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In re Baby Boy T.

California Court of Appeals, Fourth District, Third Division
Mar 20, 2008
No. G039270 (Cal. Ct. App. Mar. 20, 2008)

Opinion


In re BABY BOY T., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. ANDREA T. et al., Defendants and Appellants. G039270 California Court of Appeal, Fourth District, Third Division March 20, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Appeals from a judgment of the Superior Court of Orange County, James Patrick Marion, Judge. Affirmed. Super. Ct. No. DP012836

Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant Andrea T.

Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant Herbert P.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Alexandra G. Morgan, Deputy County Counsel, for Plaintiff and Respondent.

FYBEL, J.

No appearance for the Minor.

* * *

Introduction

Baby Boy T., now two years old, was detained shortly after his birth, and has been in the care of his maternal aunt since that time. Baby Boy T.’s parents, Andrea T. and Herbert P., separately appeal from the juvenile court’s judgment terminating their parental rights. For the reasons detailed, post, we affirm.

Andrea argues the record does not contain documentation proving proper notice was given under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). Both Andrea and Herbert directly and unequivocally denied any Indian heritage. Andrea fails to provide any evidence that Baby Boy T. comes within ICWA, making any alleged error in the ICWA notice procedures harmless.

There was substantial evidence supporting the juvenile court’s findings that Baby Boy T. was adoptable, and that neither the parent-child relationship exception nor the sibling relationship exception to adoption applied. The record also contains ample evidence that any bond existing between Baby Boy T. and Herbert was not so beneficial to Baby Boy T. that it could outweigh the benefits he would receive from a stable, permanent home. Finally, to the extent Baby Boy T. had a significant bond with his newborn brother, that relationship would be best preserved by terminating parental rights, because the brother had also been placed with the maternal aunt shortly after his birth, and the aunt also desired to adopt him.

Statement of Facts and Procedural History

Baby Boy T. was detained by the Orange County Social Services Agency (SSA) immediately after his birth in January 2006. Baby Boy T.’s four half siblings had been declared dependents of the juvenile court in South Dakota in November 2005; Andrea had fled to California before Baby Boy T.’s birth to avoid a custody order naming her unborn child as a dependent of the South Dakota court as well. Baby Boy T. was placed with his maternal aunt, Kim H.

At the detention hearing, Andrea denied having any Indian heritage, and the juvenile court found ICWA did not apply. This finding was consistent with the South Dakota juvenile court’s earlier finding that Baby Boy T.’s half siblings did not have any Indian heritage.

On April 26, 2006, a second amended petition was filed, in which it was alleged: (1) Baby Boy T.’s half siblings had been abused and neglected; (2) Andrea had unresolved drug problems and mental health problems; (3) at birth, Baby Boy T. tested positive for opiates and barbiturates, and suffered from severe withdrawal symptoms; (4) Andrea’s drug use during pregnancy and failure to obtain proper prenatal care had caused Baby Boy T. trauma and physical harm; (5) Andrea had a history of abusive relationships; (6) Andrea currently had an outstanding warrant for her arrest for burglary, petty theft, and possession of a controlled substance; (7) Herbert had unresolved problems with substance abuse, and knew or should have known that Andrea had failed to receive prenatal care and had abused drugs during her pregnancy; and (8) Baby Boy T. had suffered or was at a substantial risk of suffering serious physical harm or illness as a result of Andrea’s and Herbert’s failure to adequately supervise him and their willful or negligent failure to adequately care for him. The juvenile court sustained the amended petition on June 22, 2006, after a contested jurisdiction/disposition hearing. The court found Baby Boy T. was a dependent under Welfare and Institutions Code section 300, subdivision (b) (failure to protect). (All further statutory references are to the Welfare and Institutions Code.)

At the six-month review hearing on October 12, 2006, the juvenile court terminated reunification services and set a hearing to select Baby Boy T.’s permanent placement plan for February 7, 2007. Andrea’s parental rights over Baby Boy T.’s half siblings had been terminated by the juvenile court in South Dakota on September 7, 2006.

Section 366.26 Hearing Reports

The report prepared by SSA for the section 366.26 hearing (.26 hearing) described Baby Boy T. as a healthy child who was developing within age appropriate limits and progressing well. Kim expressed some concerns about his speech development, leading to a referral to Early Start for therapy. Baby Boy T. was considered highly adoptable; he was young, and had attractive features and an even temperament. Kim and her husband hoped to adopt him. SSA expressed the opinion that Baby Boy T.’s chances of being adopted were very good, even absent the interest expressed by his aunt and uncle.

Herbert missed several visits with Baby Boy T. Although Herbert was generally attentive and acted appropriately toward his son at visitation, he reacted poorly to suggestions by the monitors. Herbert’s behavior toward the visitation monitors was often aggressive, causing two of them to refuse to monitor future visits.

