Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J208675. Kyle S. Brodie, Judge.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
Neil R. Trop, under appointment by the Court of Appeal, for Minor.
OPINION
HOLLENHORST, J.
A juvenile court terminated the parental rights of J.P. (mother) as to her child, A.M. (the child). On appeal, mother claims: 1) the juvenile court failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.); and 2) the beneficial relationship exception applied. (Former Welfare and Institutions Code, § 366.26, subd. (c)(1)(A) .) We agree with mother’s ICWA claim. Therefore, we will conditionally vacate the judgment and remand the matter to the juvenile court with directions to order compliance with the ICWA inquiry and notice provisions. In all other respects, we affirm.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise indicated.
The beneficial relationship exception to the termination of parental rights has recently been renumbered to section 366.26, subd. (c)(1)(B)(i), effective January 1, 2008. For purposes of clarity, we will refer to it as former section 366.26, subdivision (c)(1)(A).
Counsel for the child filed a letter brief on April 24, 2008, urging us to affirm the court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
On June 6, 2006, the San Bernardino County Department of Children’s Services (the department) filed a petition on behalf of the child and his brother, J.J. The child was 19 months old at that time. The petition alleged that the children came within section 300, subdivision (b) (failure to protect), and (g) (no provision for support). Specifically, the petition alleged that mother suffered from a mental illness, that her behavior was erratic and unsafe, that, on June 2, 2006, she allowed the child to be in the presence of her live-in boyfriend, who was carrying a concealed loaded weapon and was a known gang member, that mother failed to provide J.J. with medical care for his bronchitis, sore throat, and pink eye, and that mother was arrested for assaulting a police officer. In the detention report, the social worker stated that mother and her boyfriend were stopped by the police and the boyfriend tried to run with the child. When the police stopped him, they found a loaded handgun in his pocket. While the boyfriend was being arrested, mother struck the officer.
J.J. is not a subject of this petition.
The petition also included allegations regarding the child’s father (father), who is not a party to this petition.
The detention hearing was held on June 7, 2006. At the hearing, the court asked mother if she had any Native American Indian heritage in her family. Mother stated she had Indian heritage through the Blackfeet, Apache, Cherokee, and Native American tribes. After the court informed her that Native American was not a tribe, mother said, “Well, Blackfoot [sic], Apache, Cherokee and Choctaw, I think it is.” The court then ordered her to fill out a form and provide the court and the department with as much information as she could regarding her Indian heritage. The court detained the child and placed him in foster care.
Jurisdiction/disposition
The social worker filed a jurisdiction/disposition report on June 27, 2006, recommending that the child be declared a dependent of the court and that mother be offered reunification services. The social worker reported that mother was bipolar. Mother said she was currently taking Prozac, Risperdal, and Dylatin, but mother’s cousin told the social worker that mother had not been taking her medications on a regular basis. With regard to ICWA, the social worker reported that he had an ICWA interview with mother on June 14, 2006. Mother stated that she knew she had Indian heritage, but did not know where it came from. She directed the social worker to speak with her cousin, Natasha S., about their Indian ancestry. The next day, the social worker interviewed Natasha S., who said she was not certain where the Indian ancestry came from. She indicated that she and mother had never participated in a tribal activity. The social worker also interviewed mother’s cousin, K.M., who similarly said she knew nothing about the family’s Indian ancestry. However, she suggested that mother’s brother, Justin P., may have some information. That same day, the social worker attempted to contact Justin P., but his phone was disconnected.
On June 28, 2006, the jurisdiction/disposition hearing was continued to July 31, 2006, for a contested hearing. The matter was also continued for mediation.
The social worker prepared an ICWA Declaration of Due Diligence (ICWA Declaration) dated July 21, 2006, which was filed on July 19, 2006. According to the report, the social worker spoke with mother again on July 11, 2006, and she provided him with the names of her parents. Furthermore, the report stated that efforts to notice the Bureau of Indian Affairs (BIA) had been completed. The Notice of Involuntary Child Custody Proceedings for an Indian Child was received by the BIA on July 14, 2006. However, at the time of the filing of the ICWA Declaration, the social worker had not received confirmation of membership.
At the jurisdiction/disposition hearing on July 31, 2006, the juvenile court admitted the ICWA Declaration into evidence. The court found that the child did not come under ICWA. The court further found the allegations in the petition regarding mother to be true and declared the child a dependent of the court. It granted reunification services and ordered mother to participate. The court also ordered supervised visitation for a minimum of twice per week.
