Opinion
H044295
07-06-2017
In re RITA C., a Person Coming Under the Juvenile Court Law. MONTEREY COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. V.K., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. J48695)
Appellant V.K. (mother) appeals from the juvenile court's order terminating her parental rights under Welfare and Institutions Code section 366.26. She contends: (1) the juvenile court did not comply with the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA); (2) there was insufficient evidence to support the finding that the child was adoptable; (3) and the juvenile court erred in finding that the parent relationship exception did not apply. We reverse and remand for compliance with the ICWA.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
I. Procedural and Factual Background
On September 4, 2015, the Monterey County Department of Social Services (Department) filed a petition alleging that two-year-old Rita C. came within the provisions of section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). The petition alleged that Joseph C., Rita's father, lived in Montana, but the mother did not know his whereabouts. On July 3, 2015, the mother married Charles J. and they were living in a car with Rita. On September 1, 2015, police officers searched the vehicle and found a large amount of heroin, a methamphetamine pipe, and a syringe with heroin in the mother's purse. The mother admitted smoking methamphetamine. Both the mother and Charles J. were arrested and Rita was placed into protective custody.
The petition summarized prior referrals for general neglect of Rita by the mother. When Rita was born in July 2013, both she and the mother tested positive for marijuana. The referral to the Fresno County Department of Social Services was evaluated out because the mother had received prenatal care, she was bonding well with Rita, and Rita's paternal relatives were supportive. In May 2015, the Department received a referral for neglect and sexual abuse of Rita by the mother's 14-year-old brother, K.F. It was reported that Rita was left unsupervised with K.F., who was a "juvenile sex offender." Though the referral was determined to be unfounded, the maternal grandmother asked the mother, Charles J., and Rita to move from the home.
The petition also alleged that the mother told the social worker on September 2, 2015, that she used marijuana but she denied using heroin or methamphetamine and that the drugs in the car belonged to her. After the mother tested positive for opiates, marijuana, and methamphetamine, she stated that she tested positive for opiates because she had eaten several poppy seed bagels and admitted that she had used methamphetamine.
The petition further alleged that since the father's whereabouts were unknown, his interest in and ability to care for Rita was unknown.
On September 3, 2015, the social worker asked the mother whether Rita had Indian ancestry and she indicated that Rita had no such ancestry. Five days later, a Judicial Council form ICWA-020 was filed for the mother in which she indicated, "I have no Indian ancestry as far as I know."
In October 2015, the jurisdiction/disposition report was filed. The Department recommended that the petition be sustained, Rita be removed from her mother's custody, and the mother be offered reunification services. According to the mother, Joseph C. was listed on Rita's birth certificate as the father. The mother and Joseph C. were in a relationship at the time of conception and birth of Rita, but Joseph C. did not adopt Rita, never lived with her, and was not in contact with her. Since the father's whereabouts were unknown, the social worker had tried to locate individuals who knew the father to determine his Indian ancestry. However, no one indicated that the father had such ancestry. The social worker concluded that the ICWA did not apply to the father.
The social worker met with the mother, who stated that many of her problems were the result of her childhood experiences and that she had been involved in child welfare services as a child. The mother reported that she began using marijuana to manage pain due to scoliosis and began using methamphetamine after meeting Charles J. The mother initially indicated that she would divorce Charles J. because their relationship had a negative impact on Rita. Though she later stated that they had repaired their relationship, she eventually left him. She then pursued a relationship with Tyson A. According to the social worker, the mother struggled to "identify and maintain positive interpersonal relationships, which [might] be contributing to poor decision-making." The mother also told the social worker that Rita was her "world" and she would "do whatever [she had] to" in order to reunify with her. The mother was participating in services and visitation. The social worker described Rita as energetic, eager to please, and cheerful. Dr. Laura Torissi of Children's Behavioral Health conducted an assessment of Rita. Both Dr. Torissi and the social worker observed Rita during a home visit. Rita spoke less than 10 words and only one two-word sentence, "I see." The foster parents reported that Rita struggled to feed herself and Dr. Torissi observed that she could not complete simple or complex motor skills tests. It was also apparent that Rita had significant delay in her attachment skills. The social worker, the caregivers, and Dr. Torissi observed that Rita easily formed a bond to new individuals, showed affection with little to no stimuli, and experienced significant separation anxiety. Rita was diagnosed with severe disinhibited social engagement disorder (DSED). Children with DSED have experienced a pattern of insufficient care due to either social neglect, changes of primary caregivers, and/or rearing in unusual settings.
