Opinion
NOT TO BE PUBLISHED
APPEALS from an order of the Superior Court of San Diego County No. EJ2547D, Gary M. Bubis, Commissioner.
McCONNELL, P. J.
Jessica T. and David H. appeal an order terminating their parental rights to their son, Jay H. Jessica asserts the court prejudicially erred by not addressing her Welfare and Institutions Code section 388 petition before it held the section 366.26 hearing. Both parents contend the court erred by not applying the exception to adoption of section 366.26, subdivision (c)(1)(A). In addition, they maintain the court erred by finding the Indian Child Welfare Act (ICWA) did not apply, and each parent joins the other's arguments. We reverse and remand to allow compliance with the ICWA.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
On February 23, 2005, the San Diego County Health and Human Services Agency (the Agency) petitioned under section 300, subdivision (b) on behalf of four-month-old Jay, alleging Jessica was not feeding him properly or providing adequate care or treatment for his severe ear infections with perforated eardrums, and he was diagnosed as failing to thrive and had delayed neurological development. The petition further alleged Jessica was not providing him with a safe home, including allowing people to stay overnight and use illicit drugs in his presence. The Agency also petitioned on behalf of Jay's three older half-siblings. David was incarcerated at the time.
At birth, Jay had tested positive for methamphetamine and Jessica for marijuana and methamphetamine. She was offered voluntary services, but the physician and the public health nurse were concerned about Jay's condition. The doctor reported Jay's abdomen was extended, his ears were infected and oozed with pus, and he had poor grab and cling reflex, probably caused by neglect and a lack of stimulation.
The court ordered the children detained. Jessica said she did not have any American Indian ancestry, but believed David did.
The social worker reported Jessica had a long-standing drug abuse problem and a history of domestic violence, and the children had witnessed domestic violence. Jay's half-sibling, seven-year-old Jesse T., said David physically abused him. David denied abusing the children or participating in domestic violence. He said he has American Indian heritage with the Nez Perce tribe.
On May 2, 2005, Jessica and David submitted to the court's jurisdiction and the court found the allegations true. It placed Jay in relative care and ordered the parents to participate in their reunification plans, including the Substance Abuse Recovery Management System (SARMS) and other services.
In September 2005, the social worker reported Jay was living with his paternal grandfather and paternal stepgrandmother (the paternal grandparents) and his half-siblings were living with the maternal grandmother. The parents were not complying with services, but Jessica was visiting the children. The parents enrolled in substance abuse treatment, but did not comply with program requirements and were terminated from SARMS. David was incarcerated again. In December the court ordered Jessica to re-enroll in SARMS.
At the six-month review hearing on January 18, 2006, the court terminated services and set a section 366.26 hearing, finding the parents had been offered reasonable services, but did not participate regularly and there was no substantial possibility of return to their custody in the next six months.
The Agency recommended termination of parental rights and a permanent plan of adoption. Jay continued to live with the paternal grandparents and was bonded with them. Jessica visited him regularly when David was in custody. But once he was released, she visited less. The social worker reported Jay appeared uncomfortable with Jessica. David played with him and attempted to care for him, but Jay went willingly to the paternal stepgrandmother at the end of visits. The social worker said the paternal grandparents wanted to adopt Jay. In addition, there were 52 approved adoptive families interested in adopting a child with his characteristics. She opined Jay appeared to enjoy visiting David, but they did not have a parent-child relationship. He seemed indifferent to Jessica and she had never provided for his needs.
In August 2006, the social worker reported David had been arrested for stealing the paternal grandfather's car, and the paternal grandparents would no longer allow him to visit Jay at their home. The social worker said the paternal grandparents had been allowing Jessica to live in a motor home on their property, but Jessica subsequently confronted them and she and David left their property.
In October 2006, the Agency received a referral alleging the paternal grandparents used methamphetamine and marijuana and abused Jay, their home was unsafe, and the paternal stepgrandmother had been arrested at a local casino when she had a manic episode. The Agency deemed the referral unfounded and their home suitable. The paternal grandfather admitted having a past problem with alcohol, but said he had stopped drinking. The paternal stepgrandmother said she suffered from depression, but had not been arrested. She agreed to seek counseling.
On November 20, 2006, the date scheduled for the section 366.26 hearing, Jessica petitioned under section 388, alleging the paternal grandparents used illicit drugs and requesting Jay be removed from their home and moved to the maternal grandmother's home.
At the beginning of the section 366.26 hearing, the court indicated it had just received Jessica's section 388 petition and would defer ruling on it. At the close of the section 366.26 hearing it continued the hearing on the petition.
For the section 366.26 hearing, the social worker testified Jay was very bonded to the paternal grandparents. She had observed two visits between Jessica and Jay at Las Colinas Correctional Facility. She said Jay recognized Jessica and the visits were fine. He slept through most of the first visit and during the second one sat on Jessica's lap. He separated easily from her when the visits ended.
