Opinion
NOT TO BE PUBLISHED
Super. Ct. No. J03917
BUTZ, J.T.B. (mother), the mother of N.C. and C.B., Jr., and Anthony P. (father), the father of N.C. , appeal from an order of the juvenile court terminating their parental rights. (Welf. & Inst. Code, §§ 366.26, 395.) Mother contends the juvenile court committed reversible error in terminating her parental rights because substantial evidence supported application of a statutory exception to adoption. (§ 366.26, former subd. (c)(1)(A).) Mother and father also claim the San Joaquin County Human Services Agency (HSA) and the juvenile court violated the Indian Child Welfare Act of 1978 (the ICWA). (25 U.S.C. § 1901 et seq.) Agreeing with the ICWA claim only, we conditionally vacate the order terminating parental rights and remand for proper notice.
Undesignated statutory references are to the Welfare and Institutions Code.
Effective January 1, 2008, that provision has been renumbered as subdivision (c)(1)(B)(i).
FACTUAL AND PROCEDURAL BACKGROUND
In June 2005, HSA filed an original juvenile dependency petition on behalf of then three-and-a-half-year-old N.C. and three-day-old C.B., Jr. That petition alleged in part the minors were at a substantial risk of suffering serious physical harm caused by mother’s inability to provide regular care for the minors due to the mother’s substance abuse. The juvenile court sustained the petition and adjudged the minors dependent children.
Mother and C.B., Sr., advised the juvenile court they had Blackfeet and Cherokee Indian heritage. Father, who was not confirmed as the father of N.C. until February 8, 2007, also reported that N.C. had Indian heritage. Thereafter, HSA mailed notices of the dependency proceedings to three Cherokee Indian tribes and one Blackfeet tribe. That notice omitted information about mother’s relatives and did not list N.C. as one of the minors.
C.B., Sr., the father of C.B., Jr., also filed an appeal, but his appeal was dismissed for failure to file an opening brief.
On March 3, 2006, the juvenile court ruled that HSA had complied with the notice requirements of the ICWA.
Mother visited the minors on a weekly basis, but missed approximately 14 scheduled visits. Although HSA reported that N.C. enjoyed visiting with mother, it also noted that often mother ignored attempts by N.C. to obtain mother’s attention and then N.C. “act[ed] out.” Moreover, on one occasion a social worker observed mother “slap [then two-year-old C.B., Jr.,] on the hand several times.”
A psychological evaluation of the nature of the relationship existing between the minors and mother concluded the minors would not be affected adversely by ending that relationship. The examiners wrote that the need of the minors for “long-term permanency, stability and security outweighs the short-term emotional distress that might result from ending their relationship with [mother].” They also noted that, “[w]hile [ N.C. ] at times experiences a significant, though limited, relationship with [mother], the quality of their relationship has suffered due to the inconsistency in [sic] which [mother] has participated in [ N.C. ’s] life.”
The report acknowledged the minors enjoyed their visits with mother, and stated that N.C. expressed a wish to return to mother’s custody. However, allegedly N.C. also demonstrated “ambivalent feelings” about her relationship with mother. Moreover, according to the report, N.C. was doing well in the home of the foster family. The report asserted that the “need to sustain a relationship with [mother] does not appear to outweigh the need for a stable and protective home environment.”
A September 2007 report by HSA noted mother had been visiting the minors regularly. It also stated the minors were placed together and should remain in the same home, as they were bonded to each other. N.C. allegedly told the social worker that she wanted to visit mother but wanted to remain in her foster home. The report also concluded the foster parents were interested in adopting the minors, and that the minors were adoptable children. HSA recommended termination of parental rights.
At the October 2007 section 366.26 hearing, N.C. testified she wished to live with mother. However, if she could not live with mother, then N.C. wanted to remain in the home of her foster parents. A visitation supervisor told the juvenile court the visits between mother and N.C. had gone well. Mother testified she and N.C. shared a “mother-daughter bond.” According to mother, frequently N.C. indicated to her that she wanted to return home.
At the conclusion of the section 366.26 hearing, counsel for mother argued the juvenile court should apply a statutory exception to adoption, based on the significant relationship existing between mother and the minors. The juvenile court terminated parental rights, finding no statutory exception to adoption applicable. In making its ruling, the court relied primarily on the psychological evaluation.
