FACTUAL AND PROCEDURAL BACKGROUND
On December 1, 2015, the San Diego County Health and Human Services Agency (Agency) filed a petition under
At the December 22, 2015 jurisdiction and disposition hearing, the Agency recommended the juvenile court make a true finding on the petition, remove C.A. from C.T.'s care, and that C.T. participate in reunification services. C.T. contested the Agency's recommendations and the court set the matter for trial. At the contested jurisdiction and disposition hearing, the juvenile court adopted the Agency's recommendations, continuing C.A.'s placement in foster care. D.A. did not request to elevate his paternity status and, despite active efforts, the Agency had not yet located D.R. The juvenile court found ICWA did not apply without prejudice to D.R.
The May 11, 2016 special hearing was continued because the Agency had not yet received D.R.'s paternity test results. After the test results confirmed D.R. was C.A.'s biological father, the court elevated D.R. to biological status at the continued special hearing. Due to D.R.'s extensive criminal and substance abuse history, severe mental health concerns, and lack of relationship with C.A., the Agency did not believe it was in C.A.'s best interest to offer D.R. services.
D.R. informed the court that although he thought he might have had Native American heritage through his biological father, he had since discovered that
At the July 13, 2016 trial, D.R. withdrew his request for services. For the six-month review hearing, which occurred at the same time, the Agency reported C.T. was participating in substance abuse treatment and was progressing with her recovery. Based on her progress with services, the Agency had also permitted C.T. to have unsupervised visits with C.A. D.A. was also participating in voluntary services, but had recently relapsed and had tested positive for methamphetamines. The Agency remained concerned about C.T.'s ability to protect C.A. if D.A. was not able to maintain his sobriety. As a result, the Agency recommended C.A. continue with her foster placement and that both C.T. and D.A. continue to receive reunification services. The court continued services for C.T. and D.A., and also elevated D.A. to presumed father status.
Before the 12-month review hearing, in August 2016, the Agency reported it was concerned with D.A.'s behavior, C.T.'s ability to set boundaries with D.A., and C.T.'s failure to regularly participate in recovery meetings. By October 2016, however, C.T. had started divorce proceedings, was attending all services, testing clean, and was voluntarily participating in therapy. Based on her progress, in November 2016, the Agency approved C.T. for overnight visitation. The Agency continued to have some reservations about C.T.'s relationship with D.A. and her ability to set boundaries with him. The social worker reported, however, that C.T. and C.A. had developed a healthy bond, noting that C.A. reached for C.T. and smiled at her during visits, and C.A. would become upset if C.T. left the room.
In December, C.T. began a 60-day trial visit and at the January 3, 2017 12-month review hearing, the Agency recommended placement with C.T. The Agency recommended termination of D.A.'s voluntary
Then, in February 2017, the Agency learned C.T. had relapsed and had used methamphetamine while caring for C.A. Despite efforts by the Agency to safety plan with C.T., between February and April 2017, she missed multiple drug tests, tested positive for methamphetamine and alcohol, and failed to engage in drug treatment. As a result, the Agency filed a section 387 petition to again remove C.A. from C.T.'s custody.
At the April 18, 2017 detention hearing on the new petition, the juvenile court again removed C.A. from C.T.'s care and ordered supervised visits for C.T. The juvenile court set the matter for a jurisdiction and disposition hearing on May 9, 2017. By the time of that hearing, C.T. had entered inpatient treatment at the Family Recovery Center (FRC) and was working with a therapist to address concerns of her continuing codependence on D.A. Despite this progress, the Agency's social worker expressed concern in its report that C.T. had demonstrated poor judgement by contacting D.R. even though she had a restraining order in place because of past domestic violence.
C.T. visited C.A. twice a week at the FRC. The Agency reported that while C.A. often cried and would cling to the caregiver initially, she would eventually warm up to C.T. The Agency initiated an Interstate Compact on the Placement of Children (ICPC) evaluation for Michelle, who lived in New York and continued to express a willingness and commitment to adopt C.A. if C.T.'s reunification efforts failed. At the May 9, 2017 hearing, the Agency recommended termination of C.T.'s reunification services and that the court set a section 366.26 permanency planning hearing. C.T. set the matter for trial and requested C.A. be returned to her care.
