Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County Nos. DP014702, DP014703 & DP016648 Robert Austin, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minors.
OPINION
FYBEL, J.
Introduction
D.G. (Mother) appeals from an order terminating her parental rights to Jeremiah C., Matthew C., and I.C. (collectively, the children), now three years old, two years old, and 15 months old, respectively. In January 2007, Jeremiah and Matthew were detained after Matthew was diagnosed with multiple fractures caused by unexplained nonaccidental trauma. In an amended juvenile dependency petition, the Orange County Social Services Agency (SSA) alleged Jeremiah and Matthew came within the juvenile court’s jurisdiction under Welfare and Institutions Code section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (e) (severe physical abuse of child under five), and (i) (cruelty). (All further statutory references are to the Welfare and Institutions Code unless otherwise specified.) Jeremiah and Matthew’s father, Omar C. (Father), was provided reunification services; Mother, however, was not provided reunification services pursuant to section 361.5, subdivision (b)(5).
Section 361.5, subdivision (b)(5) states that reunification services “need not be provided to a parent” if the court finds, by clear and convincing evidence, “[t]hat the child was brought within the jurisdiction of the court under subdivision (e) of Section 300 because of the conduct of that parent.”
In February 2008, Mother gave birth to I.C.; Father was I.C.’s father. I.C. was detained two days later and SSA filed a juvenile dependency petition alleging I.C. came within the court’s jurisdiction under section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). In July 2008, Father died from an apparent drug overdose. In September 2008, the juvenile court terminated Mother’s parental rights to the children.
Mother contends the juvenile court erred by terminating her parental rights because it (1) failed to order Mother and Father to complete the Parental Notification of Indian Status form and thus failed to fully inquire as to whether the children are or may be Indian children within the meaning of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA); and (2) found the parent child relationship exception to the termination of parental rights under section 366.26, subdivision (c)(1)(B)(i) inapplicable. We affirm.
First, the record shows Mother and Father repeatedly denied any Indian heritage to social workers and in open court. Mother has not argued otherwise in the juvenile court or on appeal. Mother has therefore failed to show she was prejudiced by the juvenile court’s failure to order that she and Father complete the requisite form.
Second, the only evidence admitted at the permanency hearing was SSA’s reports; Mother did not attend the hearing. Although the report showed Mother had visited with the children and her interactions with them were positive, she did not satisfy her burden to show that severing her relationship with the children would deprive them of a “substantial, positive emotional attachment such that the child[ren] would be greatly harmed.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
Background
I. Jeremiah and Matthew Are Detained; SSA Files Juvenile Petition; SSA and Juvenile Court Make Inquiries Under ICWA.
In January 2007, 17 month old Jeremiah and three month old Matthew were taken into protective custody and placed in Orangewood Children’s Home. SSA filed a juvenile dependency petition which, as later amended, alleged Jeremiah and Matthew came within the juvenile court’s jurisdiction under section 300, subdivisions (a), (b), (e), and (i) because (1) “[o]n numerous occasions prior to January 17, 2007,” Matthew “was the victim of physical abuse as [he] sustained numerous bone fractures for which the children’s parents were unable to provide reasonable explanations for how the injuries occurred”; (2) an emergency room physician stated Matthew’s injuries “were the result of non accidental trauma”; (3) Matthew’s unexplained injuries included “an acute left midshaft (spiral) fracture of the humerus,” “a left humerus proximal fracture with ossification,” “a left distal radius fracture with ossification,” and “a left distal femur corner fracture”; (4) Matthew was observed to have bruises on his left cheek, left chest, left thigh, and left inner knee, bruising on his buttocks, numerous bruises on his lower back, and a scratch on his lower buttocks; (5) Matthew’s injuries caused him “undue pain and suffering”; (6) such “act[s] of cruelty place[] the child and his sibling at risk of further harm or abuse by the children’s parents”; and (7) Mother and Father knew or should have reasonably known of the physical abuse and failed to protect Jeremiah and Matthew.
In the detention report, SSA stated that on January 17, 2007, a social worker “inquired whether the Indian Child Welfare Act would apply to Jeremiah and Matthew C[.] when the father, Omar C[.] was interviewed at Children’s Hospital of Orange County at Mission Viejo. The father denied that there is any Native American Ancestry in his family.” The detention report further stated that on January 18, the same social worker “inquired whether the Indian Child Welfare Act would apply to Jeremiah and Matthew C[.] when the mother... was interviewed at the Social Services Office. The mother denied that there is any Native American Ancestry in her family.”
