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In re S.B.

California Court of Appeals, Third District, Sacramento
Mar 12, 2008
No. C056317 (Cal. Ct. App. Mar. 12, 2008)

Opinion


In re S. B., a Person Coming Under the Juvenile Court Law. SACRAMENTO DEPARTMENT OF HEALTH & HUMAN SERVICES, Plaintiff and Respondent, v. STEPHANIE H., Defendant and Appellant. C056317 California Court of Appeal, Third District, Sacramento March 12, 2008

NOT TO BE PUBLISHED

Super. Ct. No. JD224489

BLEASE, J.

Stephanie H., mother of the minor, appeals from orders of the juvenile court terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395 [further undesignated statutory references are to this code].) Appellant contends reversal is required because the court failed to comply with the provisions of the Indian Child Welfare Act (ICWA) title 25 of the United States Code sections 1901 et seq., and because substantial evidence established that termination of parental rights would be detrimental to the minor. (Former § 366.26, subd. (c)(1)(A).) We reverse and remand for compliance with the ICWA.

FACTS

The Department of Health and Human Services (DHHS) removed the newborn minor from parental custody in June 2006, based upon proof of prior serious injuries inflicted on the minor’s sibling and the parents’ failure to benefit from services.

The report for the jurisdiction/disposition hearing stated that appellant did not interact with the minor after birth, and wanted other family members to care for her. The minor was not bonded to appellant who had visited her only once. The father was not in a position to provide for the minor although he had visited.

At the jurisdiction/disposition hearing in September 2006, appellant testified she visited the minor weekly, estimating she attended seven or eight visits since the minor’s birth, and believed she was able to care for the minor. The court sustained the petition, denied reunification services to the parents and set the matter for a selection and implementation hearing pursuant to section 366.26.

The December 2006 report for the section 366.26 hearing stated appellant was permitted weekly visitation with the minor prior to October 2, 2006. Appellant visited regularly for the first two months and more sporadically thereafter. After October 2, 2006, appellant was to visit twice a month but attended only one visit. The father had not visited at all since October 2, 2006. The minor was placed in a foster/adoptive home with an approved home study. The minor was assessed as generally adoptable and was bonding with the foster/adoptive parents.

At the hearing in July 2007, appellant testified she was given bus passes in November 2006, to attend visits and missed four or five visits thereafter, having used the bus passes to get to court. Appellant acknowledged she recently asked for and received additional bus passes. She stated she had monthly, one-hour, supervised visits with the minor. Appellant believed they were bonded because she breastfed the minor at visits and, although the minor did not always recognize her immediately at visits, when she did respond after a few minutes, she would come to appellant to play. The father testified he attended visits with appellant and that the minor was happy to see them because she knew she was going to play. He believed they were bonded because the minor reacted positively to him and wanted to play with him. The court, finding no detriment to the minor, terminated parental rights, freeing the minor for adoption.

Additional facts relating to the ICWA notice appear in the following discussion.

DISCUSSION

I

Appellant contends, and DHHS concedes, reversal is required to re-notice the Indian tribes because complete accurate information was not included in the second notice.

The first information that the minor had Indian ancestry came in November 2006. Having received information that the parents were now claiming Indian heritage, a DHHS paralegal assigned to investigate ICWA claims attempted to get information from appellant and the minor’s father on the claimed Indian ancestry. Having failed to get any information, the paralegal took information from the siblings’ files and sent notice of the proceedings to the Bureau of Indian Affairs, the three federally recognized Cherokee tribes and the three federally recognized Choctaw tribes. On January 31, 2007, the date of the scheduled section 366.26 hearing, the minor’s father and appellant informed the court that there were errors in the ICWA notice, specifically that the maternal great-grandmother’s last name had an alternate spelling, that the maternal great-grandfather was known as James A. Conrad and had a tribal enrollment number and that the paternal great uncle, John Branner, also had a tribal enrollment number. The court continued the hearing, ordered the parents to provide the information to DHHS and ordered DHHS to give notice to the tribes of the changes provided by the parents.

The ICWA paralegal filed a declaration in February 2007, stating that she had received information that re-noticing was required because the parents had enrollment numbers for some family members. The paralegal was given limited information, but sent the tribes the information currently available to her. A letter attached to the declaration contained the additional information, i.e., according to appellant, the correct spelling of the maternal great-grandfather’s first name was Augustus, James Conrad’s enrollment number was 1403 and it was not clear that James Conrad was the maternal great-grandfather whose name had been listed as August James Conrad Howard. Further, according to the father, John Branner’s enrollment number was D765, although the precise relationship to the father was not known to the paralegal. Finally, neither parent had indicated to which tribe the enrollment numbers related. The letter was sent to the previously noticed tribes. The paralegal filed the return receipts from each tribe.

