Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kings County. No. 09JD0006 George Orndoff, Judge.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Colleen Carlson, County Counsel and Hilary Kerrigan, Deputy County Counsel for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Gomes, J. and Dawson, J.
Janelle C. (mother) appeals from a 2011 order terminating parental rights (Welf. & Inst. Code, § 366.26) to her five-year-old daughter, Meghan. Mother contends respondent Kings County Human Services Agency (agency) failed to conduct any investigation into her claim of Native American heritage for purposes of giving notice pursuant to the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.). Mother also argues the juvenile court erroneously rejected her argument that termination would be detrimental to Meghan based on her relationship with mother. On review, we affirm, having concluded mother forfeited her ICWA argument and the juvenile court did not abuse its discretion by rejecting her detriment claim.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In early 2009, the agency detained three-year-old Meghan and initiated the underlying dependency proceedings. Meghan was at risk of being sexually abused by her father and suffering serious physical harm on account of other problems the father had, as well as due to mother’s failure to protect the child from the father. (§ 300, subds. (b) & (d).) The juvenile court subsequently found true the agency’s allegations, exercised its dependency jurisdiction over the child, and, in April 2009, removed her from parental custody.
ICWA
At the child’s February 2009 detention hearing, mother’s attorney advised the court “[mother] tells me she has some Native American heritage many[, ] many generations back from the Cherokee. She’s not sure which state and she’s not a tribal member.” Her attorney agreed the Cherokee tribe was the only tribe with which mother might have any connection. However, he added there might be others, but mother did not know.
Later during the hearing, mother told the court she thought it was her paternal grandmother who had Cherokee ancestry. Mother added her Cherokee heritage was “so small I don’t qualify for the Indian card or being on role or getting Indian food and everything.” Mother knew her paternal grandmother’s name, the fact that she currently lived out of state, and where she grew up.
Following the detention hearing, a social worker met with the parents and went over a California Judicial Council form, ICWA-030 “NOTICE OF CHILD CUSTODY PROCEEDING FOR INDIAN CHILD, ” with mother. Mother advised the social worker that she had been in contact with family and was not eligible for membership within the tribe. The social worker explained to mother the reasons for inquiring into Native American ancestry and completed the form. The form included contact information for mother’s paternal grandmother. Otherwise, in many of the form’s spaces provided for information about mother’s ancestors appeared the words “No information available.”
The agency subsequently served the form notice on the three federally recognized Cherokee tribes, the Bureau of Indian Affairs (BIA), the Secretary of the Interior, and each parent. The agency also properly documented its proof of service pursuant to ICWA. Although service was complete as of mid February 2009, none of the Cherokee tribes, BIA or the Secretary of the Interior responded to the effect that Meghan was an Indian child. The agency received only negative responses.
As a consequence, the agency recommended that the juvenile court find notice had been given under ICWA and that ICWA did not apply. At a March 2009 hearing, which mother attended, the juvenile court asked if it was able to make any findings with reference to ICWA. Mother’s attorney replied “[w]e have no objection.” The juvenile court in turn made findings that notice had been given under ICWA and that ICWA did not apply.
Mother did not challenge these findings by way of appeal from the juvenile court’s April 2009 disposition. (§ 395, subd. (a); In re Eli F. (1989) 212 Cal.App.3d 228, 233 [the juvenile court’s disposition constitutes a judgment, which is appealable].)
Reunification Efforts
When it removed Meghan from parental custody as part of its April 2009 disposition, the juvenile court also ordered reunification services for both parents. By the juvenile court’s six-month review, mother made significant progress in those services such that the court returned Meghan to mother’s custody subject to family maintenance services. Mother was also prohibited from allowing the child’s father in the home without agency approval.
Only four months later, the agency filed a supplemental petition (§ 387), alleging that family maintenance had been ineffective in protecting Meghan because, in part, mother allowed the father to have unauthorized contact with the child. The juvenile court ordered Meghan detained in February 2010 and found the agency’s allegations true.
The court later reversed itself. However, the agency responded by filing a second supplemental petition. In it, the agency detailed the risk of sexual abuse or sexual assault to Meghan because mother maintained a relationship with the child’s father. As of July 2010, the juvenile court found the second supplemental petition’s allegations true and removed Meghan from mother’s custody. Having also terminated reunification services for both parents, the court set a hearing under section 366.26 to select and implement a permanent plan for Meghan.
