Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 78783
Lambden, J.
T. H. (mother) appeals a judgment at a plan selection hearing terminating her parental rights over son Benjamin P., finding Benjamin to be adoptable, and selecting adoption as his permanent plan. (Welf. & Inst. Code, § 366.26, subd. (c)(1).) Having previously rejected her writ challenges to orders setting the hearing and terminating her reunification services (T.H. v. Superior Court (Sept. 25, 2009, A125353) [nonpub. opn.]), we now reject challenges to the adoptability finding and claim of a beneficial-relationship exception to adoption. We remand, however, for as San Mateo County Human Services Agency (HSA) concedes, there was inadequate compliance with the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA).
All further section references are to the Welfare and Institutions Code.
Background
Mother was in and out of juvenile hall in her teens, and served two terms in California Youth Authority (CYA), where she finished high school and earned college credits. She conceived S.S. at age 16, by a single “encounter, ” and began her first CYA term pregnant. S.S. was born in 1997 and was cared for by the maternal grandmother, while mother served a further nine months in CYA for a new offense. Mother then moved in with child and grandmother but had parenting conflicts with the grandmother, with whom S.S. had primarily bonded. Mother left for a homeless shelter without S.S., then moved back in with them before eventually moving out to a shared apartment at age 20, this time with S.S.
From 1997 to the current intervention were six child welfare referrals. An absent-caretaker report in 1997 came when mother was incarcerated, but it was arranged for the maternal grandmother to step in. A 2002 referral (deemed inconclusive) came when S.S. reported that mother had punched him in the nose. Benjamin was born in August 2004, from mother’s relationship with Morris P., a relationship marked by drug abuse, and by domestic violence reportedly instigated by her. A 2005 referral (inconclusive) came when S.S. was caught at school with a pornographic magazine and begged staff not to call mother because she whipped him with a belt. A referral came later that year for S.S. being in a car with the windows rolled up while mother and two other adults smoked a brown substance. This was also deemed inconclusive, but mother agreed to participate in counseling, a parenting class and anger management, and was given services referrals and information on the effects of domestic violence on children. The last two referrals came in September 2005. The first was for domestic violence between the adults, for smoking marijuana in S.S.’s presence, and for mother whipping S.S. with a belt. The second was for mother hitting S.S. on the eye and stomach after a social worker left the day before. The physical abuse allegations were substantiated, as was a substantial risk to the younger Benjamin. Mother agreed to three months of voluntary services.
As an adult, mother had convictions for petty and grand theft (1998, 2002), and reckless driving (2002). She also had arrests for assault (2008), domestic violence (2004 and 2005), and driving under the influence (2002). She used marijuana, claiming it was prescribed by a “Dr. Bee” at a clinic to alleviate migraine headaches (which she no longer had), but also found it relieved her depression.
Mother related that stressful events in 2006 left her in a “severe depressive state, ” unable to trust or speak with anyone and “more snappy towards” S.S. The grandmother’s home, where mother “always” left S.S., was “shot up” in gunfire targeting neighbors. S.S. was not there at the time, and the grandmother escaped injury but was forced to move. Later that year, mother was fired from an administrative assistant job of six months, a firing she deemed discriminatory.
Current Intervention
Benjamin and S.S. were taken into protective custody on September 11, 2008, at ages four and 12, following a school referral that S.S. had bruises on his hip, and several healing marks on one arm and his back, from ongoing physical abuse inflicted by mother with a cord, plus mother choking him so that he could not breathe. A public health nurse saw bruises and marks on his upper back and left arm, cheek, and abdominal area. S.S. reported that all of those injuries, plus a bruise on his upper right thigh, were inflicted by mother with a cord, and that she also hit Benjamin with her hand when he wet the bed. S.S. was detained in the home of his father. Benjamin had no suspicious marks or bruises when examined by police, but was detained in the home of his paternal grandmother out of concern for his vulnerable age and risk of harm due to abuse of S.S.
Petitions filed by HSA, initially in September 2008, alleged substantial risk of serious physical harm to S.S. based on mother’s recent and past physical abuse of him (§ 300, subd. (a)) and, as to Benjamin, abuse of the half sibling (id., subd. (j)). Mother denied doing more than spanking S.S., and attributed scars to S.S. “picking on himself.” The court sustained both petitions, as amended to conform to proof, at a jurisdictional/ dispositional hearing that November, declared jurisdiction, kept Benjamin in the care of the grandmother, and set the case for a six-month review.
Mother initially denied using force beyond spanking and was hostile, particularly toward social worker Jennifer Torres. Security had to remove her for threatening Torres at a supervised visit, and she directed outbursts to the court at disposition.
HSA had concerns from the outset about mother’s “explosive temper, ” violence, mental health, uncooperativeness, and resumed physical abuse despite voluntary services, yet initially recommended a plan of reunifying in six months. Reunification services were ordered, but only for Benjamin.
