Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Jan Levine, Judge, Los Angeles County Super. Ct. No. CK15993
Marissa Coffey, under appointment by the Court of Appeal, for Defendants and Appellants.
No appearance for Respondent.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, for Plaintiff and Respondent.
CROSKEY, Acting P. J.
In this dependency case (Welf. & Inst. Code, § 300 et seq.), the parents of dependent minor child Darnell M., Jr. (Darnell), have filed appeals from an order that terminated their parental rights. The parents are Vera C., the mother of Darnell (Mother), and Darnell M., Sr., the minor’s father (Father). The parents contend the trial court committed reversible error by failing to comply with the requirements of the Indian Child Welfare Act (the ICWA, 25 U.S.C. § 1901 et seq.). Additionally, Father contends he was denied substantive due process. He asserts he was improperly denied visitation with the minor child, which he contends resulted in preventing him from claiming a “parental relationship” exception to the Legislative mandate that his parental rights be terminated (§ 366.26, subd. (c)(1)(A)).
Unless otherwise indicated, all references herein to statutes are to the Welfare and Institutions Code.
The respondent in this appeal, the Los Angeles County Department of Children and Family Services (the Department) concedes that the notice requirements of the ICWA were not complied with. The Department argues that the case should be remanded for the limited purpose of compliance with such requirements. We agree. Like the Department, we do not find a denial of Father’s due process rights concerning visitation with Darnell. Therefore, the order terminating the parents’ parental rights will be reversed and the cause remanded solely for compliance with the ICWA notice requirements and opportunity for an Indian Tribe, if any, to intervene in this matter in the dependency court or obtain jurisdiction over the proceedings by transfer to a tribal court. If after the ICWA notice requirements have been met and there is no such intervention or transfer to a tribal court, the order terminating the parental rights should be reinstated.
BACKGROUND OF THE CASE
This is the second time this case has been before us. By unpublished opinion filed on August 1, 2006, in appellate case B190616, we denied Father’s petition for extraordinary writ relief from an April 21, 2006 section 366.21, subdivision (e) six-month review order that (1) denied him a contested review hearing, (2) terminated his reunification services and (3) set a section 366.26 hearing for August 22, 2006. In making its review order, the trial court ruled that Father, who was incarcerated on a drug conviction and not due to be released until January 2007, would not be able to reunite with Darnell within six months and would thus not be eligible for further reunification services. As noted in our earlier opinion, Mother’s whereabouts were unknown at the time, she had not had contact with the Department since early in the case, and neither she nor Father had visited with Darnell. Also, Father had not begun any of his case plan (parenting classes, drug counseling and random drug testing).
At the request of the Department, we have taken judicial notice of our opinion and the appellate record for Father’s petition for extraordinary writ. For that reason, our statement, in this current opinion, of the background of this case mostly addresses proceedings that occurred after Father filed his petition.
The Department’s report for the originally scheduled section 366.26 hearing on August 22, 2006 shows that Darnell had been living with preadoptive parents for six months and was thriving in their home. The report states he was bonded to them and they to him, and he was likely to be adopted. According to the report, Mother’s whereabouts remained unknown, and Father continued to be incarcerated. The section 366.26 hearing was continued to December 11, 2006 because of problems with notice to Mother and for statewide removal or proper waiver for Father.
In the meantime, another six-month review hearing was scheduled for October 26, 2006. The Department’s report for the hearing states that both Mother and Father were incarcerated. The minor continued to do well in his preadopt home and the prospective adoptive parents indicated they wished the adoption process to be finalized. The Department’s case plan update states that Father had not as yet complied with the parenting classes and drug counseling case plan that the court ordered in September 2005 even though drug awareness classes were available where he was incarcerated. Nevertheless, Father told the social worker he was trying to get his life together prior to his release in 2007. Father appeared at the October 26, 2006 review hearing. The court found that a permanent plan of adoption by the preadoptive parents was appropriate and it set a date for April 19, 2007 for a review of the plan.
