In re Robert H.

Filed 4/20/07 In re Robert H. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Tuolumne County. Eric L.

Du Temple, Judge.

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

Gregory J. Oliver, County Counsel, and Christopher J. Schmidt, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Robert H. appeals from orders terminating his parental rights (Welf. & Inst. Code,  366.26) to his three young children.^[1] He contends the court erred at an earlier stage of the dependency proceedings when it ruled the Indian Child Welfare Act (25 U.S.C.  1901 et seq. (ICWA)) did not apply. He also claims the court should have found termination of his rights would be detrimental to the children based on their parent/child relationship ( 366.26, subd. (c)(1)(A)). On review, we disagree with appellant and will affirm.

PROCEDURAL AND FACTUAL HISTORY

Appellant and his wife are the parents of four children, a teenage daughter and the three children, Robert, Bethany and Christopher, who are the subjects of the underlying proceedings. The mother, who also has four older children, has had a long history of child welfare intervention dating back to 1985 and periodically thereafter involving general child neglect and endangerment, physical, emotional and sexual abuse of the children and domestic violence.

Combined, appellant and the mother were found in 2003 to be emotionally abusive to their four children and allowed sexual molesters access to them. After 18 months of family maintenance services for the mother and reunification services for appellant, the juvenile court in January 2005 terminated its dependency jurisdiction and granted the mother sole legal and physical custody of the children and limited appellants contact to supervised visitation.

Only two months later in March 2005, the instant case arose. The three youngest children, six-year-old Robert, four-year-old Bethany and two-year-old Christopher (children) were placed in protective custody after Christopher was found for the second time in a month wandering in the middle of a busy highway intersection. Christopher was almost hit by three cars. On two other occasions, four-year-old Bethany also was seen wandering around the same intersection.

Respondent Tuolumne County Department of Social Services (department) filed dependency petitions on the childrens behalf, alleging the mother failed to provide adequate supervision, shelter and clothing and that appellant was unable to provide care for them ( 300, subd. (b)). The Tuolumne County Superior Court, sitting as a juvenile court, thereafter found true these allegations, as well as an amended allegation that the mother failed to protect the children from sexual abuse perpetrated by a live-in relative. Following an uncontested dispositional hearing in April 2005, the court ordered reunification services for each parent. The court-ordered service plan also included weekly, supervised visitation. Further, the court found that the ICWA did not apply to these proceedings.

Over the course of the next six months, the mother failed to comply with her case plan. Consequently, in November 2005, the juvenile court terminated her services and reduced her visits to once-a-month. On the other hand, appellant attempted to comply with his case plan. Notably, he visited the children regularly and was participating in his other court-ordered services. However, the department identified two major obstacles to returning the children to his custody. He had yet to demonstrate the ability to effectively supervise his children and ensure their physical safety outside the confines of the departmental offices. In addition, despite six months of urging by the department, he still had not obtained suitable housing for himself and the children.

Consequently, the court continued services for appellant for an additional six months. It also granted appellant unsupervised visitation to provide him the opportunity to demonstrate whether he had the ability to adequately supervise and provide for the childrens needs.

However, over the next six months, appellant failed to demonstrate his ability to assume custody of his children. On the positive side, the children greeted him warmly and appeared to have affection for him and in general enjoyed their visits together. However, the children also displayed challenging behaviors which appellant had difficulty managing. For instance, six-year-old Robert was regularly stealing and setting fires. Yet, he returned from one visit with appellant carrying a pocketknife and lighter. Also, appellant repeatedly allowed the children contact with an extended family member who allegedly abused Robert All the while appellant knew of the allegation as well as that the child was afraid of this individual. Also, appellant had been warned by the social worker against allowing such contact. As a result, supervised visitation between appellant and the children resumed. In addition, appellant had not learned to safely supervise the children in public, requiring the social worker to routinely intervene to protect the children from danger.

Because appellant failed to complete the objectives of his case plan, the juvenile court in April 2006 terminated his services and reduced his visits to once-a-month. The court also set a section 366.26 hearing to select and implement a permanent plan for the children.^[2]

In advance of the section 366.26 hearing, the department and the California Department of Social Services (CDSS) conducted a joint assessment regarding permanency planning for each child. In turn, the department prepared and filed with the court a 366.26 WIC Report for each child which contained a PERMANENCY PLANNING ASSESSMENT. Attached to each report was the CDSS W.I.C. 366.26 ADOPTION ASSESSMENT assessment for each child.

