Opinion
C083462
11-07-2017
In re K.A. et al., Persons Coming Under the Juvenile Court Law. MODOC COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. M.W., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JP15014, JP15015)
M.W., mother of minors K.A. and T.G., appeals the juvenile court's order terminating her parental rights. (Welf. & Inst. Code, §§ 366.26 & 395.) Mother contends the juvenile court erred in failing to apply the beneficial parental relationship exception. (§ 366.26, subd. (c)(1)(B)(i).) Mother further contends the juvenile court and the Modoc County Department of Social Services (Department) failed to comply with the requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) She claims any failure to preserve the ICWA claim for appeal was the result of ineffective assistance of counsel.
Undesignated statutory references are to the Welfare and Institutions Code.
Finding merit in mother's ICWA claim only, we will reverse and remand for limited ICWA proceedings. In all other respects, we will affirm the judgment.
I. BACKGROUND
At the time of the minors' removal, K.A. (the child of mother and S.A.) was two months old, and T.G. (the child of mother and E.G.) was three years old. Mother and S.A. shared a home. E.G. was incarcerated in state prison for a probation violation following his 2012 conviction for assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(4).
Because mother is the only parental party to this appeal, the factual summary will relate facts related to the fathers, S.A. and E.G., only when relevant to the issues on appeal.
Mother came to the attention of the Department on September 8, 2015, when law enforcement officers and social worker Justin Mason, responding to reports of suspected child neglect, entered the home mother shared with S.A. and found substantial amounts of drugs, including a large bag of marijuana and a glass smoking device in a basket containing children's toys, heroin and injecting supplies, prescription medications, and drug paraphernalia. Some of the drugs and paraphernalia were accessible to T.G. Mother admitted having used heroin one and a half weeks prior. S.A. had scarring from drug injections and admitted having used heroin in the past. Mother denied smoking marijuana, but admitted S.A. smoked marijuana in the apartment with the minors present.
Mother provided a urine sample which tested positive for oxycodone and opiates. She admitted she had been using heroin on and off for one year, and stated she last used on September 2, 2015. Mother also admitted she used more than the amount of oxycodone prescribed to her for a health condition and shared some with S.A. A. Dependency Petition
On September 9, 2015, the Department filed a petition pursuant to section 300, subdivisions (b) and (j), alleging K.A. suffered or was at substantial risk of suffering serious physical harm due to mother's willful or negligent failure to provide adequate care and mother's inability to provide regular care due to mother's substance abuse. The petition further alleged K.A. had been abused or neglected and was at substantial risk of abuse or neglect due to (1) the presence of heroin, marijuana, and drug paraphernalia accessible to K.A.'s sibling, T.G.; (2) K.A.'s sibling, L.A., was the subject of a prior section 300, subdivision (b) dependency petition filed on January 11, 2013, due to S.A.'s substance abuse, and S.A.'s behavior exposed K.A. to the same substantial risk of serious physical harm as L.A.; (3) K.A.'s sibling, L.A., was removed from S.A.'s custody on August 9, 2013, due to S.A.'s continued substance abuse and, after the juvenile court sustained a supplemental petition on October 8, 2013, L.A. became a dependent of the juvenile court pursuant to section 300, subdivision (b), and S.A.'s behavior exposed K.A. to the same substantial risk of serious physical harm as L.A.; and (4) on November 21, 2014, K.A.'s sibling, L.A., was ordered into legal guardianship with a relative as a result of S.A.'s failure of reunification services due to continuing substance abuse, and S.A.'s behavior exposed K.A. to the same substantial risk of physical harm as L.A.
On September 9, 2015, the Department filed a second petition pursuant to section 300, subdivision (b), alleging T.G. suffered or was at substantial risk of suffering serious physical harm due to mother's willful or negligent failure to provide adequate care and mother's inability to provide regular care due to mother's substance abuse. B. Detention
On September 10, 2015, the juvenile court ordered the minors detained and temporarily placed them together with their maternal grandparents, C.M. and R.M. The court further ordered supervised visitation three times per week and reunification services to mother, including random drug testing and substance abuse treatment. C. Jurisdiction
According to the jurisdiction reports filed September 24, 2015, the minors remained together in a placement with their maternal grandparents. Mother had supervised visitation with both minors on September 11, 2015. Her on-site urinalysis resulted in a positive test for oxycodone and opiates. She participated in two additional supervised visits with the minors in September, with no reported problems or issues.
The addendum reports, filed October 29, 2015, stated mother submitted a urine sample on October 9, 2015, with negative results. Both mother and S.A. participated in supervised visitation that day. On October 19, 2015, mother tested positive for oxymorphone (consistent with her prescription oxycodone use). Mother tested negative on October 21, 2015. She failed to show up for visitation and drug testing on October 23 and October 26, 2015.
On October 27, 2015, the social worker attempted to contact mother at home. The social worker spoke with the maternal grandmother, who stated mother claimed she was sick on October 23, 2015, but the maternal grandmother saw pictures of mother on Facebook that evening "partying and consuming alcohol." Mother contacted the social worker and stated she and S.A. had been sick the previous week and would not be available for visitation on October 28, 2015, due to an appointment with Behavioral Health. The social worker advised mother she would nonetheless need to come in to submit a urine sample.
At the jurisdictional hearing on October 30, 2015, after striking several of the allegations in the petitions, mother admitted and the juvenile court sustained the allegations that heroin, marijuana, prescription drugs, and drug paraphernalia were found in mother's home. S.A. admitted K.A.'s sibling had previously been placed in legal guardianship due to S.A.'s failure to reunify. The court ordered continued supervised visitation for both parents three times per week. D. Disposition
According to the disposition reports filed November 13, 2015, both parents had been "sporadic" in communicating with the Department regarding substance abuse testing, visitation, and case planning since the date of detention. Both parents expressed love for the minors and commitment to reunification. The parents also expressed a need for mental health and substance abuse services. Mother stated her desire to continue to liberalize visitation. However, both parents were having difficulty maintaining consistent sobriety.
