1

Filed 7/8/16 In re L .B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 L.B. et al ., Person s Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,

v. M.J. et al ., Defendant s and Appellant s . E065322 (Super.Ct.No s . J256007 & J256190 & J256191)
OPINION

APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin and Cheryl C. Kersey , Judge s . Affirmed in part; reversed in part with directions. Emery El Habiby, under appointment by the Court of Appeal, for Defendant and Appellant M.J. Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and Appellant J.B.2

Jean

- Rene Basle, County Counsel, Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent. M.J. (mother) is the biological mother of L.B. (a girl, born July 2014) , M.L. ( a girl, born June 2013) , and J u .B. (a boy, born January 2012) ( collectively, the children)

. J.B. (father) is the presumed father. Both mother and father (coll ectively, parents) appeal from the juvenile court’s order terminating their parental rights under Welfare and
Institutions Code 1 section 366.26. Mother does not challenge the substantive findings made by the juvenile court, but contends that the court’s o rders must be reversed because plaintiff and respondent San Bernardino County Department of Children and Family Services ( the Department ) failed to comply with the notice requirement of the Indian Child Welfare Act (ICWA) ( 25 U.S.C. § 1901 et seq. ). Fathe r contends that the court erred in terminating his parental rights because he had a beneficial relationship with the children under section 366.26, subdivision (c)(1)(B)(i). We agree with mother that the Department failed to comply with ICWA , and remand t he matter with directions to the juvenile court to ensure the Department ’s compliance with ICWA’s notice requirement. We affirm the orders of the juvenile court in all other respects.

FACTUAL AND PROCEDURAL HISTORY
A

. BENEFICIAL RELATIONSHIP BACKGROUND Mother has general neglect referrals dating back to 2008

. In July 2013, the Department investigated a referral. Mother and her six children were living in a filthy

1 All statutory references are to the Welfare and Institutions Code unless otherwise specified.3

house. She was not paying rent and the children lacked sufficient food. By September 18, 2013, the Department substantiated mother’s neglect. The four older children were placed with a non

- offending father. Mother engaged in a voluntary family maintenance plan for M.L. and J.B., addressing her mental health issues and daily use of marijuana and alcohol. The siblings had features suggestive of fetal alcohol syndrome. Father resided out of state and was uninvolved in the parenting. Mother’s family maintenance plan was termi nated in November 2013 when her whereabouts became unknown. On July 29, 2014, the Department received a referral indicating mother’s severe neglect of L.B., who was born at 31 weeks of gestation and tested positive for methamphetamine and opiates . Mo t her had a history of drug and alcohol use while pregnant, and six other children were removed by the Department

. Father had not visited
L.B. A relative reported that parents were looking for a place to li v e. On August 14, 2014, the Department detained L.B. out of parental custody in a local hospital. M.L. and J.B. were th en ages one and two and one - half, respectively; their whereabouts were unknown. On August 18, 2014, the Department filed a section 300 petition for L.B. The petition addresse d mother’s mental health issues and parental substance abuse , and father’s failu re to protect L.B. (§ 300, subd. (b)); and indicated that parents’ whereabouts were unknown at the time (§300, subd. (g)). On August 19, 2014, at the detention hearing for L.B., parents were present when the court detained L.B. and set a jurisdictional an d dispositional hearing for September 9,
2014.4

In August of 2014, parents separated after engaging in domestic violence with each other. The Department located mother with M.L. and J.B., and detained M.L. and
J.B. in foster care that month. An aunt indi cated that she took care of M.L. and J.B. because mother was irresponsible. M.L.’s immunizations were out of date, and she suffered a burn on her arm that was not properly treated. On September 2, 2014, the Department filed section 300 petitions for M.L. and J.B. The petitions addressed mother’s mental health issues, parental substance abuse, and domestic violence. (§300, subd. (b).) On September 3, 2014, at the detention hearing for the two children, the court detain ed M.L. and J.B. in foster care and set a jurisdictional and dispositional hearing for September 24, 2014. Eventually, the court scheduled a mediation to address jurisdictional and dispositional issues, and consolidated M.L.’s and J.B.’s cases with L.B.’s case. The Department recommended that the court sustain the section 300 petitions, remove the children from parental custody, and offer family reunification services to mother and the presumed father of the children. Mother abused substances and received a psychotropic medication prescri ption at a crisis clinic. M.J. was born positive for marijuana. In utero, L.B. was exposed to methamphetamine, alcohol, marijuana, nicotine, and Norco. Mother admitted she began smoking marijuana at age 11 and used methamphetamine thereafter, including with father. Parents stole drugs and were drug runners. Father denied abusing substances, but admitted to smoking “dope ” ; father tested positive for marijuana in August and September 2014.5

