In re N.C.
Filed 12/5/13
In re N.C. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIRST APPELLATE
DISTRICT
DIVISION FIVE
In re N.C., a Person Coming Under
the Juvenile Court Law.
A136990
DEPARTMENT, (
Super.
Ct. No. 3682DEP)
Plaintiff and Respondent,
N.M. et al.,
Defendants and
Appellants.
______________________________________/
The
juvenile court terminated N.M. (mother) and presumed father John C.’s (father) parental
rights as to N.C. (daughter) after a Welfare and Institutions Code section
366.26 permanency hearing (.26 hearing).
pursuant to the Indian Child Welfare Act
of 1978 (25 U.S.C. § 1901 et seq. (ICWA)) were deficient; (2) the court erred
by denying her People v.
by declining to apply the beneficial parent-child relationship exception to
termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)). Father also appeals, claiming the ICWA notices
were deficient and the
County Human Services Department (Department) failed to inquire about his
“possible Indian ancestry.â€
name="_ftnref2" title="">[2]
We affirm.
FACTUAL AND
PROCEDURAL BACKGROUND
Detention,
Jurisdiction, and Disposition
In a July
2011 petition, the Department alleged 10-month-old daughter came within section
300, subdivision (b) because mother and father had domestic violence issues and
because father used controlled substances and had a criminal history. The juvenile court detained daughter and
ordered the Department to provide ICWA notice because mother reported Cherokee
and Choctaw heritage. The Department sent
Judicial Council form ICWA-030 (Notice of Child Custody Proceeding for Indian
Child) to the Bureau of Indian Affairs (BIA) and to the relevant Cherokee and
Choctaw tribes.
After a contested jurisdictional
and dispositional hearing, the court declared daughter a dependent of the
court, removed her from parental custody, and ordered
Six-Month Review
Hearing and Section 388 Petitions
In its report for the sixth-month
review hearing, the Department recommended terminating reunification services. The court denied the paternal grandparents’ section
388 petition requesting, among other things, that the court place daughter in their
home and grant them de facto parent status. The court granted the Department’s section 388
petition requesting termination of father’s visits with daughter, concluding the
visits were detrimental. Following the six-month
review hearing, the court terminated reunification services and set a .26
hearing. The court also determined ICWA
did not apply.
The .26 and Marsden
Hearings
In its .26 hearing report, the
Department recommended terminating parental rights and ordering a permanent
adoption plan. The Department noted
daughter had been in a prospective adoptive home since December 2011, and that
she was forming “a secure attachment to her prospective adoptive parents who
are committed to raising her as their own daughter and providing for optimal
development.†Daughter’s prospective
adoptive mother described her as an “outgoing loving child who interacts
effortlessly with the prospective adoptive family.â€
According to the Department, daughter’s
twice monthly supervised visits with mother were “stressful and
problematic.†Although mother “respect[ed]
the needs of her child by allowing [daughter] to direct activities†during
their supervised visits, daughter clung to her prospective adoptive mother
during at least one visit and regularly went “to her prospective adoptive
mother immediately†at the end of the visits.
The Department noted there had “been no visits†between daughter and father.
The adoption
report prepared by the California Department of Social Services (State
Adoptions) also recommended terminating parental rights and ordering a plan of
adoption. Among other things, the report
noted daughter had nightmares and tantrums after visits with mother. State Adoptions concluded that although the
interaction between mother and daughter “may have some incidental benefit, such
benefit does not outweigh the benefit [daughter] will gain through the
permanence of adoption. [State Adoptions]
finds that termination of parental rights would not be detrimental to the
child.â€
In the 15 months before the .26
hearing, attorney Bonnie Alonso (trial counsel or counsel) represented
mother. On the first day of the .26
hearing in October 2012, attorney Jennifer Ani appeared with a substitution of
counsel form and told the court mother had retained her. She requested a continuance to “come up to
speed†on the case. The court declined
to continue the .26 hearing. Shortly
thereafter, Ms. Ani refused to take mother’s case file from trial counsel and
“indicated [trial counsel] would be the attorney moving forward.†At that point, trial counsel asked the court “to
start with a Marsden hearing†and the
court held one.
During the
in camera Marsden hearing, the court
asked mother why she felt counsel had not adequately represented her and asked
mother to provide “specific reasons.†Mother
stated, “I feel that way because there’s new evidence [in] the case . . . and
it has not been presented, and I feel that I should have a fair right to have
the new evidence in this case presented.â€
The court then asked mother whether there was “anything else that
[counsel] hasn’t done for you that you feel she should have done for you?†In response, mother stated she felt counsel
should have filed a section 388 petition.
