In re E.Q.

Filed 10/16/07 In re E.Q. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Deborah A. Daniel, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant Monique G.

Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant Herminio Q.

Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.

Michael D. Randall, under appointment by the Court of Appeal, for Minor.

Monique G. (hereafter mother) and Herminio Q. (hereafter father) appeal from the trial courts order under Welfare and Institutions Code section 366.26^[1]terminating their parental rights to their daughter E.Q., who was two months old when removed from mothers custody, and nearly two years old at the time of the selection and implementation hearing. The San Bernardino County Department of Childrens Services (hereafter DCS) took two-month-old E.Q. into protective custody in September 2005 after mother was arrested on an outstanding warrant. The warrant came to light when a doctors office called the police after mother showed up at the office, apparently under the influence of drugs and/or alcohol, with a black eye and large bruises on her arm. Mother reported to the DCS social worker who responded to the call that father had hit her and E.Q. Although mother had bruises to support her assertion, E.Q. appeared to be unharmed. Mother told the social worker, among other things, that father, with whom she lived, was a big user of methamphetamine. Mother admitted that she also used methamphetamine and that she lived in a house that was known as a drug house.

On October 4, 2005, DCS filed a section 300 petition with respect to E.Q. that alleged jurisdiction under subdivisions (b) (failure to protect), (c) (serious emotional damage), and (g) (no provision for support). The trial court detained E.Q. at a hearing on October 5, 2005. At the jurisdiction and disposition hearing in November 2005, the trial court declared E.Q. a dependent of the court, after mother and father participated in mediation and submitted on the petition as amended in accordance with the mediation agreement. The trial court ordered reunification services for both parents, and twice weekly visits with E.Q. Their service plans required both parents, among other things, to drug test and participate in drug rehabilitation programs. Although both mother and father maintained regular visitation with E.Q., neither of them made any significant progress on the requirements of their service plans. At the six-month review hearing in June 2006, the trial court terminated fathers reunification services. The trial court terminated mothers reunification services at the 12-month review hearing in December 2006.

By the time of the section 366.26 selection and implementation hearing in April 2007, mother had moved to Northern California in order to get away from the drug related influences in her life, and had not visited E.Q. since the preceding October. Father however, continued to visit E.Q. even though his reunification services had been terminated. E.Q. had lived with the same foster family since DCS initially removed her from mothers custody in October 2005. That family wanted to adopt E.Q. and an adoption assessment had been filed with the court in March 2007. Mother and father did not appear at the section 366.26 hearing, although they were represented by counsel at that proceeding. Although fathers attorney objected to adoption as the permanent plan, the trial court nevertheless terminated the parental rights of both mother and father after making the necessary findings, including the finding that E.Q. was likely to be adopted. Mother and father both appeal from that order.

DISCUSSION

We first address the assertion, raised by both mother and father, that the evidence does not support the trial courts finding that the Indian Child Welfare Act (25 U.S.C. 1901 et seq.; hereafter, ICWA) does not apply in this case.

1.

ICWA

The pertinent facts are undisputed. When the trial court asked mother and father at the detention hearing whether they had Indian ancestry both parents said no. In the Parental Notification of Indian Status (sometimes also referred to as the JV-130), which each parent dated and signed the same day as the detention hearing, mother again stated that she did not have Indian ancestry, but father checked the box that says, I am or may be a member of, or eligible for membership in, a federally recognized Indian tribe. Father wrote unknown in the blank following Name of tribe. The social worker sent a Notice of Involuntary Child Custody Proceedings for an Indian Child (sometimes also referred to, and referred to hereafter, as the JV-135) to the Bureau of Indian Affairs (hereafter the BIA),^[2]although the social workers report for the jurisdiction and disposition hearing, which is dated October 20, 2005, states that ICWA does not apply. The JV-135 only contained information about father.

