Opinion
A130194 Solano County Super. Ct. No. J38932
08-16-2011
In re R.S. v. , a Person Coming Under the Juvenile Court Law. SOLANO COUNTY DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Plaintiff and Respondent, v. R. v. , Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
I. INTRODUCTION
In August 2010, this court denied a writ petition pursuant to which R.V. (Father) challenged a juvenile court order terminating reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26 to implement a permanent plan for his son R.S.V. (R.S.). Father now appeals from an order terminating his parental rights to R.S., who will soon celebrate his third birthday.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Father contends the order terminating his parental rights must be reversed because: (1) he did not knowingly or voluntarily waive his right to a trial of this matter; (2) he was denied the effective assistance of counsel; (3) the Department failed to comply with the notice requirements of the Indian Child Welfare Act; and (4) R.S.'s mother was not given proper notice of the section 366.26 hearing. We reject these contentions and affirm the order.
II. FACTS AND PROCEDURAL HISTORY
A detailed statement of the facts which gave rise to this dependency case and the events that occurred prior to the section 366.26 hearing can be found in this court's August 3, 2010, decision denying Father's writ petition. (R.V. v. Superior Court (Aug. 3, 2010, A128421) [nonpub. opn.].) For our purposes, this abbreviated summary will suffice.
The juvenile court detained R.S. in October 2008. His mother, S.A., who had previously lost custody of six children, left R.S. at the hospital the day after he was born, with no plan for his care. The Solano County Health and Social Services Department (the Department) contacted Father, who requested custody but also admitted he was using methamphetamines. Father had previously lost custody of another child after reunification efforts failed, had a 20-year arrest record reflecting multiple drug-related convictions and was on parole for drug-related offenses.
In late November 2008, R.S. was placed in foster care with a family who had previously adopted one of R.S.'s maternal half-siblings.
The juvenile court exercised jurisdiction over R.S. in January 2009, after Father stipulated to an allegation that he had "a history of substance abuse that has interfered with his ability to provide appropriate care, custody, supervision and support for [R.S.'s] half sibling." Father also admitted that he used methamphetamine as recently as October 27, 2008. Father was granted reunification services at the February 2009 disposition hearing. By that time, Father was enrolled in a residential drug treatment program that did not allow children, but his plan was to complete the program and then obtain housing for himself and R.S.
A six-month review was conducted in August 2009. The Department recommended that the juvenile court terminate services to Father and set a hearing pursuant to section 366.26. Between February and May 2009, Father had participated in a parenting class, had unsupervised weekly visits with R.S. which went well, and successfully completed his residential treatment program. However, after Father completed residential treatment on May 4, he lied to the Department social worker about his plans, gave her inaccurate contact information, and violated the terms of his parole by failing to report to a clean and sober transitional living facility. On June 4, Father was arrested for a parole violation and was sent to San Quentin. Meanwhile, R.S. was doing well and bonding with his foster family who expressed a desire to adopt him.
Father contested the Department's recommendation. He admitted that he had relapsed after he completed residential treatment by drinking alcohol, but denied that he took any illegal drugs. He explained that he had been devastated by news of a family death and maintained that he was still committed to reunifying with R.S. The six-month review hearing was continued for a contest which was never held. Instead, the parties reached an agreement to provide Father with additional services until the 12-month review.
After his release from San Quentin in early August 2009, Father joined the "Rays of Hope" program, a Christian-based clean and sober living facility that provided assistance with employment, housing and a drug-free life. He had frequent random drug tests, most of which were negative. However, an August 6, 2009, hair strand test was positive for methamphetamine. When confronted with this test result, Father admitted that, contrary to what he had previously claimed, he did use methamphetamine during his May 2009 relapse. In the fall and winter of 2009, Father completed a parenting program and participated in outpatient drug treatment which involved group and individual sessions three times a week and frequent random drug tests. In January 2010, Father moved into transitional housing and applied for a job at Goodwill. He received public assistance and had purchased a truck and insurance. He had weekly supervised visits with R.S and requested unsupervised overnight visits.
A 12-month review hearing commenced in February 2010, after several continuances. The Department's recommendation was to provide Father with an additional six months of services. The Department remained concerned by the risk associated with a placement of R.S. with Father, but was also impressed with Father's progress and his active participation in services after his release from prison.
At the 12-month review hearing, the juvenile court granted the foster parents' request for de facto parent status and continued the hearing after R.S.'s counsel contested the Department's recommendation. After much discussion, the matter was continued to April 2010, for a contested combined 12 and 18-month review, so the Department would have more time to observe Father's progress and decide whether to recommend a return of the child to his care.
The contested hearing was held over several days in April 2010, before the Honorable Garry T. Ichikawa. By that time, the Department was recommending that R.S. be placed with Father. Since February, Father had been allowed unsupervised visits with R.S. twice a week. Overnight visits commenced in March. The Department acknowledged that the "risk of future maltreatment" associated with placement with Father was "moderate." However, despite his long history of substance abuse, Father had demonstrated a "pattern of abstinence" for seven months and actively participated in treatment and recovery services. The Department's primary goal, therefore, was to place R.S. with Father and provide maintenance services. The secondary goal and concurrent plan was adoption by the foster parents.
At the contested hearing, the Department presented evidence that, since early August 2009, Father had committed himself to recovery, participated in programs, and received positive reports. He visited R.S. on a regular basis and the visits were positive. Also, he was very receptive to support from the Department and accepted feedback from the foster parents. The social worker testified that the Department had already begun the process of transitioning R.S. to Father's home. The foster family did not support that transition; they wanted adoption to be the primary plan. The social worker acknowledged that R.S. had bonded with the foster family but also confirmed that, in her experience, children with the ability to make close attachments could transfer those attachments. She also noted that R.S. had an attachment with Father.
