In re Joseph F.

Filed 6/22/07 In re Joseph F. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

In this juvenile dependency case, we hold that the juvenile court acted within its discretion in denying a motion by the minors mother to modify the order placing the minor with prospective adoptive parents, and in entering an order terminating the parental rights of the minors parents in order to free him for adoption. Unfortunately, the final implementation of the juvenile courts order must be delayed, at a minimum, because of the failure of the social services agency and the juvenile court to comply fully with their duties under the Indian Child Welfare Act (ICWA).

Facts and Procedural Background

The minor involved in this dependency proceeding, Joseph F. (Joseph), was born in February 2001. His parents, who were married later in 2001, but have since divorced, are appellants Hope S. (mother) and Michael F. (father). At the time of Josephs birth, mother was 30 years old and father was 19 years old. Mother also has an older son, Michael L. (brother), by a different father, who was born in November 1987, and who was living with her when Joseph was born. Joseph lived with his parents and brother continuously for the first two and a half years of his life.

On November 7, 2003, respondent Contra Costa Children and Family Services (Agency) filed a petition under Welfare and Institutions Code section 300, subdivision (b)[1] seeking to have Joseph declared a dependent child.[2] The petition alleged that the feces from five resident pit bulls had been permitted to remain on the floors in the familys home; there was garbage in the front yard because the home had no waste removal service; and there were piles of clutter throughout the house.[3] The petition also alleged that mother and father had engaged in domestic violence in Josephs presence. Joseph was briefly detained in an emergency foster home starting on November 5, 2003, but was returned to his home about a week later after it was cleaned up.

On December 8, 2003, however, Joseph was ordered detained again, in part because mother had reported to the police on November 20, 2003, that father and brother had assaulted her. In addition, mother and father were not cooperating with Agency, and garbage had again been permitted to accumulate at the home. The social worker was unable to find Joseph until a week later, when he was located next door, at the home of his maternal grandmother. The social worker suspected from mothers demeanor and appearance that she had a substance abuse problem.[4]

Joseph was placed in foster care from December 12, 2003, through March 4, 2004, and then with a maternal aunt. Unfortunately, he was physically abused in the aunts home, and had to be removed on May 18, 2004, after which he was placed in two different foster homes until June 7, 2004. On that date, Joseph was returned to mothers home on a trial basis, and he remained with mother for the next nine months. Brother lived with mother and Joseph during at least some of this time, but at least as of March 25, 2004, and for some period thereafter, brother was incarcerated on juvenile criminal charges.

Meanwhile, mother and father stipulated to a jurisdiction order on March 15, 2004, and Joseph was adjudged a dependent child on May 10, 2004. Treatment and reunification services were offered to mother, and on July 21, 2004, Joseph was returned to her custody as the result of a successful section 388 motion. On August 4, 2004, the agency reported that Joseph appeared happy and well cared for in mothers new home, which was clean and stocked with food, and no animals were living there. Mother had completed a parenting class and was starting to comply with the drug testing requirements of her treatment plan, although she had missed two tests.[5] However, mothers therapist had declined to continue working with her due to her level of denial, and the social worker remained concerned about mothers continu[ing] to minimize the seriousness of the issues [in] this case.[6] Father was participating in an anger management program and had started drug testing. The court ordered that Joseph remain in mothers custody, that reunification services and drug testing for the parents continue, and that father have weekly visitation.

On March 8, 2005, however, the Agency reported that mother had missed several drug tests; had tested positive once for methamphetamine; and had unilaterally discontinued her therapy.[7] She, Joseph, and brother were living together in a clean, spacious home, and she had been employed by a tax preparation firm, but had been forced to quit due to an injury to her hand. She had then begun working as an administrative assistant for a neighbor who had a home-based small business. Joseph and brother both reported that this neighbor had yelled at mother, Joseph said the neighbor had hit her, and the Agency suspected that the neighbor might be mothers boyfriend, although mother and brother both testified that he was only a friend and former roommate.

Because of these events, on March 9, 2005, Joseph was again removed from mothers home, and placed with a different relative, in whose custody he remained for about half a year. During part of this time, brother lived downstairs in the same home, and saw Joseph every day. Meanwhile, mother again missed a number of additional drug tests, and had one additional positive test for methamphetamine. Reunification services for mother were suspended on May 24, 2005, and terminated on September 22, 2005.

