Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. JD17225
ELIA, J.D. R. appeals from an order of the juvenile court terminating her parental rights to J. E. under Welfare and Institutions Code section 366.26. She contends that there was not proper notice given under the Indian Child Welfare Act (ICWA). She further contends that the juvenile court abused its discretion in determining that the beneficial relationship exception to termination did not apply. We remand for compliance with the ICWA.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Background
J. E. (born May 2001) became the subject of a section 300 petition filed in juvenile court in July 2006 when appellant called a hotline to report that she could no longer care for her. Appellant had been staying at the Capri Motel, but had no more money, no place to stay, and no food. Appellant told the social worker who came to the motel that she was very depressed and that "she couldn't go on worrying what she needs to do to get J[.] food." She said that she was bi-polar and should be on medication. She said that she had "tried for the past five years" but "that she couldn't even tak[e] care of herself let alone taking care of a child." She said that she "want[ed] her daughter to have a better life until she can get herself better." J. told the social worker that "she wants to go with this worker so that her mother can 'get her life together.' "
The jurisdiction/disposition report noted that appellant had been "struggling to provide for her own needs in addition to the needs of her child." Appellant was homeless, diagnosed with bi-polar disorder, using alcohol to cope with her situation, and had been in "several different relationships that have not worked out or have not been positive for her or her child." The report acknowledged that appellant acted in the best interest of J. by calling in to report that she could not care for her, but observed that appellant had "not followed through with accepting the assistance that she asked for and ha[d] not maintained contact with her daughter." The report noted that "J[.] appears to have very little emotional attachment to her mother." In August 2006, the juvenile court sustained the allegations of the section 300 petition and ordered family reunification services. J. remained in a foster home.
In a January 2007 status report, the social worker said that J. was doing well in her foster home. Appellant was staying with friends and trying to find an apartment. Appellant had "not participated in or successfully completed any part of her case plan requirements." The court continued family reunification services.
In May 2007, J. was in a car accident in which her foster mother was killed. The foster father could no longer care for her, and, in July, she was placed in another foster/adoptive home.
In a status review report prepared in July 2007, the social worker reported that appellant "continues to be homeless and working in construction." Appellant was not participating in any of the ordered services, although she told the social worker that she "wanted to be re-referred to [the] programs." Appellant had not visited J. for over four months, but told the social worker that she wanted to start visiting again. In an August 2007 addendum report, the social worker said that appellant had told her that she wanted "to do everything to reunify with her child." Appellant had begun participating in some of the programs. At the September 2007 review hearing, the court terminated reunification services, ordered monthly visitation in a therapeutic setting, and set a date for a section 366.26 selection and implementation hearing.
The report prepared for the section 366.26 hearing said that J. had been in the current foster home for over five months and that she had expressed to the social worker "that she wants to stay with her 'mommy and daddy' and feels safe in the home." The report said that during appellant's visits with J., "J[.]'s and her mother's actions and responses to each other were mixed range of behaviors, including avoidance or resistance, as well as playful and shared emotional closeness." A therapist told the social worker that at the last visit, "the mother read a 4 page letter to J[.] which explained what brought them to the point of being separated and that she loved her very much."
At the section 366.26 hearing, social worker Shannon Montejano testified as an expert in permanency planning for dependent children. She said that appellant was consistently attending the once-a-month, one-hour visits in a therapeutic setting. She said that appellant was appropriate during the visits. Montejano also testified that J. was adoptable. She said, "She's a six-year-old adorable, active young girl who is making a lot of progress with her academic performance. She's physically healthy and she's developmentally on target." Montejano recognized that that J. did have some behavioral issues, such as taking things that did not belong to her home from school and lying. When asked if the benefit of J. maintaining a relationship with appellant outweighed the benefit that would come if J. were adopted, Montejano answered that the relationship that J. had with appellant was more of "a friendly visitor relationship" and that J. looked to her foster parents "for that parental role model and her daily needs."
Appellant testified that as she read the letter to J., she watched to be sure that J. was paying attention and understanding what appellant was trying to say. When she finished reading the letter to J., appellant was crying. The therapist told her it was "a really good letter." Appellant testified that she wanted J. to "come home" with her and that she had told the therapist that.
Appellant testified that she had turned her older child over to appellant's mother when the child was "a couple [of] weeks" old. She did not know if that child was still with her mother. Appellant testified she herself had been "a ward of the state" until she turned 18. She said, "I grew up in group homes and foster homes, and I been in some good ones and I been in some really, really bad ones." She hoped that J. was being well cared for in her present home.
At the conclusion of the hearing, counsel for appellant argued that there was nothing in the record "that indicates that the child would not benefit from a continuing relationship" with appellant. The court found J. adoptable and said, "I have not found a compelling reason not to terminate the parental rights." The court said: "[T]his child was exposed to harm's way for some time. Chronicity of homelessness, chronicity of neglect, chronicity of all kinds of things that a very small child should not be exposed to. And mother had ample time to reunify. . . . And this is a system that is very hard on people that don't complete case plans. That's the simple fact." The court terminated appellant's parental rights and freed J. for adoption.