In its report for the contested hearing, the Agency and C.T.'s therapist continued to express concerns about C.T.'s relationship with D.A., particularly her propensity to use drugs with D.A., and C.T.'s ability to protect C.A. from D.A. At the hearing, after the presentation of evidence including C.T.'s testimony, the juvenile court sustained the section 387 petition, terminated C.T.'s reunification services, and set a section 366.26 hearing for October 11, 2017.
Before the section 366.26 hearing, Michelle's ICPC was approved by the Agency and the court conducted a special hearing on July 19, 2017, to consider placement of C.A. with Michelle and her husband. Michelle and her family had begun regular video chats with C.A., and Michelle planned a visit to San Diego to facilitate placement of C.A. in her care. C.T. objected to
For the section 366.26 permanency planning hearing, the Agency reported that prior to C.A.'s placement with Michelle, C.T. was having generally appropriate visits with C.A. three times each week. The social worker reported that C.A. looked to her caregiver to have her needs met during
By the time of the section 366.26 hearing in October 2017, C.A. was having regular phone contact with C.T. The calls were difficult and C.T. was frequently emotional and crying, which caused C.A., who was almost two at that time, to become upset and confused. C.A. was thriving in her placement and began calling Michelle "[m]ommy" and her husband "[d]adda." The Agency recommended termination of parental rights, and both C.T. and D.A. set the matter for trial, asserting the parent-child relationship exception to adoption applied.
C.T. continued with phone calls and video chats with C.A., but continued to exhibit inappropriate behavior. She would tell C.A. that she belonged to her and never should have been taken away, resulting in Michelle cutting the calls short. On one occasion, C.T. began yelling at Michelle about C.A. calling her mommy while C.A. was still on speaker phone.
At the contested hearing on December 1, 2017, C.T. did not appear before the court and her counsel requested a continuance. The court denied the request, and entered the Agency's reports into evidence. The Agency made its social worker available for cross-examination, but none of the attorneys questioned her. After closing arguments, the court found by clear and convincing evidence that C.A. was specifically and generally adoptable and that no exception to adoption applied. With respect to its finding that the parent-child relationship exception to adoption did not apply, the court noted that C.A. was removed from C.T.'s care at birth, had spent most of her young life in foster care, referred to Michelle as " '[m]ama,' " and looked to Michelle to meet her needs. The court also noted C.T.'s visits were no longer regular
DISCUSSION
C.T. contests the court's ICWA rulings with respect to D.R. and contends the trial court erred by finding the beneficial parent-child relationship exception to adoption did not apply. D.A. joins in C.T.'s latter argument, and contends the court erred by not providing ICWA notice based on his assertion of Native American heritage. C.T. joins this argument.
I
ICWA Notice
A
"In proceedings that potentially involve an Indian child, ICWA requires notice on any affected Indian tribe: '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 child's tribe ... of the pending proceedings and of
When a court knows or has reason to know that an Indian child is involved in a juvenile dependency proceeding, a duty arises under ICWA to provide notice to the Indian child's tribe of the pending proceedings and the tribe's right to intervene. (
B
C.T. contends that the order terminating her parental rights must be reversed because the Agency failed to file the notices it sent to the Wichita Tribe and the BIA after D.R. indicated that he might have Native American heritage. She argues that because the Agency only filed the signed returned receipts from the Wichita Tribe and the BIA, the record was insufficient to support the juvenile court's finding that ICWA did not apply. In response, the Agency argues that the court's finding was not error because D.R. withdrew his claim of Native American heritage. We agree.