In an order filed April 29, 2010, the juvenile court found that Father made substantial progress on his case plan, but that, despite his progress, returning R.S. to his care would create "a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." The court also found that, because Father had already received 18 months of services, it could only extend the service period under exceptional circumstances, or for the best interest of the child. The court concluded that neither of these conditions was satisfied. Therefore, services were terminated and a section 366.26 hearing was set. B. The Writ Petition
As noted above, Father filed a writ petition to challenge the April 2010 order. The Department supported Father's petition, while the de facto foster parents and the attorney who represented R.S. opposed it. Father and the Department made two primary arguments: (1) the juvenile court's finding that placing R.S. with Father would create a substantial risk of detriment to R.S.'s safety, protection, or physical or emotional well-being was not supported by substantial evidence, and (2) the juvenile court abused its discretion by refusing to provide Father with an additional period of reunification services.
We found that the lower court's detriment finding was supported by substantial evidence. As we explained, "[t]he record shows that Father participated in three prior treatment programs, graduated from all and relapsed all three times. The most recent relapse in May 2009 occurred when Father was especially well-supported and was in the process of moving toward reunification with R.S. At that time, Father did not contact any of the people who were available to support him including, counsel, treatment providers or the Department. Instead, he lied about transition housing and relapsed. Father also lied to the social worker about not using drugs during his relapse and he maintained that lie until he was confronted with a positive drug test. Although some of the circumstances may be different this time, we agree with the trial court that there are many similarities as well. Father has not demonstrated that he can remain drug free when he is out of treatment. Therefore, as the lower court found, the chance of relapse remains unacceptably high."
We also rejected the contention that the juvenile court abused its discretion by refusing to extend the reunification period beyond 18 months pursuant to section 366.22, subdivision (b). Specifically, we found that, contrary to arguments advanced by Father and the Department, the record supported the trial court's finding that extending services beyond the 18-month statutory deadline was not in the minor's "best interest." (§ 366.22, subd. (b).) The evidence established that: "R.S. has lived with his half sibling and foster parents since he was a month old. They have given him a stable home and they are the only family he has ever known. Furthermore, they offer permanence because they are, and always have been, ready and willing to adopt R.S. Father, on the other hand, did not go to the hospital after R.S.'s birth, either to visit his child or to keep his appointment with the Department social worker, because he was taking drugs. He lost contact with R.S. and the Department for a few months during the reunification period because he relapsed, and then he was unable to visit R.S. for a few more months during his incarceration. There is evidence that Father formed a relationship with R.S. after his release from prison, although his visitation record was not perfect. However, despite Father's recent successes, at the conclusion of 18 months of services, Father was still not in a position to offer R.S. a safe or stable home. Father has struggled with drug addition for his entire adult life and lost custody of an older child." C. The Current Proceeding
1. The Department Report and Recommendation
After this case was remanded, the Department filed its section 366.26 report on August 11, 2010. The Department updated the juvenile court about the status of this case and recommended termination of parental rights and a permanent plan of adoption.
The Department reported that Father had been clean and sober for approximately one year, that he still lived at the Bridges to Life facility, worked for Good Will and that he also worked as a handyman. Father continued to have unsupervised visits, even after reunification services were terminated. The twice weekly visits went well "[f]or the most part." In addition, Father attended weekly therapy sessions with R.S., with good reports. Father was engaged to a woman who had been clean and sober for five years. He was on unsupervised parole with a projected completion date in October 2010. Father reported that he attended NA/AA meetings and facilitated two men's recovery groups.
The Department had recently located R.S.'s mother, S.A. who was now living in San Mateo County. S.A. gave birth to a baby girl in mid-July 2010 and a member of the hospital staff who was concerned about S.A.'s ability to care for the baby contacted a social worker. S.A. reported that Father is the father of her new baby, although she said she was not in contact with him and did not know how to reach him. S.A. reported that she had moved to San Mateo three months before the baby was born and had stopped using illegal drugs at the time. She had signed a voluntary placement agreement and then entered residential treatment with the intention of keeping this baby.
This revelation was troubling since Father had told the social worker that he had not seen S.A. since shortly after R.S. was born.
The Department reported that R.S. was physically healthy and developmentally on target. There were no concerns about his emotional health, and he had a healthy attachment to his prospective adoptive parents. A July 27, 2010, adoptability review confirmed that R.S. was adoptable; he was healthy, able to bond to parental figures, and placed with caregivers who were willing and committed to adopting him. R.S. had enjoyed a child-parent relationship with the prospective adoptive parents for 21 of his 22 months, he was attached to them and they treated him like their own son "in every way." They understood the legal and financial responsibilities they would have and were "100% committed to the permanent plan of adoption."
The Department emphasized R.S.'s need for a stable permanent family. It acknowledged that Father had maintained regular visitation but also reported that the prospective adoptive parents had agreed to continue visitation, had already participated in mediation and were willing to sign a post adoption contact agreement. In any event, the Department opined that the benefits of adoption outweighed the relationship between R.S. and Father: "[R.S.] has been in foster care for twenty-one months, which is a substantial period of time for such a young child. [R.S.] has never lived with his father. [R.S.] has lived with his prospective adoptive parents since he was four weeks old. [Father] has a substantial substance abuse history and a long criminal history that have interfered with his ability to parent two of his children. He has not been stable for a significant amount of time. He has been out of prison for one year. [R.S.] needs the stability that adoption provides. [R.S.'s] relationships with his caretakers are that of child and parents. Termination of parental rights is not detrimental to the child and adoption is in the best interest of the child."