The disposition wound up being permanent as to S.S. He was placed with his father (and stepmother and 15-year-old stepbrother) in Stockton. Mother was granted visits but not reunification services, and S.S. continued to recount abuse (beatings with belt or extension cord, choking, etc.), and fear of mother, including that she would go too far one day and kill him. He said she gave him ever-increasing responsibilities, including the care of Benjamin, called him “ ‘stupid or dumb, ’ ” and yelled at the least thing he did short of her expectations. He had to “ ‘walk on eggshells’ ” to avoid being hit. Benjamin was not “whooped with the belt or anything, ” but was struck by mother. “ ‘I know my mom loves me, ’ ” S.S. lamented, “ ‘but she just doesn’t treat me fair.’ ” S.S. adjusted well to his father’s home, was accepted into the family with loving care, felt safe and happy, bonded firmly, was relaxed and relieved, and, after a period of transition in middle school, ceased getting into trouble, and made many friends. He was happy to see mother and Benjamin on visits but strongly preferred living with his father, calling it “easier than living with my mom” and saying he had “never been happier.”
Benjamin’s initial placement with his paternal grandmother was temporary, pending assessment for placement in Fairfield with a paternal aunt and uncle who were willing and able to provide longer or permanent care. He was placed with the aunt and uncle, who embraced him as part of the family. Benjamin’s father acknowledged paternity but, due to instability, drug problems, and failure to utilize services, was never appropriate for custody and had his services terminated.
Reunification requirements at disposition required mother to sign releases and medical consents, and undergo counseling/psychiatric therapy as directed, with specific treatment to be based upon an assessment completed by an approved therapist. This proved hard for mother to accept. She sidestepped private therapy referrals by engaging, on her own, intern Shawan Worsley from county health services. However, mother then refused for months to sign releases allowing HSA to track her progress with Worsley. She proposed that the social worker give her a list of written questions so that Worsley could give written responses that mother would in turn “review” before passing on to the social worker. Advised that this was not acceptable, mother finally signed a release that proved to be “invalid due to numerous hand-written changes” she had made to it. Only a month before the six-month review set for May 2009 did she sign a release allowing HSA to communicate with her various service providers, and by then Worsley had left the county health services internship and was no longer mother’s therapist. Two months later, mother had not resumed therapy, and she refused to sign a release to allow a mental assessment of Benjamin.
Psychological Evaluation (Kline Report) and Testimony
During the impasse over releases, mother and S.S. were evaluated by psychologist Jeffrey Schreiber Kline. Kline found S.S. to be friendly, cooperative, well adjusted in his new home and, while lacking in feelings of self-worth and competence, in no current need of any particular services unless he were to reunite with mother.
Kline’s evaluation for mother (the Kline report) used some information from HSA about ongoing supervised visits, but noted that, due to lack of releases, Kline lacked input from other service providers. Kline later confirmed that, after seeing that information, his report conclusions were unchanged. He responded to three questions: (1) What was the likelihood that mother could learn skills to contain her anger, see its impact, and take responsibility to have a healthier parent/child relationship? (2) What treatment plan and services did he recommend? (3) Was there a mental disability that rendered mother incapable of utilizing services (mental disability defined to include the likelihood of persistent inability to safely parent for 6 to 12 months despite services).
Kline found mother to be articulate and cooperative but unusually “cautious and guarded” about revealing information like her history of DUI arrests, work, and domestic violence, or her rape, current romantic partner, or use of medical marijuana. She denied having a substance abuse problem or needing toxicology screening, and “selectively” opted” not to respond to subjects she raised like urges to smash things, suicidal thoughts, being beaten as a child, finding greatest happiness when alone, suspensions from school for bad behavior, and anger leading to hurting people in physical fights.
Standard clinical tests showed paranoid psychotic disorder or severe personality disorder, significant disturbances in thinking, prominent persecutory ideation, paranoid suspiciousness about other’s motives, serious thought dysfunction, unrealistic and unusual thinking and perceptions, and social alienation resulting in substantial difficulties in interpersonal adjustment. Results also showed “overall extremely elevated levels of experienced stress” in her role as S.S.’s mother, evidenced by dysfunctional parent-child interactions, and experiencing S.S. “as an extremely difficult child.” A “primary abuse risk score” was “within normal limits, ” but with subscale elevations indicating feelings of being alone in the world, unhappy in life, rejected, misunderstood and worthless. Such people describe their children as having behavioral problems, and themselves as having limitations, and feeling that others have made their life difficult and painful. They feel that people cannot be trusted and that relationships are not “a positive resource.”
Kline clarified in testimony that his general report language was meant to described mother.
Kline saw in mother a woman who, while trying to present herself as exceptionally well adjusted, had serious disturbances in her thinking that include prominent persecutory ideation and paranoid suspiciousness about others’ motives. She was socially alienated, with a low risk of suicide increasing should she experience more stress, substance abuse, or loss. Such people “can be very conscientious, ” very preoccupied with orderliness and control, perfectionistic, rigid, moralistic, and emotionally constricted, with “difficulty empathizing with the feelings of others.” Behind suspiciousness and general restraint lay intense anger and oppositional feelings that occasionally break through the person’s control. Her high stress level was “particularly evident in dysfunctional parent-child interactions” and her view that S.S. was an extremely difficult child. While S.S. had manifested some behavioral problems at times, they did not appear “inherent in his character at this time, as the results of his evaluation indicate.” Assuming the truth of S.S.’s accounts, mother “grossly minimize[d] the extent of her use of violent means to control him.” The social worker, Kline noted, reported that Benjamin was tense with mother, who was “hostile, controlling, emotionally distant, and engaged in conversation inappropriate for a four-year-old.”