Then, on December 7, 2006, four days before the scheduled section 366.26 hearing, Father filed a section 388 petition seeking to modify the April 21, 2006 order that terminated his reunification services. Father sought a reinstatement of reunification services for a minimum of six months, frequent and liberal visitation with Darnell that would eventually lead to returning Darnell to Father, and placement of the minor with parental family members if any wished to adopt the child. Included with the petition are certificates from Rio Salinas Adult School stating that Father completed coursework in a parent education program on July 3, 2006, completed work in a television mini-course entitled “Moyers on Addiction,’ on August 8, 2006, and completed work in a television mini-course on “The Importance of Fatherhood” on July 28, 2006.
Father was present at the section 366.26 hearing on December 11, 2006. Mother had previously waived her appearance for the hearing. In lieu of a regular section 366.26 report, the social worker submitted a two-page last minute information for the court. The court continued the section 366.26 hearing to January 23, 2007 for preparation of a full report, and also set the hearing on Father’s section 388 petition for January 23.
The Department’s report for the January 23, 2007 combined section 366.26 and section 388 hearings states Darnell was continuing to thrive in the home of the preadoptive parents, who at that point had been caring for Darnell for 10 months, and they continued to meet Darnell’s needs and are attached to him and to his baby brother, Mark. Mark had been placed with them prior to the October 26, 2006 review hearing and they were pursuing adopting him. The home study for Darnell was completed and approved, but the adoption was put on hold due to Father’s filing the section 388 petition. Due to a change in social worker personnel on the case, the Department requested a continuance.
Father appeared at the January 23, 2007 hearing. The Department stated Mother signed a waiver of her appearance. The court granted the Department a continuance on Father’s section 388 petition to February 20, 2007, and a continuance on the section 366.26 hearing to April 19, 2007. Father was out of prison and his attorney stated he wished to have visitation with Darnell three times a week and the Department to facilitate the visitation. Both the Department and the minor’s attorneys objected to such liberal visitation since the child was not familiar with Father. The court ordered the Department to facilitate visitation for Father but did not order three visits a week for him.
The Department’s report for the February 20, 2007 section 388 hearing references the certificates of completion previously submitted by Father regarding parenting and drug addiction programs, and notes that Father had not fully completed the case plan that the court ordered for him since he had not submitted to random drug testing. He had also not completed a drug rehabilitation program. Father was scheduled to have a visit with Darnell on February 15, 2007 at the Department’s Compton office but the day before the scheduled visit Father’s brother contacted the social worker and stated that Father had been transferred from one parole living facility to another, and due to his being transferred, he was on a 30-day restriction and could not leave the new facility and thus could not visit with Darnell. The social worker contacted Father who reported that he was transferred to the new facility because he had come in late one night at the old facility. The social worker contacted the old facility and was told that Father was AWOL from that facility, he was not transferred from that facility, and he had enrolled himself at the new facility because he did not want to face the consequences of being AWOL at the old one.
At the February 20, 2007 hearing on Father’s section 388 petition, Father appeared but Mother did not. Both the Department and Darnell’s attorney argued that Father had shown no change of circumstances, Darnell had been in his preadoptive placement for nearly 11 months, the minor and his preadoptive parents are bonded, the preadoptive parents want the adoption to proceed, and there was no showing that termination of the adoption plan and resumption of reunification services would be in the minor’s best interest. The court denied Father’s section 388 petition on the grounds it was not supported by a change of circumstances and not in the minor’s best interest.
The Department’s report for the April 19, 2007 section 366.26 hearing states Father contacted the social worker on March 20, 2007 stating his restriction had ended and he wished to visit with Darnell. By that time Mother had been released from her incarceration and a visit was scheduled for both of them for March 23. Mother also visited with her son Mark. The children were responsive to the parents and the visits went well. Mother and Father had a monitored visit with Darnell on March 30 and although he cried for the first ten minutes, he settled down and played with the parents and the rest of the visit went well. The parents had another monitored visit with Darnell on April 6 and again he cried for the first ten minutes. He also stated he wanted to go home. However, he settled down and played with the parents and they attended to his needs. There was another monitored visit with Darnell for the parents on April 13. The minor did not warm up to Father for about 15 minutes. Darnell cried and stated he wanted his daddy (the preadoptive father). Later, Darnell began to play, the parents took pictures of him, and overall the visit went well.