At the detention hearing, the following colloquy occurred as to whether ICWA applied to Jeremiah and Matthew:
“The Court:... The detention report of this date indicates that both the mother’s and father’s Indian heritage has been inquired into. Counsel wish to be heard with respect to I.C.W.A. issues?
“[The minors’ counsel]: No, Your Honor.
“[Mother’s counsel]: No, Your Honor.
“The Court: Based on the matters set forth in the detention report, the court hereby finds that I.C.W.A. does not apply.
“[County counsel]: Your Honor, if the court may briefly inquire as to the parents, just to confirm their statements as to I.C.W.A.
“The Court: Very well. I’ll ask counsel to make the inquiry on the record.
“[Father’s counsel]: Do you have any American Indian heritage in your family background, sir?
“The father: No, I don’t.
“[Mother’s counsel]: Do you have any American Indian heritage?
“The mother: No.
“The Court: Thank you. Counsel has inquired with respect to I.C.W.A. of both of their clients. Court hereby finds that I.C.W.A. does not apply.”
The juvenile court found it “of immediate and urgent necessity for [the] protection of the [children]” that they be detained under the protective custody of SSA and vested their temporary care with SSA. The court ordered monitored visitation for Mother and Father. A subsequent SSA report stated Jeremiah and Matthew were placed in the home of a nonrelated, extended family member on February 1, 2007.
II. Mother and Father Submit on Petition; Juvenile Court Declares Jeremiah and Matthew Dependent Children; Status Review Report.
Before the jurisdiction hearing, Mother and Father each signed a waiver giving up their rights to a trial on the petition and “submit[ted] the petition on the basis of the social worker’s report and other documents, if any.”
At the jurisdiction hearing in June 2007, the juvenile court accepted Mother’s and Father’s waivers and found the allegations of the amended petition true by a preponderance of the evidence. At the disposition hearing in August, the court declared Jeremiah and Matthew dependent children and vested custody of Jeremiah and Matthew with SSA for their suitable placement. The court further found that pursuant to section 361.5, subdivision (b)(5) and (6) that reunification services need not be provided to Mother.
In a status review report dated September 21, 2007, SSA stated Jeremiah and Matthew were placed in the home of their paternal grandmother on August 2. SSA further reported that Mother “is currently facing felony child endangerment charges with regards to the physical abuse of the child, Matthew.” SSA stated that on September 5, the criminal court issued a restraining order, restricting Mother from any contact with Matthew or coming within 100 yards of him, which could not be modified by any other court. The report further stated Mother and Father were “expecting their third child in a couple more months.” Mother and Father had visited Jeremiah and Matthew twice a week. After the restraining order was issued, Mother continued to visit with Jeremiah.
III. I.C. Is Born and Detained; Juvenile Court Makes Inquiries Under ICWA; SSA files Juvenile Dependency Petition as to I.C.
Mother and Father’s third child, I.C., was born in February 2008 and was taken into protective custody two days after her birth. SSA filed a juvenile dependency petition alleging I.C. came within the juvenile court’s jurisdiction under section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). I.C. was also placed with the paternal grandmother.
At I.C.’s detention hearing, the juvenile court engaged in the following inquiry regarding Father’s paternity status and ICWA:
“The Court: And you agree with the information mom provided, that you guys were married in January of ’05 and still are married?
“The father: Yes.
“The Court: And were you present when I[.C.] was born in the hospital?
“The father: Yes, I was.
“The Court: And is your name on her birth certificate?
“The father: Yes.
“The Court: And any objection to the court making a finding that [Father] is presumed?
“[County counsel]: No, Your Honor.
“[Mother’s counsel]: No, Your Honor.
“[The minor’s counsel]: No objection.
“The Court: Court makes that finding. Previously, the court has found that the Indian Child Welfare Act does not apply. And confirming with mom and dad. [Mother], you do not have any American Indian heritage in your family background; is that accurate?
“The mother: That’s true.
“The Court: And [Father]?
“The father: True.
“The Court: Okay, court finds the same finding, as well, as to this child.”
In the jurisdiction/disposition report, subsequently filed in I.C.’s dependency case, the social worker stated that during an interview with Father on March 7, 2008, Father had denied any American Indian heritage on his side of the family and during an interview with Mother on March 11, Mother denied any American Indian heritage on her side of the family.
The juvenile court found it to be of immediate and urgent necessity for the protection of I.C. that she be detained under the protective custody of SSA.
IV. The Children Are Placed with Maternal Aunt and Uncle; Court Declares I.C. a Dependent Child and Sets Permanency Hearing as to the Children; Father Passes Away.
