Filed 7/8/16 In reL.B. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re L.B. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E065322
Plaintiff and Respondent, (Super.Ct.Nos. J256007 & J256190 & J256191) v. OPINION M.J. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin
and Cheryl C. Kersey, Judges. Affirmed in part; reversed in part with directions.
Emery El Habiby, under appointment by the Court of Appeal, for Defendant and
Appellant M.J.
Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and
Appellant J.B.
1 Jean-Rene Basle, County Counsel, Jamila Bayati, Deputy County Counsel, for
Plaintiff and Respondent.
M.J. (mother) is the biological mother of L.B. (a girl, born July 2014), M.L. (a
girl, born June 2013), and Ju.B. (a boy, born January 2012) (collectively, the children).
J.B. (father) is the presumed father. Both mother and father (collectively, parents) appeal
from the juvenile court’s order terminating their parental rights under Welfare and
Institutions Code1 section 366.26. Mother does not challenge the substantive findings
made by the juvenile court, but contends that the court’s orders must be reversed because
plaintiff and respondent San Bernardino County Department of Children and Family
Services (the Department) failed to comply with the notice requirement of the Indian
Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). Father contends that the court
erred in terminating his parental rights because he had a beneficial relationship with the
children under section 366.26, subdivision (c)(1)(B)(i). We agree with mother that the
Department failed to comply with ICWA, and remand the matter with directions to the
juvenile court to ensure the Department’s compliance with ICWA’s notice requirement.
We affirm the orders of the juvenile court in all other respects.
FACTUAL AND PROCEDURAL HISTORY
A. BENEFICIAL RELATIONSHIP BACKGROUND
Mother has general neglect referrals dating back to 2008. In July 2013, the
Department investigated a referral. Mother and her six children were living in a filthy
1 All statutory references are to the Welfare and Institutions Code unless otherwise specified.
2 house. She was not paying rent and the children lacked sufficient food. By September
18, 2013, the Department substantiated mother’s neglect. The four older children were
placed with a non-offending father. Mother engaged in a voluntary family maintenance
plan for M.L. and J.B., addressing her mental health issues and daily use of marijuana
and alcohol. The siblings had features suggestive of fetal alcohol syndrome. Father
resided out of state and was uninvolved in the parenting. Mother’s family maintenance
plan was terminated in November 2013 when her whereabouts became unknown.
On July 29, 2014, the Department received a referral indicating mother’s severe
neglect of L.B., who was born at 31 weeks of gestation and tested positive for
methamphetamine and opiates. Mother had a history of drug and alcohol use while
pregnant, and six other children were removed by the Department. Father had not visited
L.B. A relative reported that parents were looking for a place to live. On August 14,
2014, the Department detained L.B. out of parental custody in a local hospital. M.L. and
J.B. were then ages one and two and one-half, respectively; their whereabouts were
unknown.
On August 18, 2014, the Department filed a section 300 petition for L.B. The
petition addressed mother’s mental health issues and parental substance abuse, and
father’s failure to protect L.B. (§ 300, subd. (b)); and indicated that parents’ whereabouts
were unknown at the time (§300, subd. (g)).
On August 19, 2014, at the detention hearing for L.B., parents were present when
the court detained L.B. and set a jurisdictional and dispositional hearing for September 9,
2014.
3 In August of 2014, parents separated after engaging in domestic violence with
each other. The Department located mother with M.L. and J.B., and detained M.L. and
J.B. in foster care that month. An aunt indicated that she took care of M.L. and J.B.
because mother was irresponsible. M.L.’s immunizations were out of date, and she
suffered a burn on her arm that was not properly treated.
On September 2, 2014, the Department filed section 300 petitions for M.L. and
J.B. The petitions addressed mother’s mental health issues, parental substance abuse, and
domestic violence. (§300, subd. (b).) On September 3, 2014, at the detention hearing for
the two children, the court detained M.L. and J.B. in foster care and set a jurisdictional
and dispositional hearing for September 24, 2014. Eventually, the court scheduled a
mediation to address jurisdictional and dispositional issues, and consolidated M.L.’s and
J.B.’s cases with L.B.’s case.