SSA’s .26 hearing report concluded: “Due to the child’s age and poor prognosis that either parent is able or intent on actively cooperating in mitigating the issues that would allow them to safely and effectively parent their child the Social Services Agency (SSA) respectfully recommends that parental rights as to . . . Andrea T[.] and Herbert P[.] be terminated and a Permanent Plan of adoption with the child’s prospective adoptive parents be implemented.”

First Contested .26 Hearing

The .26 hearing began on May 15, 2007; the juvenile court accepted into evidence the .26 hearing report and two addendum reports. When the hearing resumed on May 17, county counsel advised the court that SSA had received a child abuse registry report indicating Andrea had given birth at home to another child. Because Herbert had continued to refuse to provide a local address, and had previously made statements that he would flee to Louisiana with the newborn if the court ruled against him, the juvenile court trailed the hearing to the next day in an attempt to determine the whereabouts of the newborn.

The next day, Herbert was called as a witness, identified Isaiah as his newborn son with Andrea, but refused to provide any information as to where the child was located. The court then found Herbert in contempt and placed him in custody. On May 21, 2007, the court was advised the information about Isaiah’s whereabouts had been lodged with authorities, and the court ordered the record be purged of the contempt citation and Herbert be released. The court granted Herbert’s motion for a mistrial, and continued the .26 hearing to June 12, 2007, before a different judge.

Additional .26 Hearing Addendum Reports

Herbert had only one visit with Baby Boy T. between April 10 and June 25, 2007. At the visit, Herbert interacted well with his son, but also complained about everything and glared at the social worker’s supervisor. Herbert failed to confirm the next visit, but arrived anyway and became upset when he learned a visit could not be arranged that day.

Baby Boy T. had been assessed by the Regional Center of Orange County and speech and occupational therapy were recommended. Kim told SSA the therapist had stated many of Baby Boy T.’s behaviors were “indicative” of autism. Kim, however, remained committed to adopting Baby Boy T., and was capable of meeting and willing to meet any special needs he might have.

Baby Boy T.’s brother, Isaiah, was also placed with Kim and her family. Isaiah also showed symptoms of withdrawal from drugs.

Second Contested .26 Hearing

The second .26 hearing began August 27, 2007; the reports admitted at the first hearing, as well as the additional addendum reports, were admitted into evidence.

The social worker testified Baby Boy T. was born suffering from severe withdrawal symptoms, and had to be administered phenobarbital and antibiotics. Baby Boy T. had an even temperament, was good-natured, and was considered “highly adoptable.” He did show a significant delay in speech, but was progressing well in his speech therapy. The social worker did not believe Baby Boy T.’s speech delays would affect his adoptability. He had no other medical deficits. Baby Boy T. had never been diagnosed with any type of developmental or medical condition, including, but not limited to, autism.

The social worker also testified Baby Boy T. had been placed with Kim since birth. Kim and her husband were willing to adopt him, and would provide for any special needs he might have. Baby Boy T.’s babysitter had also expressed a willingness to adopt him.

Regarding Herbert’s visitation with Baby Boy T., the social worker made a month-by-month assessment showing Herbert never participated fully. Herbert’s visitation was irregular and inconsistent from the time it was first authorized through October 2006. In eight of the 12 months preceding the .26 hearing in September 2007, Herbert visited once or not at all.

Herbert testified he has a bond with Baby Boy T.; the only basis for his testimony was that they were father and son. Herbert claimed he had been cooperative from the time his son was “kidnapped” from him. Herbert could not recall being responsible for any missed visits between January 2006 and January 2007.

Andrea testified Baby Boy T. was very attached to his younger brother, Isaiah, and a bond existed between Baby Boy T. and Herbert.

The juvenile court found Baby Boy T. was adoptable, and none of the exceptions to adoption applied; specifically, the court found the parent-child relationship exception (§ 366.26, subd. (c)(1)(A)) and the sibling bond exception (§ 366.26, subd. (c)(1)(E)) did not apply. The court then terminated Andrea’s and Herbert’s parental rights. Andrea and Herbert separately appealed.

Effective January 1, 2008, section 366.26 was amended. (Stats. 2007, ch. 583, § 28.5.) The amendment redesignated section 366.26, former subdivision (c)(1)(A) as (c)(1)(B)(i), and former subdivision (c)(1)(E) as (c)(1)(B)(v). This case was decided under the former version of the statute, so we refer to that version in this opinion.

Discussion

I.

ICWA

Andrea argues the notice given under ICWA was improper. “In reviewing the findings of the trial court made pursuant to [ICWA], we must decide if the record contains evidence which is reasonable, credible, and of solid value such that a reasonable trier of fact could find beyond a reasonable doubt that termination of parental rights is appropriate. [Citation.] Consequently we ‘employ[] the substantial evidence test by which we review the record in a light most favorable to the judgment and must uphold the trial court’s findings unless it can be said that no rational factfinder could reach the same conclusion. [Citation.]’ [Citation.]” (In re Krystle D. (1994) 30 Cal.App.4th 1778, 1795-1796, fn. omitted, second brackets in original.)

