In re Lillian P.
Filed 1/23/14 In
re Lillian P. 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NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
In re LILLIAN P. et al., Persons Coming Under the Juvenile Court
Law.
2d Juv. No. B248716
(Super. Ct. Nos.
J068202, J068203)
(Ventura
County)
VENTURA COUNTY HUMAN SERVICES AGENCY,
Plaintiff and
Respondent,
v.
S.P. et al.,
Defendants and
Appellants.
Parents of minor
children appeal an order terminating
their parental rights. (Welf. & Inst. Code, § 366.26.)
FACTS
Shauna P. (Mother) is
the mother of Lillian P. and F. B. Jesse
B. (Father) is the father of F.
Lillian's father is not a party to this appeal.
On March 10, 2011, the Ventura County Human Services Agency (HSA) filed a juvenile dependency
petition under section 300, subdivisions (b) and (g). At the time the petition was filed, Lillian
was two years old and F. was one year old.
A report filed by HSA in support of the petition stated:
In January 2011 Mother
was convicted of child
endangerment. The police found her
lying on the grass outside her home, heavily
Mother is 24 years
old. She admitted that she has been an
alcoholic since age 14. She has a
history of convictions for substance abuse and violence. Mother also suffers from mental health
problems, including bipolar
disorder.
After Mother's child
endangerment conviction, she entered a residential drug and alcohol abuse
treatment program with her children.
Program personnel reported to HSA that Mother was close to being
discharged from the residential program for fighting with other residents. The person reporting the matter stated she
was concerned for the safety of the children because Mother has a violent
temper and does not watch her children.
The report also noted
that Father has a history of criminal violence and substance abuse, and is
currently incarcerated for domestic violence against Mother. He is scheduled to be released in June
2012. He has not seen F. since she was
10 months old.
The trial court granted
the petition. The court ordered family
reunification services for Mother. The
court did not order reunification services
for Father. Mother was granted
supervised visitation with the children.
The HSA report prepared
for the six-month review recommended termination of services to Mother and that
the children remain in foster care with a permanent plan of adoption. The report stated:
Mother did not follow
her case plan. She did not follow
through with a referral to a counseling program to address her anger. She was dropped from another program for
fighting. She was arrested for public
intoxication after she got into a fight with her ex-boyfriend's girlfriend. She described the victim as Al[l]
bloody." HSA concluded,
"[M]other demonstrated that she was not willing to alleviate the risks
which would have kept the children safe and cared for."
Mother attended 74
percent of her visits. She missed one of
the visits because she decided to go with her friends to Santa Barbara
rather than visit her children.
Initially, HSA described the visits as "overwhelming for the
mother." Later a visit was
described as "'OK.'" For the
rest of the visits Mother was described as "'doing well'" or
"having a 'good' visit." Lillian lets out a "'scream of
excitement'" when she sees Mother. F.,
however, is reluctant to hug Mother. HSA
concluded, "Mother continues to struggle to parent the children."
The trial court terminated
Mother's reunification services and set the matter for a hearing pursuant to
section 366.26 (.26 hearing).
The HSA report prepared
for the .26 hearing stated that the children are living with foster parents who
want to adopt them. The children are
thriving and overcoming behavioral and developmental problems. The girls refer to their foster mother as
"Mommy." Lillian refers to
Mother as "Shauna." The girls
display no separation anxiety when Mother's visit ends. When the visits end, the girls run to their
foster mother with open arms. A case
worker described Mother as having difficulties with her parenting skills and as
"'sometimes not very nurturing.'"
The report concluded that mother's relationship with the children is not
as strong as the relationship between the prospective adoptive parents and the
children.
Mother testified at the
hearing. She said the times when she
missed visits with her children it was because her "mental health wasn't
stable." She said she is on
medication and is now stable. She has
not missed any visits in the last six months.
Mother testified the girls are happy when the visits start and sad when
they end.
Mother said it would be
detrimental to the girls to end their relationship with her. She said the girls are "so
attached" to her and her family.
Lillian is old enough to know that something is not right and wants to
go home with Mother. Having Lillian out
of her life will be detrimental "because she will remember who I
am." F. is getting older and she
will remember who Mother is also.
The trial court found by
clear and convincing evidence that the children were likely to be adopted. The trial court also found the beneficial
relationship exception to adoption did not apply. The court terminated parental rights.
DISCUSSION
I.
Mother contends that the
trial court erred by terminating her parental rights because she established
the beneficial parental relationship exception to adoption.
Section 366.26,
subdivision (c)(1)(B) requires the juvenile court to terminate parental rights
if it finds by clear and convincing evidence that a child is likely to be
adopted, unless "[t]he court finds a compelling reason for determining
that termination would be detrimental to the child" due to an enumerated
statutory exception. The beneficial
parental relationship exception of section 366.26, subdivision (c)(1)(B)
requires a showing of "'regular visitation and contact and the child would
benefit from continuing the relationship.'" (In re
Dakota H. (2005)132 Cal.App.4th 212, 229.) "To meet the burden of proof, the parent
must show more than frequent and loving contact, an emotional bond with the
child, or pleasant visits." (
The parent must establish the existence of a relationship that promotes
the child's well-being to such a degree as to outweigh the well-being the child
would gain in a permanent home with adoptive parents. (In re
Jason J. (2009) 175 Cal.App.4th 922, 936.)
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.)