The report concluded that Rita was unable to be returned to her mother's custody because the circumstances that brought Rita into care had not improved. The mother had only recently acknowledged that her substance abuse had an impact on Rita. The mother also required assistance with continued intervention before Rita's safety could be ensured. According to the social worker, visitation was beneficial to both the mother and Rita. Rita had been placed in a foster home, which was not concurrent.
At the uncontested jurisdiction/disposition hearing on October 20, 2015, the juvenile court sustained the allegations of the petition and ordered reunification services for the mother. The juvenile court specifically advised the mother that she had only six months to reunify with Rita. The father was not present and no family reunification services or visitation were ordered for him. The juvenile court also found that the ICWA did not apply.
On November 2, 2015, the family mental health assessment, which was dated October 20, 2015 by Dr. Torissi, was filed. During her interview with Dr. Torissi, the mother was "quite talkative," misused words, and fidgeted. Her intelligence appeared to be low average and her attention span was poor. She placed the blame for her misdeeds on others. The mother told Dr. Torissi that the reports related to neglect were not true. The mother did not deny that Charles J. was selling drugs out of his vehicle. According to the mother, her brother did not molest a four-year-old boy and explained: "I know the signs. I've been molested and raped. I would've caught on to it." She indicated that she would leave Rita with her brother if he was not on probation.
The mother stated that she had been receiving therapy, but she stopped "because of" Charles J. She emphasized that they argued daily and he controlled what she did. The mother acknowledged that she could have obtained housing, but she did not do so because Charles J. did not want to be separated from them. The mother reported that Charles J. inflicted emotional and psychological abuse and that she could not have a relationship with him if she wanted to reunify with Rita. However, she became agitated and assumed a helpless, passive position when the examiner recommended that she talk to her social worker.
The mother was a dependent of the juvenile court as a child and aged out of the system. The mother was sexually abused by her father for two to three years. He remained incarcerated for raping and molesting her. The mother began using alcohol at age 10 and consumed hard liquor daily when she was in high school. Her marijuana use began at age 12, and she continued to use it regularly. She also reported the use of methamphetamines, cocaine, hydrocodone, and hallucinogens, but asserted that she stayed away from "hard core drugs." The mother denied that she had a drug problem. The mother reported that she became a sex addict and was romantically attracted to older men. She also reported self-injurious behaviors as a teenager. According to the mother, she ran away from a group home and lived on the streets in Oakland for a few weeks. She then lived with a 46-year-old "gentleman" who provided her with as much cocaine as she wanted.
The foster mother told Dr. Torissi that Rita had adjusted well to foster care and never asked for her mother. However, the foster parents described Rita as difficult to soothe. According to Dr. Torissi, this was strong evidence that the mother did not show Rita that she was there to comfort her when she was upset. Rita's fear about getting water on her head during bath time was also suggestive of neglect. According to the foster parents, Rita was destructive and shredded socks, clothes, papers, or toys. Dr. Torissi noted that this behavior suggested that Rita had to find things to do to occupy herself because she never had age-appropriate toys or activities. Dr. Torissi attributed Rita's limited gross motor skills to living in cramped quarters, such as a car.