P arents denied engaging in domestic violence. Mother, however, stated that father “smacked” her in the face. Father did not recognize that this was violent. He also did not understand that he failed to protect the children. Father lived in New York from March to December 2013 ; he sought placement of the children with him there. At the time, he was 56 years old and had 14 children. Nine of father’s children were over the age of 18. Tw o of his children were ages seven and 11, and lived with their mother . Father did not finish high school, but he had worked in carpentry, brick laying, and the railroad and roofing industries. Most recently, father worked at an a nimal shelter t hrough a welfare program. P arents were known to “squat” at properties and not pay rent. The Department placed the children in different foster homes, and looked for a single home that could take the three siblings. Mother had a warrant for driving without a license. Although father admitted that he was arrested for possessing an unregistered handgun, his criminal record indicated multiple arrests for battery, lewd conduct with a child, statutory rape, contributing to the delinque ncy of a minor, and possession of marijuana for sale. Father’s only conviction, however, was for posse ssion of marijuana for sale. On September 24 and November 1 9, 2014, the court sustained section 300 allegations regarding mother’s mental health issues and substance abuse, father smoking marijuana and failing to protect the children, and parents engaging in domestic violence. The court removed the children from parents, found father to be the presumed father, ordered family reunification services for parents, maintained the children in foster care, and set the six

- month review hearing for April 6, 2015.6

The report for the April 6, 2015, six

- month review hearing recommended termination of family reunification services. Father denied he needed substance abuse treatment, yet tested positive for marijuana and missed random tests in March 2015. Father atten ded weekly supervised visits, but seemed unable to give the children adequate attention and care. He attended therapy ; more counseling was recommended. 2 Father investigated enrolling in substance abuse treatment in March 2015, but conveyed to the social worker that the program was too long “so [ the Department ] can all ( expletive ) off.” On April 6, 2015, parents failed to appear for the review hearing. Therefore, the

cou rt set a short cause trial for April 21, 2015. T he Department ’s addendum report stat ed that father tested positive for marijuana and missed a random drug test in April 2015. Father also became more aggressive with the Department and the caregivers. Mother appeared under the influence at visits. On April 21, 2015, parents attended the s hort cause trial. The court therefore set a long cause trial for May 8, 2015. On May 8, 2015, parents attended the trial. Father’s counsel provided evidence
that father enrolled in a substance abuse treatment program and reportedly had a positive attitu de toward recovery. After reviewing the evidence and listening to argument from mother’s counsel and father’s counsel, the court terminated family reunification services and set a section 366.26 hearing for September 8, 2015.

2 The factual background focuses on father more than mother because of the different issues raised in their respective briefs.7

In the section 366.26 report , the Department requested a 90

- day continuance to allow the children to be transitioned to an adoptive home and for t he Department to perform an adoption assessment. After services were terminated in May 2015, parents had transportation difficulties and attended only two visits, which were described as “mediocre.” T he Department reported, “there seems to be a disconnection between the children and parents.” On September 8, 2015 , t he court continued the section 366.26 hearing to December 7, 2015.
On October 1, 2015, father filed a section 388 petition requesting return of the children to father , or family reunification services. The court summarily denied the petition, finding it lacked a prima facie case.
T he Department filed an addendum section 36 6.26 report. In the report, the Department recommended termination of parental rights to permit the children to be adopted by Mr. and M r s. D. The children were placed with the prospective adoptive parents on October 22, 2015, and adjusted quickly. This was their third placeme nt. The two older children would app roach the prospective adoptive parents to receive hugs , and enjoy ed the attention they receive d at the ho me . When the prospective adoptive parents

return ed home, the children ran to them, yelling , “dad dad ” and “mama.” L.B. wa s very clingy and love d to be held. The prospective adoptive parents reported that the children fit r ight into their home and appear ed to be happy. The prospective adoptive mother expressed, “They are great little kids and I love them all!” She also stated that “every kid should have a chance. With the right environment, they c an blossom into special people

