Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. J512789B of San Diego County, Laura J. Birkmeyer, Judge. Reversed and remanded with directions.
NARES, J.
Jennifer N. appeals the judgment terminating her parental rights to her son Joseph H. She contends the juvenile court erred by declining to apply the beneficial relationship exception (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i)), her rights would not have been terminated but for violations of the court's orders by the San Diego County Health and Human Services Agency (the Agency), and the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) were not satisfied. We agree only with the ICWA contention.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
BACKGROUND
Jennifer has a long history of drug abuse and crime. Before Joseph's birth, she lost custody of three children. In April 2008 the Agency filed a dependency petition for newborn Joseph based on the following facts. Jennifer had a history of drug use. She admitted drug use during pregnancy. She had positive tests for methamphetamine on six occasions between January and March. Joseph's alleged father, James H., also had a history of drug use and was aware of one of Jennifer's positive tests.
Joseph was detained in the hospital, then in foster care. In June 2008 the court entered a true finding on the petition, found ICWA did not apply and ordered Joseph placed in foster care. At the December 9, 2008 six-month review hearing, the court terminated Jennifer's reunification services and set a section 366.26 hearing. The section 366.26 hearing took place in July 2009.
THE AGENCY'S COMPLIANCE WITH THE ORDERS
Jennifer contends her parental rights would not have been terminated but for the Agency's violations of two orders: that she be given 72 hours' notice before Joseph's removal from California, so that she could set a special hearing to contest the removal, and that the Agency facilitate telephone contact between her and Joseph. We evaluate Jennifer's contention under the substantial evidence standard of review, viewing the record in the light most favorable to the judgment. (In re Josue G. (2003) 106 Cal.App.4th 725, 732.) As explained below, the Agency did not violate the order for notice. While the Agency did not facilitate as many telephone conversations as the court ordered, that did not contribute to the termination of Jennifer's parental rights.
Jennifer continued to use drugs and was in and out of jail during the pendency of this case. She had three positive drug tests, provided a diluted urine sample on one occasion and missed several tests. She was discharged from three drug treatment programs and quit drug court. Her visitation was appropriate but at times inconsistent.
Maternal aunt Deanna N., who lived in Illinois, was interested in adopting Joseph. In October 2008 the court approved the Agency's request for expedited proceedings under the Interstate Compact on the Placement of Children (ICPC) (Fam. Code, § 7900 et seq.). The court directed the Agency to submit the appropriate form for the court's signature. On December 9 Jennifer's counsel objected to the placement with Deanna. The court signed the ICPC form and gave the Agency discretion to place Joseph with Deanna upon 72 hours' notice to all counsel. In January 2009 Jennifer told the social worker that if she could not have Joseph, she was "willing to sign him over to [Deanna] to get him out of the system." Jennifer said Deanna's home was a good place for Joseph.
On January 20, 2009, Jennifer had a visit with Joseph in jail. She called the social worker after her release from jail about one week later. The social worker unsuccessfully tried to arrange a visit for February 3. A visit was set for February 6, but Jennifer missed the visit and did not call to cancel. On Monday, February 9, Joseph was moved to Deanna's home. Jennifer called the social worker after the move and, for the first time, told the social worker that she objected to it.
The social worker testified that Jennifer called her the following Monday, February 10. The following Monday was actually February 9.
At a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118) on March 11, 2009, Jennifer complained that her attorney never notified her that Joseph was being moved to Illinois. The attorney responded that he did not receive a telephone call from the Agency about the move within the required 72 hours. Counsel acknowledged, however, that he might not have checked his voicemail every day. He recalled hearing the Agency's message on a Thursday or Friday. The message said that Joseph's flight was on Monday morning. The court granted the Marsden motion.
In this appeal Jennifer makes no assertion that trial counsel was ineffective.
Joseph's move to Illinois had been contemplated since October 2008, yet Jennifer missed a visit three days before the move. Moreover, the December 9 order required the Agency to provide 72 hours' notice of Joseph's move to Jennifer's counsel, not to Jennifer. Counsel recalled hearing a voicemail message from the Agency on the Thursday or Friday before Joseph's Monday morning flight. A message left on Friday morning, at the same hour as Joseph's Monday flight, would have been within the 72-hour window. Thus, the record does not show that the Agency failed to provide timely notice of Joseph's move.
Jennifer did not appear in court on March 19, 2009, as the court had ordered. She did appear on April 8, the date set for the section 366.26 hearing. Jennifer's new attorney said that Jennifer had known that Joseph's move to Illinois was contemplated, but Jennifer claimed she had not received 72 hours' notice from her former attorney. The court correctly found that its notice order had been followed. Jennifer's counsel then related Jennifer's assertion that Deanna was not allowing her telephone contact with Joseph. Counsel asked that the Agency facilitate telephone contact. The court granted the request.
The April 8, 2009, minute order did not reflect the order for telephone contact between Jennifer and Joseph, and the social workers were apparently unaware of the order. No telephone contact took place. The issue was discussed at the next hearing on May 18. The court ordered the Agency to facilitate at least one telephone call supervised by the social worker or counsel.
The next hearing took place on June 29, 2009. Jennifer's counsel reported that the supervised telephone call with Joseph went well but Jennifer's efforts to obtain more calls had been unsuccessful. The court ordered that the Agency arrange two supervised telephone calls between Jennifer and Joseph before July 17. Despite Jennifer's efforts, only one such telephone call took place, on July 15.
