El Dorado County Health & Human Services Agency v. J.S.

Filed 10/24/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(El Dorado)
----
In re L.S., Jr., et al., Persons Coming Under the                C075626
Juvenile Court Law.
EL DORADO COUNTY HEALTH AND HUMAN                            (Super. Ct. Nos.
SERVICES AGENCY,                                             SDP20130007 &
SDP20130008)
Plaintiff and Respondent,
v.
J.S. et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of El Dorado County, Dylan M.
Sullivan, Court Commissioner. Reversed with directions.
Sargeant & Conrad and Linda J. Conrad, under appointment by the Court of
Appeal, for Defendant and Appellant J.S.
Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and
Appellant L.S.
Edward L. Knapp, County Counsel, and Lauren C. Bowers, Deputy County
Counsel, for Plaintiff and Respondent.
1
J.S. (mother) and L.S. (father), parents of the minors, appeal from orders of the
juvenile court denying their petitions for modification and terminating parental rights.
(Welf. & Inst. Code, §§ 366.26, 388, 395 [further undesignated statutory references are to
the Welfare and Institutions Code].) The parents contend the court applied the wrong
burden of proof in denying their petitions for modification and abused its discretion in
concluding there was insufficient evidence to grant the requested modification.1 The
parents also contend the court and the El Dorado County Health and Human Services
Agency (Agency) failed to comply with the notice requirements of the Indian Child
Welfare Act (ICWA). (

