Opinion
2d Juv. No. B201595
4-28-2008
In re F.G., et al., Persons Coming Under the Juvenile Court Law. VENTURA COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. A.N., et al., Defendants and Appellants.
Cameryn Schmidt, under appointment by the Court of Appeal, for Defendant and Appellant, Francisco G. Lee S. Gulliver, under appointment by the Court of Appeal, for Defendant and Appellant, A.N. Noel A. Klebaum, County Counsel, and Alison L. Harris, Assistant County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
A.N. and Francisco G. appeal orders of the juvenile court denying a modification petition and terminating their parental rights. (Welf. & Inst. Code, §§ 388, 366.26, subd. (c)(1).) We reverse and remand for the limited determination whether the Indian Child Welfare Act ("ICWA") applies. (25 U.S.C. § 1901 et seq.; In re Jonathan D. (2001) 92 Cal.App.4th 105, 111-112.)
All further statutory references are to the Welfare and Institutions Code unless stated otherwise.
FACTS AND PROCEDURAL HISTORY
On May 16, 2006, the Ventura County Human Services Agency ("HSA") filed dependency petitions on behalf of four-year-old F., three-year-old M., and one-year-old S. HSA alleged that the childrens mother, A.N., had abandoned them with a relative and suggested that the relative "give the children to social services." The childrens father, Francisco G., was then imprisoned after suffering a conviction in 2005 for driving under the influence of alcohol and causing bodily injury, and child cruelty. Francisco has a lengthy criminal history, including battery, driving under the influence of alcohol, domestic violence, and theft. HSA alleged that the childrens parents had failed to protect and provide for them. (§ 300, subds. (b) & (g).)
On May 17, 2006, the juvenile court ordered that the children be detained. On September 28, 2006, the court held a jurisdiction and disposition hearing attended by the parents and their respective counsel. It sustained the allegations of an amended dependency petition, continued the children in foster care, and ordered HSA to provide family reunification services. The family reunification services plan required A.N. to attend parent education classes and obtain counseling. It required Francisco to obtain drug and alcohol evaluation, obtain recommended treatment, attend 12-step meetings, and participate in parent education and individual counseling.
On February 14, 2007, the juvenile court held a six-month review hearing. The court found by clear and convincing evidence that the parents did not participate and make substantive progress in their family reunification services plan. It then set the matter for a permanent plan hearing pursuant to section 366.26.
Thereafter, Francisco filed a petition for extraordinary writ challenging the juvenile courts order. (Cal. Rules of Court, rule 8.452.) In a written opinion, we denied the petition. (Francisco G. v. Superior Court (Aug. 1, 2007, B197302) [nonpub. opn.].)
Indian Child Welfare Act (ICWA)
In August, 2006, A.N. completed a "Parental Notification of Indian Status" form indicating that she may have Indian ancestry. HSA mailed a "Notice of Involuntary Custody Proceedings for an Indian Child" to the Bureau of Indian Affairs. The notice did not include information regarding places of birth or any information regarding relatives. The Bureau responded that the information provided was insufficient to substantiate membership in a federally recognized tribe.
Modification Petition
On August 8, 2007, A.N. filed a modification petition pursuant to section 388, requesting reinstatement of family reunification services. She declared that she had been residing at a sober living home for four months, attending daily Narcotics Anonymous meetings, and completed parent education classes and individual counseling. She also stated that she recently obtained full-time employment and was awaiting housing assistance. A.N. described her visits with her children as positive and loving, and stated that the children hoped to live with her again. Francisco joined A.N.s modification petition.
Permanent Plan Hearing
On August 8, 2007, the juvenile court held a combined modification hearing and permanent plan hearing. HSA filed a permanent plan report recommending that the children be freed for adoption. By then, the children had resided with the prospective adoptive parents for 14 months and were thriving in their care. A.N. and Francisco testified at the hearing. A.N. testified that she had been addicted to methamphetamines until she entered the sober living home.
