Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super. Ct. No. JUV095430, Kenneth Fernandez, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
Konrad Lee, under appointment by the Court of Appeal, for Minor.
MILLER, J.
OPINION
Belinda B. (mother) challenges the juvenile court’s order terminating her parental rights to her daughter, Shyanne B., under Welfare and Institutions Code section 366.26. She first contends the court violated the Indian Child Welfare Act (ICWA) and California law in failing to satisfy its duty of inquiry as to whether Shyanne’s father, Ronald B. (father), has Indian ancestry. She also contends the court erred in refusing to apply the beneficial relationship exception set forth in subdivision (c)(1)(A) of section 366.26. Finding no merit to either contention, we affirm.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Ronald B. is not a party to this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Shyanne (born July 1995) was detained by the Department of Public Social Services (DPSS) in February 2006 after a social worker investigated a report that she was living in deplorable conditions; the home smelled of urine and feces, and waste was observed on furniture throughout the house. This was the third time that Shyanne had been removed from mother’s custody. In February 1999 she was removed amidst allegations that her parents regularly drank to excess, after which they engaged in domestic violence. After months of reunification services, mother’s condition improved and Shyanne was returned to her care, and in July 2000 dependency jurisdiction was terminated. Shyanne was again removed from mother’s custody in May 2002 after a staff member at her school discovered she was infested with head lice. When mother came to the school to pick up Shyanne, she was intoxicated and was thereafter arrested. Again, mother took advantage of reunification services and regained custody of Shyanne in December 2003 under a plan of family maintenance. Dependency jurisdiction was terminated the following June.
Shortly after Shyanne’s most recent detention, another dependency petition was filed, this time alleging, under section 300, subdivisions (b) and (g), that the condition of the home placed Shyanne at risk of suffering serious physical harm; both parents have a history of alcohol abuse, thereby limiting their ability to provide their daughter with regular care; mother had been provided with court ordered reunification services on two prior occasions due to substantiated allegations of general neglect; and that the whereabouts of father were then unknown.
On March 30, 2006, the juvenile court declared Shyanne a dependent child and, pursuant to section 361.5, subdivision (b)(13), ordered that mother not be provided with reunification services. Shortly thereafter, a notice of intent to file a writ petition was filed on mother’s behalf, but was later withdrawn.
A permanency hearing under section 366.26 was held in January 2007; mother was in attendance. By then, Shyanne was 11 years old and was vocal as to her desire to be adopted by her paternal uncle; she had been placed with her uncle and his wife in June 2006, and they were eager to adopt her.
On the day of the hearing, a petition was filed under section 388 on mother’s behalf, requesting that reunification services be reinstated. Mother alleged she had completed a dual/diagnosis treatment program, as well as other classes, and was given a discharge plan consisting of continued medication management and attendance at weekly AA/NA meetings. The court ordered that the request be heard the same day, at the permanency hearing.
Of course, because reunification services had never been provided, mother’s request that services be reinstated was inaccurate.
At the hearing, counsel stipulated that Shyanne would testify to the following: she does not want to be back in mother’s life, living with her uncle is “perfect,” on a scale of one to ten, living with and being adopted by her uncle is a “a ten,” she understands adoption to mean that her uncle would become her father, she does not want any face-to-face visits with mother, and she no longer wants mother to interrupt her life, although she would be open to receiving letters and phone calls.
During closing argument, counsel for mother indicated that mother opposes the termination of her parental rights. He acknowledged “[i]t’s understandable that the child is 11 years old and would like to not have, perhaps, some of the troubles that she had because of mother’s past. However, this is an 11-year-old child.”
After argument was concluded, the court denied the section 388 petition, finding that mother had failed to demonstrate that the relief requested was in Shyanne’s best interests. The court then ordered the termination of parental rights, finding adoption to be in Shyanne’s best interests and that none of the exceptions set forth in section 366.26, subdivision (c)(1) applied.
DISCUSSION
A. Mother has failed to demonstrate error under ICWA.
ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes and families by establishing certain minimum federal standards in juvenile dependency cases. (In re Kahlen W. (1991) 233 Cal. App.3d 1414, 1421; In re Jullian B. (2000) 82 Cal. App.4th 1337, 1344.) “The ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource.” (In re Desiree F. (2000) 83 Cal. App.4th 460, 469.)
