Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Diego County No. EJ2535B-C, Gary Bubis, Judge.
AARON, J.
I.G. and Darnell G. (together the parents) appeal a juvenile court judgment terminating their parental rights to their minor children D.G. and Darnell G., Jr., (together the minors) under Welfare and Institutions Code section 366.26. The parents contend that the court erred by failing to apply the beneficial parent-child relationship exception and the relative caregiver exception to adoption. (§ 366.26, subd. (c)(1)(A) & (D).) They further contend that the matter must be remanded for proper notice under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We conclude that there is substantial evidence to support the court's findings that neither the beneficial parent-child relationship, nor the relative caregiver exception to adoption, apply to preclude terminating parental rights. We further conclude that the court and the San Diego County Health and Human Services Agency (Agency) failed to comply with the notice provisions of ICWA. Accordingly, we reverse the judgment for the limited purpose of ensuring compliance with ICWA notice requirements.
Statutory references are to the Welfare and Institutions Code.
Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, § 52.) Former subdivision (c)(1)(A) is now found at subdivision (c)(1)(B)(i), and former subdivision (c)(1)(D) is now found at subdivision (c)(1)(A). Because the proceedings at issue here occurred before the statutory change, we refer to the earlier version of the statute.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2005, four-year-old D.G. and three-month-old Darnell, Jr., became dependents of the juvenile court under section 300, subdivision (b) and were removed from parental custody based on findings that I.G. abused drugs, marijuana and cocaine were found in the family home and car, and Darnell, Jr., was left alone at home. The court placed the minors in licensed foster care and ordered the parents to participate in reunification services.
Darnell told the social worker that he had Blackfeet Tribe heritage. Agency sent notice to the Blackfeet Tribe and the Bureau of Indian Affairs (BIA). However, the notice form, JV-135, omitted identifying information about paternal relatives. The tribe responded that the minors were not Indian children as defined by ICWA. The court found ICWA did not apply.
During the next 12 months, the parents were motivated to reunify with the minors and actively participated in services. At the 12-month review hearing, the court placed the minors with the parents and ordered six months of family maintenance services.
In June 2006, Agency filed a supplemental petition under section 387, alleging that the minors' placement with the parents had not been effective because Darnell had tried to strangle I.G., and I.G. tested positive for marijuana and cocaine. When Darnell was arrested for the domestic violence incident, police found 20 grams of cocaine in the car he was driving. As a result of these events, the parents were incarcerated.
The court sustained the allegations of the supplemental petition, removed the minors from their parents' custody and placed them with a relative. Finding that the parents had not made substantive progress with the provisions of their case plans, the court terminated reunification services and set a section 366.26 selection and implementation hearing.
Agency assessed the minors as generally adoptable. Several relatives were willing to adopt the minors, and there were other nonrelatives interested in adopting children like them. The social worker recommended adoption as the minors' permanent plans. She believed the minors deserved a full-time parent to meet their daily needs. She noted that the parents had not played a parenting role in the minors' lives and the minors did not look to the parents as their primary caregivers. The social worker stated that although the parents had relationships with the minors, those relationships did not outweigh the stability and sense of emotional security that adoption would provide.
According to a September 2007 addendum report, the minors had been placed with their paternal great-aunt, Jamie K., in Riverside County. The minors had adjusted well to their new placement. Jamie's six grandchildren and a nephew also lived with her. Jamie was committed to meeting the minors' needs. Although she was willing to care for them indefinitely, she did not want to adopt them because she believed doing so would be devastating to her grandchildren, whom she had declined to adopt. However, three other paternal relatives were willing to adopt the minors.
Social worker Nicole Kelsay had observed four of six recent visits between I.G. and the minors. Kelsay reported that I.G. was appropriate with the minors, who were excited to see her and appeared to be comfortable with her. Darnell, Jr., did not cry when visits ended, but after the last visit, D.G. cried and said, "I want my mommy." Kelsay reported that visits had not always been consistent. I.G. did not visit from June until November 2006, and visited only four times from November 2006 to May 2007, while the minors were temporarily placed with the maternal grandmother in Stockton. I.G. did not visit the minors between June 22 and August 13, 2007. Darnell remained incarcerated and had only weekly or biweekly telephone contact with the minors.
