In re A.G. CA4/2

Filed 1/31/14 In re A.G. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 A.G. et al., Persons Coming Under the
Juvenile Court Law.

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E059089

Plaintiff and Respondent, (Super.Ct.Nos. J234539,
J234540 & J234541)
v.
OPINION
J.G.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Cheryl S. Kersey,

Judge. Affirmed.

Siobhan M. Bishop, under appointment by the Court of Appeal, for Defendant and

Respondent.

Jean-Rene Basle, County Counsel, and Jamila Bayati, Deputy County Counsel, for

Plaintiff and Respondent.

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 I

INTRODUCTION

Mother appeals the juvenile court’s order terminating parental rights to her son,

T.G. (almost nine years old), and daughters, S.G. (eight years old) and A.G. (six years

old). She also challenges the court’s order denying her Welfare & Institutions Code1

section 388 petition to change the court’s order terminating reunification services and

setting a section 366.26 hearing.

Mother contends there was insufficient evidence to support findings that the

children were adoptable and that CFS had complied with heightened ICWA2

requirements. Mother also argues the juvenile court erred in summarily denying her

section 388 petition and in not applying the beneficial parent relationship exception to

termination of her parental rights. We reject mother’s contentions and affirm the

judgment.

II

FACTS AND PROCEDURAL BACKGROUND

On August 17, 2010, San Bernardino County Children and Family Services (CFS)

received an anonymous referral for sexual abuse and general neglect regarding A.G.,

1 Unless otherwise noted, all statutory references are to the Welfare & Institutions
Code.

2 Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.).

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S.G., and T.G. (the children). At that time, the children were three, four, and five years

old, respectively. They were currently living with mother and their father (father). The

referral provided CFS with a cell phone photograph, taken on father’s phone, of a child

sleeping with her face next to a penis (the cell phone incident).

During CFS’s investigation of the cell phone incident, mother stated during an

interview that her three older children, who were not father’s children (the older

children), had all been sexually molested by father’s sons, Z.G. and An.G. As a result,

the three older children went to live with their father out of state. At the time of the cell

phone incident, the older children were visiting mother and had been living with their

father for about five years. Z.G., who was 15 years old, was also visiting but was staying

nearby with his brother, An.G., who was 18 years old. Mother identified the child in the

cell phone photograph as one of her older children.

Father stated during his interview that when he found out Z.G. had abused

mother’s older children, he “whooped his ass” and put him in counseling until Z.G. went

to live with his mother out of state. Mother initially did not want Z.G. around her

children but ultimately allowed him to visit. The children reportedly continued to have

regular contact with Z.G.

Police officer Whitecross, who investigated the cell phone incident, reported that

the family’s home was filthy and uninhabitable. There was very little food in the house.

The children were dirty and unkempt. T.G. had chopped off S.G.’s hair while it was in a

pony tail and T.G.’s teeth were rotted, black and broken. T.G. had not been registered for

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school and A.G.’s immunizations were not up to date. Mother suspected T.G. might be

bipolar because of his aggressive behavior and mood swings.

Mother stated during her interview that she was diagnosed with bipolar disorder

when she was 14 years old, was currently depressed, and was not taking any medication.

Father had been an alcoholic and used drugs many years ago, but mother believed he no

longer used drugs, other than occasionally using marijuana. Father was recently laid off

from his job he had held for 13 years. Mother and father had previously separated

because they were continually fighting, but had recently reunited. S.G., T.G., and

mother’s two older daughters, El.W. and M.W., said that father hit mother, but mother

denied it.

On August 24, 2010, at 2:00 a.m., CFS removed the children from mother and

father’s care and placed them in foster care. CFS found Z.G. was in the home, and T.G.

and A.G. were still awake and filthy. CFS filed juvenile dependency petitions, alleging

the children (A.G., S.G., and T.G.) came within section 300, subdivisions (b) (failure to

protect), (d) (sexual abuse), and (j) (abuse of sibling). CFS alleged that mother and father

(parents) failed to provide the children with adequate medical care, housing, food, and

clothing; parents had substance abuse problems and engaged in domestic violence;

mother suffered from bipolar disorder; and parents allowed known sexual abuse

perpetrators in the family home, and failed to protect S.G. from being sexually molested

by mother’s older child, M.W.

At the detention hearing, the juvenile court ordered the children detained in foster

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care, ordered parents to submit to drug testing, and ordered CPS to provide parents with

reunification services and supervised visitation a minimum of once a week, for one hour.

Parents indicated they might have Cherokee Indian ancestry.

Jurisdiction/Disposition Hearing

During an interview on August 27, 2010, mother’s older son, Et.W., and daughter,

El.W., told the social worker that mother and father smoked “white powdery stuff” in a

glass pipe all the time, and others would join them. The two children also said there were

lots of spiders everywhere in their home and they had to get most of their clothes and

food out of the trash. There was never any food, hot water, toothpaste, or toilet paper in

the house. T.G. ran around the house with knives, stabbing the other children. Mother

did nothing to stop him. El.W. and Et.W. showed the social worker many of their scars

from being cut. T.G. also cut off S.G. and A.G.’s hair with a razor blade while S.G. and

A.G. were sleeping. S.G. had head lice.

CFS’s jurisdiction/disposition report filed on September 15, 2010, stated that

mother denied domestic violence with father, but the children confirmed it had occurred.

Mother’s older children reported that mother and father were heavy methamphetamine

smokers, which parents denied. S.G. and A.G. reported that T.G. had punched, hit,

stabbed and pushed them. T.G had tried to cut S.G.’s throat with a knife. According to

the children, parents forced T.G. to watch horror movies and told him to act like the

people in the movies. The children said parents used corporal punishment, including

spanking them with their hands and a belt, and threw them into their rooms or onto the

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couch. Parents denied this. Father said Z.G. was staying with parents because Z.G. had a

fight with his brother, An.G., and they could not put him out on the street. The social

worker reported that, although parents had cleaned their home, the underlying problems

of substance abuse, interfamilial sexual abuse, domestic violence, and poor parenting

skills needed to be addressed before the children could return to parents’ care.

