Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. CK60771 D. Zeke Zeidler, Judge.
Merrill Lee Toole, under appointment by the Court of Appeal, for Defendant and Appellant, P.S.
Andre F. F. Toscano, under appointment by the Court of Appeal, for Defendant and Appellant, B.G.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jeanette Cauble, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
The father, B.G., and the mother, P.S., the parents of N.G., the child, appeal from an October 26, 2010 Welfare and Institutions Code section 366.26 parental rights termination order. The father contends the juvenile court violated his due process right by terminating his parental rights without first making a finding of parental unfitness or detriment by clear and convincing evidence at the disposition hearing on January 16, 2009. He also argues it was error to terminate his parental rights because he satisfied the section 366.26, subdivision (c)(1)(B)(i) beneficial relationship exception. The mother contends the parental rights termination order must be reversed because of noncompliance with the Indian Child Welfare Act. We agree with the mother. We remand for compliance with the Indian Child Welfare Act requirements. Upon remittitur issuance, if proper notice is provided and no tribe asserts the child is of Cherokee descent, the parental rights termination order is to be reinstated.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
II. BACKGROUND
A. Petition
On August 22, 2008, the Los Angeles County Department of Children and Family Services (the “department”) filed a section 300 petition on behalf of the child. The section 300 petition stated four counts against the mother. The petition alleged the mother: physically abused the child’s older siblings; failed to ensure school-aged siblings attended school regularly; and failed to provide appropriate adult supervision for the child on August 18, 2008. The section 300 petition alleged one count against the father for failure to provide the child with ongoing care, supervision and the basic necessities of life.
B. Detention Report and Hearing
According to the August 22, 2008 detention report, the mother left the 4-month old child and 7 older siblings in the care of a 19-year old schizophrenic neighbor on August 19, 2008. The next day, the sheriff’s department received two emergency hang-up calls and another call where children screamed in the background. When the deputy entered the house, he found six children hiding and screaming in the upstairs bedroom closet. The oldest child, 11-year old C.W., later walked in from a neighbor’s house. The deputy contacted the department and explained he had detained the children at their home. When the mother failed to return home and could not be located, two department social workers detained the children. Two days later, on August 20, 2008, the mother called a department social worker. The mother asked what she needed to do to “‘get back to where she needed to be with’” the department.
The detention report showed there had been six prior referrals of the family since 1999. The department’s prior allegations of emotional and physical abuse and general neglect by the mother were all substantiated. The family received over three years of family preservation services.
On August 22, 2008, the mother signed a Parental Notification of Indian Status document indicating she might have Cherokee ancestry. The father stated he had no Indian ancestry. At the August 22, 2008 detention hearing, the juvenile court ordered notice be provided to the Cherokee tribe. As will be noted there is no evidence any such notice was ever provided. The juvenile court found the father was the child’s presumed father and ordered the department to investigate him for potential suitable placement. The juvenile court found there was a prima facie case to detain the child from her parents under section 300, subdivisions (a), (b), (g) and (j).
C. August 27, 2008 Addendum Report and Hearing
The August 27, 2008 addendum report indicated the father had no permanent address. The father requested to have some of his relatives considered for possible placement of the child. At the August 27, 2008 hearing, the court ordered the department to investigate the child’s paternal grandmother for possible placement.
D. Jurisdiction/Disposition Report
The October 2, 2008 jurisdiction/disposition report stated that the social worker was unable to obtain a statement from the mother. The department recommended no family reunification services be provided for the mother because she was uncooperative and still physically abused and neglected her children. The department reported that the father stated he was currently in a relationship with the mother, which raised concerns about whether he could be objective in regards to her. Because the father had no permanent residence, he wanted the child to reside with the paternal grandmother until he found a stable residence and completed his court-appointed program. The department recommended family reunification services be provided for the father.
E. Addendum and Status Review Reports
The October 15, 2008 addendum report indicated the father could not be contacted and had not provided the department with a permanent address. The social worker again questioned whether the father could be objective in regards to the mother when it came to the child’s safety.
