Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Los Angeles County, No. CK67239, Anthony Trendacosta, Commissioner (pursuant to Cal. Const., art. I, § 21). Reversed and remanded with directions.
Roland Koncan, under appointment by the Court of Appeal, for Objector and Appellant.
Office of the County Counsel, James M. Owens, Assistant County Counsel, Byron G. Shibata, Senior Associate County Counsel, for Plaintiff and Respondent.
Mosk, J.
INTRODUCTION
M.A. (mother), mother of three-year-old A.W., appeals from the juvenile court’s order terminating her parental rights under Welfare and Institutions Code section 366.26. Mother contends that the juvenile court and Department of Children and Family Services (Department) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA or Act) (25 U.S.C. § 1901, et seq.) and the juvenile court erred in failing to find the parental visitation exception to the termination of parent rights under section 366.26, subdivision (c)(1)(B)(i) (section 366.26(c)(1)(B)(i)). Because the Department did not comply with the ICWA’s notice requirements, we conditionally reverse the order terminating mother’s parental rights and remand this case with directions to the juvenile court to ensure full compliance with the ICWA.
All statutory citations are to the Welfare and Institutions Code unless otherwise noted.
BACKGROUND
On March 6, 2007, the Department filed a petition under section 300 alleging that then four-month-old A.W. came within the jurisdiction of the juvenile court because then 15-year-old (now 18-year-old) mother currently was using marijuana, and mother had been under the influence of illicit drugs in A.W.’s home and in A.W.’s presence. The petition further alleged that mother had transported A.W. in a stolen vehicle, mother failed to properly secure A.W.’s car safety seat to the vehicle, and the stolen vehicle in which mother and A.W. were passengers contained marijuana and a drug pipe under A.W.’s car safety seat. A.W. was placed in foster care.
M.W., A.W.’s now 18-year-old alleged father, is not a party to this appeal.
The Department’s March 6, 2007, Detention Report states that mother denied knowing that the vehicle was stolen or that there was marijuana and a pipe in the vehicle. Mother stated that the police planted those items. The report states that mother “was booked for 273(a)(b) PC” and released to her parents’ custody. Mother admitted that she had used marijuana in the past, but stated that it was “some time” ago. According to the report, mother lived with her parents – maternal grandmother H.C. (grandmother) and maternal grandfather T.P. On December 13, 2006, mother returned home under the influence of marijuana and wanted to care for A.W. Grandmother explained to mother that she would not permit mother to handle and care for A.W. while mother was under the influence of marijuana. Mother and grandmother argued, and grandmother called the police for assistance. The following month, the police again went to mother’s home due to a physical altercation between mother and grandmother.
The juvenile court found a prima facie case for detaining A.W. The juvenile court ordered A.W. detained and placed her in the temporary custody of the Department. The juvenile court ordered the Department to provide mother with family reunification services. Mother was permitted monitored visits at least three times a week.
Mother filed a Parental Notification of Indian Status, in which she stated that she might have Indian ancestry on her mother’s side. Mother identified the Choctaw tribe as a possible source of such ancestry. At the detention hearing, the juvenile court inquired of grandmother if she had additional information concerning A.W.’s possible Indian ancestry. Grandmother stated that her grandmother, Mandy Carroll, A.W.’s maternal great-great grandmother, was “full-blooded Choctaw.” The juvenile court ordered the Department to give notice of the dependency proceeding to the Choctaw tribe and the Bureau of Indian Affairs (BIA).
The Department sent a Notice of Involuntary Child Custody Proceedings for an Indian Child to the BIA, three Cherokee tribes, and three Choctaw tribes. In its notice, with respect to mother’s side of the family, the Department identified by name mother, grandmother and grandfather, and great grandmother and great grandfather. The notice did not provide any information about Mandy Carroll, A.W.’s great-great grandmother.
A number of Indian tribes responded to the Department’s notice, all stating that A.W. was not enrolled with or eligible for enrollment with the tribes. At the April 19, 2007, pretrial resolution conference, the juvenile court stated, “the Department did notice the Bureau and the various tribes. I have the response cards from some responses. It does not appear to the court at this particular point that there’s any reason to believe that the Indian Child Welfare Act is involved.”