Six-month Status Review
The social worker filed a six-month status review report recommending that mother’s reunification services be terminated. The social worker reported that after the July 31, 2006, jurisdiction/disposition hearing, mother stopped visiting the child and did not remain in contact with the department. He also reported that he received a phone call on October 2, 2006, from a social worker at Arrowhead Regional Medical Center, who informed him that the police had brought mother to the psychiatric ward. In the middle of the night, mother went to a home where she thought the child was staying. She pounded on the door and demanded that the child be released to her. The police could not calm her down and had to use a Taser gun on her. A conservatorship was established for mother, and she was transferred from the psychiatric ward to a board and care home.
On January 10, 2007, mother’s board and care home manager, Linda Phelan, spoke with the social worker and reported that mother had a very aggressive temper and was extremely moody.
As to visitation, the social worker reported that from the time of the child’s removal until July 30, 2006, mother visited the child weekly. The person supervising the visits stated that the visits fluctuated, depending on mother’s mood. When she was in a good mood, the visits went well, but when she was in a bad mood, her conduct was inappropriate, and she would mostly pay attention to J.J. From July 31, 2006, to October 15, 2006, mother failed to make any attempts to visit the child. She resumed visitation on November 3, 2006. During one visit, mother was upset and stated that everyone was out to get her. When the person supervising the visit asked mother to calm down, mother accused her of trying to frame her. When asked to calm down again, mother became irritated and threatened to run away with the child.
The court held the six-month review hearing on January 31, 2007. Despite the social worker’s recommendation, the court continued mother’s reunification services.
Psychological Evaluation
Mother completed a psychological evaluation with Dr. John Kinsman. Mother told Dr. Kinsman that she was raised by her grandmother, who emotionally and physically abused her. Mother was also sexually molested throughout her childhood. Mother further reported that she had been hospitalized for psychiatric reasons on several occasions. Dr. Kinsman stated that mother met the criteria for Bipolar I Disorder and was currently experiencing depression. Dr. Kinsman also opined that mother did not have a close emotional bond with the child. Dr. Kinsman stated that until mother accepted the need for therapeutic assistance and engaged in a sustained medication regimen, as well as individual psychotherapy, reunification with the child would expose him to the same risk factors that previously resulted in his removal.
12-month Status Review
In April 2007, another social worker (the second social worker) was assigned to mother’s case. This social worker filed a 12-month status review report recommending that mother’s reunification services be terminated and that a section 366.26 hearing be set. As to visitation, the second social worker noted that although the weekly visits were scheduled for two hours, they usually ended rather quickly, as mother grew tired of the child after 30 to 40 minutes. Mother and the child had no apparent bond. He did not recognize her as his mother, but rather as a playmate. She was not maternal toward the child, in that she never used terms of endearment or attempted to cuddle him. Mother brought candy to each visit and usually had to be prompted not to feed him too much, as well as to check the child’s diaper.
In an addendum report, the second social worker stated that mother had a visit with the child on June 27, 2007. When the child arrived and saw mother, he immediately turned back to the door, screaming “‘car.’” The child then ran to the second social worker and clung to her waist. He did not want mother to touch him and did not want to interact with her. When the second social worker tried to redirect his attention to mother, he threw himself on the floor and had a major tantrum. Mother attempted to pick him up and told him he needed a time out. The child’s tantrum did not subside, and mother became frustrated, so the visit was terminated.
The court held a 12-month status review hearing on August 13, 2007. Mother testified at the hearing. She said the visits were scheduled for one hour every week. She denied that she only wanted to stay for 40 minutes during the visits, and instead said that the visits were shorter because the child was tired or the social worker would have to leave. She further denied ever becoming frustrated during visits.
The second social worker testified as well. She testified that the visits were scheduled for two hours, and that she was present during most of the visits. She testified that mother usually wished to end the visits early, that mother seemed unable to tolerate the child, and that the child seemed unable to tolerate mother.
After reviewing all the evidence, the court found that mother failed to make substantive progress in her case plan, and that return of the child to her custody would create a substantial risk of detriment to the child’s safety, protection, or physical or emotional well-being. The court further found that mother had not consistently visited the child, and that mother had not shown the capacity or ability to complete the treatment plan objectives or provide for the child’s needs. The court ordered mother’s reunification services terminated and set a section 366.26 hearing for December 11, 2007.
