Opinion
E080161
07-12-2023
In re Y.H., a Person Coming Under the Juvenile Court Law. v. L.G., Defendant and Appellant. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Law Offices of Vincent W. Davis & Associates and Vincent W. Davis for Defendant and Appellant. Tom Bunton, County Counsel, Svetlana Kauper, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J288720. Erin K. Alexander, Judge. Affirmed.
Law Offices of Vincent W. Davis & Associates and Vincent W. Davis for Defendant and Appellant.
Tom Bunton, County Counsel, Svetlana Kauper, Deputy County Counsel for Plaintiff and Respondent.
OPINION
MILLER J.
Defendant and appellant L.G. (Father) appeals after the denial of his Welfare and Institutions Code section 388 petitions. In April 2021, Y.H. (a girl, born August 2019; Minor) was removed from his care after he kept her from plaintiff and respondent County of San Bernardino Department of Public Social Services (Department) for several months after a section 300 petition was filed. Father did not complete his reunification services and they were terminated. After his services were terminated, Father provided names of several relatives to be considered for placement of Minor. He also claimed for the first time that the Indian Child Welfare Act of 1978 (ICWA) applied as his family were members of the Freedmen Cherokee Tribe and that notice must be given to the tribe.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
"[B]ecause ICWA uses the term 'Indian,' we do the same for consistency, even though we recognize that other terms, such as 'Native American' or 'indigenous,' are preferred by many." (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
When Minor was not placed with the named relatives, Father brought a section 388 petition seeking to have Minor placed with his relatives. Father also filed a section 388 petition seeking to have his reunification services reinstated. Father filed a motion seeking to overturn all prior findings as to ICWA and have the Freedmen Cherokee Tribe noticed of all hearings. The section 388 petitions were summarily denied by the juvenile court. The juvenile court continued the section 366.26 hearing in order for the Department to provide additional ICWA notices.
Father contends on appeal that (1) the juvenile court erred by denying his section 388 petitions without a hearing as he had showed changed circumstances by completing his case plan and that Minor should be placed with paternal relatives; (2) the juvenile court erred by denying his request to place Minor with paternal relatives under section 361.3; and (3) the trial court failed to meet its duties of notice under ICWA when it did not notice the Freedmen Cherokee Tribe despite Father claiming Indian heritage.
FACTUAL AND PROCEDURAL HISTORY
This court has incorporated four separate cases into this appeal. The records in this case, case No. E080161, will be referred to as "CT" and "RT." The records in case No. E077634 will be referred to as "4CT" and "4RT"; the records in case No. E078451, will be referred to as "1CT" and "1RT;" and the records in case No. E079735 will be referred to as "5CT" and "5RT."
A. DETENTION
Father came to the attention of the Department due to an incident involving domestic violence against Minor's mother, L.H. (Mother). Mother reported to a social worker at the Department on March 25, 2021, that she was seeking to get out of her relationship with Father. She indicated that on February 14, 2021, Father forced her to get naked, get on her hands and knees, tied a collar around her neck, and made her eat dog food out of a bowl. Mother had left Father's house with J.H. and was staying at a hotel. On March 26, 2021, Mother was interviewed by the Department. She had been in a relationship with Father for three to four years. Mother claimed that Father was a pimp and had moved a prostitute into his house. Father oftentimes yelled at her and kicked her. Mother also contended that Father's relative had hit her in the face with a closed fist on March 25, 2021, because of a Facebook post. Mother did not take Minor when she left because Father would not let her. Mother and J.H. were provided housing in a domestic violence shelter.
The detention report also included another child, J.H. (a boy, born June 2012). This child is not part of the appeal and will only be mentioned if necessary for the resolution of the claims raised by Father.
A detention warrant for Minor was obtained on March 30, 2021. The Department attempted to serve the warrant but it was reported by a woman present at Father's home that Father and Minor were not home. Father contacted the Department on the same day and advised that he was not going to be turning over Minor to their care. He insisted that Minor was not in danger. On March 31, 2021, Father sent the social worker a photograph of Minor on a bed and she was completely naked. He indicated it was proof she had no bruises or other marks. The Department had been unable to detain Minor. The Department recommended that Minor stay in the custody of Mother on a family maintenance plan.
