Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo, Super. Ct. No. JV45736, Ginger Garrett, Judge.
Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Appellant M.W.
Amy Z. Tobin, under appointment by the Court of Appeal, for Appellant A.B.
Warren R. Jensen, County Counsel, Leslie H. Kraut, Deputy County Counsel, for Respondent.
PERREN, J.
Mother and father appeal from an order of the juvenile court denying their modification petitions, terminating parental rights and establishing adoption as a permanent plan. (Welf. & Inst. Code, §§ 366.26, 388.) We affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
B.W. was 13 months old when she was taken into protective custody by respondent San Luis Obispo County Department of Social Services (Department) on March 5, 2007. The Department filed a petition alleging that B.W.'s parents, both teenagers and married to one another, were unable to care for her. Mother suffered from emotional and mental instability and father had a violent temper leading to several incidents of domestic violence against mother and the child. Mother attempted suicide on two occasions. The parents had separated on numerous occasions, but always reunited, resulting in more domestic violence. The parents' behavior was compromising the child's emotional and physical safety.
B.W. initially was placed with her paternal grandparents but, within two weeks, placement was changed to her day care provider where she remained throughout the proceedings. Both parents supported the change of placement because there was a great deal of conflict between the extended family members on both sides.
At the six-month review hearing in November 2007, the Department reported that mother had missed therapy appointments and scheduled visits with B.W. Despite graduating from a parenting class in October 2007, she did not demonstrate positive parenting skills. She no longer had a job and relied on her mother and grandmother for financial support and housing. Father had completed a parenting class and demonstrated positive parenting skills. However, father lost a full-time job, was working only part-time, and was receiving financial support from his family. The court extended reunification services to both parents for an additional six months.
At an interim hearing on February 5, 2008, the Department reported that father had stopped going to a batterer's treatment program because he had no transportation, even though the Department offered bus tickets and assistance with ridesharing. He was reported to be drinking excessively and was evicted from his apartment for failing to pay rent. The social worker reported that both parents "do not seem to have developed any insight into their behaviors that brought them to the attention of the Juvenile Court." The parents were once again living together and had not made progress with domestic violence counseling or other areas of their case plans.
In a report prepared for the 12-month review hearing dated April 29, 2008, the Department recommended termination of family reunification services. Mother had started school in February 2008, and had improved in keeping appointments with her domestic violence and therapy counselors. Father had begun a new job in April 2008 and had completed 33 counseling sessions. However, he was reported to have difficulty accepting responsibility and showed no progress in choosing healthy relationships. Both parents were authorized to have several supervised visits per week with B.W., but they chose to visit only on Sundays. The visits remained supervised due to the parents' involvement with law enforcement on two occasions within the prior six months.
Both parents expressed a desire to have B.W. returned to his/her custody, but neither demonstrated emotional stability or maturity. They failed to focus on their daughter's needs or demonstrate that they could meet her needs. Neither parent was complying with case plan requirements despite repeated notification by the Department that continued noncompliance would result in discontinuance of services. Both parents were reported to be living unhealthy lifestyles, including staying out late, sleeping most of the day, and having a three-way sexual relationship with a minor, resulting in criminal charges against them. Father was discharged from therapy in April 2008 due to a significant number of absences. Mother quit school and began working full-time at a warehouse. Father completed a 52-week batterer's program required by his probation and was working on completing a community service program. The public health nurse reported "an obvious attachment with nurturing potential between both parents and [B.W.]; however, neither parent seems to have the energy and commitment necessary to responsibly raise a toddler with normal needs." In July 2008, father was arrested once again for domestic violence and, a short time later, was arrested for theft and burglary.
At the contested 12-month review hearing on August 5, 2008, the social worker and mother testified. The social worker said that neither parent had made any substantial progress since inception of the case. Both parents would begin to comply with case plan requirements just before their monthly meetings with the Department and then discontinue compliance until the next meeting. Mother stated she was planning on moving to Bakersfield following the hearing. Father, who was in custody, submitted without contest. The court found by clear and convincing evidence that there was a substantial risk to B.W. if she were placed with either mother or father. The court stated that father's actions demonstrated "a total lack of understanding of what it means to be a mature, responsible adult or a parent in this society.... [¶] [There is] no evidence before me that you have made any significant effort to comply with your case plan. In fact, the evidence would demonstrate that you have gone 180 degrees away from where you are supposed to go." Reunification services were terminated for both parents and a section 366.26 hearing was scheduled for December 2008.
Mother filed a section 388 motion, requesting that the court modify its order terminating reunification services and requesting that B.W. be returned to her care. Father also filed a section 388 motion, requesting that B.W. be placed in his care. A de facto parent request was filed by B.W.'s paternal grandparents. The section 366.26 hearing was rescheduled to January 22, 2009, to be heard with the modification motions.
