Opinion
F063705
08-02-2012
In re CHARLOTTE B. et al., Persons Coming Under the Juvenile Court Law. TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ROY B., Defendant and Appellant.
Linda J. Conrad, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen Bales-Lange, County Counsel, and John A. Rozum, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. Nos. JJV064974A, JJV064974B)
OPINION
THE COURT
Before Kane, Acting P.J., Detjen, J., and Franson, J.
APPEAL from orders of the Superior Court of Tulare County. Charlotte A. Wittig, Commissioner.
Linda J. Conrad, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen Bales-Lange, County Counsel, and John A. Rozum, Deputy County Counsel, for Plaintiff and Respondent.
Roy B. (father) appeals from orders terminating parental rights (Welf. & Inst. Code, § 366.26) to his children, four-year-old Charlotte and two-year-old Roy Jr. Father contends the juvenile court should have found that termination would be detrimental to the children by virtue of their relationship with him (§ 366.26, subd. (c)(1)(B)(i)) and should have proceeded as though the children were Indian because the Cherokee Nation reported the children were eligible for membership if certain steps were taken. On review, we disagree with each of father's contentions and will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
Father and the children's mother had extensive histories of substance abuse, which periodically rendered them incapable of providing the children regular care and placed the children at substantial risk of suffering serious physical harm or illness. Although the mother had an active restraining order against father, she permitted him and another man who was in possession of drugs into her home on a September 2010 date. That same day, law enforcement found the adults under the influence of a controlled substance and in the home while then two-year-old Charlotte and one-year-old Roy Jr. were present. The adults were arrested and the children detained.
In December 2010, the juvenile court adjudged the children dependents, removed them from parental custody and ordered reunification services for the parents. The court also found there was insufficient reason to believe the children were Indian children covered by the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.). The evidence underlying this finding is summarized in our Discussion.
Despite reunification services, neither parent reunified with the children. Father, in particular, made no progress whatsoever in addressing his substance abuse. Consequently, in June 2011, the juvenile court terminated reunification services and set a hearing to select and implement a permanent plan (§ 366.26 hearing) for the children.
In advance of the section 366.26 hearing, respondent Tulare County Health and Human Services Agency (agency) prepared a report in which it recommended the juvenile court find the children likely to be adopted and order parental rights terminated. The agency's report also contained information regarding the children's contacts with father. He consistently visited the children on a weekly basis. The children were excited to see him and both father and the children enjoyed spending time together. The children appeared to have a positive relationship with father. Nonetheless, when their visits came to an end, the children had no problem leaving with the social worker.
At the section 366.26 hearing, father had no evidence to present. Relying on the agency's report regarding visitation, father's counsel asked the court to find it would be in the children's best interest not to terminate parental rights. However, the court concluded father had not met his burden of establishing a compelling reason for not terminating parental rights.
The juvenile court adopted the agency's recommended findings and terminated parental rights.
DISCUSSION
I. Parent/child Relationship
As previously mentioned, father contends his regular visitation with the children constituted a compelling reason for the juvenile court not to terminate his parental rights. We disagree and conclude the juvenile court did not abuse its discretion by rejecting father's argument.
Once a juvenile dependency case reaches the permanency planning stage, the statutory presumption is that termination is in an adoptable child's best interests and, therefore, not detrimental. (§ 366.26, subd. (b); In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1344.) It is the parent's burden to show that termination would be detrimental under one of several statutory exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) The beneficial relationship exception in section 366.26, subdivision (c)(1)(B)(i), involves a two-part test; did the parent maintain regular visitation and contact with the child, and would the child benefit from continuing the relationship.
For the beneficial relationship exception to apply,
"the parent-child relationship [must] promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 .) A juvenile court must therefore: 'balance ... 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.' (Id. at p. 575.)" (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.)‘
When a court rejects a detriment claim and terminates parental rights, the appellate issue is whether the juvenile court abused its discretion in so doing. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) The decision is not reviewed, as father suggests, for substantial evidence that termination would not be detrimental.
