal discretion by making
an arbitrary, capricious or patently absurd determination. (In re Angel B., at p. 460.)
       The juvenile court did not abuse its discretion in summarily denying Amy‟s
section 388 petitions, which were filed on the eve of the termination of her parental rights
more than two years after the detention of the children and more than one year after the
termination of her family reunification services. During that time Amy failed to complete
her court-ordered programs and apparently never sought the psychiatric treatment she
desperately needed. While it is true she was incarcerated for a lengthy period, that cannot
excuse her failure to take the steps necessary to reunify with her children.
       Amy‟s contention she was only required to make a prima facie showing to obtain a
hearing on her petition does not alter our conclusion. The mere fact she has re-enrolled
in classes ordered two years earlier is at best prima facie evidence of changing
circumstances: “A petition which alleges merely changing circumstances and would

                                               7
mean delaying the selection of a permanent home for a child to see if a parent, who has
repeatedly failed to reunify with the child, might be able to reunify at some future point,
does not promote stability for the child or the child‟s best interests.” (In re Casey D.
(1999) 70 Cal.App.4th 38, 47; see ibid. [“„“[c]hildhood does not wait for the parent to
become adequate”‟”].)
       We also reject Amy‟s apparent suggestion the court must accept her allegations of
the children‟s best interests as sufficient on their face and is thus barred from considering
the existing record in deciding whether a hearing is warranted. A petition under section
388 requires a comparison between the allegations of the petition and the record to date,
including prior factual findings of the court and the evidence supporting those findings.
(See, e.g., In re Angel B., supra, 97 Cal.App.4th at p. 461 [“[w]hether [m]other made a
prima facie showing entitling her to a hearing depends on the facts alleged in her petition,
as well as the facts established as without dispute by the court‟s own file”], 463 [appellate
court reviewing summary denial of § 388 petition properly considers facts adduced in
prior proceedings—“with which the juvenile court was thoroughly familiar”—to
determine whether petitioner successfully demonstrated changed circumstances].) Amy
had every opportunity to contest those findings at the time they were made. Her meager
allegations of changed circumstances that might promote the best interests of her children
were wholly inadequate. Accordingly, the juvenile court did not abuse its discretion in
summarily denying the petitions.
       2. Amy Did Not Establish Her Entitlement to the Parent-child Exception
       Section 366.26 directs the juvenile court in selecting and implementing a permanent
placement plan for a dependent child. The express purpose of a section 366.26 hearing is
“to provide stable, permanent homes” for dependent children. (§ 366.26, subd. (b).) Once
the court has decided to end parent-child reunification services, the legislative preference is
for adoption. (§ 366.26, subd. (b)(1); In re Celine R. (2003) 31 Cal.4th 45, 53 [“[i]f the
child is adoptable . . . adoption is the norm. Indeed, the court must order adoption and its
necessary consequence, termination of parental rights, unless one of the specified
circumstances provides a compelling reason for finding that termination of parental rights

                                              8
would be detrimental to the child.”]; see In re Marilyn H. (1993) 5 Cal.4th 295, 307 [once
reunification efforts have been found unsuccessful, the state has a “compelling” interest in
“providing stable, permanent homes for children who have been removed from parental
custody” and the court then must “concentrate its efforts . . . on the child‟s placement and
well-being, rather than on a parent‟s challenge to a custody order”].) When the court finds
by clear and convincing evidence the child is likely to be adopted, the statute mandates
judicial termination of parental rights unless the parent opposing termination can
demonstrate one of six enumerated exceptions applies. (§ 366.26, subd. (c)(1)(B); see In re
Matthew C. (1993) 6 Cal.4th 386, 392 [when child adoptable and declining to apply one of
the statutory exceptions would not cause detriment to the child, the decision to terminate
parental rights is relatively automatic].)
       To satisfy the subdivision (c)(1)(B)(i) exception to termination, the exception
invoked by Amy, a parent must prove he or she has “maintained regular visitation and
contact with the child and the child would benefit from continuing the relationship.”
(§ 366.26, subd. (c)(1)(B)(i); see In re Derek W. (1999) 73 Cal.App.4th 823, 826 [“parent
has the burden to show that the statutory exception applies”].) The “benefit” prong of the
exception requires the parent to prove his or her relationship with the child “promotes the
well-being of the child to such a degree as to outweigh the well-being the child would
gain in a permanent home with new, adoptive parents.” (In re Autumn H. (1994)
27 Cal.App.4th 567, 575 [“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”].) No matter how loving and frequent the contact,
and notwithstanding the existence of an “emotional bond” with the child, “the parents
must show that they occupy „a parental role‟ in the child‟s life.” (In re Andrea R. (1999)
75 Cal.App.4th 1093, 1108; see In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.)
The relationship that gives rise to this exception to the statutory preference for adoption
“characteristically aris[es] from day-to-day interaction, companionship and shared
experiences. Day-to-day contact is not necessarily required, although it is typical in a
parent-child relationship.” (In re Casey D., supra, 70 Cal.App.4th at p. 51.) Moreover,

