Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Marsha Slough, Judge. Super.Ct.No. J204711, J204712 & J207236
S. Lynne Klein, under appointment by the Court of Appeal, for Defendant and Appellant Nicolas M.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant Angela R.
Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
Konrad S. Lee, under appointment by the Court of Appeal, for Minors Gabriella M. and Angelina R.
Sharon Rollo, under appointment by the Court of Appeal, for Minor A.R.
OPINION
Acting P. J.
Nicolas M. (Father), alleged father of Gabriella M., and Angela R. (Mother), mother of Gabriella M., Angelina R. and A.R., appeal from the juvenile court’s order under Welfare and Institutions Code section 366.26 terminating their parental rights to their respective children. They challenge the juvenile court’s findings that neither the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901, et seq.) nor the beneficial relationship exception under section 366.26, subdivision (c)(1)(A), applies.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. PROCEDURAL BACKGROUND AND FACTS
On November 4, 2005, the San Bernardino County Department of Children’s Services (the Department) filed a juvenile dependency petition alleging that Gabriella and Angelina came within section 300, subdivisions (b) and (g). According to the petition, Mother has a substance abuse problem that interferes with her ability to appropriately care for her children, she abandoned the children with a family friend, and Father knew or should have known that Gabriella would be at risk if left in Mother’s care.
On November 7, 2005, the children were detained and placed in confidential foster care. Mother was ordered to drug test, and both parents were given monitored visitation. In response to the court’s inquiry of whether either parent has any American Indian heritage, both parents replied, “No.” However, the next day both parents filed a form JV-130. Father (Neko or Nicolas) checked the box that stated he had “no Indian ancestry.” Mother’s form stated “I may have Indian ancestry.” Because no tribe was named, the Department contacted the Bureau of Indian Affairs (the BIA) on November 16. The Department sent a form JV-135 (Notice of Involuntary Child Custody Proceedings for an Indian Child) to the BIA. On November 17, Mother informed the Department that “she may have Blackfeet Indian Heritage.” The Department immediately sent a form JV-135 to the Blackfeet Tribe in Montana. On November 23, amended petitions were filed adding the allegation that Father has a substance abuse problem that interferes with his ability to adequately parent his child.
The jurisdiction/disposition report dated November 28, 2005, recommended the amended petition be sustained, the children be removed from their parents’ care, and that both parents receive reunification services. Mother reported that she was homeless. She explained that she had made arrangements for the children’s care, and both parents admitted to having substance abuse problems. The maternal uncle and aunt stated that Mother has a history of leaving the children with people for extended periods of time when no one knows her whereabouts or how to contact her. However, her interactions with the children during visits were appropriate.
On November 28, 2005, Father submitted to the petition as amended. On January 9, 2006, Mother entered a plea of “no contest.” That same day, the court sustained the petition as amended, found Father to be the presumed father of Gabriella, and ordered the children to remain in out-of-home care. Reunification services were ordered for both parents. With no indication of any response from the BIA or the Blackfeet Tribe, the court found that the provisions of the Indian Child Welfare Act (ICWA) do not apply. The children were continued in their current relative placement.
The court also found Benjamin Lynn to be the presumed father of Angelina; however, he died on September 17, 2002.
The record also fails to contain copies of the certified return receipt that would provide proof the BIA and Blackfeet Tribe actually received notice. Instead, the record only contains a certificate of mailing and a copy of the certified mail receipt identifying the Blackfeet Tribe and the BIA but failing to include a postmark. As to the Blackfeet Tribe, the certificate of mailing is blank.
On March 24, 2006, following the birth of A.R., the Department filed another petition alleging that A.R. came within section 300, subdivisions (b), (g) and (j). Both Mother and A.R. tested positive for amphetamine. A.R. was removed from Mother’s care and placed with his maternal aunt and siblings. While Mother acknowledged at the detention hearing that ICWA does not apply from her side, she completed a JV-130 form wherein she checked the box which states, “I may have Indian ancestry.”
On April 7, 2006, A.R.’s alleged father completed a form JV-130 stating, “I may have Indian ancestry.” However, he did not identify any tribe. On April 10, the Department mailed a form JV-135 to the BIA. On April 17, at the jurisdiction/disposition hearing, the court sustained the petition and ordered the child to remain in out-of-home care. Mother was given reunification services. The court further found that ICWA may apply and set an ICWA review for June 23.
Although Mother never identified the Blackfeet Tribe, clearly the Department was aware of the possibility of such ancestry, given the fact that Mother had previously identified the tribe and three is no evidence in the record that the Blackfeet Tribe had received notice as to the first two children. Nonetheless, the Department never sent notice to the Blackfeet Tribe as to A.R.
