Filed 10/30/18 In re Andre F. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Andre F. was born in August 2015 to a 16-year-old single mother who herself was a dependent of the court at the time. Mother had significant behavioral problems that led to Andre’s removal from her care under Welfare and Institutions Code section 300.[1] After the Solano County Health & Social Services Department (Department) provided her with more than 18 months of reunification services, the court terminated those services and scheduled a section 366.26 hearing to determine a permanent plan for Andre. After mother filed a petition under section 388 for additional reunification services, the court held a consolidated hearing on February 15, 2018, to consider her petition and a permanent plan for Andre. Mother appeals from the court’s denial of her petition and termination of her parental rights at the conclusion of this hearing, and claims the court committed error under the Indian Child Welfare Act (ICWA). We affirm the court’s orders.

I.

Mother’s Motion to Strike Portions of the Respondent’s Brief

Before we discuss mother’s claims, we address her motion to strike portions of the Department’s respondent’s brief, which we have previously taken under submission. Mother contends the Department improperly makes factual contentions based on portions of her own dependency case file that are not a part of the record. She points out that the juvenile court admitted into the record for consideration at the February 15, 2018 consolidated hearing only those portions of her case file that discuss the specific mental health services provided to her and her participation, or lack thereof, in these services. Despite the juvenile court’s expressly limited admission of her case file, mother contends the Department has liberally stated facts taken from other portions of this case file. The Department argues, among other things, that mother’s case file is a proper part of the record because the juvenile court granted its request for judicial notice of these files for its 18-month status review of Andre’s case.

We agree with mother for two reasons. First, the juvenile court’s previous grant of the Department’s judicial notice request was limited to what the Department asked for—that the court take notice of “files pertaining to [mother’s] case plan responsibilities, services provided, and her level of engagement in services while she was a minor and/or a non minor dependent.” The Department’s citations in its respondent’s brief go beyond these matters. Second, and more importantly, mother does not appeal from the court’s 18-month status review rulings, but from the court’s later rejection of her section 388 petition and termination of her parental rights. As mother asserts, the juvenile court expressly ruled that regarding these matters, it was only taking notice of those portions of her case file that discuss the specific mental health services provided to her and her participation, or lack thereof, in these services. The Department’s factual contentions that go beyond the record considered by the juvenile court are in effect contentions that are not supported by citations to the record before the juvenile court for the rulings appealed from and, therefore, are a violation of California Rules of Court, rule 8.204(a)(1)(C). “It has long been the general rule and understanding that ‘an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.’ ” (In re Zeth S. (2003) 31 Cal.4th 396, 405.)

Mother requests that we strike the Department’s statement of the case and facts because of these contentions. This is not necessary. Pursuant to California Rules of Court, rule 8.204(e)(2)(C), we disregard the Department’s factual contentions to the extent they rely on portions of her dependency case file that are not part of the record that was before the juvenile court.

II.

The Court Did Not Abuse Its Discretion by Denying Mother’s Section 388 Petition.

Mother first argues that the juvenile court abused its discretion when it denied her section 388 petition, in which she asked the court to modify its previous order terminating her reunification services to allow her additional reunification services. Mother brought the petition in October 2017 based on changed circumstances, such as her graduation from high school, attendance at a community college and efforts to live independently. We conclude the court did not abuse its discretion. Mother’s changed circumstances showed considerable and commendable efforts on her part, but the trial court could reasonably conclude these changes did not eliminate or ameliorate the problems that led to the removal of Andre from her care and the termination of her reunification services, and that providing mother additional reunification services was not in Andre’s best interests.

