In re R.R.

Filed 2/8/08 In re R.R. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Robert J. Anspach, Judge.

Mary Ruth Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

B.C. Barmann, Sr., County Counsel, and Susan M. Gill, Deputy County Counsel, for Plaintiff and Respondent.

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Raymond R. appeals from 2007 orders terminating his parental rights (Welf. & Inst. Code,  366.26) to his three-year-old daughter and one-year-old son.^[1] He seeks reversal on three grounds. One, he contends the court erred in 2006 when it determined that the Indian Child Welfare Act (ICWA; 25 U.S.C.  1901, et seq.) did not apply. Two, he argues the court should have selected legal guardianship as the childrens permanent plan due to their relative caregivers preference for legal guardianship over adoption. Three, appellant urges evidence of a positive relationship between the parents and the children added to the weight the court should have placed in favor of legal guardianship. On review, we will affirm.

PROCEDURAL AND FACTUAL HISTORY

In March 2006, the Kern County Superior Court adjudged appellants two-year-old daughter and seven-month-old son dependent children and removed them from parental custody. The children came to the courts attention as a result of their mothers physical abuse of an older half-sibling, appellants failure to protect, and the parents willful or negligent failure to provide adequate food and shelter due to their history of substance abuse. ( 300, subd. (b).)

Notably, in its March 2006 dispositional hearing minute order, the court found ICWA did not apply to these proceedings. Appellant had earlier claimed Apache Indian heritage. The department in turn served notice, pursuant to ICWA, upon nine federally-recognized Apache tribes as well as the Bureau of Indian Affairs. By the time of the March 2006 hearing, the department filed negative responses it received from four of the tribes. Before issuing its minute order that ICWA did not apply, the court initially voiced that the children might be Indian. The record is otherwise silent regarding ICWA.

Over the following six months, the parents neither participated regularly in reunification services nor made any progress in mitigating or alleviating the causes for the childrens out-of-home care. Because there was no substantial probability the children would be returned to parental custody in the next six months, the court in October 2006 terminated reunification efforts and set the matter for permanency planning (setting order).

Relevant to this appeal, neither parent regularly visited with the children during the reunification period. Respondent Kern County Department of Human Services (the department) reported the mother visited only twice and appellant did not visit at all during the six-month reunification period. Although appellant challenged the department on this point as well as regarding his efforts in general, the court found, on a credibility scale of one to ten, appellants credibility was about a zero.

When the court issued its setting order in October 2006, it also continued its order for supervised visits on a weekly basis. Thereafter, the parents visited more frequently than before. Between November 2006 and January 2007, the parents visited with the children six times.

In January 2007, the department prepared a report in which it assessed the children as adoptable and recommended the court terminate parental rights. One of the childrens paternal uncles and his wife expressed a desire as well as a commitment to adopt them in order for them to be with family. The department had placed the children with these relatives in October 2006. When asked why he wanted to adopt his niece and nephew, the uncle, Robert R., replied They have a need and they are my blood. Another person cant provide for them like we can. The aunt stated, We can provide them a family history. The uncle and aunt described themselves as being part of a large and supportive extended family. The couple loved the children and wanted them to be with family.

The department also summarized in its permanency planning report the childrens contacts and relationships with their parents. The older of the two children knew who each of her parents were, although she also called her relative caretakers, Daddy and Mommy. The girls relationship with each parent diminished over time. However, she did run up to appellant at a January visit, yelling Daddy, Daddy! and jumped into his arms. The department characterized this as surprising given the little visitation that occurred over the preceding nine months. The other child was so young when he was removed and there was so little contact in the early stages that he essentially did not know his parents. Neither child had a parent/child relationship with either parent. Appellant in particular was most likely viewed as an infrequent visitor who played with them and brought them cookies and toys.

Because the permanency planning hearing for the children was delayed until May 2007, the department submitted a supplemental report updating the childrens contact with their parents. It described seven pleasant visits that the parents and children shared between March and early May. Their visits revolved around age-appropriate play with the children and eating food which the parents provided. At the end of two of those visits, the older child cried.

