In re James V.

Filed 2/13/07  In re James V. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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     Michael V. (appellant), the father of James V. (the minor), appeals from an order of the juvenile court terminating his parental rights.  (Welf. & Inst. Code, §§ 366.26, 395; further undesignated statutory references are to the Welfare and Institutions Code.)  Appellant contends the juvenile court abused its discretion in denying his petition for modification (§ 388).  Appellant also claims the court and Department of Health and Human Services (DHHS) violated notice requirements of the Indian Child Welfare Act of 1978 (ICWA).  (25 U.S.C. § 1901 et seq.)  DHHS concedes ICWA notice requirements were not met.  We reverse conditionally and remand for proper notice only. 

FACTUAL AND PROCEDURAL BACKGROUND

     On June 22, 2004, DHHS filed an original juvenile dependency petition pursuant to section 300 on behalf of the seven-month-old minor.  That petition alleged in part that appellant's substance abuse placed the minor at a substantial risk of suffering serious physical harm.  The juvenile court sustained the petition, adjudged the minor a dependent child, and ordered DHHS to provide reunification services to appellant. 

     The minor's mother reported to DHHS that she might have Cherokee Indian heritage.  Thereafter, DHHS sent notices of the proceedings to Cherokee tribes.  However, although DHHS knew that the mother's maternal grandmother allegedly was the source of the mother's claimed Cherokee heritage, DHHS omitted the maternal grandmother's name from the notices it sent to the tribes. 

     Appellant and the minor visited each other regularly, and those visits went well.  The minor and appellant formed a strong bond.  DHHS recommended unsupervised visits.  Thereafter, the juvenile court ordered the minor placed with appellant under DHHS supervision.  However, less than two months later DHHS removed the minor from appellant's custody, alleging appellant had failed to comply with his service plan requirements. 

     On July 17, 2006, appellant filed a petition to modify previous juvenile court orders ending his reunification services and continuing the minor's status as a dependent child of the court.  In support of that petition, appellant alleged he was participating in services, had secured housing and obtained employment, and did not intend to resume a relationship with the minor's mother.  Appellant also alleged modification was in the best interests of the minor because the two shared a bond.  Appellant attached various documents to the petition supporting his claims. 

     At an evidentiary hearing on the petition for modification, appellant testified that he wanted custody of the minor.  Appellant understood that he could not permit any contact between the minor and the minor's mother, who had not participated in services or shown an interest in visiting the minor.  Appellant also told the juvenile court that he was continuing to participate in various programs. 

     A bonding assessment had found that, although the minor continued to demonstrate â€