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In re Alexis L.

California Court of Appeals, Second District, Sixth Division
Jul 21, 2008
No. B202565 (Cal. Ct. App. Jul. 21, 2008)

Opinion

NOT TO BE PUBLISHED

Superior Court County of Ventura Nos. J063760, J063761 Tari L. Cody, Judge

Anne E. Fragasso, under appointment by the Court of Appeal, for Appellant Patricia L.

Janice A. Jenkins, under appointment by the Court of Appeal, for Appellant Vincent L.

Noel A. Klebaum, County Counsel, Linda L. Stevenson, Assistant County Counsel, for Respondent.


PERREN, J.

Patricia L. and Vincent L. appeal an order of the juvenile court terminating parental rights and finding their children adoptable. (Welf. & Inst. Code, § 366.26.) They contend the juvenile court erred because the beneficial parent relationship exception (§ 366.26, subd. (c)(1)(a)) to adoption applies. Patricia also argues that the Indian Child Welfare Act (ICWA) was violated. We affirm.

All statutory references are to the Welfare and Institutions Code unless otherwise stated.

FACTS AND PROCEDURAL HISTORY

Appellants Patricia L. (mother) and Vincent L. (father) are the parents of Alexis L., born in May 2000, and Vincent L., Jr., born in September 2002. On January 6, 2003, respondent Ventura County Human Services Agency (HSA) received a referral that father, with whom the children were living, abused drugs and alcohol. Mother was in jail for using drugs.

HSA determined that the children's safety was at risk and, on January 15, 2003, filed juvenile dependency petitions for the children alleging failure to protect, no provision for support, and child abuse. (§ 300, subds. (b), (g), (j).) The petitions further alleged that mother and father had a history of drug abuse that made them unable or unwilling to provide consistent adequate care for the children. In addition, mother had failed to reunify with three children by a prior marriage.

A detention hearing was held the following day, and the court ordered both children to remain with father and services be provided to both parents. On February 13, 2003, at the uncontested jurisdiction and disposition hearing, the court sustained the petitions and ordered the children to remain with father. The court ordered family maintenance services for father and reunification services for mother.

In April 2003, mother was released from jail and moved in with father. On May 29, 2003, at the contested jurisdiction and disposition hearing, the court sustained the supplemental and subsequent petitions and ordered reunification services for both parents.

On June 30, 2003, mother was arrested for possession of a controlled substance and violation of probation. A warrant was issued on July 5, 2003, after she failed to report to the probation department.

At the six-month review hearing on October 14, 2003, the court terminated mother's services as her whereabouts were unknown and she had not complied with her case plan.

In early January 2004, mother contacted the social worker and informed her that she was back in custody and would be sent to Chowchilla for two months.

The status review report for the January 31, 2005, hearing stated that mother regularly attended visits with the children and AA/NA meetings but did not seek to reunify with the children. The report stated the children continued to benefit from foster care. At the contested review hearing on March 10, 2005, the court found that the permanent plan for long-term foster care remained appropriate and ordered supervised visitation with mother.

On July 18, 2005, a section 388 modification petition was filed by mother to increase visitation and request additional reunification services. In its addendum report, HSA noted mother's nine months of sobriety and that a strong bond existed between mother and the children. At the August 15, 2005, hearing on the modification petition, the court ordered reunification services for mother for an additional six months.

At the January 30, 2006, status review hearing, the court gave physical custody of the children to mother and ordered family maintenance services. The children were reunited with mother on February 2, 2006.

The July 27, 2006, status review report stated that on May 12, and May 22, 2006, mother tested positive for morphine. The report noted that the results of the first test indicated use of a significant amount of morphine in a very brief period of time. The results of the second test indicated a hard-core morphine abuser with an extremely high tolerance for the drug and "abuse beyond wildest imaginings."

At the review hearing on July 17, 2006, the court found that mother had not complied with her case plan because she failed two drug tests, was not in counseling and did not have full-time employment. The court continued her services and set a family maintenance review hearing for January 2, 2007.

