Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of San Luis Obispo, Super. Ct. No. JV 20749. Roger Picquet, Judge.
Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant.
James B. Lindholm, Jr., County Counsel, Leslie H. Kraut, Deputy County Counsel, for Plaintiff and Respondent.
GILBERT, P.J.
Samantha D. and Terrence R. appeal an order of the juvenile court declaring that their son J. is adoptable, and terminating their parental rights. (Welf. & Inst. Code, § 366.26, subd. (c)(1).) We affirm.
All further statutory references are to the Welfare and Institutions Code unless stated otherwise.
FACTS AND PROCEDURAL HISTORY
On August 24, 2006, the San Luis Obispo Department of Social Services (DSS) filed a petition on behalf of two-week-old J. DSS alleged that the infant was born prematurely and suffered from inter-uterine growth retardation. Hospital laboratory tests of Samantha D. and the infant were positive for the presence of marijuana and amphetamine. The infant's father, Terrence R., has a criminal record and history of substance abuse. (§ 300, subd. (b).) On August 28, 2006, the juvenile court ordered that J. be detained. He received care from the neonatal intensive care unit of the hospital for approximately one month.
Samantha D.'s sixteen-year-old daughter, C. H., is presently a dependent of the San Luis Obispo County juvenile court. We recently denied Samantha D.'s petition for an extraordinary writ, which sought review of a juvenile court order terminating family reunification services and setting the matter for a permanent plan hearing. (Samantha D. v. Superior Court (Apr. 24, 2007, B196578) [nonpub. opn.].) Samantha D. suffers from long-standing substance abuse and DSS has provided family reunification and maintenance services to her for many years. Samantha D. also suffered an aneurysm in 2000, which has resulted in cognitive deficits.
Terrence R. has a lengthy history of domestic violence, drug abuse, criminal activity, and DSS involvement. In August, 1999, the juvenile court ordered that DSS terminate family reunification services to Terrence R. regarding his two children.
On November 22, 2006, the juvenile court sustained the allegations of the dependency petition and continued J. in foster care. The juvenile court also concluded that it was not in the infant's best interests that Samantha D. and Terrence R. receive family reunification services. The juvenile court relied upon section 361.5, subdivision (b)(13) regarding Samantha D. [parent suffers from extensive and chronic drug abuse and has resisted court-ordered treatment during three-year period prior to dependency petition], and section 361.5, subdivision (b)(10) regarding Terrence R. [failure of parent to reunify with sibling or half-sibling of dependent child]. The court then set the matter for a permanent plan hearing pursuant to section 366.26.
Section 388 Modification Petition
On February 20, 2007, Samantha D. filed a modification petition requesting that the juvenile court dismiss J.'s dependency, grant her custody, or offer her family reunification services. Samantha D. alleged that she receives treatment for substance abuse, maintains sobriety and a drug-free lifestyle, visits with and has bonded with J., and is living apart from Terrence R.
Combined Modification Petition and Permanent Plan Hearing
In its section 366.26 report filed with the juvenile court, the DSS social worker opined that J. is "on track" developmentally and is adoptable. The report stated that the infant is a medically fragile child with special needs due to his premature birth.
The report also stated that the S. family, J.'s present caregivers, intend to adopt him. The infant, then six months old, had lived with the S. family for one month at the time of the March, 2007 report.
At the combined modification petition and permanent plan hearing, Samantha D.'s daughter C.H. testified in chambers and requested the infant's return because Samantha D. was improving in recovery. Samantha D.'s drug treatment counselors also testified regarding her progress in drug rehabilitation. Samantha D., her mother, and her grandmother testified concerning Samantha D.'s parent skills and sobriety. Samantha D. admitted that she used methamphetamine, marijuana, and tobacco during her pregnancy with J. She also stated that she no longer lived with Terrence R.
Indian Child Welfare Act (25 U.S.C. 1901 et seq.)("ICWA")
On the day of the modification petition/permanent plan hearing, Samantha D. completed Judicial Council form JV-130 ("Parental Notification of Indian Status") and stated that she had no Indian ancestry to her knowledge. In his JV-130 form, Terrence R. claimed Cherokee Indian heritage through his maternal grandfather. Terrence R., an adopted child, did not know his grandfather's surname. DSS mailed notices on JV-135, the mandatory Judicial Council form, to the three federally-registered Cherokee tribes and the Bureau of Indian Affairs, with information concerning Terrence R.'s surname, aliases, and birth date (the April 30, 2007 notices).