On August 17, 2007, mother filed a notice of intent to file petition for extraordinary writ pursuant to California Rules of Court, rule 8.452 (case No. E043862). She contended that the court erred in terminating reunification services and setting a section 366.26 hearing. We denied the writ petition.
All further rule references will be to the California Rules of Court unless otherwise indicated.
Section 366.26 Report and Hearing
The social worker filed an adoptability assessment report on November 29, 2007, and a section 366.26 report on December 5, 2007. She recommended that parental rights be terminated and adoption be selected as the permanent plan for the child. The child had been in his current foster home since October 11, 2007, and the prospective adoptive parent, Ms. H., had expressed a strong desire to adopt him. Ms. H. described her relationship with the child as good and very loving. The child appeared to be attached to her, called her “‘mom,’” and looked to her to meet his emotional needs. They lived in a well-maintained, two-bedroom apartment in a quiet and safe neighborhood.
In the section 366.26 report, the social worker stated that the child did not have a bond with mother. The child had, in fact, begun to throw tantrums when he interacted with her. During the last visit on November 28, 2007, the child had a violent temper tantrum, and mother was inappropriate in dealing with him; thus, the visit had to be terminated. The social worker recommended that there be no further visits between mother and the child, since he begins to misbehave when he sees her.
A contested section 366.26 hearing was held on January 14, 2008. Mother testified at the hearing regarding her visits with the child. She said that he called her “mommy” and that when he saw her, he was happy and wanted her to hold him. She said that he sometimes cried when he had to leave her. When asked about the child’s tantrums during visits, mother said he only had tantrums when he wanted something. She denied that the visits were ever terminated early.
The court found by clear and convincing evidence that it was likely that the child would be adopted, and then terminated parental rights.
ANALYSIS
I. The Department Failed to Comply With ICWA Inquiry and Notice Requirements
Mother argues that the termination order must be reversed since the court and the department failed to comply with the inquiry and notice requirements of ICWA. She contends that the department failed to conduct an adequate inquiry into her Indian ancestry, and then failed to provide notice to the identified tribes. Furthermore, she argues that the court erred when it determined that ICWA was not applicable here. We agree.
A. The Department and the Court Failed to Make an Adequate Inquiry as to Mother’s Indian Ancestry
Mother argues that the court did not fulfill its inquiry duty since it failed to obtain the mandatory form JV-130 (Parental Notification of Indian Status) from her. Subdivision (d) of rule 5.664 was in effect during the proceedings below in this case. It provided that both the juvenile court and the department had “an affirmative and continuing duty to inquire whether a [dependent] child . . . is or may be an Indian child.” It also required the court to order the parent to complete the JV-130 form. (See rule 5.481(a)(2).)
On January 1, 2008, the JV-130 form was replaced by the Parental Notification of Indian Status, form ICWA-020. For purposes of clarity, we will continue to refer to the form as the JV-130.
Effective January 1, 2008, rule 5.664 was repealed, and the rules pertaining to ICWA can now be found at rule 5.480 et seq.
The record does not demonstrate that the court completely fulfilled its duty under rule 5.664/5.481. The record shows that the court did inquire whether the child was an Indian child at the detention hearing on June 7, 2006. The court asked mother if she had any Native American heritage in her family. Mother stated she had Indian heritage through the Blackfeet, Apache, Cherokee, and Native American tribes. After the court informed her that Native American was not a tribe, mother identified the tribes as Blackfeet, Apache, Cherokee, and Choctaw.
The court then stated: “And you’re going to have to fill out a form giving us as much information as you can about rather [sic] it’s your mother’s or father’s side of the family you claim heritage to these various tribes. The more information you can give us with names, birth dates, addresses, the easier it is for the tribes to look up and make a determination as to rather [sic] or not either of your children or both of your children would be eligible to be considered a member of the tribe.” The department concedes that the court did not specifically refer to the document by name, yet claims that “the transcript clearly reflects [that] the court ordered mother to complete the Parental Notification.” We disagree. The form the court referred to does not appear to be the JV-130 form. The JV-130 form merely requires the parent to state his/her name, relationship to the child, and to check one of the boxes indicating whether or not he/she is a member of a federally recognized Indian tribe, or has no Indian ancestry, or may have Indian ancestry. It also requires the parent to name the applicable tribe(s). The JV-130 form does not ask the parent for information regarding names, birthdates, or addresses. Since the court here asked mother to supply such information on the form, it appeared to be referring to the Notice of Involuntary Child Custody Proceedings for an Indian Child (form JV-135). Therefore, the court did not order mother to complete the JV-130 form at the detention hearing, and thus, did not comply with its duty under rule 5.664/5.481(a)(2).