The court asked, “Is there anything that she has done that she shouldn’t
have done†and mother stated, “I feel like there should be more communication
and I should be able to get ahold of my attorney whenever [ ] I need to. . . . I
call her office and don’t receive calls for [ ] weeks after. . . . I just feel
that I should be more updated and more paid attention to in my case.â€
Trial
counsel summarized her experience and responded to mother’s complaints. She described her representation of mother,
noting “[t]here was some extra effort in this case†to prevent the removal of
mother’s other child from parental custody.
Counsel also explained she had considered whether to file a section 388
petition on mother’s behalf based on the mother’s sobriety and on “how well she
was doing in her voluntary family maintenance†with her son. Counsel stated she weighed trying to reach a
settlement with daughter’s prospective adoptive family with the filing of the
section 388 petition and ultimately decided not to file the petition. In addition, trial counsel described her
practice of returning client calls but admitted there had been a “breakdown in
communication.†Mother then stated she
felt trial counsel could not adequately represent her “because of emotional
feelings about me wanting new counsel.â€
The court
denied the Marsden motion. It acknowledged mother’s feelings but noted
“the professional duty is for [counsel] to represent you to the best of her ability.
[¶] The court finds no fault with [counsel’s] representation. That doesn’t mean you may like it, and you’re
free to feel that you dislike it, but does it rise to the level where she needs
to be replaced because of [your] feelings?
It does not.â€
The court held
the .26 hearing, where the parties stipulated the minor was adoptable. Daughter’s social worker testified the
prospective adoptive mother had accompanied daughter to visits with mother beginning
in April or May 2012 and that since June 2012, daughter had been reluctant to
leave her prospective adoptive mother during these visits. The social worker also testified daughter
exhibited signs of distress when her prospective adoptive mother left the room
during visits, but did not exhibit any distress when mother left the room. In June 2012, daughter referred to mother as
“Mommy N.[ ]†and sometimes asked for her; by September 2012, however, daughter
indicated she wanted to go home with her prospective adoptive mother after a
visit with mother.
Mother
testified she consistently visited daughter.
She conceded, however, that daughter had “more of a comfort†with her
prospective adoptive mother and that visits with daughter were not always easy
for daughter. She claimed, however, that
daughter ran to her, greeted her with open arms, and called her “Mommy†during
a visit. Mother also testified daughter
looks to her as a mother. Father
testified mother was a good mother.
At the
conclusion of the .26 hearing, the court commended both parents on “some very
positive changes†but determined daughter was adoptable and that the beneficial
parent-child relationship exception did not apply. The court terminated parental rights and
ordered a plan of adoption.
DISCUSSION
I.
Mother
and Father’s ICWA Claims Fail
Mother and
father challenge the ICWA notices. Mother
contends the notices were deficient because they omitted the maternal
grandmother’s last name. According to
mother, the error was prejudicial because “the tribes did not have a meaningful
opportunity to search the tribal registry.â€
Father argues the notices failed to include “readily available
information†and that the Department failed to inquire about his “possible
Indian ancestry.†In his opening brief,
he “makes the offer of proof . . . that he has California Indian ancestry†in a
tribe that is not federally-recognized. Mother
and father’s claims are cognizable on appeal notwithstanding their failure to
challenge the sufficiency of the ICWA notices in the juvenile court. (In re
Samuel P. (2002) 99 Cal.App.4th 1259, 1267.)
In July
2011, mother completed Judicial Council form ICWA-020 (Parental Notification of
Indian Status) indicating possible Cherokee and Choctaw heritage through “Kristina
L[.] — MGM†and “Marsha S[.] — MGM.†Father
did not complete form ICWA-020. The
Department completed the Notice of Child Custody Proceeding for Indian Child (Judicial
Council form ICWA-030). Under “Mother’s
Biological Mother (Child’s Maternal Grandmother)†the Department listed the
maternal grandmother, Kristina, by her maiden name and her previous married
name, not by her current married name.
The form listed Kristina’s names as “Kristina B[.] and Kristina D[.]
(AKA)†and her date and place of birth.
