Filed 6/23/17 In re V.H. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re V.H. et al., Persons Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,

Plaintiff and Respondent,

v.

K.S.,

Defendant and Appellant.


E067250

(Super.Ct.No. SWJ008884)

OPINION


APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Judge. Affirmed in part, reversed and remanded in part with directions.
Richard Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant.
Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant K.S. (Mother) has five young daughters and an extensive history with the Riverside County Department of Public Social Services (DPSS). Mother appeals from the juvenile court’s order terminating her parental rights under Welfare and Institutions Code section 366.26 and the summary denial of her section 388 petition as to her two youngest daughters: three-year-old V.H. and two-year-old Z.H.
On appeal, Mother argues that: (1) the juvenile court erred in finding the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) did not apply because the notice requirements of the ICWA were not satisfied; (2) the juvenile court erred in finding the sibling relationship exception to adoption did not apply and failing to order sibling visits to continue; and (3) the juvenile court erred in summarily denying her Welfare and Institutions Code section 388 petition. After a thorough review of the entire record, we agree that there was inadequate compliance with the ICWA notice provisions and will remand the matter for that limited purpose. We, however, reject Mother’s remaining contentions.
II
FACTUAL AND PROCEDURAL BACKGROUND
A. Mother’s Past History with DPSS
Mother first came to the attention of DPSS in August 2007 as to her then four-month-old daughter S.H. due to general neglect. At the time, Mother was 15 years old and two and a half months pregnant with her second child. She was fighting at school and had not told her parents she was pregnant. The referral was evaluated out.
In December 2008, DPSS received an immediate response referral alleging severe neglect to her then nine-month-old daughter H.E. Mother was uncooperative and the children were taken into protective custody. DPSS filed a section 300 petition on behalf of the children, and in February 2009, the juvenile court found the allegations in the petition true.
In September 2009, the juvenile court awarded sole physical custody of H.E. to her father. H.E.’s dependency was then terminated. As to S.H., Mother was provided with reunification services. In March 2010, S.H. was returned to Mother’s care. In October 2010, despite the fact that the child’s attorney expressed serious concerns, S.H.’s dependency was terminated and Mother was granted sole physical and legal custody of the child.
In December 2010, March 2014, and May 2015, Mother gave birth to M.W., V.H., and Z.H., respectively. From May 2012 to May 2015, DPSS received 14 referrals alleging the children were at risk of general neglect, physical abuse, and sexual abuse. The referrals alleged that Mother lived in an unsanitary home or with men who used drugs and physically disciplined the children. Other referrals alleged that Mother drank and smoked marijuana around the children and that she brought strange men around the children. The referrals were either evaluated out or were unfounded.
B. Current Dependency
On June 9, 2015, DPSS received an immediate response referral alleging the children were in danger of general neglect, physical abuse, and severe neglect. The reporting party indicated that V.H., age one, had a fractured, dislocated right elbow and a skull fracture. Further investigation revealed V.H. had suffered a compressed disk in her neck, cut on her tongue, four loose teeth, severe mouth injuries, and multiple bruises on various areas of her body. During the interview, the social worker noted that Mother exhibited no emotion for her child. The maternal grandmother, on the other hand, was very emotional and in tears due to concern for V.H. The maternal grandmother denied knowledge of how the child hurt her elbow and had no concerns about how Mother cared for the children. A subsequent Child Abuse and Neglect (CAN) exam of V.H. revealed that V.H.’s injuries were severe and not acute (older) and that Mother’s statements were inconsistent with V.H.’s injuries. Dr. Sheridan believed Mother was being untruthful and that the child appeared to be a “ ‘battered child.’ ” The children were placed in protective custody.
On June 11, 2015, a petition on behalf of the children was filed pursuant to section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (e) (severe physical abuse), (g) (no provision for support), and (j) (abuse of sibling). An amended petition was filed on June 12, 2015, and a second amended petition on October 21, 2015.
At the June 12, 2015 detention hearing, the children were formally detained. Mother and the respective fathers were ordered to complete a Parental Notification of Indian Status (Judicial Council Forms, form ICWA-020 (hereafter ICWA-020)). The court found that ICWA may apply.
During the initial interview, Mother reported that she had no Native American heritage and that she lived with her mother (D.H.) and father (R.H.) in their residence in Homeland. At that time, the social worker also noted the maternal grandparents’ birthdates.
On June 12, 2015, Mother stated she might have Indian ancestry on the ICWA-020 form. Mother named the tribe as Cherokee and said it was through her father, R.H. Mother was unsure of her father’s date of birth and just listed a month and day of his birth but no year. Mother listed no other relative information. On this same date, Father also filed an ICWA-020 form. Father noted that he may have Indian ancestry on his paternal grandmother T.N.’s side. He listed no other relative information.
