In re D.M.
Filed 6/28/12 In re D.M. CA4/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
In re D.M., a Person Coming
Under the Juvenile Court Law.
SAN
BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
C.W. et al.,
Defendants and Appellants.
E055210
(Super.Ct.No.
J234591)
OPINION
APPEAL from
the Superior Court
of
Bernardino County.
Barbara A. Buchholz, Judge.
Reversed.
Rich
Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant
C.W.
Sharon S.
Rollo, under appointment by the Court of Appeal, for Defendant and Appellant
C.M.
Jean-Rene
Basle, County Counsel,
and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
Appellants
C.W. (mother) and C.M. (father) are the parents of D.M. (the child). Their parental rights as to the child were
terminated. Father and mother filed
separate briefs on appeal, but join in each other’s arguments. Mother claims that the beneficial parental relationship exception
(Welf. & Inst. Code, § 366.26, subd.
(c)(1)(B)(i)
title="">[1]) applied, and that there
was no basis for jurisdiction under section 300, subdivision (g). Father contends that the order terminating
because the San Bernardino County Children and Family Services (CFS) failed to
comply with the requirements under the Indian
Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) CFS concedes, and we agree, with the
ICWA claim. Therefore, we will
conditionally vacate the order and remand the matter to the juvenile court with
directions to order compliance with the ICWA notice provisions. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On August 30, 2010, CFS filed a section
300 petition on behalf of the child. The
petition alleged that the child came within section 300, subdivisions (b)
(failure to protect), and (g) (no provision for support). Specifically, the petition alleged that the
child was at risk of suffering harm because of mother’s and father’s histories
of substance abuse. It also alleged that
father engaged in illegal drug activity while the child was in his presence,
and mother failed to protect the child when she knew or reasonably should have
known that he was engaging in illegal drug activity in the child’s
presence. The petition further alleged
that father was arrested on drug-related and child endangerment charges, and
the child was left with no provision for support. The child was two years old at the time.
In the
detention report, the social worker reported that this matter came to CFS’s
attention after the police reported they had arrested father during a drug
sting operation. Father arrived with
methamphetamine for sale and had the child on the back of his bicycle, in a
seat with no helmet or protective gear.
Mother later arrived at the police station and requested custody of the
child. A review of mother’s past criminal
history and dependency history revealed her prior involvement with drugs and
her failure to reunify with her two other children. In view of these circumstances, the police
determined that it would be in the child’s best interest to remove her from
mother’s custody since mother knew or reasonably should have known that father
was engaging in criminal activity, and she allowed him to take the child with
him to make a drug transaction. Mother
insisted she did not know that father was engaging in illegal drug activities.
At the
detention hearing, mother denied Indian heritage. Father reported that he may have Indian
ancestry in the “Blackfoot” tribe on his mother’s side.
and also spelled her maiden name and specified her age. He had not had contact with her in the last
year, so he had no further information.
Father also reported that his grandmother, Mabel D., would have
knowledge of his Indian ancestry, and he gave her name, telephone number, city
of residence, and approximate age.
Father indicated he had another grandmother, Cathy L., who may have
knowledge of his Indian ancestry, but he had no personal information or contact
information for her. The juvenile court
ordered the parents to complete the Parental Notification of Indian Status forms. Father indicated on the form he may have
Blackfeet ancestry. The court detained
the child in foster care.
The social
worker filed a jurisdiction/disposition report recommending that the petition
be sustained, and the allegation under section 300, subdivision (g), be
dismissed. She further recommended that
the child be declared a dependent, that father be found to be the presumed
father, and reunification services be provided to mother and father (the
parents).
The social
worker was aware of three visits that had taken place with the parents since
the child’s removal. She observed at one
visit that mother was appropriate in her interactions with the child, and she
and the child appeared to be bonded.
The social
worker further reported that the child was placed with a maternal uncle and
aunt on September 15, 2010.
A
jurisdiction/disposition hearing was held on September 21, 2010, and the parents both requested
mediation. Father’s counsel informed the
court that father was released from custody one week prior. The court set the matter for mediation and a
presettlement conference on October
27, 2010.
Mediation
resulted in a partial agreement. Mother
submitted on the section 300, subdivision (b) allegation that she had a drug
history, which impeded her ability to effectively parent the child. She also submitted on the other section 300,
subdivision (b) allegation, as it was rewritten to state that she failed to
protect the child and reasonably should have known father was engaging in
illegal drug activity in the presence of the child. CFS and mother agreed that she would enter an
impatient facility and have the child placed with her there, and that mother
would complete substance abuse treatment and a parenting program. The mediator’s report stated that father was
currently sentenced to five years, but if release from custody within 12
months, CFS agreed to offer reunification services, which father agreed to
participate in.
