Opinion
B161793, B162469.
7-17-2003
In re L.F. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Petitioner and Respondent, v. L.F. et al., Objectors and Appellants.
Merrill Lee Toole, under appointment by the Court of Appeal, for L.F., Objector and Appellant. Konrad S. Lee, under appointment by the Court of Appeal, for Darrel W., Objector and Appellant. Lloyd W. Pellman, County Counsel, and Arezoo Pichvai, Deputy County Counsel, for Petitioner and Respondent.
INTRODUCTION
In consolidated appeals from the orders of the juvenile court terminating their parental rights, L.F., mother of L. and P., and Darrel W., presumed father of P., contend the trial court was without jurisdiction to terminate parental rights to P. because the Department of Children and Family Services (the Department) had not complied with the Indian Child Welfare Act (ICWA), title 25 of the United States Code section 1901 et seq. Mother also contends the trial court erred in failing to apply the exception to adoption under Welfare and Institutions Code section 366.26, subdivision (c)(1)(A) and terminating her rights to L. and P.
All further statutory references are to the Welfare and Institutions Code, unless otherwise noted.
The Department concedes that it did not fulfill the requirements of the ICWA, with the result the order terminating both parents rights to P. must be reversed and remanded for the purpose of compliance with that Act. With respect to L., the order terminating mothers rights to him is supported by the record and so we affirm it.
FACTUAL AND PROCEDURAL BACKGROUND
In the first months of his eight-year life, L. lived with mother at a group home in Orange County. When L. was 11 months old, mother was placed in juvenile hall and failed to arrange for L.s care. L. was detained and placed with a paternal great aunt and uncle. Eventually, L. was declared a dependent of the Orange County Juvenile Court under section 300, subdivisions (b) and (g).
L.s father is not a party to this appeal.
Mothers progress toward reunification was unsatisfactory, as she had disappeared and then had been returned to juvenile hall by the six-month hearing. The case was eventually transferred to Los Angeles County where reunification services were continued to the 18-month mark as mother was visiting L. approximately once a week.
In early 1998, reunification services were terminated. The court ordered L. into long-term foster care. Throughout 1998 and the first half of 1999, mother visited L. regularly in his foster home and had weekend overnight visits twice a month. L. thrived in foster care and benefited from visits with mother.
P. was born in June 1999. Mother was employed, in drug rehabilitation, had an apartment, and hoped L. could be returned to her custody.
In September 1999, mother was dropped from her drug rehabilitation program for failure to attend.
In May 2000, the Department filed a petition alleging under section 300, subdivision (b) that P.s parents, mother and father, had signed a voluntary family maintenance contract agreeing (1) to refrain from engaging in domestic violence, (2) to attend drug counseling and testing, and (3) to monitor fathers visits with P. However, the parents violated all aspects of the contract. The detention report indicated, despite the petitions allegations, that P. appeared well cared for and both parents appeared to love her. Hence, the social worker believed, while P. was at risk from the parents behavior and needed court intervention and family maintenance services, that the risk was not sufficient to remove her from her parents custody.
In June 2000, L. and P. were released to mother pending the next hearing. Ordered to participate in reunification services, mother explained to the Department that the foster mother had prevented her from seeing L. for eight months and that she did not know where L. was during that time.
In July 2000, the Department filed a section 387 petition removing P. from mothers care because mother had been arrested for credit card fraud and left P. in fathers care against court orders and without notifying the Department. L. had been left with the maternal grandmother who was requesting that P. be placed with them. L. adjusted "remarkably well" to his new home and was elated to learn he might see his mother and sister.
In August 2000, father informed the court that he was part Cherokee and part Blackfeet. The court ordered the Department to notify the tribes and the Bureau of Indian Affairs (BIA).
Mother was evicted from her housing during her incarceration. She wanted L. to remain with his maternal grandmother for the sake of continuity in school. Mother was eventually sentenced to 173 days house arrest and four years of probation. The court removed P. from mothers custody and ordered her placed with the maternal grandmother, ordered reunification services, and granted mother unmonitored visits.
By the end of 2000, mother had tested positive for marijuana and phencyclidine (PCP). Mother visited both children fairly regularly, every other weekend for eight or nine hours at a time. The children seemed to enjoy their visits but did not cry when mother left. Mother stated she was not ready to care for her children.
According to the adoption assessments, L. and P. were bonded with mother who visited and called them regularly. Then in March 2002, a bench warrant was issued for mother who was in violation of her probation. Mother stopped visiting the children in March, but continued to call them fairly regularly. Father had not visited P. since August 2001. Both children were developing normally with their grandmother. The Department recommended adoption as the permanent plan.
In June 2002, mother was jailed again on charges of fraudulent use of a credit card, burglary, and petty theft with a prior. In July 2002, father was arrested and charged with petty theft with a prior.
