Filed 6/12/14 In re J.G. CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

In re J.G. et al., Persons Coming Under the Juvenile Court Law.

___________________ __________________ LOS ANGELES COUN TY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,

v.
K.G.,
Defendant and Appellant. B252795
(Los Angeles County Super. Ct. No. CK95349)

APPEAL from orders of the Superior Court of Los Angeles County, Philip L. Soto, J udge. Affirmed. William Hook, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the County Counsel, John F. Krattli, County Counsel, James M. Owens, Assistant County Couns el, Jeanette Cauble, Deputy Co unty Counsel, for Plaintiff and Respondent.

_____________ ____________2 K.G. (mother) appeals from the juvenile court’s orders of October 31, 2013 denying her petition under Welfare and Institutions Code section 388 1 for an order reinstating reunification services for her twin son and daughter and terminating parental rights. She contends: (1) denial of the petiti on was an abuse of discretion; (2) substantial evidence does not support the finding no exception to term ination existed; and (3) the court failed to insure complian ce with the Indian Child Welfare Act of 1978 (the ICWA) (92 Stat. 3069, 25 U.S.C. §§ 1901-1963). We affirm. STATEMENT OF FACTS AND PROCEDURE Son and daughter (“children”), born to mother in August 2012, 2 were detained by the Department of Children and Family Servi ces (“Department”) at birth, and a section 300 petition was filed, because mother wa s incarcerated followi ng an arrest for a probation violation and shoplifting. 3 The children were placed in a foster home when they were released from the hospital in September 2012. On October 10, 2012, the ch ildren were declared depend ents of the court under section 300, subdivisions (b) and (g), based on sustained allegations that there was a substantial risk they would suffer serious p hysical harm or illness and the parent was incarcerated and could not arrange for their car e, in that mother was incarcerated and failed to make an appropriate plan for their ongoing care and supervision. Custody was taken from mother, reunification services were ordered, mother was ordered to participate in individual counseling, and mother was gr anted monitored visitation three times per week upon her release from jail. Mother was released from jail on Oc tober 24, 2012, and visitation was arranged for her. Mother missed most of her scheduled visits. She appeared distracted and impatient during visits. She did not want to change the children’s diapers.