At a
informed the court that father had signed a new ICWA form stating he had no
Indian heritage that he knew of. Father
confirmed he had no Indian heritage.
Father’s counsel confirmed father’s agreement to the mediation. Counsel for the child requested that the
matter be set for contest.
At the
jurisdiction/disposition hearing on November
30, 2010, the court sustained the petition as amended, found that
the child came within section 300, subdivisions (b) and (g), declared her a
dependent of the court, and removed her from the parents’ custody. The court ordered reunification services for
mother, but not father, in accordance with the mediation agreement. The court also found that father was the
presumed father, and that the child did not come within the provisions of
ICWA. The court ordered weekly
supervised visits for mother.
The social
worker filed a six-month status report recommending that the court terminate
services and set a section 366.26 hearing.
Mother had been provided with numerous services, but had been
inconsistent in her participation and had failed to show progress. As to visitation, she had been attending
regularly.
At a
contested six-month hearing on July 22, 2011, mother’s counsel, who was
specially appearing for father’s counsel, informed the court that father was
now indicating that he did have Indian heritage. Counsel gave the name of the great
grandfather Wayne D., and said she had his address and phone number. Counsel also gave the name of Catherine L.,
and Francine D., who was the great grandmother.
Counsel for CFS stated that CFS would follow up with the names and
numbers of the relatives.
The court
found that mother had failed to participate regularly in her case plan, and that
return of the child to the parents would be detrimental to the child’s
safety. The court ordered services
terminated and set a section 366.26 hearing.
On
September 1, 2011, CFS filed ICWA notices that were originally mailed on August
2, 2011, to the Bureau of Indian Affairs (BIA), the Cayuga Nation, the Seneca
Nation of New York, the Seneca-Cayuga Tribe of Oklahoma, and the Tonawanda Band
of Senecas. According to the
nonappearance review minute order of October 31, 2011, the ICWA notices had
been sent with the information provided by the parents, and CFS received
responses from the Seneca Nation, Cayuga Nation, Seneca-Cayuga Nation, and the
Tonawanda Band, indicating that the child did not qualify for membership. CFS recommended that the court find that
notice had been given as required, and the BIA and the Secretary of the
Interior had failed to respond after 65 days since notice was received.
The social
worker filed a section 366.26 report recommending that parental rights be
terminated and the permanent plan of adoption be implemented. The social worker reported that the child was
likely to be adopted due to her age and her foster parents’ desire and ability
to adopt her. They had been her foster
parents for over one year, and they thought of her as their own child. They were committed to adopting her.
The social
worker reported that mother was having supervised visits twice a month. The supervising foster parent reported that
mother had been defensive and aggressive in the past, but was now exhibiting
more cooperation and listening to suggestions about how to best interact with
the child. The social worker further
noted that the child did “not appear to show attachment to her mother during
the supervised visits.” Although the
child appeared to enjoy the attention from mother at visits, she “[did] not
look to mother to have her needs met.”
The court
held a contested section 366.26 hearing on December 1, 2011. The court heard testimony from mother and the
foster mother. It then found it likely
that the child would be adopted, terminated parental rights, and set adoption
as the permanent plan.
ANALYSIS
I. The
Beneficial Parental Relationship Exception Did Not Apply
Mother contends that the court
erred in not applying the beneficial parental relationship exception under
section 366.26, subdivision (c)(1)(B)(i).
We disagree.
At a section 366.26 hearing, the
court determines a permanent plan of care for a dependent child. (In re
Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by
the Legislature. (In re Celine R. (2003) 31 Cal.4th 45, 53.) If the court finds that a child may not be
returned to his or her parents and is likely to be adopted, it must select
adoption as the permanent plan, unless it finds a compelling reason for
determining that termination of parental rights would be detrimental to the
child under one of the exceptions set forth in section 366.26, subdivision
(c)(1). One such exception is the
beneficial parental relationship exception set forth in section 366. 26,
subdivision (c)(1)(B)(i). (See
1200, 1206.) This exception applies when
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 phrase “benefit from continuing the
relationship” refers to a parent/child relationship that “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. 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 (
beneficial parental relationship exception applies. (In re
Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)
In support
of mother’s position, she asserts that the social worker stated at the outset
of the dependency that she (mother) was “highly appropriate in her interaction
with the child and it appears that the two [were] very bonded.” Mother then asserts that “all of the evidence
indicated the bond continued throughout the case.” She points to her own testimony at the
section 366.26 hearing that the child called her “mommy,” and called her foster
parents “uncle” and “aunt.” Mother also
testified that the child sometimes cried at the end of her visits and did not
want to leave. The child sometimes asked
why she could not go home with mother.