Neither ICWA itself nor controlling federal regulations expressly impose any duty of inquiry as to Indian ancestry. (See 25 C.F.R. § 23.11(a) (1994).) However, ICWA provides that states may provide “a higher standard of protection to the rights of the parent . . . of an Indian child than the rights provided under [ICWA].” (25 U.S.C.A. § 1921.) Consistent with this provision, California law imposes on county welfare departments and the juvenile court “an affirmative and continuing duty to inquire whether a child for whom a petition under section 300 . . . is to be, or has been, filed is or may be an Indian child” for purposes of ICWA. (§ 224.3, sub d. (a); Cal. Rules of Court, rule 5.664(d).) Specifically, “[i]n dependency cases, the social worker must ask the child, if the child is old enough, and the parents or legal guardians whether the child may be an Indian child or may have Indian ancestors.” (Rule 5.664(d)(2).)
All further rule references will be to the California Rules of Court unless otherwise indicated.
Here, the juvenile court found that ICWA did not apply. We review factual findings in the light most favorable to the trial court’s order. (In re Rebecca R. (2006) 143 Cal. App.4th 1426, 1429, 1430.)
Mother contends DPSS failed to comply with its “‘affirmative and continuing duty to inquire’” as to father’s Indian ancestry for purposes of ICWA and that the matter must be remanded so that DPSS may ask Shyanne’s paternal uncle about his family’s ancestry. In response, DPSS contends the record demonstrates that after contact with father, with the paternal grandmother, and with father’s partner, DPSS reported that ICWA did not apply. Thus, citing In re S.B. (2005) 130 Cal. App.4th 1148, 1161, it maintains “it is ‘fairly inferable that the social worker did make the necessary inquiry’ in the earlier two proceedings and when the father was involved in the proceedings.” DPSS’s position is persuasive.
We recognize, of course, that although mother herself claims no Indian ancestry, she has standing to assert noncompliance with the provisions of the ICWA. (In re Daniel M. (2003) 110 Cal. App.4th 703, 707-708.)
The record reflects that mother denied having any Indian ancestry and also told the social worker that “as far as she knows, [Shyanne’s father] did not have any Indian ancestry either.” She completed a JV-130 form on February 21, 2006, indicating that as far as she knew, she had no Indian ancestry. The record does not contain a JV-130 form as to father as his whereabouts were unknown following Shyanne’s detention in February 2006.
Mother acknowledges that DPSS’s conclusion that ICWA “did not apply” preceded Shyanne’s placement with her paternal uncle, but asserts “that did not end [DPSS’s] ‘affirmative and continuing duty to inquire’ given [mother’s] second-hand information about the father’s Indian ancestry.” However, her position ignores entirely the fact that, although father’s whereabouts were unknown and remained so after Shyanne was taken into custody in early 2006, he was appreciably more involved in the previous proceedings. Indeed, he maintained contact with the social worker while incarcerated and also exercised visitation with Shyanne. The record is replete with references to communications between father and the social worker dating back to 1999. Furthermore, the social worker also interviewed the paternal grandmother, and we may reasonably infer that she provided no data to demonstrate that father had Indian ancestry. At a hearing in June 1999, at which father appeared, the court found that ICWA did not apply. The social worker again met with father in 2002, after his release from prison.
Thus, in view of the continuing nature of the dependency proceedings, we do not read section 224.3, subdivision (a) and rule 5.664(d), insofar as they provide for a “continuing duty to inquire,” as mandating the social worker to reinvent the wheel each time something else is filed in the case. In other words, that father’s whereabouts were again unknown after Shyanne was detained a third time does not mean that DPSS’s duty to inquire, which presumably already had been satisfied, was somehow reinstated. To the contrary, we may infer that DPSS received a satisfactory answer to the ICWA question during the earlier proceedings and that no further inquiry was needed.
Furthermore, simply because the paternal uncle was largely in the picture in the recent proceeding does not mean that DPSS had a duty to ask him if there was any Indian heritage which father may have failed to mention. And mother provides no authority to suggest otherwise.
