Opinion
F079596
04-16-2020
In re V.W. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. O.H., Defendant and Appellant.
Carolyn S. Hurley, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 17CEJ300134-1, 17CEJ300134-2)
OPINION
APPEAL from orders of the Superior Court of Fresno County. Leanne Le Mon, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Carolyn S. Hurley, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent.
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INTRODUCTION
Dependency jurisdiction pursuant to Welfare and Institutions Code section 300 was taken over minors, V.W. and W.W., due to ongoing domestic violence between father, O.H., and mother, A.B. (collectively, "the parents"), taking place in their presence. At disposition, parents were ordered to be provided with family reunification services. Because of a domestic violence incident that occurred during the reunification period after parents had completed a substantial portion of their services, their services were terminated at the 18-month review hearing and a section 366.26 hearing was set. Father subsequently filed a section 388 petition requesting his services be reinstated or the children be returned to him, which the juvenile court summarily denied. At the section 366.26 hearing, the juvenile court terminated parental rights.
All further undesignated statutory references are to the Welfare and Institutions Code.
Father appeals the summary denial of his section 388 petition and the order terminating parental rights. Mother is not a party to this appeal. Father contends the juvenile court erred by finding he had not made a prima facie case in his 388 petition to merit an evidentiary hearing and by failing to apply the beneficial parent-child relationship exception to terminating parental rights. Father also challenges the juvenile court's findings that the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) did not apply because the Fresno County Department of Social Services (department) did not include the names of the family members he alleged were members of Native American tribes in its notice to the tribes and the Bureau of Indian Affairs (BIA). Because we find inquiry and notice under ICWA deficient, we conditionally reverse the order terminating parental rights and remand for proper inquiry and notice to be made under the ICWA. In all other respects, the orders are affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
On April 25, 2017, the department received a referral for general neglect and physical abuse on then five-year-old V.W. and then 20-month-old W.W. by mother and father. It was reported that father had attempted to hit V.W., mother intervened, and father hit mother in the mouth causing her to suffer a "busted lip." When the social worker made contact with the family, father denied domestic violence. Father, however, stated he had been convicted of a domestic violence charge in 2016 and was attending a domestic violence program as a result, but mother herself had caused the injuries that led to that conviction. A criminal protective order allowing peaceful contact was in place.
Father had been determined to be W.W.'s biological father and was deemed his presumed father. V.W.'s alleged father was determined not to be her biological father. On May 26, 2017, father requested to be deemed V.W.'s presumed father, which was granted on August 29, 2017.
The social worker did not observe any visible marks or bruises on V.W. V.W. told the social worker that father hits mother and calls mother a "Fat Bitch," "Whore," "Slut," and "Asshole"; and tells mother she is no good without father. V.W. stated her parents had a bad relationship and things were not well in her home. V.W. worries about her parents fighting and she wants to help mother fight father. V.W. stated she was afraid of father and wished she could live with mother and W.W. without father.
An "Imminent Risk Team Decision Making Meeting" was held on April 27, 2017. Father was invited to the meeting but did not attend or participate. At the meeting, mother acknowledged there was ongoing domestic violence that took place in the presence of the children. Mother stated she wanted to "work things out" with father and the domestic violence was not that bad. Mother had left father on previous occasions and gone to the Marjaree Mason Center, a shelter for domestic violence victims which provides support services, or to her parents' house, only to return to him. At the meeting, mother agreed to return to Marjaree Mason Center. The next day, the social worker was informed mother had not returned to the Marjaree Mason Center as promised, and the department obtained a protective custody warrant on behalf of the children. The children were removed from mother's residence.
On May 3, 2017, the department filed a dependency petition on behalf of the children, alleging they came within the jurisdiction of the juvenile court under section 300, subdivisions (b)(1) (failure to protect) and (c) (serious emotional damage) because the domestic violence between mother and father caused the children to suffer or be at substantial risk of suffering serious physical harm or illness and serious emotional damage. The children were ordered detained from the parents on May 5, 2017. At the detention hearing, the court ordered the parents to have supervised visitation with the children.
When V.W. arrived at her care providers' home, she asked them if they "hit in this house" and seemed confused when they told her they did not. V.W. also referred to her mother's friends as "whores" or "hoes." The care providers reported that when V.W. thinks she is not being supervised, she has spit in W.W.'s face and has kicked him in his genitals. The care provider observed that V.W. gets "really sad really fast." When V.W. first came to the home, she pretended to be a cat and stated, "humans were useless." V.W. also had an issue with bed wetting. V.W.'s doctor informed the care providers that the bed wetting was likely due to trauma. The care provider also reported that V.W. appeared to be "parentified" in her relationship with W.W. The care provider reported that W.W. was very physical, had one-hour long fits, and ate until he threw up.
On June 13, 2017, the social worker visited V.W. and W.W. at their care providers' home. V.W. told the social worker that father said "bullshit" "all the time" and her parents were "always fighting." V.W. told the social worker that one time father hit the wall and broke something and they called the police and left. V.W. said she and mother were scared and trembling.
At the contested jurisdiction/disposition hearing held on August 29, 2017, father testified on his behalf and denied the allegations in the petition. Father testified that on the April 25 incident, he stood up like he was about to spank V.W. Mother was breastfeeding W.W. and also stood up because she thought father was going to spank V.W. and when she did so, W.W.'s head hit mother and caused her injury, not father. Father testified he had completed an anger management program as a result of the previous domestic violence charge.