The minors were reportedly healthy and meeting their developmental milestones and doing well in their current placement. Mother was generally consistent with visitation, although there were two missed visits in early-November and continued difficulty with mother's communication with the Department regarding visitation and testing. The Department recommended reunification services to mother and S.A.
A subsequent addendum report filed December 10, 2015, recommended E.G. be given presumed father status of T.G. and provided with reunification services. The report noted that while E.G. desired custody of T.G. and did not reside with the minor at the time the petition was filed, placement of T.G. with E.G. was not recommended due to E.G.'s incarceration.
At the December 14, 2015, dispositional hearing, the court found by clear and convincing evidence the minors should be removed from mother's custody and committed to the care, custody, and control of the Department for continued placement together in their current relative placement. The court ordered reunification services for mother, and found mother's progress toward alleviating the causes necessitating placement was minimal. The court ordered continued supervised visitation as previously ordered. E. Three-Month Status Review
The three-month status review report filed March 10, 2016, noted mother continued to experience pain associated with a medical condition and expressed a desire to continue her use of oxycodone for pain management. S.A. continued daily use of marijuana with no desire to cease such use. E.G. remained in custody in state prison serving a three-year sentence, and continued to express an interest in maintaining a relationship with T.G. The report stated the minors continued to be comfortable in their placement. T.G. appeared to react appropriately during visitation with mother and S.A., and appeared to retain a bond with mother. Mother maintained a stable and suitable residence for her and the minors and consistently participated in visitation. She was reportedly "sporadically compliant" with substance abuse testing, however, she had excused check-ins for approximately 50 percent of the 42 available appointments. All drug tests submitted by mother were negative, and mother had verification excusing her from nine of the appointments.
Mother had recently begun parenting classes and wished to continue them. The report noted mother had not been compliant with parenting services, but "appear[ed] to have adequate parenting skills to meet the needs of her children," and the case plan would be modified to state that participation in parenting classes was no longer required. Mother was reportedly less than compliant with recommended mental health and substance abuse services—she was required to participate in two group therapy sessions weekly—and was reportedly not participating because she did not feel there was any benefit in those services.
Visitation was occurring without incident, and was liberalized on February 21, 2016, to allow for in-home supervised visitation as appropriate. Mother and S.A. felt they had made enough progress to allow for the minors to return home, and felt Behavioral Health was not an effective tool for them. Both parents expressed their disagreement with the Department about more time being necessary to show consistency of participation in the case plan.
The Department stated the minors were still at substantial risk given that mother and S.A.'s participation in the case plan was "minimal and inconsistent leaving insufficient length of time to adequately measure the caregiver's ability to maintain a safe home environment in the long term." However, it was noted that there was a substantial probability the minors would return home by June 13, 2016, given that the parents' participation had recently improved, both indicated a strong willingness to have the minors returned home, and both maintained a bond with the minors through consistent visitation.
The social worker opined that the minors should remain in their current out-of-home relative placement, noting communication had been inconsistent and active communication with the Department and participation in the case plan would be vital for mother and S.A. to be successful in reunification.
At the March 14, 2016, review hearing, the court ordered the parents to review and sign the modified case plan and continued the minors in their current placement. F. Six-Month Status Review
The Department filed an application to incorporate portions of the reporter's transcript from related case No. C082440 (a writ petition filed by E.G. following the six-month review hearing, and denied on the merits by this court on Sept. 15, 2016). We granted the application as to the entire 132-page reporter's transcript on August 17, 2016. Mother was given the opportunity to file a response to those portions of the Respondent's Brief, which cited to the now-incorporated record. No such response was filed within the time allotted.
The six-month status review report, filed June 3, 2016, recommended the minors remain in their current out-of-home relative placement, reunification services be terminated, and a section 366.26 hearing set. The report reiterated that mother continued to experience pain and expressed a desire to continue her use of oxycodone for pain management because she felt "it's the most effective at mitigating pain." S.A. continued daily use of marijuana with no desire to stop. It was reported that mother recently admitted use of opiates and expressed a desire for both she and S.A. to enter a rehabilitation program.
The minors were reportedly doing well. T.G. was comfortable in his placement and reacted appropriately during visits with mother and S.A., and retained a bond with mother.
It was also reported that, despite active efforts to make frequent unannounced visits to the home, the social worker had little success gaining access since March 14, 2016. The social worker had also made regular attempts to contact mother by phone with little success. As a consequence, it was unknown whether mother had maintained a stable and suitable residence for herself and the minors.
Mother was reportedly "almost completely noncompliant with check in for substance abuse testing services" since March 14, 2016. She checked in "only a few times" and, on one of those occasions, admitted using opiates the week prior for approximately two weeks, stating she had given up hope of having the minors returned to her. Mother was also noncompliant with the treatment plan developed by the substance abuse counselors, and was not participating in behavior health services, including the recommended group therapy sessions. She failed to maintain consistent communication with the Department or to actively participate in Family Wellness Court, causing her termination from the program. While mother had recently expressed a desire to enter a rehabilitation program, she had not made efforts to contact Behavioral Health in that regard. According to her substance abuse counselor, mother declined participation in an intensive treatment program or a rehabilitation plan.
Mother reportedly maintained a relationship with the minors by participating in visitation. While the Department hoped to continue to liberalize visitation as determined by the parents' progress in the case plan, this did not occur. It was noted that T.G. was showing signs of stress such as anxiety and poor behavior due to mother's "periodic inconsistency in visitation."