During the dependency proceedings in 1999, Terrence R. claimed Chumash Indian heritage. The present record does not contain information regarding those proceedings other than a statement that Terrence R.'s parental rights were terminated.
On May 30, 2007, Terrence R. appeared in juvenile court and stated that he had additional and specific information regarding his Indian heritage. The juvenile court then set a hearing for June 27, 2007, to consider the results of Terrence R.'s family research and if necessary, order DSS to re-notice the three federally registered Cherokee tribes and the Bureau of Indian Affairs.
Orders
On May 30, 2007, the juvenile court denied the modification petition. In its written order, the court stated: "[T]he modification requested . . . would not be in [J.]'s best interest. The evidence shows that Samantha has a chronic drug abuse problem and the risk to [J.] associated with such a history (not withstanding her current efforts) is simply too great." The juvenile court also concluded by clear and convincing evidence that J. is adoptable and that no exception to the preference for adoption applies. It then terminated the parental rights of Samantha D. and Terrence R.
Samantha D. appeals and contends that 1) insufficient evidence supports a general finding of adoptability; 2) the "beneficial parental relationship" exception to termination of parental rights applies (§ 366.26, subd. (c)(1)(A)); 3) the "sibling relationship" exception applies (§ 366.26, subd. (c)(1)(E)) and 4) DSS did not comply strictly with the requirements of the ICWA.
Terrence R. appeals and contends that 1) insufficient evidence supports a general finding of adoptability, and 2) DSS did not comply strictly with the ICWA.
DISCUSSION
I.
Samantha D. and Terrence R. argue that there is insufficient clear and convincing evidence that J. is likely to be adopted. (§ 366.26, subd. (c)(1); In re Erik P. (2002) 104 Cal.App.4th 395, 400 [clear and convincing evidence required that child is likely to be adopted within a reasonable time].) They point out that J. has special needs and requires physical therapy, he will have health and developmental problems as he grows, the S. family has cared for J. for only one month (three months at the time of the hearing), and DSS has not located alternative adoptive homes. (In re Asia L. (2003) 107 Cal.App.4th 498, 510-512 [insufficient evidence of adoptability where children had emotional and psychological problems].)
The juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely that the dependent child will be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Erik P., supra, 104 Cal.App.4th 395, 400.) In making this determination, the juvenile court considers the child, and whether his age, physical condition, and emotional state may make it difficult to find an adoptive family. (In re Erik P., supra, 104 Cal.App.4th 395, 400; In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) However, "a prospective adoptive parent's willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family." (In re Sarah M., supra, 22 Cal.App.4th 1642, 1650.)
In determining the sufficiency of evidence to support a dependency order, we review the evidence and draw all reasonable inferences therefrom to decide if reasonable and credible evidence supports the decision of the juvenile court. (In re J. I. (2003) 108 Cal.App.4th 903, 911 [review of finding regarding adoptability].) This rule pertains although the law requires proof of adoptability by clear and convincing evidence. (Ibid.) "The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal." (Ibid.) An appellant bears the burden of establishing that a finding does not rest upon sufficient evidence. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.)
Sufficient evidence supports the finding of the juvenile court that J. is generally adoptable. At the time of the permanent plan hearing, J. weighed 14 pounds and was meeting his developmental milestones. A pediatric assessment opined that J. "made significant progress in all areas of development due to the extensive and complicated level of care he has received from both foster care families." J. no longer required medication for his digestive problems and was thriving in the S. family home. Samantha D. and her family members testified that J. was healthy and responded to visitors.
The S. family loved J. and worked well with his medical providers for his continued health and development. The DSS social worker observed that J. appeared contented with their care. The presence of a prospective adoptive home is a factor in determining whether a child is adoptable. (In re Erik P., supra, 104 Cal.App.4th 395, 400.) Sufficient evidence supports the finding of the juvenile court.
II.
Samantha D. asserts that she established the "beneficial parental relationship" exception to the statutory preference for adoption. (§ 366.26, subd. (c)(1)(A).) She points out that she visited J. as permitted and that the visits were loving, happy, and positive. Samantha D. adds that a continuing relationship would allow J. a connection with her.
