Filed 5/10/17 In re M.B. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA


In re M.B., a Person Coming Under the Juvenile Court Law.

IMPERIAL COUNTY DEPARTMENT OF SOCIAL SERVICES,

Plaintiff and Respondent,

v.

ANGELA H. et al.,

Defendants and Appellants.
D071403


(Super. Ct. No. JJP03441)

APPEALS from orders of the Superior Court of Imperial County, William D. Quan, Judge. Affirmed in part, reversed in part with directions.
Amy Z. Tobin, under appointment by the Court of Appeal, for Defendants and Appellant Angela H.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant P.B.
Katherine Turner, County Counsel, Haislip W. Hayes II and Laura Berumen, Deputy County Counsel, for Plaintiff and Respondent.
Angela H. and P.B. appeal orders denying their petitions under Welfare and Institutions Code section 388 and terminating their parental rights in the juvenile dependency case of their minor daughter M.B. The petitions, filed several days before M.B.'s selection and implementation hearing under section 366.26, sought modification of the court's dispositional order removing M.B. from their care and denying reunification services under section 361.5, subdivision (b)(11).
Angela and P.B. contend the court abused its discretion in denying their petitions because they had not demonstrated changed circumstances sufficient to warrant modifying the dispositional order, returning M.B. to their care, and ordering family maintenance or reunification services. They also contend the court erred by not complying with the inquiry and notice provisions of the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.).
The Imperial County Department of Social Services (Department) concedes that "ICWA inquiry and notice was not sufficient to comply with ICWA requests[.]" (Some capitalization omitted.) We accept that concession. And, although the Department's brief does not mention P.B. (see fn. 2, post), we conclude the Department's efforts comply with ICWA with respect to his potential American Indian ancestry were not sufficient either. However, we conclude the court did not abuse its discretion in denying Angela's and P.B.'s petitions under section 388. We will therefore affirm the orders denying the section 388 petitions but reverse the order terminating parental rights with directions to conduct proper inquiry and notice under ICWA. Once notice has been properly effected, the court should reconsider whether ICWA applies to M.B.'s dependency case. If ICWA does not apply, the court shall reinstate the order terminating parental rights. If ICWA does apply, the court shall conduct further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
"In accord with the usual rules on appeal, we state the facts in the manner most favorable to the dependency court's order." (In re Janee W. (2006) 140 Cal.App.4th 1444, 1448, fn. 1.) Additional facts regarding ICWA compliance will be discussed in the following section.
On November 19, 2015, the Department petitioned the juvenile court under section 300, subdivision (b) on behalf of one-month-old M.B. The Department alleged that the family was homeless; that Angela and P.B. had mismanaged their limited income and were unable to provide adequate food, clothing, shelter, and medical care for M.B.; that they smoked marijuana every day and in M.B.'s presence; and that they suffered from untreated mental illnesses and disabilities. The Department concluded that M.B. had suffered or was at substantial risk of suffering serious physical harm or illness as a result of Angela and P.B.'s neglect, lack of supervision, and failure to provide regular care.
At M.B.'s detention hearing, the court refused to detain M.B. in out-of-home care. It set a jurisdiction hearing.
Angela provided notice that she "may have Indian ancestry" in a Cherokee tribe. P.B. likewise provided notice that he "may have Indian ancestry" in Cherokee and "Blackfoot" tribes. The Department later provided ICWA notice to the Blackfeet Nation, the Cherokee Nation, the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee, the Secretary of the Interior, and the Sacramento Area Director for the Bureau of Indian Affairs. Based on the information provided, the noticed tribes replied that M.B. was not an Indian child within the meaning of ICWA.
In advance of M.B.'s jurisdiction hearing, the Department submitted drug testing results based on a hair sample from M.B. The hair sample tested positive for marijuana, methamphetamine, and amphetamines. The Department also reported that Angela and P.B. had both tested positive for marijuana (based on urinalysis) and marijuana, methamphetamine, and amphetamines (based on hair sample testing). Angela and P.B. denied using any illicit drugs and refused to participate in voluntary services.
On March 14, 2016, the Department filed an amended petition. The amended petition alleged the same categories of harm and risk of harm to M.B. It added details regarding Angela, P.B., and M.B.'s repeated positive drug tests; Angela's admission that she smokes marijuana regularly and breastfeeds M.B.; P.B.'s admission that he smokes marijuana and attempts to parent M.B. directly thereafter; and their admissions that they continue to be homeless and do not have money for shelter or diapers. The Department took M.B. into protective custody.
