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In Re A.F., A Person Coming Under the Juvenile Court Law. v. A.R

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Lassen)


July 25, 2011

IN RE A.F., A PERSON COMING UNDER THE JUVENILE COURT LAW. LASSEN COUNTY DEPARTMENT OF HEALTH AND SOCIAL SERVICES, PLAINTIFF AND RESPONDENT,
v.
A.R., DEFENDANT AND APPELLANT.

(Super. Ct. No. J5434)

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

In re A.F.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A.R. (mother) appeals from the juvenile court's orders terminating her parental rights and ordering a permanent plan of adoption as to minor A.F. (Welf. & Inst. Code, § 366.26; all further undesignated section references are to the Welfare and Institutions Code.) Mother contends she established the existence of the beneficial parental relationship exception to adoption. (§ 366.26, subd. (c)(1)(B)(i)). She also contends inadequate notice was given under the Indian Child Welfare Act. (ICWA; 25 U.S.C. § 1901 et seq.) Mother's first contention is not persuasive, but we agree that the record does not show adequate ICWA notice was given. Therefore, we shall reverse and remand for further proceedings under ICWA.

FACTUAL AND PROCEDURAL BACKGROUND*fn1

On November 13, 2008, Lassen County Department of Health and Social Services (the Department) filed section 300 petitions as to eight-year-old J.C., seven-year-old W.C., Jr., and newborn A.F. The petitions alleged domestic violence between R.F. (A.F.'s father) and mother, and mother's failure to reunify with an older half sibling of the minors.

The jurisdiction/disposition report, filed January 5, 2009, recommended that J.C. be placed with his father, W.C., and that the other minors stay with mother, who should receive a domestic violence assessment. R.F. was currently incarcerated, with an expected release date of February 21, 2009. The older minors confirmed R.F.'s domestic violence against mother and alleged he physically abused them. The dependency case in which mother had failed to reunify with an older sibling, brought in Oregon, was still open.

On March 3, 2009, the Department filed amended section 300 petitions, alleging: Mother kept razor blades within the minors' reach. On February 18, 2009, mother tested positive for methamphetamine. Eight days later, mother cut her wrists. On February 27, 2009, mother and R.F. engaged in domestic violence. On the same date, mother took large doses of medications and tested positive for opiates, barbiturates, and oxycodone. After telling one of the minors and another child present in the home not to talk to the police, mother was booked for attempting to dissuade a witness and for violating probation.

The detention report, filed March 5, 2009, stated that R.F. had been released from custody and intended to move back in with mother. The two older minors were currently placed with their father, W.C.

On March 9, 2009, the juvenile court ordered W.C., Jr., and A.F. detained.

The disposition report, filed April 3, 2009, recommended terminating the dependencies of the older minors, ordering A.F. to remain in foster care, and granting reunification services to both parents.

Mother reported a history of domestic violence with both male and female partners, teenage gang membership, dealing in and addiction to methamphetamine, and recurring seizures from head trauma inflicted by past domestic partners. Although she had worked as a certified nurse assistant, she was now on disability due to a head injury. She had completed a parenting class and was willing to attend an anger management program; she also agreed to undergo a psychological evaluation and an alcohol and drug assessment.

R.F., who claimed to be with someone else now, denied hitting mother in the last alleged incident of domestic violence.

At the uncontested disposition hearing on April 6, 2009, the juvenile court adopted the recommended findings and orders.

A court-ordered case plan compliance status report, filed on June 11, 2009, stated that mother was still in county jail and no referrals for services had yet been made. She expected to be sentenced to prison for violating probation. The Department was trying to get her into a program called "Family Foundations," which provides housing and services for incarcerated mothers and their children while the mothers serve their sentences. R.F. had not stayed in touch with the Department.

On July 1, 2009, the Department formally requested placement of A.F. with her mother in the Family Foundations program, which mandated 12 months be served in prison and 12 months on supervised parole. Mother had arrived at the Family Foundations facility on June 26, 2009, and on July 10, 2009, A.F. joined her there.

The six-month status review report, filed August 28, 2009, recommended terminating R.F.'s services, but continuing mother's services at Family Foundations. Mother was doing well in the program so far. A.F. had significant developmental delays, and early intervention was advised.

At the six-month review hearing on October 5, 2009, the juvenile court made the recommended findings and orders.

