In re R.M. CA4/1

Opinion

Filed 8/30/13 In re R.M. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re R.M. et al., Persons Coming Under the Juvenile Court Law. D063785 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. SJ12440A-B) Plaintiff and Respondent,

v.

ROBERT M.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of San Diego County, Laura J.

Birkmeyer, Judge. Affirmed.

Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and

Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent. Terence M. Chucas, under appointment by the Court of Appeal, for Minors.

Robert M. appeals juvenile court orders terminating his parental rights to his

minor sons, R.M. and Diego M. (together the minors) under Welfare and Institutions

Code1 section 366.26. Robert contends the court erred by finding the beneficial parent-

child relationship exception to adoption did not apply to preclude termination of his

parental rights. We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2010, one-year-old R.M. and two-month-old Diego became dependents

of the juvenile court under section 300, subdivision (b), and were removed from parental

custody because their mother, Maria C., abused drugs, had drug paraphernalia in the

home, and had a history of untreated methamphetamine abuse, and the minors' father,

Robert, had been unable to protect them from Maria's drug abuse. At the time, Robert

was in jail on a parole violation. His extensive criminal history, dating to 2000, included

crimes of violence. The court placed the minors in foster care, ordered the parents to

participate in reunification services, and authorized supervised visits for the minors and

Robert.

The San Diego County Health and Human Services Agency (Agency) informed

the court that Robert and the minors were eligible for enrollment with the Oglala Sioux

Tribe (the tribe). Throughout the proceedings, the court made findings that the Indian

Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) applied. The tribe initially

1 Statutory references are to the Welfare and Institutions Code unless otherwise specified. 2 expressed its interest in intervening, but did not follow through. It later concurred with

Agency's placement recommendation for the minors, and said it would intervene if the

parents did not make timely progress with their reunification plans.

Robert was paroled from prison in January 2011 but, a week later, he was arrested

for committing violent crimes. He contacted the minors at their foster home a few times,

asked the social worker for photographs of them, and sent them birthday cards and notes.

Agency arranged for Robert to visit the minors at the detention facility twice a month.

At the six-month review hearing, the court made findings in accordance with

ICWA, continued the minors as dependents and ordered further reunification services for

the parents. The court found good cause existed to modify the placement preferences of

ICWA. Agency continued to evaluate paternal relatives for possible placement.

In October 2011, Robert had a telephone conversation and two visits at the

detention facility with the minors. He was appropriate and loving with the minors, and

R.M. interacted well with him. Robert was on lockdown during November 2011, and

Agency was hampered in its efforts to schedule visits by the facility's restrictions and the

status of Robert's criminal court proceedings.

At the 12-month review hearing, the court found active efforts had been made to

provide services to the parents and to prevent the breakup of the Indian family as required

by ICWA. The court terminated services and set a hearing under section 366.26 to select

and implement a permanent plan for the minors.

In February 2012, Robert applied for membership in the tribe. According to the

tribal representative, the tribe's preference was for the minors to be placed with paternal

3 or maternal family members, or in the home of an Indian family. The tribal

representative further noted that because the minors were part Mexican, placement with

the current foster parents, who were of Mexican descent, was acceptable to the tribe.

Agency assessed the minors as generally and specifically adoptable. The foster

parents were committed to adopting them2 and there were numerous families interested

in adopting a sibling set like the minors. Robert had been incarcerated throughout most

of the dependency proceedings and had not been able to develop a relationship with the

minors. The social worker believed adoption was in the minors' best interests because

they needed a permanent home.

In July 2012, the tribal representative informed the social worker that it was in the

minors' best interests to remain in their foster home with their sister and to have the tribe

pursue a tribal customary adoption. The following November, the tribe submitted to the

court the paperwork for the tribal customary adoption.3 However, the paperwork

contained numerous errors that needed to be corrected, requiring the court to continue the

matter.

At the continued hearing, the court was unable to contact the tribal representative,

who was scheduled to appear telephonically. The parties had not been informed of the

2 The minors' half sister had been placed with these foster parents, who intended to adopt her.

3 Tribal customary adoption, not part of ICWA, was established by the Legislature as an alternative permanent plan for Indian children. (Stats. 2009, ch. 287, § 12.) It is an "adoption by and through the tribal custom, traditions, or law of an Indian child's tribe. Termination of parental rights is not required to effect the tribal customary adoption." (§ 366.24, subd. (a)(1); see In re G.C. (2013) 216 Cal.App.4th 1391, 1398.) 4 tribe's position. The court again continued the hearing after Agency noted the

proceedings had gone beyond the statutory time frame, and Agency was unprepared to

proceed with a traditional adoption without the declaration and testimony of an Indian

expert. Minors' counsel wanted more time to determine whether the tribe had enrolled

the minors.

