Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super.Ct.No. RIJ108894. William A. Anderson, Jr., Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Brent Riggs, under appointment by the Court of Appeal, for Defendant and Appellant Joseph D.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant C.M.
Joe S. Rank, County Counsel, and Carole A. Nunes-Fong, Deputy County Counsel.
Jacquelyn E. Gentry, under appointment by the Court of Appeal, for Minor.
OPINION
MILLER, J.
These are consolidated appeals by C.M. (mother) and Joseph D. (father) terminating their parental rights over Alexis D. (the child), and by father for denying his Welfare and Institutions Code section 388 petition.
All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.
Mother claims the trial court abused its discretion by denying her a hearing on her section 388 petition wherein she could prove both changed circumstances and best interests of the child. She also contends that her request for a bonding study should have been granted as it would have provided evidence of a strong parent/child bond which should have been preserved for the sake of the child. Finally, she maintains that her parental rights should not have been terminated because evidence at the 366.26 hearing demonstrated she and the child had a beneficial relationship that should continue. We find mother’s contentions are without merit.
In his appeal from the denial of his section 388 petition, father claims that the Riverside County Department of Public Social Services (DPSS) failed to conduct a reasonable search to locate him to notify him of the dependency case, and that the agency failed to properly give notice in compliance with the Indian Child Welfare Act (ICWA).
In his appeal of the termination of his parental rights, father asserts that the trial court was divested of jurisdiction to enter that judgment once he filed a notice of appeal from the denial of his section 388 petition. He again argues that ICWA notice was not properly given for the section 366.26 hearing. We discern no error with the court’s rulings as claimed in father’s appeals.
Both parents join in each other’s arguments on appeal to the extent that they inure to their benefit.
As we reject all of mother’s and father’s challenges, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Unless specified, the facts are taken from the statement of facts in the opinion issued by this court in case No. E041376 on December 1, 2006.
On August 30, 2004, DPSS received a referral alleging mother was neglecting the child, who was then two years old. Mother was living in her car outside her boyfriend’s apartment and was observed speaking with the child very harshly. A social worker attempted to contact mother several times to no avail.
Mother had a long history of domestic violence with father; father had a long criminal history, with two strikes against him. On September 15, 2004, a second referral was received alleging that father had threatened mother. The social worker again made several attempts to contact mother, with no success.
On October 12, 2004, the social worker learned that mother and the child had been staying with a family friend, Mrs. W. The following day the social worker contacted mother at Mrs. W.’s home. Mother confirmed there were prior incidents of domestic violence with father and that father had wanted custody of the child. The social worker gave mother a referral for Coalition for Family Preservation (CFP) and asked her to obtain a restraining order against father. Mother denied that she used drugs and agreed to drug test that day. Mother’s drug test result was positive for marijuana. Mother was on probation for 36 months for check fraud and was unemployed. Mrs. W. confirmed that she would allow mother and the child to reside in her home until mother was able to provide adequate care for the child as long as mother followed the rules; Mrs. W.’s main concern was the child.
On November 1, 2004, the social worker discovered that Mrs. W. had charged mother with theft and had refused to allow mother to reside with her. Mrs. W. reported that $140 was missing from her wallet, and $100 was missing from her husband’s wallet. Mother had no employment, no money, and no residence; it was suspected mother was abusing methamphetamine. In addition, mother, who had no valid driver’s license, drove the child around in a borrowed vehicle, against the social worker’s advice. Mother had prior DPSS referrals for allegations of general neglect and physical abuse in October 2003. Mother inquired about placing the child in foster care due to her inability to care for her. The child was taken into protective custody and was eventually placed with Mrs. W.
On November 3, 2004, DPSS filed a petition on behalf of the child pursuant to section 300, subdivisions (b) and (g). The allegations against mother related to mother’s inability to provide adequate food, clothing, and shelter for the child; substance abuse; and being a victim of domestic violence. The allegations against father pertained to his extensive criminal history, his failure to provide necessities for the child, and his whereabouts being unknown.
At the detention hearing, the court detained the child in a confidential foster home and provided the parents with supervised visits. The court ordered father to remain 100 yards from mother and the child except during his scheduled visits. The court further authorized DPSS to place the child with mother after a suitable home evaluation and three consecutive drug test results by mother. Mother was also ordered to participate in her case plan and abide by all the reasonable directives of the social worker. DPSS was ordered to assist mother in finding a stable home.
The social worker recommended that the allegations in the petition be found true, that mother be offered reunification services, and that services be denied to father. Mother stated that she had never abused drugs, and her positive drug result for marijuana was due to others smoking the substance around her. She adamantly denied using methamphetamine. She explained that she had an apartment and employment but had lost those due to father harassing her employer and her landlord. She admitted that father had hit her and slapped her and that she had received a “busted lip” from him on one occasion. She did not know father’s whereabouts and had no contact with him. She was about three months pregnant by another man who was currently incarcerated on charges of having sex with a minor. She also admitted she was a transient, living with whomever she could. Mother stated she wanted the child back in her care, and she was not comfortable having the child residing with Mrs. W., as the child referred to Mrs. W. as “mommy.”
Mother’s visits with the child went well; she appeared to interact appropriately with the child by holding her and reading her books. On several occasions, DPSS provided mother with referrals for parenting classes, counseling, and child support services. She was also provided with a substance abuse program and had been submitting to random drug tests with negative results. The social worker opined mother was unable to care for herself, let alone her two-year old daughter. She failed to accept responsibility for her actions, blamed others for her predicament, and had a history of making bad judgments.
At the November 29, 2004, pretrial jurisdictional/dispositional hearing, mother reported that she had found employment and a stable residence. She was working at a temporary job for an engineering company in Riverside on the overnight shift. She was sharing an apartment with a friend, Celia W., who would watch the child while she was at work. Celia informed the social worker that mother and the child were welcome to live with her as long as they needed to. Celia also stated that she was very attached to the child and that the child would always be welcomed at her home. A home evaluation of Celia’s home revealed that the two-bedroom apartment was adequately furnished and clean—it appeared to be safe and free of hazards.
By December 2, 2004, mother had been assessed by the Riverside County substance abuse program. She was determined to be an appropriate candidate for outpatient treatment, and was placed on a waiting list. She had enrolled in a parenting class and continued to test clean for drugs. As of December 14, 2004, the social worker opined that mother had accepted some responsibility for her actions and was attempting to better herself. However, it was later determined that Celia had pled guilty to a misdemeanor charge of burglary and possession of a controlled substance in July 2004 and that mother had not been completely honest with DPSS. While mother stated that she no longer drove and had given the borrowed car back to her boyfriend’s grandmother, it was discovered that mother had gotten into a car accident, for which she was hospitalized, and the car had been impounded.
Mother was granted an extended visit with the child for the Christmas holidays and had the child in her care from December 24, 2004, through December 31, 2004, as Mrs. W. and her family were going on vacation out of town. Mrs. W. reported that on December 31, 2004, she picked up the child from the hospital because she was sick. Mrs. W. indicated that the child always became sick after being in mother’s care; she had concerns about mother’s parenting skills—specifically, what mother fed the child.
By January 2005, mother’s circumstances had changed. On January 16, 2005, the social worker was informed that mother had failed to pick the child up for a visit. Mrs. W. believed mother had been kicked out of Celia’s apartment. The following day, Celia confirmed that mother no longer resided with her as mother expected Celia to be her “taxi” and “drive her all over the place.” Mother had failed to pay Celia rent causing Celia to give mother three days to pay rent or move out. Mother acted as though Celia was “joking” with her. After three days, when mother still failed to pay Celia rent, Celia asked her to move out of the apartment. Celia believed that mother was no longer employed.
