In re M.L.

Filed 5/19/08 In re M.L. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Frankie L. (father) and Kristen L. (mother) appeal from the order terminating their parental rights to their daughter, M.L. (Welf. & Inst. Code,  366.26.)[1] Mother contends that the parental beneficial relationship exception of section 366.26, subdivision (c)(1)(B)(i) and the sibling relationship exception of section 366.26, subdivision (c)(1)(B)(v) bar a termination of rights in this case. Father argues that the parental beneficial relationship exception bars a termination of rights. Respondent Ventura County Human Services Agency (HSA) agrees with parents that the order terminating parental rights must be reversed because it did not comply with the notice provisions of the Indian Child Welfare Act (ICWA). (25 U.S.C.A  1901 et seq.) We reverse and remand to permit compliance with the ICWA, but reject the remaining arguments.

BACKGROUND

M.L. was born in July 2005 to mother and father, who were married. She was their first child. In October 2005, HSA received a referral alleging that there was domestic violence in the home. At that time, the home (a camper) was dirty and lacked baby formula and diapers. HSA instructed mother and father to clean the camper and obtain mental health services for themselves and a well-baby check for M.L. After learning that parents had moved, HSA referred their case to Los Angeles County.

In December 2005, HSA received a report that M.L. and parents were living in an unsafe environment. A social worker and public health nurse made several attempts to visit the family by going to retail parking lots in Simi Valley where they had been living in a camper. They located the camper and tried to speak with mother and father. Mother and father declined to answer the door until the police arrived. The camper was dark, smoke-filled and dirty. A cat litter box overflowing with cat waste covered most of its bathroom floor. There was no clean space for M.L. to crawl inside the camper. Mother explained that a doctor had prescribed medication for M.L.'s ear infection. She produced medication with a label stating that it required refrigeration; it was not refrigerated. The camper lacked running water and heat, and its refrigerator was broken.

On December 30, 2005, HSA filed a petition to declare M.L., who was then almost six months old, a dependent child under section 300. The court ordered that M.L. be detained, and that parents receive supervised visitation with M.L. M.L. was placed in the care of her maternal grandfather and step-grandmother.

Following the filing of a jurisdiction and disposition report and a hearing on March 28, 2006, the court declared M.L. a dependent child and placed her with her maternal grandfather and step-grandmother. It also ordered HSA to provide parents with reunification services, including monitored visitation, and psychotherapy. The court ordered parents to comply with a case plan.

The August 14, 2006, status review report indicated parents were still living in the camper that had been found to be an unsafe, unsuitable living environment for M.L. It appeared that they chose to live in the camper because they were not willing to give up their family dog. At the six-month review hearing, the court ordered that parents continue receiving reunification services and that M.L. remain placed with her relatives.

In late November 2006, a psychologist assessed parents and diagnosed mother with dysthymia and anxiety disorder not otherwise specified (NOS), and possibly dependent personality disorder. The psychologist diagnosed father with intermittent explosive disorder, and personality disorder NOS, with antisocial and paranoid features.

In late December 2006, mother gave birth to a son, A.L. M.L. saw her brother approximately once a week during her monitored visits with mother and father.[2]

Because her grandparents did not feel that they could appropriately care for M.L.'s long term needs, she was placed in a prospective adoptive home on January 8, 2007. Maternal grandfather and step-grandmother visited M.L. twice weekly in her prospective adoptive home. M.L. also spent several nights a month at her maternal grandfather and step-grandmother's home.

The February 26, 2007, 12-month review report indicated that parents received reunification services for 13 months, including housing resources, psychological evaluations, in-home therapy, and monitored visitation services. Parents showed only "minimal progress in achieving the main objectives in their case plan which include obtaining treatment for their . . . mental illness and . . . establishing a safe and suitable living situation."

Meanwhile, M.L. was "thriving in [the prospective adoptive family] home and becoming attached to all the members of the family, including the prospective adoptive parents' 3-year-old biological daughter." The prospective adoptive parents "have a great relationship with [M.L.'s] maternal grandparents and would like to maintain the relationship and give [her] the opportunity to know part of her biological family." They did "not wish to enter into a post-adoption contract . . . ."

On April 9, 2007, following a contested hearing, the court found that parents had not provided proof of the maintenance and stabilization of a safe and sanitary residence; father had not stabilized his health relating to his mental health diagnoses; and parents failed to accept and recognize M.L.'s medical and developmental needs.[3] The court terminated reunification services and scheduled a section 366.26 hearing to develop a permanent plan for M.L.

On August 16, 2007, after a contested section 366.26 hearing, the court terminated the parental rights of mother and father. It also found that HSA had given proper notice under ICWA and that M.L. was not an Indian child.

DISCUSSION

The Beneficial Parental Relationship Exception

Parents contend that the termination of the beneficial parental relationship bars termination of parental rights. We conclude that the juvenile court's finding that neither father nor mother established the section 366.26, subdivision (c)(1)(B)(i) exception to the termination of parental rights is supported by substantial evidence. (In re Derek W. (1999) 73 Cal.App.4th 823, 825, 827.)

Section 366.26, subdivision (c)(1)(B)(i) 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)(i) requires a showing of "regular visitation and contact" and "benefit" to the child from "continuing the relationship." (See In re Angel B. (2002) 97 Cal.App.4th 454, 466.) Mother and father had the burden to show that the exception applied. (In re Derek W., supra, 73 Cal.App.4th 823, 826.) "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." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) 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 1339, 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. (In re Amber M. (2002) 103 Cal.App.4th 681, 689 [beneficial relationship exists where children in mother's care the majority of their lives].)

