Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. JD18442, JD18443, JD18444
Premo, Acting P.J.
I. Introduction
M.C. (mother) and M.S. (father) appeal from a juvenile court order terminating their parental rights and selecting adoption as the permanent plan (Welf. & Inst. Code, § 366.26) for their daughters J.S. and A.S. and their son M.S. Mother and father (collectively, parents) argue that the juvenile court erred in terminating parental rights because the case comes within the exceptions to termination described by section 366.26, subdivision (c)(1)(B)(i) and (v). Parents also argue that the court erred in summarily denying two section 388 motions filed by father’s relatives and that the notice given pursuant to the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) was inadequate. We reject parents’ substantive arguments but agree that the ICWA notice was deficient. We shall conditionally reverse the order to allow the juvenile court to correct the noticing error.
Further unspecified section references are to the Welfare and Institutions Code.
Mother and father have each joined the other’s arguments on appeal.
II. Factual and Procedural Background
Our recitation of the factual background is taken in part from the record in case No. H033954, of which we have taken judicial notice.
The Santa Clara County Department of Family and Children’s Services (Department) took J.S., A.S., and M.S. and their half-sister, D.M., into protective custody on September 4, 2007, following mother’s arrest for petty theft. J.S. was seven months old and A.S., M.S., and D.M. were, respectively, four, six, and 12 years old. The Department filed a petition pursuant to section 300, subdivision (b) alleging that mother and father had failed to supervise and protect the children due to their substance abuse and father’s history of violent behavior. Both parents were alleged to have disciplined M.S. by striking him on his face, hand, buttocks, and back, leaving red marks. At the time the children were detained, father was in custody on charges of domestic violence. D.M.’s father could not be located.
This appeal concerns only J.S., A.S., and M.S. Where appropriate, we shall refer to them collectively as the S. children, to differentiate them from their half-sister D.M.
The juvenile court declared the S. children to be dependent children of the court and ordered supervised visitation and reunification services for both parents. J.S., A.S., and D.M. were placed with father’s mother (the paternal grandmother) and M.S. was placed with his father’s sister (the paternal aunt) who lived nearby. In March 2008, the social worker made an unannounced visit to the paternal grandmother’s home and found father there supervising the children. The juvenile court granted the Department’s petition to remove the children from the relatives’ homes due to the paternal grandmother’s failure to follow the court’s visitation orders. The children were placed together in a foster home.
In July 2008, D.M. was placed with her father’s mother. Reports from the children’s therapists noted that D.M. had been abusive toward M.S. and A.S. and would hit them when they were not watching. M.S. and A.S. thought it was good that D.M. did not live with them anymore because she had been mean to them and their baby sister J.S. For her part, D.M. was “very tearful” about having to leave her younger siblings when she moved to her grandmother’s home.
Supervised visitation with the parents continued through September 2008. Visits with father, who was again in custody, were conducted via video at the Elmwood Correctional Facility. The older children always asked to end the video visits before the end of an hour because they were bored. J.S. spent less than five minutes interacting with father during those visits.
In September 2008, mother was arrested for driving under the influence. Her driver’s license had expired and she had two minors with her in the car at the time, one of whom was the paternal aunt’s teenage daughter. The car belonged to the paternal grandmother. The Department learned of the arrest in December 2008 when the social worker was investigating another arrest that had taken place in August of that year. Neither the paternal grandmother nor the paternal aunt mentioned the September arrest during interviews with the social worker.
The social worker interviewed the paternal aunt in December 2008 in connection with the aunt’s request to have the children placed with her. The aunt did not mention mother’s September arrest or her own daughter’s presence in the car when mother was arrested. The social worker also determined that the aunt seemed to be very dependent upon the paternal grandmother for assistance in caring for the children. With respect to the aunt’s request for placement, the social worker was concerned both with her dependence upon the paternal grandmother and with the fact that the family had attempted to keep mother’s most recent arrest a secret, which raised a doubt as to the relatives’ credibility and trustworthiness and their ability to appropriately care for and protect the children. The paternal grandmother had also requested that the children be placed with her. The social worker recommended against the placement, noting that the paternal grandmother had downplayed the significance of her having ignored the court orders in allowing father to have unsupervised visits with the children, which was the reason they were removed from her home the year before. Also, the worker noticed that the grandmother did not interact with the older children but sat off to the side and cared for the baby, J.S.