The court found the allegations in the petition true and adjudged the children dependents of the court. The court noted it did not find father's testimony regarding how mother's injury happened credible. The court ordered the parents to have supervised visits with the department having discretion to increase visitation. The court ordered the parents to be provided reunification services including parenting classes, a domestic violence evaluation and recommended treatment, and a mental health evaluation and recommended treatment.
V.W. completed a mental health assessment pursuant to her case plan on July 24, 2017, and was recommended weekly therapy sessions. W.W. completed a mental health assessment pursuant to his case plan on August 3, 2017, and was recommended play therapy once a week.
Parents began participating in their services. Mother completed her parenting class on September 7, 2017. Mother completed a domestic violence index and was recommended to participate in the "Phoenix Program," and Child Abuse Intervention Program (CAIP) offered by the Marjaree Mason Center to address domestic violence issues. Mother participated in weekly therapy.
Father completed his parenting class on October 17, 2017. Father completed a domestic violence index and was recommended to participate in the CAIP and anger management classes. The CAIP class was a 52-week program to address domestic violence issues. Father had completed his anger management class ordered by criminal court as part of his domestic violence charge on August 3, 2017, and was permitted to use the class to count toward the reunification service requirement. Father participated in biweekly therapy.
On November 14, 2017, mother and father's shared home was assessed with no concerns noted. On November 29, 2017, the parents progressed to unsupervised visits. As of the six-month status review report dated February 12, 2018, there had been no concerns noted at the visits and a meeting was scheduled to discuss overnight visits. The department opined the parents had made significant progress towards resolving the issues that led to the children's removal and recommended the court continue reunification services. At the six-month status review hearing on February 13, 2018, the juvenile court ordered reunification services to be continued as to both parents.
Mother completed the Phoenix Program on March 2, 2018.
On April 25, 2018, mother went to the department office, appearing emotional, distraught, and scared. Mother told the social worker there had been a domestic violence incident between her and father. Mother had taken an audio recording of the incident. The audio was as follows:
"[Father]: '[W]here the fuck you was at?'Mother told the social worker she tried to talk with father and he did not want to talk so she packed a bag and left the residence.
"[Mother]: 'I'm just doing my homework then I'll leave'
"[Father]: '[Y]ou leave now, I don't give a fuck'
"[Mother]: '[P]lease stop talking to me like that'
"[Father]: 'No, I will not[']
"[Mother]: '[W]hy, what I do to you' ... some loud back ground noise and commotion can be heard at this point ... 'Why you hitting me with the door ... why you hitting me with the freaking door ... that's it, I'm done.' "
When father was asked about the incident, he said that he returned home from talking with a neighbor and he may have hit mother's chair when he entered through the door. Father denied being upset or cussing. When father was later confronted with the audio of the incident, father became agitated and told the social worker that mother had taken W.W. on a bike ride at night without a helmet, which mother later admitted doing. Father also told the social worker that mother was meeting men from dating sites and giving them the address she shared with father. Father later said regarding his relationship with mother: "We are not fighting, there never was any fighting we don't even argue, we have disagreements."
Due to the domestic violence incident as well as the allegations made about mother's conduct by father, the department recommended the parents' services be terminated in their 12-month status review report dated July 18, 2019.
The court continued the 12-month review hearing.
Mother completed the CAIP on August 23, 2018, and father completed the CAIP on August 30, 2018.
In October 2018, the department discovered that during an unsupervised visit, mother discussed adoption with V.W., which caused V.W. not to be able to sleep that night. Mother had been aware adoption caused V.W. anxiety and that she should not discuss it with her.
As father continued to deny domestic violence in April 2018, he was recommended to participate in the batterer's intervention program at Marjaree Mason Center. He began participating in the program on December 28, 2018. V.W. consistently expressed worry about mother and whether mother was able to care for her and W.W. V.W.'s therapist reported that V.W.'s worry increased after the visits increased one hour and she began spending more time with father.
The department filed an "18-month status review report" again recommending reunification services be terminated and a section 366.26 hearing be set. In the 18-month status review report, the social worker wrote the department had concerns that father will continue to have anger outbursts toward mother and that mother will continue to return to the unhealthy relationship with father. The department opined that if reunification services were to be extended another six months, prognosis of reunification is poor.
At the "18-month review hearing" on January 24, 2019, father testified. He testified the incident that occurred in April was not domestic violence and that he hit mother with the door on accident. He testified he had learned from his services. Both parents testified they are no longer in a dating relationship but had spoken to each other regularly regarding the children.
In the juvenile court's ruling, it noted both parents had complied with their case plan in "the technical sense," as they have completed programs and have visited regularly but had not learned from the services. The court noted domestic violence is what brought the parties to the dependency court and had continued "at least [until] April of 2018." The court terminated reunification services as to both parents and set a section 366.26 hearing.
On May 1, 2019, father filed a section 388 petition requesting that reunification services be reinstated or the children be returned home to him. In support of his petition, father alleged he continued participating in the batterer's intervention program recommended to him by the department on December 13, 2018, had reengaged in therapy, and had been regularly having unsupervised visits with the children. Father alleged the requested order would be in the best interest of the children because he "has consistently visited with his children since their removal and have significantly bonded with the children [in] that termination of his parental rights will be very detrimental to the children."
The juvenile court denied father's petition without a hearing because it found father had not shown a change in circumstances or that the proposed change would be in the children's best interest.