On November 25, 2009, the Department filed a subsequent petition (§ 342), alleging: Mother had been terminated from Family Foundations for disciplinary problems and failure to make progress. Mother failed to feed A.F. properly, failed to change her diapers, and failed to arrange for her to be supervised when unable to care for her. Mother also chronically "portray[ed] a victim role" and showed signs of mental illness.

The detention report on the section 342 petition, filed November 25, 2009, recommended that A.F. be detained and mother be given one hour per week of supervised visitation. Mother had been transferred to Valley State Prison for Women in Chowchilla, where she awaited parole; her release date was uncertain. She was terminated from Family Foundations because, in addition to the grounds stated in the petition, she had attended fewer than 30 days' worth of programs in five months, and had refused the services offered for A.F.'s developmental delays and medical problems, claiming A.F. did not need them.

At the detention hearing on November 30, 2009, the juvenile court made the recommended findings and orders, except that it granted mother two hours of unsupervised visitation twice per week.

The jurisdiction report, filed December 30, 2009, stated that mother was now out on parole. It recommended out-of-home placement for A.F.

On January 6, 2010, the juvenile court found the section 342 petition true.

A case plan compliance status review report filed January 27, 2010, stated that mother had begun services, but had not yet followed through on any of them. A.F. had been placed in a prospective adoptive home.

A "report for status review on original petition and disposition on subsequent petition," filed February 26, 2010, recommended terminating mother's reunification services and setting a section 366.26 hearing.

A psychological evaluation of mother had determined that she suffered from antisocial personality disorder with borderline features; her prognosis for change was poor. Mother disputed this evaluation because she was withdrawing from medications; the psychologist stated the medications would have no effect on the diagnosis.

A.F., now 18 months old, still experienced language delays, for which mother had refused further services for the minor.

A.F. exhibited an "insecure attachment" to mother. A.F.'s foster parents would consider adopting her.

After mother's visitations, A.F. sometimes cried uncontrollably. On one occasion, the foster mother noticed A.F. was "jumped up." Upon inquiry by the social worker, mother revealed that another child had put mother's coffee in A.F.'s "sippy cup." Mother's current residence was unsuitable for home visits. Reducing visitation to one hour per week, supervised, was recommended.

A supplemental report filed March 2, 2010, stated that on February 17, 2010, mother tested positive for clonazepam, phenobarbitol, and alcohol. A second psychological evaluation was scheduled.

On April 8, 2010, the juvenile court ordered supervised visitation but did not reduce the amount of time.

A second supplemental report, filed April 27, 2010, stated that mother had failed three times to show up for her scheduled evaluation. She was still drug-testing positive and missing meetings in her substance abuse treatment program. A domestic violence report had been filed as to her current boyfriend.

A supplemental report filed June 2, 2010, stated that the second psychological evaluation, which mother had finally obtained, was in accord with the first. It assessed the risk to A.F. of returning her to mother's custody as "extremely high" because mother could not cope with stress, including the stress of parenthood, or adapt to change. A.F. continued to develop attachments in her foster home.

A supplemental report filed July 7, 2010, stated that mother refused to enter a dual diagnosis treatment group because she denied mental health problems. She continued to visit A.F.

A combined contested disposition hearing (as to the section 342 petition) and contested permanency review hearing (as to the section 300 petition) was held on July 8, 2010. After hearing testimony from mother and the social worker, the juvenile court terminated mother's services and adopted the other recommended findings and orders.

The section 366.26 report, filed October 25, 2010, recommended terminating mother's parental rights and implementing a plan of adoption for A.F. She was on track developmentally. Her foster parents, who had had custody of her for almost a year, wanted to adopt her, and a home study had approved them. She was emotionally fragile, but had responded extremely well to the foster parents' care. Removing her from their home would be extremely detrimental to her.

Mother's supervised visitations went well while they lasted. However, the foster mother was concerned about the effect of mother's visits because of the way A.F. behaved afterward, and for this reason the court appointed special advocate (CASA) intended to request that the juvenile court terminate visits eventually. At a birthday party held for A.F. in August, A.F. had become extremely upset after witnessing a confrontation between mother and the social worker; afterward she pulled her hair out and was lethargic for days.

The juvenile court held the section 366.26 hearing on November 4, 2010. There was no testimony, but mother's counsel argued that the beneficial parental relationship exception to adoption applied because mother had maintained regular visitation and A.F. had a strong bond with her.*fn2 Impliedly rejecting this contention, the juvenile court ordered the termination of mother's parental rights and the implementation of a plan of adoption by A.F.'s foster parents.

