Opinion
NOT TO BE PUBLISHED
APPEALS from an order of the Superior Court of San Diego County, No. EJ2989, Ronald F. Frazier, Judge.
BENKE, J.
Anthony S. and Rosalie S. (together, the parents) appeal an order terminating their parental rights to their daughter, Maria S. Rosalie contends insufficient evidence supports the finding Maria is likely to be adopted; the court erred by finding the beneficial parent-child relationship exception to termination of parental rights and adoption did not apply in this case; and there was insufficient evidence to show proper notice was provided under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). Anthony joins Rosalie's argument that substantial evidence does not support a finding Maria is likely to be adopted within a reasonable time, and he argues if this court reverses termination of Rosalie's parental rights, it must reverse termination of his parental rights as well. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
On August 1, 2008, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of seven-year-old Maria under Welfare and Institutions Code section 300, subdivision (d), alleging Anthony had sexually abused her and she was in danger of further abuse because Rosalie did not believe her disclosures. It was reported Anthony had been seen penetrating Maria's vagina. Maria said Anthony had been putting his fingers in her vagina, had vaginal and anal intercourse with her and forced her to orally copulate him. Maria's adult sister said Maria had told her about the abuse. Anthony denied abusing Maria, and Rosalie refused to believe it could have happened. The court ordered Maria detained.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
On October 6, 2008, the juvenile court found the petition true and ordered Rosalie to undergo a psychological evaluation.
At the dispositional hearing on October 28, 2008, the court declared Maria a dependent child of the court. Rosalie indicated she may have Cherokee or Blackfoot ancestry, but the maternal aunt said that although the family may have Cherokee and Blackfoot heritage, no family members were involved in any tribal activities or were tribal members. The court found ICWA did not apply and ordered the parents to comply with their case plans.
The Agency submitted a request through the Interstate Compact for the Placement of Children (ICPC) for evaluation of the home of the maternal aunt and uncle (the aunt and uncle) in Florida for Maria's placement.
The Court Appointed Special Advocate (CASA) for Maria reported Maria was cheerful and full of energy. The CASA said Maria could be manipulative and defiant at times, but she was responsive to the limits placed on her by her foster parents. The social worker reported Maria demonstrated sexualized behavior and she sought physical affection and was attracted to older boys. The foster parents and Maria's therapist were addressing Maria's emotional and social issues. Maria's foster family was very experienced in caring for children who have been sexually abused, and they set strict standards and rules for Maria and for the other children in the home. Maria's therapist cautioned that placing Maria in a home where teenage boys are present would not be a good idea, and she needs a caregiver who is able to care for sexualized children.
The psychologist who evaluated Rosalie said she is easily overwhelmed, tends to avoid problems and remain in unhealthy relationships and is unable to make independent decisions. Rosalie had participated in many years of services related to her children in the past with only moderate improvement. The psychologist who evaluated Anthony diagnosed him with pedophilia with incestuous sexual attraction to girls and said the prognosis was poor because he denied sexually abusing Maria.
The social worker reported Rosalie contacted her nearly every day about having Maria placed with her, but did not deal with the protective issues and continued to deny that Maria had been sexually abused. During visits Rosalie focused more on the rules at the visitation center and on bringing Maria's siblings to the visits than on spending time with Maria. Rosalie brought activities to visits and enjoyed spending time with Maria. The social worker reported their visits followed a predictable pattern. They would talk for a while and then play a handheld video game while they had little interaction. Rosalie made only very limited progress in therapy. Subsequently, there were four more child abuse referrals involving other children in the family.
At the 12-month review hearing on October 20, 2009, the court found the Agency had provided reasonable services, but the parents had not made substantive progress with the provisions of their case plans. It terminated reunification services and set a section 366.26 hearing.
The adoptions social worker assessed Maria as generally adoptable because she was a young, healthy child with no major medical or developmental issues, and there were six approved adoptive families in San Diego County and one out-of-county approved adoptive family who were interested in adopting a child with Maria's characteristics. The social worker reported Maria also is specifically adoptable because the aunt and uncle in Florida want to adopt her. In January the social worker and Maria travelled to Florida to meet this family. The social worker said the aunt and uncle were approved for Maria's placement through ICPC and were looking into specialized counseling for Maria and for themselves. Maria's CASA said Maria continued to require therapy to deal with issues such as boundaries, anxiety in public, socialization and sexual appropriateness. The CASA was concerned that there were two teenage boys living in the aunt and uncle's home, and Maria was already drawn to one of them. The aunt and uncle said they were committed to protecting Maria from future sexual victimization.