At M.B.'s second detention hearing, the court found the Department had made a prima facie showing under section 300, subdivision (b), and ordered that M.B. be detained in out-of-home care. It again set a jurisdiction hearing. At that hearing, the court sustained the allegations of the petition and set a disposition hearing. M.B. remained in out-of-home care.
In advance of M.B.'s disposition hearing, the Department recommended that the court remove M.B. from Angela and P.B.'s custody, decline to order reunification services, and set a selection and implementation hearing under section 366.26. The Department continued to believe the parents' illicit drug use, lack of adequate shelter and financial support, and refusal to engage in services put M.B. at substantial risk of harm in their care. The parents' issues with substance abuse were longstanding. Angela had been using marijuana since she was 13 years old; P.B. had been using marijuana since he was eight. The Department was particularly concerned that the parents smoked marijuana and then breastfed or otherwise parented M.B., placing her in direct risk. M.B.'s repeated positive test results for marijuana, methamphetamine, and amphetamines showed the effects of her parents' substance abuse. The Department also noted that, in the two months since M.B. was taken into protective custody, Angela and P.B. had a single one-hour visit with M.B. and had not inquired about any further visits.
Angela and P.B. had prior juvenile dependency cases in Minnesota. Angela's infant son, M.B.'s half-sibling, was removed from her custody in 2013 based on her drug use and inability to provide shelter or regular care. Angela did not complete court-ordered reunification services and consented to termination of her parental rights. P.B.'s infant son, also M.B.'s half-sibling, was removed from his custody in 2011 based on allegations of neglect and physical abuse from the child's mother. P.B. did not complete court-ordered reunification services, and his parental rights were terminated. Based on this history, the Department believed denial of reunification services under section 361.5, subdivisions (b)(11) and (13) was appropriate.
In an addendum report, the Department stated that Angela and P.B. had recently tested positive again for marijuana. The Agency reported that they continued to refuse most services, including parenting classes and drug treatment. They had, however, engaged in regular visitation with M.B. Although most visits were positive, the parents' attention was sometimes directed to obtaining cash aid or voicing complaints about the Department.
At M.B.'s disposition hearing, the court admitted the Department's reports into evidence and heard testimony from a Department social worker, Angela, and P.B. The court found by clear and convincing evidence that it would be detrimental to place M.B. with her parents, that reasonable efforts were made to prevent removal, and that it would be in M.B.'s best interests to set a selection and implementation hearing under section 366.26. The court removed M.B. from her parents' custody; ordered that reunification services not be provided to Angela and P.B. under section 361.5, subdivision (b)(11); and scheduled the selection and implementation hearing.
The Department recommended terminating Angela and P.B.'s parental rights and implementing a permanent plan of adoption. The Department reported that M.B. was "very well adjusted" to his foster family, where he had been placed for approximately seven months. M.B. had a bond with his foster parents and their children. The foster parents wanted to adopt M.B. and appeared able to do so. The Department noted that Angela and P.B. did not visit M.B. in the two months following the disposition hearing. They visited M.B. twice thereafter.
Five days before the selection and implementation hearing, Angela filed a petition to modify the court's dispositional order under section 388. Angela's petition stated that she had been able to find stable housing, entered treatment for substance abuse and mental health issues, and enrolled in parenting classes. She denied any drug abuse and claimed to have tested negative for illicit substances. The petition requested that M.B. be returned to her care with family maintenance services.
Two days before the hearing, P.B. filed a similar petition under section 388. P.B.'s petition stated that he and Angela had an apartment and could provide M.B. with a stable home. It asserted that P.B. had begun parenting classes and was undergoing successful treatment for his mental health issues.
The Department filed oppositions to both petitions. The Department argued that Angela and P.B. had shown neither changed circumstances nor that modification would be in M.B.'s best interests. The Department pointed out that neither parent had presented evidence of their progress in the various classes in which they claimed to be enrolled. It also pointed out that P.B.'s petition did not mention drug treatment. Given their history, the Department believed the parents had not shown their circumstances had meaningfully changed.