At the jurisdiction/disposition hearing in September 2010, the court set mediation,

a pretrial settlement conference, and trial. Parents contested the need for participating in

a domestic violence program and substance abuse treatment. The court set a contested

jurisdiction/disposition hearing. Parents reportedly avoided drug testing and took little

responsibility for their children’s removal.

At the contested jurisdiction/disposition hearing in November 2010, the court

found most of the petition allegations true. The court ordered the children removed from

parental custody, authorized weekly supervised visitation and ordered reunification

services for parents. The court also found that the children came within ICWA, that CFS

had initiated compliance with ICWA notice requirements, and that T.G. was suffering

from severe emotional damage, reflected by his aggressive behavior toward himself and

others. The court authorized CFS to have T.G. referred for therapy and evaluated by

SART (Sexual Assault Response Team).

Six- and Twelve-Month Review Hearing

On November 29, 2010, the Cherokee Nation notified CFS that the children were

eligible for enrollment and affiliation with the Cherokee Nation but the Cherokee Nation

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could not intervene in the dependency case until the children became members of the

Cherokee Nation. At a nonappearance hearing in December 2010, the juvenile court

found that notice was provided as required under ICWA.

CFS reported in its six-month status review report, filed in May 2011, that mother

had not used referrals provided for outpatient drug treatment services or classes on

parenting, domestic violence or sexual abuse. Mother, however, visited the children

weekly and the visits went well. Shortly before the May 2011, six-month hearing,

mother started reunification services. She completed an online parenting class, which

was not approved by CFS, and an anger management class. At the six-month hearing, the

court ordered CFS to continue providing mother with reunification services and

authorized liberalized visitation for mother.

CFS reported in its 12-month status review report, filed in November 2011, that

mother had not fully complied with her case plan and had not attended random drug

testing. Mother had been residing in various homes with friends and at a homeless

shelter. Mother continued regularly to visit the children. At the 12-month review hearing

in November 2011, the court found that CFS had provided reasonable services and

ordered continued services.

Eighteen-Month Review Hearing

CFS recommended in its 18-month status review report, filed in February 2012,

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that the court terminate reunification services and set a section 366.26 hearing. CFS

reported that mother was admitted to the MFI3 Recovery Center (MFI) in December

2011, for substance abuse and other behavioral issues. She was scheduled to complete

the program in March 2012. Parents were residing with father’s brother, whose home

was unsuitable for the children because relatives who were on parole lived there. Father

had three warrants for his arrest, including a warrant issued in December 2011, for

driving without a license, concealed firearms, and failure to appear. Neither parent had

enrolled in sexual abuse counseling. Mother continued weekly, supervised visits with the

children. The children were doing well in their foster home and the caretaker was willing

to adopt the children.

Mother completed in January and February 2012, a parenting education course and

aftercare treatment at MFI. Mother’s MFI counselor reported in January 2012 that

mother was making good progress. However, in February 2012, mother failed to appear

in criminal court for a probation revocation hearing, resulting in the court issuing an

arrest warrant.

At the 18-month review hearing on March 27, 2012, mother’s attorney reported

that since the last hearing, mother had participated in and completed a drug treatment

program, finished a CFS approved parenting class, continued to visit the children, was

enrolled in college, with perfect attendance and close to a 4.0 college grade point

3 My Family, Inc.

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average, and had a job working for the college. However, parents continued to live with

father’s brother. Therefore parents’ home was unsuitable for the children. Mother

reported she had secured an apartment but could not move in until the first of April.

Mother’s attorney requested the court extend reunification services based on a finding of

exceptional circumstances, because mother had made a lot of progress during the past

three months.

CFS’s attorney argued that mother’s progress in reunifying was very recent. She

had a long, serious history of substance abuse and had not been free from substance abuse

for very long. Mother had not participated in sexual abuse counselling and did not have

suitable housing for the children. In addition, parents did not provide evidence that they

entered into a rental agreement with a specific landlord. They provided only an

agreement with a rental service agency, which searches for homes for parents by sending

their information to landlords. Mother’s attorney provided the court with the address of

an apartment mother intended to rent.

The juvenile court found that there were not exceptional circumstances. Parents

had made progress in the last couple months but that was not enough to extend

reunification services. They still needed to complete counselling and, even assuming

parents moved into an apartment the first of the month, there was no evidence it was

appropriate housing. In addition, parents had only recently completed their outpatient

drug treatment program and the court did not have sufficient test results for parents. The

court found that parents had been provided with adequate reunification services and

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failed to complete their court-ordered case plan. The court terminated services, set a

section 366.26 hearing, and ordered supervised visitation continue once a week, for one

hour, with authorization for CFS to liberalize frequency and duration of visitation. The

court also authorized unsupervised visits as appropriate.

Section 388 Petition and Section 366.26 Hearing

CFS reported in its section 366.26 hearing report, filed in July 2012, that T.G.,

who was entering second grade, had difficulty listening, was aggressive with his siblings

and others, and called people bad names. S.G., who was entering first grade, was doing

well academically and had no behavioral problems at school but exhibited anxiety,

including twisting and ripping paper into small pieces, and pulling apart toys. A.G. was

entering kindergarten. She was doing well in Head Start and had no noted behavioral

problems at school. The children appeared healthy and did not exhibit problems sleeping

or eating. They were meeting their developmental milestones. CFS referred the children

to therapy to address behavioral issues and ease the transition to adoption.

The social worker reported that mother “was not real interactive” with the

children. During a visit in April 2012, the children frequently hit each other and threw

toys. Mother did not attempt to stop them or attempt to correct their inappropriate

behaviors. The children reportedly were not upset when visits were cancelled. The CFS

social worker concluded that, although the children had mild emotional/behavioral issues,

they were adoptable and finding an adoptive home for them was likely.