At the section 366.26 hearing on April 19, 2007, Mother and Father were both present and were both called as witnesses on their own behalf. Father acknowledged that Darnell has never lived with him. He stated he was incarcerated for most of Darnell’s life and after his release and the January 2007 court appearance he did not visit Darnell because he was waiting for his attorney and the social worker to set up visits. He acknowledged that the first time he visited Darnell was several weeks before the April 19, 2007 hearing. He stated each of his four visits with the minor was an hour long. During the first visit, Father and Darnell sat on the floor and played, counted and talked. Father also chased the minor around the room. Father stated Darnell seemed “a little discontent[ed]” during their last visit. Father and Darnell hug each other during their visits and they play with toys. Father stated he does not impose on Darnell by telling the child that he is his father. Rather, he tells the minor that his name is Darnell too. Asked if whether, during the time the case was pending, he had any contacts to inquire about Darnell’s well being, Father stated he would periodically speak with a certain social worker. The person he named received the case on January 17, 2007 when the prior social worker went on medical leave. He stated the only time he sees Darnell’s care givers is when they bring the minor to visits and pick him up. He stated he loves Darnell very much. Asked about their degree of bonding, Father stated the minor has fun when they are together and doesn’t cry. Father stated that if his parental rights are terminated he would nevertheless like to continue having contact with Darnell.
The April 19, 2007 went over to April 20, 2007 to finish the presentation of evidence, and on that latter day the trial court terminated the parents’ parental rights. The parents also each filed a notice of appeal on that day.
DISCUSSION
1. The Requirements of the ICWA Were Not Met
a. ICWA Inquiries and Notices in the Case
The Department’s initial (detention) report states Mother reported no Native American heritage and because the social worker had not been able to speak with Father and ask him about his heritage, the ICWA might or might not apply in this case. At the July 11, 2005 detention hearing, at which Father was found to be the presumed father of Darnell, Father stated the minor’s paternal grandmother has Native American heritage but he did not know what Tribe. The Department was ordered to give notice to the Bureau of Indian Affairs (BIA) that Darnell might be an Indian child.
In her opening brief on appeal, Mother states she informed her appellate attorney that she has Native American heritage and she does not recall the social worker asking her about her heritage.
The Department’s report for the August 2, 2005 pretrial resolution conference states that the ICWA “does or may apply.” At that hearing, the Department’s attorney noted that the court’s file contained no ICWA notices. The court again ordered notices sent to the BIA, and set an order to show cause for August 22, 2005 regarding such notices. The minute order for the August 22, 2005 order to show cause simply states that “receipts are received.” The appellate record, including the corrected record as requested by the parents’ respective appellate attorneys, shows that delivery of the notice by certified mail to the BIA in Sacramento for the August 2, 2005 hearing did not occur until August 4, 2005, and delivery of the certified mail to the BIA in Sacramento for the August 22, 2005 hearing occurred on August 22, 2005. There is no evidence of delivery to the BIA in Washington D.C. of notices for the hearings. Moreover, the only information supplied to the BIA on either of the hearing notices was (1) the parents’ names and addresses, and (2) the name of the paternal grandmother, which was only indicated on the notice for the August 2, 2005 hearing. However, Father’s attorney indicated to the court at Father’s July 11, 2005 detention hearing that the attorney had given the paternal grandmother’s address and telephone number to the Department’s court officer. Therefore the Department could have contacted the paternal grandmother for information.