While mother demonstrated a clear understanding of what actions were necessary to succeed in her case plan, she had been unable to make adequate progress. The Department noted that both mother and S.A.'s "disregard for participation in services identified in the case plan is very concerning and does not bode well in regards to the prognosis of return of the children" to them. The Department recommended termination of reunification services to mother and S.A. and concluded that, based on the parents' lack of participation in services, current concerns about illegal drugs and drug use in the home, and lack of follow-through or motivation to change, there was a preponderance of evidence that return of the minors to the parents' custody would place the minors at substantial risk of detriment to their physical and emotional well-being.
At the June 22, 2016, contested six-month review hearing, social worker Justin Mason testified that, while mother and S.A. both stated they were committed to drug rehabilitation, they refused to participate when the opportunity to do so presented itself. Mason testified mother's visitation was reasonably appropriate. However, mother refused drug treatment. He further testified that, due to mother's lack of communication with the Department, the Department was not given the opportunity to adequately assess mother's home. And, although mother stated "many times" that she was ready and willing to participate in services, her actions otherwise demonstrated her unwillingness to do so. For example, Mason approached mother after hearing she was interested in residential rehabilitation. He worked to set up the rehab program with Behavioral Health and contacted mother's counselor, who stated mother needed to be reassessed. Mother was later reassessed, but declined to participate.
Mason testified mother was required to check in three times a week to drug test. However, her attendance at those regularly scheduled appointments was inconsistent. She tested "dirty" on two occasions but otherwise tested negative for drugs. Both mother and S.A. were terminated from Family Wellness Court due to their nonparticipation. Mason stated that, other than visitation, there was no portion of the case plan in which mother was consistent.
Mother testified and admitted she did "pretty poorly" on her plan, stating her visitation was good but the rest was "pretty bad." She blamed some of her poor performance on a "lack of communication" between herself and Mason. She denied ever refusing to participate in rehab and said Mason told her he could make the referral but she had to make an appointment with her counselor. She claimed she met with her counselor and did a new assessment, but was told "they didn't have the funding for rehab so therefore we couldn't go."
Mother stated she had been taking prescription opiates for pain for "an underlying condition" since she was two years old, but was not currently taking the medication because she had been taken off of it due to the dependency proceedings. She stated her doctor informed her that he would put her back on her medication if Mason would agree to her continued use of the opiates. However, Mason told her he did not think it would be a good idea and "he'd have to decline" due to his concern that she would return to daily drug use.
Mother admitted having had a problem with heroin "off and on since [the age of] 14," and stated she last used heroin in September 2015. When asked why she had been unable to comply with the case plan since that time, she explained, "a lot of it had to do with laziness and anger and stuff that I couldn't get over but I should have. And I'm grown up to realize that I need to get over [sic]." She also explained that she knew she was noncompliant with her case plan, and she was dismissed from Family Wellness Court due to her noncompliance. With respect to the services she did participate in, such as "Women's Group and Living and Balance," mother felt she did not receive any benefit from those services.
Mother described her relationship with the minors as close. She testified she wanted them back and felt she was capable of taking care of them despite her "underlying physical condition." She wanted the court to allow continued provision of reunification services and stated she would do "[a] hundred percent" better than she had done in the past.
The minors' caregiver and maternal grandmother, C.M., testified the minors were progressing well in her care. She stated mother was a "good mom" and made sure the minors were taken care of, but she felt mother had a drug problem and should not be taking care of the minors until she could "get her life together." C.M. testified mother stated she needed rehabilitation but there was no funding for it. C.M. wanted mother to have more time to "get her life together," but agreed that the minors deserved long-term stability. She stated she was willing to be considered a guardian or an adoptive parent to the minors.
With regard to mother's physical condition, C.M. testified mother's disability began when she was one and a half years old. Mother was given Tylenol with Codeine, a fact C.M. feels might have contributed to mother's drug problem. C.M. stated she felt mother had "finally hit rock bottom" and would be able to demonstrate the ability to reunite with the minors.
There were a few times C.M. cancelled scheduled visitation because she felt mother was under the influence of drugs. C.M. was not aware mother was using heroin until the day the minors were removed from mother's custody, and was surprised to learn mother began using at the age of 14. C.M. discussed with mother her failure to follow the case plan and her termination from the Family Wellness Court. Mother told C.M. she stopped going to counseling because she "didn't have to go."
On rebuttal, Mason testified that, contrary to mother's assertion that she had not used heroin since September 2015, mother admitted to him on May 10, 2016, that she used heroin the previous Friday, and tested positive for opiates. Mother denied telling Mason she used heroin, and claimed she told him she had taken a morphine pill for pain.
Mason stated he was never told by mother's counselors that there was any issue with funding for rehabilitation, and was instead told rehabilitation was available for mother so long as she went without S.A. Mason testified that when mother contacted him, he followed up with her. He also made attempts to contact mother at her home by knocking on the door or leaving a card at the door. When he left a card, mother was consistently late—by several days or one or two weeks—in contacting him.