The department's recommendation for a permanent plan was adoption with V.W. and W.W.'s current care providers. As of May 2, 2019, V.W.'s therapist reported symptoms of trauma that V.W. has been working on include anxiety, worry, sadness, hypervigilance, helplessness, disassociation, poor boundaries, bed wetting, exaggerated negative beliefs about herself and others, fighting, defiance, opposition behaviors, and poor concentration. V.W.'s therapist reported that V.W. speaks highly of her prospective adoptive parents but has confusion with ongoing unsupervised visits and whether or not she will move back with her parents. W.W.'s therapist reported that W.W. displays behaviors such as verbal and physical aggression, running from the care providers, and having occasional nightmares. W.W.'s treatment includes the prospective adoptive parents in collateral sessions in order to learn how to appropriately manage and redirect the behaviors to include trauma informed parenting.
In the section 366.26 report, the social worker provided an analysis of the strength and bond between the children and parents. The social worker based her conclusions on observations of two visitation sessions in April and May 2019.
In the sessions the social worker observed between the children and mother, mother appeared to take on a parenting role with the children and responded to their needs. Mother told the children she loved them and asked them for hugs and physical affection. V.W. responded to mother by telling mother she loved her too and hugging her. W.W. did not seem to mirror mother's words of affirmation or physical affection and seemed more interested in toys and the environment. At one point, mother asked V.W. to take a picture of a mark on V.W.'s arm, and V.W. responded "but I don't want to move from [care provider's] home" and asked mother why she needed a picture. Mother told V.W. she could not tell her at the time. This response triggered V.W. to become concerned about a placement change. During one session, W.W. hit mother in the face when she picked him up and wanted to run freely while screaming until the prospective adoptive father took over to redirect his behavior.
During the sessions the social worker observed between the children and father, the children were happy to see father. Father was comfortable with physical affection, but the children did not initiate physical or verbal nurturance or affection. The children played with each other and father observed, taking pictures of the children and encouraging them. The social worker noted that father did not demonstrate structure, but V.W. called him "dad" and did look to him as her parental figure. W.W. was familiar with father but appeared to base decisions off of V.W.'s cues. At one point, V.W. expressed concern to father that W.W. did not ask her for help anymore and only goes to their foster father. The social worker noted that V.W. was visibly upset and anxious and needed to be constantly reminded that she herself is a child and be provided with examples and ways to strengthen her social/emotional development. The social worker noted father did not appear to understand the underlying worry that V.W. no longer has to care for W.W. and this appeared to bother her and thus was unable to provide what she needed. The social worker also noted that father was not interactive and did not engage in participatory play with the children.
The social worker has observed the care providers take on the parental role in W.W. and V.W.'s lives. The care providers had worked on alleviating V.W.'s "parentified" behaviors. The social worker reported the children and care providers had forged a strong parent-child relationship over the 18 months the children had been placed with them. Despite the healthy parent-child relationship, V.W. referred to the care providers by their first names until April 2019, when she called the foster father "dad" on one occasion. V.W. indicated she wants to remain living in her prospective adoptive home "forever," but she is conflicted with the loyalty she has to mother and father.
Evidence for the section 366.26 hearing was heard on May 28, 2019. The department submitted on the reports. Minors' counsel argued despite V.W.'s comments regarding her anxiety over being adopted, that adoption was the best permanent plan for V.W. and W.W.
Father called the social worker who observed visits in order to assess the best permanent plan for the children. The social worker testified that W.W. knew who father was and was excited to play but appeared ambivalent toward father. When the visits ended, W.W. went to the foster parent with little distress. The social worker testified that V.W. expresses excitement and then dismisses engagement with father. The social worker testified V.W. goes to the foster parents with little distress. The social worker testified she does not believe the children's relationship with their parents is a healthy parent-child relationship. V.W. has expressed concerns of whether her parents and herself would be "okay" if she were adopted. The social worker testified that V.W. has a "parentified" relationship with mother in that she is protective and worries about mother and V.W.'s attachment to mother is either an insecure or ambivalent attachment. The social worker testified that V.W. does not have a healthy parent-child or strong secure attachment with father.
The social worker testified the children's home with their care providers is consistent, stable, and predictable. The social worker opined that before V.W. was removed from her parents' home, she was exposed to a lot of domestic violence, and was trained to learn that the world is "scary." With her current care providers, she is learning the safety of a consistent home. The social worker testified that she did not believe the ongoing parent-child relationship between the children and the parents outweighed the healthy parent-child relationship they have with the care providers or the stability and permanency that adoption would provide them.
When asked whether it would be detrimental to terminate parental rights, the social worker said that was a hard question and it would be "difficult" for V.W. in particular in the short term. The social worker said in the long term adoption is in their best interest and would not be detrimental to the children. The social worker testified she believed V.W. was resistant toward adoption because she is protective of mother. The social worker opined V.W. is worried about how mother will survive without her because V.W. has had to protect mother from father and she worries if she were to be adopted that no one would protect mother. The social worker testified she believed mother and father continued to be in a relationship with one another.
Mother testified on behalf of herself. She testified the children lived with her from birth until they were removed. She testified the children were happy and excited to see her at their last visit. She testified they played together and she read to them and V.W. wants to be near mother. Mother said V.W. appears to get upset at the end of the visits. She said W.W. also gets upset because he is in the middle of playing and does not want to stop. When it is time to say goodbye at visits, V.W. hugs and kisses mother, and W.W. runs to his care providers.