2. The Hearing
The section 366.26 hearing commenced August 26, 2010. Counsel for the Department advised the court that the parties had reached an agreement that Father and the de facto parents would attempt to mediate a post-adoption contact agreement. All the parties agreed that Father and the de facto parents and their counsel could have a private informal meeting with the court to pursue that matter before proceeding with the section 366.26 hearing. Therefore, the court continued hearing to September 9.
At the September 9, 2010, hearing, Father's counsel reported that the parties had "worked with the Consortium For Children on reaching a post-adoption visitation agreement," and that all of the parties agreed that the visitation issue had been resolved. Therefore, counsel continued, "[o]ur request today is that [Father] is prepared to submit on the recommendation set forth by the Department in the 366.26 report with the understanding that that agreement will be essentially finalized once we receive the paperwork from the Consortium for Children." Counsel stated that, in the meantime, she and the de facto parents' attorney had drafted an "adopt 310 agreement, as well as an attachment that sets forth the specifics of the terms of visitation" and they requested that the court hold this agreement in the file until it received "the actual official agreement" from the Consortium for Children. Counsel concluded by stating that "with that understanding in mind, [Father] would be prepared to submit at this time on the recommendation set forth in the report."
The juvenile court asked for reactions from each party. Counsel for the de facto parents, the Department and R.S. all agreed to the proposal and all commended Father and the de facto parents for working together to do what was best for R.S. The court then discussed the matter with Father to make sure he understood what was happening. The court stated: "Do you understand that the plan for this morning is that you're going to submit on the basis of paperwork that I've already read whether or not the Department has properly conducted itself and that reunification efforts have been terminated, that the proper plan for [R.S.] is going to be adoption and that your parental rights will be terminated. [¶] Do you understand that that is what is occurring this morning?" Father responded that he did understand.
The court then asked Father whether he understood that he had a "right to have a hearing on those issues" and that he would be "giving up that right to hold an actual hearing where you could present evidence and cross-examine witnesses." Father said that he did.
The court then asked whether Father also understood that it was "extremely likely" the court would find that the Department had carried its burden with respect to the issues at the hearing including the selection of adoption as the permanent plan and the termination of parental rights, and that Father would be giving up his constitutional rights to have a hearing, to cross-examine witnesses, to present evidence, and all the other trial rights he would have at such a hearing. Father responded that he understood all of this. He also confirmed for the court that nobody had threatened him, that the only promise that had been made to him was "the promise of visitation orders being included in the adoption case," and that this was something Father actually wanted to do.
After this exchange with Father, the court made the following statement: "I'm going to find that [Father's] waiver of his right to have a hearing is freely and voluntarily made with knowledge of the consequences." At that point, the matter was submitted by counsel for each party.
Proceeding to the substantive issues, the court terminated the parental rights of both Father and S.A. and selected adoption as the permanent plan for R.S. The court stated: "And just to summarize, the permanent plan is adoption. Visitation shall occur as described in their agreement. I'm going to terminate visitation between [R.S.] and his mother, [S.A.]. His placement with the [de facto parents] is appropriate and necessary. I'm going to find that the agency has complied with the case plan, and the child will remain a dependent. Prior orders will remain in place."
After addressing other related matters, including Father's right to appeal, the court shared some additional comments which were intended to "echo" comments already made by the attorneys in this case. The court observed that it did not have the power to dictate this outcome, that it would have had to make a yes or no decision and it did not believe that a yes or no decision would have been best for R.S. in this case. The court stated that R.S. had bonded with both Father and with the de facto parents and, if the case had proceeded to a hearing, the court would have had to choose one or the other. The court then said, "I think it is in [R.S.'s] best interest to have continuing contact with both of his—with all of the important people in his life, and your agreement is what made it possible." Therefore, the court thanked everyone for their hard work, especially the four sets of attorneys who "did a remarkable job" and "should be commended."
The court's section 366.26 order and the "Contact After Adoption Agreement," which was referred to at the hearing as an "adopt 310 agreement," were filed with the court on September 14, 2010. The agreement provides for visits twice a month, and on specified holidays and special occasions. It imposes no restrictions on phone contact. It requires Father to submit to random drug testing and it imposes increasingly more serious consequences for positive drug tests.
III. DISCUSSION
A. The Waiver
Father contends that his due process rights were violated because he did not make a knowing and intelligent waiver of his right to a trial.
"Because parents enjoy a fundamental liberty interest in the care, custody and control of their children, parental rights cannot be terminated except according to procedures that satisfy due process. [Citation.] At the same time, constitutional rights may generally be waived, provided the waiver is knowing, voluntary, and intelligent. [Citation.] In particular, constitutional rights to a parent-child relationship may be waived as long as the waivers are 'voluntary [citations] and knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.' [Citations.]" (Tyler v. Children's Home Society (1994) 29 Cal.App.4th 511, 545-546.)
Contrary to Father's contention on appeal, there is substantial evidence in this record to support the juvenile court's finding that Father made a knowing and intelligent waiver of his right to a trial of the issues that were resolved at the section 366.26 hearing. As reflected in our factual summary above, the court engaged in a direct and detailed inquiry with Father at the hearing in order to ensure that Father understood his rights, that he was giving up those rights and that he wanted to submit on the Department's recommendation.
Father's argument as to why his waiver should be deemed ineffective is long, confusing and poorly reasoned. For the sake of clarity, we will parse his argument and highlight its most glaring flaws.