On January 1, 2008, the JV-135 form was replaced by the ICWA-030 form.
Mother further contends that the department failed to conduct an adequate inquiry regarding the child’s possible Indian status since it did not attempt to contact “all of mother’s living blood relatives.” If the social worker has reason to know that an Indian child may be involved, he or she must make further inquiry by interviewing “‘extended family member[s],’” including the child’s grandparents, aunts and uncles. (25 U.S.C. § 1903(2); rule 5.481.) While the department was not required to contact all of mother’s blood relatives, it should have at least attempted to contact all of mother’s known relatives. (See rule 5.481(a).) The department only interviewed two of mother’s cousins, who provided no information, and attempted to contact mother’s brother. However, the record indicates the social worker was aware that mother had two sisters and four brothers, and that she was raised by her grandmother in Monterey Park. Mother had also given the social worker the names of her parents. There was no apparent attempt to contact these relatives.
We conclude that the court and the department did not fulfill their inquiry duties.
B. The Department Failed to Comply With ICWA's Notice Requirements
Mother next argues that the department failed to comply with ICWA notice requirements, since it failed to send notice of the proceedings to the four tribes she identified. We agree.
“[W]here the court 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. § 1912(a), italics added; see In re Samuel P. (2002) 99 Cal.App.4th 1259, 1264-1265.) “One of the purposes of giving notice to the tribe is to enable it to determine whether the minor is an Indian child. [Citation.]” (In re Louis S. (2004) 117 Cal.App.4th 622, 630 (Louis S.).) The notice must include information such as the child’s name, date of birth, and place of birth; the names and addresses of the child’s parents, grandparents, and great-grandparents; and dates of birth or death and/or other identifying information. A copy of the dependency petition must also be provided. (Ibid.) It is the department’s responsibility to obtain as much information as possible about the child’s potential Indian background and to provide that information to the relevant tribe or, if the name of the tribe is not known, to the BIA. (Ibid.) When the notice sent is inadequate, the orders of the court terminating parental rights should be vacated and the matter should be remanded to the juvenile court with directions to order compliance with the ICWA notice provisions. (In re Jonathan D. (2001) 92 Cal.App.4th 105, 111.) “If, after proper inquiry and notice, no response is received from a tribe indicating the minor is an Indian child, all previous findings and orders shall be reinstated. If a tribe determines that the minor is an Indian child, or if other information is presented to the juvenile court that suggests the minor is an Indian child as defined by [ICWA], the juvenile court is ordered to conduct a new section 366.26 hearing in conformity with all provisions of [ICWA].” (Id. at pp. 111-112.)
The department argues that it complied with ICWA by sending notice to the BIA. However, 25 United States Code section 1912(a) authorizes notice to the BIA when the department cannot determine the identity or location of the tribe. (See In re Edward H. (2003) 100 Cal.App.4th 1, 5 (Edward H.).) Here, mother identified four tribes—the Blackfeet, Apache, Cherokee, and Choctaw tribes. However, the department inexplicably failed to send notices to any of them. The department should have sent notices to all of the federally recognized Blackfeet, Apache, Cherokee, and Choctaw tribes.
Although the department acknowledges that mother initially identified four tribes, it argues that she later conceded to the social worker that she did not know where her Indian heritage came from. The jurisdiction/disposition report reflects that the social worker interviewed mother on June 14, 2006. The social worker reported that mother “stated that she knows she has Indian heritage but she does not know where it comes from.” The department asserts that this statement meant that mother “was unclear as to what tribe [the child] may have been eligible for membership in.” However, the statement is ambiguous. Mother could have meant that she did not know which side of the family her Indian heritage came from. In light of mother’s previous identification of the four tribes, along with her statement at the interview that she knew she had Indian heritage, this interpretation seems more reasonable than that of the department.