Mother further asserts that she gave the child clothing and shoes, and
fed her when she was hungry. Moreover,
she and the child “ate and enjoyed playing together.” Mother points out that the foster mother’s
testimony confirmed her testimony and emphasizes that the foster mother stated
that the child has had “outbursts . . . that may be attributed to
grief and loss due to separation from her mother.” Mother claims this evidence “is more than
sufficient to show [the child] will be harmed if the relationship is severed.”
We
disagree. Mother’s interactions with the
child do not even begin to demonstrate that her relationship with the child
promoted her well-being “to such a degree as to outweigh the well-being the
child would gain in a permanent home with new, adoptive parents.” (Autumn
H., supra, 27 Cal.App.4th at p.
575.) Mother has not proffered any
evidence to support a finding that the child had a “substantial, positive
emotional attachment [with her] such that the child would be greatly harmed” if
the relationship was severed. (
While the foster mother did note that the child had outbursts, the
outbursts were “occasional.” Moreover,
the foster mother was only speculating that the outbursts “may” be attributable
to grief and loss due to separation from mother. At the same time, the foster mother reported
that the child “[did] not appear to show attachment to her mother during the supervised
visits.” She also observed that,
although the child appeared to enjoy the attention from mother, she “[did] not
look to mother to have her needs met.”
At best, mother’s supervised interactions with the child “amounted to
little more than playdates for [her] with a loving adult.” (In re
Bailey J. (2010) 189 Cal.App.4th 1308, 1316.)
In
contrast, the evidence shows that the prospective adoptive parents and the
child had a mutual attachment, and they were able to meet her social, medical,
and financial needs. The prospective
adoptive parents felt like the child was their own, and they were committed to
adopting and raising her to adulthood.
Mother
points out that the prospective adoptive parents only committed to adopting the
child a few days before the section 366.26 hearing. However, the prospective adoptive father
explained that, up until a few days prior to the hearing, he was not fully
committed to adopting the child because he felt that the pressure of dealing
with his sister (mother) and other family members would be too difficult. However, he changed his mind after much
thought and discussion with his wife and stated that he could not envision the
child leaving their home.
We conclude that the beneficial
parental relationship exception under section 366.26, subdivision (c)(1)(B)(i),
did not apply here.
II. The Court Properly Took Jurisdiction of
the Child
Mother argues that the court erred when it found the
allegation under section 300, subdivision (g), to be true. She concedes that “this issue is not
determinative of the case because jurisdiction was properly taken under section
300, subdivision (b).” Nonetheless, she
argues that the record should be corrected to eliminate jurisdiction under
section 300, subdivision (g).
Any challenge to the jurisdictional
findings is waived or forfeited by failing to appeal from the dispositional
order. (See In re Meranda P.
(1997) 56 Cal.App.4th 1143, 1150-1152; Blanca
P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1754.) Here, the court sustained the petition after
mother submitted on the subdivision (b) allegations pertaining to her. Neither mother nor father appealed from the
dispositional order, and the time for doing so has long since expired.
jurisdictional findings or the order in a timely manner, her claim is waived.
We note mother’s argument that,
even though this issue was not asserted earlier, it “is now viable.” She relies upon In re S.D. (2002) 99 Cal.App.4th 1068 (S.D.), in which the mother’s counsel’s failure to raise an issue
regarding the court’s jurisdiction finding constituted ineffective assistance
of counsel, and the judgment was reversed.
(Id. at p. 1071.) S.D.
is distinguishable in many ways.
Significantly, the allegation in question (under section 300,
subdivision (g)) was the only basis
for jurisdiction over the child. (
if that count was properly pleaded and proven, and the court found that it was
not. (Ibid.)
Here, as mother concedes, there was
a stipulated alternative basis for jurisdiction under section 300, subdivision
(b). “When a dependency petition alleges multiple grounds
for its assertion that a minor comes within the dependency court’s
jurisdiction, a reviewing court can affirm the juvenile court’s finding of
jurisdiction over the minor if any one of the statutory bases for jurisdiction
that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not
consider whether any or all of the other alleged statutory grounds for
jurisdiction are supported by the evidence.
[Citations.]” (
438, 451.) In other words, “‘the
juvenile court’s jurisdiction may rest on a single ground.’ [Citation.]” (In re Christopher C. (2010) 182 Cal.App.4th 73, 83.) Because the court here properly took
jurisdiction of the child under section 300, subdivision (b), mother’s argument
regarding subdivision (g), is meaningless.