Answering the specific questions put to him, Kline concluded: (1) “The extent and severity of her disorders, her resistance to self-disclosure, and the repetitive nature of her aggressive conduct toward her children and other adults, suggest that her ability to learn safe parenting skills may be somewhat limited.” (2) For a plan and services, Kline recommended completing an anger management program (then under way), parenting education, eventual family therapy, and substance abuse treatment (or at least random toxicology screening). Mother would also need extensive in-home services if reunified, and she would benefit from “a psychiatric assessment for pharmacotherapy.” The nature of her current romantic relationship had to be assessed given her history of partner violence and refusal to provide Kline with sufficient information about it. (3) Kline felt that mother most likely met the statutory criteria for mental disability rendering her incapable of utilizing services. “Her psychological, substance abuse, and aggressive parenting practices are severe, repetitive despite prior intervention, and long-standing.... [She] does not assume adequate responsibility for her misconduct, minimizes the extent of her violent conduct toward [S.S.], has expressed little interest in visiting with [him]... and has been observed as hostile and inappropriate during visits with Benjamin, who reportedly fears her.”
Kline elaborated in testimony that the stress level he measured was vis-à-vis S.S., who showed resistance to mother, whereas Benjamin was “astonishingly compliant, ” apparently to avoid her reactions. This created a risk that he might continue to be flat in affect and always gauging his behavior to minimize risks of her anger and violence, as he saw in her reactions to S.S. This was not healthy for the development of his personality. “[Benjamin] has to spend so much time with that, other parts of his personality go in the background and don’t develop. And then a child can look flattened, scared, alienated from other kids, afraid of other adults, and eventually develop a trauma syndrome characterized more by disassociation like a flattening of feeling, a disengagement from the world out of fear.” He was already showing “signs of that manner of coping.” A converse risk was that, as he developed and gained a greater sense of independence, it “set up the risk of [mother] being physically abusive to him as well. The child can’t continue to be super compliant like that.” Further risks from mother were that he would be exposed to domestic violence, marijuana use, and alcohol abuse.
Kline understood, by the time of his hearing testimony, that mother had completed parenting and anger management classes, but was unable to assess her progress in private therapy based on what Shawan Worsely revealed. The focus of therapy had been “[j]ust to manage her moods better, ” and while Worsely noted “some progress, ” that seemed to be “based on just the discussions within the session.” Worsely’s therapy goals made sense for someone with depression but were “relatively superficial” for mother and did not address her difficulties relating to parenting.
Status Review
A status report prepared for the review by social worker Emilia Jones, successor to Jennifer Torres, recommended terminating mother’s reunification services at six months and setting a permanent plan hearing. Mother’s conversations were inappropriate for a four-year-old. She repeatedly asked him whether anyone touched his private parts and warned that he should not allow that or shoot guns. Mother also told him at an early visit that the agency “likes to separate families like back in the days of slavery.” Very late in the proceedings, mother phoned Benjamin asking if he missed her and was “ready to come home”; Benjamin said yes but repeatedly tried to get off the phone. Jones said Benjamin had told her several times that he feared mother, and Jones read his “great deal of caution” around mother as fear. Jones had also witnessed mother’s explosive and angry behavior, and at times feared for her own safety.
A mental health assessment of Benjamin by therapist Marie Clemente found in him an astonishing “level of over compliance” and suggested dyad therapy (mother and child together) and play therapy to address this deficit in Benjamin’s “social-emotional needs.” When she suggested this to mother, mother “rolled her eyes” and, in a matter of seconds, transformed from calm and focused to “irate and verbally explosive.” Mother said that she and her son were fine, needed no therapy, and that “the system” was hurting them. Clemente saw in the outburst reason for Benjamin’s “insecurity, self protective over compliance and emotional shut down[.]”
Mother had completed an anger management course, but Jones’s efforts to gauge her progress were impeded by lack of a release until late April. Program director Bill Tiedman passed along a mid-point progress note by an instructor that showed only that mother attended 10 out of 16 sessions, seemed to “intellectually grasp” the material, and that there was no way to assess her relationship with her children or whether she was implementing the strategies and techniques. She rarely discussed her children, and was primarily concerned with her relationship with her mother.
Mother had made 20 ordinary visits since the disposition, some going well and some not, and a few others missed or marked by mother’s lateness. Mother’s moods were mercurial. She sometimes grew angry, and other times said she “accepted the feedback.” Benjamin sometimes did not bother to say goodbye to her, and he did not display any sadness or separation anxiety when their visits ended. In May, upon realizing that dyad therapy was not going to work, Jones suggested therapeutic visits where a therapist would observe and give mother feedback. Mother had two such visits. They went well, and mother testified that she enjoyed them. Jones testified that mother expressed great reluctance to take psychotropic medications.