25 U.S.C. § 1901

 et seq.) Finally, the parents argue the court
erred in failing to find they had established the beneficial parental relationship exception
to termination of parental rights. We conclude that the juvenile court’s failure to apply
the proper burden of proof in ruling on the petitions for modification and the errors in the
ICWA notice require reversal.
FACTS
Following the parents’ request in January 2013 for a court-ordered case plan, the
Agency filed petitions alleging the minors, L.S., Jr., age six, and T.S., age eight, were at
risk because the parents were homeless, the minors were suffering emotional difficulties
and the parents had not engaged in the voluntary service referrals.2 Various stresses in
the family caused a breakdown of the family unit and increased emotional difficulties
with the minors leading to the parents’ request for help. The court did not detain the
minors.
1      Appellants join in each other’s briefs.
2      The parents were offered family maintenance and family reunification services in
a previous dependency case in 2009 and ultimately reunified with these two minors in
2011, although parental rights were terminated as to a sibling.
2
The jurisdiction report stated that, after the initial hearing, mother told the minors
they might be placed in foster care and T.S. became hysterical. The social worker was
able to calm T.S. and told mother such a conversation was inappropriate. Mother saw
nothing wrong with it, believing the minors deserved to know what was going on. The
social worker instructed mother not to discuss the case with the minors. Appropriate
referrals were made and the parents were looking for housing. The court sustained the
petitions.
Two weeks after the jurisdiction hearing, the Agency filed supplemental petitions
(§ 387) alleging mother called the social worker and asked to have the minors placed in
foster care for their safety because the family was homeless. The minors were taken into
protective custody and, during the removal, told the social worker that father instructed
them “ ‘not to tell the truth’ ” about where they had been staying or they would be placed
in foster care. Prior to the detention hearing, T.S. was upset because father was mad at
her for what she had told the social worker. T.S. became hysterical, crying and
apologizing for saying something that got the parents in trouble. The court ordered the
minors detained.
The report for the jurisdiction hearing for the section 387 petitions stated that
mother admitted she and father had relapsed and used methamphetamine. Father
minimized his drug use and blamed mother for his relapse. Prior to the jurisdiction
hearing on the supplemental petitions, the Agency filed subsequent petitions (§ 342)
based on the parents’ substance abuse history and current use.
The April 2013 disposition report stated both parents were in inpatient drug
treatment programs and were compliant with program requirements. At visits, the
parents were attentive and nurturing, open to redirection, able to set limits and able to
interact with the minors individually. However, there were visits which became highly
emotional and they would complain and argue in front of the minors. The parents also
had an ongoing problem with talking about the case or other adult matters at visits. As a
3
result of parental emotional responses and discussion of inappropriate matters, the quality
of visits was inconsistent. The minors always had difficulty after visits, being more
emotional and less cooperative. The social worker recommended bypassing services for
mother because services and parental rights were terminated as to a sibling (§ 361.5,
subd. (b)(11)) and for both parents due to their recent resistance to prior court-ordered
drug treatment (§ 361.5, subd. (b)(13)).
The court denied services to the parents at the contested disposition hearing in
May 2013 and set a section 366.26 hearing for September 18, 2013. The report for the
section 366.26 hearing concluded the minors were likely to be adopted as their ongoing
behavioral problems were improving with stability in the foster home. The minors
looked forward to visits although L.S., Jr., was anxious both before and after visits. The
report indicated that the problems which led to the dependency were ongoing and the
minors needed a permanent stable home.
Two days before the scheduled section 366.26 hearing, the parents filed petitions
to modify the court’s bypass order seeking an order for reunification services. The
parents alleged, as changed circumstances, they were actively participating in services on
their own and father was employed. The parents further alleged the proposed order was
in the minors’ best interests because the minors were bonded to them and reunification
was the best permanent plan for them. The court ordered a contested hearing on the
petitions and combined the hearing with the section 366.26 hearing.
At the hearing in October 2013, there was a discussion of the proper burden of
proof for the petitions for modification of the prior bypass order. The Agency argued the
parents had to show by clear and convincing evidence that providing services was in the
minors’ best interests while father’s counsel argued that the proper burden for petitions
for modification was preponderance of evidence. The court, citing section 361.5 and
California Rules of Court, rule 5.695, suggested that the same burden applied in
modifying a bypass order as applied at the time it was imposed and that passage of time
4
did not lower the burden of proof for the parents in overcoming a bypass. The court
reasoned that the petitions for modification were the mechanism to bring the issue of
modifying the bypass order before the court, but, because the bypass conditions were
shown by clear and convincing evidence and the court had found there was not clear and
convincing evidence that reunification was in the minors’ best interests at disposition, the
appropriate burden to show that reunification was in the minors’ best interests at the
current hearing was also clear and convincing. The court made it clear it was familiar
with the facts in the prior, as well as the current, case.
Mother testified about her current sobriety, her lengthy history of substance abuse
and her current progress in the various programs she had engaged in. Mother described
visits as “wonderful” and said that they gave her an opportunity to use her parenting
skills when the minors had emotional problems. She described the interaction at visits
with the minors which included meals, helping with homework and play time. She stated
the minors asked about coming home but she redirected them because they were not
supposed to discuss the case. Mother testified she had learned to budget and pay bills,
deal with frustration and stay clean. Mother wanted to be reunified with the minors and
felt they could be placed with her immediately. She believed reunification was in the
minors’ best interests because this time she was truly clean.
Father also testified about his current sobriety, the programs he had attended and
the progress he had made in stabilizing his life. Father testified visits went well, the
minors wanted to come home and it would mean the world to him to reunify with them.
He asked the court for placement and services to ease the transition for the minors.
The adoptions supervisor testified the minors were in an adoptive placement. She