The court found mother had made minimal progress and there was no substantial probability the minors could be returned to her custody within the next six months. The court terminated reunification services to both mother and S.A., and set the matter for a selection and implementation hearing pursuant to section 366.26. The court ordered that visitation between mother and the minors continue as previously ordered. G. Section 366.26 Selection and Implementation Report
According to the section 366.26 report filed September 16, 2016, the minors continued to be generally healthy and were on track mentally, emotionally, socially, and physically. Mother was reportedly not taking advantage of visits, had only visited on a few occasions since the referral hearing, and had not visited at all "in recent weeks." The social worker reported no contact with mother between June 22, 2016, and September 6, 2016. Mother contacted the social worker informing him that she had attempted suicide and was staying in Reno, Nevada. Mother was provided with information and offered assistance with getting in touch with Behavioral Health. Noting mother had made little effort to demonstrate her willingness to work with the Department and remain free of illegal substances over the course of the prior year, the Department recommended that the court terminate parental rights and order a permanent plan of adoption for both minors with the maternal grandmother and step grandfather. H. Section 366.26 Contested Selection and Implementation Hearing
At the October 24, 2016, contested selection and implementation hearing, social worker Justin Mason testified that he had only spoken with mother once by telephone since September 16, 2016, and mother had not requested visitation with the minors through the department since that date. Mason stated the minors' current out-of-home placement "always appeared to be clean, safe, and appropriate" and the minors always appeared comfortable with their caregivers. Mason also testified the minors were closely bonded to one another, and were bonded with their caregivers. K.A. addressed his caregivers as "mama" and "papa." T.G. referred to them as "papa" and "grandma."
Mason testified he would not be in favor of a permanent plan that would separate the minors from each other, and felt it was important for the parents to be in the minors' lives in some capacity.
Mason also testified that mother's visitation with the minors had been inconsistent in the past but more frequent recently. In his opinion, inconsistent visitation was harmful to the minors. He stated that, based on his interactions with mother and the minors, there was a very strong bond between mother and the minors. Mason also confirmed that mother had been offered services but had failed to comply with the Department's requirements.
C.M. testified the minors, who had been placed in her home since September 2015, were doing well and that T.G. referred to her and her husband as "Nana" and "Papa." She confirmed her willingness to adopt the minors and provide them with a permanent home. C.M. stated the minors were very close and relied on one another. They looked to C.M. for their daily needs. C.M. described the bond between mother and T.G. as "[g]ood" and "[c]lose." When asked if separating T.G. from mother would create stress on T.G., C.M. responded, "Maybe a little, but they've been apart for so long now that it's—I don't know how to explain it—natural, I guess." According to C.M., when mother leaves, both of the minors cry.
C.M. testified that, prior to the preceding month, mother's visitation with the minors was good, with mother visiting the minors almost every day. However, during the past week, mother's visitation was inadequate due to the fact that she became ill and had not visited for a few days after she and C.M. got into an argument. Over the course of the proceedings, mother's visitation was otherwise sporadic, as she spent some time in the hospital and was "still doing the bad things that [mother and S.A.] were doing, the drugs and such."
When asked if she wanted mother's parental rights terminated, C.M. said, "I do but I don't." When asked to clarify, she stated, "Because she's my daughter, and I love her. And it makes me sad, and I feel bad that I have to think about the boys." She testified both children had a close bond with mother. She was emphatic that she wanted a permanent plan of adoption for the children.
Mother testified she visited the minors almost every day during the past month. She described her relationship with the minors as "very close." They call her "Mom" and know she is their mother. She stated she wanted a permanent plan of guardianship so she could go back to rehab and have a chance to regain custody of the minors. She testified she believed the minors would benefit from a continuing relationship with her, stating, "Because I'm their mom, and I am bettering myself for them. And because I love my children and I want them to be in the home with me." She claimed to have been sober for three months. However, she testified she was in a "rehab/mental rehabilitation center" in Reno because she attempted suicide two months prior—on August 19, 2016—by taking 100 Xanax pills someone had given her. She stated her drug of choice was heroin and confirmed it had been three months since she used that drug.
The court concluded a permanent plan of adoption was in the minors' best interest and terminated parental rights.
Mother filed a timely notice of appeal.
II. DISCUSSION
A. Sufficiency of Evidence to Support the Beneficial Parental Relationship Exception
Mother contends the juvenile court erred in finding the beneficial parental relationship exception to adoption (§ 366.26, subd. (c)(1)(B)(i)) does not apply. The claim lacks merit.
" '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. [Citation.]' [Citations.] 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.)
"One exception to adoption is the beneficial parental relationship exception. This exception is set forth in section 366.26, subdivision (c)(1)(B)(i) which states: '[T]he 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.' [Citation.] The mother has the burden of proving her relationship with the children would outweigh the well-being they would gain in a permanent home with an adoptive parent. [Citations.]" (In re Noah G. (2016) 247 Cal.App.4th 1292, 1300.)
"Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 (Jasmine D.).)
As previously noted, the party claiming the exception has the burden of establishing the existence of any circumstances that constitute an exception to termination of parental rights. (In re C.F. (2011) 193 Cal.App.4th 549, 553.) The factual predicate of the exception must be supported by substantial evidence, but the juvenile court exercises its discretion in weighing that evidence and determining detriment. (In re K.P. (2012) 203 Cal.App.4th 614, 622; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.)
The exception "must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs are some of the variables which logically affect a parent/child bond." (In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).)
"On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order." (Autumn H., supra, 27 Cal.App.4th at p. 576.) " '[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge.' " (Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
With regard to the first prong of the beneficial parental relationship exception—whether the parent has maintained regular visitation and contact with the child (§ 366.26, subd. (c)(1)(B)(i))—mother contends it is undisputed that her visits and contacts with the minors were consistent. She points to her own testimony at the section 366.26 hearing, as well as the testimony of social worker Mason and caretaker and maternal grandmother C.M., and claims she visited regularly except for a few periods when she was sick, in the hospital, or during a relapse. We do not share mother's self-serving take on the facts in the record.