Adoption Assessment
In November 2010, adoption specialist Jenny Young-Cortez, with the adoptions unit of the California Department of Social Services, completed an adoption assessment as to then five-year-old Meghan. According to the assessment, it was likely that Meghan would be adopted. The adoption specialist also identified the child’s longtime caretakers as her prospective adoptive parents. Because Meghan’s adoptability is undisputed, we do not detail the supporting facts here.
The adoption assessment also addressed the history of contacts between mother and Meghan. The history commenced with the adoption specialist’s note that she had not observed any visits between mother and child, but rather obtained the history from the agency’s case record narratives, court records, the agency’s social worker assigned to Meghan’s case and the prospective adoptive parents. The adoption specialist’s review of court reports and case record narratives indicated that overall mother consistently attended most of her supervised visits with Meghan.
According to a March 2009 court report, mother appeared to be appropriate towards Meghan during visits. Mother spoke to and played with Meghan in a loving manner. The parents visited Meghan together during these early visits and brought food, drinks, clothing and toys. During one February 2009 visit, the supervising social worker observed Meghan lick mother’s cheek, as well as stick out and move her tongue in a circular motion in mother’s mouth. Not only did she allow Meghan to lick her face, mother also stuck out her tongue and “kissed” Meghan in the same manner.
According to a September 2009 court report, mother had two-hour, once-a-week supervised visits with Meghan. Mother provided food for Meghan at each visit and attempted to keep the child entertained. When visits were held at the agency, the mother/child relationship appeared strained and difficult. When visits were moved to mother’s home, their interactions became more comfortable and natural. Meghan reportedly enjoyed spending time in the home. Her relationship with mother drastically improved. The visits became overnight, weekend visits and reportedly were going well.
According to a February 2010 court report, once Meghan was re-detained, the child did not appear to have a strong bond with mother. Mother was not very affectionate with Meghan and was rarely demonstrative towards the child. At one visit, mother showed the child how to jump rope, as well as played catch with and read to Meghan. Yet, mother and child only hugged once during the visit. At another visit, mother was reportedly inattentive and merely observed Meghan and the father interact with each other for approximately 40 minutes.
According to a May 2010 court report, mother was inconsistent in her weekly visits with Meghan. Mother missed approximately three consecutive weeks. When mother did visit, she arrived appearing very hostile.
According to a July 2010 report, mother missed some visits and appeared to be under the influence during some of the visits she did attend. Meghan also referred to mother by her first name. Although mother was appropriate during the visits, she appeared to be distant and aloof when interacting with Meghan.
Once the court terminated services in July 2010 and referred the child for permanency planning services, it also reduced the visitation schedule to once a month. The agency’s currently assigned social worker, Freddie Reynoso, reported he supervised all visits once Meghan’s case was referred to the permanency planning unit. At the August 2010 visit, Reynoso observed mother become frustrated when she could not understand what Meghan was saying. According to the narrative of the September 2010 visit, the parents told Meghan they loved her and she told them that she loved them. When the visit ended, Meghan said goodbye and left without looking sad or upset. For the October 2010 visit, the parents arranged a birthday celebration for Meghan with a cake and gifts. Meghan reportedly enjoyed her birthday celebration.
Meghan has minimum to moderate speech delays.
The California Department of Social Services viewed the relationship between mother and Meghan as a weak parent/child relationship. Despite mother’s consistent visitation with Meghan, it did not appear that Meghan viewed her as her birthmother. The agency’s case record narratives and the prospective adoptive parents indicated Meghan called mother by her first name, while the child called her prospective adoptive mother “Mommy.” In addition, mother was not very affectionate with Meghan and rarely hugged the child or showed emotion towards her. According to the May 2010 court report, as well as case record narratives, the agency observed that Meghan did not have a strong bond with mother, showed no emotional separation when visits ended, and readily left with the prospective adoptive parents.
Permanency Planning Hearing
The juvenile court conducted a permanency planning hearing for Meghan in January 2011. At the start of the hearing, the court received into evidence the adoption assessment and took judicial notice of its entire file.