In January and April 2013, the tribe informed Agency and the court that it had

elected to withdraw its request for a tribal customary adoption. Although Agency learned

Robert had been enrolled in the tribe, it was unable to confirm the minors' enrollment.

Robert had been transferred to local custody, but had not yet had a visit with the minors.

At the contested selection and implementation hearing, Indian expert Phillip E.

Powers testified the minors would be at risk of serious emotional and physical harm if

they were returned to parental custody. He stated Robert had an extensive criminal

history and was recently sentenced to prison for nine years. Powers testified adoption

was in the minors' best interests. He also testified that terminating Robert's parental

rights would not interfere with the minors' eligibility for membership in the tribe.

Social worker Jose Santana testified that while Robert was incarcerated, he had

visits with the minors twice a month. Santana had observed six or seven of those visits,

which occurred through a glass partition with the use of a telephone. R.M. recognized

Robert, but Diego did not. When the minors first arrived at the visit, they would run

around and scream. R.M. talked on the telephone to Robert for one to two minutes, and

mostly listened to Robert talking. Robert watched the minors through the glass partition

5 and waved at them. Santana was not sure whether R.M. identified Robert as his father or

only as someone he had seen before.

Santana further testified the foster parents were willing to continue any tribal

traditions or customs for the minors. Although the minors were not yet enrolled in the

tribe, Agency was committed to ensuring their enrollment.

After considering the evidence and arguments of counsel, the court made findings

under ICWA, including: (1) active efforts were made to prevent the breakup of the

Indian family, but those efforts were unsuccessful; and (2) continued custody of the

minors by the parents was likely to result in serious emotional and physical damage to the

minors. The court found the minors were likely to be adopted and none of the exceptions

to adoption applied. The court terminated parental rights and referred the minors for

adoptive placement.

DISCUSSION

Robert contends the evidence was insufficient to support the court's finding the

beneficial parent-child relationship exception to adoption did not apply to preclude

terminating his parental rights. He asserts he maintained regular visitation and contact

with the minors, and had an appropriate and bonded relationship with them, constrained

only by his incarceration. Robert further asserts severing the parent-child relationship

would be detrimental to the minors because he was their "only real link" to their Indian

heritage.

6 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) 138 Cal.App.4th

529, 534.) At the selection and implementation hearing, the court has three options: (1)

terminate parental rights and order adoption as the permanent plan; (2) appoint a legal

guardian for the child; or (3) order the child placed in long-term foster care. (Ibid.)

"Adoption, where possible, is the permanent plan preferred by the Legislature."

(In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds a child cannot be

returned to his or her parent and is likely to be adopted if parental rights are terminated, it

must select adoption as the permanent plan unless it finds termination of parental rights

would be detrimental to the child under one of the specified statutory exceptions.

(§ 366.26, subd. (c)(1)(A) & (B)(i)-(vi); In re Erik P. (2002) 104 Cal.App.4th 395, 401.)

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 child and the child

would benefit from continuing the relationship." We have interpreted the phrase

" 'benefit from continuing the . . . relationship' " to refer to a parent-child relationship that

"promotes the well-being of the child to such a degree as to outweigh 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

7 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." (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord, In re Jason J.

(2009) 175 Cal.App.4th 922, 936.)

To meet the burden of proof for this statutory exception, the parent must show

more than frequent and loving contact, an emotional bond with the child or pleasant

visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) The parent must show he or she

occupies a parental role in the child's life, resulting in a significant, positive emotional

attachment from child to parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318,

324.)

We review an order terminating parental rights for substantial evidence. (In re

Autumn H., supra, 27 Cal.App.4th at p. 576.) If, on the entire record, there is substantial

evidence to support the findings of the juvenile court, we uphold those findings. We do

not consider the credibility of witnesses, attempt to resolve conflicts in the evidence or

weigh the evidence. Instead, we draw all reasonable inferences in support of the

findings, view the record favorably to the juvenile court's order and affirm the order even

if there is substantial evidence supporting a contrary finding. (In re Casey D. (1999) 70

Cal.App.4th 38, 52-53; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The parent

has the burden of showing there is no evidence of a sufficiently substantial nature to

support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

8 B

The juvenile court found, and the evidence showed, Robert's contact with the

minors was "regular," given the circumstance of his incarceration. Nevertheless, Robert

did not meet his burden of showing there was a beneficial parent-child relationship

sufficient to apply the exception of section 366.26, subdivision (c)(1)(B)(i).