Kelsay continued to recommend adoption as the minors' permanent plans. Although the minors loved I.G. and enjoyed visits with her, Kelsay believed that the benefits of permanency, emotional stability, a sense of belonging, safety, consistency and the ability to form secure, lasting attachments far outweighed any benefit the minors would derive from maintaining their parental relationships through a permanent plan other than adoption.
Jamie said that she was willing to have the minors remain with her, but only under a permanent plan of guardianship. She believed that the minors would benefit from more attention than she was able to give them. Maternal great-great-aunt Marie B., and paternal great-aunt Josephine S., were willing to adopt the minors. Agency was in the process of evaluating Marie's home.
At a contested selection and implementation hearing, the court admitted in evidence a bonding study of I.G. and D.G. performed by Dawn Blacker, Ph.D., on March 8 and 9, 2007. Dr. Blacker concluded that I.G. and D.G. had a positive and strong relationship. She reported that D.G. was experiencing significant distress as a result of being separated from I.G. In Dr. Blacker's opinion, discontinuing the parent-child relationship would have a significant negative impact on D.G.'s emotional functioning. Dr. Blacker believed that maintaining the relationship outweighed the substantial benefits of permanency for D.G.
Dr. Blacker testified about the preparation of her report. After observing the interaction between I.G. and D.G., she concluded that D.G. was comfortable with I.G. and not afraid of her. D.G. was spontaneously affectionate with I.G. and continuously sought to engage her. D.G. told Dr. Blacker that she felt sad because she missed her mother and wanted to live with her.
At the time of the selection and implementation hearing, the bonding study was seven months old. The study was performed before D.G. was placed with Jamie. At that time, D.G. was having behavioral and emotional problems. Dr. Blacker testified that she did not know that D.G.'s problematic behavior—her defiance, lying and difficulty with school work—had nearly disappeared since D.G. was placed with Jamie, even though D.G. was not having consistent visits with I.G. Dr. Blacker admitted that her opinion about the nature of the parent-child relationship could certainly change based on that new information. Dr. Blacker testified that she could no longer express an opinion about whether maintaining the parent-child relationship outweighed the benefits of adoption for D.G.
Jamie testified that she had been caring for the minors for six months. She was not able to adopt them because she had declined to adopt her six grandchildren who were also living with her. She was, however, willing to be the minors' guardian. Jamie said that she was not able to give the minors the individual attention they needed. She believed the minors needed more stability and security. Jamie said she currently had an undiagnosed health issue, possibly cancer, and she needed help with the children in her care. Jamie supported the minors' adoption by someone who could give them the security and love they deserved. Jamie testified that her sister Josephine was willing to adopt the minors. In Jamie's opinion, Josephine would be a good mother, and moving the minors to Josephine's home would serve them well.
Jamie reported that I.G. had not visited the minors in a month. During the summer of 2007, I.G. did not visit the minors for a period of about six weeks. Jamie said that Darnell telephoned the minors from prison about three or four times a month.
At the time of the selection and implementation hearing, I.G. was incarcerated on charges of receiving stolen property and possessing a scale containing methamphetamine and marijuana residue.
Kelsay testified that the minors were generally adoptable because they were healthy, intelligent, articulate and loving, and able to develop attachments to people. There were numerous out-of-county families and two San Diego County families that were willing to adopt a sibling group like the minors. Additionally, Marie and Josephine were still interested in adopting the minors. Neither had a criminal background, and there was no reason to believe they would not be approved to adopt. Although the minors were attached to Jamie, it would not be detrimental to them if they were removed from Jamie's home.
Kelsay further testified that the minors had a positive and strong relationship with Darnell. Darnell loved the minors and had frequent telephone contact with them, which the minors enjoyed. However, the minors did not view Darnell as their parent. In Kelsay's opinion, it would not be detrimental to the minors to sever their relationship with Darnell; the stability and permanence of adoption outweighed the benefits of maintaining the parent-child relationship.