At the May permanency planning hearing, the paternal uncle Robert R. took the witness stand. He confirmed his willingness to adopt his niece and nephew although he added he would prefer that he and his wife be the childrens legal guardians. Robert R. informed the childrens social worker who appeared to understand that when children are placed with family members, the family in most instances prefers guardianship in the belief adoption disorganizes the family structure. This was Robert R.s position as well. He explained:

If I were to adopt them, their older brothers would become their cousins and I would be, I would become the father and my wife, which is their aunt, would become the mother. And I expressed to [the social worker] I didnt see where that was any benefit to the children, really, because I think it would cause more awkwardness with the family structure.

Robert R. also thought it would be awkward for his brother, the childrens father, because he remained a member of the family and there would be interaction. The two brothers came from a family of thirteen brothers and sisters. Adoption, in Robert R.s estimation, would be like adding salt to a wound for his brother. Robert R. also believed it would be awkward for the children as they grew older in terms of their interaction with the family. However, he further testified that the children already considered him and his wife to be their Daddy and Mommy and referred to them as such, without any prompting.

On cross-examination, county counsel asked if he had spoken to anyone else about adoption versus legal guardianship. Robert R. replied he spoke briefly with his brothers attorney and counsel for the children and was asked if he felt he was being influenced. I said, no, I was just told that I need to consider those two options.

In closing argument, appellants trial counsel claimed exceptional circumstances warranted the court selecting legal guardianship as the childrens permanent plan. Counsel cited the departments evidence regarding the childrens visits with their parents, Robert R.s testimony regarding his preference and In re Fernando M. (2006) 138 Cal.App.4th 529 (Fernando M.). Appellants counsel assumed the department would have removed the children from the relatives care had they been unwilling to adopt. Counsel for the children also argued for legal guardianship, although he conceded there may be no exceptional circumstances. Instead, the childrens attorney urged legal guardianship would also serve the childrens best interests in terms of permanence because the uncle was committed to providing the children with a permanent home.

The court took the matter under submission to review the case law. When court reconvened, the judge rejected counsels arguments. It explained:

I think that issue is the scope at which the Court should view the willingness or unwillingness of the caretaker to proceed to an adoptive mode with respect to these youngsters. And analyzing and reviewing his testimony, its uppermost, his concern is that the adult members of the family wouldnt understand the relationship that results from adoption. And perhaps the children wouldnt understand their relationship with their siblings and their cousins and an uncle.

These reasons are not such that the Court finds that it is not such that a caretaker would be unwilling to adopt. The Court would find that its not the provision and exception of the [ 366.]26 is, paragraph two, paragraph D would not be applicable.

That the best interest of these Minors is to have permanency that may be offered through adoption.

Having found clear and convincing evidence that the children were likely to be adopted, the court terminated parental rights.

DISCUSSION

I. ICWA

Appellant challenges for the first time on appeal the courts March 2006 dispositional finding that ICWA did not apply to his childrens dependencies. He claims he is entitled to raise ICWA compliance on appeal even though he did not object in the trial court. He contends the court had no basis for its finding because although the department had filed copies of the ICWA notice, the proof of mailing by certified mail, and the four responses it had received, it did not file signed return receipts from the other five Apache tribes or other responses it may have received. Also, appellant criticizes the court for not following a rule of court (Cal. Rules of Court, rule 5.664(f)(6)) requiring a 60-day waiting period from the date notices were sent before deciding ICWA did not apply.^[2]

Respondent concedes the lack of response from all of the tribes and adds that the reporters transcript of the March 2006 hearing did not contain the same finding, as set forth in the minute order that ICWA did not apply. Respondent suggests this court issue a conditional reversal and limited remand.

Appellant and respondent overlook the fact that the 2006 dispositional finding is a final decision and our appellate jurisdiction is limited to the 2007 proceedings resulting in the termination of parental rights. Appellant passed on previous opportunities to challenge the courts finding and order by way of a timely appeal or writ petition to this court. (See In re Gerardo A. (2004) 119 Cal.App.4th 988, 993.) The courts 2006 dispositional finding and order have long been final and therefore are no longer reviewable by this court. (In re Pedro N. (1995) 35 Cal.App.4th 183, 185 (Pedro N.).)