Finally, because we find there was no error, we do not reach the issue of prejudice. (Cf. In re S.B., supra, 130 Cal. App.4th at p. 1162.)
B. Substantial evidence supports the juvenile court’s finding that the beneficial relationship exception was inapplicable.
Section 366.26, subdivision (c)(1), provides for the termination of parental rights if family reunification services have been terminated and the juvenile court finds by clear and convincing evidence that the child is likely to be adopted. Once reunification services have been terminated, “‘[f]amily preservation ceases to be of overriding concern [and] the focus shifts from the parent’s interest in reunification to the child’s interest in permanency and stability. [Citation.]’ [Citation.]” (In re Richard C. (1998) 68 Cal. App.4th 1191, 1195.) “Adoption, where possible, is the permanent plan preferred by the Legislature.” (In re Autumn H. (1994) 27 Cal. App.4th 567, 573.)
Although the statutory preference is in favor of adoption, section 366.26 allows certain exceptions that may preclude termination of parental rights, if the juvenile court finds “a compelling reason for determining that termination would be detrimental to the child . . . .” (§ 366.26, sub d. (c)(1).) The exception relevant here provides as follows: “The parents or [guardians] have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, sub d. (c)(1)(A).) It is the parent’s burden to show that these exceptional circumstances apply. (In re Derek W. (1999) 73 Cal. App.4th 823, 826.)
We review the juvenile court’s ruling on whether an exception applies to termination of parental rights pursuant to section 366.26 for substantial evidence. (In re Cliffton B. (2000) 81 Cal. App.4th 415, 424-425; In re Autumn H., supra, 27 Cal. App.4th at p. 576.) Under this standard, an appellate court must affirm the juvenile court’s order if there is evidence that is “‘reasonable, credible, and of solid value’” to support the order (In re Christina A. (1989) 213 Cal. App.3d 1073, 1080), and the evidence must be considered “in the light most favorable to the prevailing party, 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.)
However, some courts have applied the abuse of discretion standard. (See, e.g., In re Jasmine D. (2000) 78 Cal. App.4th 1339, 1351 [applying parental benefit exception is a “quintessentially discretionary determination.”].) The standards are not really all that different, however, and in either event we affirm. “The practical differences between the two standards of review are not significant. ‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only “‘if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.’. . .” [Citations.]” (Ibid.)
For the exception to apply, the parent must have maintained regular visitation with the child, and the juvenile court must determine that the parent/child 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 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.” (In re Autumn H., supra, 27 Cal. App.4th at p. 575.) To overcome the benefits associated with a stable, adoptive family, the parent seeking to invoke the subdivision (c)(1)(A) exception must prove that severing the relationship will cause not merely some harm, but substantial harm to the child. (In re Brittany C. (1999) 76 Cal. App.4th 847, 853.) Similarly, “the exception does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.” (In re Jasmine D., supra, 78 Cal. App.4th at p. 1348; italics added.)
To meet the burden of proof for the section 366.26, subdivision (c)(1)(A) exception, the parent must show more than frequent and loving contact or pleasant visits. (In re Derek W. (1999) 73 Cal. App.4th 823, 827.) “Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.]” (In re Autumn H., supra, 27 Cal. App.4th at p. 575.) The parent must show that he or she occupies a parental role in the child’s life, resulting in a “significant, positive, emotional attachment from child to parent.” (Ibid.; In re L.Y.L. (2002) 101 Cal. App.4th 942, 953-954.) Moreover, even if a child loves his or her parents, the court may nonetheless terminate parental rights if doing so is in the child’s best interests. (§ 366.26, sub d. (h).)
Acknowledging that “[i]nitially, it might appear that [she] did not meet her burden at the section 366.26 hearing,” and that Shyanne wanted to be adopted by her paternal uncle and his wife, mother insists that the beneficial relationship exception does apply. She points to the social worker’s January 2007 report discussing the effect on Shyanne of two recent visits with mother. She notes that the social worker reported that Shyanne “was visibly upset and confused” after those visits, and “ha[d] been referred to counseling to address her confusion and separation manifestations.” Thus, she contends Shyanne was “‘confused’” about their relationship and that “what she said and how she felt were two different things.” On the record before us, we cannot agree.
