IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
December 1, 2010
IN RE MICHAEL C. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW.
HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
MICHELLE A., DEFENDANT AND APPELLANT.
The opinion of the court was delivered by: Simons, Acting P.J.
In re Michael C.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Michelle A. (Mother) appeals an order terminating her parental rights over her three sons: Michael C.,*fn1 born in 1998; Cody S., born in 2000; and Troy S., born in 2002.*fn2 (Welf. & Inst. Code, § 366.26.)*fn3 Mother contends the juvenile court's finding that the minors were adoptable is not supported by substantial evidence, the court erred in failing to apply the continuing beneficial relationship exception to parental termination (§ 366.26, subd. (c)(1)(B)(i)), the court erred in failing to proceed by way of former section 366.26, subdivision (b)(3)),*fn4 the court erroneously failed to continue the section 366.26 hearing (.26 hearing), and failed to comply with the notice requirements of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. §§ 1901, 1912(a)).
In August 2007, the minors were declared dependents of the court.*fn5 The minors remained in foster care with reunification services to Mother. In August 2007, Cody was placed with Troy and Michael. Reunification services were terminated in October 2008. In July 2009, the minors were placed with their maternal great uncle and aunt, Jonathan and Julie C., in Sacramento County.
In August 2009, Mother filed a section 388 petition seeking to have the minors placed with her or reinstatement of reunification services. She asserted she had maintained suitable housing, had done volunteer and paid work, the minors' placement had been moved away from Humboldt County and new information had come to light regarding allegations of her sexual abuse of Michael. Several days later, the Department filed a section 388 petition seeking the court's approval of the minors' placement with their relative caregivers in Sacramento County. Both section 388 petitions were set for hearing on December 3, 2009, together with the post permanency planning review hearing.
The Department's September 2009 status review report stated that the Department had researched possible visitation centers near the relative caregivers to support the minors' visitation with Mother. The minors were doing well in this placement and the relative caregivers were being assessed as adoptive parents. The Department supported assessing the current caregivers as adoptive parents and selecting adoption by them as the permanent plan, and recommended setting a .26 hearing.
On December 4, 2009, following a contested hearing on the parties' section 388 petitions, the court denied Mother's section 388 petition, granted the Department's section 388 petition, and set a .26 hearing for April 5, 2010.
We include other pertinent facts in our discussion of the issues raised by Mother.
I. The Finding of Adoptability Is Supported by Substantial Evidence
Appellant contends the court's finding that the minors were adoptable is not supported by substantial evidence. She argues the Department's report and adoption assessment did not comply with the statutory guidelines of section 366.26 and failed to include adequate assessments of the history and quality of sibling contact between the three minors and their half-siblings. Therefore, the court could not conduct the requisite analysis regarding the nature and extent of the sibling bond in making its adoptability finding.
The juvenile court may terminate parental rights only after determining by clear and convincing evidence that it is likely the children will be adopted within a reasonable time. (§ 366.26, subd. (c)(1).) We review a finding of adoptability for substantial evidence. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1060-1061.) In doing so we review the record in the light most favorable to the court's findings and draw all evidentiary inferences that support the court's determination. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1177.)
Whenever the juvenile court orders a .26 hearing, it must direct the appropriate agency to prepare an assessment. (§ 366.21, subd. (i).) The assessment must include, inter alia, a review of the amount of and nature of any contact between the child and his or her parents or legal guardians and other members of his or her extended family since the time of placement. The extended family of each child must be reviewed on a case-by-case basis, and " 'extended family' " includes the child's siblings, grandparents, aunts and uncles. (§ 366.22, subd. (c)(1)(B).)
Deficiencies in an adoption assessment go to the weight of the evidence, and "if sufficiently egregious may impair the basis of a court's decision to terminate parental rights." (In re Crystal J. (1993) 12 Cal.App.4th 407, 413.) An adoption assessment is sufficient if it substantially complies with the statutory requirements. (In re John F. (1994) 27 Cal.App.4th 1365, 1378.)
