In re C.T.

Filed 2/25/08 In re C.T. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Kelly T. (father) appeals from an order of the juvenile court terminating parental rights and declaring his children adoptable. (Welf. & Inst. Code, 366.26, subd. (c)(1).)[1] He contends that he qualifies for the "beneficial relationship" exception to the presumption that adoption is the preferred plan for a child's permanent placement. He also contends that notice required by the Indian Child Welfare Act was inadequate. We affirm.

FACTUAL AND PROCEDURAL HISTORY

On September 1, 2006, respondent Ventura County Human Services Agency (HSA) filed dependency petitions on behalf of three-year-old A.T. and two-year-old twins, K.T. and C.T. The petitions allege that the children were at risk of harm due to their mother's untreated mental illness and substance abuse and their parents' history of domestic violence. The petitions state that C.T. was especially at risk because his parents had failed to ensure he received medical treatment for a heart condition. Despite the aid of a social worker and public health nurse, the parents failed to attend C.T.'s medical appointments and failed to reactivate the children's Medi-Cal insurance.

The petitions also allege the family had been evicted from their home and that the parents were using drugs and neglecting the children. The maternal grandmother told the caseworker that the parents were buying drugs with the rent money she had given them, that mother had stolen a prescription pad and was writing her own prescriptions for Oxycontin, and that the parents were selling drugs out of their home. Mother failed to follow through with psychiatric appointments and appeared to be self-medicating with illicit and prescription drugs. Father stated that he was unable to provide care to the mother and the children, admitting that he was having significant difficulty coping with the situation. HSA recommended that the children be permitted to stay at home as they had a "genuine bond" with their parents and appeared to be clean, appropriately clothed and well-fed.

On September 6, 2006, the court held a detention hearing attended by both parents. Counsel for the children requested that the children be placed in protective custody. The court detained the children and ordered that visitation between the parents and children be supervised unless HSA determined that unsupervised visits were appropriate.

The court orally advised the parents of the necessity to comply with case plan requirements. The court also warned the parents that if they did not comply with their case plan, services could be terminated after six months and ultimately their children could be adopted.

Each parent completed a form JV-130, "Parental Notification of Indian Status." Mother indicated that she had no known Indian ancestry. Father indicated he might have Indian heritage, but was unaware of the tribe. The court found that the Indian Child Welfare Act (ICWA) might apply and directed HSA to notify the Bureau of Indian Affairs (BIA). On September 13, 2006, HSA sent form JV-135, "Notice of Involuntary Child Custody Proceedings for an Indian Child," to the BIA and the parents.

In its jurisdictional/dispositional report, HSA stated that the parents had been referred to counseling and parenting programs, but they denied they needed the services. The parents agreed to drug test, but failed to show up for appointments. When interviewed for the report, both parents denied that they engaged in domestic violence.

The maternal grandmother stated that father yelled at mother with the children present, and that father had threatened to shoot grandmother for making a child abuse report. The grandmother expressed concern that father would "go into a rage" and try to hurt her or her husband if the court decided not to send the children home. Mother continued to deny that she had a substance abuse problem, and both parents denied that they had failed to obtain medical care for C.T.

At the jurisdictional/dispositional hearing on October 4, 2006, both parents submitted on HSA's report. The court found the allegations of the petitions to be true and ordered out-of-home placement for the children. Reunification services and supervised visits were ordered for both parents. Father was ordered to attend individual and conjoint counseling to address anger issues and to complete a parenting program. He also was directed to secure employment and to obtain a clean and safe residence for the children.

On February 23, 2007, HSA sent another form JV-135 to the BIA with notice of the date of the six-month review hearing. An executed return receipt from the BIA was filed with the court on March 15.

In the six-month status review report, HSA noted that the parents remained homeless and unemployed. Mother informed the case worker that she was again pregnant. The case worker reported that neither parent had regularly and consistently engaged in services and failed to make substantive progress in their case plans. Father had participated in two sessions of a parenting program, but failed to attend further classes without offering an explanation.

Even though the court had advised them of the significance of participating in family reunification services, the parents refused to sign the case plan. Father said he did not need services. HSA provided them with referrals to various homeless shelters. The parents declined all of the programs, preferring instead to live out of their van, despite mother's pregnancy.

The parents were given regular weekly visits with the children and brought toys or gifts on every occasion. The children expressed happiness at seeing them. Father frequently was emotional at the visits and needed redirection to prevent upsetting the children. At the end of the visits, the parents had difficulty separating from the children, but the children separated easily. The children were doing well in foster care.