The agency called the adoption specialist, Young-Cortez, as a witness. In part, Young-Cortez testified she did not believe mother and Meghan had a very significant relationship. She based her opinion on the case record narratives of the visits, most of which indicated mother was very distant and aloof towards Meghan. Mother allowed the father to interact mostly with Meghan while mother “sat back and did a lot of observations.” The father would be “mostly agitated” with the child and seemed to get angry with her. Also, mother was not affectionate with Meghan and the child did not call her “Mommy.” Based on Young-Cortez’s review of the records and information in this case, it did not seem that Meghan looked to mother as a parental figure.
It did appear that mother maintained a regular pattern of visits with Meghan throughout the case. Young-Cortez also reconfirmed that she did not observe any of those visits.
On cross-examination, Young-Cortez was asked what caused her to include in the history of mother’s contact with Meghan, the February 2009 incident involving the child’s use of her tongue. The witness replied the behavior appeared to be a little inappropriate and neither parent stopped the behavior even after being asked to do so by the social worker. Asked about her use of the phrase “strained and difficult” to describe the mother/child relationship at another stage, the witness testified the agency social worker used the phrase in the September 2009 court report, but did not explain why or how the relationship appeared to be so. The same was true of the statement that the relationship “drastically improved” when visits were moved to the mother’s home. Those were the agency social worker’s words but there was no explanation. Questioned about other statements contained in her description of the mother/child visits, Young-Cortez testified, in essence, that she repeated what was stated in the various reports but could not explain why the statements were made.
Mother also testified. According to mother, Meghan was three and a half years old when she was removed from mother’s care in 2009. From Meghan’s birth until her removal, she was in the care of mother, father and two of his relatives. Then, Meghan returned to live with mother between September 2009 and January 2010, about four or five months. When Meghan was with mother, she and father were the child’s care providers.
Mother described her most recent visits with Meghan. At the last visit in December 2010, they celebrated Christmas with presents that mother brought. In November, she and the father came to the visit with a scooter for Meghan. The time before that was the visit at which they celebrated Meghan’s birthday.
According to mother, the statement about Meghan licking mother’s face and mother using her tongue to kiss Meghan at a February 2009 visit was not true. Sometimes Meghan would kiss mother during visits, but it all depended on the child’s mood. Mother claimed she kept her show of affection towards Meghan to “a very minimal” because of “all the accusations of the sexual stuff.” Mother tried “to respect the boundaries because there’s been so much put in reports about sexual misbehavior between the two of us. And there’s not been any that I know of, it’s what they want to see.” Mother did hug, carry, and pick up Meghan during visits.
Once in a while Meghan called mother “mom.” Sometimes, the child called mother by her first name. Mother would not say how many times. “[S]he knows I’m her mom[.]”
According to mother, Meghan ran to her when she first saw mother at visits. The child was happy. Meghan would either hug mother “coming or going, sometimes both, and sometimes just in the middle of the visit.” During visits, mother painted Meghan’s fingernails, as well as brought her a snack and toys. It was their “thing” to do nails. Mother would bring a set of fake nails to put on Meghan at every visit. Also, Meghan would play in a playhouse and appear to imitate or mimic her prospective adoptive mother. Meghan never asked mother questions or asked for any advice. Mother described her as “a pretty self-determined little girl.”
Mother did not think she was hostile during visits, unless the father made her hostile. She did not express any hostility or anger towards Meghan or the agency’s social worker, whom mother liked.
When Meghan was first detained, “it about killed both of us to part each other. But now Meghan... has pretty much accepted the fact that after the hour, it’s time to go home.” She was no longer upset about leaving when the visits ended.
Asked what the benefit would be to Meghan if parental rights were not terminated, mother testified about her own current circumstances. She made no reference to the child’s relationship with her.
In closing argument, mother’s counsel argued that mother maintained a significant relationship with Meghan. To sever that relationship might cause more harm to the child than the benefit she would receive from having an adoptive family.
The court could not find that it would be beneficial to Meghan to continue the relationship she had with the parents. In passing, the court mentioned “the child is somewhat acclimated to her current routine where she has more than one adult in her life and looks at the [prospective adoptive parents] as parent figures and no one objects to them being parent figures. [Mother] comes and when [she] is there, the child and [she] interact, probably with [the father] also.” Having found it was likely that Meghan would be adopted, the court terminated parental rights.
DISCUSSION
I. ICWA
Mother contends the agency failed to conduct any investigation into her claim of Native American heritage. According to her, the agency should have contacted living relatives, who may have been able to provide important information, which could have led to Meghan’s identification as an Indian child pursuant to ICWA.