After hearing the evidence and argument, the juvenile court stated it believed the first prong of the beneficial parent-child relationship exception had been met as the parents had visited regularly and consistently with the children, but that the second prong had not been met as to W.W. as he would not derive benefit from continuing the relationship so as to outweigh the benefit he would get from being adopted. The juvenile court continued the matter so it could conduct its own research as to whether the second prong applied to V.W. The department and the children filed briefing arguing the beneficial parent-child relationship exception did not apply. Neither parent filed briefing on the issue.
At the next hearing on May 30, 2019, the juvenile court found by clear and convincing evidence that the children were adoptable. Regarding the beneficial parent-child relationship exception, the juvenile court held that the parents met the first prong of the exception as they visited regularly and consistently but that the parents have not proven by a preponderance of the evidence that the children would benefit from continuing the relationship with them and any benefit the children would derive would outweigh the permanency of adoption. The court noted W.W.'s relationship with the parents appeared to be that of a friendly visitor. The court noted the question of whether the exception applied to V.W. was more difficult. The court stated in reviewing the case file that while V.W. and her parents had a "significant relationship," there did not appear to be a healthy parent-child relationship nor, as the social worker testified, a strong secure attachment.
The court said it acknowledged that V.W. would feel some sense of loss and sadness by the termination of parental rights, but the court did not find "it rises to the level that it is so significant that its severance would be a compelling reason to forego termination of parental rights." The court stated there is "some detriment," but "in weighing that detriment against the permanency and the stability that the children would have with the permanent plan of adoption, the Court does find that the permanent plan of adoption is the appropriate permanent plan and the favored permanent plan by the legislature." The juvenile court noted that it did consider V.W.'s comments regarding adoption but found adoption was nonetheless in her best interest.
The juvenile court ordered adoption as the permanent plan for the children and terminated parental rights.
DISCUSSION
I. The Court's Summary Denial of Father's Section 388 Petition Was Not Error
Father claims the juvenile court erred by denying father an evidentiary hearing on his section 388 petition. We disagree.
A petition to modify a juvenile court order under section 388 must allege facts showing new evidence or changed circumstances exist and changing the order will serve the child's best interests. (§ 388, subd. (a)(1); In re Nolan W. (2009) 45 Cal.4th 1217, 1235.) A petitioner must make a prima facie showing of both elements to trigger an evidentiary hearing. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) " 'A "prima facie" showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited.' " (In re Josiah S. (2002) 102 Cal.App.4th 403, 418.) Courts must liberally construe a section 388 petition in favor of its sufficiency. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310 (Marilyn H.).) In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Jackson W. (2010) 184 Cal.App.4th 247, 258.)
We review the juvenile court's summary denial of father's section 388 petition for abuse of discretion. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079.) The denial must be upheld unless we can determine from the record that the juvenile court's decisions "exceeded the bounds of reason by making an arbitrary, capricious or patently absurd determination." (In re Marcelo B. (2012) 209 Cal.App.4th 635, 642 (Marcelo B.).) When two or more inferences can reasonably be deduced from the facts, we have no authority to substitute our decision for that of the juvenile court. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)
Here, father's reunification services were terminated because the juvenile court found that although he had technically participated in his services, he did not appear to learn from them as there was a domestic violence incident that took place after he had participated in several services and he continued to deny that domestic violence occurred.
In father's petition, the only change from the 18-month status review hearing was that he had completed about four more months of the batterer's intervention program he had started in December 2018. The report father attached to his petition stated father was in compliance with the program, appeared interested and committed to change, but it also stated father denied any history of domestic violence. The juvenile court concluded that father's continued participation in domestic violence services while refusing to admit any history of domestic violence did not demonstrate a change of circumstances. This conclusion was not arbitrary, capricious, or patently absurd so as to constitute an abuse of discretion.
In Marcelo B., the appellate court upheld a juvenile court's summary denial of the father's section 388 petition requesting reunification services after being bypassed, alleging he was in substance abuse treatment but had had previous extensive treatment. Like the father in Marcelo B., father had completed services designed to alleviate the issues that led to the children's removal. Father here completed anger management and the CAIP class, which addressed domestic violence issues. At the time of the April 2018 incident, father had completed anger management and half of his child abuse/domestic violence classes at Marjaree Mason Center. He had participated in therapy. Yet he continued to deny domestic violence occurred even after completing services up until the filing of his section 388 petition. His participation in four more months of domestic violence services while still maintaining he had no domestic violence issues does not constitute "changed circumstances."
Father says his case is distinguishable from Marcelo B. because the department recommended he participate in the program and he alleged the program helped him to understand the reason for the children's removal. Father also contends the program "was different from the programs he had attended before." Father provides no citation to the record or explanation of how the program was helping where other programs had failed. Father's continued denial of any history of domestic violence is fatal to his petition.
Father also alleges having no reported incidents of domestic violence between he and mother for over a year constitutes changed circumstances. However, father fails to acknowledge the April 2018 incident had taken place a year after the incident that led to the children's removal. A year without domestic violence incidents is not significant in light of the facts of this case.
We note in father's briefing he cites much from his testimony at the 18-month status review hearing; namely, he was not in a romantic relationship with mother and had turned mother away when she attempted to reunify. This testimony had already been considered by the court when it terminated reunification services. Thus, there was no change of circumstances and the court did not abuse its discretion in finding father did not make a prima facie case of changed circumstances.