The January 7, 2009 status review report stated that the nine-month old child had been referred for regional center services. The department reported that the mother visited the child once a week and had attended the visits until December 2008. Although the mother had complied with orders made in the last juvenile court case and her children were returned to her, she had a history of neglecting them. The department reported it was unable to contact the father. The report indicated the father had an extensive criminal history, which included burglary, rape by force, battery on a person and perjury. The social worker believed the father was still living with the mother.
F. Jurisdiction and Disposition Hearing
At the January 16, 2009 jurisdiction and disposition hearing, the juvenile court amended and sustained the petition as to the child under section 300, subdivisions (b) and (j) based on the mother’s: physical abuse of the child’s older siblings; failure to ensure school-aged siblings attended school regularly; and failure to provide adult supervision for the child on August 18, 2008. The juvenile court dismissed the one count against the father; thus, he was a nonoffending parent. The juvenile court declared the child a dependent and found that return of the child to the mother’s physical custody would create a substantial risk of detriment to the youngster. The juvenile court ordered reunification services for the mother and father, consisting of twice weekly monitored visitations, parenting classes and individual counseling to address case issues.
G. Six-Month Review Period: January to June 2009
On February 9, 2009, the department submitted a pre-release investigation report concerning placing the child with the paternal grandmother. The department recommended the child not be placed with the paternal grandmother. This was because the paternal aunt, who lived with the paternal grandmother, had failed to provide the department with documents requested from her.
On May 15, 2009, the juvenile court reviewed the department’s medical authorization request for sedation to perform a magnetic resonance imaging test on the child because she showed signs of cerebral palsy. The department’s request reported both parents refused to allow the procedure. The juvenile court denied the sedation request after considering letters from the child’s counsel and the Department of Mental Health pediatrician who both recommended against the procedure. The child’s counsel also requested the appointment of a court-appointed special advocate. On May 18, 2009, the juvenile court appointed a special advocate for the child.
On June 17, 2009, the department filed an interim review report showing the child had progressed in her development while placed with the foster mother, M.J. However, the department was concerned that the 15-month old child had developmental delays and continued to recommend juvenile court approval of a magnetic resonance imaging test for her. The department reported that the mother had visited only twice in April and once in May 2009. The mother was scheduled to visit the child two to three times a week.
On June 30, 2009, the department filed a six-month review report showing the child remained in the same foster home but was having visits once a week with an older sister, C.W. The child was also visited by K.F., C.W.’s foster mother. K.F. was willing to accept placement of the child. K.F. desired to maintain a sibling connection between C.W. and the child. K.F. also stated she would be willing to adopt the child if the parents were unable to reunify with the youngster.
The department reported that the father lived separately from the mother but they were dating each other. The father lived with three people. The social worker requested information about these three individuals to facilitate possible placement of the child with the father. The father refused to provide any information regarding the three people. The mother lived with her oldest daughter, separate from the father. However, the mother said during a June 10, 2009 visit that she was married to the father.
The department confirmed the father attended weekly individual counseling and reported he said he was attending a parenting educational program. The father did not visit the child in December 2008 but attended some monitored visits in January and February 2009. The father visited the child twice a week in March 2009 and attended most of the visits in April and May 2009. During the father’s monitored visits, the child was comfortable in his presence. During the visits, the father “did” the child’s hair, played with her and changed her diapers. However, the father appeared uncomfortable about changing her diapers. The father did not hesitate to ask questions so he could provide better care for the child.
The department reported that the mother had attended individual counseling and completed a parenting course in April 2009. From December 2008 to May 11, 2009, the mother only visited the child seven times. The mother did not attend visits because she was either sick or did not have a scheduled time. The mother said she did not attend the visits because she was letting the father “handle everything.” This was because a social worker had mentioned placing the child with the father. During the monitored visits, the social worker and the foster mother observed the child to be uncomfortable in the mother’s arms. The child appeared more comfortable with the mother after the visit though. The mother held the child. Also, the mother combed the child’s hair and they played together during the visits.