Section 366.26, subdivision (c)(1), requires the juvenile court to terminate parental rights if it finds by clear and convincing evidence that a child is likely to be adopted, unless "the court finds a compelling reason for determining that termination would be detrimental to the child" due to an enumerated statutory exception. The "beneficial parental relationship" exception of section 366.26, subdivision (c)(1)(A), requires a showing of "regular visitation and contact" and "benefit" to the child from "continuing the relationship." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) "To meet the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) Only in the "extraordinary case" can a parent establish the exception because the permanent plan hearing occurs after the court has repeatedly found the parent unable to meet the child's needs. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
The exception requires proof of "a parental relationship," not merely a relationship that is "beneficial to some degree but does not meet the child's need for a parent." (In re Jasmine D., supra, 78 Cal.App.4th 1339, 1350.) The existence of a beneficial relationship is determined by the age of the child, the portion of the child's life spent in parental custody, the quality of interaction between parent and child, and the child's particular needs. (In re Amber M. (2002) 103 Cal.App.4th 681, 689 [beneficial relationship exists where children in mother's care the majority of their lives].)
In its ruling terminating parental rights, the juvenile court expressly found that "none of the [statutory] exceptions to the termination of parental rights and adoption . . . apply." Under any standard of review, the juvenile court's finding is proper because Samantha D. did not meet her burden of establishing the "extraordinary case" of the beneficial parental relationship exception. (In re Jasmine D., supra, 78 Cal.App.4th 1339, 1350.) Although she and J. had a positive and loving relationship and he enjoyed his supervised visits with her, Samantha D. did not occupy a parental role in J.'s life. Since birth, J. resided with foster parents who satisfied his daily needs for protection, guidance, food, shelter, and medical care. Samantha D.'s supervised visits with J. may have been beneficial to some degree but did not meet J.'s need for a parent. (In re Angel B., supra, 97 Cal.Ap.4th 454, 456.) Samantha D. has not established that terminating her parental rights "would deprive [J.] of a substantial, positive emotional attachment such that [he] would be greatly harmed." (Ibid.)
III.
Samantha D. asserts that the "sibling relationship" exception of section 366.26, subdivision (c)(1)(E), applies, precluding termination of her parental rights. She relies upon the in-chambers testimony of C.H. that she loved J. and visited him monthly. Samantha D. also points out that the juvenile court requested C.H. to promise that she "will make an effort to be involved with [J.]" regardless of his placement.
Section 366.26, subdivision (c)(1)(E), provides that substantial interference with a sibling relationship is a compelling reason for determining that termination of parental rights is detrimental to a dependent child. It states: "There would be substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption." The sibling relationship exception concerns the best interests of the child being considered for adoption, not the interests of his siblings. (In re Naomi P. (2005) 132 Cal.App.4th 808, 822.)
Under any standard of review, the juvenile court did not err by finding that the exception was inapplicable. J. and C.H. are half-siblings who have never lived together. There exists nearly a 16-year age difference between the two children. C.H.'s relationship with J. occurred during monthly visits. Samantha D. did not establish that the on-going contact between the children is in J.'s best interest as compared to the benefit of legal permanence through adoption.
IV.
Samantha D. and Terrence R. argue that the juvenile court erred by terminating their parental rights because the ICWA notices were insufficient to permit the Indian tribes or the Bureau to investigate J.'s Indian heritage. (§ 224.2, subd. (a)(5) [required content of ICWA notices].) Terrence R. points out that the notices did not contain the first name of his grandmother or the name of his grandfather, and mistakenly referred to Terrence R.'s grandmother as J.'s grandmother. Terrence R. also claims that the juvenile court terminated his parental rights prior to receiving notice from the Indian tribes regarding J.'s Indian heritage.
Here the juvenile court found by clear and convincing evidence that DSS complied with the requirements of ICWA, and it then terminated the parental rights of Samantha D. and Terrence R. The juvenile court and DSS satisfied their duties of inquiry by questioning Terrence R. regarding his claim of Indian ancestry. (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413 [DSS has no "absolute duty to ascertain or refute Native American ancestry."].) DSS issued the proper notices containing the brief information that Terrence R. was able to provide. (Ibid. [father believed deceased grandparents had Indian ancestry, but could not provide their birthdates or names].)
The juvenile court also ordered further investigation into Terrence R.'s Indian ancestry and stated that it might require DSS to re-notice the Indian tribes and the Bureau of Indian Affairs, depending upon the results of Terrence R.'s family history research. (§ 224.3, subd. (a) [DSS has "an affirmative and continuing duty to inquire" of Indian ancestry in dependency proceedings].)
The orders are affirmed.
We concur: YEGAN, J., PERREN, J.