Opinion
2d Juv. No. B205555
9-19-2008
In re ANGEL S., a Person Coming Under the Juvenile Court Law. VENTURA COUNTY PUBLIC SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. JESSICA M., Defendant and Appellant.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant Jessica M. Noel A. Klebaum, County Counsel, Joseph J. Randazzo, Assistant County Counsel, for Plaintiff and Respondent.
Not to be Published
Jessica M. (mother) appeals from the order terminating her parental rights to her son, Angel S. (Welf. & Inst. Code, § 366.26.) Mother contends that there was insufficient evidence to support the trial courts finding that the child was adoptable, that the assessment report of respondent Ventura County Human Services Agency (HSA) was statutorily inadequate and that the parental beneficial relationship exception of section 366.26, subdivision (c)(1)(B)(i) bars termination of her parental rights. The parties agree that the order terminating parental rights did not comply with the notice provisions of the Indian Child Welfare Act ( ICWA). (25 U.S.C. § 1901 et seq.) We reverse and remand for compliance with the ICWA, and reject mothers remaining contentions.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
On May 30, 2006, the child was detained and placed in protective custody. The mother had been arrested for being under the influence of methamphetamine and had struck the child in the ear. The childs home was dangerous and unsanitary. Methamphetamine was within the childs reach. The mother had left the child without adequate supervision on prior occasions. The father was serving a sentence of 58 years to life in prison for first degree murder and had several prior violent felony convictions. The child was temporarily placed in confidential foster care. He generally did well in foster care, except that he had behavioral problems with authority.
During a supervised visit, the mother took paperwork from a caseworker that identified the confidential foster parents. The foster parents began receiving hang-up calls and the mother told a caseworker that she knew where the child was and she would go there. HSA transferred the child to an emergency shelter.
On July 20, 2006, the court took jurisdiction and declared the child a dependent child under section 300, subdivisions (a), (b) and (g). The court placed the child with the paternal grandmother, ordered reunification services for the mother, and ordered the mother to comply with a case plan that included participation in an Alcoholics/Narcotics Anonymous program (AA/NA), a parenting program, an anger management program, drug and alcohol assessment and drug testing. Services to father were bypassed.
During the first six months of reunification services, mother missed eleven of thirteen drug tests and verified attendance at only two AA/NA meetings. She enrolled in New Start for Moms, a program that included recovery group therapy, parenting classes and drug screening, but was terminated, first for refusing a drug test and again, after being given a second chance, for losing control of her temper. She was referred for inpatient drug treatment, refused it, was referred to another drug and alcohol program but missed several appointments before completing that programs initial orientation. She missed five of seventeen supervised visits with the child because she either did not call to confirm the visit or show up for the visit. The mothers interaction with the child during visits was good, but whenever a worker said something with which the mother disagreed, she became very upset and on several occasions the visits were terminated because of her hostility. The child, living with his paternal grandmother, was extremely unruly and difficult to manage. He was initially aggressive at preschool, and then his behavior began to improve. He refused to cooperate in a developmental assessment.
In May of 2007 the child was transferred to another foster care placement because he had left the paternal grandmothers home on several occasions and she had not disclosed that two male adults were living in her home. She refused to identify the adults so that they could be approved. The new foster family was the childs fourth placement. The maternal grandmother sought placement but her home could not be approved because she lived in a complex that did not allow children. Also, while acting as an approved visitation supervisor, the maternal grandmother had left the mother and the child with an unapproved supervisor, the maternal grandfather.
On May 14, 2007, the child was expelled from preschool due to aggressive and disruptive behavior. He received therapeutic behavioral services to address issues of physical aggression and running away. He was also assessed by a psychiatrist who prescribed medication for aggression and hyperactivity. Within 120 days he had met his therapeutic goals.
By November of 2007 the childs foster mother reported that his behavior had improved greatly as a result of stability and medication. His hyperactivity had decreased and he was able to sit still and focus. She stated that he was ". . . like a different kid now. He is starting to understand consequences and seems remorseful of his actions." The social worker observed the child to be well-mannered, polite and affectionate toward his foster family. The child received "green card" acknowledgements in his kindergarten class for being on his best behavior and staying on task.
