In re L.S., Jr., et al., Persons Coming Under the Juvenile Court Law. EL DORADO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. J.S. et al., Defendants and Appellants.
No. C075626
Third Dist.
Oct. 24, 2014
230 Cal. App. 4th 1183
Linda J. Conrad, under appointment by the Court of Appeal, for Defendant and Appellant J.S.
Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant L.S.
Edward L. Knapp, County Counsel, and Lauren C. Bowers, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
NICHOLSON, Acting P. J.---- J.S. (mother) and L.S. (father), parents of the minors, appeal from orders of the juvenile court denying their petitions for modification and terminating parental rights. (
FACTS
Following the parents’ request in Jаnuary 2013 for a court-ordered case plan, the Agency filed petitions alleging the minors, L.S., Jr., age six, and T.S., age eight, were at risk because the parents were homeless, the minors were suffering emotional difficulties and the parents had not engaged in the voluntary service referrals.2 Various stresses in the family caused a breakdown of the family unit and increased emotional difficulties with the minors, leading to the parents’ request for help. The court did not detain the minors.
The jurisdiction report stated that, after the initial hearing, mother told the minors they might be placed in foster care and T.S. became hysterical. The social worker was able to calm T.S. and told mother such a conversation was inappropriate. Mother saw nothing wrong with it, believing the minors deserved to know what was going on. The social worker instructed mother not to discuss the case with the minors. Appropriate referrals were made and the parents were looking for housing. The court sustained the petitions.
Two weeks after the jurisdiction hearing, the Agency filed supplemental petitions (
The April 2013 disposition report stated both parents were in inpatient drug treatment programs and were compliant with program requirements. At visits, the parents were attentive and nurturing, open to redirection, able to set limits and able to interact with the minors individually. However, there were visits which became highly emotional and they would complain and argue in front of the minors. The parents also had an ongoing problem with talking about the case or other adult matters at visits. As a result of parental emotional responses and discussion of inappropriate matters, the quality of visits was inconsistent. The minors always had difficulty after visits, being more emotional and less cooperative. The social worker recommended bypassing services for mother because services and parental rights were terminated аs to a sibling (
The court denied services to the parents at the contested disposition hearing in May 2013 and set a
Two days before the scheduled
At the hearing in October 2013, there was a discussion of the proper burden of proof for the petitions for modification of the prior bypass order. The Agency argued the parents had to show by clear and convincing evidence that providing services was in the minors’ best interests while fаther‘s counsel argued that the proper burden for petitions for modification was
Mother testified about her current sobriety, her lengthy history of substance abuse and her current progress in the various programs she had engaged in. Mother described visits as “wonderful” and said that they gave her an opportunity to use her parenting skills when the minors had emotional problems. She described the interaction at visits with the minors which included meals, helping with homework and playtime. She stated the minors asked about coming home but she redirected them because they were not supposed to discuss the case. Mother testified she had learned to budget and pay bills, deal with frustration and stay clean. Mother wanted to be reunified with the minors and felt they could be placed with her immediately. She believed reunification was in the minors’ best interests because this time she was truly clean.
Father also testified about his current sobriety, the programs he had attended and the progress he had made in stabilizing his life. Father testified visits went well, the minors wanted to come home and it would mean the world to him to reunify with them. He asked the court for placement and services to ease the transition for the minors.
The adoptions supervisor testified the minors were in an adoptive placement. She described the minors’ interaction with the foster parents as loving and had observed the minors seeking affection and guidance from the foster parents. She did not think the minors had special needs, noting their only diagnoses at the present time were for attention deficit hyperactivity disorder (ADHD). She stated that the minors would be adopted if parental rights were terminated.
An addendum report in January 2014 stated that, while T.S. had frequent explosive tantrums in the first two months of her current placement, the tantrums were decreasing and she was more able to calm herself and
The addendum reported the parents visited twice a month. The parents were appropriate at the beginning and end of visits but during the visits sometimes lost focus on the minors’ needs. In visits, the minors demonstrated “parentified” behavior and at times the parents allowed them to ignore rules without consequences. Both minors consistently said they wanted to go hоme, but both also felt connected to the current placement. T.S. said if she went home and was removed again she would “freak out.” More than once, L.S., Jr., said he could live in the current placement forever. Although the parents had multiple services over many years, the social worker‘s assessment suggested they were unable to maintain the changes necessary to parent the minors. Meanwhile, the minors needed structure in their lives now. The addendum concluded the minors were adoptable, noting that the minors’ therapist expressed concern about termination of parental rights, but the social worker felt the ongoing instability was more devastating to the minors.