CFS further reported that in July 2012, the children were enrolled with the

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Cherokee Nation Tribe. As a consequence, the section 366.26 hearing was continued to

October 2012 to allow the tribe to intervene and identify a concurrent planning home for

the children. In September 2012, the Cherokee Nation intervened in the case, after

determining the children were “Indian” children under ICWA. Cherokee Nation Tribe

Social Worker, Amanda Neugin, attended the subsequent hearings by telephonic

appearance.

On February 1, 2013, T.G. was moved to a respite care home due to his behavioral

issues. He was hurting himself and his siblings, was suspended from school, and was out

of control during a visit with mother. After T.G. was placed in the respite home, which

provided T.G. with a strong father figure, T.G.’s tantrums improved but he continued to

be disrespectful to women. S.G. and A.G. said they enjoyed seeing T.G. but felt safer

when he was gone. T.G.’s respite home became his placement. T.G.’s new foster mother

reported that T.G. was sexually acting out on a three-year-old foster child in the home.

CFS reported in an addendum report filed on May 7, 2013, that the tribe had

located a Cherokee adoptive home for the children. The CFS social worker concluded

that the children were adoptable since they were healthy, attractive, and intelligent, and a

family was willing to adopt them. T.G. exhibited behavioral issues but his behavior had

greatly improved recently. S.G. and A.G. had minimal issues. The Cherokee Nation

conducted an adoption home study of a prospective adoptive family’s home and approved

the home. CFS found the study suitable and recommended the court terminate parental

rights and permit the prospective Indian family to adopt the children.

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 At the contested section 366.26 hearing on May 7, 2013, the Cherokee Nation

submitted a declaration of Indian expert witness, in which Amanda Neugin stated that

CFS had complied with ICWA during the past 32 months. Parents had been offered

reunification services since 2010. Parents failed to comply with their case plans, did not

maintain appropriate housing for placement of the children in their care, and did not

address their outstanding warrants. Therefore services were terminated. Neugin

concluded in her declaration that CFS provided parents with reasonable services and

made active efforts to provide remedial services to prevent the breakup of the family.

Those services were unsuccessful. Neugin further concluded custody by parents would

likely result in serious emotional or physical damage to the children. The Cherokee

Nation had found a Cherokee adoption home for the children and was working on placing

the children in the home as soon as possible. The Cherokee Nation recommended

terminating parental rights.

On May 7, 2013, CFS social worker Mary Charrey filed a statement of additional

information, also recommending the court terminate parental rights and proceed with

adoption by the Cherokee prospective adoptive family, which wished to proceed with

adoption. Charrey concluded the children were adoptable. S.G. and A.G. had resided

with their current foster family since August 24, 2010, and T.G. had resided in his current

foster home since February 25, 2013. The children were confused and stressed by the

prospect of moving to a new adoptive home. Charrey would assist the children in

transitioning to their new home.

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 The section 366.26 hearing on May 7, 2013, was continued to the following day,

to allow Neugin to provide testimony by Face Time. Mother’s attorney informed the

court that mother intended to file a section 388 petition. The court responded that

mother’s section 388 petition was not timely. Nevertheless, on May 7, 2013, mother filed

a section 388 petition, requesting modification of the order terminating reunification

services and requesting return of the children to her or, alternatively, reinstatement of

reunification services and liberalized visitation.

On May 8, 2013, CFS social worker, Sandy Parker, filed an additional information

report, responding to mother’s section 388 petition. Parker stated that parents had

remained inconsistent in their treatment and goals. They were frequently transient and

did not complete their programs until February 2012, a month before termination of

reunification services. They still had not obtained suitable housing for the children.

After services were terminated in March 2012, mother continued her schooling and

worked at the college but did not provide CFS with a residence address. In December

2012, CFS discovered mother was again living in an uninhabitable home, in squalor,

without electricity, gas or water. Mother had continued to visit the children but her

interaction with them had been “somewhat emotionless” and the parents often had little

control over the children. Father’s visitation with the children ended after CFS received a

referral in September 2013, alleging he sexually abused the children, and the sexual

abuse allegations were substantiated.

CFS reported that mother had been visiting the children with a man who had a

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long criminal record, admitted to being a gang member, and had an outstanding warrant.

Mother also had not attempted to clear an outstanding $100,000 warrant for larceny,

which had been active since December 2011.

At the contested section 366.26 hearing on May 8, 2013, the court summarily

denied mother’s section 388 petition, without a hearing, concluding there was no

evidence of any change of circumstances. The court further conducted the contested

section 366.26 hearing. Indian expert witness, Amanda Neugin, testified that she

believed the children were adoptable and she was ready to place the children for adoption

with an Indian family. Neugin further testified that CFS had made active efforts in

compliance with ICWA and that returning the children would likely result in serious

emotional or physical harm.

Mother testified she had visited the children every Friday, initially for one hour

and then later on for two hours. She was currently visiting the children once a week but

recently had missed a couple visits. Mother stated that the children showed her physical

affection by running and jumping on her. When she picked them up, they would tell her

they loved her and missed her, and they wanted to know when they were returning home

with her. The children called her “mommy” and T.G. called her every night before

bedtime and told her he prayed they would be together again. Mother testified that “Our

visits have been perfect,” although she acknowledged that, during the visits, the children

hit each other and T.G. threw toys across the room because he was mad. Mother claimed

she did not punish the children because the foster parent told her not to. One time T.G.

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said he wanted to die and bit chunks out of his shirt because it had been awhile since his

dad had visited him. Mother acknowledged that she was engaged to the man who had

accompanied her to visits. When asked if she knew her companion was a gang member,

mother said he probably had been but was not currently active in a gang. When mother

was told she had an outstanding warrant against her, she said she would take care of it the

following morning.