On September 22, 2005, the juvenile court set a hearing under section 366.26 (a section .26 hearing) for January 11, 2006. During the hearings leading up to that order, mother denied using drugs, despite her positive drug test results. The juvenile court found her testimony not credible, and concluded that she had little or no insight regarding the reasons for the dependency proceeding. On September 28, 2005, mother filed a notice of intent to file a writ petition under former California Rules of Court, rule 38 (current rule 8.450). On January 3, 2006, the writ petition was denied in an unpublished opinion of this court. (Hope S. v. Superior Court (Jan. 3, 2006, A111929) [nonpub opn.].)

While the writ was pending, Josephs relative caretaker relinquished custody of him due to his behavioral problems in preschool, and on September 30, 2005, he was moved to another foster home. Joseph remained in that home while the Agency continued to try to find an adoptive placement for him. During this period, Joseph had sporadic telephone contact with mother, and visits with her about once a month. Brother was in juvenile hall and at a correctional boys camp until December 2005, and unable to see Joseph, but after he was released, he participated in three of these visits. Joseph had one visit with father, who was reported not to have participated in his reunification plan and not to have been in contact with the Agencys social worker.

On January 11, 2006, the juvenile court held an initial section .26 hearing, determined that adoption was the permanent goal for Joseph, and set a further hearing for May 10, 2006. On February 27, 2006, a few days after his fifth birthday, Joseph was placed with potential adoptive parents.

On May 2, 2006, mother filed a motion under section 388, on the ground that since the entry of the order terminating reunification services was entered on September 22, 2005, she had successfully completed a drug rehabilitation program. She also averred that Joseph was very attached to her and bonded with brother. She sought to regain custody of Joseph, or to set aside the section 366.26 order and resume reunification services. The juvenile court set the motion for hearing on May 10, 2006, the same date as the next section .26 hearing. Due to a continuance, the hearing on both aspects of the case actually commenced on May 19, 2006 (the May 19 hearing), and continued for an additional day on June 23, 2006 (the June 23 hearing).

The Agencys report for the May 19 hearing, which was dated May 10, 2006, reported that mother and father were participating in supervised visits with Joseph for one hour a month, and mother also had telephone contact with him. The Agency expressed some concerns regarding inappropriate behavior by mother during some of her calls and visits.[8] Joseph was still in the custody of his potential adoptive parents through the date of the June 23 hearing, and was reported to be happy with them and doing well, albeit with some minor behavioral problems.

At the June 23 hearing, mother testified that she had recently taken steps to resume counseling. She had not yet actually made an appointment with a therapist, but she had obtained referrals for that purpose and had completed an assessment, though too recently for it to have been sent to her therapist or provided to the court. She said she had last used methamphetamine in February or March 2005, and admitted she had lied at an earlier hearing when she denied ever using it. She characterized herself as a recovering alcoholic and a recovering methamphetamine addict, but denied ever having been addicted to either drug. She had attended a drug treatment program from November 2005 to April 2006, with a short hiatus during that time; was attending three to five Alcoholics Anonymous or Narcotics Anonymous meetings a week; and characterized April 1, 2005, as her drug sobriety date and December 20, 2005, as her alcohol sobriety date.

At the June 23 hearing, Josephs counsel joined in the Agencys recommendation that mother and fathers parental rights be terminated. She argued that his attachment is not as strong as his family would like him [sic] to think and that it has in many ways been an unhealthy, painful attachment for Joseph that has resulted in many disruptions and much instability in his life.

At the conclusion of the June 23 hearing, the juvenile court denied mothers section 388 motion, terminated both parents parental rights, found that adoption was the best permanent plan, and set a review hearing for December 8, 2006. Mother and father each filed timely notices of appeal, which refer both to the denial of mothers section 388 motion and to the order terminating parental rights.

DISCUSSION

A. Denial of Section 388 Motion

A parent attempting to modify or set aside a previous dependency order under section 388 must show by a preponderance of the evidence that a change in circumstances exists and that the proposed modification of the courts previous order is in the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) A [section 388] petition which alleges merely changing circumstances and would 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 childs best interests. (Ibid.)