A. The Department’s Forfeiture Claim

The Department contends that mother has forfeited this section 388 claim altogether by failing to timely appeal from it. The Department bases this argument on its construction of mother’s otherwise timely February 22, 2018 notice of appeal as being from the court’s order terminating her parental rights only. We disagree that mother has forfeited her appellate claim. The juvenile court denied her section 388 petition and terminated her parental rights in the same hearing on February 15, 2018. Mother’s notice of appeal states, “I appeal from the findings and orders of the court (specify date of order or describe order): February 15, 2018, whereby the court terminated the parental rights of [mother].” “ ‘[I]t is, and has been, the law of this state that notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.’ ([citation]; see also [California Rules of Court,] rule 8.100(a)(2) [‘notice of appeal must be liberally construed’].) A notice of appeal ‘is sufficient if it identifies the particular judgment or order being appealed.’ ([California Rules of Court, r]ule 8.100(a)(2).)” (In re Joshua S. (2007) 41 Cal.4th 261, 272.) Mother’s statement in her notice of appeal makes it reasonably clear that she was appealing from the court’s findings and orders on February 15, 2018, which included the court’s rejection of her section 388 petition. She did not forfeit her section 388 claim.

B. The Merits of Mother’s Section 388 Claim

In rejecting mother’s section 388 petition, the juvenile court stated, “I don’t think there has been a significant enough change in circumstances, although the changes are significant, what I mean by that is to override the other concerns. [¶] Most significantly, I don’t think it’s in Andre’s best interest to delay permanency considering he’s going to be three years old in August. He has been with the same family for so long and the Court doesn’t think there is enough time to provide any type of services to ensure mom a safe and stable permanent housing . . . . [¶] Also, whether she is able to continue on to show a long-term change in behavior, there have been some episodes where it’s unclear in her life. . . . [¶] . . . The question is not just whether we can help [mother] in this particular issue, but it’s about Andre today, and I think in light of his age and all the circumstances, the changes that have been made in comparison to some exhibition of [mother], she hasn’t really dealt with all the anger management issues and issues that she found herself in circumstances where perhaps not the best choices have been made. However, she has done so much better and I think she is changing. [¶] It’s not adequate for the Court to grant the Petition.”

Mother argues that the juvenile court, by ruling that her changed circumstances were not “significant enough,” required her to meet a higher standard of proof than the governing statute requires. She also argues that her changed circumstances were such that the court should have granted her petition.

The governing statute is section 388, which provides in relevant part, “Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.” (Id., subd. (a)(1).) The petitioner must show “by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child.” (In re A.A. (2012) 203 Cal.App.4th 597, 611, citing In re Stephanie M. (1994) 7 Cal.4th 295, 316–317 (Stephanie M.).) “The parent bears the burden to show both a legitimate change of circumstances and that undoing the prior order would be in the best interest of the child.” (In re A.A., at pp. 611–612.)

“Not every change in circumstance can justify modification of a prior order. [Citation.] The change in circumstances must relate to the purpose of the order and be such that the modification of the prior order is appropriate. [Citations.] In other words, the problem that initially brought the child within the dependency system must be removed or ameliorated. [Citations.] The change in circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged order.” (In re A.A., supra, 203 Cal.App.4th at p. 612.)

Further, in considering such a petition, a juvenile court should keep in mind that “[a]fter the termination of reunification services, the parents’ interest in the care, custody and companionship of the child are no longer paramount. Rather at this point, ‘the focus shifts to the needs of the child for permanency and stability’ [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.] A court . . . must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child.” (Stephanie M., supra, 7 Cal.4th at p. 317.)

We review a juvenile court’s order denying a section 388 petition for abuse of discretion. (Stephanie M., supra, 7 Cal.4th at p. 318.) That is, we consider whether the trial court exceeded the bounds of reason.

We reject mother’s contention that the court required that she meet a higher legal standard than required by section 388. The court’s indication that mother’s changed circumstances were not “significant enough” was consistent with section 388’s requirement that mother show by a preponderance of the evidence that her proposed modification of the court’s prior order, i.e., her request for additional reunification services, was material to the elimination or amelioration of the problems that led to Andre being removed from her care, and was in Andre’s best interests. Mother does not establish, nor have we found any legal authority establishing, that the court must state any “magic words” to demonstrate its proper application of the standard.