described the minors’ interaction with the foster parents as loving and had observed the
minors seeking affection and guidance from the foster parents. She did not think the
minors had special needs, noting their only diagnosis at the present time was Attention
5
Deficit Hyperactivity Disorder (ADHD). She stated that the minors would be adopted if
parental rights were terminated.
An addendum report in January 2014 stated that, while T.S. had frequent
explosive tantrums in the first two months of her current placement, the tantrums were
decreasing and she was more able to calm herself and listen. T.S.’s most recent
psychiatric diagnosis was ADHD and she was in ongoing therapy. L.S., Jr., was defiant
at times and engaged in daily explosive tantrums but was making great progress in
calming down. L.S., Jr.’s most recent psychiatric diagnosis was also ADHD. He was in
weekly therapy, doing well in the current placement and had an easier time than T.S.
establishing a relationship with the foster parents. The minors’ tantrums decreased by 75
percent from when they were first placed in the current home. In school both were
making progress. L.S., Jr.’s delays were minimal. T.S. consistently said she wanted to
go home.
The addendum reported the parents visited twice a month. The parents were
appropriate at the beginning and end of visits but during the visits sometimes lost focus
on the minors’ needs. In visits, the minors demonstrated parentified behavior and at
times the parents allowed them to ignore rules without consequences. Both minors
consistently said they wanted to go home, but both also felt connected to the current
placement. T.S. said if she went home and was removed again she would “ ‘freak out.’ ”
More than once, L.S., Jr., said he could live in the current placement forever. Although
the parents had multiple services over many years, the social worker’s assessment
suggested they were unable to maintain the changes necessary to parent the minors.
Meanwhile, the minors needed structure in their lives now. The addendum concluded the
minors were adoptable, noting that the minors’ therapist expressed concern about
termination of parental rights, but the social worker felt the ongoing instability was more
devastating to the minors.
6
Numerous documents were attached to the addendum including delivered service
logs. The delivered service log for November 5, 2013, reported T.S. believed father lost
a job because she forgot to change a clock to daylight savings time. T.S. expressed
ambivalence about going home.
At the renewed hearing in January 2014, mother testified she had attended all
visits since the last hearing and described a Christmas dinner visit. Mother said T.S. was
very excited to see them at visits, talking about her school, bringing books for them to
read and recently opening up about her foster home and her affection for her current
caretakers. T.S. seemed to be seeking mother’s approval for liking her caretakers.
Mother testified L.S., Jr., was clingy and spent visits with his arms wrapped around her or
father’s neck but did talk about school and other things which interested him. Mother
said they all interacted together. Mother was concerned the reports only said negative
things about visits and explained her view of how various visits had gone in a more
positive manner. Mother was not asking for immediate return of the minors, instead
proposing an increase in visitation to show they could parent the minors outside
visitation. Mother further suggested random testing to demonstrate her sobriety. She
believed termination of parental rights would have a negative effect on T.S. and increase
her behavior problems and, while L.S., Jr., would be upset, he might adapt more easily.
Father testified he believed that immediate return would have a major impact on
the minors’ stability and a transition period was appropriate. He, too, was asking for
additional services such as testing.
The court denied the petitions for modification, finding the proper burden of proof
was clear and convincing evidence that services were in the minors’ best interests. The
court stated that it had found by clear and convincing evidence at disposition both that the
bypass provisions applied and that services were not in the best interest of minors and
was again finding that providing services was not in the best interest of the minors. The
court noted the parents had changed their focus of what they sought in the petitions and
7
pointed out there was only a month left of the statutory time, which would not be enough
to offer services to deal with the parents’ continuing problems.
After finding the minors specifically adoptable, the court addressed the beneficial
parental relationship exception and found it did not apply to father because there was no
evidence he had a strong bond with either child. The court found a significant bond
between mother and T.S. and a strong bond between the two minors such that if the
benefit exception were found it would have to apply to both minors. However, the bond
did not outweigh the minors’ need for permanency and stability. The court believed the
minors would suffer detriment if parental rights were not terminated and it was not fair to
the minors to ask them to continue to deal with the parents’ recovery. The court
terminated parental rights and selected adoption as the permanent plan.
Additional facts appear where relevant in the following discussion.
DISCUSSION
I
The parents argue the juvenile court applied the wrong burden of proof when
denying their petitions for modification and abused its discretion in denying the petitions
for modification because they had shown both changed circumstances and that the
proposed order was in the minors’ best interests.3
A.     Burden of Proof
“Except as otherwise provided by law, the burden of proof requires proof by a
preponderance of the evidence.” (Evid. Code, § 115.) Thus, in dependency cases as in
other areas of the law, a party is only required to prove a fact by a preponderance of the
3       Respondent asserts in a heading in his brief, “The court applied the appropriate
burden of proof . . . .” (Unnecessary capitalization omitted.) In barely a page of text, he
argues only that the parents cannot show prejudice. Respondent got off on the wrong
foot at the outset when he misadvised the juvenile court judge on the standard of proof.
We expect better preparation and more candor. This issue should have been either
argued or conceded.
8
evidence. However, the Legislature has provided for a heightened burden of proof in
several areas, e.g., removal of a child from the home (§ 361, subd. (c)); bypass of services
(§ 361.5, subd. (b)); placement outside the United States (§§ 361.2, subd. (f)(4); 366,
subd. (d)(4)); finding of adoptability (§ 366.26, subd. (c)(1)); and early termination of
services (§ 388, subd. (c)(1)(B)(3)). We examine the interaction between statutes
requiring different burdens of proof.
When a child is removed from parental custody, the juvenile court may order
reunification services to assist the parents in reuniting with the child. (§ 361.5, subd. (a).)
However, if any of the circumstances set forth in section 361.5, subdivision (b) are
established by clear and convincing evidence, “the general rule favoring reunification is
replaced by a legislative assumption that offering [reunification] services would be an
unwise use of governmental resources” and the court may bypass services. (In re Baby
Boy H. (1998) 