After 12 months of services, the mother had not submitted to random substance abuse testing, had not verified attendance in an AA/NA program, had not completed parenting classes, a drug treatment program or an anger management program. She was six months pregnant and stated that she had transportation problems. She missed three of seven parenting sessions and then stopped attending. She was discharged from the anger management classes for lack of attendance. She missed 13 scheduled visits with the child because she did not call to confirm the visits. When she did visit with the child, the visits usually went well. The case worker reported that the mother provided snacks and activities and they seemed to play well together until the child would become hyperactive and fail to listen to the mothers directions toward the end of the visits. The mother would then become frustrated, but was attentive and responsive to the child and tried to calm him down.
On August 15, 2007, the court found that mother had not substantially complied with her case plan and the court terminated reunification services. The court also found that the child was not an Indian child and the ICWA did not apply to the child. The court scheduled a hearing to select and implement a permanent plan for the child pursuant to section 366.26. We affirmed on the merits the decision to select and implement a permanent plan, denying mothers petition for extraordinary writ review in case number B201399.
The decision to terminate reunification services and set a selection and implementation hearing is therefore no longer subject to review. (§ 366.26, subd. (l)(1)(C); In re Julie S. (1996) 48 Cal.App.4th 988. 990.)
One month after the court terminated reunification services, the mother re-enrolled in New Start for Moms. This time she remained in the program for three months, made excellent progress and all of her random drug tests were negative. In the same period, she missed three of eighteen supervised visits with the child. New Start for Moms reported that the mother was engaged and attentive during visits with her son.
Mother petitioned the juvenile court to modify its order terminating services pursuant to section 388 on the grounds that her circumstances had changed. Before her section 388 petition was heard, she was arrested once for battery and then again for felony theft. The battery charge was dismissed and the mother pled guilty to the felony theft charge.
While mother was awaiting sentencing, the court denied her section 388 petition and conducted the contested section 366.26 hearing. The court considered the HSAs assessment report, supplements to that report, a letter from a prospective adoptive family, and the testimony of the mother and the social worker. The court found by clear and convincing evidence that it was likely the child would be adopted. The court also found that termination of parental rights would not be detrimental to the child under any of the circumstances in section 366.26, subdivision (c)(1). The court ordered adoption as the permanent plan and terminated the parental rights of the mother and father.
DISCUSSION
Evidence of Adoptability
Mother contends that the finding that the child was adoptable was not supported by substantial evidence, because the child had numerous failed placements, his current foster parents were unwilling to adopt him, he had aggressive behavior and tended to run away, the prospective adoptive family were not fully committed to adopting him, he had not yet been placed with them and he wanted to return to his mother. We affirm the trial courts determination that the child was adoptable.
At the section 366.26 hearing, the juvenile court was required to choose a permanent plan for the child. The options were adoption, guardianship or long term foster care. (Id. at subd. (b)(1)-(5).) Adoption is the statutorily preferred plan (ibid.), and must be ordered if the court finds by clear and convincing evidence that the child is likely to be adopted, unless a statutory exception applies. (Id. at subd. (c)(1).) In determining whether a child is adoptable, the court focuses on the child and whether his age, physical condition and emotional state will make it difficult to find a person willing to adopt him. (In re David H. (1995) 33 Cal.App.4th 368, 378.)
The reviewing court will affirm a finding that a child is likely to be adopted if the finding is supported by substantial evidence. We consider the evidence in the light most favorable to the prevailing party, construing all reasonable inferences and resolving all conflicting evidence in favor of the order. (In re J. I. (2003) 108 Cal.App.4th 903, 911.)
Substantial evidence in the record supports the finding that the child was adoptable. The social worker, the childs foster mother, the childs therapist and the childs teacher all reported that the child had become well-behaved. A physician reported that the child was in overall good health. The child had no developmental problems. The social worker testified that he was "doing excellent in school" and had made "a 90 percent improvement" since being placed in foster care. The prospective adoptive family, after two months of weekend visits, were "overwhelmed with care, compassion and love for him" and wanted "him to be part of their family always."
The history of failed placements reflect the behavior of the adults in the childs life, not the adoptability of the child. The childs first placement in a foster home failed partly because of his unruly behavior but also because the mother took the foster familys confidential information from a caseworker, and the child had to be moved to an emergency shelter facility to protect the foster family. The subsequent placement with the paternal grandmother failed primarily because she did not disclose adults living in the home and refused to identify them so that they could be approved. The child could not be placed with the maternal grandmother because of her living situation. At the time of the implementation hearing, the child had remained with his current foster parents for almost a year. The only reason they did not want to adopt the child was that they had already adopted two children and felt their family was large enough.