At the June 30, 2009 six-month review hearing, the juvenile court set a contested hearing to consider whether the father could have unmonitored visits at his request. The juvenile court found continued jurisdiction was justified under section 300, and made risk of detriment findings. The juvenile court ordered continued reunification services for both parents and set the contested hearing for July 28, 2009.
H. 12-Month Review Period and 18-Month Permanency Review Hearing
On July 28, 2008, the department submitted a last minute information report indicating the father had attended every visit with the child since June 1, 2009. The child appeared comfortable in the father’s presence. The father told the social worker he would not bring the child to the mother if he was granted unmonitored visits. On July 28, 2009, the court granted the father unmonitored day visits with the child in a neutral setting. The juvenile court ordered the mother’s visits to remain monitored. The father was not allowed to be the monitor of the mother’s visits.
On November 25, 2009, the department filed a section 388 petition requesting the father’s visits be monitored. The petition stated that on November 6, 2009, the father spoke to a social worker. Contrary to his previous statements, the father admitted he had always lived with the mother and only used his Lancaster address for mail. On December 8, 2009, the juvenile court granted a hearing on the modification petition.
On December 14, 2009, the child’s special advocate filed a report indicating the 21-month old child had made improvements with regional center services. The report further noted the child still showed developmental delays and significant symptoms that needed to be fully evaluated by a vision specialist, a speech pathologist, an audiologist, and a pediatric neurologist. The child did not show signs of cerebral palsy when she was evaluated at the University of California at Los Angeles. However, the report recommended a magnetic resonance imaging test for the child because of her developmental delays and significant symptoms.
The special advocate reported that the foster mother, M.J., stated: the father had been somewhat consistent with unmonitored visits; the father was living with the mother; and the mother had only visited three times in six months. The special advocate had spoken with K.F., the foster mother of the child’s sister, C.W. K.F. was eager to have the child placed with her. This would allow the child to reunite with her sister, C.W. The two foster mothers, M.J. and K.F., were friends and the children from both homes often played together. The child was familiar with K.F. The child was likewise familiar with K.F.’s family. The special advocate recommended the child be placed with K.F. as “respite” placement.
On December 14, 2009, the department filed a report supporting its section 388 petition. The social worker, Danielle Cole, reported that on November 16, 2009, the father disclosed that he had always lived with the mother and used his Lancaster address for mail. The father stated that he did not intend to look for another place to live. The social worker could not verify the mother had been present during the father’s unmonitored visits with the child. But the social worker noticed that the mother’s visits had dramatically decreased since the father was granted unmonitored visits. The social worker added that there was an open referral on the mother. This was because the mother had recently given birth to a new child in another county. The other county’s child protection services agency had been unable to contact the mother to assess the safety of the newborn child.
The department also filed a 12-month status report on December 14, 2009. The child had been evaluated by the University of California at Los Angeles hospital for cerebral palsy; she did not have cerebral palsy but did have a history of developmental delays. K.F. was eager to have custody of the child. But K.F. still had unresolved licensing issues.
The mother continued to live with the oldest child, T.W., and the newborn child outside Los Angeles County. The mother said she was receiving services through a Palmdale program. But a staffer at the Palmdale program, Rori Colbert, stated the mother was not enrolled. The mother responded that Ms. Colbert was lying. The mother had been inconsistent in visiting the child.
The department reported the father had completed his parenting education program and individual counseling. The foster mother reported that the father was visiting consistently twice a week until late October 2009. The child smiled and appeared happy while in her father’s presence. The social worker, Elizabeth Tesseo, did not recommend placement of the child with the father. This was because the father had been untruthful about his living situation and continued to live with the mother.
