Opinion
NOT TO BE PUBLISHED
Santa Barbara County Super. Ct. No. J1219107, Rick S. Brown, Judge.
Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall, County Counsel, Gustavo E. Lavayen, Chief Deputy, for Plaintiff and Respondent.
GILBERT, P.J.
S.W. (Mother) appeals an order of the juvenile court terminating her parental rights and selecting adoption as the permanent plan for her child, Jesse R. (Welf. & Inst. Code, § 366.26, subd. (c)(1).) We affirm.
All further statutory references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL HISTORY
Previous Dependency
In May 2007, Santa Barbara County Child Welfare Services (CWS) filed a dependency petition alleging that newborn Jesse R. had positive toxicology results for benzodiazepine. CWS alleged that Mother suffers from mental illness and substance abuse. The infant's father, G.R. (Father), was incarcerated and could not care for the infant. (§ 300, subds. (b), (g).) CWS also alleged that Mother and Father had criminal histories, including drug-related crimes. Mother then had two pending criminal prosecutions for possession of methamphetamine and opiates.
The juvenile court detained Jesse R. and placed his care and custody with CWS. The court later sustained the allegations of the dependency petition, continued Jesse R. as a dependent child, and ordered CWS to provide family reunification services to Mother and Father. By the time of the six-month review hearing, CWS recommended that Jesse R.'s care and custody be returned to Mother and that she receive family maintenance services. On September 3, 2008, the court terminated the dependency proceedings and granted physical and legal custody of Jesse R. to Mother.
Present Dependency
On October 26, 2009, CWS filed a dependency petition alleging that Mother held a "meth party" in her home while Jesse R. slept in the bedroom. CWS also alleged that Mother's mental illness was not controlled and that she could not care for Jesse R. Mother, a probationer, was arrested and incarcerated for being under the influence of methamphetamine and for child endangerment. (§ 300, subds. (b), (g).)
The juvenile court ordered that Jesse R. be detained and placed his care and custody with CWS. The court later sustained the allegations of the dependency petition. Based on information that Mother abused drugs and alcohol following the dismissal of the first dependency, CWS recommended that Mother not receive family reunification services. (§ 361.5, subd. (b)(13).) CWS also reported that Jesse R. had been diagnosed as an autistic child. The court denied reunification services to Mother and set the matter for a permanent plan hearing.
On August 25, 2010, the juvenile court held a permanent plan hearing. Mother requested an evidentiary hearing to establish the beneficial parental relationship exception to the termination of parental rights. (§ 366.26, subd. (c)(1)(B)(i).) The court required Mother to make an offer of proof of the exception. Mother's counsel responded in part that "Mother has a bond for the period of time she has had the opportunity to have the child." The court found that Mother did not meet "the burden of proof to have a Welfare and Institutions Code 366.26 hearing." The court admitted the CWS permanent plan report into evidence. It found clear and convincing evidence that Jesse R. is adoptable, and terminated parental rights.
The Indian Child Welfare Act (25 U.S.C. 1901 et seq.) (ICWA)
During the detention hearing in the previous dependency, Father stated that he had Indian heritage with "two different lines there in the east." Father did not recall the names of the Indian tribes. CWS later reported to the juvenile court that it was attempting to obtain additional information from Father regarding his Indian ancestry.
On October 24, 2009, during the present dependency, CWS questioned Father who stated that he is "first cousins" with "a tribe connected with the Blackfoot." Father stated that he would attempt to locate and speak to a paternal aunt who might have more information. Father did not provide additional information thereafter.
Mother appeals and contends that: 1) the juvenile court denied her due process of law by denying her an evidentiary hearing, and 2) the court and CWS did not comply with inquiry and notice requirements of the ICWA. Father is not a party to this appeal.
DISCUSSION
I.
Mother argues that the juvenile court denied her due process of law by denying an evidentiary hearing to allow her to establish an exception to the termination of parental rights. (§ 366.26, subd. (c)(1)(B).) She asserts that she made a sufficient offer of proof that the "beneficial parental relationship" exception applied. (Id., subd. (c)(1)(B)(i).)
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)(B)(i) 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 a good part of their lives].)
The juvenile court has discretion to request an offer of proof regarding an enumerated exception to the termination of parental rights. (In re Earl L. (2004) 121 Cal.App.4th 1050, 1053.) "[T]he court can require an offer of proof to insure that before limited judicial and attorney resources are committed to a hearing on the issue, [the parent] ha[s] evidence of significant probative value. If due process does not permit a parent to introduce irrelevant evidence, due process does not require a court to hold a contested hearing if it is not convinced the parent will present relevant evidence on the issue he or she seeks to contest." (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1122 [offer of proof regarding beneficial parental relationship exception].)
The juvenile court did not err by denying Mother a contested evidentiary hearing because her offer of proof did not provide actual evidence that the statutory exception applied. Instead, Mother asserted conclusions and attacked earlier court orders, e.g., bypass of reunification services and jurisdiction. "The offer of proof must be specific, setting forth the actual evidence to be produced, not merely the facts or issues to be addressed and argued." (In re Tamika T., supra, 97 Cal.App.4th 1114, 1124.) The court reasonably found that Mother's presentation was insufficient to warrant an evidentiary hearing.
II.
Mother asserts that the juvenile court and CWS did not comply with the inquiry and notice requirements of the ICWA. She points out that "a suggestion of Indian ancestry" triggers the ICWA notice requirement. (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.)
The juvenile court and the social services department have affirmative duties to inquire whether a dependent child is or may be an Indian child. (§ 224.3, subd. (c); In re Nikki R., supra, 106 Cal.App.4th 844, 848.) Federal regulations and California statutory law, however, require more than "a bare suggestion" that a child might be an Indian child. (In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520.) "[I]f there is insufficient reason to believe a child is an Indian child, notice need not be given." (Ibid.) Duties of inquiry and notice do not arise where information is too vague and speculative to lead the juvenile court to believe that the minor may be an Indian child. (In re O.K. (2003) 106 Cal.App.4th 152, 155, 157 [information that father "may have Indian in him" insufficient to trigger notice requirements of ICWA].) "[A] claim that a parent, and thus the child, 'may' have Native American heritage is insufficient to trigger ICWA notice requirements if the claim is not accompanied by other information that would reasonably suggest the minor has Indian ancestry." (Jeremiah G., at p. 1516.)
There is no ICWA error because there is no reason to believe that Jesse R. may be an Indian child. At the detention hearing in the first dependency proceeding, Father stated that he "forgot the name" of the Indian tribe, but "[t]here was like two different lines there in the east." In the present dependency proceeding, Father informed CWS that he is "first cousins" with a tribe "connected with the Blackfoot whose name he cannot remember" and that a paternal aunt "may know more." Father stated he would "attempt to locate her and ask her." Father did not provide additional information thereafter. Under the circumstances, the juvenile court and CWS satisfied their duties of inquiry and notice.
The order is affirmed.
We concur: YEGAN, J., COFFEE, J.