Social worker Mason testified mother's visitation had been inconsistent in the past and she did not request visitation through the department between September 16, 2016, and October 24, 2016, but recently, her visitation with the minors had been fairly frequent. Mason acknowledged that it was not necessary for mother to go through him to schedule visits with the minors at C.M.'s home, and for that reason it was possible visits took place of which he was unaware. However, C.M.'s testimony confirms that mother's visitation with the minors was generally sporadic during the course of the proceedings, with periods of frequent visitation (e.g., visits almost daily prior to the month preceding the section 366.26 hearing) and periods of no visitation (e.g., when mother was ill, hospitalized after attempting suicide, had an argument with C.M., or was "still doing the bad things that [mother and S.A.] were doing, the drugs and such"). While mother testified she visited the minors almost every day during the month prior to the hearing, she acknowledged that visitation was indeed otherwise sporadic due to arguments she had with C.M. over mother's possible drug use, and the fact that mother was hospitalized after attempting suicide.
Given the evidence in the record, we cannot say there is substantial evidence mother maintained regular visitation and contact with the minors as required to establish the first prong of the beneficial parental relationship exception. (§ 366.26, subd. (c)(1)(B)(i).)
First, even assuming mother had established the first prong, "[e]vidence of frequent and loving contact is not enough to establish a beneficial parental relationship." (In re Noah G., supra, 247 Cal.App.4th at p. 1300.) Mother must also show she "occupies a parental role in the children's lives." (Ibid.) In that regard, mother contends her frequent and consistent visits following removal "only strengthened the type of bond required to invoke" the beneficial parental relationship exception. Next, she claims her interaction with the minors was positive, as evidenced by her own testimony and the testimony of Mason, and C.M. Finally, mother claims the detriment the minors would suffer upon termination of parental rights outweighed the benefits of adoption, given the fact that mother had a consistent and loving relationship with the minors, both of whom knew her as their mother, and T.G. spent the majority of his life in her custody and cried and asked to go home with her after visits. As we shall explain, mother's claims are unpersuasive.
With regard to maintaining a parental role, the minors were removed from mother's custody on September 8, 2015. At the time, K.A. and T.G. were just two months old and three years old, respectively. Mother's claim that there was no evidence others besides herself and possibly S.A. cared for the minors prior to removal is far from helpful to her. At removal, drugs and drug paraphernalia were found throughout the home mother and S.A. shared, much of which was within the reach of T.G. Mother admitted ongoing use of heroin and oxycodone, and further admitted S.A. smoked marijuana inside the home with the minors present. It is clear from these facts alone that mother failed to maintain a parental role or keep the minors safe prior to removal.
After removal, the maternal grandparents C.M. and R.M. provided a safe, comfortable home for the minors, who looked to their grandparents for their daily needs. While the minors had a bond with mother, it was the caregivers who provided for the minors on a daily basis for more than a year. As C.M. testified, while separating mother and the minors might create "a little" stress on the minors, separation had become "normal" to the minors given the amount of time spent apart from mother. Mother's recent regular visitation did not improve that situation, as her overall visitation was sporadic and inhibited in part by a hospitalization due to her suicide attempt. Mother provided no additional evidence at the section 366.26 hearing, nor does she here, that demonstrates she maintained a parental role with the minors.
Even assuming mother's interaction with the minors was positive, as she claims, that interaction was sporadic given her visitation was sporadic as previously discussed. Hence, while the minors had a close bond with mother, the children were also closely bonded to their caregivers with whom they had been for the past year and to whom they looked to meet their daily physical and emotional needs.
Next, mother contends the benefit of her continued relationship with the minors outweighed the well-being of the minors in a permanent home with their prospective adoptive parents, C.M. and R.M. Mother acknowledges she was not in a position to take custody of the minors and was on a waiting list for an inpatient rehabilitation program, but claims she maintained a parental role with both minors and had a consistent and loving relationship with them, both minors knew her as their mother, and T.G. spent the majority of his life in her custody and cried and asked to go home with her after visits. Again, we are not persuaded.
As previously discussed, despite periods of regular, almost-daily, visitation, mother's visitation with the minors over the course of the proceedings was sporadic. The fact that mother had custody of T.G. for the first three years of his life does not establish, and mother provided no evidence to otherwise demonstrate, that mother maintained a parental role and protected the health and safety of the minors. Indeed, the record makes plain that mother was not only abusing drugs herself, but was allowing drug use by S.A. in the home and in the presence of the minors and, perhaps more troubling, allowing drugs to be kept in the home in a manner that allowed T.G., a toddler, ready access to those dangerous substances.
Also relevant to the question of benefit versus detriment is the fact that, as of June 2016, mother was noncompliant with the treatment plan developed by the substance abuse counselors, not participating in behavior health services, and unwilling to participate in an intensive treatment program or a rehabilitation plan. While mother participated in visitation, she failed to maintain contact with the Department since the June 2016 six-month review hearing, made little effort to avail herself of available services to remain free of illegal substances over the course of the proceedings and, despite her claims of progress, had attempted suicide just two months prior to the section 366.26 hearing. On the other hand, the minors were doing well in their out-of-home placement, were bonded to their caretakers, and were safe and well cared for by their caretakers, with whom they had been placed since their removal from mother's custody a year prior.
Mother asserts the juvenile court should have ordered a permanent plan of legal guardianship and claims that even the maternal grandmother was "equivocal in her desire for adoption over guardianship." Mother's assertion is belied by the record, which establishes that although C.M. struggled with the idea of terminating mother's parental rights (due to her love for her daughter), she was nonetheless emphatic that she wanted a permanent plan of adoption for the children.