The Department recommended that the court sustain the section 300 petitions,
remove the children from parental custody, and offer family reunification services to
mother and the presumed father of the children. Mother abused substances and received
a psychotropic medication prescription at a crisis clinic. M.J. was born positive for
marijuana. In utero, L.B. was exposed to methamphetamine, alcohol, marijuana,
nicotine, and Norco. Mother admitted she began smoking marijuana at age 11 and used
methamphetamine thereafter, including with father. Parents stole drugs and were drug
runners. Father denied abusing substances, but admitted to smoking “dope”; father tested
positive for marijuana in August and September 2014.
4 Parents denied engaging in domestic violence. Mother, however, stated that father
“smacked” her in the face. Father did not recognize that this was violent. He also did not
understand that he failed to protect the children.
Father lived in New York from March to December 2013; he sought placement of
the children with him there. At the time, he was 56 years old and had 14 children. Nine
of father’s children were over the age of 18. Two of his children were ages seven and 11,
and lived with their mother. Father did not finish high school, but he had worked in
carpentry, brick laying, and the railroad and roofing industries. Most recently, father
worked at an animal shelter through a welfare program. Parents were known to “squat”
at properties and not pay rent. The Department placed the children in different foster
homes, and looked for a single home that could take the three siblings.
Mother had a warrant for driving without a license. Although father admitted that
he was arrested for possessing an unregistered handgun, his criminal record indicated
multiple arrests for battery, lewd conduct with a child, statutory rape, contributing to the
delinquency of a minor, and possession of marijuana for sale. Father’s only conviction,
however, was for possession of marijuana for sale.
On September 24 and November 19, 2014, the court sustained section 300
allegations regarding mother’s mental health issues and substance abuse, father smoking
marijuana and failing to protect the children, and parents engaging in domestic violence.
The court removed the children from parents, found father to be the presumed father,
ordered family reunification services for parents, maintained the children in foster care,
and set the six-month review hearing for April 6, 2015.
5 The report for the April 6, 2015, six-month review hearing recommended
termination of family reunification services. Father denied he needed substance abuse
treatment, yet tested positive for marijuana and missed random tests in March 2015.
Father attended weekly supervised visits, but seemed unable to give the children adequate
attention and care. He attended therapy; more counseling was recommended.2 Father
investigated enrolling in substance abuse treatment in March 2015, but conveyed to the
social worker that the program was too long “so [the Department] can all (expletive) off.”
On April 6, 2015, parents failed to appear for the review hearing. Therefore, the
court set a short cause trial for April 21, 2015. The Department’s addendum report stated
that father tested positive for marijuana and missed a random drug test in April 2015.
Father also became more aggressive with the Department and the caregivers. Mother
appeared under the influence at visits.
On April 21, 2015, parents attended the short cause trial. The court therefore set a
long cause trial for May 8, 2015.
On May 8, 2015, parents attended the trial. Father’s counsel provided evidence
that father enrolled in a substance abuse treatment program and reportedly had a positive
attitude toward recovery. After reviewing the evidence and listening to argument from
mother’s counsel and father’s counsel, the court terminated family reunification services
and set a section 366.26 hearing for September 8, 2015.
2 The factual background focuses on father more than mother because of the different issues raised in their respective briefs.
6 In the section 366.26 report, the Department requested a 90-day continuance to
allow the children to be transitioned to an adoptive home and for the Department to
perform an adoption assessment. After services were terminated in May 2015, parents
had transportation difficulties and attended only two visits, which were described as
“mediocre.” The Department reported, “there seems to be a disconnection between the
children and parents.” On September 8, 2015, the court continued the section 366.26
hearing to December 7, 2015.