On April 2, 2021, the Department filed a section 300 petition for Minor, against Mother and Father. It was alleged pursuant to section 300, subdivision (b), failure to protect, that Father had a history of engaging in domestic violence with Mother, which placed Minor at risk of substantial neglect and/or abuse; Father failed to provide a safe and appropriate living environment for Minor; and Father had an extensive criminal history, which included battery. He was currently on parole.
The Department checked the box that ICWA inquiry had been made and there was reason to believe Minor may be an Indian child. The tribe affiliation was unknown.
The detention hearing was held on April 5, 2021. Mother advised the juvenile court that she had Cheyenne tribal affiliation. She was unaware where Father and Minor were located. The juvenile court found a prima facie showing had been made and Minor was ordered detained from Father but would remain in Mother's custody. Mother was to remain in a domestic violence shelter and was not to reside with Father.
An amended section 300 petition was filed for Minor on April 23, 2021 (amended petition). It added an allegation against Father under section 300, subdivision (a), that he had caused serious harm to J.H., thereby posing a significant risk of harm to Minor. It further added allegations pursuant to section 300, subdivision (b), against Mother that she had failed to protect Minor by engaging in acts of domestic violence; Father had struck J.H. and Mother failed to protect J.H. from physical abuse, which put Minor at risk of harm; Mother exposed Minor to individuals known to be unsafe; Mother had engaged in substance abuse with Father in the presence of Minor; Mother had a prior case with the Department with J.H.; and Mother suffered from untreated mental health conditions. There were further allegations against Father that he had engaged in substance abuse in Minor's presence and had abducted Minor. An additional allegation pursuant to section 300, subdivision (g), no provision for support, was alleged against Father that he had abducted Minor. Further, there were allegations under section 300, subdivision (j), against both Mother and Father for abusing J.H. and failing to provide him with adequate care, which put Minor at risk of similar neglect and risk.
B. JURISDICTION/DISPOSITION REPORT AND HEARING
The jurisdiction/disposition report was filed on April 21, 2021. It was recommended that the Department find the allegations in the amended petition true. It was further recommended that Minor be detained from Father and remain in the custody of Mother and that no reunification services be granted to Father pursuant to section 361.5, subdivisions (b)(1) (parent location unknown) and (b)(15) (willful abduction of child). Father refused to turn Minor over to the Department and stated he would not be attending the court proceedings.
It had further been reported by Mother that Father had abused J.H. while in his care. He had hit J.H. with a belt and a plastic rod causing bruising. In December 2020, Mother and Father were staying with one of Father's relatives. J.H. urinated on the floor and Father was upset with Mother how she handled the situation. On the drive home, while J.H. and Minor were in the car, he hit Mother and forced her to take off her clothes. When they arrived home, he hit and strangled her with a belt. In January 2021, he forced her to strip naked in front of another man and hit her with a wire hanger. In February 2021, he got mad at her because Minor had head lice and he blamed Mother. He threatened to shoot her. Mother gave further detail of the incident involving Father putting a dog collar on her and making her crawl around like a dog. She insisted that members of Father's family had participated in abusing her, including Father's adult daughter C.H. (Daughter).
The Department also stated that Mother and Father had used marijuana in the presence of Minor.
The Department was recommending that Mother continue with custody of Minor as long as Mother stayed in a domestic violence shelter, did not contact Father, and completed a case plan. It was recommended that Father be named the presumed father but be denied any reunification services. Father's lengthy criminal history was provided, which included burglary and a violation of parole.
The jurisdiction/disposition hearing was called on April 26, 2021. Father was present. He had provided his mailing address but not the location of Minor. Father was advised there was a warrant for Minor's removal from his custody. Father stated that Minor was in Nevada and that he did not know the address. Minor was staying with Daughter. Father was ordered to turn over Minor to the Department the following day. Father provided an ICWA-020 form stating that he had no Indian ancestry and he filed the Family Find and ICWA inquiry form but and provided no family contact information. The matter was continued for Father to surrender Minor to the Department.
