Opinion
E039835
12-6-2006
In re ERIN S., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY DEPARTMENT OF CHILDRENS SERVICES, Plaintiff and Respondent, v. STEVEN S., Defendant and Appellant.
Linda M. Fabian, under appointment by the Court of Appeal, for Defendant and Appellant. Dennis E. Wagner, Interim County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Defendant and Respondent. Janette Freeman Cochran, under appointment by the Court of Appeal, for Minor.
Appellant Steven S. (father) appeals the denial of his Welfare and Institutions Code section 388 petition and the order terminating his parental rights regarding his daughter, Erin S. (the child). Father contends that the court abused its discretion in denying his section 388 petition, that the beneficial relationship exception applied (§ 366.26, subd. (c)(1)(A)), and that there was insufficient evidence that notice was given pursuant to the Indian Child Welfare Act (ICWA). We conclude that the court properly denied the section 388 petition and declined to apply the beneficial relationship exception. Respondent concedes that ICWA notices were not filed with the juvenile court. Thus, we reverse and remand with directions for the juvenile court to reinstate the judgment if no Indian tribe intervenes after proper notice is given.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.
We note that, in a letter brief filed on August 2, 2006, counsel for the child joins in Respondents brief on all issues.
FACTUAL AND PROCEDURAL BACKGROUND
The childs mother (mother) has a long history with the Department of Childrens Services (DCS). Mother had seven children, with the child being the youngest. The six oldest children were removed from her custody in 1995 for substantiated allegations of physical abuse and severe neglect. Three of the children were returned to mother, two of them were adopted, and one child was in long-term foster care. The child who is the subject of this appeal was born in 1997. She was allowed to stay in the home with father, as long as mother did not reside there. DCS discovered that mother was living in the residence, and thus filed a section 300 petition on behalf of the child on November 13, 2001. The petition alleged that the child came within the provisions of section 300, subdivision (b) (failure to protect), subdivision (d) (sexual abuse), and subdivision (j) (abuse of sibling). Specifically, the petition alleged that there was a substantial risk that the child would suffer serious harm because father knew that she was at risk of abuse and neglect but failed to protect her. The petition also alleged that mother had substance abuse and mental health problems, that mother was under criminal investigation for soliciting sex with a minor, and that both mother and father had physically abused the childs half-sibling, B. The court detained the child in foster care and ordered reunification services for mother and father (the parents).
Mother is not a party to this appeal.
Jurisdictional/dispositional Hearing
The social worker prepared a report for the jurisdictional/dispositional hearing, which was scheduled for December 5, 2001. The social worker recommended that reunification services be provided to father and that no reunification services be provided for mother. The social worker opined that it was unlikely that father would reunify with the child due to his willingness to continue his relationship with mother. The child was living with the maternal grandmother, but was subsequently moved to the home of her maternal aunt and uncle.
At a pretrial settlement conference on February 8, 2002, the court was informed that mother recently disclosed that her great grandfather was Cherokee Indian. Counsel for DCS requested that the matter be reset to comply with ICWA.
A contested jurisdictional hearing was held on February 21, 2002. The court found that the child came within section 300, subdivisions (b) and (g) and declared the child a dependent of the court. The court ordered the social worker to provide a reunification plan for father but ordered no reunification services for mother. Counsel for DCS advised the court that ICWA notices were sent to both tribes 10 days prior to this hearing.
On May 22, 2002, DCS filed a section 387 supplemental petition. The childs maternal aunt and uncle asked to have the child removed from their home because of the childs sexual behavior. DCS requested that the child be placed in a confidential foster home. The court removed the child from the maternal aunt and uncles home and placed her in confidential care.
Six-month Status Review
The social worker prepared a report for the six-month review recommending that reunification services be continued for father for another six months. The social worker reported that father was actively participating in his service plan. However, she noted that father continued to reside with mother. Father was also having regular weekly supervised visits with the child. Father had not yet requested unsupervised visits with the child, although the court approved unsupervised visits at the last hearing. Father stated that he had not requested them yet because he did not have reliable transportation. Overall, the social worker opined that father had made a good start toward successful reunification. She believed that he would benefit from more counseling and parenting services, and also wanted to see father take advantage of unsupervised visitation during the next six months.
The six-month review hearing was held on August 29, 2002. The court continued reunification services for six months and gave the social worker the authority to increase the amount of visitation, if appropriate.