The Department also listed the
maternal great grandmother as “Marsha S[.] and Marsha St[.] (AKA)†and listed
her date and place of birth. The form
listed father’s name and address under “Biological Father†and indicated “[n]o
information available†under the section requesting information about “Tribe or
band, and location.†The Department
mailed the form to the various tribes and to the BIA and sent a copy to mother
and father. The United Band of Cherokee
Indians in Oklahoma and the Eastern Band of Cherokee Indians responded that
daughter was not registered, nor eligible to register, as a member of the
respective tribes.
A.
Any Error in Omitting Kristina’s Current Married
Last Name from the ICWA Notices Was Harmless
The purpose of ICWA is to “protect
the interests of Indian children, and to promote the stability and security of
Indian tribes and families. It sets
forth the manner in which a tribe may obtain jurisdiction over proceedings
involving the custody of an Indian child, and the manner in which a tribe may
intervene in state court proceedings involving child custody. When the dependency court has reason to
believe a child is an Indian child within the meaning of [ICWA], notice on a
prescribed form must be given to the proper tribe or to the Bureau of Indian
Affairs. . . .†(In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906.) “Notice is a key component of the
congressional goal to protect and preserve Indian tribes and Indian
families. Notice ensures the tribe will
be afforded the opportunity to assert its rights under the Act irrespective of
the position of the parents, Indian custodian or state agencies.†(In re
Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) California implements ICWA’s notice
requirements. (Cal. Rules of Court,
rules 5.480-5.487.)
“The notice sent to the BIA and/or Indian
tribes must contain enough information to be meaningful. [Citation.]
The notice must include: if known, (1) the Indian child’s name,
birthplace, and birth date; (2) the name of the tribe in which the Indian child
is enrolled or may be eligible for enrollment; (3) names and addresses of the
child’s parents, grandparents, great grandparents, and other identifying
information; and (4) a copy of the dependency petition. [Citation.] . . . Notice to the tribe must
include available information about the maternal and paternal grandparents and
great-grandparents, including maiden, married and former names or aliases;
birthdates; place of birth and death; current and former addresses; tribal
enrollment numbers; and other identifying data.
[Citation.]†(
Cal.App.4th 695, 703.)
“Deficiencies in an ICWA notice are
generally prejudicial, but may be deemed harmless under some
circumstances.†(In re Cheyanne F. (2008) 164 Cal.App.4th 571, 577 (
the omission of Kristina’s current married last name — Kristina L[.] — on the ICWA
notices. Under the circumstances, we
conclude the omission of this information was harmless because there is no
basis to believe that providing Kristina’s current married name would have produced a different result concerning
daughter’s Indian heritage. (
Cal.App.4th 779, 784 [omission of the mother’s birth date was harmless because
there was “no basis to believe†that providing the date “would have produced
different results concerning the minors’ Indian heritageâ€];
1531 [deficiencies in ICWA notice not prejudicial where the mother did not show
“how the supposed deficiencies . . . would have made a difference given the
information that was in the noticesâ€].)
Here, the ICWA notices listed Kristina’s
maiden name and a previous married name and her date and place of birth. Tribes have made membership determinations
with less information. (See
119.) We disagree with mother’s
contention that “the tribes did not have a meaningful opportunity to search the
tribal registry†without Kristina’s current married last name. In the event Kristina was registered with the
tribe, the important information would likely have been her maiden name, which
was included in the notices. Moreover, tribes
know the information needed to make eligibility determinations. We presume that if the tribes needed additional
information, they would have requested it or stated they lacked sufficient
information to make a determination.
(See In re L.B. (2003) 110
Cal.App.4th 1420, 1426.)
We are not persuaded by mother’s
reliance on In re S.M. (2004) 118
Cal.App.4th 1108 (S.M.) or
622 (Louis S.). In S.M.,
the paternal grandmother and de facto parent told the social worker “there was
‘Cherokee blood, on my mother’s side.’†(
grandmother, Lillian, may have been registered with one of the Cherokee tribes
and before her death resided in . . . Texas.â€
(Ibid.) The juvenile court determined ICWA did not
apply even though a tribe twice requested additional information to verify
heritage and the agency did not provide the information. (Id.
at pp. 1114, 1117.)
The appellate court determined the
notices were inadequate because “no information
was provided in the ICWA notices about Lucille or Lillian, the person with
alleged Indian heritage. . . . Because the notices contained no information
about Lillian or Lucille, the tribes could not conduct a meaningful search with
the information provided.†(
italics added.) Here and in contrast to
Kristina’s maiden name, one of her married names, and her birth date and place
of birth. The notices also contained the
maternal great grandmother’s name, and place and date of birth. As a result, S.M. is distinguishable.