Because so many of the arguments advanced by Father's counsel on appeal are both unnecessarily convoluted and lacking in substantive merit, we feel compelled to caution counsel that overzealous advocacy serves no just end.
1. The Beneficial Parent-Child Relationship Exception
Father contends he did not make a knowing and intelligent waiver because the juvenile court failed to ensure that Father understood he was waiving his right to argue that there is a statutory reason not to terminate parental rights in this case.
"At a permanency planning hearing, the court may order one of three alternatives: adoption, guardianship or long-term foster care. [Citation.] If the dependent child is adoptable, there is a strong preference for adoption over the alternative permanency plans. [Citations.] [¶] Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). [Citations.]" (In re S.B. (2008) 164 Cal.App.4th 289, 296-297 (S.B.).)
In the present case, Father does not dispute that R.S. is adoptable and, therefore, Father would have had the burden of establishing a statutory exception to avoid termination of his parental rights. However, Father maintains that in order for him to have made a knowing and intelligent waiver of his right to a trial, the juvenile court was required to advise him that he was giving up the right to argue that there was a statutory reason not to terminate his parental rights in this case.
If Father is suggesting that a valid waiver of the right to a trial at a section 366.26 hearing requires the court to specifically discuss every provision of section 366.26, we strongly disagree. We find no case authority and can conceive of no logical reason to impose such a burden on the juvenile court. The focus of the waiver inquiry should be on the procedural right which is being waived which, in this case, was the right to a trial. The record before us confirms that the juvenile court properly focused on that right by making sure that Father understood that, by submitting to the Department's recommendation, he was waiving the right to have a hearing at which he could present evidence and call witnesses in order to challenge the Department's recommendation.
Father's actual argument appears to be that the specific circumstances of this particular case required the juvenile court to expressly discuss with Father the possibility of invoking section 366.26, subdivision (c)(1)(B)(i), which we will refer to herein as the beneficial parent-child relationship exception. Under that exception, once the court makes a finding that the dependent child is adoptable, the court "shall" terminate parental rights unless it finds "a compelling reason for determining that termination would be detrimental to the child" because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."
Apparently Father believes that the evidence supporting the application of this statutory exception was so overwhelming in this case that he could not have knowingly waived his right to a trial without expressly waiving his right to invoke this exception. In our view, Father miscasts the juvenile court in the role of counsel or advocate. Absent any authority to support this novel and patently troublesome argument, we reject the notion that the juvenile court has some obligation to independently assess the strengths and weaknesses of the parent's case and tailor its waiver inquiry to address the specific nuances of legal issues that might otherwise be presented if the right to a trial was not waived.
An underlying theme of this entire appeal is that the beneficial parent-child relationship exception does apply in this case and therefore, Father's parental rights should not have been terminated. However, Father cannot directly challenge the sufficiency of the evidence to support the finding terminating his parental rights because he submitted on the Department's recommendation. (In re N.S. (2002) 97 Cal.App.4th 167, 170.)
2. The Post-Adoption Visitation Agreement
Father further confuses the matter by arguing that the juvenile court somehow erred by considering the post-adoption visitation agreement. According to Father, the court "injected an improper factor into the weighing process" by considering the de facto foster parent's willingness to allow R.S. to have "continued contact" with Father after his parental rights were terminated.
The record shows that the juvenile court did not "inject" this factor into the waiver discussion. Rather, Father's counsel expressly advised the court that Father and the de facto parents had executed a post-adoption visitation agreement, that Father and the de facto parents had agreed that the post-adoption visitation agreement would be made a part of the adoption case and that, in light of these developments, Father intended to submit on the Department's recommendation. Furthermore, all of the parties at the section 366.26 hearing requested that the agreement be made part of the record in the dependency case. Thus, if there was any error associated with the court's consideration of the post-adoption visitation agreement, it was invited.
In any event, Father fails to explain how or why the discussion of that agreement could conceivably have vitiated his waiver of his right to a trial in this case. Instead, he directs our attention to two cases which have nothing whatsoever to do with a waiver of the right to a trial prior to termination of parental rights, S.B., supra, 164 Cal.App.4th 289 and In re C.B. (2010) 190 Cal.App.4th 102 (C.B.).
In S.B., supra, 164 Cal.App.4th 289, the court reversed an order terminating parental rights for several reasons including that (1) the evidence established that the beneficial parent-child relationship exception applied and (2) the juvenile court erred by basing its decision to terminate parental rights in part on the fact that the prospective adoptive parents had expressed a willingness to allow father to continue to visit the child. As the court explained, "[w]e do not believe a parent should be deprived of a legal relationship with his or her child on the basis of an unenforceable promise of future visitation by the child's prospective adoptive parents." (Id. at p. 300.)
In C.B., supra, 190 Cal.App.4th 102, the court reversed an order terminating parental rights for several reasons including that the juvenile court may not have properly weighed relevant factors when it found that the beneficial parent-child relationship exception did not apply in that case. As the C.B. court explained, "if a juvenile court determines that a parent has 'maintained regular visitation and contact' (§ 366.26, subd. (c)(1)(B)(i)), that there is a 'substantial, positive emotional attachment' between child and parent benefitting the child [citation], and that the benefit from continuing that parent-child relationship in a tenuous placement 'promotes the well-being of the child to such a degree as to outweigh' the benefit that child would gain from the stability and permanency of adoption [citation], then the parent-child relationship exception is established. In those circumstances, the court cannot nevertheless terminate parental rights based upon an unenforceable expectation that the prospective adoptive parents will voluntarily permit future contact between the child and a biological parent, even if substantial evidence supports that expectation." (C.B., supra, 190 Cal.App.4th at p. 128.)