The court continued the selection and implementation hearing. It set a combined hearing to consider Angela and P.B.'s petitions and, if necessary, M.B.'s permanent plan. In advance of that hearing, the Department reported that Angela and P.B. had secured an apartment two months prior and attended parenting classes for approximately the past month. A coordinator for the parenting classes reported that Angela and P.B. had only attended two of nine classes during that time. Moreover, the parenting class was not recognized by the Department as an evidence-based program. The Department concluded that the parents' limited participation was insufficient to demonstrate progress. It recommended that the court deny the petitions.
At the hearing, the court admitted the petitions and the Department's responses into evidence. The court heard testimony from Jessica Solorio, the founder of a local charity; Angela; and P.B. Solorio testified that she helped Angela and P.B. find an apartment, keep track of finances, enroll in parenting classes, and seek mental and behavioral health treatment. She believed Angela and P.B. had made "[d]rastic" changes in their lives and that M.B. could safely be placed with Angela. On cross-examination, Solorio admitted she did not know the parents' drug history and had only limited knowledge of their prior involvement in dependency cases.
Angela testified that she had three behavioral health appointments, with the last being individual therapy. When asked whether she has participated in any drug counseling, she said that a man checked on her twice monthly. She said she had not smoked marijuana for nearly a year, and she denied ever using methamphetamines. She was pregnant again.
P.B. testified that M.B. recognized him and Angela at their last visit and ran to them. He had attended four parenting classes and was taking medication through behavioral health services. He said he was willing to attend a drug program and undergo drug testing to reunify with M.B.
Following argument by counsel, the court denied Angela and P.B.'s petitions. It did not believe Angela and P.B.'s efforts were sufficient to show changed circumstances given their history of substance abuse and other issues. The court proceeded to the selection and implementation hearing. After hearing further evidence and argument, the court found by clear and convincing evidence that M.B. was likely to be adopted and rejected Angela and P.B.'s contention that an exception to adoption applied. The court terminated Angela and P.B.'s parental rights to M.B. and selected a permanent plan of adoption. Angela and P.B. appeal.
DISCUSSION
I
Section 388 provides in relevant part as follows: "Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court." (§ 388, subd. (a)(1).) "A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
"A ruling on a section 388 petition is 'committed to the sound discretion of the juvenile court, and the trial court's ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. [Citations.]' [Citation.] Thus, we may not reverse unless the juvenile court exceeded the bounds of reason, and we have no authority to substitute our decision for that of the lower court where two or more inferences can reasonably be deduced from the facts." (In re D.B. (2013) 217 Cal.App.4th 1080, 1088-1089.) "It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion . . . ." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 522.)
Angela and P.B. argue that the juvenile court abused its discretion by denying their petitions on the ground that they had not shown changed circumstances sufficient to modify the dispositional order. They point to their new apartment, their participation in parenting classes, and their enrollment in mental and behavioral health services as sufficiently changed circumstances. They contend the changes in their lives have been "[d]rastic," as Solorio described.
We conclude Angela and P.B. have not shown any abuse of discretion. Although they had begun to make positive choices to improve their lives, the improvements they identified occurred only in the last two months of M.B.'s approximately twelve-month long dependency case. The juvenile court could reasonably find these improvements were too recent to evaluate their significance and too meager to effect genuine change in light of the entire record. (See In re Aaliyah R. (2006) 136 Cal.App.4th 437, 447 ["[E]ven though mother indicated an awareness of the nature of the problems and took responsibility for them, she had made little actual progress in addressing the causes of [the minor's] dependency."].) For example, Angela and P.B. had attended only a limited number of parenting classes and mental and behavioral health appointments, and it was unclear whether the parenting classes would even be beneficial.
The juvenile court could also reasonably find that Angela and P.B. failed to show meaningful progress in one of the primary areas of concern that led to M.B.'s dependency case: substance abuse. Angela continued to misstate the extent of her abuse, claiming that she had not smoked marijuana in "nearly a year" whereas Agency records showed that she tested positive for marijuana (by urinalysis) only four months before. She submitted results of a single negative drug test, but those results explicitly stated they were not to be used for legal purposes. Her drug treatment efforts consisted of a man who checks on her twice per month. P.B. merely stated his willingness to participate in drug treatment and drug testing in order to get custody of M.B. again. Given the nature and extent of the parent's substance abuse problem, which extended back to the parents' childhoods, the juvenile court could find these efforts insufficient to show changed circumstances and grant their petitions under section 388.