At the December 14, 2009 hearing, the juvenile court ordered monitored visits for the father pending the section 388 petition hearing. The juvenile court ordered the department to follow the special advocate’s recommendations by providing the child with a speech pathologist, an audiologist, and a vision specialist. The juvenile court also ordered the child to be placed with K.F. as “respite” placement. The hearing on the section 388 petition was continued to February 8, 2010 with the 12-month review hearing to follow the section 388 hearing. On December 22, 2009, the department reported that the child has been placed on December 16, 2009 with K.F.
On February 8, 2010, the department filed a section 342 petition, alleging the child came within section 300, subdivision (b) because of domestic violence between the parents that occurred on December 8, 2009. According to the February 8, 2010 detention report, California City Police Department Officer James Dykes went to the mother’s residence on December 8, 2009, because of a vandalism report made by her. The parents argued when the mother asked the father to leave her house as she was getting ready to leave. The father threatened the mother by telling her he was going to break everything she owned with his baseball bat if she made him leave. He broke a glass table that was outside the house. There was an active warrant for the father’s arrest in Kern County for vandalism.
The department reported that the father has been consistent with his visits and appeared to be attentive and responsive to the child’s needs. However, although the father attended court-ordered individual counseling and parenting services, Ms. Tesseo, the social worker, was concerned that he might resume living with the mother and he would be unable to protect the child. It appeared the father had difficulty maintaining housing and until recently he had been residing with the mother, who was not participating in court-ordered services and concealing the parents’ new baby from child protective services agencies in two counties. Ms. Tesseo believed there was a high level of risk to the child’s safety if the youngster was placed with the father because of his ongoing relationship with the mother and the recent domestic violence between the parents. The department recommended the juvenile court terminate family reunification services for the parents.
The report by the child’s special advocate for the February 8, 2010 hearing indicated the youngster had problems eating solid foods, consistently wanted to be carried and had developmental delays. The child’s physical therapist stated that the 22-month old youngster was cognitively functioning at a 16-month age level and was unable to communicate independently other than crying. This placed the child on a newborn level of speech. The special advocate described two episodes where the child shivered or convulsed and again recommend sedation for the magnetic resonance imaging procedure to rule out cerebral palsy and seizure disorder which affected some of the youngster’s siblings. The special advocate was concerned that both parents did not believe that the child had any medical or development issues. The special advocate believed it would be inappropriate to return the child to the parents. The special advocate also recommended that the juvenile court limit the parents’ rights to make educational decisions for the child. This was because the parents did not believe the child was delayed and expressed resistance to the provision of regional center services.
On February 8, 2010, the juvenile court granted the section 388 petition and the father’s visits once again became monitored. The juvenile court ordered the child to be referred to a pediatric neurologist after the magnetic resonance imaging test took place. The juvenile court set the combined section 366.21, subdivision (f), section 366.22, and adjudication and disposition hearings on the section 342 petition for May 12, 2010.
On February 18, 2010, the department filed an 18-month permanency review report. The social worker, Ms. Cole, was unable to contact the mother despite repeated attempts. Ms. Cole wrote: “[The father] reported that he is living with his pastor, Paul Ford, and his family in Lancaster and that he would be able to continue residing there with [the child] should she be returned to his care.” Mr. Ford’s home appeared to Ms. Cole to be suitable for the child. The pastor’s wife stated she would provide childcare for the father while he was working. Overall, the father’s visits continued to be appropriate and were going very well. The father played with the child and appeared to be attentive to her needs. However, there was a high risk to the child’s safety if placed with the father. Ms. Cole reached this conclusion because of: the father’s ongoing relationship with the mother; the mother’s concealment of the parents’ new baby from Kern and Los Angeles County child protection services agencies; and the recent domestic violence in California City between the parents. Ms. Cole also raised concerns about the father’s ability to meet the child’s special needs. This was because his job as a taxi driver and his lack of transportation would prevent him from taking the child to her medical appointments on a regular basis. Ms. Cole recommended termination of family reunification services for the father and mother and requested the matter be set for a section 366.26 hearing.