At the next hearing, Father was present in court. He had turned Minor over to the Department. Mother and Father denied the allegations in the amended petition and the matter was set for a contested hearing.
On June 11, 2021, a second amended petition was filed by the Department (second amended petition) reflecting that Minor had been detained from Mother. Minor had been detained from Mother because she left the shelter. Minor was placed in foster care. Father had been arrested on a charge of violation of his parole and was in custody. A hearing was conducted on the second amended petition. Father requested that his current wife (stepmother) be considered for placement. The juvenile court found that Minor was to remain detained in a foster home.
Additional information was provided to the juvenile court on June 29, 2021. Father had been released from incarceration and the charge of parole violation was dropped. Father had advised the Department that he did not want Daughter to care for Minor. He claimed she used drugs and was engaged to a gang member who had been involved in a shootout with police. The Department was recommending reunification services be given to Mother and Father.
The contested jurisdiction/disposition hearing was conducted on June 30, 2021. Father contended that all of the allegations in the second amended petition were based solely on reports from Mother, who was not credible. Father claimed to have been with stepmother a majority of Minor's life and there was little contact between Mother and Father.
The juvenile court found the allegations in the second amended petition true except as follows. The allegation that Father had an extensive criminal history was removed. Also removed were the allegations that Father had willfully abducted Minor and also that he had been arrested for his violation of parole and could not care for Minor. The section 300, subdivision (g), allegations against Father were also removed. Several allegations against Mother were also removed.
Father was named the presumed father. Father was granted reunification services. According to the minute order, the juvenile court found that ICWA did not apply.
C. REVIEW REPORTS AND HEARING
A six-month status review report was filed on December 13, 2021. It was recommended that Minor remain in the foster home of Ms. L. and that reunification services for Father be continued. Father had not identified any new relatives who could care for Minor.
On November 26, 2021, Father had been arrested on a charge of corporal injury on a spouse and was released on bail. Minor was meeting all of her emotional and social developmental milestones; she was thriving in the foster home. Father had participated in therapy sessions but the therapist reported that Father believed Mother was lying, he seemed distracted during sessions, and further sessions would not be helpful. Father had failed to complete his parenting education class but was referred to another class. Father completed anger management and domestic violence classes and provided the completion certificates. Out of 12 drug tests, Father had six positive drug tests and six no-shows. He was referred to outpatient drug treatment. Father was consistent with his visitation only missing two visits and ending a few visits early. The Department was not recommending that Minor be returned to Father's care. He still needed to complete reunification services and was not compliant with random drug testing.
The six-month status review hearing was set for December 15, 2021. The juvenile court noted that it was concerned there was not a substantial probability Minor would be returned home and the juvenile court set the matter contested. An addendum report was submitted to the juvenile court on January 20, 2022. Father had not participated in parenting classes during the reporting period. Father was a no show for one drug test and tested positive on another occasion. Father claimed to test positive for marijuana based on using CBD cream on his back for pain but had failed to provide a doctor's note to substantiate the claim. Father had failed to show for three visits with Minor and ended one visit early.
The six-month review hearing was heard on January 26, 2022. Father was present. Stepmother testified on behalf of Father. Stepmother addressed Father's recent arrest for domestic violence. She insisted that Father did not commit domestic violence against her and claimed she was attacked by a female neighbor, not Father. The charges had been dropped against Father. Father also testified that he did not commit domestic violence against stepmother. Father explained that his most recent arrest was for a parole violation. He had been riding with a friend who had a gun in the car. The charges had been dropped. Father insisted he was attempting to take the parenting classes and was aware he had to complete an outpatient drug program but had not heard back from either agency in order to complete them. He was in the process of obtaining a doctor's note for the CBD cream.
After the testimony, the juvenile court found that Father had failed to participate or make substantive progress in the court-ordered case plan. The juvenile court noted that there were inconsistencies between Father's testimony and the reports. The juvenile court was concerned that he had not participated in the outpatient program, which had been ordered six months prior, and that he did not appear to benefit from services. The juvenile court was concerned about the arrests for domestic violence. Further, the juvenile court was concerned about Father's therapist reports that he took no responsibility for his actions and made no good faith attempt to address the issues.
