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In Re Jose M., Jr., A Person Coming Under the Juvenile Court v. Jose M.


December 9, 2010


APPEAL from the finding and order of the Superior Court of San Diego County, Lloyd M. Harmon, Juvenile Court Referee. (Super. Ct. No. J517453)

The opinion of the court was delivered by: Nares, Acting P. J.

In re Jose M.



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


Jose M., Sr., (Jose) appeals an order terminating parental rights to his son, Jose M., Jr., (Jose Jr.) under Welfare and Institutions Code*fn1 section 366.26. He also asserts the court did not comply with the Indian Child Welfare Act (ICWA) under 25 United States Code section 1901 et seq. and section 224 et seq. We affirm the finding and order.


Jose is the father of Jose Jr., who was born two months prematurely in February 2009.*fn2 Jose Jr. was a medically fragile infant. He was not able to coordinate eating and feeding, and developed a respiratory infection which required assisted ventilation with a respirator. Jose Jr. remained in the hospital for approximately two months.

Jose Jr.'s parents each had significant disabilities and a history of substance abuse and domestic violence. C.B. was diagnosed with mild mental retardation. She also had a psychiatric disorder. Jose was moderately mentally retarded. He had a mental age of seven years, three months, and had difficulty coping with daily activities because of infantile cerebral palsy. He did not have any function in his right arm and could walk only with support. Jose had a seizure disorder and would become unconscious when he did not take his medication.

The parents had trouble caring for Jose Jr. even when closely supervised by hospital staff. Jose and C.B. were not able to feed the baby without assistance. On one occasion when C.B. was holding him, Jose Jr. turned blue from head to foot because he was not getting enough oxygen. Neither parent noticed his condition. Hospital staff stated the parents' ability to make decisions was poor because they lacked the mental capacity to understand the consequences of their actions.

Dr. Tina Leone, a neonatologist, stated that Jose Jr. remained at risk for serious respiratory infections for the first one to two years of his life. It was important that his caregivers were able to recognize subtle signs of illness and seek appropriate care, otherwise, such an infection could be fatal. It would also be necessary for his caregivers to coordinate aspects of his care with different physicians and service providers. Jose Jr. would also need acute visits to different doctors and possibly the hospital during illness.

In April 2010, before Jose Jr. was released from the hospital, the San Diego County Health and Human Services Agency (the Agency) initiated dependency proceedings. At the detention hearing, the juvenile court ordered the Agency to provide frequent and liberal supervised visitation to the parents.

After declaring Jose Jr. a dependent, the juvenile court ordered a plan of reunification services for the parents. Jose was to participate in a psychological evaluation, therapy, parenting education and other services offered by the Regional Center. The court also found that ICWA did not apply.*fn3

Jose and C.B. visited with Jose Jr. two hours twice a week. During visits, Jose fell asleep, made telephone calls after being instructed not to do so and refused a visit when C.B. could not attend. He did not feed, diaper, burp or hold Jose Jr. Jose completed a parenting education program but did not learn how to respond to Jose Jr.'s cues. In early December 2009, after the parents missed visits, visitation was reduced to once a week. After C.B. passed away, the two-hour visits were difficult for Jose. The social worker reduced the duration of the visits to one hour.

In February 2010, at the six-month review hearing, the court terminated reunification services and set a section 366.26 hearing.

At the section 366.26 hearing, which was held on June 17, 2010, the court admitted the social worker's reports in evidence. The social worker stated that Jose Jr., who was 15 months old, was an adorable, affectionate child who was walking with support. Jose Jr. was participating in the Regional Center Early Start Program. He was generally and specifically adoptable, and the Agency had initiated an adoption home study of his relative caregivers. The relative caregivers would continue to allow Jose to visit Jose Jr. as long as Jose was appropriate with them.

The social worker observed a visit between Jose and Jose Jr. Jose talked to Jose Jr. and interacted with him with affection while the visitation monitor ensured Jose Jr.'s safety. Jose played a toy xylophone for Jose Jr. Later, the visitation monitor noticed that Jose Jr. had put the xylophone stick into his mouth and told him to remove it. The social worker stated that Jose Jr. did not appear to have a strong parent-child relationship with Jose.

The parties stipulated that if Jose were to testify he would state that he loved Jose Jr. He was grateful that his relatives were caring for Jose Jr. and he did not want to lose his visitation and connection with his son.

The juvenile court found that Jose regularly visited Jose Jr. and showed great affection for him; however, Jose did not establish a beneficial parent-child relationship with Jose Jr. The court found that Jose Jr. was adoptable and terminated parental rights.


A. Termination of parental rights

Jose contends the court erred when it terminated his parental rights to Jose Jr. He argues termination of parental rights would be detrimental to Jose Jr. under the beneficial parent-child relationship exception to termination of parental rights. (§ 366.26, subd. (c)(1)(B)(i).)

