Opinion
A151742
02-28-2018
In re W.A., a Person Coming Under the Juvenile Court Law. SAN MATEO COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. WILLIAM A., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. 16JD0036)
Presumed father William A. (father) appeals from the juvenile court's termination of parental rights following a Welfare and Institutions Code section 366.26 (.26 hearing). Father contends the court erred by refusing his request to continue the .26 hearing and by declining to apply the beneficial parent-child relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)). Father also claims compliance with the Indian Child Welfare Act (ICWA, 25 U.S.C., § 1900 et seq.) has "not yet been attained."
Undesignated statutory references are to the Welfare and Institutions Code. Mother is not a party to this appeal and is mentioned only where necessary. Father's motion to strike the supplemental clerk's transcript is denied. (Cal. Rules of Court, rules 8.407, 8.410.)
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Detention through Six-Month Review
W.A. (child) was born in July 2013. In June 2016, the San Mateo Human Services Agency (the Agency) filed a petition alleging the child came within section 300, subdivision (b). According to the petition, the child "was found by himself, standing in the drive-thru of a Burger King on a busy highway in South San Francisco." The child was "barefoot, and inadequately clothed for the weather." Father was asleep in a nearby motel room, unaware the child "had left the room." On at least one other occasion, the child had been found alone, wandering the street. Father was homeless, had a lengthy criminal history, and an "extensive history of substance abuse." He also refused to acknowledge "the severity of the situation."
The court detained the child and ordered supervised visitation. Father missed one supervised visit, and was extremely late to other visits. The child referred to father by his first name. Father failed to meet with the social worker, did not return the social worker's telephone calls, and declined to participate in drug tests or substance abuse assessments. The court determined the child came within section 300, subdivision (b), and ordered reunification services.
According to the Agency's status review reports, father was homeless but was "looking for employment." Although father claimed to miss the child, he had "not done much thus far in the way of working on the services ordered by the Court." For example, father failed to complete alcohol and drug treatment counseling assessment, and he had "poor communication" with the social worker, hindering his ability to receive services, and making "reunification with [the] child much more difficult." Father did not accept responsibility for the child's removal, nor realize his failure to comply with court-ordered services diminished the likelihood of regaining custody. The child was "thriving" in the home of his maternal grandmother (grandmother). At the February 2017 six-month review hearing, the court terminated reunification services and set the .26 hearing. The court also determined ICWA did not apply. .26 Hearing
In March 2017, the Agency notified father of the .26 hearing and indicated it recommended terminating parental rights and implementing a plan of adoption. The Agency's June 2017 .26 report recommended terminating parental rights and making adoption the permanent plan. Father's visits with the child were inconsistent—father "failed repeatedly to see the child when arrangements ha[d] been made." Father also declined to participate in reunification services. According to the Agency, discontinuing visits and "terminating parental rights . . . would have no emotional effect on the child['s] well-being."
At the outset of the .26 hearing in June 2017, father's counsel requested a continuance to put "grandmother on the stand." Grandmother would testify "the child is asking for the parents. And that's evidence of a bond between the parents and the child which would go directly to the termination of parental rights issues." Counsel requested grandmother be "granted de facto status." Father's counsel also noted he had received the .26 report one business day before the hearing. In opposition, the Agency's counsel noted parents were served with the .26 hearing notices in March, and that the social worker could "testify if asked that both maternal and paternal grandparents . . . are in support" of the Agency's recommendations. Counsel for the Agency asked the "Court to accept the report into evidence" and to proceed with the .26 hearing. The court denied the request for a continuance, explaining: "It seems to me that moving this matter towards permanence is important here. There was proper notice. . . . [G]randmother's not here asserting anything, either a request for de facto status, or guardianship . . . . She's not. So the report is received in evidence and the request for continuance is denied."
Two social workers testified at the .26 hearing. The first social worker testified he "attempted to reach [father] roughly 19 times" and that it was "[a]lmost impossible" to communicate with father. That social worker acknowledged grandmother wanted to have the child remain with her, and that grandmother and child shared a bond. The second social worker spoke with grandmother in April 2017; grandmother said the child "still knew who his parents were and missed them." That social worker discussed guardianship with grandmother, who wanted what was "best" and "most stable" for the child, i.e. adoption because "it wouldn't jeopardize [the child] having to maybe move in the future." The second social worker testified the Agency recommended terminating parental rights, and explained: "even though [the child] had stated that he missed his parents, the fact that he has been able to do well in his placement . . . have a primary attachment with the current caregivers and that the parents have not visited him, considering whatever level of a relationship or bond [the child] has with his birth parents, I don't think that outweighs his adoptability." The Agency also recommended terminating visitation because parents had "not been able to maintain that relationship on their end. . . . it would affect [the child] in the long run if he has an expectation for visitation and they are unable to show up."