The Department’s April 19, 2007, Jurisdiction/Disposition Report states that A.W. had been placed with M.G., a maternal cousin.” Mother’s substance abuse “problems” remained unresolved, and mother had not enrolled in a treatment program or submitted to testing. Since A.W.’s detention, mother had run away from home. Mother had not completed high school and was not attending school. As of April 6, 2007, mother had not visited A.W., having chosen not to do so, and was unable to explain why she had not visited. Mother was reported to be on probation.
M.G. is grandmother’s first cousin. Noting this relationship, the Department’s reports identify M.G. as a “non-relative extended family member.”
The Department’s May 29, 2007, Interim Review Report that that the social worker spoke with mother’s probation officer who stated that mother was not, at that time, on formal probation. The Department’s June 5, 2008, Status Review Report states that mother was on probation from six months to three years. A letter from a probation officer dated October 20, 2008, states that mother was on a “home on probation” order since April 30, 2007.
According to the Department’s May 29, 2007, Interim Review Report, mother tested positive for marijuana in April 2007, and for methamphetamine in May 2007. The report states that mother had made no progress in alleviating her drug problem and appeared to “have some ambivalence about having her son returned to her care.” Grandmother reportedly had been attending counseling sessions with mother, motivated by the former’s desire to provide a home for A.W. The report states the social worker could not, however, recommend A.W.’s placement in grandmother’s home as long as mother was in the home and using drugs.
On June 7, 2007, the juvenile court sustained an amended petition and declared A.W. to be a dependent child of the court. The juvenile court ordered the Department to provide mother and A.W. with family reunification services. Mother was to participate in counseling that included parenting, drug counseling, and random drug testing.
On June 14, 2007, mother was detained by the Los Angeles County Juvenile Probation Department for failing to comply with the established probation court orders. Mother was held at a juvenile facility until her release on July 5, 2007. Mother requested the social worker assist her in receiving in-patient drug treatment, and mother was accepted in a program, but stopped participating on September 27, 2007, the day after she tested positive for amphetamines.
The Department’s July 19, 2007, Interim Review Report states that M.G. was providing A.W. with appropriate care. A.W. appeared to be reaching all of her developmental milestones. Mother reportedly tested positive for marijuana on May 4, 2007, May 17, 2007, May 25, 2007, May 31, 2007, and June 8, 2007. Mother reportedly tested positive for amphetamine and methamphetamine on May 5, 2007.
The Department’s December 6, 2007, Status Review Report states that mother had been partially compliant with family reunification services case plan objectives. However, mother still was not participating in drug counseling and had not remained drug free. Mother had been expelled from her charter school for fighting and failing to comply with school rules and had enrolled in another charter school. The report states that mother continued to receive weekly monitored visits with A.W. All visitation continued to be appropriate and mother continued to work on building a nurturing relationship with A.W. M.G. or grandmother monitored all visits. A.W. appeared to have normal interaction with mother. A.W. accepted food from mother and appeared to be comfortable when mother held her. A.W. did not display “abnormal behavioral issues” when mother’s visits ended.
According to the report, when a social worker asked mother about her goals in life and plans for A.W., mother responded, “I don’t know.” The report states that mother did not appear to be ready to handle the responsibility of raising A.W. if A.W. was returned home. Grandmother reportedly informed the social worker that she was willing to adopt A.W. or become her legal guardian if reunification failed. M.G. also informed the social worker that she was willing to become A.W.’s legal guardian.
The Department’s June 5, 2008, Status Review Report states that according to mother’s probation officer mother was doing well in complying with her probation. The probation officer stated he might soon recommend that mother’s probation be terminated. In an Information for Court Officer dated June 5, 2008, the Department informed the juvenile court that mother tested positive for methamphetamine.
The report states that A.W.’s placement remained appropriate. M.G. was providing for A.W.’s basic necessities by providing food, shelter, clothing, and medical care as needed. A.W. appeared to have a “close bond” with M.G. as evidenced by how A.W. would cling to M.G. when the social worker visited. Mother was reported to have been in full compliance with the juvenile court’s order that she participate in a parenting class, and partial compliance with the order that she participate in individual counseling and drug counseling with random drug testing. Mother reported that she had been diagnosed as “bi-polar” and was taking the psychotropic medications Abilify and Trazadone. Mother’s attitude towards testing reportedly had changed, apparently for the better. In 2008 – up to May 5 – mother took four drug tests and failed to appear for four drug tests. All the tests she took were negative.
Mother failed to appear for a fifth drug test during the same period because she was in custody.