After the termination of reunification services, a court considering a section 388 motion focuses on the childs need for permanency and stability. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) There was thus a rebuttable presumption that continuing Josephs placement was in his best interests. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.) This presumption applied with even greater force because Joseph had been placed in a home that would provide the permanency of adoption. (In re Angel B. (2002) 97 Cal.App.4th 454, 464.) In reviewing the denial of a section 388 petition, we review only for an abuse of discretion; we cannot reweigh the evidence. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)

In this case, in her oral ruling at the June 23 hearing denying mothers section 388 motion, the trial judge noted that mothers counsel had acknowledged that mother previously had not admitted or dealt with her substance abuse issues, and opined that mother still had not fully admitted or dealt with them at this time, based on her testimony today. She still appears to lack insight into her addiction. In support of this conclusion, the court noted that although mother acknowledged being a recovering alcoholic, she had testified very inconsistently about whether she had been a methamphetamine addict, and about whether she had planned her methamphetamine use. The court also noted that although mother claimed that her sobriety date was in December of the previous year, she was still using alcohol infrequently, and could not give firm dates as to when she stopped using alcohol and methamphetamine. For those reasons, the trial judge did not believe mother had shown that kind of acceptance such that I feel confident that she really understands it and that theres a change of circumstances . . . . In addition, the judge concluded that there was not evidence really showing that . . . it would be in Josephs best interest to change his custody where he is doing very well in his current placement.

We find no abuse of discretion in the denial of mothers section 388 motion in this case. Even assuming that mother established the existence of changed circumstances, ample evidence supports the juvenile courts conclusion that it was not in Josephs best interests to resume reunification efforts, and delay his permanent placement yet again, on the basis of mothers relatively recent sobriety and her belated efforts to obtain additional counseling.

B. Termination of Parental Rights

At a hearing under section 366.26, after reunification services have been terminated, the court must order adoption and termination of parental rights, unless one of the exceptions provided for in the statute ( 366.26, subd. (c)(1)) provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Fernando M. (2006) 138 Cal.App.4th 529, 534-535; In re Celine R. (2003) 31 Cal.4th 45, 53.) In reviewing a juvenile courts finding that the exceptions in section 366.26, subdivision (c) do not apply, we apply an abuse of discretion standard. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 (Jasmine D.).)[9] That is, we view the evidence and all reasonable inferences in the light most favorable to the courts ruling, and determine whether any rational judge could reasonably have made that ruling. (Ibid.)

At the section 366.26 hearing in this case, mother relied on two of the statutory exceptions to oppose the termination of her parental rights. The first exception was the parental relationship standard, which applies when [the parent has] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(A).)

[T]he exception in section 366.26, subdivision (c)(1)(A), requires that the parent-child relationship promote the well-being of the child to such a degree that it outweighs the well-being [sic] the child would gain in a permanent home with new, adoptive parents. [Citation.] A juvenile court must therefore: balance[] 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 Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.) Thus, the proper standard for applying the exception set out in section 366.26, subdivision (c)(1)(A), places on the parent a burden to establish a parental relationship . . . not merely a friendly or familiar one, such that it is sufficient to outweigh the stability and permanence of an adoptive home. (Jasmine D., supra, 78 Cal.App.4th at p. 1350, italics in original.)

The parents have the burden of demonstrating that the termination of parental rights would be detrimental to the child. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) [A] child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the childs need for a parent. It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship. (Jasmine D., supra, 78 Cal.App.4th at p. 1350.)

In opposing the termination of her parental rights, mother also relied on the statutory sibling relationship exception, based on Josephs relationship with brother. ( 366.26, subd. (c)(1)(E).) The sibling relationship exception applies if termination of parental rights would be detrimental to the child because [t]here would be a substantial interference with a childs sibling relationship . . . .  (In re Daniel H. (2002) 99 Cal.App.4th 804, 811.) This exception is intended to preserve long-standing sibling relationships that serve as anchors for dependent children whose lives are in turmoil. (In re Erik P. (2002) 104 Cal.App.4th 395, 404.) With this exception, as with the parental relationship exception, [t]he parent bears the burden of proving both the existence of the sibling relationship and that its severance would be detrimental to the child. (In re Valerie A. (2006) 139 Cal.App.4th 1519, 1523;  366.26, subd. (c)(1)(E).) The sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. (In re Daniel H., supra, 99 Cal.App.4th at p. 813.)

When considering the sibling relationship exception, the concern is the best interests of the child being considered for adoption, not the interests of that childs siblings. [T]he court may reject adoption under this sibling relationship exception only if it finds adoption would be detrimental to the child whose welfare is being considered. It may not prevent a child from being adopted solely because of the effect the adoption may have on a sibling.  (In re Hector A. (2005) 125 Cal.App.4th 783, 791.)