On October 27, 2006, mother was arrested for petty theft. HSA filed supplemental petitions on November 2, 2006, alleging that when mother was incarcerated, she left the children with someone who could not provide them with adequate care, thereby placing the children at risk of physical and emotional abuse. At the November 3, 2006, detention hearing, the court ordered the children to be placed in a foster home.

At the section 366.26 hearing on September 19, 2007, counsel for mother asked the court to order long-term foster care for both children, so that "when mother gets out [of custody and] she gets a place to stay . . . she can take these children for some visits and just see how everything plays out." The court denied the request, noting that the parents had "chance after chance after chance, and it just didn't work." The court terminated parental rights finding that the children needed permanence, they were adoptable, and no exceptions applied.

ICWA Notice

The initial dependency petition stated that the children might have Indian heritage through the Chumash, Apache and Cherokee tribes. On May 16, 2003, HSA sent inquiries with proof of mailing to the Bureau of Indian Affairs (BIA) and to 13 Indian tribes.

The inquiries contained the following information: mother's name and two aliases, her date and place of birth and "unknown" tribal affiliation; maternal grandmother's name, date of birth and tribal affiliation as Cherokee or Apache; maternal grandfather's name, partial date of birth (no year) and tribal affiliation as Cherokee or Apache; father's name, date of birth, place of birth and tribal affiliation as Chumash, Santa Ynez Band; paternal grandmother's name, date of birth, place of birth, tribal affiliation as Chumash, Santa Ynez Band; and paternal grandfather's name.

At the section 366.26 hearing, father filled out a JV-130 form indicating that "I have no Indian ancestry as far as I know." Father's counsel stated: "My client can be put under oath and he would testify that he is not aware of, has never heard of, never claimed any Indian heritage through his paternal or maternal side of his family." The court inquired of mother who stated that she had no Indian heritage. The court then found that the ICWA did not apply.

Mother and father separately appealed the judgment.

DISCUSSION

Termination of Parental Rights

Father's appellate brief does not argue that the court improperly terminated his parental rights. He argues that mother's rights should not have been terminated.

The court reviews the findings of the juvenile court under the substantial evidence test. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) This standard does not permit the court to reweigh the evidence or substitute our judgment for that of the juvenile court. (Rodney F. v. Karen M. (1998) 61 Cal.App.4th 233, 241.)

The purpose of the section 366.26 hearing is to "provide stable, permanent homes for [dependent children]." (§ 366.26, subd. (b).) Adoption is the preferred permanent plan for dependent children. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1416.) "'Only if adoption is not possible, or if there are countervailing circumstances, or if it is not in the child's best interests are other, less permanent plans, such as guardianship or long-term foster care considered.'" (In re Autumn H. (1994) 27 Cal.App.4th 567, 574.) "When the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent/child relationship, the court should order adoption." (In re Zachary G. (1999) 77 Cal.App.4th 799, 811.)

This rule is subject to five statutory exceptions. Mother relies on the "parental benefit" (sometimes call the "beneficial relationship") exception in section 366.26, subdivision (c)(1)(A). The section provides that parental rights shall not be terminated if "[t]he parents . . . have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship." (Ibid.) The parent bears the burden of proving the exception. Only in the "extraordinary case" can a parent establish the exception because the permanent plan hearing occurs "after the court has repeatedly found the parent unable to meet the child's needs . . . ." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)

To meet her burden of proof, mother must show more than frequent and loving contact or pleasant visits. (In re Derek W., supra, 73 Cal.App.4th at p. 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." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Mother must show she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) The juvenile court may reject a parent's assertion of the exception simply by finding that the relationship maintained during visitation does not benefit the child significantly enough to outweigh the strong preference for adoption. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)

Mother argues the judgment terminating parental rights was erroneous because "[a] clear bond exist[s] between [her] and her children." She asserts that the test of section 366.26, subdivision (c)(1)(A)—whether mother maintained regular visitation and contact with the children and whether the children would benefit from the relationship—have been met in this case. The record shows that mother visited her children regularly, and acted as a parent during the nine months she had custody. The record also shows that the children expressed happiness to see their mother and expressed a desire to live with her. A psychologist opined that the children "would likely experience distress" if their relationship with their parents was severed.