Nor did the court abuse its discretion by finding father had not made a prima facie case that the request was in the children's best interests. Parent and child share a fundamental interest in reuniting up to the point at which reunification efforts cease. (In re R.H. (2009) 170 Cal.App.4th 678, 697, overruled on other grounds in John v. Superior Court (2016) 63 Cal.4th 91.) By the time of a section 366.26 hearing to select and implement a child's permanent plan, however, the interests of the parent and the child have diverged. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254.) Children have a fundamental independent interest in belonging to a family unit, and they have compelling rights to be protected from abuse and neglect and to have a placement that is stable, permanent, and allows the caretaker to make a full emotional commitment to the child. (Marilyn H., supra, 5 Cal.4th at p. 306.) Adoption gives a child the best chance at a full emotional commitment from a responsible caretaker. (In re Celine R. (2003) 31 Cal.4th 45, 53.) Therefore, after reunification efforts have terminated, the court's focus shifts from family reunification toward promoting the child's needs for permanency and stability. (Marilyn H., supra, 5 Cal.4th at p. 309.) In fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. (Id. at p. 310.) A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
In father's petition, he requested either reinstatement of reunification services or that the children be returned to him. In support of his allegation that his request was in the best interest of the children, he alleged he consistently visited and had a bond with the children. Nowhere did he allege how the children's interests in permanency and stability would be advanced by placing the children with him much less by delaying permanency in the case he was granted more services. We note: "The presumption favoring natural parents by itself does not satisfy the best interests prong of section 388." (In re Justice P. (2004) 123 Cal.App.4th 181, 192.) Father made no allegation rebutting the presumption that continued foster care was in the best interest of the child.
The juvenile court did not abuse its discretion by summarily denying father's petition. II. The Court Did Not Err by Declining to Apply the Beneficial Parent-Child Relationship Exception to Termination of Parental Rights
In its brief, the department moved to strike this section of father's appeal, alleging it exceeds the word limit for appellant's opening briefs. The department's motion is hereby denied. California Rules of Court, rule 8.412, governing juvenile appeals, specifies that rule 8.360(b) governs the length of briefs to be filed in juvenile appeals. Rule 8.360(b)(1) provides: "A brief produced on a computer must not exceed 25,500 words, including footnotes." Father's certificate of word count indicates the opening brief has 21,598 words. Father's opening brief is within the word limit set forth by the rules of court.
Father contends the juvenile court erred by declining to apply the beneficial parent-child relationship exception to the termination of parental rights. We disagree.
At a section 366.26 hearing, when the juvenile court finds by clear and convincing evidence the child is adoptable, it is generally required to terminate parental rights and order the child be placed for adoption. (§ 366.26, subd. (c)(1).) There are statutory exceptions which " 'permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.' " (In re C.B. (2010) 190 Cal.App.4th 102, 122, fn. omitted.)
One of the statutory exceptions to the general preference of termination of parental rights is the "beneficial parent-child relationship exception." Section 366.26, subdivision (c)(1) provides the court shall terminate parental rights unless "[t]he court finds a compelling reason for determining that termination would be detrimental to the child ... [¶] ... [where] [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).) It is the parent's burden to show that termination of parental rights would be detrimental to the child because of the exception to termination of parental rights and adoption. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573-574 (Autumn H.).)
" '[B]ecause a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement.' " (In re K.P. (2012) 203 Cal.App.4th 614, 621, italics added (K.P.).)
Courts differ in the standard of review for a juvenile court's failure to apply the beneficial parent-child relationship exception to termination of parental rights. The question is currently pending review in the California Supreme Court in In re Caden, supra, 34 Cal.App.5th 87, review granted. This court has applied the standard articulated in In re I.W. (2009) 180 Cal.App.4th 1517 because the question turns on a failure of proof. The question is "whether the evidence compels a finding in favor of the appellant as a matter of law." (Id. at p. 1528, italics added.) Specifically, the question is "whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' " (Ibid.) The evidence on the record before us does not compel a finding that the exception applied as a matter of law.
Some courts apply a "substantial evidence" standard (see Autumn H., supra, 27 Cal.App.4th at p. 576), some apply an "abuse of discretion" standard (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351), and yet others apply a "substantial evidence" standard to the factual determination (whether a beneficial parental relationship exists) and an "abuse of discretion" standard to the discretionary determination (whether the existence of that relationship constitutes a compelling reason for determining that termination would be detrimental to the child). (K.P., supra, 203 Cal.App.4th at p. 622.) Additionally, the proper standard of review is currently on review before the Supreme Court in In re Caden C. (2019) 34 Cal.App.5th 87, review granted July 24, 2019, S255839.
In any event, on this record, our conclusion would not be different under any of these standards. Under any of these standards of review, the practical differences between them are slight because they all give broad deference to the juvenile court's judgment. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) We should interfere only if under all the evidence viewed most favorably in support of the juvenile court's action, it finds no judge could reasonably have made the order. (Ibid.) To the extent we may draw inferences from the record, we may do so only as to those legitimate inferences upholding the decision of the trial court. (In re Laura F. (1983) 33 Cal.3d 826, 833; In re Angelia P. (1981) 28 Cal.3d 908, 924.) We view the evidence in the light most favorable to the trial court's judgment, contradicted or uncontradicted; and in assessing the evidence, appellate courts do not reweigh it. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) Where there is a conflict in the evidence, we indulge all reasonable inferences in support of the juvenile court's finding. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379; In re Joshua H. (1993) 13 Cal.App.4th 1718, 1728.)