On May 26, 2006, the Department received a letter from the BIA requesting more information. On June 6, the BIA was informed that the parents/relatives had been contacted; however, there was no additional information available. At the June 23 hearing, Mother’s counsel was present and did not object to the court’s finding that ICWA did not apply to A.R.
In the Department’s July 6, 2006, six-month review report, the social worker recommended that Gabriella and Angelina remain in out-of-home care and that both parents receive six more months of services. Initially, Mother made minimal effort on her plan; however, in April 2006, she was accepted into an inpatient drug treatment program and she stayed sober for thirty days. She relapsed on May 17. Father was in custody on a parole violation with a release date of June 30. To his credit, Father was participating in his reunification plan and completed a parenting class. Both parents were visiting the children. On July 6, the court ordered the children to remain in their current placement and reunification services to be continued for both parents. On October 17, the court made similar orders concerning A.R.
All of the children’s cases were set for a 12-month review on December 21, 2006. The Department reported that both parents failed to make substantial progress on their reunification plans and recommended that all services be terminated and a permanent plan hearing be set. The children were doing well in the current placement with the maternal aunt who was willing to adopt them. Mother resumed her drug use and ceased participating in services. Father had not made any effort to see Gabriella, complete his substance abuse treatment, or contact either the social worker or Gabriella since his prison release on June 30, 2006.
A contested hearing was set for January 24, 2007. Mother appeared but Father did not. The court terminated reunification services for both parents and set a section 366.26 hearing. Both parents filed a notice of intent to file a writ petition. Both Father’s and Mother’s counsel filed a brief stating there were no issues, and this court thus denied both petitions.
A section 366.26 hearing was set for May 24, 2007. The Department recommended that all parental rights be terminated and that the children be freed for adoption. Father had not had any contact with Gabriella from June to December 2006. He contacted the social worker in February 2007. Subsequently, he wrote four letters to the social worker and Gabriella. Mother had sporadic contact with the children. The adoption assessment report was very positive. The hearing was continued to July 5, 2007.
Father was incarcerated again. According to the social worker, when Father is incarcerated, he becomes more involved in this case and takes initiative to keep the Department informed of his status. However, once Father is released, he stops calling and writing. At the hearing, Father asked for six more months of services after his anticipated release date. Mother noted that the girls called her “Mommy” and she claimed to have been sober for about four weeks. The court reviewed its prior ICWA findings. It verified there were minute orders for each child (January 9, 2006, for the girls and June 23, 2006, for A.R.) where the court had found that ICWA did not apply. No one complained about the ICWA procedures. After reading and considering the applicable reports and hearing the argument of counsel, the court found by clear and convincing evidence that the children are adoptable, and thus, it terminated all parental rights. Both parents appeal.
II. COMPLIANCE WITH ICWA
The pertinent facts are undisputed. When the juvenile court first asked Mother and Father at the detention hearing whether they had Indian ancestry, both parents replied “No.” However, in the form JV-130 (also referred to as the Parental Notification of Indian Status), which Mother filed the next day, she checked the box that says that she “may have Indian ancestry.” Mother left blank the space indicating the name of the tribe. Father (Neko or Nicolas) checked the box which stated he had “no Indian ancestry.” On November 16, 2005, the Department sent a form JV-135 to the BIA. On November 17, Mother informed the Department that she “may have Blackfeet Indian Heritage. The Department immediately sent a form JV-135 to the Blackfeet Tribe in Montana. As of April 17, 2006, there was no indication of any response from BIA or the Blackfeet Tribe. The juvenile court had previously found (on January 9, 2006) that the provisions of ICWA did not apply.
Following the birth of A.R., another petition was filed on March 24, 2006. At the detention hearing, Mother acknowledged that ICWA did not apply from her side; however, she again completed a JV-130 form wherein she said, “I may have Indian ancestry.” A.R.’s alleged father also completed a JV-130 form stating that he may have Indian ancestry; however, he did not identify any tribe. Finding that ICWA may apply, the court set an ICWA review hearing for June 23. On May 26, the BIA requested more information from the Department. On June 6, the Department replied that there was no additional information available. At the June 23 hearing, the court found that ICWA did not apply as to A.R. and neither parent objected to such finding.
At the section 366.26 hearing, the juvenile court reviewed its prior findings that ICWA did not apply. No one complained about the ICWA procedures.
The essence of both parents’ contentions is that the ICWA notices were inadequate because they lacked information, they contained erroneous information, and the court should have waited for a response to the form JV-135 from either the BIA or the Blackfeet Tribe before finding that ICWA did not apply.
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 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.)
