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In re Anthony C.

Court of Appeal of California
Sep 3, 2008
E044920 (Cal. Ct. App. Sep. 3, 2008)

Opinion

E044920

9-3-2008

In re ANTHONY C. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY DEPARTMENT OF CHILDRENS SERVICES, Plaintiff and Respondent, v. JONATHAN R. et al., Defendants and Appellants.

Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant Father. Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant Mother. Ruth E. Stringer, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent. Neil R. Trop, under appointment by the Court of Appeal, for Minors.

Not to be Published


Mother and father appeal from a judgment terminating their parental rights (Welf. & Inst. Code, § 366.26) to two sons, Anthony C. (age 8) and J.C. (age 3). Mother claims the court erred in not applying the newly renumbered exception to adoptability for children whose relatives are unwilling or unable to adopt (§ 366.26, subd. (c)(1)(A)). Father joins mothers argument and also claims the judgment must be reversed for failure to comply with the Indian Child Welfare Act (ICWA). We disagree and affirm.

BACKGROUND

Prior to J.s birth, San Bernardinos Department of Childrens Services (DCS) became involved with the family on Anthonys behalf. The matter was resolved when the maternal grandparents were appointed to be the guardians of Anthony by the Probate Court. J. was born in 2004, testing positive for drugs, and was only released to mother so long as she agreed to live with her mother, along with Anthony. After five months, mother moved out with both children to live with father.

In September 2005, a dependency petition was filed as to both children. The petition alleged the children came within section 300, subdivision (a), based on physical abuse of J. by his father which caused bruising, section 300, subdivision (b), based on mothers drug abuse and domestic violence which occurred in the childrens presence, and mothers failure to protect the children from physical abuse; it was also alleged the guardians failed to protect Anthony by allowing him to return to live with his parents, placing him at risk of physical abuse due to the abuse of his sibling.

On November 21, 2005, the court declared both children dependents under section 300, subdivisions (b) and (j). The children were removed from parents and guardians custody and temporarily placed with a foster family. Reunification services were ordered and the social worker was authorized to place the children in the home of the maternal grandparents by information packet.

In June of 2006, the foster parent notified the DCS she could no longer keep the children and there were concerns that J. was being abused in the foster home. On June 13, 2006, a supplemental petition (§ 387) was filed, alleging the prior disposition was ineffective in the protection of the minors. After a hearing on the section 387 petition, the court found the prior disposition had not been effective in the protection of the minor and ordered both children placed in the home of the grandparents. Because neither parent had made progress, the court terminated reunification services for both parents.

On October 2, 2006, the court conducted the permanent plan hearing as to J., found termination of parental rights would be detrimental, and appointed the maternal grandparents as legal guardians. Both parents agreed with the proposed permanent plan of guardianship. Subsequently, the DCS sought to place Anthony in the same plan as J. The DCS noted that the guardians wished to adopt both children. However, the social worker felt that guardianship was the preferred plan because the maternal grandparents might not be appropriate adoptive parents, given their own involvement in the dependency system resulting in the prior removal of Anthony from their care. The report also noted that father had made no efforts to visit the children and mother had only visited once during the previous six months.

On May 31, 2007, the guardians/grandparents filed a section 388 petition seeking to modify the previous permanent plan of guardianship and to set a section 366.26 hearing for termination of parental rights. The petition noted that the father has had no contact with the children and the mother has had only two contacts in the past six months. The court determined there was new evidence or changed circumstances warranting a hearing on the petition, but indicated it would consider only documents and papers filed; it would not hold an evidentiary hearing. The DCS opposed the proposed modification; its position was that adoption was not an appropriate plan because of the guardians history of failure to protect. The DCS recommended maintenance of the guardianship, which would make it easier to remove the children should the placement fail.

On July 16, 2007, the court conducted a combined hearing on the section 388 petition and the semi-annual status/postpermanent plan review. The trial court granted the guardians section 388 petition and set a section 366.26 hearing for purposes of considering termination of parental rights. Father challenged the denial of a contested hearing order by way of a writ petition pursuant to California Rules of Court, rule 8.452, but that petition was denied. On September 12, 2007, fathers visitation with Anthony was found to be detrimental and was terminated.

An adoption assessment recommended termination of parental rights because the grandparents were willing to adopt and the children were bonded with them. The report prepared for the selection and implementation hearing (§ 366.26) recommended adoption, pointing out the parents had minimal contact with both children during the prior year. The lack of contact was also cited as the reason for DCSs request to terminate mothers visits with the children, which was made on December 28, 2007.

The selection and implementation hearing took place on January 10, 2008. Parental rights of both mother and father were terminated. Both parents appeal.

DISCUSSION

1. The Parents Failed to Establish Any Exception to the Finding of Adoptability .

Mother argues that the judgment terminating parental rights must be reversed because the juvenile court did not employ the correct legal test. Father joins the argument. Respondent argues the issue was forfeited by the parents failure to raise the exception in the trial court. We agree with respondent.