DISCUSSION I

Mother contends the juvenile court's finding that A.F. would not benefit from maintaining a relationship with mother is not supported by substantial evidence. We disagree.

At the selection and implementation hearing, the juvenile court must choose one of four alternative permanent plans for a minor; the permanent plan preferred by the Legislature is adoption. If the minor is adoptable, the court must terminate parental rights absent a showing of detriment to the minor. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)

The parent has the burden of establishing by a preponderance of the evidence that a statutory exception to adoption applies. (In re Valerie A. (2007) 152 Cal.App.4th 987, 998; In re Zachary G. (1999) 77 Cal.App.4th 799, 809 (Zachary G.); Cal. Rules of Court, rule 5.725(d)(4).) We uphold a juvenile court's ruling declining to find such an exception if the ruling is supported by substantial evidence. (Zachary G., supra, 77 Cal.App.4th at p. 809.) In other words, if a parent claims that insufficient evidence supported the order, we evaluate the evidence by viewing it most favorably to the order and do not reweigh the evidence. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)

To prove that the beneficial parental relationship exception applies, the parent must show that he or she "ha[s] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) It is not enough simply to show "some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349.) There must be a significant, positive emotional attachment between parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) Not even a strong and positive parent-child attachment precludes the termination of parental rights if the minor looks to the prospective adoptive parents to meet his or her needs. (Zachary G., supra, 77 Cal.App.4th at p. 811.)

As the court recognized in In re Autumn H. (1994) 27 Cal.App.4th 567, 575, continued contact between the biological parent and child will almost always confer some benefit on the child, but "[i]n the context of the dependency scheme prescribed by the Legislature, . . . the 'benefit from continuing the [parent/child] relationship' exception [means] 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."

Here, the evidence showed overwhelmingly that the beneficial parental relationship did not apply. Although mother had maintained regular visitation, the outcome of that visitation was often unsatisfactory, according to the foster parents, the CASA, the case-carrying social worker, and the adoptions specialist. The relationship was far from a strong and positive attachment. Mother refused to engage in services and was consistently oblivious to A.F.'s emotional and developmental needs. Finally, A.F. was thriving in her foster parents' home and looked to them to meet her needs, which was sufficient reason to find the beneficial parental relationship exception to adoption inapplicable. (Zachary G., supra, 77 Cal.App.4th at p. 811.)

II

Mother contends that the notice given under ICWA was inadequate. We conclude that reversal for further proceedings under ICWA is required because the record fails to show that all the tribes to whom notice was sent actually received it.

At the original initial hearing, mother stated that her maternal grandmother, whose last name mother believed to be the same as her own, was "full blooded Navajo Indian." At the detention hearing, mother also claimed possible Indian ancestry through the Blackfeet Tribe.*fn3

According to the jurisdiction report filed January 5, 2009, mother originally gave the social worker the same information about her maternal grandmother, including the alleged last name (beginning with the letter "R"). Later, however, she stated that the grandmother's full name was Mary P.

The first ICWA notice was sent December 23, 2008, to the Navajo Nation (and also to the Hoopa Valley and Blackfeet Tribes, claimed by A.F.'s father, R.F.).*fn4 Mother's maternal grandmother (A.F.'s maternal great-grandmother) was identified as Mary P. The notice also identified the paternal grandmother, Cheryl J., and the paternal great-grandfather, Edward J., along with his birth and death dates.

On January 6, 2009, the Department served notice of the jurisdiction report dated January 5, 2009, on all tribes previously noticed.

The second ICWA notice, sent March 13, 2009, gave the same information as the first notice, but was sent only to the Hoopa Valley Tribe. The record does not show why the Navajo Nation was not renoticed.

On April 2, 2009, the Hoopa Valley Tribe replied that A.F. was not eligible for enrollment with that tribe. The record fails to show whether the Navajo Nation ever responded to the original notice, either by letter or return receipt.

The section 342 petition, filed November 25, 2009, stated that A.F. had no known Indian ancestry, as did all subsequent documents filed in the case. When making its final orders, the juvenile court found that ICWA did not apply.

The purpose of the ICWA notice provisions is to enable the tribe or the Bureau of Indian Affairs (BIA) to investigate and determine whether the children are Indian children. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) To that end, once the juvenile court has received information that gives reason to believe a child is an Indian child, notice under ICWA must be given. (In re Robert A. (2007) 147 Cal.App.4th 982, 989.) Notice requirements are construed strictly. (Ibid.)

