Opinion
2d Juv. No. B215180.
11-24-2009
In re N.C. et al., Persons Coming Under the Juvenile Court Law. SANTA BARBARA COUNTY CHILD PROTECTIVE SERVICES, Plaintiff and Respondent, v. C.A., Defendant and Appellant.
Anne E. Fragasso for Defendant and Appellant C.A. Dennis A. Marshall, County Counsel, Toni Lorien, Deputy County Counsel, for Plaintiff and Respondent Santa Barbara County Child Welfare Services.
Not to be Published in the Official Reports
C.A. appeals an order of the juvenile court terminating her parental rights to N.C., C.M. and D.C. (Welf. & Inst. Code, § 366.26, subd. (c)(1).) Appellant argues that the beneficial parental rights exception barred termination of her parental rights to all three children and that, as to the child C.M. only, Santa Barbara County Child Welfare Services (CWS) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C.A. § 1901 et seq.) We reverse as to C.M. and remand for compliance with ICWA. We reject appellants remaining contentions.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant has three children: N.C. born in 2005, C.M. born in 2006, and D.C. born during these proceedings in 2008. Appellant had a difficult childhood that involved abuse and abandonment. She has a history of depression, substance abuse and a criminal record that includes theft.
In 2006 and 2007, CWS received three substantiated referrals concerning N.C. and C.M. Appellant admitted to drug use and agreed to treatment, but she continued to test positive for methamphetamine and marijuana. She did not comply with a voluntary safety plan or a subsequent voluntary family maintenance plan. After agreeing to temporarily place the children with the maternal grandmother, appellant had a physical altercation with the maternal grandmother and took the children. On March 22, 2007, CWS detained N.C. and C.M., then 21 months and 9 months old, respectively.
The children were preverbal at the time of the detention. Appellant 3speaks only English. The children were placed together in a Spanish speaking home. CWS filed a petition and an amended petition alleging that N.C. and C.M. came within the jurisdiction of the juvenile court based on appellants drug use, the physical altercation with the maternal grandmother in the presence of the children and appellants inability to provide a stable home. The petition listed alleged fathers of N.C. as A.M. and J.J. It listed the alleged father of C.M. as K.M. The detention report states that K.M.s paternity of C.M. was established in a default proceeding. The report attaches a proposed but unsigned judgment that would have established K.M.s paternity and support obligation.
Both children were identified in the petition as possibly eligible for tribal membership. Appellant filed a declaration denying any Indian ancestry. There is no record of any inquiry to K.M. about possible Indian heritage.
At the detention hearing on March 28, 2007, the court detained N.C. and C.M. and set the matter for a jurisdiction/disposition hearing. The minute order identifies K.M. as the "presumed" father of C.M. and the court stated on the record that "[K.M.] is the presumed father to [C.M.]." K.M. appeared only once, at the May 2007 disposition hearing at which the court appointed counsel for K.M. "as to paternity only." The minutes reflect that his counsel was "to file any paperwork regarding paternity for [K.M.]." The record does not contain any filing by K.M.. He was not given reunification services.
In April 2007, the court found the allegations of the amended petition to be true and took jurisdiction over N.C. and C.M. The children were placed together in foster care. At the disposition hearing in May 2007, the court granted appellant reunification services. Her case plan required her to establish a stable home, obtain a psychological evaluation and counseling, complete an inpatient substance abuse program, maintain sobriety and test randomly, among other things.
Appellant received 18 months of services for N.C. and C.M. In the first three months of services, she did not participate in treatment or testing, but she entered Casa Serena in June 2007 for a 90-day inpatient program. She tested positive for marijuana when she entered the program, but then did well in the program and successfully completed it at the end of September 2007. In that time period, she had two supervised weekly visits with N.C. and C.M. during which she was attentive and interacted positively and appropriately.
In October 2007, appellant was transitioned to another inpatient program at Oliver House which would allow her to keep her children with her. She was scheduled to continue parenting classes, and she began overnight visits with N.C. and C.M.