On October 1, 2015, father filed a section 388 petition requesting return of the
children to father, or family reunification services. The court summarily denied the
petition, finding it lacked a prima facie case.
The Department filed an addendum section 366.26 report. In the report, the
Department recommended termination of parental rights to permit the children to be
adopted by Mr. and Mrs. D. The children were placed with the prospective adoptive
parents on October 22, 2015, and adjusted quickly. This was their third placement. The
two older children would approach the prospective adoptive parents to receive hugs, and
enjoyed the attention they received at the home. When the prospective adoptive parents
returned home, the children ran to them, yelling, “dad dad” and “mama.” L.B. was very
clingy and loved to be held. The prospective adoptive parents reported that the children
fit right into their home and appeared to be happy. The prospective adoptive mother
expressed, “They are great little kids and I love them all!” She also stated that “every kid
should have a chance. With the right environment, they can blossom into special
people. . . . God led us to have them in our home.”
7 The prospective adoptive parents married in 2010. The prospective adoptive
father was a police officer. Previously, he worked as a child counselor in a group home.
The prospective adoptive mother was a court office assistant for the superior court. They
stated they had a great family structure and good balance. They had no medical issues
and no use of tobacco or drugs. They reported infrequent social use of alcohol. They
intended to meet the social needs of the children through their large families, church and
school.
For parents, the juvenile court ordered weekly supervised visits, two hours in
duration. The prospective adoptive parents resided in Fresno, but the visits were to be
held at an agency office in Riverside. Parents had trouble securing reliable
transportation. From May to September, they attended only two visits. From September
to November 2015 father attended visits more regularly than mother. Again, the quality
of the visits was described as mediocre since there seemed to be a disconnect between
parents and the children. Father also paid more attention to L.B. than to M.L. or J.B.
On December 7, 2015, parents attended the section 366.26 hearing; trial was set
for January 6, 2016.
A Department addendum report indicated the children appeared bonded with the
prospective adoptive parents. The children were healthy, well-mannered, and happy.
The prospective adoptive parents took the children to medical appointments and
connected with services, apparently to resolve language and motor-skill delays found in
the children.
8 On January 6, 2016, at the section 366.26 trial, the court admitted the Department
reports into evidence, parents testified, the court listened to argument, and then rendered
a judgment.
Mother testified that she disagreed with the termination of her parental rights. She
attended supervised visits, but missed visits due to transportation issues. The children
called her “mommy” and did not want the visits to end. J.B. and M.L. told her they loved
her. L.B. gave her kisses.
Father testified that M.L. and J.B. lived with him until three weeks before they
were removed from mother, but L.B. never lived with him. He attended each visit until
the children were moved. When visits were in Riverside, they conflicted with his classes.
He did not visit the children in Fresno as he was unfamiliar with that city. The children
called him “daddy,” and were excited to see him. He brought them food, played with
them, and changed diapers for M.L. and L.B. He guessed that the children did not like
leaving the visits because they tried to get him to take them home. He was religious and
did not use drugs.
Counsel for mother and father each argued that their clients had beneficial
relationships with the children, an exception to adoption. The children’s counsel argued
that the parent/child bond did not apply. The children were young, adoptable and doing
extremely well in their placement. The Department’s counsel concurred with the
children’s counsel.
The juvenile court found that the children were adoptable. They adjusted to their
new placement and were bonded with their prospective adoptive parents. From October
9 2015 to January 6, 2016, parents missed visits, but that was excusable since the children
lived far away. However the court noted that before the children moved to Fresno, from
May to September 2015, parents only attended two visits, and the quality of the visits was
mediocre. The court also noted that father became aggressive and exhibited negative
behavior at visits, and mother may have been “under the influence.” Visits were sporadic
and always supervised. Parents failed to prove that they had beneficial relationships
constituting exceptions to adoption. Hence, the court terminated parental rights. The
court also advised parents of their appeal rights.