At the section 366.26 hearing on April 1, 2010, the social worker testified the aunt and uncle had arranged for Maria to have a therapist who deals with children who have been sexually abused. The social worker said she and Maria had visited the aunt and uncle's home for four days. She opined the family was appropriate for Maria and said the aunt and uncle had taken the initiative to research the care needed for sexually abused children, had looked into therapy and schools for Maria and were receptive of the information the social worker provided. The social worker said Maria's therapist had cautioned that Maria's transition to the family in Florida could be difficult, but the therapist believed it was in Maria's best interests and recommended she be placed with the aunt and uncle.
After considering the testimony, the documentary evidence and arguments of counsel, the court found Maria was generally and specifically adoptable and none of the statutory exceptions to termination of parental rights and adoption were present. The court found any benefit of continuing the relationship Maria had with Rosalie was outweighed by the benefits of adoption. It terminated parental rights and ordered adoption as the permanent plan. It additionally found the Agency had made reasonable inquiry to determine whether Maria was an Indian child and notice under ICWA was not required.
DISCUSSION
I
Rosalie contends substantial evidence does not support the court's determination Maria was likely to be adopted. She argues Maria has psychological and social issues, and no substantial evidence showed the aunt and uncle would be able to meet her needs and financially care for her. She claims if the aunt and uncle fail to adopt Maria, it is not likely she will be adopted by another family.
Before a court frees a child for adoption it must determine by clear and convincing evidence that the child is likely to be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.) "In resolving this issue, the court focuses on the child -- whether his age, physical condition and emotional state make it difficult to find a person willing to adopt him." (In re David H. (1995) 33 Cal.App.4th 368, 378.) Whether there is a prospective adoptive family is a factor for the court to consider, but is not determinative by itself. (Ibid.) "On appeal, we review the factual basis for the trial court's finding of adoptability and termination of parental rights for substantial evidence." (In re Josue G. (2003) 106 Cal.App.4th 725, 732.) The appellant bears the burden to show that the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
Substantial evidence supports the finding Maria is specifically and generally adoptable. She is young and healthy with no major medical or developmental issues. Although she was behind in school when she was first taken from her parents' custody, with the help of her CASA and tutoring she improved greatly and her school work had reached grade level. There were six approved adoptive families in San Diego and one out-of-county approved adoptive family interested in adopting a child with Maria's characteristics.
Maria is specifically adoptable because the aunt and uncle want to adopt her. The record indicates no legal impediments to this adoption. Before Maria and the social worker visited the aunt and uncle, the aunt and uncle began looking into counseling for Maria and for themselves so that they could ease her transition into their home and provide for her needs. They had contacted schools and secured a therapist who specializes in treating children who have been sexually abused. The social worker also reported the aunt and uncle had been receptive of the information the Agency provided and had communicated with Maria's therapist in San Diego. After these communications, the therapist became supportive of Maria moving to Florida to live with the aunt and uncle and said, although the transition will be difficult, it is in Maria's best interests. The aunt and uncle are well aware of Maria's history and of her special social, emotional and psychological needs and are prepared to provide the care she requires. Substantial evidence supports the finding Maria is generally and specifically adoptable.
II
Rosalie asserts substantial evidence does not support the court's finding the beneficial parent-child relationship exception to termination of parental rights and adoption of section 366.26, subdivision (c)(1)(B)(i), did not apply to prevent terminating parental rights. She argues Maria has a strong, positive and significant emotional attachment to her, they continued their relationship despite the lack of day-to-day contact, and Maria missed her and indicated she wanted to go home.
Adoption is the permanent plan favored by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds by clear and convincing evidence that a child is adoptable, it becomes the parent's burden to show that termination of parental rights would be detrimental to the child because a specified statutory exception exists. (Id. at p. 574.) Under the exception found in section 366.26, subdivision (c)(1)(B)(i), the parent is required to show termination would be detrimental in that "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." In In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, the court noted "[c]ourts have required more than just 'frequent and loving contact' to establish the requisite benefit for [the] exception." In interpreting the meaning of "benefit" in section 366.26, subdivision (c)(1)(B)(i), this court stated in In re Autumn H., supra, at p. 575:
"In the context of the dependency scheme prescribed by the Legislature, we interpret the 'benefit from continuing the [parent/child] relationship' exception to mean the relationship 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 reviewing whether there is sufficient evidence to support the trial court's finding, the appellate court reviews the evidence in the light most favorable to the trial court's order, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
Rosalie met the first prong of the exception by maintaining regular visitation and contact through visits and telephone calls. However, she did not show she has a parent-child relationship with Maria or that the relationship is so beneficial that it would be detrimental to Maria to terminate parental rights. Rosalie did not fulfill a parental role. During the first seven years of Maria's life, Rosalie did not protect her from Anthony's sexual abuse, and even after a year and a half of therapy did not show she understood the seriousness of what Maria had endured or that she could provide her with a safe home. During visits Maria and Rosalie typically sat and talked for a while and then they sat on a couch and played with a handheld video game. At the end of visits, Maria had no difficulty separating from Rosalie.