1. Mother’s Continuing Problems

There is substantial evidence in the record that, although mother made great efforts to improve her circumstances and loved Andre very much, she did not make significant progress in removing or ameliorating these problems, even after the Department had provided her with extensive services, and that Andre’s need as an almost three-year-old for permanency was paramount.

Andre became a dependent of the court because, first, the court sustained the Department’s allegation that mother, 16 years old at the time of his birth and a dependent of the court herself, was unable to control her anger and understand how it endangered Andre. This included mother’s verbal abuse of group home staff and her flipping over a changing table near Andre within days of his birth, which occurred after four assault charges previously had been brought against her.

Second, the court sustained the Department’s allegation that mother was unable to comply with directions regarding Andre’s care that also endangered him. This included her placing the newborn Andre’s pacifier in her own mouth, leaving him in a car seat at an angle that could restrict his breathing, and co-sleeping with him despite repeated instruction to discontinue these unsafe actions.

Third, the court sustained the Department’s allegation that mother had a history of mental, developmental and/or emotional problems which periodically rendered her unable to provide adequate and safe care for Andre. This included her refusal of medical assistance for herself at Andre’s birth until she faced the threat of a medical hold, her attempts to take the newborn Andre to a group Bible study session before he had received necessary shots and her overall inability to follow basic instructions for his care.

There is no dispute that the Department provided reasonable services to mother for a period of over 18 months, from 2015 to 2017, to help her come to terms with these problems and reunify with Andre. These services included the Department keeping Andre in mother’s care at her group home placement under agreed-to safety measures, allowing mother supervised overnight visits with Andre until her conduct created safety concerns, and providing parenting classes, individual therapy, anger management class, dialectical behavioral therapy, and referrals for psychotropic medications.

Despite these services, and despite mother’s love and care for Andre, mother did not gain significant insights into, or control over, her anger issues. In May 2016, the Department reported in its six-month status review that mother thought she knew how to care for an infant and did not understand why Andre had not been returned to her care. She was participating in therapy, the Department wrote, “but has had difficulty working toward solutions and comprehending the need for Andre to be in care.” She “struggled with demonstrating an understanding of how her behaviors impact the safety of her child. [Mother] is unwilling or unable to take responsibility for her actions, and has struggled with working towards solutions.” She continued “to become easily aggravated and shut down from conversation” and “due to her young age and developmental status, often put[] her needs in front of those of her son.”

In November 2016, in its 12-month status review, the Department reported that, according to mother’s group home manager, mother had engaged in five incidents during the last reporting period “that involved outbursts, yelling and becoming physically aggressive with staff.” A residential administrator reported in June 2015 that “[w]hen [mother] doesn’t understand something or the rationale is too abstract, her agitation can reach the level of becoming verbally abusive . . . [and she] needs a low stressor, structured environment with moderate, consistent supervision and guidance to be successful and safe.” Although mother completed a parenting class in August 2016, she had “not demonstrated behavioral changes consistent with the new skills she has learned,” and continued to co-sleep with Andre. She took actions that caused concerns about her understanding Andre’s feeding schedule and what foods were appropriate for him. Her therapist reported that mother struggled with abstract thinking skills, and if her structure or concrete thinking was interrupted, it “oftentimes” led to “hyperarousal resulting in arguments, verbal aggression, and in the past property destructions and AWOL from placement.” It was further reported that, “even after being able to identify coping mechanisms, [mother] has had several incidences of outbursts in front of her son . . . .” She continued to have difficulty working toward solutions, comprehending the need for Andre to be in care, and “controlling her anger.”

In April 2017, in its 18-month status review, the Department reported that after mother “graduated” from her therapy program, “there was a significant increase in her behaviors,” which included defiance, arguments, verbal and physical altercations, and property destruction. In October 2016, she was placed on a section 5150 hold after she reported having suicidal thoughts and thoughts of hurting others, which also led to the suspension of her overnight visitations with Andre. She continued to have violent behaviors toward group home staff and peers “on a regular basis.”