The obvious response to the first two claims, which challenge the adequacy of the ICWA notices because they lacked information or contained erroneous information, is that Mother was inconsistent in her own opinion about whether she had Indian ancestry. Nonetheless, what information she did possess, the Department included it in the form JV-135 notices. To the extent Mother argues that the notices also failed to contain any information about Indian ancestry from Father’s side of the family, the Department correctly notes that the notices contained the name “Neko” as Father spelled it on his form JV-130. Moreover, we note that Father did not claim any Indian ancestry. Regarding the correct spelling of A.R.’s name, the record shows that his name was not correctly spelled until March 7, 2007, long after the last ICWA inquiry had been sent and long after the court had found that A.R. was not an Indian child. Considering the lack of any evidence to support a finding, let alone a claim, that the BIA had a record of A.R.’s name, a subsequent notice was unnecessary. A finding that A.R. has Indian ancestry rests on whether his parents are of Indian decent.
As to the Indian ancestry of Angelina’s father, the fact that the Department did not include the names of the father and the paternal grandparents on the notice is irrelevant absent some indication that the child may have Indian ancestry through her paternal line. Mother does not claim that Angelina’s father has Indian ancestry. Moreover, finding the notice inadequate because it did not include information about a parent who does not claim Indian ancestry would be a classic instance of exalting form over substance, absent a statutory purpose for such information. Although the information arguably is required, and the better practice is to include it, when a parent states unequivocally that the parent does not have Indian ancestry, or when a parent fails to provide any indication of Indian ancestry, an ICWA notice is adequate even though it does not include information about that parent. Here, Mother was inconsistent in her claim of having Indian ancestry, and she failed to provide any information about the ancestry of Angelina’s father. Both the juvenile court and Department were entitled to rely on the information that Mother provided. Therefore, we conclude that the ICWA notice was adequate even though it did not include information about Angelina’s deceased father.
Likewise, there was no information about A.R.’s father’s ancestry. The juvenile court thus found that ICWA did not apply as to A.R. and Mother’s counsel did not object to this finding.
Regarding the parents’ claim that the juvenile court should not have made an ICWA finding without an actual response from the BIA or the Blackfeet Tribe, the Department responds that if there was no return receipt received by the Department, then there was no filing requirement. We are troubled with this response because the record is void of any response from either the BIA or the Blackfeet Tribe regarding Gabriella and Angelina. There are no certified mail receipts to show that the notices were received. In contrast, after the Department sent notice to the BIA regarding A.R., the BIA sent back a request for further information. Because A.R.’s possible Indian ancestry was to be traced through Mother, we question why the BIA did not make the same request for the older children. Logic suggests that neither the BIA nor the Blackfeet Tribe received notice as to the older children.
A social services agency may comply with the notice requirements of ICWA by serving a completed copy of form JV-135 (Notice of Involuntary Child Custody Proceedings for an Indian Child (Juvenile Court)), by registered or certified mail, with return receipt requested, to the persons identified and as otherwise provided in California Rules of Court, rule 1439(f), renumbered rule 5.664(f). And, to enable the juvenile court to determine whether the Department has complied with the notice requirements of ICWA, copies of form JV-135, the certified mail receipts, and all responses received must be filed with the juvenile court. (California Rules of Court, rule 1439(f), now rule 5.664(f); In re Karla C. (2003) 113 Cal.App.4th 166, 178-179.)
Effective January 1, 2007, the California Rules of Court were renumbered and revised. Because notices were sent in 2005 and 2006, rule 1439 applies.
Here, no certified mail receipts or any responses from the BIA and the Blackfeet Tribe were filed with the juvenile court. Given the absence of such documents, coupled with the BIA’s response to the notice regarding A.R. (i.e., requesting more information), we are not convinced that the Department adequately complied with the notice requirements of ICWA as to Gabriella and Angelina. (In re Glorianna K. (2005) 125 Cal.App.4th 1443, 1449; In re Jonathan D. (2001) 92 Cal.App.4th 105, 110; In re Desiree F. (2000) 83 Cal.App.4th 460, 474.) As to A.R., the record supports a finding that notice was sent to the BIA but not to the Blackfeet Tribe.
We also note that pursuant to California Rules of Court, rule 1439(f)(6) (now rule 5.664(f)) and Welfare and Institutions Code section 224.3, subdivision (e)(3), the juvenile court may not determine that ICWA does not apply until “a reasonable time following the sending of notice under [California Rules of Court, rule 1439(f)] — but in no event less than 60 days.” (California Rules of Court, rule 1439(f)(6).) However, here, regarding Gabriela and Angelina, notice was sent on November 16 and 17, 2005. On January 9, 2006, the court determined that ICWA did not apply. Given these dates, such determination was made less than 60 days from the date notice was sent.