The parties agree on appeal that mother and father maintained regular and consistent visits with the children throughout the dependency proceedings. Thus, the issue before us is whether the parents met their burden with regard to the second prong that the children would benefit from continuing the parent-child relationship. We do not find the evidence favoring the parents' position compelled the court to find the exception applied or that this is one of the extraordinary cases where this exception should have been applied.
"The 'benefit' prong of the exception requires the parent to prove his or her relationship with the child '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.' " (K.P., supra, 203 Cal.App.4th at p. 621, italics added.) "[T]he 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." (Autumn H., supra, 27 Cal.App.4th at p. 575.)
" '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.' [Citation.] Evidence that a parent has maintained ' "frequent and loving contact" is not sufficient to establish the existence of a beneficial parental relationship.' " (Marcelo B., supra, 209 Cal.App.4th at p. 643.) Rather, the preference for adoption is overcome if severing the relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. (Ibid.) "The balancing of competing considerations must be performed on a case-by-case basis and take into account many variables, including the 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 Zachary G., supra, 77 Cal.App.4th at p. 811.)
As to W.W., there is no evidence on the record he would receive any benefit that would go beyond the normal incidental benefit that results from continuing the parent-child relationship. Nor was there evidence W.W. would be greatly harmed from terminating parental rights. W.W. appeared "ambivalent" toward father and went with his care providers after visits with little to no distress. W.W. was only 20 months old at removal and had spent almost half of his life with his care providers, looked to them as parental figures, and relied on them for safety and stability. His symptoms of trauma from living with the parents decreased in the care providers' care.
As to V.W., while the court initially had more trouble determining whether the second prong applied to her, the evidence in support of applying it was not compelling. Though the evidence supported that V.W. had a more substantial relationship with her parents than W.W., the evidence shows it was not a healthy parent-child relationship. The court was not unreasonable in determining V.W. would not derive benefit from continuing a relationship that was determined to be unhealthy. According to V.W.'s therapist, V.W. was struggling with several symptoms associated with trauma, which resulted from living with her parents. These symptoms had decreased in the care providers' care. The social worker explained V.W. was learning through living with her care providers how to feel safe at home. Further, visits with her parents increased behavioral issues.
Father argues the court was compelled to find the second prong applied to the children because father showed his "devotion" to V.W. by seeking paternity of her, that his visits went well and the children enjoyed them and wanted more time with him, and the children did not call the care providers "mom" and "dad." We do not dispute father's love for the children, that they had positive visits, and we acknowledge the evidence that the children did not call the care providers "mom" and "dad" regularly. Still, none of the evidence father cites compels the juvenile court to have found the children would suffer detriment that would outweigh the stability of adoption. Based on the evidence before it, it was reasonable for the juvenile court to conclude that the parents had not met their burden of proving V.W. would benefit from continuing the relationship.
Father also argues the social worker's testimony in response to the department's counsel's question whether it would be detrimental to terminate parental rights that "it would be very hard for ... [V.W.] [in the] short-term" constituted detriment "enough to trigger the parental bond exception in this case." We disagree and decline to view the social worker's comments in a vacuum. Right after the social worker made this comment, she stated that in the long term, it was in both children's best interest to be adopted and that V.W. is consistent in her feeling that she does not want to be moved from her care providers' home. The social worker reiterated that she "[did not] think it would be detrimental" to the children if a permanent plan of adoption would be ordered for them. Further, in the context of the totality of the evidence, the "short term detriment" that could be suffered by V.W. was based on an unhealthy parent-child relationship. The social worker's testimony that V.W. would have a hard time in the short term is not the type of evidence that makes this one of the "extraordinary" cases where the exception should apply. This is especially true when this comment is examined in the context of her whole testimony that the "detriment" of short-term sadness was based on an unhealthy attachment, as well as the record as a whole. The parents did not rebut the testimony that the children did not have healthy relationships with them.
None of the cases cited by father to support his argument persuade us to reverse the court's order terminating parental rights. To the contrary, as we will explain, the cases cited by father demonstrate the type of evidence required to justify the finding that the exception applies.
Father contends In re E.T. (2018) 31 Cal.App.5th 68 (E.T.) is similar to the present case. In E.T., the appellate court reversed the juvenile court's order declining to apply the relationship exception. There, when the children were separated from their mother, they demonstrated anxiety, uncertainty, and fear. (Id. at p. 72.) During visits, the children at times expressed a wish to visit longer with her or visit her home. (Ibid.) The social worker testified that the mother provided the children with comfort and affection and addressed their fears and anxiety and that both the mother and the foster parents provide consistency in the children's lives. (Ibid.) The child welfare worker testified that following visits the children were sad and withdrawn and sometimes would act out, but that some of the behavior may have been due to separation from the mother. (Id. at p. 73.) The juvenile court found the children were " 'very tied to their mother.' " (Id. at p. 75.)
Father also cites In re S.B. (2008) 164 Cal.App.4th 289 (S.B.). In S.B., the appellate court found the juvenile court had erred by failing to apply the beneficial parent-child relationship exception where the juvenile court had found the parent and child had "an emotionally significant relationship." (Id. at p. 298.) In S.B., a bonding study was conducted wherein the clinician opined there was potential harm to S.B. were she to lose the parent-child relationship. (Id. at p. 296.) The juvenile court terminated parental rights in part because the grandparents would allow the relationship to continue. (Id. at p. 300.) The appellate court determined from the record before it that the "only reasonable inference" was the child would be greatly harmed by the loss of the relationship with her father. (Id. at pp. 300-301.) We note the same appellate court that authored the S.B. case cautioned in In re Jason J. (2009) 175 Cal.App.4th 922, 937: "The S.B. opinion must be viewed in light of its particular facts. It does not, of course, stand for the proposition that a termination order is subject to reversal whenever there is 'some measure of benefit' in continued contact between parent and child." More recently, the same court emphasized in In re C.F. (2011) 193 Cal.App.4th 549, 558-559 that the S.B. case must be "confined to its extraordinary facts. [The S.B. case] does not support the proposition a parent may establish the parent-child beneficial relationship exception by merely showing the child derives some measure of benefit from maintaining parental contact."