The prospective adoptive parents were fully committed to adopting the child, but this fact was not essential to an adoptability finding. The existence of a prospective adoptive family is a factor to be considered, but is not determinative. (In re David H., supra, 33 Cal.App.4th at p. 378.) "[T]he suitability of a potential adoptive family is irrelevant in a termination of parental rights hearing. [Citations.]" (Ibid.) It is not necessary to an adoptability finding that the child already be placed in a prospective adoptive home at the time of the section 366.26 hearing or that a prospective adoptive family be waiting. (Ibid.)
The mother contends that the child was not adoptable because he was likely to sabotage prospective adoption in order to return to her. The mother testified that during their visits he told her that he wanted to go home with her. On the other hand, the foster mother reported that the child said he enjoyed visiting with the prospective adoptive family (who he knew as "friends" of his foster family) and that he would like to return to their home for a long time and live with them. The child could not be reunified with his mother, and adoption was the statutorily preferred permanent placement plan (§ 366.26, subd. (b)(1)) because it offered the prospect of a secure, permanent home. (In re Jamie R. (2001) 90 Cal.App.4th 766, 773.) Although the caseworker did not interview the child with regard to his preferences, there was sufficient information presented to the court for it to make an informed decision about the best interest of the child. Substantial evidence supports its determination that the child was adoptable.
Adequacy of Assessment Report
Mother contends that HSAs adoption assessment report was statutorily inadequate and insufficient to support the adoptability finding. Mother waived this argument by failing to raise it in the juvenile court. Even if it had not been waived, the argument fails because the report substantially complied with the statutory requirements, its deficiencies went only to its weight and sufficient supplemental information was available to the juvenile court for it to make an informed decision.
In determining whether a child is adoptable for purposes of section 366.26, the court relies upon an assessment report together with any other evidence presented by the parties. (Id. at subd. (b).) The contents of the assessment report are set by statute. (§ 366.21, subd. (i)(1).) A challenge to the sufficiency of an assessment report must be made at trial or it is waived. (In re Crystal J. (1993) 12 Cal.App.4th 407, 411.) Mother did not challenge the assessment report at trial and has waived her objections.
We do note that there were deficiencies with the assessment report, but the report substantially complied with the requirements of section 366.21, subdivision (i)(1), by reporting on the amount and nature of contacts between the child and the mother, the childs medical, developmental, scholastic, mental and emotional status, the eligibility and commitment of the prospective adoptive parents, the duration and character of the relationship between the child and prospective adoptive parents, and an analysis of the likelihood that the child would be adopted if parental rights were terminated. (Id. at subd. (i)(1)(B)-(G).) The report did not describe all contact with extended family as required by section 366.21, subdivision (i)(1)(B) and did not contain a direct statement from the child concerning placement and adoption or an explanation that the childs age or physical, emotional or other condition precluded his meaningful response as required by section 366.21 subdivision (i)(1)(E). However, deficiencies in an assessment report go only to the weight of the evidence (In re Crystal, supra, 12 Cal.App.4th at p. 413) and the report, supplemented by other evidence presented by the parties, provided substantial evidence to support the trial courts finding that the child was adoptable.
It did describe the mothers visits through August of 2007, and noted that the child showed affection toward his newborn brother, but it did not discuss the subsequent visits with mother at New Start for Moms or any visits with the grandmothers, which had been ordered as part of the case plan. The court did have sufficient information concerning the visits at New Start for Moms to make an informed decision, because it received reports from New Start for Moms concerning the visits. Although both grandmothers (with other relatives) had attended hearings and requested placement early in the proceedings, there is no indication whether they pursued visitation after reunification services were terminated.
The court did not interview the child, but did receive the mothers testimony about the childs wishes and the statement of the foster mother on that subject. The child was almost six years old. The court must only consider the childs wishes to the extent those wishes are discernable. (In re Joshua G. (2005) 129 Cal.App.4th 189.) A prior report stated that the child was too young to state his wishes, and mother did not challenge the omission of the statement. (See In re Juan H. (1992) 11 Cal.App.4th 169.)
Beneficial Parental Relationship Exception
Mother contends that the beneficial parental relationship exception (§ 366.26, subd. (c)(1)(B)(i)) applies to bar termination of her parental rights. Mother waived the argument by failing to assert it in the trial court, and did not in any case meet her burden to prove that termination of her parental rights would be detrimental to the child under a statutory exception.