12-month Status Review
The social worker prepared a report for the 12-month review recommending that the court continue reunification services for another six months. Father had completed the parenting education component of his plan and was actively participating in counseling and anger management. Father and mother decided to remain together and reunify with all the children and were attending marriage therapy sessions. Mother asked her attorney to file a section 388 petition. The social worker noted that the parents had shown growth in their ability to parent the children, but there was an issue with financial stability, since fathers job was terminated in December 2002. Both parents had recently acquired part-time employment. The social worker further reported that father and mother consistently visited once a week with the child and that the visits were appropriate. The social worker opined that the parents had made significant progress in reunifying with the child.
The 12-month review hearing was held on February 28, 2003. The court ordered father to continue to participate in his case plan and also ordered weekly, unsupervised visits.
18-month Review
The social worker prepared a report in which she recommended that a section 366.26 hearing be set and a permanent plan of legal guardianship be established for the child. The social worker reported that the parents family status had deteriorated since the last review. Father and mother were separated and intended to divorce. Furthermore, on June 27, 2003, father was arrested for domestic violence. He was sentenced to serve 30 days in jail, to serve weekends for 40 weeks, and to complete anger management and domestic violence programs.
As to visitation, father had been fairly consistent. Until the domestic violence issue, the child had been having overnight visits. However, the child complained that the visits were boring because mother slept a lot, and father was generally at work. She missed the foster parents when she was away from them and was excited to return to them after her visits. Since the parents separation, the overnight visits were changed back to weekly supervised visits.
The social worker stated that the family was very troubled and dysfunctional. The child was content to remain in her foster home until she was 18 years old, and her foster family was more than willing to take legal guardianship of the child.
At the 18-month hearing, the court terminated reunification services. The court ordered the supervised weekly visits to continue, and set a section 366.26 hearing.
366.26 Hearings and Section 388 Petition
In a report dated March 29, 2004, the social worker recommended that a guardianship be established with the childs current caretakers. The child had been in their home since June 10, 2002, and was bonded with them. The caretakers were willing and able to provide a permanent and stable home for the child.
The social worker also reported that the child had an average of three visits per month with her parents. The child occasionally opted to skip visits in order to attend other activities. The child reported (unspecified) problems and fear regarding unsupervised visits that occurred in the past.
On April 20, 2004, the childs foster family agency received information that the childs foster home was under investigation for child abuse, alleged by a former foster child. Thus, the child was removed from the home. The allegations were later substantiated; thus, the child was placed in another foster home on April 22, 2004. The social worker recommended long-term foster care for the child, thereafter.
At the June 28, 2004, section 366.26 hearing, both parents submitted, and the court ordered long-term foster care as the permanent plan.
In an addendum report dated December 28, 2004, the social worker reported that the child was having problems with depression and anger; the problems appeared to have been triggered by her removal from the previous home. The child told the social worker that she cried every night because she was angry with her family for letting her go; she also expressed fear about her experiences when living with her parents.
As to visitation, the social worker reported that the child was having visits with father every other week. She was affected negatively by the visits, and would become withdrawn and depressed and refuse to go to school the next day.
Moreover, the social worker reported that, after eight months of living in her new foster home, the child wanted to be adopted by the family, and the foster family expressed a desire to adopt the child. The child was very close to the foster mother. Since the family wanted to adopt her, the social worker changed her recommendation to adoption as the permanent plan. The social worker filed another addendum report on March 9, 2005, recommending that the court set a section 366.26 hearing to terminate parental rights and set the child free for adoption. She noted that father had limited problem-solving skills and poor judgment. He consistently looked to her for guidance as to what he should do. He told the social worker that mother kept marijuana in their home, not caring that it put him at risk of going to jail for a probation violation. Father had no idea what to do. He seemed willing to suffer the consequence of going to jail to maintain his relationship with mother. Father also told the social worker that he once found mother overdosed (she was attempting suicide). He still failed to leave the relationship in order to protect his children. Father did not exercise independent judgment, which he was expected to learn from his parenting class, therapy sessions, and interactions with the social worker.
The social worker filed another section 366.26 report on July 7, 2005. She reported that father visited the child twice a month for an hour each time. The visitation was problematic, to the point that the visits were detrimental to the child. Father made promises of unsupervised visits and of going home. The child would return to her foster home upset by these comments and in tears, and she would be defiant for a day or more. The child said she wanted less visitation with her family. The childs foster parents remained committed to adopting her, and the child was bonded to them and wanted to be adopted.