The juvenile court denied the modification petition, finding that A.N. had not established either changed circumstances or that it would be in the childrens best interests to reinstate family reunification services. The court also concluded that the children were likely to be adopted and that no statutory exception to adoption applies. It also found that the children were not Indian children and it terminated parental rights.
A.N. and Francisco appeal and contend that the juvenile court erred by: 1) denying the modification petition; 2) concluding that the beneficial parental relationship exception to adoption did not apply; and 3) finding that HSA complied with the ICWA notice requirements.
The notice of appeal states that Francisco is appealing the order concerning his child F. We liberally construe the notice of appeal, however, to include an appeal of termination of parental rights to the three children as well as the denial of the modification petition. (In re Joshua S. (2007) 41 Cal.4th 261, 272; In re Madison W. (2006) 141 Cal.App.4th 1447, 1450 [liberal construction of notice of appeal to include appeal of denial of modification petition].)
DISCUSSION
I.
The parents argue that the juvenile court abused its discretion by denying the modification petition. They assert that A.N. established by a preponderance of the evidence that changed circumstances exist and that it is in the childrens best interests to modify the prior court order. The parents point out that A.N. completed parent education classes and obtained counseling; now lives in a sober living home, attends daily Narcotics Anonymous meetings, anger management classes, and Bible study groups; and recently obtained full-time employment. They add that A.N. independently sought treatment for her drug addiction without referrals from HSA. The parents assert that the juvenile court wrongly denied the modification petition in part because only "three more months [exist] before the 18-month review." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529 [modification is "a viable possibility" even after termination of reunification services].)
The juvenile court may modify an order if a parent shows, by a preponderance of the evidence, changed circumstances or new evidence, and that the modification would promote the best interests of the child. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446.) In determining the best interests of the child, the juvenile court shall consider the reason for the dependency, the reason the problem was not overcome, the strength of the parent-child and child-caretaker bonds, the length of time the child has been a dependent, the nature of the change of circumstance, the ease by which the change could be achieved, and the reason it was not made sooner. (Id., at pp. 446-447.) We test the juvenile courts decision for an abuse of discretion. (Id., at p. 447.)
The juvenile court did not abuse its discretion because A.N. did not establish changed circumstances and that the modification would be in her childrens best interests. A.N.s efforts at reformation commenced several months following termination of family reunification services, and four months prior to the permanent plan hearing. At the time of the permanent plan hearing, A.N. had been employed for only two days and testified that she hoped to obtain housing assistance in approximately five months. Although she has lived in a sober living house, A.N. has never attended a formal drug treatment program. "It is the nature of addiction that one must be `clean for a much longer period than 120 days to show real reform." (In re Kimberly F., supra, 56 Cal.App.4th 519, 531, fn. 9.) As the juvenile court judge stated, "[A]t this point in a case, I would expect to see a parent that was healthy, had a safe home and that there would be little dispute that the children would be safe if returned home. And Im afraid this is not one of those cases."
A.N.s evidence of changing circumstances and her nascent recovery from methamphetamine addiction could not override her childrens need for permanency in an adoptive home. Although her visits with her children were happy and positive, they amount to a small amount of time that they have lived in their foster home. The juvenile court reasonably decided that the childrens current placement in an adoptive home is in their best interests.
"`"[C]hildhood does not wait for the parent to become adequate."" (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) A petition that alleges merely changing circumstances and means delaying the selection of a permanent home for a child to see if a parent might be able to reunify at some future point, does not promote the childs best interests. (Ibid.)
II.
A.N. and Francisco assert that the juvenile court erred by concluding that the beneficial parental relationship exception to adoption did not apply. They argue that A.N. established by a preponderance of the evidence that she visited the children consistently in the four-month period prior to the permanent plan hearing and that the children have "a significant, positive, emotional attachment" to her. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) A.N. and Francisco contend that A.N. met her burden of proving it is in the childrens best interests to maintain the parental relationship.
