Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Kenneth Fernandez, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.), Super.Ct.No. SWJ3334.
Brent Riggs, 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.
Karen Dodd, under appointment by the Court of Appeal, for Minor.
OPINION
HOLLENHORST, Acting P.J.
Appellant Christie A. (mother) appeals from a Welfare and Institutions Code section 366.26 order terminating parental rights to her child, Haley (the child). On appeal, mother argues that: 1) the juvenile court abused its discretion in denying her request for a continuance of the section 366.26 hearing; 2) her trial counsel rendered ineffective assistance of counsel (IAC) when he failed to argue the beneficial parental relationship exception (former § 366.26, subd. (c)(1)(A), now § 366.26, subd. (c)(1)(B)(i)) at the section 366.26 hearing; and 3) the court failed to ensure compliance with the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; hereafter, ICWA). We affirm the order, but agree with mother’s ICWA claim. Therefore, we will conditionally vacate the judgment and remand the matter to the juvenile court with directions to order compliance with the ICWA notice provisions.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise indicated.
Counsel for the child filed a brief on September 20, 2007, joining in respondent’s brief and urging us to affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
On June 1, 2004, when the child was five months old, the Riverside County Department of Public Social Services (the department) filed a petition on behalf of the child, alleging that she came within section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). The petition specifically alleged that: 1) on May 27, 2004, mother was arrested on charges of being under the influence of a controlled substance, possession of drugs for sale, and child endangerment; 2) mother abused controlled substances, as evidenced by her admission that she had used methamphetamine regularly for several years; 3) on May 27, 2004, drugs and paraphernalia were found in the bedroom where the child slept, within the child’s access; 4) the child’s father (father) had an extensive criminal history; and 5) mother and father were currently incarcerated and, thus, unable to take care of the child.
Father is not a party to this APPEAL.
The juvenile court detained the child and ordered supervised visitation. The court also ordered mother (and father) to participate in reunification services pending further hearing. Mother’s case plan requirements included participating in individual and conjoint counseling, completing a parenting education program, participating in random drug testing, and completing an outpatient drug treatment program, including aftercare.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report and stated that ICWA “does or may apply.” Mother told the social worker that her father’s side of the family was Chickasaw and Choctaw Indian from Oklahoma.
The social worker further reported that mother tested positive for methamphetamine and marijuana use on June 16, 2004. The social worker also commented that mother exercised extremely poor judgment by being in a relationship with a convicted felon (mother’s boyfriend) and allowing him to live in her home while her husband was completing his prison sentence. Mother’s substance abuse problem seriously impaired her judgment and parenting ability.
The jurisdiction/disposition hearing began on June 28, 2004, but the court continued the hearing to July 20, 2004, pursuant to the department’s request, so that it could properly notice the Indian tribes. On July 12, 2004, the department sent notice of the continued jurisdiction/disposition hearing to the Chickasaw Nation of Oklahoma and the Choctaw Nation of Oklahoma, as well as the Bureau of Indian Affairs (BIA) and the Indian Child and Family Services.
On July 20, 2004, the department filed an amended petition, striking a few of the allegations from the original petition. The court found that the child came within the provisions of section 300, subdivision (b), and declared her a dependent child. The court also ordered mother to participate in reunification services. In addition, at mother’s request, the court authorized the child to be placed with mother in her inpatient drug treatment program, under certain conditions.
Six-Month Status Review
The social worker filed a six-month status review report and recommended that mother be offered six more months of reunification services. With regard to ICWA, the report simply stated that ICWA did not apply, without further explanation. The social worker reported that the child was placed with the paternal grandmother and was doing well there. Mother visited the child three to five times per week at the paternal grandmother’s home. The child consistently recognized mother as her mother and apparently had a bond with her.
The social worker noted concerns about mother, including that she was discharged from her inpatient drug program when she was caught meeting her husband for cigarettes, that she refused to participate in the aftercare program after completing an outpatient drug program, and that she maintained a relationship with her husband, who remained active in his illegal drug usage. The social worker was also concerned about mother’s financial situation, in that she only worked 20 to 30 hours per week, and she had to live with her mother in the same apartment from which the child was removed, which was not safe for the child.