As of January 2005, mother had failed to update DPSS regarding her current living situation as directed by the court.
On January 24, 2005, a jurisdictional/dispositional hearing was held. At that time, the child was declared a dependent child of the court and was to remain in Mrs. W.’s home. The juvenile court found the allegations in the petition true. Mother was granted reunification services and ordered to participate. Mother’s reunification plan required her to attend general counseling, to participate in and complete a parenting education program and an outpatient substance abuse program, and to randomly drug test. Mother completed a paternity inquiry listing Joseph D. as the child’s father and that she did not believe he had Native American ancestry.
By July 2005, mother had still not maintained steady employment, and instead lived off her monthly disability benefits. Mother had been homeless from February 2005 until June 2005, and gave birth to a baby girl (the baby) in June 2005. A referral was initiated regarding the baby. DPSS suspected mother was living with the baby’s father (Joe M.), who had been incarcerated in jail for a sexual offense with a minor.
On July 13, 2005, the social worker conducted a home evaluation of mother’s new residence. The apartment appeared appropriate, and it was recommended that mother insert safety outlet covers and fix the strings on the mini-blinds. The social worker remained concerned about the male roommate living in the apartment. When mother asked to be allowed overnight visits with the child, the social worker told mother that overnight visits were not permitted until a criminal background check was completed on her roommate.
The social worker met mother and provided her with referrals, a monthly bus pass, and discussed her case plan. Mother’s substance abuse program determined that mother did not meet the criteria for outpatient or residential treatment. She continued to deny any drug use and had four clean drug tests. Mother had enrolled in a parenting class and had completed seven of the 10 classes. She began her individual counseling, but the therapist was concerned that mother was hostile and resistant to therapy as she had missed several appointments. When the social worker stressed the importance of completing individual counseling to her, mother complained the counseling was “too far.” The social worker informed mother that a new counselor could be found in her area so as to avoid any transportation problems. Mother then complained about not having the 25 cents for the baby to ride the bus with her. While the social worker agreed that mother’s funds were limited, the social worker noted that mother nonetheless had enough money to buy cigarettes and maintain acrylic nails. Mother was upset at this observation.
Mother’s visits with the child went well; she was attentive and nurturing. The child appeared to enjoy the visits with her mother. However, mother spent a great deal of time complaining about how the child was dressed or how her hair was unkempt. The child did not demonstrate any sadness when the visits ended; she was eager to return to her caregiver. The child was developing well and bonding with her foster family. She appeared to be comfortable and happy in her placement.
Mother had missed several visits with the child in July. When the social worker explained to mother that she could not have overnight visits with the child until her therapist approved of the visits and a criminal background check on her roommate Joe was completed, mother became irate and cursed at the social worker. The social worker recommended offering mother an additional six months of reunification services.
On August 15, the social worker learned that mother’s boyfriend, Joe, was living with her. The maternal grandmother reported that mother and Joe had signed a lease to their new apartment. Mother and Joe had engaged in mutual physical altercations, and Joe had tried to push mother’s head through a glass window. These domestic violence incidents occurred in front of the baby. The social worker noticed a large bruise on the back of mother’s arm. The maternal grandmother also reported that she was concerned about mother’s lies and irresponsible behavior: she stated that mother was only fighting hard to get the child back because she hated the child’s caretaker. The maternal grandmother also stated that mother had recently obtained a pit bull which was kept in the apartment with the baby. DPSS was concerned about mother’s lack of honesty.
On August 18, the juvenile court authorized mother to have overnight visits with the child, provided the therapist agreed. Mother still had not made significant progress in her case plan. Mother continued to lie to get what she wanted. She adamantly denied that Joe was living with her despite information to the contrary. Joe’s probation officer confirmed that Joe had been residing in mother’s apartment. Mother had called Joe’s probation officer and “practically told him to lie if the social worker called to ask about Joe’s residence.” When confronted with her lies, mother explained that she did not want to tell the truth because she did not want it to affect her visits with the child. She showed no remorse for lying, instead demanded overnight visits with the child. Mother failed to understand that the child could not have overnight visits with mother as long as she was residing with a convicted criminal. She minimized Joe’s role in his felony conviction, and blamed the victim instead. The social worker was concerned that mother had brought Joe on two separate supervised visits with the child. When the social worker confronted mother about this, she cursed and ranted at the social worker. Mother’s therapist confirmed that mother had issues with dishonesty and blamed others for her actions. Based on mother’s living arrangements, mother’s therapist agreed with the social worker that overnight visits would not be in the child’s best interest. When this issue was discussed with mother, she became belligerent, hostile, and offensive.
On October 8, Joe was arrested for battery on a former companion and damaging telephone lines. On October 9, mother was arrested on a misdemeanor warrant. Confidential sources reported that there had been ongoing domestic violence between mother and Joe. The social worker was concerned about who would care for the baby and Joe’s 9-year-old brother while both mother and Joe were incarcerated. The social worker believed it was premature to initiate overnight weekend visits between the child and mother.
On October 17, the juvenile court continued mother’s reunification services. A previous order authorizing overnight visitation be permitted at the discretion of DPSS was continued.
By April 2006, mother had a new job, but failed to visit with the child for two weeks. She cancelled two visits in March 2006.
On April 10, 2006, Mr. and Mrs. W. filed a de facto parent request.
On June 20, father contacted mother. Two days later, he called DPSS to request visitation with the child. He gave the social worker his cell phone number and his Orange County address.
In July, the social worker recommended terminating mother’s services and setting a section 366.26 hearing. When the social worker made an unannounced visit to mother’s apartment, she observed the baby sitting on the floor without adult supervision. The social worker called the baby’s social worker, her supervisor, and the police. Mother eventually showed up and stated she was downstairs borrowing baby formula from a neighbor. The home was unkempt—it was messy with dirty dishes in the sink, clothing on the floor, and there was a minimal amount of food in the home. The social worker opined it would not be in the child’s best interest to be returned to mother’s care as mother continued to make poor decisions: she placed the baby at risk by leaving her unsupervised for over 15 minutes, and Joe was in mother’s apartment during the unsupervised visits with the child. Mother continued to deny that Joe lived with her, and claimed she had a restraining order against him. Mother was no longer employed, and was unable to pay her $800 monthly rent and utilities. The baby was detained.
On July 5, the juvenile court held a combined de facto parent hearing and a contested review hearing. Father appeared in court for the first time and was appointed counsel. The contested review hearing was continued to August 2 and both parents were ordered to appear without further notice. The court granted the caretakers’ request for de facto parent status, and appointed them to be de facto parents of the child.
Father filed a form indicating he may be a member of the Osage Indian Tribe. The court ordered DPSS to give notice to the tribe. DPSS mailed notice to three Indian agencies on July 31, 2006.
On August 2, the juvenile court continued the contested review hearing to September 19. Both parents were ordered to appear and DPSS was again ordered to give notice to the Osage Indian Tribe. The certificate of mailing prepared by DPSS on August 8 listed father’s address as “confidential” and stated that Indian Child and Family Services, the Bureau of Indian Affairs (BIA), and the Osage Nation of Oklahoma were served. The Notice of Involuntary Child Custody Proceedings for an Indian Child listed mother’s and father’s name and address, father’s telephone number, date of birth, place of birth, and name of tribe. The paternal grandmother’s name, date of birth, and Osage lineage was given, but the form left out her current address and her place of birth. The paternal great-grandfather’s name was supplied, but the form did not provide his address, stated his date and place of birth as “unknown,” and noted the tribe’s band and location as “N/A.”
On August 23, DPSS received a letter from the Osage Nation Social Services Agency. The tribe informed DPSS that it needed the birth dates for the child’s paternal grandparents.