Mother repeatedly engaged in problematic behavior in her group home placements. In a placement that ended in February 2017, she engaged in incidents that “resulted in outbursts, yelling, becoming physically aggressive with staff, pushing a pregnant housemate, property destruction, and punching and kicking walls.” In February 2017, on her first weekend at another group home, she threatened to “fuck the staff up,” requiring police to be called to the home. Her yelling caused staff to quit the job and walk off the premises. She was only allowed to stay after her social worker persuaded the home to work with her a while longer.

The Department reported that mother consistently visited with Andre and was observed to be loving and caring, but sometimes required guidance and redirection when Andre became fussy, upset or wanted to explore his surroundings. Despite her therapy work, she was unable to identify any coping mechanisms that she utilized when she became upset. “Her behaviors have increased and physical and verbal altercations have taken place both in front of Andre and other residents’ children, placing them at risk,” the Department wrote. She continued to not understand what behaviors were appropriate for Andre’s age, despite monthly discussions about the matter. The Department concluded that mother’s parental progress toward alleviating or mitigating the causes necessitating out of home placement was “minimal.” It recommended terminating reunification services for her because there was not a substantial probability Andre would be returned to her care within the next six months if services were offered to her.

In its November 2017 response to mother’s section 388 petition, the Department reported that mother, who was then living with a mentor in the Bay Area, blamed her problematic behaviors on the stress of living in a group home, where she was “bossed around” and told what to do. She said she only knew how to raise Andre based on how she was raised.

Mother told the Department she coped with her anger by walking away from the triggering situation. Nonetheless, she continued to act on her anger in problematic ways. In June 2017 she was placed in a supervised independent living placement with her uncle, but was soon hospitalized when her uncle broke her jaw. When a Department staff person picked her up at the hospital, the staff person resisted mother’s insistence on returning to her uncle’s house for safety reasons. Mother became angry and “irrational,” got out of the car and walked off in her socks.

The Department further reported that in November 2017, mother, having forgotten her bus pass, refused a driver’s order to exit a public bus (that would have taken her to her community college), which required the police to be called. Before the police arrived, mother and other riders on the bus “exchanged threats of beating each other up.” Mother said police “tricked” her into getting off the bus by saying they would help her get to school and then did not, causing her to punch a pole so hard that her hand bled.

The Department reported that mother also was having issues living independently. Her mentor, with whom mother stayed for about six months, expressed concerns about mother’s difficulties managing money. The mentor said that living with mother was “touch and go,” and that when mother “reaches a barrier, she just stops and can’t move, and can’t think about what needs to happen next.”

The Department also reported that mother’s relationship with Andre was marred by her behavioral difficulties. After mother returned to the Bay Area in June 2017, she initially declined to visit Andre in Fresno using Amtrak tickets offered by the Department because of the distance, instead choosing to visit via Skype phone calls, which she was allowed to have once a week. Andre’s foster parents reported that when they called for these weekly Skype calls, often mother was sleeping or unavailable because she was not by a good wireless network connection. In two November phone calls, she answered her own phone calls rather than pay attention to Andre. The caregivers were “concerned that the contact between Andre and his mother is not meaningful, and it’s especially difficult when they have to chase Andre around and try to get him to pay attention.”

The Department reported that mother’s in-person visits with Andre were also problematic. On October 20, 2017, she became irate when she had problems finding the visit location. Once she arrived, Andre recognized mother and said hello, but had “no emotional affect” towards her. He did not follow her directions, and there was not much conversation between them. She took no steps to stop Andre as he ran off; the foster parent present ran after him instead. When she asked Andre if he wanted her to leave, he said yes, and then only hugged her when the foster parent asked him to do so.

In a November 2017 visit, Andre greeted and hugged mother, but she upset him at one point by making a scary sound and yelling, causing him to seek out his foster parent. According to the Department, mother “did not demonstrate an understanding of child development.” The Department was concerned she “would not be able to safely supervise him, given her lack of focus during visits.” The Department also reported that psychological testing had determined that mother had “a low average range” of intellectual ability that “further complicates and impairs her ability to make substantial changes in her life, despite intensive services and interventions.”