63 Cal.App.4th 470

, 478; Renee J. v. Superior Court (2001) 

26 Cal.4th 735

, 744.) Nonetheless, services may still be provided if section 361.5, subdivision (c) is
shown to apply. Section 361.5, subdivision (c) provides, in part: “The court shall not
order reunification for a parent . . . described in paragraph . . . (11) [or] . . . (13) . . . of
subdivision (b) unless the court finds, by clear and convincing evidence, that
reunification is in the best interest of the child.” The statute provides that the clear and
convincing burden of proof applies both to establish the bypass provision and to avoid
bypass if reunification is in the best interests of the child.
Section 388, as it was written at the time of the combined hearing on the petitions
for modification and termination of parental rights and as it currently appears, contains
some sections which are governed by the clear and convincing burden of proof and some
which are governed by the normal preponderance of the evidence burden of proof. (Cal.
Rules of Court, rule 5.570(h)(1).) Subdivision (a)(1) of section 388 contains the
requirements for a petition for modification of a prior order of the juvenile court “upon
grounds of change of circumstance or new evidence.” The petition must include facts
9
which make a prima facie showing that there is a change in circumstances and “the best
interests of the child may be promoted by the proposed change of order.” (In re Daijah
T. (2000) 

83 Cal.App.4th 666

, 672-673; Cal. Rules of Court, rule 5.570(e)(1).) The
burden of proof for this subdivision is preponderance of the evidence. (Cal. Rules of
Court, rule 5.570(h)(1)(C); In re Michael B. (1992) 

8 Cal.App.4th 1698

, 1703.)
However, section 388, subdivision (a)(2), which deals with a petition to modify
prior orders bypassing services pursuant to section 361.5 subdivisions (b)(4) [caused the
death of a child], (b)(5) [severe physical abuse of a child under age five] or (b)(6) [severe
sexual or physical abuse], or to modify visitation to a child who is the subject of these
subdivisions requires a showing by clear and convincing evidence “that the proposed
change is in the best interests of the child.”4 (§ 388, subd. (a)(2).)
In this case, the parents’ petitions for modification sought to modify the order
bypassing services which was based on section 361.5 subdivisions (b)(11) and (b)(13).
Section 388 does not apply a heightened burden of proof to petitions to modify bypass
orders based on these subdivisions. Determination of a petition to modify is committed
to the sound discretion of the juvenile court. (In re Stephanie M. (1994) 

7 Cal.4th 295

,
318-319; In re Robert L. (1993) 

21 Cal.App.4th 1057

, 1067.) However, the discretion of
the juvenile court is limited by the statutory framework of dependency jurisdiction.
(In re Lisa R. (1975) 

13 Cal.3d 636

, 643; In re I.R. (2014) 