Louis
S. is similarly inapposite. That
case involved multiple problems with the ICWA notices, including misspellings
of both the mother’s and the daughter’s names and the omission of the mother’s
grandmother’s birth date. In addition, information
about the family member alleged to have Indian heritage, was in the wrong place.
(Louis
S., supra, 117 Cal.App.4th at p. 631.)
Here, the only omission mother identifies is the omission of Kristina’s
current married last name.
name="_ftnref3" title="">[3]
We conclude the omission of
Kristina’s current married last name from the ICWA notices was harmless. On the record before us, the ICWA notices
contained sufficient information “to permit the tribe[s] to conduct a
meaningful review of [their] records to determine [daughter’s] eligibility for
membership.†(Cheyanne F., supra, 164 Cal.App.4th at p. 576; In re Jonathan D. (2001) 92 Cal.App.4th 105, 110 [technical compliance
with ICWA “notice requirements may not be required where there has been
substantial complianceâ€].)
B. Father Cannot Demonstrate Prejudice From
the Department’s Failure to Inquire About His “Possible Indian Ancestryâ€
Father argues
the Department failed to inquire about his “possible Indian ancestry.†In his opening brief — and for the first time
in this case — he makes an offer of proof that “he has California Indian
ancestry†in the “Gabrieleno (Mission San Gabriel) Tribe†(Gabrieleno Tribe),
which he concedes is not federally-recognized.
Citing an Internet website containing legislation introduced — but not
enacted — during the 2001-2002 congressional session, father claims
“[h]istorically, members [of the Gabrieleno Tribe] relocated to the Tejon
Indian reservation[,]†a federally-recognized tribe.
Even if we
assume for the sake of argument the notices were deficient and the court and
the Department failed in their inquiry responsibilities, we conclude father has
failed to show a miscarriage of justice from the asserted errors, “which is the
fundamental requisite before an appellate court will reverse a trial court’s
judgment. [Citation.]†(In re
Rebecca R. (2006) 143 Cal.App.4th 1426, 1430 (Rebecca R.).) This is so
because “ICWA applies only to federally recognized tribes[.]†(K.P.,
supra, 175 Cal.App.4th at p. 5;
1359, 1386 [ICWA “does not require an inquiryâ€
where there is no indication a dependent child is Indian].)
Here, and as father concedes, ICWA
does not apply to the Gabrieleno Tribe. As in K.P.,
“[w]e decline to extend [ ] ICWA to cover an allegation of membership in a
tribe not recognized by the federal government.†(K.P.,
supra, 175 Cal.App.4th at p. 6.) Notwithstanding
his offer of proof, there is no evidence father is a member of a
federally-recognized tribe. As a result,
he cannot demonstrate prejudice in the asserted errors. (In re
H.B. (2008) 161 Cal.App.4th 115, 122 [no prejudice where mother never
asserted Indian ancestry and denied such ancestry in statement to social
worker]; In re N.E. (2008) 160
Cal.App.4th 766, 769.)
“The knowledge of any Indian connection is a
matter wholly within the appealing parent’s knowledge and disclosure is a matter
entirely within the parent’s present control. The ICWA is not a ‘get out of jail free’ card
dealt to the parents of non-Indian children, allowing them to avoid a
termination order by withholding secret knowledge, keeping an extra ace up
their sleeves. Parents cannot spring the
matter for the first time on appeal without at least showing their hands. Parents unable to reunify with their children
have already caused the children serious harm; the rules do not permit them to
cause additional unwarranted delay and hardship, without any showing whatsoever
that the interests protected by the ICWA are implicated in any way.†(Rebecca
R., supra, 143 Cal.App.4th at p. 1431.)
II.
Denying
Mother’s Marsden
Motion
Mother
contends she did not receive a proper hearing on her Marsden motion and “was denied effective assistance of counsel when
her counsel failed to file a section 388 modification petition on [her] behalf,
failed to communicate with [her] about the case, and acknowledged that the
conflict between them was so great as to prevent [her] from receiving an
adequate defense.â€
“When a
defendant seeks new counsel on the basis that his [or her] appointed counsel is
providing inadequate representation—i.e., makes what is commonly called a
court must permit the defendant to explain the basis of his [or her] contention
and to relate specific instances of inadequate performance. A defendant is entitled to relief if the
record clearly shows that the appointed counsel is not providing adequate
representation or that defendant and counsel have become embroiled in such an
irreconcilable conflict that ineffective representation is likely to
result.†(People v. Smith (2003) 30 Cal.4th 581, 604.)