The paternal aunt filed a section 388 motion in February 2009, asking the court to place J.S., A.S., and M.S. with her. The petition did not refer to any change in circumstances but alleged that the change would be better for the children to be with their blood relatives. The court summarily denied the motion.
Meanwhile, neither mother nor father had been able to successfully complete their case plans. On February 27, 2009, the juvenile court terminated reunification services for A.S. and M.S. and, having already terminated reunification services for J.S., set the matter for a section 366.26 hearing to select a permanent plan for all three S. children. The S. children were then residing together in a foster home. A prospective adoptive family willing to adopt all three children was identified in or about April 2009. The children began having two and three-night visits with the prospective adoptive family in May. In June 2009, the prospective adoptive family took the children to Disneyland for M.S.’s eighth birthday. M.S. had become attached to his foster parents and thought of them as his actual parents. M.S.’s first response to learning that he would be adopted by the prospective adoptive family was to cry. He recovered when he was reassured that he would continue to have contact with the foster family. The foster mother later reported that he was doing well and had a good visit with the prospective adoptive family. M.S.’s therapist stated that M.S. had cried at other transitions, too. The foster mother reported overhearing the paternal grandmother coaching M.S. to complain of mistreatment by the prospective adoptive parents so that he would not be placed with that family. A.S. had no visible reaction or comment to the news of her pending adoption. The foster mother reported that A.S. was generally excited and happy to see the prospective adoptive family.
In a report dated June 2009, the child advocate for A.S. and M.S. stated that both children were happy in their current foster care placement. Neither child initiated any mention of mother or father. When asked about visiting their parents, they either did not respond or would say something like “I don’t know” or “I don’t remember.” Both were attached to their foster mother, called her “mom,” and spoke often about her and the other children in the family. Both children had been excited about a recent weekend visit with the prospective adoptive family.
The social worker’s observations of the prospective adoptive mother’s interaction with the children revealed that she was very appropriate with them. The foster mother noted that A.S. seemed comfortable with the transition to the prospective adoptive home and that M.S. had begun referring to the prospective adoptive home as his home. The social worker concluded that the three children had begun building a trusting and loving relationship with the prospective adoptive family.
On July 20, 2009, approximately one month prior to the section 366.26 hearing, both the paternal grandmother and the paternal aunt filed section 388 motions to change the court orders and have the S. children placed with them. The aunt’s request stated that she believed the social worker was biased against the family and was “intent on giving them up for adoption.” The aunt stated that, if given the opportunity, she would provide a “comprehensive and detailed plan of action” to show that the children would be in good hands with her. The grandmother stated that she and the aunt were “blood relatives,” that they loved the children, and that they had the “best interest of the child[ren] in mind.” The juvenile court denied both requests, noting that neither request contained any new information.
At a contested section 366.26 hearing on August 19, 2009, the social worker testified that the S. children had continued to have visits with their half-sister D.M. and that the prospective adoptive family had indicated a willingness to permit the visits to continue. Even if such visits were terminated, it was the social worker’s opinion that the benefits of adoption for the three S. children outweighed any detriment they would suffer if their relationship with D.M. were severed. The children had not lived with D.M. for over a year and they had been having some difficulties with her when they did live together.
The social worker also stated that he believed the benefit of stability and permanency in an adoptive home outweighed the benefit of the children’s maintaining a relationship with parents. The children had not been under parents’ care since September 2007 and it appeared they had more attachment to the current foster family than to parents. M.S. referred to the foster father as his dad and J.S. referred to the foster mother as “mom.” On at least two occasions the children had not wanted to go to visits with mother but preferred to stay in the foster home to play. The therapist who had been working with M.S. and A.S. for the past year indicated that M.S. was very fearful of returning to the care of his father. The social worker agreed that visits with mother had been positive. He also stated that M.S. and A.S. had not been told that they will not see mother again after parental rights are terminated. He believed the children would take that news “very hard.” That said, he believed the children’s attachment to their current foster parents was “far more significant” than their attachment to mother and father.
Parents offered evidence intended to show that the children’s relationship with parents and with their half-sister D.M. was such that termination would be detrimental to the children. Father testified that he had lived with the children their whole lives up to the time they were removed from his custody. He had fed and diapered them and had taken them on outings and to family events. He believed the children enjoyed their visits with him. He could tell by “the warmth in their hugs.”
Mother testified that the children appeared to enjoy their visits with her, immediately running to hug and kiss her and to tell her they loved her. The paternal grandmother testified that she knew the children very well and believed it would be a “big trauma” to have their familial relationships severed. The paternal aunt stated her concern about M.S. and her fear that he would be “traumatized” because he wants to be a good kid so he can be back with the family.