These cases support the proposition that a juvenile court may not properly consider whether the prospective adoptive parents are likely to allow continued contact between parent and child when deciding whether or not the beneficial parent-child relationship exception applies. But that issue was not before the juvenile court in this case and it is not before us in this appeal. Here the issue is whether Father made a knowing waiver of his right to a trial; Father submitted on the Department's recommendation and the court's task was to ensure that his wavier was knowing and voluntary. Father expressly advised the court that his waiver was based in part on a promise that the post adoption visitation agreement would be made part of the adoption case. Thus the agreement was clearly relevant and properly acknowledged by the juvenile court.
Taking a different and contradictory tact, Father faults the juvenile court for failing to ensure that Father "knew of a number of the enforcement limitations inherent in the post-adoption agreement which he had signed—limitations which were not mentioned in the agreement itself." Father contends that the court should have advised him that (1) a different judge might preside at the adoption hearing; (2) the judge at the adoption hearing might decide that the post-adoption visitation agreement was not in the best interest of the child; (3) Father would not have the assistance of counsel at the adoption hearing; (4) attempting to enforce the post-adoption agreement would require Father to complete paperwork and submit documentary evidence; (5) the post-adoption agreement was not a "promise" in the "traditional sense of the word"; (6) parental rights were going to be terminated before the final "paperwork from the Consortium for Children" was completed; (7) the post-adoption visitation contract would not preserve a legal parent-child relationship between Father and R.S.
By listing these seven complaints, we by no means find that they are factually or legally accurate. Suffice it to say there is absolutely no authority or sound logic for requiring the juvenile court to provide legal advice to a parent on issues of this nature in order to confirm that his waiver of a trial right is knowing and voluntary.
We do note for the record that the Contact After Adoption Agreement that Father signed before his parental rights were terminated contains this express "Notice": "After the judge grants the Adoption Request and approves this agreement, the adoption is still valid. It can never be canceled or changed even if one of the people signing this agreement: [¶] . . . Does not follow this agreement and/or [¶] . . . Files ADOPT-315 (to change, end, or enforce this agreement) . . . ."
3. The Court's Neutrality
Father contends that the juvenile court abused its discretion by accepting Father's waiver because the judge stepped outside of his role as a "neutral observer, " became personally involved, and advocated for a "good" result. We mention this argument only so we can expressly reject it. Beyond that, we decline to discuss Father's creative and sometimes offensive interpretations of the trial court's comments during the various hearings in this case.
4. Additional Inducements
Finally, Father contends that numerous statements made at the section 366.26 hearing constituted inducements that "likely" affected the voluntariness of his waiver. For example, he contends that the juvenile court "implied" that it believed the post-adoption visitation agreement was "fully enforceable" by referring to the agreement as a "promise." Father further contends that his own trial counsel's remarks and expression of gratitude to him were indications that she strongly advocated for the visitation agreement. Finally, Father argues that the Department's counsel strongly implied that the agreement was enforceable "without condition" by commending Father for thinking of the "child first" and working out an agreement that would "allow" R.S. to have both a stable home and a relationship with Father.
As factual arguments, these complaints stretch credulity too far. The transcript of the section 366.26 hearing establishes that Father was prepared to submit to the Department's recommendation at the outset of the hearing. He was not induced to waive his right to a trial by either the court's use of the word "promise" or the various expressions of gratitude and good will that were shared at the hearing itself.
Substantial evidence supports the juvenile court's finding that Father made a knowing and intelligent waiver of his right to a contested hearing on the issues resolved at the section 366.26 hearing. Therefore, we reject Father's contention that his due process rights were violated. B. Effective Assistance of Counsel
Father contends that his trial counsel failed to provide him with effective assistance "by encouraging her client to participate in the above-described procedures, and by consenting rather than objecting to them and proceeding to trial on the question of whether the [parent-child bond] exception to termination of parental rights, applied."
"To establish ineffective assistance of counsel in dependency proceedings, a parent 'must demonstrate both that: (1) his appointed counsel failed to act in a manner expected of reasonably competent attorneys acting as diligent advocates; and that (2) this failure made a determinative difference in the outcome, rendering the proceedings fundamentally unfair in that it is reasonably probable that but for such failure, a determination more favorable for [the parent's] interests would have resulted.' [Citations.] In short, appellant has the burden of proving both that his attorney's representation was deficient and that this deficiency resulted in prejudice. [Citation.]" (In re Dennis H. (2001) 88 Cal.App.4th 94, 98.)
" 'In general, the proper way to raise a claim of ineffective assistance of counsel is by writ of habeas corpus, not appeal. [Citations.] . . . [A]n ineffective assistance claim may be reviewed on direct appeal [only] where "there simply could be no satisfactory explanation" for trial counsel's action or inaction. [Citation.]' [Citations.]" (In re Darlice C. (2003) 105 Cal.App.4th 459, 463.)
In the present case, Father contends that there could be no strategic reason or satisfactory explanation for waiving his right to a trial on the beneficial parent-child relationship exception because (1) the evidence in his favor was so strong, and (2) the post-adoption visitation agreement was essentially useless. We reject both prongs of this argument.
First, the record before us does not compel or even support the conclusion that Father would likely have established that the beneficial parent-child relationship exception applied in this case. When a parent invokes that exception " '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.' [Citation.]" (In re C.F. (2011) 193 Cal.App.4th 549, 555 (C.F.).)