The exception requires
proof of "a parental
relationship," not merely a relationship that is "beneficial to some
degree but does not meet the child's need for a parent." (In re
Jasmine D., supra, 78 Cal.App.4th
at p. 1350.) The existence of a
beneficial relationship is determined by the age of the child, the portion of
the child's life spent in parental custody, the quality of interaction between
parent and child, and the child's particular needs, among other factors. (In re
C.B. (2010) 190 Cal.App.4th 102, 124; In
re Amber M. (2002) 103 Cal.App.4th 681, 689 [beneficial relationship may
exist when children were in mother's care the majority of their lives].)
Historically, courts
have applied the substantial evidence standard of review. (In re
Autumn H. (1994) 27 Cal.App.4th 567, 575-576.) Recently, In
re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315, applied the
substantial evidence standard to the trial court' determination whether a
beneficial relationship exists, and the abuse of discretion standard to the
court' determination whether the relationships so important that it compels a
plan other than adoption. Here we affirm
under either standard.
"In
viewing the evidence, we look only to the evidence supporting the prevailing
party. [Citation.] We discard evidence unfavorable to the
prevailing party as not having sufficient verity to be accepted by the trier of
fact. [Citation.] Where the trial court or jury has drawn
reasonable inferences from the evidence, we have no power to draw different
inferences, even though different inferences may also be reasonable. [Citation.]
The trier of fact is not required to believe even uncontradicted
testimony. [Citation.]" (Rodney
F. v. Karen M. (1998) 61 Cal.App.4th 233, 241.)
The trial court found
Mother maintained regular visitation and contact with the children. But Mother failed to carry her burden of
showing a beneficial relationship outweighs the benefits of adoption.
The children were
removed from Mother's custody when they were quite young, one and two years
old. At best, there is evidence of
frequent contact, an emotional bond and pleasant visits. But that is not enough. There is no evidence of a "parental
relationship," and certainly no evidence of a relationship between Mother
and the children that would outweigh the benefits of adoption.
II.
Father contends HSA
failed to comply with the Indian Child Welfare Act. (ICWA; 25 U.S.C. § 1901 et seq.) Mother joins in Father's contention.
Congress enacted ICWA
with the intent that the best interests of Indian children are served by
retaining their Indian tribal ties and cultural heritage. (In re
Desiree F. (2000) 83 Cal.App.4th 460, 469.)
"'ICWA confers on tribes the right to intervene at any point in
state court dependency proceedings. . . .'" (In re
Karla C. (2003) 113 Cal.App.4th 166, 174.)
Proper notice to tribes is of critical importance, and courts strictly
construe ICWA notice requirements. (
"Under the ICWA, the tribe determines whether the child is an
Indian child and its determination is conclusive. [Citation.]" (Ibid.) When the court knows or has reason to know
that an Indian child is involved, HSA must notify the Indian child's tribe of
the pending proceedings and its right of intervention. (In re
Desiree F., supra, at p. 469.)
Father claims HSA never
inquired of him about possible Indian ancestry.
But the record shows Father signed an ICWA-020 form under penalty of
perjury declaring that to his knowledge he has no Indian ancestry. That satisfies the duty to make an ICWA inquiry
as to Father. (See Cal. Rules of Court,
rule 5.481 (a)(2)(4).)
Mother initially signed
a similar declaration. But after the .26
hearing was set and continued, Mother declared that she might have some
Cherokee Indian ancestry. HSA completed
ICWA-1030 forms for maternal relatives who were in the direct line of assent
from Mother. HSA served the forms along
with a copy of the section 300 petitions on the Bureau of Indian Affairs (BIA)
and three Cherokee bands. All parties
responded that they had no information that the children were members or
eligible to be members of the tribe. The
trial court found that ICWA did not apply.
Father argues HSA did
not provide the court with any information about Mother's statements, nor about
the ICWA inquiry it made regarding her ancestry. But HSA provided the court with copies of the
notices sent to the tribes with the return receipts and the correspondence
received from the tribes relevant to the children's status. That is all that is necessary. (See In
re Jennifer A. (2002) 103 Cal.App.4th 692, 702.)
Father complains that
his name and the names of his relatives were omitted from the ICWA notice sent
to the tribes. He also complains that
the form references both children even though only F. is his child.
But Father denied any
knowledge of Indian ancestry. The
omission of information on non-Indian relatives is subject to the harmless
error rule. (See In re Cheyenne
Father asserts it can be
concluded that the tribes were unable to conduct a complete search because his
and his ancestors' names were omitted from the notice. But given Father denied any knowledge of
Indian ancestry, he does not suggest how it is reasonably probable that such a
complete search would have led to a different result. Nor does Father suggest how the inclusion of
both children's names on the notice could be prejudicial.
Father points out that
the notices were served on the BIA and tribes on September 21, 2012, for the September 27, 2012 hearing. This was less than the 10-day period required
for the notice. (§ 224.2, subd.
(d).) But the .26 hearing was continued
several times. It was held on April 4, 2013. There was more than an
adequate period of notice.
The judgment is
affirmed.
NOT TO BE PUBLISHED.
GILBERT,
P. J.
We concur:
YEGAN, J.
PERREN, J.
>
Ellen Gay Conroy, Judge
Superior Court County of Ventura
______________________________
Judy Weissberg-Ortiz,
under appointment by the Court of Appeal, for Defendant and Appellant Jessee B.
Jack A. Love, under
appointment by the Court of Appeal, for Defendant and Appellant Shauna P.
Leroy Smith, County Counsel,
Patricia McCourt, Assistant County Counsel, for Plaintiff and Respondent.
name="_ftn1" title=""> [1] All statutory references are to the Welfare and Institutions Code
unless otherwise stated.