At the September 19, 2005 hearing (adjudication and disposition as to Mother, disposition as to Father), the court received the notices to the BIA for the August 22, 2005 hearing, and found that the ICWA does not apply to this case. Thereafter, all of the Department’s reports stated the ICWA does not apply to the case.
b. Analysis of the ICWA Issue
The Department concedes that the ICWA was not complied with. The trial court did not make inquiry of Mother at her first appearance (or any of her appearances) as to whether Darnell may be an Indian child. (Cal. Rules of Court, rule 5.664 (d).) Further, it is the responsibility of the trial court to determine whether ICWA notice is proper and whether responses to the notices indicate that proceeding under the ICWA is required. (In re Nikki R. (2003) 106 Cal.App.4th 844, 852.) The trial court did not meet that responsibility.
It is clear that the notices the Department sent to the BIA were inadequate. The notices themselves had little information that could be used by the BIA to determine the status of Darnell’s Native American heritage even though the paternal grandmother was available to interview for such information. The Post Office mail documents submitted to the court were not complete and there was no proof that all of the documents reached the BIA in Washington D.C.
Moreover, with the exception of the detention hearing, dependency proceedings may not be held until at least ten days after receipt of notice by the BIA and/or others entitled to notice. (25 U.S.C. § 1912 (a); § 224.2; Cal. Rules of Court, rule 5.664.) Subdivision (b) of section 224.2 specifically states that when there is reason to believe that a child in a dependency case may be an Indian child, notice must be sent for every hearing unless and until it is determined, in accordance with section 224.3, that the ICWA does not apply to the case. Here, none of those provisions were complied with. Additionally, the test for removing a child from the parents’ physical custody is different for an Indian child. (25 U.S.C. § 1912 (e); § 361, subd. (c).)
The remedy for this defective ICWA notice is reversal of the order terminating the parental rights and remanding the case for timely compliance with the ICWA and relevant portions of the Welfare and Institutions Code and the California Rules of Court. (In re Nikki R., supra, 106 Cal.App.4th at p. 850.)
2. Father Was Not Improperly Denied Visitation Rights
Adoption is the Legislature’s first choice for a permanent plan for a dependent child because it is more secure and permanent than a legal guardianship or long term foster care. (In re Celine R. (2003) 31 Cal.4th 45, 53.) Section 366.26, subdivision (c) provides that when a court finds by clear and convincing evidence that it is likely a dependent child will be adopted, the court shall terminate parental rights and order the child placed for adoption. A finding that the child continued to be removed from the custody of the parents and reunification services were terminated “shall constitute a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the . . . circumstances [set out in subdivision (c) (1) (A) through (F) of section 366.26].” It is a parent’s burden to prove that one or more of the (c)(1) exceptions to termination of parental rights applies to his or her child. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) When a parent claims one or more of the exceptions in subdivision (c)(1), the claim must be examined in light of the Legislature’s preference for adoption, and only in exceptional circumstances will the court choose a permanent plan other than adoption. (In re Celine R., supra, 31 Cal.4th at p. 53.)
Here, Father contends his visitation rights were thwarted and therefore he was unable to establish the only viable defense he would have to termination of his parental rights—the “parental relationship” exception to termination of those rights. That exception applies when a parent has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A).) To establish the applicability of that exception, a parent must show more than “ ‘frequent and loving contact’ [citation], an emotional bond with the child, or that the parents and child find their visits pleasant. [Citation.]. Rather, the parents must show that they occupy ‘a parental role’ in the child’s life. [Citation.]” In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) The parental relationship exception to termination of parental rights has been interpreted to mean that “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 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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) It has been noted, however, that the evidence of a child’s relationship with a parent should be considered in the context of the amount of visitation a parent has been permitted to have. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538.)
Father contends that even though throughout the proceedings there was a court order for visitation with the minor, the Department continually failed to facilitate such visitation. However, the record does not support his contention.
