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In Re D.S., A Person Coming Under the Juvenile Court Law. v. C.S

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO


December 15, 2010

IN RE D.S., A PERSON COMING UNDER THE JUVENILE COURT LAW. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, PLAINTIFF AND RESPONDENT,
v.
C.S., DEFENDANT AND APPELLANT.

Super.Ct.No. RIJ116690 APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Temporary Judge.

The opinion of the court was delivered by: Hollenhorstj.

In re D.S.

CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Pursuant to Cal. Const., art. VI, § 21.) Reversed and remanded with directions.

OPINION

I. INTRODUCTION

C.S. (father) appeals from orders denying his petition under Welfare and Institutions Code*fn1 section 388 and terminating his parental rights to his son, D.S. (the child). Father contends (1) the juvenile court abused its discretion by denying his section 388 petition when it was in the child's best interest to return to father or for father to be provided further reunification services; (2) substantial evidence supported application of the beneficial relationship exception to adoption under section 366.26, subd. (c)(1)(B)(i); and (3) the Riverside County Department of Public Social Services (Department) failed to comply with notice and inquiry requirements of the Indian Child Welfare Act (ICWA). We agree that requirements of the ICWA were not satisfied, and we therefore conditionally reverse and remand for further proceedings in compliance with the ICWA.

II. FACTS AND PROCEDURAL BACKGROUND

In May 2008, father was arrested for driving under the influence of alcohol in Fresno County. The child, who had been with father in the car, was taken into custody. The child, then six years old, had lived with father his entire life; the child's mother*fn2 had left the family three years earlier, and her whereabouts remain unknown.

Following father's arrest, the Department of Children and Family Services in Fresno County (DCFS) filed a petition under section 300, subdivision (b) alleging father had a history of substance abuse that negatively affected his ability to care for the child. The detention report stated that father and the child lived in Moreno Valley. The child had attended school for only about a month; father had taken him out of school because of behavioral issues. Father did not know the name of the school. The child told the social worker that father disciplined him by hitting him in the face; the last time that had happened was "[y]esterday." Father had slapped the child and knocked him to the ground because the child did not want to eat his cereal. The paternal grandmother stated that father had been drinking alcohol for 20 years, and father had been in trouble in the past from his drinking. He had had a DUI conviction in 1982 and had not had a valid driver's license since 1983.

At the detention hearing in Fresno County, the juvenile court found that a prima facie case had been established as to the child and detained the child in foster care.

The Fresno County DCFS filed a jurisdiction report in June 2008 recommending removal of the matter to Riverside County, where father had resided before the detention. Father had tested negative in a random drug and alcohol test. At the jurisdictional hearing in Fresno County, father pleaded no contest to the section 300, subdivision (b) allegation, and the matter was transferred to Riverside County.

The Department filed a disposition report in August 2008. That report stated that father had attended a parenting class, substance abuse counseling, and group meetings and had made positive improvements. His drug tests were negative. The child was described as developing appropriately and well adjusted, but he also displayed some signs of aggressive and defiant behavior, and the Fresno County DCFS had recommended individual treatment for him following a mental health assessment.

At the disposition hearing in October 2008, the juvenile court ordered reunification services and unsupervised day visits. The court authorized home placement upon a suitable home evaluation, a clear Life scan, and appropriate day care. The court found that the ICWA did not apply.

In a status review report filed in January 2009, the social worker noted that father was having unsupervised visitation with the child on Saturdays for eight hours, and the child was happy and appropriate after the visits. Father had completed a parenting course and was enrolled in a computer drafting course. His random drug tests had all been negative. The social worker reported no developmental or physical concerns for the child, who functioned at an age-appropriate level. The child was enrolled in school and was having a difficult time academically, and testing had been conducted. He was having therapy and was progressing well.

At the six-month review hearing in January 2009, the juvenile court ordered the child returned to father's custody with family maintenance services. All parties agreed the child was attached to and well bonded with father, and that father was capable of meeting the child's needs and had complied with his case plan.

In the July 2009 status review report, the Department recommended that minor remain with father and that the court terminate dependency jurisdiction at the next hearing because the child was happy to be with father, and the issues which had led to the initiation of dependency proceedings "[were] no longer present."