At the six-month review hearing, the court found that mother had made substantial progress and that there was a substantial probability that the child could be returned to mother’s custody in six months. The court continued reunification services and set a 12-month review hearing for July 20, 2005.
12-Month Status Review
The social worker filed a 12-month status review report and recommended that the court terminate reunification services and set a section 366.26 hearing to establish adoption as the permanent plan for the child. The social worker reported that mother tested positive for methamphetamine in May 2005. Mother initially denied using methamphetamine, but then admitted use. As to visitation, the paternal grandmother reported that mother’s visits during this period were sporadic, but had improved recently due to the upcoming status review hearing. Thus, the social worker opined that there was no longer a substantial probability of the child being reunified with mother, since mother had recently relapsed into drug use, was discharged from her aftercare program for noncompliance, and still had not located suitable housing. In an addendum report, the social worker stated that mother again tested positive for methamphetamine on June 22, 2005.
At the 12-month status review hearing, the court found that mother failed to make substantive progress in her case plan, and that there was no substantial probability that the child would be returned to mother’s custody in six months. The court terminated reunification services and set a section 366.26 hearing for November 29, 2005. The hearing was continued several times.
Section 388
On February 16, 2006, mother filed a section 388 petition, requesting the court to place the child with her on family maintenance and reinstate reunification services. Mother alleged that she tested negative for controlled substances on October 19, 2005, and that she completed an aftercare program. Mother also informed the court that she visited the child almost every other day and on the weekends, and that she played with the child, fed her, gave her baths, and put her to bed. The court granted the petition, ordered six more months of reunification services, until September 7, 2006, and took the section 366.26 hearing off calendar. Before granting the petition, the court noted mother’s frequent contact with the child and that her petition was “really impressive” with regard to her continued relationship with the child.
18-Month Status Review
The social worker filed an 18-month status review report and recommended that reunification services be terminated and a section 366.26 hearing be set. The social worker reported that mother was scheduled for nine drug tests, but only showed up on four of the test dates. The results of those four tests were negative. Mother had two excuses for missing the tests that appeared valid; she did not respond when asked about why she missed the other tests. The social worker noted that the last time she met with mother, on August 14, 2006, mother showed signs of continued drug use (i.e., her cheeks were sunken in, her eyes were wide open and alert, her teeth were discolored, etc.) Furthermore, after more than 18 months, she still had not obtained suitable housing and continued to live with her mother.
On October 18, 2006, mother did not appear in court for the status review hearing. The matter was continued to December 4, 2006. The social worker filed an addendum report, which stated that mother was scheduled to drug test six times from September 2006 to November 2006, but only showed up for one test on November 22, 2006. On that day, she tested positive for methamphetamine.
On December 4, 2006, mother asked the court to continue the hearing again so that a second hair follicle test could be performed. Mother denied any substance abuse and questioned the accuracy of the drug test report. The court denied the request and found that return of the child to mother’s custody would create a substantial risk of detriment to the child, and that mother had failed to complete her case plan. The court set a section 366.26 hearing for February 1, 2007.
Section 366.26 Hearing
The social worker filed a section 366.26 report recommending termination of parental rights and adoption as the permanent plan. The social worker attached an adoption assessment to the section 366.26 report which identified the paternal grandmother as the prospective adoptive parent. The paternal grandmother had a deep bond with the child and wanted to adopt her. She was supportive of the child maintaining a relationship with mother.
The section 366.26 hearing was held on February 1, 2007, but mother failed to appear. The court noted that mother was personally ordered to appear at 8:00 a.m. and that the case was called at 10:00 a.m. Mother’s counsel was present and requested a continuance. Mother’s counsel did not know why mother was not present, and had not received any messages from her on his voicemail that morning. He said that he spoke with mother the previous week, and she indicated that she would be there. The court found that there was no good cause to grant a continuance under the circumstances, noting that it gave mother’s counsel a chance to check his voicemail messages and a chance to go into the hallway and call out mother’s name. The court thus denied the motion. The court then proceeded to terminate parental rights, finding that none of the exceptions in former section 366.26, subdivision (c)(1)(A) through (F) (now § 366.26, subd. (c)(1)(B)(i)-(vi)) applied. The court found that adoption was in the best interest of the child.