In deciding to accept this recommendation, the court found, as to father, that given [his] inconsistent contacts [with minor] and his failure to do his [reunification] plan and the lack of establishment of a significant, positive emotional attachment between [Joseph] and his father, father had not shown that he met the exception to the statutory mandate for permanent placement. As to mother, while acknowledging that Joseph truly enjoys the visits [with her, and] lights up when he sees her, the court found that these facts were not sufficient to establish that he has developed such a significant, positive emotional attachment that it outweighs the benefit to him of finally getting stability in his life, particularly given the courts finding that mother did not understand[] the depth of her substance abuse problem.

On appeal, mother and father both argue that the juvenile court erred in failing to find that Josephs bond with mother, and with brotherespecially taken togetheroutweighed his interest in remaining with his prospective adoptive parents on a permanent basis. However, proof that Joseph had a significant emotional relationship with his mother and brother did not compel the juvenile court to find that termination of his parents parental rights would be detrimental to him. While brothers testimony clearly showed that he was fond of his little brother, the fact remains that they only lived in the same household for the first half of Josephs life. By the time of the June 23 hearing, Joseph had not lived in the same home as brother for over two years, and had only enjoyed a few visits with him during the preceding six months.

In short, having considered all of the evidence on this point, we cannot find that the juvenile court abused its discretion in concluding that mother had not met her burden of proof to demonstrate that Josephs bonds with her and with brother were sufficiently strong to outweigh Josephs need for permanence and stability.[10]

C. ICWA Notice

Congress enacted the ICWA in 1978 to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families. (25 U.S.C.  1902.) The ICWA allows a tribe to intervene in state court dependency proceedings (25 U.S.C.  1911(c)), because the statute 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.) [W]here the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. (25 U.S.C.  1912(a).) Notice to the tribe provides it the opportunity to assert its rights. (In re Karla C. (2003) 113 Cal.App.4th 166, 174.)

 When proper notice is not given under the ICWA, the courts order is voidable.  (In re Glorianna K. (2005) 125 Cal.App.4th 1443, 1449.) We are most mindful of the potential adverse impact from any deficiency in complying with ICWA given the fact that noncompliance can invalidate the actions of the juvenile court, including placement orders. [Citations.] Consequently, we agree with those courts that have emphasized the importance of strict compliance with ICWA notice requirements and, if necessary, have remanded the matter for the juvenile court to ensure that proper notice is given. (In re I.G. (2005) 133 Cal.App.4th 1246, 1254.)

In the present case, both mother and father apparently have Indian heritage. On March 16, 2004, the Agency sent ICWA notices, in the form of SOC 318 and SOC 319 forms, to the relevant tribes and the Bureau of Indian Affairs (BIA). The SOC 318 forms were replete with blanks. No information was filled in on the forms regarding the birthplaces of any of Josephs ancestors, or whether they were enrolled in any tribe. In the spaces for information about Josephs paternal grandparents, not even their names were provided. Nevertheless, the Agency was aware of the names and whereabouts of both Josephs father and mother, as well as his maternal grandmother, who testified at the June 23 hearing.

The Blackfeet Tribe responded on April 2, 2004, that it could not locate any of Josephs relatives on its rolls, but added that [i]f you are able to gather more information on the ancestry of the parents, the Agency should contact the tribe again. The BIA returned the forms to the Agency on April 12, 2004, with a letter stating that the BIA had been given [i]nsufficient information substantiating any federally recognized tribe, and stating that [f]urther information is needed . . . on maternal side. The BIAs letter stated in boldfaced type that [t]his form is not [to] be considered a determination that the child(ren) is or is not an Indian child under the ICWA. In addition, the Eastern Band of Cherokee Indians sent a letter indicating that based on the information received from you, Joseph was not registered or eligible to register as a member of that tribe, but cautioning that [t]his determination is based on the information exactly as provided by you. Any incorrect or omitted family documentation could invalidate this determination.

The record does not reflect that any additional information was provided to the BIA or any of the relevant tribes. In a report dated April 30, 2004, the Agency reported to the juvenile court that the BIA and the Blackfeet Tribe had responded to the ICWA notices and had not found Joseph to be an Indian child. However, the Agency failed to inform the court that these entities also had requested additional information regarding Josephs ancestry. On May 10, 2004, the juvenile court found that proper ICWA notice had been given and that the ICWA did not apply to Joseph.