A detention report was filed by SSA in March 2008, stating that the children had been removed from the paternal grandmother’s care and detained at Orangewood Children’s Home after SSA discovered Mother was present in the paternal grandmother’s home in violation of the restraining order.
In an addendum report, SSA stated that the children had been placed with their maternal aunt, Karla M., as of March 14, 2008. SSA was informed that the restraining order had been modified to permit Mother monitored visitation with Jeremiah and Matthew. The social worker reported, “[d]uring the visitation[,] the mother is the passive parent and allows [Father] to do most of the caretaking. She has little to no affect and is not as affectionate and as attentive as the father. The mother minimizes her interactions with the boys and the father at times has to direct her on what to do. The boys do follow their father around and when they need something they look to their father to meet their needs.”
At I.C.’s jurisdiction hearing, Mother and Father submitted to the allegations of the petition as it had been previously amended by SSA. The juvenile court found the allegations of the amended petition true by a preponderance of the evidence and declared I.C. a dependent child of the court.
On May 6, 2008, the juvenile court adopted SSA’s recommendation and set a permanency hearing as to the children. SSA later informed the court Father passed away on June 7, 2008, as a result of a suspected drug overdose.
V. Permanency Hearing Reports
On August 25, 2008, SSA filed one permanency report in I.C.’s dependency case and one permanency report in Jeremiah’s and Matthew’s dependency cases. SSA’s reports were the only evidence presented to the juvenile court at the permanency hearing. The reports stated that the children have remained in the home of Karla and their maternal uncle Diego M., since March 14, 2008, and that Karla and Diego wished to adopt them.
SSA reported: “The children’s daily needs have been adequately met by the prospective adoptive parents since being placed with them. They have demonstrated an ability to ensure Jeremiah’s, Matthew’s and I[.C.]’s health, safety and welfare. By all accounts, the children appear to be thriving in the home.” The social worker observed the children “appeared very well cared for and bonded to Karla.” Karla and Diego have set firm boundaries as directed by SSA and the court, and demonstrated a commitment to caring for the children. Karla and Diego stated they were seeking to adopt the children because “‘we love them and want them to stay with us’” and “‘want them to remain with family and want to give them a loving and stable home forever.’”
SSA further reported: “Both boys have adjusted well and are thriving in the care of the maternal relatives.... Jeremiah appears very bonded to Karla and Diego and calls them ‘mommy’ and ‘papa[.’] He calls [Mother] ‘Davi.’ He has become less aggressive [in] the caretaker’s home and he has lost two pounds which was a medical requirement for obesity. Matthew is thriving in the placement with Diego and Karla as well; he has become increasingly mobile and interacts socially with others. He used to have a flat affect and be withdrawn and fearful and now he is interacting with others, smiling and laughing. Both boys look for Karla out the window during visits and are very excited to see her when she arrives to pick them up.”
Jeremiah expressed to the social worker that he liked living with his aunt and uncle. Matthew smiled when asked if he liked living with his aunt and uncle; Matthew was observed looking to Karla “when he wanted something” and would hug her.
I.C. was also “observed to be thriving in her prospective adoptive home.” SSA reported I.C. “is physically healthy and she is growing steadily. The child appears to be developmentally on track. She is a beautiful baby girl with brown eyes and brown hair who loves to play with her prospective adoptive parents. The child recognizes the prospective adoptive parents’ voices, smiles when she sees them, and seeks them out for attention and comfort. It is evident that she receives great care and that she is a well adjusted, secure baby in the prospective adoptive home.” SSA further reported, “[t]he prospective adoptive family has expressed their commitment to care for I[.C.] on a permanent basis and they are looking forward to providing her with the lifetime of love and security that she deserves.”
The permanency reports also chronicled Mother’s many monitored visits with the children since April 2008. Mother behaved appropriately during such visits. She prepared bottles for I.C., fed her, held her, and changed her diapers. Mother bought food for Jeremiah and Matthew, played with them, and showed them affection. Jeremiah appeared excited to see Mother.
In one of the permanency reports, the social worker observed that Mother “appears loving and affectionate towards all three children as evidenced by her kisses, hugs, and age appropriate conversations and activities. During the times that the mother visited the children with the children’s father, she was frequently prompted by the father to engage with the children. After the father’s death, the mother brought visitors to all the visits and she relied on their assistance with the children, as she appeared only to be able to focus on one child at a time. For most of the visits, the child I[.C.] would fall asleep for about half of the visitation time. The mother frequently had to be redirected to check on the child I[.C.] who would be left alone asleep in her carrier, while the mother interacted with the child’s siblings.”
