In re L.G.

Filed 6/13/08 In re L.G. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Butte)

Eliseo G. (appellant), the father of L.G. (the minor), appeals from the juvenile courts order terminating his parental rights. (Welf. & Inst. Code, 366.26, 395; further undesignated statutory references are to the Welfare and Institutions Code.) Appellant makes three contentions of alleged prejudicial error, including a claim that Butte County Department of Employment and Social Services (DESS) and the juvenile court violated the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. 1901 et seq.). Agreeing with the ICWA claim only, we conditionally vacate the order terminating parental rights and remand for proper notice to the tribes.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2006, DESS filed an original juvenile dependency petition pursuant to section 300 on behalf of the seven-week-old minor. That petition, as amended, alleged the minor was at a substantial risk of suffering serious physical harm or illness, as she was a medically fragile child, born at 28 weeks, and neither appellant nor the mother of the minor had developed a medical plan for the minors care.^[1] According to the petition, at birth the minor weighed less than three pounds and required heart surgery. The juvenile court sustained the petition as amended and adjudged the minor a dependent child.

The detention report indicated it was unknown if ICWA applied to the proceedings. Thereafter, appellant notified the juvenile court that he had no Indian ancestry. However, the minors mother told the court that she might have Indian ancestry. Thereafter, DESS sent notices of the proceedings to numerous Chippewa Indian tribes and to the Bureau of Indian Affairs (BIA). Those notices omitted any information about maternal or paternal grandparents. All of the tribes who responded indicated that the minor was not eligible for tribal membership. The juvenile court ruled ICWA did not apply to the dependency proceedings.

The minor remained hospitalized for nearly three months. During that time, appellant visited the minor only once, and did not contact the hospital by telephone. Thereafter, appellant maintained a consistent visitation schedule.

The detention report noted DESS had not received sufficient information regarding relatives for possible placement consideration. Thereafter, DESS received applications for placement of the minor from a paternal uncle, who did not qualify due to the number of people already living in his home, and from a paternal aunt, who lived in Los Angeles. DESS determined placement with the Los Angeles relative was not appropriate at the time because the minor was in a plan of reunification in Butte County.

After the juvenile court terminated appellants reunification services and DESS recommended adoption as the appropriate permanent plan for the minor, DESS reconsidered the Los Angeles aunt for placement of the minor. In its May 2007 report, DESS stated the following regarding that proposed placement: Known concerns are in regards to the special needs of the child and local resources in the Los Angeles area, appropriate housing, the relatives lack of contact with the child, the primary care givers medical issues [sic] (epilepsy) and the fact that they have a one-year-old child of their own. It should also be noted that the relatives appear to be looking more into placement than permanency of the child with the hopes of allowing the childs parents time to get on their feet.

The state Department of Social Services (DSS) concluded that termination of parental rights would not be detrimental to the minor, and found adoption would best serve the minors emotional needs. According to DSS, the minor was progressing well in her foster home. DSS also noted that neither relative who had expressed an interest in the minors placement with them had visited the minor since birth. Moreover, DSS had learned the paternal aunt indicated that she wanted the option of placing the minor with appellant in the future. Finally, DSS opined that the paternal aunts family did not appear to have a[n] understanding of [the minors] special needs.

On July 17, 2007, DESS placed the minor into the home of a nonrelative prospective adoptive family, where she was doing well. It had ruled out the applicant relatives based on inability to meet [the minors] needs. A Los Angeles County home study rejected the application of the paternal aunt for her failure to obtain a physicians clearance pertaining to her medical condition. Thereafter, DSS notified the paternal aunt of its decision not to place the minor in her home.

In September 2007, DSS provided a summary of the efforts made by DESS to consider the paternal aunts home for placement of the minor. DSS stated in part: The family indicated in the interview that they [sic] were interested in [the minor;] however significant barriers existed limiting their capacity to care for her. The family appeared to be intimidated by the birth father and they were also fearful of the birth mother. The paternal aunt had a significant health issue, which she stated required her to lie down for periods of time. The family has three children and one of the children is a two-year-old. The paternal aunt and uncle had never visited with [the minor]. They stated that they were waiting for [DESS] to facilitate travel. They appeared to have limited understanding of how to advocate for [the minors] needs, and they had concern over paternity. There was also concern over whether the home could accommodate [the minor], as the parents were reportedly sleeping on the couch.

