Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange CountySuper. Ct. No. J433861, Dennis Keough, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed and remanded.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, and Karen L. Christensen and Paula A. Whaley, Deputy County Counsel, for Plaintiff and Respondent.
Law Offices of Marjorie G. Fuller, Marjorie G. Fuller, A Center for Children & Family Law, and Loni Poyner-Klein for Respondents Craig and Chris C.
Jennifer Mack, under appointment by the Court of Appeal, for the Minor.
OPINION
SILLS, P. J.
Kimberly K. appeals from the order of the juvenile court terminating her parental rights and freeing her son, Julian, for adoption by his legal guardians, the maternal grandparents. She claims the court erred when it found that the Orange County Social Services Agency (SSA) complied with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1912, subd. (a)) and that ICWA did not apply. She argues the ICWA notice error requires that the entire matter be remanded for an updated consideration of Julian’s best interests based on his current circumstances. Kimberly also claims the court erred in failing to find that termination of her parental rights would be detrimental to Julian because of the benefit he would gain from continuing his contact with her. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(A).)
All further statutory references are to the Welfare and Institutions Code.
We find the juvenile court properly determined that termination of parental rights would not be detrimental to Julian. We find, however, that proper notice was not provided under ICWA, and we remand for the limited purpose of correcting that error.
FACTS
Julian K. was taken into protective custody in September 1996 due to domestic violence and substance abuse by his parents, Randall C. and Kimberly K. Julian was declared a dependent of the court the following November and placed with his maternal grandparents; he was two years old at the time. Julian was temporarily permitted to reside with Randall beginning in January 1998, but was returned to his grandparents in March of that year.
The juvenile court selected guardianship as Julian’s permanent plan in September 1998 and designated Julian’s maternal grandparents as his legal guardians. (§ 366.26, subd. (c)(4)(A).) Those orders were affirmed by this court in July 1999. In November 1999, the parties agreed that Julian’s visits with Kimberly and Randall would be monitored and Julian would no longer be allowed to stay overnight with either parent.
In November 2005, Julian’s grandparents filed a petition requesting that the court reinstate dependency and begin proceedings to terminate parental rights so they could adopt Julian. (§ 388.) They explained that Julian had lived with them for nine years and wanted to be adopted by them. Their supporting declaration indicated Kimberly and Randall had visited Julian only sporadically since 2003 and neither parent had visited him at all since October 2004. The declaration also indicated Kimberly had called Julian only sporadically, that Randall was arrested in August 2005 and was currently incarcerated, that Kimberly had been arrested twice since Julian’s 1998 placement, and that neither parent had made the required child support payments.
A report prepared by SSA noted that Kimberly visited Julian four times in 2003 and called him six times. There was no contact from Randall. In 2004, Kimberly visited Julian six times and called seven times; Randall visited once and called four times. In 2005, Kimberly visited Julian once and called seventeen times. The social worker interviewed Julian, and he said he had asked his grandparents to adopt him. “[H]e has been with his grandparents for so long and . . . he could not live with his mother. . . . The child stated that it is nice to see his parents every once in awhile but . . . ‘I have to continue with my life.’”
In January 2006, the court reinstated dependency and appointed counsel for the parents. In response to an inquiry by the court, both Kimberly and Randall indicated they had American Indian heritage. Kimberly stated that she had “some Cherokee Indian”; Randall indicated his great-great-grandfather was Iroquois. Both parents were directed by the court to provide specific information about their Indian heritage. The court further ordered that notice be sent to various tribes and the Bureau of Indian Affairs (BIA) in compliance with ICWA.
SSA sent ICWA notices in February 2006. Return receipts were received from the BIA and the noticed tribes, and none of the organizations indicated that the named individuals were in their records or that Julian qualified as an Indian child.
At the hearing held in June 2006, the parties stipulated to the court making the following orders: set a permanent plan selection hearing, find ICWA does not apply, and approve visitation once a month for four hours if the parents visit together or two hours each if separately. The court made the findings and orders pursuant to the signed stipulation.
In October 2006, the court held the permanent plan selection hearing. SSA reported the mother had been attending monthly monitored visits with Julian since March 30, 2006. Although the March and April visits went well, the May visit was terminated by Julian after 10 minutes. The social worker reported, “Julian was . . . reluctant to attend this visit and during their time together, Julian expressed to his mother that he had been very upset about the whole situation and . . . asked his mother why she would not sign the adoption papers. Julian indicated to his birth mother that he wished to be adopted by his current caregivers for the sense of security this gives him.” Julian asked to skip the June visit. The July, August, and September visits were held at Dana Point Harbor, and Julian and his mother enjoyed each other. The mother was significantly late to two of the visits.
The adoption social worker interviewed Julian in September. She reported Julian told her, “I feel a sense of security with my grandma and papa. I’m attached. I would not live with my mom. I’ve lived with [the grandparents] most of my life. They are going to become my parents and yes, it is best for me.”
Julian testified that he wished to be adopted by his grandparents and believed that his grandparents would let him see Kimberly and Randall periodically. Julian stated that he was being home-schooled by his grandfather because he had missed a month of school the prior year due to stomach pains; he attributed the pains to stress resulting from his parents “fighting the adoption.” When asked if he enjoyed his visits with his mother, Julian stated, “not really,” but indicated that visits were better when his monitor, Kevin, was present. He further testified that he was generally happy to see his mom and that they exchanged hugs, but that he would be uneasy seeing either parent without a monitor. Julian indicated finally that he wished to see his parents three or four times per year, and he trusted his grandparents to permit that contact.
