Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INJ017312, Christopher J. Sheldon, Judge.
Joseph T. Tavano, under appointment by the Court of Appeal for Defendant and Appellant, Mandy D.
Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
Valerie N. Lankford, under appointment by the Court of Appeal for Minor.
OPINION
MILLER, J.
On appeal from an order terminating her parental rights to Andrew D. (the child), Mandy D. (mother) claims that the juvenile court erred when it found that the Riverside County Department of Public Social Services (DPSS) complied with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.), and that ICWA did not apply. She claims that the record is insufficient to demonstrate meaningful compliance with the ICWA noticing requirements. DPSS concedes that the record is indeed inadequate. Mother also claims that there was no substantial evidence in the record to support the juvenile court’s finding that there was no compelling reason to conclude that there existed such a beneficial relationship between the child and mother that terminating parental rights would be detrimental to the child. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).)
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We find that there is insufficient evidence in the record to establish that proper notice was given under the ICWA, and on that basis reverse the order terminating mother’s parental rights.
FACTUAL AND PROCEDURAL HISTORY
A petition was filed on August 29, 2005, alleging that the child came within the jurisdiction of the juvenile court because mother failed to adequately supervise or protect him. Mother allowed the child to be thrown against a wall by another inhabitant of the home where she lived with the maternal grandmother, and failed to obtain medical treatment for the resultant bump on his head. She was also observed to yell at the child (then age three) and to use profanity in his presence. Mother (herself a minor) and the child had previous involvement with the social welfare system, having received family maintenance services from April 2002 to March 2005. The child was born as the result of mother having been molested. The father had been absent from the child’s life almost from the beginning. Both mother and the child were detained and were placed together in confidential foster care.
Although mother initially told the social worker that she had no Indian ancestry, she later filled out a form JV-130 indicating that she may have Indian ancestry. She also indicated that her mother was Cherokee. At the detention hearing the juvenile court noted that this was a possible ICWA action and returned both mother and the child to the home of the maternal grandmother. It was reported to the court that mother believed that the ICWA may apply and that the paternal great-great-grandmother was full-blooded Cherokee.
At the time of the jurisdiction/disposition report the social worker noted that JV-135 notices were sent to the Bureau of Indian Affairs (BIA), Indian Child Welfare Services, and the Cherokee tribes. No copies of the notices were filed with the report. It was recommended that the juvenile court assume jurisdiction over the child, and that mother be provided with family maintenance services, counseling, and education. At the hearing on September 21, 2005, the juvenile court accepted these recommendations.
A subsequent petition was filed on December 16, 2005, alleging (1) that mother again yelled profanities at the child and held him down to force him to take a dose of medicine at the doctor’s office, (2) that mother had neglected the child’s health in that she failed to make a follow-up medical appointment to obtain corrective surgery for a hernia, and in that he was underweight and/or underdeveloped for his age, and (3) that mother failed to protect the child from being struck in the head by a 14-year-old resident of the home. The detention report stated that the child’s great-grandmother may be full-blooded Cherokee and that the Cherokee Tribal Council had been properly noticed, but again, no documentation was attached. This information was conveyed to the juvenile court at the hearing. At that time the child was placed in foster care. Mother had not been participating in the recommended counseling and education programs. The juvenile court ordered reunification services and weekly supervised visitation for mother.
By January 10, 2006, DPSS had received a letter from the Cherokee Center for Family Services indicating that the child was not registered or eligible to register as a member of the Eastern Band of Cherokee Indians. Consequently it was recommended that the juvenile court find that the ICWA did not apply.
The report filed January 10, 2006, also stated that mother had shown a lack of follow-through on the services offered to her, did nothing without the prodding and assistance of the maternal grandmother, and blamed others for her inability to comply with referrals. Mother’s interactions with the child were observed to be more friendly than motherly. Only when the child was removed from the home did mother demonstrate some motivation to begin complying with her case plan.