                                              9
“[b]ecause a section 366.26 hearing occurs only after the court has repeatedly found the
parent unable to meet the child‟s needs, it is only in an extraordinary case that
preservation of the parent‟s rights will prevail over the Legislature‟s preference for
adoptive placement.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
       The juvenile court‟s findings that the parent-child relationship exception is
inapplicable here is fully supported by the record. (See In re K.P. (2012) 203 Cal.App.4th
614, 621-622 [finding whether beneficial parental relationship exists reviewed for
substantial evidence; determination whether existence of that relationship constitutes
compelling reason not to terminate parental rights reviewed for abuse of discretion]; In re
Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 [same].) Other than Damian‟s
emotional conflict over his own adoption, there is nothing in this record that suggests
Amy‟s relationship with Nicole and Alberto was parental in nature or that retention of her
parental rights would be in their best interests. Nicole and Alberto had clearly bonded with
their foster mother, and Nicole consistently stated she wanted to remain with the foster
mother and be adopted by her.4 Amy has failed to offer any evidence the children would
benefit more from a continued relationship with her than from the stability and permanence
offered by their prospective adoption. In fact, the record shows Nicole and Alberto lived
with Amy for less than a year between the time she was released from prison in Texas
(Nicole was born while Amy was incarcerated) until they were detained by the
Department. Amy never assumed a parental role; to the contrary, she regularly abused
them during that short year. To be sure, it is difficult for any parent to assume a parental
role in the context of incarceration and monitored visitation, but Amy alone is responsible
for those conditions. Her children, who thrived with their foster mother, should not bear




4
          There is a poignant letter dated September 21, 2012 from 11-year-old Nicole to the
court attesting to her feelings: “I want to say I love my mom but I know she can not get
her life together an[d] I am doing good where I am[.] [My foster mother] takes care of
me good . . . and b[uys] us the things we need. I want to stay with her an[d] be adopted
. . . I just want this over no more court.”

                                             10
the burden of Amy‟s failure to address the issues that led to the juvenile court‟s assumption
of jurisdiction.
       3. The Department’s Failure To Preserve the ICWA Notices Requires a Limited
          Remand To Ensure Compliance with ICWA
       The purpose of ICWA is to “„protect the best interests of Indian children and to
promote the stability and security of Indian tribes and families.‟” (In re Karla C. (2003)
113 Cal.App.4th 166, 173-174, quoting 25 U.S.C. § 1902; see also In re Suzanna L.
(2002) 104 Cal.App.4th 223, 229; In re Santos Y. (2001) 92 Cal.App.4th 1274, 1299.)
“ICWA presumes it is in the best interests of the child to retain tribal ties and cultural
heritage and in the interest of the tribe to preserve its future generations, a most important
resource.” (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) For purposes of ICWA,
an “Indian child” is a child who is either a member of an Indian tribe or is eligible for
membership in an Indian tribe and is the biological child of a member of an Indian tribe.
(25 U.S.C. § 1903(4).)
       ICWA provides, “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 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” of the pending proceedings and its
right to intervene. (25 U.S.C. § 1912(a); see In re S.B. (2005) 130 Cal.App.4th 1148,
1157.) Similarly, California law requires notice to the Indian custodian and the Indian
child‟s tribe in accordance with section 224.2, subdivision (a)(5), if the Department or
court knows or has reason to know that an Indian child is involved in the proceedings.
(§ 224.3, subd. (d).) The circumstances that may provide reason to know the child is an
Indian child include, without limitation, when a member of the child‟s extended family
provides information suggesting the child is a member of a tribe or one or more of the
child‟s parents, grandparents or great-grandparents are or were a member of a tribe.
(§ 224.3, subd. (b)(1).)
       Juvenile courts and child protective agencies have “„an affirmative and continuing
duty‟” to inquire whether a dependent child is or may be an Indian child. (In re H.B.


                                              11
(2008) 161 Cal.App.4th 115, 121; § 224.3; Cal. Rules of Court, rule 5.481.) As soon as
practicable, the social worker is required to interview the child‟s parents, extended family
members, the Indian custodian, if any, and any other person who can reasonably be
expected to have information concerning the child‟s membership status or eligibility.
(§ 224.3, subd. (c); In re Shane G. (2008) 166 Cal.App.4th 1532, 1539; Cal. Rules of
Court, rule 5.481(a)(4).)
       The record shows that, in response to Amy‟s assertion of Indian heritage, the
Department mailed notices to the Cherokee and Blackfoot tribes. The notices, however,
are missing, as are any responses from the tribes. The Department concedes these
circumstances require a limited remand to fulfill the duty of inquiry required by ICWA
and California law. Accordingly, we conditionally reverse the orders made at the section
366.26 hearing to allow the Department to document its compliance with ICWA.
                                     DISPOSITION
       The orders summarily denying Amy‟s section 388 petitions are affirmed. The
order terminating Amy‟s parental rights to and placing Nicole and Alberto for adoption is
conditionally reversed and a limited remand is ordered as follows. Upon remand, the
court shall direct the Department to make further inquiries regarding the children‟s Indian
ancestry pursuant to section 224.1 and send ICWA notices to the relevant tribes in
accordance with the ICWA and California law. The Department shall thereafter file
certified mail, return receipts, for the ICWA notices, together with any responses
received. If no responses are received, the Department shall so inform the




                                            12
court. The court shall determine whether the ICWA notices and the duty of inquiry
requirements have been satisfied and whether the children are Indian. If the court finds
the children are not Indian, it shall reinstate the order terminating parental rights and
placing the children for adoption. If the court finds the children to be Indian, it shall
vacate its order terminating parental rights and placing the children for adoption and
conduct further proceedings in compliance with the ICWA and related California law.




                                                          PERLUSS, P. J.


       We concur:



                     WOODS, J.



                     ZELON, J.




                                              13