Specifically, mother points to a recent amendment to section 366.26, which mother asserts created a "new" exception to the finding of adoptability, arguing the juvenile court did not consider this "new" exception. The exception to which mother refers relates to situations in which the child is living with a relative who is unable or unwilling to adopt the child because of circumstances that do not include an unwillingness to accept legal or financial responsibility for the child. (§ 366.26, subd. (c)(1)(A), as amended, effective January 1, 2008.)

However, the relative exception to termination of parental rights is not a "new" exception. Until the recent amendments were enacted, they existed in substantially the same form under section 366.26, subdivision (c)(1)(D). The juvenile court does not have a sua sponte duty to determine whether this or any other exception to adoption applies. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.) The party claiming an exception to adoption has the burden of proof to establish by a preponderance of evidence that the exception applies. (In re Rachel M. (2003) 113 Cal.App.4th 1289, 1295.)

Ordinarily, an appellate court will not consider issues not raised in the trial court; to do so would be unfair to the trial judge and the adverse party by allowing the party to take advantage of an error that could easily have been corrected at the trial. (In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502.) Dependency matters are not exempt from this rule, although application of the forfeiture doctrine is not automatic. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Thus, in order to preserve an issue for appeal, a party ordinarily must raise an objection or request relief in the trial court. (In re S.C. (2006) 138 Cal.App.4th 396, 406.)

Neither parent mentioned the relative exception to adoptability in the trial court, although an exception for relatives who are unwilling or unable to adopt has been in effect since 1990. (Added Stats. 1990, ch. 1530, § 7; Sen. Bill No. 2232.) Moreover, mothers trial counsel agreed that the only exception that might apply would be the parent-child bond exception. Any error in failing to apply the exception pertaining to relatives unable or unwilling to adopt was forfeited.

Even if we were to reach the merits, there is substantial evidence to support a finding that the exception did not apply. The parents had the burden to show the statutory exception applied. (In re Derek W. (1999) 73 Cal.App.4th 823, 826-827.) The parents presented no evidence at the hearing that the relatives who were the legal guardians of both children were unable or unwilling to adopt. In May 2007, the grandparents filed a petition seeking modification of the permanent plan, which was then legal guardianship. They sought a permanent plan of adoption instead. The guardians had originally been reluctant to seek adoption because they believed the parents could reunify. However, the lack of contact by the parents led them to believe that adoption was in the childrens best interests. Nothing in the record supports the parents assertion that the relatives were unable or unwilling to adopt.

By failing to raise the beneficial parental relationship exception at the section 366.26 hearing, and by presenting no evidence for the court to consider on this issue, the parents forfeited the issue on appeal.

2. The Notice Requirements of ICWA Were Satisfied .

Father claims the juvenile court erroneously determined that ICWA did not apply, requiring reversal of the judgment terminating parental rights. He asserts that the Cherokee Nation of Oklahoma did not receive proper notice under ICWA because DCS did not include the name of the tribes chairperson (Chadwick Smith) or designated agent for services on the notice. The mother claimed Cherokee ancestry. Father acknowledges DCS sent notices of the dependency proceedings to the three federally recognized Cherokee tribes. He asserts that because the Cherokee Nation of Oklahoma did not respond, as the other two tribes did, the notice was ipso facto defective.

Respondent points out that the Cherokee Nation of Oklahoma did respond to the notice, indicating the minors were not eligible for membership. The record supports respondents assertion. On October 28, 2005, the designated agent signed for receipt of the notice. On November 14, 2005, the Cherokee Nation responded that the children are not considered Indian children. The letterhead of the response includes the name of the Principal Chief, Chad "Corntassel" Smith. Fathers assertion that the tribal chairperson was not notified of the pending proceedings is not supported by the record.

Even if DCS had erred in omitting the name of the tribal chairperson or agent, we would conclude any error was harmless. Deficiencies in an ICWA notice are generally prejudicial, but may be deemed harmless under some circumstances. (In re S.B. (2005) 130 Cal.App.4th 1148, 1162.) Thus, where notice has been received by the tribe, as it was in this case, errors or omissions in the notice are reviewed under the harmless error standard. (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784; see also In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576.)

The Cherokee Nation received the notice and responded to it. Any defect in failing to name the tribal chairperson in the notice is harmless.

DISPOSITION

The judgment is affirmed.

We concur:

Ramirez, P. J.

Hollenhorst, J. --------------- Notes: Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.


Summaries of

In re Anthony C.

Court of Appeal of California
Sep 3, 2008
E044920 (Cal. Ct. App. Sep. 3, 2008)
Case details for

In re Anthony C.

Case Details

Full title:In re ANTHONY C. et al., Persons Coming Under the Juvenile Court Law. SAN…

Court:Court of Appeal of California

Date published: Sep 3, 2008

Citations

E044920 (Cal. Ct. App. Sep. 3, 2008)