B. ICWA NOTICING BACKGROUND
On August 18, 2014, the Department initiated the dependency for L.B. On
September 2, 2014, the Department initiated dependencies for J.B. and M.L. The Indian
Child Inquiry Attachments (ICWA-010) filed with the section 300 petitions indicated that
the children had no known Indian ancestry.
On August 19, 2014, at L.B.’s detention hearing, parents filed Parental
Notification of Indian Status forms (ICWA-020) indicating that neither parent had Indian
ancestry. In oral statements, mother confirmed that she had no Indian ancestry. Father,
however, stated that his grandmother was Cherokee. He provided his grandmother’s
name but did not know her date of birth. The court set L.B.’s jurisdictional and
dispositional hearing for September 9, 2014. At the detention hearing for J.B. and M.L.,
mother was present but not father. Mother filed an ICWA-020 indicating she had no
Indian ancestry. She orally advised the court that neither she nor father had Indian
ancestry.
10 The jurisdictional and dispositional report for L.B. stated, “mother indicated she
may be affiliated with the Blackfoot or Cherokee tribes. The father . . . indicated he may
have Native American heritage.” However, father had stated previously that his
grandmother was Cherokee. The jurisdictional and dispositional report for J.B. and M.L.
stated mother told the court that she had no Indian heritage, and father stated that “there
may be Indian Heritage.”
On August 20, 2014, for L.B.’s case, the ICWA clerk mailed the Notice of Child
Custody Proceeding for Indian Child forms (ICWA-030) by certified mail, noticing the
three federally recognized Cherokee tribes and single federally recognized Blackfeet
Tribe, the BIA, Secretary of the Interior, and parents, regarding the hearing set for
September 9, 2014. On September 4, 2014, the Department filed a report for the court’s
inspection in L.B.’s case reflecting ICWA notice. The ICWA-030s identified L.B. and
parents with first and last names, and included mother’s maiden name, respective dates of
birth, current and former addresses. The forms stated the Cherokee and Blackfeet
heritage stemmed from father’s relatives. For mother, no tribe was stated but the BIA
was listed, suggesting mother’s possible Indian heritage.
As relating to L.B., paternal and maternal grandmothers were stated on the ICWA-
030, along with their maiden names, current and former addresses, birthdates and
locations of birth. For the paternal grandmother, her date of death and the state where she
died were indicated. She reportedly had Blackfeet heritage. “No information available”
was stated for the maternal grandfather, but substantial information was provided for the
paternal grandfather, who was deceased, but had Cherokee heritage. Two maternal great-
11 grandmothers and paternal great-grandmothers were also stated. As to the paternal great-
grandmothers, the forms indicated that they were deceased, one in the “1900s; New
York,” the other in Maryland. The one from New York had Blackfeet heritage. The one
from Maryland, the one who father had named in court, had Cherokee heritage. Two
paternal great-grandfathers were also stated. One of them had Cherokee heritage and
died in Maryland in the 1960s. The other paternal great-grandfather had Blackfeet
heritage and died in New York in the 1980s.
The ICWA-030 forms were substantially complete as to L.B. When the
Department did not have the requested information, it stated, “No information available.”
Correspondence from the Cherokee Nation and United Keetoowah and of Cherokee
Indians stated L.B. was not considered an “Indian child” in those tribes.
On September 22, 2014, the Department filed a report for the court’s inspection in
L.B.’s case, indicating that no tribe confirmed membership or eligibility for membership
in the tribe. Correspondence from the Cherokee Tribe of North Carolina and Blackfeet
Tribe indicated that L.B. was not an Indian child.
On September 24, 2014, the court sustained part of the petition allegations for the
three siblings, and set the six-month review hearing for April 6, 2015.