At the section 366.26 hearing, social worker Bronwen Elliott-Labin testified she did not believe the minor would benefit from a continued relationship with appellant, due to the sporadic contact between appellant and the minor. She also told the juvenile court the agency in Los Angeles denied placement of the minor with the paternal aunt for several reasons, the same reasons found in the reports on the matter. The social worker had discussed the placement issue with that agency, and learned the paternal aunt had failed to meet required time frames. As for the paternal uncle, who lived in Butte County, the social worker told the court that he had withdrawn his application.

Appellant testified he opposed termination of his parental rights. Although appellant acknowledged the minor never had lived with him, he told the juvenile court that he wanted to devote time to the minor. According to appellant, he had visited with the minor every time he was given the chance.

Counsel for appellant argued against termination of parental rights, asking the juvenile court to apply a statutory exception to adoption based on appellants contact with the minor and the benefit to the minor of continuing their relationship. The juvenile court refused to apply the exception, ruling it would not be detrimental to the minor to proceed with adoption. In making its rulings, the court referred to the assessment done by DSS. Finding it likely the minor would be adopted, the court then terminated appellants parental rights.

DISCUSSION

I

Citing section 361.3, appellant contends the juvenile court and DESS violated the relative placement preference.^[2]

As subdivision (a) of section 361.3 makes clear, the agency and juvenile court are charged only with according preferential consideration to the request of a relative for placement; there is no obligation simply to grant such a request on a specified showing.^[3] (In re Luke L. (1996) 44 Cal.App.4th 670, 679-680.) Ordinarily, placement decisions are subject to the abuse-of-discretion standard. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108-1109.) The linchpin of the analysis is whether placement with a relative is in the best interests of the minor. (In re Stephanie M. (1994) 7 Cal.4th 295, 321.) By statute, the social worker must document in social study reports efforts made to place a minor with a relative. ( 361.3, subd. (a)(8).)

The issue for the juvenile court in this case was whether, considering the suitability of the homes of the relatives and the best interests of the minor, a placement with either of the interested relatives was appropriate. ( 361.3, sub. (a); In re Stephanie M., supra, 7 Cal.4th at p. 321.) Appellant claims DESS made insufficient effort to adequately assess potential relative caretakers or to assist them in preparing for approval before placing [the minor] in a non-relative prospective adoptive home.

The record does not support that claim. Instead, it reflects diligent efforts made by DESS to work with relatives who had expressed an interest in placement of the minor in their home. The September 2007 report by DSS summarized those efforts in detail. Moreover, as the social worker testified, she had followed up on the home study conducted by Los Angeles County authorities, which ultimately recommended against placement.

From our review of the record, we are persuaded the juvenile courts decision denying placement of the minor with either one of the interested relatives was well within its discretion. Balancing the benefits of maintaining extended family relationships against the interests of the minor in permanence and stability is a critical element in the placement decision. ( 361.3, subd. (a)(1)-(7).) Here, it did not appear from the record that the minor had enjoyed a close relationship with any relative. In fact, neither relative considered for placement by DESS ever had met the minor.

Appellant names a paternal uncle who lived in Butte County and a paternal aunt who lived in Los Angeles County as potential placements. As to the paternal uncle, the DSS report noted various difficulties with his circumstances and indicated that eventually the paternal uncle withdrew his application for placement of the minor. As to the paternal aunt in Los Angeles County, there were significant concerns about adequate space for the minor, the aunts serious health issue, and her understanding of the minors medical needs.^[4] Moreover, Los Angeles County authorities had denied the aunts application. With this evidence in the record, it is not surprising that neither DESS nor the juvenile court believed the home of the paternal uncle or that of the paternal aunt was suitable for the minor.

