Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEALS from orders of the Superior Court of Los Angeles County Super. Ct. No. CK63081. Anthony Trendacosta, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed in part and reversed in part with directions.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant H.R.
Merrill Lee Toole, under appointment by the Court of Appeal, for Defendant and Appellant Steven B.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kirstin J. Andreasen, Associate County Counsel, for Plaintiff and Respondent.
MALLANO, Acting P. J.
Steven B. (Father) and H.R. (Mother) appeal from a June 29, 2007 order terminating their parental rights to their daughter, P.B., born in March 2006. Mother also appeals from a June 29, 2007 order denying her petition for modification seeking renewed reunification services and increased visits. (Welf. & Inst. Code, § 388.) We reject Mother’s contention that the juvenile court erred in denying her petition for modification. We also reject both parents’ contentions that the court erred in finding inapplicable the beneficial relationship exception to termination of parental rights. (§ 366.26, subd. (c)(1)(A).) But, as conceded by the Department of Children and Family Services (DCFS), the failure to comply with the notice provisions of the Indian Child Welfare Act (25 U.S.C. §§ 1901–1952, hereinafter ICWA) as to the Eastern Band of Cherokee Indians requires that we reverse the order terminating parental rights and remand the matter with directions to the juvenile court to conduct further proceedings to comply with the ICWA.
Unless otherwise specified, statutory references are to the Welfare and Institutions Code.
BACKGROUND
A. Proceedings Leading to Termination of Parental Rights
Mother, at age 18, was a dependent of the juvenile court and living in a foster home when she gave birth to P.B. Two weeks after P.B.’s birth, Father, who was 33 years old, and Mother were sitting in Father’s parked car about 5:00 p.m. Mother was holding P.B. in her arms. The parents were engaged in an argument and Father hit Mother in the eye. Father was attempting to hit Mother again but his fist contacted P.B.’s head, causing bleeding in her brain, skull fractures, small strokes and seizures, for which P.B. was prescribed medication. Father, who was then on probation, had a history of domestic violence against the mother of another of his children and an extensive criminal record of convictions, including vandalism, burglary, unlawful sexual intercourse with a minor, corporal injury to a spouse, battery, and possession of a controlled substance.
About 7:30 p.m. on the day P.B. was injured, the parents took P.B. to the hospital emergency room, where both denied domestic violence between them (even though Mother had a black eye) and Father denied being present when P.B. was injured. Until the jurisdiction and disposition hearing in June 2006, Mother denied Father’s involvement in P.B.’s injuries and gave inconsistent stories of how P.B. was injured. Mother told hospital staff that P.B. was in her baby carrier on a table in the house and fell out of her carrier to the floor. Mother told a sheriff’s deputy that Mother accidentally dropped P.B. Mother told DCFS that when she was in the car after Father left the car to smoke, she accidentally dropped P.B., who hit her head on objects on the floor of the car.
In the hospital, P.B. was placed in protective custody. According to a social worker, when P.B. was in the hospital emergency room, Mother provided very little comfort to P.B. and did not appear to be bonded with her. The only question Mother asked the sheriff’s deputy in the emergency room was whether Father was going to jail. The juvenile court ordered P.B. detained on April 19, 2006. Upon her discharge from the hospital on April 25, 2006, P.B. was placed in foster care with Alma and Alfredo F., who are her prospective adoptive parents. Mother did not remain in her own foster care home, but on April 19, 2006, she was residing with Father. On April 26, 2006, the juvenile court closed the case in which Mother was a juvenile court dependent.
According to DCFS’s May 24, 2006 jurisdiction and disposition report, another girl residing in Mother’s foster home reported that on the day P.B. was injured, Mother came into the home and told the girl that Father had hit her; Mother picked up P.B. and told the girl that she believed that Father would not hit her if she had P.B. in her arms. Although Mother did not physically abuse P.B., Mother told another girl in her foster home that Mother did not want P.B., that she would “‘starve it. I’ll give it away,’” and that she would not dress P.B. so “‘it’ll freeze.’” Mother also told her foster mother that she did not want P.B. and wanted to give her up. When DCFS interviewed Mother in May 2006, Mother admitted that she and Father gave misleading stories about how P.B. was injured, but “only because we were scared.”