. . . . God led us to have them in our home.”8

The prospective adoptive parents married in 2010. T he prospective ad optive father wa s a police officer. Previously, he worked as a child counselor in a group home. The prospective adoptive mother wa s a court office assistant for the superior court. They stated they ha d a great family structure and good balance. They ha d no medical issues and no use of tobacco or drugs. They reported infrequent social use of alcohol. They intend ed to meet the social needs of the children through their large families, church and school. For parents, the juvenile court ordered weekly su pervised visits, two hours in duration. The prospective adoptive parents reside d in Fresno, but the visits were to be held at an ag ency office in Riverside. P arents had trouble securing reliable transportation. From May to September, they attended only two visits. From September to November 2015 father attended visits more regularly than mother. Again, the quality of the visits was described as mediocre since there seemed to be a disconnect between parents and the children. Father also paid more atten tion to L.B. than to M.L. or J.B. On December 7, 2015, parents attended the section 366.26 hearing ; trial was set for January 6, 2016.
A Department addendum report indicated the children appeared bonded with the prospective adoptive parents. The children were healthy, well

- mannered, and happy. The prospective adoptive parents took the children to medical appointments and connected with services, apparently to resolve language and motor

- skill delays found in the children.9

On January 6, 2016, at the section 366.26 trial, the court admitted the Department reports into evidence, parents testified, the court listened to argument, and then rendered a judgment. Mother testified that she disagreed with the termination of her parental rights. She

atten ded supervised visits, but missed visits due to transportation issues. The children called her “mommy” and did not want the visits to end. J.B. and M.L. told her they loved her. L.B. gave her kisses. Father testified that M.L. and J.B. lived with him u ntil three weeks before they were removed from mother, but L.B. never lived with him. He attended each visit until the children were moved. When visits were in Riverside, they conflicted with his classes. He did not visit the children in Fresno as he wa s unfamiliar with that city. The children called him “daddy,” and were excited to see him. He brought them food, played with them, and changed diapers for M.L. and L.B. He guessed that the children did not like leaving the visits because they tried to g et him to take them home. He was religious and did not use drugs. Counsel for mother and father each argued that their client s had beneficial relationships with the children, an exception to adoption. The children’s counsel argued that the parent/child bond did not apply. The children were young, adoptable and doing extremely well in their placement. The Department ’s counsel concurred with the children’s counsel. The juvenile court found that the children were adoptable. They adjusted to their new pl acement and were bonded with their prospective adoptive parents. From October10

2015 to January 6, 201 6 , parents missed visits, but that was excusable since the ch ildren lived far away. However the court noted that before the children moved to Fresno, from May to September 2015, parents only attended two visits, and the quality of the visits was mediocre. The court also noted that father became aggressive and exhibited negative behavior at visits, and mother may have been “ under the influence. ” Visits wer e sporad ic and always supervised. P arents failed to prove that they had beneficial relationships constituting exceptions to adoption. Hence, the court terminated parental rights. The court also advised parents of their appeal rights.
B

. ICWA NOTICING B ACKGROUND On August 18, 2014, the Department initiated the dependency for L.B. On September 2, 2014, the Department initiated dependencies for J.B. and M.L. The Indian Child Inquiry Attachments (ICWA

- 010) filed with the section 300 petitions indicated t hat the children had no known Indian ancestry. On August 19, 2014, at L.B.’s detention hearing, parents filed Parental Notification of Indian Status forms (ICWA

- 020) indicating that neither parent had Indian ancestry. In oral statements, mother confirmed that she had no Indian ancestry. Father, however, stated that his grandmother was Cherokee. He provided his grandmother’s name but did not know her date of birth. The court set L.B.’s jurisdictional and dispositional hearing for September 9, 2014. At the detention hearing for J.B. and M.L., mother was present but not father. Mother filed an ICWA

- 020 indicating she had no Indian ancestry. She orally advised the court that neither she nor father had Indian ancestry.11

The jurisdictional and dispositiona l report for L.B. s t ated , “mother indicated she may be affiliated with the Blackfoot or Cherokee tribes. The father . . . indicated he may have Native American heritage.” However, father had stated previously that his grandmother was Cherokee. The juris dictional and dispositional report for J.B. and M.L. stated mother told the court that she had no Indian heritage , and father stated that “there may be Indian H eritage.” On August 20, 2014, for L.B.’s case, the ICWA clerk mailed the Notice of Child Custod y Proceeding for Indian Child forms (ICWA

