In re R.F.

Filed 10/23/06 In re R.F. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Randy F. and Bernadette A. appeal a judgment of the juvenile court declaring that their son is adoptable and terminating their parental rights. (Welf. & Inst. Code, § 366.26, subd. (c)(1).)[1] They also appeal an order denying Randy F.'s modification petition filed pursuant to section 388.

We reverse the judgment terminating parental rights and remand for the limited determination whether the Indian Child Welfare Act ("ICWA") applies. (25 U.S.C. § 1901 et seq.) We affirm the order denying the modification petition.

FACTS AND PROCEDURAL HISTORY

On September 9, 2004, the Ventura County Human Services Agency (HSA) filed an amended petition on behalf of three-year-old R. (§ 300, subd. (b).) One month earlier, authorities found R. with his parents, Randy F. and Bernadette A., in substandard housing located in a rural area of Ventura County. The Ventura County Department of Building and Safety had cited the property as dangerous and unsanitary.

When authorities visited the property, R. suffered from dental problems. His teeth were black and his gum tissue was red and swollen. A dentist later filled cavities, extracted teeth, placed crowns, performed root canal surgery, and treated R. for infection.

In the amended dependency petition, HSA alleged that R.'s parents had failed to protect him, among other allegations. (§ 300, subd. (b).) The amended petition also alleged that Bernadette A. had used methamphetamine during her pregnancy with R., and that he tested positive for the presence of amphetamine at birth. Randy F. was incarcerated for possession of methamphetamine at the time of R.'s birth. Consequently, R. became a dependent child in Los Angeles County and lived in a foster home there for 18 months. In 2003, the Los Angeles County juvenile court terminated the dependency.[2]

On August 17, 2004, the Ventura County juvenile court ordered R. detained. HSA placed him in a foster home. The juvenile court later sustained allegations of the amended dependency petition concerning substandard housing and R.'s dental health, continued R. in foster care, and ordered HSA to provide family reunification services to Randy F. and Bernadette A. Specifically, the juvenile court required Randy F. and Bernadette A. to obtain safe and appropriate housing and to submit to random drug testing. The juvenile court stated that it had "a substantial concern that there's a substance abuse problem with these parents."

During the next twelve months, Randy F. and Bernadette A. failed to obtain safe and appropriate housing, submit to random drug testing, or complete a parent education program. They did visit with R. weekly, however. During one supervised visit, R. stated to his parents: "You guys have ruined my life already. . . . Yes, you messed up my life enough already."

Nevertheless, R. appeared pleased to see his parents and referred to them as "Mom" and "Dad." He also referred to his foster parents as "Mom" and "Dad." R. appeared sad when his parents left at the conclusion of each visit, and he stated that he would be sad if he could not return to their custody.

At the twelve-month review hearing, Randy F. and Bernadette A. testified that they did not possess driver's licenses and had no transportation to drug testing laboratories or parent education classes. They were living with relatives and had part-time employment. The juvenile court terminated reunification services, and set the matter for a permanent plan hearing pursuant to section 366.26. In ruling, the court remarked that the parents' participation in family reunification services was "poor from the beginning."

Prior to the permanent plan hearing, Randy F. and Bernadette A. filed modification petitions pursuant to section 388, requesting reinstatement of family reunification services. They presented testimony from relatives and other witnesses that they were responsible and loving parents to R. Randy F. testified that he had completed a parent education class. He also was attending Alcoholic Anonymous meetings frequently and substance abuse counseling as probation terms resulting from a recent misdemeanor drug offense. He stated that he was submitting to drug testing (negative but for one test), was employed, and that he and Bernadette A. lived in a mobile home. Randy F. admitted that he had not informed HSA that he was granted probation as a result of a drug offense.

Bernadette A. testified that she recently completed a parent education class and attended Alcoholic Anonymous meetings, as she had for eight years. She stated that she did not test for drugs, however, because she had no transportation to a laboratory. Bernadette A. testified that she was employed as a housekeeper and a landscaper, and had recently applied for drug testing.

The juvenile court denied the modification petitions. It ruled that Randy F. and Bernadette A. did not establish changed circumstances or that granting the modification petition would be in R.'s best interests. The juvenile court acknowledged, however, that R. has an emotional bond with his parents. It also stated that Randy F.'s compliance with drug testing and other case plan objectives was motivated by "a criminal case hanging over [him]."

At the section 366.26 permanent plan hearing, the juvenile court received evidence of HSA reports and testimony from the HSA social worker, R.'s parents, and other witnesses. R.'s parents asserted that the beneficial parental relationship exception of section 366.26, subdivision (c)(1)(A), applied. The juvenile court concluded by clear and convincing evidence that R. is likely to be adopted and it terminated the parental rights of Randy F. and Bernadette A. (§ 366.26, subd. (c)(1).) The court rejected the beneficial parental relationship exception, stating that "it does not appear . . . that these parents have filled a parental role for [R.] for most of his life. . . . [T]hey haven't acted like real mommy and daddy in the sense of caring for [R.] for any significant time or for any substantial period of time in his life."

Randy F. and Bernadette A. appeal and contend that: 1) the juvenile court abused its discretion by denying Randy F.'s modification petition; 2) the juvenile court erred by not applying the beneficial relationship exception to adoption (§ 366.26, subd. (c)(1)(A)); and 3) the record does not evidence compliance with the notice requirements of the ICWA.

DISCUSSION

I.

Randy F. and Bernadette A. assert that the juvenile court abused its discretion by denying his modification petition that sought reinstatement of reunification services. They contend that Randy F. met his burden, by a preponderance of the evidence, of establishing changed circumstances and the promotion of R.'s best interests. Randy F. and Bernadette A. point out that he completed a parent education class, complied with drug testing required as a condition of probation, attended Alcoholic Anonymous meetings, and found appropriate housing and employment.

