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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Sacramento


March 15, 2011

IN RE A.S., A PERSON COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
I.S., DEFENDANT AND APPELLANT.

Super. Ct. No. JD229986

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

In re A.S. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.S., the father of three-year-old A.S., appeals from an order of the Sacramento County Juvenile Court terminating his parental rights. (Welf. & Inst. Code, § 366.26.)*fn1 On appeal, he contends the court erred at the jurisdiction/disposition hearing by conducting the hearing in his absence, denying him reunification services, and denying him visitation; these matters are reviewable because he was not timely notified of his right to writ review. Father also contends the Department of Health and Human Services (Department) and the court failed to inquire whether he had Indian heritage. We shall affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Originating Circumstances

On the morning of July 16, 2009, Sonoma County officials arrested father for check fraud. A.S., who was with him, was taken into protective custody because she had no provisions for support. Her mother's whereabouts were unknown and she had no other family in the area.

Two days later, mother told a social worker that, by informal agreement, she and father have alternated custody of A.S. on a weekly basis since she was eight months old. Father obtained custody two days prior to his arrest and mother has had no further contact with him.

Father's criminal history includes convictions for possession of drugs, possession of a firearm by a felon, receiving stolen property, evading police officers, and possession of a check with intent to defraud.

Petition

On July 20, 2009, a petition was filed alleging that A.S. came within juvenile court jurisdiction because father had been detained and failed to make appropriate arrangements for her care and custody. (§ 300, subd. (g).) The petition also made abuse of sibling allegations against mother.*fn2 (§ 300, subd. (j).)

Mother claimed Cherokee heritage. There was no claim of Indian heritage in father's family.*fn3 Notice of the proceedings was sent to the three Cherokee tribes and the Bureau of Indian Affairs (BIA).

At an initial hearing on July 21, 2009, the juvenile court ordered that A.S. be detained and that father should have no contact with her until further order of the court. The court issued an order to produce father, a state prisoner, for the purpose of testifying on August 21, 2009.

Jurisdiction

On August 11, 2009, a Department social worker sent father a letter requesting an interview. No contact with him had been established as of the writing of the jurisdiction/disposition report.

Father was not present for the August 21, 2009, hearing. The court ordered the Sonoma County Jail to produce father at the continued hearing on September 18, 2009.

The three Cherokee tribes reported that A.S. was not an Indian child or was not eligible for enrollment.

A report addendum indicated that on August 23, 2009, the social worker interviewed father by telephone. He indicated that he had been sentenced to state prison for four years four months and would be incarcerated for two years two months. There is no indication that father was asked about his Indian heritage.

Father was not produced for successive court hearings on September 18, October 16, and November 13, 2009. A contested jurisdiction/disposition hearing was set, but father was not produced for the hearings on December 11, 2009, and January 25, 2010.

On January 25, 2010, father was on a medical quarantine hold in San Quentin State Prison and thus could not be produced. The juvenile court denied his request for a further continuance, citing section 352, subdivision (b). The court sustained the section 300, subdivision (g), allegation against father and sustained the extant allegations against mother.

Disposition

The juvenile court found by clear and convincing evidence that services shall not be provided to father pursuant to section 361.5, subdivision (e)(1), based upon his being incarcerated for a lengthy period of time. The court limited father's visitation with A.S. to "supervised letter contact only," because in-person visitation "would jeopardize the safety of the child." A selection and implementation hearing was set for May 21, 2010. The clerk was directed to inform the parents of the requirements for filing a writ petition.

The disposition findings and orders were mailed to father at the Sonoma County Jail, where he previously had been incarcerated; however, they were not mailed to him at the state prison where he most recently had been incarcerated. A written advisement regarding the filing of a writ petition was sent to Pelican Bay State Prison rather than to San Quentin State Prison where father was incarcerated.

ICWA Compliance Hearing

At a hearing on February 19, 2010, the juvenile court found that ICWA noticing had been completed and that no further notice was required since A.S. was not an Indian child.