The juvenile court terminated Father's reunification services. The court further stated, "I'll note that Father would have to redo domestic violence, complete therapy, showing insight and recognition as to the issues that . . . were involved in this case, test consistently and complete outpatient and then show a period of stability and sobriety." The matter was set for a section 366.26 hearing.
D. ICWA NOTICE FOR PATERNAL RELATIVES; RELATIVE PLACEMENT; AND SECTION 388 PETITIONS
At a hearing on May 26, 2022, at which the juvenile court set the section 366.26 hearing, the juvenile court inquired of both parties as to Indian ancestry. The juvenile court noted as to Father that he had previously completed an ICWA-020 form stating he had no Indian ancestry. Father now stated that paternal great-grandmother may have Indian ancestry, specifically Cherokee. The juvenile court also noted that Father had indicated that a paternal uncle was seeking to be evaluated for placement of Minor. The juvenile court told Father's counsel to have the paternal uncle contact the Department. It ordered the Department to give notice to all three Cherokee tribes.
A paternal cousin (Cousin), filed a section 388 petition on May 31, 2022. Cousin insisted that he could provide alternative placement for Minor and the Department had failed to contact him despite him being willing to take Minor. He stated that Minor had lived with him and Father the first 19 to 20 months of her life. The juvenile court ordered the Department to reply to the section 388 petition.
The Department responded that Cousin had claimed Minor lived with him for 19 to 20 months; however, Minor had been detained when she was seven months old. This statement was untrue. Father first gave notice regarding Cousin seeking placement on May 9, 2022. The Department investigated Cousin, and found two prior child protective services cases involving Cousin. Cousin informed the Department that he lived in a two- bedroom apartment with his girlfriend, his son and his girlfriend's three children. There was not a room for Minor but she could sleep in the living room. Cousin also had an active warrant for possession of marijuana for sale and prior convictions including battery and possession of cocaine base for sale.. Cousin was not appropriate for placement of Minor.
Minor's paternal grandmother (PGM) had contacted the Department on June 7, 2022, regarding placement of Minor. She advised the Department she had helped care for Minor when she was born but had moved to Nebraska. PGM still lived in Nebraska and was advised she would have to start the process for placement in Nebraska. PGM contacted the Department on July 6, 2022, and left a voicemail message for the social worker. She accused the social worker of never contacting her. She threatened the social worker stating the Department was taking away her grandchild, and that she would do what she had to do. She said, "You really do not want to do this. You don't." In a later conversation, PGM stated that she wanted Minor "with her own people," and claimed to be of Cherokee descent. The social workers assured PGM that they would seek an ICPC order from the juvenile court to have her evaluated for placement of Minor.
The Department provided further information on the ICWA inquiry. On May 26, 2022, Father was contacted and was asked to provide information on PGM, aunts and uncles. Father only sent minimal information regarding PGM. PGM reported being Cherokee and was seeking membership. PGM provided first names and some last names of relatives but no other information. The Bureau of Indian Affairs and the Cherokee Nation responded to notice from the Department denying any membership.
A hearing was held on August 11, 2022. The trial court noted that a continuance was necessary in order for the Department to conduct additional ICWA inquiry. There were relatives who had sought placement who were not on the ICWA notice and others present in the courtroom that day. PGM was present in court and reported being part of the Freedmen Cherokee Tribe. The Department was ordered to follow up with the other two Cherokee tribes, Eastern Band and Keetoowah. Father's counsel requested that the Freedmen Tribe be noticed as he believed recently became a federally recognized tribe. The matter was continued.