Dr. Torissi observed a supervised visit between the mother and Rita. After the staff informed the mother of the time and duration of the supervised visit, the mother responded, "What am I supposed to do with her for two hours?!" When the mother arrived with three large bags, Rita said, "Ma!" but remained next to the foster mother. The mother said, "Hi boo-boo" and rushed to check in with the staff. The mother then went to Rita, crouched down beside her, but did not touch her. Though the mother initially mirrored Rita's verbalizations, she proceeded to show her each item from the bags. According to Dr. Torissi, the mother was either attempting to show her love in a material way or filling the time in the visit.
The mother attempted to engage Rita, but most of the time Rita ignored her or engaged with her while focused on something else in the room. The mother read a book about childhood cancer which was appropriate for a much older child and did not notice that she had lost Rita's attention on the first page. Dr. Torissi also gave two examples in which Rita provided nurturance to her mother rather than the mother nurturing her. Dr. Torissi concluded that the mother did not know how to meet Rita's needs in a developmentally appropriate manner and sought contact with Rita to fulfill her own unmet needs.
On April 15, 2016, the Department filed a status review report in which it recommended that the juvenile court maintain the dependency of Rita, continue her in out-of-home care, terminate family reunification services, and set the matter for a selection and implementation hearing. The social worker reported that the mother had been ordered into a residential treatment program on January 26, 2016. Three days later, however, the mother was cited for possession of drug paraphernalia. The mother told the social worker that she was "on her way to get rid of" the paraphernalia. According to the mother, she was currently on a waiting list for a residential treatment program.
The social worker also reported that she had spoken to the father in April 2016. The father stated that he had not had any contact with the mother and had not seen Rita since she was about two months old. He provided his address, stated he would not be able to attend the hearing, and reported that he was pursuing paternity testing. The social worker mailed a notice of hearing to the address that the father had provided.
The social worker stated that Rita was participating in occupational therapy and her fine and gross motor skills were improving. Rita was also receiving speech therapy, though the foster parents had not seen a "huge improvement" in her vocabulary. Rita was generally cheerful, sociable, and energetic, but she continued to exhibit indiscriminate attachment. The mother attributed Rita's behaviors to her being removed from her care and did not appear to recognize that Rita's early life experiences and the mother's choices had negatively affected Rita's development. Due to anxiety, Rita picked her skin until she caused a small wound and bit herself. Rita was to be transitioned to a concurrent placement once the social worker completed the assessment of the home.
The mother began participating in outpatient substance abuse services on December 15, 2015, only after a meeting with the social worker. At that time, the mother reported that she was unaware that she needed to participate in these services even though the social worker and the previous social worker had discussed this issue with her. The mother's outpatient counselor reported that the mother attended regularly, but minimized her level of drug use and had "a lot of denial of using." The mother relapsed four times between the end of December 2015 and January 31, 2016. The mother told several individuals that the juvenile court was supportive of her use of marijuana and the social worker clarified with her many times that she was required to remain "clean and sober from every substance." The mother also believed a 30-day residential treatment program would be sufficient. When the social worker stated that most of these programs were a minimum of four months, the mother became agitated and stated that the "Judge didn't say how long it needed to be."
The mother received supervised visitation once a week for one hour. She attended regularly and it was reported that she was attentive to Rita and engaged her in age-appropriate activities. The mother repeatedly requested increased visitation. The social worker explained to her many times that visitation had not been increased because the mother had not maintained sobriety and had not entered a residential treatment program. The social worker recommended that supervised visitation be reduced to once per month.
On April 26, 2016, juvenile court was informed that the mother was enrolled in a residential treatment program and that she requested a contested hearing. On June 15, 2016, the six-month review hearing was held. The parties agreed that if the mother did not comply with the residential treatment program aftercare, the Department would file a section 388 petition to terminate reunification services. The juvenile court ordered that Rita be continued as a dependent of the court and reunification services be provided to the mother.