III. The
Record Fails to Show That the ICWA Notice Requirements Were Met
Father
argues that proper ICWA notice was not given to the tribes.
A. Notice Requirements Under ICWA
“In any involuntary proceeding in a State court, where
the court knows or has reason to know that an Indian child is involved, the
party seeking the foster care placement of, or termination of parental rights
to, an Indian child shall notify the parent or Indian custodian and the Indian
child’s tribe, by registered mail with return receipt requested, of the pending
proceedings and of their right of intervention.” (25 U.S.C. § 1912, subd. (a); see also In
re Samuel P. (2002) 99 Cal.App.4th 1259, 1264-1265.) “One of the primary purposes of giving
notice to the tribe is to enable it to determine whether the minor is an Indian
child. [Citation] Notice is meaningless if no information or
insufficient information is presented to the tribe. [Citation]
The notice must include . . . information about 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,
current and former addresses, tribal enrollment numbers, and/or other
identifying information.
[Citations.]” (
1115-1116 (In re S.M.).)
When the notice sent is inadequate, the orders of the
court terminating parental rights should be vacated and the matter should be
remanded to the juvenile court with directions to order compliance with the
ICWA notice provisions. (
105, 111.) “If, after proper inquiry and
notice, no response is received from a tribe indicating the [children are]
Indian child[ren], all previous findings and orders shall be reinstated. If a tribe determines that the minor is an
Indian child, or if other information is presented to the juvenile court that
suggests the [children are] Indian child[ren] as defined by [ICWA], the juvenile
court is ordered to conduct a new section 366.26 hearing in conformity with all
provisions of [ICWA].” (
Cal.App.4th 247, 261.)
B.
ICWA Notices Sent to the Tribes Were Deficient
At the
detention hearing, father reported that he may have Indian ancestry in the
Blackfeet tribe on his mother’s side. He
gave his mother’s name, Ethel M.; he also gave and spelled her maiden name and
her age. He further reported that his
grandmother, Mabel D., would have knowledge of his Indian ancestry, and he gave
her name, telephone number, city of residence, and approximate age. Father further indicated he had another
grandmother, Cathy L., who may have knowledge of his Indian ancestry. However, for reasons that are not apparent,
the ICWA notice sent identified father’s mother (the paternal grandmother) as
Catherine D.-L. Moreover, while the
first part of the hyphenated last name is the same as father’s mother’s maiden
name, it was spelled differently from the spelling father gave in court. The ICWA notice also identified father’s
grandmother as Mabel Francine D., but spelled the last name differently than it
was pronounced at the hearing. The ICWA
notice did not list Cathy L. as a grandmother.
Mother’s
counsel, who specially appeared for father’s counsel at the six-month hearing,
informed the court that father once again indicated he had Indian heritage, and
she gave the name of the great grandfather Wayne D., and said she had his
address and phone number. Counsel also
gave the name of Catherine L., and Francine D., who was the great
grandmother. The ICWA notice that was
sent listed David Wayne D. as the paternal great-grandfather, instead of Wayne
D., and the last name was spelled differently than it was pronounced at the
hearing.
We further
note that no notice was sent to the Blackfeet tribe, although father initially
claimed he may have ancestry with the Blackfeet tribe. Notice was sent to four Seneca tribes, even
though father never indicated he was affiliated with the Seneca tribes. CFS asserts that it contacted father’s
grandmother, Mabel F.D., and she provided “new and reliable information,”
including that the “correct tribes” were Seneca tribes. However, CFS neglects to cite any evidence in
the record to verify that information.
In any event, the notices that were sent to the Seneca tribes contained
incorrect and/or incomplete information and misspelled names. CFS should make further inquiry to verify and
correct the information it has.
We conclude that CFS failed to comply with ICWA
inquiry and notice requirements. Thus,
the matter must be remanded for proper ICWA compliance.
DISPOSITION
The orders of the juvenile court
terminating parental rights are vacated, and the matter is remanded to the
juvenile court with directions to order compliance with the ICWA inquiry and
notice provisions. If, after proper
inquiry and notice, no response is received from a tribe indicating the child
is an Indian child, all previous findings and orders shall be reinstated. If a tribe determines that the child is an
Indian child, the juvenile court is ordered to conduct a new section 366.26
hearing in conformity with all provisions of ICWA.
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
RICHLI
J.
KING
J.
the Welfare and Institutions Code, unless otherwise noted.
is not a federally recognized tribe.
However, the Blackfeet tribe is.
(68 Fed.Reg. 68180 (Dec. 5, 2003) [listing the “Blackfeet Tribe of the
Blackfeet Indian Reservation of Montana”].)
Thus, we will treat the claim as raising possible Blackfeet heritage.