After hearing testimony and argument, the juvenile court ruled the beneficial

parental relationship exception to adoption did not apply because “visitation has not

escalated or improved to an actual bond with the children.” Although the children

enjoyed seeing her, as a friendly visitor, mother did not hold a parental role. The court

further found the children would be adopted and that returning the children to parents

likely would result in serious harm to the children. The court terminated parental rights.

III

FORFEITURE OF SUFFICIENCY OF EVIDENCE OBJECTIONS

Mother contends there was insufficient evidence the children were adoptable or

that CFS complied with the heightened ICWA standards necessary for terminating her

parental rights. Citing In re Crystal J. (1993) 12 Cal.App.4th 407 (Crystal J.), CFS

argues that mother forfeited her sufficiency of evidence objections by not raising them

during the contested section 366.26 hearing. Based on the rationale succinctly stated in

In re Brian P. (2002) 99 Cal.App.4th 616, 622-623 (Brian P.), we conclude no objection

was necessary to preserve mother’s sufficiency of evidence challenge.

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 In Brian P., the court rejected the father’s contention there was insufficient

evidence of adoptability. The court noted: “A similar waiver argument was raised in In

re Lukas B. (2000) 79 Cal.App.4th 1145. The court decided to consider the issue of

adoptability . . . , but observed there was authority that would support deeming the issue

waived. [Citations.] [¶] Of the cases cited by the Lukas B. court, only Crystal J. actually

supports the proposition that the ultimate issue of whether the child is likely to be

adopted can be waived by failing to argue the point at the section 366.26 hearing.”

(Brian P., supra, 99 Cal.App.4th at pp. 622-623.)

We agree, as concluded in Brian P., that “the Crystal J. court overstated the scope

of the waiver doctrine. . . . [¶] When the merits are contested, a parent is not required to

object to the social service agency’s failure to carry its burden of proof on the question of

adoptability. (See In re Chantal S. (1996) 13 Cal.4th 196, 210 [agency has burden of

presenting evidence to support allegations and requested orders]; [citation].) ‘Generally,

points not urged in the trial court cannot be raised on appeal. [Citation.] The contention

that a judgment is not supported by substantial evidence, however, is an obvious

exception to the rule.’ [Citations.] Thus, while a parent may waive the objection that an

adoption assessment does not comply with the requirements provided in section 366.21,

subdivision (i), a claim that there was insufficient evidence of the child’s adoptability at a

contested hearing is not waived by failure to argue the issue in the juvenile court.”

(Brian P., supra, 99 Cal.App.4th at p. 623.)

In the instant case, under Brian P., mother’s objections on appeal to the

16
sufficiency of evidence of adoptability and ICWA findings, were not forfeited even

though mother did not challenge the sufficiency of evidence on these issues in the

juvenile court. (Brian P., supra, 99 Cal.App.4th at pp. 622-623; see also In re Gregory

A. (2005) 126 Cal.App.4th 1554, 1560-1561.)

IV

SUFFICIENCY OF EVIDENCE OF COMPLIANCE WITH

HEIGHTENED ICWA REQUIREMENTS

Mother contends the evidence was insufficient to support the juvenile court’s

finding of CFS compliance with the heightened ICWA standards necessary for

terminating her parental rights.

A. Sufficiency of Evidence Standard Applicable to Indian Children

ICWA protects the interests of Indian children and promotes the stability and

security of Indian tribes and families by establishing minimum federal standards in

juvenile dependency cases. (25 U.S.C. §§ 1901, 1902; In re Robert A. (2007) 147

Cal.App.4th 982, 988.) Those standards require the juvenile court to make certain

findings affecting an Indian child before ordering foster care or terminating parental

rights. Under ICWA and California state law, any party seeking termination of parental

rights to an Indian child under state law “shall satisfy the court that active efforts have

been made to provide remedial services and rehabilitative programs designed to prevent

the breakup of the Indian family and that these efforts have proved unsuccessful.” (25

U.S.C. § 1912, subd. (d); see also § 366.26, subd. (c)(2)(B)(i) and § 361.7.) In addition,

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the juvenile court may not order termination of parental rights “in the absence of a

determination, supported by evidence beyond a reasonable doubt, including testimony of

qualified expert witnesses, that the continued custody of the child by the parent or Indian

custodian is likely to result in serious emotional or physical damage to the child.” (25

U.S.C. § 1912, subd. (f); see also § 366.26, subd. (c)(2)(B)(ii).) Mother argues the

evidence was insufficient to satisfy these requirements.

“We review the court’s findings made pursuant to ICWA for supporting evidence

which is ‘reasonable, credible and of solid value.’ (In re Michael G. (1988) 63

Cal.App.4th 700, 715.) We review the record in a light most favorable to the judgment

and uphold the trial court’s finding unless it can be said that no rational factfinder could

reach the same conclusion. (Id. at pp. 715-716.) The appellant has the burden of

showing there is no evidence of a sufficiently substantial nature to support the court’s

finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979)

98 Cal.App.3d 412, 420.)” (In re Barbara R. (2006) 137 Cal.App.4th 941, 950.)

B. Evidence of Active Efforts to Provide Services

Mother argues there was insufficient evidence that CFS made active efforts to

provide remedial services and rehabilitative programs designed to prevent the breakup of

parents’ family and that these efforts proved unsuccessful. (25 U.S.C. § 1912, subd. (d);

§ 366.26, subd. (c)(2)(B)(i) and § 361.7.) The phrase “active efforts” means that “timely

and affirmative steps be taken to accomplish the goal which Congress has set: to avoid

the breakup of Indian families whenever possible by providing services designed to

18
remedy problems which might lead to severance of the parent-child relationship.”