The Department recommended that reunification services be terminated because mother continued “to have difficulty maintaining control of her temper and acts out in hostile ways,” was “reluctant to accept the authority of others” and did not appear able “to properly manage both her and Andre’s needs, given that she has difficulty managing her own needs and finances.” Further, “[w]hen presented with new and unfamiliar situations, [mother] has demonstrated she is unable to navigate the circumstances while appropriately managing her emotions, which is often channeled into anger and aggression. . . . [Mother’s] impulsive behaviors suggest that she would not be able to make safe choices for herself and Andre, should he be returned to her care.”

The Department reported that Andre was well-bonded with his foster parents, who had cared for him since he was three weeks old. It also reported that Andre’s foster parents were committed to adopting him.

The court granted mother a hearing on her section 388 petition upon finding that she had made a prima facie showing of changed circumstances. At the hearing, mother said there were several reasons why she had anger and aggression issues while living in the group home, but not with her mentor. She had been in a house full of girls she did not know who had “their own issues,” and she was angry because everyone else had family come to visit them except her. She felt like the one person who was not able to go places because “no one wanted to see me, so my anger was in a way towards family, but you know, the group home, also.” Since turning 18, she had not hit another person, although she was hit by her uncle in July 2017.

Mother’s testimony indicated that she lived in unstable circumstances. She was living in an emergency placement with nine other housemates until she was able to obtain her own housing, which placement she did not think was safe for Andre. Previously, her mentor had let mother live with her for six months, and mother had done so without significant incidents.

Mother said she was out of work. She had been laid off from a cashier job after a month, but acknowledged that she had previously been suspended because of a conflict with two customers who, mother said, wanted a refund that was against work rules. She had applied for work at several businesses, but had not received any call backs.

Regarding the bus incident, mother said the bus driver let two other people on the bus before her who did not have their bus passes, but he would not let her do the same. She refused to get off the bus because she was late for class. She said the bus driver put his hand on her, which caused her to “freak out” because she did not like it when people touched her.

Mother testified that she went to Fresno once in November, twice in December and twice in January to visit Andre in Fresno, waking up at 4:00 a.m. and taking two buses and Amtrak in order to do so. She enjoyed the visits with Andre, and he would call her “mommy.” He sometimes hugged her, and he appeared happy to see her. She also said she had started going to therapy in November, found it beneficial and planned to continue with it.

2. Mother’s Changed Circumstances

Mother argues that the court failed to acknowledge the undisputed evidence that she had made significant changes in her life, and she points out that Andre’s counsel agreed this was the case and supported her section 388 petition. We agree that these changes were significant, but not necessarily as they related to Andre’s well-being and best interests. Mother points out that she had graduated from high school, was attending community college, was in a non-minor dependent extended foster care program and had matured “significantly” since leaving the group home setting. She also alludes to evidence that she was learning to manage herself and her finances, was looking for work and was seeking stable housing. Regardless, she has not shown that she eliminated or ameliorated the problems that caused the court to assert jurisdiction over Andre and later terminate mother’s reunification services. There is substantial evidence that mother continued to struggle with problems that led to the court taking these actions. Under our abuse of discretion standard of review, when two or more inferences can reasonably be deduced from the facts, we have no authority to substitute our decision for that of the juvenile court. (Stephanie M., supra, 7 Cal.4th at pp. 318–319.)

Mother also contends she established that her “success or failure during the reunification period was directly related to her unhappiness in placement.” This argument is underwhelming. As our discussion indicates, mother engaged throughout the reunification services period in angry and sometimes violent outbursts that were inappropriate in any setting and no matter how unhappy she may have been in her placements, and she did so despite the Department providing her with extensive services, including parenting and therapy services. The court could reasonably conclude mother’s outbursts highlighted the perils involved in returning Andre to her care, as parenting a toddler can at times be overwhelming and fraught with frustrations.

Further, the record indicates mother’s outbursts continued after she left her group home placements, such as when she refused to exit a public bus and became angry and irrational towards a Department staff person. Mother’s argument also ignores that she had long-standing problems with controlling her anger and frustration, and that her therapist’s observations and her psychological testing indicate these problems were difficult for her to overcome.