A report filed on March 7, 2006, stated that mother was making good progress at high school and was on target to graduate on schedule in June. Mother had very good attendance at her counseling sessions and was making good progress but had yet to enroll in parenting classes despite several referrals. Mother was attending weekly visits with the child and they were interacting well with one another. The foster parent reported that the child was doing well and that visits were going well. On March 17, 2006, the juvenile court authorized overnight and weekend visits with mother pending a suitable home evaluation, continued reunification services, and authorized family maintenance placement with mother upon her completion of parenting classes.
A report filed on September 19, 2006, indicated that the child was placed with mother on July 10, 2006. Mother had participated in weekly visits as well as overnight and weekend visits from March through the middle of June 2006. The social worker reported that after the initial weekend visit the child was tearful and did not want to leave, but he progressed to fewer and fewer tears over time and “left his family with hugs and kisses.” Mother was scheduled to graduate from high school by the fall, was attending counseling, and had completed parenting classes. Since his return to her supervision, mother had been doing a good job of caring for the child and he appeared clean and well dressed. He reportedly clung to mother, hugged her during a social worker’s visit, and expressed his needs to her. Mother responded well to those needs and had been able to meet them. It was recommended that family maintenance be continued for an additional six months. On September 26, 2006, the juvenile court made orders in agreement with this recommendation and also found that the ICWA did not apply to this case.
A supplemental petition was filed on December 8, 2006, alleging (1) that mother failed to protect the child from the maternal grandmother, who struck him with a belt and a wooden paddle so as to leave bruises on his buttocks, and who was also allowed to care for the child when she was intoxicated, (2) that mother had failed to seek mental health services for her bipolar disorder and had failed to take her medications for over a year, and (3) that mother continued to become enraged at the child, yelled and used profanity towards him. As of December 6, 2006, the child was again placed in foster care.
The detention report stated that the foster placement was made on December 5, 2006.
The detention report indicated that mother had not been attending school because they were homeless and she had no care for the child. Mother failed to report to her social worker that she and the child were homeless. The family was found living in a motel room without means of storing or cooking food, in the company of an apparently intoxicated man known to police for his history of public drunkenness. Maternal grandmother appeared to be intoxicated. The family had been living with a friend of the maternal grandmother but she had put them out several weeks earlier. This friend reported that both mother and the maternal grandmother yelled and cursed at the child. She also indicated that mother did not bathe or feed the child, and described mother as bipolar and suicidal. Mother confirmed the report that the maternal grandmother had struck the child with a wooden paddle and offered that a male resident of the friend’s home struck the child as well. Mother could not explain why she had not reported this mistreatment of her son. Mother also admitted that she had been diagnosed with bipolar disorder but was not in treatment. Despite mother having been prescribed medication, she had not taken it in a year. The social worker observed the child to have bruising on his buttocks consistent with being struck with a paddle as mother described. The child reported that his grandmother hit him with a paddle because he did not listen and also hit him with a belt.
According to a report filed February 20, 2007, the child was adjusting to his foster placement. He was friendly towards, and listened to, his foster mother. Mother had not visited the child and her whereabouts were unknown for a time. The social worker was in the process of setting up supervised visits.
In a report filed on February 22, 2007, DPSS recommended that the court terminate services to mother because she had exceeded the statutory time frame for services. On February 22, the juvenile court terminated services and set a selection and implementation hearing under section 366.26.
In a report filed June 8, 2007, it was stated that mother had been having biweekly supervised visits with the child, that he had been responding well to her, and that there had been no problems. In a later report it was stated that the child was happy and well cared for in his foster placement, that he was doing well, had adjusted to his current family, and that they had expressed a willingness to adopt him. The foster mother reported that the child was doing well and exhibited no behavioral problems other than occasional tantrums and not listening. The child told the social worker that he had been happy to see his “‘real mommy’” the day before and his excitement was confirmed by his babysitter. When the social worker next visited he asked if she was going to take him to see his mother.