Although during the dependency period Maria had expressed that she wanted to return to Rosalie, by the time of the section 366.26 hearing she was excited about going to Florida to live with the aunt and uncle. When Rosalie missed a scheduled visit just two months before the hearing, Maria cried and said, "she does this on purpose because why couldn't she get someone else to watch the house so that she could be here to see me[?]" Maria then said she wanted to move to be with the aunt and uncle and "they would never do this to me and I can't wait to move there." Children should be given the opportunity to bond with an individual who will assume the role of a parent. (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.) The social worker opined terminating parental rights would cause no detriment to Maria. The court was entitled to find the social worker credible and to give great weight to her assessments and testimony. (In re Casey D. (1999) 70 Cal.App.4th 38, 53.) Rosalie did not show the exception to termination of parental rights and adoption of section 366.26, subdivision (c)(1)(B)(i).
III
Rosalie maintains there was insufficient evidence to show proper notice was given as required by ICWA. She argues the fact she and the aunt both claimed the family has Cherokee and Blackfoot heritage was sufficient to trigger ICWA notice requirements, and it is unclear what inquiry the Agency conducted to determine ICWA did not apply.
Congress enacted ICWA in 1978 "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families...." (25 U.S.C. § 1902.) Section 1911 of ICWA provides a tribe may intervene in state court dependency proceedings. (25 U.S.C. § 1911(c).)
When a court "knows or has reason to know that an Indian child is involved" in a juvenile dependency proceeding, a duty arises under ICWA to provide notice to the Indian child's tribe of the pending proceedings and the tribe's right to intervene. (25 U.S.C. § 1912(a); §§ 224.3, subds. (a) and (d), 290.1, subd. (f), 290.2, subd. (e), 291, subd. (g), 292, subd. (f), 293, subd. (g), 294, subd. (i), 295, subd. (g), 297, subd. (d).) Circumstances that may provide reason to know the child is an Indian child include, but are not limited to, the following:
"(1) A person having an interest in the child... provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child's biological parents, grandparents, or great-grandparents are or were a member of a tribe. [¶] (2) The residence or domicile of the child, the child's parents, or Indian custodian is [or was] in a predominately Indian community. [¶] (3) The child or the child's family has received services or benefits from a tribe or services that are available to Indians from tribes or the federal government...." (§ 224.3, subd. (b).)
If it is indicated that the 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).)" (In re Shane G. (2008) 166 Cal.App.4th 1532, 1539.)
If the social worker's inquiry leads him or her or the court to know or have reason to know an Indian child is involved, the social worker must provide notice. (In re Shane G., supra, 166 Cal.App.4th at p. 1539.) "Alternatively, if there is insufficient reason to believe a child is an Indian child, notice need not be given." (Id. at p. 1538.)
The information Rosalie and the aunt provided did not trigger ICWA notice requirements. At the detention hearing, Rosalie filled out a form in which she indicated she may have Cherokee or Blackfoot ancestry. She later filled out another form, but provided very little additional information except that her mother was born in New York and died in 2006, and her father lived in Florida. She provided no information regarding tribal affiliation for either parent and indicated all of the other maternal relatives were either unknown or dead.
The social worker then contacted the aunt, who told her the family may have Cherokee or Blackfoot ancestry, but no family members grew up on a reservation, no family member was a registered tribal member or attended or participated in tribal ceremonies, and no family member attended a reservation school. The aunt was not able to suggest any other living family member who might have more information and said anyone in the family who might have had a tribal affiliation is now dead.
The social worker conducted reasonable inquiry. Rosalie and the aunt were able to provide no information to indicate Marie is an Indian child within the meaning of the statutory provisions. Their statements that the family may have Cherokee or Blackfoot ancestry without more was not enough to require notice under ICWA.
DISPOSITION
The order is affirmed.
WE CONCUR: McCONNELL, P. J.HALLER, J.