At the June 21, 2006 jurisdiction and disposition hearing, Mother at first testified that she was holding P.B. and she fell. In the middle of Mother’s testimony about how she got a black eye in a fight with a girl who jumped her, Mother stopped and did not want to testify anymore. After the court remarked, “At this point, you’ve already started,” Mother said, “I want to have a chance to get my daughter back ‘cause I’m fighting for my life.” The court then encouraged Mother to tell the truth. Mother then agreed to tell the truth. She explained that she was holding P.B. when Father attempted to hit Mother. Mother flinched “[a]nd by me flinching, the baby got hit in the head by accident because that night he was going to hit me, but he didn’t. [A]nd I put the baby up, and she got hit in her head.”
The juvenile court found P.B. was a dependent of the juvenile court pursuant to section 300, subdivisions (a) (severe physical harm), (b) (failure to protect), (d) (sexual abuse), (e) (severe physical abuse of a child under age 5), and (i) (cruelty) based on Father’s striking P.B. in her head and causing a skull fracture, a hemorrhagic contusion and scalp wound, Father’s physical assault on Mother, Mother’s failure to protect P.B., both parents’ false and misleading information to medical personnel, and Father’s sexual intercourse with Mother when she was 16 and with the 17-year-old mother of another of his children.
The court denied Father reunification services pursuant to section 361.5, subdivisions (b)(5) and (b)(6), also finding that reunification would not be in P.B.’s best interest. Mother was afforded reunification services and ordered to attend a 52-week program of domestic violence counseling, a 26-week parenting program including the issue of infants with special needs, sexual abuse awareness counseling, and individual counseling to address co-dependency and case issues. Mother was afforded monitored visits three times per week; Father was afforded monitored visits twice a week in the DCFS office only.
Under section 361.5, subdivision (b)(5), the juvenile court may deny reunification services to a parent if the child was brought within the jurisdiction of the juvenile court under section 300, subdivision (e). Under section 361.5, subdivision (b)(6), the court may deny reunification services if the child has been adjudicated a dependent as a result of the infliction of severe physical harm as defined in that subdivision.
A December 2006 status review report stated that Mother was fired from her job in September 2006 and has had “minimal participation in her court ordered programs during the last six months.” In November 2006, the parents were both arrested for a domestic dispute. Mother was released, but Father was incarcerated. Mother was unsure whether she wanted to remain in a relationship with Father. Father visited P.B. on an average of once a week, on several occasions showing up late or not at all. From June to November 2006, Mother missed some visits and arrived late or left early from other visits. P.B. was “fussy” with Mother because she was not used to her. On December 6, 2006, the court found that Mother was not in compliance with the case plan and terminated reunification services.
In a section 366.26 report dated April 4, 2007, DCFS reported that the foster parents’ home study was approved in February 2007 and that P.B. had bonded to her foster parents. Mother, who was working full time, was not involved in any court-ordered programs, continued to associate with Father, kept in minimal contact with DCFS, and had not alleviated the problems identified in the case. Father was incarcerated in early November 2006 and released in December 2006. Between December 2006 and March 2007, the parents visited P.B. only twice because of P.B.’s illnesses or the parents’ lack of transportation, but the quality of the visits was good.
On May 23, 2007, Mother filed a petition for modification, requesting additional reunification services and liberalized visitation. Attached to the petition was a May 11, 2007 letter from New Beginnings, Mother’s drug and alcohol treatment program. The letter stated that for the previous six months Mother had been an active participant in groups for relapse prevention, drug/alcohol education, parenting, anger management, and life skills. Mother also actively participated in individual sessions and was “able to identify the seriousness and harms of domestic violence.”