Finally, mother contends in her reply brief that, while she may have failed to fully participate in her case plan, she "never expressed any lack of motivation to obey court orders or to participate in drug rehabilitation." She notes that, at the time of the section 366.26 hearing, she was on a waiting list for a rehabilitation program and had been clean and sober for three months. While motivation to do what is required is commendable, it does not equate to actually doing what is required. For example, over the course of the proceedings—nearly 12 months—mother often expressed a commitment to reunification and a desire for mental health and substance abuse services. Despite that expression of commitment and desire, however, mother was often noncompliant with substance abuse testing services and the treatment plan developed by the substance abuse counselors, declined to participate in behavior health services, was unwilling to participate in treatment or rehabilitation programs, and often failed to maintain consistent communication with the Department or to actively participate in Family Wellness Court, causing her termination from the program. Despite a desire to enter a rehabilitation program, mother failed to make the appropriate contacts with Behavioral Health and declined to participate in an intensive treatment program or a rehabilitation plan. Children are not required to wait for a motivated parent to actually follow through with their case plan to ameliorate the issues that resulted in removal of the children from the parent's custody.
The record makes plain that there is insufficient evidence to demonstrate the benefit of a continued relationship with mother outweighed the well-being of the minors in a permanent home with their prospective adoptive parents. The juvenile court did not err in finding the beneficial parental relationship exception to adoption (§ 366.26, subd. (c)(1)(B)(i)) does not apply. B. Compliance with the ICWA Notice Provisions
Mother contends the Department failed to comply with the ICWA notice provisions and, in particular, failed to file pertinent ICWA-related documents in the juvenile court in violation of applicable California Rules of Court and case law. She claims any failure to preserve the ICWA issue for appeal was the result of ineffective assistance of counsel.
Undesignated rule references are to the California Rules of Court. --------
The Department claims the record contains substantial evidence of its compliance with the ICWA, mother failed to object to reports indicating the ICWA did not apply, conditional reversal to make an adequate ICWA record would be pointless because mother has no evidence to suggest Indian heritage as to either minor, and any failure of ICWA compliance is harmless error.
As we shall explain, the Department's failure to file any documents, other than its own reports, demonstrating compliance with the ICWA requires conditional reversal and remand for further limited proceedings.
1. Background
At the September 10, 2015, detention hearing, the juvenile court found mother and S.A. were provided with parental notification of Indian status forms. The court's findings and orders after the hearing reflect the court's order for mother and S.A. to complete the applicable ICWA form (ICWA-020) and submit the completed form to court before leaving the courthouse.
The jurisdiction reports filed September 24, 2015, the disposition reports filed November 13, 2015, the status review reports filed March 10, 2016, the six-month status review report filed June 3, 2016, and the section 366.26 report filed September 16, 2016, all stated ICWA "does not apply."
According to a document entitled "Adoption Agency W.I.C. 366.26 Assessment" attached to the section 366.26 report filed September 16, 2016, the status of the ICWA inquiry was as follows: "[T.G.] does not have Native American heritage; therefore, ICWA does not apply. [K.A.] does have Native American heritage from the Cherokee Nation through his paternal side of the family. He does not come within the provisions of the ICWA. The Cherokee tribes were noticed and letters were received stating that [K.A.] was not eligible for enrollment. On September 10, 2015, the Modoc County Juvenile Court found ICWA does not apply to either child."
On February 13, 2017, mother filed a motion to augment the record on appeal with all parental notice of Indian status forms completed by mother and the two fathers, all ICWA notices served by the Department on any Indian tribes and the Bureau of Indian Affairs (BIA), and any responses thereto by any Indian tribe, the BIA, or any other agency or organization. Mother's motion argued the requested ICWA documents should have been filed with the juvenile court pursuant to rule 5.482(b). This court granted mother's motion to augment on February 22, 2017.
On May 11, 2017, this court received from the clerk of the Modoc County Superior Court a 22-page reporter's transcript of the detention hearing and a declaration stating as follows: "1. The clerk's transcript prepared for this appeal includes all filed documents contained in the court file that we received from Modoc County. [¶] 2. Any Parental Notifications of Indian Status, Notices of Hearing, Proofs of Service, and Notices of Child Custody Proceeding for Indian Child that were in the court file were included in the clerk's transcript. [¶] 3. I am not aware of any Parental Notifications of Indian Status, Notices of Hearing, Proofs of Service, or Notices of Child Custody Proceeding for Indian Child other than those included in the original clerk's transcript." With the exception of the aforementioned, no additional documents were received by this court with which to augment the appellate record.
2. Analysis
The ICWA's purpose is to protect the interests of Indian children and promote 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; In re Levi U. (2000) 78 Cal.App.4th 191, 195-196.) The juvenile court and the Department have "an affirmative and continuing duty to inquire" whether a child is, or may be, an Indian child. (§ 224.3, subd. (a); rule 5.481(a).) If, after the petition is filed, the court "knows or has 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 BIA if the tribal affiliation is not known. (§ 224.2; see rule 5.481(b); 25 U.S.C. § 1912; In re Robert A. (2007) 147 Cal.App.4th 982, 988-989.) "Proof of notice filed with the court must include Notice of Child Custody Proceeding for Indian Child (form ICWA-030), return receipts, and any responses received from the Bureau of Indian Affairs and tribes." (Rule 5.482(b).)
The purpose of the ICWA notice provisions is to enable the tribe or the BIA to investigate and determine whether a child is an Indian child. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422.) Notice must include all of the following information, if known: the child's name, birthplace, and birth date; the name of the tribe in which the child is enrolled or may be eligible for enrollment; names and addresses of the child's parents, grandparents, great-grandparents, and other identifying information, and a copy of the dependency petition. (§ 224.2, subd. (a)(5)(A)-(D); In re Mary G. (2007) 151 Cal.App.4th 184, 209.)