At the section 366.26 hearing, mother testified that her children loved her; she spent her weekend visits with the children at the grandmothers house and called them as often as possible. The children knew she was their mother and were happy to see her. Mother provided the children with clothes, toys, school supplies and whatever they requested of her.
The grandmother testified mothers visits had been fairly regular since the children were placed with the grandmother. The grandmother facilitated visits believing it was in the childrens best interest. Mother also called the children once or twice a week. The children looked forward to their visits with mother. While the children recognized mother as their mother, they considered their grandmother to be their provider. Since their placement with the grandmother, the children have become more at ease and are doing well in school. The reason the grandmother wanted to adopt the children was that she felt she would be the better caretaker.
The court found the section 366.26, subdivision (c)(1)(A) exception to adoption did not apply. While mothers visits were mostly consistent and ongoing, her relationship with L. and P. had not risen to the level necessary to apply the exception, and so it would not be detrimental to the children to sever her parental rights. The court terminated parental rights and mother and father separately appealed.
CONTENTIONS
Mother contends the trial court erred in failing to apply the exception to adoption contained in section 366.26, subdivision (c)(1)(A) and instead terminating her parental rights to L. and P.
Both mother and father contend the trial court lacked jurisdiction to terminate their rights to P. because the Department failed to comply with the notice provisions of the ICWA.
DISCUSSION
1. The juvenile court did not err in declining to apply the exception to adoption.
Mother contends the court erred in finding the exception to adoption did not apply and terminating her parental rights to L. and P.
The juvenile court must select adoption as the permanent plan if it finds that a child may not be returned to his or her parent and is likely to be adopted, unless the court finds that termination of parental rights would be detrimental to the child under one of the five delineated exceptions. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573-574; § 366.26, subd. (c)(1)(A)-(E).)
Subdivision (c)(1)(A) of section 366.26 sets forth the exception upon which mother relies. That subdivision applies where the court finds, by substantial evidence, that "the parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Ibid., italics added.) To determine whether to apply this exception, the "court must engage in a balancing test, juxtaposing the quality of the relationship and the detriment involved in terminating it against the potential benefit of an adoptive family." (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425.)
The parent bears the burden to show that termination would be detrimental to the child under this exception. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; In re Derek W. (1999) 73 Cal.App.4th 823, 826-827.) To do so, mother must show that her relationship with L. and P. " promotes the well-being of the children to such a degree as to outweigh the well-being the children 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 children of a substantial, positive emotional attachment such that the children would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated. [Citation.]" (In re Derek W.,supra, at p. 827, quoting from In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Mother failed to meet her burden. While mother had consistent and regular contact with L. and P., there is no showing she had such a substantial relationship with the children that severing it would be detrimental to them. Mothers life has been unstable and unreliable chiefly because of her repeated incarcerations and drug use, and consequent failure to maintain steady housing or employment. Meanwhile, the grandmother has provided a stable and constant home, attended to the childrens physical, educational, emotional and psychological needs, and is considered by them to be their provider. Since the children came to live with their grandmother, they have been more at ease and are doing well in school. Given mother does not provide L. and P. with a stable environment and does not meet their needs, her relationship with L. and P. does not promote their well-being to such a degree that severing the mother/child relationship would harm these children or deprive them of the substantial, positive emotional attachment. Hence, the exception to adoption does not apply.
Mother focuses on her regular and relatively consistent contact with the children. She observes the children are bonded to her and happy to see her. However, mothers burden is to demonstrate more than "frequent and loving contact" (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418), or an emotional bond with the child, or that she and the children find their contact pleasant. (In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) It is insufficient to show that the children derived some benefit from continuing the relationship maintained during periods of visitation. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) Instead, mother had to show that the benefit to the children of her relationship with them outweighs the benefit the youngsters would gain in a permanent home with adoptive parents. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1109.) In short, mother was required to show that she occupies a "parental role" in the childrens lives. (In re Elizabeth M., supra, at p. 324; In re Derek W., supra, 73 Cal.App.4th at p. 827.)
Here, mother stands more in the position of a loving aunt than a parent. Mothers life remains erratic. Although the relationship between mother and L. and P. is emotionally important to the children, it is not the sort of consistent, daily nurturing characteristic of a parental relationship and does not outweigh the safety and stability the grandmother provides these children. In any event, the grandmother has declared, if she adopts the children, she will continue to allow mother to be a part of their lives. Because substantial evidence supports the juvenile courts order, it must be affirmed. (In re Derek W., supra, 73 Cal.App.4th at p. 827.)
2. The Department failed to comply with ICWA.
Mother and father separately challenge the judgment as to P. on the ground the court did not comply with the ICWA by giving notice to the tribes of P.s possible Indian ancestry and of their right to intervene in the dependency proceedings.
The ICWA provides that whenever "the court knows or has reason to know that an Indian child is involved" in a dependency proceeding, the party seeking termination of parental rights must, among other things, notify the childs tribe of the pending proceedings, and of the tribes right to intervene. (25 U.S.C. § 1912(a).) If the identity or location of the tribe cannot be determined, the required notice must be given to the Secretary of the Interior, i.e., the BIA. (Ibid.)