- 030) by certified mai l, noticing the three federally recognized Chero kee tribes and single federally recognized Blackfeet Tribe, the BIA, Secretary of the Interior, and parents, regarding the hearing set for Septem ber 9, 2014. On September 4, 2014, the Department filed a report for the court’s inspection in L.B.’s case reflecting ICWA notice. The ICWA

- 030s identified L.B. and parents with first and last names, and included mother’s maiden name, respective dates of birth, current and former addresses. The forms stated the Cherokee and Blackfeet heritage stemmed from father’s relatives. For mother, no tribe was stated but the BIA

was listed , suggesting mother’s possible Indian heritage. As relating to L.B., paternal and maternal grandmothers were stated on the ICWA

030, along with their maiden names, current and former addresses, birthdates and locations of birth. For the paternal gran dmother, her date of death and the s tate where she died were indicated. S he reportedly had Blackfeet heritage. “No information available” was stated for the maternal grandfather, but substantial information was provided for the paternal grandfather, who was deceased, but had Cherokee heritage. Two maternal great

-12

grand mothers and paternal great

- grand mothers were also stated. As to the paternal great

grand mothers, the forms indicated that they were deceased, one in the “1900 s; New York,” the other in Maryland. The one from New York had Blackfeet heritage. The one from Marylan d, the one who father had named in court, had Cherokee heritage. Two paternal great

- grand fathers were also stated. One of them had Cherokee heritage and died in Maryland in the 1 960s. The other paternal great

- grandfather had Blackfeet heritage and died in New York in the 1980s. The ICWA

- 030 form s were su bstantially complete as to L.B. When the Department did not have the requested information, it stated, “No information available.” Correspondence fro m the Cherokee Nation and United Keetoowah and of Ch erokee Indians stated L.B. was not considered an “Indian child” in those tribes. On September 22, 2014, the Department filed a report for the co urt’s inspection in L.B.’s case, indicating that no tribe confirmed membership or eligibility for membership
in the tribe. Correspondence from the Cherokee Tribe of North Carolina and Blackfeet Tribe indicated that L.B. was not an Indian child. On September 24, 2014, the court sustained part of the petition allegations for the three siblings, and set the six

- mont h review hearing for April 6, 2015. On October 14, 2014, the ICWA clerk mailed the ICWA

- 030s on behalf of J.B. and M.L. to the BIA, Secretary of the Interior, and parents, noticing them for the six

month review hearing scheduled for April 6, 2015. On O ctober 16, 2014, the Department filed a report allowing the court to inspect the ICWA noticing documents. The ICWA

030s were substantially complete, as with the ICWA

- 030 for L.B.’s case, but the BIA13

was stated as parents’ tribe of heritage, and the form o mitted the Blackfeet and Cherokee tribes concerning father’s heritage. No notice was sent to either of the two tribes. On November 17, 2014, the Department filed another report for court inspection reflecting ICWA noticing provided in the cases for J.B. and M.L. On November 19, 2014, the court sustained the balance of the allegations for the siblings, addressed disposition issues, and confirmed the review hearing. At the November 19, 2014 , hearing, by adopting the findings in the jurisdictional and disp osition report, the court found that ICWA may apply and ICWA noticing requirements were initia t ed. However, on November 6, 2014, a report by the ICWA clerk was filed indicating no affirmative response of tribal membership was received, hence, ICWA did not apply. On November 6, the court signed a proposed order finding that ICWA did not apply. The attorneys all received the report and proposed order/finding; they posed no objections. On January 8, 2015, the Department filed an ICWA report. The Departmen t advised that 65 days had passed since the BIA and Secretary of the Interior had been notified of J.B.’s and M.L.’s proceedings. The report summarized the notice sent and received. Attached correspondence from the BIA indicated that the BIA does not det ermine tribe eligibility. On January 8, 2015, the juvenile court signed a proposed order , which had been presented with the report, finding that ICWA did not apply. The parties did not object.14