Kelsay believed that there would be no detriment to Darnell, Jr., if he no longer saw I.G. Despite inconsistent visits with I.G., Darnell, Jr., was able to develop normally and function appropriately. I.G.'s unstable lifestyle prevented her from providing the minors with consistency, stability, and permanence. Thus, the benefits of adoption for Darnell, Jr., outweighed the benefits of maintaining the parent-child relationship.
Kelsay described D.G.'s relationship with I.G. as good and strong. D.G. looked forward to seeing I.G. and their visits were appropriate. Despite inconsistent visits from I.G., D.G. continued to develop normally and to improve emotionally and academically. D.G. was thriving and no longer acted out when she did not hear from I.G. Although severing the relationship between D.G. and I.G. would be difficult for D.G., it would not result in detriment to her. D.G. needed the consistency and permanence that adoption would provide.
After considering the evidence and hearing argument of counsel, the court found that the minors were likely to be adopted and that none of the exceptions to adoption, specifically the beneficial parent-child relationship or relative caregiver exceptions, applied to preclude terminating parental rights.
DISCUSSION
I The Parents Did Not Meet Their Burden of Establishing the Beneficial Parent-Child Relationship Exception
The parents challenge the sufficiency of the evidence to support the court's finding that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating their parental rights. The parents assert that they maintained regular visitation and contact with the minors, that the minors had a strong and positive relationship with them, and that the minors would benefit from continuing this relationship.
A
Section 366.26, Subdivision (c)(1)(A) and Standard of Review
We review the judgment to determine whether there is substantial evidence to support it. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence, or evaluate the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order, and affirm the order even if there is substantial evidence supporting a contrary finding. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The parent has the burden of showing that there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) If the court finds that a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds that termination of parental rights would be detrimental to the child under one of six specified exceptions. (§ 366.26, subd. (c)(1)(A)-(F); In re Valerie A. (2007) 152 Cal.App.4th 987, 997.)
Section 366.26, subdivision (c)(1)(A) provides an exception to the adoption preference if termination of parental rights would be detrimental to the child because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." We have interpreted the phrase "benefit from continuing the relationship" to refer to a parent-child relationship that "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." (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord In re Zachary G. (1999) 77 Cal.App.4th 799, 811.)
To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) The parent must show that 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.)
B
There Is Substantial Evidence to Support the Court's Finding of No Beneficial Parent-Child Relationship As to Darnell
At the time of the selection and implementation hearing, Darnell had not seen the minors for 17 months because he was incarcerated. He telephoned the minors as often as he could, usually three or four times a month, and the minors enjoyed their conversations with him. Even if we were to consider this "regular" contact, Darnell did not meet his burden to show that his relationship with the minors was sufficiently beneficial to outweigh the benefits of adoption for them. Although Darnell loves the minors, his substance abuse, domestic violence and resulting incarceration prevented him from being a consistent parental figure for them. The minors had a positive and strong relationship with Darnell, but they did not view him as a parent. There was no evidence that terminating the parent-child relationship would result in great detriment to the minors. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)
Where, as here, the biological parent does not fulfill a parental role, "the child should be given every opportunity to bond with an individual who will assume the role of a parent." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.) The minors need the stability and permanence of adoption. The court was required to, and did, weigh the strength and quality of the parent-child relationship, and the detriment involved in terminating it, against the potential benefit of an adoptive home for the minors based on their particular needs. We may not reweigh the evidence or substitute our judgment for that of the trial court. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) There is substantial evidence to support the court's finding that there was no beneficial parent-child relationship to preclude terminating Darnell's parental rights.
C
There Is Substantial Evidence to Support the Court's Finding of No Beneficial Parent-Child Relationship As to I.G.
