Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Stanislaus County, No. 515302, Nancy B. Williamsen, Commissioner.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, and Alice E. Mimms, Deputy County Counsel, for Plaintiff and Respondent.
OPINION.
Before Levy, Acting P.J., Dawson, J., and Kane, J.
V.L. (mother) appeals from an order terminating parental rights (Welf. & Inst. Code, § 366.26) to her daughter J. Mother contends respondent Stanislaus County Community Services Agency (agency) failed to fully comply with the notice requirements of the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.). She also argues she demonstrated a sufficiently beneficial bond with J. so as to defeat the statutory preference for adoption. On review, we disagree and affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In August 2008, then 17-month-old J. suffered a head injury as well as significant bruising over much of her body. These injuries were in various stages of healing. Mother delayed in seeking treatment for J. and provided varying accounts of what happened to J. One treating physician strongly suspected J. was the victim of child abuse. Another physician reported the injuries were nonaccidental. It appeared mother was trying to protect her boyfriend who had access to J. in the days preceding her head injury. Mother, meanwhile, had a history of substance abuse, including an addiction to Oxycontin. Although she was in a methadone treatment program, mother reportedly missed treatment in the days preceding J.’s injury. These events led to J.’s detention and the underlying dependency proceedings.
On the day the agency detained J., her maternal grandmother stated J. may have Cherokee Indian ancestry. The grandmother reported she was not an enrolled member. However, she believed her great-grandmother had Cherokee ancestry. Mother soon after completed a form in which she stated J. may have “Cherokee, Yaki” Indian ancestry. In an October 2008 report, the agency advised that this latter tribe was not listed as a federally recognized tribe.
The agency in turn completed a “NOTICE OF CHILD CUSTODY PROCEEDING FOR INDIAN CHILD” and served it upon the three federally recognized Cherokee tribes and the Bureau of Indian Affairs. According to proofs of service contained in the appellate record, each of these entities received proper notice in mid-September 2008.
In her opening brief, mother claims the record includes “green postal cards” indicating signed receipt from only two of the three Cherokee tribes. She overlooks another page of the record, CT 41, which contains the signed receipts for the remaining Cherokee tribe and the Bureau of Indian Affairs.
The Stanislaus County Superior Court eventually conducted a combined jurisdictional/dispositional hearing in October 2008. It began the hearing by expressly finding proper notice had been given pursuant to ICWA. Mother did not voice any objection to either the agency’s representation about the Yaki tribe or the court’s proper notice finding.
The court thereafter exercised its dependency jurisdiction over J. (§ 300, subd. (b)) and adjudged her a dependent child. Having also removed J. from parental custody, the court ordered reunification services for mother. Mother did not challenge the court’s notice finding by way of appeal from the court’s dispositional order adjudging J. a dependent child and removing her from parental custody.
During the reunification period, mother was more invested in excuses than in actively seeking treatment. She, however, did regularly visit J. Given J.’s young age (§ 361.5, subd. (a)) as well as mother’s lack of participation and poor progress in her case plan, the court terminated services in May 2009. It also set a section 366.26 hearing to select and implement a permanent plan for J.
The agency later prepared a “366.26 WIC Report” in which it recommended the court find J. adoptable and terminate parental rights. Because it is undisputed on appeal that J. was likely to be adopted by her current foster parents, we do not summarize that evidence here.
The agency also asked the court to make a finding that ICWA did not apply to J.’s dependency. It explained “[a]ll reports returned by the tribes investigated stated that they had no relationship with this child.” Copies of those reports were not attached or otherwise filed in the record.
The court conducted the section 366.26 hearing in August 2009. Mother’s counsel urged the court to find termination would be detrimental to J. based on the positive relationship she shared with mother.
Mother testified she was J.’s primary caregiver from the child’s birth until she was detained at 17 months of age. Mother maintained visitation with J. thereafter. According to mother, J. recognized her and called her “Mommy.” J.’s face lit up when she saw mother and the child was affectionate. In mother’s opinion, J. “[m]ost definitely” would be better off if she could maintain contact with mother. Mother thought J. missed her but acknowledged J. was only two and a half years old and not yet conversant.
The social worker assigned to J.’s case testified he observed mother and J. probably 20 times during their visits. Mother “always very actively greet[ed]” J. who responded quite warmly. Within the last two or three months, when visitation occurred twice a month, J. once looked confused when mother said “Come to Mommy.” J. stopped as though she wondered where she was supposed to be going. Generally, the relationship between mother and daughter remained positive. J. did seem attached to mother.
Visits went well and J. benefited from seeing mother. When a visit ended, J. did not express sadness or distress in separating from mother. When the social worker returned J. to her caregivers, she appeared quite happy to see them. She would smile and run towards them with her arms up.
The social worker did not think the benefit J. gained from seeing mother was so significant that adoption would not be a good permanent plan for the child. J. also had a very positive relationship with and strong attachment to her foster parents. He saw these relationships as quite equal. J.’s relationship with the foster parents was so strong, however, that the social worker did not think termination would impact the child.
The foster mother testified that after visits, J. seems confused. “She gets a little clingy... [and] a little bit uneasy, but then she gets back to normal.”
The court found by clear and convincing evidence that J. was an adoptable child. It, however, could not find that a continued relationship was of such a benefit and so significant it would outweigh the benefit J. would gain through adoption. The court further found there was no reason to believe J. was an Indian child and, therefore, the provision of the ICWA did not apply. In turn, the court terminated parental rights.