On June 30, 2015, DPSS sent ICWA notices to Mother, Father, the Bureau of Indian Affairs (BIA), and the Cherokee and Blackfeet tribes. The notices included Mother’s and Father’s names, addresses, and birthdates and birth places. Mother’s tribe was listed as the various Cherokee tribes and the Blackfeet tribe. Father’s tribe was listed as the BIA as Father had not specified a tribe. The notices also included the maternal grandparents’ names, address, and their birthdates. Two possible years of birth were listed for the maternal grandfather, but the month and day were the same. The maternal grandfather’s tribal affiliation was listed as the Cherokee tribes and the Blackfeet tribe. The maternal great-grandmother’s name and aliases were also listed on the notices. As to the maternal great-grandmother’s birthdate and place, the notices stated “No information available.” As to the maternal great-grandmother’s date and place of death, the notices stated “Unknown.” The tribal affiliation was listed as the various Cherokee tribes and the Blackfeet tribe. The notices also included the maternal great-grandfather’s name and alias and listed the various Cherokee tribes and the Blackfeet tribe. As to the maternal great-grandfather’s birthdate and place, the notices stated “No information available.” As to the maternal great-grandfather’s date of death, the notices stated “Unknown,” but noted his place of death as Whittier, California.
The notices also included the paternal grandmother’s name and alias, T.N. or T.D., and her date and place of birth. The notices indicated “Unknown” tribal membership. No other information was available for the paternal relatives.
The social worker spoke with Mother and Father on July 7, 2015. Mother reported that the maternal grandfather has Indian ancestry. She believed that they have Cherokee and Blackfeet ancestry, but were not registered with a tribe. Father stated that he believed he has Indian ancestry with the Cherokee and Blackfeet tribes, but did not believe he is registered with a tribe.
On July 7, 2015, the Blackfeet Tribe could not find the children to be Indian children in their tribal rolls and determined the children were not Indian children under ICWA. The Blackfeet Tribe noted the children were not Indian children but “[i]f you are able to gather more information on the ancestry of the parents, please contact” the tribe again to review the tribal rolls.
On July 8, 2015, the Eastern Band of Cherokee Indians (Eastern Band) and the United Keetoowah Band of Cherokee Indians (United Keetoowah) determined the children were not Indian children based on the information provided. The Eastern Band noted the determination was “based on the information exactly as provided by you. Any incorrect or omitted family documentation could invalidate this determination.”
On July 24, 2015, the Cherokee Nation found the children were not enrolled in their tribal records and concluded the children were not Indian children within the meaning of ICWA. The Cherokee Nation noted, however, that “Any incorrect or omitted information could invalidate this determination.”
By July 2015, S.H. and Z.H. were placed together in a foster home. M.W. was placed in her father’s care. And, V.H., upon her release from the hospital, was placed in a medically fragile foster home. Dr. Sheridan reported that V.H. was a seriously battered child who had suffered a wide range of serious and painful injuries and that none of her injuries were brought to medical attention in a timely manner resulting in V.H. further suffering unnecessarily.
Mother was referred to services on July 7, 2015. By August 2015, she had enrolled in parenting, anger management, and domestic violence programs. She had also begun individual therapy and completed her parenting program by September 22, 2015. By October 2015, Mother had completed a domestic violence program, a medical fragile education and training program, a CPR/first aid course, and consistently attended therapy. However, Mother appeared to not benefit from the treatment programs in which she participated. DPSS continued to have concerns whether there were any services Mother could successfully complete that would render it safe for the baby to be returned to her care.
Additionally, Mother’s visits with the children had been fair to marginal and she often struggled during her two-hour biweekly visits. She was described as not being motherly or nurturing and being manipulative. She was observed being overly critical of the children, calling M.H. “ ‘fat,’ ” and making derogatory and racist comments towards the foster mother. Mother was also found to be coaching the children. She also continued to have Father or the maternal grandmother hold Z.H. and was unable to control M.H. Despite Mother being encouraged to use the techniques she had learned from her parenting program, Mother still had difficulty parenting all of her children.
By August 11, 2015, V.H. had been downgraded from medically fragile and placed with her siblings S.H. and Z.H. V.H.’s arm was healing, but she still had difficulty straightening her arm and lacked full range movement. The foster mother was working to arrange physical therapy for V.H.
The jurisdictional/dispositional hearing was held on October 21, 2015. The juvenile court found that ICWA did not apply. The court also found the allegations in the second amended petition true and declared all four children dependents of the court. Mother was denied reunification services pursuant to section 361.5, subdivision (b)(5) and (6), as services were not in the children’s best interest. Reunification services were provided to Father.
As of March 17, 2016, Mother was not working, claimed to be disabled, and had moved back in with her parents. Mother continued to deny her involvement in the severe physical abuse of V.H. Contrary to her previous statements to hospital staff and the police, Mother was now accusing her former boyfriend, who was deceased, of the abuse, and claimed his family revealed he “did ‘it.’ ” She further claimed that she was not home during the incident and that due to domestic violence, she went along with her boyfriend’s version of the events. DPSS noted that Mother had not addressed the reason for its involvement and that V.H. and Z.H. were not bonded with Mother. V.H. and Z.H. played throughout the visits with minimal contact or engagement from Mother. The social worker did not believe the children knew who Mother was or recognized her. Mother did not adequately engage the children at visits. V.H. would wander around the room on her own looking for something to play with and Z.H. would be left in a stroller, carseat, or on the floor during the visits. On one visit, Mother left Z.H. in her carseat for 25 minutes out of a one-hour visit.
The six-month review hearing as to V.H. and Z.H. was held on April 21, 2016. The court found ICWA did not apply to the children and provided Father with an additional six months of services.