In summary, both sets of assessments characterized the children as likely to be adopted and recommended the court terminate parental rights. Although the children, particularly Robert, displayed some challenging behaviors, they had other qualities that made them adoptable. They were ages seven years and younger. They had no serious medical problems. Further, they were pleasant, playful, generally optimistic and affectionate. In the summer of 2006, Robert was placed with one prospective adoptive family who was committed to adopting him, while Bethany and Christopher were placed with another such family. The two families were also committed to an ongoing relationship for the three children. The children lived geographically close which would ease their ongoing contact.

Relevant to this appeal, the assessments reported appellant continued to regularly visit with the children and that the visitation schedule decreased to once-a-month after the last review hearing. The children still appeared to enjoy their visits with appellant. However, they had adjusted in a positive way to the infrequency of their visits. Their hyperactive and challenging behavior outside of the visits had significantly decreased. Their behavior during visits continued to be somewhat disruptive, loud, and chaotic and appellant still did not address those behaviors. The department opposed continued visitation.

In the case of Bethany and Christopher, they enjoyed visiting appellant. However, they did not display emotional distress when the visits ended nor did they request visits with him. Bethany expressed excitement in moving to her prospective adoptive family. Christopher asked many questions about his prospective adoptive family and appeared excited.

As for Robert, he did occasionally inquire about when he would visit with appellant. However, the seven-year-old frequently appeared sad during visits. Robert also expressed some concern and sadness about missing his parents. On the other hand, the seven-year-old conveyed excitement and appeared ready to join his prospective adoptive family. He wanted to be part of a family. Yet, he reported he was worried about telling his father. While, at the start of his July 2006 visit with appellant, Robert was sad, his mood lightened before the end of the visit. In addition, Robert had begun medical treatment for a diagnosis of Attention Deficit Disorder. Since treatment commenced, coupled with the decrease in the frequency of visits with appellant, Robert appeared calmer and his incidents of acting out in negative ways to gain attention had significantly decreased. The CDSS assessment also reported Robert became sad and cried when he first learned he would not be going home with his father.

Appellant and the mother contested the joint recommendation to terminate their rights. As a result, the court continued the section 366.26 hearing to late September 2006. At the contested hearing, there was no dispute that the children were adoptable. By this time, the children had been in their prospective adoptive placements for approximately two months. Instead, the hearing focused on whether termination would be detrimental to the children, based largely on their relationships with their parents. The evidentiary phase commenced with the department calling Renee DeVol, its social worker assigned to the case since April 2005. Much of her testimony pertained to visitation.

Relevant to appellant and his appeal, DeVol testified that since reunification services were terminated, appellants interaction with the children, particularly his interaction with Robert, was somewhat depressed. There were uncomfortable moments during a couple of visits because Robert was looking forward to and glad about going to a permanent family, however, the child was worried about appellants reaction to that. Indeed, Roberts only concern about being part of a permanent family was his fathers feelings about it.

Primarily, appellant played with the children during visits, however, DeVol would intervene when the children became too loud or appellant did inappropriate things. For instance, he would make a phone call during a visit and remark in front of the children about fighting child welfare and the court system. Also, rather than support the childrens well-being and act positively, appellant would sit and wallow. It appeared he was in mourning.

The social worker also testified that when the children were more frequently visiting their parents, the children were fairly wild.

They were fairly wild. We would have to redirect them frequently, you know, to leave. [Robert] in particular would act out, he would steal, he would set fires. There were some visits with -- after Christophers visits where he had defecating episodes, you know, either before or immediately after visits.

Since the visits decreased, the children were behaving very well.

The children are behaving very well now. Over the course of the last five to six months, their behaviors have improved dramatically. Christopher is not defecating, hes to the point where hes even able to go without a diaper at night, much more settled. Their wild and out of control behaviors have all but disappeared with mild -- only mild redirection being needed.

Robert was no longer setting fires or stealing things. His current behavior was no more problematic than one would expect of a seven-year-old.