In the present case, Father places great weight on evidence of his positive visitation record during the period that he was not incarcerated. However, the "parent must show more than frequent and loving contact or pleasant visits. [Citation.] 'Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from day-to-day interaction, companionship and shared experiences.' [Citation.] The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment between child and parent. [Citations.] Further, to establish the section 366.26, subdivision (c)(1)(B)(i) exception the parent must show the child would suffer detriment if his or her relationship with the parent were terminated. [Citation.]" (C.F., supra, 193 Cal.App.4th at p. 555.)
Father's assumption that he could make the showing required to establish the beneficial parent-child relationship exception is speculation, unsupported by the evidence in this record. By the time of the section 366.26 hearing, the dependent child "is entitled to stability now, not at some hypothetical point in the future." (In re Megan S. (2002) 104 Cal.App.4th 247, 254.) Therefore, the statutory reasons not to terminate parental rights at this juncture, including the beneficial parent-child relationship exception, "merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption." (In re Celine R. (2003) 31 Cal.4th 45, 53.) Here, the record certainly does not compel the conclusion that this was such an extraordinary case. At the time of the section 366.26 hearing, Father was still on probation, was still living in transitional housing and had yet to prove that he could remain drug free when out of treatment.
We also reject Father's second contention, i.e., that he gained nothing by securing the post-adoption visitation agreement. Father is correct that the agreement that he executed prior to the termination of his parental rights was subject to several contingencies. "Postadoption contact agreements are intended to ensure children of an achievable level of continuing contact when contact is beneficial to the children and the agreements are voluntarily entered into by birth relatives, including the birth parent or parents, and adoptive parents." (Fam. Code, § 8616.5, subd. (a).) The court which presides over the adoption, not the court presiding over the dependency, decides whether the agreement was entered into voluntarily and is in the best interests of the child. (Fam. Code, § 8616.5, subd. (b)(1).) These determinations cannot be made until there is a final order terminating parental rights. (Fam. Code, § 8616.5, subd. (k).)
However, we do not share Father's opinion that, in light of these contingencies, there was no sound reason to forego the opportunity to contest the Department's recommendation and then, if he lost, to proceed to negotiate a post-adoption visitation agreement with the de facto parents. After an adoption has occurred, the juvenile court may order continued involvement between the child and the biological parent only if the adoptive parents have consented by voluntarily entering into a written agreement for post-adoption contact. (§ 366.26, subd. (a); § 366.29, subd. (c); Fam. Code, § 8616.5, subds. (a) & (c).) Absent such an agreement, the court has no power to undermine the authority of the adoptive parents by compelling visits between the child and the biological parent. (In re Kimberly S. (1999) 71 Cal.App.4th 405, 409; In re Sylvia R. (1997) 55 Cal.App.4th 559, 563.)
In the present case, if father had contested the Department's recommendation, he would have risked losing not only his parental rights, but any hope of future contact with R.S. Contesting the Department's recommendation would have meant opposing and likely alienating the de facto parents whose primary goal has always been to adopt R.S. After a potentially very acrimonious trial, the de facto parents may not have been willing to agree to any post-adoption contact between Father and R.S.
On this record, where the likelihood of establishing the beneficial parent-child relationship was not high, there was sound reason to join forces with the de facto parents prior to the section 366.26 hearing. That decision enabled Father to negotiate with the de facto parents in a non-adversarial environment and to reach an agreement. By his conduct, Father may also have significantly increased the likelihood that the court who would later preside at the adoption hearing would find that the negotiated agreement was in the best interest of R.S.
In summary, we find that Father has failed to establish that his attorney's representation was deficient. Under the circumstances, submitting on the Department's recommendation was a sound strategy. The beneficial parent-child relationship exception will be applied only in an extraordinary case and the likelihood of convincing the juvenile court that this was an extraordinary case was not high. Submitting on the recommendation avoided a potentially acrimonious confrontation with the de facto parents and helped preserve a positive relationship between them and Father. Submitting on the recommendation also enabled Father to secure the consent of the de facto parents to post-adoption visitation which was a pre-requisite for any court approved post-adoption contact between Father and R.S. C. The Indian Child Welfare Act
Father contends that the order terminating his parental rights must be reversed because the juvenile court violated the Indian Child Welfare Act, 25 United States Code section 1901, et. seq. (the ICWA).
1. Statutory Framework
"In 1978, Congress passed the ICWA, which is designed 'to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children "in . . . homes which will reflect the unique values of Indian culture . . . ." ' [Citations.]" (In re D. T. (2003) 113 Cal.App.4th 1449, 1453-1454 (D.T)
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. [Citations.] For purposes of ICWA, an 'Indian child' is one who is either a 'member of an Indian tribe' or is 'eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.' [Citation.] The juvenile court and social services agencies have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. [Citation.]" (In re K.M. (2009) 172 Cal.App.4th 115, 118-119.)
"Among the procedural safeguards included in the ICWA is a provision for notice, which states in part: 'In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify 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.' [Citation.] [¶] In addition, ICWA notice must include the following information, if known: the name of the child; the child's birth date and birthplace; the name of the tribe in which the child is enrolled or may be eligible for enrollment; names of the child's mother, father, grandparents and great grandparents or Indian custodians, including maiden, married and former names or aliases, as well as their birth dates, places of birth and death, tribal enrollment numbers, and current and former addresses; and a copy of the petition. [Citations.] [¶] 'Determination of tribal membership or eligibility for membership is made exclusively by the tribe.' [Citation.] The Indian status of a child need not be certain or conclusive to trigger the ICWA's notice requirements. [Citation.] (D. T., supra, 113 Cal.App.4th at pp. 1453-1454.)
2. The Department's Compliance Efforts
In the October 2008 petition that was filed at the outset of this case, the Department advised the court that R.S. might have Indian ancestry with the Blackfeet Indian tribe.