Title 25 United States Code section 1912(a) specifies "In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian childs tribe, by registered mail with return receipt requested, of the pending proceeding of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary [of the Interior] . . . . No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe of the Secretary [of the Interior] . . . ." (Italics added; see also, Cal. Rules of Court, rule 1439(f).)
The tribe or Secretary of the Interior determines whether the minor is an Indian child. (In re Desiree F. (2000) 83 Cal.App.4th 460, 469, 470; Cal. Rules of Court, rule 1439(g).) The purpose of the notice requirement is to enable the tribe to investigate and determine whether the child is an Indian child, and then to decide whether to exercise its right to intervene or to assume tribal jurisdiction. (In re Pedro N. (1995) 35 Cal.App.4th 183, 186-187.)
Notice is a "key component of" the ICWA. (In re Kahlen W. (1991) 233 Cal. App. 3d 1414, 1421, 285 Cal. Rptr. 507.) The juvenile court and the Department have an affirmative duty to inquire whether the child named in the dependency petition is or may be an Indian child (In re Desiree F., supra, 83 Cal.App.4th at p. 470, citing Cal. Rules of Court, rule 1439(d)), and give notice by registered mail, return receipt requested to the tribe of both the proceedings and the right to intervene. (In re Kahlen W., supra, at p. 1421.) Notice to the tribe is required for every hearing until it is determined the child is not an American Indian child. (Cal. Rules of Court, rule 1439(f)(5).) Whenever the notice requirement is violated, the Indian child, parent, Indian custodian, or tribe may petition the court to invalidate the proceeding. (25 U.S.C. § 1914.) "The only exceptions lie in situations where the tribe has participated in the proceedings or expressly indicated [it has] no interest in the proceedings. [Citations.]" (In re Marinna J. (2001) 90 Cal.App.4th 731, 736.)
Father informed the court on August 21, 2000, that his grandfather was part Cherokee and part Blackfeet. The juvenile court ordered the Department to investigate P.s American Indian heritage and provide notice to the tribes and the BIA. In response, the Department made "applications" to the Cherokee Nation and Blackfoot Tribe, both of which requested additional information.
Other than the above contact in an attempt to ascertain P.s status, County Counsel, on behalf of the Department, concedes the requisite notice under the ICWA was never given in this case and agrees that the case must be remanded for the purpose of complying with that Act. Even if the "applications" complied with the notice provision, neither of the tribes that received "applications" have yet determined whether P. is of American Indian ancestry, whether to intervene in this case, or whether it has any interest in the case. Nor had the Department notified the Secretary of the Interior. Therefore, the court acted prematurely when it terminated parental rights.
"The juvenile courts failure to secure compliance with the notice provisions of the [ICWA] is prejudicial error." (In re Kahlen W., supra , 233 Cal. App. 3d at p. 1424.) The ICWA notice requirements cannot be waived or substantially complied with. (See In re Marinna J., supra, 90 Cal.App.4th at p. 736, but see In re Pedro N., supra, 35 Cal.App.4th 188.) Therefore, we reverse the order terminating mothers and fathers parental rights to P., and remand the matter to the juvenile court to comply with the ICWA. If no tribe claims P. falls within the ambit of the ICWA, then given our holding in section 1 supra, the juvenile court may reinstate the order terminating parental rights. (See In re Marinna J., supra, at p. 740 [remanding for sole purpose of giving ICWA notice but affirming termination order].)
In his challenge to the juvenile courts section 366.26 ruling, father contends only that the court lacked jurisdiction to proceed at that hearing with respect to P. because it failed to ensure the Department complied with the ICWAs notice requirements. Father correctly notes without compliance with the ICWA, the courts orders may be invalidated. In the interim, however, the court in this case was authorized to "proceed with all dependency hearings, observing the Welfare and Institutions Code timelines while complying with the [Indian Child Welfare] Act and the rules." (Cal. Rules of Court, rule 1439(e), italics added.) If, after the proper compliance with the ICWAs notice provisions, P. is determined not to be an Indian child, then the ICWA does not apply and the juvenile court was authorized to proceed at the section 366.26 hearing. The courts ruling under section 366.26 is only invalid if, after proper notice, P. is determined by a tribe or the BIA to be an Indian child and the tribe seeks to invoke its jurisdiction. (25 U.S.C. § 1914.)
DISPOSITION
The orders of the juvenile court terminating the parental rights to P. are reversed and the matter is remanded to the juvenile court with directions to order the Department to provide proper notice under the ICWA to each of the relevant tribes and the BIA. If no tribe indicates the child falls within the meaning of the ICWA, then the court shall reinstate the order terminating parental rights to P.
The order of the juvenile court terminating parental rights to L. is affirmed.
We concur: KLEIN, P. J., and CROSKEY, J.