In February 2010, the Department submitted an adoption assessment performed by social worker Keri Schrock which stated: Observation of the minors had occurred in their foster home and records regarding their medical, psychological and scholastic or developmental background had been reviewed. When Schrock observed the minors in their relative placement on January 30, 2010, they all expressed a desire to remain in their current placement and wished to be adopted. They expressed relief at no longer being perceived as foster children because they lived with their aunt and uncle. The minors were open in discussing their home life and enjoyed showing off their home. They all said they had friends at school and in the neighborhood and described their interests and hobbies. Schrock noticed that compared to how the minors were when observed in the prior foster placement, they were more open, animated and talkative and appeared relaxed and comfortable with their caregivers. The minors all said they did not wish to talk about Mother. The minors all share a room and get along "fairly well." Although there was some competition between Cody and Troy, Michael gets along especially well with Troy. The prospective adoptive father is Mother's uncle; thus, all three minors have a biological relationship with the prospective adoptive family. All the minors have substantial emotional ties to the prospective adoptive parents and have benefitted from being in a nurturing, stable environment. Removal of the minors from this current home would be seriously detrimental to their well being. The adoption assessment contained no information regarding the minors' half-siblings and the minors' relationships with those half-siblings.
Department social worker Angelique Parry's February 2010 .26 hearing report stated the following: The minors had been placed together with their relative caregivers since August 2007. They bonded to each other, but not to other people. However, they were active members of the prospective adoptive family. The report noted that Cody and Troy have a half-brother, Dalton, who lives in Eureka with his mother, Sarah Y. Sarah Y. had been in contact with the minors' relative caregivers "to maintain familial connections." Michael had recently informed Parry that he has a half-sister and his relative caregivers support contact between him and his half-sister. The report stated the minors had "made great strides" in the care of their potential adoptive family and appeared content. The report also stated that the relative caregivers had demonstrated an ongoing willingness and commitment to helping the minors maintain connections with Mother and their immediate and extended biological family. The minors were found adoptable and the Department recommended termination of parental rights and adoption as the minors' permanent plan. The report noted that minors had a significant relationship with Mother and MGM and visitation with them would be informal.
At the .26 hearing, Parry said she had spoken with the "local" parents of Cody and Troy's half-sibling and had talked with Michael about his half-sister. Parry also said the relative caregiver had encouraged telephone contact between the minors and the local half-sibling.
We conclude the Department's adoption assessment substantially complies with the statutory requirements (In re John F., supra, 27 Cal.App.4th at p. 1378) and, alternatively, any error was harmless. The assessment together with the .26 report adequately addressed the quantity and quality of the minors' contacts with each other; the minors reside together contently in the home of their relative prospective adoptive family. Although the adoption assessment failed to address the issue of the minors' contacts with their half-siblings, that subject was addressed in the .26 report and during Department social worker Parry's testimony at the .26 hearing. The record establishes that Cody and Troy's half-brother resides in Eureka and the prospective adoptive parents are open to the minors having telephone contact and maintaining a connection with their half-brother. Nothing in the record suggests that this level of contact would be less than what Cody and Troy had previously experienced. The record also establishes that only a short time before the .26 report was written, Michael informed Parry that he has a half-sister and that his prospective adoptive parents support his contact with the half-sister. The voluminous record before us reveals nothing about the existence of Michael's half-sister or any contact between them. What is significant, is the prospective adoptive family's willingness to support Michael's contact with his half-sister and maintain his connections with his extended family. Thus, we cannot conclude that any error in the adoption assessment's failure to mention or explore this relationship is harmful.
II. The Continuing Beneficial Relationship Exception
Mother contends the juvenile court erred in failing to conclude that the continuing beneficial relationship exception (§ 366.26, subd. (c)(1)(B)(i))*fn6 applies to prevent termination of her parental rights over the minors.
At a .26 hearing, where possible, adoption is the permanent plan preferred by the Legislature. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.) Where the court finds a minor cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds that termination of parental rights would be detrimental to the minor under one of six enumerated exceptions. (§ 366.26, subd. (c)(1)(B); see In re L. Y. L., at p. 947.) It is the parent's burden to establish the existence of one of the exceptions to termination. (In re Thomas R. (2006) 145 Cal.App.4th 726, 731.)