1 All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated. 2 The court found mother’s boyfriend, Ray G. (also known as Ray B.) was an alleged father. 3 Mother had a criminal history of co nvictions, beginning in 2007, for receiving known stolen property and burglary. She pr eviously spent eight months in jail and currently was on probation.3 On March 20, 2013, mother was arrested for possession of a controlled substance and being under the influence of a controlled su bstance. She was released on March 21,
2013. Mother failed to reunify w ith the children. On May 10 , 2013, the court terminated
reunification services and set the matter for a section 366.26 hearing to determine a permanent plan for the childre n. Mother was granted monitored visits once a week for
two hours. On June 12, 2013, mother entered a si x-month, inpatient drug rehabilitation program. On July 2, 2013, she was convicte d of possession of a controlled substance and being under the influence of a controlled subs tance. She was placed on probation, which required her to complete a drug treatment progr am. She was admonished to remain in her inpatient drug program or be remanded.
Mother attended about half of the weekly visits the cour t allowed. Daughter was
uncomfortable with mother and resisted mother’s attempts to interact with her. On occasions, mother was not able to soothe the children or hand le their needs without foster mother’s prompting or help. The childre n did not refer to mother as “mom” or “mommy.” The foster parents wanted to adopt the children. In June 2013, their adoptive home study was approved. The children had b een living with the foster parents since they were one week old. They were well cared for and thri ved. They were bonded to the foster parents. On October 3, 2013, mother filed a pe tition under section 388, asking the court to change the May 10, 2013 order th at terminated family reunifi cation services and issue an order reinstating reunification services, setting a section 366.22 [18-month review] hearing, and vacating the sec tion 366.26 hearing. Mother alleged circumstances had changed in that she substan tially rehabilitated herself a nd maternal grandmother was recognized to be of Yaqui desc ent. Mother alleged the chan ge of order was in the best
interests of the children in th at she had regular visits with the children and there was a bond. The juvenile court set the petition for a hearing on October 31 , 2013, the date set4 for the section 366.26 hearing. Mother testified her criminal case would be dismissed in late January 2014 if she completed her drug program. On October 31, 2013, after a hearing, the court denied the section 388 petition, terminated parental rights, a nd ordered a permanent plan of adoption. Concerning denial of the section 388 petition, the court found mother did not have a place for the children to live or a way to obtain a resi dence for them, had not completed her drug program, did not
have her criminal case dismisse d, was not in school, and did not have a job. The court stated: “I realize that you ’re changing. You’re turning the corner, but you have not
turned that corner. And I’v e got to make a call based on this situation at this time because these are young children under three. The law only allows six months of services. And if you are not ready to get th e children back or subs tantially complying,
then services are cut off and we go to a [section 366.26 hear ing] which is what is going on today.” The court stated: “I have to make a call for these children now. . . . [¶] . . . I will make the best call I can taking into account the best interests of the children[,] who
have been with their caretakers virtually from birth, who are in a loving home, who have
attached themselves to these caretakers and it would be upse tting to them to be removed especially if we are not able to get them ba ck to you in a place where they could be as
well taken care of. Because we don’t know what is going to happe n [with you] in the
next six months . . . .” “These children of this age deserve perman ency quickly so they can grow up in a household that they know is theirs and is not going to be upset in a year or so by a parent that takes [h er] time to get things going.” Concerning the determination to termin ate parental rights, the court found the children were adoptable and no exception to adoption applied. The court designated the foster parents as the pros pective adoptive parents. DISCUSSION
1. Denial of the section 388 petiti on was not an abus e of discretion.
Mother contends denial of her section 388 petition was an abus e of discretion. We conclude the dependency cour t did not abuse its discretion.5 Section 388 provides for modification of an order of the juvenile court when the moving party shows there is new evidence or changed circumstances and demonstrates the requested modification is in the child’s best interests. 4 ( In re Stephanie M. (1994) 7 Cal.4th 295, 317.) “The petition is addressed to the sound discretion of the juvenile
court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.” ( In re Jasmon O. (1994) 8 Cal.4th 398, 415.) “ ‘The appropriate test for
abuse of discretion is whethe r the trial court exceeded the bounds of reason. When two or more inferences can reasonably be de duced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ [Citations.]” ( In re Stephanie M. , supra , at pp. 318-319.) If substantial evidence supports the determ ination, the order is not an abuse of discretion. ( In re Jasmon O. , supra , 8 Cal.4th at pp. 415-416.) In determining whether substantial evidence supports the factual fi ndings, “all intendments are in favor of the judgment and [we] must accept as true th e evidence which tends to establish the correctness of the findings as made, taking in to account as well all inferences which might reasonably have been dr awn by the trial court.” ( Crogan v. Metz (1956) 47 Cal.2d 398, 403-404.) The party requesting the cha nge of order has the burden of proof. ( In re Stephanie M. , supra , 7 Cal.4th at p. 317.)
Once reunification services are terminated , the focus shifts from reunification to
the child’s need for permanency and stability. ( In re Marilyn H. (1993) 5 Cal.4th 295, 309.) “[O]ur Supreme Court made it very clear in [ In re Jasmon O., supra, 8 Cal.4th at pp. 408, 414-422] that the disruption of an existing psychological bond between dependent children and their caretakers is an extremely important factor bearing on any section 388 motion.” ( In re Kimberly F. (1997) 56 Cal.App.4th 519, 531.) Moreover, time is of the essence, especi ally to young childre n; when it comes to securing a stable,