Report addenda revealed the disappointing information about mother’s private therapy, that she had completed a parenting class and, despite earlier insisting that she did not need it, had asked Jones about starting dyad therapy. Parenting class facilitators reported that mother made some progress, was initially “very defensive and unwilling to participate, ” but toward the end, “became more involved.” Dr. Kline deemed dyad therapy premature, as did Clemente, who urged re-engaging first in individual therapy, explaining, “ ‘I wouldn’t put her in a room with Benjamin for therapy before she shows progress in her explosivity, insight, and ability to self regulate.’ ”
Under no circumstances did Jones feel that Benjamin could be safely returned to mother, even with extended statutory time. She mirrored Kline’s concerns, adding that what concerned her was that Benjamin would not always be an obedient four-your-old, “the obedient and compliant little boy that he is today, ” and it concerned her how mother might respond to Benjamin, now and in the future.
On the first day of review, mother submitted on the recommendation to terminate the dependency as to S.S. and grant full custody to the father given S.S.’s progress in that home. She disputed the proposed termination of services and plan hearing for Benjamin, and the contest was heard on May 15 and June 3, 2009.
In hearing testimony, mother contradicted and tried to explain away much of the evidence against her, claiming misunderstanding, miscommunication, or that people (the children included) were lying. On Benjamin’s compliancy, she said he was not afraid of her, just by temperament “very respectable, ” having gone to a Bible-based day care. She confirmed a strong aversion to taking prescribed drugs (beyond marijuana) to treat her depression and stood against “any type of non-natural medication” or “psych meds.” She would take them only if necessary—meaning, if a “professional psychiatrist” (not a “bias person” (sic) for whom they were “routine”) told her, “[Y]ou can’t get better unless you take these meds.” She claimed benefit from private therapy with a therapist of her own choosing, anger management and parenting classes, and therapeutic visits. She remained unemployed, except for volunteer work.
The court terminated reunification services and set a plan hearing for September 29, 2009. Mother sought writ review, and in our prior opinion, we rejected her challenges to terminating services, and other matters.
Plan Hearing
Plan report.
A report of September 18, 2009, by Social Worker Jones related that Benjamin was in good health, with no developmental problems or, based on progress in an early kindergarten program, educational problems. Weekly play therapy since July with Dr. Katherine Maylor was going well. Therapeutic goals were to help him overcome tendencies to shut down emotionally by learning to recognize and express emotions, and to gain confidence by learning to initiate activities. His play was often aggressive, with him acting out people fighting, or cars being damaged, but Maylor found this understandable given the violence he had witnessed. He rarely discussed mother during sessions and did not express a desire to reunify with her. In Maylor’s experience, it was not uncommon for children to not want to talk about caretakers who are the source of their trauma, but it was common for those who want to reunify to express this in some fashion. She related, “ ‘Benjamin has never expressed a desire to live with his mom. This leads me to believe that it would probably be in his best interest to remain where he is at this time. I’ve never observed him with his mother but it seems to me that his aunt and uncle are doing a really good job of making him feel safe and responding to his needs. He seems to be flourishing there and we’re noticing some improvements in his ability to read facial cues and express feelings other than happiness.’ ” There were “no major concerns” about his mental/emotional status.
Benjamin had not heard from his father since visits in January 2009, and the father’s whereabouts were—and would remain through the plan hearing—unknown. Therapeutic visits with mother had continued every other week. Benjamin had a “strong relationship” with his paternal grandmother and half brother, who phoned him, visited him in the caregivers’ home, and participated with him in family functions. Benjamin had no relationship with his maternal relatives.
Adoption Social Worker Michaela Harrington contributed plan report segments on the permanent plan and likelihood of adoption. Benjamin had just turned five years old, and was healthy and bright, with a friendly and compliant disposition. Initially shy, he showed a good sense of humor and playfulness once comfortable. He was active and agile, with no medical or developmental concerns, and learning to spell and count. Being “a young five, ” he would start kindergarten the following year.
His aunt frequently attended therapy with him. He could be talkative and engaging, but had difficulty expressing his emotions. When frustrated or overwhelmed with emotions, he displayed whining, pouting and, “on very rare occasions, aggression.” His early exposure to violence had an impact on him, and on first coming to live with his aunt and uncle, was sensitive to any type of discipline or raised voice, whether directed to himself or the couple’s six-year-old biological son. This and his cautious and compliant nature were consistent with exposure to violence. He would benefit from parenting and therapy helping him to process the violence he saw, and he was likely conflicted in his feelings because he saw mother, for whom he cared, hurting his brother, someone else for whom he cared. He appeared to benefit from a calm and supportive environment his aunt and uncle provided, seemed comfortable and connected in his relationships, and showed more spontaneous display of affection. He seemed very connected to a cousin near his age, and his caregivers were calm and consistent in their parenting style, providing him a safe place to process his past trauma
Harrington had met several times with Benjamin and his caregivers, and spoke with Benjamin less than two months earlier about his feelings about going to his mother. He said he knew why he was not with her, acting out a scene in which his brother was thrown to the ground, arms pulled back, and kicked. He talked about his mother being angry with his brother and, when asked if he felt she was ready to have him home, said, “ ‘I think I should stay here.’ ” Although he loved his mother and enjoyed her visits, he seemed insecure and fearful about her past expressions of anger.