226 Cal.App.4th 201

, 209.)
Because section 388 did not permit application of the clear and convincing burden of
proof to the parents’ petitions for modification, the juvenile court abused its discretion in
requiring them to meet the higher burden of proof in order to modify the bypass order.
4      Similarly, section 388, subdivision (c)(3) requires proof by clear and convincing
evidence to terminate services prior to the relevant review hearing. All other
subdivisions of section 388 are subject to the preponderance of the evidence burden of
proof. (Cal. Rules of Court, rule 5.570(h)(1)(C).)
10
We cannot conclude that the abuse of the court’s discretion was harmless. This is
not a case where there was no evidence of change or of best interests of the minors and
the court did not simply misspeak when stating the burden of proof. The court heard
extended argument on the issue and affirmatively concluded that a burden of proof not
authorized by the relevant statute should apply. There were several reports and extensive
testimony which resulted in conflicting evidence on both the degree that circumstances
had changed as well as what was in the minors’ best interests. It is for the juvenile court,
not this court, to assess credibility and weigh the evidence using the proper burden of
proof when exercising its discretion to grant or deny the petitions. (In re Stephanie M.,
supra, 7 Cal.4th at pp. 318-319; In re Jason L. (1990) 

222 Cal.App.3d 1206

, 1214.)
At the October 2013 hearing, respondent and the court relied on the reasoning of
In re A.M. (2013) 

