Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEALS from an order of the Superior Court of Los Angeles County Ct. No. LK04159, Daniel Zeke Zeidler, Judge. Reversed and remanded with directions.
Merrill Lee Toole, under appointment by the Court of Appeal, for Defendant and Appellant H.K.
Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant C.R.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Melinda White-Svec, Deputy County Counsel, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendants and Appellants H.K. and C.R. each appeal from the order terminating their parental rights over H.K. II pursuant to Welfare and Institutions Code section 366.26. We reverse on a limited basis and remand with instructions for further proceedings.
All further statutory references are to the Welfare and Institutions Code, unless otherwise expressly identified.
FACTUAL AND PROCEDURAL BACKGROUND
In 2007, paramedics were called and took H.K. (Mother) and H.K. II from their location to the hospital shortly after H.K. II was born prematurely at the location. Mother tested positive for marijuana. The Department of Children and Family Services (DCFS) detained H.K. II at the hospital. C.R. (Father) was in a drug rehabilitation facility at the time. DCFS filed a section 300 petition on April 26, 2007 and a first amended section 300 petition on August 24, 2007. At the April 26, 2007 detention hearing, the juvenile court ordered DCFS to explore placing H.K. II in the adoptive home of one of H.K. II’s siblings.
At the September 17, 2007 hearing, the juvenile court sustained the allegations in the first amended petition, with certain changes, regarding Mother and Father. The findings are summarized as follows: Mother had a seven-year history of illicit drug and alcohol abuse and was currently a marijuana user. Mother tested positive for marijuana while she was pregnant. Mother had mental and emotional problems including at least one involuntary hospitalization. In proceedings initiated in prior years, the juvenile court had terminated Mother’s parental rights with respect to H.K. II’s three siblings due to Mother’s illicit drug abuse. Mother’s illicit drug abuse and mental and emotional condition rendered Mother incapable of providing regular care for H.K. II and endangered H.K. II’s physical and emotional health and safety, placing H.K. II at risk of physical and emotional harm and damage.
Father had a seven-year history of substance abuse including alcohol abuse and had mental and emotional problems including a diagnosis of major depression with a history of psychotic features. Father was the parent of two of H.K. II’s siblings. In prior proceedings, the juvenile court had terminated Father’s parental rights as to a sibling due to his substance abuse. Father’s substance abuse and mental and emotional condition rendered Father incapable of providing regular care for H.K. II and endangered H.K. II’s physical and emotional health and safety, placing H.K. II at risk of physical and emotional harm and damage.
On the date originally scheduled for the jurisdictional/dispositional hearing, May 30, 2007, Mother and Father submitted Parental Notification of Indian Status forms, each indicating that they had no Indian ancestry. As the result of subsequent indications of Indian heritage by the parents at a DCFS interview on June 4, 2007, however, DCFS sought to comply with notice requirements set forth in the federal Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and its codification in California law in section 224 et seq. (referred to herein as ICWA notice). DCFS sent notices to Blackfeet and Cherokee Tribes, the federal Bureau of Indian Affairs (BIA) and the Secretary of the Interior. Responses indicated that H.K. II was not an Indian child within the meaning of ICWA.
At the July 11, 2007 hearing, DCFS informed the juvenile court that Mother had indicated that the information on the ICWA notices was incorrect. The court ordered DCFS to send new ICWA notices. At the July 19, 2007 hearing, the juvenile court noted that the new ICWA notices were sent on July 16 and continued the matter in order to allow for receipt of the return receipts and responses from the tribes. Return receipts were filed from the Cherokee Nation, the Secretary of the Interior, the United Keetoowah Band of Cherokee Indians, the BIA Sacramento office, the Blackfeet Tribe, and the Eastern Band of Cherokee. Responses were received from the BIA office in Sacramento, the BIA office in Riverside, the United Keetoowah Band of Cherokee Indians in Oklahoma, the Cherokee Nation, and the Cherokee Center for Family Services of the Eastern Band of Cherokee.
Only one copy of H.K. II’s ICWA notice was filed, the copy being a part of the response from the BIA Riverside office. DCFS used the information from prior ICWA notices sent out in June 2004 in connection with dependency proceedings for one of H.K. II’s siblings. The 2004 ICWA notices did not include family member names and other information provided by the maternal grandfather by letter to DCFS social worker Ruben Jimenez III in June 2003. Jiminez sent a supplemental letter to each 2004 ICWA notice addressee with the additional information. However, there is no record of such supplemental information being submitted for H.K. II to any of the ICWA notice addressees, and the omission from H.K. II’s ICWA notices was not brought to the court’s attention. At the September 17, 2007 hearing, the juvenile court found that ICWA notice was complete, H.K. II was not an Indian child and the ICWA did not apply.