Father filed his own section 388 petition on August 12, 2022. Father sought to have reunification services reinstated. Father alleged that since his reunification services were terminated on January 26, 2022, Father completed anger management and domestic violence classes. This was a changed circumstance and new evidence since the last court hearing. Father had changed and would be a better father. It was in Minor's best interests to be returned to Father. Attached to the section 388 petition was the certificate of completion for domestic violence classes, dated November 23, 2021, and a certificate of completion for anger management classes, dated November 17, 2021. The petition was summarily denied by the juvenile court on the grounds that new evidence was not presented and there was no change of circumstances. The juvenile court provided, "[Father]'s completion of anger management and domestic violence were known and considered at the time when services were terminated as reflected in the 12/15/21 report and do not constitute a change in circumstance." The juvenile court further found that Father had failed to accept responsibility for his actions and failed to complete other aspects of his case plan. A notice of appeal from the denial of the section 388 petition was filed on September 2, 2022. On December 13, 2022, this court dismissed the appeal as abandoned.
A second section 388 petition was filed by Father on September 6, 2022. Father was requesting that Minor be placed with PGM, Daughter, or Cousin. Father's counsel argued that relative placement was preferred over foster care placement pursuant to section 361.3. It was in Minor's best interest to be placed with a relative. Father also filed a motion for the Department to provide proper notice to the Freedmen Cherokee Tribe and to set aside the prior ICWA findings.
Additional information was provided to the court on September 20, 2022. Father was having trouble making visits with Minor; on two occasions he fell asleep during the visit.
At the hearing, the juvenile court stated that it had reviewed legal materials in regards to the Freedmen Cherokee Tribe. The juvenile court found that enrollment or eligibility based on being in the Freedmen Tribe was controlled by the Cherokee Nation. The juvenile court ordered the Department to notify the Cherokee Nation that the claim of ancestry was under the Freedmen Tribe. The juvenile court advised Father's counsel that it would need legal authority to support that the Freedmen Tribe was a separately recognized tribe that needed to be noticed. ICWA notice to the Cherokee Nation was provided to the juvenile court. The names of Mother, Father, Minor and PGM were provided to the Cheyenne River Sioux Tribe, the Eastern Band of Cherokee, the United Keetoowah Band of Cherokee, and the Cherokee Nation. E. SECTION 366.26 REPORT AND HEARING ON SECTION 388 PETITIONS
The Department filed their section 366.26 report on May 17, 2022. It recommended that the parental rights of Mother and Father be terminated and that Minor be freed for adoption by the foster parents. Minor was being assessed for a possible autism diagnosis. She had exhibited aggressive behaviors against other children and had anger issues. She referred to her foster parents as "mamma" and "papa." Minor (age 2) had been with her foster parents since June 2021, and they wanted to adopt her.
The section 388 hearings were held on October 11, 2022. Cousin was present. Cousin disclosed there was Cherokee heritage in the family and he believed a grandfather was "Blackfoot." Daughter, who was also present, stated that she was aware of Cherokee ancestry.
We place "Blackfoot" in quotation marks because "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." (In re L.S. (2014) 230 Cal.App.4th 1183, 1198.)
The juvenile court addressed Father's motion to reverse all the previous ICWA findings. Father's counsel asked that the juvenile court not make an ICWA finding until notice had been made to the Freedmen Tribe and responses had been received. The juvenile court again advised Father's counsel pursuant to its research that the Cherokee Nation would make the decision on behalf of the Freedmen Tribe members. The juvenile court asked for any authority that the Freedmen tribe was a separate, federally recognized tribe, and that it be submitted before October 25, 2022. The juvenile court also noted that the previous notices were incorrect and needed to be sent again, including all known relatives. The juvenile court ordered that it also include Blackfeet on the notices and that lineage was pursuant to the Freedmen Tribe. The juvenile court indicated it was still considering the ICWA notices and would not make a final ICWA decision until after the new notices were sent.
The juvenile court then addressed Father's section 388 petition regarding placement with relatives. Minor's counsel objected to placement with Daughter, stating that Minor had been in the same placement since she was detained. Since reunification services had been terminated, there was no relative preference. Daughter had not been assessed for placement. The juvenile court noted that it found true based on the allegations in the jurisdiction/disposition report that Daughter was involved in the violence against Mother. Further, Father had alleged in a review report, that Daughter had Father arrested by falsely accusing him of domestic violence against her. Father had accused Daughter of abusing controlled substances and being engaged to a gang member who had been involved in a shootout with police. Father stated she was not appropriate for placement of Minor. The juvenile court concluded there was no change in circumstances in regards to Daughter. She made no effort to maintain a relationship with Minor. Minor had been in stable care. It was not in Minor's best interests to be placed with Daughter.