Selection and Implementation Hearing

The selection and implementation report stated that A.S. was a bright child, almost three years old, who spoke clearly and eats and sleeps well. She was developing a healthy attachment to her caretakers from whom she seeks love and support. Their home had been studied and approved. The caretakers have adopted two other children and a third adoption was pending. The Department recommended termination of parental rights.

Father was the only witness at the selection and implementation hearing. He testified that he and A.S. love one another; he had been taking care of her since she was a baby; he has fed her, changed her diaper, and comforted her; he has taken parenting classes, attended church, and written to A.S.; he disagrees with the recommendation to terminate parental rights because he wants to remain in her life; and termination would be detrimental because she knows him as her father.

The juvenile court found that A.S. was generally adoptable and that there were no exceptions that would preclude the court from ordering adoption. Father's parental rights were terminated.

DISCUSSION

I

Father contends, and the Department concedes, this court may review the orders made at the jurisdiction/disposition hearing because the writ advisement to father was not mailed to the correct address. We accept the Department's concession.

Section 366.26 indicates that the juvenile court, "after issuance of an order directing a hearing pursuant to this section be held, shall advise all parties of the requirement of filing a petition for extraordinary writ review as set forth in this subdivision in order to preserve any right to appeal in these issues. This notice shall be made orally to a party if the party is present at the time of the making of the order or by first-class mail by the clerk of the court to the last known address of a party not present at the time of the making of the order." (§ 366.26, subd. (l)(3)(A), italics added.) When a person is not given correct notice of the right to file a writ petition, the appellate court will review the setting order on appeal from the selection and implementation hearing. (In re Cathina W. (1998) 68 Cal.App.4th 716, 722.)

Father was not present at the disposition hearing where the selection and implementation hearing was set because he was in custody and quarantined at San Quentin State Prison at the time. At the outset of the hearing, the juvenile court stated that it had been advised of father's quarantine at San Quentin earlier that day.*fn4 Because the subsequently issued writ advisement was sent to Pelican Bay State Prison, not San Quentin, father did not receive proper notice at his last known address. Thus, his claims are properly before us in this appeal.

II

Father contends the juvenile court erred by conducting the jurisdiction and disposition hearings in his absence. In his view, Penal Code section 2625 precluded the court from conducting the hearings without his physical presence or an appropriate waiver. We find no prejudicial error.

Penal Code section 2625 provides in relevant part: "[N]o petition to adjudge the child of a prisoner a dependent child of the court pursuant to subdivision (a), (b), (c), (d), (e), (f), (i), or (j) of Section 300 of the Welfare and Institutions Code may be adjudicated without the physical presence of the prisoner," unless an appropriate waiver is submitted; there is no claim of waiver in this case.

In this case, the principal allegation against father was pleaded under section 300, subdivision (g), which is not listed in Penal Code section 2625. Father claims the Penal Code provision is applicable because the petition included an allegation under section 300, subdivision (j), which is listed. However, before it adjudicated A.S. a dependent, the court amended the section 300, subdivision (j) allegation at father's request to strike its only reference to him -- an allegation that his parental rights to a sibling had been terminated in June 2004. As amended, the section 300, subdivision (j) allegation pertained solely to mother. Thus, defendant had no statutory right to be in court for the only allegation that was to be adjudicated against him. (Cf. In re Iris R. (2005) 131 Cal.App.4th 337, 341-342 [no statutory right where all allegations except section 300, subdivision (g) allegation were dismissed].)

We shall assume for present purposes that Penal Code section 2625 gave father a statutory right to be present during the adjudication of the section 300, subdivision (j), allegation against mother. On this record, his absence was manifestly harmless.

Father's claim of prejudice is that he would have provided information relevant to the decision whether to grant him reunification services. (§ 361.5, subd. (e)(1).) However, any entitlement to services stemmed from the section 300, subdivision (g) allegation against him, not from the section 300, subdivision (j) allegation against mother. As we have seen, father had no statutory right to be in court for the determination of issues stemming from the section 300, subdivision (g) allegation. He has not shown how his presence in court could have altered the determination of the section 300, subdivision (j) allegation against mother. Any error was manifestly harmless. (In re Jesusa V. (2004) 32 Cal.4th 588, 625; People v. Watson (1956) 46 Cal.2d 818, 836.)