Harrington could not recommend a return to mother, for while mother deeply loved her son and showed many strengths, she did not fully grasp “the seriousness of her anger control issues.” Mother reported that her relationship with Benjamin was different from that with S.S., but this did not address Benjamin being traumatized by witnessing the high level of animosity and violence in the brother-mother relationship. While there was “a connection” between Benjamin and mother, his need for safety and therapeutic parenting led her to recommend adoption as the permanent plan. He “is an adoptable child, ” she wrote, “and will benefit from being raised in a stable, secure, and loving home that his aunt and uncle provide for him.” She recommended supervised visitation with mother to give Benjamin continuity in his family relationships.
The prospective adoptive parents had been married for 11 years, had the 6-year-old son, and had been employed full time until they were both laid off that past month. They were exploring their employment options and were not concerned about their ability to provide for Benjamin, having support resources within the community, a local church, and extended family. They were both motivated and committed to providing Benjamin a safe and permanent home through adoption, and did not want him to linger in the foster care system or suffer further trauma. Benjamin had been with them since December 2008, and they had been involved in his life since he was one year old. They understood the rights and responsibilities of adoption, supported Benjamin having continuing contact with his mother, father and brother, and were open to using mediation to ease visitation. The couple had been referred to a private agency for completion of an adoptive home study. Approval of the study would likely be postponed until their employment situation resolved, but both were optimistic about finding employment.
We grant mother’s request, filed December 18, 2009, for judicial notice of United States Department of Labor, Bureau of Labor Statistics, for California generally and, more specifically, the Vallejo-Fairfield area where the prospective adoptive parents reside. We also grant DHA’s February 5, 2010, request, filed February 5, 2010, for judicial notice of the first and last pages of a Confidential Adoption Home Study Report by Lilliput Children’s Services, and an HSA memo of February 2, 2010 to the court that the home study was completed and approved on November 20, 2009. (In re Marina S. (2005) 132 Cal.App.4th 158, 166 (Marina S.).)
Mother had been having therapeutic visits with Benjamin every other week since May 2009, and the report assessment was that, while mother and child did share a bond, this did “not override Benjamin’s strong need for permanency” at his young age. Benjamin had fortunately avoided the foster care system “due to the support, love, and care offered through his paternal relatives. He had adapted well to life with his aunt and uncle, and could continue to flourish in their care, since they were “responsible, emotionally stable, mature, and consistent.” Benjamin was healthy and without any major behavioral issues. The caregivers were “very much interested” in helping him maintain a relationship with his parents. The recommendation was to terminate the parental rights of both parents, and declare a permanent plan of adoption.
Testimony.
Added issues arising by the time of the hearing were a modification motion by mother (§ 388) for custody or more reunification services and the caregivers’ motion for de facto parent status. An ultimate grant of de facto parent status was not opposed below and is not challenged on appeal. Testimony by Adoption Worker Harrington, Case Worker Jones, and mother focused on other issues.
Harrington reiterated her written views, particularly that adoption served Benjamin’s interests better than guardianship. She noted the permanence and conferral of full legal rights on adoptive parents, and stressed that these caregivers were absolutely committed to adopting and maintaining a relationship with mother, which Harrington felt was in Benjamin’s best interest. Mother and child “truly care for one another, ” she said, but this was not “the healthiest relationship” and did not outweigh the benefits of adoption. She recounted the incident where she spoke to Benjamin about his wishes, fears of mother, and desire to stay where he was.
On the caregivers’ loss of employment, Harrington found “some concern” in that a home study generally requires a family to have some income or financial stability before adopting, but while this might delay the process, it would not prevent it.
Jones added, on the subject, that unemployment would at some point factor into what was in Benjamin’s best interests but that the agency would provide help and perhaps give them more time to find work. It recognized that “these are very challenging times, ” that the caregivers’ situation was not unique, and that “a lot of people” were unemployed. The agency would not want to have Benjamin move to “a complete stranger’s residence because his caregivers are unemployed.” The caregivers had never waivered in wanting to adopt, and wanted Benjamin to maintain his relationship with mother; for Benjamin, it would be “the best of both worlds”—permanency plus the relationship. Benjamin also shared a bond with her and had a sense of loyalty, once telling his caregivers that he had to return to her because she only had one son left.
Sharing Harrington’s view that adoption was preferable to guardianship, Jones explained: “Benjamin is adoptable. He is adoptable because he is very young, he is very healthy, he has no behavioral issues, and he has caregivers that want to adopt him.” He was too young yet to understand adoption, but with guardianship, there would always be concern that mother could petition any time for reunification services. This would be unfortunate and very disruptive for Benjamin, who needed consistency.