On May 8 , 2015, at the consolidated six

- month review hearing , the trial court terminated services, set the section 366.26 hearing, and provided parents with writ rights. No party raised any ICWA issues. No writs were filed. On January 6, 2016, the court held a consolidated section 366.26 trial. The court terminated parental rights and provided parents with their appellate rights. No ICWA issues were raised. On February 2, 201 6 , parents filed their notices of appeal. DISCUS SION
A. THE ICWA NOTICE WAS INADEQUATE Mother contends that both sets of ICWA notices failed to identify mother’s tribal affiliation with the Cherokee and Blackfeet tribes. Therefore, mother asserts lack of compliance with ICWA inquiry and noticing requ irements mandates reversal. “Congress enacted ICWA to further the federal policy ‘“that, where possible, an Indian child should remain in the Indian community . . . .”’” ( In re W.B. (2012) 55 Cal.4th 30, 48.) “When applicable, ICWA imposes three types of requirements: notice, procedural rules, and enforcement. [Citation.] First, if the court knows or has reason to know that an ‘“Indian child”’ is involved in a ‘“child custody proceeding,”’ . . . the social services agency must send notice to the chi ld’s parent, Indian custodian, and tribe by registered mail, with return receipt requested. . . . [¶] Next, after notice has been given, the child’s tribe has ‘a right to intervene at any point in the proceeding.’ . . . [¶] Finally, an enforcement prov ision offers recourse if an Indian child has been removed from15

parental custody in violation of ICWA.” ( Id. at pp. 48

- 49.) “Thorough compliance with ICWA is required.” ( In re J.M. (2012) 206 Cal.App.4th 375, 381.) Of concern here is the notice requirement. If an agency “knows or has reason to know that an Indian child is involved” in a dependency proceeding, the agency must send notice of the proceeding to, among others, a representative of all potentially interested Indian tribes. (§ 224.2, s ubd. (a).) “[F]ederal and state law require that the notice sent to the potentially concerned tribes include ‘available information about the maternal and paternal grandparents and great

- grandparents, including maiden, married and former names or aliases; birthdates; place of birth and death; current and former addresses; tribal enrollment numbers; and other identifying data.’ [Citations.] To fulfill its responsibility, the Agency has an affirmative and continuing duty to inquire about, and if possible

o btain, this information. [Citations.] Thus, a social worker who knows or has reason to know the child is Indian ‘is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing t he parents, Indian custodian, and extended family members to gather the information required in paragraph (5) of subdivision (a) of Section 224.2 . . . .’ [Citation.] That information ‘ shall include’ ‘[a]ll names known of the Indian child’s biological pa rents, grandparents, and great

grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identif ying information, if known.’ [Citation.] Because of their critical importance, ICWA’s notice requirements are strictly construed.” ( In re A.G. (2012) 204 Cal.App.4th 1390, 1396

- 1397 .)16

In this case, mother claims that the Department failed to comply with ICWA because the notices failed to properly identify the tri bes of heritage for each parent. In its
response, the Department agrees with mother. Here, as summarized in detail ante , as to L.B., the Department sent ICWA notices to Bl ackfee t and Cherokee tribes relating to father’s claim of Indian ancestry. However, no ICWA notices were sent to any Indian tribes regarding mother’s alleged Indian ancestry. As to M.L. and J.B., there was no reference to any tribe and no notice was sent to any tribe. Although mother initially claimed that neither parent had any Indian ancestry, the Department was fully aware that father had claimed Indian heritage in L.B.’s case. Moreover, the jurisdictional and disposition report for M.L. and J.B. not ed that although mother denied Indian heritage, father indicated that he may have Indian heritage. ICWA notices were only sent to the BIA and Secretary of the Interior, which is insufficient notice when a federally recognized tribe of heritage has been na med by either parent. ( In re Alice M. (2008) 161 Cal.App.4th 1189, 1202.) Therefore, based on the above, the trial court’s findings that proper notice was given under the ICWA, and/or whether ICWA applies are not supported by substantial evidence. A lim ited reversal and remand to clarify and cure any ICW A noticing defects is warranted.17

B. THE PARENTAL BENEFIT EXCEPT I ON DID NOT APPLY Father claims that the juvenile court erred when it terminated his parental rights because the parental benefit excepti on applied. 3 In general, at a section 366.26 hearing, if the juvenile court finds that a child is adoptable it must terminate parental rights. (§ 366.26, subds. (b)(1) & (c)(1).) This rule, however, is subject to a number of statutory exceptions (§ 366.26, subds. (c)(1)(A) & (c)(1)(B)(i)

- (vi)), including the beneficial parental relationship exception, which applies when “termination would be detrimental to the child” bec ause “[t]he 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).) “When applying the beneficial parent

- child relationship exception, the court balances the strength and quality of the parent

- child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. If severing the existing parental 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 a re not terminated.’ ” ( In re B.D. (2008) 159 Cal.App.4th 1218, 1234