On February 18, 2010, the juvenile court limited the parents’ rights to make educational decisions for the child and granted those rights to K.F. over the parents’ objections. The juvenile court set the contested hearings for May 12, 2010 but set May 6, 2010 for receipt of the jurisdiction/disposition report for the section 342 petition.
The May 6, 2010 jurisdiction/disposition report addressed the section 342 petition alleging domestic violence between the parents on December 8, 2009. The social worker asked the mother about the domestic violence incident during a monitored visit with the child and C.W. The mother replied that “nothing happened” and, “My stuff was the victim not me.” According to the mother, she and the father had an argument because it was his first experience with “the system” and he did not know why he could not live with her. The mother stated the father did not physically assault her although there has been verbal abuse. The mother also stated the father was “slow” and she sometimes got frustrated with him and could be verbally “aggressive.” The father denied anything had happened and stated he had not heard from the authorities and was unaware of the police report. The officer who wrote the police report confirmed there was an outstanding warrant for the father’s arrest.
The May 6, 2010 report indicated the child was still receiving regional center services. The child continued to have developmental delays. She had receptive and expressive language skills at the 6- through 9-month age level. The child was happy and appeared comfortable with the new foster mother, K.F. The child was also comfortable with K.F.’s children.
The report detailed a February 16, 2010 visit by the father that was observed by Ms. Cole. The father played with the child but he did not attempt to verbally communicate with her or display any affection towards her. The foster mother, K.F., stated that the father did not know how to respond to the child. When the child cried or needed a diaper change, the father took the youngster to K.F. K.F. stated that it did not appear the child had bonded with the father. K.F. tried to encourage the father to bond with the child but he insisted on spending money and playing games with the youngster that were not always age appropriate. However, the foster mother described one visit on March 9, 2010 as a “perfect visit” with the parents taking turns looking after their infant baby and the child. On May 12, 2010, the special advocate filed a report indicating the 25-month old child was starting to communicate but only with K.F and still had difficulty walking. K.F. wanted to adopt the child. The special advocate acknowledged the deep growing bond between K.F. and the child. The special advocate believed that this bond and trust was one reason the child was making progress and attempting to communicate with K.F.
The special advocate noted K.F. stated that the mother’s visits were infrequent. The mother showed up for only 8 out of the last 16 scheduled visits and arrived 45 to 60 minutes late to 4 of these visits. According to K.F, the child did not smile, talk, or make good eye contact with the mother. The special advocate wrote, “[The child] allows herself to be held, but attempts to maintain direct eye contact with [the foster mother] at all times.”
The father’s visits with the child had been appropriate and she allowed him to carry and play with her. But according to the special advocate, the child did not make good eye contact, smile, reach up to be held or show interest or affection for her father. Although the father had previously been meticulous about visits and was on time, within the past two months K.F. stated that he had been late to visits, missed them and left early if the weather was poor because he had to walk to where he needed to go. K.F. thought the father was currently homeless because he arrived to the visits unkempt and unwashed, carrying his belongings and wearing the same clothes each time. K.F. called the pastor, Mr. Ford, to speak with the father. Mr. Ford told her the father had not lived there for several weeks. The father told K.F. that he was currently living with his mother as he had no other place to live. The special advocate recommended termination of family reunification services for the parents. The special advocate also recommended the child remain in the foster home of K.F.
The May 12, 2010 status review report indicated Ms. Cole met the mother at the child’s birthday party. Ms. Cole obtained a medical release and the Kern County social worker verified the mother’s newborn baby was healthy. But the Kern County social worker closed the referral because the Kern County social worker was unable to contact the mother. The father claimed to be living with Mr. Ford. As noted, Mr. Ford denied such was the case. The father had visited with the child, but had not bonded with her and had difficulty identifying and responding to her needs. Rather, during visits the father relied on K.F. to help him. It did not appear the father knew how to engage the child and respond to her needs. Ms. Cole noted that the parents had been given approximately 20 months to reunify with the child. During that period, the mother had made inadequate progress. And the father’s progress had declined. Ms. Cole recommended termination of family reunification services for the parents and placement of the child with K.F. Ms. Cole requested the department be ordered to pursue legal guardianship or adoption with K.F.