The juvenile court found, by clear and convincing evidence, that the children were likely to be adopted. The court found, “they are wonderful kids, they’re well adjusted, they’re happy. They enjoy doing things that most kids enjoy. They have no qualities that would make them not good candidates for adoption.” The court found that the parents had maintained regular visitation with the children, mother more consistently than father. There was no evidence that the children viewed father as a parent. The analysis with respect to the children’s relationship with mother was more difficult but, nevertheless, the court stated, “But the Court cannot find that the evidence convinces the Court that the children would be greatly harmed.” The court concluded “that the benefits to adoption outweigh the benefits to the children of maintaining the parent-child relationship.”
As to the children’s relationship with D.M., the court had no evidence that the relationship would actually be severed since the prospective adoptive parents indicated they were willing to continue the children’s visits with her. The court concluded that the parents had not shown that any of the exceptions to bar adoption applied, and, therefore, adopted the Department’s recommended findings and orders and terminated parental rights of both parents to J.S., A.S. and M.S.
III. Discussion
A. The Exceptions to Termination
1. Legal Framework
Section 366.26 states that the court shall terminate parental rights if it “determines,... by a clear and convincing standard, that it is likely the child will be adopted.” (§ 366.26, subd. (c)(1).) If the court determines it is likely the child will be adopted, certain prior findings by the juvenile court (e.g., that returning the child to the physical custody of the parent would create a substantial risk of detriment to the physical or emotional well-being of the child) shall constitute a sufficient basis for the termination of parental rights unless the juvenile court “finds a compelling reason for determining that termination would be detrimental to the child due to one or more of [six listed] circumstances.” (Id. subd. (c)(1)(B).) Two of those circumstances are pertinent here. One is that “parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (Id. subd. (c)(1)(B)(i).) The other is that there would be “substantial interference with a child’s sibling relationship.” (Id. subd. (c)(1)(B)(v).) The party asserting the exception bears the burden of demonstrating that termination would be detrimental to the child for the reasons asserted. (In re Megan S.(2002) 104 Cal.App.4th 247, 252.) Even upon such a showing, the court may still terminate parental rights if it determines the benefit of adoption outweighs the detriment the child would suffer by severing the parental or sibling relationship. (Ibid.)
To meet the burden of proving the section 366.26, subdivision (c)(1)(B)(i) exception the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits. The parent must show that he or she occupies a parental role in the life of the child. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) To meet the burden of proving the section 366.26, subdivision (c)(1)(B)(v) exception the parent must show: (1) the existence of a significant sibling relationship; (2) termination of parental rights would substantially interfere with that relationship; and (3) it would be detrimental to the child being adopted if the relationship ended. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 952.)
2. Discussion
Parents argue that the juvenile court erred in failing to apply the parental-relationship and sibling-relationship exceptions to termination of parental rights contained in section 366.26, subdivision (c)(1)(B)(i) and (v). Parents urge us to review the juvenile court’s order under the substantial evidence standard of review--as opposed to the more deferential abuse-of-discretion standard. The substantial evidence standard requires that we review the evidence most favorable to the prevailing party and indulge all legitimate and reasonable inferences to uphold the court’s ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) If the court’s ruling is supported by substantial evidence, we must affirm the juvenile court’s order. (In re Autumn H. (1994) 27 Cal.App.4th 567, 574.) As we have recently held, the classic formulation of the substantial evidence standard is inappropriate where, as here, the challenged ruling is based upon the parents’ failure to carry their burden of proof.