(Letitia V. v. Superior Court (2000) 81 Cal.App.4th 1009, 1016 (Letitia V.), italics added;

see also In re K.B. (2009) 173 Cal.App.4th 1275, 1284 [Fourth Dist., Div. Two].) “What

constitutes active efforts shall be assessed on a case-by-case basis. The active efforts

shall be made in a manner that takes into account the prevailing social and cultural

values, conditions, and way of life of the Indian child’s tribe. Active efforts shall utilize

the available resources of the Indian child’s extended family, tribe, tribal and other Indian

social service agencies, and individual Indian caregiver service providers.” (§ 361.7,

subd. (b).)

There is no established formula for distinguishing between active and passive

efforts. (In re K.B., supra, 173 Cal.App.4th at p. 1287.) “However, the following is a

useful guideline: ‘Passive efforts are where a plan is drawn up and the client must

develop his or her own resources towards bringing it to fruition. Active efforts . . . is

where the state caseworker takes the client through the steps of the plan rather than

requiring that the plan be performed on its own. For instance, rather than requiring that a

client find a job, acquire new housing, and terminate a relationship with what is perceived

to be a boyfriend who is a bad influence, the Indian Child Welfare Act would require that

the caseworker help the client develop job and parenting skills necessary to retain

custody of her child.’ [Citation.]” (Id. at p. 1287.) “Although the phrase ‘active efforts’

is not defined by either federal or state statute, California courts have construed ‘active

efforts’ to be ‘essentially equivalent to reasonable efforts to provide or offer reunification

19
services in a non-ICWA case . . . .’ [Citations.]” (In re C.B. (2010) 190 Cal.App.4th

102, 134.)

“Whether active efforts were made is a mixed question of law and fact. [Citation.]

We can determine what services were provided by reference to the record. Whether

those services constituted ‘active efforts’ within the meaning of section 361.7 is a

question of law which we decide independently. [Citation.]” (In re K.B., supra, 173

Cal.App.4th at p. 1286.)

In the instant case we conclude the juvenile court and CFS complied with ICWA’s

“active efforts” requirements. CFS provided parents with case plans. Mother’s case plan

required her to participate in sexual abuse counseling, parenting education, a domestic

violence program, and substance abuse counseling, outpatient treatment, and drug testing.

CFS assisted parents with complying with their case plans by providing them with

referrals and resources, including counseling, courses in parenting, domestic violence,

and substance abuse, substance abuse rehabilitation treatment, therapy, bus passes, gas

cards, and housing assistance. CFS made appointments to meet with parents to assist

them with compliance with their case plans. Although parents did not fully make use of

the services offered, they used the gas cards and bus passes provided by CFS to visit their

children. At both the six-month and 12-month review hearings, the court found that CFS

had provided parents with reasonable services.

Following the 12-month hearing, CFS continued to assist mother in complying

with her case plan so that she could reunify with her children. By the time of the 18-

20
month hearing in February 2012, CFS had provided parents with numerous reunification

services. Mother had completed most of her substance abuse services but had not

secured suitable housing for the children, even though the month before reunification

services were terminated, CFS offered parents assistance with rent. At the March 2012

contested 18-month hearing, the court again found that CFS had provided parents with

reasonable services designed to overcome the problems leading to the children’s removal.

The juvenile court terminated reunification services upon finding that parents had failed

to make sufficient progress toward alleviating or mitigating the causes necessitating

removal of the children.

Parents received over a year and a half of reunification services to assist parents in

completing their case plans, which were designed to enable parents to reunify with the

children. Cherokee Nation expert, Neugin, stated in her declaration and testified at the

contested section 366.26 hearing on May 8, 2013, that CFS had provided parents with

reasonable reunification services and had made “active efforts to provide remedial

services to prevent the breakup of this Indian family and those services were

unsuccessful.”

The above enumerated evidence of CFS providing parents with 17 months of

various reunification services was sufficient to support the juvenile court’s finding that

CFS made active efforts to provide remedial services and rehabilitative programs

designed to prevent the breakup of parents’ family and that these efforts have proved

unsuccessful. (25 U.S.C. § 1912, subd. (d); § 366.26, subd. (c)(2)(B)(i) and § 361.7.)

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C. Evidence of Likelihood of Serious Emotional or Physical Damage

Mother contends there was insufficient evidence that returning custody of the

children to mother would likely result in serious emotional or physical damage to the

children. (§ 366.26, subd. (c)(2)(B)(ii).) Mother argues that by the time of the section

366.26 hearing, she had completed outpatient substance abuse treatment and after care;

had attended parenting, anger management, domestic violence, and sexual abuse

prevention courses; was enrolled in college; was working full-time; and had filed for

divorce from father. Mother notes that Indian expert, Neugin, likely did not know of

mother’s current situation reflected in mother’s section 388 petition when Neugin

concluded in her May 3, 2013 declaration that returning the children to mother’s custody

would result in serious emotional or physical harm to the children.

However, during the contested section 366.26 hearing on May 8, 2013, Neugin

testified that her declaration dated May 3, 2012, reflected her current opinions and

conclusions. Consistent with her declaration, Neugin stated that, in her opinion, if the

children were returned to mother, they would suffer serious emotional or physical

damage. There was no evidence presented at trial that Neugin was unaware of mother’s

current situation.

Furthermore, even assuming Neugin did not consider the evidence contained in

mother’s section 388 petition, it was unlikely this made any difference since there was

substantial evidence supporting the finding that the children would suffer serious

emotional or physical damage if returned to mother. Mother had not addressed issues of

22
domestic violence or the risk of the children being exposed to sexual abuse. She also had

not established she could provide stable housing for the children and would put the

children’s needs before her own. She was engaged to a gang member who had a lengthy

criminal history and had not addressed her own outstanding $100,000 arrest warrant. In

December 2012, six months before the section 366.26 hearing, her older children had

visited her when she was again living in an uninhabitable home, without electricity, gas,

or water. This reflected that mother was still willing to live with her children in squalor,

under unsuitable conditions. There was also some question as to mother’s sobriety, since

her last drug test results were in July 2012, almost a year before the May 2013 section

366.26 hearing. In addition, the CFS social worker reported in a supplemental report

filed on May 8, 2013, that mother lacked nurturing qualities and her interaction with the

children was “somewhat emotionless.” Mother also lacked control over the children.