Parents in
a juvenile dependency proceeding may
file a Marsden motion “‘to air their
complaints about appointed counsel and request new counsel be appointed.’†(In re
A.H. (2013) 218 Cal.App.4th 337, 342, fn. 5, quoting § 317.5; see also
289 (Z.N.).) An exhaustive Marsden hearing is not required in a dependency action. The juvenile court need only “make
complaints against the attorney.†(
930, 935, fn. 13.) We review the court’s
denial of mother’s Marsden motion for
abuse of discretion. (
First, we
reject mother’s claim that the court failed to conduct a sufficient inquiry
into the nature of her complaints about trial counsel. The court complied with its duty to allow
mother to state reasons for requesting a substitution of counsel. (People
v. Smith (1993) 6 Cal.4th 684, 691; 5 Witkin, Cal. Criminal Law (4th ed. 2012)
Criminal Trial, § 159, p. 275.) “‘To the
extent there was a credibility question between [mother] and counsel . . . the
court was “entitled to accept counsel’s explanation.†[Citation.]’â€
(People v. Jones (2003) 29
Cal.4th 1229, 1245.) Moreover, the
record clearly shows the court provided mother with “repeated opportunities to
voice [her] concerns, and upon considering those concerns reasonably found them
to be insufficient to warrant relieving trial counsel. We therefore find no basis for concluding
that the [juvenile] court . . . failed to conduct a proper Marsden inquiry. . . .†(
People v. Valdez (2004) 32 Cal.4th
73, 95-96 [trial court conducted sufficient inquiry during Marsden hearings].)
Nor are we
persuaded by mother’s claim that the denial of her Marsden motion “substantially impaired†her right to assistance of
counsel. According to mother, she
“needed new counsel†because trial counsel “failed to file a modification
petition, which was [her] last resort . . . before the court terminated her
parental rights.†A parent in a juvenile
dependency proceeding is entitled to effective assistance of trial
counsel. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1659 (
parent must show counsel’s failure to act as a reasonably competent dependency
attorney would, and that the error was prejudicial. (In re
Merrick V. (2004) 122 Cal.App.4th 235, 254-255 (Merrick V.).) Additionally,
the parent must show counsel’s omissions involved a crucial issue and were not
the result of reasonable tactical decisions.
(Id. at p. 255;
94, 98-99.)
Here, it
was not reasonably probable the court would have granted a section 388
petition, had trial counsel filed one. (
1667-1668.) Counsel is not required to
make futile motions or indulge in idle acts to appear competent. (Merrick
V., supra, 1122 Cal.App.4th at p. 255.)
To prevail on a section 388 petition, the moving party must establish a
meaningful change of circumstances and that the requested change of court order
is in the child’s best interest. (§
388.) Mother could not establish a
change of court order would be in daughter’s best interest. As described in more detail below, the record
on appeal indicates mother and daughter did not share a strong relationship,
let alone one strong enough to prevent the termination of parental rights. It is always possible that a strong
relationship would have developed if more visitation had been offered, and it
is always possible such a relationship would have been strong enough to prevent
the termination of parental rights. But
this speculation does not rise to the level of reasonable probability. Thus, there was no deficient performance on counsel’s
part regarding her decision not to file a modification petition.
Finally,
the lack of communication between mother and trial counsel was not “so great
that it resulted in a total lack of communication preventing an adequate
defense.†(Z.N., supra, 181 Cal.App.4th at p. 294.) Here, the communication may have been
strained, but there was not a “total lack of communication†throughout the
15-month representation. The breakdown
in communication appears to have occurred shortly before the .26 hearing, when counsel
moved her office, but it did not prevent adequate representation. That counsel stated there had been a
breakdown in communication does not alter our conclusion. (Z.N.,
supra, 181 Cal.App.4th at pp. 295-296.)
III.
Concluding the Beneficial
Parent-Child Relationship
Exception Did Not Apply
Mother
contends the court erred by terminating her parental rights because the
beneficial parent-child relationship exception set forth in section 366.26, subdivision
(c)(1)(B)(i) applies. We disagree.