In In re Autumn H. (1994) 27 Cal.App.4th 567, the court interpreted the beneficial relationship exception to mean "the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (Id. at p. 575.) The child's age, the portion of the child's life spent in the parent's custody, the effect of the interaction between the parent and child, and the child's particular needs, are factors which may be considered by the court in considering the applicability of the beneficial relationship exception. (Id. at pp. 575-576.)
Although the beneficial relationship exception does not require proof that the minor has a " 'primary attachment' " to the non-custodial parent or "that the non-custodial parent has maintained day-to-day contact" with the minor (In re S.B. (2008)164 Cal.App.4th 289, 300), "the relationship must be such that the child would suffer detriment from its termination. [Citation.]" (In re Angel B. (2002) 97 Cal.App.4th 454, 467.)
A trial court's determination regarding the beneficial relationship exception is affirmed if supported by substantial evidence. (In re S.B, supra, 164 Cal.App.4th at p. 297; In re B.D. (2008) 159 Cal.App.4th 1218, 1235.) We review the evidence most favorably to the prevailing party and indulge in all legitimate and reasonable inferences to uphold the court's ruling. (In re S.B. at p. 297.)
In this case, the record establishes that Mother's visitation with the minors was inconsistent. At one point, visitation was put on hold because her attendance was less than 50 percent. Although just prior to the .26 hearing, Mother attended four out of five visits, her earlier attendance rate was closer to 65 percent. In any case, the major issue here is the second prong of the continuing beneficial relationship exception--whether the minors would benefit from continuing their parental relationship with Mother. We conclude that substantial evidence supports the court's finding that Mother failed to establish a parent-child relationship sufficient to qualify for section 366.26, subdivision (c)(1)(B)(i), as interpreted by In re Autumn H., supra, 27 Cal.App.4th 567, and its progeny.
At the commencement of the .26 hearing Michael was 12 years old, Cody was 10 years old, and Troy was almost 8 years old. The minors all expressed a desire to be adopted by their relative caregivers. Department social workers described the relationship between Mother and the minors as "stressful" and stated that Mother's failure to follow through with visitation caused the minors emotional difficulties. There was concern during the supervised visitation that Mother gave Cody and Troy preferential treatment and excluded Michael, and concern that Mother engaged in inappropriate conversations with the minors at visits. In addition, Mother was arrested in January 2009 for violating her probation and being in possession of methamphetamine. No evidence was presented that she completed parenting education classes or had a stable residence for the minors. Moreover, as the court noted, while Michael's allegations of Mother's sexual misconduct with him were not proven, Mother's response to those allegations was inappropriate; she merely accused Michael of lying and treated him differently than Cody and Troy. Given the length of time the minors had spent in Mother's custody prior to their removal, the court recognized that continued visitation with Mother following the minors adoption might be in their best interest. The prospective adoptive parents were supportive of such visitation.
We conclude the evidence before us does not support a conclusion that the relationship between the minors and Mother promoted the minors' well-being to the extent that it would outweigh the well-being the minors would gain in a permanent, stable home with the adoptive parents. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Substantial evidence supports the court's determination that the continued beneficial relationship exception does not apply.
III. Section 366.26, Subdivision (b)(3) Does Not Apply
Appellant next contends that even if the continuing beneficial relationship exception does not apply, the court abused its discretion in failing to continue the .26 hearing for 180 days pursuant to section 366.26, subdivision (b)(3)*fn7 for completion of the home study of the prospective adoptive parents.
Subdivision (b) of section 366.26 sets out the placements from which the court may choose upon termination of parental rights. Former subdivision (b)(3) states: "On making a finding under paragraph (3) of subdivision (c), [the court may] identify adoption as the permanent placement goal and order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days." Subdivision (c) sets out the procedure for the court to employ in choosing the placement. Subsection (3) of that subdivision provides in pertinent part: "If the court finds that termination of parental rights would not be detrimental to the child pursuant to paragraph (1) and that the child has a probability for adoption but is difficult to place for adoption and there is no identified or available prospective adoptive parent, the court may identify adoption as the permanent placement goal and without terminating parental rights, order that efforts be made to locate an appropriate adoptive family for the child, within the state or out of the state, within a period not to exceed 180 days."