We agree with the juvenile courts implied determination. It is true that Cesar v. Superior Court, supra, 91 Cal.App.4th 1023, emphasized the importance of according relatives a fair chance to obtain custody of minors. (Id. at p. 1033.) And, as we have seen, section 361.3 requires the department to assess and consider interested relatives. (In re Stephanie M., supra, 7 Cal.4th at p. 320.) At the same time, however, the fundamental duty of the juvenile court is to assure the best interests of the child, whose bond with a foster parent may require that placement with a relative be rejected. (Id. at p. 321.)

We conclude the record reflects the juvenile court accorded appellant a fair chance for relative placement consideration. It is true that, as appellant argues, the juvenile court failed to state explicitly the reasons for its implicit adoption of the decision by DESS to deny placement of the minor with relatives. Subdivision (e) of section 361.3 requires the court to state the reasons for the placement denial. However, it is clear from the record that the court agreed with the decision by DESS to deny relative placement. The court had before it the report by DSS, which contained a summary of the relative evaluations done by DESS and Los Angeles County authorities. In making its rulings at the conclusion of the section 366.26 hearing, the court stated its reliance in part on that DSS report.

Ample evidence was adduced pertaining to the issue of relative placement of the minor. The record reflects the juvenile court did consider such placement. In fact, at one point the court directed DESS to reconsider the paternal uncle for placement. The courts implicit determination that it was not in the minors best interests to make a placement with the relatives considered was supported by the record. There was no error.^[5]

II

Appellant contends the juvenile court committed reversible error in finding the minor would not benefit from continuing her relationship with appellant. Noting evidence of the parental role he occupied in the life of the minor, the regular contact he had with the minor, and the benefit to the minor in continuing their relationship, appellant argues that terminating his parental rights would cause great harm to the minor.

At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child . . . .

The permanent plan preferred by the Legislature is adoption. [Citation.] [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)

One of the circumstances under which termination of parental rights would be detrimental to the minor is: The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (Former 366.26, subd. (c)(1)(A).)^[6] The benefit to the child must promote the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the 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 parents rights are not terminated. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

The parent has the burden of establishing the existence of any circumstances that constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373.) The juvenile curt is not required to find that termination of parental rights will not be detrimental due to specified circumstances. (Id. at p. 1373.) Even frequent and loving contact is not sufficient to establish the benefit exception absent significant, positive emotional attachment between parent and child. (In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.)

In this case, although the record discloses that appellant had had some regular contact with the minor, there also is evidence that their contact was sporadic, especially early on during the dependency proceedings. Moreover, the minor had never lived with appellant. On the other hand, the minor was doing well in the home of a prospective adoptive family, with whom she was bonding, having been cared for previously by that family.

Section 366.26 requires both a showing of regular contact and a separate showing that the child actually would benefit from continuing the relationship. In re Autumn H., supra, 27 Cal.App.4th 567, interprets the statutory exception to involve a balancing test, and both In re Autumn H. and In re Beatrice M., supra, 29 Cal.App.4th 1411, posit a high level of parental-type involvement and attachment. Even assuming those decisions overemphasized the importance of the parental role, the record here does not support appellants suggestion that the minor would benefit from continuing her relationship with appellant simply because of the attachment existing between them and due to their visits. (Cf. In re Amanda D. (1997) 55 Cal.App.4th 813, 821-822.)

Appellant suggests the record establishes the existence of a beneficial relationship between the minor and himself, precluding a finding of adoptability. The juvenile court was authorized to conclude the contrary was true. Evidence of a significant parent-child attachment by itself does not suffice. Instead, the record must show such benefit to the minor that termination of parental rights would be detrimental to the minor. (Former 366.26, subd. (c)(1)(A).) Here, as the court determined, the record was bereft of such a showing. Instead, there was evidence suggesting it was critical for the minor to obtain the benefits of a stable placement.