The 12-month review hearing as to V.H. and Z.H. was held on August 18, 2016. The court found proper ICWA notice had been given and that ICWA did not apply. Due to Father’s lack of progress in his case plan, Father’s reunification services were terminated and a section 366.26 hearing was set.
V.H. and Z.H. were placed in a prospective adoptive home on July 1, 2016. The social worker attempted to place Z.H. and V.H. with the legal guardians of their half siblings, H.E. and S.H., however neither legal guardian was able to care for V.H. and Z.H. V.H. and Z.H. quickly bonded with their prospective adoptive parents and appeared happy and comfortable in their home. Z.H. cried when separated from the prospective adoptive mother and cried during the initial part of the visits with Mother. Although V.H. recognized Mother and ran up to her, V.H. enjoyed anyone’s company and ran toward visitors, in general, with her arms up and open. V.H. would go with almost anyone that was willing to hold her. In contrast, Z.H. was afraid when Mother picked her up and immediately started crying at the September 2, 2016 visit. Z.H. calmed down about 40 minutes into the visit and allowed Mother to sit with her. Again, on September 26, 2016, Z.H. immediately started crying when approaching Mother with the social worker and pushed away from Mother. It took Z.H. about 10 minutes to settle down and engage in play in the room without crying. V.H. and Z.H. did not cry and were not upset at the end of the visits with Mother and happily walked out of the visits with the social worker.
V.H. was learning more words and enjoyed reading books and coloring. She was eating well and sleeping through the night. She was potty-training and able to let the prospective adoptive parents know when she needed to use the bathroom. V.H. was a very happy toddler and had adjusted well to her prospective adoptive parents. Z.H. was developmentally on target and was a happy baby who rarely cried. She had also adjusted well to her prospective adoptive parents and adored being held and hugged by them. She had developed a strong bond to the prospective adoptive mother and cried when taken from her for visitation. Z.H. was glad and excited when reunited with the prospective adoptive mother after visitation and reached for her or pushed away from the social worker once she saw the prospective adoptive mother. The prospective adoptive parents reported that they loved the children and were committed to adopting them and providing them with stability and love.
Mother continued to reside in her parents’ home, but was working on getting her own place. She was recently employed and making minimum wage. However, she had a warrant for her arrest. On September 7, 2016, the Riverside County District Attorney’s office filed charges against Mother for felony willful cruelty to a child with a great bodily injury enhancement. When notified of these charges and the arrest warrant, Mother turned herself in and posted bail. She reported that her next criminal court hearing date was scheduled for November 28, 2016.
On November 15, 2016, the date of the section 366.26 hearing, Mother filed section 388 petitions as to both V.H. and Z.H., requesting services. As to changed circumstances, Mother claimed she had completed counseling and obtained a job. As to why the requested order would be in the children’s best interest, Mother asserted that she was a changed person and was fully employed.
The juvenile court heard the petitions on November 15, 2016. The court denied the petitions because they did not state a sufficient change in circumstances to change the current court order and were not in the children’s best interest.
The juvenile court thereafter proceeded to the section 366.26 hearing. During closing argument, Mother’s counsel requested legal guardianship and a closure visitation with the children. Counsel did not argue any exceptions to adoption. The court found it was likely the children would be adopted, no exceptions to adoption applied, and terminated parental rights. Mother subsequently filed a notice of appeal.
III
DISCUSSION
A. ICWA
Mother argues the juvenile court erred in finding ICWA did not apply because the notice requirements of the ICWA were not satisfied. Specifically, Mother asserts that the ICWA notices contained two birthdates for the maternal grandfather, R.H., and that no information was listed about the great-grandparents other than their names.
We begin with an overview of ICWA, which was enacted to “ ‘protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.’ ” (In re Karla C. (2003) 113 Cal.App.4th 166, 173-174, quoting 25 U.S.C. § 1902.) Under ICWA, an “ ‘Indian child’ ” is a person who is a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4).) “ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. [Citations.] If there is reason to believe a child that is the subject of a dependency proceeding is an Indian child, ICWA requires that the child’s Indian tribe be notified of the proceeding and its right to intervene.” (In re A.G. (2012) 204 Cal.App.4th 1390, 1396; see 25 U.S.C. § 1912(a).) If the name of the tribe is not known, then notice must be provided solely to the BIA. (In re Louis S. (2004) 117 Cal.App.4th 622, 630; 25 U.S.C. § 1912(a); Welf. & Inst. Code, § 224.2, subd. (a).) These notice requirements are strictly construed because a tribe’s right to intervene is meaningless if the tribe is unaware of the proceeding. (In re Karla C., at p. 174; In re J.M. (2012) 206 Cal.App.4th 375, 380.)