217 Cal.App.4th 1067

 (A.M.) to justify grafting the burden of proof
found in the bypass statute, section 361.5, subdivision (b), onto the modification statute,
section 388. In A.M., the mother sought a section 388 modification of a bypass order
based on section 361.5, subdivisions (b)(5) and (6). (Id. at pp. 1074-1075.) The juvenile
court granted the modification finding changed circumstances. (Id. at pp. 1073-1074.)
Both the agency and the child appealed, arguing the juvenile court’s order was based on
an incorrect legal standard. (Id. at p. 1074.) The A.M. court reviewed the requirements in
section 361.5, subdivisions (b) and (c) for granting bypass of services and for ordering
services despite the bypass and held that, although mother brought a petition under
section 388, the juvenile court was required to apply the provisions of section 361.5
subdivision (c), including the clear and convincing burden of proof, when determining
whether to grant reunification services. (Id. at pp. 1075-1076.) The court concluded
“Mother could not evade the requirements of section 361.5 subdivision (c) merely by
waiting a few months and then seeking relief under section 388.” (Id. at p. 1076.) The
court in A.M. recognized the Legislature recently passed an amendment to section 388,
which would have authorized the juvenile court to apply a clear and convincing burden of
11
proof in the case before it, but properly declined to rely on the statute because the events
in that case arose before the effective date of the statute.5 (Id. at p. 1076.)
We respectfully disagree with the reasoning in A.M. Section 361.5, subdivision
(a) does not authorize a subsequent motion to modify seeking provision of services.6
(A.M., supra, 217 Cal.App.4th at p. 1075.) Absent a motion for reconsideration, in which
the court would have applied the burdens of proof and the conditions to be proved found
in section 361.5, subdivision (c), mother’s remedy in A.M. was to use section 388 to
modify the prior order. The passage of time from the initial order to the petition for
modification, by itself, is irrelevant. Regardless of the passage of time, the petitioner
must show changed circumstances and best interests of the minor to prevail. The shorter
5      The court did state, without citation, that the Legislature’s expressed view was that
the amendment was declarative of existing law. The A.M. court may have been misled by
a Senate Judiciary bill analysis which stated that existing law permitted a party to file for
reconsideration of an order denying services and cited section 388, subdivision (c). (Sen.
Judiciary Com., Analysis of Sen. Bill No. 1425 (2011-2012 Reg. Sess.) date of analysis
June 18, 2012, p. 3.) The citation in the bill analysis to subdivision (c) appears to have
been a misprint. That subdivision applies to terminating services prior to review hearings
and, as previously noted, does apply the clear and convincing burden of proof. The
correct subdivision for generally modifying a prior order is section 388, subdivision (a)
which, with some exceptions not applicable here, applies the preponderance burden of
proof. If the law at the time already provided for the higher burden of proof, no
amendment would have been necessary.
6       Section 361.5 deals with the juvenile court’s decision to grant or deny services at
the time the minor is removed. Subdivision (a) is concerned with the parent’s right to
services when the minor is removed and the time limits for offering services.
Subdivision (b) lists the circumstances under which services may be denied. Subdivision
(c) deals with circumstances under which services may nonetheless be ordered despite a
finding that bypass is proper under subdivision (b) and, by its terms, is limited to
decisions to offer services only when section 361.5 applies. The remaining subdivisions
deal with providing services when the whereabouts of an absent parent become known
(subd. (d)); providing services to incarcerated or institutionalized parents (subd. (e)); and
actions to be taken by the court and factors to be applied when bypass is found (subds.
(f)-(k)).
12
the time frame, the less likely that either can be shown. Similarly, the longer the minors
have been out of the home and stabilizing in relative or foster care, the less likely it is that
their best interests will be furthered by the proposed change. Further, the decision in
A.M. suggests that its construction of the statutes was consistent with existing law. (Id. at
p. 1076.) Such is not the case. Section 388 was amended by an urgency measure in
August 2012 to prevent application of the preponderance of the evidence burden of proof
to modifications of bypass orders pursuant to section 361.5 subdivisions (b)(4), (5) and
(6). The author and supporters of the bill made it clear that the bill constituted a change
in the law by imposing a higher burden of proof to modify bypass orders made pursuant
to those subdivisions. (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1425 (2011-
2012 Reg. Sess.) date of analysis Aug. 3, 2012, pp. 3-4; see also fn. 5, ante.)
In this case, the court relied on a flawed, if seductive, analysis in applying a higher
burden of proof than the statute requires. Remand is necessary to permit the court to
determine the issues applying the correct burden of proof.
B.     Denial of the Section 388 Petitions
Because we reverse on the question of the burden of proof to be applied to the
determination of the petitions to modify, we need not address the further question of
whether substantial evidence supported the denial of the petitions.
II
The parents contend the court and the Agency failed to comply with the ICWA
because no notice was sent to the Blackfeet tribe and there was no ruling on whether the
ICWA applied.
In the 2009 case, mother claimed no Indian heritage and father said he “may have”
Sioux ancestry but never gave further information. At the jurisdiction hearing on the
section 387 and section 342 petitions, the parents provided the ICWA-020 forms in which
mother claimed Blackfoot heritage and father claimed Cherokee heritage. Father
clarified that family research showed his heritage was Cherokee, not Sioux. The court
13
ordered the parents to meet with the social worker after the hearing and provide all
known ancestry information for notice to the tribes.
According to the disposition report, when the parents met with the social worker,
both parents denied Sioux heritage, stating that prior reports of that heritage were a
mistake, and claimed Cherokee heritage. The social worker indicated that notices were
sent to the tribes with information provided by the parents.
The Agency did send notices to the Cherokee tribes which included information
on father’s ancestry, but did not send notice to any other tribe or provide any ancestral
information for mother. None of the noticed tribes responded that the minors were
members or eligible for membership in the tribe. The court never ruled on the question
of whether the ICWA applied.
The 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. (

25 U.S.C. §§ 1901

, 1902, 1903(1), 1911(c), 1912.)
The juvenile court and the Agency have an affirmative duty to inquire at the outset of the
proceedings whether a child who is subject to the proceedings is, or may be, an Indian
child. (Cal. Rules of Court, rule 5.481(a).) If, after the petition is filed, the court “knows
or has reason to know that an Indian child is involved,” notice of the pending proceeding
and the right to intervene must be sent to the tribe or the Bureau of Indian Affairs (BIA)
if the tribal affiliation is not known. (

25 U.S.C. § 1912

; § 224.2; Cal. Rules of Court, rule
5.481(b).) Failure to comply with the notice provisions and determine whether the
ICWA applies is prejudicial error. (In re Kahlen W. (1991) 233 Cal.App.3d. 1414, 1424;
In re Desiree F. (2000) 