Father also contends his case is like In re Scott B. (2010) 188 Cal.App.4th 452 (Scott B.). In Scott B., the minor was nine years old when he was placed in foster care and 11 years old when his mother's parental rights were terminated. He had lived with his mother his whole life before removal. (Id. at p. 471.) The minor child suffered from attention deficit hyperactivity disorder and autism, needed special education services, had behavior problems at school, had problems interacting with his peers, and had bladder control issues. (Id. at pp. 455-456.) The child stated that if his foster parent adopted him, he would run away because he wanted to live with his mother. (Id. at p. 466.) There, the child's court appointed special advocate repeatedly stated in her reports that the mother and the child have a very close relationship and it would be detrimental to the child for the relationship to be disrupted. The child had emotional instability and repeatedly insisted that his preference would be to live with the mother. (Id. at p. 471.) The appellate court held these reasons were compelling to find that termination of parental rights was detrimental to the child. (Ibid.) When the child learned he might be adopted, his behavior regressed to growling and biting. (Id. at p. 458.) He was adamant at the section 366.26 hearing that he no longer wished to be adopted. (Id. at p. 464.)
Unlike the facts in E.T., S.B., and Scott B., the parents presented no bonding study or other evidence to show what detriment would be suffered by V.W. and W.W. if the parent-child relationship were terminated. Further, in comparing the present case to Scott B., father ignores the great factual distinctions. V.W. and W.W. did not have special needs, for which they derived special comfort from their parents. They were very young when removed. The evidence that V.W. or W.W. would suffer detriment if their relationship with their parents was severed was weak. Though V.W. expressed worry about being adopted, it was based on an unhealthy relationship with her mother rather than one where she derived comfort like the child in Scott B.
We find no error.
III. Compliance with ICWA Notice and Inquiry
A. ICWA Proceedings
On May 5, 2017, father executed an ICWA-020 form where he alleged that his great-grandparents on his father's side were members of Creek and Cherokee tribes and were from South Carolina.
On May 5, 2017, the court asked father on the record if he knew the name of his great-grandfather, and father said he did not know and never got to meet him. The court asked father if he knew the last name of his great-grandparents. Father responded that he knew his paternal grandmother had the family's last name changed from a "b-y" ending to a "b-e-e" ending. Father said he got that information from his uncle. The social worker indicated to the court that it would be providing the information to the BIA.
The notice prepared by the department listed father's name, address, and date of birth, and that he was affiliated with Alabama-Quassarte Tribal Town, Cherokee Nation, Eastern Band of Cherokee Indians, Kialegee Tribal Town, Muscogee (Creek) Nation of OK, Poarch Band of Creek Indians, Thlopthlocco Tribal Town, and the United Keetoowah Band of Cherokee. It listed father's mother's name and date of birth and indicated she did not have Native American ancestry. It listed father's father's name, date of birth, date of death, and the same tribes listed for father. For father's grandparents, the form stated, "no information available." The space for "Other relative information (e.g., aunts, uncles, siblings, first and second cousins, stepparents, etc.)" was blank. The alternate spelling of father's last name was not listed anywhere in the notice.
The department sent the notice to the tribes listed for father and father's father. Alabama-Quassarte Tribal Town, Cherokee Nation, Eastern Band of Cherokee Indians, Kialegee Tribal Town, Muscogee (Creek) Nation of OK, Poarch Band of Creek Indians, Thlopthlocco Tribal Town, and the United Keetoowah Band of Cherokee Indians in Oklahoma responded that W.W. was not eligible for membership based on the information provided.
At the time notice was sent, father was not yet the presumed father of V.W.
On October 13, 2017, the department filed a motion to declare ICWA inapplicable to the case. On October 24, 2017, the juvenile court granted the department's motion and declared ICWA not applicable to the proceedings.
Though father did not file a timely appeal to address this determination, because the juvenile court has a "continuing duty to inquire whether [a child is] an Indian child in all dependency proceedings, including a proceeding to terminate parental rights" (In re Isaiah W. (2016) 1 Cal.5th 1, 10), we broadly construe father's brief as challenging "the juvenile court's finding of ICWA's inapplicability underlying the ... order terminating [his] parental rights." (Ibid.; see In re J.L. (2017) 10 Cal.App.5th 913, 917, fn 4.)
B. Analysis
Father contends the juvenile court's finding that ICWA did not apply was error because it was based on inadequate inquiry and notice by the department. In particular, father contends the department's failure to inquire for more information regarding father's grandparents and great-grandparents and provide the alternative spelling of his family name resulted in inadequate notice to the tribes. We agree.
Congress enacted ICWA to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and the placement of such children in foster or adoptive homes that will reflect the unique values of Indian culture. (In re C.Y. (2012) 208 Cal.App.4th 34, 39.) An "Indian child" as defined by ICWA is "either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C. § 1903(4).) The minimum federal standards set forth in ICWA are codified by California law in sections 224 et seq.