The February 2009 disposition report stated that, before S.A. abandoned R.S. in the hospital, she reported that she has Blackfeet Indian ancestry through her grandmother, Patsy W. Prior to the Disposition hearing, the Department sent ICWA notices and to received responses from both the Bureau of Indian Affairs (BIA) and the Blackfeet Indian Tribe. The BIA took the position that "tribal responses are final for ICWA determinations when tribes have been noticed." The Blackfeet Tribe notified the Department that R.S. was not eligible for membership in its tribe. Therefore, the Department requested that the juvenile court find that the ICWA does not apply in this case. In its disposition order, the court found that "[t]he Department has made reasonable efforts to comply with the notice requirements of the ICWA and ICWA does not apply."
In an August 2009 six-month status review report, the Department advised the juvenile court that it was in the process of "re-noticing" the Blackfeet Tribe about R.S.'s possible Indian heritage. After the Department received responses to its first set of notices, it discovered additional information about S.A.'s claimed Blackfeet heritage while reviewing the records in the dependency case of R.S.'s half brother (who had been adopted by R.S's foster parents). There S.A. had reported that her mother, Lori W., was born on a Blackfeet reservation in Montana. As noted in our factual summary above, the six-month status review hearing was never completed; the matter was continued for a contest which did not actually occur. However, an August 2009 minute order reflects that the juvenile court found that the Department was complying with the ICWA and that new notices had been sent to the Blackfeet Tribe.
In a January 2010 12-month status review report, the Department stated that the court had previously made a finding that the ICWA does not apply in this case and that that finding continued to be appropriate based on a recent response from the Blackfeet Tribe. The Department reported that it had provided the tribe with an updated notice in August 2009, and that the Blackfeet Tribe had advised the Department that it was unable to determine that R.S. was eligible for membership and, therefore, he was not an Indian Child within the meaning of the ICWA.
As noted in our factual summary above, the 12-month status review was continued several times and ultimately merged with the 18-month review, which was a contested proceeding. At the conclusion of that hearing, the juvenile court terminated reunification services and set the matter for a section 366.26 hearing. In connection with that order, the court made several express findings regarding ICWA compliance. Specifically, the court found: (1) the Department made "active inquiries" to obtain information about R.S.'s Indian ancestry; (2) in February 2009, the court made a finding that the ICWA did not apply "based on information provided to the Court" and the parents had not subsequently provided additional information; (3) the Department "has exercised due diligence to determine the child's Indian ancestry and has complied with the notice provisions of the ICWA"; and (4) the "ICWA does not apply."
In its August 2010 section 366.26 report, which was filed after this case was remanded by us, the Department included only this brief statement about the ICWA: "The Indian Child Welfare Act does not apply. On February 12, 2009, the Court found that ICWA does not apply."
At the conclusion of the section 366.26 hearing, the court made the following findings regarding ICWA compliance: (1) The Department "made active inquiries to obtain information regarding the child's Indian ancestry"; (2) "On 02/12/09 the Court made a finding that ICWA does not apply based on information provided to the Court.The parents have not provided any additional information"; (3) "ICWA does not apply."
The correct date of the prior court order was February 4, 2009. Apparently, a typographic error in the Department's section 366.26 report was carried over into the juvenile court's section 366.26. order.
3. Analysis
Father contends that the juvenile court's finding that the ICWA does not apply is not supported by substantial evidence. Although Father did not raise this objection below, the issue is nevertheless cognizable on appeal. (See e.g. In re J.T. (2007) 154 Cal.App.4th 986, 991.)
In his opening brief, Father contends that the finding that the ICWA does not apply must be reversed because it rests on the premise that the Department complied with the ICWA notice requirements and the appellate record does not contain any of the ICWA notices that the Department allegedly sent in this case.
After Appellants' opening brief was filed, the clerk of the superior court filed a Supplemental Clerk's Transcript on Appeal, at the request of County Counsel. The Supplemental Clerk's Transcript contains ICWA compliance documents that the Department filed during the juvenile court proceedings in this case, including the notices that were described in the Department reports and referenced in juvenile court orders.
In his reply brief, Father urges us to disregard the Supplemental Clerk's Transcript. However, his factual objections are either inaccurate or irrelevant. For example, Father erroneously contends that the superior court clerk failed to certify the accuracy of the Supplemental Clerk's Transcript. Beyond that, Father fails to cite any authority to support his contention that we should disregard this highly relevant material.
Alternatively, Father contends that the notices that the Department sent to the Blackfeet tribe were inadequate because they did not convey all of the information that the Department had about R.S.'s maternal grandmother, Lori W. Again, Father is mistaken. The Department gave notice to the Blackfeet tribe on an "ICWA-030" form, which Father concedes was the proper form to use. On the second ICWA-030 that the Department sent to the Blackfeet Tribe in August 2009, the Department provided the tribe with Lori W.'s first, middle and last name, date and place of birth (Montana), and year and place of death. The Department also identified Lori W.'s tribe, tribe location and tribal membership as "Blackfeet Tribe, Blackfeet, Continental U.S. Indian Tribes."
Father complains that the Department did not "inform the tribe at item C., p.7 of the ICWA-030 form, where the preparer is asked whether any relative lived on federal trust land, a reservation or Rancheria, or an allotment, that [R.S.'s] maternal grandmother, Lori W., had [been] born on the Blackfeet reservation in Montana and had Blackfoot Indian heritage . . . ."