Here, according to the adoption assessment, the Department knew T.G. "does not have Native American heritage" and K.A. had "Native American heritage from the Cherokee Nation through his paternal side of the family." The assessment stated the Department sent notices to "[t]he Cherokee tribes" and received letters in response "stating [K.A.] was not eligible for enrollment." Because the record contains no other documentation regarding the Department's ICWA inquiry and noticing, it is impossible to determine: (1) what information, if any, was provided by mother, the two fathers, or others; (2) which "Cherokee tribes" were noticed; (3) whether the BIA or the Department of the Interior were noticed; (4) whether those notices were sufficient; and (5) if and when responses to those notices were received by the Department.
"[E]rrors in an ICWA notice are subject to review under a harmless error analysis. [Citation.]" (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1415.) Error is not presumed. It is mother's obligation to present a record that affirmatively demonstrates error. (In re D.W. (2011) 193 Cal.App.4th 413, 417-418.) Mother has met that burden by presenting a record devoid (through no apparent fault of her own) of evidence to establish either the Department's ICWA compliance or the juvenile court's basis for determining the ICWA does not apply to either minor. Given the state of the record, it is impossible for us to determine whether the Department fulfilled its notice obligations under the ICWA or whether the juvenile court properly concluded the ICWA does not apply to the two minors.
The Department makes several arguments that it fulfilled its ICWA obligations, none of which have merit. First, the Department argues various courts have upheld arguably insufficient ICWA inquiries, citing In re K.M. (2009) 172 Cal.App.4th 115 (K.M.) and In re Z.N. (2009) 181 Cal.App.4th 282 (Z.N.). Both are distinguishable.
In K.M., the mother alleged Cherokee ancestry. (K.M., supra, 172 Cal.App.4th at p. 117.) The agency sent notices containing only the names and addresses of the mother and the presumed father to the BIA and three different Cherokee tribes. (Ibid.) Mother then referred the social worker to maternal grandmother for additional information. (Id. at pp. 117-118.) Maternal grandmother indicated that she had Choctaw ancestry and her ex-husband had Cherokee ancestry. (Id. at p. 118) She provided birthdates for herself and her ex-husband, along with names of the child's great-grandparents, who she indicated also had Indian ancestry. (Ibid.) The maternal grandmother refused to provide the investigating agency with more detailed information. (Ibid.) The social worker spoke with the mother again and obtained additional information (i.e., the names of the paternal grandmother and the maternal great-grandparents, and that the grandmother and grandfather had Cherokee and Choctaw heritage), and the agency sent additional notices containing the new information to the Cherokee and Choctaw tribes and the BIA. (Ibid.) None of the tribes determined the minor was eligible for enrollment. (Ibid.) At the section 366.26 hearing, the juvenile court found the ICWA did not apply. (Ibid.) The court of appeal affirmed, finding the agency "did all that can or should be reasonably expected of it to meet its obligation to the child, to the family, to the tribes and to the court" despite the hostility and lack of cooperation from the mother's family. (Id. at p. 119.)
In stark contrast to K.M., here there is no evidence of uncooperative parents and, more importantly, the record is devoid of a single piece of evidence, other than the somewhat self-serving statement in the adoption assessment attached to the section 366.26 report, reflecting what if any information was provided by the parents, what information was sent to which "Cherokee tribes," and what response if any was received by those tribes. Consequently, we simply have no way of determining if the Department did indeed do all it could or should have been reasonably expected to do to meet its obligations under the ICWA.
In Z.N., the disposition report (which addressed two twin minors who were the subject of the appeal and three additional half-siblings who were not) stated the ICWA " 'does or may apply,' " noting the father of one of the half-siblings reported no Indian ancestry and the mother reported her maternal grandmother was Cherokee and her paternal grandmother was part Apache. (Z.N., supra, 181 Cal.App.4th at p. 297.) The report also stated the mother " ' "is not registered with any tribe and does not believe her mother established any affiliation," ' " provided the name of the maternal grandmother, and stated the father of another half-sibling " ' "is African American." ' " (Ibid.) A subsequent addendum reiterated that the ICWA may apply "for possible Apache and/or Cherokee tribal eligibility" and stated the father of one of the half-siblings reported " 'that he might have Native American ancestry.' " (Z.N., supra, at p. 297.) Neither the report nor the addendum provided any specific information regarding the minor twins. (Ibid.) In that regard, the record contained only the bare, unexplained statement in several of the agency's reports that the ICWA did not apply, and contained no tribal notices related to the minor twins. (Z.N., supra, at p. 297.)
The court of appeal in Z.N. affirmed the juvenile court's determination that the ICWA did not apply to the twin minors. (Z.N., supra, 181 Cal.App.4th at p. 298.) The court concluded the duty to notify tribes was not triggered by "the scant and general information available to the court" and found no ICWA error. (Z.N., supra, at p. 298.) Noting that while mother believed "one of her grandmothers 'was Cherokee' and another 'part Apache' (tribes unidentified)," she herself was not registered and did not believe the maternal grandmother established any tribal affiliation, the court further concluded the status of the minors' great-grandmothers was unimportant as it "did not suggest that the twins were members or eligible for membership as children of a member." (Ibid.)
To assess whether there was resulting prejudice to any affected tribe, the appellate court in Z.N. took judicial notice of tribal notices and return receipt requests (regarding the half-siblings) sent by the investigating agency to 11 Apache and Cherokee bands, tribes, or nations, which included information as to both parents and copies of the dependency petition and, as evidenced by the attached proof of service, had been mailed to the mother's counsel, (Z.N., supra, 181 Cal.App.4th at pp. 299-302) who "surely would have seen all of the tribal addressees and known of the ICWA efforts." (Id. at p. 302.) The court agreed the judicially noticed documents "show[ed] no Cherokee or Apache membership or eligibility for the half siblings, based in part on mother's information," adding, "[i]t follows that there is no reason to believe that the result would be any different if the notices were reissued on remand for an assessment [as to the twin minors] based on mother's information alone. There is no argument, or suggestion whatsoever, that the twins' father had or claimed any Indian ancestry." (Ibid.)