On October 14, 2014, the ICWA clerk mailed the ICWA-030s on behalf of J.B.
and M.L. to the BIA, Secretary of the Interior, and parents, noticing them for the six-
month review hearing scheduled for April 6, 2015. On October 16, 2014, the Department
filed a report allowing the court to inspect the ICWA noticing documents. The ICWA-
030s were substantially complete, as with the ICWA-030 for L.B.’s case, but the BIA
12 was stated as parents’ tribe of heritage, and the form omitted the Blackfeet and Cherokee
tribes concerning father’s heritage. No notice was sent to either of the two tribes.
On November 17, 2014, the Department filed another report for court inspection
reflecting ICWA noticing provided in the cases for J.B. and M.L.
On November 19, 2014, the court sustained the balance of the allegations for the
siblings, addressed disposition issues, and confirmed the review hearing. At the
November 19, 2014, hearing, by adopting the findings in the jurisdictional and
disposition report, the court found that ICWA may apply and ICWA noticing
requirements were initiated. However, on November 6, 2014, a report by the ICWA
clerk was filed indicating no affirmative response of tribal membership was received,
hence, ICWA did not apply. On November 6, the court signed a proposed order finding
that ICWA did not apply. The attorneys all received the report and proposed
order/finding; they posed no objections.
On January 8, 2015, the Department filed an ICWA report. The Department
advised that 65 days had passed since the BIA and Secretary of the Interior had been
notified of J.B.’s and M.L.’s proceedings. The report summarized the notice sent and
received. Attached correspondence from the BIA indicated that the BIA does not
determine tribe eligibility. On January 8, 2015, the juvenile court signed a proposed
order, which had been presented with the report, finding that ICWA did not apply. The
parties did not object.
13 On May 8, 2015, at the consolidated six-month review hearing, the trial court
terminated services, set the section 366.26 hearing, and provided parents with writ rights.
No party raised any ICWA issues. No writs were filed.
On January 6, 2016, the court held a consolidated section 366.26 trial. The court
terminated parental rights and provided parents with their appellate rights. No ICWA
issues were raised.
On February 2, 2016, parents filed their notices of appeal.
DISCUSSION
A. THE ICWA NOTICE WAS INADEQUATE
Mother contends that both sets of ICWA notices failed to identify mother’s tribal
affiliation with the Cherokee and Blackfeet tribes. Therefore, mother asserts lack of
compliance with ICWA inquiry and noticing requirements mandates reversal.
“Congress enacted ICWA to further the federal policy ‘“that, where possible, an
Indian child should remain in the Indian community . . . .”’” (In re W.B. (2012) 55
Cal.4th 30, 48.) “When applicable, ICWA imposes three types of requirements: notice,
procedural rules, and enforcement. [Citation.] First, if the court knows or has reason to
know that an ‘“Indian child”’ is involved in a ‘“child custody proceeding,”’ . . . the social
services agency must send notice to the child’s parent, Indian custodian, and tribe by
registered mail, with return receipt requested. . . . [¶] Next, after notice has been given,
the child’s tribe has ‘a right to intervene at any point in the proceeding.’ . . . [¶] Finally,
an enforcement provision offers recourse if an Indian child has been removed from
14 parental custody in violation of ICWA.” (Id. at pp. 48-49.) “Thorough compliance with
ICWA is required.” (In re J.M. (2012) 206 Cal.App.4th 375, 381.)
Of concern here is the notice requirement. If an agency “knows or has reason to
know that an Indian child is involved” in a dependency proceeding, the agency must send
notice of the proceeding to, among others, a representative of all potentially interested
Indian tribes. (§ 224.2, subd. (a).) “[F]ederal and state law require that the notice sent to
the potentially concerned tribes include ‘available information about the maternal and
paternal grandparents and great-grandparents, including maiden, married and former
names or aliases; birthdates; place of birth and death; current and former addresses; tribal
enrollment numbers; and other identifying data.’ [Citations.] To fulfill its responsibility,
the Agency has an affirmative and continuing duty to inquire about, and if possible
obtain, this information. [Citations.] Thus, a social worker who knows or has reason to
know the child is Indian ‘is required to make further inquiry regarding the possible Indian
status of the child, and to do so as soon as practicable, by interviewing the parents, Indian
custodian, and extended family members to gather the information required in paragraph
(5) of subdivision (a) of Section 224.2 . . . .’ [Citation.] That information ‘shall include’
‘[a]ll names known of the Indian child’s biological parents, grandparents, and great-
grandparents, or Indian custodians, including maiden, married and former names or
aliases, as well as their current and former addresses, birthdates, places of birth and death,
tribal enrollment numbers, and any other identifying information, if known.’ [Citation.]