This so-called "item C., p.7" is one of several "optional questions" that appears at the end of the ICWA-030 form. In its August 2009 notice to the Blackfeet Tribe, the Department checked a box indicating that it was "Unknown" whether any member of R.S.'s family lived on federal trust land, a reservation or rancheria, or an allotment. There was nothing inaccurate or misleading about that information because the Department did not know that Lori W. had actually lived on a reservation and it had already provided all of the information that it had about Lori W. in a previous section of the form which specifically asked for information about the child's maternal grandmother.
Finally, Father contends the Department failed to make a "further inquiry" of S.A. after it discovered that she was living in the residential treatment facility in San Mateo and made contact with her prior to the section 366.26 hearing. By failing to make that inquiry, Father contends, the Department violated its "continuing duty" to inquire as to information that might establish R.S.'s Indian ancestry.
"If the court, social worker, or probation officer knows or has reason to know that an Indian child is involved, the social worker . . . is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents . . . ." (§ 224.3, subd. (c).) This obligation to "make further inquiry" by interviewing parents and extended family is also set for in rule 5.481(a)(4) of the California Rules of Court.
The record before us contains substantial evidence that, by the time the Department reconnected with S.A., it no longer had any reason to believe that R.S. was an Indian Child. By that time, the Department had already made a reasonably diligent investigation of the perfunctory claim of Indian ancestry that S.A. made before she disappeared from the hospital. S.A. had previously failed to reunify with R.S.'s six half siblings, all of whom had been declared court dependents. By reviewing the dependency records of one of S.A.'s six other children the Department obtained the relevant background information that S.A. had previously submitted in support of her claimed Indian heritage. It conveyed that information to the Blackfeet tribe and it received a formal response from that tribe. The Blackfeet Tribe advised the Department that neither R.S., S.A., Lori W. nor any of the other maternal or paternal relative was listed on the Blackfeet Tribal Enrollment records and, therefore, R.S. is not an "Indian Child" as defined by the ICWA.
The Blackfeet Tribe's formal response to the ICWA notice, the other ICWA compliance documents in the Supplemental Clerk's Transcript, and the Department's various other reports, constitute substantial evidence supporting the juvenile court's finding that the ICWA does not apply in this case. D. Notice to S.A.
Father contends that the order terminating his parental rights must be reversed because the Department failed to provide S.A. with proper notice of the section 366.26 hearing. Father argues that a notice of the hearing that was sent to S.A. via first class mail was defective because it should have been served by certified mail, return receipt requested. (Citing § 294(f)(7)(c)). We reject this claim of error for three reasons.
First, Father does not have standing to assert this issue. (In re Caitlin B. (2000) 78 Cal.App.4th 1190, 1193-1194 (Caitlin B.).) As the Caitlin B. court explained, " '[w]here the interests of two parties interweave, either party has standing to litigate issues that have a[n] impact upon the related interests. This is a matter of first party standing.' [Citation.] In the absence of such intertwined interests, 'a parent is precluded from raising issues on appeal which did not affect his or her own rights.' [Citation.]" (Id. at p. 1193.) Here, as in Caitlin B., supra, Father's interest is limited to a continuation or termination of his own parental rights. His interests are not intertwined with the interests of S.A. and he has no interest in asserting either S.A.'s "statutory right to a particular form of notice or [her] more generalized due process right to be heard, both of which are personal to [S.A.] as they relate to [her] parental rights." (Id. at p. 1194.)
Second, even if Father did have standing, he waived this issue by not raising it in the trial court. "A defect in notice . . . is a most serious issue, potentially jeopardizing the integrity of the entire judicial process. However, when a parent had the opportunity to present that issue to the juvenile court and failed to do so, appellate courts routinely refuse to exercise their limited discretion to consider the matter on appeal. This is precisely because defective notice and the consequences flowing from it may easily be corrected if promptly raised in the juvenile court." (In re Wilford J. (2005) 131 Cal.App.4th 742, 754.)
Third, even if we were to reach this issue, there is substantial evidence that S.A. received proper notice of the section 366.26 hearing. Section 294, which sets forth the rules for giving notice of section 366.26 hearing, contains a procedure for giving a parent notice by publication when the whereabouts of that individual is unknown. (§ 294, subd. (f)(7).) Father does not dispute that the Department initially properly followed that procedure when it first published notice of the hearing in June 2010 because, at that time, the whereabouts of S.A. was still unknown. Father contends, however, that the Department violated section 294, subdivision (f)(7)(C) because, when it discovered that S.A. was living in the residential treatment facility in San Mateo, it simply mailed her a notice of the hearing. According to Father, the only proper way to effectuate service by mail at that point in time, was for the Department to send the notice by certified mail with return receipt requested. (See § 294, subd. (f)(2).)
Father overlooks section 294, subdivision (f)(4) (section 294(f)(4)) which states: "(f) Notice to the parents may be given in any one of the following manners: . . . (4) Delivery to a competent person who is at least 18 years of age at the parent's usual place of residence or business, and thereafter mailed to the parent named in the notice by first-class mail at the place where the notice was delivered."
Father also overlooks evidence establishing that the Department complied with section 294(f)(4). The record contains a proof of service of notice that was mailed to S.A. on August 11, 2010. That document contains a handwritten notation indicating that it was served with an "acknowledgment of receipt." Apparently receiving no confirmation of receipt from S.A., the Department served S.A. with another notice of the hearing on August 16, 2010. The proof of service for that notice establishes that the Department served S.A. by leaving a copy of the notice with a competent adult at S.A.'s residence and then mailing a copy of the notice to her at that residence in accordance with section 294(f)(4).
IV. DISPOSITION
The order terminating parental rights is affirmed.
Haerle, Acting P.J. We concur:
Lambden, J.
Richman, J.