DISCUSSION
I. ICWA
For the first time in this appeal, mother complains the agency did not fully comply with ICWA’s notice requirements. She criticizes the agency in two respects. One, she argues when she claimed “Yaki” heritage, the agency should have used “a little imagination” and notified the Pasqua Yaqui tribe and Yakama tribe. In her view, “Yaki” bears an obvious similarity to both of these federally recognized tribes. Two, mother contends the agency erred by not providing copies of the negative responses it received from the tribes. In addition, mother asserts this appeal poses the first opportunity to raise these criticisms because the court did not rule on the adequacy of the ICWA notice until the section 366.26 hearing. As discussed below, we conclude mother’s arguments are not persuasive.
Mother overlooks the court’s finding at the jurisdictional/dispositional hearing, in October 2008, that proper notice pursuant to ICWA had been given. That finding was part of the court’s judgment (§ 395; Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811-812) from which she did not appeal. It has long been final. The time to raise her ICWA notice issue has consequently passed. (In re Pedro N. (1995) 35 Cal.App.4th 183, 185 (Pedro N.).) In Pedro N., this court held a parent who fails to timely challenge a juvenile court’s action regarding ICWA is foreclosed in a subsequent appeal from raising ICWA notice issues once the court’s ruling is final.
Thus, mother’s criticism of the agency for not serving other tribes whose names in her view are very similar to “Yaki” is forfeited. In any event, mother fails to cite and we know of no supporting authority for her criticism of the agency in this regard.
Mother’s complaint about the agency’s failure to provide copies of the tribes’ responses that they had no relationship with J. is presumably preserved because the issue arose when the agency submitted its report for the section 366.26 hearing. Nevertheless, the agency’s omission is harmless error under the facts of this case.
In In re H.A. (2002) 103 Cal.App.4th 1206, 1209 (H.A.), this court called attention to the imperative of complying with the letter of the ICWA. We also required social service entities to make a better record of their compliance with the ICWA. We held a party who seeks the foster care placement of or termination of parental rights to a child who may be eligible for Indian child status, must do the following or face the strong likelihood of reversal on appeal to this court. First, the party must complete and serve, pursuant to the terms of 25 United States Code section 1912(a), the form notice along with a copy of the dependency petition. Second, the party must file with the superior court copies of proof of the registered mail or certified mail and the return receipt(s), the completed form notice that was served, and any responses received. (H.A., supra, 103 Cal.App.4th at p. 1214.) The department in H.A.,supra, at page 1210, had not documented any of its notice efforts. It did not include any copies of the notices given, proofs of the certified mail, the returned receipts, or the response received. It was under these circumstances that we reversed.
To the extent mother cites another decision, In re Asia L. (2003) 107 Cal.App.4th 498 (Asia L.), to support her claim of error, Asia L. relies on our holding in H.A.Asia L. involved facts similar to H.A., that is neither copies of the notices sent, return receipt cards, nor any other correspondence was received into evidence so that the court could evaluate the sufficiency of the notices sent. (Asia L., supra, 107 Cal.App.4th at pp. 507-508.)
The agency in this case complied with the dictates of our H.A. holding, with the single exception of not filing the responses the agency received. Consequently, there is no question in this case that the Bureau of Indian Affairs and the three federally recognized Cherokee tribes received proper notice of the dependency proceedings for J. The facts on this issue are wholly distinguishable from those in either H.A. or Asia L.
Mother also overlooks an important change in the law since our H.A. opinion as well as the Asia L. opinion. If proper and adequate notice has been provided, as in this case, and neither a tribe nor the Bureau of Indian Affairs has provided a determinative response within 60 days after receiving that notice, the court may determine that ICWA does not apply to the proceedings. (§ 224.3, subd. (e)(3); added by Stats. 2006, ch. 838, § 32.)
In this case, more than 10 months had elapsed since the Bureau of Indian Affairs and the three tribes received proper notice and none of these entities had determined that ICWA applied to J.’s dependency or made any effort to intervene in the proceedings. Thus, the court was entitled to determine, well before the section 366.26 hearing and the agency’s representation--that it received tribal responses that they had no relationship with J.--that ICWA did not apply. Thus, we conclude any error was harmless.
II. Beneficial Parent/Child Relationship Exception
It is undisputed that mother maintained regular visits with J. They also shared a significant and positive relationship. Mother contends this constituted substantial evidence that parental rights termination would be detrimental to J.
Although section 366.26, subdivision (c)(1)(B) acknowledges termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) The statutory presumption is that termination is in the child’s best interests and therefore not detrimental. (§ 366.26, subd. (b); In re Lorenzo C. (1997)54 Cal.App.4th 1330, 1343-1344.) It is the parent’s burden, instead, to show that termination would be detrimental under one of the statutory exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Consequently, when a court rejects a detriment claim and terminates parental rights, as in this case, the appellate issue is not whether substantial evidence exists to support the court’s rejection of the detriment claim but whether the juvenile court abused its discretion in so doing. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) On review of the record, we find no abuse of discretion.
Mother had to demonstrate more than pleasant visits or loving contact. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954.) She needed to show that severing their relationship would deprive J. of a substantial, positive emotional attachment such that she would be greatly harmed (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342). The parent-child relationship must promote the child’s well-being to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
Mother did not introduce any evidence that J. would be greatly harmed if rights were terminated. Further, she overlooks the social worker’s testimony on this point. He did not think the benefit J. gained from seeing mother was so significant that adoption would not be a good permanent plan for the child. J. also had a very positive relationship with and strong attachment to her foster parents. J.’s relationship with the foster parents was so strong that the social worker did not think termination would impact the child.
On this record, the court properly rejected mother’s claim of detriment.
DISPOSITION
The order terminating parental rights is affirmed.