Jones was unaware that mother had engaged in individual therapy. In fact, Jones had just received a report from Deanna Simar, the therapist who oversaw visits between mother and Benjamin, that mother had asked Simar for a referral for counseling services. Simar mentioned nothing about mother being in therapy. It appeared to Jones that mother had benefitted, since the last hearing, from directives from Simar at the therapeutic visits, but Simar had also reported seeing the same problems of controlling demeanor and rigidness, and was working with mother on those issues.
Testimony about Simar was elicited by mother’s counsel, for whom the court had earlier stricken statements by Simar from the plan report because counsel might have needed a continuance to subpoena her as a witness. (We have not used those parts in this opinion.) When counsel moved to strike Jones’s references to Simar, the court denied the motion, noting that counsel had elicited them.
Mother testified (without documentary support) that she had participated in 42 hours of counseling and therapy at “RTS” (rape trauma services) in Millbrae, 15 hours of which were individual sessions and the rest group. The sessions addressed children at risk of abuse, and mother felt she had benefitted in dealing with anger issues, recognizing her “triggers, ” and having “coping mechanisms.” She said she had learned from her parenting mistakes and wanted another chance to prove herself. She promised “[n]o physical punishment” and to participate in therapy as HSA directed.
On her relationship with Benjamin, mother said they loved each other and had a very strong bond. Benjamin, she said, “looks forward to the time when we will be able to spend time without supervision, ” and asks “when he is coming home.” Taking her “out of” that bond, she felt, “would definitely cause an insecurity in his life” and “a develop-mental problem with him.”
Rulings.
The court denied the section 388 motion for return or reinstated services. Taking into account the entire record, “the testimony today by the social workers as well as the mother and evaluating the credibility, observing the witness’ demeanor and the newest report, the burden of proof has not been met by the proponent, [mother].” The court also granted the unopposed motion by the caregivers for de facto parent status.
On the plan issues, the court found Benjamin adoptable “by clear and convincing evidence, if not more, ” chose adoption as the permanent plan (rejecting mother’s bid for guardianship), commenting that it did not view the placement as being in jeopardy, and terminated both parents’ parental rights.
Discussion
I. Adoptability
Mother challenges the court’s adoptability finding. “The issue of adoptability requires the court to focus on the child, and whether the child’s age, physical condition, and emotional state make it difficult to find a person willing to adopt. [Citations.] It is not necessary that the child already be placed in a preadoptive home, or that a proposed adoptive parent be waiting. [Citations.] However, there must be convincing evidence of the likelihood that adoption will take place within a reasonable time. [Citation.]” (In re Brian P. (2002) 99 Cal.App.4th 616, 624; § 366.26, subd. (c)(1).) We review a finding for substantial evidence, “giv[ing] the court’s adoptability finding the benefit of every reasonable inference and resolv[ing] any evidentiary conflicts in favor of the judgment.” (In re Valerie W. (2008) 162 Cal.App.4th 1, 13.)
“A child’s young age, good physical and emotional health, intellectual growth and ability to develop interpersonal relationships are all attributes indicating adoptability. [Citation.] ‘ “Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.” ’ [Citation.]” (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.)
Faced with otherwise overwhelming evidence of Benjamin’s adoptability, mother posits an argument that the aunt’s and uncle’s sudden unemployment constituted a “legal impediment.” The unemployment situation was well explored below, but mother never raised it as a legal impediment as opposed to just one factor. Since her legal-impediment claim is novel and undoubtedly never occurred to the court on its own, we could stop at rejecting the claim as forfeited. (See generally In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Kevin S. (1996) 41 Cal.App.4th 882, 885-886.) Nevertheless, it fails on the merits as well.
Mother’s argument starts with a distinction between general adoptability and specific adoptability by a particular prospective family, the latter situation making the suitability of that particular family critical. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061; see, e.g., In re Jerome D. (2000) 84 Cal.App.4th 1200, 1204-1205 [nine-year-old scarred with burn from an iron and missing one eye].) Asserting that the sole focus on the aunt and uncle in this case means that Benjamin was not generally adoptable, mother points to the lack of a completed home study below, evidence that financial stability is needed before a home study is approved, plus statutory restrictions on filing an adoption petition (Fam. Code, § 8704, subd. (b); Cal. Code Regs., tit. 22, § 35197, subds (b) & (c)). The upshot, in her view, is that a prospective adoptive parent’s loss of a job is a legal impediment, just like case law examples of being less than 10 years older than the child, lacking consent of a child age 12 or older, or lack of consent from the prospective parent’s spouse (In re Carl R., supra, 128 Cal.App.4th at p. 1061).
While the proposition that such a mutable factor as loss of a job should rank so high in the process seems absurd at first glance, we need not decide in this case.
