Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. CK63616, Debra Losnick, Commissioner. Reversed with directions.
Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
WILLHITE, J.
M.H. (Mother) appeals from the order terminating her parental rights to Z.M., her daughter born in December 2005. Mother contends that reversal of the order is required on dual grounds: (1) Mother’s lack of legal representation rendered the permanency planning hearing (Welf. & Inst. Code, § 366.26) fundamentally unfair; and (2) notice mandated pursuant to the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.; see also, § 224.2, subd. (a)) was defective.
All further section references are to the Welfare and Institutions Code unless otherwise indicated.
The Department of Children and Family Services (DCFS) concedes both errors. As to the denial of counsel at the section 366.26 hearing, DCFS contends that the error was not prejudicial. As to the defective ICWA notice, DCFS contends that the order terminating parental rights should be reversed and the matter remanded for the purpose of notifying the appropriate tribal entities. If no tribe responds that Z.M. is an Indian child, the court should reinstate the termination order. We agree with DCFS’s contentions and therefore reverse and remand with directions.
FACTUAL AND PROCEDURAL BACKGROUND
On June 7, 2006, a section 300 petition was filed alleging Mother and G.M., Z.M.’s father (Father), had a history of domestic violence, including Father striking Mother. The petition further alleged Mother used marijuana, which also endangered Z.M., then 6 months old, and Mother had a history of illicit drug abuse. On the same day, the juvenile court appointed attorney Matthew Chapman to represent Mother, ordered Z.M. detained, and continued the hearing on the petition.
On June 27, 2006, the juvenile court found G.M. was the presumed father. He is not a party to this appeal.
At the June 27, 2006, hearing, Mother, who appeared for the first time, was asked whether Z.M. had American Indian heritage. Mother replied, “I believe she have some. She have Mongolian. So she’s like I have American in my family.” When asked what tribe, Mother responded, “I am not sure. They are like my parents I never saw before, but I have heard they have them.” The juvenile court ordered DSCF to investigate the American Indian heritage claim.
During the investigation, Mother stated last year her doctor told her she had a Native American blood type and that a maternal uncle related his biological mother was half Black and half Native American. He added that he and Mother had been adopted as young children.
On August 2, 2006, Mother requested an adjudication hearing on the section 300 petition. The juvenile court indicated it had the return receipt for the ICWA notices, which DCFS sent to the Secretary of the Interior (Secretary) and the Bureau of Indian Affairs (BIA), and directed DCFS to submit any responses received from the ICWA inquiry.
DCFS prepared the ICWA notices on a JV-135 form. Mother’s date and place of birth and her parents’ names were listed. Only Father’s name was on the form. On July 13, 2006, the notices were sent to the Secretary, and BIA. DCSF later received a signed receipt from the BIA.
At the adjudication hearing on September 19, 2006, the juvenile court noted it now had the receipt for the Secretary and found the ICWA did not apply. In support of the section 300 petition, DCFS relied, inter alia, on its August 2, 2006 report. The report related allegations by A., Mother’s maternal uncle, that Father beat Mother with a baseball bat while she was pregnant and stuffed her into his car trunk and that Father shot at Mother’s house. A. also stated that Mother smoked marijuana. G., Z.M.’s caregiver and maternal cousin, related that although Mother called the house often, Mother only visited Z.M. three or four times since Z.M. had been placed with her, which happened shortly after Mother’s arrest on June 1, 2006 for prostitution. Visitation had been changed to DCFS’s office, because Mother tried to take Z.M. from the home.
At the adjudication hearing, Mother testified that in June, when she went to jail on a loitering charge, she left Z.M. with Anna, her best friend whose last name was unknown. Mother paid Anna to watch Z.M. for an hour and directed G. to pick up Z.M. afterward. Z.M. was removed from Mother’s custody on June 7, 2006. Mother was in jail for 16 days. Mother denied that she and Father ever engaged in domestic violence or that Father ever hit her with a baseball bat. She denied smoking marijuana after age 17.
In sustaining the petition, the juvenile court found true the allegations of domestic violence and marijuana use. The court also found ICWA did not apply. Later, at the contested disposition hearing on October 25, 2006, the juvenile court ordered Mother to participate in a drug rehabilitation program with random testing, individual counseling regarding domestic violence, and parent education.
Mother denied any history of mental or emotional problems, and the court struck the mental and emotional problem allegations.
On September 16 and again on November 17, 2006, Mother was arrested for prostitution. She was not released from custody until January 17, 2007. Therefore, she was unable to make unmonitored visits, which were scheduled to begin on November 22, 2006. On January 23, 2007, the juvenile court reinstated monitored visitation for Mother and set a contested six month review hearing for March 6, 2007.