However, due to mother's substance abuse and periods of incarceration, she lived with her children only briefly—before detention by HSA, when Alexis was less than two years old and Vincent was less than six months old, and again for the nine-month period in 2006 when she purportedly achieved sobriety. Other than those brief periods, the children lived either with father or with foster families. Although mother did maintain consistent visitation, those visits did not rise to the level of a parental relationship. Even though the juvenile court gave mother several opportunities at rehabilitation and extended family services, mother failed to maintain sobriety, failed to comply with her case plan and failed to find full-time employment.

Mother relies on In re Amber M. (2002) 103 Cal.App.4th 681 to support her argument that the beneficial relationship exception applies. That case is distinguishable. In Amber M., the mother spent a much longer time parenting her child, the child spent much less time in foster care, the mother made serious efforts to control her drug abuse and stayed sober for lengthy periods, and the order terminating parental rights occurred only two years after the dependency was initiated. In contrast, Alexis and Vincent spent most of their lives in foster care, the record does not show that mother achieved sobriety for any substantial period of time, and, by the time the court terminated parental rights, the dependency proceeding had been pending for more than four years.

A parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent, or that the parental relationship may be beneficial to the child only to some degree. (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) The parent must also show that continuation of the parent-child relationship will promote "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 re Autumn H., supra, 27 Cal.App.4th at p. 575.)

Substantial evidence supports the juvenile court's finding that the children would not be greatly harmed if the bonds they and mother shared were severed. The court acted properly by terminating mother's parental rights because she did not establish that her relationship with the children satisfies their "need for a parent." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)

Indian Child Welfare Act

The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) "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.) The juvenile court and social services agencies have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child.

Only a hint or suggestion of Indian ancestry is required to trigger the ICWA notice requirements. (See In re Miguel E. (2004) 120 Cal.App.4th 521, 549 ["'The determination of a child's Indian status is up to the tribe; therefore, the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement'"].) As the court explained in Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 257, "We agree that '[t]o maintain stability in placements of children in juvenile proceedings, it is preferable to err on the side of giving notice and examining thoroughly whether the juvenile is an Indian child. [Citation.]'" Once the ICWA notice provisions are triggered, notice must be sent to the Indian child's tribe and, if the tribe is unknown, to the BIA. (25 U.S.C. § 1912(a).)

Mother complains that the ICWA notice requirements were not met. She argues that the information provided the tribes was "scanty and incomplete." We disagree. The information sent to the 14 tribes and the BIA was sufficient to make a determination whether the children were Indian children. All the tribes responded in the negative. Moreover, both mother and father made unequivocal statements to the court that they did not have Indian heritage. Nothing more was required. (See In re N.M. (2008) 161 Cal.App.4th 253 [even though mother claimed Indian heritage, notice to numerous tribes and their negative responses satisfied ICWA notice requirements]; In re H.B. (2008) 161 Cal.App.4th 115 [technical noncompliance with ICWA notice procedures excused where parents denied Indian ancestry]; In re N.E. (2008) 160 Cal.App.4th 766 [where parents do not claim Indian ancestry, failure to comply with ICWA notice procedures was harmless error].)

The order of the juvenile court is affirmed.

We concur: YEGAN, Acting P.J., COFFEE, J.


Summaries of

In re Alexis L.

California Court of Appeals, Second District, Sixth Division
Jul 21, 2008
No. B202565 (Cal. Ct. App. Jul. 21, 2008)
Case details for

In re Alexis L.

Case Details

Full title:In re ALEXIS L., et al., Persons Coming Under the Juvenile Court Law…

Court:California Court of Appeals, Second District, Sixth Division

Date published: Jul 21, 2008

Citations

No. B202565 (Cal. Ct. App. Jul. 21, 2008)