In May 2007, Mother told her attorney that she and Father were charged with child abuse in criminal court in Lancaster. Mother and Father had rented an apartment together in March 2007, but were evicted in May 2007 because they had lied to their landlord about their open DCFS case and Father’s incarceration. Mother went to live with her paternal aunt.
According to a June 6, 2007 status review report, P.B. was receiving in-home regional center services for her developmental growth and was scheduled for a neurological assessment in August 2007. DCFS reported that P.B. did not fuss or cry during a visit with Father in March 2007, and during Father’s visit in early May 2007, he was able to comfort P.B. so she stopped crying and was able to play with Father for the entire hour. But when P.B. visited with Mother in April 2007, P.B. was irritable because she was teething. P.B. cried during the entire visit and Mother was not able to console her.
On June 20, 2007, Mother filed another petition for modification which was substantially the same as the one she had filed in May 2007. (We deem this petition to supersede the first.)
On June 20, 2007, the court held the section 366.26 hearing and the hearing on Mother’s petition for modification. In addition to documentary evidence, the court heard the testimony of two social workers, Maryanne Duffy and Pamela Jones. Duffy testified that she monitored a visit between Mother and P.B. in the courthouse hallway earlier that day. At first, P.B. was quiet and calm with Mother, but before long she began to cry. Mother tried to comfort P.B., but she would not be comforted until she was back in the arms of her foster mother.
Jones, who was the social worker for Mother when she herself was a dependent child and then for P.B., testified that from January to March 2007, Mother visited P.B. once a week for about two hours, but once a month a visit had to be canceled because P.B. was sick. Jones monitored one 45-minute visit with both parents in March 2007, which went well. From late April to June 2007, Mother had five visits. P.B. would cry the entire time that Jones transported P.B. to visits with the parents. P.B. was distracted by her surroundings and the visits started well, but after 10 minutes P.B. began to cry and neither Mother nor the social worker could console her, so the visits were cut short. According to Jones, Father was able to comfort P.B., and as long as Father attended the visit, P.B. was able to sit calmly with Mother.
Mother told her attorney that she had completed her six-month treatment program with New Beginnings in May 2007. But during the lunch break that day, Jones called Mother’s therapist, Latricia Bridges, the author of the May 11, 2007 letter from New Beginnings. Bridges told Jones that Mother was enrolled in the programs, but Bridges did not state that Mother had completed the programs. Bridges told Jones that Mother actively participated in her programs until Mother was incarcerated in May. Mother told Bridges that she may have to enter another program where she was incarcerated, but Mother later resumed her New Beginnings program after her release from jail.
After argument of counsel, the court took the matters under submission. According to a “last minute information for the court,” Jones monitored a visit with the parents on June 29, 2007. P.B. began to cry when Jones took her from her foster mother’s arms and handed her to Mother, so Father held her during the entire visit. P.B. cried off and on during the visit. But when Father suggested that Mother talk to P.B. in Spanish, and Mother did so, P.B. appeared to be comfortable with Mother. P.B. also cried at the end of the visit when Father turned P.B. over to her foster mother. According to Jones, P.B. cried both when leaving her foster mother for a visit and when leaving the parents after a visit.
On June 29, 2007, the juvenile court issued its written decision, terminating parental rights and denying Mother’s petition for modification. In denying Mother’s petition, the court explained that Mother had not completed all of her programs and her visits were “not as frequent or as consistent as one would expect to show change.” The court also determined that Mother had not provided any evidence that P.B.’s best interest would be promoted by granting the petition, as “it appears that Mother, probably through immaturity, initially rejected the child and the bonding process never developed. It is too late in the process now, due to the child’s age, to extend reunification in the hopes that this bond could be repaired when the child has already bonded to the caretakers. [¶] . . . The child should not have to delay her right to permanence to see if six months, a year, or even eighteen months may make a difference.”