III

Father contends the denial of reunification services is not supported by sufficient evidence of detriment to the child. We disagree.

Background

Section 361.5, subdivision (e)(1), provides in relevant part: "If the parent or guardian is incarcerated or institutionalized, the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the length and nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered . . . , the likelihood of the parent's discharge from incarceration or institutionalization within the reunification time limitations described in subdivision (a), and any other appropriate factors."

The second addendum to the disposition report stated in relevant part that "[s]section 361.5(e) applies to the father, in that the father has been sentenced to a prison term of four years and four months, which exceeds the statutory time-frame for reunification services." The addendum recommended that reunification services be denied pursuant to this statute.

At the hearing, the juvenile court found by clear and convincing evidence that "services shall not be provided to the father pursuant to 361.5(e), which is recommended in the most recent addendum in the assessment section. [¶] . . . [¶] Father is incarcerated for a lengthy period of time. [¶] . . . The child is young and adoptable."

Analysis

"In reviewing the sufficiency of the evidence on appeal, we look to the entire record to determine whether there is substantial evidence to support the findings of the juvenile court. We do not pass judgment on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies. Rather, we draw all reasonable inferences in support of the findings, view the record in the light most favorable to the juvenile court's order, and affirm the order even if there is other evidence that would support a contrary finding. [Citation.] When the [juvenile] court makes findings by the elevated standard of clear and convincing evidence, the substantial evidence test remains the standard of review on appeal. [Citation.] The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the order. [Citations.]" (In re Cole C. (2009) 174 Cal.App.4th 900, 915-916.)

In this case, the juvenile court expressly considered the child's age and the length of father's prison sentence. As he concedes, there was no evidence of father-child bonding. His argument that the court could have presumed such bonding fails because, at best, it identifies "other evidence that would support a contrary finding." (In re Cole C., supra, 174 Cal.App.4th at pp. 915-916.)

Because the allegations pleaded against father did not suggest or imply that any particular social service was a prerequisite to reunification, the court had no occasion to consider the length or nature of treatment being offered at San Quentin. The court's express finding that the child is young and adoptable supports an implied finding that denial of services would not be detrimental. Finally, no evidence suggested that father would be discharged from incarceration within the reunification time limit. The fact that other evidence might have justified an extension of the limit does not require reversal of the judgment. (In re Cole C., supra, 174 Cal.App.4th at pp. 915-916.)

The juvenile court could deduce that, in order to be able to provide for A.S.'s care and custody, father needed criminal rehabilitation rather than customary social service; that the rehabilitation process would be coextensive with, or lengthier than, the reunification period; and delaying permanence to accommodate a process with speculative prospects for success would be detrimental to the child. Father has not met his burden of showing that there is no evidence of a sufficiently substantial nature to support the order. (In re Cole C., supra, 174 Cal.App.4th at pp. 915-916.)

IV

Father contends (AOB 45-57) the juvenile court did not have "sufficient evidence of detriment to the child to deny visitation to the father." We are not persuaded.

Initial Hearing

In August 2009, the juvenile court ordered that "[f]ather shall have no contact with the child until further order." Father could have challenged this denial of visitation in an appeal from the disposition order, but no such appeal was taken. (§ 395; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.) Thus, the issue is not properly before us in this appeal from the order terminating parental rights.

Contrary to father's argument, due process does not forbid application of the forfeiture rule in this context. (In re Janee J. (1999) 74 Cal.App.4th 198, 208-209.) His ability to prove that he had bonded with his daughter prior to his incarceration did not depend upon evidence showing how she responded to him when reunited behind prison walls. Rather, father described their bond during his testimony at the present hearing.

Disposition Hearing

At disposition, father requested "a general visitation order" and, if that were declined, "supervised letter and telephone contact." The juvenile court ordered that there be "no physical contact between the child and [father]," because it "would jeopardize the safety of the child." (RT 63) However, the court ordered "supervised letter contact," during which the social worker or another person could "read the letters to the child."

