Opinion
NOT TO BE PUBLISHED
Superior Court County Super. Ct. No. J-1175084 of Santa Barbara Arthur A. Garcia, Judge
Anne E. Fragasso for Defendant and Appellant Jennifer E.
Maureen L. Keaney for Defendant and Appellant Christopher D.
Stephen Shane Stark, County Counsel, Toni Lorien, Deputy, for Plaintiff and Respondent.
PERREN, J.
Jennifer E. (mother) and Christopher D. (father) appeal from an order of the juvenile court terminating parental rights and declaring their child adoptable. (Welf. & Inst. Code, § 366.26, subd. (c)(1).) We affirm.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL HISTORY
On May 4, 2006, respondent Santa Barbara County Child Welfare Services (CWS) detained five-month-old Christopher D. (Christopher) after the Santa Maria Police Department performed a parole violation search of the child's home. They found mother smoking marijuana in the garage. The home was filthy and filled with garbage. Christopher was left unattended in an infant seat in the living room, where methamphetamine pipes were found. Mother was arrested for being under the influence, and father was arrested for a parole violation and tested positive for methamphetamine.
Christopher had a bruise across the bridge of his nose, a rash on the back of his head, and extreme diaper rash. When asked about the bruise, mother said that Christopher "hits himself." The next day, mother contacted CWS and stated she did not understand why Christopher was removed. She admitted using methamphetamines and marijuana, but did not think she placed Christopher at risk as she did not use drugs in the same room as her son. CWS filed a petition alleging that the child came within the jurisdiction of the juvenile court under subdivisions (a), (b) and (g) of section 300.
At the jurisdiction hearing on June 5, 2006, both parents filed waivers of rights. According to the report filed for the hearing, mother's criminal history included exhibiting a deadly weapon and using and being under the influence of a controlled substance. The report also stated the Indian Child Welfare Act (ICWA) did not apply. The court took jurisdiction of Christopher and found the factual allegations of the petition true by a preponderance of the evidence. The court ordered a psychological evaluation for mother. Both mother and father signed form JV-130, stating they had no Indian heritage.
On June 20, 2006, CWS sent form JV-135 to the Cherokee Nation, Eastern Band of Cherokee Indians, United Keetoowah Band of Cherokee Indians and the Bureau of Indian Affairs (BIA). The form listed the names, addresses and birthdates of the mother and father. The form stated that mother had Cherokee heritage, but contained no explanation. Mother was sent a copy of the form.
A disposition hearing was held on July 3, 2006. The disposition report stated the ICWA did not apply. The report also stated that notices were sent to the BIA, Cherokee Nation, Eastern Band of Cherokee Indians and the United Keetoowah Band of Cherokee.
Both parents were offered family reunification services, and the six-month family reunification review hearing was scheduled for December 11, 2006. The case plan adopted at the disposition hearing called for two supervised visits per week between mother and Christopher. Mother's case plan required her to complete a psychological evaluation and follow all recommendations of the psychologist, including individual and family counseling, and further psychiatric and medical evaluations. She also was required to complete a substance abuse treatment program, attend NA/AA meetings, and test negative for alcohol and drug use.
Dr. Robert Richey conducted a psychological evaluation of mother. He diagnosed her with borderline personality traits, featuring chronically unstable emotions and a poor sense of identity and fears of abandonment by others. He noted that mother said she experienced significant difficulty caring for Christopher when she was using drugs. Mother admitted she neglected to change his diaper, give him baths or give him the attention he needed when she was using drugs.
Dr. Richey reviewed the case aide notes regarding visitation. A recurrent theme was that mother was often at a loss about what to do with Christopher, lacked judgment concerning clothing for him and was not receptive to feedback. The notes also stated concerns about possible drug use and manic behavior. Dr. Richey noted that the case aide's observations were inconsistent with mother's verbal reports during formal evaluation sessions and that mother usually expressed "the right things to say." He noted that a difference existed between how mother comported herself when she knew she was being evaluated compared to how she behaved in unguarded moments. The case aide reports were consistent with mother's history of inattentiveness, poor judgment, self-injurious and hypomanic behavior, mood swings and tendency to engage in high-risk behaviors.