On March 6, 2007, the hearing was continued to March 26, 2007, because Mother’s attorney, Mr. Chapman, was not present. On March 26, 2007, the hearing was continued to May 22, 2007, because Mother, who had not been given notice and was incarcerated, did not appear.
On May 22, 2007, Mother filed a section 388 petition for custody of Z.M. On that date, DCFS reported Mother had partially complied with the case plan in that she received a certificate of completion of parenting classes, attended individual counseling, and started a drug treatment program. Also, Mother was attending trade school. In April 2007, following her release from jail, Mother began visiting Z.M. weekly, and G., the monitor, related these visits were appropriate. After noting Mother had “a long history of criminal activity,” which continued after Z.M. was born, the social worker opined Mother’s lack of stability created a detriment to Z.M.’s health and safety. Although Mother appeared capable of providing Z.M. with safe and nurturing interaction, she was only starting to stabilize her life.
At the hearing the same day, Mother and Mr. Chapman both appeared. The juvenile court indicated its concern about Mother’s continuing arrests and its belief that Mother had not stabilized her life sufficiently to place Z.M. with her. The court related Mother needed to continue her progress and opined Mother was extremely close to reunifying with Z.M. The court, however, terminated reunification services after finding that returning Z.M. to Mother’s custody would be detrimental to Z.M. Mother was ordered to return on September 18, 2007 for the section 366.26 hearing. On May 24, 2007, the juvenile court summarily denied Mother’s section 388 petition for the reason the court already had conducted a contested review hearing.
On October 29, 2007, Mother and Father, who appeared for the first time, were present at the section 366.26 hearing. When asked about American Indian heritage, Father initially replied he was not sure, but following consultation with his attorney and various telephone calls, Father indicated he might be part of the Choctaw Nation. The court ordered DCFS to give notice to BIA and the Choctaw Nation. The matter was continued to November 20, 2007.
On November 2, 2007, DCFS sent ICWA notices to the Secretary, the BIA, the Choctaw Nation of Oklahoma, the Jena-Band-Choctaw, and the Mississippi Band of Choctaw Indians. The notices indicated Father claimed Choctaw heritage and provided Father’s name, address, and date of birth. DCFS submitted to the juvenile court signed return receipts from the Secretary, the BIA, and the Mississippi Band of Choctaw Indians only. DCFS received two letters from the Mississippi Band of the Choctaw Indians stating neither Z.M., Mother, or Father were enrolled or eligible for enrollment.
On November 20, 2007, neither Mother nor Mr. Chapman appeared. The juvenile court stated the court was unable to proceed, because it had not yet received return receipts from all the Indian tribes and continued the hearing to January 14, 2008.
At the January 14, 2008, hearing, Mother and Father were advised the hearing would be continued to February 25, 2008 and excused. DCFS resubmitted the same return receipts. The juvenile court stated all the responses had been returned and found ICWA did not apply.
On January 23, 2008, Mother filed a section 388 petition requesting unmonitored visitation. The juvenile court summarily denied the petition based on her lack of consistent visitation over the past three months.
At the February 25, 2008 hearing, no appearance was made by either Mother or Mr. Chapman, who was on medical leave. DCSF was ordered to give Mother notice that the hearing had been continued to April 7, 2008, which it did.
On April 7, 2008, neither Mother nor Father appeared. Although Father’s attorney was present, Mr. Chapman was not. The juvenile court found Mother had been given proper notice and that Mr. Chapman was still on extended medical leave and it was possible he would not return. The court stated it was not able to appoint new counsel for Mother, because the Los Angeles Dependency Lawyers (LADL), which represent parents, would not accept appointment for Mother. After indicating it could make objections on Mother’s behalf, the court found Mother had not visited Z.M. or participated in the case plan. Z.M.’s attorney stated Mother had visited Z.M. once in November upon release from jail and one other time before the hearing in January. He argued parental rights should be terminated. Over Father’s objection, the juvenile court terminated parental rights.
The court stated it had read the DCFS reports beginning with October 29, 2007 through April 7, 2008. In its October 29, 2007 report, DCSF indicated Mother did not inquire about visits until September 2007, and that Mother did not appear for the scheduled September 14, 2007 visit until after Z.M. already had been transported back to her placement. On October 5, 2007, Mother did visit with Z.M., but on October 16, 2007, Mother was arrested.