The substantial evidence standard “is typically implicated when a defendant contends that the plaintiff succeeded at trial in spite of insufficient evidence. In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment. This follows because such a characterization is conceptually one that allows an attack on (1) the evidence supporting the party who had no burden of proof, and (2) the trier of fact’s unassailable conclusion that the party with the burden did not prove one or more elements of the case (Oldenburg v. Sears, Roebuck & Co. (1957) 152 Cal.App.2d 733, 742 [trier of fact is the exclusive judge of the credibility of the evidence and can reject evidence as unworthy of credence]; Hicks v. Reis (1943) 21 Cal.2d 654, 659-660 [trial court is entitled to reject in toto the testimony of a witness, even if that testimony is uncontradicted]). [¶] Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571; Caron v. Andrew (1955) 133 Cal.App.2d 402, 409.) Specifically, the question becomes whether the appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.’ (Roesch v. De Mota, supra,at p. 571.)” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)
In the present case, evidence was presented on both sides of the issue. Parents offered evidence to show that the children were affectionate with them and that their biological family cared a great deal for them. On the other hand, the Department offered evidence to show that the children did not have a parental relationship with father, that they were more attached to their foster parents than they were to either mother or father, and that the children would benefit from the stability and permanence adoption would provide. Parents insist that their evidence was sufficient to show that termination would be detrimental to the children. But as the juvenile court’s ruling indicates, the court rejected parents’ evidence when it concluded that it could not find the children would be greatly harmed if parental rights were terminated. “It is not our function to retry the case. We therefore decline [parents’] implicit invitation to review the record so as to recount evidence that supports [their] position (reargument) with the object of reevaluating the conflicting, competing evidence and revisiting the juvenile court’s failure-of-proof conclusion. [Citations.] This is simply not a case where undisputed facts lead to only one conclusion.” (In re I.W., supra,180 Cal.App.4th at pp. 1528-1529.)
B. The Section 388 Motions
Parents challenge the trial court’s summary denial of the two section 388 motions filed in July 2009 by the paternal aunt and grandmother. The Department argues that parents lack standing to appeal from the order because their only interest was in reunification and, since reunification services had been terminated, they cannot be considered aggrieved by the court’s refusal to consider the relatives’ modification motions. (Cf. Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034-1035 [only the concerned relative has standing to challenge denial of a postreunification request for placement].)
Parents direct us to In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1053-1054, in which the appellate court found that a mother had standing to challenge the juvenile court’s denial of her section 388 petition in which she sought to have the child placed with a relative. The court noted that, until parental rights are terminated, “a parent retains a fundamental interest in his or her child’s companionship, custody, management and care.” (In re EsperanzaC., supra,at p. 1053.) Esperanza C. may be distinguished in that it was the mother’s own section 388 motion from which the appeal was taken. Here, the court denied the relatives’ motions and the relatives have not appealed that decision. On the other hand, we recognize, as Esperanza C. did, that the juvenile court’s determination of the appropriate permanency plan may affect the parents’ interests in their legal status with respect to the child. To that extent, parents were, arguably, aggrieved by the court’s refusal to consider the relatives’ placement request. Resolving the question in favor of the right to appeal (Esperanza C., supra, at p. 1054), we shall assume that parents have standing and reject the challenge on the merits.
Section 388 provides, “Any parent or other person having an interest in a child who is a dependent child of the juvenile court... may, upon grounds of change of circumstance or new evidence, petition the court... for a hearing to change, modify, or set aside any order of court previously made.” (§ 388, subd. (a).) The court must order a hearing on the petition “[i]f it appears that the best interests of the child may be promoted by the proposed change of order.” (Id. subd. (d).) “The court may deny the petition ex parte if: (1) the petition... fails to state a change of circumstance or new evidence that may require a change of order... or, that the requested modification would promote the best interest of the child.” (Cal. Rules of Court, rule 5.570(d)(1).) The denial of a section 388 petition without a hearing is reviewed for abuse of discretion. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)
Parents argue that the juvenile court abused its discretion in denying the petitions without a hearing, pointing to the paternal aunt’s declaration, the gist of which was that she would do whatever was necessary to have the children in her care and that she believed the social worker had not given the relatives’ requests for custody adequate consideration. The grandmother’s declaration included her opinion that the children would be better off with their blood relations. Not one of these statements amounts to new facts or changed circumstances. The children were removed from the relatives’ care due to the grandmother’s failure to adhere to the court-ordered visitation. Later placement requests were rejected due to the relatives’ lack of candor and good faith in their relations with Department personnel. Nothing in either declaration showed that circumstances had changed to allay these concerns. Accordingly, the juvenile court did not abuse its discretion in summarily denying the relatives’ section 388 motions.
C. The ICWA Notices
1. Legal Framework
At all stages of a dependency proceeding, the juvenile court must comply with the ICWA. The ICWA was enacted to protect the interests of Indian children and to promote the stability and security of Indian tribes and families. (25 U.S.C. § 1902; see, e.g., In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906.) An Indian child, within the meaning of the ICWA, is a child who is either a member of an Indian tribe or is eligible for membership and is the biological child of a member. (25 U.S.C. § 1903(4); § 224.1, subd. (a).) Where a state court “knows or has reason to know” that an Indian child is involved in a dependency proceeding, statutorily prescribed notice must be given to all tribes of which the child may be a member or eligible for membership. (25 U.S.C. § 1912(a); § 224.2, subd. (a)(3); In re Samuel P. (2002) 99 Cal.App.4th 1259, 1264.) Notice to the tribe “shall be to the tribal chairperson, unless the tribe has designated another agent for service.” (§ 224.2, subd. (a)(2).) “The failure to comply with the notice requirements of the ICWA constitutes prejudicial error unless the tribe has participated in or indicated no interest in the proceedings.” (In re Samuel P., supra, at p. 1265.)