The social worker stated that father tended to place blame on everyone else for his lack of compliance with the case plan. The social worker also stated that the children's Indian status was still unknown, and that father continued to assert that his great-great grandmother was Native American, but that he did not know her tribal affiliation.

At the review hearing on April 17, 2007, father testified he had a job opportunity with Roto-Rooter Plumbing, but the company would not provide him with a truck and the necessary equipment unless he had a residence.

Father blamed his failure to comply with his case plan on HSA. He complained that the social worker did not provide him with any referrals to domestic violence or parenting classes. He also blamed his late participation in services on a late referral from HSA. He denied knowing that he was required to participate in parenting classes.

The case worker testified that the parents had been cooperative with her, but that their case plan compliance had been very poor. The parents, however, had been consistent in attending visits with their children and always brought appropriate food for snacks and activities such as puzzles, books and games. The children were happy to see their father, were affectionate, and exhibited no fear of him. The case worker stated the children's reaction to him could indicate that they had a strong bond with him. They did show signs of concern, however, when their father began crying during and after visits.

HSA recommended that the parents' reunification services be terminated and that a section 366.26 hearing be set to establish a permanent plan of adoption. Noting that both parents had "wasted too much time," the court terminated the parents' reunification services and set a 366.26 hearing to develop a permanent plan for the children. The court also found that the parents "failed to participate regularly . . .  [and] make substantive progress" on their services, terminated reunification services and set the matter for a 366.26 hearing. The court found that while there would be some detriment "in the short term" to the children by terminating parental rights, any benefits that the children derived from "that ongoing, somewhat infrequent, short relationship" with their parents were outweighed by the benefits of adoption. Commenting that the parents had "not been in a parental role for quite a long time" and were still having supervised visits, the court found that the beneficial relationship exception did not apply.

On April 24, 2007, HSA sent form JV-135 to the BIA giving notice of the section 366.26 hearing. The BIA responded that it could not make a determination of the children's' Indian status because it needed more information from the family. It asked HSA to review with the family its tribal connections.

The report prepared for the 366.26 hearing noted that the children had been with their prospective adoptive parents for approximately seven months and were described as having a "close and positive" relationship with their caretakers. The assessment indicated that all clearances had been done on the adoptive parents and the children were adoptable. HSA recommended that the parents' rights be terminated and that the children be placed for adoption with the foster family with whom they had been living. The report stated the parents had been visiting regularly with the children and were still bringing snacks, activities and gifts. The children expressed happiness at seeing their parents, and the parents were very affectionate with the children.

On July 10, 2007, after the 366.26 hearing, the court terminated parental rights and ordered the children be placed for adoption. The court stated: "[T]here isn't any question that these children are adoptable. . . . [T]hey are adoptable . . . by their current prospective adoptive parents. . . . [] . . . Certainly in the short term these children are old enough and have had consistent visits that appear to be for the most part appropriate. . . . I think these children would suffer at least in the short term some detriment if parental rights are terminated, because they do know, given their ages, who their parents are and they were raised by them when they were three and a little over two years old by their parents. But that's not the end of what I have to decide. [] The second prong is whether that detriment is sufficient to outweigh the benefits the children will derive and which the law recognizes they will derive from adoption. And I find that the benefits of adoption outweigh the benefits of not terminating parental rights." The court also found that the ICWA did not apply.

HSA filed a motion to augment the record on September 28, 2007. It contains documentation showing that HSA corrected the ICWA notice deficiencies asserted in father's opening brief. Corrected notices were sent to the BIA. On September 17, 2007, the court received evidence of the corrected notices and set a hearing for October 31, 2007, to make a final determination whether the children were Indian children.

On November 5, 2007, HSA filed a second motion to augment the record. The motion contains information showing the revised notices sent to the BIA contained information obtained after the parents and available paternal relatives, including the paternal great-grandmother, were interviewed about possible Indian heritage. More than 60 days elapsed without response from the BIA. The court held a hearing, took notice of the records and found that proper notice had been given and the ICWA did not apply.

DISCUSSION

Termination of Parental Rights

The court reviews the findings of the juvenile court under the substantial evidence test. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) This standard does not permit the court to reweigh the evidence or substitute our judgment for that of the juvenile court. (Rodney F. v. Karen M. (1998) 61 Cal.App.4th 233, 241.)

The purpose of the section 366.26 hearing is to "provide stable, permanent homes for [dependent children]." ( 366.26, subd. (b).) Adoption is the preferred permanent plan for dependent children. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1416.) "'Only if adoption is not possible, or if there are countervailing circumstances, or if it is not in the child's best interests are other, less permanent plans, such as guardianship or long-term foster care considered.'" (In re Autumn H. (1994) 27 Cal.App.4th 567, 574.) "When the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent/child relationship, the court should order adoption." (In re Zachary G. (1999) 77 Cal.App.4th 799, 811.)