Mother reportedly had been visiting A.W. weekly. Grandmother monitored the visits. A social worker monitored two of the visits and reported that A.W. was bonded with mother. A.W. cried when mother attempted to leave her presence and reached out for mother to pick her up. Mother reportedly was appropriate and attentive to A.W. during the visits.
The case plan goal for A.W. continued to be a return to mother’s home. If reunification failed, grandmother was willing to adopt A.W. or become A.W.’s legal guardian .M.G. informed the social worker that she too was willing to adopt A.W. An adoption assessment determined that A.W. is adoptable.
According to the Department’s September 4, 2008, Status Review Report, A.W. remained placed with M.G. M.G. continued to take good care of A.W., and A.W. continued to thrive in her placement and to meet her “milestones.” A.W. was described as always well groomed and appropriately dressed. Mother had weekly visits with A.W., with grandmother serving as the monitor. Mother was appropriate and attentive to A.W. during these visits.
The report states that mother had not been taking her psychotropic medications because she had run out of them. Mother had completed a 60-day drug-treatment program for which she received a certificate, but tested positive for methamphetamine during the last week of the program. Mother left that program and enrolled in another program, but mother’s attendance was sporadic, and she was ultimately discharged from the program for non-attendance. The report concludes that mother had failed at several attempts to rehabilitate herself.
The report states that mother had not complied with all of the conditions of the juvenile court’s orders. She had not demonstrated the ability or interest to assume the care and custody of A.W. The Department recommended that the juvenile court terminate family reunification services to mother and order the Department to provide permanent placement services to A.W.
The Department’s October 23, 2008, Interim Review Report states that on September 11, 2008, mother failed to appear for a drug test; on September 24, 2008, mother claimed that she could not take a drug test due to medical reasons; and on September 25, 2008, and again October 6, 2008, mother tested positive for methamphetamine. On October 21, 2008, mother’s probation officer informed her social worker that mother had been drug testing for the probation department, and those tests had been negative. The report recommended that the juvenile court terminate family reunification services for mother and set a hearing under section 366.26 for the termination of parental rights to A.W. At the October 23, 2008, hearing, the juvenile court terminated family reunification services for mother and set the matter for a section 366.26 hearing on February 19, 2009.
The Department’s February 19, 2009, Section 366.26 Report reviewed prior reports’ assessment of mother’s visitation with A.W. and did not provide new information about the nature of mother’s visits. The report states that mother had five to seven visits with A.W. per month and 20 to 25 visits in the last six months. The character of the visits was described as “appropriate.”
The report states that it is highly likely that A.W. will be adopted if parental rights are terminated. A.W. was reported to be doing well in the care of the prospective adoptive parent (M.G.) and the home study for M.G. was approved on September 10, 2008.
The report states that A.W. called M.G. “mommy” and was affectionate with M.G. A.W. appeared to be bonded to M.G. and M.G.’s two children. M.G. reportedly did not want to pursue a kinship agreement at the time, but was willing to maintain contact with mother and grandmother.
On February 19, 2009, mother requested a contested section 366.26 hearing. The juvenile court set the matter for April 23, 2009. The Department’s April 23, 2009, Status Review Report states that M.G. continued to provide A.W. with the basic necessity such as food, shelter, clothing, and medical care as needed. The social worker observed A.W. to be properly dressed and neatly groomed. M.G. had many toys for A.W. and appeared to be anxious to adopt her. A.W. appeared to be happy and thriving in her placement with M.G.
The April 23, 2009, report also states that the juvenile court had ordered monitored visits for mother in June 2007, that grandmother served as the monitor, and that mother’s failure to comply with the juvenile court’s orders and her positive drug tests prevented her from having unmonitored visits. The social worker observed mother with A.W. on a few occasions during this case and believed that mother always behaved appropriately with A.W. According to M.G., mother’s visits from September 2008 to December 2008 were sporadic.
Beginning in January 2009, mother had weekend monitored visits with A.W. Grandmother picked up A.W. every Saturday and returned her on Sunday. M.G. did not have any “incidences” to report, but stated that mother did not call A.W. during the week to see how A.W. was doing and did not buy A.W. Christmas or birthday gifts.
At the April 23, 2009, contested section 366.26 hearing, grandmother estimated that mother had about 50 visits in the prior six months, or approximately three to four visits per week. Grandmother also estimated that mother had approximately three to four overnight visits per month. Mother primarily cared for A.W. during these visits. Mother bathed, fed, dressed, and played with A.W. during the visits. A.W.’s toys and dress-up clothes remained at grandmother’s home when A.W. was not there.