The response from the Cherokee Nation lists the complete information available to H.K. II’s family, but that is insufficient proof that all the information was included on the ICWA notice for H.K. II. There is no copy of H.K. II’s ICWA notice attached to confirm that the notice included all the information. It is possible that the Cherokee Nation added the information from the maternal grandfather which it received in the supplemental letter from Jimenez as part of the 2004 ICWA notice process regarding H.K. II’s sibling.
The Addendum Report dated September 17, 2007 indicated that the DCFS visitation monitor reported that during one visit, Father was observed looking at an open cell phone for 30 minutes during a visit. The parents were observed asking each other the time and constantly looking at their watches for the last few minutes of the visit. Father was observed making H.K. II stand by holding only H.K. II’s hands.
The juvenile court declared H.K. II a dependent of the court under section 300, subdivision (b), at a hearing on September 17, 2007. The court ordered that no reunification services be provided for Mother or Father.
Prior to the hearing, a DCFS Children’s Services Worker reported that during their visitations with H.K. II, the parents got irritated with H.K. II when she cried. Father tried to calm her by feeding her although he had previously been instructed not to disrupt H.K. II’s feeding schedule. Father was instructed numerous times how to do the ophthalmologist’s recommended eye exercises with H.K. II but was unable to follow the instructions.
DCFS filed its section 366.26 report on January 15, 2008, recommending termination of Mother’s and Father’s parental rights and adoption as a permanent placement plan for H.K. II. Prospective adoptive parents had been identified, and their home study had been approved. H.K. II had been living with them since she was released from the neonatal intensive care unit at the hospital shortly after her birth.
Parents had a record of being present for most of the scheduled visits with H.K. II, with the exception of October 2007 scheduled visits. Throughout the course of the visits, Mother and Father continued to have challenges with respect to simple tasks such as feeding and diapering H.K. II. Although both parents had been advised to bring toys, food or clothing for H.K. II when they visited, they brought toys and clothes only two to three times. The regional center evaluated H.K. II as having special needs for which the center was continuing to provide services.
Although Father initially indicated that he was not a marijuana user, Father’s treating physician provided written verification of his prescription for Father for medical marijuana effective August 15, 2007. Father tested positive for cannabis at his required drug tests, beginning on August 19, 2007 and last reported on December 20, 2007. He missed numerous testing dates during that time period.
On March 4, 2008, the juvenile court held a contested hearing regarding termination of parental rights. Mother and Father opposed termination of their parental rights on the basis that an exception exists under section 366.26, subdivision (c)(1)(B)(i), in that they had maintained regular visitation and contact with H.K. II, and H.K. II would benefit from continuing the relationship.
The juvenile court accepted the stipulation of all parties that the parents had been visiting H.K. II regularly and were appropriate during the visits. However, the court determined that the visits, which occurred one hour twice a week, were inadequate to show that Mother and Father had a parental role in H.K. II’s life and a sufficient parental relationship with H.K. II to determine that it would benefit H.K. II to be placed in their care. The parents had never lived with H.K. II or provided care such as diapering and feeding H.K. II on a daily basis. The court stated that it could not find that the parents’ visitation showed a parental relationship with H.K. II to a level that outweighed the benefit of adoption for the 11-month old, especially in light of the history of the parents with respect to their other children.
The juvenile court found that it would be detrimental for H.K. II to be returned to the parents and parental rights were terminated. The court found by clear and convincing evidence that it was likely that H.K. II would be adopted. The court found by a preponderance of the evidence that return of H.K. II to the physical custody of the parents would create a substantial risk of detriment to the physical and emotional well-being of H.K. II, and that H.K. II could not be returned to the parents’ physical custody and there existed no reasonable probability that H.K. II would be returned within six months. The juvenile court found by a preponderance of the evidence that the permanent plan of adoption and a specific goal of adoption was appropriate and ordered such action as H.K. II’s permanent plan, with July 12, 2008 being the likely date by which adoption would be achieved.
DISCUSSION
Mother and Father advance two contentions on appeal. They contend that the ICWA notices were not proper. They also contend that the juvenile court erred by not finding that the “benefit from continuing the [parental] relationship” exception (§ 366.26, subd. (c)(1)(B)(i)) applies and precludes termination of their parental rights. DCFS agrees that the ICWA notices were not proper. We agree also. We disagree, however, with the parents’ contentions that the cited exception applies and precludes the termination of their parental rights.