The department relies upon Edward H., supra, and In re C.D. (2003) 110 Cal.App.4th 214 (C.D.), in support of its position, but these cases are factually distinguishable. In Edward H., the father said he had reason to believe he belonged to the Choctaw tribe. The agency only gave notice to two of the three federally recognized Choctaw tribes. (Edward H., supra, 100 Cal.App.4th at p. 4) The court held that “proper notice to some but not all possible tribes in which a dependent child may be eligible for membership does not violate the ICWA provided the agency also gives notice pursuant to 25 United States Code section 1912 to the [BIA].” (Ibid.) Similarly, in C.D., the mother said she was of Cherokee heritage, but did not identify a specific Cherokee tribe. The agency gave notice to two of the three federally recognized Cherokee tribes. Citing Edward H., the court in C.D. stated: “While we agree it would have been optimal if DCFS had given notice of the proceedings to all three of the federally recognized Cherokee Tribes, we disagree with [the] father’s position the failure to do so constitutes noncompliance with the ICWA or prejudicial error.” (C.D., supra, at p. 227.) Unlike the agencies in Edward H. and C.D., the department here failed to send notice to any of the four tribes identified by mother. It only sent notice to the BIA. Such notice to the BIA was insufficient since mother had named four tribes.
Additionally, we note that the information provided in the notice to the BIA was inadequate. The department provided some, but not all known information in its notice. The notice only included the child’s name, birthplace, and date of birth; father’s name; mother’s name, birthdate, and current address; and the names of the maternal grandparents. However, it did not include mother’s birthplace or father’s birthdate, even though the record shows the department had this information. Moreover, the notice did not include the names of the four tribes identified by mother. Thus, the department failed to provide as much information as possible about the child’s potential Indian background in its notice. (Louis S., supra, 117 Cal.App.4th at p. 630.)
We conclude that the court and the department failed to comply with ICWA inquiry and notice requirements. Thus, the matter must be remanded for proper ICWA compliance.
II. The Beneficial Parental Relationship Exception Did Not Apply
Mother contends that the court erred in not applying the beneficial parental relationship exception under former section 366.26, subdivision (c)(1)(A). We disagree.
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 Celine R. (2003) 31 Cal.4th 45, 53.) 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 former section 366.26, subdivision (c)(1). One such exception is the beneficial parental relationship exception set forth in former section 366. 26, subdivision (c)(1)(A). (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) This exception applies when the parents “have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (Former § 366.26, subd. (c)(1)(A).) The phrase, “benefit from continuing the relationship,” refers to a parent/child relationship that “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. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H).) It is the parent’s burden to show that the beneficial parental relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)
In support of her position, mother asserts that her visits with the child were “regular, consistent and—at times—very positive,” that she loved the child, and that he recognized her as his “mommy.” The record belies her claims. Mother stopped visiting the child for over two months, from July 31, 2006, to October 15, 2006. When mother resumed her visits, she failed to bond with the child. Although the weekly visits were scheduled for two hours, mother usually wanted to end them after 30 to 40 minutes. The social worker observed that mother grew tired of the child and was unable to tolerate him after a short while. Moreover, the child did not recognize mother as his mother, but rather as a playmate. She was not maternal or affectionate toward him, and she had to be prompted not to feed him too much candy and to check his diaper. At a visit on June 27, 2007, the child saw mother and immediately ran and clung to the social worker. He did not want mother to touch him and did not want to interact with her. When the social worker attempted to redirect his attention to mother, he had a major temper tantrum. In the section 366.26 report, the social worker stated that the child did not have a bond with mother. The child reportedly had begun to throw tantrums when he had to interact with mother. During the last visit on November 28, 2007, the child had a violent temper tantrum, and mother was inappropriate in dealing with him; thus, the visit had to be terminated.
Clearly, mother’s interactions with the child do not even begin to demonstrate that her relationship with him promoted his well-being “to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) Mother has proffered no evidence to support a finding that the child had a “substantial, positive emotional attachment [with her] such that [he] would be greatly harmed” if the relationship was severed. (Ibid.) In contrast, the record shows that the child was doing well in his prospective adoptive home. The prospective adoptive mother described her relationship with the child as good and very loving. The child appeared to be attached to her, called her “‘mom,’” and looked to her to meet his emotional needs.
We conclude that the beneficial parental relationship exception under former section 366.26, subdivision (c)(1)(A) did not apply here.
DISPOSITION
The order of the juvenile court terminating parental rights is vacated, and the matter is remanded to the juvenile court with directions to order compliance with the ICWA inquiry and notice provisions. Specifically, the court must order mother to complete the Parental Notification of Indian Status form and the appropriate tribes must be properly noticed of the proceedings. If, after proper notice, a tribe claims that the child is an Indian child and seeks to intervene in the juvenile court proceedings, a further permanency hearing shall be held in accordance with ICWA. If, on the other hand, no tribe claims the child to be an Indian child, or if no tribe seeks to intervene, the order terminating parental rights, which in all other respects is affirmed, shall be reinstated.
We concur:RAMIREZ, P.J., KING, J.