4 Section 388, subdivision (a)(1) provides in pertinent part that a parent “may, upon grounds of change of circumst ance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of c ourt previously made . . . . [¶] . . . [¶] (d) If it appears that the best interests of th e child . . . may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . .”6 permanent home for children, prolonged uncert ainty is not in their best interest. ( In re Josiah Z. (2005) 36 Cal.4th 664, 674 [“ ‘There is little that can be as detrimental to a child’s sound development as uncertain ty over whether he is to remain in his current “home,” under the care of his parents or foster parents, especially when such uncertainty is prolonged.’ [C itation.]”].) (See § 361.5, subd. (a)(1)(B) [with certain exceptions, parents of children under the age of three years when detained have six months to reunify].) “Childhood does not wa it for the parent to become adequate.” ( In re Marilyn H., supra, at p. 310.)
When reunification services were termin ated, mother was using illegal drugs and had a pending criminal case. Her visitation wa s sporadic and required to be monitored. She did not fully engage with the children and did not have a parent-child relationship
with them. When th e section 388 petition was heard, mother had not completed a drug rehabilitation program and her criminal cas e was still pending. Her visitation was sporadic and remained monitored. Daughter’s resistance to engage with mother, the fact
the children did not refer to her as their mo ther, and mother’s inab ility to consistently
handle the children’s n eeds without help, indicate mothe r’s relationship with the children had not progressed to the point where she played a parental role. This is substantial evidence supporting the juvenile court's fi nding that circumstances had not changed. Reinstating mother’s reunification servic es would delay permanency for these very young children, whose st atus was in limbo for 14 mont hs. It was unknown whether, at the end of a further period of services , mother would be rehabilitated, succeed in getting her pending criminal charges dismissed, develop a parent-child relationship with the children, and be able to provide for them in a stable home. The children were bonded to their caretakers, in whose home they ha d lived and thrived their whole lives. The caretakers were ready to provi de permanency for the childre n. This is substantial evidence supporting the finding mother’s ch anging circumstances were not such that7 reinstating reunification servic es and vacating the order setting a section 366.26 hearing
was in the best interests of the children. 5 Mother reargues the evidence and asks us to reweigh it. This we will not do. ( In re Stephanie M. , supra , 7 Cal.4th at pp. 318-319.) As substantial evidence supports the findings, denial of the section 388 petition was not an abuse of discretion.
2. Substantial evidence suppor ts the finding that the exception in section 366.26, subdivision (c)(1)(B)(i), does not apply. Mother contends the depe ndency court abused its discretion in terminating parental rights, because she presented su fficient evidence that the exception to termination in section 366.26, subdivision (c)(1)(B)(i) applie d. We disagree with the
contention. We apply the substantial evidence rule to review a challenge to the finding the exception did not apply. ( In re L. Y. L. (2002) 101 Cal.App.4th 942, 947;
In re Autumn H. (1994) 27 Cal.App.4th 567, 576; compare In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449 [abuse of discretion standard of review].) 6 If supported by substantial evidence, the judgment or findi ng must be upheld, even though substantial evidence may also exist that would suppor t a contrary judgment and the dependency court might have reached a different conclu sion had it determined the facts and weighed credibility differently. ( In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) Thus, the pertinent inquiry when a finding on th e section 366.26, subdivision (c)(1)(B)(i), exception is challenged is whether substantia l evidence supports th e finding, not, as