The juvenile court then addressed placement with Cousin. Father's counsel insisted Cousin had contacted the Department seeking placement and assessment, but nothing was done by the Department. Cousin did have some history with the Department with another child but he had reunified with that child. Father's counsel also asked for a waiver for Cousin due to his criminal history. Minor objected to Cousin having placement of Minor, citing to his criminal history and prior history with the Department. The Department also argued that Cousin had no relationship with Minor and it would not be in Minor's best interests.
The juvenile court noted the information regarding when Cousin lived with Minor was inconsistent as Father had stated that Minor was with Daughter at the same time. Further, the request was not made until well after the adoption hearing was set. Additionally, Cousin had denied any criminal record originally but it was discovered he had a warrant for his arrest. Finally, there were no current relationship between Cousin and Minor. It was not in Minor's best interests to be placed with Cousin.
The juvenile court then addressed placement with PGM. Father only argued that the "biological bond" between PGM and Minor was strong. Father's counsel argued that PGM genuinely wanted Minor in her care. The juvenile court should disregard reports that she had left messages with the Department. Father's counsel asked that an ICPC be initiated and that decision on the 388 petition be delayed until it could be completed. Minor's counsel objected, referring to allegations by stepmother that PGM had sexually abused Father. Further, reunification services had been terminated and Minor had been in her placement for one year. Minor had no relationship with PGM and was bonded with her caregivers.
The juvenile court denied the section 388 petition as to PGM. Father failed to disclose relatives early in the case and PGM had no relationship with Minor. The juvenile court would deny based on it not being in Minor's best interest. PGM did not appear to understand the extent of Father's involvement in the case and the Department was concerned about her protective capacity.
The section 388 petitions were denied. The section 366.26 hearing was continued to December 5, 2022. Father filed an appeal from the denial of the section 388 petitions on November 8, 2022.
DISCUSSION
A. SECTION 388 PETITIONS
Father contends the juvenile court erred by summarily denying his section 388 petitions. Father claims that he demonstrated a change in circumstances and modification of the previous placement order was in the Minor's best interest. The changed circumstances were that Father had completed the case plan within a reasonable time. The juvenile court further erred by denying his section 388 petition seeking placement of Minor with PGM, Daughter, or Cousin.
Ordinarily, a parent would not have standing to appeal the denial of placement with a relative because once parental rights are terminated, the parent no longer has an interest in their children's companionship, care and management. (In re K.C. (2011) 52 Cal.4th 231, 236.) In this case Father's parental rights have not been terminated, and he arguably can appeal the denial of his section 388 petitions.
"Under section 388, a parent may petition to modify a prior order 'upon grounds of change of circumstance or new evidence.' [Citations.] The juvenile court shall order a hearing where 'it appears that the best interests of the child . . . may be promoted' by the new order." (In re K.L. (2016) 248 Cal.App.4th 52, 61 (K.L.)
" 'There are two parts to the prima facie showing: The [petitioner] must demonstrate (1) [either] 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 C.J.W. (2007) 157 Cal.App.4th 1075, 1079.)" 'A prima facie case is made if the allegations demonstrate that these two elements are supported by probable cause. [Citations.] It is not made, however, if the allegations would fail to sustain a favorable decision even if they were found to be true at a hearing. [Citations.] While the petition must be liberally construed in favor of its sufficiency [citations], the allegations must nonetheless describe specifically how the petition will advance the child's best interests.' [Citation.] In determining whether the petition makes the required showing, the court may consider the entire factual and procedural history of the case." (K.L., supra, 248 Cal.App.4th at pp. 61-62; see also In re Anthony W. (2001) 87 Cal.App.4th 246, 250 ["The petition may not be conclusory. '[S]pecific allegations describing the evidence constituting the proffered changed circumstances or new evidence' is required."].)