- 1235.) “‘[F]or the exc eption to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative , such as an aunt.’ ” ( In re Jason J. (2009) 175 Cal.App.4th

3 Mo ther joins in father’s argument.18

922, 938.) The p arent must show more than frequent and loving contact or pleasant visits. ( In re Dakota H . (2005) 132 Cal.App.4th 212, 229.) “‘A biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree , but that does not meet the child’s need for a parent.’ ” ( Jason J ., at p. 937.) “The parent contesting the termination of parental rights bears the burden of showing both regular visitat ion and contact and the benefit to the child in maintaining the parent

- c hild relationship. ” ( In re Helen W . (2007) 150 Cal.App.4th 71, 80

- 81.) This court must affirm a juvenile court’s rejection of these exceptions if the ruling is supported by substanti al evidence. ( In re Zachary G . (1999) 77 Cal.App.4th 799, 809.) We review “the evidence most favorabl[e] to the prevailing party and indulg[e] in all legitimate and
reasonable inferences to uphold the court’s ruling. ” ( In re S.B

. (2008) 164 Cal.App.4th 289, 297 .) Because Mother had the burden of proof, we must affirm unless there w as “indisputable evidence [in her favor, which] no reasonable trier of fact could have rejected.” ( In re Sheila B . (1993) 19 Cal.App.4th 187, 200.) In this case, father fail ed to meet the first requi rement of the exception

— that he regularly visited the children. (§ 366.26, subd. (c)(1)(A).) Here, father had some transportation issues that occasionally interfered with his ability to visit the children. The court did not con sider missed visits ( when the children’s change in placement was to a19

remote location) when the court determined that father’s visits were sporadic. The court noted, “[l]et me begin by staying I know the children were placed in Fresno in October so
I am n ot going to deal with the lack of visitation from October 22nd to the present day because I understand the hardship on [ parents ], so I want to make it clear to all the parties that is not factoring into the Court’s decision.” Although father testified that he visited regularly with the children, the court went on to comment on the sporadic visits father had with the children during the pendency of this dependency. We note that it is the trial court’s role to assess the credibility of witnesses and to w eigh the evidence to resolve conflicts in the evidence. ( In re Casey D. (1999) 70 Cal.App.4th 38, 52

- 53.) Here, based on the evidence presented and weighing the credibility of the witnesses, the court determined that father did not regularly visit the ch ildren. Even if father visited regularly and consistently, the beneficial parental relationship exception requires both regular visitation and benefit to the child. Here, father has failed to establish benefit to the children. The second requirement f or the parental benefit exception to apply requires that fathe r prove that the children would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(A).) “ The existence of this relationship is determined by ‘[ t ]he age of the child, the portion of the child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect of interaction between parent and child, an d the child’s particular
needs. ’ ” ( In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206, citing In re Autumn H. (1994) 27 Cal.Ap p.4th 567.)20

In this case, at the time of the contested section 366.26 hearing, the children were ages one and one

- half, two and one

- half, and four years old. When they were initially removed, M .L. and J.B. were ages one and two and one

- ha lf years old, re spectively. L. B. was detained at birth and never resided with father. She spent her entire life either in the custody of the Department or under its supervision. The other two siblings spent only a year or two out of the Department custody. Accordingly , the majority of the children’ s lives were spent out of father ’s custody. Although father characterizes parents as the “only constant parental figures” for the children, the record shows otherwise. As noted ante , L.B. was detained at birth. She had spent 16 months in foster care by the time of the section 366.26 hearing. Father did not visit L.B. at the hospital in the two weeks after her birth, and father never had custody of L.B. As for the other children : M.L. spent approximately 14 months in p arental custody, and 16 months out of parental custody ; and J.B. spent approximately two and

one - half years in parental custody, and 16 months out of parental custody, when the section 366.26 hearing was held. Father, however, was not the primary caregive r for M.L. and J.B.; the primary caregiver was mother. Father resided on the east coast for several months. Moreover, parents did not have a s table relationship ; a s example s , father doubted his paternity as to L.B., mother engaged in a voluntary family m aintenance plan alone before the dependency commenced, parents had split up for some time due to domestic violence, and father reside d out of state for a period o f time and frequently traveled out of state. Moreover, parental visits were descried as “medi ocre,” since there was an apparent disconnect between parents and the children.21

