Opinion
NOT TO BE PUBLISHED
Sup.Ct. No. JD219086
MORRISON, J.
R.W. and T.H., the mother and father of B.H. (the minor), each appeal from the order of the juvenile court terminating their parental rights. (Welf. & Inst. Code, §§ 366.26, 395.) T.H. contends the juvenile court committed reversible error in failing to apply a statutory exception to adoption, and both R.W. and T.H. claim Department of Health and Human Services (DHHS) and the juvenile court violated the notice requirements of the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. 1901 et seq.) Agreeing only with the claim of ICWA error, we shall reverse and remand for a reevaluation by the juvenile court pursuant to that statute.
All further undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Dependency proceedings began in March 2003, while the minor lived with T.H. The social worker’s report prepared for the detention hearing indicated ICWA might apply to the proceedings. Thereafter, DHHS sent notices of the proceedings to Cherokee and Choctaw Indian tribes. Responses from those tribes suggested ICWA did not apply to the proceedings. On June 19, 2003, the juvenile court determined ICWA was inapplicable.
On September 9, 2004, the juvenile court terminated the minor’s dependency status, granting sole physical custody of the minor to T.H. Thereafter, on April 29, 2005, DHHS filed another original juvenile dependency petition on behalf of the minor, now two years old, alleging both R.W. and T.H. had substance abuse problems that rendered them incapable of providing adequate care for the minor. The detention report prepared by DHHS stated there was no evidence that ICWA applied.
At a May 2005 hearing, the juvenile court found no evidence suggesting the minor was an Indian child pursuant to ICWA, but ordered DHHS to review its records for ICWA information. On July 28, 2005, the juvenile court sustained an amended petition and adjudged the minor a dependent child of the court. In its January 2007 memorandum, DHHS notified the court that it had complied with ICWA. Thereafter, the juvenile court ruled DHHS had complied with ICWA, the minor had not been identified as an Indian child pursuant to ICWA, and no further notice to the tribes under ICWA was required.
According to the social worker’s report prepared for the section 366.26 hearing, T.H. was not permitted to visit the minor during the incarceration of T.H. at Folsom State Prison for a parole violation. Although the minor did not ask to visit T.H., he had begun to cry at night because he stated he missed his father. The minor was referred to counseling to address the issue of separation from T.H.
DHHS recommended adoption as the appropriate permanent plan for the minor. According to DHHS, the minor was in the custody of a caregiver committed to providing permanence for the minor through adoption. The minor had no major difficulties, and the caregiver had met the minor’s needs.
In a supplemental report, DHHS noted the minor had indicated he would rather spend time with his caregiver than visit T.H. The minor visited T.H. and appeared happy, but according to the report, after the visit the minor “separated easily from his father and did not cry.” At a subsequent visit, the minor was not as responsive to T.H. as he had been in the past. Moreover, the caregiver reported, the minor “[did] not cry himself to sleep or talk about his father as much.” DHHS continued to recommend adoption as the best permanent plan for the minor.
At the June 5, 2007 section 366.26 hearing, R.W. and T.H. each testified that the minor was bonded with T.H., his father. Counsel for R.W. and T.H. each argued that terminating parental rights would be detrimental to the minor due to the significant relationship existing between T.H. and the minor. Both recommended guardianship as the appropriate placement for the minor.
At the conclusion of the hearing, the juvenile court found it likely the minor would be adopted and terminated the parental rights of R.W. and T.H. In its ruling, the court stated in part: “There’s been no evidence elicited in this case to rebut the fact that I shall terminate parental rights. The issue here is the detriment issue. And it’s simply the detriment because of the bond the child is indicated as having with the parents and so that is the (c)(1)(A) exception and that is the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. So that’s the central issue that we have to look at here. [¶] The appellate courts have addressed this time and time and time again. The -- again, the burden is on the parents and the benefit question it’s not a simple thing to say, yes, we have a bond and therefore severing the tie or terminating parental rights is detrimental. [¶] The Court has to weigh what it means to be of benefit or detriment to the child. Specifically, the benefit to the child must 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. So it’s not simply [the minor] likes seeing dad or likes talking to mom on the phone or we had a good time at the wedding or we played Sorry or dad -- or [the minor] ran up to dad and gave him a hug and said, I love you or even called him, Dad or even called mom, Mom. That’s not the only question that has to be answered. It’s -- the evidence in this case showing the child has a bond with the father. . . . [¶] . . . He’s got more of a relationship with dad. Pretty clear to me he’s got a relationship with dad but not to the extent that it outweighs the benefit of being in a home where he can be stable and happy and have the same friends, same family, same school. [¶] A child does not have to wait for the parents to fix what’s going on in their life to be permanent and happy in one spot. Doesn’t say dad doesn’t have a bond. Sure he has a bond. But it doesn’t -- dad hasn’t met the burden in showing that the benefit of having a permanent home with new adoptive parents is outweighed by the need for that continued contact with his father. [¶] The Court has to balance the strength and quality of that natural parent-child relationship in a tenuous [sic] placement against the security and the sense of belonging that a new family can offer, and in doing that today the parents have not met their burden.”
