Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIJ109436, Becky Dugan, Judge.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Minors.
OPINION
HOLLENHORST, J.
Appellant Laura A. (mother) is the mother of Frank R. and X.R. (the children). Mother’s parental rights were terminated. On appeal, she claims: 1) the juvenile court failed to comply with the notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; ICWA); and 2) the beneficial relationship exception applied. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(A).) We affirm.
All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.
The beneficial relationship exception to the termination of parental rights has recently been renumbered to section 366.26, subd. (c)(1)(B)(i), effective January 1, 2008. For purposes of clarity, we will refer to it as former section 366.26, subdivision (c)(1)(A).
Counsel for the children filed a letter brief on February 4, 2008, urging us to affirm the court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
On February 14, 2005, the Riverside County Department of Public Social Services (the department) filed a section 300 petition on behalf of the children. Frank was seven years old at the time, and X.R. was five years old. The petition alleged that the children came within the provisions of section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). Specifically, the petition included the allegations that mother abused controlled substances, had a significant history of being a victim of domestic violence, and had a criminal history. The petition also contained allegations against the children’s father Frank R. (father), who is not a party to this appeal.
The petition also included two of mother’s other children, and their two fathers, none of whom are subjects of this appeal.
Detention:
The social worker filed a detention report stating that on December 16, 2004, mother told her that she did not have any Native American ancestry. Mother said she had no idea if father had any Native American ancestry.
At the detention hearing on February 15, 2005, the court asked mother’s counsel if mother or father had any Indian blood. Counsel answered that mother thought “there might be some Cherokee possibly, but she [was] not sure.” The court responded with: “Doesn’t [sound] like ICWA, even enough information to do an ICWA referral?” The court then set the next court date, and placed the children in the temporary custody of the department and detained them in foster care.
That same day, mother filed a Parental Notification of Indian Status and stated that the children may be members, or eligible for membership, in a Cherokee Indian tribe.
Disposition:
The social worker prepared a jurisdiction/disposition report which stated that ICWA did not apply. The social worker interviewed mother on February 25, 2005, and mother asserted that there was no Indian ancestry within her family. Mother also stated that she did not believe there was Indian ancestry on father’s side. The social worker had been unable to locate father in order to interview him.
The social worker further reported that mother did not have a permanent home and that she was unemployed. Mother admitted that she was still using methamphetamine and that she could not provide the children with a stable and safe environment. Nonetheless, she was in complete denial that she had a substance abuse problem. The social worker also reported that mother had been having weekly two-hour supervised visits, which were going well.
The court held a contested jurisdiction hearing on June 8, 2005. The court found true all of the allegations against mother, except that she had a criminal history. Thus, the court found that the children came within section 300, subdivisions (b) and (g) and adjudged them dependents of the court. The court ordered mother to participate in reunification services.
Six-Month Status Review:
In the six-month status review report, the social worker recommended that the children remain as dependents and mother be offered six more months of services. The social worker continued to report that ICWA did not apply. Mother now lived at the Welcome Inn in Corona, but was still unemployed. As to visitation, the social worker stated that she observed during one visit that the children appeared happy to see mother, as they ran to give her a hug. Notably, at the end of a visit on July 5, 2005, mother abducted the children. Nine days later, the police found mother and the children at a shopping mall. The police took mother into custody, but she was released on July 31, 2005. The social worker spoke with the children’s current caretaker, who said that the children rarely asked for mother. When the social worker interviewed the children, they both said they were afraid of mother. Frank could not articulate why he was afraid, but X.R. said she was afraid of being taken away again.
At the six-month review hearing, the court ordered reunification services to continue.
12-Month Status Review:
In the 12-month status review report, the social worker recommended that the court terminate mother’s services. The social worker reported that the children had been in their foster placement since October 2005 and appeared to be doing very well. The caregiver was meeting all of the children’s needs.
The children had their first visit with mother, since being abducted by her, on January 31, 2006. They hugged her when they saw her. However, Frank was “standoffish” at the beginning of the visit. X.R. was more affectionate and said she wanted to go home with mother. During other visits, mother was observed to act childish with the children, as she wrestled them to the floor and accidentally hurt them. Moreover, mother often cried when she left the visits. The social worker observed that the children appeared to love mother very much, and that she loved them.
In assessing the case, the social worker stated that mother lacked the motivation and understanding to reunify with the children. She had not accepted responsibility for the removal of the children. Mother failed to complete any part of her case plan and stated that she did not want any help from the department.
At a contested review hearing, the court terminated services and set a section 366.26 hearing.
Section 366.26 Report and Hearing:
The social worker filed a section 366.26 report on September 22, 2006, and stated that mother did not participate regularly in visitation during the last reporting period. She was offered weekly supervised visitation, but consistently failed to show up for scheduled visits. Therefore, the arrangements were modified so that the scheduled visits would only take place if she called by noon to confirm her attendance. Mother failed to do so on several occasions. Her last visit with the children was on June 27, 2006. The social worker noted that the children were observably disappointed in the lack of visitation.