In its report for the hearing and responses to the modification motions, the Department reported that B.W. was bonded with her foster parents and they wanted to adopt her. Although mother and father had made recent progress toward more responsible and positive lifestyles, neither had the skills necessary to parent B.W. successfully. Father recently had impregnated another woman, had infrequent contact with B.W., had not shown up for most of his appointments with the public health nurse to assess his parenting ability, and had not complied with his case plan. Mother and B.W. enjoyed their visits, but mother did not have a stable income or housing. The Department believed that placing B.W. with either mother or father would be detrimental to her.
At the hearing, father presented proof that he had completed a batterer's program. He also submitted a bonding study dated January 16, 2009. The doctor who prepared the study stated that, during a 1-1/2 hour visit with B.W., interaction between father and daughter was playful and appropriate. The doctor noted that there appeared to be attachment and bonding. He cautioned however, that "the weight of the attachment may not be enough to nourish and keep [B.W.] safe because of [father's] underlying and untreated trauma experiences that historically have erupted in anger and violence." The paternal grandmother and grandfather testified that father and B.W. had an "extremely close" relationship and that father was capable of caring for and meeting B.W.'s needs with "a little more time... five, six months, max." Statements from three other witnesses were submitted stating that father had made a dramatic change in behavior recently and that B.W. should be returned to him. Father testified that he loved B.W., acknowledged that he had made mistakes, and that he was ready for B.W. to be placed with him, although he wished he "had a little more time."
Mother testified that she loved B.W. and wanted her daughter to be placed with her. She said that B.W.'s current placement with the prospective adoptive parents was the best placement if B.W. could not be placed with her, but she preferred guardianship over adoption.
After the hearing, the juvenile court found that neither parent was able to give B.W. a consistent and stable environment and that B.W.'s best interests would be met by adoption by her foster parents. The court noted that the Department had given the parents a great many services and services had been extended beyond the usual time line. The court concluded: "Unfortunately, sometimes that time line is not long enough for parents, and the Legislature has said that it's long enough for kids. And there's no way to reconcile in this case what the parents need and what [B.W.] needs." The court denied the motions for modification, terminated parental rights and ordered adoption as the permanent plan for B.W.
Indian Child Welfare Act (ICWA) Notice
At the beginning of the proceedings, mother claimed Indian heritage with the Muscogee Creek Tribe and father claimed Crow, Shawnee, and Blackfoot heritage. The Department mailed JV-135 notices to 10 tribes as well as the Bureau of Indian Affairs. The tribes all received the notices on or before March 20, 2007, as indicated on the return receipts filed with the court.
The notices gave full names, dates, places of birth for relatives on both sides, through the great grandparents. The addresses for maternal and paternal grandparents and great grandparents were listed as unknown.
Seven of the 10 tribes responded in March, April or May. All stated that B.W. was not a member or eligible for membership in the respective tribe. On May 22, 2007, the responses were submitted to the court. All counsel were present and stipulated that the notices complied with ICWA. The court made a finding of compliance with ICWA. At the six-month review hearing, the court found that at least 60 days had passed with no further information from the tribes and that ICWA did not apply. The remaining three tribes did not respond until after the court had terminated parental rights. They submitted responses in late May and June 2009 stating that B.W. was not a member or eligible for membership in the respective tribe.
We granted the Department's request to augment the record and took judicial notice of the responses from the three tribes. (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 866.)
DISCUSSION
Modification Petitions
Mother and father filed separate section 388 petitions. Each parent sought sole custody of the child. Mother also sought additional reunification services.
Under section 388, a juvenile court is authorized to modify a prior order if a parent shows a change of circumstances or new evidence and establishes that modification is in the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Eric E. (2006) 137 Cal.App.4th 252, 260.) The court has broad discretion in resolving a petition to modify a prior order. Its determination will not be disturbed on appeal unless an abuse of discretion is clearly shown. (Stephanie M., supra, at p. 318.) "It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)
In determining the best interests of the child, the juvenile court considers the reason for the dependency, the reason the problem was not overcome, the strength of the parent-child and child-caretaker bonds, the length of time the child has been a dependent, the nature of the change of circumstance, the ease by which the change could be achieved, and the reason it was not made sooner. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446-447.)
Mother and father assert that they love B.W. and have made recent improvements in case plan compliance. Even assuming such short-term compliance constituted a change in circumstances, neither parent demonstrated that a change of custody would promote B.W.'s best interests. Rather, the evidence showed that both parents' compliance with their case plan was limited to short periods of time just before court hearings. There was no evidence that mother's mental health issues or father's anger issues had been resolved. In the opinion of the social workers, both parents continued to exhibit a lack of maturity and inability to assume responsibility for others. B.W. had been in the care of her foster parents for more than half her life and was doing well in that placement. The court did not abuse its discretion in denying the petitions because the parents have not met their burden of showing that a change of placement would be in B.W.'s best interests.
Parental Relationship Exception to Termination of Parental Rights
We review an order terminating parental rights and ordering adoption under the substantial evidence test. The substantial evidence standard of review does not permit us to reweigh the evidence or substitute our judgment for that of the juvenile court. (In re Jasmon O. (1994) 8 Cal.4th 398, 423.)
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.)