Father filed a section 388 petition on September 16, 2005, requesting that the court return the child to him, or order further reunification services. As to changed circumstances, father alleged that he was progressing in his psychotherapy, and that he had completed courses in anger management and positive discipline. The social worker recommended that the court reject the petition. She reported that father refused to have his home evaluated for consideration of overnight visits or at-home visits for his stepchildren; he requested only limited contact with them. The social worker further reported that fathers first wife refused to allow him to have a relationship with their children while he lived with mother. Thus, father sacrificed his relationship with them for 10 years in order to maintain his relationship with mother. Similarly, the child was removed from fathers custody because he continued to live with mother. Thus, he sacrificed four years of his relationship with the child because he wanted to stay with mother. In another report, the social worker reported that the child clearly stated that she did not want to go home, that she would not be happy if she was sent home, and that she wanted to be adopted. The child felt loved and cared for by her foster parents. The foster father said that he and his wife loved the child and already considered her their daughter. The social worker opined that it would be detrimental to the child to remove her from this family since she had an obvious bond with them.
The hearing on the section 388 petition and the section 366.26 hearing began on January 24, 2006. The court heard extensive testimony from the social worker, fathers therapist, and father himself. The court determined that father made a showing of changed circumstances and commended father for his progress. Nonetheless, the court concluded that, because the child had been in her current placement for so long and because she had previously had too many disruptions in her relationships, it was in the childs best interest to stay with her foster family. Thus, the court denied fathers section 388 petition. The court also terminated fathers parental rights and ordered adoption as the permanent plan.
ANALYSIS
I. The Court Properly Denied Fathers Section 388 Petition
Father argues that the court abused its discretion in denying his section 388 petition. We disagree.
A. Standard of Review
"The [section 388] petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion. [Citations.]" (In re Jasmon O. (1994) 8 Cal.4th 398, 415 (Jasmon O.).)
B. Father Failed to Show That It Was in the Childs Best Interest to Return Her to His Custody
"At a hearing on a motion for change of placement, the burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interests of the child. [Citations.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) "In any custody determination, a primary consideration in determining the childs best interests is the goal of assuring stability and continuity. [Citation.] `When custody continues over a significant period, the childs need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child. [Citations.]" (Ibid.)
In the case before us, the juvenile court determined that there was not sufficient evidence produced at the hearing to establish that a change of placement was in the childs best interest. In our view, the juvenile court properly evaluated the evidence, and placing special weight on the childs need for stability as was appropriate at that stage of the proceedings, determined that father had not carried his burden of proof. If we focus on the evidence of the possible effects on the child of placement with father, it is clear that the juvenile court was well within its discretion in deciding that a change of placement was not in the childs best interest. The child was negatively affected by visits with father and would become withdrawn and depressed and refuse to go to school the next day. The child told the social worker she wanted less visitation with father. Fathers comments about the child returning home to him would upset her. In fact, the child clearly stated that she did not want to go home, that she would not be happy if she was sent home, and that she wanted to be adopted. The evidence showed that the child was likely to suffer behavioral and emotional issues if she was forced to leave her current foster family. The social worker opined that father was not capable of coping with a child with behavioral and emotional issues. Furthermore, the social worker was concerned that, if the child was returned to father, mother would insist on visiting the child, and the social worker was not confident that father could amicably deal with arranging visitation. The childs therapist and social worker opined that it would be detrimental to remove the child from her foster family and that it was not in her best interest to return to fathers custody.
On the other hand, the evidence showed that it was in the childs best interest to be adopted. At the time of the hearing, she had been living with her foster family for nearly two years. The childs therapist opined that the child strongly desired to be adopted, and that she was part of a family unit. The social worker agreed that it was in the childs best interest for her to be adopted. Moreover, the foster family wanted to adopt the child, and the child wanted to be adopted by the family. The child was very close to the foster mother. The foster parents loved the child and already considered her their daughter.
Father asserts that the social worker testified that she believed the childs foster parents influenced her to choose to be adopted by them rather than be returned to him. However, the social worker also testified that she spoke to the foster parents about that issue and that, to her knowledge, neither foster parent placed any influence on the child with respect to her decision.
In any event, father failed to establish how it would be in the childs best interest to be returned to him. Thus, we conclude that the court did not abuse its discretion in denying fathers petition.
II. The Beneficial Parental Relationship Exception Did Not Apply
Father further contends the court erred in not applying the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(A). We disagree.