“[O]ne of the purposes of ICWA notice is to enable the tribe or BIA to investigate and determine whether the minor is an ‘Indian child.’ [Citation.]” (In re Gerardo A. (2004) 119 Cal.App.4th 988, 995.) “ ‘[T]o establish tribal identity, it is necessary to provide as much information as is known on the Indian child’s direct lineal ancestors.’ [Citation.]” (In re Karla C., supra, 113 Cal.App.4th at p. 175, quoting 25 C.F.R. § 23.11(b); see 25 U.S.C. § 1912(a); Welf. & Inst. Code, § 224.2, subd. (a); In re J.M., supra, 206 Cal.App.4th at p. 380; In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) As such, it must include all available information about the child’s parents, maternal and paternal grandparents and great-grandparents, especially those with alleged Indian heritage, including maiden, married and former names and aliases, birthdates, places of birth and death, current and former addresses, and information about tribal affiliation including tribal enrollment numbers. (In re Francisco W. (2006) 139 Cal.App.4th 695, 703; 224.2, subd. (a)(5).) “A ‘social worker has “a duty to inquire about and obtain, if possible, all of the information about a child’s family history” ’ required under regulations promulgated to enforce ICWA. [Citation.]” (In re Robert A. (2007) 147 Cal.App.4th 982, 989.)
Juvenile courts and child protective agencies have “ ‘an affirmative and continuing duty to inquire whether a [dependent] child . . . is or may be an Indian child.’ [Citation.]” (In re H.B. (2008) 161 Cal.App.4th 115, 121; Welf. & Inst. Code, § 224.3; Cal. Rules of Court, rule 5.481.) As soon as practicable, the social worker is required to interview the child’s parents, extended family members, the Indian custodian, if any, and any other person who can reasonably be expected to have information concerning the child’s membership status or eligibility. (Welf. & Inst. Code, § 224.3, subd. (c); In re Shane G. (2008) 166 Cal.App.4th 1532, 1539; Cal. Rules of Court, rule 5.481(a)(4).) “ ‘The [trial] court must determine whether proper notice was given under ICWA and whether ICWA applies to the proceedings. [Citation]. We review the trial court’s findings for substantial evidence. [Citation.]’ [Citation.]” (In re Christian P. (2012) 208 Cal.App.4th 437, 451.)
“Substantial compliance with the notice requirements of ICWA is sufficient. [Citation.]” (In re Christopher I. (2003) 106 Cal.App.4th 533, 566; accord, In re Suzanna L. (2002) 104 Cal.App.4th 223, 237.) However, the notice sent to the BIA and/or Indian tribes must contain enough information to be meaningful. (In re Karla C., supra, 113 Cal.App.4th at p. 175.) Accordingly, substantial compliance requires the notice to include sufficient information—at least to the extent that it is both available and otherwise required by law—to give the tribe “a meaningful opportunity to evaluate whether the dependent minor is an Indian child within the meaning of the ICWA. [Citation.]” (In re Louis S., supra, 117 Cal.App.4th at p. 629; accord, In re Karla C., at p. 178.)
Here, the maternal grandfather’s correct birthdate and known information concerning the maternal great-grandparents were hardly unavailable. Mother informed the juvenile court at the June 12, 2015 detention hearing that she may have Cherokee Indian ancestry through the maternal grandfather, R.H. The maternal grandfather was present in court when Mother made that statement, and at subsequent hearings. Furthermore, DPSS was in contact with the maternal grandparents as they were being considered and investigated for placement of the children. It would have been very easy for DPSS to question the maternal grandparents about their Indian ancestry. The maternal grandfather’s correct birthdate, as well as relevant information concerning the maternal great-grandparents, other than their names, would have been readily available to DPSS had DPSS made appropriate inquiry. There is no indication in the record that the maternal grandparents could not supply the maternal grandfather’s correct birthdate or relevant information concerning the maternal great-grandparents other than their names. Nonetheless, DPSS noted two birthdates for the maternal grandfather and claimed no information was available or unknown as to the maternal great-grandparents.
DPSS contends that the known information was included in the ICWA notices and that DPSS made a further inquiry because the ICWA notices included information that did not appear anywhere else in the record or in Mother’s ICWA-020 form. However, the record is silent as to whether DPSS spoke with the maternal grandparents in an effort to obtain the relevant information concerning the maternal relatives. In fact, it is reasonable to infer DPSS never contacted the maternal grandfather because DPSS reported two possible birthdates for the maternal grandfather in the ICWA notices. The ICWA notices listed the maternal grandfather’s birthdates as “11/28/1956 or 11/28/1958” and place as “unknown.” The maternal grandfather was not so advanced in age, and is now merely 58 or 60, not to remember his birthdate and birthplace.
DPSS further asserts that any error was harmless since the relevant tribes responded neither the children nor the persons listed in the ICWA notices were found on the tribal rolls. We reject this contention. “The burden is on [DPSS] to obtain all possible information about the minor’s 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.) DPSS relies on In re Cheyanne F. (2008) 164 Cal.App.4th 571 (Cheyanne F.). There, we noted that “[d]eficiencies in an ICWA notice are generally prejudicial, but may be deemed harmless under some circumstances.” (Cheyanne F., at p. 577.) In Cheyanne F., the deficiencies in the ICWA notice to the Blackfeet Tribe pertained to information concerning the mother, who claimed no Indian ancestry, and did not pertain to the father, the parent who claimed to be a registered member of the Blackfeet Tribe. (Cheyanne F., at pp. 574-575.) Under those circumstances, we held the agency’s failure to include the mother’s place of birth and names of her parents and grandparents in the ICWA notice was harmless error. We reasoned that although the omitted information was required under ICWA regulations and section 224.2, “it does not follow that the omission of information concerning non-Indian relatives is necessarily prejudicial.” (Cheyanne F., at p. 576.) We concluded that “in the absence of any indication that information concerning [the mother’s non-Indian] family was relevant to the tribe’s inquiry, there is no basis upon which to conclude that the outcome would have been different if [the agency] had provided [the mother’s] place of birth and the information concerning her parents and grandparents.” (Id. at p. 577.)