83 Cal.App.4th 460

, 472.)
The parties focus on the Blackfoot/Blackfeet confusion and claim error in the lack
of notice to the Blackfeet tribe. However, the state of the record is far murkier than the
parties’ arguments would suggest. In the prior dependency, mother claimed no Indian
heritage. In this proceeding she initially claimed Blackfoot heritage, however, the
14
reported facts after meeting with the social worker appear to suggest that mother retracted
her claim of Blackfoot heritage and either claimed Cherokee heritage, in which case, the
ICWA notice should have had some information about her ancestry, or claimed no
heritage, in which case the lack of information about her heritage in the ICWA notice was
harmless. The juvenile court never clarified the facts regarding claims of Indian heritage
or the adequacy of notice and never ruled on whether the ICWA applied. Because the
facts of mother’s claim and the notice required are unclear, we cannot imply the court
found the ICWA did not apply. (In re Levi U. (2000) 

78 Cal.App.4th 191

, 199.)
Neither the Agency nor the court performed the duties required under the ICWA.
(§ 224.3, subds. (a) & (c).) On receiving information of a claim of Indian heritage, the
court and the Agency must inquire as to the tribal connection and ancestry of the parent.
The Agency is then required to notice any federally recognized tribe of the proceeding
including all known information. (In re D.T. (2003) 

113 Cal.App.4th 1449

, 1454-1455.)
In order for the court to make a determination whether the notice requirements of
the ICWA have been satisfied, it must have sufficient facts, as established by the Agency,
about the claims of the parents, the extent of the inquiry, the results of the inquiry, the
notice provided any tribes and the responses of the tribes to the notices given. Without
these facts, the juvenile court is unable to find, explicitly or implicitly, whether the
ICWA applies. (In re Levi U., supra, 78 Cal.App.4th at p. 199; In re E.W. (2009) 

170 Cal.App.4th 396

, 404-405.) While the Agency may have performed its duty of inquiry, it
failed in its duty to document it and to provide clear information to the court so the court
could rule on the question of whether the ICWA applied.
However, the juvenile court also failed in its duty. Given the conflicting and
inadequate information on mother’s claim of Indian heritage, the court had a duty either
to require the Agency to provide a report with complete and accurate information
regarding the results of its inquiry and notice or to have the individual responsible for
notice to testify in court regarding the inquiry made, the results of the inquiry, and the
15
results of the notices sent. Only then could the court determine whether the ICWA
applied.
On remand, the Agency will have the opportunity to clarify mother’s claim, gather
her information, if necessary, provide notice to any identified tribes as required and
present the relevant facts to the juvenile court. We observe that there is frequently
confusion between the Blackfeet tribe, which is federally recognized, and the related
Blackfoot tribe which is found in Canada and thus not entitled to notice of dependency
proceedings. When Blackfoot heritage is claimed, part of the Agency’s duty of inquiry is
to clarify whether the parent is actually claiming Blackfoot or Blackfeet heritage so that it
can discharge its additional duty to notice the relevant tribes. Once the facts are clear, the
juvenile court will be able to make the appropriate finding regarding the applicability of
the ICWA to this case.
III
The parents contend the court erred in terminating parental rights, arguing they
established the beneficial parental relationship exception. We resolve this issue in the
event that, on remand, the juvenile court again denies the petitions for modification under
the proper burden of proof. In doing so, we note that the analysis of the beneficial
parental relationship exception, although similar in some respects, is distinct from the
analysis in a petition for modification of whether a proposed change of order is in the best
interests of the minors.
At the selection and implementation hearing held pursuant to section 366.26, a
juvenile court must choose one of the several “ ‘possible alternative permanent plans for
a minor child. . . . The permanent plan preferred by the Legislature is adoption.
[Citation.]’ [Citations.] If the court finds the child is adoptable, it must terminate
parental rights absent circumstances under which it would be detrimental to the child.
[Citation.]” (In re Ronell A. (1996) 

44 Cal.App.4th 1352

, 1368, original italics.) There
are only limited circumstances which permit the court to find a “compelling reason for
16
determining that termination [of parental rights] would be detrimental to the child.” (§
366.26, subd. (c)(1)(B).) The party claiming the exception has the burden of establishing
the existence of any circumstances which constitute an exception to termination of
parental rights. (In re Cristella C. (1992) 