Furthermore, the children need ed a permanent and stable placement

— which is the required focus of the section 366.26 hearing. Here, the children have already suffered instab ility. They were initially split up for some time, and resided in three foster care placements. When parents had custody of the children, they did not have stable housing. Instead, they squatted at various properties. The children’s prospective adoptiv e parents not only provide them with stability in housing, they also provide the children with stability in their daily lives. The prospective adoptive parents take the children to medical appointments and connect the children with services to resolve dev elopmental delays. The children are bonded with the prospective adoptive parents and express affection . The children hug the prospective adoptive parents, call them “dad dad” and “mama,” and love to be held by them. Moreover, the children need “a home e nvironment free from the negative effects of substance abuse,” which is recognized as “a necessary condition for the safety, protection and physical and emotional well

- being” of children. (§ 300.2.) Mother admitted she began smoking marijuana at age 11 , and used methamphetamine thereafter, including with father. Mother and father stole drugs and were drug runners. Father denied abusing substances but admitted to “smoking dope,” and tested positive fo r marijuana in this case. P arents also denied engag ing in domestic violence , y et, mother stated that father “ smacked ” her in the face. Father did not see this act as being violent. Dissimilar to parents , the prospective adoptive parents do not live substance

- abusing lifestyles, do not use tobacco or drug s, and consume alcohol rarely on22

social occasions. They intend to meet the children’s social needs through their families, church and school events. Based on the above, we find there is substantial evidence to support the juvenile court’s finding that father failed to meet his burden of proof to establish the beneficial parental relationship exception applied in his case. Father’s reliance on In re Am ber M. (2002) 103 Cal.App.4th 681, is misplaced. In Amber M. , the appellate court held the lower court erred in finding that an exception to adoption did not apply where the mother maintained regular visits with the children, and the psychologist, therapi sts, and court

- appointed special advocate unanimously stated that mother had demonstrated the existence of mother’s beneficial parental relationship, which outweighed the benefits of adoption. ( Id. at pp. 689

- 691.) In this case, there are no such facts o r evidence to support father’s beneficial parental relationship with the
chil dren. As noted in detail ante , father failed to meet the threshold requirement of demonstrating regular visitation with the children. Father’s reliance on In re S.B. , supra , 164 Cal.App.4th 289 is also misplaced. In that case, the father “complied with every aspect of his case plan,” and maintained his sobriety and consistently visited with his child. ( Id. at p. 293.) The father’s physical and emotional health problems, howeve r, prevented him from reunifying with his child. Although the child was placed with her grandmother , who wanted to adopt her, a bonding study showed that the child had a “moderate” and “fairly strong” bond with her father. The agency recommended terminat ion of parental rights, but hoped that the grandmother would allow the father to visit. The juvenile court found that there was no evidence that23

it wo uld be greatly detrimental to terminate the child’s relationship with the father and terminated parental rights. ( Id. at p. 296.) The father appealed and the appellate court agreed with the father finding that the child had a “substantial, positive emotional attachment” with the father. ( Id. at pp. 293, 301.) This case is distinguishable. Here, father ha d no medical issues preventing him from reunifying with the children. Moreover, unlike the father in In re S.B. , father resisted reform as he continued to engage in substance abuse and minimized his role in the removal of the children. Although he viewed his visits with the children as positive, the Department reported to the contrary. Father was not parental with the children, he did not adequately tend to them during supervised visits, and continued to bring unhealthy food to the visits even after he h ad been asked not to bring such items. In sum, fa ther has the burden to establish the applicability of the beneficial parental relationship exception in the low er court; on appeal, he has the burden of showing that the juvenile court’s ruling was an abuse of discretion. W e conclude that fa ther has failed to meet this burden. DISPOSITION The juvenile court’s finding that ICWA is not applicable is vacated. The case is remanded to the juvenile court with directions to ensure the Department has complie d with the notice requirements of ICWA. If, after new notice s , any of the Cherokee or Blackfeet tribes claim the children are e ligible for membership and seek to intervene, the juvenile court shall proceed in conformity with all the provisions of ICWA. I f, on the other hand, none of the tribes make such claim s following new notice s , or the court24

concludes the Department ’s efforts at compliance were adequate, the inapplicability finding and the order terminating parents’ parental rights and adopting a perm anent plan

as to the children shall be reinstated.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER J.

We concur:

McKINSTER Acting P. J.

CODRINGTON J.