Unlike Cheyanne F., where the mother stated she had no Indian ancestry and only the father claimed tribal membership, in this case Mother herself claimed Indian ancestry through her father. Therefore, Cheyanne F. does not control because in this case the accuracy and completeness of the information concerning Mother’s Indian ancestry was highly relevant to any assessment of whether the children were Indian children. In this regard, we note the responses received from the tribes stated that their determination the children were not Indian children was “based on the information exactly as provided by you. Any incorrect or omitted family documentation could invalidate this determination.” The Blackfeet Tribe noted the children were not Indian children but “[i]f you are able to gather more information on the ancestry of the parents, please contact” the tribe again to review the tribal rolls. The United Keetoowah Tribe noted the determination the children were not Indian children was based on the information provided by DPSS. Accordingly, we cannot find the error to be harmless because, as the tribes did not have a meaningful opportunity to search the tribal registry on the basis of accurate and complete information, we are unable to discern whether there is a reasonable probability they would still have been unable to determine that the children were Indian children. (See, e.g., In re S.M. (2004) 118 Cal.App.4th 1108, 1116-1117 [because notice contained no information about child’s purported Indian grandmother and great-grandmother, tribes could not conduct a meaningful search]; In re Louis S., supra, 117 Cal.App.4th at p. 631 [due to misspellings and omissions in notice, “the tribe could not conduct a meaningful search” to determine the child’s tribal heritage].)
Furthermore, as explained in In re Marinna J. (2001) 90 Cal.App.4th 731, the requirement of notice is critical under ICWA because it fosters one of the ICWA’s major purposes “to protect and preserve Indian tribes. (25 U.S.C. § 1901.) In fact, under certain circumstances . . . an Indian tribe possesses exclusive jurisdiction over child custody proceedings involving Indian children. (25 U.S.C. § 1911(b).)” (In re Marinna J., at p. 738; accord, In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1425 [“Indian tribes are independent communities possessing their own natural rights” and “Indian children are a tribe’s most valuable resources”].) Given that the failure to provide ICWA notice affected the rights of an Indian tribe, such error was not harmless.
“Because the juvenile court failed to ensure compliance with the ICWA requirements, the court’s order terminating parental rights must be conditionally reversed. This ‘does not mean the trial court must go back to square one,’ but that the court ensures that the ICWA requirements are met. [Citations.] ‘If the only error requiring reversal of the judgment terminating parental rights is defective ICWA notice and it is ultimately determined on remand that the child is not an Indian child, the matter ordinarily should end at that point, allowing the child to achieve stability and permanency in the least protracted fashion the law permits.’ [Citation.]” (In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1168, fn. omitted.) A limited reversal “is legally authorized, consistent with the best interests of children, and in keeping with fundamental principles of appellate practice.” (In re Francisco W., supra, 139 Cal.App.4th at p. 704.)
Based on the law and the record in this case, we conclude that the notice given was not in substantial compliance with the ICWA. Because we have not found any other error, the appropriate disposition is a limited remand for the purpose of complying with ICWA. (In re Terrance B. (2006) 144 Cal.App.4th 965, 971-975; In re Jonathon S. (2005) 129 Cal.App.4th 334, 342-343.)
B. Sibling Relationship Exception
Mother argues the juvenile court erred in finding the sibling relationship exception to adoption did not apply. She further asserts the court erred in not ordering sibling visits continue. We disagree.
The sibling relationship exception (§ 366.26, subd. (c)(1)(B)(v)) “applies where the juvenile court finds that ‘substantial interference with a child’s sibling relationship’ is a ‘compelling reason’ to conclude that adoption would be detrimental to the child.” (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1317.) “[T]he application of this exception will be rare, particularly when the proceedings concern young children whose needs for a competent, caring and stable parent are paramount. [Citation.]” (In re Valerie A. (2007) 152 Cal.App.4th 987, 1014.)
During closing argument at the section 366.26 hearing, Mother’s counsel stated: “mother would be objecting to the termination of parental rights. We would ask the Court to select a legal guardianship instead. That would afford the permanency that the law requires without disrupting the parental rights. If the Court does follow through with the termination of parental rights, we would ask the court to grant a closure visitation. [¶] I submitted the request through the clerk, and I understand that there may be some objection to [Z.H.]. But if mom could have a closure visit, we would ask for both, at least [V.H.] would be appreciated.” Counsel did not mention the sibling relationship exception.
Section 366.26 does not require the juvenile court to “give sua sponte consideration to the sibling relationship exception when no party has argued it applies. . . . And as the juvenile court did not have a sua sponte duty to consider the sibling relationship exception, [Mother’s] failure to raise the exception at the section 366.26 hearing forfeits the issue for purposes of appeal.” (In re Daisy D. (2006) 144 Cal.App.4th 287, 292.) “[A] determination concerning the sibling relationship exception raises factual questions that are unsuitable for resolution on appeal.” (Ibid.)