On September 11, the tribe’s social services representative called DPSS to inform it that if the agency provided the requested information regarding the child’s grandparents, it could verify her tribal lineage and fax an eligibility letter to the agency.
By September 15, mother had failed to complete her individual therapy, despite being referred to several therapists at mother’s request due to “transportation issues.” Mother had been provided with monthly bus passes, and transportation should not have been an issue. Mother was still financially unstable and was not capable of meeting the child’s daily needs. It was unknown whether she was paying rent on her apartment and her neighbor confirmed that mother often left the baby alone.
As to father, the social worker noted he had an extensive criminal history and his employment at two jobs would not allow sufficient time to adequately care for the child. The child did not have a relationship with father and did not recognize him as her father. Father did not mind if the child’s caretakers adopted her; he was only requesting visits with the child from time to time. The social worker recommended that father not be provided with services.
Meanwhile, the child had been residing with her current caretakers since November 2004. She had grown attached to them, calling them “mom and dad.”
On September 19, 2006, the juvenile court held a contested review hearing. At that hearing the court read and considered the social worker’s numerous reports, and heard testimony from mother and father.
Mother testified that she participated in her case plan, had negative drug test results, underwent monthly therapy, completed multiple parenting and domestic violence classes, obtained employment, obtained health insurance, maintained a residence, and had consistent contact with the child. She explained that she had benefited from her parenting classes by seeing “red flags that would emotionally, physically or psychologically harm [her] child or [her] children.”
Father testified that he supported the child being returned to her mother’s custody and would provide child support. He stated the domestic violence concerns which prompted mother’s obtaining a restraining order in the first place against him no longer existed.
Following argument by counsel, the court found by clear and convincing evidence that it was in the child’s best interest that mother be denied custody. It found that the return of the child to mother would create a substantial risk of detriment to the safety, protection or emotional and physical well-being of the child. The court also found that DPSS had provided mother with reasonable reunification services and that mother had not benefited from her case plan—mother’s progress toward alleviating or mitigating the causes necessitating placement had been unsatisfactory. It also found notice had been given pursuant to ICWA. The court terminated mother’s reunification services and set the matter for a section 366.26 selection and implementation hearing to be heard on January 17, 2007. Adoption was ordered as the child’s permanent plan.
On September 18, 2006, father filed a section 388 petition one day before the contested review hearing. In it, he requested that the juvenile court set aside the jurisdictional and dispositional findings on the grounds that he had not received proper notice of the proceedings.
On September 22, 2006, mother filed a notice of intent to file a writ petition pursuant to California Rules of Court, rule 38 with this court. After review, this court issued an opinion denying mother’s petition.
All further rule references will be to the California Rules of Court unless otherwise indicated.
On October 16, the juvenile court held a hearing on father’s section 388 petition. Father relied on the reports prepared by DPSS over the course of the child’s case. His counsel argued that the social worker did not conduct a reasonable search to locate father. The social worker had unsuccessfully tried to call father on his cell phone to notify him of the detention hearing, but did not try calling him again to notify him of the jurisdictional hearing. He asserted the social worker should have left a message on father’s cell phone to notify him of both hearings. Father’s counsel also claimed that the social worker was remiss in failing to contact the police department who investigated the domestic violence case to obtain information to locate father. Nor did the social worker conduct a sufficiently thorough interview of mother to determine where she served a restraining order on father. Finally, DPSS should not have relied on a parent locator database search which yielded stale information from 2000 and 2003, but rather should have accessed the more recent information received two weeks before the November 4, 2004 detention hearing.
Mother informed father that she was keeping her address confidential so he could not locate them. The restraining order barred father from contacting mother and ordered him to stay away from her.
The trial court denied father’s section 388 petition, finding that DPSS had used reasonable efforts to locate father. It found that father did not present any evidence that if DPSS had followed the additional steps he outlined, he would have been located and could have received notice. For example, father never proved that his cell phone had the capability to receive voice mail. When father’s counsel requested a continuance to gather information to prove he would have been located if these extra steps were followed, the trial court denied his request for continuance.
On January 12, 2007, father filed a request to stay trial court proceedings pending resolution of his appeal of the denial of his section 388 petition. The trial court denied father’s request for stay.
January 17 was the day set for the selection and implementation hearing, but the matter was continued to January 22. On January 17, mother filed a section 388 petition requesting the trial court vacate the selection and implementation hearing and return the child to her custody. In her petition, mother alleged that after the order terminating reunification services, she remained drug free, maintained employment and a residence, participated in therapy, and had not been involved in any instances of domestic violence. She further asserted it was in the child’s best interest to be returned to her custody to avoid deterioration of the bond they share.
On January 22, 2007, the trial court heard mother’s section 388 petition. The juvenile court considered a social services report dated January 18, 2007, filed as part of a companion case on another sibling’s dependency case. It took into account mother’s participation, activities, progress, and case management.
Mother’s counsel argued that the child should be returned to her custody because she has participated in services, maintained employment, and had a good bond with her daughter. Mother had a prior authorization for overnight weekends and should have the opportunity to have the child come home or participate in additional services to have her come home.
In response to mother’s argument, counsel for DPSS admitted that mother was able to find housing and became employed, but her having had several jobs did not provide the kind of stability young children need. County counsel argued mother had not made substantial progress warranting more time or placement as she had not consistently participated in therapy—a third referral made for her two months previously. She was placed on a waiting list, but she failed to call to schedule therapy sessions because she believed that they would call her. Consequently, mother did not attend any therapy sessions. The paternal grandmother reported that mother had been involved in domestic violence with Joe, who was currently in custody and had not yet resolved those charges. Mother also failed to attend her domestic violence program since September 2006 which caused her to have to start the program over and now had to attend 12 classes as opposed to the eight classes that were previously required.
The trial court denied mother’s section 388 petition without explanation.
Immediately thereafter, the juvenile court conducted the section 366.26 hearing. Father requested the court enter a permanent plan other than adoption and that it reconsider whether the proceedings should be stayed pending father’s appeal of the denial of his section 388 petition. Mother requested that physical custody of the child be returned to her.
During the contested section 366.26 hearing, the social worker testified that she had the opportunity to watch mother and the child interact 10 times over the course of a year and a half. Mother would visit with the child for an hour two to three times a month. At one point, mother had overnight weekend visits. The child called mother “mommy [C.]” and knew she is her mother. The child was happy to see mother and gave her a hug when she left. The two have always related appropriately with each other during visitations: mother would care for the child during the visitations and inquire how she was doing at her caretakers’ home. During the court hearing, the child sat in mother’s lap.
Such as push her on a swing.
While the social worker acknowledged that the child loved her mother, she noted there may not be an emotional attachment because the child never told her, “‘I love my mother’” or “‘I miss my mother.’” Mother’s visitations had not been consistent—she had regularly visited with the child until her services were terminated. Once services were terminated, mother did not regularly call to request arranged visitation with the child on a monthly basis. From October 2006 through January 2007, mother only saw the child twice and did not visit the child for Christmas. The child refers to her de facto parents as “mom” and “dad.” If she is fearful, scared, or indecisive, she would turn to her caretakers.
Mother testified on her own behalf. She stated that the child is always happy to see her; she runs up and gives her a hug and a kiss. Mother claimed she had always maintained contact with her daughter. After the first visit, it was difficult to send the child to her caretakers—she wanted to stay with her and was upset she had to leave. Mother always engaged in positive activities with her, including playing outdoors with the child and the neighborhood children. She fed her, bathed her, and watched educational shows. It became difficult to arrange to see the child because the social worker was often unavailable to arrange a visit as a result of her heavy caseload. It would have been more convenient if she were able to call the child’s caretakers directly to set up a visitation schedule. She does not like it when the child refers to her caretaker as “mommy” because she is the child’s mother.