ANALYSIS
I. The Court Properly Denied Mother’s Request for a Continuance
Mother argues that the court abused its discretion in denying her counsel’s request for a continuance at the section 366.26 hearing. We find no abuse of discretion.
A. Standard of Review
“The juvenile court may continue a dependency hearing at the request of a parent for good cause and only for the time shown to be necessary. [Citations.] Courts have interpreted this policy to be an express discouragement of continuances. [Citation.] The court’s denial of a request for continuance will not be overturned on appeal absent an abuse of discretion. [Citation.]” (In re Karla C. (2003) 113 Cal.App.4th 166, 179.)
B. The Court Did Not Abuse Its Discretion
Mother’s counsel made an oral motion for a continuance at the section 366.26 hearing for the sole reason that mother had not appeared for the hearing. The court had provided mother’s counsel with an opportunity to check his voicemail messages and to call out mother’s name in the court hallway, prior to calling the matter for hearing. Mother’s counsel had no explanation for her absence.
Furthermore, on appeal, mother still provides no excuse or reason for her failure to appear. She simply asserts that she attended most of the hearings during the dependency and that she had tried for over two years to have the child returned to her. She also contends that “it should have been clear to all present [at the section 366.26 hearing] that [she] had either mistaken the hearing date or been prevented from attending the hearing and contacting her counsel.” Mother has only offered speculative excuses for her absence at the hearing, which we reject. (See People v. Gerardo A. (2004) 119 Cal.App.4th 988, 995.)
In view of the lack of evidence or explanation before the court at the section 366.26 hearing, there was no good cause to continue the hearing. Thus, the court properly denied mother’s request for a continuance.
II. Mother’s IAC Claim Fails Because the Beneficial Parental Relationship
Exception Did Not Apply
Mother argues that she received IAC when her attorney failed to argue the beneficial parental relationship exception (former § 366.26, subd. (c)(1)(A), now § 366.26, subd. (c)(1)(B)(i)) at the section 366.26 hearing. Mother’s IAC claim fails.
A. Mother’s IAC Claim Needs to Be Brought by Writ of Habeas Corpus
At the outset, we note that mother has improperly raised her IAC claim on appeal. “‘In general, the proper way to raise a claim of ineffective assistance of counsel is by writ of habeas corpus, not appeal. [Citations.] . . . [A]n ineffective assistance claim may be reviewed on direct appeal [only] where “there simply could be no satisfactory explanation” for trial counsel’s action or inaction. [Citation.]’ [Citations.] Usually, however, ‘[t]he establishment of ineffective assistance of counsel most commonly requires a presentation which goes beyond the record of the trial. . . . Action taken or not taken by counsel at a trial is typically motivated by considerations not reflected in the record. . . . Evidence of the reasons for counsel’s tactics, and evidence of the standard of legal practice in the community as to a specific tactic, can be presented by declarations or other evidence filed with the writ petition. [Citation.]’ [Citations.]” (In re Darlice C. (2003) 105 Cal.App.4th 459, 463.) Here, the evaluation of mother’s counsel’s decisions and tactics would require consideration of matters outside the appellate record. Accordingly, the issues must be adjudicated by means of petition for writ of habeas corpus.
Nonetheless, mother’s IAC claim is without merit.
B. Standard of Review
To prevail on the claim of IAC, mother must demonstrate both that her attorney failed to act in the manner expected of a reasonably competent advocate, and that it is reasonably probable that a more favorable determination would have been made in the absence of counsel’s error. (Strickland v. Washington (1984) 466 U.S. 668, 687-696 [104 S.Ct. 2052, 80 L.Ed.2d 674]; In re Cox (2003) 30 Cal.4th 974, 1019-1020 (Cox).) A failure on either showing will result in rejection of the claim. (Cox, supra, at pp. 1019-1020.)