Dr. Richey recommended that mother not be reunified with Christopher, that an additional six months of family reunification services be offered and that a further psychological evaluation be conducted if services were extended. He also recommended medication, one year of therapy, and sessions with Christopher to improve her parenting skills. He stated that drug rehabilitation should continue, that continued psychiatric services were essential and that it was critical that mother used prescribed medications to succeed in family reunification.
CWS recommended that mother's and father's reunification services be terminated at the six-month family reunification review hearing. The report stated mother's attendance at parenting classes was good and she was two classes away from graduating. However, she had missed or been late for visits 12 times between July 11 and October 24, 2006. The case aides consistently reported that mother's hygiene, judgment and sense of reality were poor. Attached to the report were letters and certified mail receipts from all the tribes contacted by CWS, stating that Christopher was not an Indian child.
Following a contested hearing set by mother, reunification services for mother and father were terminated and the matter was set for a section 366.26 hearing. The court did not make a finding regarding ICWA at that time.
At the section 366.26 hearing, mother requested a contested hearing. She was ordered to file an offer of proof that met one of the statutory exceptions to termination of parental rights. Mother's offer of proof stated that (1) she had consistently visited with Christopher and she had complied with the visitation schedule in her case plan; (2) due to the visitations, she was closely bonded with Christopher and he was closely bonded with her, and, as result of this parent-child bond, it would not be in Christopher's best interests to terminate parental rights; (3) a long-term foster care or guardianship should be implemented so that she could continue to maintain frequent visitation and contact with Christopher; and (4) such a plan was in Christopher's best interest as termination would sever the parent-child bond, which would be detrimental to him.
County counsel and Christopher's attorney argued that the offer of proof was insufficient on its face. The court agreed and ruled the offer of proof was insufficient.
According to the report prepared for the hearing, mother was scheduled to visit Christopher every Tuesday morning and on alternative Monday mornings. Since January 18, 2007, mother had been extremely late for some visits and had missed four scheduled visitations. The report stated that it was clear mother loved Christopher, but that she lacked parenting skills needed to raise him. The court terminated the parental rights of mother and father. The court did not make a finding regarding ICWA.
CWS conducted an additional investigation concerning the possible Indian heritage of mother and father. CWS contacted mother's maternal great-aunt who provided information on Christopher's grandparents and great-grandparents. She reported that Gladys Holmes, Christopher's great-great grandmother, may have been Indian, but she was unaware of any specific Indian heritage. Mother's sister reported there may be tribal affiliation with the Cherokee.
Father was contacted, and he reported that there may be Indian heritage through his great-grandmother, Juanita Rolin, who is deceased. CWS contacted father's sister who could have had additional information, but she did not return the social worker's telephone calls.
Following receipt of this information, CWS notified the three Cherokee tribes previously contacted and the BIA. All three tribes again responded that Christopher was not an Indian child within the ICWA. The BIA response stated that the notice of hearing sent by CWS did not require a response as CWS had already provided notice to the tribes. At the interim review hearing on October 18, 2007, the juvenile court found that the ICWA did not apply.
It is unclear why the BIA indicated the JV-135 form sent to the BIA was not an ICWA notice, as the JV-135 form is the notice mandated by the Judicial Council.
On appeal, mother argues the juvenile court abused its discretion and violated her constitutional rights by refusing to grant her a contested hearing on whether the parental rights exception applied. She also argues violation of the ICWA based on her purported Cherokee heritage. Father appeals only the issue of ICWA compliance. With respect to the termination of parental rights, he argues that if the court reverses the order terminating mother's parental rights, the order as to father also must be reversed.
DISCUSSION
Indian Child Welfare Act
The 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.) "The ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource." (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) 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.