Under section 366.26, subdivision (c)(1),
the court must terminate parental rights if it finds the child is likely to be
adopted unless the parent establishes, by a preponderance of the evidence, that
one of the statutory exceptions applies.
(See also Cal. Rules of Court, rule 5.725(d)(2)(C)(i).) To establish the applicability of the
beneficial relationship exception, mother must demonstrate she has “maintained
regular visitation and contact with [daughter] and [daughter] would benefit
from continuing the relationship†with mother.
(§ 366.26, subd. (c)(1)(B)(i).) The
issue here is whether mother can establish daughter would benefit from
continuing the parental relationship. Mother
cannot.
The
standard of “review of an adoption exception incorporates both the substantial
evidence and the abuse of discretion standards of review. [Citation.] . . . The second determination in
the exception analysis is whether the existence of that relationship or other
specified statutory circumstance constitutes ‘a compelling reason for
determining that termination would be detrimental to the child.’ [Citation.]
This ‘“quintessentially†discretionary decision, which calls for the
juvenile court to determine the importance
of the relationship in terms of the detrimental impact that its severance can
be expected to have on the child and to weigh that against the benefit to the
child of adoption,’ is appropriately reviewed under the deferential abuse of
discretion standard. [Citation.]†(In re
K.P. (2012) 203 Cal.App.4th 614, 621-622.)
To determine whether the beneficial
relationship exception applies, the juvenile 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.)
The beneficial relationship exception is “difficult to make in the
situation, such as the one here, where the parents have [not] . . . advanced
beyond supervised visitation.†(
51 (Casey D.).) At least one court has commented that the
beneficial relationship exception “may be the most unsuccessfully litigated
issue in the history of law. . . . [I]t
is almost always a loser.†(
1248, 1255, fn. 5, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)
Notwithstanding
this high burden, mother argues she established the applicability of the
beneficial relationship exception because she was “one of the most important
figures in [daughter’s] life†and because she had a “strong and positive
relationship†with daughter and “loves her dearly.†We are not persuaded. To establish the beneficial relationship
exception, mother was required to show “more than that the relationship [with daughter]
is ‘beneficial.’†(Casey D., supra, 70 Cal.App.4th at p. 52, fn. 4.) She needed to demonstrate the relationship promotes
daughter’s well-being “‘to such a degree that it outweighs the well-being [she]
would gain in a permanent home with new, adoptive parents.’ [Citation.]â€
(Ibid., quoting
1330, 1342; see also In re Elizabeth M.
(1997) 52 Cal.App.4th 318, 329 [parent must occupy more than a “pleasant placeâ€
in the child’s life for the beneficial relationship exception to apply].) Mother failed to do so. There was simply no evidence it would be
detrimental to daughter to sever her relationship with mother. (In re
Amber M. (2002) 103 Cal.App.4th 681, 689; see also Casey D., supra, 70 Cal.App.4th at p. 52.) To the contrary, there was compelling
evidence that mother’s visits with daughter were detrimental to daughter
because: (1) daughter had nightmares after visits with mother; (2) the
Department described the visits as “stressful and problematic[;]†(3) mother conceded visits with daughter were
not always easy; and (4) daughter expressed no distress when mother left the
room during visits. Moreover, both the
Department and State Adoptions opined termination of parental rights would not
be detrimental to daughter.
We conclude the court did not abuse
its discretion by determining the beneficial relationship exception did not
apply. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418 [loss of “loving
and frequent†contact with parent was insufficient to show detriment from
termination of parental rights].)
DISPOSITION
The
juvenile court’s order terminating mother and father’s parental rights and
ordering a permanent plan of adoption is affirmed.
_________________________
Jones, P.J.
We concur:
_________________________
Needham, J.
_________________________
Bruiniers, J.
name="_ftn1" title="">[1] Unless
otherwise noted, all further statutory references are to the Welfare and
Institutions Code.
name="_ftn2" title="">[2] Mother
and father join each other’s briefs. (Cal.
Rules of Court, rule 8.200(a)(5).) In
related case No. A136480, father claimed the court erred by granting the
Department’s section 388 petition and terminating his visitation pending the
.26 hearing. We rejected this claim in an
unpublished opinion. (
[nonpub. opn.].) In this appeal, father
“incorporates his arguments and discussion†regarding his appeal in case No.
A136480. We decline father’s invitation
to revisit the issues in his prior appeal.
By separate order filed this date, we deny mother’s
related petition for writ of habeas corpus (A139334) raising an ineffective
assistance of counsel claim.