Although the Agency facilitated only two telephone conversations when the court's orders required at least four, this did not cause the termination of Jennifer's parental rights. Joseph's behavior during the telephone calls indicated they were not meaningful to him, which is not surprising in light of the fact he was only one year old. During Jennifer's first telephone call, Joseph babbled. During the second call, he babbled, walked away with the telephone, dropped it and refused any more contact. During the conversation, he repeatedly said "mama," but responded to the social worker the same way.
The lack of a connection to Jennifer that Joseph exhibited during the telephone calls was a continuation of his behavior during their earlier face-to-face visits. The social worker who observed a jail visit reported that at the beginning of the visit, Joseph looked at Jennifer but did not smile or reach for her. When Jennifer picked him up, he looked at her and responded "in the way that a baby responds to someone who is playing with them." At the end of the visit, he showed no distress at being separated from Jennifer. Joseph's former foster parent reported that Joseph enjoyed visits with Jennifer, but did not appear to recognize her, did not cry when they parted and reacted to Jennifer just as he reacted to other adults who played with him. The termination of Jennifer's parental rights was not caused by the Agency, but rather by Jennifer's failure to participate in services, refrain from drug use and stay out of jail.
Jennifer also complains the Agency's reports did not include logs of all of her visits and the Agency "only let [her] see [Joseph] for a two week period and only with a security guard." This complaint is based on allegations Jennifer made at the Marsden hearing.
THE BENEFICIAL RELATIONSHIP EXCEPTION
If a dependent child is adoptable, the juvenile court must terminate parental rights at the section 366.26 hearing unless the parent proves the existence of a statutory exception. (§ 366.26, subd. (c)(1); In re Erik P. (2002) 104 Cal.App.4th 395, 401.) One such exception exists if "[t]he parent[] [has] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) A beneficial relationship is one 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 re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The existence of this relationship is determined by factors including "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs...." (Id. at p. 576.) The juvenile court found Jennifer had maintained regular visitation and contact with Joseph "for the most part." Examining the evidence in the light most favorable to the judgment, as we must, we conclude she failed to meet her burden of showing a beneficial relationship. (Ibid.)
Jennifer does not contest the juvenile court's finding that Joseph was adoptable.
At the time of the section 366.26 hearing, Joseph was 15 months old. He had been out of Jennifer's custody since shortly after his birth and had lived with his prospective adoptive parents for five months. Jennifer never progressed beyond supervised visitation. While she was appropriate and loving during visits, Joseph did not have "a substantial, positive emotional attachment" such that he would be greatly harmed by the severance of their relationship. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) He needed the safe, stable, home that he had found with Deanna.
Jennifer asserts the court "incorrectly weighted [her] lack of day-to-day contact and care for Joseph as paramount" and made "a finding [that she] had not provided for [him] on a daily basis." This assertion is based on the court's remark that a "bond [has not] developed in terms of [Jennifer]'s relationship with this child, in terms of a parent who provides for the child daily, and who is anything more than a friendly visitor." The court set forth a detailed explanation, properly based on statutory and case law, why there was no beneficial relationship. Viewed in the context of the court's ruling, this remark does not evidence a reliance of Jennifer's lack of day-to-day care of Joseph. There was no error.
Substantial evidence supports the juvenile court's determination the beneficial relationship exception did not apply.
ICWA
Jennifer initially claimed that James was Joseph's father. Two days after the petition was filed, James told the Agency he had Cherokee and Sioux heritage. Less than two weeks later, Jennifer told the Agency that another man was Joseph's father. In May 2008 the court deferred ruling on ICWA and ordered paternity testing. The test results, received later that month, showed a 99.99 percent probability that James was the father. There was no further ICWA inquiry or finding.
Joseph's maternal grandmother denied that her family had any Indian heritage.
The Agency and the court have "an affirmative and continuing duty to inquire whether a [dependent child]... is or may be an Indian child...." (§ 224.3, subd. (a).) If circumstances indicate a child may be an Indian child, the social worker must further inquire regarding the child's possible Indian status. Further inquiry includes interviewing the parents, Indian custodian, extended family members or any other person who can reasonably be expected to have information concerning the child's membership status or eligibility. (§ 224.3, subd. (c).) If the inquiry leads the social worker or the court to know or have reason to know an Indian child is involved, the social worker must provide notice. (§§ 224.3, subd. (d), 224.2, subd. (a)(5)(A)-(G).)" (In re Shane G. (2008) 166 Cal.App.4th 1532, 1539.)
In this case, there was no compliance with the requirements for further inquiry described above. We remand for the limited purpose of a further ICWA inquiry, to be followed by whatever ICWA notice is warranted by the information culled from that inquiry. (In re Francisco W. (2006) 139 Cal.App.4th 695, 704-711.)
DISPOSITION
The judgment terminating parental rights is reversed. The case is remanded to the juvenile court with directions to conduct a proper ICWA inquiry, determine whether ICWA applies, and, if necessary following the inquiry and determination, to order ICWA notice and conduct any further proceedings in compliance with ICWA. If, after notice, a tribe claims Joseph is an Indian child, the court shall proceed in conformity with ICWA; if no tribe claims he is an Indian child, the court shall reinstate the judgment.
WE CONCUR McCONNELL, P. J., McINTYRE, J.
Jennifer acknowledges that "when notes [regarding her visits] were included they were always more than favorable to [her]." In light of this acknowledgment, it does not appear that the absence of some visitation logs prejudiced Jennifer. Her other complaints are also unavailing. At the Marsden hearing, she said: "[The social worker] would not accept any of my phone calls for two weeks, nor did I see Joseph at all. Then when I did see Joseph, [the social worker] had me in a little room with... another person and a security guard." Nothing in the record supports Jennifer's allegations that the social worker refused to accept her calls, prevented her from seeing Joseph for any period or required the presence of a security guard in the visitation room.