In Pedro N., this court held that a parent who fails to timely challenge in the appellate court a juvenile courts action regarding ICWA is foreclosed, once the courts ruling is final, from raising ICWA notice issues in a subsequent appeal. In so ruling, we specifically held we were only addressing the rights of the parent, not those of a tribe.

We observe that appellant cites the decision in In re Marinna J. (2001) 90 Cal.App.4th 731 which disagrees with our holding in Pedro N. on the theory it was inconsistent with the protections ICWA affords to the interests of Indian tribes. On this point, we differ. This court does not foreclose a tribes rights under ICWA on account of a parents appellate waiver. (Pedro N., supra, 35 Cal.App.4th at p. 185; see also In re Desiree F. (2000) 83 Cal.App.4th 460 [where this court reversed the denial of a tribes motion to intervene after a final order terminating parental rights and invalidated actions dating back to the outset of the dependency and taken in violation of ICWA].)

In addition, appellant and respondent overlook the result in this case which was termination of the parents rights with a plan for adoption by one of the paternal uncles. Such a result does not change the childrens status, were they in fact Indian as defined by ICWA, given that appellant made the claim of Indian heritage based on his belief his mother, and therefore the uncles mother, was one part Apache. Thus, the outcome in this case would not prejudice a tribes interest.

II. Detriment Claims

Introduction

Because the children were likely to be adopted, the law required the court to terminate parental rights, unless one of the specifically designated-circumstances, set forth in section 366.26, subdivision (c)(1), provided a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)^[3] Appellant and the mother bore the evidentiary burden of showing termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)

On appeal, we review the juvenile courts decision in this regard for abuse of discretion. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) Having completed that review, as summarized above, we conclude the juvenile court did not abuse its discretion in rejecting either claim of detriment.

Parent Child Relationship

As previously mentioned, appellants trial counsel urged the court to find termination would be detrimental to the children based on their visits with their parents. By so arguing, counsel was alluding to section 366.26, subdivision (c)(1)(A) which authorized the court to find termination would be detrimental to the children if it found the parents had maintained regular visitation and contact with the children and the children would benefit from continuing the relationship.

Arguably, this exception did not apply in this case simply because the record reveals the parents did not maintain regular visitation and contact with the children over the course of their dependency. In any event, appellant also had to show the parent/child relationship promoted the childrens well-being to such a degree that it outweighed the well-being they would gain in a permanent, adoptive home. (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 parents rights are not terminated. (Ibid.) Here, the record is devoid of any such proof. At most, there was evidence that when the parents did visit, their interaction with the children was appropriate and the children had a pleasant time.

On appeal, appellant appears to acknowledge this evidentiary vacuum. He claims it was not necessary for him to establish the evidence of a beneficial parental relationship was enough, standing alone, to warrant a detriment finding. He argues evidence of a positive relationship between the parents and the children added to the weight the court should have placed in favor of legal guardianship based on the uncles preference. As authority for his claim, he cites the use of the phrase one or more in the language of section 366.26, subdivision (c)(1). Section 366.26, subdivision (c)(1) mandated termination of parental rights for adoptable children unless the court found a compelling reason for determining that termination would be detrimental to the child due to one or more of the statutorily-designated circumstances.

We fail to discern how the phrase one or more supports appellants claim that he was entitled to a detriment finding even though he did not establish that he maintained regular visitation and contact with the children and they would benefit from continuing the relationship. Rather than follow the statutory language, appellant seeks to rewrite the law. He essentially argues even if a parent has insufficient evidence to compel a finding under one of the designated circumstances, the court errs if it does not add that evidence to a showing made under another of the designated circumstances for finding detriment. Nowhere does the code or the case law dictate this.

Caregiver Exception

The so-called caregiver exception was another of the designated circumstances by which the court could find termination of parental rights would be detrimental. Section 366.26, subdivision (c)(1)(D) provided termination would be detrimental when:

The child is living with a relative, foster parent, or Indian custodian who is unable or unwilling to adopt the child because of exceptional circumstances, that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the physical custody of his or her relative, foster parent, or Indian custodian would be detrimental to the emotional well-being of the child. . . . ( 366.26, subd. (c)(1)(D).)