The paternal grandfather testified Jay had been living in his home since Jay was four months old. Jessica and David had lived in a motor home on his property for about three months before they were both incarcerated in July 2006. He said Jessica came to their house to feed Jay and play with him and she sometimes spent the night. David occasionally did so also. However, he said he and the paternal step grandmother were Jay's primary caretakers. He said he asked the parents to leave the property after they caused some problems. He and his family planned to move out of state, but he said he would foster Jay's contact with his half-siblings.
Jessica testified that after Jay was placed with the paternal grandparents in April 2005, she and David lived in their home on and off except when David was incarcerated. She said they resumed living there when David was released in January 2006, and then moved to a motor home on the property in May. She said during that time she "was still raising [Jay] as my baby" and the paternal grandparents often left her alone with him.
The court found Jay was adoptable and none of the statutory exceptions to adoption applied. The court terminated parental rights, identified the paternal grandparents as Jay's prospective adoptive parents and granted them de facto parent status.
DISCUSSION
I. The Court's Delay in not Considering Jessica's Section 388 Petition until after the Section 366.26 Hearing
Jessica contends the court abused its discretion and weakened her rights by deferring consideration of her section 388 petition until after the section 366.26 hearing.
The juvenile court may grant a continuance only on a showing of good cause. "[T]he court shall give substantial weight to a minor's need for prompt resolution of his or her custody status . . ." (§ 352, subd. (a).) "Continuances are discouraged [citation] and we reverse an order denying a continuance only on a showing of an abuse of discretion [citation]." (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)
Section 388 provides in part:
"(a) Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstances or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of the court previously made or to terminate the jurisdiction of the court . . . . [¶] . . . [¶]
"(c) If it appears that the best interests of the child may be promoted by the proposed change of order . . . the court shall order that a hearing be held . . . ."
In order to gain the relief sought in a section 388 petition, the petitioner must show both a change of circumstances or new evidence and that the change sought is in the child's best interests. (§ 388; Cal. Rules of Court, rule 5.570(a)(7); In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) The petitioner bears the burden of proof to make both showings. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) A reviewing court will not disturb a court's ruling in a dependency proceeding " ' . . . "unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]." ' " (Id. at p. 318.)
Jessica filed her section 388 hearing on November 20, 2006, the day set for the section 366.26 hearing. The section 366.26 hearing already had been continued several times. The court was well within its discretion in not continuing the section 366.26 hearing yet again, but instead delaying consideration of the section 388 petition to allow time for the court to review the relevant law.
Moreover, Jessica has not shown prejudice. In her petition, she alleged she had seen the paternal grandparents use drugs during the past year. Because she had been in custody since July 31, 2006, her alleged observations of drug use had to have been before that date. The Agency had already investigated these allegations. On July 25, 2006, Jessica had asked that Jay be removed from the paternal grandparents' home. On September 7, 2006, the Agency received a telephone referral alleging Jay was being abused by the paternal grandparents. The caller said the paternal grandparents used drugs, a neighbor had seen the paternal stepgrandmother strike Jay, the paternal stepgrandmother had been arrested at a casino two years earlier when she "went manic," and conditions at the home violated home approval rules. The social worker investigated the referral and found the allegations not substantiated. Also, the social worker reported she visited the paternal grandparents, discussed the allegations with them and decided there were no protective issues requiring intervention.
At the special hearing held 10 days after the section 366.26 hearing, the court considered the evidence from the section 366.26 hearing and heard Jessica's argument before it denied an evidentiary hearing on the petition and ordered the Agency chief of adoptions to evaluate the placement with the paternal grandparents. Jessica has made no showing that she was prejudiced by the court delaying consideration of her section 388 petition until after the section 366.26 hearing.
II. The Exception to Adoption of Section 366.26, subdivision (c)(1)(A)
Jessica and David contend the court erred by not applying the beneficial relationship exception to adoption of section 366.26, subdivision (c)(1)(A). Jessica argues she visited Jay consistently and shared a positive parental relationship with him. David claims he acted as Jay's parent and Jay was strongly attached to him.
Adoption is the permanent plan favored by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds by clear and convincing evidence that a child is adoptable, it becomes the parents' burden to show termination of parental rights would be detrimental because one of the specified exceptions of section 366.26, subdivision (c)(1) exists. (In re Autumn H., supra, 27Cal.App.4th at p. 574.) Under the exception in subdivision (c)(1)(A), the parent must show termination would be detrimental in that "[t]he parents . . . have maintained regular visitation and contact with the [child] and the [child] would benefit from continuing the relationship." In In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, the court noted "[c]ourts have required more than just 'frequent and loving contact' to establish the requisite benefit for [the exception of section 366.26, subdivision (c)(1)(A)]."
In reviewing whether sufficient evidence supports the trial court's finding the appellate court reviews the evidence in the light most favorable to the court's order, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H, supra, 27 Cal.App.4th at p. 576.)