C. Mother Cannot Show That She Was Prejudiced by Her Counsel’s Failure to Argue the Beneficial Parental Relationship Exception
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 now subject to six statutory exceptions. (former § 366.26, subds. (c)(1)(A)-(F), now § 366.26, subd. (c)(1)(B)(i)-(vi).) The beneficial parental relationship exception in former section 366.26, subdivision (c)(1)(A) (now § 366.26, subd. (c)(1)(B)(i)) 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 (Autumn H.).) 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.)
Here, mother claims that this exception applies merely because she maintained regular visitation with the child, the child enjoyed the visits, the child called her “‘mama,’” and one judicial officer described the relationship as “‘really impressive.’” It is undisputed that mother regularly visited the child. However, mother’s interactions with the child do not even begin to demonstrate that her relationship with the child promoted the child’s 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.) Other than satisfactory visitation, mother has proffered no evidence to support a finding that the child had a “substantial, positive emotional attachment [with her] such that the child would be greatly harmed” if the relationship was severed. (Ibid.)
Mother further argues that “courts should seemingly be more willing to find an exception to termination of parental rights when guardianship [with a member of the child’s family] is an option.” There is no statutory exception to support mother’s position. (former § 366.26, subds. (c)(1)(A)-(F), now § 366.26, subd. (c)(1)(B)(i)-(vi).)
We conclude that, since there was no evidence to support the application of the beneficial parental relationship exception under former section 366.26, subdivision (c)(1)(A) (now § 366.26, subd. (c)(1)(B)(i)), it is not reasonably probable that a more favorable determination would have been made if mother’s counsel had argued such exception. Therefore, mother’s IAC claim fails.
III. The Record Fails to Show That the ICWA Notice Requirements Were Met
Mother contends that the court failed to assure that proper ICWA notice was given to the appropriate Indian tribes. Respondent correctly concedes.
A. Notice Requirements Under the ICWA
“In any involuntary proceeding in a State court, where 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 child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” (25 U.S.C. § 1912(a).) (See In re Samuel P. (2002) 99 Cal.App.4th 1259, 1264-1265.) “One of the primary purposes of giving notice to the tribe is to enable it to determine whether the minor is an Indian child. [Citation] Notice is meaningless if no information or insufficient information is presented to the tribe. [Citation.] The notice must include . . . information about the Indian child’s biological mother, biological father, maternal and paternal grandparents and great-grandparents or Indian custodians, including maiden, married and former names or aliases, birthdates, places of birth and death, current and former addresses, tribal enrollment numbers, and/or other identifying information. [Citations.]” (In re S.M. (2004) 118 Cal.App.4th 1108, 1115-1116, fn. omitted.)
When the notice sent is inadequate, the orders of the court terminating parental rights should be vacated and the matter should be remanded to the juvenile court with directions to order compliance with the ICWA notice provisions. (In re Jonathan D. (2001) 92 Cal.App.4th 105, 111.) “If, after proper inquiry and notice, no response is received from a tribe indicating the minor is an Indian child, all previous findings and orders shall be reinstated. If a tribe determines that the minor is an Indian child, or if other information is presented to the juvenile court that suggests the minor is an Indian child as defined by [ICWA], the juvenile court is ordered to conduct a new section 366.26 hearing in conformity with all provisions of [ICWA].” (Id. at pp. 111-112; see also, Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 261.)
B. The ICWA Notices Sent to the Tribes Were Deficient
Respondent states that the ICWA notices sent to the tribes were not admitted into evidence. Indeed, the record only shows that the department sent notice of the continued jurisdiction/disposition hearing to the Chickasaw and Choctaw Nations of Oklahoma, the BIA, and the Indian Child and Family Services. The record does not show that the tribes were sent the required ICWA notices which included information about the child to enable the tribes to determine whether the minor was an Indian child. Thus, the notices sent were inadequate.
DISPOSITION
The order of the juvenile court terminating parental rights is vacated, and the matter is remanded to the juvenile court with directions to order compliance with the ICWA notice provisions. If, after proper inquiry and notice, no response is received from a tribe indicating the child is an Indian child, all previous findings and orders shall be reinstated. If a tribe determines that the child is an Indian child, the juvenile court is ordered to conduct a new section 366.26 hearing in conformity with all provisions of ICWA.
We concur: GAUT, J., MILLER, J.