Numerous documents were attaсhed to the addendum including delivered service logs. The delivered service log for November 5, 2013, reported T.S. believed father lost a job because she forgot to change a clock to daylight savings time. T.S. expressed ambivalence about going home.
At the renewed hearing in January 2014, mother testified she had attended all visits since the last hearing and described a Christmas dinner visit. Mother said T.S. was very excited to see them at visits, talking about her school, bringing books for them to read and recently opening up about her foster home and her affection for her current caretakers. T.S. seemed to be seeking mother‘s approval for liking her caretakers. Mother testified L.S., Jr., was clingy and spent visits with his arms wraрped around her or father‘s neck but did talk about school and other things which interested him. Mother said they all interacted together. Mother was concerned the reports only said negative things about visits and explained her view of how various visits had gone in a more positive manner. Mother was not asking for the immediate return of the minors, instead proposing an increase in visitation to show they could parent the minors outside visitation. Mother further suggested random testing to demonstrate her sobriety. She believed termination of parental rights would
Father testified he believed that the immediate return of the minors would have a major impact on the minors’ stability and a transition period was appropriate. He, too, was asking for additional services such as testing.
The court denied the petitions for modification, finding the proper burden of proof was clear and convincing evidence that services were in the minors’ best interests. The court stated that it had found by clear and convincing evidence at disposition both that the bypass provisions applied and that services were not in the best interest of the minors and was again finding that providing services was not in the best interest of the minors. The court noted the parents had changed their focus of what they sought in the petitions and pointed out there was only a month left of the statutory time, which would not be enough to offer services to deal with the parents’ continuing problems.
After finding the minors specifically adoptable, the court addressed the beneficial parental relationship exception and found it did not apply to father because there was no evidence he had a strong bond with either child. The court found a significant bond between mother and T.S. and a strong bond between the two minors such that if the benefit exception were found it would have to apply to both minors. However, the bond did not outweigh the minors’ need for permanency and stability. The court believed the minors would suffer detriment if parental rights were not terminated and it was not fair to the minors to ask them to continue to deal with the parents’ recovery. The court terminated parental rights and selected adoption as the permanent plan.
Additional facts appear where relevant in the following discussion.
DISCUSSION
I
The parents argue the juvenile court applied the wrong burden of proof when denying their petitions for modification and abused its discretion in denying the petitions for modification because they had shown both changed circumstances and that the proposed order was in the minors’ best interests.3
“Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the еvidence.” (
When a child is removed from parental custody, the juvenile court may order reunification services to assist the parents in reuniting with the child. (
However,
In this case, the parents’ petitions for modification sought to modify the order bypassing services which was based on
We cannot conclude that the abuse of the court‘s discretion was harmless. This is not a case where there was no evidence of change or of the best interests of the minors and the court did not simply misspeak when stating the burden of proof. The court heard extended argument on the issue and affirmatively concluded that a burden of proof not authorized by the relevant statute should apply. There were several reports and extensive testimony whiсh resulted in conflicting evidence on both the degree that circumstances had changed as well as what was in the minors’ best interests. It is for the juvenile court, not this court, to assess credibility and weigh the evidence using the proper burden of proof when exercising its discretion to grant or deny the petitions. (In re Stephanie M., supra, 7 Cal.4th at pp. 318–319; In re Jason L. (1990) 222 Cal.App.4th 1206, 1214 [272 Cal.Rptr. 316].)
We respectfully disagree with the reasoning in A.M.
burdens of proof and the conditions to be proved found in
In this case, the court relied on a flawed, if seductive, analysis in applying a higher burden of proof than the statute requires. Remand is necessary to permit the court to determine the issues applying the correct burden of proof.
B. Denial of the Section 388 Petitions
Because we reverse on the question of the burden of proof to be applied to the determination of the petitions to modify, we need not address the further question of whether substantial evidence supported the denial of the petitions.
II
The parents contend the court and the Agency failed to comply with the ICWA because no notice was sent to the Blackfeet tribe and there was no ruling on whether the ICWA applied.
In the 2009 case, mother claimed no Indian heritage and father said he “may have” Sioux ancestry but never gave further information. At the jurisdiction hearing on the
According to the disposition report, when the parents met with the social worker, both parents denied Sioux heritage, stating that prior reports of that heritage were mistakes, and claimed Cherokee heritage. The social worker indicated that notices were sent to the tribes with information provided by the parents.