This rule is subject to five statutory exceptions. Father relies on the "parental benefit" (sometimes call the "beneficial relationship") exception in section 366.26, subdivision (c)(1)(B)(i). The section provides that parental rights shall not be terminated if "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Ibid.) The parent bears the burden of proving the exception. Only in the "extraordinary case" can a parent establish the exception because the permanent plan hearing occurs "after the court has repeatedly found the parent unable to meet the child's needs." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)

To meet his burden of proof, a father must show more than frequent and loving contact or pleasant visits. (In re Derek W., supra, 73 Cal.App.4th 823, 827.) "Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from day-to-day interaction, companionship and shared experiences." (In re Autumn H., supra, 27 Cal.App.4th 567, 575.) The father must show he occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) The juvenile court may reject a parent's assertion of the exception simply by finding that the relationship maintained during visitation does not benefit the child significantly enough to outweigh the strong preference for adoption. (In re Jasmine D., supra, 78 Cal.App.4th 1339, 1350.)

A parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent, or that the parental relationship may be beneficial to the child only to some degree. (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) The parent must also show that continuation of the parent-child relationship will 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 re Autumn H., supra, 27 Cal.App.4th 567, 575.)

The parent's burden is very difficult to meet where he has not lived with the child. (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) A true parental relationship is a product of day-to-day interaction, companionship and shared experiences, with a significant attachment from child to a parent arising from an adult's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation. (Id. at p. 50.) To overcome the preference for adoption and avoid termination of the natural parent's rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. (Ibid.)

HSA removed the children when they were two and three years old. Since that time they have resided in foster care with a family who wants to adopt them. Their foster parents occupy the parental role by providing day-to-day care. Father's visits did not rise to the level of a parental relationship. Father's testimony that he loved his children and they loved him is not evidence that the children would be harmed if parental ties were severed. The juvenile court found that father had not complied with his case plan, had not found employment and had not found a place to live, despite the help provided by HSA.

Substantial evidence supports the juvenile court's finding that the children would not be greatly harmed if the bonds they and father shared were severed. The court acted properly by terminating father's parental rights because he did not establish that his relationship with the children satisfies their "need for a parent." (In re Jasmine D., supra, 78 Cal.App.4th 1339, 1350.)

Indian Child Welfare Act

The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. 1901, 1902, 1903(1), 1911(c), 1912.) "The ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource." (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) The juvenile court and social services agencies have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. The duty to provide notice under the ICWA arises when "the court knows or has reason to know that an Indian child is involved." (25 U.S.C.  1912(a).)

Courts have held repeatedly that only a hint or suggestion of Indian ancestry is necessary to trigger the ICWA notice requirements. (See In re Miguel E. (2004) 120 Cal.App.4th 521, 549 ["'The determination of a child's Indian status is up to the tribe; therefore, the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement'"]; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1405-1408 [father's statement that he believed his deceased maternal grandparents might have had Indian ancestry, without identifying a tribe or the birthdates, birthplaces, tribal affiliations, or enrollment statuses of the deceased maternal grandparents, was sufficient to trigger the ICWA notice requirements].)

Once triggered, ICWA notice must be sent to the Indian child's tribe and, if the tribe is unknown, to the BIA. (25 U.S.C.  1912(a).) The BIA and the tribe have the right to determine whether a child is an Indian child. (In re Junious M. (1983) 144 Cal.App.3d 786, 794.)

HSA notified the BIA on two occasions. On the first occasion, BIA responded that it needed more complete information to determine whether ICWA applied. HSA made further inquiry of the parents' relatives and sent this information to the BIA. The BIA did not respond within the statutory time. ( 224.3, subd. (e)(3).) The juvenile court held a subsequent hearing at which the amended notices were submitted and, based on the corrected notices and nonresponse from BIA, again found the ICWA did not apply. HSA cured any notice defects pointed out in father's brief.

We conclude both the juvenile court and HSA satisfied the duty of inquiry under the ICWA. (See , e.g., In re Christopher I. (2003) 106 Cal.App.4th 533, 566-567 [appellate court augmented record with newly-sent ICWA notices and determined based on that evidence that notice was adequate].)

The order of the juvenile court is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Tari L. Cody, Judge

Superior Court County of Ventura

______________________________

Lee Gulliver, under appointment by the Court of Appeal, for Defendant and Appellant.

Noel A. Klebaum, County Counsel, Patricia McCourt, Assistant County Counsel, for Plaintiff and Respondent.

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[1] All statutory references are to the Welfare and Institutions Code.