ICWA Notice
Mother did not raise objections to the ICWA notice before the juvenile court, but nevertheless she may raise them on appeal. A challenge to compliance with ICWA notice requirements is not forfeited due to failure to object in the juvenile court proceedings. (In re J.T. (2007) 154 Cal.App.4th 986, 991.)DCFS concedes that the ICWA notices were not proper. DCFS is in agreement with a limited remand for the purpose of compliance with the ICWA notice requirements and a determination of whether H.K. II is an Indian child subject to ICWA.
To promote the stability of Indian families, ICWA imposes certain minimum standards which must be met before removing Indian children from their families and placing them in foster care or adoptive homes. (25 U.S.C. § 1902.) In involuntary proceedings in a state court seeking foster care placement of or termination of parental rights to a child who the court knows or has reason to know is an Indian child, ICWA requires that the party seeking the action must notify the child’s parent or Indian custodian and the child’s tribe. (25 U.S.C. § 1912, subd. (a).) California enacted heightened standards for such notice which are codified in section 224.2. The statute expressly provides that the California standards shall prevail over the more lenient federal ICWA requirements. (In re J.T., supra, 154 Cal.App.4th at p. 993.)
Section 224.2 provides in part as follows: “(a) If the court, a social worker, or probation officer knows or has reason to know that an Indian child is involved, any notice sent in an Indian child custody proceeding under this code shall be sent to the minor’s parents or legal guardian, Indian custodian, if any, and the minor’s tribe and comply with all of the following requirements: [¶] . . . [¶] (3) Notice shall be sent to all tribes of which the child may be a member or eligible for membership, until the court makes a determination as to which tribe is the child’s tribe in accordance with subdivision (d) of Section 224.1, after which notice need only be sent to the tribe determined to be the Indian child’s tribe. [¶] (4) Notice, to the extent required by federal law, shall be sent to the Secretary of the Interior’s designated agent, the Sacramento Area Director, Bureau of Indian Affairs. If the identity or location of the parents, Indian custodians, or the minor’s tribe is known, a copy of the notice shall also be sent directly to the Secretary of the Interior . . . . [¶] (5) In addition to the information specified in other sections of this article, notice shall include all of the following information: [¶] (A) The name, birthdate, and birthplace of the Indian child, if known. [¶] (B) The name of the Indian tribe in which the child is a member or may be eligible for membership, if known. [¶] (C) All names known of the Indian child’s biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known. [¶] . . . [¶] (b) Notice shall be sent whenever it is known or there is reason to know that an Indian child is involved, and for every hearing thereafter, including, but not limited to, the hearing at which a final adoption order is to be granted, unless it is determined that the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.) does not apply to the case in accordance with Section 224.3 . . . . [¶] (c) Proof of the notice, including copies of notices sent and all return receipts and responses received, shall be filed with the court in advance of the hearing except as permitted under subdivision (d).”
The ICWA notice must include all available information about the child’s parents, grandparents and great grandparents, especially those with alleged Indian heritage, including maiden, married and former names and aliases, birthdates, places of birth and death, current and former addresses, and information about tribal affiliation including tribal enrollment numbers. (In re Francisco W. (2006) 139 Cal.App.4th 695, 703; In re Louis S. (2004) 117 Cal.App.4th 622, 631.) The notice must be given and the tribe must have an opportunity to respond within a specified time prior to the date that the state court takes action. (In re Jonathan D. (2001) 92 Cal.App.4th 105, 109-110.)
The juvenile court’s finding that ICWA notice was complete is reviewed for substantial evidence. (In re J.T., supra, 154 Cal.App.4th at p. 991.)After notice is complete, the court determines whether the child qualifies as an Indian child as defined in section 224.1 and title 25 United States Code section 1903 of ICWA and, therefore, whether ICWA applies to the proceeding.