Between June and November 2006 there were no visits between mother and Shyanne. For part of that time, mother was in a psychiatric treatment facility. Shyanne was given information as to mother’s whereabouts, and the two wrote and called each other. Finally, on November 3, mother requested a visit, and one was scheduled for November 16.
According to the social worker, the visit had a negative effect upon Shyanne: During the visit, mother spent time whispering to Shyanne and refused the monitor’s requests to discontinue her attempts to persuade Shyanne that she should choose to live with her maternal aunt rather than her paternal uncle. Although Shyanne seemed happy at the beginning of the visit, she “appeared visibly uncomfortable during the visit when her mother whispered things to her and then when she questioned her repeatedly about why she wants to be adopted by her Uncle and why she does not want to live with or visit her Aunt in Texas and why doesn’t she call her regularly anymore.” When questioned by the social worker following the visit, mother did not think she did anything wrong.
On December 19, Shyanne told the social worker she had not called mother “because she is trying to learn to live without her.” The social worker asked her what she meant and she said that “she is having a difficult time seeing her mother and knowing that she can not live with her right now or maybe never because she is sick. . . .”
At their next visit on December 28, Shyanne did not greet mother and seemed rather quiet. According to the monitor, mother “did not implement a nurturing and loving behavior with her daughter.” Rather, she was manipulative and refused to follow the monitor’s redirection to not discuss the case. At the end of the visit, Shyanne, apparently eager to leave, walked towards the door without saying good-bye to mother. Later, Shyanne told the social worker “her mother makes her feel bad and that although she loves her she wants to ‘forget about her.’”
In her January 2007 report, the social worker described Shyanne as “very smart and mature” and “able to express herself and make decisions.” She “is aware of how she came to be a dependent of Riverside County and has stated that she wants her mother to ‘get better’ and that she loves her but does not feel it is a good time to live with her.”
Mother is correct in her assertion the social worker further reported that Shyanne was “visibly upset and confused after her visits with her mother,” and that she “ha[d] been referred to counseling to address her confusion and separation manifestations.” However, we agree with DPSS’s assessment that “the confusion was not regarding the parent/child relationship as much as it was the minor’s inability to cope with [mother’s] behaviors.” As stated in the report, Shyanne “misses her mother, but she does not express that she wants to go to live with her mother. Shyanne does not currently demonstrate any significant emotional or mental impairments as a result of her removal from the mother’s care. However, she has been referred to counseling services to address the adjustment to foster care placement and any residual feelings of abandonment and instability she may experience.” We disagree with mother’s interpretation of this report. What the evidence demonstrates is that Shyanne may well have wanted a relationship with mother, but mother’s actions over the years—since Shyanne was three years old—had rendered it impossible. As a result, Shyanne, a very bright and mature 11-year-old girl, had decided she would have no more of it. She clearly wanted to be adopted by her uncle who, along with his wife, have demonstrated their commitment to providing her with a permanent, loving and stable home environment. Furthermore, they have indicated a willingness to initiate and maintain contact with the biological parents under appropriate arrangements.
In any event, even if mother could satisfy the first prong of the statute, there clearly is no evidence that maintaining the parent-child relationship outweighs the benefit to Shyanne of adoption into a permanent home. That mother and Shyanne “hugged and cried at the end of [a] visit” is not, without more, evidence of a bonded relationship. Significantly, that visit took place in May 2006, before Shyanne was ultimately placed with her uncle, at which time she complained to mother that she was not happy in her foster home and wanted to be moved.
Accordingly, the juvenile court did not err in finding that Shyanne’s need for permanency outweighed any benefit which could be derived from maintaining her biological connection with mother, and in concluding that the subdivision (c)(1)(A) exception did not preclude termination of parental rights. There simply is no evidence that the relationship was one which warranted a continuation of the parent-child relationship at the expense of a chance for love, nurturing, and emotional security in a forever home.
DISPOSITION
The order terminating parental rights is affirmed.
We concur: HOLLENHORST Acting P.J., GAUT, J.