The trial court found, by clear and convincing evidence, that the termination of parental rights would not be detrimental, that adoption was in the best interests of the child, and that she was likely to be adopted. It found that mother only maintained intermittent, “semi regular visitation and contact with the child,” and did not show that a continued relationship with her would afford a benefit to the child. Consequently, the exception under former section 366.26, subdivision (c), subsection (1), paragraph (a) (now § 366.26, subd. (c)(1)(B)(i)) did not apply.
DISCUSSION
A. Father’s Pending Appeal of the Denial of His Section 388 Petition Did Not Deprive the Juvenile Court of Jurisdiction to Enter a Judgment Terminating His Parental Rights.
Father contends that the juvenile court was divested of jurisdiction to enter a judgment terminating his parental rights once he appealed from the denial of his section 388 petition. Although he acknowledges that Code of Civil Procedure section 917.7 does not stay custody matters, he maintains the first appeal is not from an order affecting custody, thus the juvenile action was stayed. We disagree.
Beginning with the dispositional order, all juvenile dependency orders are appealable, except for a section 366.26 hearing. (Wanda B. v. Superior Court (1996) 41 Cal.App.4th 1391, 1395.) A denial of a section 388 petition is appealable under section 395. (Rule 1435(b); In re Shirley K. (2005) 140 Cal.App.4th 65, 72.)
Generally, the perfecting of an appeal stays proceedings in the trial court. (In re Nicholas H. (2003) 112 Cal.App.4th 251, 259, citing Code Civ. Proc., § 916.) However, an appeal does not stay juvenile dependency proceedings which affect custody and visitation. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1249, citing Code Civ. Proc., § 917.7.)
After a contested jurisdictional/dispositional hearing, the trial court found that returning the child to the custody of her parents was a substantial, detrimental risk to her and continued minor’s placement with her caretakers. It determined that mother made adequate but incomplete progress towards reunification. A return-home permanency plan was ordered, but if the child could not be returned home by the next hearing, a section 366.26 hearing would be held. The court ordered DPSS to direct the visitations between the child and her parents.
In father’s section 388 petition, he alleges the jurisdictional and dispositional orders should be set aside, based on a change of circumstances and new evidence. He requested the juvenile court provide him the opportunity to reunify with his daughter. Clearly, defendant was asking the trial court to grant him custody of, or at least visitation with, his daughter. When the trial court denied his section 388 petition, defendant appealed the trial court’s denial of his request. As defendant was appealing a custody order, appealing from the denial of the section 388 motion did not stay the dependency case. (In re Nicholas H., supra, 112 Cal.App.4th at p. 260.)
B. The Trial Court Correctly Denied Father’s Section 388 Petition.
Father asserts that DPSS did not exercise due diligence in locating him for purposes of notifying him of the jurisdictional and dispositional hearing. He also contends DPSS failed to notify his parents as required by section 291, subdivision (a)(7).
A state must afford a parent adequate notice and an opportunity to be heard before depriving him of his children because a parent has a compelling interest in the companionship, care, custody, and management of his children. (In re B.G. (1974) 11 Cal.3d 679, 688-689.) Due process requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” (Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314 (Mullane).) Parents are entitled to due process notice that is reasonably calculated to apprise them of the dependency proceedings and afford them an opportunity to object. (In re Justice P. (2004) 123 Cal.App.4th 181, 188.) The means of giving notice to the parent must be such as would reasonably be adopted by a social worker who actually wanted to inform the parent. (In re Claudia S. (2005) 131 Cal.App.4th 236, 247 (Claudia S.).)
If a parent’s whereabouts are unknown, the issue becomes whether a social worker used due diligence to locate the parent. The terms “reasonable search” or “due diligence” mean “a thorough, systematic investigation and inquiry conducted in good faith.” (Claudia S., supra, 131 Cal.App.4th at pp. 247, 248.) DPSS is required to make “reasonable efforts” to determine a missing parent’s address and provide notice. (In re B.G., supra, 11 Cal.3d at p. 689.) However, there is no due process violation when there has been a good faith attempt to provide notice to a parent who is transient and whose whereabouts are unknown for the majority of the proceedings. (In re Justice P., supra, 123 Cal.App.4th at p. 188.) Due process notice is satisfied when “a parent cannot be located despite a reasonable search effort and the failure to give actual notice will not render the proceedings invalid.” (Claudia S., supra, 131 Cal.App.4th at p. 247.)
A juvenile court’s determination that a child welfare agency exercised due diligence in trying to locate an absent parent is reviewed for substantial evidence. (In re Sarah C. (1992) 8 Cal.App.4th 964, 974.) In applying the substantial evidence standard, “we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court’s order, and affirm the order even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.]” (In re Megan S. (2002) 104 Cal.App.4th 247, 251.)
Based on this record, we conclude there was substantial evidence supporting the juvenile court’s finding that DPSS exercised due diligence in conducting a reasonable search for father and his parents in order to give notice. Those efforts included the social worker interviewing mother regarding father’s whereabouts. Mother stated that father had a cell phone that was on and off. She reported that she did not know his exact address, but said he was staying in a mobilehome park in Mira Loma. She had not seen father since her friend served him a restraining order. In mother’s January 2005 questionnaire and offer of proof for paternity, she states father’s whereabouts were unknown.
The social worker called father’s parents’ phone number and left a message. She also tried calling father on his cell phone, but got no response.
A due diligence search report was prepared on November 10, 2004, documenting the efforts expended in locating father. Those efforts included a Parent Locator record check. A Riverside County CRT check indicated father was homeless in 2000 and had not received assistance. A Riverside County welfare check revealed father received Medi-Cal or food stamp assistance at an Ontario address and had a telephone number for father listed. The worker called father’s eligibility worker and left a voice mail message requesting information about him. She also called the number father had given to welfare and received a recorded message stating that the number dialed was unavailable.
A court records check revealed an Ontario address that was given on June 3, 2003. The worker reviewed voter registration rolls and made a U.S. Postal Service change of address inquiry to determine father’s address.
Father’s criminal record report was requested. A check with the Riverside County jail showed that father was not in the local jail. The worker tracked father’s CDC prison number; the prison number inquiry showed that he was not in any state prison, nor had he been paroled to the Ontario parole office. Nevertheless, the worker called the Ontario parole office and spoke to a parole officer who said father was living with a friend in Chino, and gave her the address and a phone number where he could be reached. When the worker dialed the number given by the parole officer, a woman answered and stated that father had just met her husband, and had stayed with them for a few weeks in August 2004. She did not know where he was currently living and did not receive his mail at her address.
In November 2004, father called DPSS requesting visitation with the child. He gave the social worker his cell phone number and his Orange County address. It is unknown when father acquired his new cell phone number or when he moved into Orange County.
Father’s cell phone number was different than the one the worker obtained from welfare and differed from the number the parole agent gave. Father’s Orange County address was different from the Ontario addresses he gave to welfare, the Mira Loma address where mother served him, and the Chino address he gave his parole agent. Father did not make an offer of proof that he was living at the Mira Loma mobilehome park at the time of the jurisdictional and dispositional hearing and could have been served there.
Nor did father make an offer of proof that his parents knew where he lived at the time of the detention hearing. Father did not meet his burden to show that had DPSS called his parents again at the time of the jurisdictional/dispositional hearing, they would have known where he was. DPSS was not required to once again contact the paternal grandparents before the jurisdictional hearing after they failed to respond to a message left prior to the earlier detention hearing. The law does not require a futile act. (Nikolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 118.)
The juvenile court did not err in finding DPSS exercised due diligence in attempting to locate father, and in denying his section 388 petition.