Appellant became pregnant. Her third child, D.C., was born while she was living at Oliver House. The alleged father was M.E.
Appellant complained that she was overburdened when caring for the three children during the visits. In April of 2008, she began to disengage from the Oliver House programs and to miss meetings. She was terminated from Oliver House on March 24, 2008, for lack of participation and for lying about her whereabouts. She was moved directly to Transition House but left on the same day. She did not appear for a scheduled drug test on March 26, 2008. She and D.C. spent a few days in a hotel and a few days in a shelter. Appellant kept in touch with her caseworker.
CWS terminated overnight visits pending verification that appellant had entered a treatment program. Supervised bi-weekly visitation was resumed.
On April 2 appellant rented a room at an informal sober living home. Appellant missed a drug test on April 5, and her bi-weekly visits were suspended pending completion of three negative tests. Appellant moved out of the sober living facility on April 20 because she was angry with the house mother. She moved back in with the maternal grandmother.
CWS removed D.C. on April 22, 2008, and filed a petition as to D.C. alleging appellants lack of progress in her treatment program, failure to participate in court ordered treatment and inability to provide a safe home. The court detained D.C. and took jurisdiction over the child.
In May 2008, appellant moved into another sober living home but she was evicted in August for nonpayment of rent. She then gave false information to her caseworker about where she was living.
After D.C.s removal, appellant missed two visits with her children and on 18 occasions she was either late or left early. According to a CWS log of the visits, appellant rarely engaged with the children. She sometimes held the infant D.C., but she spent much of the visit sitting in a recliner while the children played without her. She frequently left before the two hour visit was complete.
A translator was available during visits, but reported that the mother and very young children were able to communicate directly using simple words. The children were healthy, happy and developing well in their foster home placement.
CWS recommended termination of reunification services. In August 2008, the court conducted a combined contested hearing. The parties reached a settlement that provided for services until the 18-month review for N.C. and C.M. and the disposition hearing for D.C. Both were then scheduled for September 2008.
Less than a week after the contested hearing, appellant failed to test. She tested positive for marijuana and methamphetamine the next day. She was hired by Subway but she quit. She subsequently missed several meetings and tests. She did not contact a therapist as required by her case plan and she gave false information to her caseworker. Her visits with the children were suspended pending completion of three negative tests.
Appellant missed a test on September 9, 2008, and meetings on September 9 and 23, 2008. On October 1, 2008, she tested positive for marijuana. On October 10, she told a caseworker she could not take care of her children and, "`I cant even take care of myself right now." She asked about long term foster care and open adoption. She missed a visit on October 13.
At the October 21, 2008, 18-month review for N.C. and C.M. and disposition hearing for D.C., the court heard appellants testimony and reviewed service records. The court found that appellant had not complied with her case plan, had not addressed her drug use and had not attended programs or group sessions. The court terminated services as to N.C. and C.M., denied services as to D.C. pursuant to section 361.5, subdivision (b)(10) and (13), and set the matter for a hearing on termination of parental rights. The court granted monthly visits pending that hearing, but appellant missed her visits in October and November, did not interact with the children at the December visit, and was forty minutes late for the January visit.
At the March 2009 hearing, appellant sought custody of the children. She testified that she had been to an orientation for a parenting class one week earlier, had tested four times, and was attending school. She was not in a drug treatment program and was not attending counseling.
The trial court found that all three children were adoptable and that appellant had not met her burden of proving that the parental benefit exception applied to any of the children. The court terminated parental rights.
DISCUSSION
Beneficial Parental Relationship Exception
Appellant contends that the beneficial parental relationship exception (§ 366.26, subd. (c)(1)(B)(i)) applied to bar termination of her parental rights. We disagree.
When a court finds at a 366.26 hearing that the child is adoptable, the court must terminate parental rights and order adoption unless the child is living with a relative who is unwilling or unable to adopt the child or termination of parental rights would be detrimental to the child under one of six statutory exceptions. (§ 366.26, subd. (c)(1)(A) & (B).) The parent has the burden to prove by a preponderance of the evidence that termination would be detrimental to the child under one of the enumerated exceptions. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.)