Mother further contends that “[t]he effect of being an angry and unhappy teen mother living in a group home without family support cannot be overlooked,” and points out that her testimony at the petition hearing indicate she had reflected on these circumstances. She further contends that her behaviors would improve as she matured. We applaud mother’s efforts to reflect on these matters, to mature and to become able to live independently. Nonetheless, mother’s efforts in these areas do not demonstrate that she eliminated or ameliorated the problems that caused the court to act to protect Andre’s safety and well-being.

3. Andre’s Best Interests

Even if we were to conclude that mother established by a preponderance of the evidence that her changed circumstances contentions had more merit, she fails to show the juvenile court abused its discretion in concluding additional reunification services were not in Andre’s best interests.

As mother points out, determining a child’s best interests can be challenging. One court has held that juvenile courts should consider three, non-exhaustive factors: “(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531–532.) Also, once reunification services have been terminated, a parent’s petition for modification must establish how such a change will advance the child’s need for permanency and stability. (In re J.C. (2014) 226 Cal.App.4th 503, 527.)

Mother does not establish that any of these factors favors her petition. Regarding the first and third factors outlined in In re Kimberly F., the evidence indicates mother had long-standing problems with anger, frustration and sometimes violent outbursts, including before and after her group home placements, and that she did not make significant progress on these problems. Mother would have us believe that because she was no longer burdened by group home placements and because of her developing maturity, she showed that her problems were not serious and could be overcome. Based on the evidence we have already discussed, the juvenile court was within its discretion to conclude otherwise.

As for the relative strength of the bonds between Andre and mother and Andre and his foster parents, mother argues little beyond that she continued with her visitations with Andre throughout the dependency. She ignores the substantial evidence that her bond with Andre was not particularly secure or parental, as indicated by his sometime indifference to her, his sometime disregard of her direction, her own distractions and lapses in the attention she paid to Andre during these visits, her need for guidance and help in caring for Andre’s needs during her visits, and her decision to visit the very young Andre by Skype rather than in person for a time. On the other hand, there is substantial evidence Andre was well-bonded with his foster parents and looked to them to meet his needs, which is not surprising given that Andre spent most of his young life with them, not mother.

Mother further contends that it would not be detrimental to Andre’s best interests to provide additional reunification services to her because, as Andre’s counsel indicated, Andre was in a stable, secure placement that would not be affected by this additional period of services. This too is unpersuasive. The court could reasonably conclude that mother, despite being provided with extensive services over an extended period of time, did not make significant progress and, therefore, that granting mother’s petition was not in Andre’s best interests because of his need for a permanent placement. (See, e.g., In re Casey D. (1999) 70 Cal.App.4th 38, 49 [because the court had found circumstances were changing, rather than changed, it

was entitled to conclude that granting the parents’ requests for further reunification services was not in the child’s best interests given her strong and immediate need for stability].)

III.

The Court Did Not Err in Rejecting Mother’s Beneficial Relationship Claim.

Mother next argues that we must reverse the juvenile court’s termination of her parental rights because there is not substantial evidence to support the court’s decision that the beneficial relationship exception does not apply in this case. We disagree.

At the section 366.26 permanency hearing, the juvenile court’s task is to select and implement a permanent plan for the dependent child. When there is no probability of reunification with a parent, adoption is the preferred permanent plan. (§ 366.26, subd. (b)(1); In re Marina S. (2005) 132 Cal.App.4th 158, 164.) If the juvenile court finds by clear and convincing evidence that a child is adoptable, it must terminate parental rights and order the child placed for adoption, unless it finds termination would be detrimental to the child under one or more of the statutorily specified exceptions. (§ 366.26, subd. (c)(1); In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1416.)