Even assuming the issue of ICWA notice has not been forfeited, we find no error by the juvenile court. Both Andrea and Herbert denied that they had any Indian heritage. At the detention hearing, Andrea denied having any Indian heritage, and the juvenile court therefore found ICWA did not apply. This finding was consistent with a finding by the South Dakota juvenile court which had found Andrea’s four older children who were within its jurisdiction did not have any Indian heritage. For his part, Herbert told the social worker his great-great-grandmother might be Cherokee; when Herbert was found to be Baby Boy T.’s presumed father, the court ordered that proper ICWA notice be given.

Between them, Andrea and Herbert have filed four previous appeals regarding Baby Boy T.’s dependency. (See case Nos. G037291, G037713, G038176, and G038526.) Andrea and Herbert did not raise the issue of a potential ICWA notice violation in any of those appeals. (See In re X.V. (2005) 132 Cal.App.4th 794, 803-804 [argument regarding lack of proper ICWA notice forfeited on appeal when parents had failed to raise the issue at a hearing on remand specifically held to deal with ICWA notice].)

ICWA notices were sent to the Bureau of Indian Affairs and all required tribes. The United Keetoowah Band of Cherokee Indians, the Cherokee Center for Family Services for the Eastern Band of Cherokee Indians, and the Cherokee Nation all responded to the ICWA notice, stating Baby Boy T. was not eligible for enrollment and they would therefore not intervene in the dependency case. Andrea correctly notes that there is no completed Parental Notification of Indian Status form (form JV-130) in the record, which was required to be completed at the time this dependency proceeding was initiated. (Cal. Rules of Court, former rule 1439(d)(3).)

At a hearing on April 26, 2006, Herbert “absolutely, unequivocally, undeniably and categorically stated that there is absolutely no Indian blood involved in this matter, and that any statement that may [have been] made in the contrary up in the past was mere oversight.”

Even if Andrea were correct in her argument that the ICWA notices provided were somehow deficient, no prejudicial error occurred because both parents stated unequivocally that they did not have any Indian heritage. In In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1428, the father argued the lack of ICWA inquiry by the social services agency required reversal of the order terminating his parental rights. The appellate record in that case lacked any evidence that a proper ICWA inquiry was made, but the appellate court concluded there was no miscarriage of justice because the father had failed to make an affirmative representation of Indian heritage on appeal. (Id. at p. 1431.) Similarly, in In re N.E. (Feb. 29, 2008, G039168) ___ Cal.App.4th ___, ___ [2008 Cal.App. Lexis 299, *3-*4], the father had stipulated that ICWA did not apply, then argued on appeal that the order terminating his parental rights must be reversed because SSA and the juvenile court did not comply with their ICWA inquiry duties. The appellate court concluded the record did not clearly indicate whether sufficient inquiry had been made. (Id. at p. ___ [2008 Cal.App. Lexis 299, at p. *5].) Nevertheless, it affirmed the termination order because the father “has not suggested he in fact has any Indian heritage,” so no prejudice had been shown. (Id. at p. ___ [2008 Cal.App. Lexis 299, at pp. *8-*9].)

II.

Was there substantial evidence supporting the trial court’s finding that Baby Boy T. was adoptable?

“The juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. [Citations.] In making this determination, the juvenile court must focus on the child, and whether the child’s age, physical condition, and emotional state may make it difficult to find an adoptive family. [Citations.] In reviewing the juvenile court’s order, we determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [the child] was likely to be adopted within a reasonable time. [Citations.]” (In re Erik P. (2002) 104 Cal.App.4th 395, 400; see also In re Zeth S. (2003) 31 Cal.4th 396, 406.) We give the juvenile court’s finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)

Baby Boy T. was described as an adorable one year old who was even-tempered and good-natured. He had been in the home of his prospective adoptive family since shortly after his birth. The prospective adoptive family was committed to adopting Baby Boy T., was aware of his delays and special needs, and was willing to do whatever it would take to meet those needs. Baby Boy T.’s babysitter had also expressed an interest in adopting him.

Herbert argues the .26 hearing report did not include current information about Baby Boy T.’s developmental status, or how his possible diagnosis of autism might affect the commitment of Kim and her husband to adopt him. However, the social worker testified Baby Boy T. was receiving speech therapy, was progressing well, and Baby Boy T.’s therapist was very happy with his progress. Baby Boy T. had no other diagnosed medical problems. The social worker also testified Kim remained committed to adopting him and dealing with any special needs he might have.

There was substantial evidence supporting the juvenile court’s finding that Baby Boy T. was adoptable.