Here, Robert R. and his wife were willing and able to adopt appellants children. It was their preference, however, to become the childrens legal guardians for the reasons the uncle stated.^[4]

In the uncles view, adoption would disorganize the family structure. He explained:

If I were to adopt them, their older brothers would become their cousins and I would be, I would become the father and my wife, which is their aunt, would become the mother. And I expressed to [the social worker] I didnt see where that was any benefit to the children, really, because I think it would cause more awkwardness with the family structure.

Robert R. also thought it would be awkward for his brother, the childrens father because he remained a member of the family and there would be interaction. Adoption, in Robert R.s estimation, would be like adding salt to a wound for his brother. Robert R. also believed it would be awkward for the children as they grew older in terms of their interaction with the family. Notably, however, the children already considered him and his wife to be their Daddy and Mommy and referred to them as such, without any prompting.

Appellant assumes his brother was only willing to adopt because the alternative was removal of the children from his care. Based on this assumption, he launches into a lengthy and multi-layered argument for reversal. As he summarizes that argument in his reply brief, he claims the issue under section 366.26, subdivision (c)(1)(D) should not be whether the relative caregivers are absolutely unwilling to adopt, but whether their reasons for preferring to become guardians rather than adopt relate to the childrens best interests. As discussed herein, appellants argument fails for numerous reasons.

First and foremost, his assumption -- that his brother was only willing to adopt because the alternative was removal of the children from his care -- and thus the premise for his various claims is not supported by the record. Indeed, we note the uncle expressly denied feeling influenced. He added I was just told that I need to consider those two options [adoption and legal guardianship].

Second, appellant takes issue with case law which held: the caregiver exception did not apply if the caregiver was willing and able to adopt the dependent child (In re Zachary G., supra, 77 Cal.App.4th at p. 810); and a caregivers personal preference for guardianship over adoption was irrelevant to any inquiry at the section 366.26 hearing (In re Jose V. (1996) 50 Cal.App.4th 1792, 1801). He argues the phrase unwilling to adopt, as used in section 366.26, subdivision (c)(1)(D), was ambiguous in that unwilling could mean an absolute unwillingness or a mere reluctance. He in turn urges us, via two motions for judicial notice, to consider legislative materials which he claims demonstrates that the Legislature envisioned if a dependent child were placed with a relative willing to provide long-term care, termination of parental rights was unwarranted and unwise unless the relative wished to adopt.

We are not persuaded by appellants claim of ambiguity over the word unwilling. We agree with those cases which have ruled the caregiver exception did not apply if the caregiver was willing and able to adopt the dependent child (In re Zachary G., supra, 77 Cal.App.4th at p. 810). Appellants argument ignores the entirety of the statutory language in this regard, which required that the caregiver be unable or unwilling to adopt because of exceptional circumstances. His argument also appears to be little more than a veiled effort to claim the Legislature did not mean what it said.

Notably, the legislative materials of which appellant asks us to take judicial notice, a Senate Select Committee Task Force report written the year after the enactment of section 366.26 and legislative history related to the amendment of section 366.26 effective this year, are not the legislative history of section 366.26, subdivision (c)(1)(D). (See Diamond Multimedia Systems, Inc. v. Superior Court, supra, 19 Cal.4th at p. 1055.) The phrase unwilling to adopt as used in section 366.26, subdivision (c)(1)(D) has been part of the statute since its enactment in 1987 when section 366.26 was added to the Welfare and Institutions Code (Stats. 1987, c. 1485  47). The materials appellant seeks judicial notice of came into existence after 1987 and thus cannot logically be considered the legislative history of the phrase unwilling to adopt.