Because of their critical importance, ICWA’s notice requirements are strictly construed.”
(In re A.G. (2012) 204 Cal.App.4th 1390, 1396-1397.)
15 In this case, mother claims that the Department failed to comply with ICWA
because the notices failed to properly identify the tribes of heritage for each parent. In its
response, the Department agrees with mother.
Here, as summarized in detail ante, as to L.B., the Department sent ICWA notices
to Blackfeet and Cherokee tribes relating to father’s claim of Indian ancestry. However,
no ICWA notices were sent to any Indian tribes regarding mother’s alleged Indian
ancestry. As to M.L. and J.B., there was no reference to any tribe and no notice was sent
to any tribe. Although mother initially claimed that neither parent had any Indian
ancestry, the Department was fully aware that father had claimed Indian heritage in
L.B.’s case. Moreover, the jurisdictional and disposition report for M.L. and J.B. noted
that although mother denied Indian heritage, father indicated that he may have Indian
heritage. ICWA notices were only sent to the BIA and Secretary of the Interior, which is
insufficient notice when a federally recognized tribe of heritage has been named by either
parent. (In re Alice M. (2008) 161 Cal.App.4th 1189, 1202.)
Therefore, based on the above, the trial court’s findings that proper notice was
given under the ICWA, and/or whether ICWA applies are not supported by substantial
evidence. A limited reversal and remand to clarify and cure any ICWA noticing defects
is warranted.
16 B. THE PARENTAL BENEFIT EXCEPTION DID NOT APPLY
Father claims that the juvenile court erred when it terminated his parental rights
because the parental benefit exception applied.3
In general, at a section 366.26 hearing, if the juvenile court finds that a child is
adoptable it must terminate parental rights. (§ 366.26, subds. (b)(1) & (c)(1).) This rule,
however, is subject to a number of statutory exceptions (§ 366.26, subds. (c)(1)(A) &
(c)(1)(B)(i)-(vi)), including the beneficial parental relationship exception, which applies
when “termination 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.” (§ 366.26, subd. (c)(1)(B)(i).)
“When applying the beneficial parent-child relationship exception, the court
balances the strength and quality of the parent-child relationship in a tenuous placement
against the security and sense of belonging that a stable family would confer on the child.
If severing the existing parental 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 B.D. (2008) 159 Cal.App.4th 1218, 1234-1235.)
“‘[F]or the exception to apply, the emotional attachment between the child and
parent must be that of parent and child rather than one of being a friendly visitor or
friendly nonparent relative, such as an aunt.’” (In re Jason J. (2009) 175 Cal.App.4th
3 Mother joins in father’s argument.
17 922, 938.) The parent must show more than frequent and loving contact or pleasant
visits. (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) “‘A biological parent who
has failed to reunify with an adoptable child may not derail adoption merely by showing
the child would derive some benefit from continuing a relationship maintained during
periods of visitation with the parent. [Citation.] A child who has been adjudged a
dependent of the juvenile court should not be deprived of an adoptive parent when the
natural parent has maintained a relationship that may be beneficial to some degree, but
that does not meet the child’s need for a parent.’” (Jason J., at p. 937.)