In determining whether the exception applies, courts must balance on a case-by-case basis the quality of the natural parent-child relationship against the security and sense of belonging a new adoptive family would provide. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) "Although the statute does not specify the type of relationship necessary to derail termination of parental rights, case law has required more than 'frequent and loving contact.'" (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424.)

On this record, father and mother have each shown frequent and loving contact with M.L. However, neither parent has shown that the existence of his or her relationship with M.L. is sufficient to outweigh her need for a stable and permanent home. There was evidence that M.L. understood that mother was her mother, that she was happy to see mother and father, and that she called mother "mom" or "ma ma." There was other evidence, however, that M.L. was affectionate to everyone and called other adult females "ma ma," including her prospective adoptive mother and at least one grandmother.

The record also shows that at the time of the section 366.26 hearing, M.L. had been in the dependency system since December 2005, most of her two-year-old life. Parents created great instability in her life. Father failed to address his mental health issues. Parents failed to comply with orders regarding their residence, including advising HSA of the location of their camper, and/or allowing it to verify a claimed residence. Applying a case-by-case analysis, given parents' choices, each of them failed to present a compelling reason that termination of parental rights would be detrimental to M.L. Under any standard of review, the juvenile court did not err by concluding that the beneficial parental relationship exception was inapplicable.

The Sibling Relationship Exception

Mother also argues that parental rights should not have been terminated because it would be detrimental to M.L. to sever her ties with her brother, A.L., who was born in December 2006. Like the beneficial parental relationship exception, the sibling exception can bar the termination of parental rights, and the party seeking to establish its existence must carry the burden of producing evidence on the issue. (In re Megan S. (2002) 104 Cal.App.4th 247, 252-253.)

The sibling exception bars the termination of parental rights when, "[t]here would be substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption." ( 366.26, subd. (c)(1)(B)(v).) The focus of this exception is on the welfare of the child who is being considered for adoption, not that of the sibling. (In re Celine R. (2003) 31 Cal.4th 45, 49-50.)

During the section 366.26 hearing, mother testified about the relationship between M.L. and A.L. Mother explained that M.L. loved him and recognized that he is her brother. M.L. enjoyed helping him and was very nurturing and gentle with him. During a visit that her brother could not attend, M.L. kept looking for and asking about him.

In rejecting the argument that M.L. would suffer detriment within the meaning of section 366.26, subdivision (c)(1)(B)(v) if her relationship with her brother were severed, the court observed that M.L. and he "never lived together" and had "no common experiences, other than at visits, and really [didn't] have a relationship . . . that would outweigh the benefits of adoption."

Mother argues that the court "never even addressed" the issue of whether visitation would be maintained between the children following the termination of parental rights. This argument is not persuasive. As the party seeking to establish the existence of the sibling relationship exception, mother bore the burden of producing evidence on that issue. (In re Megan S., supra, 104 Cal.App.4th 247, 252-253.) Mother failed to present a psychological study or other persuasive evidence showing that there was a sibling bond between M.L. and her brother and evidence that M.L. would suffer detriment if they were separated. Our task on appeal is limited to assessing whether substantial evidence supports the trial court's ruling. (Id. at pp. 250-251.) Here the court reasonably decided that the relationship between M.L. and A.L. does not outweigh the benefits of adoption (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952-953) and therefore that the sibling relationship exception does not bar termination of parental rights.

ICWA Notice

Father executed a JV-130 form stating that his tribal affiliation may be Pawnee. Mother indicated on her form that she may be of Cherokee descent, which was confirmed by her father. Parents assert that HSA failed to obtain sufficient information from family members to provide Cherokee and Pawnee tribes with adequate information to search tribal records and that it completely failed to notify the Apache tribes of the pending proceedings. HSA concedes that it failed to comply with the ICWA notice requirements. (See 25 C.F.R.,  23.11(d) (2008); In re S.M. (2004) 118 Cal.App.4th 1108, 1116-1117.) The concession appears appropriate. (In re Karla C. (2003) 113 Cal.App.4th 166, 174-178.) We will reverse the order terminating parental rights and remand the case so that HSA can send appropriate notices and the juvenile court can determine whether the ICWA applies.

The order terminating parental rights is reversed. The matter is remanded to the juvenile court to order HSA to provide proper notice under the ICWA. In the event that no tribe indicates that M.L. is an Indian child, then the juvenile court must reinstate the order terminating parental rights. If a tribe indicates that M.L. is Indian, then the juvenile court is directed to proceed in compliance with ICWA. In all other respects, the orders and findings of the juvenile court are affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Tari L. Cody, Judge

Superior Court County of Ventura

______________________________

Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and Appellant Kristen L.

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

Noel A. Klebaum, County Counsel, Joseph J. Randazzo, Assistant County Counsel, for Plaintiff and Respondent.

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

[2] The record contains minimal information regarding A.L. The limited references indicate that he did not live with father or mother. Mother testified that she received services from HSA for him and that M.L. saw him through the "foster families" when mother was not present.

[3] For example, the parents did not appreciate the potential risk associated with M.L.'s heart murmur and mildly abnormal blood vessels to her heart and lungs; they denied that M.L. could not perform certain developmentally appropriate tasks; they questioned the value of M.L.'s receiving services through the regional center; and mother indicated that when M.L. was back in their care, they would not continue taking her to the regional center.