When questioned about Roberts sadness and tears when he first learned he would not be going to live with his father, the social worker testified such a reaction was natural after anticipating during the reunification period that he would do so.

Appellant also took the witness stand on his own behalf. According to him, the children appeared to enjoy their visits with him. He believed the children were bonded with him even though they had not lived with him on a regular basis for several years. It was also his opinion that if the children did not have the chance to be a part of his life that it would start to emotionally affect them, their moods and their behaviors in the coming years.

Appellant further testified about his recollection of the visit he had with Robert when the child learned he would not be going to live with appellant. In appellants estimation, Robert was devastated and cried for about 25 minutes straight nonstop. Appellant believed he did his best to console the child.

Following closing arguments, the court found the children adoptable and terminated parental rights.

DISCUSSION

I. ICWA

Appellant challenges for the first time one of the courts April 2005 dispositional findings, namely that ICWA did not apply to the childrens dependency. He contends that although notice of the proceedings were served on the Bureau of Indian Affairs when the mother initially claimed Mexican Indian heritage, the notice was defective. In addition, he argues there is no record that any such notice was given after late March 2005 when he stated he might have Indian ancestry. The problem for appellant is he never challenged the courts 2005 dispositional findings and orders by way of a timely appeal and those findings and orders have long since become final.

In In re Pedro N. (1995) 35 Cal.App.4th 183, 185, this court held a parent who fails to timely challenge a juvenile courts action regarding ICWA is foreclosed from raising ICWA notice issues once the courts ruling is final in a subsequent appeal. In so ruling, we specifically held we were only addressing the rights of the parent, not those of a tribe.

To the extent other courts have disagreed with our holding on the theory it was inconsistent with the protections ICWA affords to the interests of Indian tribes, we take a different view. 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].)

II. No Detriment

Appellant also contends the court erred when it declined to find termination would be detrimental to the childrens best interests. He claims he was entitled to such a finding because he presented sufficient evidence that he had maintained regular visitation and contact with his children and they would benefit from the continuing the relationship ( 366.26, subd. (c)(1)(A)).

Once reunification services are ordered terminated, the focus shifts to the needs of the children for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If, as in this case, the children are likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides 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.)

Although section 366.26, subdivision (c)(1) acknowledges that termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) It is the parents burden to show that termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)

Thus, when a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is not one of substantial evidence, as appellant appears to argue. Instead, the issue is whether the juvenile court abused its discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) On review of the record, we find no abuse of discretion.

In this case, it is undisputed that appellant maintained regular visitation with his children throughout their dependency. However, the law required more and the evidence in this case did not compel the juvenile court to find that termination would be detrimental to the children.

The exception in section 366.26, subdivision (c)(1)(A), requires that the parent-child relationship promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) A juvenile court must therefore: balance[] 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. (Id. at p. 575.) (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.)

Here, there was no evidence of a substantial, positive emotional attachment, much less that any of the children would be greatly harmed. No doubt the children enjoyed their visits with appellant. However, as the record clearly established, appellant did not interact with his children as a parent but rather as a playmate. Also, none of the children displayed any emotional distress when visits ended and all three children expressed excitement about joining their prospective adoptive families.

Furthermore, there was considerable evidence in the record from which the court could reasonably infer that the children would do better absent continued contact with appellant. For instance, the behavior of each child demonstrably improved once their visits with appellant decreased to once-a-month. As the social worker described Roberts current behavior, it was no more problematic than one would expect of a seven-year-old.

Robert as the eldest was saddened to learn he would no longer have contact with either of his parents. As the social worker testified, however, this was a natural reaction given that he had originally anticipated rejoining his family through reunification. However, we also know from the record that he was excited at the prospect of and appeared ready to join a permanent family. Remarkably though, his only concern about being part of a permanent family was telling appellant and appellants reaction. This too makes sense given that appellants interaction with the children, particularly his interaction with Robert, had become somewhat depressed once reunification efforts stopped.

Under these circumstances, we conclude the juvenile court properly rejected appellants detriment argument and terminated parental rights.

DISPOSITION

The order terminating parental rights is affirmed.

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

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

^[2] Appellant filed a writ petition challenging the juvenile courts decision to terminate services and set the section 366.26 hearing. We denied him writ relief in Robert H. v. Superior Court, F050341.