In general, at a section 366.26 hearing, if the juvenile court finds that the child is adoptable, it must terminate parental rights. (§ 366.26, subd. (c)(1).) This rule, however, is subject to five statutory exceptions. (§ 366.26, subds. (c)(1)(A)-(c)(1)(E).) The beneficial parental relationship exception in section 366.26, subdivision (c)(1)(A) applies when the parents "have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." The phrase "benefit from continuing the relationship" refers 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 the sense of belonging a new family would confer. If severing the natural parent[-]child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).) It is the parents burden to show that the beneficial parental relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)
Here, father claims that this exception applied because he maintained regular visitation with the child, because she had a strong emotional tie to him since they shared a unique bond, and because he would provide her a safe, stable, and loving home. It is undisputed that father maintained contact with the child. However, the record belies fathers claim that he and the child had a strong and unique bond. The evidence showed that father disregarded the courts order by allowing mother to live with him and the child, and, therefore, the child was removed from his custody. Thus, father sacrificed four years of his relationship with the child just to stay with mother. Furthermore, the evidence showed that the visits between the child and father were detrimental to her. When father would make promises of unsupervised visits and of going home, the child would return to her foster home upset and in tears, and she would be defiant for a day or more. Moreover, as noted by the social worker, the child wanted less visitation. In any case, fathers assertion that the child had a strong emotional tie to him does not even begin to demonstrate that their relationship promoted the childs well-being "to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (Autumn H., supra, 27 Cal.App.4th at p. 575.) Thus, there was no apparent evidence that the child had a "substantial, positive emotional attachment [with father] such that the child would be greatly harmed" if the relationship was severed. (Ibid.)
Furthermore, at the time of the section 366.26 hearing, father lived in a one-bedroom apartment and had a low income job at a cafe. We cannot see how fathers relationship with the child promoted her well-being enough to outweigh the benefits and stability of her staying with her foster parents, who had both worked for the same employer for over 20 years, and who lived in a nice, spacious three-bedroom home.
Father asserts that the social worker testified that the child was ambivalent about adoption because it meant possibly losing contact with the family. The social worker actually testified that the child like the idea of adoption and the permanence of it. The social worker further said that child was definitely not ambivalent about being adopted, but was ambivalent about losing contact with the family. Nonetheless, the childs ambivalence about losing contact with the family does not establish that the childs relationship with father was so significant as to overcome the preference for adoption.
Thus, the court properly found that the beneficial parental relationship exception did not apply.
III. Respondent Did Not Comply with ICWA Notice Requirements
Father contends that there was no evidence that proper notice required by ICWA was sent. Respondent concedes.
A. Notice Requirements under the ICWA
"[W]here the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." (25 U.S.C. § 1912, subd. (a).) (See In re Samuel P. (2002) 99 Cal.App.4th 1259, 1264-1265.) "To enable the juvenile court to review whether sufficient information was supplied, [DCS] must file with the court the ICWA notice, return receipts and responses received from the BIA and tribes. [Citation.]" (In re Francisco W. (2006) 139 Cal.App.4th 695, 703 (Francisco W.).)
Here, the only evidence of ICWA compliance in the record was the social workers statement to the court that ICWA notices were sent 10 days prior to the contested jurisdictional hearing. DCS apparently did not file any documentation of the notices sent. Respondent concedes that notices were not filed with the court and requests that the reversal as to ICWA be limited to ordering the judgment to be reinstated if no Indian tribe intervenes after proper notice is given. (Francisco W., supra, 139 Cal.App.4th at p. 711.) Father contends that we should remand the matter with the directions that "the juvenile court may, in its discretion, reinstate the judgment terminating parental rights or order such further proceedings as it deems appropriate." (Italics added.) He argues that this language would permit the juvenile court to order further proceedings if there has been a change of circumstances. We choose to employ the usual limited reversal used in ICWA cases, as requested by respondent, for the reasons already stated in Francisco W. (Id. at pp. 704-710.)
DISPOSITION
The judgment terminating fathers parental rights is reversed, and the case is remanded to the juvenile court with directions to order DCS to comply with the notice provisions of ICWA, and to file all required documentation with the juvenile court for the courts inspection. If, after proper notice, a tribe claims the child is an Indian child, the juvenile court shall proceed in conformity with all provisions of ICWA. If, on the other hand, no tribe claims that she is an Indian child, the judgment terminating parental rights shall be reinstated.
We concur:
Richli, J.
King, J.