The court also terminated the parental rights of J.'s father, who is not a party to this appeal and who did not claim Indian ancestry.
ICWA
In appellant's first contact with a social worker, in July 2006, she reported that she had American Indian ancestry. Appellant told another social worker that she believed her ancestry was either the Cherokee or Chippewa tribes. Appellant said that she had not been in contact with her mother for about three years and did not have an address or telephone number for her. She did tell the social worker that her mother had guardianship of her child, A., in Stanislaus County. The social worker confirmed that the "CWS/CMS database indicates that a guardianship evaluation of R[.] W[.], the grandmother was initiated in Stanislaus County on 6-25-03 on behalf of the child, A[.] R[.]. The outcome of this evaluation is unknown." The social worker sent notices to three Cherokee tribes and 24 Chippewa tribes. These included the maternal grandmother's first and last name, but not her maiden name or her place or date of birth.
The jurisdiction/disposition report, filed August 10, 2006, stated, "Notice was given to all the required Cherokee and Chippewa tribes with the limited information that this worker was provided by the mother." Receipts from the tribes were attached, and some letters saying that J. was not eligible for enrollment. At the conclusion of the jurisdiction/disposition hearing, the court made a finding that the ICWA may apply and that notice should be given to the tribes.
The social worker attached to the January 2007 six-month review report a letter from the Cherokee Nation, dated August 24, 2006, stating that in order to verify Cherokee heritage the tribe needed "additional information that includes maternal grandmother, R[.] W[.]'s middle name, maiden name and date of birth. . . . It is impossible to validate or invalidate this claim without more complete family information." On January 30, 2007, the court made an order that appellant had "10 days to contact social worker [and] provide mat. grandmother's information." Shortly thereafter, the social worker provided the Cherokee Nation of Oklahoma with J.'s maternal grandmother's middle name, maiden name, and date of birth. This new information was not provided to the BIA or any of the other 26 tribes that had previously been sent notices.
Attached to a status review report filed September 11, 2007, was a letter from the Cherokee Nation dated February 12, 2007. The letter said that J. could not be traced in the tribal records through the information regarding "R[.] C[.] H[.]-W[.]" with a date of birth given. The section 366.26 report dated January 2008 states, "On 11/15/07, the Court made a finding that the Indian Child Welfare Act does not apply."
The minute order from that hearing does not reflect this finding. However, the social worker was present at the hearing, and although the record must reflect that the court considered the issue and decided whether ICWA applies, its finding may be either express or implied. (In re Asia L. (2003) 107 Cal.App.4th 498, 506.)
Appellant contends, "The DFCS failed to provide and the court failed to ensure proper notice under the Indian Child Welfare Act, where the social worker did not reveal the maternal grandmother's middle name, maiden name and birthdate, which were the key links to the minor's possible Indian ancestry, to the BIA and to 26 or the 27 federally recognized Cherokee and Chippewa Indian tribes." "The department's failure to update all of the tribes mandated for notice in this case with information that was discovered seven months prior to 12 month review and that was indispensible to any bona fide ancestral search of the minor through her maternal grandmother eliminated any meaningful chance of ascertaining ancestry in 26 of the 27 federally-recognized tribes."
"Under the ICWA, where a state court 'knows or has reason to know' that an Indian child is involved, statutorily prescribed notice must be given to any tribe with which the child has, or is eligible to have, an affiliation. (25 U.S.C. § 1912(a).) The court and the social services agency have 'an affirmative duty to inquire whether a child for whom a petition under section 300 is to be, or has been, filed is or may be an Indian child.' [Citation.]" (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1264.) Because the determination of a child's Indian status is a matter for the tribe, "the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement. [Citations.] Both the court and the county welfare department have an affirmative duty to inquire whether a dependent child is or may be an Indian child. [Citation.]" (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.)
"The notice must include the names of the child's ancestors and other identifying information, if known, and be sent registered mail, return receipt requested. [Citation.] When proper notice is not given, the dependency court's order is voidable. [Citations.]" (In re Brooke C. (2005) 127 Cal.App.4th 377, 384.) The failure to comply with the notice requirements of the ICWA constitutes prejudicial error unless the tribe has participated in or indicated no interest in the proceedings. (In re Samuel P., supra, 99 Cal.App.4th at p. 1265.)
Respondent argues that "there is no reason to believe that the grandmother's expanded name and birth date would have made any difference to the tribes which did not request more information about her." There are three problems with this argument. First, it reduces the determination of whether an ICWA noticing error was harmless to fine distinctions made between the form letters sent by the tribes responding to notices that contained incomplete information. Although only the Cherokee Nation actually requested further information, many, if not most, of the other tribes' responses expressly stated that their responses to the social worker's inquiry were based on the information that had been provided. Although respondent's assertion that "No Chippewa tribe . . . requested further information" is technically correct, we observe that the Sault Ste. Marie Tribe of Chippewa did state that "if you have additional information" the tribe would "be happy to follow up with a further check."