The juvenile court may modify an order if a parent shows, by a preponderance of the evidence, changed circumstances or new evidence, and that the modification would promote the best interests of the child. (§ 388; In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446.) In determining the best interests of the child, the juvenile court shall consider the reason for the dependency, the reason the problem was not overcome, the strength of the parent-child and child-caretaker bonds, the length of time the child has been a dependent, the nature of the change of circumstance, the ease by which the change could be achieved, and the reason it was not made sooner. (Id., at pp. 446-447.) We test the juvenile court's decision for an abuse of discretion. (Id., at p. 447.)

The juvenile court did not abuse its discretion because Randy F. did not establish that modification of prior court orders would be in R.'s best interests. Randy F. belatedly complied with the objectives of his case plan only after an arrest for a drug offense. At the time of the modification petition hearing, he had not provided HSA with evidence of negative drug test results nor had he invited HSA to inspect his new-found housing. R. has lived the majority of his life in foster care, and refers to his current foster parents as "Mom" and "Dad." Randy F. continues to reside with Bernadette A., and she has not provided HSA with evidence of negative drug test results. Randy F. and Bernadette A. chose not to participate in family reunification services during the 12 months that services were offered.

The juvenile court reasonably found that additional reunification services likely would not result in reunification. "'"[C]hildhood does not wait for the parent to become adequate."'" (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) "A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests." (Ibid.)

II.

Randy F. and Bernadette A. argue that sufficient evidence does not support the juvenile court's decision that the beneficial relationship exception to adoption does not apply. (§ 366.26, subd. (c)(1)(A); In re Dakota H. (2005) 132 Cal.App.4th 212, 228 [substantial evidence standard of review applies to § 366.26, subd. (c)(1)(A) exception].) They point out that they are loving and caring parents who provided for R. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 ["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."].) Randy F. and Bernadette A. add that R. loves them, is happy to see them, views them as "Mom" and "Dad," and stated he would be sad if he could return home to them.

Section 366.26, subdivision (c)(1), 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 "the 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)(A), requires a showing of "regular visitation and contact" and "benefit" to the child from "continuing the relationship." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) The parent bears the burden of proving the exception. (Ibid.) "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., supra, 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].) A biological parent who has not reunited with a child may not derail an adoption by showing that the child derives some benefit from continuing the relationship. (In re Angel B., supra, 97 Cal.App.4th 454, 466.)

Sufficient evidence supports the juvenile court's finding that the benefits of continuing R.'s relationship with Randy F. and Bernadette A. did not outweigh his need for a stable home. R. was five and one-half years old at the time of the section 366.26 hearing, and had lived with foster parents for nearly three years through two dependency actions. Although he loved Randy F. and Bernadette A., he also loved his foster parents and also referred to them as "Mom" and "Dad." R. stated that he would be sad if he could not return home to his parents, but thereafter happily played with his toys and spoke excitedly to the community worker about riding in his Mustang automobile. R.'s foster parents satisfied R.'s needs for protection, guidance, food, and shelter, and occupied the parental roles in his life.

The juvenile court assessed the credibility of witnesses, weighed the evidence, and determined that Randy F. and Bernadette A. did not fulfill parental roles. (In re Jasmine D., supra, 78 Cal.App.4th 1339, 1351 ["The juvenile court's opportunity to observe the witnesses and generally get 'the feel of the case' warrants a high degree of . . . deference."].) Randy F. and Bernadette A. did not establish that this was "an extraordinary case" where the parental relationship exception of section 366.26, subdivision (c)(1)(A), applies. (Id., at p. 1350.)

III.

Randy F. and Bernadette A. argue that HSA did not comply with the notice requirements of the ICWA. (25 U.S.C. § 1901 et seq.; In re H.A. (2003) 103 Cal.App.4th 1206, 1214-1215 [setting forth specific notice requirements of ICWA].) They point out that Randy F. stated that he was part Cherokee Indian, and HSA provided some notice to the Bureau of Indian Affairs and the three Cherokee Indian tribes. HSA did not file copies of the form SOC 319 ("Notice of Involuntary Child Custody Proceeding Involving an Indian Child") or the return receipt for the United Keetoowah Tribe with the juvenile court, however. Randy F. and Bernadette A. add that notice under the ICWA is "'absolutely critical'" and failure to provide it is prejudicial error. (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.) Moreover, they point out that the juvenile court did not expressly find whether ICWA applied. (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413 [juvenile court must decide explicitly whether ICWA applies].) HSA concedes that it did not comply with the ICWA notice requirements. (In re Jonathan D. (2001) 92 Cal.App.4th 105, 111-112 [limited remand to require compliance with ICWA; reinstatement of finds and orders proper if court determines, after proper notice and inquiry, that ICWA does not apply].)

We reverse the judgment terminating parental rights and remand for the limited determination of the applicability of the ICWA. If, following proper inquiry and notice, the juvenile court expressly determines that the ICWA does not apply, it shall reinstate the order terminating parental rights. The orders are otherwise affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

COFFEE, J.

PERREN, J.

Tari L. Cody, Judge

Superior Court County of Ventura

______________________________

Maureen L. Keaney for Defendant and Appellant, Bernadette A.

Anne E. Fragasso for Defendant and Appellant Randy F.

Noel A. Klebaum, County Counsel, Linda Stevenson, Assistant County Counsel, for Plaintiff and Respondent.

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

[2] Randy F. and Bernadette A. complied with family reunification services offered in the Los Angeles dependency action, "'with the exception of random drug testing.'" Nevertheless, the juvenile court terminated the dependency.