At the combined contested 12-month and 18-month permanency review hearing on May 12, 2010, the father’s counsel submitted to the department’s recommendations. The juvenile court found return of the child to the physical custody of the parents would create a substantial risk of detriment to her physical or mental health. The juvenile court terminated reunification services for the parents and set a section 366.26 hearing for September 13, 2010. The juvenile court stated the section 342 petition was no longer an issue because it had considered documents related to the petition when it addressed the issues of the 12-month review and 18-month permanency review hearings.
I. Section 366.26 Report and Hearing
The September 13, 2010 report by the special advocate indicated that the child still preferred to be carried and struggled with eating some foods. K.F. continued to be concerned about the child’s delayed speech and inability to interact with other children and her severe social shyness. The child’s communication skills consisted of crying, hiding her face and noncompliance or non-response. When K.F. brought these concerns to the doctors and therapists at the Children’s Hospital in Los Angeles, they suggested the child be evaluated for autism.
The special advocate reported the father did not visit the child from April 13 to August 12, 2010. The last visit was on August 12, 2010. Likewise, the mother visited the child only three times in April, arriving more than 30 minutes late each time, and did not visit again until August 12 and August 26, 2010.
The special advocate stated that the child thrived while living with K.F. K.F. was very interested in adopting the child and stated they had a very strong bond together. The special advocate recommended parental rights be terminated and that K.F. be identified as the prospective adoptive parent. The special advocate also recommended the child be evaluated by a specialist for feeding issues.
The section 366.26 report indicated the child was a happy and well-behaved two-year old youngster who loved to sing and dance. Ms. Cole observed the child had significant attachment to K.F. whose family had accepted the youngster. The child received in-home physical and occupational therapy. But these services ended in July because she no longer needed the therapy. According to the regional center staff, the child only needed speech therapy.
The parents inconsistently visited the child. The fathers’ visits became inconsistent over the last four months. The father informed K.F. during an April 28, 2010 visit that he had not been feeling well so he had missed a prior visit. According to K.F., the father looked clean and not homeless. The father reported that he was living with his mother.
On September 13, 2010, the juvenile court set the matter for a contested section 366.26 hearing. On October 26, 2010, Ms. Cole filed a last minute information report showing K.F.’s adoption home study had been approved. The department’s October 26, 2010 supplemental report indicated the child would be assessed for regional center services before she turned three years old.
On October 26, 2010, the juvenile court held the contested section 366.26 hearing. The juvenile court stated for the contested hearing it would consider the entire content of the court files including the last minute information and supplemental reports and the September 13, 2010 special advocate and section 366.26 reports. After hearing argument from counsel, the juvenile court stated, “The court finds by clear and convincing evidence return to the parents would be detrimental. [The child] is adoptable, to the extent the parents have had some consistent time of visitation and contact, it has not created a parental role and relationship....” The juvenile court terminated parental rights.
III. DISCUSSION
A. Due Process
The father argues the juvenile court was required by due process to make a finding by clear and convincing evidence of parental unfitness or detriment to the child before parental rights could be terminated under In re Frank R. (2011) 192 Cal.App.4th 532, 537-540. The father asserts the juvenile court did not make the requisite finding of detriment by clear and convincing evidence as to him at the January 16, 2009 disposition hearing. The father concedes he did not raise this argument below but contends he did not waive or forfeit his right to contest the denial of his due process right.