6 Cal.App.4th 1363

, 1373; In re Melvin A.
(2000) 

82 Cal.App.4th 1243

, 1252; Cal. Rules of Court, rule 5.725(d)(4); Evid. Code,
§ 500.)
Termination of parental rights may be detrimental to the minor when: “The
parents have maintained regular visitation and contact with the child and the child would
benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) However, the
benefit to the child must promote “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 other words, the court balances the strength and quality of the natural
parent/child relationship in a tenuous placement against the security and the sense of
belonging a new family would confer. If severing the natural parent/child relationship
would deprive the child of a substantial, positive emotional attachment such that the child
would be greatly harmed, the preference for adoption is overcome and the natural
parent’s rights are not terminated.” (In re Autumn H. (1994) 

27 Cal.App.4th 567

, 575;
In re C.F. (2011) 

193 Cal.App.4th 549

, 555.) “Even frequent and loving contact is not
sufficient to establish this benefit absent a significant, positive emotional attachment
between parent and child. [Citations.]” (In re I.R., supra, 226 Cal.App.4th at p. 213.)
The parents regularly attended visits. The question is whether the minors would
benefit from continuing contact. The minors repeatedly said they wanted to return home,
however, the minors were also described as parentified. Undoubtedly the desire to go
home was due in part to an emotional connection with the parents and in part to a need to
act as caretakers for them. The strong desire to return home became more ambivalent as
the minors became accustomed to a placement with structure and consistent expectations.
The court found mother had a bond with T.S. but father had no significant bond with the
17
minors. Even assuming some level of bonding between the parents and the minors,
examination of the relationship between the minors and the parents discloses that the
bond did not constitute a substantial positive emotional attachment. At the outset of the
dependency, mother told T.S. she and L.S., Jr., might have to go to foster care and T.S.
became hysterical. Mother could not understand why making such a statement to a child
might be inappropriate. Mother’s explanation to the social worker was that she saw
nothing wrong with it and thought T.S. deserved to know what was going on. This
showed little understanding of age-appropriate communication and a certain indifference
to the effect such a statement would have on an eight year old who had been in foster care
before. About the time of the section 387 petitions, father instructed the minors to lie
about where they had been staying and threatened them with foster care. Father showed
more concern about his own needs than those of the minors to be comforted and
reassured in a chaotic situation. Father showed this same indifference before the
disposition hearing when he displayed anger toward T.S., making her upset for saying
something that got the parents in trouble. T.S. believed she needed to take responsibility
for father’s anger just as she had taken responsibility for father losing a job because she
had not set the clock to daylight savings time. While visits had many positive aspects,
there were also negatives. Both minors had behavioral problems after visits. L.S., Jr.,
did not want to leave school to go to visits. In visits, the parents were inconsistent in
handling the minors’ outbursts, talked about the case or other adult matters in front of the
minors, showed poor judgment, and did not set and enforce clear boundaries on behavior.
To avoid termination of parental rights, it is not enough to show that a parent-child
bond exists. The quality of the bond must also favor continued contact. Here, the overall
relationship between the parents and the minors did not show a positive emotional
attachment and was marked by parental indifference to the minors’ core needs for
structure and stability. As a result, the benefit of continued contact did not outweigh the
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minors’ needs for permanence and stability. The court did not err in finding the
beneficial parental relationship exception did not apply.
DISPOSITION
The orders denying the petitions for modification and terminating parental rights
are reversed. The case is remanded to the juvenile court for the limited purposes of
applying the proper burden of proof to the parents’ petitions for modification and
determining whether the Agency complied with the notice provisions of the ICWA and
whether the ICWA applies in this case. If the juvenile court grants the petitions for
modification and/or finds after inquiry and any necessary notice that the ICWA applies,
the court shall hold such further proceedings as are appropriate. If the juvenile court
denies the petitions for modification and finds that the ICWA does not apply, the orders
terminating parental rights shall be reinstated.
NICHOLSON             , Acting P. J.
We concur:
BUTZ                   , J.
DUARTE                 , J.
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