The record shows that Father appeared at July 11, 2005 detention hearing in custody. He had been arrested on May 21, 2005, two days before Darnell was born. Father’s adult daughter told the social worker Father was arrested for a parole violation. The Department was ordered to provide the parents with low/no cost referrals for reunification services, including drug counseling, random drug testing, parenting classes and individual counseling. The court ordered monitored visitation for the parents with a Department-approved monitor and gave the Department discretion to liberalize the visitation. Father was also in custody when he appeared at the pretrial resolution conference hearing on August 2, 2005 and his adjudication hearing on August 22, 2005. However when he appeared at the September 19, 2005 disposition hearing he was not in custody at that time. The visitation order was modified and Father was to have monitored visits a minimum of twice a week. The Department given discretion to liberalize his visitation and was ordered to provide him with transportation funds. The court admonished Father that because Darnell was an infant at that time, Father would be given six months of reunification services. Father was on parole at that time.
By mid-March 2006 when the social worker signed the Department’s report for the April 2006 six-month review hearing, Father was again in custody. He was incarcerated in Lancaster, California on a crack cocaine conviction and he was not due to be released until January 9, 2007. He appeared at that April 2006 hearing. He had never visited with Darnell. Given Darnell’s age and the court’s finding that Father had not complied with his case plan, and given the lack of a substantial probability that Darnell would be returned to Father within six months (since Father would still be incarcerated in six months), Father’s family reunification services were terminated and the Department was ordered to provide Father with permanent placement services. The court found the Department had complied with the case plan by making reasonable efforts to facilitate the return of Darnell to his parents. At the October 26, 2006 review hearing, Father again appeared in custody. He had been moved to a correctional facility in Soledad, California. Permanent placement services for him were again ordered and the court again found the Department had made reasonable efforts to return the minor to his parents.
The record shows that when Father appeared at the January 23, 2007 section 388 petition and section 366.26 hearing (which were both continued to later dates), he had been released from incarceration that month and was on parole. The court ordered the Department to arrange monitored visits for him. Although a visit was arranged for February 15, 2007, Father cancelled it due to his being on a 30-day restriction at his parole residence which was caused by his being AWOL from another parole residence. When his 30-day restriction at his new parole residence was up, Father contacted the social worker on March 20, 2007, stating his restriction had ended and he wished to visit with Darnell. A visit was scheduled for him for March 23 and he had an additional three visits with Darnell thereafter. Thus, when he appeared for the section 366.26 hearings on April 19 and 20, 2007, he had participated in a total of four visits with Darnell.
In summary, Father was incarcerated beginning two days before Darnell was born on May 23, 2005, and his first out-of-custody appearance in court was on September 19, 2005. On September 19, the court modified its July 2005 visitation order (monitored visitation), and ordered that Father would have a minimum of two monitored visits a week. By mid-March 2006, Father was again in custody and was not due to be released until early January 2007. After his release, he visited with Darnell a total of four times prior to the hearing on April 20, 2007 at which his parental rights were terminated. Thus, he had a total of four visits with Darnell between the day the child was born and the day his parental rights were terminated.
Father argues there is no evidence in the record that the Department gave him any assistance in arranging visits or contacts between himself and Darnell when he was incarcerated even though there was an order for monitored visits during the periods of incarceration. From that argument, Father jumps to the conclusion that the Department denied him visits during his periods of incarceration and thus failed to enforce the visitation orders. He further concludes he was thus improperly denied the ability to maintain regular contacts and visits with Darnell and the result was that he was unable to demonstrate that he comes within the section 366.26, subdivision (c) (1) (A) parental relationship exception to termination of parental rights. Like the Department, we find no merit to this argument.
First, Father does not cite to evidence showing that he requested, but was denied, help from the Department social worker in setting up and facilitating visits (and/or telephone calls) between himself and Darnell either during his two periods of incarceration or the period of time between them. Indeed, when asked during his testimony at the section 366.26 hearing on April 19, 2006 why it was not until approximately a month before that hearing that he had any visits with the minor, Father did not state it was because the social worker had not helped him have visits. Instead, he stated three times it was because he had been incarcerated. Then he stated it was because his attorney had not set up any visits. Then he stated it was because he was “not advised of a date or nothing or the social worker never asked me nothing about it.” It is clear to us that Father was not asserting that he had indicated to the Department that he desired visitation with Darnell and had been put off or rebuked by the Department. Regarding his contacts with the social worker, his testimony at the section 366.26 hearing was that he spoke with the social worker “periodically” and it was concerning Darnell’s well being.