The duty to provide notice under the ICWA arises when "the court knows or has reason to know that an Indian child is involved." (25 U.S.C. § 1912(a).) For purposes of the 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).)
Section 224.3, subdivision (b) provides in part: "The circumstances that may provide reason to know the child is an Indian child include, but are not limited to, the following: [¶] (1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the child's extended family provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child's biological parents, grandparents, or great-grandparents are or were a member of a tribe."
Courts have held repeatedly that only a hint or suggestion of Indian ancestry is required to trigger the ICWA notice requirements. (See In re Miguel E. (2004) 120 Cal.App.4th 521, 549 ["'The determination of a child's Indian status is up to the tribe; therefore, the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement'"]; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1408.) In In re Antoinette S., for example, the court held that the father's statement that he believed his deceased maternal grandparents might have had Indian ancestry, without identifying a tribe or the birthdates, birthplaces, tribal affiliations, or enrollment statuses of the deceased maternal grandparents, was sufficient to trigger the ICWA notice requirements. (Id. at pp. 1405-1408.) As the court explained in Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 257, "We agree that '[t]o maintain stability in placements of children in juvenile proceedings, it is preferable to err on the side of giving notice and examining thoroughly whether the juvenile is an Indian child.'"
Once the ICWA notice provisions are triggered, notice must be sent to the Indian child's tribe and, if the tribe is unknown, to the BIA. (25 U.S.C. § 1912(a).) The BIA and the tribe have the right to determine whether a child is an Indian child. (In re Junious M. (1983) 144 Cal.App.3d 786, 794.)
CWS notified three Cherokee tribes and the BIA on two occasions. Both times, the tribes responded that Christopher was not an Indian child within the meaning of the ICWA. Accordingly, we conclude both the court and CWS met the duty of inquiry under the ICWA. (See In re Aaliyah G. (2003) 109 Cal.App.4th 939, 942-943 [in the absence of any evidence supporting a reasonable inference child might have Indian heritage, no requirement to make further or additional inquiries].)
Termination of Parental Rights
This court reviews the findings of the juvenile court under the substantial evidence test. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) This standard does not permit the court to reweigh the evidence or substitute our judgment for that of the juvenile court. (Rodney F. v. Karen M. (1998) 61 Cal.App.4th 233, 241.)
Mother asserts the trial court erred in refusing her request for a contested 366.26 hearing. She asserts her offer of proof established the "parental benefit" (sometimes called the "beneficial relationship") exception in section 366.26, subdivision (c)(1)(B)(i). The section provides 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." (Ibid.) 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 her burden of proof, a mother must show more than frequent and loving contact or pleasant visits. (In re Derek W., supra, 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. (1994) 27 Cal.App.4th 567, 575.) The mother must show 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. (In re Jasmine D., supra, 78 Cal.App.4th 1339, 1350.)
Mother's offer of proof showed no more than she regularly visited Christopher and that a parent-child bond existed between them. The remainder of the offer of proof consisted of legal conclusions that it would not be in Christopher's best interests to terminate parental rights, and that long-term foster care or guardianship was in Christopher's best interest as termination would sever the parent-child bond which would be detrimental to him. This showing is insufficient. 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 567, 575.)
Christopher was removed from his mother's care when he was five months old. Since that time, he has resided in foster care with a family who wants to adopt him. The foster parents occupy the parental role by providing day-to-day care. Mother's visits did not rise to the level of a parental relationship. Mother submitted no evidence that Christopher would be harmed if parental ties were severed.
Substantial evidence supports the juvenile court's finding that Christopher would not be greatly harmed if the bond he and mother shared was severed. The court acted properly by terminating mother's parental rights because she did not establish that her relationship with Christopher satisfies his "need for a parent." (In re Jasmine D., supra, 78 Cal.App.4th 1339, 1350.)
The order of the juvenile court is affirmed.
We concur: GILBERT, P.J., YEGAN, J.