To conclude there was an abuse of discretion, the proof offered must be uncontradicted and unimpeached so that discretion could be exercised only in one way, compelling a finding in favor of the appellant as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571; In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) Based on our review of the record, we conclude the juvenile court properly exercised its discretion in rejecting father's argument.
It is undisputed that father maintained regular visitation with the children who enjoyed visiting with him. However, there is no evidence that either child had such a substantial, positive emotional attachment with father that either child would be greatly harmed if visits ceased and rights were terminated. Consequently, we conclude the juvenile court did not abuse its discretion by rejecting father's argument against termination.
II. ICWA
For the first time, father argues the court should have proceeded as if the children were Indian because the Cherokee Nation reported in 2010 that the children were eligible for tribal membership. He relies on California Rules of Court, rule 5.482(c) (Rule 5.482(c)), which states:
"[i]f after notice has been provided as required by federal and state law a tribe responds indicating that the child is eligible for membership if certain steps are followed, the court must proceed as if the child is an Indian child and direct the appropriate individual or agency to provide active efforts under rule 5.484(c) to secure tribal membership for the child." (Italics added.)
Because the juvenile court did not proceed as if the children were Indian children and the agency did not apply, on the children's behalf, for membership in the Cherokee Nation, father argues he suffered prejudice so as to require us to reverse the orders terminating parental rights.
Factual Background
At the outset of these dependency proceedings, mother informed the juvenile court that she had an aunt who was living on a Cherokee reservation. The agency investigated and learned the children's maternal great-aunt was a member of the Cherokee Nation in Oklahoma.
Proper notice under ICWA was provided and in November 2010 the Cherokee Nation wrote the agency that the children were eligible for enrollment with the Cherokee Nation because they could be traced in tribal records through extended family members. Those relatives were the children's great-great-grandparents.
The Cherokee Nation added it was not empowered to intervene in the dependency unless the children or eligible parent applied and received membership. It also enclosed a membership application that could be completed by the party having custody or their representative.
Apparently, neither the children's mother nor father took any steps to enroll the children while the parents still had custody. The agency at a November 2010 hearing asked to continue a scheduled dispositional hearing in order to clarify whether ICWA applied to the children. The juvenile court asked if any counsel wished to be heard. Father's counsel answered "Not as to the ICWA issue" and the mother's counsel replied "No." The juvenile court specifically quoted the language of Rule 5.482(c) at the November 2010 hearing and found good cause to continue the case.
In advance of the continued dispositional hearing, the agency submitted a "DECLARATION OF ICWA EXPERT" prepared by a social worker, Sean Osborn, from another agency. According to Osborn, he spoke with the Cherokee Nation's tribal representative who confirmed neither the children nor their mother were enrolled members of the Cherokee Nation. The children were eligible for tribal membership through the great-great-grandparents. In Osborn's view, the ICWA did not currently apply according to section 224, subdivision (c) which he quoted as follows:
"A determination by an Indian tribe that an unmarried person, who is under the age of 18 years, is either (1) a member of an Indian tribe or (2) eligible for membership in an Indian tribe and a biological child of a member of an Indian tribe shall constitute a significant political affiliation with the tribe and shall require the application of the federal Indian Child Welfare Act to the proceedings."
He added the children were not members of the tribe and, although they were eligible for membership, they were not the biological children of a person who was an enrolled member of the tribe.
Nevertheless, in the balance of his declaration he discussed the legal requirements of "active efforts" under section 361.7 and "placement preferences" under section 361.31 if the ICWA did apply. He also stated that it was extremely important for the mother to enroll herself or the children with the Cherokee Nation. Apparently the mother never did enroll herself.
At the December 2010 dispositional hearing, the agency took the position that the children were not the biological children of a member of any American Indian tribe and asked the court to find that the ICWA did not apply. Neither parent voiced any objection.