Even if Mother had raised the sibling relationship exception and the court had found that it did not apply, Mother has failed to carry her burden of showing that the juvenile court’s finding is not supported by substantial evidence. The sibling contact exception applies when the termination of parental rights would result in “substantial interference with a child’s sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.” (§ 366.26, subd. (c)(1)(B)(v).) “In enacting this exception, the legislature was concerned with preserving long-standing relationships between siblings which serve as anchors for dependent children whose lives are in turmoil.” (In re Erik P. (2002) 104 Cal.App.4th 395, 404.) The substantial evidence standard of review applies to the question of whether a beneficial relationship exists. (In re Bailey J., supra, 189 Cal.App.4th at p. 1314.)
The juvenile court could reasonably conclude Z.H.’s and V.H.’s limited relationship with their older half sisters did not outweigh the benefits of a stable adoptive home. V.H. was 14 months old and Z.H. was one month old when they were detained. After they were detained, other than one day, they were not placed with their half sister M.H. as she was placed with her father. Thus, at the time of the section 366.26 hearing, V.H. and Z.H. had not lived with M.H. for 17 months, nearly all of Z.H.’s life and over half of V.H.’s life. V.H. and Z.H. lived some period of time with their half sister S.H., until S.H. was moved to a guardianship placement. However, by the time of the section 366.26 hearing, V.H. and Z.H. had not been in placement with S.H. for nearly one year.
Z.H. and V.H. were very young when they were removed from Mother’s custody and lacked any real common experiences other than the supervised visits that they attended with their half sisters. While Z.H. and V.H. had been visiting with their half sisters, there is no evidence that they had a significant sibling relationship, the severance of which would be detrimental to V.H. and Z.H. At visits, there did not appear to be a lot of interaction between V.H. and Z.H. and their half sisters and there are no reports they had a close relationship or were even happy to see each other.
The case is similar to In re Daisy D., supra, 144 Cal.App.4th at p. 293, in which the court found the sibling exception inapplicable to a child who had been removed from her mother’s custody when she was only one and a half years old and had been visiting her half siblings between two and four times a month. “[A]lthough the [child] clearly enjoyed the time she spent with her half siblings, there was no evidence that the detriment she might suffer if visits ceased presented a sufficiently compelling reason to forgo the stability and permanence of adoption by caretakers to whom she was closely bonded.” (Ibid.) So too here.
Mother notes that the “[t]he prospective adoptive parents recognized [the sibling] relationship and stated an intention to continue that relationship.” Mother, however, does not refer us to any other evidence of a sibling relationship. This is insufficient to invoke the exception. “To show a substantial interference with a sibling relationship the parent must show the existence of a significant sibling relationship, the severance of which would be detrimental to the child. Many siblings have a relationship with each other, but would not suffer detriment if that relationship ended. If the relationship is not sufficiently significant to cause detriment on termination, there is no substantial interference with that relationship.” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952.) Accordingly, the juvenile court did not err in finding the sibling relationship exception did not apply.
We also reject Mother’s claim that the juvenile court erred in failing to order sibling visitation at the section 366.26 hearing. Initially, we note that Mother did not object to the court’s failure to order sibling visitation at the section 366.26 hearing. Thus, any error was waived. (In re Anthony P. (1995) 39 Cal.App.4th 635, 641-642.) In Anthony P., the court held that “[a]ppellant has waived her right to assert error as to sibling visitation on appeal by not properly raising the issue below. No objection was interposed in superior court premised upon: the alleged failure to ‘maintain[] sibling togetherness and contact’ (§ 16002, subd. (b)); the purported failure to ‘provide for ongoing and frequent interaction among siblings until family reunification is achieved’ (§ 16002, subd. (b)); or the supposed failure to state reasons for the suspension of sibling interaction. (§ 16002, subd. (c).) Hence, any objection to the absence of an order providing for sibling visitation has been waived.” (Id. at p. 641.)
In any event, we find Mother’s claim unmeritorious. Section 16002 reflects the legislative policy in favor of maintaining the continuity of the family unit and strengthening family ties by ensuring that siblings be placed together when removed from their homes. (§ 16002, subd. (a).) Thus, the agency is required to “make a diligent effort” in all out-of-home placements to maintain sibling relationships. (§ 16002, subd. (b).) In this regard, if siblings are not placed together in the same home, the social worker is required to “explain why the siblings are not placed together and what efforts he or she is making to place the siblings together or why making those efforts would be contrary to the safety and well-being of any of the siblings.” (§ 16002, subd. (b).) Further, when placement of siblings together in the same home is not possible, diligent effort is required to provide for ongoing and frequent interaction among siblings. (Ibid.)
The statute expresses a legislative goal but does not create a mandatory duty. (County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 641-642.) It simply requires “diligent efforts.” Such efforts were made in this case. The sisters were having contact. Furthermore, DPSS explored the option of placing Z.H. and V.H. in the same home as either their half sister H.E. or S.H., however, the half sibling’s respective legal guardians were unable to take Z.H. and V.H. Appropriate steps were taken to attempt to place the children together and to facilitate visitation.
The record before us demonstrates the social worker made “diligent efforts” to keep the children together and to maintain sibling visitation. The fact there were difficulties was not the fault of DPSS.