In In re Brandon C. (1999) 71 Cal.App.4th 1530, cited by appellant, the juvenile court found it was in the best interests of the minors to establish a guardianship, rather than terminate parental rights, so the minors could maintain their relationship with their mother. (Id. at p. 1533.) Affirming, the Court of Appeal held that substantial evidence supported the juvenile courts conclusion that terminating parental rights would be detrimental to the minors, because their mother had maintained regular, beneficial visitation with them. (Id. at pp. 1533, 1534, 1537, 1538.)

In re Brandon C., supra, 71 Cal.App.4th 1530, is distinguishable from the proceedings here. The In re Brandon C. court found ample evidence of benefit to the minors of continued contact with their mother. (Id. at pp. 1537, 1538.) Here, by contrast, the record supports the juvenile courts conclusion that there would not be sufficient benefit to the minor if her relationship with appellant were continued. Moreover, as the record also suggests, the minor had a great need for stability and security, a need which only adoption could satisfy.

Appellant suggests that because he had maintained a significant parent-child relationship with the minor, which included regular contact while in placement, the circumstances of his case compare favorably with those found in other cases. We disagree. In In re Casey D. (1999) 70 Cal.App.4th 38, 51, the Court of Appeal did not find an exceptional case where a beneficial relationship existed that would preclude adoption. Accordingly, the court in In re Casey D. affirmed the order that terminated parental rights. (Id. at pp. 53, 54.) However, the court in In re Casey D. did recognize the possibility that a beneficial relationship might exist despite the absence of daily contact between parent and child. (Id. at p. 51.) The difficulty for appellant here, as the juvenile court found, is that he failed to establish the requisite beneficial relationship with the minor, in the absence of which the exception does not apply.

Here, the issue was as follows: In light of the minors adoptability, would a continued relationship with appellant benefit the minor to such a degree that it would outweigh the benefits the minor would gain in a permanent adoptive home? Substantial evidence in the record supports the juvenile courts answer in the negative. On the record before it, the juvenile court could conclude, as it did, that only adoption, which is the preferred disposition (In re Ronell A., supra, 44 Cal.App.4th at p. 1368), would promote the best interests of the minor. As the record reflects, the juvenile court had before it ample evidence on the matter, including appellants testimony.

After it became apparent that appellant would not reunify with the minor, the juvenile court had to find an exceptional situation existed to forego adoption. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) In this case, on the contrary, the court determined the minor would not benefit from continuing her relationship with appellant to such a degree that termination of parental rights would be detrimental to the minor. Appellant had the burden to demonstrate the statutory exception applied. We conclude that appellant failed to make such a showing. Therefore, the court did not err in terminating parental rights. (In re Amanda D., supra, 55 Cal.App.4th at pp. 821-822.)

III

Appellant contends the juvenile court and DESS failed to comply with the notice requirements of ICWA.

The notice provisions of ICWA state, in part: In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right to intervention. (25 U.S.C. 1912(a).)

The Indian status of a child need not be certain to trigger ICWAs notice requirements. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471.) [O]ne of the primary purposes of giving notice to the tribe is to enable the tribe to determine whether the child involved in the proceedings is an Indian child. (Id. at p. 470.) The [Department] must provide all known information to the tribe, particularly that of the person with the alleged Indian heritage. (In re Louis S. (2004) 117 Cal.App.4th 622, 631.) Notice must include, if known, the names of the childs grandparents and great-grandparents, including maiden, married and former names or aliases, as well as their birth dates, places of birth and death, tribal enrollment numbers, current and former addresses, and other identifying information. (25 C.F.R. 23.11(a) & (d)(3); 25 U.S.C. 1952.)

Having received information suggesting there was Chippewa Indian heritage in the family, DESS was obliged to notify each of those tribal units of the dependency proceedings with the most current and complete information available to it, in order that the tribes could make a proper determination about Indian heritage. Thereafter, the juvenile court was obliged to confirm that adequate information had been obtained from family members before DESS sent notice of the proceedings to the tribes. Here, although the mother was available for inquiry by DESS, it is unclear whether DESS sought information from her, as the notice contains no information about maternal grandparents, nor did DESS insert unknown in the blanks on the form.