Substantial evidence supports the juvenile court's finding the beneficial relationship exception of section 366.26, subdivision (c)(1)(A) did not apply. Even assuming the parents' visitation with Jay was consistent, neither parent has shown a beneficial parent-child relationship.
Jessica used methamphetamine and marijuana when she was pregnant with Jay and he was born positive for methamphetamine. After his birth, she severely neglected him, and he was removed from her care when he was four months old. The public health nurse and the physician described him as "one sick and neglected baby." During the months of Jay's dependency, Jessica refused reunification services. She continued to use drugs and was incarcerated by the time of the section 366.26 hearing. She never progressed beyond supervised visitation, visitation monitors described her as passive during visits and said Jay appeared indifferent to her.
David was incarcerated during much of the dependency period. He interacted with Jay more than Jessica did, but he never fulfilled a parental role. There is no indication he ever provided daily care. Further, Jay's half-sibling, Jesse, reported that David abused him and he was afraid of David. David also did not complete any reunification services, continued to use drugs and was incarcerated at the time of the section 366.26 hearing. Jay was bonded with the paternal grandparents and they had provided for his daily needs for 19 months. The court did not err in not applying the beneficial relationship exception to adoption of section 366.26, subdivision (c)(1)(A).
III. ICWA
The parents contend the court erred by finding the ICWA did not apply and by not ensuring sufficient ICWA notice was provided. David argues the Agency supplied inadequate information for a tribe to make an informed decision on whether Jay is an Indian child and it did not send his or Jay's birth certificates when the Nez Perce Tribe requested them. The Agency counters ICWA requirements were fulfilled and the Agency was not required to take affirmative steps to enroll Jay in a tribe. It further argues any possible error was harmless because Jay was placed in an adoptive home with his paternal grandfather, who was the family member identified as a Nez Perce tribal member, and the parents have not provided any further evidence of Jay's eligibility for tribal membership. We reverse to allow for proper notice under the ICWA.
The ICWA requires "where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." (25 U.S.C., § 1912(a).) Notice to the tribe provides it the opportunity to exercise its right to intervene. (In re Junious M. (1983) 144 Cal.App.3d 786, 790-791.) "[O]ne of the primary purposes of giving notice to the tribe is to enable the tribe to determine whether the child involved in the proceedings is an Indian child." (In re Desiree F. (2000) 83 Cal.App.4th 460, 470.) "A tribe's determination that the child is or is not a member of or eligible for membership in the tribe is conclusive." (Cal. Rules of Court, rule 5.664(g)(1).)
Here, the facts are undisputed, and the issue is one of statutory interpretation that we review independently. (Bostean v. L.A. Unified Sch. Dist. (1998) 63 Cal.App.4th 95, 107-108.)
The Agency sent notice to the White Mountain Apache and Nez Perce tribes. The documents included information on the parents and the paternal grandfather, including his Nez Perce Tribal enrollment number, but the notice did not include any information about the paternal grandmother or the maternal relatives and it did not include the paternal grandfather's birthplace. This information should have been readily available because Jay was living with the paternal grandfather, and his half-siblings were living with the maternal grandmother. It is also troubling that when the Nez Perce replied to the notice they received that David and Jay's birth certificates must be submitted, the Agency did not send the birth certificates.
The purpose of the ICWA is to promote the stability and security of Indian tribes. (25 U.S.C. § 1902.) That security was not promoted when information which would appear to be readily available was not supplied in the notice sent to the tribes and when the Agency did not respond to a tribe's request for additional documents. The fact that Jay was placed with the paternal grandfather does not cure the Agency's error in ignoring the Nez Perce Tribe's advisement that certified birth certificates were required to determine whether Jay was eligible for tribal membership. The ICWA recognizes that " 'the tribe has an interest in the child which is distinct from but on a parity with the interests of the parents.' " (Mississippi Band of Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30, 52.) "Congress was not only concerned about the interests of individual members of a tribe but of the tribe itself. [Citations.] The [ICWA] clearly protects the right of the tribe independent from any rights held by either parent." (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1425.) Also, parents are not required to offer further evidence of eligibility for enrollment in a tribe. The determination whether a child is or is not an Indian child is made by the tribe. "[P]arents are not necessarily knowledgeable about the tribal government or membership and their interests may diverge from those of the tribe . . . ." (Ibid.) Moreover, the standard for removal of a child from parental custody, placement and termination of parental rights are affected when an Indian child is the subject of dependency proceedings. (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784.) The defects regarding the notice provisions of the ICWA require reversal.
DISPOSITION
The order terminating parental rights is reversed. The juvenile court is ordered to direct the Agency to comply fully with the notice provisions of the ICWA and to provide the documents and information requested by the Nez Perce tribe. After allowing time for notice and for the tribes to respond, the court is directed to hold a new hearing on Jay's status regarding the ICWA. If Jay is deemed to be an Indian child, the court shall proceed in conformity with the ICWA. But if no tribe intervenes in the matter, the court is authorized to reinstate the order terminating parental rights.
WE CONCUR: McINTYRE, J. IRION, J.