One such statutory exception is the beneficial parent-child relationship exception. The juvenile court cannot terminate parental rights where it “finds a compelling reason for determining that termination would be detrimental to the child” because the “parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) This has been described as a two-prong analysis: “The first prong inquires whether there has been regular visitation and contact between the parent and child. [Citation.] The second asks whether there is a sufficiently strong bond between the parent and child that the child would suffer detriment from its termination.” (In re Grace P. (2017) 8 Cal.App.5th 605, 612.)

The “benefit” necessary to trigger the beneficial relationship exception is not statutorily defined. It has been judicially construed to mean that “the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) In determining whether a relationship is important and beneficial, courts should consider “(1) the age of the child, (2) the portion of the child’s life spent in the parent’s custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child’s particular needs.” (In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. omitted.)

The parent seeking to prevent termination of his or her parental rights by asserting the beneficial relationship exception bears the burden of proving the exception’s applicability by a preponderance of the evidence. (In re J.C., supra, 226 Cal.App.4th at p. 529.) “It is not enough to show that the parent and child have a friendly and loving relationship. [Citation.] ‘ “Interaction between [a] natural parent and child will always confer some incidental benefit to the child . . . .” ’ [Citation.] For the exception to apply, ‘a parental relationship is necessary . . . .’ [Citation.] ‘ “While friendships are important, a child needs at least one parent. Where a biological parent . . . is incapable of functioning in that role, the child should be given every opportunity to bond with an individual who will assume the role of a parent.” ’ ” (Ibid.)

There is a lack of consensus regarding the standard of review we apply to a juvenile court’s rejection of a claim that an exception to adoption applies. Some courts review for substantial evidence (see, e.g., In re G.B. (2014) 227 Cal.App.4th 1147, 1166; In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333), some for abuse of discretion (see, e.g., In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351), and others apply a hybrid standard that incorporates both standards. (See, e.g., In re Breanna S. (2017) 8 Cal.App.5th 636, 647; In re K.P. (2012) 203 Cal.App.4th 614, 621–622.) The court in In re J.C., supra, 226 Cal.App.4th at pages 530–531, explained this hybrid standard as follows: “ ‘Since the proponent of the exception bears the burden of producing evidence of the existence of a beneficial parental or sibling relationship, which is a factual issue, the substantial evidence standard of review is the appropriate one to apply to this component of the juvenile court’s determination.’ [Citation.] The second determination in the exception analysis is whether the existence of that relationship or other specified statutory circumstance constitutes ‘ “a compelling reason for determining that termination would be detrimental to the child.” ’ [Citation.] This ‘ “ ‘quintessentially’ discretionary decision, which calls for the juvenile court to determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the child of adoption,” is appropriately reviewed under the deferential abuse of discretion standard.’ ” We are persuaded the hybrid standard is the proper standard, and it is the one we shall apply.

As we have already discussed there is substantial evidence that mother’s bond with Andre, almost three years old at the time of the court’s termination of mother’s parental rights, was not particularly secure or parental, and that on the other hand, Andre was well-bonded with his foster parents and looked to them to meet his needs, having spent most of his young life with them. Certainly, after more than two years of dependency proceedings, we have no reason to question the juvenile court’s determination that Andre needed permanency in his life more than he needed to wait while his mother continued to work on her problems. The court did not err in rejecting mother’s beneficial relationship exception claim.

IV.

The Court Did Not Commit Any ICWA Error Regarding Andre’s Paternal Heritage.

Finally, mother argues the juvenile court committed reversible error by terminating her parental rights without requiring the Department to comply with the inquiry and notice requirements of the ICWA (25 U.S.C. § 1901 et seq.) regarding information provided by Andre’s biological father (father). We disagree.

A. The Relevant Proceedings Below

At the six-month review hearing for Andre, before Andre’s biological father was known to the Department or the court, and based on the information mother provided, the court found that the ICWA did not apply based on the information available to it. The notice sent to the tribes at that time did not include any information regarding father.

The Department subsequently located father, who was determined to be Andre’s biological father in October 2017. Father had never met Andre and had no relationship with him. The juvenile court appointed counsel for father.