However, a few days later, the Department filed a supplemental petition under section 387, alleging that father had been arrested for domestic violence after an altercation with his girlfriend in the child's presence. The detention report stated that father had called the police, telling them he wanted the girlfriend removed from his home. The girlfriend had marks all over her body, including redness around her throat and arms. She stated father had put a knife to her throat and had threatened to kill her. He had choked her almost to the point of passing out and had dragged her around the house by her leg. The responding officer noted a strong odor of alcohol coming from father's person, and father later told the social worker he had been intoxicated.*fn3

The child witnessed the incident. The child nonetheless told the social worker he loved father, felt safe with him, and was happy in his care. The child cried uncontrollably and refused to get out of the car upon arriving at the foster home. The juvenile court ordered the child detained.

The Department filed a jurisdiction/disposition report on the section 387 petition recommending denial of reunification services to father under section 361.5, subdivisions (b)(10), (11), and (13). The report noted that father had an extensive history with Child Protective Services in Ohio.*fn4 Prior allegations in Ohio included lack of supervision, lack of adequate resources, inadequate parenting skills, lack of follow-through with services, severe physical abuse, and domestic violence. In Ohio, the parents' other six children had been detained from the parents after the parents duct taped one of their children's hands around a pole in the basement, duct taped his mouth, and repeatedly struck him on the upper thigh, resulting in an open wound and about eight linear marks that appeared to have been made by an extension cord. The parents had received services, but failed to reunify. The oldest child had been placed with a relative who became his legal guardian, and the other five children were adopted by the same family in 2004.

Before the July 2009 domestic violence incident, the social worker had not known father was living with a girlfriend. Father said they had lived together for about two months, and he let the girlfriend baby-sit the child. However, the girlfriend had a prior history with the Department and her own son had been placed out of her care.

The social worker interviewed the child about the July 2009 domestic violence incident. The child said father and his girlfriend fought a lot. During the incident, they were drinking and got angry at each other. Father told the child to go inside and watch TV. Father and the girlfriend came inside and yelled at each other. Father pulled the girlfriend out of the house by her legs. The child started to cry and told father to stop hurting the girlfriend, but father did not listen. Father brought the child to a neighbor's house.

Father told the social worker he had only two children. When the social worker asked him about his other children, he became agitated and said he was told not to tell anyone about them. The child was placed with the foster family that had previously cared for him. The foster mother told the social worker that father had sent her a text message with an image of his penis ejaculating. He had later apologized, saying he had sent the message to her by accident.

At the jurisdiction and disposition hearing in September 2009, father testified he had not had any alcohol since the July incident, and he was registered to begin alcohol treatment and domestic violence counseling. Father had pleaded guilty to a felony violation of Penal Code section 422. He was remorseful and admitted using poor judgment, and he stated he loved the child and would do anything to get him back. The juvenile court ordered physical custody of the child removed from father and terminated reunification services under section 361.5, subdivisions (b)(10) and (11). The court set the matter for a hearing under section 366.26.

Father filed a notice of intent to file writ petition, but he failed to file the petition and the matter was dismissed. (Case No. E049125.) We take judicial notice of our records in that matter.

The Department filed an application to initiate an Interstate Compact on the Placement of Children (ICPC) to pursue adoption of the child by the same family in another state that had adopted the child's siblings. The juvenile court granted the application. The trial court also issued a temporary restraining order precluding father from contacting the child's foster family. In December 2009, the juvenile court ordered that the child could be moved to the other state pursuant to the granting of the ICPC petition.

The Department filed a section 366.26 report in December 2009 requesting an additional 60 days to complete the home study of the prospective adoptive family. Father visited the child twice in December 2009. Later that month, the child went to the other state for several days to meet the prospective adoptive family and his siblings.

In January 2010, father filed a request to change court order requesting that the child be returned to his care or that reunification be reinstated with weekly visitation. With respect to changed circumstances, he stated he had completed a technical college course, had maintained sobriety, had been compliant with his probation, had a suitable residence, and had attended a domestic violence program. With respect to the interests of the child, father stated the child loved him and needed to be with him, and he had proven in the past that he loved the child and cared for him. Father attached a letter from a college instructor, a certificate of completion from the college, a report from a domestic violence program stating he had attended 11 classes and had been absent from one class, and a letter from his girlfriend attesting to his parenting skills.