In In re Cliffton B. (2000) 81 Cal.App.4th 415, the court referred to the statutory provisions dealing with sibling contact after parental rights are terminated. (§ 16002, subd. (e).) That section only requires DPSS to take steps to facilitate ongoing sibling contact and to educate adoptive parents on the importance of such ongoing contact. (§ 16002, subd. (e).) Nothing in the statute imposes a mandatory duty on the court to order sibling visits, notwithstanding the legislative policy. Sibling relationship is unaffected by a termination of the parent/child relationship. (See In re Miguel A. (2007) 156 Cal.App.4th 389, 394.) Thus, so long as the dependency case remains open (until the adoption is finalized), minors’ counsel can seek orders for sibling visitation. Here, as noted by Mother, the prospective adoptive parents had already stated they would maintain a sibling relationship with V.H. and Z.H.’s half sisters. Mother merely speculates that the prospective adoptive parents will not be inclined to maintain sibling visits in the future.
Section 16002 is clear that sibling visitation is not mandatory after the termination of parental rights and only requires the agency to provide training and information to encourage postadoptive contact. Neither the provisions of section 16002, subdivision (e), nor section 366.29 imposes any obligation upon the juvenile court to enter orders for sibling visitation. In re Cliffton B., supra, 81 Cal.App.4th 415 is inapposite. The case does not hold that the failure to order post-termination sibling visitation is error; rather, it states that the juvenile court has discretion to make interim visitation orders but does not make it mandatory to do so or reversibly erroneous to decline. There is no evidence to suggest here that the court did not “consider” the issue. The juvenile court did not err.
C. Section 388 Petition
Mother contends the juvenile court erred in summarily denying her section 388 petition without a full evidentiary hearing. We disagree.
Under section 388, a parent may petition the juvenile court to modify its previous orders upon the grounds of new evidence or changed circumstances. (§ 388, subd. (a).) The juvenile court may summarily deny a section 388 petition if the petition fails to make a prima facie showing either (1) of a genuine change of circumstances or new evidence, or (2) that the requested change would promote the best interest of the child. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413-1414.) The person seeking modification must “make a prima facie showing to trigger the right to proceed by way of a full hearing.” (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) A hearing “is only to be held if it appears that the best interests of the child may be promoted by the proposed change of order, which necessarily contemplates that a court need not order a hearing if this element is absent from the showing made by the petition.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 807.)
“The petition [is] liberally construed in favor of its sufficiency.” (In re Daijah T. (2000) 83 Cal.App.4th 666, 672.) To be entitled to a hearing, the petitioner “need[] only . . . show ‘probable cause’; [the petitioner is] not required to establish a probability of prevailing on [the] petition.” (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432-433.) Nonetheless, if the allegations fail to show changed circumstances such that the children’s best interest will be promoted by the proposed change of order, the dependency court need not order a hearing. (In re Zachary G., supra, 77 Cal.App.4th at pp. 806-807; In re Edward H. (1996) 43 Cal.App.4th 584, 593 [“ ‘prima facie’ showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited”].) The prima facie requirement is not satisfied “unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition.” (In re Zachary G., at p. 806.) In deciding whether a section 388 petition makes the required showing, the court may consider the entire procedural and factual history of the case. (In re Justice P., supra, 123 Cal.App.4th at p. 189.) Furthermore, the petition may not be conclusory. It must bring forth specific allegations describing the evidence that constitutes the proffered new evidence or changed circumstances and the best interest of the child. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
We review the summary denial of a section 388 petition for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Angel B. (2002) 97 Cal.App.4th 454, 460.) We will not disturb the juvenile court’s decision unless the juvenile court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. (In re Angel B., at p. 460.)
The juvenile court did not abuse its discretion in denying Mother’s section 388 petition without a full evidentiary hearing. Even if Mother had established her circumstances had changed, Mother had not shown granting her services would be in the children’s best interest. Mother continued to deny her involvement in the severe physical abuse of V.H. and had a pending criminal case against her. Moreover, the children were not bonded to Mother. At the end of March 2016, it was reported that V.H. and Z.H. played throughout the visits with minimal contact or engagement from Mother. The social worker did not believe the children knew who Mother was or recognized her. Mother did not adequately engage the children at visits. V.H. would wander around the room on her own looking for something to play with and Z.H. had been left in a stroller, car seat, or on the floor during the visits. On one visit, Mother left Z.H. in her car seat for 25 minutes out of a one-hour visit. During visits with Mother about six months later, although V.H. recognized Mother and ran up to her, V.H. enjoyed anyone’s company and ran toward visitors, in general, with her arms up and open. V.H. would go with almost anyone that was willing to hold her. In contrast, Z.H. was afraid when Mother picked her up and immediately started crying at the September 2, 2016 visit. Z.H. later calmed down and let Mother sit with her about 40 minutes into the visit. Again, on September 26, 2016, Z.H. immediately started crying when approaching Mother with the social worker and pushed away from Mother. It took Z.H. about 10 minutes to settle down and engage in play in the room without crying. Although Mother interacted appropriately with the children during the visit and engaged them in play, neither child was upset or cried when the visit with Mother concluded. On the other hand, both children were happy to see and reached for the prospective adoptive mother after each visit. V.H. and Z.H. were observed to be bonded to the prospective adoptive parents and Z.H. cried when separated from the prospective adoptive mother. Moreover, the children did not cry and were not upset at the end of the visits with Mother and happily walked out with the social worker.