DISCUSSION
1. Denial of Counsel
Mother contends, and DCFS concedes, that she was denied her right to counsel at the section 366.26 hearing. We agree that Mother’s right to counsel was abridged, but conclude that the violation, which was statutory in nature, does not compel reversal of the termination order in view of Mother’s failure to demonstrate prejudice.
Although a parent may have a constitutional right to counsel at a proceeding at which reunification services might be terminated (In re David H. (2008) 165 Cal.App.4th 1626, 1634, fn. 9), a section 366.26 hearing is not such a proceeding. Therefore, as we explained in In re Andrew S. (1994) 27 Cal.App.4th 541, 548-549, the right to counsel at a section 366.26 hearing is statutory in nature, not constitutional. (See § 317, subd. (d) [“The counsel appointed by the court shall represent the parent . . . at the detention hearing and at all subsequent proceedings before the juvenile court”]; see also, § 366.26, subd. (f)(2) [“If a parent appears without counsel and is unable to afford counsel, the court shall appoint counsel for the parent”].) We stated in Andrew S.: “By the time the [section] 366.26 hearing is held it already has been determined that the parent will not have custody of the child, and the issue to be decided is whether to allow the child to be adopted. Certainly the mother has a stake in that decision, and it is proper that she have counsel at the hearing at which the issue will be decided. But in light of the standards announced by the United States Supreme Court [in Lassiter v. Department of Social Services (1981) 452 U.S. 18 and Santosky v. Kramer (1982) 455 U.S. 745] and applied by our Supreme Court [in Cynthia D. v. Superior Court (1993) 5 Cal.4th 242], we cannot say [the mother] had a constitutional right to appointed counsel at the [section 366.26] proceeding.” (In re Andrew S., supra, 27 Cal.App.4th at pp. 548-549.)
A violation of the statutory right to representation is reviewed for harmless error under the standard of People v. Watson (1956) 46 Cal.2d 818, 836: the parent must show there was a reasonable probability of a more favorable outcome if she had been represented at the hearing. (In re Andrew S., supra, 27 Cal.App.4th at p. 549; see also In re David H., supra, 165 Cal.App.4th at p. 1634, fn. 9.) Here, in terminating parental rights at the April 7, 2008 hearing, the juvenile court found Z.M. “is entitled to the most permanent plan. Both parents have been properly noticed. There is absolutely no exception which could be found.” The court ruled “[t]he court is ordering that parental rights be severed, that this child be placed for adoption.”
Mother argues that if Mr. Chapman had been present at this hearing, “it is likely that objections would have been made to the court’s finding that no exception to the termination of parental rights was shown.” Mother relies on the January 2007 DCFS report which indicated Mother and Z.M. were bonding; Mother had regular weekly visits with Z.M.; Mother was making significant efforts to change her behavior, such as completing a parenting class, obtaining employment, and participating in drug treatment. She states that on May 22, 2007, the juvenile court indicated Mother was “extremely close to having a section 388 petition granted.” Mother also points out she filed a section 388 petition in January 2008 and appeared at the hearing on January 14, 2008.
That Mr. Chapman might have raised objections does not satisfy Mother’s burden to show that a more favorable outcome probably would have ensued if the juvenile court had not proceeded in his absence. Moreover, Mother fails to identify any exception to termination of parental rights and demonstrate the probability of prevailing as to such exception(s). (See In re Steiner (1995) 134 Cal.App.2d 391, 399 [“A point which is merely suggested by appellant’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion”]; see also, People v. Stanley (1995) 10 Cal.4th 764, 793.)
“The purpose of the California dependency system is to protect children from harm and preserve families when safe for the child. [Citation.] If reunification is not possible within the statutory timeframe, the child must be provided a stable, permanent home by adoption, guardianship or placement in long-term foster care. [Citations.] Adoption is the permanent plan preferred by the Legislature. [Citation.] If reunification efforts have failed and the child is adoptable, the court must select adoption unless it finds terminating parental rights would be detrimental to the child under at least one of five statutory exceptions. (§ 366.26, subd. (c)(1)(A)-(E); [citations].)” (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
To the extent Mother is attempting to invoke the beneficial parent-child relationship exception, she is unsuccessful. That exception applies where “[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)(A).) Evidence of pleasant visits, frequent and loving contact, and an emotional bond between child and parent, however, is insufficient. (In re Derek W. (1999) 73 Cal.App.4th 823, 827). Rather, the parent must “prove he or she occupies a parental role in the child’s life, resulting in a significant, positive emotional attachment of the child to the parent. [Citations.]” (In re Dakota H., supra, 132 Cal.App.4th at p. 229.) Additionally, “if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan. [Citation.]” (Ibid.)