2. Factual Background
Father does not claim to have any Indian heritage. Mother reported that she may have “Mescalara” [sic] or Yaqui heritage. Pursuant to the requirements of the ICWA, the Department sent notice of the dependency proceedings to nine tribes, including the Pascua Yaqui, the Mescalero Apache, and all other Apache tribes. Receipt cards were returned by eight of the nine tribes. The Pascua Yaqui, Mescalero Apache, San Carlos Apache, Jicarilla Apache, Tonto Apache, Yavapai/Apache Nation, and the White Mountain Apache tribes sent written responses indicating that the children were not members or eligible for membership in those tribes. Although the Apache Tribe of Oklahoma and the Fort Sill Apache tribes returned receipt cards, they did not send response letters. The notices that the Department sent to these two tribes had been addressed to the address provided in the Federal Register but neither notice was directed to any particular person. Rather, the Department had simply directed the notices to the “Apache Tribe of Oklahoma” and to the “Fort Sill Apache Tribe of Oklahoma.” The signatures on the return receipt cards are either illegible or do not indicate the signer’s relationship to the tribe.
The juvenile court found notice under the ICWA was proper and that the ICWA did not apply.
3. Analysis
Parents argue that the order terminating parental rights must be reversed because the notices to the Apache Tribe of Oklahoma and the Fort Sill Apache Tribe were not directed to the chairperson of the tribe and that the record does not show that the notice was actually received by anyone responsible for ICWA matters. Although the error seems minor, it undermines our confidence that the notices achieved the purpose intended by the law.
The Department does not dispute that its notices were not addressed to the tribal chairperson or designated agent as required by section 224.2, subdivision (a)(2). The Department argues, however, that the error was harmless because receipt cards were returned from these tribes and, since the notices were presumably delivered to the correct post office boxes, it was up to the tribe to decide how to handle the correspondence. The argument is unpersuasive. “The purpose of the requirement that notice be sent to the designated persons is to ensure that notice is received by someone trained and authorized to make the necessary ICWA determinations, including whether the minors are members or eligible for membership and whether the tribe will elect to participate in the proceedings. Receipt by an unidentified person at the tribe’s address does not fulfill this purpose.” (In re J.T. (2007) 154 Cal.App.4th 986, 994.)
The Department disagrees with the appellate court’s analysis in In re J.T., supra,154 Cal.App.4th 986. According to the Department, receipts are often signed by unidentified or unidentifiable persons; how to accept mail should be entirely a tribal decision. There is certainly no requirement that the return receipt be signed by the tribal chairperson or by the person designated to investigate ICWA matters. Had the notices been properly addressed, we would presume that the notices had been received by the addressees regardless of who signed the receipt. (Evid. Code, § 641.) Here, the notices were not properly addressed; they were directed to the tribes as a whole. There is no evidence from which we may draw the inference that they were actually received by anyone responsible for ICWA matters. Accordingly, we must reverse the order and remand for the limited purpose of ensuring compliance with the ICWA. (See Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784 [failure to provide notice to designated agent or address, without evidence of actual notice, cannot be considered harmless error].)
IV. Disposition
The orders terminating parental rights are conditionally reversed, and the matter is remanded to the juvenile court with directions that the Santa Clara County Department of Family and Children’s Services provide proper notice to the Apache Tribe of Oklahoma and the Fort Still Apache Tribe. The Department is directed to file proof of receipt of such notice by the tribes, along with a copy of the notice and any responses. If, after receiving notice as required by the ICWA, no response indicates that J.S., A.S., or M.S. are Indian children, or the responses received indicate that they are not Indian children within the meaning of the ICWA, the orders terminating parental rights shall be immediately reinstated. If any tribe determines that J.S., A.S., or M.S. Are Indian children within the meaning of the ICWA, the juvenile court shall conduct further proceedings applying the provisions of the ICWA and Welfare and Institutions Code section 224 et seq.
WE CONCUR: Elia, J., McAdams, J.