DISCUSSION
I
Mother contends the juvenile court’s failure to apply the beneficial relationship exception to adoption contained in section 366.26, former subdivision (c)(1)(A), with respect to N.C. , is not supported by substantial evidence. Noting evidence of regular contact with N.C. , significant parental and sibling relationships, and the existence of a bond between N.C. and mother, mother suggests N.C. would suffer if her relationship with mother was severed.
“‘At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]’ [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child.” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)
One of the circumstances under which termination of parental rights would be detrimental to the minor is: “The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, former subd. (c)(1)(A) [now subd. (c)(1)(B)(i)].) The benefit to the child must promote “the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).)
The parent has the burden of establishing the existence of any circumstances that constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373.) The juvenile court is not required to find that termination of parental rights will not be detrimental due to specified circumstances. (Id. at p. 1373.) Even frequent and loving contact is not sufficient to establish the benefit exception absent significant, positive emotional attachment between parent and child. (In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419 (Beatrice M.).)
Section 366.26 requires both a showing of regular contact and a separate showing that the child actually would benefit from continuing the relationship. Autumn H. interprets the statutory exception to involve a balancing test (Autumn H., supra, 27 Cal.App.4th at p. 575), and both Autumn H. and Beatrice M. posit a high level of parental-type involvement and attachment (Autumn H. at p. 575; Beatrice M., supra, 29 Cal.App.4th at p. 1418). Even assuming those decisions overemphasized the importance of the parental role, the record here does not support mother’s assertion that N.C. would benefit from continuing her relationship with mother simply because of the strong attachment existing between them and due to periodic visits with mother. (Cf. In re Amanda D. (1997) 55 Cal.App.4th 813, 821-822.)
Mother suggests the record establishes the existence of a beneficial relationship between N.C. and herself, precluding a finding of adoptability, and tenders either guardianship or long-term foster care as alternatives to adoption. The juvenile court was authorized to conclude the contrary was true. Evidence of a significant parent-child attachment by itself does not suffice. Instead, the record must show such benefit to the minor that termination of parental rights would be detrimental to the minor. (§ 366.26, former subd. (c)(1)(A) [now subd. (c)(1)(B)(i)].) Here, as the court determined, the record was bereft of such a showing. Instead, there was evidence suggesting it was critical for N.C. to obtain the benefits of a stable placement.
In In re Brandon C. (1999) 71 Cal.App.4th 1530 (Brandon C.), cited by mother, the juvenile court found it was in the best interests of the minors to establish a guardianship, rather than terminate parental rights, so the minors could maintain their relationship with their mother. (Id. at p. 1533.) Affirming, the Court of Appeal held substantial evidence supported the juvenile court’s conclusion that terminating parental rights would be detrimental to the minors, because their mother had maintained regular, beneficial visitation with them. (Id. at pp. 1533, 1534-1535, 1537, 1538.)
Brandon C. is distinguishable from the proceedings here. The Brandon C. court found ample evidence of benefit to the minors of continued contact with their mother. (Brandon C., supra, 71 Cal.App.4th at pp. 1537, 1538.) Here, by contrast, the record supports the juvenile court’s implicit conclusion that there would not be sufficient benefit to N.C. if her relationship with mother was continued. Moreover, as the record also suggests, N.C. had a need for stability and security, a need which only adoption could satisfy.
Mother suggests that because she had maintained a significant parent-child relationship with N.C. , which included regular contact while in placement, the circumstances of her case compare favorably with those found in other cases. We disagree. In In re Casey D. (1999) 70 Cal.App.4th 38, 51, also cited by mother, the Court of Appeal did not find an “exceptional case” where a beneficial parent-child relationship existed that would preclude adoption. (Ibid.) Accordingly, the court in Casey D. affirmed the order that terminated parental rights. (Id. at pp. 53, 54.) However, the court in Casey D. did recognize the possibility that a beneficial relationship might exist despite the absence of daily contact between parent and child. (Id. at p. 51.) The difficulty for mother here is that she cannot establish the requisite beneficial relationship with N.C. , in the absence of which the exception does not apply.