According to grandmother, if A.W. woke up in the middle of the night, mother took care of her. Concerning mother’s relationship with A.W. grandmother observed, “They’re really good together. They have a bond together.” Grandmother knew that mother and A.W. were bonded because when she and mother picked up A.W. for visits, A.W. would be really happy and excited. A.W. would run to mother, call her mom, and hug her. At the end of visits, A.W. sometimes would cry when she was returned to M.G.’s care. Mother or grandmother would care for A.W. when she was sick.
Mother testified about her activities with A.W. during their visits. Mother testified that she and A.W. would play, bake, and sing together. Mother changed A.W.’s pull-ups, dressed A.W., and bathed her. When mother had to discipline A.W., she “put her in timeout.” Later, mother would determine whether A.W. had calmed down and then would talk to her.
When A.W. saw mother at the beginning of visits, she would run to mother, say “mommy,” and have mother pick her up. At the end of visits, A.W. usually became sad and sometimes cried. For Christmas, mother testified, “usually we buy clothes and toys.” In the prior year, mother bought A.W. gifts for Christmas and her birthday.
The juvenile court took the matter under submission and, on May 12, 2009, issued a written decision. The juvenile court terminated mother’s parental rights. In rejecting mother’s argument that the parental visitation exception applied, the juvenile court ruled that mother had failed to meet her burden of showing that there is “compelling evidence of a beneficial relationship.” The juvenile court stated that A.W. had lived with mother for about four and a half months – from her birth in October 2006 until her detention in March 2007. Since her detention, A.W. had lived with M.G. Mother visited A.W. regularly, including overnight visits, but the visits were always monitored by grandmother.
The juvenile court then contrasted A.W.’s relationship with mother with her relationship with M.G. The juvenile court found that although mother had presented “some evidence” that demonstrated that she was more than a “friendly visitor” to A.W., no evidence had been presented of A.W.’s attachment to mother. The juvenile court observed that although mother appeared to have “tended” to A.W. during visits, all visits occurred in the presence of grandmother and under her supervision.
M.G., on the other hand, had cared for A.W. on a day-to-day basis since A.W. was about five months old. M.G. was involved in all aspects of A.W.’s life, including toilet training. According to the reports, A.W. was developing as a healthy and well adjusted child, “which is a testament to the quality of care provided by the prospective adoptive parent.” Mother’s showing, the juvenile court concluded, was insufficient to meet the high standard for the “beneficial relationship exception” to apply. A.W. was found to be “clearly adoptable,” and the court terminated parental rights and freed the child for adoption.
DISCUSSION
I. ICWA Compliance
Mother contends that the Department failed to comply with the notice requirements of the ICWA as to A.W.’s maternal great-great grandmother, and the juvenile court failed to make a finding about whether the ICWA applied. The Department concedes that it did not provide the notice required by the ICWA. The parties agree that if proper notice was not given, we should at least conditionally reverse the order terminating mother’s parental rights and remand for compliance with the ICWA as set forth below, although mother believes that the order terminating parental rights should be reversed for other reasons.
“In 1978, Congress passed the Act, which is designed to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children ‘in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.’” (In re Marinna J. (2001) 90 Cal.App.4th 731, 734, quoting 25 U.S.C. § 1902.) The Act “sets forth the manner in which a tribe may obtain jurisdiction over proceedings involving the custody of an Indian child, and the manner in which a tribe may intervene in state court proceedings involving child custody. When the dependency court has reason to believe a child is an Indian child within the meaning of the Act, notice on a prescribed form must be given to the proper tribe or to the Bureau of Indian Affairs, and the notice must be sent by registered mail, return receipt requested.” (In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906, citing In re C.D. (2003) 110 Cal.App.4th 214, 222; In re Asia L. (2003) 107 Cal.App.4th 498, 506; 25 U.S.C. § 1912(a).)
“The purpose of the ICWA notice provisions is to enable the tribe or the BIA to investigate and determine whether the child is in fact an Indian child. [Citation.] Notice given under ICWA must therefore contain enough information to permit the tribe to conduct a meaningful review of its records to determine the child’s eligibility for membership.” (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576.)