The Agency did send notices to the Cherokee tribes which included information on father‘s ancestry, but did not send notice to any other tribe оr provide any ancestral information for mother. None of the noticed tribes responded that the minors were members or eligible for membership in the tribe. The court never ruled on the question of whether the ICWA applied.
The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (
The parties focus on the Blackfoot/Blackfeet confusion and claim error in the lack of notice to the Blackfeet tribe. However, the state of the record is far murkier than the parties’ arguments would suggest. In the prior dependency, mother claimed no Indian heritage. In this proceeding she initially claimed Blackfoot heritage, however, the reported facts after meeting with the social worker appear to suggest that mother retracted her claim of Blaсkfoot heritage and either claimed Cherokee heritage, in which case, the ICWA notice should have had some information about her ancestry, or claimed no Indian heritage, in which case the lack of information about her heritage in the ICWA notice was harmless. The juvenile court never clarified the facts regarding claims of Indian heritage or the adequacy of notice and never ruled on whether the ICWA applied. Because the facts of mother‘s claim and the
Neither the Agency nor the court performed the duties required under the ICWA. (
In order for the court to make a determination whether the notice requirements of the ICWA have been satisfied, it must have sufficient facts, as established by the Agency, about the claims of the parents, the extent of the inquiry, the results of the inquiry, the notice provided any tribes and the responses of the tribes to the notices given. Without these facts, the juvenile court is unable to find, explicitly or implicitly, whether the ICWA applies. (In re Levi U., supra, 78 Cal.App.4th at p. 199; In re E.W. (2009) 170 Cal.App.4th 396, 404–405 [88 Cal.Rptr.3d 338].) While the Agency may have performed its duty of inquiry, it failed in its duty to document it аnd to provide clear information to the court so the court could rule on the question of whether the ICWA applied.
However, the juvenile court also failed in its duty. Given the conflicting and inadequate information on mother‘s claim of Indian heritage, the court had a duty either to require the Agency to provide a report with complete and accurate information regarding the results of its inquiry and notice or to have the individual responsible for notice to testify in court regarding the inquiry made, the results of the inquiry, and the results of the notices sent. Only then could the court determine whether the ICWA applied.
On remand, the Agency will have the opportunity to clarify mother‘s claim, gather her information, if necessary, provide notice to any identified tribes as required and present the relevant facts to the juvenile court. We observe that there is frequently confusion between the Blackfeet tribe, which is federally recognized, and the related Blackfoot tribe, which is found in Canada and thus not entitled to notice of dependency proceedings. When Blackfoot heritage is claimed, part of the Agency‘s duty of inquiry is to clarify whether the parent is actually claiming Blackfoot or Blackfeet heritage so that it can discharge its additional duty to notice the relevant tribes. Once the facts are clear, the juvenile court will be able to make the appropriate finding regarding the applicability of the ICWA to this case.
The parents contend the court erred in terminating parental rights, arguing they established the beneficial parental relationship exception. We resolve this issue in the event that, on remand, the juvenile court again denies the petitions for modification under the proper burden of proof. In doing so, we note that the analysis of the beneficial parental relationship exception, although similar in some respects, is distinct from the analysis in a petition for modification of whether a proposed change of order is in the best interests of the minors.
At the selection and implementation hearing held pursuant to
Termination of parentаl rights may be detrimental to the minor when “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (
To avoid termination of parental rights, it is not enough to show that a parent-child bond exists. The quality of the bond must also favor continued contact. Here, the ovеrall relationship between the parents and the minors did not show a positive emotional attachment and was marked by parental indifference to the minors’ core needs for structure and stability. As a result, the benefit of continued contact did not outweigh the minors’ needs for permanence and stability. The court did not err in finding the beneficial parental relationship exception did not apply.
The orders denying the petitions for modification and terminating parental rights are reversed. The case is remanded to the juvenile court for the limited purposes of applying the proper burden of proof to the parents’ petitions for modification and determining whether the Agency complied with the notice provisions of the ICWA and whether the ICWA applies in this case. If the juvenile court grants the petitions for modification and/or finds after inquiry and any necessary notice that the ICWA applies, the court shall hold such further proceedings as are appropriate. If the juvenile court denies the petitions for modification and finds that the ICWA does not apply, the orders terminating parental rights shall be reinstated.
Butz, J., and Duarte, J., concurred.