In response, the Department filed an addendum report in March 2010 requesting the juvenile court to deny father's section 388 petition because of father's high risk of domestic violence. The report noted the prior case in Ohio, unsubstantiated investigations in Michigan and Washington, and active arrest warrants in Missouri.

The Department filed an addendum report and adoptive study in April 2010. The study stated the family that had adopted the child's siblings wanted to adopt the child as well and were well qualified to do so. The decision and order of the magistrate from the Ohio dependency case was attached to the report.

At the combined hearing under sections 388 and 366.26, father testified he had cared for the child since birth, and this was the first dependency proceeding involving the child. Father had completed 22 classes in a 52-week domestic violence course. Father helped the child in school, and the child's grades improved while the child was living with father. Father took the child to the bowling alley, played baseball and basketball with him, and took him fishing and camping. Father testified that his visits with the child were "great," and they never had any problems. Father had seen the child before court, and the child gave him a big hug and said he wanted to go home with father that day.

The social worker testified that she had observed "positive interaction" between father and the child when she had visited them at father's home, and father provided for all of the child's medical and physical needs. Her main concern was father's alcohol use, which led to domestic violence. She had no doubt that father loved the child; the child called him "daddy" and gave him hugs. She also testified that the child was eager to return to the other state, and he had been calling the prospective adoptive family two or three times a week. The child testified that even if he went to live with the adoptive family, he would want to see his father and would miss him.

The juvenile court took judicial notice of father's felony case No. RIF151704 stemming from a January 2010 incident in which father had choked his girlfriend, threatened to "kick her ass," and pushed her from a moving vehicle. As a result, father had been arrested for attempted murder, making terrorist threats, and violation of a restraining order. The juvenile court also took judicial notice of father's misdemeanor case No. BAM10000725 stemming from a March 2010 incident in which father was charged with a violation of a restraining order. The juvenile court also noted that two felony violations of probation had been filed.

Following the hearing, the juvenile court denied father's section 388 petition and terminated his parental rights.

Additional facts are set forth in the discussion of the issues to which they pertain.

III. DISCUSSION

A. Denial of Section 388 Petition

Father contends the juvenile court abused its discretion by denying his section 388 petition when it was in the child's best interest to return to father or for father to be provided further reunification services.

1. Standard of Review

A section 388 petition "'is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion. [Citations.]'" (In re S.M. (2004) 118 Cal.App.4th 1108, 1119.)

2. Analysis

Under section 388, a parent may, on the grounds of a change in circumstances or new evidence, request the juvenile court to modify or set aside a previous order. (§ 388, subd. (a).) The parent must show both that (1) circumstances have changed or new evidence exists, and (2) the proposed change of order is in the best interests of the child. (In re S.M., supra, 118 Cal.App.4th at p. 1119; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The trial court found that father had failed to meet his burden of establishing either prong. We agree.

With respect to the first prong, father alleged he had completed a technical college course. The certificate he provided showed that he had completed the course on August 4, 2009; the order he challenged was entered on August 31. Thus, his completion of the course did not constitute a changed circumstance. Father alleged he had maintained sobriety. However, the juvenile court noted that father had been arrested in January 2010 after drinking and committing violence against his girlfriend. Father continued to deny he had an alcohol problem. Father alleged he was in compliance with the terms of his probation. The juvenile court, however, took judicial notice that two felony violations of probation had been filed against father in 2010. Father alleged he had moved into a suitable residence; however, the adequacy of his living conditions was not an issue underlying the dependency. Finally, father alleged he was attending a domestic violence program. The program he described was a 52-week program, of which he had completed only 22 weeks at the time of the hearing. Moreover, the record indicates a long-term problem with physical abuse and domestic violence, including the incident in Ohio that underlay father's losing custody of his other children and most recently, the January 2010 incident in which father was arrested on felony charges. In addition, father had violated a restraining order in March 2010. It is apparent that father has failed to benefit from the services provided to him.*fn5

With respect to the second prong, father contended it would be in the child's best interests to be returned to father's custody because he was dedicated to the child and had cared for the child on his own since the child was three years old. However, in the incident that underlay the original position, father had been arrested for driving under the influence with the child in the car. Although father initially appeared to make some progress in overcoming his problem with alcohol, he had become intoxicated and had committed domestic violence against his girlfriend in the child's presence in July 2009. A further incident of domestic violence occurred in January 2010 and a violation of a restraining order occurred in March 2010. It is abundantly clear from the record that father was unable to control his behavior so as to provide a safe and stable environment for the child. We conclude the trial court acted well within its discretion in denying the petition.