We agree with the department his issue has been forfeited. (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 686; In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.) Our Supreme Court has held: “Although an appellate court’s discretion to consider forfeited claims extends to dependency cases (Rosa S. v. Superior Court (2002) 100 Cal.App.4th 1181, 1188; Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1459), the discretion must be exercised with special care in such matters. ‘Dependency proceedings in the juvenile court are special proceedings with their own set of rules, governed, in general, by the Welfare and Institutions Code.’ (In re Chantal S. (1996) 13 Cal.4th 196, 200.) Because these proceedings involve the well-being of children, considerations such as permanency and stability are of paramount importance. (§ 366.26.)” (In re S.B. (2004) 32 Cal.4th 1287, 1293; see In re Karla C. (2010) 186 Cal.App.4th 1236, 1267.) No justification exists to relieve the father from his failure to raise the issue in an appeal from the disposition hearing as no important rule of law is presented. We need not address the res judicata effects of the father’s failure to appeal from the dispositional order. (In re Matthew C. (1993) 6 Cal.4th 386, 393; Wanda B. v. Superior Court (1996) 41 Cal.App.4th 1391, 1396.)
B. Beneficial Parent-Child Relationship Exception
The father contends it was error to terminate his parental rights because he satisfied the section 366.26, subdivision (c)(1)(B)(1) beneficial relationship exception. Section 366.26 provides in part: “(c)(1) If the court determines, based on the assessment provided... and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption.... A finding... that the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights. Under these circumstances, the court shall terminate parental rights unless either of the following applies: [¶]... [¶] (B) The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” Under section 366.266, subdivision (c)(1)(B)(i), a parent seeking to avoid termination of parental rights must show regular contact has been maintained with the child. In addition, the parent must prove the child would benefit from continuing the parent-child relationship.
The Court of Appeal has held: ‘“The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the child’s life spent in the parent’s custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child’s particular needs.’ (In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. omitted.) ‘Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] 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 [].) Evidence of ‘frequent and loving contact’ is not sufficient to establish the existence of a beneficial parental relationship. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.)” (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1315-1316.) We review the juvenile court’s determination for substantial evidence. (In re Bailey J., supra, 189 Cal.App.4th at p. 1314; see In re L.Y.L. (2002) 101 Cal.App.4th 942, 955.)
Substantial evidence supports the juvenile court’s determination that there was no beneficial parental relationship. The child never lived with the father and spent most of her life in foster homes having been detained when she was four months old. While the father consistently visited his daughter during most of her detainment, his visits became less frequent beginning in April 2010. With the exception of a period from July 28, 2009 to February 8, 2010, the father’s visits were monitored. Although the father played and tended to the child during his visits and she was comfortable with him, there is no evidence he occupied a parental role in her day-to-day life or that termination of parental rights would be detrimental to her. According to the foster mother, K.F., the child did not make good eye contact, smile, reach up to be held or show interest or affection for the father. Moreover, the father did not appear to know how to respond to the child when she cried or needed a diaper change. Likewise, the social worker observed that the father did not make any attempts to verbally communicate with her or display any affection. Here, the child has a significant attachment to the foster mother, K.F., who is the only person that the youngster attempts to communicate with. The child has thrived while living with K.F. The child seeks security and comfort from K.F. The child has been accepted by everyone in K.F.’s family. K.F. has sought services for the child and made educational decisions for the youngster. This was because the parents did not believe the child had developmental delays and resisted regional center services be provided to her. There is no merit to the mother’s efforts to adopt by reference the father’s contentions. The juvenile court reasonably could have found adoption of the child outweighed the benefits from a continued parent-child relationship between the father and her.
C. Notice Requirement of the Indian Child Welfare Act
Here, the record does not reflect that the department sent notice of the proceedings to the Cherokees tribes. The department concedes notice was not sent to the Cherokees tribes and does not oppose a limited remand to ensure compliance with the Indian Child Welfare notice requirements. We are in accord with the parties’ analysis.
IV. DISPOSITION
The October 26, 2010 parental rights termination order is reversed. Upon remittitur issuance, notice is to be provided to the Cherokee tribes as required by the Indian Child Welfare Act. If proper notice is provided to the tribes and they do not assert that the child is of Cherokee descent, the parental rights termination order is to be reinstated.
We concur: ARMSTRONG, J., MOSK, J.