On appeal, both parents contest this finding. We agree that the ICWA notice given in this case was inadequate, because of the Agencys failure to include basic information that was either known to it, or readily obtainable from Josephs parents (e.g., their birthplaces, and the names of fathers parents), and its failure to respond to the correspondence it received from the BIA and the tribes indicating that more ancestry information was needed in order for them to determine whether Joseph was an Indian child.

Both the juvenile court and [the Agency] have an affirmative duty to inquire whether a child declared a dependent minor of the juvenile court qualifies as an Indian child for ICWA purposes. (In re Glorianna K., supra, 125 Cal.App.4th at p. 1449.) If there is a claim of Indian heritage in a juvenile dependency case, the social services agency involved has a duty to inquire about and obtain, if possible, all of the information about a childs family history required under ICWA, including the full names (including maiden and married names and aliases), addresses, and dates and places of birth of those relatives with American Indian heritage. (In re C.D. (2003) 110 Cal.App.4th 214, 225; see also In re S.M. (2004) 118 Cal.App.4th 1108, 1116 [a social worker has a duty to inquire about and obtain, if possible, all of the information about a childs family history  required under regulations promulgated to enforce the ICWA]; In re Louis S. (2004) 117 Cal.App.4th 622, 630.) Because an ICWA notice is intended to enable the relevant tribes to determine whether the child is an Indian child, the notice is meaningless if no information or insufficient information is presented to the tribe. (In re D.T. (2003) 113 Cal.App.4th 1449, 1455.) Thus, all known information about the childs ancestry must be included in the notices sent to the tribes or the BIA. (In re C.D., supra, 110 Cal.App.4th at p. 225.)

Moreover, [t]he burden is on the Agency to obtain all possible information about the minors potential Indian background and provide that information to the relevant tribe or, if the tribe is unknown, to the BIA. (In re Louis S., supra, 117 Cal.App.4th at p. 630, italics added [holding ICWA notice inadequate where it failed to include information that was either known or readily available to social services agency].) Here, the record supports the conclusion that the Agencys efforts to satisfy the requirements of ICWA were inadequate[11] As a result of the Agencys failure to comply with its duty to obtain reasonably ascertainable information, the ICWA notices sent in this case omitted information without which the tribes could not conduct a meaningful search. (See, e.g., In re Jennifer A. (2002) 103 Cal.App.4th 692, 705; see also In re D.T., supra, 113 Cal.App.4th at p. 1455.) Under these circumstances, the juvenile court erred in determining the notice provisions of the ICWA had been satisfied.

On appeal, the Agency does not seriously dispute that the ICWA notice given in this case was inadequate. It argues, however, that this is not cause for reversal of the order terminating parental rights, because neither mother nor father took any steps to correct the problem during the period of over two years that elapsed between the juvenile courts finding that ICWA notice had been given and the June 23 hearing.

The Agencys argument ignores the well settled law on this point. The notice requirements of ICWA are mandatory and cannot be waived by the parties. (In re Robert A. (2007) 147 Cal.App.4th 982, 988-989.)  Notice ensures the tribe will be afforded the opportunity to assert its rights under the [ICWA] irrespective of the position of the parents, Indian custodian or state agencies.  (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253.)  Because the notice requirement is intended, in part, to protect the interests of Indian tribes, it cannot be waived by the parents failure to raise it. [Citation.] The right to raise the issue for the first time on appeal is not limited solely to the affected tribes. Instead, any parent . . . may petition any court of competent jurisdiction to invalidate foster care placement or termination of parental rights upon a showing that such action violated any provision of [the relevant provisions of the ICWA]. [Citation .] Thus, because it is critical to the tribes in which the dependent child may have existing or future membership, and because tribes depend on parents in the first instance to notify state social workers and courts of known or potential Indian ancestry, parents who have failed to raise the notice issue below may raise it on appeal. (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1408; see also In re Jennifer A., supra, 103 Cal.App.4th at p. 706; In re Marinna J. (2001) 90 Cal.App.4th 731, 738-739.)

For the foregoing reasons, we are constrained to remand this case to the juvenile court for further proceedings in regard to notice under the ICWA.