Although the failure to comply with the ICWA’s notice requirements is subject to reversal, we find that only a conditional remand is necessary to ensure compliance. (See In re Francisco W. (2006) 139 Cal.App.4th 695, 710-711.) Accordingly, we will conditionally reverse the judgment and remand the matter for the limited purpose of allowing the Department to properly comply with ICWA notice requirements, and to reinstate the judgment if, after proper notification, neither the BIA nor the Blackfeet Tribe intervenes. More specifically, the Department should correct any misinformation in the notices and it should provide proof that the BIA and the Blackfeet Tribe received notices as to all three children.
III. SECTION 366.26, SUBDIVISION (c)(1)(A) EXCEPTION
Section 366.26, subdivision (c)(1)(A) provides that removal of a child from parental custody, termination of reunification services, and a finding of a likelihood of adoption “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” because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” Mother contends that her relationship with the children satisfied this exception. Father joins in this contention on the ground that if successful, it would preclude a termination of his parental rights.
Courts have reached different conclusions as to the standard of review that applies to a juvenile court’s ruling on exceptions to adoptability under section 366.26, subdivision (c)(1). In In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576, the court held that a finding that no exceptional circumstances exist to prevent the termination of parental rights is reviewed under the substantial evidence test. In contrast, in In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351-1352, the court applied the abuse of discretion standard of review. Other courts, including the Fourth Appellate District, have treated the matter as a factual determination, subject to the substantial evidence test. (See, e.g., In re L.Y.L. (2002) 101 Cal.App.4th 942, 953; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1207; In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) For purposes of the present case, it makes no difference which standard applies because, as we discuss below, we conclude that the juvenile court did not err under either test.
“The ‘benefit exception’ found in section 366.26, subdivision (c)(1)(A) may be the most unsuccessfully litigated issue in the history of law.” (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255, fn. 5, disapproved on other grounds by In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) The parent has the burden of establishing the foundational facts for the exception. (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) Section 366.26, subdivision (c)(1) provides: “[T]he court shall terminate 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 following circumstances: [¶] (A) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
The burden was upon Mother to establish the facts necessary for the section 366.26, subdivision (c)(1)(A), exception to apply. (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1119-1120.) Her burden was substantial. She was required to demonstrate that “the relationship promotes the well-being of the child[ren] to such a degree as to outweigh the well-being the child[ren] 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[ren] of a substantial, positive emotional attachment such that the child[ren] 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[ren] will always confer some incidental benefit to the child[ren]. The significant attachment from child[ren] to parent results from the adult’s attention to the child[ren]’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[ren] to parent.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
On appeal, Mother claims that she “had maintained contact with the [children]. [She] not only visited [them,] she made regular phone calls.” Mother points to the various reports prepared by the Department where the social worker acknowledged the visits, Mother’s appropriate behavior, and the fact that the children appeared to have a good time. Thus, Mother argues that the “evidence was sufficient to support the benefit exception and the court should have ordered guardianship or long term foster care as requested . . . .” We agree the evidence shows that Mother loved the children and had a bond with them. However, there is no evidence that a strong relationship between Mother and the children existed such that adoption would result in great harm to them. Under such circumstances, we cannot conclude that the juvenile court abused its discretion in finding that Mother failed to establish the applicability of the section 366.26, subdivision (c)(1)(A), exception.
Alternatively, there was substantial evidence to support the juvenile court’s conclusion that the exception did not apply. While there may have been evidence that Mother participated in visitation, the Department notes that “for the last 12 months of these 20-month-long proceedings [Mother] did not keep up consistent visitation . . . .” The maternal aunt stopped announcing visitation days to the children because they would become disappointed when Mother did not appear. As the situation became worse, the Department required Mother to call ahead by a specific time in order to confirm her intent to make the scheduled visit. Because we do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts but instead must consider the record most favorably to the juvenile court’s order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion, we must conclude that Mother has not demonstrated that the juvenile court committed reversible error.
To overcome the preference for adoption, a parent-child relationship must be such that severing it “would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed . . . .” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Here, Mother failed to sustain her burden of showing that her attachment to the children rose to that level. Accordingly, the court did not err in declining to apply the section 366.26(c)(1)(A) exception.
IV. DISPOSITION
The judgment is reversed for the limited purpose of complying with ICWA notice requirements. On remand, Mother is directed to provide the Department with all information available to her regarding her Indian ancestry, including the names of the ancestors from whom Mother claims Indian ancestry and the correct spelling of each name. The Department is directed to confirm that it has complied with the notice requirements with respect to the BIA and the Blackfeet Tribe as to Gabriella and Angelina, and with respect to the Blackfeet Tribe as to A.R., by providing the certified return receipts. If, after receiving proper notice, an Indian tribe intervenes, the juvenile court shall proceed in accordance with ICWA. If no Indian tribe intervenes after receiving proper notice, the judgment shall be reinstated.
We concur: RICHLI J. MILLER J.