In making her argument, mother conveniently overlooks the juvenile court’s 2009 findings that notice had been given under ICWA and ICWA did not apply. The problem for mother is that those findings were reviewable as part of the juvenile court’s April 2009 judgment adjudging Meghan a dependent child and removing her from parental custody (§ 395, subd. (a)), which mother did not appeal. The 2009 judgment, including the court’s ICWA findings, has long been final. Thus, the time for mother to raise her ICWA compliance issue has passed. (In re Pedro N. (1995) 35 Cal.App.4th 183, 185 (Pedro N.).)
In Pedro N., this court held a parent who fails to timely challenge a juvenile court’s action regarding ICWA is foreclosed from raising ICWA notice issues once the court’s ruling is final in a subsequent appeal. In so ruling, we specifically held we were only addressing the rights of the parent, not those of a tribe. (Id. at p. 191.)
In any event, we note mother’s argument is based on speculation that the agency did not investigate her claim rather than an affirmative showing of record error. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) In addition, she overlooks the appellate record of: her own statements that she did not qualify for any Indian benefits and was ineligible for membership; the social worker’s report that she went over the form notice with mother to complete it; and her attorney’s statement that they had no objection to the court making the agency’s recommended findings under ICWA.
II. No Beneficial Parent/Child Relationship
As previously mentioned, mother also contends the court erroneously rejected her argument that termination would be detrimental to Meghan based on their mother/child relationship (§ 366.26, subd. (c)(1)(B)(i)). Mother claims the adoption specialist and the juvenile court improperly focused on the child’s prospective adoptive parents. She also argues that the agency had characterized the mother/child relationship in positive terms, until it improperly “shifted its agenda from placement with the mother to adoption.” We disagree.
Once a dependency case reaches the permanency planning stage, the statutory presumption is that termination is in an adoptable child’s best interests and, therefore, not detrimental. (§ 366.26, subd. (b); In re Lorenzo C. (1997)54 Cal.App.4th 1330, 1343-1344.) It is the parent’s burden to show that termination would be detrimental under one of the statutory exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) The beneficial relationship exception in section 366.26, subdivision (c)(1)(B)(i), involves a two-part test; did the parent maintain regular visitation and contact with the child, and would the child benefit from continuing the relationship.
For the beneficial relationship exception to apply,
“the parent-child relationship [must] promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) A juvenile court must therefore: ‘balance... 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.’ (Id. at p. 575.)” (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.)
When a court rejects a detriment claim and terminates parental rights, the appellate issue is whether the juvenile court abused its discretion in so doing. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) For abuse of discretion, the proof offered must be uncontradicted and unimpeached so that discretion could be exercised only in one way, compelling a finding in favor of the appellant as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571; In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) Based on our review of the record, we conclude the juvenile court properly exercised its discretion in rejecting mother’s argument.
Mother’s arguments about the adoption specialist and the agency overlook the law placing the evidentiary burden upon her to prove a beneficial parent/child relationship such that termination would be detrimental to Meghan. (In re Zachary G., supra, 77 Cal.App.4th at p. 809.) At best, mother offered her testimony regarding pleasant, if not affectionate visits and Meghan’s recognition of her as her mother. However, interaction between natural parent and child will always confer some incidental benefit to the child. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) 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. (Ibid.)
To the extent mother claims the juvenile court improperly focused on the prospective adoptive parents, she misses two important points. One, the court expressly stated it could find no evidence that continuing the parental/child relationship would be beneficial to Meghan, a conclusion easily supported by the record. Two, the juvenile court’s reasoning is not a matter for this court’s review. (Davey v.Southern Pacific Co. (1897) 116 Cal. 325, 329.) It is judicial action and not judicial reasoning which is the proper subject of appellate review. (El Centro Grain Co. v. Bank of Italy Nat’l Trust & Sav. Asso. (1932) 123 Cal.App. 564, 567.)
Given that there was no evidence that severing the parent/child relationship would deprive Meghan of a substantial, positive emotional attachment such that she would be greatly harmed by termination, the preference for adoption was not overcome. (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.) Thus, we conclude the juvenile court did not abuse its discretion by rejecting mother’s detriment argument.
DISPOSITION
The order terminating parental rights is affirmed.