The social worker reported that prospective adoptive parents had not yet been identified for the children. Thus, the department requested a 120-day continuance of the section 366.26 hearing. The court granted the request and set the hearing for January 31, 2007. By January 2007 prospective adoptive parents were identified; the children had been placed with them since November 1, 2006. In order to allow the department time to evaluate the prospective adoptive parents, the hearing was continued to June 7, 2007.
In a status report, the social worker stated that the children were thriving in their prospective adoptive home. They were doing well in school and had many new friends. The children had bonded with the prospective adoptive parents and called them “Mommy” and “Daddy.” They received love, nurture, and guidance in their new home, and they no longer asked about mother. The social worker recommended that the adoption go forward.
Mother was incarcerated in June 2007 and failed to be transported to the section 366.26 hearing. The hearing was continued so that she could be present. It was held on June 20, 2007. The court terminated mother’s parental rights and ordered adoption as the permanent plan.
ANALYSIS
I. There Was No ICWA Violation
Mother argues that the termination order must be reversed since the court failed to comply with the notice requirements of ICWA. She asserts that she, at one time, indicated that she might have Indian ancestry. We conclude that the court had no reason to believe the children had Indian ancestry, and that the ICWA notice requirements were not triggered.
When a court knows or has reason to know that an Indian child is involved in a dependency proceeding, the child’s tribe must be notified, or if the tribe is not known the Bureau of Indian Affairs (BIA) must be notified, of the pending proceeding and of the tribe’s right to intervene. (25 U.S.C. § 1912(a).) The notice requirements are triggered even if the child’s Indian status is uncertain and the court only has reason to believe the child might be an Indian child. (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1266-1267.)
Here, mother initially told the social worker, on December 16, 2004, that she did not have any Native American ancestry. Mother said she had no idea if father had any Native American ancestry. Then, at the detention hearing on February 15, 2005, the court asked mother’s counsel if mother or father had any Indian blood. Counsel answered that mother thought “there might be some Cherokee possibly, but she [was] not sure.” The court responded with: “Doesn’t [sound] like ICWA, even enough information to do an ICWA referral?” That same day, mother filed a Parental Notification of Indian Status and stated that the children may be members, or eligible for membership, in a Cherokee Indian tribe. However, on February 25, 2005, mother recanted that statement when she confirmed that there was no Indian ancestry in her family. Mother also stated that she did not believe there was Indian ancestry on father’s side. The department thereafter consistently reported that ICWA did not apply, and mother never suggested anything to the contrary. Under these circumstances, the court had no obligation to make an additional inquiry, absent any information or suggestion that the children might have Indian heritage. (See In re Aaliyah G. (2003) 109 Cal.App.4th 939, 942.) We further note that, on appeal, mother has not even suggested that the children have any Indian heritage.
Based on the record, there is sufficient evidence that an inquiry was made as to whether the children had Indian ancestry. Although mother initially indicated that the children might have Indian ancestry, she ultimately stated that there was no Indian ancestry in her family and no known Indian ancestry in father’s family. Thus, the court had no reason to believe that the children had such heritage, and the notice requirements were not triggered. We conclude that there was no violation of ICWA.
II. The Beneficial Parental Relationship Exception Did Not Apply
Mother contends that the court erred in not applying the beneficial parental relationship exception under former section 366.26, subdivision (c)(1)(A). We disagree.
At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Celine R. (2003) 31 Cal.4th 45, 53.) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan, unless it finds a compelling reason for determining that termination of parental rights would be detrimental to the child under one of the exceptions set forth in section 366.26, subdivision (c)(1). One such exception is the beneficial parental relationship exception set forth in former section 366.26, subdivision (c)(1)(A). (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) This exception 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 parent’s rights are not terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) It is the parent’s burden to show that the beneficial parental relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)
In support of her position, mother asserts that, during one visit, the children hugged her for a long time, and that X.R. did not want to leave after that visit. Mother also states that X.R. cried at the end of visits, that she (mother) played with the children during visits and brought them toys and candy, and that the children enjoyed their time with her and missed her when they were apart. It is undisputed that the children enjoyed the visits. However, the record shows that mother did not participate regularly in visitation during the last reporting period. She was offered weekly supervised visitation, but consistently failed to show up for scheduled visits. The arrangements were modified so that the scheduled visits would only take place if mother called by noon to confirm her attendance. She failed to do so on several occasions. According to the section 366.26 report, her last visit with the children was on June 27, 2006.
Furthermore, mother’s interactions with the children, when she did attend the visits, do not even begin to demonstrate that her relationship with them promoted their well-being “to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Mother has proffered no evidence to support a finding that the children had a “substantial, positive emotional attachment [with her] such that [they] would be greatly harmed” if the relationship was severed. (Ibid.) To the contrary, the record shows that the children were thriving in their prospective adoptive home. They were doing well in school and had many new friends. The children were bonded with the prospective adoptive parents and called them “Mommy” and “Daddy.” They received love, nurture, and guidance in their new home, and no longer asked about mother.
We conclude that the beneficial parental relationship exception under former section 366.26, subdivision (c)(1)(A) did not apply here.
DISPOSITION
The order is affirmed.
We concur: RAMIREZ, P.J., GAUT, J.