Even if Z.M. would benefit from a continuing relationship with Mother, Mother has not shown any evidence in the record that would demonstrate that Z.M. would suffer “great detriment” if Mother’s parental rights were terminated. We conclude that it is not reasonably probable that a different result would have been obtained had mother’s attorney appeared at the section 366.26 hearing.
2. Improper ICWA Notice and Remand For Further Proceedings
Mother contends notice pursuant to ICWA was not properly provided, because the notice lacked information regarding the parents’ ancestry and DCFS failed to submit return receipts for the notices sent to two of the tribes: the Choctaw Nation of Oklahoma and the Jena-Band-Choctaw. DCFS concedes that Mother’s claim of inadequate notice is correct. We find the juvenile court’s finding of adequate ICWA notice is not supported by substantial evidence and that its ruling that the ICWA does not apply therefore cannot stand. (In re J.T. (2007) 154 Cal.App.4th 986, 991.) We reverse the termination order and remand the case with directions to the juvenile court to comply with the provisions of ICWA, including the notice requirements, and to re-adopt its termination order should the court conclude Z.M. does not fall within the scope of ICWA.
The ICWA mandates notice be sent to the “parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” (25 U.S.C. § 1912, subd. (a); see also, § 224.2, subd. (a).) All tribes of which the child may be a member or eligible for membership must be provided notice. (§ 224.2, subd. (a)(3).) The dependency order of the juvenile court is voidable in the face of improper ICWA notice. (In re Karla C. (2003) 113 Cal.App.4th 166, 174.)
“‘To satisfy the notice provisions of the [ICWA] and to provide a proper record for the juvenile court and appellate courts, [DCFS] should follow a two-step procedure. First, it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. [Citation.] Second, [DCFS] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor’s status.’” (In re Asia L. (2003) 107 Cal.App.4th 498, 507.)
Here, the JV-135 form (“Notice of Involuntary Child Custody Proceedings For An Indian Child”) contains information regarding Z.M. and her parents, but no information is provided as to the paternal relatives or Mother’s other direct lineal relatives. DCFS acknowledges the ICWA notice regarding Father did not contain the names of his parents and grandparents or any other information other than his name, address and date of birth, nor did the notice explain why this information was unavailable. DCFS also admits that after the juvenile court continued the hearing to enable it to obtain certain missing receipts, DCFS simply resubmitted the same receipts. The court then proceeded to find ICWA did not apply.
The omission of information regarding the direct lineal ancestors of Father and further information as to Mother, although she was adopted, and the absence of explanation why such information was unavailable rendered the juvenile court’s finding of adequate ICWA notice unsupported by the evidence. (See, e.g., In re Karla C., supra, 113 Cal.App.4th at p. 175; see In re J.T., supra, 154 Cal.App.4th at pp. 989-990 [Mother’s adoption records sought].) The notice was also defective in the absence of a return receipt from the Choctaw Nation of Oklahoma and from the Jena-Band-Choctaw tribes or evidence these tribes received actual notice. (In re H.A. (2002) 103 Cal.App.4th 1206, 1214-1215.)
In another notice context, this court recently held that where the juvenile court fails “to comply with the notice requirements applicable to Indian child custody proceedings,” the appropriate disposition is “a limited reversal and remand to permit compliance” and “[i]f, after proper inquiry and notice, no response is received from a tribe indicating [the minors] are Indian children, all previous findings and orders shall be reinstated. If a tribe determines that the minors are Indian children, or if other information is presented to the juvenile court that suggests the minors are Indian children, the juvenile court is ordered to conduct a new . . . hearing in conformity with all provisions of the ICWA and California law relating to child custody proceedings involving Indian children.” (In re Rayna N. (2008) 163 Cal.App.4th 262, 268-269.)
This limited reversal and remand procedure is equally appropriate in this inadequate notice situation. We therefore reverse the order terminating parental rights with directions to the juvenile court to comply with the provisions of ICWA, including the notice requirements, and to re-adopt its termination order should the court conclude Z.M. does not fall within the scope of ICWA. (See also, In re Francisco W. (2006) 139 Cal.App.4th 695, 703-711.)
DISPOSITION
The order terminating parental rights is reversed. The matter is remanded to the juvenile court with directions to comply with the notice requirements of ICWA. If a tribe responds that Z.W. is an Indian child, the court shall proceed in conformity with ICWA. If no response is received from a tribe indicating that Z.W is an Indian child, the court shall reinstate the termination order.
We concur: EPSTEIN, P. J., MANELLA, J.