This court's opinion in In re Mary G. (2007) 151 Cal.App.4th 184 (Mary G.) is instructive. In that case, a parent with longstanding substance abuse problems alleged changed circumstances based on approximately three months of sobriety, during which she completed a detoxification program, was in drug treatment, and attended Narcotics Anonymous meetings. (Id. at p. 206.) The parent had also recently enrolled in behavioral and mental health services. (Ibid.) This court affirmed the juvenile court's determination that the parent had not stated a prima facie case of changed circumstances. (Ibid.) Although the parent's underlying substance abuse problems in Mary G. were arguably more severe than the parents here, that parent had also undergone more extensive drug treatment. Similarly, in In re Jeremy S. (2001) 89 Cal.App.4th 514 (Jeremy S.), the court affirmed the juvenile court's finding that a parent with longstanding substance abuse issues had not stated a prima facie case of changed circumstances where the parent was enrolled only in twice-monthly group therapy sessions and claimed without evidence to be sober. (Id. at p. 521.) The court explained that "there was no showing [that the parent] had made a serious commitment to address his long-standing substance abuse problem . . . ." (Ibid.) Mary G. and Jeremy S. support our conclusion that the juvenile court's order should be affirmed.
P.B. relies on In re Aljamie D. (2000) 84 Cal.App.4th 424 (Aljamie D.), but that case is distinguishable. The court in Aljamie D. reviewed the juvenile court's denial of a petition under section 388 for failure to state a prima facie case. (Id. at p. 432.) The petition alleged as follows: "She had completed numerous educational programs and parenting classes, and had tested clean in weekly random drug tests for over two years. She had visited consistently with the children and continued to have a strongly bonded relationship with them." (Ibid.) Aljamie D. held that the juvenile court abused its discretion by denying the motion without a hearing. (Ibid.) The circumstances here are far different. Angela and P.B. had not completed any educational programs or parenting classes, and they had no documented period of sobriety, let alone a years-long period as in Aljamie D. Moreover, the juvenile court here held an evidentiary hearing on the petitions, so the requirements for stating a prima facie case discussed in Aljamie D. are inapposite. Aljamie D. does not affect our conclusion.
Because we hold the trial court did not abuse its discretion by denying the petitions on the ground that Angela and P.B. had not shown the first required element, changed circumstances, we need not consider their arguments regarding the next element, M.B.'s best interests. (See In re Marcelo B. (2012) 209 Cal.App.4th 635, 641-642; Mary G., supra, 151 Cal.App.4th at pp. 205-206.) The orders will be affirmed.
II
Angela and P.B. contend the Department's efforts to comply with ICWA's inquiry and notice requirements were inadequate. In all dependency cases, the Department and the juvenile court "have an affirmative and continuing duty to inquire" whether a minor subject to a petition under section 300 is or may be an Indian child within the meaning of ICWA. (§ 224.3, subd. (a).) If, based on this initial inquiry, the Department or the juvenile court knows or has reason to know that the minor is an Indian child, the Department must make a further inquiry "regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members . . . contacting the Bureau of Indian Affairs and the State Department of Social Services for assistance in identifying the names and contact information of the tribes in which the child may be a member or eligible for membership in and contacting the tribes and any other person that reasonably can be expected to have information regarding the child's membership status or eligibility." (§ 224.3, subd. (c).) The object of this inquiry is, among other things, to collect identifying information regarding the minor's ancestors, including "[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known." (§ 224.2, subd. (a)(5)(C).) Following this inquiry, ICWA-compliant notice of the juvenile dependency proceedings involving the minor must be sent to various parties, including any potentially affected Indian tribes. (§§ 224.2, subd. (a)(5), 224.3, subd. (d).) Under California law, this notice must include the identifying information described above. (§ 224.2, subd. (a)(5).) Under federal law, the notice must include "[a]ll names known (including maiden, married, and former names or aliases) of the parents, the parents' birthdates and birthplaces, and Tribal enrollment numbers if known" as well as "[i]f known, the names, birthdates, birthplaces, and Tribal enrollment information of other direct lineal ancestors of the child, such as grandparents." (25 C.F.R. § 23.111(d)(2)-(3) (2017); see id., § 23.111(a) (2017).)