Like K.M., Z.N. is distinguishable based on the appellate court's ability to assess judicially-noticed ICWA notice and inquiry documents, copies of which had also been provided to the mother's counsel. Here, there were no such documents filed by the Department or served on all parents' counsel. And here, unlike Z.N., it was the paternal side of K.A.'s family that claimed possible Indian heritage, a point which could potentially render a different result on remand regardless of whether mother offered evidence to suggest Indian heritage as to either minor or that a limited remand would produce a different result based on her information alone.
Next, the Department likens this case to In re E.W. (2009) 170 Cal.App.4th 396 (E.W.). There, however, the appellate court concluded the juvenile court made an implicit determination that ICWA applied based on a record that included social workers' reports which "specifically discussed the ICWA issue and included documentation of the notices sent and the negative responses received from the tribes," (E.W., supra, at p. 404) and several of which specifically discussed the ICWA issue and repeatedly noted the ICWA did not apply. (E.W., supra, at pp. 404-405.) Such is not the case here. But for the court's September 10, 2015, order instructing mother to complete and submit the ICWA form, the numerous subsequent reports stating ICWA "does not apply," and the ICWA status contained in the September 16, 2016, adoption assessment, the record is devoid of documentation of notices sent to the tribes, the BIA, or any other agency or organization or of the negative responses received from those tribes or other entities. Again, that key aspect is not only what distinguishes E.W. from the facts here, but is also fatal to the Department's compliance argument.
Finally, the Department relies on In re Cheyanne F. (2008) 164 Cal.App.4th 571 (Cheyanne F.). That reliance is misplaced. In Cheyanne F., the parents submitted parental notification of Indian status forms. (Id. at p. 574.) The mother reported no Indian ancestry, and the father reported he was a registered member of the Blackfoot tribe. (Ibid.) The investigating department sent DPSS Notices of Involuntary Child Custody Proceedings (form JV-135) to Indian Child and Family Services, the BIA, and the Blackfeet Tribe. (Ibid.) The JV-135 forms included all of the information provided by the father but omitted virtually all of the information provided by the mother, including her place of birth and the names of her parents and grandparents. (Ibid.) At the jurisdiction and disposition hearing, the father informed the court that he was a registered member of the Blackfeet Tribe, and the court ordered him to provide tribal membership information to the department. (Ibid.) The father was never able to provide his membership information, nor was he able to provide the department with any contact information or tribal membership information for the paternal grandfather. (Ibid.) The paternal grandmother was also unable to provide any further information to assist in establishing the father's tribal membership or eligibility, and told the department neither she nor the paternal grandfather had ever registered the father with the tribe. (Ibid.) The tribe eventually responded to the form JV-135, stating it required additional information regarding extended family members in order to determine the minor's eligibility, and requesting that the department complete a family tree chart. (Ibid.) The department filled out the chart with information obtained from the parents and provided it to the tribe. (Id. at pp. 574-575.) However, the tribe responded with a letter stating the information was insufficient and without additional information, it could not determine the minor's tribal eligibility. (Id. at p. 575.) Based on the department's representation that it had no further information, the juvenile court found the ICWA did not apply. (Cheyanne F., supra, at p. 575.)
The appellate court in Cheyanne F. held the errors and omissions in the notice, which was "undisputedly" received by the tribe, was harmless. (Cheyanne F., supra, 164 Cal.App.4th at p. 576.) The court concluded that, "in the absence of any indication that information concerning [the mother's] family was relevant to the tribe's inquiry, there is no basis upon which to conclude that the outcome would have been different if [the department] had provided [the mother's] place of birth and the information concerning her parents and grandparents." (Id. at p. 577.)
Again, the case upon which the Department relies, Cheyanne F., differs in one key respect—the record both below and on appeal contained documentary evidence of ICWA inquiry and compliance, including the form JV-135 filled out by the parents, the notices prepared by the department and mailed to the relevant tribes, and the tribes' responses to those notices. The record here contains no such evidence. While we acknowledge that adequate ICWA compliance can be found on a record that otherwise lacks the breadth of detailed evidence preferable to demonstrate the efforts made by the investigating agency, the dearth of such evidence here is simply too difficult to overcome, leaving more questions than answers regarding the basis for the juvenile court's final determination that the ICWA does not apply.
We reject the Department's arguments that mother failed to object to reports indicating the ICWA did not apply. Because the primary purpose of the ICWA is to benefit the tribes, a parent does not forfeit a claim of ICWA notice violation by failing to raise it in the juvenile court. (In re J.T. (2007) 154 Cal.App.4th 986, 991; Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 783, fn. 1.) As for the Department's argument that any failure of ICWA compliance is harmless error, we cannot determine from the record what information was provided by either of the minors' fathers (or by mother for that matter), and therefore we cannot say with certainty that the notices were legally sufficient or that there is no prejudice to the relevant tribes. As such, we cannot say the failure of ICWA compliance was harmless. We must therefore remand for limited ICWA proceedings.
III. DISPOSITION
The juvenile court's order terminating parental rights is reversed and the matter is remanded to the juvenile court for limited proceedings to determine ICWA compliance. If, at the conclusion of those proceedings, no tribe indicates either minor is an Indian child within the meaning of the ICWA, then the juvenile court shall reinstate the order terminating parental rights. In all other respects, the judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
NICHOLSON, Acting P. J. /S/_________
HOCH, J.