Here, the issue was as follows: In light of N.C. ’s likely adoptability, would a continued relationship with mother benefit N.C. to such a degree that it would outweigh the benefits N.C. would gain in a permanent adoptive home? Substantial evidence in the record supports the juvenile court’s implicit answer in the negative. On the record before it, the juvenile court could conclude, as it did impliedly, that only adoption, which is the preferred disposition (In re Ronell A., supra, 44 Cal.App.4th at p. 1368), would promote the best interests of N.C. As the record reflects, the juvenile court had before it ample evidence on the matter, including mother’s and N.C. ’s testimony.
After it became apparent mother would not reunify with N.C. , the juvenile court had to find an “exceptional situation existed to forego adoption.” (Autumn H., supra, 27 Cal.App.4th at p. 576.) In this case, on the contrary, the court determined N.C. would not benefit from continuing a relationship with mother to such a degree that termination of parental rights would be detrimental to N.C. Mother had the burden to demonstrate the statutory exception applied. We conclude that mother failed to make such a showing. Therefore, the court did not err in terminating parental rights. (In re Amanda D., supra, 55 Cal.App.4th at pp. 821-822.)
II
Mother and father contend the juvenile court and HSA failed to comply with the notice requirements of the ICWA. HSA concedes that ICWA notice errors occurred and suggests a limited remand for compliance with the ICWA notice provisions is appropriate.
Father also joins in all of the arguments made by mother to the extent they benefit him.
The notice provisions of the ICWA state, in part: “In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” (25 U.S.C. § 1912(a).)
The Indian status of a child need not be certain to trigger the ICWA’s notice requirements. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471.) “[O]ne of the primary purposes of giving notice to the tribe is to enable the tribe to determine whether the child involved in the proceedings is an Indian child.” (Id. at p. 470.) “The [Department] must provide all known information to the tribe, particularly that of the person with the alleged Indian heritage.” (In re Louis S. (2004) 117 Cal.App.4th 622, 631.) Notice must include, if known, the names of the child’s grandparents and great-grandparents, including maiden, married and former names or aliases, as well as their birth dates, places of birth and death, tribal enrollment numbers, current and former addresses, and other indentifying information. (25 C.F.R. § 23.11(a) & (d)(3); 25 U.S.C. § 1952.)
Having received information suggesting there was Cherokee and Blackfeet Indian heritage in the family, HSA was obliged to notify each of those tribal units of the dependency proceedings with the most current information available to it, in order that the tribes could make a proper determination about Indian heritage. Thereafter, when it received confirmation that father was the biological father of N.C. , HSA should have made proper inquiry of father and then sent that new information to the tribes, advising the juvenile court it did so and also whether it received any replies from the tribes. Inexplicably, HSA failed to do so.
The record reflects that, although HSA knew the name of the maternal grandmother, it omitted her name from the notices sent to the tribes.
In this case, until HSA obtained all relevant information and sent it to the tribes, the juvenile court’s ruling that the ICWA did not apply was at best premature. The failure to comply with the notice provisions and determine whether the ICWA applies to dependency proceedings is prejudicial error. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424; see also In re Desiree F., supra, 83 Cal.App.4th at p. 472.)
On remand, HSA must send new notices of the dependency proceedings to each of the tribes previously notified as to both minors, with all available information included, or with “unknown” indicated on the notices where appropriate. Moreover, HSA must send copies of the notices to mother and father, and also must send those notices to the proper tribal agents and addresses pursuant to statute and regulation.
DISPOSITION
The order terminating parental rights as to both minors is reversed conditionally, and the matter is remanded to the juvenile court with directions to order HSA to provide the tribes with proper notice of the section 366.26 hearing under the ICWA. If, after proper and complete notice, a tribe determines that either of the minors is an Indian child as defined by the ICWA, then the juvenile court is ordered to conduct a new section 366.26 hearing in conformity with all provisions of the ICWA. If, on the other hand, no response is received or the tribes determine neither minor is an Indian child, then the juvenile court shall reinstate all previous findings and orders, and the orders shall be affirmed.
We concur: BLEASE, Acting P.J., HULL, J.