"The conditional language of section 388 makes clear that the hearing is only to be held if it appears that the best interests of the child may be promoted by the proposed change of order, which necessarily contemplates that a court need not order a hearing if this element is absent from the showing made by the petition." (In re Zachary G. (1999) 77 Cal.App.4th 799, 807, fn. omitted.) "We review a juvenile court's decision to deny a section 388 petition without an evidentiary hearing for abuse of discretion." (K.L., supra, 248 Cal.App.4th at p. 62.)
Initially, Father has waived his claim by failing to provide proper citations to the record to support his claims. Father does not provide citations to the petitions or citations to evidence in support of his claims, where he presented a prima facie case to support a hearing, or any other citation to the record in his argument. This is especially important in this case based on the number of section 388 petitions filed and that the record contains four separate cases. "The juvenile court's judgment is presumed to be correct, and it is appellant's burden to affirmatively show error. [Citation.] To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error." (In re S.C. (2006) 138 Cal.App.4th 396, 408.) The appellant must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." (Cal. Rules of Court, rule 8.204(a)(1)(C).) Father's conclusory claims of error without proper citation to the record fail. (S.C., at p. 408.)
Even were we to consider his claims, the juvenile court properly summarily denied his first section 388 petition seeking to have his reunification services reinstated. Father filed the first section 388 petition on August 12, 2022, in which he claimed there were changed circumstances since the denial of reunification services on January 26, 2022. He insisted he completed his case plan and attached as evidence his completion certificates for anger management classes and domestic violence classes, both dated November 2021. He insisted he had learned to control his anger and could provide a healthy environment for Minor.
Father did not show changed circumstances. The classes referred to in the section 388 petition had been completed in November 2021, before the juvenile court even terminated Father's reunification services. There was no further information provided in the section 388 petition as to whether he had completed any other services. Additionally, it was not in Minor's best interests to have reunification services reinstated. Father at the outset of the dependency proceedings refused for several months to turn over Minor to the Department. Moreover, Father was repeatedly arrested and in custody during the dependency proceedings for parole violations and claims of domestic violence. Father was not consistent in his visitation, missing visits, being late and even falling to sleep. There was no evidence presented in support of the section 388 petition as how it was in Minor's best interests to return to Father's care. The juvenile court properly denied Father's first section 388 petition.
As for the second section 388 petition filed by Father on September 6, 2022, in which he asked that Minor be placed with PGM, Daughter, or Cousin, he did not indicate there was a change in circumstances. Father only alleged that Minor was deeply bonded with her relatives and that family members were preferred over foster care placement.
Father was unable to show changed circumstances. As for Daughter, Father stated on June 29, 2021, that she should not care for Minor because she falsely accused him of domestic violence, she abused drugs, and her fiancee was a gang member who engaged in criminal acts. There was no showing that Daughter had changed this behavior. Further, the Department originally denied Cousin placement of Minor based on his history with the Department, his criminal record, and the fact he had insufficient housing for Minor. Father made no effort to show that these circumstances had changed. Finally, the Department had been concerned about placement of Minor with PGM due to her behavior toward the Department and due to allegations she had sexually abused Father. Again, Father made no attempt to explain how these circumstances had changed to warrant placement of Minor with PGM. The juvenile court properly denied Father's second 388 petition on the ground there was no changed circumstances.
Father further failed to provide evidence to support his prima facie case that it was in Minor's best interests to be placed with Daughter, PGM or Cousin. As stated, the Department was concerned about each of these paternal relatives based on criminal history, actions during the dependency proceedings, and accusations of abuse. The Department documented contacts with these relatives and the actions taken by the Department for each paternal relative. Minor was reported to be flourishing in her foster parents' care, and her foster parents were willing to adopt her. The section 388 petition did not show that it would be in Minor's best interest to be placed with any of the paternal relatives as there was no showing of any bond with the relatives. The allegations in a section 388 petition must be "specific regarding the evidence to be presented and must not be conclusory." (Alayah J. (2017) 9 Cal.App.5th 469, 478.) Here, the section 388 petition provided in conclusory form that it would be better for Minor to be in the care of relatives but did not show how the relatives had any bond or relationship with Minor. Minor had not visited with Cousin, PGM, or Cierra since she was detained. She only spent time with PGM when she was born and spent limited time with Daughter and Cousin The juvenile court did not abuse its discretion by denying Father's section 388 petitions.