DISCUSSION
I
T.H. contends the juvenile court erred reversibly in terminating his parental rights because there was insufficient evidence to support the court’s decision not to apply a statutory exception to adoption based on a beneficial relationship existing between T.H. and the minor. Noting evidence of a strong father-and-son relationship and the existence of a parental role for him, T.H. argues the record establishes the minor would suffer again emotionally if his relationship with T.H. was severed.
“‘At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child . . . . The permanent plan preferred by the Legislature is adoption. [Citation.]’ [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child.” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368, italics in original.)
One of the circumstances under which termination of parental rights would be detrimental to the minor is: “The parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, former subd. (c)(1)(A).) The benefit to the child from continuing the parent child relationship must 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 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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
Effective January 1, 2008, that provision has been renumbered as subdivision (c)(1)(B)(i).
The parent has the burden of establishing the existence of any circumstances that constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373.) The juvenile court is not required to find that termination of parental rights will not be detrimental due to specified circumstances. (Id. at p. 1373.) Even frequent and loving contact is not sufficient to establish the benefit exception absent significant, positive emotional attachment between parent and child. (In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.)
In this case, as T.H. acknowledges in his brief, he was unable to maintain consistent visitation and contact with the minor, as required by statute. In fact, during his testimony at the section 366.26 hearing, T.H. told the juvenile court he did not see the minor from October 2006 until May 2007, due to his incarceration. Moreover, the record reflects T.H. had only supervised visits with the minor. Finally, although the minor missed T.H., recently the minor talked less about T.H. and separated easily from him after visits.
Section 366.26 requires both a showing of regular contact and a separate showing that the child actually would benefit from continuing the relationship. In re Autumn H., supra, 27 Cal.App.4th 567, interprets the statutory exception to involve a balancing test, and both In re Autumn H., and In re Beatrice M., supra, 29 Cal.App.4th 1411, posit a high level of parental-type involvement and attachment. Even assuming those decisions overemphasized the importance of the parental role, the record here does not support T.H.’s suggestion that the minor would benefit from continuing his relationship with T.H. simply because of the attachment existing between them. (Cf. In re Amanda D. (1997) 55 Cal.App.4th 813, 821-822.)
T.H. suggests the record establishes the existence of a beneficial relationship between the minor and himself, precluding a finding of adopt ability The juvenile court was authorized to conclude the contrary was true. Evidence of a significant parent-child attachment by itself does not suffice. Instead, the record must show such benefit to the minor that termination of parental rights would be detrimental to the minor. (§ 366.26, former subd. (c)(1)(A) [now subd. (c)(1)(B)(i)].) Here, as the court determined, the record was bereft of such a showing. Instead, there was evidence suggesting it was critical for the minor to obtain the benefits of a stable placement.
In In re Brandon C. (1999) 71 Cal.App.4th 1530, cited by T.H., the juvenile court found it was in the best interests of the minors to establish a guardianship, rather than terminate parental rights, so the minors could maintain their relationship with their mother. (Id. at p. 1533.) Affirming, the Court of Appeal held that substantial evidence supported the juvenile court’s conclusion that terminating parental rights would be detrimental to the minors, because their mother had maintained regular, beneficial visitation with them. (Id. at pp. 1533, 1534-1535, 1537, 1538.)
In re Brandon C., supra, 71 Cal.App.4th 1530, is distinguishable from the proceedings here. The In re Brandon C. court found ample evidence of benefit to the minors of continued contact with their mother. (Id. at pp. 1537, 1538.) Here, by contrast, the record supports the juvenile court’s conclusion that there would not be sufficient benefit to the minor if his relationship with T.H. were continued. Moreover, as the record also suggests, the minor had a need for stability and security, a need which only adoption could satisfy.
T.H. suggests that because he had maintained a significant parent-child relationship with the minor, which included a history together and regular contact while in placement, the circumstances of his case compare favorably with those found in other cases. We disagree. In In re Casey D. (1999) 70 Cal.App.4th 38, 51, also cited by T.H., the Court of Appeal did not find an “exceptional case” where a beneficial parent-child relationship existed that would preclude adoption. Accordingly, the court in Casey D. affirmed the order that terminated parental rights. (Id. at pp. 53, 54.) However, the court in Casey D. did recognize the possibility that a beneficial relationship might exist despite the absence of daily contact between parent and child. (Id. at p. 51.) The difficulty for T.H. here is that he cannot establish either regular contact or the requisite beneficial relationship with the minor, in the absence of which the exception does not apply.