“To satisfy the notice provisions of the Act and to provide a proper record for the juvenile court and appellate courts, DSS [the social services agency] should follow a two-step procedure. First, it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. ([Former Cal. Rules of Court,] [r]ule 1439(f).) Second, [the agency] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor’s status. If the identity or location of the tribe cannot be determined, the same procedure should be used with respect to the notice to BIA.” (In re Marinna J., supra, 90 Cal.App.4th at pp. 739-740, fn. 4.) “The burden is on the Agency to obtain all possible information about the minor’s potential Indian background and provide that information to the relevant tribe or, if the tribe is unknown, to the BIA.” (In re Louis S. (2004) 117 Cal.App.4th 622, 630.) If proper notice under the Act is not given, the Indian child, the child’s parent or Indian custodian, or the child’s tribe may petition the court to invalidate the proceeding. (25 U.S.C. § 1914.)
In her Parental Notification of Indian Status, mother stated that she might have Indian ancestry on her mother’s side, identifying the Choctaw tribe as a possible source of such ancestry. At the detention hearing, the juvenile court inquired of H.C., maternal grandmother, if she had additional information concerning A.W.’s possible Indian ancestry. Grandmother stated that her grandmother, Mandy Carroll, A.W.’s maternal great-great grandmother, was “full-blooded Choctaw.” The juvenile court ordered the Department to give notice of the dependency proceeding to the Choctaw tribe and the BIA.
The Department sent a Notice of Involuntary Child Custody Proceedings for an Indian Child to the BIA, three Cherokee tribes, and three Choctaw tribes. In its notice, with respect to mother’s side of the family, the Department identified by name mother, grandmother and grandfather, and great grandmother and great grandfather. The notice did not provide any information about Mandy Carroll.
By failing to include A.W.’s maternal great-great grandmother in its notices to the BIA and Indian tribes – specifically the requirement to provide all possible information about the minor’s potential Indian background – the Department failed to comply with the ICWA’s notice provisions. We conditionally reverse the order terminating mother’s parental rights so that there can be compliance with the Act. (See In re Francisco W. (2006) 139 Cal.App.4th 695, 705-706; In re Marinna J., supra, 90 Cal.App.4th at p. 740; In re J.N. (2006) 138 Cal.App.4th 450, 461-462.)
II. The Parental Visitation Exception To The Termination Of Parental Rights
Mother contends that the juvenile court erred in failing to find the parental visitation exception to the termination of parent rights under section 366.26(c)(1)(B)(i). The juvenile court did not err.
A. Standard of Review
Some courts have held that challenges on appeal to a juvenile court’s determination under section 366.26(c)(1)(B)(i) (formerly section 366.26, subdivision (c)(1)(A)) are governed by a substantial evidence standard of review. (See, e.g., In re Autumn H. (1994) 27 Cal.App.4th 567, 576; In re Casey D. (1999) 70 Cal.App.4th 38, 52-53 & fn. 4.) Under a substantial evidence standard of review “‘“the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,” to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court.’ [Citation.]” (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, abrogated on other grounds as stated in DeBerard Properties, Ltd. v. Lim (1999) 20 Cal.4th 659, 668.) We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.)
Section 366.26, subdivision (c)(1)(A) was renumbered 366.26(c)(1)(B)(i) effective January 1, 2008. (Stats.2006, ch. 838, § 52.)
Other courts have applied an abuse of discretion standard of review. (See, e.g., In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351; In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) Under an abuse of discretion standard of review, we will not disturb the juvenile court's decision unless the juvenile court exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) In this case, we need not decide whether a juvenile court’s ruling on the section 366.26(c)(1)(B)(i) exception is reviewed for substantial evidence or abuse of discretion, because, under either standard we affirm the juvenile court’s decision.
B. The Parental Visitation Exception
Once a juvenile court finds that a child is likely to be adopted after removing the child from parental custody and has terminated reunification services, parental rights may be terminated unless the court finds a compelling reason for determining that doing so would be detrimental to the child under certain exceptions set forth in section 366.26, section (c)(1). (In re Celine R. (2003) 31 Cal.4th 45, 52-54.) “The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.” (Id. at p. 53; In re Jasmine D., supra, 78 Cal.App.4th at p. 1350 [“Because 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.”].)