C. The Trial Court Properly Denied Father’s Request to Continue the Section 388 Hearing.
At the conclusion of his argument that DPSS did not conduct a reasonable search, father’s counsel requested a continuance of the section 388 hearing:
“[Father’s Counsel]: . . . In regards to the reasonable search, perhaps the facts of the [In re Arlyn A. (2000) 85 Cal.App.4th 591, 598] case do not exactly line up with the facts of this case. However, one thing is clear from the case is that a standard search is not diligent enough when there are more likely means of looking up the parents, unique facts known to the Department that are ignored and such a search is not diligent or reasonable. I also cited further law.
“The Court: What are those unique facts?
“[Father’s Counsel]: In this case it’s the possession of [father’s] cell phone number. The mother told the social worker maybe it’s off and on. Well, was the mother the most reliable? Was she most trustworthy? She at least did tell them it was on. There was no reason to believe if they tried to call the cell phone that it wouldn’t work. Again, they did call for the detention hearing. However, separate notice is required for the jurisdictional hearing plus for the detention hearing.
“When they called [father], when they call his cell phone number, they did not leave a message at all. The social worker doesn’t describe what was on [father’s] cell phone. She just says that she called him. That’s it. She didn’t leave a message. Personally I have never seen a cell phone that didn’t have voice mail.
“I think a cell phone is the best fact they searched in the standard avenues, the county databases. If you are searching those databases, you hope to get a phone number. They already had a phone number. They never called him other than at the detention hearing. They didn’t leave a message, didn’t call for the juris [sic].
“In regards to serving, locating [father], when they located him for the restraining order, [mother] was there. She said that’s the last time she had seen him. From that statement that she was along with her friend when serving [father], I don’t think the fact they didn’t ask her about it, ask a friend about it, anything at all, I don’t think that’s a sufficient interview at all in regards to his whereabouts.
“Same with the police report, the referral received by DPSS in September, mid September, it says law enforcement was contacted. That’s what the referral states, law enforcement. The social worker calls the Sheriff’s Department. From my knowledge, usually police handle domestic violence matters. She didn’t follow up. How do you know which law enforcement was contacted? I would think it would be the police, but she only called [the] Sheriff’s.
“The Court: Do you have knowledge of a report that was made?
“[Father’s Counsel]: I don’t have knowledge of a report. I know in the detention report it states that a referral was received from CPS.
“The Court: You haven’t located a report and say look, if they had followed this lead, they would have found this information that would have lead to good notice to [father]?
“[Father’s Counsel]: I don’t have that information, but it’s about a reasonable search. They never went there. Then when [father] called in October when it was alleged he called, they didn’t bother to check for any type of reports with the Sheriff’s or police department. They know that a temporary restraining order was issued I believe on October 18th. I believe the hearing was on November 2nd. They never attempted to [obtain] the minute order at all to see if [father] showed up. There is nothing in the file with regards to address, anything at all.
“The Court: I think what you have to show beyond reasonable efforts if you are going outside the standard, I think you have to give a demonstration that going that extra step would have given them some results, but you haven’t told me any of that. All these things they didn’t do, and I can probably come up independently with a list of things that they probably didn’t do. But it wouldn’t, if they had done those things, it wouldn’t have lead [sic] to finding him necessarily. I think you have to use reasonable efforts if you are showing that’s your position, you have to show that they failed to use reasonable efforts; and if they had, they would have found this information that would have lead [sic] to him and given him good notice. So far I haven’t seen that last end of it.
“[Father’s Counsel]: The cell phone.
“The Court: I think there’s representation the cell phone was called at one time, but nothing
“[Father’s Counsel]: The only thing it would have showed up on his cell phone he had a missed call. That’s it. There’s no voice mail.
“The Court: There’s nothing anywhere in here to substantiate that except I suppose if you called him to testify, he would testify he never got a voice mail. The other problem you have to independently set up your voice mail if you want it on the phone. There’s nothing to indicate that his phone had voice mail capabilities. There’s nothing proffered into evidence to suggest that. [¶] . . . [¶]
“[Father’s Counsel]: Your Honor, I apologize, but if it was, understanding reasonable search was the standard that was at issue here, not that it actually would have lead [sic] to locating [father], the case law I found was the reasonable search standard. For such reason I would request a continuance to gather information to present to the Court.
“The Court: I think we are going forward today so the request is denied. . . .”
On appeal, father argues that the trial court should have granted his request for a continuance. He claims the trial court held an erroneous view of the law by requiring direct evidence that father would actually have been found if DPSS had conducted a reasonable search. In the alternative, he argues that father’s counsel rendered ineffective assistance because he did not know that he had to prove a reasonable search would have located father. We conclude father’s assertions lack merit.
Father’s first argument is that he did not need to provide evidence that he actually would have been found if DPSS had (1) called his cell phone again, (2) called his parents again, (3) called the police department, and (4) tried to access his voice mail. Father is incorrect.
As previously discussed, the standard is reasonable search/due diligence, i.e., did the worker conduct a search so as to be able to actually find father. In determining whether there was due diligence, the court correctly inquired if the father would have been located if called again, whether his parents knew where he was, and how asking the local city police department would have revealed father’s address if there was no report. This is not holding father to a higher standard; it is simply part of the analysis utilized when determining whether DPSS acted in a manner “reasonably calculated” to give him notice. (Mullane, supra, 339 U.S. at pp. 314-315.)
It is not enough to show that an investigator could have done something else. As the trial court correctly observed, one can always posit another way to locate a person. However, that is not the standard—the standard is reasonableness. It only matters that the social worker conducted a thorough, systematic investigation and inquiry in good faith as if she actually wanted to inform the parent. (Claudia S., supra, 131 Cal.App.4th at p. 247.) This was done.
Consequently, the trial court did not hold father to a higher standard than “reasonable search” when it asked for an offer of proof that father would actually have been found if DPSS took the extra steps he demanded.
Second, counsel did not render ineffective assistance by wrongly believing he did not have to prove father’s claim that he would have been located. The offer of proof that father would actually have been found was part and parcel of the “due diligence” analysis. It is not, as father claims, “ineffective assistance because he did not know what the standard was.” Counsel correctly stated the test was “reasonable search.” Thus, father’s due process right to counsel was not violated.
Third, father contends that the trial court abused its discretion by denying a continuance so his counsel can garner additional evidence father would have been located. Father’s contention is incongruous.
Section 352, subdivision (a) provides that continuances shall be granted only on a showing of “good cause” and that “written notice shall be filed at least two court days prior to the date set for hearing, together with affidavits or declarations detailing specific facts showing that a continuance is necessary, unless the court for good cause entertains an oral motion for continuance.” Moreover, “no continuance shall be granted that is contrary to the interest of the minor. In considering the minor’s interests, the court shall give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.” (§ 352, subd. (a); accord, rule 5.550(a).)
In his section 388 petition, father requested the juvenile court set aside its jurisdictional and dispositional findings on the grounds there was new evidence suggesting he could have been found had DPSS conducted a reasonable search. However, father failed to provide the new evidence he claimed showed his location. When the juvenile court asked father’s counsel what unique facts would have led DPSS to locate father, he replied there was a deputy’s report that gave father’s location, father’s cell phone had voicemail so that the social worker could have left verbal notice of the hearing, a better interview of mother could have been conducted, and the minute order of the temporary restraining order would have shown the location where father was served. The trial court observed that there was no evidence to substantiate these claims—the sheriff’s report was not tendered into evidence and there was no evidence that the cell phone father used at the time had voicemail capability. Also absent from the record was a copy of the court’s minute order for the restraining order.
No reason was given as to why the new evidence was not tendered. Thus, there was no good cause to continue the hearing and the trial court properly denied the request to continue.