Evidence of such circumstances was sufficient to support the court’s finding that

returning the children to mother would likely result in serious emotional or physical harm

to the children.

V

SUFFICIENCY OF EVIDENCE OF ADOPTABILITY

Mother contends there was insufficient evidence to support the juvenile court’s

finding at the section 366.26 hearing that the children were adoptable. We disagree.

CFS had the burden of proving the children were adoptable. (In re Gregory A.,

supra, 126 Cal.App.4th at pp. 1557, 1559-1561; In re Josue G. (2003) 106 Cal.App.4th

23
725, 732, quoting § 366.26, subd. (c)(1).) “Although a finding of adoptability must be

supported by clear and convincing evidence, it is nevertheless a low threshold: The court

must merely determine that it is ‘likely’ that the child will be adopted within a reasonable

time. [Citations.]” (In re K.B., supra, 173 Cal.App.4th at p. 1292.) A finding of general

adoptability “focuses on the minor, e.g., whether the minor’s age, physical condition, and

emotional state make it difficult to find a person willing to adopt the minor.” (In re

Sarah M. (1994) 22 Cal.App.4th 1642, 1649, italics omitted.) A child’s psychological,

behavioral and developmental problems may make it more difficult to find adoptive

homes, but do not necessarily prevent an adoptability finding. (In re Lukas B., supra, 79

Cal.App.4th at p. 1154; In re Jennilee T. (1992) 3 Cal.App.4th 212, 224-225; In re I.I.

(2008) 168 Cal.App.4th 857, 870-871 [Fourth Dist., Div. Two].)

Even if an adoptive family is not readily available, the juvenile court may find a

child generally adoptable. (In re I.I., supra, 168 Cal.App.4th at p. 870.) “The issue of

adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the

minor’s age, physical condition, and mental state make it difficult to find a person willing

to adopt the minor. [Citations.] Hence, it is not necessary that the minor already be in a

potential adoptive home or that there be a proposed adoptive parent ‘waiting in the

wings.’ [Citations.]” (In re Sarah M., supra, 22 Cal.App.4th at p. 1649; In re I.I., supra,

168 Cal.App.4th at p. 870.) “However, the court must find by clear and convincing

evidence that it is likely the child will be adopted within a reasonable time.” (I.I., at p.

870; Brian P., supra, 99 Cal.App.4th at p. 624.)

24
 A child who is not generally adoptable may be specifically adoptable, that is,

adoptable “because a prospective adoptive family has been identified as willing to adopt

the child.” (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) “[T]he fact that a

prospective adoptive family has been identified is an indication that the child is likely to

be adopted within a reasonable time. ‘“Usually, the fact that a prospective adoptive

parent has expressed interest in adopting the minor is evidence that the minor’s age,

physical condition, mental state, and other matters relating to the child are not likely to

dissuade individuals from adopting the minor. In other words, a prospective adoptive

parent’s willingness to adopt generally indicates the minor is likely to be adopted within a

reasonable time either by the prospective adoptive parent or by some other family.”

[Citation.]’ [Citation.]” (In re I.I., supra, 168 Cal.App.4th at p. 870; In re Asia L. (2003)

107 Cal.App.4th 498, 510.)

Here, the willingness of a Cherokee Indian family to adopt the children supports

the finding of specific adoptability. Mother argues that this is an insufficient basis for

finding the children adoptable because the family had never met the children and T.G.

had severe behavioral problems which resulted in his removal from the children’s foster

home. In addition, the children were part of a large sibling group, which made adoption

more difficult. Mother argues that there was no showing that any other family was

willing to adopt the children if the prospective adoption fell through or that the children

were generally adoptable. But “[s]ince it is not even necessary that one prospective

adoptive home be identified before a child may be found adoptable, a fortiori, it is not

25
necessary that backup families be identified.” (In re I.I., supra, 168 Cal.App.4th at p.

870.)

Mother argues that, while the children may have been specifically adoptable, they

were not generally adoptable, primarily because of T.G.’s serious behavioral problems.

Three months before the contested section 366.26 hearing, he was removed from the

children’s original foster home because the foster mother could no longer handle him.

Mother asserts there was no evidence the prospective adoptive family was aware of

T.G.’s severe behavioral problems and would follow through with adoption of the three

children.

Although T.G. was removed from the children’s original foster home in February

2013, because of behavioral problems, there was nevertheless sufficient, credible

evidence to support a finding that the children were generally adoptable and would be

adopted within a reasonable period of time. The children had lived together in the same

foster home for 23 months, indicating it was likely another family would be willing to

adopt the sibling set. Furthermore, CFS reported in July 2012, that the children were

healthy, had no chronic medical conditions, had met their developmental milestones, and

enjoyed playing together. They were relatively young (ages six, seven, and eight when

parental rights were terminated). S.G. and A.G. had few, if any, behavioral issues.

The CFS social worker and Indian expert both concluded the children, including

T.G., were adoptable, even though they had mild emotional/behavioral issues. In

addition, CFS reported that the prospective adoptive family had an approved adoption

26
home study completed by the Cherokee Nation. The CFS social worker reviewed the

home study and found the home suitable for the children. The supplemental report

contained personal information about the prospective adoptive parents, including their

health, finances, education, employment, and home. CFS reported that the prospective

adoptive family wanted to proceed with adoption of the children.

The CFS social worker further noted in the report that, although T.G. had been

removed from his original foster home because of behavioral problems, “his behavior has

greatly improved in the two months he has been in his current foster home. He no longer

has out of control tantrums. He appears to respond well to having a strong father figure

in the home. [T.G.] does continue to show some disrespect toward the foster mother and

women in general. This is improving and it is believed the prospective adoptive parents

are confident in their parenting abilities and will be able to redirect and handle any

inappropriate behavior. The prospective adoptive mother has successfully assumed the

role of step mother to her husband’s children. Furthermore, the alleged incident of sexual

acting out by [T.G.] was investigated and determined to be unfounded.”