Section 366.26, subdivision (c)(1), requires the juvenile court to terminate parental rights if it finds by clear and convincing evidence that a child is likely to be adopted, unless "the court finds a compelling reason for determining that termination would be detrimental to the child" due to an enumerated statutory exception. The "beneficial parental relationship" exception of section 366.26, subdivision (c)(1)(A), requires a showing of "regular visitation and contact" and "benefit" to the child from "continuing the relationship." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) "To meet the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) 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 childs needs. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
The exception requires proof of "a parental relationship," not merely a relationship that is "beneficial to some degree but does not meet the childs need for a parent." (In re Jasmine D., supra, 78 Cal.App.4th 1339, 1350.) The existence of a beneficial relationship is determined by the age of the child, the portion of the childs life spent in parental custody, the quality of interaction between parent and child, and the childs particular needs. (In re Amber M. (2002) 103 Cal.App.4th 681, 689 [beneficial relationship exists where children in mothers care the majority of their lives].)
The juvenile court did not err by finding that the beneficial parental relationship exception did not apply because A.N. did not establish regular visitation with her children and that the benefits of a relationship with her outweighed the benefits of adoption. For four months prior to the permanent plan hearing, A.N. visited her children weekly for one hour under supervision. During the early stages of the dependency, however, she visited less frequently, missing many visits.
Although A.N. may have had a positive and loving relationship with her children and they enjoyed their supervised visits with her, she did not occupy a parental role in their lives. For fourteen months, the young children resided with foster parents who satisfied their daily needs for protection, guidance, food, shelter, and medical care. A.N.s supervised visits may have been beneficial to some degree, but did not meet the childrens need for a parent. (In re Angel B., supra, 97 Cal.App.4th 454, 466.) A.N. has not established that terminating her parental rights "would deprive [the children] of a substantial, positive emotional attachment such that [they] would be greatly harmed." (Ibid.)
III.
A.N. and Francisco argue that the juvenile court erred by finding compliance with the ICWA requirements. HSA responds that it recently initiated proceedings to correct any defects regarding the application here of the inquiry and notice provisions of the ICWA and California ICWA-related statutes. HSA points out that it interviewed A.N. and conducted an inquiry to locate her relatives in Texas based upon the limited information she provided. Following a noticed hearing at which the parents were represented by counsel, the juvenile court found that the ICWA notice requirements do not apply in this case.
By separate order, we augmented the appellate record to include the recent ICWA-related proceedings.
In their reply briefs, the parents argue that HSA did not provide notice to the Bureau of Indian Affairs regarding the additional information (name of her father, grandmother, and aunt, and their cities of residence) that A.N. provided concerning her Texas relatives. (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1407-1408 [minimal information may trigger notice requirements of ICWA].)
A.N. and Francisco are correct that HSA was required to notify the Bureau of Indian Affairs with the additional information A.N. provided regarding the names and general location of her father, grandmother, and aunt. (In re Antoinette S., supra, 104 Cal.App.4th 1401, 1407-1408.)
At oral argument HSA urged that we not follow In re Antoinette S. supra, 104 Cal.App.4th 1401, 1407. HSA contends that case was wrongly decided, and in light of Californias ICWA-related statutes, it is not a valid precedent. Appellants argued that the notice requirements of ICWA remain the same and that Antoinette S., is good and persuasive precedent.
HSAs argument was not developed in the trial court, nor was it advanced in the appellate briefs. Additional briefing at this late stage further delays proceedings. We think it better practice to proceed with a remand so that the case may be resolved in a manner consistent with the minors best interest.
We reverse the order terminating parental rights and remand for the limited determination whether the ICWA applies. If, following proper notice to the Bureau of Indian Affairs, the juvenile court determines that the ICWA does not apply, it shall reinstate the order terminating parental rights. We affirm the order denying the modification petition.
We Concur:
COFFEE, J.
PERREN, J.