B. Applicability of Beneficial Relationship Exception

Father contends substantial evidence supported application of the beneficial relationship exception to adoption under section 366.26, subd. (c)(1)(B)(i).

1. Standard of Review

Most courts have held that the substantial evidence standard of review applies to the juvenile court's determination whether the beneficial relationship to adoption applies. (See, e.g., In re Autumn H. (1994) 27 Cal.App.4th 567, 574.) However, at least one court has held that the abuse of discretion standard applies to that determination. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) We need not resolve that conflict in authorities, however, because the outcome would be the same under either standard.

2. Analysis

If the juvenile court concludes that a child cannot be returned to his or her parents and is adoptable, the court must select adoption as the permanent plan for the child unless "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" due to exceptions listed in the statute. (§ 366.26, subd. (c)(1)(B)(i); In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.) One such exception is that "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd.(c)(1)(B)(i).)

In this case, the child had spent most of his life under father's care. Moreover, the record shows that father and the child enjoyed positive interactions during visitation. We will assume for purposes of argument that father established that he had maintained regular visitation and contact with the child for purposes of section 366.26, subdivision (c)(1)(B)(1).

However, father also had the burden of showing that the benefit to the child from continuing the relationship with him would outweigh the benefit the child would obtain from adoption. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1344-1345.) Here, the prospective adoptive parents had also adopted five of the child's siblings, and they strongly believed all the siblings should be kept together. They were committed to the child and wanted to provide a stable and permanent home for him. Their ability to do so was attested to by their long experience raising the other children. The siblings had formed a strong attachment to the child after meeting him.

Moreover, the child had expressed a desire to be adopted by the prospective adoptive parents. He called them "ma" and "papa," and he was looking forward to moving to their home and being with his siblings. After visiting the family, he was sad he had to return to California. The child testified that he had been glad to see father in the courtroom and he would like to see father more often because "[h]e has all of my toys," and he enjoyed playing football with father. He also testified that he would like to go to the other state to live with his siblings. He missed father and would want to see father even if he moved to another state.

Unlike in In re Amber M. (2002) 103 Cal.App.4th 681, 689, on which father relies, no bonding study had been conducted and no evidence was proffered to show that the child had a primary attachment to father. Instead, in a mental health assessment in 2008 at the beginning of the proceedings, the child was described as having oppositional and defiant behaviors and was lacking an attachment to any one person. He chose to miss visits with father to have free time at his placement center, and he wanted to visit with father only if father brought him a toy. Ongoing therapy was recommended regarding future visitation. Although the record showed that father enjoyed positive interactions with the child during visitations, there was no showing that the child would suffer detriment if those interactions ceased as a result of the child being placed in a permanent adoptive home.

We conclude father failed to meet his burden of showing that severing the parent-child relationship would deprive the child of a substantial, positive emotional attachment such that he would be greatly harmed. (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1345.) The trial court did not err in determining the beneficial relationship exception did not apply.

C. ICWA Compliance

Father contends the Department failed to comply with notice and inquiry requirements of the ICWA.

1. Additional Background

In the detention report, the social worker stated father initially had denied having Indian heritage. However, father later signed the form indicating he may have Cherokee Indian ancestry. The Fresno County DCFS sent a JV-135 "Notice of Involuntary Child Custody Proceedings for an Indian Child" by certified mail to the Cherokee Nation of Oklahoma, the United Keetoowah Band of Cherokee Indians, the Eastern Band of Cherokee Indians, and the Bureau of Indian Affairs (BIA).

After the matter was transferred to Riverside County, father again told a social worker he had Cherokee ancestry, but he was unsure whether any ancestor was a registered member of a tribe. The social worker attached faxed copies of letters the Fresno County DCFS had received from the United Keetoowah Band of Cherokee Indians and the Cherokee Nation stating that, based on the information provided, the child was not considered an Indian Child.