Here, the issue was as follows: In light of the minor’s likely adopt ability, would a continued relationship with T.H. benefit the minor to such a degree that it would outweigh the benefits the minor would gain in a permanent adoptive home? Substantial evidence in the record supports the juvenile court’s answer in the negative. On the record before it, the juvenile court could conclude, as it did, that only adoption, which is the preferred disposition (In re Ronell A., supra, 44 Cal.App.4th at p. 1368), would promote the best interests of the minor. As the record reflects, the juvenile court had before it ample evidence on the matter, including T.H.’s testimony.
After it became apparent that T.H. would not reunify with the minor, the juvenile court had to find an “exceptional situation existed to forego adoption.” (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) In this case, on the contrary, the court determined the minor would not benefit from continuing a relationship with T.H. to such a degree that termination of parental rights would be detrimental to the minor. T.H. had the burden to demonstrate the statutory exception applied. We conclude that T.H. failed to make such a showing. Therefore, the court did not err in terminating T.H.’s parental rights. (In re Amanda D., supra, 55 Cal.App.4th at pp. 821-822.)
II
R.W. and T.H. contend the juvenile court and DHHS failed in various respects to comply with the notice requirements of ICWA.
The notice provisions of ICWA state, in part: “In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” (25 U.S.C. § 1912(a).)
The Indian status of a child need not be certain to trigger the ICWA’s notice requirements. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471.) “[O]ne of the primary purposes of giving notice to the tribe is to enable the tribe to determine whether the child involved in the proceedings is an Indian child.” (Id. at p. 470.) “The [Department] must provide all known information to the tribe, particularly that of the person with the alleged Indian heritage.” (In re Louis S. (2004) 117 Cal.App.4th 622, 631.) Notice must include, if known, the names of the child’s grandparents and great-grandparents, including maiden, married and former names or aliases, as well as their birth dates, places of birth and death, tribal enrollment numbers, current and former addresses, and other identifying information. (25 C.F.R. § 23.11(a) & (d)(3); 25 U.S.C. § 1952.)
Effective in 2007, notices and responses by the tribes must be filed with the juvenile court. (§ 224.2, subd. (c).) Here, as R.W. notes, despite a statement by DHHS in 2007 that the response from United Keetoowah Band of Cherokee Indians was filed, the most recent communication from that tribe is not contained in the record. Moreover, because the notice to United Keetoowah Band of Cherokee Indians sent in 2003 was incomplete, it is impossible to know if the tribe’s response was a sufficient basis on which the juvenile court could conclude the minor was not an Indian child. Accordingly, it is necessary on remand for the juvenile court to evaluate the notice and all responses received from United Keetoowah Band and, if necessary, order DHHS to send a new notice to that tribe. (Cf. In re Louis S., supra, 117 Cal.App.4th at pp. 629, 634.)
We recognize the 2003 response from United Keetoowah Band is contained in the record. (§ 224.3, subd. (e)(i).)
R.W. also asserts DHHS failed to notify the several Choctaw Indian tribes adequately “due to the failure to file the notices in the prior dependency.” We disagree. The reason for our conclusion is that those notices were mailed to DHHS in 2003, before the law required their filing. Under similar circumstances, we have held that it may be presumed proper notices were sent to tribes. (In re L. B. (2003) 110 Cal.App.4th 1420, 1424-1425.)
T.H. claims the responses from the tribes were an inadequate basis on which the juvenile court could determine whether ICWA applied because of their failure to distinguish between enrollment and membership of the minor in the tribes. T.H. is correct that, effective in 2007, subdivision (e)(i) of section 224.3 suggests the determination of tribal membership status may hinge on that distinction. However, the tribal responses filed in this case all were filed before enactment of section 224.3, subdivision (e)(i). Accordingly, we need not decide whether those responses may preclude the juvenile court from finding ICWA is inapplicable to the proceedings.
That provision states: “A determination by an Indian tribe that a child is or is not a member of or eligible for membership in that tribe, or testimony attesting to that status by a person authorized by the tribe to provide that determination, shall be conclusive. Information that the child is not enrolled or eligible for enrollment in the tribe is not determinative of the child’s membership status unless the tribe also confirms in writing that enrollment is a prerequisite for membership under tribal law or custom.”
DISPOSITION
The order terminating parental rights is reversed conditionally, and the matter is remanded to the juvenile court with directions to that court to consider all notices to and responses from United Keetoowah Band of Cherokee Indians and determine whether additional notice to that tribe is required. If it is required, and after proper and complete notice, that tribe determines the minor is an Indian child as defined by ICWA, then the juvenile court is ordered to conduct a new Welfare and Institutions Code section 366.26 hearing in conformity with all provisions of ICWA. If, on the other hand, the court determines no further notice is required, or if no response is received or the tribe determines the minor is not an Indian child, then the juvenile court shall reinstate all previous findings and orders.
We concur:
SIMS, Acting P.J., CANTIL-SAKAUYE, J.