Father testified the child calls him "Daddy" and expresses love and affection for him. Between February and June 2017, father visited the child about five times; the most recent visit with the child was one month before the .26 hearing. The visits went well. Father loves and misses the child, and feels the child is bonded to him. According to father, it would detrimental for the child if visits were terminated. Counsel for father urged the court to apply the beneficial relationship exception to termination of parental rights.
The court declined, explaining: "I don't find there is a parent benefit sufficient to override the thrust of the rest of the evidence. I don't find a bond sufficient to make a contrary finding. . . . [The case has] been here for 11 and a half months. And other than visiting, nothing has been accomplished." In addition, the court concluded it was "entirely in [the child's] interest to proceed with the adoption process" and that it was not a "close case" with respect to the beneficial relationship exception. The court found clear and convincing evidence the child was adoptable and terminated parental rights, but allowed visitation to continue.
DISCUSSION
I.
No Abuse of Discretion in Denying Father's Request for a Continuance
Father contends the court abused its discretion by failing to continue the .26 hearing. A juvenile court may continue a dependency hearing at a parent's request for good cause shown. (§ 352, subd. (a).) No continuance, however, "shall be granted that is contrary to the interest of the minor," and before granting a continuance, the court must "give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements." (Ibid.) Continuances are disfavored in juvenile dependency proceedings. (In re Karla C. (2003) 113 Cal.App.4th 166, 179.) Section 352 "is an emergency escape valve in the rare case where the court determines that it is in child's best interest to continue" the .26 hearing. (16 Witkin, Summary of Cal. Law (11th ed. 2017) Juvenile, § 262, p. 388.) The "denial of a request for a continuance will not be overturned on appeal absent an abuse of discretion." (In re Elijah V. (2005) 127 Cal.App.4th 576, 585.)
According to father, a continuance was necessary to allow grandmother to testify. We disagree for several reasons. First, father received notice of the .26 hearing in March 2017; he had ample time to arrange for grandmother's presence in court had he wanted her to testify at the .26 hearing. Second, grandmother's testimony was not—as father argues—"crucial" on the issues of visitation and the beneficial relationship exception. Father was in the best position to testify regarding his visits, and bond with, the child, and he testified at the .26 hearing. Additionally, both social workers described their conversations with grandmother, diminishing the importance of any testimony grandmother would have offered. Finally, a continuance was not in the child's best interest, because father had made no progress whatsoever in remediating the conditions leading to the dependency.
Father's reliance on In re John M. (2006) 141 Cal.App.4th 1564 is unavailing. There, the father sought a continuance of the dispositional hearing scheduled only two months after the dependency was initiated, to permit completion of a home evaluation. (Id. at p. 1571.) Here, the dependency had been pending for almost a year, and the lower court was understandably focused on placing the child in a stable, permanent situation as soon as possible. Nor are we persuaded that the Agency's purported late service of the .26 report provided good cause to continue the hearing. As noted above, father was well aware of the .26 hearing, and of the Agency's recommendation to terminate parental rights; he does not persuasively argue the .26 report contained new information. Father's claim that the court's refusal to continue the .26 hearing violated his due process rights fares no better.
We conclude the court did not abuse its discretion in denying father's request to continue the .26 hearing. (In re Z.S. (2015) 235 Cal.App.4th 754, 773 [no abuse of discretion in refusing to continue .26 hearing]; In re Elijah V., supra, 127 Cal.App.4th at p. 585 [no error in denying continuance where the father did not demonstrate good cause].)
II.
The Beneficial Relationship Exception Does Not Apply
Next, father argues the court erred by declining to apply the beneficial parent-child relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)). To establish the beneficial relationship exception, father must demonstrate he "maintained regular visitation and contact" with the child and that the child "would benefit from continuing the relationship" with him. (§ 366.26, subd. (c)(1)(B)(i); In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) The beneficial relationship exception "may be the most unsuccessfully litigated issue in the history of law. . . . [I]t is almost always a loser." (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255, fn. 5, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) "We review a juvenile court's order on the beneficial-relationship exception for substantial evidence" but would reach the same result applying the abuse of discretion standard of review. (In re G.B. (2014) 227 Cal.App.4th 1147, 1166 & fn. 7.)
Even if we assume for the sake of argument father's visitation was regular, he cannot establish severing the parent-child relationship would deprive the child of a substantial, positive emotional attachment. The juvenile court determined father did not share a bond with the child "sufficient to override the . . . rest of the evidence," that it was in the child's best interest to "proceed with the adoption process," and that it was not a "close case" with respect to the beneficial relationship exception. Substantial evidence supports these conclusions. At the .26 hearing, the social worker testified the child had "a primary attachment with the current caregivers" and that "whatever level of a relationship" the child had with father did not outweigh the child's adoptability. The social worker's testimony "provided substantial evidence to support the court's conclusion that no beneficial parent-child relationship existed such that termination of parental rights would be detrimental to [the child]." (In re Casey D. (1999) 70 Cal.App.4th 38, 53.) Father's reliance on his own testimony at the .26 hearing does not alter our conclusion. We decline to "reweigh the evidence" or "to substitute [father's] judgment for that of the trial court" (ibid) and we reject his claim that the "undisputed evidence" establishes the beneficial relationship exception.