5 There was evidence the mate rnal great grandmother was of Yaqui Indian descent. To the extent mother contends that it was in the children’s best interest for reunification services to be reinstated because reunificatio n with mother would preserve their Indian heritage, we disagree with the contention. The children’s Indian heritage was not a changed circumstance. The he ritage they had prior to th e date the court terminated reunification services did not change. In any event, it was not beyond the bounds of reason to conclude the children’s best intere st did not require delaying permanency on the chance mother would succeed in reunifying so that the childre n’s Indian heritage would be preserved. 6 There is no practical difference betw een the two standards of review when reviewing custody determinations. (See In re Jasmine D. (2000) 78 Cal. App.4th 1339, 1351.)8 mother argues, whether a contrary finding might have been made. “We do not reweigh the evidence or exer cise independent judgment, but merely determine if
there are sufficient facts to support the findings of the trial court. [Citations.] ‘ “[T]he [appellate] court must review the w hole record in the light most favorable to the judgment below to determin e whether it discloses substantia l evidence . . . such that a
reasonable trier of fact coul d find [that the order is appr opriate].” ’ [Citations.]” ( In re Matthew S. (1988) 201 Cal.App.3d 315, 321; see also In re Dakota H., supra, at p. 228 [“[w]e do not reweigh the evidence”].) Under section 366.26, subdiv ision (c)(1)(B)(i), if reunification services have been
terminated and the child is adoptable, the dependency court must terminate parental rights unless it “finds a compelling reason fo r determining that termination would be
detrimental to the child due to [the circumstance that the pare nt has] [¶] . . . maintained regular visitation and contact with the child and the child would be nefit from continuing the relationship.”
“ ‘Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency an d stability.’ [Citation.] ‘A section 366.26 hearing . . . is a hearing specifically designed to select and im plement a permanent pl an for the child.’ [Citation.] It is designed to protect children’ s ‘compelling rights . . . to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child.’ [Cita tion.] ‘The Legislature has declared that California has an interest in providing stable, permanent homes for children who have been removed from parental custody and for wh om reunification efforts with their parents have been unsuccessful.’ [Citation.]” ( In re Celine R. (2003) 31 Cal.4th 45, 52- 53.) “At this stage of the proceedings, if an appr opriate adoptive family is or likely will be available, the Legislature has made adoption the preferred choice. [Citation.]” ( Id. at p. 49; see also § 366.26, subd. (b)(1) [adoption is the prefe rred plan].) “ ‘[I]t b ecomes inimical to the interests of the [child] to heavily burden effo rts to place the ch ild in a permanent alternative home.’ [Citation.] The statutor y exceptions merely permit the court, in9 exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.” ( In re Celine R., supra, at p. 53.) “[T]he exception does not permit a parent who has failed to reunify with an adoptable child to de rail an adoption merely by showing the child would derive some benefit from continuing a relationship maintain ed during periods of visitation with the parent.” ( In re Jasmine D., supra, 78 Cal.App.4th at p. 1348.) The type of parent-child relationship that triggers the exception is a relationship which “ ‘promotes the well-being of the child to such a degree as to outwe igh the well-being the child would gain in a permanent home with new, adoptive pa rents. . . .’ [Citation.]” ( In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534; accord, In re Jasmine D., supra, at pp. 1347-1350.) Substantial evidence supports the fi nding that no exceptional circumstances existed under section 366.26, subdivision (c)(1 )(B)(i) that required depriving the children of a permanent, adoptive home. The evidence mother missed most of the scheduled visits during the reunification period and almost half of the visits allowed by the court after the reunification period ended supports finding that mother did not maintain regular visitation and contact, as required by the firs t prong of the exception. Concerning the second prong – the children wo uld benefit from continuing the relationship with mother -
substantial evidence establishe s that mother’s relationshi p with the children did not promote their well-being “ ‘to such a degree as to outweigh the we ll-being the child[ren] would gain in a permanent home with [a] new, adoptive parent[]. . . .’ [Citation.]” ( In re Brandon C., supra, 71 Cal.App.4th at p. 1534.) The caretakers, who provided a safe, stable, loving home for the children, the only home the child ren knew, wanted to adopt the children. As mother had a histor y of abusing drugs and criminal conduct, and was not rehabilitated, there was a risk that c ontinued contact would ex pose the children to criminal activity and the ill effects of a drug-a busing lifestyle. As mother had a history of missed and sporadic visitation, there was a risk continued contact would be destabilizing and cause disappointment. The facts mother ne ver had custody of the children, visitation did not lead to the development of a parent-child relationship, the children did not refer to her as their mother, and daughter rejected mother, indicate the children did not have an10 important bond with mother. In these ci rcumstances, the conclu sion reached by the juvenile court that no compelling reason exis ted to conclude term ination of parental rights would be detrimental is amply supported by substan tial evidence and not an abuse
of discretion.
3. Substantial evidence supports the ICWA notice. Mother contends the juvenile court erred in failing to require the Department to
send another notice to the tribe based on new ev idence. We disagree with the contention.