In the other permanency report, another social worker observed: “When the mother was visiting with the father... prior to his death[,] she was very withdrawn and depressed during visits and would rarely engage with the boys. During these visits she would rarely interact with the children and would not attend to their basic needs or safety issues. [¶] Since [Father]’s death the mother continues to visit the boys and her affect has changed. She has become increasingly engaged with the boys but continues to lack a bond to them. Jeremiah is happy to see his mother but Matthew is consistently hesitant and fearful during contact with his mother at the visits. The mother tends to focus on Jeremiah and recently was directed by the undersigned to hold the baby and to not leave the baby alone on a table while she plays with Jeremiah at the visitation site. The mother lacks basic parenting skills and supervision skills to care for young children. The areas of concern are: leaving the children alone at times during visits and not knowing where children are located, allowing Jeremiah to run in the parking lot where there are busy cars, feeding Jeremiah pizza and ice cream despite her knowledge of the child needing to have a healthy diet, not cuing for potty training after the undersigned asked her to follow this schedule, not checking the children’s[] diapers, not changing diapers during the entire visitation time, and leaving the baby I[.C.] alone for long periods of time on a table while she plays with the other children. [¶] The mother lacks the parenting skills to manage three young children and will bring someone to help her for all visits. The undersigned requested that the mother ‘try’ to visit alone so the undersigned could view her parenting abilities to manage the children alone and she has not followed through with this to date. [¶] Jeremiah views visiting his mother a[s] fun playtime and she does not take a parental role with the children. Matthew appears to not know his mother and she lacks the ability to bond with Matthew. During visits[,] she demonstrates a lack [of] interest in developing this relationship and is focused on Jeremiah.”
The social worker stated: “The mother appears to have great difficulty understanding serious safety issues as to the protection and care of her children. The mother appears to care for the boys and love them but does not display a parental maternal bond or participate as a mother in a parental role in their lives.”
VI. Juvenile Court Terminates Parental Rights; Mother Appeals.
Mother did not attend the permanency hearing. The juvenile court found it likely the children would be adopted and ordered Mother’s and Father’s parental rights terminated. The court found that the provisions of section 366.26, subdivision (c)(1)(A) and (B)(i)-(vi) did not apply and that the adoption of the children and the termination of parental rights were in the best interest of the children. Mother appealed.
Discussion
I. Mother Has Failed to Show She Was Prejudiced by the Juvenile Court’s Failure to Order Mother and Father to Complete the Parental Notification of Indian Status Form.
Mother contends the juvenile court’s order terminating her parental rights must be reversed because the court did not order either Mother or Father to complete the Parental Notification of Indian Status form. Thus, Mother argues, neither SSA nor the court conducted a legally sufficient inquiry into Mother’s potential Indian ancestry.
Section 224.3, subdivision (a) and California Rules of Court, rule 5.481(a) impose “an affirmative and continuing duty to inquire” whether a dependent child is or may be an Indian child. (See In re N.E. (2008) 160 Cal.App.4th 766, 769.) California Rules of Court, rule 5.481(a)(1) requires the social services agency to ask the parents whether the child in question “is or may be an Indian child.” Rule 5.481(a)(2) requires that at the time of a parent’s first appearance in a dependency case, the court must order the parent to complete the Parental Notification of Indian Status form.
In In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1428, the father argued the lack of an ICWA inquiry by the social services agency compelled reversal of the order terminating his parental rights. Although the appellate record lacked any evidence that a proper ICWA inquiry had been made, the appellate court concluded there had been no miscarriage of justice because the father had failed to make an affirmative representation of Indian heritage on appeal. (Id. at p. 1431.)
In In re N.E., supra, 160 Cal.App.4th at page 769, the juvenile court did not order the father to complete a Parental Notification of Indian Status form and SSA did not question him about possible Indian heritage. The mother informed SSA, however, that the father had no Indian heritage and he stipulated ICWA did not apply to the case. (Ibid.) On appeal, the father argued the order terminating his parental rights must be reversed because SSA and the juvenile court failed to comply with their duties to inquire about Indian ancestry. (Ibid.) He did not assert on appeal that “he in fact has any Indian heritage.” (Ibid.)
The appellate court affirmed the juvenile court’s order, stating: “Even if the juvenile court and SSA failed in their inquiry responsibilities, we cannot disturb the juvenile court’s order without a showing [the father] was prejudiced by the claimed error. [Citation.] And in this case, where there is absolutely no suggestion by [the father] that he in fact has any Indian heritage, he has failed to demonstrate the requisite prejudice.” (In re N.E., supra, 160 Cal.App.4th at p. 769.)