D. It Was Unnecessary to Give ICWA Notice of the Section 388 Hearing, As It Did Not Further the Purpose of the Act.
Father asserts that the juvenile court failed to require DPSS to give proper notice of the section 388 petition to the tribe as prescribed by ICWA. DPSS counters that ICWA notice is not required for a section 388 petition as it does not further the goal of preserving Indian families.
Congress enacted ICWA in 1978 to advance our nation’s policy “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . . .” (25 U.S.C.S. § 1902.) It allows an Indian child’s tribe to intervene in state court dependency proceedings (25 U.S.C.S. § 1911(c)) because “ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource.” (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.)
In his section 388 petition, father requested the juvenile court set aside its jurisdictional and dispositional findings on the grounds there was new evidence suggesting he could have been found had DPSS conducted a reasonable search. Notice to a tribe or to the BIA is required when child welfare authorities are seeking foster care placement or termination of parental rights of an Indian child, but is not required when the child is not removed from his family. ICWA’s purpose is to preserve Native American culture. A child’s tribe must be provided notice so that it can intervene to ensure the child is placed with an Indian family. However, if a child remains with its family, the purpose of preserving Native American culture is not brought into being. There are no concerns that a child will lose his Native American Indian heritage or that the tribe will lose the child. (In re Alexis H. (2005) 132 Cal.App.4th 11, 14-15.)
At issue in father’s section 388 petition was whether the agency’s actions were sufficiently thorough and were there reasonable good faith efforts expended to locate father to provide him notice. This issue is procedural, not substantive: there was no discussion on the allegations that caused the child to be removed from the home. Father’s claim that he had new evidence showing DPSS could have done a better job of locating him is irrelevant to whether the child should be removed from her home. Giving notice to the tribe of father’s hearing regarding new evidence on a procedural matter does not further the high purpose of preserving Native American cultural heritage. Thus, we conclude ICWA notice is not needed in the case of a section 388 petition asserting new evidence.
E. Failure to Provide ICWA Notice for the 366.26 Hearing Not Prejudicial.
Father contends that DPSS failed to provide evidence to the juvenile court that it gave notice of the dependency hearing to the Osage tribe. Respondent counters that ICWA notices were sent for the August 2, 2006, 12-month review hearing, its continuance to September 19, 2006, and for the section 366.26 hearing set for January 17, 2007.
When a court in a dependency proceeding knows or has reason to know that an Indian child is involved, “the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” (25 U.S.C.S. § 1912(a); In re Junious M. (1983) 144 Cal.App.3d 786, 790-791; In re Brooke C. (2005) 127 Cal.App.4th 377, 384-385.) Notice must be sent for every hearing thereafter unless and until it is determined that the [ICWA] does not apply. (Rule 5.664(f)(5).) If proper notice is not given, the order terminating parental rights may be vacated. (25 U.S.C.S. § 1914.)
“To satisfy the notice the provisions of the [ICWA] and to provide a proper record for the juvenile court and appellate courts, [the social services agency] should follow a two-step procedure. First, it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. [Citation.] Second, [the social services agency] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor’s status.” (In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4; see also In re Karla C. (2003) 113 Cal.App.4th 166, 175-176, 178.)
The Code of Federal Regulations sets forth the required content of the notice. (25 C.F.R. § 23.11(b).) The relevant regulation provides that notice to the BIA “shall include the following information, if known: [¶] (1) Name of the Indian child, the child’s birth date and birthplace. [¶] (2) Name of Indian tribe(s) in which the child is enrolled or may be eligible for enrollment. [¶] (3) All names known, and current and former addresses of the Indian child’s biological mother, biological father, maternal and paternal grandparents and great-grandparents; . . . birthdates; places of birth and death; tribal enrollment numbers, and/or other identifying information. [¶] (4) A copy of the petition, complaint or other document by which the proceeding was initiated.” (25 C.F.R. § 23.11(d).) In addition, the notice must include, inter alia, a statement of the right to intervene in the proceedings. (25 C.F.R. § 23.11(e)(1).) The notice requirements of ICWA are mandatory and cannot be waived by the parties. (In re Jennifer A. (2002) 103 Cal.App.4th 692, 707; In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.)
Failure to provide proper notice is prejudicial error. (In re Samuel P., supra, 99 Cal.App.4th at p. 1267), but not every faulty notice is prejudicial. (In re Junious M., supra, 144 Cal.App.3d at p. 794, fn. 8.) Errors in ICWA notice are subject to harmless error review. (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784.)
Here, the juvenile court set the date for the contested section 366.26 hearing for January 17, 2007. ICWA notice was sent notifying the tribe of that contested hearing date. However, the court continued the matter to January 22, but the agency did not provide notice to the tribe of the January 22 date. DPSS’s failure to provide notice as required under the federal and state regulations is error.
However, DPSS did not commit prejudicial error. On all three JV-135 forms, DPSS provided the name of father’s mother and his grandfather. The Osage Nation sent a letter to DPSS informing it that the tribe could not determine the child’s enrollment eligibility because it needed the names and birthdates of her paternal grandparents. The form provided the name and birthdate of the child’s paternal grandmother but omitted the name of her paternal grandfather. DPSS asked father to call his mother, father, etc., and obtain their information so that it could notice the Osage tribe. Father gave DPSS the information for his side of the family for purposes of notifying the tribe. However, father neglected to inform the agency of his father’s name and date of birth. Father told the social worker “he has been calling around and does not want his child to be sent to Oklahoma [if] he [loses his parental] rights to her.” The social worker observed that father was “a little resistant in providing the information to me regarding his mother and father’s heritage.”
Ancestor information must be included on the form “if known.” (25 C.F.R. § 23.11(d).) DPSS had no duty to conduct an extensive independent investigation for information. (In re Levi U. (2000) 78 Cal.App.4th 191, 198-199.) Given father’s inability or resistance to giving his father’s name and date of birth, DPSS carried out its duty to the best of its ability to inform the Osage Nation of all information it had regarding the child’s lineage. Any failure to provide additional information that was within father’s power to give does not constitute prejudicial error on the agency’s part.
F. Mother Received an Evidentiary Hearing on Her Section 388 Petition.
Mother contends that the juvenile court refused to grant her a full evidentiary hearing on her section 388 petition. The record belies her claim: the juvenile court afforded mother her due process right to a section 388 hearing.
On the same date as the originally scheduled selection and implementation hearing, January 17, 2007, mother filed a section 388 petition requesting the trial court vacate the hearing and return the child to her custody. On the continuance date, January 22, 2007, the trial court stated, “Next shall we address the 388 motion?” Mother’s counsel replied, “I think that would be appropriate.”
In response, County Counsel stated, “With respect to the 388 . . . [w]e did not have a chance to submit an addendum in response to mother’s information. However, there is an addendum report on the companion case for the sibling . . . that was filed on January 18th that goes over some of the services provided to mother and her compliance. So if the Court is willing to accept that addendum report filed, again, on January 18th, we would be able to proceed with the 388 filed by [mother].”
When the juvenile court asked whether mother’s counsel objected, he stated, “I would just object for the record and I’ll submit on my pleadings regarding my request to change [the] Court order.” The juvenile court proceeded to accept the social worker’s report into evidence. County counsel then submitted on that evidence.
When the juvenile court asked for argument after the report was submitted into evidence, mother’s counsel argued that she should have an opportunity to have the child returned to her custody or obtain additional services. County counsel’s rebuttal argument was that mother did not attend therapy, continued in a relationship with her batterer, failed to attend domestic violence classes, and could not provide young children stability because she had held several jobs.