When a court finds at a section 366.26 hearing that the child is adoptable, the court must terminate parental rights and order adoption unless (a) the child is living with a relative who is unwilling or unable to adopt the child or (b) the termination of parental rights would be detrimental to the child under one of six statutory exceptions. (Id. at subd. (c)(1)(A) & (B).) The parent has the burden to prove by a preponderance of the evidence that termination would be detrimental to the child under one of the enumerated exceptions. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) The beneficial relationship exception applies only 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)(B)(i).)
A parent must raise any relevant exception at the section 366.26 hearing, or waive the right to raise the exception on appeal. (In re Erik. P. (2002) 104 Cal.App.4th 395, 403.) A juvenile courts decision whether to apply the parental relationship exception is reviewed for abuse of discretion. (In re Aaliyah, supra, 136 Cal.App.4th at p. 449.) Mother did not argue in the juvenile court that the beneficial parental relationship exception applied and has waived the issue on appeal.
The juvenile court did make a general finding that none of the circumstances described in section 366.26, subdivision (c)(1) applied. That finding was not an abuse of discretion. There was evidence in the record that the mother did not have regular visitation with the child and that the benefits of adoption would outweigh the benefits from the continuing relationship. Inconsistent visitation that becomes consistent shortly before the section 366.26 hearing is not sufficient to demonstrate regular visitation. (In re Aaliyah, supra, 136 Cal.App.4th at p. 450.) It is difficult for a parent to demonstrate a beneficial relationship based on loving contact that never progresses beyond supervised visits. (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) "[T]he childs relationship must transcend the kind of relationship the child would enjoy with another relative or family friend." (Jeremy S. (2001) 89 Cal.App.4th 514, 523, disapproved on other grounds In re Zeth S. (2003) 31 Cal.4th 396, 414.) "Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Here, the mother was loving toward the son during visits, but she never advanced to the point of meeting the childs need for a parent. "A child who is determined to be a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may benefit the child to some degree but does not meet the childs need for a parent. [Citation.]" (In re Aaliyah, supra, at p. 449.)
ICWA
The juvenile court had reason to know, from reports of the mother, maternal grandmother and maternal uncle, that the child may have Apache and Yaqui Indian heritage through the maternal grandfather. The father reported that he had no Indian heritage. Mother contends, and the HSA concedes, that it failed to comply with the ICWA notice requirements. (See 25 C.F.R. § 23.11(d) (2008); In re S. M. (2004) 118 Cal.App.4th 1108, 1116-1117.)
ICWA notice must include, "the name, birthdate, and birthplace of the Indian child; his or her tribal affiliation . . . and information about the Indian childs biological mother, biological father, maternal and paternal grandparents and great-grandparents or Indian custodians, including maiden, married and former names or aliases; birthdates; places of birth and death; current and former addresses; tribal enrollment numbers, and/or other identifying information. [Citation.]" (In re Louis S. (2004) 117 Cal.App.4th 622, 630.) Notice should be sent to the chairperson of the tribe unless another agent for service is designated by the tribe. (Id. at p. 633.) "The burden is on the Agency to obtain all possible information about the minors potential Indian background and provide that information to the relevant tribe or, if the tribe is unknown, to the BIA. [Citation.]" (Id. at p. 630.)
HSA sent two sets of ICWA notices. The first incorrectly reported that the mother had no Indian heritage and that the father may have Indian heritage. It included the name, address and birth date of the maternal grandfather, but it omitted any information about the maternal grandmother, both paternal grandparents, all great-grandparents and the childs place of birth. There is no evidence that HSA was unable to obtain the omitted information; some of the omitted information was in its file. The Pascua Yaqui Tribal Council was the only tribe to which the first notice was sent.
The second notice was sent to all identified tribes and correctly reported that mother may have Indian heritage, but it omitted any information about grandparents and great-grandparents. The recipient tribes could not conduct meaningful inquiries to determine the childs tribal heritage without the missing information. Also, neither set of notices were directed to the tribes designated chairpersons.
The order terminating parental rights is reversed. The matter is remanded to the juvenile court to order HSA to provide proper notice under the ICWA. In the event that no tribe indicates that Angel S. is an Indian child, then the juvenile court must reinstate the order terminating parental rights. If a tribe indicates that Angel S. is Indian, then the juvenile court is directed to proceed in compliance with ICWA. In all other respects, the orders and findings of the juvenile court are affirmed.
We concur:
GILBERT, P.J.
YEGAN, J.