At a section 366.26 hearing, the court may select one of three permanency plans: adoption, guardianship, or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 8.) There is a strong preference for adoption over alternative permanency plans. (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888; In re Zachary G. (1999) 77 Cal.App.4th 799, 808-809.) If the court determines the child is likely to be adopted, the burden shifts to the parent to show termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345; but see § 366.26, subd. (c)(1)(A).)

The parent-child beneficial relationship exception to termination of parental rights exists when a parent can show that he or she has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) "Benefit from continuing the relationship" means "the [parent/child] 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 re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).) Where the parent has continued to regularly visit and contact the child, "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.)

We determine whether there is substantial evidence to support the court's ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) If there is substantial evidence supporting the court's ruling, the reviewing court must affirm the court's rejection of the exceptions to termination of parental rights under section 366.26, subdivision (c). (Autumn H., supra, 27 Cal.App.4th at p. 576.)

Here the record contains substantial evidence to support the juvenile court's finding the beneficial parent-child relationship did not apply. Jose was not able to care for Jose Jr. He lacked awareness and insight of Jose Jr.'s needs. Dr. Joan C. Brentzel, the psychologist who conducted an evaluation of Jose, said it was unlikely Jose had the ability to perceive Jose Jr.'s needs before they became a life-threatening issue for Jose Jr. Jose did not take an active role in his visits with his son. He did not feed, diaper, burp or hold Jose Jr. during visits. Jose's visitation with Jose Jr. decreased during the course of the dependency proceedings because longer visits were difficult for Jose. The social worker did not believe Jose Jr. had a strong parent-child relationship with Jose.

The juvenile court reasonably determined termination of parental rights would not be detrimental to Jose Jr. (§ 366.26, subd. (c)(1)(B).) There is no evidence in the record to show that Jose Jr. had a substantial, positive emotional attachment to Jose. Jose Jr.'s special needs for insightful, attentive parenting were of paramount importance. Thus, Jose Jr.'s permanent placement with skilled, attentive caregivers outweigh any benefit he may receive from his continued relationship with Jose. (Autumn H., supra, 27 Cal.App.4th at p. 575; see In re Dakota H. (2005) 132 Cal.App.4th 212, 229-231.) We conclude the court's finding that the beneficial parent-child relationship exception did not apply is fully supported by the record.


Jose contends the juvenile court erred when it determined the social worker made a reasonable inquiry into C.B.'s Indian heritage and concluded that ICWA did not apply (ICWA finding). Jose asks this court to reverse the ICWA finding and to order a limited reversal and remand of all juvenile court orders made after the May 6, 2009, jurisdiction and disposition hearing.

When the Agency initiated dependency proceedings, the social worker asked the parents whether they had American Indian heritage. Jose denied any Indian heritage. C.B. said, "My dad told me that we have Indian, I am not sure what it is." C.B. provided her father's name to the social worker. She had no other information about her Indian heritage or ancestry. The social worker then spoke with the maternal grandmother. The grandmother did not know the whereabouts of the maternal grandfather and did not know anything about his Indian heritage. At the jurisdiction/disposition hearing, based on this information, the court found that ICWA did not apply.

If the child is at risk of entering foster care or is in foster care, the juvenile court and the social worker have an affirmative and continuing duty to inquire whether the child is or may be an Indian child. (§ 224.3, subd. (a).) If, from the initial inquiry, the court or social worker 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. (§ 224.3, subd. (c).) "[C]ircumstances that may provide reason to know the child is an Indian child include, but are not limited to, the following:

(1) 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.

(2) The residence or domicile of the child, the child's parents, or Indian custodian is in a predominantly Indian community.

(3) The child or the child's family has received services or benefits from a tribe or services that are available to Indians from tribes or the federal government, such as the Indian Health Service." (§ 224.3, subd. (b).)

Reviewing courts, including this court, have recognized there must be sufficient indication the child is an Indian child within the meaning of ICWA to invoke notice requirements. (In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520; In re Shane G. (2008) 166 Cal.App.4th 1532, 1538; In re O.K. (2003) 106 Cal.App.4th 152, 157.) Here the social worker's inquiry produced no information to indicate Jose Jr. was an Indian child within the meaning of ICWA. (§ 1903(4).) C.B. stated only that her father had told her they had Indian heritage. She could not provide any information about her father other than his name, and had no other information about her family's heritage. The social worker interviewed Jose Jr.'s maternal grandmother. She, too, had no information about the grandfather's whereabouts and was not aware of any Indian heritage.

A bare suggestion the child is an Indian child does not trigger notice requirements. (In re Jeremiah G., supra, 172 Cal.App.4th at p. 1520.) The social worker conducted a reasonable inquiry when she contacted the maternal grandmother for information about the family's heritage. The court did not err when it concluded that ICWA did not apply.


The finding and order is affirmed.


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