In any event, there was no evidence that the uncle was reluctant to adopt. Indeed, the undisputed evidence was that he and his wife were committed to adopting the children. Thus, appellants argument over the definition of unwilling is meaningless under the facts of this case. Moreover, the superior court overruled relevance objections to the uncles testimony about his preference and considered the uncles reasoning, as appellant argues he was required to do under Fernando M. to determine whether they constitute the exceptional circumstances required by section 366.26, subdivision (c)(1)(D) (In re Fernando M., supra, 138 Cal.App.4th at pp. 535-536, 538). In his view, however, the Fernando M. opinion holds that the impact adoption would have on other family members and thereby on the child can constitute exceptional circumstances. We disagree.

In Fernando M., a dependent child lived with maternal grandparents who also cared for his older siblings. The child was undisputedly bonded and shared a close relationship with his grandparents and siblings. However, the grandfather was not willing to adopt and would have to sign a spousal waiver in order for the grandmother to adopt. For her part, the grandmother did not want to adopt because she believed the child belonged to his mother and one day the mother would get him back. (In re Fernando M., supra,138 Cal.App.4th at p. 533.) Her statements of willingness to adopt were always followed by what she described as a threat that unless she adopted her grandson, the department would find another adoptive home. (Id. at p. 538.) There was also compelling evidence that to remove the child from his grandmothers care would detrimentally affect him and deprive him of the stability to which he was entitled. (Ibid.)

The appellate court reversed, concluding there were exceptional circumstances as that term is used in section 366.26, subdivision (c)(1)(D) because (1) the grandmother was also caring for the childs siblings whom she was not adopting and with whom the child was bonded, and (2) adoption would disrupt the grandmothers marriage. (In re Fernando M., supra, 138 Cal.App.4th at pp. 537-538.)It concluded its discussion with the following:

under the peculiar facts of this case, [the grandmother] should [not] be coerced into either becoming willing to adopt Fernando or watching as someone else does. That neither serves Fernandos best interest nor follows the mandate of section 366.26, subdivision (c)(1)(D). (In re Fernando M., supra, 138 Cal.App.4th at p. 538.)

Returning to the case before us, we conclude Fernando M. is not factually analogous, as appellant might claim. There was no question of the uncle and aunts willingness and ability to adopt the children. Also, to reiterate, appellants insinuation that his brother was only willing to adopt because the alternative was removal of the children from his care is not supported by the record.

Further, the uncles concern that adoption would create an awkward situation for family members, particularly appellant, reflected the importance of family relationships to him more than it amounted to detriment to the children or what was in the childrens best interests. In any event, it could hardly be considered exceptional circumstances.

Finally, we disagree with appellants view that his brothers reasons for his preference related to the childrens best interests. At most, the uncle speculated family interaction would be awkward for the children as they grew older. This hardly amounts to a best interests showing. As we noted previously, regardless of the uncles concern over family status, the children already called him and his wife, Daddy and Mommy, and considered them to be their parents.

Under these circumstances, we conclude the superior court did not err in rejecting appellants section 366.26, subdivision (c)(1)(D) claim for a detriment finding.

DISPOSITION

The motions for judicial notice are denied. The orders terminating parental rights are affirmed.

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^* Before Vartabedian, Acting P.J., Harris, J., and Levy, J.

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

^[2] Appellant has asked this court to judicially notice legislative history related to California statutory changes which took effect in 2007 regarding the Indian Child Welfare Act. He claims it is proper to take judicial notice of legislative history where legislative intent of a statute is relevant on appeal.

We conclude his motion is fatally flawed. Appellants ICWA notice argument does not include a claim of statutory ambiguity or otherwise raise a question of legislative intent. Only when the language of a statute is susceptible to more than one reasonable construction is it appropriate to turn to extrinsic aids, including the legislative history of the measure, to ascertain its meaning. (Diamond Multimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4th 1036, 1055.) In any event, the legislative history he seeks judicial notice of relates to statutory amendments which went into effect in 2007, the year after the court in this case made its determination.

^[3] Since the time of the superior courts decision in this case, section 366.26, subdivision (c) has been amended effective January 1, 2008. We have followed the version of the law in effect at the time of the courts ruling.

^[4] In this case, we believe the juvenile court wisely overruled relevancy objections to the uncles testimony in order to make a clear record on the issue of his willingness to adopt.