Mother argues that given that the minors were all over seven years old, their membership in a sibling set made them difficult to place pursuant to subdivision (c)(3) of section 366.26. She appears to assert that by failing to apply subdivision (b)(3) of section 366.26, and failing to continue the .26 hearing until the completion of the home study, the court put the minors at the unnecessary risk of becoming legal orphans if the adoption did not occur and placed the sibling set in jeopardy of dissolution.
The Department argues that section 366.26, subdivision (c)(3) does not apply here because potential adoptive parents had already been identified, the Department had already referred the potential adoptive family for a home study and other family members had made themselves available as backup caregivers for the minors. It asserts that, for purposes of subdivision (c)(3), a child may only be found difficult to place for adoption if there is no identified or available prospective adoptive parent because the child is a member of a sibling group.
The minors had resided with the prospective adoptive family since July 2009 and had adjusted very well there. The prospective adoptive parents were very committed to the minors and expressed a desire to adopt them. A preliminary assessment found the prospective adoptive family suitable for adoption of the minors. The prospective adoptive parents appeared to be demonstrating good parenting practices, demonstrated their capacity to meet the minors' needs, had followed through with counseling for the minors and had enrolled them in tutoring. The prospective adoptive parents were in good health, had no criminal or child abuse record and understood and were willing to accept the legal and financial responsibilities of adoptive parents. Given these circumstances, we conclude section 366.26, subdivisions (b)(3) and (c)(3) do not apply.
Alternatively, we conclude the court did not abuse its discretion in denying a continuance. Continuances are discouraged in dependency proceedings. (See In re Karla C. (2003) 113 Cal.App.4th 166, 179-180.) The section 366.26 hearing "is designed to protect children's 'compelling rights . . . to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child.' " (In re Celine R. (2003) 31 Cal.4th 45, 52-53, quoting In re Marilyn H. (1993) 5 Cal.4th 295, 306.) The children had a right to placement with the prospective adoptive parents who had made a commitment to them. We find no abuse of discretion in denying a continuance under these circumstances.
IV. The Request for a Continuance Was Properly Denied
Mother argues the court abused its discretion in failing to continue the .26 hearing, pursuant to section 352,*fn8 to permit her to reopen the hearing to present additional evidence. She asserts that she was denied the opportunity to present further evidence on the issues of adoptability and the applicability of the continuing beneficial relationship exception to adoption. "The court's denial of a request for a continuance will not be overturned on appeal absent an abuse of discretion." (In re Elijah V. (2005) 127 Cal.App.4th 576, 585.) No abuse of discretion is demonstrated.
First, Mother failed to request a continuance in writing. Second, on appeal she asserts that she would have called as many as four witnesses, but fails to specify the length of the continuance requested. Third, she asserts that the testimony would have concerned ongoing contact between her and the minors and therefore established good cause for the continuance. However, the court found that the benefits to the minors of terminating Mother's parental rights outweighed any benefit to them of continued visitation. Nothing in Mother's request for the continuance suggested evidence that would likely change this finding. In any case, the Department and the prospective adoptive parents were supportive of the minors having post-adoption contact with Mother.
V. The Case Must Be Remanded for ICWA Compliance
Finally, Mother contends the court erred by failing to comply with the notice requirements of the ICWA.
On June 18, 2007, the section 300 petitions filed on behalf of the minors had the box checked stating, "Child may be of Indian ancestry." The Department's June 2007 detention report stated that ICWA "does or may apply" and stated that the MGM reported "she is Blackfeet Indian from her father's side." However, at the June 19, 2007 detention hearing, at which the MGM was present, the Department's counsel informed the court that Mother had completed a JV-130 form*fn9 indicating she had no Indian ancestry. Mother stated at the hearing that the minors' deceased fathers had no Indian ancestry. The court then concluded that, based upon Mother's information, ICWA was not at issue in the case.
On June 27, 2007, the amended section 300 petitions that were filed on behalf of the minors did not have the boxes checked indicating the minors may be of Indian ancestry or may be a member or eligible for membership in an Indian tribe.