Notice must include all of the following information, if known: the child's name, birthplace, and birth date; the name of the tribe in which the child is enrolled or may be eligible for enrollment; names and addresses of the child's parents, grandparents, great-grandparents, and other identifying information; and a copy of the dependency petition. (§ 224.2, subd. (a)(5)(A)-(D); In re Mary G. (2007) 151 Cal.App.4th 184, 209 (Mary G.).)

The Department must file copies of ICWA notices sent "and all return receipts and responses received[.]" (§ 224.2, subd. (c); see Mary G., supra, 151 Cal.App.4th at p. 209.) "Proof of notice filed with the court must include Notice of Child Custody Proceeding for Indian Child (form ICWA-030), return receipts, and any responses received from the [BIA] and tribes." (Cal. Rules of Court, rule 5.482(b).)

Because ICWA is mainly intended to protect and preserve the tribes, a parent's failure to raise a claim of ICWA notice violation in the juvenile court does not forfeit the issue on appeal. (In re J.T. (2007) 154 Cal.App.4th 986, 991; Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 783, fn. 1 (Nicole K.); In re Marinna J. (2001) 90 Cal.App.4th 731, 738-739.)

Where tribes have received ICWA notice, any error as to that notice is subject to harmless error review. (Nicole K., supra, 146 Cal.App.4th at p. 784.)

Mother asserts: (1) the tribes did not receive notice of A.F.'s maternal ancestry, even though the Department knew the maternal grandmother's name; and (2) the record does not show that "the Navajo tribes" received notice, because notice to them was discontinued after December 2008 and the record does not contain return receipts from them. Mother's second point has merit.

Mother's claim that none of the notices sent gave any information about A.F.'s maternal ancestry is incorrect. As we have explained, the notices gave the name of A.F.'s maternal great-grandmother. ICWA requires notice only of information that is actually known to the Department. (§ 224.2, subd. (a)(5).) Nothing in the record shows that the Department knew or had reason to know anything more about A.F.'s maternal ancestry than the information it gave in the ICWA-030 forms.

But mother's other claim--that the record does not contain return receipts from any tribe--is correct and requires reversal. To satisfy the notice provisions of ICWA, the agency must provide the juvenile court a copy of any return receipt it has obtained from a tribe, as well as any correspondence it has received. (Tina L. v. Superior Court (2008) 163 Cal.App.4th 262, 266-268.) If the agency has not done so, the court may not proceed to find ICWA inapplicable. (Ibid.)

Here, we know that the Hoopa Valley Tribe received notice because it provided a substantive response by letter. But the record fails to show either a letter response or a return receipt from the Navajo Nation. It also fails to show why the Navajo Nation was not renoticed when the Department gave its second notice to the Hoopa Valley Tribe. On this record, we cannot know whether the Navajo Nation actually received notice. Where the record does not show whether a tribe received notice, the harmless error standard does not apply. (Nicole K., supra, 146 Cal.App.4th at p. 784.)

The Department asserts that notice was not required because the juvenile court had no reason to know A.F. was eligible for membership in any tribe. We disagree. The Department relies on In re Shane G. (2008) 166 Cal.App.4th 1532, but there the record affirmatively showed that the agency had inquired into the parents' claims and found evidence that disqualified the child for membership in the only tribe claimed. (Id. at p. 1539.) Here, the record does not so show.

Because the record fails to prove that all noticed tribes actually received notice, we must reverse and remand for further proceedings under ICWA. This also requires us to vacate the juvenile court's orders terminating mother's parental rights and ordering a permanent plan of adoption. (Nicole K., supra, 146 Cal.App.4th at p. 785.)

On remand, the juvenile court shall direct the Department to furnish whatever evidence it possesses of receipt of notice by all tribes to which it sent notice. If, upon examining this evidence, the court concludes that all tribes actually received notice and that A.F. is not an Indian child, the court shall reinstate its orders terminating parental rights and ordering adoption as the permanent plan. If the court concludes that not all tribes actually received notice, the court shall direct the Department to renotice the tribes and proceed in accordance with ICWA thereafter.

DISPOSITION

The orders terminating parental rights and ordering a permanent plan of adoption are vacated. The matter is reversed and remanded for further proceedings in accordance with this opinion.

We concur: BLEASE ,J. HOCH ,J.


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