Also participating in the hearing were the child’s counsel and father’s counsel. The child’s counsel joined the county’s request to deny mother’s section 388 petition on the ground that mother made sporadic visits with the child. Father’s counsel joined mother’s section 388 request that she have custody returned to her.
Based on this record, it is clear that mother received her due process right to an evidentiary hearing. Although the law requires dependency proceedings to be conducted in an informal and nonadversarial atmosphere (§ 350, subd. (a)(1); rule 5.534(b)), a relaxed proceeding does not equate with an unofficial, deficient hearing void of evidence. Mother had an opportunity to present her argument that there were changed circumstances that were in the best interests of the child for her to have the child returned to her custody. Her counsel tendered evidence by way of mother’s pleadings. DPSS provided evidence in the form of a report filed on behalf of the baby four days previously. The trial court noted mother’s objection to that report. All parties had an opportunity to argue on the merits. As evidence was taken and arguments submitted, it is unmistakable that the trial court conducted an evidentiary hearing on mother’s petition.
As to the merits, the trial court properly denied mother’s section 388 petition. Mother failed to establish changed circumstances or that a modification of the order would be in the child’s best interests. Mother claimed she remained drug free, had maintained employment and a residence, participated in therapy, and had not been involved in any instances of domestic violence. However, the evidence indicated mother failed to continue her therapy sessions and did not complete her domestic violence program. Mother’s uncompleted case plan reveals that it was not in the child’s best interest to be placed with mother. The child was removed precisely because she lived with mother in a car parked outside the batterer’s apartment. Mother’s consistent failure to attend therapy, participate in domestic violence classes, and the fact that she lived across the street from another batterer against whom she had a restraining order militates against a finding she addressed the issues leading to the filing of the dependency petition.
Moreover, it was not in the child’s best interest to remove her from the caretakers’ home. The child considers her caretakers’ family to be her family; she had bonded with her prospective adoptive parents for two years and expressed fear of being removed from them. She considers them her parents as she calls them “mommy” and “daddy.” She held her caretaker’s face in her hands, looked the caretaker in the eye, and said, “Your [sic] my mom, right.” Even father acknowledged that removing the child from her current home would be traumatic for her.
G. The Trial Court Did Not Abuse Its Discretion in Denying Mother’s Request for a Bonding Study.
Mother contends that the trial court erroneously denied her request for a bonding study prior to terminating her parental rights. She asserts that the child knew her mother and was happy in her presence, thus a bonding study would have assisted the court in determining whether severing their bond would have been detrimental to the child.
Evidence Code section 730 empowers a court to appoint experts to prepare a bonding study. (In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1084.) The purpose of a bonding study is to obtain evidence of the nature and existence of a parent-child bond. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1168.) Bonding studies assist the court in determining whether the beneficial relationship exception to the termination of parental rights applies. (Id. at p. 1167.) The decision to appoint an expert is commended to the sound discretion of the juvenile court. (In re Jennifer J., at p. 1084.)
However, a court is not required to order a bonding study before terminating parental rights. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339 (Lorenzo C.).) A bonding study has the potential to delay the dependency proceedings, “in contravention of the Legislature’s mandate for the expeditious handling of juvenile matters.” (In re Tabatha G., supra, 45 Cal.App.4th at p. 1168; see also, e.g., In re Richard C. (1998) 68 Cal.App.4th 1191, 1197 (Richard C.).) By the time of the permanency planning hearing, a parent’s “right to develop further evidence regarding [his or] her bond with the child[] [is] approaching the vanishing point.” (Id. at p. 1195; Lorenzo C., at p. 1340.) “The denial of a belated request for [a bonding] study is fully consistent with the scheme of the dependency statutes, and with due process.” (Richard C., at p. 1197.)
A juvenile court’s denial of an Evidence Code section 730 bonding study is reviewed for an abuse of discretion. (Richard C., supra, 68 Cal.App.4th at p. 1197.) Under that standard, we determine “whether, under all the evidence viewed in a light most favorable to the juvenile court’s action, the juvenile court could have reasonably refrained from ordering [an Evidence Code section 730] bonding study.” (Lorenzo C., supra, 54 Cal.App.4th at p. 1341.)
We conclude the juvenile court did not abuse its discretion in denying mother’s request for a bonding study. First, she concedes in her brief that “[t]here is no requirement in statutory or case law that a court must secure a bonding study as a condition precedent to a termination order.” (Lorenzo C., supra, 54 Cal.App.4th at pp. 1339.)
Second, mother did not request a bonding study until the date of the contested section 366.26 hearing. Her belated request would not show the parent-child bond fit within the former section 366.26, subdivision (c)(1)(A) (now § 366.26, subd. (c)(1)(B)(i)) exception as that kind of bond does not arise in a short period of time. (Richard C., supra, 68 Cal.App.4th at p. 1196.) It was mother’s burden to secure expert evidence in sufficient time prior to the contested hearing. Once reunification services were terminated, her “right to develop further evidence regarding [his or] her bond with the child[] [is] approaching the vanishing point.” (Id. at p. 1195.) If mother believed a bonding study was necessary, she should have made a timely request prior to the hearing. “While it is not beyond the juvenile court’s discretion to order a bonding study late in the process under compelling circumstances, the denial of a belated request for such a study is fully consistent with the scheme of the dependency statutes, and with due process.” (Id. at p. 1197.)
While there was some evidence of a bond between mother and the child, the bond between the child and her caretakers was stronger. At the time mother made her request for the study, the child did not demonstrate sadness at the end of her visits with mother, even though she had lived with mother for two years. The child had spent nearly half of her life with the family that was willing to adopt her. Although happy to see her mother during visitations, the child eagerly returned to her caretakers’ custody. The child viewed mother as her mother in name only, but her caretaker as her mother in effect. When reunification services were terminated, mother only visited the child twice; she did not call on a monthly basis to request visitation.
Under these circumstances, it is unlikely that a bonding study would have assisted the court in determining whether mother maintained regular visitation and contact and the child would benefit from continuing the relationship. “[A]lthough the preservation of a minor’s family ties is one of the goals of the dependency laws, it is of critical importance only at the point in the proceeding when the court removes a dependent child from parental custody. [Citation.] Family preservation ceases to be of overriding concern if a dependent child cannot be safely returned to parental custody and the juvenile court terminates reunification services. Then, the focus shifts from the parent’s interest in reunification to the child’s interest in permanency and stability. [Citation.]” (Lorenzo C., supra, 54 Cal.App.4th at pp. 1339-1340, fn. omitted.)
The trial court did not abuse its discretion when it denied mother’s request for a bonding study.
H. The Trial Court Did Not Abuse Its Discretion in Terminating Mother’s Parental Rights.
Mother argues that the juvenile court erred in terminating her parental rights because the evidence presented at the contested selection and implementation hearing showed she had a strong bond with the child. She claims their mutual bond falls within the “beneficial relationship” exception to adoption under former section 366.26, subdivision (c)(1)(A) (now § 366.26, subd. (c)(1)(B)(i)), and that by severing that relationship, the juvenile court abused its discretion.
At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan, unless it finds a compelling reason for determining that termination of parental rights would be detrimental to the child under one of the exceptions set forth in section 366.26, subdivision (c)(1). (§ 366.26, subd. (c)(1); In re Celine R. (2003) 31 Cal.4th 45, 53.)
One such exception is the so-called “beneficial relationship” exception set forth in former section 366.26, subdivision (c)(1)(A) (now § 366.26, subd. (c)(1)(B)(i)). (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.)
Former section 366.26, subdivision (c)(1)(A) (now § 366.26, subd. (c)(1)(B)(i)) provides that if the juvenile court finds that a dependent child is adoptable, the court “shall” terminate parental rights, “unless the court finds a compelling reason for determining that termination would be detrimental to the child [because] . . .: [¶] (A) The parent[] ha[s] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” It “promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. . . . If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (Autumn H., supra, 27 Cal.App.4th at p. 575.)
