Filed 7/10/17 In re F.B. CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(San Joaquin)
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In re F.B. et al., Persons Coming Under the Juvenile Court Law. C082991


SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

Fr.B. et al.,

Defendants and Appellants.

(Super. Ct. Nos. STKJVDP20100000-149 & J05500)



Appellants T.L. (mother) and Fr.B. (father) appeal from the juvenile court’s order terminating parental rights as to minors F.B., J.B., and O.B. (Welf. & Inst. Code, §§ 366.26, 395.) Father also appeals the denial of his petition for modification. (§§ 388, 395.)
Appellants contend the juvenile court erred in determining the beneficial parental relationship exception to adoption did not apply. Father also contends that the juvenile court abused its discretion in summarily denying his petition for modification and that the orders must be reversed due to noncompliance with the inquiry and notice requirements of the Indian Child Welfare Act (hereafter ICWA). (25 U.S.C. § 1901 et seq.) Mother joins in these arguments. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On July 19, 2010, the San Joaquin County Human Services Agency (Agency) filed a dependency petition on behalf of then 13-month-old F.B. (born June 2009) and newborn J.B. (born July 2010), after mother and J.B. tested positive for methamphetamines at J.B.’s birth. Mother has a history of substance abuse and admitted to use of methamphetamine throughout her pregnancy with J.B. F.B. had tested positive for valium at his birth. Mother was offered voluntary services at that time but declined. Father tested positive for methamphetamine at the detention hearing. Appellants also have a history of domestic violence. F.B. and J.B. were detained.
The juvenile court declared F.B. and J.B. dependents and removed them from appellant’s custody. Appellants were ordered to complete reunification services, including parenting courses, domestic violence classes (father only), and substance abuse treatment.
Mother participated in her case plan and by June 2011, had completed her counseling, parenting course, and residential treatment program, and was participating in an aftercare program. Father was resistant to engage in his case plan but eventually began participating. By June 2011, he had completed his parenting course, domestic violence groups, and was in his fifth month of a residential treatment program. Appellants were engaged to marry. The minors were returned to mother’s custody with continued services. Father moved into the home in August 2011.
In November 2011, it was reported that mother was pregnant. Mother had completed her aftercare program and was clean and sober. Father had completed residential treatment and was participating in his aftercare program. By May 2012, appellants had completed their case plans. Dependency was dismissed on May 16, 2012.
On April 10, 2015, almost three years after the dependency was dismissed, deputies responded to appellants’ home for a welfare check. They found the minors living in deplorable conditions and without any electricity. The minors were sitting on the couch with a bag of methamphetamine on the floor within their reach. Appellants were arrested for child endangerment and minors F.B., J.B., and O.B. (born February 2012) were detained and a new section 300 petition was filed.
At the August 26, 2015 disposition hearing, mother admitted she had resumed use of methamphetamine in February 2015 because caring for the minors was overwhelming. She had enrolled in an outpatient treatment program and had last used in July 2015. Father admitted relapsing in January 2015, after over two years of sobriety. His history of methamphetamine use (as well as other drugs) dated back to 1970, although he had a period of sobriety after 1970 until 1973. He had also enrolled in an outpatient treatment program and last used methamphetamine in May 2015. Appellants also admitted there had been recent domestic violence between them. The juvenile court declared the minors dependents, ordered them removed from appellants’ custody, and bypassed appellants for reunification services pursuant to section 361.5, subdivision (b)(13).
The December 2015 section 366.26 hearing was continued at the Agency’s request. The minors were already in their second foster home, after the first home had requested their removal due to the minors’ disruptive behavior. They were doing well in their current foster home, where they were placed on April 23, 2015, but the Agency wanted to move them to an adoptive home. The Agency had found a prospective adoptive home and the minors had begun visits with that prospective adoptive parent. The social worker understood the minors were very attached and bonded with appellants because they had spent many years with them and visited weekly, and it was expected they would need some time to make the transition.
The children went to the concurrent planning home in December 21, 2015, and stayed until the family requested their removal because of difficulty bonding and J.B.’s behavior. On April 3, 2016, the Agency placed the three minors together in a new concurrent planning foster home. This was their fourth foster home. All three minors continued in counseling -- F.B. had experienced positive emotional growth since the new placement; J.B. had a behavior chart for the foster father to use and encourage good behavior in a positive manner; O.B. was working on separation and loss issues. The foster father worked closely with the minors’ therapist to help the minors adjust to his home. In June 2016, it was reported that the foster father was very capable of, and proactive in, meeting the minors’ needs and was committed to adopting them.