At the jurisdiction and disposition hearing on November 22, 2005, the trial court found among other things that ICWA notice was given as required by law and that E.Q. might come within the provisions of the act. The trial court also asked the social worker whether the BIA had responded to the notice and had indicated that E.Q. was not an Indian Child. The social worker stated there had been [n]o receipt, no return. The BIA returned the certified mail receipt for the JV-135 on November 2, 2005, and also sent an undated form letter to the court that bears a stamp indicating the juvenile court received the letter on January 24, 2006. The form letter states that the BIA was returning notices of hearings to the court because the documents did not require a response from the BIA. As an apparent attachment, the BIAs form letter included a list of various case names and case numbers, all presumably related to the hearing notices, but if the hearing notices were also included with the letter, they are not part of the record on appeal. The record on appeal does not include any other correspondence from the BIA. At the selection and implementation hearing on April 23, 2007, the trial court found that ICWA does not apply since 65 days have expired since the green card was signed for . . . [and] there has been no information received by the Department or provided to the Court since the November 2nd, 2005 return receipt from the Bureau of Indian Affairs.

Mother and father contend that the ICWA notice was inadequate because (1) it did not include any information about mother, (2) the trial court did not consider the previously noted form letter from the BIA that not only returned hearing notices to the court, but also included the statement that the form is not be [sic] considered a determination that the child (ren) is or is not an Indian Child under the ICWA, and (3) the court should have waited for a response to the JV-135 from the BIA before finding that ICWA did not apply. We disagree with each assertion.

The pertinent legal principles are by now so well known they hardly bear repeating. We nevertheless recount the essential details here. When a court knows or has reason to know that an Indian child is involved in a dependency proceeding, the childs tribe must be notified, or if the tribe is not known the BIA must be notified, of the pending proceeding and of the tribes right to intervene. (25 U.S.C. 1912(a).) The notice requirements are triggered even if the childs Indian status is uncertain and the court only has reason to believe the child might be an Indian child. (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1266-1267.)

The obvious response to the first claim, which challenges the adequacy of the ICWA notice because it did not include information about mother, is that mother stated that she did not have Indian ancestry, and consequently there was no reason for DCS to include information about her or her ancestors in the JV-135 notice. Mother and father both point out that such information is required under section 224.2. That section was not enacted until 2006 and did not take effect until January 1, 2007, some 14 months after DCS mailed the JV-135. (See Stats. 2006, ch. 838, 31 (Sen. Bill No. 678).) Moreover, finding the notice inadequate because it did not include information about a parent who does not claim Indian ancestry would be a classic instance of exalting form over substance, absent a statutory purpose for such information.

Mother and father argue that information about mother is required under both the state and federal ICWA statutes and therefore ICWA notice that does not include that information is inadequate. They point out the presumed purpose of such a requirement is so that Indian tribes, which are the exclusive arbiters, can determine whether the child is an Indian child. (See In re Desiree F. (2000) 83 Cal.App.4th 460, 471.) It occurs to us that the purpose of requiring information about both parents is to ensure that a parent does not have Indian ancestry about which that parent is unaware. It also occurs to us, however, that there are people who actually know without question that they do not have Indian ancestry, and can state that fact unequivocally, as mother did in this case. In arguing that information about her should have been included in the JV-135, mother does not claim that she might have Indian ancestry about which she is unaware. She claims only that the notice was defective because it did not include information about her, even though she does not have Indian ancestry.

Although the information arguably is required, and the better practice is to include it, when a parent states unequivocally that the parent does not have Indian ancestry, an ICWA notice is adequate even though it does not include information about that parent. Here mother stated that she did not have Indian ancestry and both the trial court and DCS were entitled to take her at her word. Therefore, we conclude that the ICWA notice was adequate even though it did not include information about mother.