In a declaration of April 2007, the ICWA paralegal informed the court that four of the seven tribes responded to the November 2006 notice that the minor was not eligible for membership in the tribe and that four tribes also responded negatively to the additional information sent in February 2007.

The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) If, after the petition is filed, it is known or there is reason to know that an Indian child is involved, notice of the pending proceeding and the right to intervene must be sent to the tribe or the Bureau of Indian Affairs if the tribal affiliation is not known. (25 U.S.C. § 1912; Welf. & Inst. Code, § 224.2; Cal. Rules of Court, rule 5.481(b).)

The contents of the notice to inform the tribe of the proceedings and assist the tribe in determining if the child is a member or eligible for membership are set forth in statute and federal regulation and include, if known, the name and date of birth of the child; the tribe in which membership is claimed; the names, birthdates, and places of birth and death, current addresses and tribal enrollment numbers of the parents, grandparents and great grandparents. (§ 224.2, subd. (a)(5); 25 C.F.R. § 23.11(a), (d), (e) (2002); 44 Fed.Reg. 67588 (11-26-79); In re D.T. (2003) 113 Cal.App.4th 1449, 1454-1455.) The court and the department have an affirmative and continuing duty to inquire whether the minor has Indian ancestry and to provide updated information to the tribes. (§ 224.3, subd. (f); Cal. Rules of Court, rule 5.481(a).) To be useful to the tribes in making their determination, the information must be accurate and complete as possible.

Here, after the initial notice was sent, additional information was provided to the department. However, the information sent to the tribes was incomplete and inaccurate. Accordingly, we accept the concession of DHHS on this issue and will reverse and remand to allow compliance with the notice provisions of the ICWA.

II

Appellant contends the evidence established the minor would benefit from a continued relationship with the parents and thus termination of parental rights would be detrimental to her.

“‘At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption.’ If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child.” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368 [citations omitted, orig. italics].) There are only limited circumstances which permit the court to find a “compelling reason for determining that termination would be detrimental to the child . . . .” (Former § 366.26, subd. (c)(1).) The party claiming the exception has the burden of establishing the existence of any circumstances which constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of Court, rule 5.725(e)(3); Evid. Code, § 500.)

One of the circumstances in which termination of parental rights would be detrimental to the minor is: “The parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (Former Welf. & Inst. Code, § 366.26, subd. (c)(1)(A).) The benefit to the child must promote “the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. 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 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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Even frequent and loving contact is not sufficient to establish this benefit absent a significant positive emotional attachment between parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Brian R. (1991) 2 Cal.App.4th 904, 924.)

Appellant has not met her burden. The evidence shows the parents did not maintain the regular visits so necessary to build and maintain the parent-child relationship with the year-old minor. Further, the reaction to visits by the minor described by both parents is that of meeting with a friendly, pleasant, occasional visitor, not engaging in a contact which showed a significant positive emotional attachment of a parental nature. The juvenile court correctly concluded substantial evidence did not support an exception to the preference for adoption.

DISPOSITION

The orders terminating parental rights are reversed and the matter is remanded for the limited purpose of determining whether DHHS complied with the notice provisions of the ICWA by sending complete and accurate information to the tribes and whether ICWA applies in this case. If, after inquiry, the juvenile court determines that the tribes were properly noticed and there either was no response or the tribes determined that the minor is not an Indian child, the orders shall be reinstated. If complete accurate information has not been given, the juvenile court shall order DHHS to comply promptly with the notice provisions of the ICWA. Thereafter, if there is no response or if the tribes determine the minor is not an Indian child, the orders shall be reinstated. However, if a tribe determines the minor is an Indian child and the court determines the ICWA applies to this case, the juvenile court is ordered to conduct a new section 366.26 hearing in conformance with all provisions of the ICWA.

We concur: SCOTLAND, P. J., HULL, J.


Summaries of

In re S.B.

California Court of Appeals, Third District, Sacramento
Mar 12, 2008
No. C056317 (Cal. Ct. App. Mar. 12, 2008)
Case details for

In re S.B.

Case Details

Full title:SACRAMENTO DEPARTMENT OF HEALTH & HUMAN SERVICES, Plaintiff and…

Court:California Court of Appeals, Third District, Sacramento

Date published: Mar 12, 2008

Citations

No. C056317 (Cal. Ct. App. Mar. 12, 2008)