On July 15, 2016, father had filed a section 388 petition for modification, seeking return of the minors to his custody, alleging he had maintained sobriety since May 19, 2015. The Agency filed an opposition, arguing father had not shown a true change of circumstances, as he had previously shown the ability to maintain a period of sobriety but relapsed, resulting in the second removal of the minors. Mother joined in father’s petition.
The section 366.26 hearing took place on August 29, 2016. At the beginning of the hearing, the juvenile court indicated it had considered father’s section 388 petition for modification and denied it. The court then heard testimony from the social worker, mother, father, and three individuals who participated in sobriety programs with appellants.
Appellants had visited the minors separately and consistently visited every week. A parent coaching session followed each visit. The minors were comfortable with appellants. Visits with father appeared “chaotic” and the minors often wandered out of the visitation area. They played rough with their father, although he also read to them. Mother was very good with them, getting them to play games and color. She was very positive with the boys and spoke to them well, discussing things and asking how they were feeling. Sometimes, however, J.B. would try to leave the visits to go back to his foster father. The foster father also reported that the minors’ behaviors escalated after visits. J.B. became aggressive with his siblings -- hitting and pulling at them. The foster father was actively working with the minors’ therapist to address this behavior.
The adoptions social worker observed the minors to be very attached to their foster father. The foster father dealt with J.B. very well. The minors were doing well in school and they were observed sitting at the table doing homework and eating dinner, without bickering. They were proud of their rooms and were very respectful of their foster father. The adoptions social worker opined that when older children, such as the minors, are adopted, she believes it is beneficial to keep some kind of contact with their natural parents. Although the minors here know appellants as their natural parents, she did not believe terminating contact with appellants would be detrimental to their well-being.
The juvenile court found the minors adoptable, found no exception to adoption applied, and terminated parental rights.
Additional facts are included in the discussion as relevant to the particular issues being addressed.
DISCUSSION
I
Petition for Modification
Father contends “[t]he juvenile court abused its discretion when it summarily denied father’s section 388 modification petition.” He argues that “[g]iven the minimal showing required to obtain a hearing on a section 388 petition, the court abused its discretion in denying father’s petition without a hearing.” We conclude father was not wrongfully denied a hearing.
“[Section 388] petitions are to be liberally construed in favor of granting a hearing to consider the parent’s request. [Citations.] The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]” (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.) “There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.] If the liberally construed allegations of the petition do not 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. [Citation.]” (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) A summary denial of a section 388 petition is reviewed for abuse of discretion. (In re Anthony W., at p. 250.)
Father’s July 15, 2016, petition sought return of the minors to his custody. The petition alleged that he had completed an outpatient substance abuse program on November 19, 2015, and dependency drug court on April 12, 2016. The petition further alleged father had maintained his sobriety since May 19, 2015, had completed a parenting class, attended regular visits, and resided in the same home for four years. The petition stated the modification was in the minors’ best interests because they had not maintained a stable placement for more than eight months, they have had difficulty changing placements (which had occurred four times), and they were bonded with appellants. Father stated appellants were willing to live separately if necessary in order for the minors return to father’s custody. As noted by father, the petition was also supported by documentary evidence, including certificates of completion from the dependency drug court, the New Directions outpatient substance abuse treatment program, and the 12-week parenting class, as well as recommendation letters attesting to father’s sobriety since May 19, 2015.
The Agency responded with a lengthy written opposition, arguing that father’s participation in substance abuse treatment programs and alleged 14 months of sobriety were insufficient to establish changed circumstances because that was consistent with his pattern of completing programs, maintaining a period of sobriety, and then returning to substance abuse. It requested the juvenile court consider the dispositional report, the prior dependency case, and the June 2016 status report. The Agency emphasized that parents have a long history of substance abuse and domestic violence. The minors had been removed in July 2010. After 16 months of services, appellants reunified with the minors, only to have them removed again in April 2015 when parents relapsed. The Agency argued that there was no change of circumstances because appellants had already shown they were able to complete services and maintain a period of sobriety. What father had not shown was his ability to maintain a long-term, sober lifestyle, which was necessary to establish an actual change of circumstances and that return of the minors would be in their best interests. Father did not file any further response. On August 29, 2016, mother filed a written joinder in support of father’s petition.