DISPOSITION

The order denying mothers section 388 motion is affirmed. The order terminating mothers and fathers parental rights is reversed, and this case is remanded to the juvenile court for further proceedings consistent with this opinion.

On remand, the juvenile court is directed to ensure that the Agency collects all of the information regarding Josephs ancestry that is reasonably ascertainable after diligent inquiry from his known living relatives, and properly serves notices containing all of that information on all relevant Indian tribes and the BIA. Once the juvenile court finds that the notice requirements of the ICWA have been complied with, it shall make a finding with respect to whether Joseph is an Indian child. If at any time within 60 days after notice has been given there is an affirmative response that Joseph is an Indian child, the juvenile court shall find in accordance with the response. (Cal. Rules of Court, rule 5.664(g)(1), (4).) If there is no such affirmative response within 60 days after notice has been given, the juvenile court shall find that Joseph is not an Indian child. (See Cal. Rules of Court, rule 5.664(f)(6).)

If the juvenile court finds that Joseph is not an Indian child, it shall reinstate the original order terminating parental rights. If the juvenile court finds that Joseph is an Indian child, it shall set a new section 366.26 hearing and shall conduct all further proceedings in compliance with the ICWA and all related federal and state law.

_________________________

Ruvolo, P. J.

We concur:

_________________________

Reardon, J.

_________________________

Sepulveda, J.

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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise noted.

[2] The petition also applied to brother, but he had turned 18 and was no longer a dependent by the time the proceedings below were concluded. All references to brother in this opinion are to Michael L., Josephs brother. We refer to Michael F. as father.

[3] When asked at the final hearing in the proceedings below why her home had been in this condition at that time, Mother responded, Because I gave up being a mother. I gave up being a wife. I just gave up, period. She denied that this occurred because of alcohol or drug use, however.

[4] On or about January 7, 2004, father expressed a similar concern to the social worker, and also indicated that he had left the family home and did not want to return. On January 28, 2004, mother obtained a domestic violence restraining order against father. Josephs parents divorce apparently became final on November 8, 2004.

[5] Mother also began participating in a domestic violence support group in March 2004, and continued to participate regularly at least through the end of March 2005.

[6] At the hearing on June 23, 2006, mother explained that her first therapist had terminated their relationship because the therapist did not think they were compatible together as counselor-patient.

[7] Mother later averred that this termination was not at her instance, but at that of the therapist, because the therapist could not persuade mother to talk about her past, which included molestation as a child and rape as an adult. Mother said she was still not ready to talk about those issues, which she contended had nothing to do with my son, and explained that she had already worked through them in previous therapy and did not want to revisit them.

[8] Mother introduced testimony at the June 23 hearing that put her behavior in a more innocent light. The trial judge did not cite the Agencys concerns on these issues either as a reason for denying mothers section 388 motion or as a reason for terminating mothers and fathers parental rights. Accordingly, we will not discuss the underlying facts in detail.

[9] We agree with Division Three of this court that a finding as to whether there is a compelling reason not to terminate parental rights under one of the statutory exceptions to section 366.26, subdivision (c), is a quintessentially discretionary determination subject to review for abuse of that discretion. (See Jasmine D., supra, 78 Cal.App.4th at p. 1351.) In any event, the abuse of discretion standard is very similar to the substantial evidence standard when, as here, the reviewing court examines a factual determination based on the lower courts evaluation of evidence presented by opposing parties. (Ibid.) In the present case, our conclusion under the substantial evidence standard of review would be the same.

[10] Because we reject appellants challenge to the termination of parental rights on its merits, we need not reach the issue whether they waived their right to appeal the finding of lack of detriment by not taking an immediate appeal from the juvenile courts order of January 11, 2006. (See In re Gabriel G. (2005) 134 Cal.App.4th 1428.)

[11] We do not hold that a social services agency faced with a vague and unspecific claim of Indian ancestry in a dependency case must cast about, attempting to learn the names of possible tribal units to which to send notices, or to make further inquiry with BIA after receiving a negative response to its initial inquiry. (In re Levi U. (2000) 78 Cal.App.4th 191, 199.) Here, however, mother and father provided the Agency with the names of specific tribes to which to send the notice, and the Agency failed to make even the most rudimentary effort to comply with its obligation to provide those tribes with readily ascertainable information, such as the names of fathers parents, in order to assist the tribes in determining whether Joseph was an Indian child.