The court determined that P.B. was adoptable and that the parents failed to meet their burden of establishing regularity of contact and visitation and a beneficial parental relationship worth preserving which promoted P.B.’s well-being to such a degree as to outweigh the well-being she would gain in a permanent home with adoptive parents. The court explained that Mother had “very little, if any, current bond with the child.” Noting that Father could hold and feed P.B. without difficulty, the court also pointed out that P.B. never lived with Father, his visits had not progressed beyond monitored, and there was no evidence that Father addressed any issues of domestic violence. The court found that it was highly unlikely that Father could maintain a stable lifestyle, let alone achieve permanence with P.B. The court concluded that the section 366.26, subdivision (c)(1)(A) exception to termination of parental rights did not apply.
B. Notice Under the ICWA
At the detention hearing in April 2006, the court ordered DCFS to provide notice under the ICWA after Father indicated that he may have Indian ancestry in the Cherokee and Choctaw tribes through his great-great-grandfather and great-great-grandmother. In May 2006, DCFS sent two sets of notices of the proceedings by certified mail, return receipt requested, to the Bureau of Indian Affairs, the Cherokee Nation of Oklahoma, the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee Indians, the Choctaw Nation of Oklahoma, the Jena Band of Choctaw, and the Mississippi Band of Choctaw Indians.
In May and June 2006, DCFS received letters from five of the six tribes, indicating that P.B. was not a member or eligible for enrollment in the tribes. But no letter was received from the Eastern Band of Cherokee Indians. As to the Eastern Band of Cherokee Indians, the notice was not addressed to the chairperson or designated agent for service of process set out in the Federal Register and contained an incorrect street address, according to the Federal Register. Yet on June 21, 2006, the juvenile court found that the ICWA notices were proper.
Mother and Father appealed from the order terminating their parental rights. Mother also appealed from the order denying her petition for modification.
DISCUSSION
A. Mother’s Petition for Modification
A party petitioning to change, modify or set aside a previous order has the burden of showing, by a preponderance of the evidence, that there is a change of circumstances or new evidence, and the proposed modification is in the child’s best interest. (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.) “This is determined by the seriousness of the reason for the dependency and the reason the problem was not overcome; the relative strength of the parent-child and child-caretaker bonds and the length of time the child has been in the system; and the nature of the change in circumstances, the ease by which the change could be achieved, and the reason the change was not made sooner. [Citations.] Whether an order should be modified rests within the sound discretion of the juvenile court, and its decision will not be disturbed on appeal absent a clear abuse of discretion.” (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446–447.)
When two or more inferences reasonably can be deduced from the facts, the appellate court has no authority to substitute its decision for that of the trial court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318–319.) After reunification services have been terminated, the focus of the dependency proceedings has shifted from reunification to the child’s need for a stable and permanent home. (In re Casey D. (1999) 70 Cal.App.4th 38, 48.) This shift in focus must be taken into account in determining what is in the best interest of the child. (In re Angel B. (2002) 97 Cal.App.4th 454, 464.)
Highlighting her newfound resolve to bond with P.B., her developing maturity after a few years as a dependent child herself, and her initiative in working full time and undertaking and completing various treatment programs, Mother contends that she established changed circumstances and that increased visits and the provision of further reunification services would be in P.B.’s best interest. And pointing to P.B.’s young age and adaptability, Mother argues that P.B. had many years of childhood ahead of her and, without any substantial harm, P.B. would be able to bond with her parents and make the transition from her caretakers to her parents.
Mother’s perseverance and hard work from December 2006 to the time of the hearing in June 2007 is truly exceptional and commendable. But even if we assume that Mother showed changed circumstances, the juvenile court did not abuse its discretion in determining that Mother failed to show that a modification would be in P.B.’s best interest.
In June 2007, Mother’s ability to provide P.B. a safe and secure violence-free home and to adequately parent a child like P.B., who had some developmental issues, remained uncertain and unproven. Thus, in balancing P.B.’s safe, secure, and loving relationship and placement with her foster parents against Mother’s youth, inexperience, and previous inability to protect P.B. from domestic violence and serious injuries, the juvenile court reasonably could have concluded that increased visitation and reinstatement of Mother’s reunification services were not in P.B.’s best interest.