“The parent contesting the termination of parental rights bears the burden of
showing both regular visitation and contact and the benefit to the child in maintaining the
parent-child relationship.” (In re Helen W. (2007) 150 Cal.App.4th 71, 80-81.) This
court must affirm a juvenile court’s rejection of these exceptions if the ruling is supported
by substantial evidence. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) We review
“the evidence most favorabl[e] to the prevailing party and indulg[e] in all legitimate and
reasonable inferences to uphold the court’s ruling.” (In re S.B. (2008) 164 Cal.App.4th
289, 297.) Because Mother had the burden of proof, we must affirm unless there was
“indisputable evidence [in her favor, which] no reasonable trier of fact could have
rejected.” (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)
In this case, father failed to meet the first requirement of the exception—that he
regularly visited the children. (§ 366.26, subd. (c)(1)(A).) Here, father had some
transportation issues that occasionally interfered with his ability to visit the children. The
court did not consider missed visits (when the children’s change in placement was to a
18 remote location) when the court determined that father’s visits were sporadic. The court
noted, “[l]et me begin by staying I know the children were placed in Fresno in October so
I am not going to deal with the lack of visitation from October 22nd to the present day
because I understand the hardship on [parents], so I want to make it clear to all the parties
that is not factoring into the Court’s decision.” Although father testified that he visited
regularly with the children, the court went on to comment on the sporadic visits father
had with the children during the pendency of this dependency. We note that it is the trial
court’s role to assess the credibility of witnesses and to weigh the evidence to resolve
conflicts in the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) Here, based
on the evidence presented and weighing the credibility of the witnesses, the court
determined that father did not regularly visit the children.
Even if father visited regularly and consistently, the beneficial parental
relationship exception requires both regular visitation and benefit to the child. Here,
father has failed to establish benefit to the children.
The second requirement for the parental benefit exception to apply requires that
father prove that the children would benefit from continuing the relationship. (§ 366.26,
subd. (c)(1)(A).) “The existence of this relationship is determined by ‘[t]he age of the
child, the portion of the child’s life spent in the parent’s custody, the ‘positive’ or
‘negative’ effect of interaction between parent and child, and the child’s particular
needs.’” (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206, citing In re Autumn H.
(1994) 27 Cal.App.4th 567.)
19 In this case, at the time of the contested section 366.26 hearing, the children were
ages one and one-half, two and one-half, and four years old. When they were initially
removed, M.L. and J.B. were ages one and two and one-half years old, respectively. L.B.
was detained at birth and never resided with father. She spent her entire life either in the
custody of the Department or under its supervision. The other two siblings spent only a
year or two out of the Department custody. Accordingly, the majority of the children’s
lives were spent out of father’s custody.
Although father characterizes parents as the “only constant parental figures” for
the children, the record shows otherwise. As noted ante, L.B. was detained at birth. She
had spent 16 months in foster care by the time of the section 366.26 hearing. Father did
not visit L.B. at the hospital in the two weeks after her birth, and father never had custody
of L.B. As for the other children: M.L. spent approximately 14 months in parental
custody, and 16 months out of parental custody; and J.B. spent approximately two and
one-half years in parental custody, and 16 months out of parental custody, when the
section 366.26 hearing was held. Father, however, was not the primary caregiver for
M.L. and J.B.; the primary caregiver was mother. Father resided on the east coast for
several months. Moreover, parents did not have a stable relationship; as examples, father
doubted his paternity as to L.B., mother engaged in a voluntary family maintenance plan
alone before the dependency commenced, parents had split up for some time due to
domestic violence, and father resided out of state for a period of time and frequently
traveled out of state. Moreover, parental visits were descried as “mediocre,” since there
was an apparent disconnect between parents and the children.
20 Furthermore, the children needed a permanent and stable placement—which is the
required focus of the section 366.26 hearing. Here, the children have already suffered
instability. They were initially split up for some time, and resided in three foster care
placements. When parents had custody of the children, they did not have stable housing.
