Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. SJ11085C, William Lehnhardt, Judge. (Retired Judge of the Imperial S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
McINTYRE, J.
R.N. appeals an order terminating her parental rights to her daughter, M.P. She contends the Agency did not comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.), and the court erred by finding the beneficial relationship exception to termination of parental rights and adoption did not apply. We reverse the order and remand for the limited purpose of compliance with ICWA notice requirements.
FACTUAL AND PROCEDURAL BACKGROUND
On February 8, 2005, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of infant M.P. under section 300, subdivision (j). (Statutory references are to the Welfare and Institutions Code unless otherwise specified.) The petition alleged M.P. was at substantial risk because her father, David P., had subjected her half brother to excessive discipline, and R.N. was unable to protect him and had not reunified with M.P.'s two half siblings.
The social worker reported David has American Indian heritage on both his mother's and his father's sides. The paternal grandmother said she has Iroquois heritage, but the paternal grandfather has no Indian heritage. The court made a prima facie finding on the petition, ordered M.P. detained and ordered the court to provide notice to the appropriate tribes and to the Bureau of Indian Affairs (BIA).
The Agency provided notice to four tribes and to the BIA. These tribes responded that M.P. is not an Indian child as defined by ICWA and they would not intervene. On April 11, 2005, the court found ICWA did not apply. On May 9 the court found the allegations true as amended and ordered M.P. placed in foster care and R.N. to comply with her case plan.
R.N. moved to a homeless shelter in April 2005. The social worker reported living there appeared to help R.N. be calmer and more focused, and her therapist reported she was functioning well in the shelter's supportive atmosphere. She had weekly supervised visits with M.P. In February 2006 R.N. and M.P. began a 60-day trial visit at the shelter. M.P. adjusted well and at the 12-month review hearing on April 13, 2006, the court ordered continued services and ordered her placed with R.N. On October 12 the court continued her placement with R.N. and continued services.
On February 23, 2007, the Agency filed a supplemental petition under section 387, alleging R.N. was unable to provide effective care because she left M.P. alone at the shelter and did not return. The supervisor at the shelter reported concerns about R.N.'s mental stability and care of M.P. and said she had threatened suicide twice. R.N. said she could not take adequate care of M.P. because she was not getting enough support from shelter staff, and doing what was expected while caring for M.P. was too much for her.
At the jurisdictional/dispositional hearing on April 30, 2007, the court found the allegations of the supplemental petition true and that R.N. had not made substantive progress with her case plan. It terminated services and set a section 366.26 hearing.
The social worker reported at visits on March 19 and April 4, 2007, M.P. was excited to see R.N. and called her "mommy." When the visits ended, M.P. appeared sad. At the next visit on July 3 R.N. gave small gifts to M.P. and they read and talked together. M.P. did not respond when R.N. asked for kisses. M.P. showed no change of emotion when the visit ended, but appeared excited and hugged the foster mother when she returned to the foster home. Subsequent visits were similar. R.N. and M.P. were affectionate, but M.P. separated easily at the end of each visit and was excited to return to her caregiver. In late August M.P. moved to a prospective adoptive home and adjusted easily to this family. The social worker said although M.P. appeared to enjoy her time with R.N., she reacted to other people in her life in a similar manner. She opined that although R.N. and M.P. had a positive relationship, it was not a beneficial parent-child relationship, and R.N. had not been able to maintain the stability necessary to be a parent.
At the section 366.26 hearing on December 19, 2007, the court found by clear and convincing evidence that M.P. was likely to be adopted and none of the statutory exceptions to termination of parental rights and adoption were present. It terminated parental rights and ordered a permanent plan of adoption.
DISCUSSION
I
R.N. contends the case must be reversed because the Agency did not comply fully with the requirements of ICWA by providing notice to each Cherokee and Iroquois tribe even though David said he had both Cherokee and Iroquois heritage. The Agency concedes that all proper tribes were not notified. Thus, the order must be reversed and the case remanded for the limited purpose of ensuring full compliance with ICWA notice requirements. The process of ordering a limited reversal "is legally authorized, consistent with the best interests of children, and in keeping with fundamental principles of appellate practice." (In re Francisco W. (2006) 139 Cal.App.4th 695, 704; In re Terrance B. (2006) 144 Cal.App.4th 965, 971.)
II
R.N. asserts the court erred by terminating her parental rights because substantial evidence does not support the court's finding the beneficial relationship exception to termination of parental rights and adoption did not apply.
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 termination of parental rights would be detrimental to the child because of a specified statutory exception to termination of parental rights and adoption. (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." (Effective Jan. 1, 2008, the Legislature amended and renumbered section 366.26, subd. (c)(1)). The beneficial parent-child relationship exception formerly in section 366.26, subdivision (c)(1)(A) is now section 366.26, subdivision (c)(1)(B)(i). (Stats. 2006, ch. 838, § 52.) 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 reviewing whether sufficient evidence supports the trial court's finding, the appellate court reviews the evidence in the light most favorable to the 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.)
R.N. maintained regular visitation and contact with M.P. However, substantial evidence supports the court's finding that they did not have a beneficial parent-child relationship so that M.P. would gain more from maintaining a relationship with R.N. than she would gain from a permanent adoptive home.
After M.P. was placed with R.N. at the shelter, R.N. was unable to provide safe and stable care, and the Agency was required to remove her. R.N. and M.P. had subsequent numerous affectionate visits, but M.P. was always able to separate easily from R.N. and happy to go back to her foster home. M.P. made an easy transition to her prospective adoptive home and after visits was excited to return to her prospective adoptive parent. As the social worker observed, R.N. clearly loved M.P., but was not able to provide stable care, and M.P. appeared to have a strong relationship with her prospective adoptive parents. R.N. has not shown the court erred by finding the beneficial parent-child exception did not apply.
DISPOSITION
The order is reversed. The court is directed to require the Agency to fully comply with the notice requirements of the ICWA. If, after notice, a tribe exercises its right to intervene, the court is directed to hold a new section 366.26 hearing. If no tribe exercises its right to intervene, the court is authorized to reinstate the judgment.
WE CONCUR: BENKE, Acting P. J., AARON, J.