The second challenge mother and father raise to the adequacy of the ICWA notice requires this court to assume that the January 2006 form letter from the BIA was sent in response to the JV-135 that DCS mailed in October 2005. The record does not support that assumption. The JV-135 is included in the record on appeal and it clearly is more than a notice of hearing referred to in the BIAs form letter. Moreover, the record reflects that DCS mailed the JV-135 notice to the BIA office in Sacramento, but that the form letter is from the BIA Office in Riverside and it is addressed to and was received by the court, not DCS. These details further support the inference that the form letter was not a response to the JV-135, as mother and father would have us presume. In addition, if the BIA form letter was sent in response to the JV-135, it presumably would have included a reference to that document and also a statement regarding the inadequacy of that notice. Finally, we cannot presume from the fact that the trial court did not mention the BIA form letter that the trial court was not aware of that letter. It is equally likely that the trial court was aware of the form letter and did not mention it because it did not contain relevant information.

We also reject the final assertion, that the trial court should not have made the ICWA finding without an actual response from the BIA regarding E.Q.s Indian ancestry. In accordance with section 224.3, subdivision (e)(3), which was pertinent because the selection and implementation hearing in this case took place after the effective date of that statute, the trial court found that ICWA did not apply because the BIA did not respond to the JV-135 within 60 days after it received notice.^[3] Because the record supports the finding that adequate notice was given to the BIA, and more than 60 days had elapsed since the BIA received that notice, we must likewise conclude that the trial courts finding that ICWA does not apply in this case is supported by the evidence. In short, we reject the contrary assertion made by mother and father.

2.

BENEFICIAL RELATIONSHIP EXCEPTION

Father contends that the exception to termination of parental rights set out in section 366.26, subdivision (c)(1)(A)^[4]applies to him. Mother purports to join in this claim, but we will not address the issue because neither parent raised it in the trial court, and therefore they did not meet their burden to demonstrate that the exception applies. (Cal. Rules of Court, rule 5.725(e)(3); In re Daisy D. (2006) 144 Cal.App.4th 287, 291.)

The so-called beneficial relationship exception applies when the parent and the child have developed such a significant, positive, and emotional attachment from the child to the parent that severance of the relationship would be detrimental to the child. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The parent must occupy a parental role with regard to the child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.) The burden is on a parent to establish at the selection and implementation hearing that the exception applies. (Cal. Rules of Court, rule 5.725(e)(3); In re Daisy D., supra, 144 Cal.App.4th at p. 291.) On appeal, we affirm the juvenile courts findings if supported by substantial evidence. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)

Father did not present any evidence on this issue at the selection and implementation hearing, and therefore did not meet his burden to demonstrate that the exception applies. Mother did not separately raise the exception in the trial court, nor did she present any evidence. Accordingly, we must conclude that the trial courts findings terminating their parental rights are supported by substantial evidence.

DISPOSITION

The order terminating parental rights is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Ramirez

P.J.

/s/ Gaut

J.

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^[1]All further statutory references are to the Welfare and Institutions Code unless indicated otherwise.

^[2]The date the JV-135 was mailed is not entirely clear because the certificate of mailing contains two dates: October 28, 2005, is specified as the date the notice was deposited in the mail, but November 28, 2005, is specified as the date the social worker signed the certificate. The November date is obviously an error because the record indicates that the Bureau of Indian affairs returned the certified, registered mail receipt on November 2, 2005, and therefore the notice could not have been mailed on November 28.

^[3]Section 243.3, subdivision (e)(3) states: If proper and adequate notice has been provided pursuant to Section 224.2, and neither a tribe nor the [BIA] has provided a determinative response within 60 days after receiving that notice, the court may determine that [ICWA] does not apply to the proceedings, provided that the court shall reverse its determination of the inapplicability of [ICWA] and apply the act prospectively if a tribe or the [BIA] subsequently confirms that the child is an Indian child.

^[4]Section 366.26, subdivision (c)(1)(A) provides that, if the juvenile court finds that a dependent child is adoptable, it shall terminate parental rights, unless the court finds a compelling reason for determining that termination would be detrimental to the child, because (A) The parent[] . . . ha[s] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.