The ICWA was intended 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 Indian children in foster or adoptive homes reflecting the values of Indian culture. (25 U.S.C. § 1902; In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520 (Jeremiah G.); In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421 (Kahlen W.).) The ICWA applies when the state knows or has reason to know an Indian child is involved, and seeks to place the child in foster care or terminate parental rights in an involuntary proceeding. (25 U.S.C. § 1912(a); Jeremiah G. at p. 1520.)
" 'Indian child' means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C. § 1903(4).) The tribe determines whether a child meets these criteria. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 254-255 (Dwayne P.).)
Effective January 1, 2007, the California Legislature codified the ICWA notice requirements in a comprehensive reorganization of statutes related to the application of the ICWA in section 224 et seq. (In re Damian C. (2009) 178 Cal.App.4th 192, 197 (Damian C.).) Adopting language from 25 United States Code section 1912(a), the state ICWA notice provisions direct the court to provide notice to the parent or Indian custodian, and the tribe, of an Indian child, if " 'the court knows or has reason to know that an Indian child is involved' " in the proceedings. (Dwayne P., supra, 103 Cal.App.4th at p. 253.) Notice requirements are intended to ensure the child's Indian tribe will have the opportunity to intervene and assert its rights in the proceedings. (Kahlen W., supra, 233 Cal.App.3d at p. 1421.)
Section 224.3, subdivision (a) provides: "The court, county welfare department, and probation department have an affirmative and continuing duty to inquire whether a [dependent] child . . . is or may be an Indian child in all dependency proceedings. . . ." If a social worker "knows or has reason to know that an Indian child is or may be involved, that person . . . must make further inquiry as soon as practicable," by, among other things, interviewing the parents and extended family members. (Cal. Rules of Court, rule 5.481(a)(4)(A).) A social worker has reason to believe a child may be an Indian child when a person with an interest in the child "informs or otherwise provides information suggesting that the child is an Indian child." (Cal. Rules of Court, rule 5.481(a)(5)(A).)
Section 224.3, subdivision (b)(1) states the circumstances that may provide reason to know the child is an Indian child include, but are not limited to, the following: "A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the child's extended family provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child's biological parents, grandparents, or great-grandparents are or were a member of a tribe." (Italics added; see also Cal. Rules of Court, rule 5.481(a)(5)(A).)
In Damian C., supra, 178 Cal.App.4th at pages 195, 199, the mother said she might have Pasqua Yaqui ancestry through the maternal grandfather. The maternal grandfather said "he had heard his father . . . was either Yaqui or Navajo Indian, but later was informed the family did not have Indian heritage." (Id. at p. 195.) The maternal grandfather did not know which Yaqui or Navajo tribe might be involved or where the tribe might be located, and said the family lacked enough information to successfully research their possible Indian heritage. (Id. at pp. 195-196, 199.) The maternal grandfather did not know his father's address or telephone number. (Id. at pp. 196, 199.) The Court of Appeal concluded "[t]his information constituted a 'reason to know that an Indian child is or may be involved and [thus,] triggered the requirement to make further inquiry" and required the Agency to provide notice to the federally recognized Navajo and Yaqui tribes. (Id. at p. 199.)
Here, similarly, the information from the MGM indicated there was a low but reasonable probability that the minors were Indian children within the ICWA. The MGM's statement that "she is Blackfeet Indian from her father's side" triggered a duty to notice the Blackfeet Tribe. In addition, the Department had a duty to make further inquiry, and the court had an affirmative duty to ensure the Department complied with its duty of inquiry and notice. (Damian C., supra, 178 Cal.App.4th at p. 199.)
We remand the case to the juvenile court with directions to the Department to conduct a further ICWA inquiry and provide ICWA notice to any Blackfeet tribes and any other tribes the inquiry identifies. (In re Francisco W. (2006) 139 Cal.App.4th 695, 711.)
The order terminating parental rights is reversed. The case is remanded to the juvenile court with directions to comply with the notice and inquiry provisions of the ICWA. If, after proper inquiry and notice, the court determines the minors are Indian children, the juvenile court shall proceed in conformity with the ICWA. If, however, no tribe claims that the minors are Indian children, the order terminating parental rights and selecting adoption as the permanent plan shall be reinstated.