Robert was incarcerated throughout most of the minors' lives and consequently

never developed a parental relationship with them. Even when Robert was out of custody

on parole and was given referrals to services, he immediately resumed his criminal

lifestyle and once again abdicated the role of parent. During visits twice a month at the

jail facility, four-year-old R.M. recognized Robert, but not necessarily as his father, and

appeared to enjoy the interaction with Robert through the glass partition and on the

telephone. Two-year-old Diego did not know Robert. There was no evidence the minors

asked for Robert between visits or were in any way adversely affected by his absence

from their daily lives. "A biological parent who has failed to reunify with an adoptable

child may not derail an adoption merely by showing the child would derive some benefit

from continuing a relationship maintained during periods of visitation with the parent."

(In re Angel B. (2002) 97 Cal.App.4th 454, 466.) Although Robert cared about the

minors and expressed his love for them, this was not enough to show he had a

" 'significant, positive, emotional attachment' " to them such that terminating the parent-

child relationship would greatly harm them. (In re Jason J., supra, 175 Cal.App.4th at

pp. 936-938; In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

9 Further, Robert did not show that maintaining the parent-child relationship

outweighed the benefits of adoption for the minors. The minors were living with their

sister in the home of caregivers who were committed to adopting all of them. They

looked to these caregivers to meet their physical, emotional and psychological needs. In

the social worker's opinion, the minors' need for stability, safety and permanency

outweighed any possible detriment that would be caused by severing the parental

relationship. The court was required to, and did, weigh the strength and quality of the

parent-child relationship, and the detriment involved in terminating it, against the

potential benefit of an adoptive home for the minors. We do not reweigh the evidence or

substitute our judgment for that of the juvenile court. (In re Casey D., supra, 70

Cal.App.4th at pp. 52-53.)

Contrary to Robert's position, a permanent plan other than adoption would not

serve the minors' best interests because adoption is the only option that would provide

them with the stability and permanence they need. (In re Beatrice M. (1994) 29

Cal.App.4th 1411, 1419 [Legislature has decreed guardianship is not in best interests of

children who cannot be returned to their parents; only adoption affords the most

permanent and secure alternative]; In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368-

1370 [parents' preference to preserve family unit does not override best interests of

minors in stability and security of adoptive home].) Substantial evidence supports the

court's finding the beneficial parent-child relationship exception did not apply to preclude

terminating parental rights.

10 C

Robert contends the court should have found that terminating his parental rights

would be detrimental to the minors because he was their only connection to their Indian

heritage. To the extent Robert is relying on the Indian child exception of section 366.26,

subdivision (c)(1)(B)(vi), he has forfeited this argument by not raising it in the juvenile

court. (In re G.C., supra, 216 Cal.App.4th at pp. 1398-1399 [father forfeited argument

that court did not consider appropriateness of tribal customary adoption as minor's

permanent plan].)

Even had Robert not forfeited the issue, there was no "compelling reason" for

determining that termination of parental rights would not be in the best interests of these

Indian children. (§ 366.26, subd. (c)(1)(B)(vi).) Under that provision, an exception to

adoption for an Indian child may apply if terminating parental rights "would substantially

interfere with the child's connection to his or her tribal community or the child's tribal

membership rights" or if the tribe has identified guardianship, long-term foster care with

a relative, tribal customary adoption or another planned permanent living arrangement for

the child. (Id., subd. (c)(1)(B)(vi)(I).) According to Indian expert Powers, the minors

would still be eligible for membership in the tribe once parental rights are terminated.

Agency was committed to ensuring the minors become enrolled members of the tribe,

and the caregivers were committed to teaching the minors about their tribal heritage.

There was no evidence that terminating parental rights would substantially interfere with

the minors' connection to the tribe or their tribal membership rights. Further, the tribe

itself did not support a plan other than a traditional adoption by the caregivers and, in

11 fact, withdrew its request for a tribal customary adoption. Although Robert is unhappy

with the tribe's decision and would prefer to retain his parental rights, he has not shown

the juvenile court erred by finding adoption was in the minors' best interests.

DISPOSITION

The orders are affirmed.

MCDONALD, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.