Failure of a purported ICWA notice to comply with such requirements constitutes prejudicial error. (In re Jonathan D., supra, 92 Cal.App.4th at p. 111.) If the notice is defective and the dependency court nevertheless issues orders for foster placement or termination of parental rights, we must vacate the orders and remand the matter to the juvenile court for further proceedings in order to comply with the ICWA notice requirements. (Ibid.) We may make the vacation of the orders conditional, however, by directing that, if after proper ICWA notice and time for tribal response are given, and the juvenile court receives no information from the tribe indicating that the child is an Indian child, then all previous findings and orders of the juvenile court shall be reinstated. (Ibid.) If the juvenile court receives a determination by a tribe that the child is an Indian child as defined by the ICWA or obtains other information suggesting such a conclusion, then the juvenile court must conduct a new section 366.26 hearing, which complies with the ICWA. (In re Rayna N. (2008) 163 Cal.App.4th 262, 268-269; In re Jonathan D., supra, at pp. 111-112.)
It is undisputed that DCFS transmitted notices to certain tribes, the BIA, and the Secretary of the Interior regarding H.K. II. It is also undisputed, however, that the notices contained incomplete information about H.K. II’s family members. Accordingly, the juvenile court’s finding that ICWA notice was complete is not supported by substantial evidence. (In re J.T., supra, 154 Cal.App.4th at p. 991.) We conclude that DCFS’s failure to give proper ICWA notice was prejudicial error, this matter must be remanded for proper ICWA notices to be given and, based upon the responses received, for a new determination of whether H.K. II is an Indian child. (In re Jonathan D., supra, 92 Cal.App.4th at pp. 111-112.)
Termination of Parental Rights
Section 366.26, subdivision (c)(1), provides that, if a juvenile court finds that it is likely a child will be adopted, the court must terminate parental rights and order the child placed for adoption unless one of the specified exceptions applies. The legislative intent expressed in section 366.26, subdivision (c), is that “adoption should be ordered unless exceptional circumstances exist, [and pursuant to subdivision (c)(1)(B)(i),] one of those exceptional circumstances [is] the existence of such a strong and beneficial parent-child relationship that terminating parental rights would be detrimental to the child and outweighs the child’s need for a stable and permanent home that would come with adoption.” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.)
Section 366.26, subdivision (c)(1)(B)(i), provides: “(c)(1) If the court determines, based on . . . relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. . . . Under these circumstances, the court shall terminate parental rights unless either of the following applies: [¶] . . . [¶] (B) 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: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
Mother and Father do not dispute the juvenile court’s finding that H.K. II was likely to be adopted. Rather, they contend that the juvenile court erred in failing to find the two-pronged exception to termination of parental rights set forth in section 366.26, subdivision (c)(1)(B)(i): “The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship,” and the nature of their relationship is such that it constitutes “a compelling reason for determining that termination would be detrimental to the child.” Mother and Father assert that they maintained regular visitation and contact with H.K. II, they developed a parental relationship with her, she would benefit from continuing the relationship and, as a result, terminating their parental rights would be detrimental to H.K. II. On appeal, however, if we determine that the juvenile court’s finding that the exception did not apply is supported by substantial evidence, we must affirm the finding. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
There is no issue about whether Mother and Father satisfied the first prong of the exception—maintained regular visitation and contact. All parties stipulated that the parents had been visiting H.K. II regularly and were appropriate during the visits. The question is whether the juvenile court erred in finding that the parents failed to satisfy the second prong—H.K. II would benefit from continuing the relationship to such an extent that the benefit to H.K. II would constitute a compelling reason for determining that termination of their parental rights would be detrimental to H.K. II. (§ 366.26, subd. (c)(1)(B)(i).)
Noting that section 366.26 does not define the type of parent-child relationship which would trigger the application of the exception, the court in In re Brandon C. (1999) 71 Cal.App.4th 1530 stated that “[c]ourts have required more than just ‘frequent and loving contact’ to establish the requisite benefit for this exception.” (Id. at p. 1534.) The Brandon C. court applied the standard articulated in In re Autumn H., supra, 27 Cal.App.4th 567 as follows: “In the context of the dependency scheme prescribed by the Legislature, we interpret the ‘benefit from continuing the [parent/child] relationship’ exception to mean the relationship 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 . . . against the security and the sense of belonging a new family would confer. . . . [¶] Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] . . . The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.” (Id. at p. 575; accord, In re Casey D., supra, 70 Cal.App.4th at p. 51 [applying the Autumn H. standard and citing various cases applying it].) The relationship required is “a continuing parental relationship; not one . . . when a parent has frequent contact with but does not stand in a parental role to the child.” (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.)
Father asserts that the juvenile court improperly focused on the parents’ relationships to H.K. II’s siblings and the prior termination of their parental rights with respect to the siblings. Father asserts that, within the context of the limited visitation allowed, he showed love and concern for his child, fed her, and played with her. The juvenile court acknowledged the positive efforts Father and Mother had made to develop a parental relationship with H.K. II and to make progress in addressing their personal challenges in regard to substance abuse and mental and emotional health.