First, we reject the premise that Benjamin was not generally adoptable. Nothing in the court’s ruling says so. HSA did focus exclusively on the relative caregivers, but this was because they were so committed to adopting and offered, in the social worker’s words, “the best of both worlds”—the permanence of adoption plus preservation of the mother-child relationship. Mother’s characterization of Benjamin as having “emotional problems” evidenced by individual therapy and therapeutic visits with her is galling, since she is the source of the trouble, but also overstated. Assessments were that Benjamin had “no behavioral issues” or “no major behavioral issues, ” presented “no major concerns” of a mental or emotional nature, had improved, and stood to benefit further from his supportive placement and continuing therapy. He lacked developmental or medical problems, was playful, had a good sense of humor, and was healthy, bright, friendly and compliant.
An argument much like mother’s was rejected on analogous facts in Marina S., where the child’s grandparents were the only ones explored for adoption: “[S]ubstantial evidence supports the juvenile court’s finding that the minor was likely to be adopted. The grandparents, with whom Marina had lived almost her entire life, were committed to adopting her. Indeed, the fact that they were interested in adopting Marina by itself constitutes evidence that she was likely to be adopted. [Citations.] ‘In other words, a prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.’ [Citation.]” (Marina S., supra, 132 Cal.App.4th at p. 165.) Further, the record established that Marina “had no physical, mental, emotional, or developmental problems” and “was a happy and healthy child developing appropriately for her age, ” thus “supporting the conclusion that she was readily adoptable.” (Ibid.)
Second, Marina S. counters mother’s view that there had to be a completed home study: “[A]lthough the adoptive home study was not completed until later, [the agency] determined through the Department of Justice that the grandparents had no criminal back-ground or child abuse records and the child abuse index database showed no matches.” (Marina S., supra, 132 Cal.App.4th at pp. 165-166.) The court also took judicial notice that a home study was completed and approved postjudgment. (Id. at p. 166.) Similarly here, the plan hearing report noted “No record” of any criminal or child welfare service history, and we have taken judicial notice that a home study was completed shortly postjudgment and was approved by the private agency conducting it (fn. 3, ante).
Mother’s judicial notice opposition that we have only the first and last pages of the study and cannot tell its sufficiency misses the mark. We are simply taking notice that the study is done; any deficiencies will surely be raised at an appropriate hearing.
Third, Marina S. defeats another central assumption in mother’s position: “[T]here is no requirement that an adoptive home study be completed before a court can terminate parental rights. The question before the juvenile court was whether the child was likely to be adopted within a reasonable time, not whether any particular adoptive parents were suitable. [Citation.] ‘[T]he question of a family’s suitability to adopt is an issue which is reserved for the subsequent adoption proceeding.’ [Citation.]” (Marina S., supra, 132 Cal.App.4th at p. 166.)
Finally, having taken judicial notice of employment statistics offered by mother (see fn. 3, ante), we do not see how they help her. Accepting that there were elevated unemployment rates of 12.3 percent statewide and 11.6 percent in the Vallejo-Fairfield area as of the September 2009 hearing, this does not speak to the caregivers’ particular situations. We do not even know what jobs they had, much less the availability of such jobs in their area or whether they might work in other jobs. More probative, from the juvenile court’s standpoint, was that they were regularly employed before their layoffs, had assets to tap, and had the support of extended family. From the fact that their home study is finished, moreover, this may well be a moot point by now.
Substantial evidence supports the adoptability finding.
II. Beneficial-Relationship Exception
“ ‘Adoption, where possible, is the permanent plan preferred by the Legislature.’ [Citation.] At a section 366.26 hearing, the court must terminate parental rights and free the child for adoption if it determines by clear and convincing evidence [that] the child is adoptable, and none of the seven exceptions listed in section 366.26, subdivision (c)(1)(A) and (B) applies to make termination of parental rights detrimental to the child. (§ 366.26, subd. (c)(1).) It is the parent’s burden to show the applicability of one of the exceptions to adoption. [Citation.]
“One exception to adoption applies if termination of parental rights would be detrimental to the child because the ‘parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.’ (§ 366.26, subd. (c)(1)(B)(i).) This court has interpreted the phrase ‘benefit from continuing the relationship’ to refer to a 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.
“ ‘Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.’ [Citation.]” (In re Jason J. (2009) 175 Cal.App.4th 931, 936 (Jason J.) The term “day-to-day, ” as first used in In re Autumn H. (1994) 27 Cal.App.4th 567, 573, describes a typical parent/child relationship, but “[d]ay-to-day contact is not necessarily required” to meet the exception. (Jason J., at p. 937; In re Casey D. (1999) 70 Cal.App.4th 38, 51; In re S.B. (2008) 164 Cal.App.4th 289, 299-300.)
“ ‘The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the child’s life spent in the parent’s custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child’s particular needs.’ [Citation.] ‘[F]or the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt.’ [Citation.]” (Jason J., supra, 175 Cal.App.4th at pp. 937-938.)
We review the ruling for abuse of discretion. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) Mother claims abuse, but we find none.