I.G. did not meet her burden of showing that she maintained regular visitation and contact with the minors. During the second phase of the dependency proceedings, I.G.'s visits with the minors became sporadic. I.G. did not visit the minors from June to November 2006. She had one visit in November, and then visited the minors only three times over the next six months. Once the minors moved to Jamie's home in May 2007, I.G. began visiting frequently, but then had a lapse in visits for two months. The telephone contact between I.G. and the minors during this period was initiated by Jamie.
In any event, I.G. did not meet her burden to show that maintaining the parent-child relationship outweighed the benefits of adoption for the minors. I.G. and the minors had a "strong and good" relationship. The minors knew that I.G. was their mother, were excited to see her, and enjoyed their visits with her. Nevertheless, I.G. did not play a parental role in the minors' lives and was unable to provide them with a stable, safe, and nurturing home. Although I.G. helped Jamie care for the minors during her occasional visits, this is not the type of "beneficial" relationship that the statutory exception of section 366.26, subdivision (c)(1)(A) contemplates. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
I.G. cites the results of Dr. Blacker's bonding study to support her claim that maintaining the parent-child relationship outweighed the benefits of adoption for D.G. However, the bonding study was performed seven months before the selection and implementation hearing, at a time when D.G. was experiencing behavioral and emotional problems as a result of being separated from I.G. After D.G. was placed with Jamie, her problematic behavior disappeared, despite inconsistent contact with I.G. Dr. Blacker admitted that in view of this new information, her previous evaluation might no longer be valid.
The minors had been able to form new attachments and were thriving in their placement with Jamie. Although severing the relationship between D.G. and I.G. would be difficult for D.G., it would not result in detriment to her. In social worker Kelsay's opinion, the benefits of adoption for the minors—permanency, stability and consistency—far outweighed any benefit they would derive from maintaining their relationship with I.G. There is substantial evidence to support the court's finding that there was no beneficial parent-child relationship to preclude terminating I.G.'s parental rights.
II
The Parents Did Not Establish, in Support of the Relative Caregiver Exception, That Removing the Children from Jamie's Care Would Be Detrimental to Them
The parents challenge the sufficiency of the evidence to support the court's finding that the relative caregiver exception of section 366.26, subdivision (c)(1)(D) did not apply to preclude terminating their parental rights. They assert that guardianship was the appropriate permanent plan because Jamie was unable or unwilling to adopt the minors due to exceptional circumstances, and it would be detrimental to the minors to remove them from Jamie's care.
A
Section 366.26, Subdivision (c)(1)(D) and Standard of Review
The court may order a permanent plan other than adoption if it finds that terminating parental rights would be detrimental to an adoptable child because "[t]he child is living with a relative . . . who is . . . unwilling to adopt the child because of exceptional circumstances, that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the physical custody of his or her relative . . . would be detrimental to the emotional well-being of the child." (§ 366.26, subd. (c)(1)(D).) This exception recognizes that it may be in a child's best interests to remain in the home of a family member who is committed to caring for the child but does not want to adopt for reasons other than mere preference for an alternative permanent plan. (In re Rachel M. (2003) 113 Cal.App.4th 1289, 1298.)
The parent has the burden to show that terminating parental rights would be detrimental to the minors under section 366.26, subdivision (c)(1)(D). (In re Fernando M. (2006) 138 Cal.App.4th 529, 534.) We review the court's decision to determine whether there is substantial evidence to support it. (In re Zachary G., supra, 77 Cal.App.4th at p. 809.)
B
Although Jamie Was Unwilling or Unable to Adopt Because of Exceptional Circumstances, There Was No Evidence That Removing the Minors from Her Care Would Result in Detriment to Them
The evidence showed that Jamie was unwilling or unable to adopt the minors because of exceptional circumstances. We must interpret the phrase "exceptional circumstances," as used in the statute, "in light of the overarching purpose of section 366.26 and the overarching purpose of the dependency system—to achieve the best interest of the dependent child." (In re Fernando M., supra, 138 Cal.App.4th at p. 536.) Jamie explained she could not adopt the minors because she had declined to adopt her six grandchildren, and her grandchildren would be devastated if she agreed to adopt the minors. This factor qualifies as an exceptional circumstance beyond any mere preference for guardianship. (Cf. In re Rachel M., supra, 113 Cal.App.4th at p. 1298 [family preference alone is insufficient]; In re Zachary G., supra, 77 Cal.App.4th at p. 810 [no evidence grandparent was unwilling or unable to adopt minor].)