Based on Mother’s denial of her involvement in the severe physical abuse of V.H. and the children’s bond to the prospective adoptive parents, who provided them with stability and security, the juvenile court correctly found that granting the section 388 petition, on the eve of the section 366.26 hearing, was not in the children’s best interest. Mother did not demonstrate that granting her section 388 petition would advance the children’s need for permanency and stability. At the time the section 388 petition was heard, the children had been out of Mother’s care for almost one and a half years. This was virtually all of Z.H.’s young life and over half of V.H.’s life. It is the “ ‘intent of the Legislature, especially with regard to young children, . . . that the dependency process proceed with deliberate speed and without undue delay.’ ” (In re T.G. (2015) 242 Cal.App.4th 976, 986.) Thus, extending the dependency proceedings and offering reunification services to Mother in the hopes she could reunify with them was not in the children’s best interest. These young children, who required stability and permanency, were stable and thriving in their prospective adoptive home. It appears they recognized the prospective adoptive parents as parental figures and desired to remain with them.
Quoting In re Angel B., supra, 97 Cal.App.4th at p. 461, Mother believes that the juvenile court “ ‘must hold’ ” a hearing when “ ‘a parent makes a prima facie showing of a change of circumstance such that a proposed change in custody might be in the child’s best interest.’ ” It is true that a parent has a right to proceed by way of a full hearing on a section 388 petition if the petition establishes the threshold prima facie showing of changed circumstances and best interests. (In re Marilyn H., supra, 5 Cal.4th at p. 310.) However, Mother here failed to establish this threshold.
Mother suggests we should apply the factors developed in In re Kimberly F. (1997) 56 Cal.App.4th 519 (Kimberly F.) when evaluating the best interest prong. In that case, the appellate court set out a list of nonexhaustive factors to consider in determining the child’s best interest: the seriousness of the problem leading to dependency and the reason that problem was not overcome by the time of the final review; the strength of relative bonds between the dependent children to both parent and caretakers and the length of time a child has been in the dependency system in relationship to the parental bond; the degree to which the problem may be easily removed or ameliorated; and the degree to which it actually has been. (Id. at pp. 530-532.) These factors, however, focus primarily on the parent, and as the court in In re J.C. (2014) 226 Cal.App.4th 503 correctly observed, “the interests of the parent and the child have diverged by the point of a [section 366.26] hearing to select and implement a child’s permanent plan.” (In re J.C., at p. 527 [declining to apply Kimberly F. factors “if for no other reason than they do not take into account the Supreme Court’s analysis in [In re] Stephanie M., applicable after reunification efforts have been terminated”]; see Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254.) Our focus must be on the children’s need for permanency and stability. Z.H. and V.H. have a fundamental independent interest in belonging to a family unit, being protected from abuse and neglect, and to have a placement that is stable and permanent and allows the caretakers to make a full emotional commitment to them. (In re Stephanie M., supra, 7 Cal.4th at p. 317; In re Marilyn H., supra, 5 Cal.4th at pp. 306, 309.)
The question here, after denial of reunification services, is whether Mother showed how her proposed change would advance the children’s need for permanency and stability. (In re J.C., supra, 226 Cal.App.4th at p. 527.) It is not enough for Mother to merely assert she had completed counseling and had obtained a job and that it was in the best interest of the children because she was a changed person such that reunification would be beneficial. She must rebut a presumption that continued placement with the prospective adoptive parents was in the children’s best interest. (In re Marilyn H., supra, 5 Cal.4th at p. 310.)
We conclude on this record Mother did not establish that the children’s need for permanency and stability would be advanced by reunification efforts or by their return to her custody. As the court in In re Angel B., supra, 97 Cal.App.4th 454 stated, “stability in an existing placement is in the best interest of the child, particularly when such placement is leading to adoption by the long-term caretakers.” (Id. at p. 465.) The court did not abuse its discretion in denying Mother’s section 388 petition without a full evidentiary hearing.
IV
DISPOSITION
The order of the juvenile court terminating parental rights is vacated, and the matter is reversed and remanded to the juvenile court with directions to order compliance with the ICWA inquiry and notice provisions in compliance with ICWA and related federal and state law. Specifically, the court must order DPSS to give valid notice to the Cherokee and Blackfeet tribes. Inquiry should be made of Mother, the maternal grandparents, Father, or any other maternal and paternal family members, as to information relating to the maternal and paternal grandparents and maternal and paternal great-grandparents in relation to their names, addresses, birth dates and place, and if deceased, date and place of death.
Once the juvenile court finds that there has been substantial compliance with the notice requirements of ICWA, or if the information is not available, it shall make a finding with respect to whether the children are Indian children. If the juvenile court finds that the children are not Indian children, it shall reinstate the original order terminating parental rights. If the juvenile court finds that the children are Indian children, it shall set a new section 366.26 hearing and it shall conduct all further proceedings in compliance with ICWA and related federal and state law.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.
We concur:



RAMIREZ
P. J.



FIELDS
J.