The beneficial relationship exception applies only if "[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)(B)(i).) "Interaction between natural parent and child will always confer some incidental benefit to the child. . . . 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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) It is difficult for a parent to demonstrate a beneficial relationship based on loving contact that never progresses beyond supervised visits. (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) A juvenile courts decision whether to apply the parental relationship exception is reviewed for abuse of discretion. (In re Aaliyah, supra, 136 Cal.App.4th at p. 449.)
In the present case, the trial court did not abuse its discretion when it found that "the need [for each] child for stability and placement at this point, outweighs . . . any benefit of the parental relationship." As the court observed, visits had been "erratic," and appellant was engaged in an "ongoing struggle . . . with controlled substances."
Substantial evidence in the record demonstrates that appellant did not, after the first six months of services, maintain regular visits and beneficial contact with the children. Her choices about testing, treatment and residence interfered with regular visitation. She did not take full advantage of the supervised visits that were allowed. When asked why she missed visits and cut visits short, she testified that, "its hard for me to bond with my children and I dont understand what they have, like what they want and what they say. And being cooped up in a small room for two hours . . . my kids get bored and they start fussing and they start crying in there. [¶]. . . Its not that I dont love them, but it is hard sitting in a room for two hours doing the same thing."
The trial court did not err when it determined that the benefits of adoption outweighed whatever benefits the parental relationship provided. "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 childs need for a parent." (In re Aaliyah, supra, 136 Cal.App.4th at p. 449.)
ICWA
Appellant contends that the agency did not comply with ICWA as to C.M. because it did not inquire into whether K.M. (father of C.M.) had Indian heritage. We agree.
If a juvenile court "knows or has reason to know" that an Indian child is involved in a dependency case, the court must give notice to the tribe of its right to intervene before the court may proceed with foster care placement or termination of parental rights. (25 U.S.C.A. § 1912(a).) The court and the agency that removes a child have "an affirmative and continuing duty to inquire whether a child is or may be an Indian child." (Cal. Rules of Court, rule 5.481, formerly rule 5.664.) The agency must ask the "the parents, Indian custodian, or legal guardians whether the child is or may be an Indian child and must complete the Indian Child Inquiry Attachment (form ICWA-010(A)) and attach it to the petition unless the party is filing a subsequent petition, and there is no new information." (Rule 5.481(a)(1).)
CWS argues that K.M. was not an established biological parent. For purposes of ICWA, a "parent" does "not include [an] unwed father where paternity has not been acknowledged or established." (25 U.S.C.A. § 1903(9).) In the present case, K.M. did not acknowledge paternity of C.M., but CWS reported that his paternity had been established by default in other proceedings, according to information provided by the child support division of the District Attorneys office. Based on this information, the trial court found that K.M. was the "presumed father" without any objection from CWS. In the circumstances, CWS had a duty to inquire into K.M.s heritage.
In re Daniel (2003) 110 Cal.App.4th 703, 708, does not control. In that case, the court held that the Indian ancestry of an alleged father was essentially immaterial where he had not acknowledged paternity or taken official action to establish paternity. There was no indication that paternity had been established by default. The court stated, "Because Richard is not a presumed father we need not discuss the statutory criteria of such status." (Id. at p. 709, fn. 5.) Here, CWS and the court treated K.M. as a presumed father and CWS represented to the court that paternity had been established.
DISPOSITION
The order terminating parental rights is reversed as to the child C.M. only and remanded to the juvenile court to order CWS to inquire of K.M. whether C.M. is or may be an Indian child and, if so, to provide proper notice under ICWA. In the event that no tribe indicates that C.M. is an Indian child, then the juvenile court must reinstate the order terminating parental rights. If a tribe indicates that C.M. is Indian, then the juvenile court is directed to proceed in compliance with ICWA. In all other respects, the orders and findings of the juvenile court are affirmed.
We concur:
YEGAN, Acting P.J.
PERREN, J. --------------- Notes: A.M. did not participate in the proceedings and J.J. filed a declaration denying paternity.