Moreover, Father did not assert in his section 388 petition that the Department denied him assistance with visitation, nor did his attorney make such an assertion to the trial court. In fact, at the January 23, 2007 hearing, which was the first hearing after Father’s second period of incarceration ended, Father’s attorney, who was his attorney throughout the pendency of the case in the trial court, addressed the matter of visitation. She stated that Father was out of custody and “[h]e would like his visitation facilitated by the Department. He’d like to visit three times. He’s now available to do that.” We read that as a representation that Father held off visiting Darnell until he was released from custody. There was no mention that the Department had previously thwarted attempts by Father to visit with the minor or had failed to facilitate visits when asked to do so. Absent an indication by Father to the Department that he wanted to visit with Darnell or have some other type of contact with the minor and needed the social worker’s assistance, the social worker had no cause to facilitate visits or other contacts.
Whatever Father’s state of mind during the period of time between the birth of Darnell and the termination of Father’s parental rights, he cannot reasonably blame the Department for the termination when he made no effort for some 20 months to contact the social worker and inform her that he desired to exercise his visitation rights. The record shows that when the court and the Department were informed at the January 23, 2007 hearing that Father wanted to visit with Darnell, arrangements were made for visitation to begin and the first visit was scheduled for February 15. We do not see how a three-week delay between the order to facilitate visitation and the first scheduled visitation can be the cause of Father’s loss of his parental rights. Indeed, Father himself caused that very same initially scheduled visit to be cancelled and visitation delayed by his AWOL at his parole residence. Father then contacted the social worker on March 20, 2007 to say that his 30-day parole residence restriction had ended and he wanted to visit with Darnell. A visit was arranged for three days later and he visited Darnell. There is no evidence of failure to facilitate.
What the record does indicate is that Father preferred to have his relatives transport Darnell to Father’s place of incarceration. At the October 26, 2006 hearing, Father’s attorney indicated to the court that Father wanted the court to order the Department to contact Father’s mother and adult daughter and ask them if they would be willing to transport Darnell to Soledad Prison for visitation. When the Department’s attorney opined that it might not be in the best interest of Darnell to be transported to the prison by people he doesn’t know, Father stated that Darnell had stayed with Father’s adult daughter for a period of time, but Father added that Darnell need not be brought to the prison “for right now.” Father added “Consider them for me,” but it is not clear what he meant. The court responded by saying that if Father’s mother and adult daughter wanted to visit with Darnell, they should be evaluated.
Additionally, nothing in the record shows that Father visited or attempted to visit with the minor during the period of time between Father’s two incarcerations, however long or short that period was. And, there is no indication that Father attempted to communicate with Darnell by pictures and written means (for example, birthday cards, holiday cards, and other written greetings) but was unable to do so.
As for Father’s claim that his request for three visits a week was improperly denied, that request came on January 23, 2007. The Department reasonably objected to Father visiting Darnell three times a week on the grounds it would be excessive to the minor since Father had not yet visited with the child. The minor’s attorney joined in the objection. The Department added that “[a]t least to start it’s excessive.” The court ordered the Department to simply facilitate visitation and “see how it works out.” We find no denial of rights in that court ruling. It would not be in Darnell’s best interest to be taken three times a week to visit with someone he had never met.
DISPOSITION
The order terminating the parents’ parental rights is reversed and the cause is remanded for compliance with the notice requirements of the ICWA. If, after proper notice, a Tribe asserts its right under the ICWA to intervene in this matter in state court, or to obtain jurisdiction over the proceedings by transfer to the Tribal court, the cause shall proceed in accordance with the Tribe’s election. If there is no intervention or assertion of jurisdiction by any Tribe after proper notice, then the juvenile court’s order terminating parental rights shall be reinstated. The Department is to notify this court forthwith if a Tribe asserts its right to intervene or obtain jurisdiction over the proceedings or the juvenile court reinstates its order.
We Concur: KITCHING, J., ALDRICH, J.