"Once the juvenile court has denied reunification services under subdivision (e)(1), section 361.5, subdivision (f) gives the court discretion to allow the parent to continue visitation with his or her child unless it finds that visitation would be detrimental to the child. In the latter event, subdivision (f) provides that the court does not have discretion to continue to permit visitation." (In re J.N. (2006) 138 Cal.App.4th 450, 457.)

In this case, the juvenile court exercised its discretion by limiting visitation to "supervised letter contact." Father has not shown that the court's exercise of its discretion was arbitrary, capricious, or patently absurd. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)

Alternatively, any abuse of discretion could not have been prejudicial because the lack of in-person visitation did not prevent father from establishing an exception to the termination of parental rights.

One of the circumstances under which termination of parental rights would be detrimental to the minor is: "The 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).) The benefit to the child must promote "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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Even frequent and loving contact is not sufficient to establish this benefit absent a significant positive emotional attachment between parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Brian R. (1991) 2 Cal.App.4th 904, 924.)

In this case, any error in preventing father from showing that he had maintained regular visitation and contact with A.S. could not have been prejudicial. No evidence suggested that the strength and quality of A.S.'s relationship with father in a tenuous placement outweighed the security and the sense of belonging that a new family would confer. Thus, severing the natural parent/child relationship would not deprive A.S. of a substantial, positive emotional attachment such that she would be greatly harmed. Because father cannot satisfy the benefit prong of the exception to termination, any error with respect to the visitation prong did not violate due process.

V

Father contends the Department and the juvenile court failed to inquire of him whether he had any Indian heritage at any point in this dependency proceeding. We find no prejudicial error.

Background

The section 300 petition indicated that no Indian child inquiry had yet been made. No information regarding Native American heritage had been available at the time of the detention report. The ICWA notice signed on July 30, 2009, stated that father "is incarcerated and as such there is no information regarding any [I]ndian ancestry." No information was listed for father's parents.

In his opening brief, father contended he "does believe he has Indian ancestry on both his mother and his father's sides." Concurrent with the brief, father filed a request for this court to take further evidence of his Indian ancestry. Specifically, he sought "factual determinations" that (1) the court or Department never inquired of him whether he had Native American ancestry in this case, and (2) had such inquiry been made, he "would have stated that he believed both his parents to have Native American ancestry." Father supported the request with his declaration that he "was told by [his] parents before they died that [he has] American Indian heritage." The declaration set forth the parents' names and places of birth and stated that their dates of birth could be provided. We denied father's request to take evidence on November 4, 2010.

Thereafter, the Department filed its brief conceding the first factual determination, i.e., that father was never questioned about his Indian status. In light of our refusal to make the second factual determination, the Department contended "there is no evidence that further information was available to be provided to the BIA."

In his reply brief, father acknowledges our denial of his request but reiterates that he "is making an offer of proof that [he] had information on his parents, including dates and places of birth." The offer of proof effectively asks us to reconsider in part our denial of father's request to take additional evidence on appeal. Because the offer of proof sets forth no valid reason to do so, we decline to consider it further.

Analysis

Father does not contend the ICWA notice was deficient for having omitted any tribe. Neither the present record nor his request identified any tribe with which he may have been affiliated.

Instead, father claims the notice sent to the BIA was inadequate in that it failed to include his parents' names and dates of birth. He argues he would have furnished that information if asked, and the omitted information would have assisted the BIA in conducting a meaningful review.

However, in order for the court to remand for further ICWA noticing, there must be some evidence that father has Native American heritage. (In re Noreen G. (2010) 181 Cal.App.4th 1359, 1385-1388; In re N.E. (2008) 160 Cal.App.4th 766, 769-771.) Because the appellate record contains no such evidence, and father's offer of proof is not properly before us following the denial of his request for appellate factfinding, we have no occasion to remand for further ICWA notice proceedings.

DISPOSITION

The judgment (order terminating parental rights) is affirmed.

We concur: BLEASE , J. MURRAY, J.


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