Based on the evidence in the record, we conclude that the juvenile court’s finding

of adoptability is supported by substantial evidence. We note that, even if adoption by

the children’s prospective adoptive family falls through, the children are not in danger of

becoming orphans. Under the current statute, section 366.26, subdivision (i)(2), added in

2005, if a child has not been adopted after three years following the termination of

parental rights, the child may petition the juvenile court to reinstate parental rights.

27
(Stats. 2005, ch. 640, § 6.5.)

VI

SECTION 388 PETITION

Mother contends the juvenile court erred in summarily denying her section 388

petition. She argues she made a prima facie showing of changed circumstances and that

modification of the court’s order was in the children’s best interests.

A. Applicable Law

Section 388 allows a person having an interest in a dependent child of the court to

petition the court for a hearing to change, modify, or set aside any previous order on the

grounds of change of circumstance or new evidence. The petition must be verified and

“set forth in concise language any change of circumstance or new evidence that is alleged

to require the change of order or termination of jurisdiction.” (§ 388, subd. (a)(1); Cal.

Rules of Court, rule 5.570(a).) The petitioner must “make a prima facie showing to

trigger the right to proceed by way of a full hearing. [Citation.]” (In re Marilyn H.

(1993) 5 Cal.4th 295, 310; In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) There are

two parts to the prima facie showing: The petitioner must demonstrate (1) a genuine

change of circumstances or new evidence, and that (2) revoking the previous order would

be in the best interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)

“If the liberally construed allegations of the petition do not show changed circumstances

such that the child’s best interests will be promoted by the proposed change of order, the

dependency court need not order a hearing.” (Anthony W., at p. 250; In re Zachary G.

28
(1999) 77 Cal.App.4th 799, 806.)

The court is given broad discretion to deny a hearing if the request for

modification fails to state a change of circumstances or new evidence or fails to

demonstrate that the requested modification is in the best interests of the child. (Cal.

Rules of Court, rule 5.570(d)(1) & ( 2); In re Zachary G., supra, 77 Cal.App.4th at p.

808.)

B. Section 388 Petition Factual and Procedural Background

Mother requested in her section 388 petition modification of the March 27, 2012

order terminating reunification services. She requested return of the children to her or,

alternatively, reinstatement of reunification services and liberalized visitation. Mother

alleged her changed circumstances included mother completing outpatient and aftercare

programs, attending college, maintaining a full-time job, and attending sexual abuse

prevention, domestic violence and parenting on line courses. Mother had also requested

a restraining order against father and was in the process of divorcing him. Mother

alleged granting her section 388 petition was in the children’s best interests because she

was “their mother who loves them more than anyone could possibly love them and they

love me back.” She believed the children would be happiest with her, and she would

protect and care for them.

Attached to her section 388 petition were certificates from Summit Career College

for perfect attendance and academic achievement (awarded between February 2012 and

July 2012), college progress reports and attendance ledgers through June 2012, a

29
February 2012 recommendation letter from an instructor, certificates of completion, from

January 2012 through February 2012, for parenting and substance abuse programs, work

paystubs, negative drug test results for the period of December 2011 through July 2012

and a February 2012 letter from her MFI substance abuse treatment counselor, stating

that mother’s prognosis was good because she was motivated to change her life and had

learned the tools for maintaining sobriety. Also attached was documentation showing

mother was employed by Summit Career College Inc. from April through July 2012. In

addition, there were copies of “Western Unionr Reloadable Prepaid Cards,” totaling

$800, with a handwritten notation the payment was for a “deposit for house.”

In CFS’s response to mother’s section 388 petition, filed on May 8, 2013, CFS

social worker, Sandy Parker, reported that, since the inception of the case in September

2010, parents remained inconsistent in their treatment and goals. They were frequently

transient and did not complete their programs until February 2012, a month before

termination of reunification services. After services were terminated in March 2012,

mother continued her schooling and worked at the college. When asked where she was

living, mother provided vague information and said she did not know what her address

was. When CFS investigated where mother was living in December 2012, CFS

discovered mother was living again in an uninhabitable home with two of her older

children. Mother had continued to visit the children but her interaction with the children

had been somewhat detached and she lacked control over the children. In addition,

mother was visiting the children with a man who had a long criminal record, admitted to

30
being a gang member, and had an outstanding warrant, even though mother was told the

man was not to accompany her to visits.

At the contested section 366.26 hearing on May 8, 2013, mother requested a

hearing on her section 388 petition. The court stated that it had reviewed mother’s

documents attached to her section 388 petition and “Everything is from, for the most part,

2012, so none of this is change of circumstances that would show prima facie.” The

court concluded that the petition essentially repeated what was presented when services

were terminated. Therefore the court summarily denied mother’s section 388 petition.

C. Discussion

Mother argues the juvenile court erred in summarily denying her section 388

petition without a hearing. She notes that when the juvenile court terminated

reunification services on March 27, 2012, the court told her: “[P]arents are continuing on

with their programs. And the court would invite you to continue to complete whatever

you need to complete. Show that you’ve got housing. Show that you have a means of

financial ability. Show that you’ve completed all your programs. And show that you

have remained sober and not using drugs over the course of the next couple months.

And, the court is confident that, that would be all the makings of a 388 petition for your

respective request to the court to change the plan for the children.”

Mother asserts that she established in her petition that she had met all these

requirements. She attached to her section 388 petition, college certificates of perfect

attendance and academic achievement, progress reports, a college instructor

31
recommendation letter, certificates of completion for parenting and substance abuse

programs, work paystubs, negative drug test results, and a favorable letter from her

substance abuse treatment counselor. Mother argues that, contrary to the juvenile court’s

conclusion there was no prima facie showing of changed circumstances, a significant

portion of the evidence supporting her section 388 petition was from after the March 27,

2012 hearing terminating reunification services.