In this case, until DESS had obtained all relevant information and sent it to the tribes, the juvenile courts ruling that ICWA did not apply was at best premature. The failure to comply with the notice provisions and determine whether ICWA applies is prejudicial error. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424; see also In re Desiree F.,supra, 83 Cal.App.4th at p. 472.)

On remand, DESS must send new notices of the dependency proceedings to each of the tribes previously notified, with all available information included, or with unknown indicated on the notices where appropriate. Moreover, DESS must send copies of the notices to appellant, and also must send those notices to the proper tribal agents and addresses pursuant to statute and regulation, as well as to the BIA.

DISPOSITION

The order terminating parental rights is reversed conditionally, and the matter is remanded to the juvenile court with directions to order DESS to provide the tribes with proper notice of the section 366.26 hearing under ICWA. If, after proper and complete notice, any tribe determines that the minor is an Indian child as defined by ICWA, then the juvenile court is ordered to conduct a new Welfare and Institutions Code section 366.26 hearing in conformity with all provisions of ICWA. If, on the other hand, no response is received or the tribes determine the minor is not an Indian child, then the juvenile court shall reinstate all previous findings and orders.

BLEASE , Acting P. J.

We concur:

HULL, J.

BUTZ , J.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

^[1] The mother of the minor is not a party to this appeal.

^[2] In addressing appellants claim, we presume for purposes of resolving the matter that he has standing to raise a placement issue on appeal from an order terminating his parental rights. (See Fam. Code, 8714; Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1035.)

^[3] Subdivision (a) of section 361.3 provides in part: In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative. In determining whether placement with a relative is appropriate, the county social worker and court shall consider, but shall not be limited to, consideration of all the following factors: [] (1) The best interest of the child, including special physical, psychological, educational, medical, or emotional needs. [] (2) The wishes of the parent, the relative, and child, if appropriate. [] (3) The provisions of Part 6 (commencing with Section 7950) of Division 12 of the Family Code regarding relative placement. [] (4) Placement of siblings and half siblings in the same home, if that placement is found to be in the best interest of each of the children as provided in Section 16002. [] (5) The good moral character of the relative and any other adult living in the home, including whether any individual residing in the home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect. [] (6) The nature and duration of the relationship between the child and the relative, and the relatives desire to care for, and to provide legal permanency for, the child if reunification is unsuccessful. [] (7) The ability of the relative to do the following: [] (A) Provide a safe, secure, and stable environment for the child. [] (B) Exercise proper and effective care and control of the child. [] (C) Provide a home and the necessities of life for the child. [] (D) Protect the child from his or her parents. [] (E) Facilitate court-ordered reunification efforts with the parents. [] (F) Facilitate visitation with the childs other relatives. [] (G) Facilitate implementation of all elements of the case plan. [] (H) Provide legal permanence for the child if reunification fails. [] . . . [] (8) . . . The court shall order the parent to disclose to the county social worker the names, residences, and any other known identifying information of any maternal or paternal relatives of the child. This inquiry shall not be construed, however, to guarantee that the child will be placed with any person so identified. The county social worker shall initially contact the relatives given preferential consideration for placement to determine if they desire the child to be placed with them. Those desiring placement shall be assessed according to the factors enumerated in this subdivision. The county social worker shall document these efforts in the social study prepared pursuant to Section 358.1.

^[4] Due to her medical needs, the minor requires adequate space of her own to operate . . . medical machinery. The minor was attached to a cardiac apnea monitor due to her breathing difficulties. The minor also appeared to have cognitive and motor skill delays, for which she was receiving twice-weekly therapy, and would be receiving speech therapy in the near future.

^[5] Appellant cites the relative caretaker statutes, but fails to explain how those statutes assist him. As the minor was not living with a relative, those provisions are inapplicable. (See 366.26, subds. (b)(2) and former (c)(1)(A).)

^[6] Effective January 1, 2008, that provision has been renumbered as subdivision (c)(1)(B)(i).