At the August 29, 2016, hearing, the juvenile court stated it had reviewed and considered father’s petition, as well as the supporting documentation and certificates. The juvenile court denied the petition, explaining the extent of father’s substance abuse over the preceding six years (at minimum), the fact that this was the second time the minors had been removed, and the father’s previous substantial relapse prevented the court from finding father had changed his lifestyle and that return of the minors would be in their best interests.
We reject father’s contention that he was wrongfully denied an evidentiary hearing on his petition. The juvenile court considered documentary evidence and argument, and then denied the petition. Counsel did not object to this procedure or seek to submit additional evidence. Thus, contrary to father’s assertion, the petition was not summarily denied. (See In re C.J.W. (2007) 157 Cal.App.4th 1075, 1080-1081 [§ 388 petition not summarily denied without hearing where juvenile court heard argument and considered written evidence, but did not take testimony].)
Moreover, father has failed to identify any evidence he wanted to present but was prevented from presenting, or that there was some evidence he could have presented that would have persuaded the juvenile court to grant the section 388 petition and return the minors to father’s custody. Indeed, he fails to identify any unfairness whatsoever in the process he was provided. We find no error. (In re C.J.W., supra, 157 Cal.App.4th at p. 1081; In re Edward H. (1996) 43 Cal.App.4th 584, 594.)
II
Beneficial Parental Relationship Exception
Appellants contend the juvenile court erred by failing to apply the beneficial parental relationship exception to adoption. We find no error.
At the selection and implementation hearing held pursuant to section 366.26, a juvenile court chooses one of several “‘possible alternative permanent plans for a minor child . . . . The permanent plan preferred by the Legislature is adoption. [Citation.]’ [Citations] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child. [Citation.]” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)
There are only limited circumstances which permit the court to find a “compelling reason for determining that termination [of parental rights] would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) One such circumstance is when “[t]he 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).)
To prove that the beneficial parental relationship exception applies, the parent must show there is a significant, positive emotional attachment between the parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) And even if there is such a bond, the parent must prove that the parental 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 re S.B. (2008) 164 Cal.App.4th 289, 297, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.); accord, In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1345 (Jasmine D.).) “In other words, the court balances the strength and quality of the natural parent[-]child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent[-]child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (Autumn H., at p. 575.) On the other hand, “ ‘[w]hen the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent[-]child relationship, the court should order adoption.’ ” (Jasmine D., at p. 1350; Autumn H., at p. 575.) “Because 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.” (Jasmine D., at p. 1350.)
It is undisputed that appellants visited regularly. The juvenile court also found there was an “obvious bond” between the appellants and the minors, but, considering the detriment to the minors of severing that bond compared with the stability of a nurturing family, concluded adoption was the appropriate plan. It found stability was “critical” for these minors who had been “moved around now more than they should have.” The record supports the juvenile court’s findings.
At the time of the section 366.26 hearing, F.B. was seven years old, J.B. was six years old, and O.B. was four years old. This is appellants’ second dependency in a three-year period with the two older minors. Given the dates of detention, return in the first dependency, and removal in the second dependency the minors had lived a significant about of time outside appellants’ custody -- over two years for F.B. and J.B. and over one year for O.B.
Not only had the minors been bounced back and forth from appellants’ custody, they had been moved several times since their second removal. Transitions had not always gone smoothly and the previous foster family had difficulty bonding with the minors. J.B. had a particularly difficult time in previous foster homes. All of the minors, however, were doing well now, appeared happy, and were very bonded and attached to their foster father. The minors were respectful of their foster father, who was meeting their physical and emotional needs.
Appellant did establish that they had generally positive visits and that the minors were bonded to them. But while the minors did enjoy visits with appellants, there were no reports of any problems separating or sadness at the end of visits. Moreover, O.B. reportedly did not like to go to the visits, although he was fine once he got there. And although the visits reportedly went well, they were not wholly positive for the minors. The minors’ behaviors escalated for a day or so after the visits.
With respect to appellants’ bond with the minors, even a significant, positive emotional attachment between parent and child does not bar adoption if the child looks to a prospective adoptive parent to meet his or her needs. (In re Dakota H. (2005) 132 Cal.App.4th 212, 231; In re Zachary G. (1999) 77 Cal.App.4th 799, 811.) Here, the minors had a bond with appellants but were also “very attached” to their foster father and looked to him, not appellants, to meet their physical and emotional needs. In fact, J.B. showed a particular attachment to his foster father by regularly looking for his foster father and sometimes leaving the room to be with him during appellants’ visits.