That the court encouraged the child's caregivers to allow father to visit does not—as father seems to contend—establish the second prong of the beneficial relationship exception to termination of parental rights. Viewing the evidence in a light most favorable to the judgment, we conclude the court did not err by declining to apply the beneficial relationship exception. (In re G.B., supra, 227 Cal.App.4th at p. 1166; In re C.F. (2011) 193 Cal.App.4th 549, 555-556 [pleasant visits between the mother and the children, and sadness at the end of some visits, did not establish beneficial relationship exception].)
III.
Father's ICWA Claim Fails
Father's final contention is the judgment must be reversed because ICWA compliance "has not yet been attained." We review the juvenile court's ICWA findings under the substantial evidence standard (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467) and reject father's ICWA claim.
Father declared Cherokee ancestry through "great great GMom." In a July 2016 notice, the Agency reported: "[f]ather thinks he has Cherokee ancestry. Paternal grandmother does not know if Cherokee but great-great-great-grandmother was from a tribe in Kansas." At the six-month review hearing in February 2017, counsel for the Agency stated she notified "three Cherokee tribes. We heard back from one that it did not apply. And we did not hear back from the other two within the 60-day period." Counsel for the Agency showed mother's attorney a certified return receipt and counsel for mother submitted on the ICWA issue. Father's counsel did not respond, and the court determined ICWA did not apply.
According to father, the court's ICWA finding is "unsubstantiated" because the Agency failed to provide notice to the "federally registered Cherokee tribes, the Secretary of the Interior and the Bureau of Indian Affairs" and because the Agency did not file "certified return receipts showing receipt of the notices." We disagree. The record, as reflected in the supplemental clerk's transcript, demonstrates otherwise. It establishes the Agency mailed ICWA notices to the three federally-recognized Cherokee tribes. Certified mail return receipts show the tribes received the ICWA notices. The Agency received no correspondence from any tribe showing that the child was a member of, or eligible to be a member of, the relevant tribes. On this record, father has failed to establish the Agency failed to satisfy the ICWA notice provisions.
Relying on In re Elizabeth M. (2018) 19 Cal.App.5th 768, father contends social services agencies must "affirmatively prove compliance" with ICWA. We have no quarrel with this general principle, but conclude Elizabeth M. does not assist father. In Elizabeth M., the parents indicated they had possible Indian ancestry through the "Redtail" tribe. (Id. at p. 777.) The social services agency did not interview the mother's relatives concerning possible Indian ancestry, nor comply with a court order to interview the father and conduct an " 'ICWA investigation addressing [his] Indian ancestry.' " (Id. at p. 779.) Instead, the social services agency sent "deficient" ICWA notices incorrectly stating the mother did not have Indian ancestry. (Id. at p. 788.) Because the appellate record did not contain "any supplemental report regarding [an] investigation" of the parents' "possible Indian ancestry," the Elizabeth M. court determined the social services agency failed to comply with ICWA. (Id. at pp. 779, 788.) Elizabeth M. has no application here because father's opening and reply briefs do not argue the Agency failed to interview his family members. And unlike Elizabeth M., the appellate record contains sufficient information to evaluate the Agency's ICWA compliance.
Father also complains the Agency failed to send ICWA notices to unspecified "federally registered Kansas tribes," apparently because the child's paternal grandmother stated the child's "great-great-great-grandmother" was from a tribe in Kansas. We are not persuaded for two reasons. First, father cites no authority suggesting ICWA notice must include information about relatives four generations removed from the child. (See In re J.M. (2012) 206 Cal.App.4th 375, 381 [ICWA notice normally not required to include information about ancestors more remote than child's great-grandparents]; In re Shane G. (2008) 166 Cal.App.4th 1532, 1539 [although maternal grandmother indicated child's great-great-great-grandmother was a Comanche princess, notice was not required]; cf. In re Breanna S. (2017) 8 Cal.App.5th 636, 655 [notice insufficient where it excluded information on the children's maternal great-grandmother and great-grandfather].) Second, father does not identify the "four federally registered Kansas tribes." (In re O.K. (2003) 106 Cal.App.4th 152, 158 [notice not required based on paternal grandmother's statement that child's father might have Indian ancestry without identifying particular tribe or nation].) Under the circumstances, we reject father's ICWA claim.
DISPOSITION
The order terminating father's parental rights is affirmed.
/s/_________
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Bruiniers, J.