Here, the record does not show that the juvenile court ever ordered Mother and Father to complete the required form. But, even if Mother were correct that the required form had not been ordered by the court, no prejudicial error occurred because the record shows both parents repeatedly stated to SSA and in open court that they did not have any Indian heritage. Mother has never contended otherwise in the juvenile court or on appeal. Consequently, Mother has failed to show prejudicial error.
Mother cites In re J.N. (2006) 138 Cal.App.4th 450 in support of her argument that she need not “allege Indian ancestry in order to demonstrate prejudice.” In In re J.N., the mother had never been asked by either SSA or the court about Indian heritage. (Id. at p. 461.) In light of the “complete failure” to inquire of the mother regarding her ancestry, the appellate court stated it refused to speculate what the mother’s answer might have been had such inquiries been made and remanded the matter to the juvenile court so that such inquiries could be made. (Id. at pp. 461 462.)
In In re N.E., supra, 160 Cal.App.4th at pages 770 771, the appellate court stated it found the reasoning of In re Rebecca R., supra, 143 Cal.App.4th 1426 more persuasive than that set forth in In re J.N., supra, 138 Cal.App.4th 450, and, similar to the court in In re Rebecca R., declined to reverse the order terminating parental rights and remand to the juvenile court to make ICWA inquiries because the appealing parent failed to show a miscarriage of justice.
In any event, In re J.N., supra, 138 Cal.App.4th 450 is distinguishable from the instant case because, as discussed ante, the record here does not reflect a complete failure by SSA and the juvenile court to make inquiries of Mother and Father as to their Indian heritage. We find no prejudicial error.
II. The Juvenile Court Did Not Err by Finding the “Beneficial Relationship” Exception Under Section 366.26, Subdivision (c)(1)(B)(i) Inapplicable.
Mother contends the juvenile court erred by failing to find the parent-child relationship exception to the termination of parental rights applicable. Section 366.26, subdivision (c)(1)(B)(i) allows the juvenile court to decline to terminate parental rights over an adoptable child if it 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 had the burden of proving both prongs of the parent-child relationship exception were satisfied. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 949.) We consider whether substantial evidence supports the juvenile court’s determination the parent-child relationship exception did not apply. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424 425.)
In In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351, the appellate court acknowledged that courts have “routinely applied the substantial evidence test” to the juvenile court’s finding under section 366.26, subdivision (c)(1)(B)(i). The appellate court in In re Jasmine D. stated that the abuse of discretion standard is a more appropriate standard even though “[t]he practical differences between the two standards of review are not significant.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) Under either standard, however, Mother’s argument fails for the same reasons.
Even assuming the record shows Mother had “regular visitation and contact” with the children under section 366.26, subdivision (c)(1)(B)(i), she did not satisfy the second prong of the exception, by showing the children would benefit from continuing their relationship with her.
In In re Autumn H., supra, 27 Cal.App.4th 567, 575 576, the court stated: “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 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. [¶] 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 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 to parent. [¶] At the time the court makes its determination, the parent and child have been in the dependency process for 12 months or longer, during which time the nature and extent of the particular relationship should be apparent. Social workers, interim caretakers and health professionals will have observed the parent and child interact and provided information to the court. The exception must be examined on a case by case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child’s particular needs are some of the variables which logically affect a parent/child bond.”
Substantial evidence supports the juvenile court’s finding the parent child relationship exception did not apply. Jeremiah was 17 months old, Matthew was three months old, and I.C. was two days old when they were removed from Mother’s custody. They have never returned to Mother’s custody.
The record shows Mother often visited the children (except as limited by the criminal court’s restraining order) and, in doing so, helped take care of them. SSA’s reports showed Mother was loving and appropriate during visits although she appeared to lack basic parenting skills. In one report, the social worker noted Mother lacked a close maternal bond with Jeremiah and Matthew.
On the other hand, the record shows the children have bonded with the prospective adoptive parents and have been thriving in their care. Jeremiah calls them “mommy” and “papa.” Matthew goes to Karla to meet his needs. I.C. “recognizes the prospective adoptive parents’ voices, smiles when she sees them, and seeks them out for attention and comfort.” The prospective adoptive parents have demonstrated their commitment to providing the children a stable, nurturing, and permanent home.
In short, the record shows the prospective adoptive parents have occupied parental roles in the children’s lives since March 2008 and the termination of Mother’s parental rights would not deprive the children of a “substantial, positive emotional attachment such that [they] would be greatly harmed.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Substantial evidence supports the juvenile court’s finding the parent-child relationship exception was inapplicable.
Disposition
The order is affirmed.
WE CONCUR: SILLS, P. J., BEDSWORTH, J.