In determining whether such a relationship exists, we look to “the 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, and the child’s particular needs . . . .” (Autumn H., supra, 27 Cal.App.4th at p. 576.) It requires much more than an incidental benefit to the child. Rather, it contemplates that the parent and the child will have developed such a significant, positive, and emotional attachment from the child to the parent that severance of the relationship would be detrimental to the child. (Id. at p. 575.) The parent must occupy a parental role with regard to the child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.)
There must be a “compelling reason” for applying the parental benefit exception. (§ 366.26, subd. (c)(1); In re Jasmine D. (2000) 78 Cal.App.4th 1339 (Jasmine D.).) The burden is on a parent to establish at the selection and implementation hearing that the exception applies. (Rule 5.725(e)(3); In re Daisy D. (2006) 144 Cal.App.4th 287, 291.) To satisfy this burden, the parent must show that his or her relationship with the child “‘promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.’” In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer.’” (Jasmine D., at p. 1345, quoting Autumn H., supra, 27 Cal.App.4th at p. 575.) “‘When the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent/child relationship, the court should order adoption.’” (Jasmine D., at pp. 1349-1350.) Alternatively, if “‘severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.’” (In re Derek W. (1999) 73 Cal.App.4th 823, 827, quoting Autumn H., at p. 575.)
At oral argument, Mother’s appellate counsel requested that we apply the Autumn H. substantial evidence standard of review. We recognize there is a split of authority regarding the applicable standard for reviewing a juvenile court’s decision as to whether the parental relationship exception to termination of parental rights should be applied. On the one hand, some courts have applied the abuse of discretion standard. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449; Jasmine D., supra, 78 Cal.App.4th at p. 1351 [applying parental benefit exception is a “quintessentially discretionary determination.”].) Other courts employ the substantial evidence standard. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425; Autumn H., supra, 27 Cal.App.4th at p. 576.) However, “[t]he practical differences between the two standards of review are not significant. ‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only “‘if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.’ . . .”’ [Citations.]” (Jasmine D., at p. 1351.) Under either standard of review, we find that the juvenile court did not err in concluding that the children’s need for permanency outweighed any benefit which they might have derived from maintaining their biological connection with mother, and that the former section 366.26, subdivision (c)(1)(A) (now § 366.26, subd. (c)(1)(B)(i)) exception therefore did not apply.
“The juvenile court’s opportunity to observe the witnesses and generally get ‘the feel of the case’ warrants a high degree of appellate court deference.” (Jasmine D., supra, 78 Cal.App.4th at p. 1351.) When two or more inferences can reasonably be deduced from the facts, we have no authority to substitute our decision for that of the trial court. (In re Stephanie M. (1994) 7 Cal.4th 295, 319.) We will reverse only if we conclude that the trial court exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (Jasmine D., at p. 1351.)
The social worker testified that during visitation, the child would run to mother, hugged her, and called mother “mommy.” There were never any problems during the visitations: Mother always acted appropriately, provided for the child’s needs, played with her and talked with her about her living situation. The child knew mother as her mother and liked that fact.
However, this evidence was insufficient to show the benefits from a continued relationship with mother outweighed the benefits from a stable and permanent home provided by adoption. The title “mommy” is not enough to establish the exception. Mother must show that she occupied the position of “mother” in the child’s world. That showing requires evidence that mother fulfilled the needs of the children by performing the functions ordinarily performed by a parent, such as providing food, shelter, clothing, affection, and guidance. (See In re Casey D., supra, 70 Cal.App.4th at p. 50; see also Autumn H., supra, 27 Cal.App.4th at p. 575.)
Mother did not present evidence to show that she performed those functions in “day-to-day interaction, companionship and shared experiences” with the child. (In re Casey D., supra, 70 Cal.App.4th at p. 51.) Rather, the evidence showed the child was with her caretakers for almost two years, and had spent nearly half of her life with them. The child did not demonstrate any sadness at the end of her visits with mother. She would eagerly return to her caretaker. When the child was fearful, scared, or indecisive, she would go to her caretakers. She referred to her caretakers as “mommy” and “daddy” and called mother “mommy [C.],” more in the manner of a title, than as her bona fide parent. The child never discussed with the social worker that she “loved her mother [C.]” or she “missed her mother.” The child expressed fear that she would be removed from her caretakers, and told the social worker that her prospective adoptive family was her home and “this is her family.” She has held the caretaker’s face in her hands, looked her in the eye and said, “Your [sic] my mom, right.”
During oral argument, Mother’s counsel argued that we should not consider the benefit in daily interactions, but only consider the exception in the context of the limitation placed on visitation, citing Brandon C. (1999) 71 Cal.App.4th 1530.) In Brandon C., the juvenile court’s selection of a plan of legal guardianship was upheld, the Court of Appeal noting that “[t]he benefit of continued contact between mother and children must be considered in the context of the very limited visitation mother was permitted to have.” (Id. at pp. 1537-1538.) There, however, “[i]t [was] undisputed that mother visited the boys consistently for the entire lengthy period of this dependency case . . . [and] [t]he trial court obviously credited the testimony from both mother and grandmother that there was a close bond between mother and the boys, and that a continuation of contact would be beneficial to the children.” (Id. at p. 1537.) Thus, although there may have been a dearth of evidence that the mother provided her sons with “‘comfort, nourishment or physical care,’” on a day-to-day basis, in light of the fact there had been consistent visitation and a close bond, the court was satisfied that a benefit would be derived by continuing the relationship. Here, in contrast, there is little, if any, evidence of a bond.
The record indicates that Alexis viewed her mother as a familiar playmate. To meet the burden of proof for the former section 366 .26, subdivision (c)(1)(A) (now § 366.26, subd. (c)(1)(B)(i)) exception, the parent must show more than frequent and loving contact or pleasant visits. (In re Derek W., supra, 73 Cal.App.4th at p. 827.) The parent must show that he or she occupies a parental role in the child’s life, resulting in a significant, positive, emotional attachment from child to parent. (Autumn H., supra, 27 Cal.App.4th at p. 575.; In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954.) Moreover, even if a child loves his or her parents, the court may nonetheless terminate parental rights if doing so is in the child’s best interests. (§ 366.26, subd. (h).) That mother loves Alexis and that her visits with her were positive is apparent from the record. But this, without more, is not evidence sufficient to overcome the former section 366.26, subdivision (c)(1)(A) (now § 366.26, subd. (c)(1)(B)(i)) hurdle.
The parent must show that he or she occupies a parental role in the child’s life and, moreover, that the benefits of continuing that parental relationship with the child outweigh the benefits the child would realize from having a stable and permanent home provided by adoption. (Autumn H., supra, 27 Cal.App.4th at p. 575.) Mother failed to show she occupied a parental role in the child’s life or that the benefits to the child of continuing a relationship with mother outweighed the benefits of adoption. The child appeared to be happy, healthy, and well adjusted in her new home. Mother conceded that the child no longer viewed her as much of a parental figure as she did previously. Contrary to her claims, she did not maintain a regular visitation schedule with the child. When her reunification services were terminated, mother only visited the child twice and she did not call on a monthly basis to request visitation.
These are not the circumstances that create a parent/child relationship and beneficial enough to avoid the termination of parental rights under section 366.26 subdivision (c)(1)(A). (Richard C., supra, 68 Cal.App.4th at p. 1196.)
Accordingly, the juvenile court did not abuse its discretion in concluding that the beneficial relationship exception to termination of parental rights does not apply in this case.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, Acting P.J., McKINSTER, J.