None of the parties was present during Julian’s testimony; Kimberly’s counsel instead summarized Julian’s statements for her. Although Kimberly had not been present for the testimony and had not requested a read-back, she indicated she agreed with the termination of parental rights because “this is what Julian wants.” The parties agreed to enter into a post-adoption contact agreement, providing that Kimberly could visit Julian four times per year, upon 45 days written notice and with a monitor present, and could contact Julian by telephone once a week. Kimberly waived her right to appeal.
The court found by clear and convincing evidence that Julian was likely to be adopted and there were no circumstances making termination of parental rights detrimental to him. The court specifically stated it had considered “Julian’s testimony and his . . . age in relationship to his testimony and stated desire.” The court advised Kimberly that she was entitled to appeal, despite her waiver, within 60 days. Kimberly filed this timely appeal on December 22, 2006.
DISCUSSION
The Benefit Exception
Kimberly argues the juvenile court erred in failing to find that her relationship with Julian would benefit him more than the termination of her parental rights and his subsequent adoption. We disagree.
At the permanent plan selection hearing, the juvenile court will ordinarily terminate parental rights if it finds by clear and convincing evidence that the child is adoptable. The termination of parental rights to an adoptable child can be avoided, however, if the court finds “a compelling reason for determining that termination would be detrimental to the child” due to at least one of several statutorily-described circumstances. (§ 366.26, subd. (c)(1).) The so-called benefit exception describes circumstances where “[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)(A).) Kimberly bears the burden of proving that the benefit exception applies. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.) We will affirm the juvenile court’s finding that the exception did not apply if substantial evidence supports it. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
“To trigger the application of the parental relationship exception, the parent must show the parent-child relationship is sufficiently strong that the child would suffer detriment from its termination. [Citation.] The benefit to the child from continuing such a relationship must also be such that 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.”’ [Citation.] A child who is determined to be a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may benefit the child to some degree but does not meet the child’s need for a parent. [Citation.] Adoption, when possible, is the permanent plan preferred by the Legislature if it is likely the child will be adopted. [Citation.]” (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449-450.)
In 1998, the court declined to terminate Kimberly and Randall’s parental rights and instead found that Julian would benefit from a continuing relationship with his parents. A report prepared by SSA at that time noted Julian had “had literally thousands of hours of positive contact with his parents since his adjudication” and had a “strong, positive bond” to both parents. The situation has significantly changed. Kimberly had no contact with Julian during the period from October 2004 through November 2005. In fact, Kimberly visited Julian only once in 2005, apparently after the petition to reinstate dependency was filed. Julian has consistently expressed a desire to be adopted by his grandparents and seems to understand the benefit he would derive from that security and stability. Kimberly has presented no evidence to support the application of the benefit exception.
Compliance with the ICWA Notice Requirements
Kimberly argues the juvenile court committed prejudicial error in finding that the ICWA notices sent to the BIA and various tribes were in compliance and that the ICWA did not apply. She points out the notices contained incorrect information about Julian’s maternal grandfather and did not list her mother’s place of birth; she also maintains that two Iroquois-affiliated tribes listed in the Federal Register were not noticed. Kimberly claims this non-compliance requires reversal of the juvenile court’s ruling that ICWA did not apply; she also claims the entire matter should be remanded for an updated determination of Julian’s best interests based on his current circumstances. We agree the case must be remanded, but only for the limited purpose of ICWA compliance.
At the time of this hearing, California Rules of Court, former rule 1439 applied to juvenile dependency proceedings. Rule 1439(f) required notice to be sent to the possible tribes on Juvenile Court Form JV-135, which provides information about the child’s family. The maternal grandmother’s place of birth was listed as “unknown,” and the information under maternal grandfather pertained to Julian’s step-grandfather, not his biological maternal grandfather. SSA concedes, and we agree, that these errors require reversal and remand for correction. (See In re Jennifer A. (2002) 103 Cal.App.4th 692, 705.)
Rule 1439 was renumbered as rule 5.664 and amended, effective January 1, 2007.
Kimberly also argues SSA failed to list the Seneca-Cayuga Tribe of Oklahoma and the Oneida Tribe of Indians of Wisconsin (formerly Oneida Nation of Wisconsin). These tribes are listed as recognized by the federal government (72 Fed.Reg. 13648 (Mar. 22, 2007)) and were not noticed in this proceeding, but Kimberly fails to cite any authority to support her claim that these tribes are affiliated with the Iroquois. Accordingly, her argument fails.
We do not agree, however, with Kimberly’s argument that, on remand, the juvenile court should consider Julian’s best interests based on his current circumstances. The practice of limited reversals for purposes of ICWA compliance is “legally authorized, consistent with the best interests of children, and in keeping with fundamental principles of appellate practice.” (In re Francisco W. (2006) 139 Cal.App.4th 695, 704.)
DISPOSITION
The judgment terminating parental rights is reversed and the case is remanded to the juvenile court with directions to order SSA to comply with the notice provisions of ICWA. If, after proper notice, a tribe claims Julian is an Indian child, the juvenile court shall proceed according to the dictates of ICWA and California law. If no tribe claims that Julian is an Indian child, the judgment terminating parental rights and all other orders made at the permanent plan selection hearing shall be reinstated.
WE CONCUR: ARONSON, J., IKOLA, J.