The notice from the Cherokee Nation listed the paternal grandmother as "Zueleanor S." with an unknown birthdates. In the detention report, the paternal grandmother's name appeared as "Sue Eleanor S." Her name also appears in the record as "Zuelenor." Moreover, her date of birth is listed as unknown, even though both the Fresno County DCFS and the Department had had contact with her.

In October 2008 and September 2009, the juvenile court found the ICWA did not apply.

2. Analysis

The ICWA's major purpose is to protect Indian children, and the law "is based on a presumption that it is in the best interests of the Indian child not to be separated from the tribe. [Citations.]" (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1425.) Thus, "[t]he ICWA's procedure and substantive requirements must be followed in involuntary child custody proceedings when an 'Indian child' is involved." (In re O.K. (2003) 106 Cal.App.4th 152, 155.) For purposes of the ICWA, an "Indian child" is an unmarried person under the age of 18 and who is either a member of an Indian tribe or 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.)

Under California law, the social services agencies and the juvenile courts have "an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . is to be, or has been, filed is or may be an Indian child in all dependency proceedings . . . if the child is at risk of entering foster care or is in foster care." (§ 224.3, subd. (a).) Circumstances that indicate the child is an Indian child include information that the child is a member of a tribe or eligible for membership or that one or more of the child's biological parents, grandparents, or great-grandparents are or were members of a tribe. (§ 224.3, subd. (b)(1).) The social worker must interview the parents and other persons expected to have information about the child's status or eligibility. (§ 224.3, subd.(c).)

Federal regulations require that the notice to the tribes include, among other things "All names known, and current and former addresses of the Indian child's biological mother, biological father, maternal and paternal grandparents and great grandparents or Indian custodians, including maiden, married and former names or aliases; birthdates; places of birth and death; tribal enrollment numbers, and/or other identifying information." (25 C.F.R. § 23.11(d)(3)(2010).)

The record contains no evidence that the Fresno County DCFS or the Department ever asked the paternal grandmother about her maiden name, date of birth, or the correct spelling of her first name, although the record indicates the Department had her telephone number on file, and social workers interviewed her more than once. Nor does the record indicate that any inquiry was made of the paternal grandmother about her own Indian heritage, such as the names and birthdates of her own parents. In In re S.M., supra, 118 Cal.App.4th 1108, the court found ICWA notice inadequate when the notices to the tribes "did not include, . . . the birthdate and birthplace of the paternal grandfather, the birthplace of [the child's] paternal great-grandparents, the places of death if any relatives are deceased, or any current or former addresses." (Id. at p. 1117.) The court observed that the social worker did not state that such information was unavailable, and "[t]he social worker was required to investigate whether this information was available [citation], or report no family member knew the information required," by federal regulations.(Ibid.)

The information included in the notices to the tribe in the present case was even scantier than that in In re S.M. We therefore conclude the inquiry and notice were inadequate under the ICWA. Moreover, the notices sent and the return receipts were not included in the record, as required under section 224.2, subdivision (c).

We may deem a deficiency in inquiry and notice harmless error when, even if notice had been given, the child would not have been found to be an Indian child. (In re S.B. (2005) 130 Cal.App.4th 1148, 1162 [despite defective notice, the tribe eventually took part in the proceedings].) Here, based on the incomplete information provided, the tribes indicated the child was not an Indian child. However, the information provided to the tribes was incomplete, and we therefore cannot conclude the error was harmless. We will reverse the order terminating parental rights and will remand the matter for further proceedings incompliance with the ICWA. (See In re Jonathon S. (2005) 129 Cal.App.4th 334, 342-343; In re Francisco W. (2006) 139 Cal.App.4th 695, 711.)

IV. DISPOSITION

The order terminating parental rights is reversed and the case is remanded to the juvenile court with directions to order the Department to comply with the inquiry and notice provisions of the ICWA and related federal and state law and to file all required documentation with the juvenile court for the court's inspection. If, after proper notice, a tribe claims the child is an Indian child, the juvenile court shall proceed in conformity

with the provisions of the ICWA. If no tribe claims that the child is an Indian child, the order terminating parental rights shall be reinstated.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

We concur: RAMIREZ P.J. MCKINSTERJ.


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