Forfeiture
Father has forfeited his claim regarding the membership application, first by his silence in the juvenile court. Neither he nor the mother wished to be heard on the issue when it was raised at a November 2010 hearing. This is particularly remarkable because the juvenile court specifically quoted the language of Rule 5.482(c) at the November 2010 hearing. Father also did not object when, at the December 2010 dispositional hearing, the agency took the position the children were not the biological children of a member of any American Indian tribe and asked the court to find that the ICWA did not apply. He had the opportunity to object in response to the agency's motion and thereby bring this alleged error to the juvenile court's attention so that it might be corrected. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Instead, father remained silent. By so doing, he has forfeited his complaint. (Ibid.) Any other holding would permit father to play "fast and loose" with the administration of justice by deliberately standing by without objecting and permitting the proceedings to reach a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not. (In re Riva M. (1991) 235 Cal.App.3d 403, 412.)
In addition, father forfeited the application issue by his failure to appeal from the juvenile court's determination that there was insufficient reason to believe the children were Indian children covered by the ICWA. The juvenile court's ICWA determination was part of its December 2010 dispositional findings and orders, which were appealable. (§ 395, subd. (a).) Although he received proper notice of his appellate remedy, he did not seek appellate review.
When the juvenile court later terminated reunification services and set the section 366.26 hearing, father still did not seek this court's review by way of extraordinary writ petition. Father's failure to do so precludes subsequent review on appeal from the termination orders. (§ 366.26, subd. (l)(2).) To permit father to raise an issue going to the validity of a final and earlier reviewable order would directly undermine dominant concerns of finality and reasonable expedition, including the predominant interest of the child. (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018.)
Father nonetheless contends he is entitled to belated review of his tribal membership application argument by citing In re Marinna J. (2001) 90 Cal.App.4th 731, Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, In re Suzanna L. (2002) 104 Cal.App.4th 223, In re Nikki R. (2003) 106 Cal.App.4th 844, and In re B.R. (2009) 176 Cal.App.4th 773. These decisions hold that a parent's inaction or failure to seek timely review cannot excuse a failure to provide proper ICWA notice to potentially affected tribes since the notice requirement is designed to protect a tribe's interests.
Those cases take exception to this court's approach, as stated in In re Pedro N. (1995) 35 Cal.App.4th 183, 185. There, this court held a parent who fails to timely challenge a juvenile court's action regarding ICWA is foreclosed from raising ICWA notice issues once the court's ruling is final in a subsequent appeal. (Ibid.) We, however, did not foreclose a tribe's right to notice under ICWA due to the parent's appellate forfeiture. (Ibid.)
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However, the error father alleges here does not pertain to whether the Cherokee Nation received proper notice pursuant to the ICWA. It is undisputed the Cherokee Nation received proper notice of the proceedings and had the opportunity to participate in them. Therefore, the decisions father cites do not support his argument against forfeiture under the circumstances of this case.
In addition, as the court in In re Marinna J., supra, 90 Cal.App.4th at p. 739, fn. 3, acknowledged:
"[o]ur decision does not mean that the waiver doctrine cannot be invoked to defeat the claims of parents regarding other provisions of the Act. For example, failure to object in the juvenile court waives both the right to proof beyond a reasonable doubt and to expert testimony under the Act. (In re Riva M. [, supra,]235 Cal.App.3d [at pp.] 410-412 .) In those situations, presumably the tribe has been notified and given an opportunity to participate in the proceedings. If the tribe chooses not to intervene, then it is not unreasonable to expect that the tribe itself can be deemed to have waived any defects in the proceedings."
The same court that decided Dwayne P. v. Superior Court, supra, 103 Cal.App.4th 247 reached a similar conclusion in In re Liliana S. (2004) 115 Cal.App.4th 585, 589, fn. 3.
Consequently, we conclude father has forfeited his claim of error.
DISPOSITION
The orders terminating parental rights are affirmed.