Instead, they squatted at various properties. The children’s prospective adoptive parents
not only provide them with stability in housing, they also provide the children with
stability in their daily lives. The prospective adoptive parents take the children to
medical appointments and connect the children with services to resolve developmental
delays. The children are bonded with the prospective adoptive parents and express
affection. The children hug the prospective adoptive parents, call them “dad dad” and
“mama,” and love to be held by them. Moreover, the children need “a home environment
free from the negative effects of substance abuse,” which is recognized as “a necessary
condition for the safety, protection and physical and emotional well-being” of children.
(§ 300.2.)
Mother admitted she began smoking marijuana at age 11, and used
methamphetamine thereafter, including with father. Mother and father stole drugs and
were drug runners. Father denied abusing substances but admitted to “smoking dope,”
and tested positive for marijuana in this case. Parents also denied engaging in domestic
violence, yet, mother stated that father “smacked” her in the face. Father did not see this
act as being violent. Dissimilar to parents, the prospective adoptive parents do not live
substance-abusing lifestyles, do not use tobacco or drugs, and consume alcohol rarely on
21 social occasions. They intend to meet the children’s social needs through their families,
church and school events.
Based on the above, we find there is substantial evidence to support the juvenile
court’s finding that father failed to meet his burden of proof to establish the beneficial
parental relationship exception applied in his case.
Father’s reliance on In re Amber M. (2002) 103 Cal.App.4th 681, is misplaced. In
Amber M., the appellate court held the lower court erred in finding that an exception to
adoption did not apply where the mother maintained regular visits with the children, and
the psychologist, therapists, and court-appointed special advocate unanimously stated that
mother had demonstrated the existence of mother’s beneficial parental relationship,
which outweighed the benefits of adoption. (Id. at pp. 689-691.) In this case, there are
no such facts or evidence to support father’s beneficial parental relationship with the
children. As noted in detail ante, father failed to meet the threshold requirement of
demonstrating regular visitation with the children.
Father’s reliance on In re S.B., supra, 164 Cal.App.4th 289 is also misplaced. In
that case, the father “complied with every aspect of his case plan,” and maintained his
sobriety and consistently visited with his child. (Id. at p. 293.) The father’s physical and
emotional health problems, however, prevented him from reunifying with his child.
Although the child was placed with her grandmother, who wanted to adopt her, a bonding
study showed that the child had a “moderate” and “fairly strong” bond with her father.
The agency recommended termination of parental rights, but hoped that the grandmother
would allow the father to visit. The juvenile court found that there was no evidence that
22 it would be greatly detrimental to terminate the child’s relationship with the father and
terminated parental rights. (Id. at p. 296.) The father appealed and the appellate court
agreed with the father finding that the child had a “substantial, positive emotional
attachment” with the father. (Id. at pp. 293, 301.)
This case is distinguishable. Here, father had no medical issues preventing him
from reunifying with the children. Moreover, unlike the father in In re S.B., father
resisted reform as he continued to engage in substance abuse and minimized his role in
the removal of the children. Although he viewed his visits with the children as positive,
the Department reported to the contrary. Father was not parental with the children, he did
not adequately tend to them during supervised visits, and continued to bring unhealthy
food to the visits even after he had been asked not to bring such items.
In sum, father has the burden to establish the applicability of the beneficial
parental relationship exception in the lower court; on appeal, he has the burden of
showing that the juvenile court’s ruling was an abuse of discretion. We conclude that
father has failed to meet this burden.
DISPOSITION
The juvenile court’s finding that ICWA is not applicable is vacated. The case is
remanded to the juvenile court with directions to ensure the Department has complied
with the notice requirements of ICWA. If, after new notices, any of the Cherokee or
Blackfeet tribes claim the children are eligible for membership and seek to intervene, the
juvenile court shall proceed in conformity with all the provisions of ICWA. If, on the
other hand, none of the tribes make such claims following new notices, or the court
23 concludes the Department’s efforts at compliance were adequate, the inapplicability
finding and the order terminating parents’ parental rights and adopting a permanent plan
as to the children shall be reinstated.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
McKINSTER Acting P. J.
CODRINGTON J.