In November and December 2017, a Department social worker tried repeatedly to reach father by phone to discuss Andre’s dependency, without success. In January 2018, father told the Department that “there may be possible Native American ancestry through his father.” He “thinks his last name is Creole which may be connected to a Native American tribe on his father’s side. [Father] does not know which tribe, but indicated his father and grandmother would know more.” Shortly thereafter, the Department’s social worker made a phone call to the paternal grandfather and, when he did not answer, left a message. The social worker also called father and requested contact information for his mother, which father did not provide.

Father was not present at the section 366.26 hearing in February 2018, but his counsel attended. After the court ordered mother’s and father’s parental rights terminated, the Department’s counsel stated that father had recently told the Department he believed that his ancestry was Creole and his last name might be Native American. Counsel stated that the “Department’s position is that some possible Native American ancestry just based on those statement[s] isn’t enough to trigger an inquiry or a reason to know that [Andre] is an Indian child.” Also, the Department had attempted to obtain additional information from the father but had been unable to do so. Father’s counsel indicated she was not sure she agreed that there was not a duty to inquire, and that whether or not the notice requirement was triggered did not prevent the court from making orders.

The court stated that initial notice to the tribes was in 2015 and that “everyone’s compliance has been addressed notwithstanding the new comments today from counsel.” The court did not make any express determination regarding the applicability of the ICWA inquiry and notice requirements to father.

B. Analysis

The ICWA requires that notice be given to Indian tribes of any involuntary proceeding in state court to place a child in foster care or to terminate parental rights “ ‘where the court knows or has reason to know that an Indian child is involved.’ ” (In re Isaiah W. (2016) 1 Cal.5th 1, 7–8.) Further, “[a] juvenile court has an affirmative and continuing duty in all dependency proceedings to inquire into a child’s Indian status. If a court determines it has reason to know a child is an Indian child, the court must notify the [Bureau of Indian Affairs] and any relevant tribe so that the tribe may determine the child’s status and decide whether to intervene. If adequate and proper notice has been given, and if neither the [Bureau of Indian Affairs] nor any tribe provides a determinative response within 60 days, then the court may determine that ICWA does not apply to the proceedings. At that point, the court is relieved of its duties of inquiry and notice, unless the [Bureau of Indian Affairs] or a tribe subsequently confirms that the child is an Indian child.” (Id. at pp. 14–15, citing sections 224.3 and 224.2.)

Mother argues the court did not fulfill this inquiry and notice duty. This is incorrect for two reasons.[2] First, the ICWA is only applicable when the “Indian tribe” is recognized by the United States government. (In re Wanomi P. (1989) 216 Cal.App.3d 156, 168.) However, “the term ‘Creole’ is not defined to include Native American tribal heritage” (In re John V. (1992) 5 Cal.App.4th 1201, 1217), and mother does not argue otherwise. Further, father’s statement that he might have some Indian heritage on his father’s side at best raised only a vague possibility that this was the case. Such vague statements that a child “ ‘may’ have Native American heritage [are] insufficient to trigger ICWA notice requirements if the claim is not accompanied by other information that would reasonably suggest the minor has Indian ancestry.” (In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1516; see also In re Hunter W. (2011) 200 Cal.App.4th 1454, 1469 [“family lore” too speculative to trigger the ICWA requirements].)

Second, the Department did fulfill its duty to inquire when it attempted to contact Andre’s paternal grandfather and asked father for his mother’s contact information. The Department had “no duty to conduct an extensive independent investigation for information.” (In re C.Y. (2012) 208 Cal.App.4th 34, 41.) Its inquiries fulfilled its duty. (See In re S.B. (2005) 130 Cal.App.4th 1148, 1161 [“as long as the social worker did inquire of the parents [regarding Indian heritage], and as long as the parents failed to provide any information requiring follow-up, she had no further duty of inquiry”].) Mother does not cite any legal authority to the contrary.

DISPOSITION

The orders appealed from are affirmed.

STEWART, J.

We concur.

KLINE, P.J.

MILLER, J.

In re Andre F. (A153723)