B. RELATIVE PLACEMENT PREFERENCE
Father further contends the juvenile court erred by not properly considering any of the paternal relatives that were presented for placement as they were entitled to relative preference pursuant to section 361.3. Father has forfeited this claim on appeal.
In his opening brief, Father states that the Department failed to place Minor with paternal relatives. He alleges that the juvenile court did not properly consider any of the paternal relatives presented for placement despite the paternal relatives continually requesting placement. Father insists that the Department ignored telephone calls from paternal relatives, failed to conduct home assessments and refused to respond to requests.
Father provides no citations to the record in his argument. He does not point this court to any part of the record establishing that paternal relatives contacted the Department and were ignored by the Department. He also does not cite to the numerous reports by the Department assessing the paternal relatives and their suitability to care for Minor. An appellate court is not required to search through the record in an attempt to find the point asserted and such a failure to cite the record may deem unsupported arguments forfeited. (In re S.C., supra, 138 Cal.App.4th at pp. 406-407.) This argument has been forfeited by Father.
C. ICWA NOTICE
Father complains that the juvenile court erred by failing to notice the Freedmen Cherokee Tribe so it could be given an opportunity to provide a determinative response as to whether Minor was an Indian child. Such argument is premature and is rejected.
"ICWA notice is required to be sent whenever it is known or there is reason to know that an Indian child is involved in a 'child custody proceeding' within the meaning of ICWA, which includes a proceeding for temporary or long-term foster care or guardianship placement, termination of parental rights, preadoptive placement after termination of parental rights, or adoptive placement. [Citation.] In such cases, notice must be sent to all federally recognized tribes of which the child may be a member or eligible for membership." (In re M.R. (2017) 7 Cal.App.5th 886, 903-904.) The juvenile court has an affirmative and continuing duty to inquire into a child's Indian status. (In re Isaiah W. (2016) 1 Cal.5th 1, 10-11.)
At the last hearing prior to Father filing his notice of appeal, held on October 11, 2022, the juvenile court ordered the Department to provide notice to Cherokee tribes seeking information as to whether Minor was an Indian child. The juvenile court ordered that the Department state in the notice that lineage was through the Freedmen Tribe. The juvenile court also ordered Father to provide further legal authority that the Freedmen Tribe is a federally recognized tribe, by October 25, 2022. The juvenile court did not make its final ICWA finding, waiting until the new notices had been sent and responses had been received. Father filed an appeal on November 8, 2022. Accordingly, the juvenile court has not made a final determination as to whether ICWA applies to this case.
" 'Ripeness' refers to the requirements of a current controversy." (City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 59.) An issue is not ripe for review unless and until it is "sufficiently concrete to allow judicial resolution even in the absence of a precise factual context." (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170.)
In J.J. v. Superior Court (2022) 81 Cal.App.5th 447, the mother filed a petition for extraordinary relief pursuant to California Rules of Court, rule 8.452 after the jurisdiction/disposition hearing. The juvenile court had not made any ICWA findings. On appeal, she contended the juvenile court erred by failing to comply with the ICWA inquiry and notice requirements. (J.J., at pp. 450, 455, 460-461.) The appellate court found, "Here, because the juvenile court made no final ICWA ruling at or before the challenged dispositional hearing as to whether the ICWA applied to the proceedings, mother's claim is premature. That is, ICWA issues are not ripe for review." (Id. at p. 461.) It further provided, "Because the dependency case is still ongoing, any perceived deficiencies with ICWA inquiry and noticing may still be resolved during the normal course of the ongoing dependency proceedings. Therefore, we decline mother's invitation to assess the adequacy of the ICWA inquiry and noticing process that is, based on our assessment of the record, still ongoing as well." (Ibid.)
The issue of whether proper notice was given pursuant to ICWA is not ripe for decision and we will not address it in this appeal.
DISPOSITION
The orders denying Father's section 388 petitions are affirmed in full.
We concur: McKINSTER Acting P. J. FIELDS J.