Subsequent reports indicated that mother had had limited supervised visitation with the child. Mother had maintained contact with the child but did not have the means and/or ability to properly care for him. The foster mother appeared to have a bond with the child and had completed the application process for adoption. The child had enrolled in school but was struggling academically. He had been referred for testing and special-education services as well as tutoring. The child was described as happy, helpful, and loving, and he was thriving in his placement. He appeared bonded to his foster parent, her children, and her extended family. While too young to understand adoption, the child stated that he “loves his foster mommy and wants to live there forever.” Later, mother was having monthly supervised visits with the child. The social worker reported that mother played with the child, that he responded well to her, and that there had been no problems. Both mother and the maternal grandmother had become belligerent with the social worker and the foster family agency, and had stated that the child would not be adopted, hence there was concern that continued visitation might not be appropriate. At a hearing on January 24, 2008, counsel reported that mother had been hospitalized on a section 5150 detention and requested a continuance to enable her to be present at the hearing.
The section 366.26 hearing was continued several times and was finally heard on February 21, 2008. At that time the juvenile court agreed with DPSS’s recommendation and terminated mother’s parental rights to the child. In so doing, the juvenile court also found that termination of parental rights would not be detrimental to the child in that none of the exceptions contained in section 366.26, subdivision (c)(1)(A)-(F), applied in this case. This appeal followed.
DISCUSSION
A. Substantial evidence supports the juvenile court’s finding that the section 366.26, subdivision (c)(1)(B)(i), exception to termination of parental rights does not apply.
At the section 366.26 hearing, counsel for mother argued that the juvenile court should find a compelling reason that termination of mother’s parental rights would be detrimental to the child because she had maintained regular visitation and contact with him, and he would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i).) On appeal, mother claims that the evidence showed the child had a beneficial relationship with her and that the juvenile court therefore erred when it terminated her parental rights.
“To overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child’s life resulting in a significant, positive emotional attachment of the child to the parent. [Citations.] [¶] When applying the beneficial parent-child relationship exception, the court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. If severing the existing parental relationship would deprive the child of ‘a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.’ [Citation.] [¶] We determine whether there is substantial evidence to support the court’s ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court’s ruling. [Citation.] The reviewing court must affirm a trial court’s rejection of these exceptions if the ruling is supported by substantial evidence. [Citations.]” (In re B.D. (2008) 159 Cal.App.4th 1218, 1234-1235.)
Mother argues that the evidence shows she had regularly visited the child and that there was a beneficial relationship between them. The evidence demonstrates that the child had lived with mother for most of his young life, though at the time of the section 366.26 hearing he had been in a foster placement for nearly 15 months and had been in foster care for 22 of the previous 27 months. When he was out of her care, mother visited the child as often as she was allowed to, the two interacted well together, the visits went well, and the child enjoyed his visits with his “‘real mommy.’” The evidence also demonstrates that when the child was first removed from mother’s care it was difficult for him to leave her after visits. However, that difficulty eased over time. There is also evidence that mother had periods where she did a good job of caring for the child and that he was affectionate towards her.
In addition to this evidence, the juvenile court had the following to consider and weigh: Despite having received services for an extended period of time, mother could not consistently apply what she had learned about proper parenting and repeatedly lapsed into behaviors for which the child was removed from her care, for example, allowing others to use physical violence against the child, and using inappropriate methods of discipline against him. Mother did not participate in her case plan until the child was removed from her care, needed her own mother’s prodding and assistance to comply, and refused to take responsibility for her failure to comply with referrals. Mother’s interactions with the child after his initial removal from her care were described as more friendly than motherly. Mother had been diagnosed as bipolar but was not receiving any treatment, refused to take the medication prescribed for her, was described by a reporting party as suicidal, and at the time of the section 366.26 hearing had recently been hospitalized on a section 5150 referral. Mother had also neglected certain of the child’s medical needs.