This rule is subject to five statutory exceptions. Mother and father contend the exception providing that parental rights need not be terminated if to do so would be detrimental to the child is applicable to them. Section 366.26, subdivision (c)(1)(B)(i) states that parental rights shall not be terminated if "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."
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 his or her burden of proof, a parent must show more than frequent and loving contact or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 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.) The parent must show he or 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. (Jasmine D., supra, at p. 1350.)
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.)
The Department asserts the issue has been waived by failure to raise it in the trial court. We disagree. The record discloses that the parties and the trial court discussed the factors to be considered in applying the beneficial parent exception and the court made a finding that B.W.'s best interests would not be served by returning her to the custody of either parent. Therefore, we reach the merits of the contention.
Mother and father testified that they loved B.W. and wanted custody of her. While both parents belatedly began to show improvement in complying with their case plans and they visited with and loved B.W., neither provided evidence that their relationship with B.W. was significantly beneficial to outweigh the benefits of adoption. Frequent and loving contact with a child in these circumstances is insufficient to meet the requirements of the exception. (In re Beatrice M., supra, 29 Cal.App.4th at p. 1419.) Neither parent provided evidence that the strength of their relationship with B.W. outweighed the sense of belonging she would receive from a stable home. (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) As in this case, "if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan." (Ibid.)
Substantial evidence supports the juvenile court's finding that adoption by their foster parents is in the best interests of the children. (See, e.g., In re Zachary G. (1999) 77 Cal.App.4th 799, 811 ["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"].)
ICWA
We review ICWA compliance under the harmless error standard. (See, e.g., In re E.W. (2009) 170 Cal.App.4th 396, 402-403 [where notice has been received by the tribe, errors and omissions are reviewed under the harmless error standard].) Notice is sufficient if there was substantial compliance with ICWA. (In re Christopher I. (2003) 106 Cal.App.4th 533, 566.)
Father contends the order terminating parental rights must be reversed because the Department and court failed to comply with the notice requirements of ICWA. Father asserts that the notices did not contain all the information available to the Department, including information which could have been obtained from father's
relatives. He also asserts ICWA was violated because the court terminated parental rights before receiving responses from three of the tribes and the notice to the Crow tribe was sent to the wrong post office box.
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.) For purposes of ICWA, an "Indian child" is one who is either a "member of an Indian tribe" or is "eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C. § 1903(4).) 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. (In re Desiree F. (2000) 83 Cal.App.4th 460, 469-470.)
The object of tribal notice is to enable a review of tribal records to ascertain a child's status under ICWA. (In re D.T. (2003) 113 Cal.App.4th 1449, 1455.) The notices "must contain enough information to be meaningful. [Citation.] The notice must include: if known, (1) the Indian child's name, birthplace, and birth date; (2) the name of the tribe in which the Indian child is enrolled or may be eligible for enrollment; (3) names and addresses of the child's parents, grandparents, great grandparents, and other identifying information; and (4) a copy of the dependency petition." (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.) "It is essential to provide the Indian tribe with all available information about the child's ancestors, especially the one with the alleged Indian heritage. [Citation.] Notice... must include available information about the maternal and paternal grandparents and great-grandparents, including maiden, married and former names or aliases; birthdates; place of birth and death; current and former addresses; tribal enrollment numbers; and other identifying data." (Ibid.; In re C.D. (2003) 110 Cal.App.4th 214, 224-225.)
The Department gave notice to the tribes identified by mother and father and provided information concerning B.W.'s parents, grandparents, and great grandparents, except for the addresses of the grandparents and great grandparents. Even assuming that information could have been obtained from B.W.'s relatives, father fails to explain how the missing information could have made a difference in determining B.W.'s status as an Indian child. The tribes were given the names of all B.W.'s relatives required to determine Indian ancestry. All the tribes responded to the notice. None requested any additional information. The significance of the omitted information is not apparent. "The failure to comply with the notice requirements of the ICWA constitutes prejudicial error unless the tribe has participated in or indicated no interest in the proceedings." (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1265.) We are satisfied that the tribes were provided with sufficient information to determine whether B.W. had Indian ancestry.
Similarly, the error in sending notice to the Crow tribe at the wrong post office box was harmless. The record shows the Crow tribe actually received the notice and responded to it. (See Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784 [notice sent to wrong address harmless error if evidence shows tribe actually received notice].)
Father's assertion that the juvenile court failed to conduct a proper review of the ICWA notices and failed to make the findings required by ICWA is belied by the record. On May 22, 2007, the notices were submitted to the court. All counsel were present and stipulated that the notices complied with ICWA. The court made a finding of compliance with ICWA. At the six-month review hearing, the court found that at least 60 days had passed with no further information from the tribes and that ICWA did not apply. The remaining three tribes did not respond until after the court had terminated parental rights. However, the court did not err in making its finding that ICWA did not apply prior to receiving those responses because the finding was made more than 60 days after the notices were received. (See § 224.3, subd. (e)(3); In re N.M. (2008) 161 Cal.App.4th 253, 266.)
The orders are affirmed.
We concur: GILBERT, P.J., YEGAN, J.