Mother did not raise this argument below, where she urged that the court choose guardianship over adoption (part I, ante), or grant her motion to return Benjamin to her care or reinstate reunification services (§ 388). She does not challenge the section 388 ruling, an implicit determination that return or reinstated services were not in Benjamin’s best interest (§ 388). Mother shifts on appeal to the idea that Benjamin would be greatly harmed by severing their relationship, yet this argument lacks some force where, as here, the court’s choice of adoption by committed relatives actually sought to preserve that relationship. Nevertheless, and approaching it from the unlikely standpoint that this particular adoption might yet fall through and yield adoptive parents who were not so cooperative, the claim fails.
In denying the section 388 motion, the court stated that it had evaluated the demeanor and credibility of witnesses. We infer that the court discounted as hyperbole mother’s claims that the relationship was so strong that severing it would produce in Benjamin a developmental problem. Other testimony did not support that notion. While variously phrased, it showed that there was some loyalty and a bond; but this was “not the healthiest”’ relationship given lingering trauma and apprehension Benjamin felt over witnessing his mother’s violence against his half brother.
We have set out the evidence in great detail. Applying it briefly to the four case law factors: (1) Benjamin had just turned five years old; (2) he had spent several years in mother’s care, during which he coped as well as he could by becoming hyper compliant; (3) he had positive interactions with her after more than a year of removal but also felt apprehension born of awful memories; and (4) he needed more than anything to continue feeling safe and secure. (See Jason J., supra, 175 Cal.App.4th at pp. 937-938.)
No abuse of discretion appears in the court’s implicit rejection of the beneficial-relationship exception. (§ 366.26, subd. (c)(1)(B)(i).)
III. ICWA Compliance
Mother claims, and HSA concedes, the need for a reversal and limited remand due to inadequate inquiry into mother’s Indian heritage, and thus noncompliance with ICWA.
“When the dependency court has reason to believe a child is an Indian child within the meaning of [ICWA], notice on a prescribed form must be given to the proper tribe or to the [BIA], and the notice must be sent by registered mail, return receipt requested.” (In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906; § 224.2.) The object of tribal notice is to enable a review of tribal records to ascertain a child’s status under the ICWA. (In re D.T. (2003) 113 Cal.App.4th 1449, 1455; In re Desiree F. (2000) 83 Cal.App.4th 460, 470.) Notice requirements are strictly construed and “must contain enough information to be meaningful. [Citation.] The notice must include: if known, (1) the Indian child’s name, birthplace, and birth date; (2) the name of the tribe in which the Indian child is enrolled or may be eligible for enrollment; (3) names and addresses of the child’s parents, grandparents, great grandparents, and other identifying information; and (4) a copy of the dependency petition.” (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.) “It 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... 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.” (Ibid.; In re C.D. (2003) 110 Cal.App.4th 214, 224-225.)
On standard ICWA forms (form ICWA-020), the father declared lack of Indian ancestry, and mother declared that she may have Cherokee ancestry but did not know which tribe. The information from mother was apparently the sole inquiry made into the matter. A sworn “Indian Child Inquiry Attachment” (form ICWA-010(A)) executed by social worker Torres on November 6 summarizes the information only as “mother stated she has Cherokee ancestry, ” lists as “persons questioned” only mother (on October 16), and has no boxes checked to indicate any other avenue of inquiry.
Based on mother’s information, notices (form ICWA-030) were sent by certified mail to the Cherokee Nation, the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee, and the United States Secretary of the Interior and Bureau of Indian Affairs (BIA). No response appears for the Eastern Band of Cherokee Indians, but the other two tribes responded that Benjamin was not an Indian child or eligible for membership. A BIA response simply states that the noticed tribes’ determinations are final.
The notice form shows information on the child, his parents, his maternal grandmother on each side, and his maternal great-grandmothers, with “[n]o information available” written for some matters beyond names and a current or past address. As the parties note, there is no information on paternal grandparents, incomplete information on many matters mandated by statute (§ 224.2, subd. (a)(4)), and, most troubling, no indication that anyone beyond mother and the father was contacted, despite, for example, the availability of the maternal grandmother, who was interviewed on other matters. (§ 224.3, subd. (c) [duty of inquiry to extended family].) Nevertheless, Torres relayed the forms and responses to the court, and the court made a finding on June 3, 2009, that the ICWA did not apply.
HSA makes no effort to argue, and we do not immediately discern, substantial compliance (In re Christopher I. (2003) 106 Cal.App.4th 533, 566; In re Elizabeth W., supra, 120 Cal.App.4th at p. 907) or harmless error (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784). Accordingly, the remedy, whether for violating the ICWA itself or our state’s implementing statutes, is a conditional reversal and limited remand. (Tina L. v. Superior Court (2008) 163 Cal.App.4th 262, 267.)
Disposition
The orders are conditionally reversed, and the matter is remanded for inquiry and notice in compliance with ICWA and state law. If, after proper notice, any tribe claims Benjamin is an Indian child, the juvenile court shall proceed in conformity with ICWA and state law. If no tribe responds or claims Benjamin is an Indian child, the orders shall be reinstated.
We concur: Kline, P.J., Richman, J.