In California, the Agency and the court have a duty to ensure that an adequate inquiry regarding Native American ancestry is completed. ( In re A.B. (2008)
C
D.A. and C.T. assert that the juvenile court's order terminating C.T.'s parental rights must be reversed because the court did not provide ICWA notice based on D.A.'s claim of possible Native American
No published decision has considered whether ICWA's notice requirements apply to an individual in D.A.'s situation. In 2009, the Third District Court of Appeal held that under ICWA's provisions, "[u]ntil biological paternity is established, an alleged father's claims of Indian heritage do not trigger any ICWA notice requirement because, absent a biological connection, the child cannot claim Indian heritage through the alleged father." ( In re E.G. (2009)
A subsequent appellate decision, In re B.R. (2009)
We do not agree with D.A. and C.T. that the expansion of the ICWA provision to include an adoptive family relationship in these cases leads to the conclusion that the Agency was required to provide notice here. Indeed, in distinguishing E.G. , the B.R. opinion noted "there was no claim in E.G. that the alleged father had any adoptive or biological relationship to the child. Under those circumstances, we agree that it was impossible for the child to meet the definition of an Indian child under section 1903(4) by virtue of the child's relationship with the alleged father." ( B.R., supra ,
As the Agency points out, the "[t]he extent to which a father may participate in dependency proceedings and his rights in those proceedings are dependent on his paternal status." ( In re Christopher M. (2003)
II
Beneficial Parent-Child Relationship Exception to Adoption
A
After reunification services are terminated, the focus of a dependency proceeding shifts from preserving the family to promoting the best interests of the child, including the child's interest in a stable, permanent placement that allows the caregiver to make a full emotional commitment to the child. ( In re Fernando M. (2006)
"Adoption, where possible, is the permanent plan preferred by the Legislature." ( In re Autumn H. (1994)
Section 366.26, subdivision (c)(1)(B)(i), provides an exception to the adoption preference if termination of parental rights would be detrimental to the child because "[t]he parents have maintained regular visitation and contact with
The parent asserting the exception will not meet his or her burden by showing the existence of a "friendly and loving relationship," an emotional bond with the parent, or pleasant, even frequent, visits. ( In re J.C. (2014)
"We apply the substantial evidence standard of review to the factual issue of the existence of a beneficial parental relationship, and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination would be detrimental to the child." ( In re Anthony B. (2015)
B
C.T. contends the juvenile court erred by finding the beneficial parent-child relationship exception to adoption did not apply. She asserts that she maintained regular visitation with C.A. throughout the dependency and that the benefit of her continued relationship with C.A. outweighed the benefits that adoption affords. The juvenile court indicated that C.T.'s visitation was initially regular and consistent, but that it had waned after C.T.'s relapse. The court then ruled that even if it were to find that C.T.'s contact with C.A. was regular, C.A. did not share a parent-child bond with C.T. such that terminating C.T.'s parental rights would be detrimental to C.A.
As discussed, the beneficial parent-child relationship exception to adoption requires the court to "balance[ ] the
Contrary to C.T.'s assertions, the record supported the juvenile court's conclusion that the exception did not apply because any detriment to C.A. that would result from severing C.T.'s parental rights was outweighed by the benefits of adoption. Although C.T.'s interactions with C.A. were pleasant and positive, the evidence supported the court's finding that she did not occupy a parental role in C.A.'s life. Indeed, by the time of the permanency planning hearing C.A. had been out of C.T.'s care for most of her life and was thriving in Michelle's home. She looked to Michelle to fulfill her needs and there was no indication that she would be negatively impacted by the termination of C.T.'s parental rights. In addition, by the time of hearing even C.T.'s video visitation with C.A. was problematic. C.T. was unable to refrain from talking about the case in an inappropriate manner and the visits needed to be cut short as a result. This behavior further exposed the absence of a parent-child relationship between C.T. and C.A.
These facts sufficiently supported the court's finding that C.T. had not shown the existence of a beneficial relationship and the court's conclusion that termination of C.T.'s parental rights would not be detrimental to C.A. did not constitute an abuse of discretion.
DISPOSITION
The orders are affirmed.
WE CONCUR:
DATO, J.
GUERRERO, J.
Notes
Subsequent undesignated statutory references are to the Welfare and Institutions Code.
Prior to this hearing, the Agency had sent notices based on earlier statements by D.R. and filed return receipts for the notices it sent to the Wichita Tribe and the Indian Bureau of Affairs (BIA) with the juvenile court.
In the alternative, the Agency also filed a motion to augment the record with postjudgment evidence, showing that after the appeal was taken it belatedly filed copies of the notices that were sent to the Wichita Tribe and the BIA. We dismiss the motion as moot, but note that the documents confirm the Agency did provide adequate notice to the Wichita Tribe and the BIA on May 27, 2016.
C.T.'s reliance on In re S.B. (2008)