Nevertheless, the parents did not meet their burden under section 366.26, subdivision (c)(1)(D) to show that removing the minors from Jamie's physical custody would be detrimental to the minors' emotional well-being. At the time of the selection and implementation hearing, the minors had lived with Jamie for six months. Although the minors were attached to Jamie and were thriving in her care, the social worker believed that it would not be detrimental to them to be removed from Jamie's home. Agency had identified two other relatives as prospective adoptive parents for the minors, and the minors had shown that they were able to develop healthy attachments to people. Jamie admitted that the minors required more stability and security than she could provide, and believed they would be well served by moving to their great-aunt Josephine's home. Thus, there is substantial evidence to support the court's finding that the caregiver exception of section 366.26, subdivision (c)(1)(D) did not apply to preclude terminating parental rights.
III
The Notice Requirements of the ICWA Have Not Been Satisfied
The parents contend that the judgment terminating parental rights must be reversed for noncompliance with the notice provisions of ICWA. Agency concedes, and we agree, a limited remand is necessary for compliance with ICWA notice.
A
Notice Under ICWA
If a court "knows or has reason to know that an Indian child is involved" in a juvenile dependency proceeding, a duty arises under ICWA to give the Indian child's tribe notice of the pending proceedings and its right to intervene or obtain jurisdiction over the proceedings by transfer to the tribal court. (25 U.S.C. § 1912(a); In re Aaliyah G. (2003) 109 Cal.App.4th 939, 941.) " 'Of course, the tribe's right to assert jurisdiction over the proceeding or to intervene in it is meaningless if the tribe has no notice that the action is pending.' [Citation.] 'Notice ensures the tribe will be afforded the opportunity to assert its rights under the [ICWA] irrespective of the position of the parents, Indian custodian or state agencies.' [Citation.]" (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253.) The tribe determines whether the child is an Indian child within the meaning of ICWA, and its determination is conclusive. (Id. at p. 255.)
Once the court is advised of possible Indian heritage, the record must contain evidence that ICWA notice requirements have been satisfied. (In re Brooke C. (2005) 127 Cal.App.4th 377, 384.) "[N]otice must include the names of the child's ancestors and other identifying information, if known, and be sent registered mail, return receipt requested." (Ibid.; In re Louis S. (2004) 117 Cal.App.4th 622, 632-633.) Because "the failure to give proper notice of a dependency proceeding to a tribe with which the dependent child may be affiliated forecloses participation by the tribe, notice requirements are strictly construed." (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.) When proper notice under ICWA is not given, the court's order is voidable. (25 U.S.C. § 1914; In re Karla C. (2003) 113 Cal.App.4th 166, 174.)
B
Remand Is Required for Compliance with ICWA Notice
The notice that was sent to the Blackfeet Tribe and the BIA contained incomplete information regarding the minors' family history. Even if Agency did not know the names of the minors' ancestors or other identifying information, it had frequent and ongoing contact with paternal relatives who could have provided that information. Because there is no evidence of reasonable inquiry or notice as required by ICWA, the judgment terminating parental rights must be reversed. (In re Karla C., supra, 113 Cal.App.4th at pp. 178-179; In re Cody B. (2007) 153 Cal.App.4th 1004, 1013.)
DISPOSITION
The judgment terminating parental rights is reversed and the juvenile court is directed to comply with the notice provisions of ICWA. If, after proper notice and inquiry, a tribe does not intervene, the court shall reinstate the judgment. If a tribe intervenes, the court is ordered to conduct a new section 366.26 selection and implementation hearing in accordance with ICWA. (In re Francisco W. (2006) 139 Cal.App.4th 695, 705-706; In re Jonathan D. (2001) 92 Cal.App.4th 105, 111-112.)
WE CONCUR: MCCONNELL, P. J., BENKE, J.