Although some of the evidence submitted with mother’s section 388 petition,

reflected activity after the March 27, 2012 hearing, there was no prima facie showing of

changed circumstances. Most of the supporting evidence showed the same circumstances

that existed when the court terminated reunification services. Mother was still going to

school and working, as before, and she remained sober, as before. The only evidence of

activity after the March 27, 2012 hearing consisted of college attendance and academic

performance certificates, from the period of April 2012 through July 2012; continuing

negative drug test results, from the period of April 2012 through July 2012; and

continuing employment at the college.

The juvenile court reasonably concluded this evidence was not sufficient to

establish a prima facie showing of changed circumstances, particularly when there was

no evidence mother had attended sexual abuse counseling, completed a domestic violence

program, or obtained suitable housing for the children. There was also no evidence of

current sobriety. Mother completed her drug treatment programs shortly before the

March 27, 2012 hearing, and the last drug test was in July 2012. Mother’s section 388

32
petition also did not demonstrate that ordering additional reunification services or

returning the children to her custody was in the children’s best interests. Mother’s

section 388 petition did not show that her bond with the children was strong or that she

had sufficiently addressed the problems that led to the children’s dependency, including

an uninhabitable home, risk of sexual abuse, and exposure to domestic violence. We

therefore conclude the juvenile court did not abuse its discretion in denying a hearing on

mother’s section 388 petition and summarily denying the petition.

VII

BENEFICIAL PARENTAL RELATIONSHIP EXCEPTION

Mother contends the trial court erred in failing to apply the beneficial parental

relationship exception to adoption. She argues she consistently visited the children and

established that the children would benefit from continuing her relationship with them.

If a dependent child is adoptable, the juvenile court must terminate parental rights

at the section 366.26 hearing unless the parent proves the existence of a statutory

exception. (§ 366.26, subd. (c)(1); In re Helen W. (2007) 150 Cal.App.4th 71, 80.) One

such exception exists if “[t]he parent[] [has] maintained regular visitation and contact

with the child and the child would benefit from continuing the relationship.” (§ 366.26,

subd. (c)(1)(B)(i).) A beneficial relationship is one that “promotes the well-being of the

child to such a degree as to outweigh the well-being the child would gain in a permanent

home with new, adoptive parents.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

The existence of this relationship is determined by considering “[t]he age of the child, the

33
portion of the child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect

of interaction between parent and child, and the child’s particular needs . . . .” (Id. at p.

576.)

There is a split of authority on the standard of review for section 366.26 orders.

Most courts apply the substantial evidence standard (In re Autumn H., supra, 27

Cal.App.4th at p. 575), but at least one court has used the abuse of discretion standard (In

re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351). Recently some courts have applied

both standards, which we find to be appropriate here. A “juvenile court’s decision

whether an adoption exception applies involves two component determinations: a factual

and a discretionary one. The first determination—most commonly whether a beneficial

parental or sibling relationship exists . . . —is, because of its factual nature, properly

reviewed for substantial evidence. [Citation.] The second determination . . . is whether

the existence of that relationship . . . constitutes ‘a compelling reason for determining that

termination would be detrimental to the child.’ [Citation.] This ‘“quintessentially”

discretionary decision . . .’ is appropriately reviewed under the deferential abuse of

discretion standard. [Citation.]” (In re K.P. (2012) 203 Cal.App.4th 614, 622.) “On

review of the sufficiency of the evidence, we presume in favor of the order, considering

the evidence in the light most favorable to the prevailing party, giving the prevailing

party the benefit of every reasonable inference and resolving all conflicts in support of

the order.” (Autumn H., at p. 576.)

Examining the evidence in the light most favorable to the judgment, we conclude

34
that although mother visited regularly, the court’s finding that the benefits of adoption

outweighed the children’s bond with mother was supported by substantial evidence and

not an abuse of discretion. (In re Autumn H., supra, 27 Cal.App.4th at pp. 576-577; In re

Cristella C. (1992) 6 Cal.App.4th 1363, 1373.) The juvenile court concluded the

beneficial parental relationship exception did not apply because, although mother

maintained regular visitation and contact with the children, “that visitation has not

escalated or improved to an actual bond with the children.” After termination of

reunification services, mother continued visiting the children once a week, for one hour,

at the CFS office. Mother testified that she also talked to T.G. every night on the phone.

Although mother had consistently visited the children, mother had never had

unsupervised or extended visits and, according to the social worker, mother “was not real

interactive” with the children during visits. During a recent visit in April 2012, the

children frequently hit each other and threw toys. Mother did not attempt to stop them or

attempt to correct their inappropriate behaviors. The children reportedly were not upset

when visits were cancelled. CFS reported in its May 8, 2013 report, that mother had

continued to visit the children but her interaction with the children had been “somewhat

emotionless” and the parents often had little control over the children. In addition, the

CFS social worker reported that mother had been visiting the children with a man who

had a long criminal record and admitted to being a gang member. Even though mother

was told she could not bring her companion to visits with the children, she did so,

indicating she was willing to place her children at risk of abuse by others.

35
 Mother has not established there were exceptional circumstances that required

applying the beneficial parental relationship exception. Although mother consistently

visited the children, her visits were brief and supervised, and mother did not currently

hold a parental role in the children’s lives nor was she closely bonded with the children.

When the children were initially removed from mother’s care, they were young (ages

three, four, and five years old). By the time of the section 366.26 hearing in May 2013,

they had been in foster care for nearly 33 months, which was a significant portion of their

young lives. The court reasonably rejected the beneficial parental relationship exception,

since the children’s need for a permanent and stable home outweighed any benefit in

maintaining the children’s relationship with mother.

VIII

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.

We concur:

RAMIREZ
P. J.

KING
J.

36