Also, given the uncertainty of whether Mother would be able to reunify with P.B. in a reasonable amount of time and the risk of harm to P.B. by delaying the permanence and stability of an adoptive home, the juvenile court reasonably could have concluded that a delay of even six months was too great a risk under the circumstances and that a modification would not be in P.B.’s best interest. In other words, the best way to ensure stability and security for P.B. was not to wait for Mother to be able successfully to parent P.B., but to proceed with adoption. The juvenile court did not abuse its discretion in denying Mother’s petition for modification.
B. Section 366.26, subdivision (c)(1)(A)
Section 366.26, subdivision (c)(1)(A) affords an exception to termination of parental rights if “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A).) 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 adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The existence of a beneficial relationship is determined by considering the 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 the parent and the child, and the child’s particular needs. (In re Amber M. (2002) 103 Cal.App.4th 681, 689.) We review the juvenile court’s order under the traditional substantial evidence standard. (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333.)
Even assuming that the parents established regular contact and visitation, we conclude that the juvenile court reasonably could have inferred that P.B.’s well-being would be promoted more by adoption than by the continuation of the parent-child relationship in a tenuous placement.
As to Father, there was no evidence that he received any domestic violence counseling or treatment. Thus, the juvenile court reasonably could have inferred that P.B.’s relationship with Father would expose her to the witnessing of conduct involving domestic violence. As to Mother, the juvenile court reasonably could have inferred that Mother had not been involved in her counseling programs long enough to have developed the skills and experience to protect P.B. from domestic violence and to provide P.B. with stability and permanence. Thus, the parents did not show that P.B.’s well-being would be promoted more by the continuance of the parental relationships than by adoption. Accordingly, substantial evidence supports the juvenile court’s finding that neither parent established the section 366.26, subdivision (c)(1)(A) exception to termination of parental rights.
C. Notice Under ICWA
Notwithstanding that notices to five tribes were not addressed to the proper tribal agents, the tribes nevertheless received actual notice and responded to the notice by sending letters indicating that P.B. was not eligible for enrollment. Thus, any failure to address the notices to the designated tribal agents of five tribes was harmless error. (In re J.T. (2007) 154 Cal.App.4th 986, 994.)
But DCFS concedes, and we agree, that the record shows that the two notices sent to the Eastern Band of Cherokee Indians were not sent to the appropriate designated agent and each notice also contained an error in the address. Accordingly, the order terminating parental rights will be reversed for the purposes of providing proper notice to the Eastern Band of Cherokee Indians and compliance with the ICWA.
DCFS also does not challenge Father’s contention that on remand the juvenile court is required to provide notice to the parents and appoint counsel for them, as well as to comply with section 224.3, subdivision (e)(3) (60-day waiting period after notice and before finding that the ICWA does not apply when no response received from the tribe).
DISPOSITION
The order denying H.R.’s petition for modification is affirmed. The order terminating parental rights is conditionally reversed, and the matter is remanded to the juvenile court for the sole purpose of compliance with the Indian Child Welfare Act, including ordering the Department of Children and Family Services to comply with the notice provisions of the Indian Child Welfare Act as to the Eastern Band of Cherokee Indians and the holding of a hearing, at which the parents are represented by counsel, to determine whether the Indian Child Welfare Act applies. If the Eastern Band of Cherokee Indians has not responded indicating that P.B. is an Indian child, or the response indicates that P.B. is not an Indian child within the meaning of the Indian Child Welfare Act, the order terminating parental rights shall be reinstated. If the Eastern Band of Cherokee Indians had determined that P.B. is an Indian child within the meaning of the Indian Child Welfare Act, the juvenile court shall conduct further proceedings, applying the appropriate provisions of the Indian Child Welfare Act, the Welfare and Institutions Code, and the California Rules of Court.
We concur: VOGEL, J., JACKSON, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.