The adoptions social worker did recognize there would be some detriment in terminating the minors’ relationship with the people they know as their natural parents, but she did not believe it would be overly detrimental to their well-being. Even mother admitted during her testimony that she was not sure terminating parental rights would cause any detriment to the minors. But “some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights” is not sufficient to overcome the preference for adoption. (Jasmine D., supra, 78 Cal.App.4th at p. 1349.) The benefit to the child must promote “the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents,” and the detriment must be such that the child would be greatly harmed if the relationship was severed. (Autumn H., supra, 27 Cal.App.4th at p. 575.) These criteria were not met.
Under these circumstances, the record supports the juvenile court’s finding that the minors’ relationship with mother and/or father did not rise to the type of substantial, positive, and emotional attachment that would cause them great harm if severed, and did not outweigh the benefits of a stable and permanent home.
III
ICWA Compliance
The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for removal of Indian children from their families, and by permitting tribal participation in dependency proceedings. (See 25 U.S.C. § 1902; In re Levi U. (2000) 78 Cal.App.4th 191, 195-196.) After the petition is filed, if the court “knows or has reason to know that an Indian child is involved,” notice of the pending proceeding and the right to intervene must be sent to the Indian tribe, or the Bureau of Indian Affairs (BIA) if the identity or location of the tribe cannot be determined. (25 U.S.C. § 1912(a).) The purpose of the ICWA notice provisions is to enable the tribe or the BIA to investigate and determine whether the children are Indian children. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) Notice must include all of the following information, if known: the child’s name, birthplace, and birth date; the name of the tribe in which the child is enrolled or may be eligible for enrollment; names and addresses of the child’s parents, grandparents, great-grandparents, and other identifying information; and a copy of the dependency petition. (§ 224.2, subd. (a)(5)(A)-(D); In re Mary G. (2007) 151 Cal.App.4th 184, 209.)
Here, father claimed Indian heritage but could not provide any information about a possible tribe. He informed the social worker that his deceased sister had “the card” and he did not have contact information for his brother-in-law. He provided only the name of his deceased mother and had no other information to assist in tracing his possible Indian heritage.
Later, father informed the social worker that his brother had ties with a tribe. The social worker contacted the brother, who claimed affiliation with “the United Lumber Nation Tribe in North Carolina” and provided a roll number of 3316. The brother later stated he did not know with which tribe he was affiliated but his roll number was 3316. The social worker stated the Agency inquired of the identified tribe and it also provided this information (along with father’s information and the brother’s name, relation, address, birth place, and birth date) in an ICWA notice to the BIA. An amended ICWA notice providing the paternal grandmother’s married and maiden names, state of birth, and year of death was also sent to the BIA.
Father now claims the social worker should have sought ancestry information “that was easily accessible” from some of his other relatives. We disagree. The Agency and the juvenile court were not required to “cast about” for family history information. (In re Levi U., supra, 78 Cal.App.4th at p. 199.) The ICWA requires a reasonable investigation into a child’s possible Indian heritage. Here, the Agency contacted the only living relative identified by father as someone who could provide additional information about father’s possible claimed Indian heritage. The brother identified a tribe which is not a federally recognized tribe but, nonetheless, the social worker apparently contacted the tribe and sent notice to the BIA. The social worker also provided information obtained about the paternal grandmother in a subsequent amended ICWA notice.
Furthermore, additional ancestral information was hardly “easily accessible to the Agency,” as father claims. Father had refused to provide the social workers with any of his relatives’ names (which were sought for possible placement purposes). The social worker ran a computer search to obtain the names of some relatives. The social worker did attempt to contact those six relatives in connection with possible placement of the minors and all but one aunt and one cousin failed to respond at all to the initial letter. Thus, not only was there no reason to believe these relatives would have relevant information (since father did not identify them as such when asked for individuals who could provide additional information), most of those relatives were unresponsive.
Finally, although father argues that the Agency’s failure to contact these other relatives shows that it made no real effort to obtain ancestral information to assist “the tribe” in making a knowledgeable decision about the minor’s heritage, he fails to acknowledge that neither he, nor his brother, ever identified a federally recognized tribe. Upon the failure of father and his brother to identify a possible federally recognized tribe, the information provided to the social worker was “too vague and speculative to give the juvenile court any reason to believe the minors might be Indian children” or to trigger the notice requirement. (In re O.K. (2003) 106 Cal.App.4th 152, 157.) In any event, since ICWA notices were sent to the BIA containing all the information given to the Agency, the duties of inquiry and notice were fully satisfied.
DISPOSITION
The orders of the juvenile court are affirmed.



/s/
Blease, Acting P. J.


We concur:



/s/
Robie, J.



/s/
Duarte, J.