The parental visitation exception in section 366.26(c)(1)(B)(i) provides that parental rights will not be terminated and a child freed for adoption if the parent has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (Italics added.) Application of the parental visitation exception consists of a two-prong analysis. (In re Aaliyah R., supra, 136 Cal.App.4th at pp. 449-450.) The first is whether there has been regular visitation and contact between the parent and child. (Id. at p. 450.) The second is whether there is a sufficiently strong bond between the parent and child that the child would suffer detriment from its termination. (Ibid.) The parent/child relationship must promote “the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)
The visitation exception does not apply when a parent fails to occupy a parental role in his or her child’s life. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Casey D., supra, 70 Cal.App.4th at p. 51 [parents who have essentially never had custody of children or advanced beyond supervised visitation will have a difficult time establishing the former section 366.26(c)(1)(A) exception].) “[T]o establish the exception in section 366.26, subdivision (c)(1)(A), the parents must do more than demonstrate ‘frequent and loving contact’ [citation], an emotional bond with the child, or that the parents and child find their visits pleasant. [Citation.]” (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) A relationship sufficient to support the visitation exception “aris[es] from day-to-day interaction, companionship and shared experiences.” (In re Casey D., supra, 70 Cal.App.4th at p. 51.) Whether the exception applies is determined “on a case-by-case basis, taking into account the many variables which affect a parent/child bond. 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 are some of the variables which logically affect a parent/child bond.” (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
Parents bear the burden of establishing that the visitation exception to termination of parental rights applies. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) A parent must show that he or she has maintained regular visitation and contact with the child and that a benefit to the child from continuing the relationship would result. (In re Amanda D. (1997) 55 Cal.App.4th 813, 821.)
At the section 366.26 hearing, in a discussion apparently concerning the parental visitation exception to the termination of parental rights, mother’s attorney argued that the exception applied. The attorney for the Department, joined by the attorney for A.W., argued that the exception did not apply. The juvenile court ruled that the exception did not apply.
There is substantial evidence to support the juvenile court’s conclusion that mother failed to meet her burden of establishing that the parental visitation exception to the termination of her parental rights applies. (In re Zachary G., supra, 77 Cal.App.4th at p. 809.) A juvenile court may choose an option other than adoption only in “exceptional” circumstances. (In re Celine R., supra, 31 Cal.4th at p. 53; In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) The evidence before the juvenile court did not demonstrate such exceptional circumstances.
A.W. was described in the Department’s reports as being bonded with M.G. and her two children. A.W. appeared to be happy and thriving in her placement with M.G., with whom she had lived almost her entire life. A.W. was affectionate with M.G. and called her “mommy.” A.W. lived with mother only briefly after her birth and, although mother visited with A.W. regularly, the visits never advanced beyond supervised visitation. (In re Casey D., supra, 70 Cal.App.4th at p. 51.) Moreover, although mother was appropriate in her visits with A.W., and A.W. and mother appeared bonded, to establish the parental visitation exception, a parent “must do more than demonstrate ‘frequent and loving contact’ [citation], an emotional bond with the child, or that the parent[] and child find their visits pleasant. [Citation.]” (In re Andrea R., supra, 75 Cal.App.4th at p. 1108.) Accordingly, mother failed to show that severing her relationship with A.W. would deprive A.W. of a substantial, positive emotional attachment such that A.W. would be greatly harmed. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Dakota H., supra, 132 Cal.App.4th at p. 229.) Because there is sufficient evidence to support the juvenile court’s determination that mother failed to satisfy the second prong of the two-prong section 366.26(c)(1)(B)(i) parental visitation exception, mother’s contention that the juvenile court erred in failing to apply that exception fails. (See In re Aaliyah R., supra, 136 Cal.App.4th at pp. 449-450.)
DISPOSITION
The order terminating mother’s parental rights is conditionally reversed. The matter is remanded to the juvenile court for the limited purpose of providing notice to the BIA and Indian tribes concerning A.W.’s potential status as an Indian child. (25 U.S.C. § 1912; Cal. Rules of Court, rule 5.481(b).) Such notice is to include identifying information for A.W.’s maternal great-great grandmother, Mandy Carroll. The Department shall document its efforts to provide such notice by filing such notices and any and all responses received with the juvenile court. If the BIA or any tribe responds by confirming that A.W. is or may be eligible for Indian tribal membership, the juvenile court shall proceed pursuant to the ICWA. If there is no confirmation from the BIA or any Indian tribe that A.W. is or may be eligible for Indian tribal membership, or if any Indian tribe to which A.W. is or may be eligible for membership affirmatively elects not to intervene in this matter, then the juvenile court shall reinstate the order terminating mother’s parental rights as to A.W., and may proceed accordingly.
We concur: TURNER, P. J., ARMSTRONG, J.