Second, the court's January 30, 2007, order that appellant should provide additional information about the maternal grandmother did not state that this new information should be provided to only one tribe. Given the court's obligation to see that the noticing provisions of the ICWA are complied with, one would presume that the court intended that the new information should be included in notices to any and all tribes to which it had not been provided earlier.
Third, this court is not in a position to say that there is no reason to believe that the expanded information would have made any difference to the tribes which did not receive it. Each tribe has the sole authority to determine its own membership. Determination of tribal membership or eligibility for membership is made exclusively by the tribe. (See § 224.3, subd. (e) (1) & (2).) Thus, however skeptical we may be about whether J. will ultimately be determined to be an Indian child, it is not this court's role to say that this supplemental information about the maternal grandmother could not have helped those tribes to which it was not sent with tribal identification. The failure to provide the new information to the other tribes was error.
Beneficial Relationship Exception
Appellant contends, "The court prejudicially abused its discretion in determining that the beneficial relationship exception to the termination of parental rights did not apply, requiring reversal of the judgment."
Appellant does not challenge the juvenile court's finding that J. is adoptable. Once the court finds that a child is adoptable at a section 366.26 hearing, it must select adoption as the permanent plan; to that end, it must terminate parental rights. (§ 366.26, subds. (b)(1), (c)(1).) This rule is subject to statutory exceptions, one of which is the beneficial relationship exception, which applies when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§366.26, subd. (c)(1)(B)(i)).) The parent has the burden of proof that the beneficial relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)
The statutory exceptions to termination "must be considered in view of the legislative preference for adoption when reunification efforts have failed." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) Thus, "a parent may not claim entitlement to the exception provided . . . simply by demonstrating some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights." (Id. at p. 1349.) That is, the parent must show substantial benefit from the relationship and the prospect of great harm from its termination. As the court in Autumn H. (1994) 27 Cal.App.4th 567 explained, the juvenile court must decide whether the parental 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 in a tenuous placement against the security and the sense of belonging to a new family would confer." (Id. at p. 575.) This determination is made on a case-by-case basis, taking into consideration all pertinent factors. (In re Jasmine D., supra,78 Cal.App.4th at p. 1350.)
In reviewing a juvenile court's ruling on the beneficial relationship exception, we apply the substantial evidence standard of review. (Autumn H., supra,27 Cal.App.4th at p. 576.) We do not reweigh the evidence or substitute our judgment for that of the trial court. (In re Jamie R. (2001) 90 Cal.App.4th 766, 774.)
Appellant couches her argument in terms of an abuse of discretion standard, but recognizes that the practical differences between the two standards are not significant, particularly in dependency cases where we accord the juvenile court broad deference. Courts have reached different conclusions as to the standard of review that applies to a juvenile court's ruling on exceptions to adoptability under Welfare and Institutions Code section 366.26, subdivision (c)(1). In In re Autumn H., supra, 27 Cal.App.4th 567, 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., supra, 78 Cal.App.4th 1339, 1351-1352, the court applied the abuse of discretion standard of review. For purposes of the present case, it makes no difference which standard applies because we conclude that the juvenile court did not err under either test.
Appellant concedes that "this is not a reunification case" but argues that "there is no evidence that visits with the mother in the context of an alternative plan of long-term guardianship would be anything but a positive for J[.]." However, the burden is not on the Department to present evidence to the juvenile court of detriment to J. in continuing the relationship with appellant. Instead, the burden is on appellant to prove that the relationship promotes J.'s well-being to such a degree as to outweigh the well-being J. would gain in her permanent home with her new, adoptive parents. The evidence here shows that appellant lovingly and courageously recognized that she could not care for J. and acted in J.'s best interests in seeking help for her. Appellant's inability to take advantage of the services offered confirms that she did the right thing in acknowledging that her personal struggles overwhelmed her ability to parent. The record shows that J. enjoyed appellant's visits and that appellant wrote a touching letter of explanation for J. to keep as she continued her life in her adoptive home. The evidence does not, however, show that the relationship must be preserved at the expense of a permanent home for J. Substantial evidence supported the juvenile court's finding that the exception to termination was inapplicable.
Disposition
The order terminating parental rights is conditionally reversed, and the matter is remanded to the juvenile court with directions that the Department of Family and Children's Services provide proper notice to the previously noticed tribes and the Bureau of Indian Affairs. The Department is directed to file proof of receipt of such notice by the tribes and the Bureau of Indian Affairs, along with a copy of the notice and any responses. If, after receiving notice as required by the ICWA, no response indicates that J. is an Indian child, or the responses received indicate that she is not an Indian child within the meaning of the ICWA, the order terminating parental rights shall be immediately reinstated. If any tribe determines that J. is an Indian child within the meaning of the ICWA, the juvenile court shall conduct further proceedings applying the provisions of the ICWA, Welfare and Institutions Code section 224 et. seq., and rule 5.480 et seq. of the California Rules of Court.
WE CONCUR: RUSHING, P. J., PREMO, J.