If there is reason to know that the child is an Indian child under ICWA, the party seeking foster care placement shall provide notice to the child's tribe. Notice shall include the name, date of birth and place of birth of the Indian child, and the name of the Indian tribe in which the child is a member or may be eligible for membership. The notice shall also include all known names 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, dates of birth, places of birth and dates of death, tribal enrollment information for other direct lineal ancestors of the child, and any other identifying information. (§§ 224.2, subd. (f), 224.3, subd. (a)(5).)
Section 224.2 provides that "[i]f the court [or] social worker ... has reason to believe that an Indian child is involved in a proceeding, the court [or] social worker ... shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable." (§ 224.2, subd. (e).) The code section includes a nonexhaustive list of what further inquiry may include: "[i]nterviewing the parents, Indian custodian, and extended family members to gather the information required in [section 224.3, subdivision (a)(5)]"; "[c]ontacting the [BIA] and the State Department of Social Services for assistance in identifying the names and contact information of the tribes in which the child may be a member, or eligible for membership in, and contacting the tribes and any other person that may reasonably be expected to have information regarding the child's membership status or eligibility"; "[c]ontacting the tribe or tribes and any other person that may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility. Contact with a tribe shall, at a minimum, include telephone, facsimile, or electronic mail contact to each tribe's designated agent for receipt of notices under [ICWA]. Contact with a tribe shall include sharing information identified by the tribe as necessary for the tribe to make a membership or eligibility determination, as well as information on the current status of the child and the case." (§ 224.2, subd. (e)(1), (2) & (3).)
"The juvenile court must determine whether proper notice was given under ICWA and whether ICWA applies to the proceedings. [Citation.] [¶] We review the trial court's findings for substantial evidence. [Citation.] ' "On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order." ' " (In re Charlotte V. (2016) 6 Cal.App.5th 51, 57.)
Here, father claimed his great-grandparents were members of Indian tribes. This gave the department and the court reason to believe the children were Indian children, and thus they had a duty to make further inquiry as to whether the children were in fact Indian children.
In our view, there are two errors. First, the department fell short of its duty by failing to provide the tribes with the alternate spelling of father's family name. Respondent contends a misspelling contained in an ICWA notice is not prejudicial by citing In re D.W. (2011) 193 Cal.App.4th 413, 418 (D.W.). We do not find D.W. apposite. In D.W., the department sent notice to the appropriate tribe with a misspelling of the grandmother's first name. In finding no prejudice, the appellate court noted that the father "ha[d] not shown that the inclusion of a misspelled first name could thwart a search that utilized the grandmother's correct last name, former last names, current address, and date of birth. Had a tribe determined that a person who matched all of those criteria, but who had a slightly different first name, been a member of the tribe or eligible for membership, surely the tribe would have said so." (D.W., at p. 418.) Unlike D.W., the error here was an alternate last name. We decline to presume the tribe would be able to do a proper search without the correct spelling of the last name.
The other error is that the department was required to obtain father's grandparents' and the children's great-grandparents' information pursuant to section 224.3, subdivision (a)(5). Here, there is no evidence the department made a sufficient effort to obtain the required information.
Respondent urges us to apply the Evidence Code section 664 presumption that the "official duty has been regularly performed." Recent case law, however, has recognized the "unique situation" presented by ICWA and has reversed findings that ICWA applies in the absence of departments' documentation of inquiry. Though no statute requires the department to document its inquiry, these cases have recognized an exception to the "general" rule requiring an appellant to produce an adequate record demonstrating reversible error because of the unique situation presented by ICWA. (See, e.g., In re K.R. (2018) 20 Cal.App.5th 701, 708-709; In re Elizabeth M. (2018) 19 Cal.App.5th 768, 786-788; In re N.G. (2018) 27 Cal.App.5th 474, 484-485.) We also note the California Supreme Court has emphasized it is preferable to err on the side of giving notice and to examine thoroughly whether the minor may be an Indian child. (See In re Isaiah W., supra, 1 Cal.5th at p. 15.)
Under the facts of this case, we conclude that inquiry/notice was deficient as neither the alternate spelling of father's family name nor the names of father's grandparents were provided to the tribes. Because the alternate spelling was known to the department and not provided to the tribes, we decline to apply the Evidence Code section 664 presumption that the department made a proper investigation into the information of father's grandparents. We note father had indicated his uncle had some information about family history. Absent a record that the department questioned the uncle or extended family members regarding the required information, we cannot find inquiry proper on this record.
For these reasons, we conclude the juvenile court's finding that ICWA was inapplicable is not supported by substantial evidence, and the matter must be remanded for proper inquiry and notice in compliance with ICWA.
DISPOSITION
The order terminating parental rights is conditionally reversed. The matter is remanded to the juvenile court with directions to comply with the inquiry and notice provisions of ICWA and sections 224.2 and 224.3. On remand, the court must take reasonable steps to ensure the department fully investigates the available information regarding father's grandparents and great-grandparents, and give new ICWA notices to the appropriate tribes and the BIA with the newly obtained information, if available. If, after proper investigation, no further information can be obtained, the court shall ensure proper notice is given to the tribes and the BIA with the alternate spelling of father's last name. If upon sufficient compliance with the notice requirements of ICWA the court again finds that ICWA does not apply, the court may reinstate its prior order terminating parental rights.
In all other respects, the juvenile court's orders are affirmed.
/s/_________
DE SANTOS, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
PEÑA, J.