a. Standard of review. We review the dependency court’s dete rmination “whether proper notice was given under ICWA and whether ICWA applie s to the proceedings” for substantial evidence. ( In re E.W. (2009) 170 Cal.App.4th 396, 4 03.) In determining whether substantial evidence supports the factual fi ndings, “all intendments are in favor of the judgment and [we] must accept as true th e evidence which tends to establish the correctness of the findings as made, taking in to account as well all inferences which might reasonably have been dr awn by the trial court.” ( Crogan v. Metz , supra , 47 Cal.2d at pp. 403-404.)
b. Relevant facts and procedure. Maternal grandmother stated maternal gr eat grandmother was of Yaqui descent, but she did not know if maternal great gr andmother was registered with the tribe. Maternal grandmother’s cousin stated she, he r father, and two siblings were registered with the tribe. The children, mother, and maternal grandmother were not registered with the tribe. The Department sent notice of the proceedings to the tribe on September 28,
2012. On October 19, 2012, the Pascua Yaqui Tribe responded that mother was not a member of the tribe, the child ren were not members of the tribe, and the children were not eligible for membership in the tribe. Based on the ch ildren’s ineligibility, the tribe elected not to intervene in the proceeding. On November 7, 2011, the juvenile court found the parents were not members of any Indian tribe.11 Maternal grandmother applied to the Pasc ua Yaqui Tribe for membership in the tribe. On February 15, 2013 , the tribe informed her by le tter that she did not qualify for membership because she was no t a direct lineal descendant, as required for membership by the tribe’s constitution and me mbership ordinance. A direct lineal descendant is one
who was born to a member listed on the base membership roll dated September 18, 1980 or who is of Yaqui blood a nd, within three years after October 14, 1994, applied for membership. Moreover, the constitution and me mbership ordinance provide that children born to tribe members must be at least one qu arter degree Pascua Yaqui Indian blood in order to be eligible for memb ership. The tribe stated to maternal grandmother: “Your mother . . . is not listed on the [roll of the tr ibe], however she is recognized to be of Yaqui descent. The family member(s) that you ha ve identified on your application as enrolled member(s) applied and were approved under [the public enrollmen t act].” The tribe stated its letter was not a formal rejecti on and the enrollment a pplication would be “forward[ed] . . . for review and formal Tribal Council rejection by way of tribal
resolution.” At the hearing on October 31 , 2013, father contended th e February 15, 2013 letter constituted a change of circum stance which required re-notici ng the tribe. The juvenile court disagreed. After reviewing all the docum ents concerning the issue, the court found “the children are not registered with any trib e. The mother is not registered with any tribe. The maternal grandmother who would be the only other person that could be registered with a tribe is not registered with any tribe. The tribe has been notified. They indicated they are not going to intervene. This is not an ICWA case.”