In addition, the child had consistently done well in his foster placement, which was his prospective adoptive home. The child exhibited no behavioral problems in his foster placement other than occasionally going into “tantrum modes” and failing to listen. He was happy in his foster placement and had developed a bond with the foster family. While too young to understand the process of adoption, the child stated that he “loves his foster mommy and wants to live there forever.”
Based upon this record, we conclude that substantial evidence supports the juvenile court’s finding that the beneficial interest exception to the termination of parental rights does not apply in this case. While there is evidence that the child does have a beneficial relationship with mother, there is also evidence that amply demonstrates that this interest is not so outweighed by the security and stability that the child would have through adoption, that termination of parental rights would result in great harm to him.
B. Finding that the ICWA does not apply was error.
The ICWA requires that when the court has reason to know that a child involved in the dependency system might be an Indian child, which requires only the suggestion of Indian ancestry, notice of the proceedings must be provided to the child’s tribe, or to the BIA if the tribal affiliation is unknown. (In re Francisco W. (2006) 139 Cal.App.4th 695, 702-703.) In providing the notice, “[I]t is essential to provide the Indian tribe with all available information about the child’s ancestors, especially the ones with the alleged Indian heritage. [Citation.] Notice to the tribe must include available information about the maternal and paternal grandparents and great-grandparents, including maiden, married and former names or aliases; birthdates; place of birth and death; current and former addresses; tribal enrollment numbers; and other identifying data. [Citation.]” (Id. at p. 703; see also § 224.2.) “The social worker has ‘a duty to inquire about and obtain, if possible, all of the information about a child’s family history’ required by 25 Code of Federal Regulations part 23.11(d)(3). [Citation.]” (In re S. M. (2004) 118 Cal.App.4th 1108, 1116; see also In re Louis S. (2004) 117 Cal.App.4th 622, 630 & Cal. Rules of Court, rule 5.481(a)(4).) Further, proof of the notice, consisting of the notice itself, return receipts, and any responses received from the tribes and/or the BIA, must be filed with the juvenile court, since in the absence of such evidence it cannot be determined whether meaningful notice has been provided. (In re Karla C. (2003) 113 Cal.App.4th 166, 175-178; In re Jennifer A. (2002) 103 Cal.App.4th 692, 702-704; § 224.2, subd. (c); Cal. Rules of Court, rule 5.482(a)(2)(B) & (b).) A mere statement by the social worker that notice was sent is insufficient evidence of compliance with the ICWA requirements. (In re Karla C., supra, 113 Cal.App.4th at p. 178.)
In the instant case the record contains ample evidence that the ICWA noticing provisions had to be complied with. However, the record contains no evidence that the required documents were filed with the juvenile court. There is no evidence pertaining to the type of inquiry made of the minor’s family regarding possible Indian ancestry, nor is there any evidence what information was provided concerning the child’s ancestry, or to whom it was provided. DPSS concedes this point. While it appears that the Cherokee Center for Family Services did receive some type of notice, its response demonstrates that it pertains only to one band of the Cherokee Tribe. Further, in the absence of a copy of the notices that were sent, no determination can be made whether the notice was adequate. Consequently, we must conclude that the trial court erred in determining that the child was not an Indian child.
DISPOSITION
The order terminating parental rights is reversed. The juvenile court is directed to order DPSS to make a reasonable inquiry regarding the child’s ancestry based upon the information available to it in order to give notice in compliance with the ICWA and related federal and state law, and to file the required evidence of compliance. The juvenile court shall then determine whether notice has been properly given. If, after proper inquiry and notice, a tribe claims that the child is an Indian child or is eligible for tribal membership, the juvenile court shall set a new section 366.26 hearing and it shall conduct all further proceedings in compliance with the ICWA and all related federal and state law. If, on the other hand, the juvenile court determines that the ICWA does not apply to the proceedings (Cal. Rules of Court, rule 5.482(d)(1)), the original order terminating parental rights, which in all other respects is affirmed, shall be reinstated.
We concur: McKINSTER, Acting P. J., KING, J.