III.

Was there substantial evidence supporting the trial court’s finding that the section 366.26, subdivision (c)(1)(A) exception to adoption did not apply?

Herbert contends the juvenile court erred by failing to find the parent-child relationship exception to the termination of parental rights applicable. Section 366.26, subdivision (c)(1)(A) allows the juvenile court to decline to terminate parental rights over an adoptable child if it finds “a compelling reason for determining that termination would be detrimental to the child” because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” Herbert had the burden of proving both prongs of the parent-child relationship exception were satisfied. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 949.) We consider whether substantial evidence supported the juvenile court’s determination the parent-child relationship exception did not apply. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425.)

As to the first prong, during eight of the 12 months before the .26 hearing, Herbert visited Baby Boy T. once per month or not at all. During the dependency period, there was not a single month in which Herbert attended all possible visits. Although Herbert attributed many of his missed visits to his work schedule, the juvenile court noted Herbert never presented documentation of his employment, and found his testimony on that topic unbelievable.

As to the second prong, a parent must occupy more than a “pleasant place” in a child’s life to establish the child’s benefit from maintaining that relationship overrides the preference for adoption. (In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) In In re Autumn H., supra, 27 Cal.App.4th at pages 575-576, the court stated: “In the context of the dependency scheme prescribed by the Legislature, we interpret the ‘benefit from continuing the [parent/child] relationship’ exception to mean the 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. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated. [¶] Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] 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. [¶] At the time the court makes its determination, the parent and child have been in the dependency process for 12 months or longer, during which time the nature and extent of the particular relationship should be apparent. Social workers, interim caretakers and health professionals will have observed the parent and child interact and provided information to the court. The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child’s particular needs are some of the variables which logically affect a parent/child bond.”

At the time of the .26 hearing, Baby Boy T. was 20 months old, and had spent most of his life in the care of Kim, not Herbert. The juvenile court found that breaking his bond with Kim “would be detrimental to [Baby Boy T.].”

Both Herbert and Andrea testified that Herbert was bonded with Baby Boy T., a fact also conceded by SSA. At the point of the .26 hearing, however, the question is whether that bond is so great as to overcome the preference for stability in the child’s life. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) There was substantial evidence supporting the juvenile court’s finding that the bond between Herbert and Baby Boy T. did not overcome the preference for adoption. Despite Herbert’s appropriate behavior when he had visits with Baby Boy T., Herbert never communicated with Kim, SSA, or Baby Boy T.’s physicians to check on his welfare; he refused services from SSA; and he continued to claim he was a victim and Baby Boy T.’s dependency was not his fault.

There was substantial evidence supporting the juvenile court’s finding that the section 366.26, subdivision (c)(1)(A) exception to termination of parental rights did not apply, both because Herbert had not maintained regular and consistent visitation and because there was no evidence any bond between Herbert and Baby Boy T. was so beneficial to Baby Boy T. that it could overcome the benefits he would obtain if he were adopted.

IV.

Was there substantial evidence supporting the trial court’s finding that the section 366.26, subdivision (c)(1)(E) exception did not apply?

Andrea argues the sibling bond exception of section 366.26, subdivision (c)(1)(E) should apply because of Baby Boy T.’s relationship with his infant brother, Isaiah. Section 366.26, subdivision (c)(1)(E) creates an exception to termination of parental rights if: “There would be substantial interference with a child’s sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.” We also review this issue for substantial evidence. (In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017.)

As of the time the .26 hearing was conducted, Isaiah was four months old. Although Andrea testified Baby Boy T. was “very attached to Isaiah,” she fails to explain how a 20 month old can have a “relationship” with a four month old within the meaning of the statute. To the extent any bond had been formed between them, it supports the juvenile court’s finding that the section 366.26, subdivision (c)(1)(E) exception does not apply in this case. There was no evidence of a substantial interference with any relationship between Baby Boy T. and Isaiah. Isaiah had been placed with Kim shortly after his birth, the boys were still placed together, and Kim had expressed an interest in adopting Isaiah as well as Baby Boy T. Andrea could not think of a reason to believe Kim would prevent contact between Baby Boy T. and Isaiah even if she did not maintain Isaiah in her care.

There was substantial evidence supporting the juvenile court’s finding that the section 366.26, subdivision (c)(1)(E) exception did not apply.

Disposition

The judgment is affirmed.

WE CONCUR: SILLS, P. J., MOORE, J.


Summaries of

In re Baby Boy T.

California Court of Appeals, Fourth District, Third Division
Mar 20, 2008
No. G039270 (Cal. Ct. App. Mar. 20, 2008)
Case details for

In re Baby Boy T.

Case Details

Full title:ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. ANDREA…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Mar 20, 2008

Citations

No. G039270 (Cal. Ct. App. Mar. 20, 2008)