The parties appear to agree that Angela and P.B. provided sufficient information for the Department to have reason to know M.B. is an Indian child, thereby triggering the heightened inquiry and notice requirements. (See In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165.) The parties also agree the Department made some effort to comply with these requirements, including by sending notices to the relevant Indian tribes. The issue here is whether the Department's efforts were sufficient. We review the trial court's findings regarding the adequacy of ICWA inquiry and notice for substantial evidence. (See In re J.T. (2007) 154 Cal.App.4th 986, 991.)
As noted, the Department concedes "ICWA inquiry and notice was not sufficient to comply with ICWA requests[.]" (Some capitalization omitted.) For reasons we will explain, we accept that concession. We further conclude that the Department's efforts comply with ICWA with respect to P.B.'s potential Indian ancestry were not sufficient either.
Angela and P.B. argue that the Department did not comply with the inquiry requirements because it did not include certain essential identifying information regarding M.B.'s ancestors in its ICWA notices, despite speaking to individuals knowledgeable about that information. For example, the Department spoke with M.B.'s paternal grandmother about placement, but there is no evidence the Department asked her about her birthdate, birthplace, or other required information that was omitted from the Department's ICWA notices. Similarly, although the Department contacted M.B.'s maternal grandmother and obtained some identifying information, there is no evidence the Department interviewed the maternal grandmother to obtain the information required by ICWA.
The Department responds that it inquired into M.B.'s Indian status by reviewing the parents' form notices regarding their Indian ancestry (ICWA-20) submitted at M.B.'s first detention hearing. It also acknowledges that it obtained some information from M.B.'s maternal grandmother that was not included in its ICWA notices.
We conclude, based on the current record, that the evidence does not support the finding that the Department's inquiry was adequate. (See In re Breanna S. (2017) 8 Cal.App.5th 636, 652 (Breanna S.); In re Michael V. (2016) 3 Cal.App.5th 225, 235-236.) The Department had an affirmative obligation to interview the parents and extended family members to discover the required identifying information. (§ 224.3, subd. (c).) The Department did not do so. We need not consider the consequences of this noncompliance in isolation, however, because as we will explain the Department's separate failure to properly provide ICWA notice requires reversal independent of the Department's failure to properly inquire under ICWA.
As the Department acknowledges, at least in part, its ICWA notices were incomplete. The Department's ICWA notices did not include any information regarding M.B.'s maternal grandparents or maternal great-grandparents. Nor did they include any information regarding M.B.'s paternal grandfather or paternal great-grandparents. For M.B.'s paternal grandmother, the Department's notice included her name and current address, but no other information (e.g., her former address and birth date and place). California and federal law required the Department to include identifying information regarding these individuals if known. (§ 224.2, subd. (a)(5)(C); 25 C.F.R.
§ 23.111(d)(3) (2017).)
The Department admits it had identifying information regarding M.B.'s maternal grandmother and should have updated its ICWA notices to include it. It concedes that the orders terminating parental rights should be reversed to allow for proper notice. (See Breanna S., supra, 8 Cal.App.5th at p. 654.) Although the Department does not address P.B.'s contentions (see fn. 2, ante), as we have noted the Department was in contact with M.B.'s paternal grandmother and could have obtained the missing information known to her.
We will therefore reverse the order terminating parental rights and remand the matter for further inquiry into the parents' claims of Indian ancestry, including by interviewing extended family members. (See Breanna S., supra, 8 Cal.App.5th at
p. 655.) After a reasonable inquiry has been completed, the juvenile court shall require new ICWA notices be sent to parties required to receive such notices under state and federal law. (Ibid.) Once notice has been properly effected, the court should reconsider whether ICWA applies to this dependency case.
 
DISPOSITION
The orders denying Angela and P.B.'s petitions under section 388 are affirmed. The order terminating parental rights is reversed. After completing reasonable inquiry and notice required under ICWA, the court should reconsider whether ICWA applies to this dependency case. If ICWA does not apply, the court shall reinstate the order terminating parental rights. If ICWA does apply, the court shall conduct further proceedings consistent with this opinion.

O'ROURKE, J.

WE CONCUR:




McCONNELL, P. J.




DATO, J.