c. The ICWA. “The ICWA protects the interests of Indi an 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, 19 03(1), 1911(c), 1912.) The substantive provisions of the ICWA appl y to the minor’s placement in adoption and12 foster care and to other hearings, such as term ination of parental rights, which affect the
minor’s status.” 7 ( In re Holly B. (2009) 172 Cal.App.4th 1261, 1266.) When the dependency court knows or has re ason to know that an Indian child is involved, notice of the dependency proceeding must be given to the tribe. (25 U.S.C. § 1912, subd. (a).) An Indian child is de fined in the ICWA as “any unmarried person who is under age eighteen and is either (a) a me mber of an Indian trib e or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” (25 U.S.C. § 1903, subd. (4).) “A dete rmination by an Indian tribe that a child is or is not a member of or eligib le for membership in that tribe, . . . shall be conclusive.” (§ 224.3, subd. (e)(1).) The court and the Department have a continuing duty to inquire whether a child in a dependency proceeding is an Indian child. (§ 224.3, subd. (a).) If there is reason to know an Indian child is involved, the trib e must be contacted concerning the child’s membership status and eligibility and notice of the pr oceeding must be sent to the tribe. (§ 244.3, subds. (c), (d).) “Notwithstanding a determination that the Indian Child Welfare Act does not apply to the proceedings . . . , if the court, social worker, or probation officer subsequently receives any information required under paragraph (5) of subdivision (a) of Section 224.2[ 8 ] that was not previously available or included in the no tice issued under Section 224.2, the social worker or pr obation officer shall provide the additional information to any tribes entitled to notice . . . .” (§ 244.3, subd. (f).)

7 Where an Indian child is involved, the ICWA’s substantive provisions include the requirements, among others, that “active efforts” must be made to prevent the breakup of the Indian family before a foster care placem ent is made or parental rights terminated, the evidence of detriment to the child supporting termination of parental rights must be “beyond a reasonable doubt, including tes timony of qualified expert witnesses[,]” preference in adoptive placements must be give n to the child’s exte nded family, tribal members, or other Indian families, and th e tribe has the right to intervene in the dependency proceeding. (25 U.S.C., §§ 1912, subds. (d), (f), 1915, subd. (a), and 1911, subd. (c).) 8 The only new information listed in section 224.2, subdivision (a)(5) that is pertinent in this appeal is the tribal enro llment number of a grandparent. (§ 224.2, subd. (a)(5)(C).)13 d. Substantial evidence. Mother acknowledges the notice sent to th e tribe September 28, 2012 was proper. Subsequently, maternal grandmother applie d for membership in the tribe and was informed by the tribe, by letter of February 15, 2013, that she was not eligible for membership in the tribe. Mother contends the statement in the letter, that the letter was not a formal rejection and the enrollment a pplication would be “forward[ed] . . . for review and formal Tribal Council rejec tion by way of tribal resolution” was new information that required sending new notice to the tribe of the dependency proceeding and maternal grandmother’s pending application. Substantial evidence supports the conclusi on that the February 15th letter did not provide reason to know the ch ildren were Indian children and, thus, did not require sending new notice to the tribe. Maternal grandmother was not eligible for membership, because she did not satisfy the qualificati ons required by the tribe’s constitution and membership ordinance: she wa s not the child of a member. The fact a formal rejection of maternal grandmother’s membership app lication could only be issued by the Tribal Council did not mean there was a possibility maternal grandmother’s eligibility status would change or the applicati on would be granted. In an y event, no matter what action the tribe formally took on maternal grandm other’s application, the tribe’s prior
determination the children were not members of the tribe and were not eligible for membership would not change. The children were not members, born of a member who was enrolled as of 1980 or 1 997, or one-quarter degree Pascua Yaqui Indian blood, as required by the tribe’s constitution and membersh ip ordinance. Memb ership of maternal grandmother in the tribe would not rende r the children member s or eligible for membership. The inescap able conclusion from th e evidence is that the February 15, 2013 letter did not give the court reason to know the children were (1) me mbers of an Indian tribe or (2) eligible for me mbership and were the biological children of a member. (25 U.S.C. § 1903, subd. (4) [d efinition of Indian child].) Substantial evidence supports
the determination to not send new notice to the tribe and the conclusion the ICWA did not apply.14 DISPOSITION
The orders are affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

KITCHING, J.

ALDRICH, J.