The juvenile court considered far more evidence, however, than the prior termination of parental rights of Father and Mother with respect to H.K. II’s siblings. The court stated that it used the entire record, especially the January 15, 2008 DCFS report prepared for the section 366.26 hearing, the regional center report evaluating H.K. II’s special needs and her progress resulting from services the center provided, the September 17, 2007 Information for Court Officer with the letter from Father’s doctor confirming Father’s prescription for medical marijuana, the September 17, 2007 Addendum Report with attachments, drug test results and education records. The court also considered the testimony by Mother and Father at the hearing.
At the close of the section 366.26 hearing, the juvenile court reviewed the seven-year dependency history of H.K. II’s siblings, but then went on to say: “I’m not sure that visits one hour twice a week create a parental role and relationship. [¶] [The parents are] not changing diapers . . . not feeding the child. They’re not doing those things on a daily basis [or] at least more frequent than one hour twice a week, that show a parental role in the child’s life to the extent they might have a parental relationship with this child. The child [has] never lived with them. I can’t find that outweighs the benefit of adoption for an 11-month old . . . . [¶] [Mother] is caring [and] tries very hard. . . . [A]nd I appreciate [ ] Father. We don’t get a lot of fathers who show the level of commitment that he has to this child . . . . [¶] [B]ut that does not show that there is a relationship, the level of which outweighs the benefit of adoption for this child . . . .” The juvenile court’s prior findings in sustaining the dependency petition that both Mother and Father have seven-year histories of substance abuse are supported by the record. Mother used marijuana during her pregnancy with H.K. II, and Father began using prescribed medical marijuana during the dependency proceedings. Although Father’s use of marijuana was for medical purposes, nevertheless, as Mother’s marijuana use illustrated, there remained risks of impaired judgment about care of H.K. II and inattention to her needs. Mother and Father each continued to have emotional and mental health challenges that were impediments to their ability to provide parental care for H.K. II and meet her needs.
On the other hand, H.K. II had lived with her potential adoptive parents since she was released from the hospital after her birth. They had taken on the role of her parents. They provided for her basic needs, such as feeding, diapering, bathing and clothing her on a daily basis. They sought to meet her emotional needs through holding her, interacting with her and providing toys for her. For H.K. II’s medical needs, the potential adoptive parents arranged for her routine and specialty medical care. They helped her perform the eye exercises the ophthalmologist recommended. They provided parental support for developmental therapeutic services, which were recommended based upon H.K. II’s regional center evaluation.
Under the substantial evidence standard of review applicable to the juvenile court’s finding with regard to the claimed exception, “we must accept the evidence most favorable to the [finding] as true.” (In re Casey D., supra, 70 Cal.App.4th at p. 53.) We conclude that substantial evidence supports the juvenile court’s finding that there was no section 366.26, subdivision (c)(1)(B)(i), exception under the facts of the instant case.
The stated legislative purpose of the provision for termination of parental rights in section 366.26 is “to provide stable, permanent homes” “for all children who are dependents of the juvenile court.” (Id. at subd. (b).) In the legislatively-mandated order of preference of dispositions, the first is termination of parental rights and an order that the child be placed for adoption. (Id. at subd. (b)(1).) The parents do not appeal the juvenile court’s finding that, by clear and convincing evidence, it is likely H.K. II will be adopted. If a juvenile court makes such a finding, and in the absence of any of the statutorily specified exceptions, “the court shall terminate parental rights.” (Id. at subd. (c)(1).) Accordingly, subject to remand for compliance with notice requirements and, as applicable, other provisions of ICWA as we previously discussed, we conclude that the juvenile court properly ordered that the parental rights of Mother and Father with respect to H.K. II be terminated and ordered that the permanent plan for H.K. II is adoption. (§ 366.26, subd. (c)(1).)
DISPOSITION
The order terminating parental rights is reversed and the matter is remanded to the juvenile court with directions to order DCFS to comply with the notice provisions of ICWA and section 224.2. If, after proper notice, the court finds that H.K. II is an Indian child under ICWA, the court shall proceed in compliance with ICWA and section 224 et seq. If, however, the juvenile court finds that H.K. II is not an Indian child, the court shall reinstate the order terminating parental rights and designating adoption as the permanent plan for her.
We concur: PERLUSS, P. J., WOODS, J.