About two weeks later, the Department filed a section 388 petition to terminate reunification services. The petition alleged that five days after the contested six-month review hearing, the mother was discharged from the residential drug treatment program. She had been warned that relationships between residents were grounds for discharge from the program, but she became romantically involved with another resident. Following a contested section 388 hearing, the juvenile court terminated reunification services and set a section 366.26 hearing for November 2016.
In September 2016, the mother filed a section 388 petition in which she sought reinstatement of reunification services and more frequent visitation. The juvenile court denied the petition.
On November 7, 2016, the report for the section 366.26 hearing was filed. The Department recommended that the juvenile court: terminate the parental rights of the mother and the father; continue the dependency; and declare adoption as the permanent plan. The mother had graduated from a residential drug and alcohol treatment program in October 2016 and had recently enrolled in an outpatient program.
The report also summarized Rita's circumstances. Rita had been diagnosed with fetal alcohol syndrome. She had been living in her prospective adoptive home for about three months and was slowly establishing a bond with her caregivers. Her caregivers reported a "huge" improvement in Rita's vocabulary. She spoke clearly, learned to form sentences, knew her ABC's, and could count to 12. However, she was severely delayed with her gross motor, fine motor, and problem-solving skills. Rita was a very hyperactive child and required close supervision by caregivers at all times. The caregivers' biggest concern was Rita's behavior after each visit with the mother. She could be very stubborn and aggressive toward her caregivers and awoke several times per night. Rita and the foster mother were receiving weekly attachment therapy. The therapist stated that Rita was benefiting from this therapy.
On November 30, 2016, the mother filed a section 388 petition in which she requested that the juvenile court reinstate reunification services or return Rita to her care. The juvenile court denied the petition.
On December 6, 2016, the section 366.26 hearing was held. The mother testified that she had been Rita's primary caregiver until she was approximately two and a half years old and Rita did not have any special needs during this period. The mother acknowledged that she had been in denial about her substance abuse until January 2016. The mother described the food she brought to the visits with Rita and their activities. The mother noticed that Rita "had issues separating from" her at the end of visits. When the mother arrived for the visits, Rita called to her as she ran down the hall towards her. The mother explained that she began teaching Rita sign language when she was about a year old so that Rita could communicate her needs. The mother understood that Rita needed speech, attachment, and behavioral therapy. She believed it would be in Rita's best interest to live with her. The mother was on the waiting list for women's and children's transitional housing. She had been employed part-time and had recently obtained full-time employment. On cross-examination, she acknowledged that she did not enter a residential treatment program until after she learned that the Department had recommended termination of reunification services. The mother never had unsupervised visitation. The mother asserted that Rita never displayed the behaviors associated with an attachment disorder prior to being removed from her care.
The juvenile court found that Rita was adoptable and terminated parental rights.
II. Discussion
A. Compliance with the ICWA
The mother contends that the juvenile court erred by failing to comply with the ICWA. We agree.
The ICWA provides: "In any involuntary proceeding in a State court, 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).) The ICWA was enacted " 'to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . . .' (25 U.S.C. § 1902.)" (In re Isaiah W. (2016) 1 Cal.5th 1, 7-8.)
In order to comply with the ICWA, "[t]he court [and the] county welfare department . . . have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . is to be, or has been, filed is or may be an Indian child in all dependency proceedings . . . if the child is at risk of entering foster care or is in foster care." (§ 224.3, subd. (a).) If the Department is seeking a foster-care placement, it is also required to "complete the Indian Child Inquiry Attachment (form ICWA-010(A)) and attach it to the petition unless the [Department] is filing a subsequent petition, and there is no new information." (Cal. Rules of Court, rule 5.481(a)(1).) When, as in the present case, "the parent . . . does not appear at the first hearing, or is unavailable at the initiation of a proceeding, the court must order the . . . entity that has the inquiry duty under this rule to use reasonable diligence to find and inform the parent . . . that the court has ordered the parent to complete Parental Notification of Indian Status (form ICWA-020)." (Cal. Rules of Court, rule 5.481(a)(3).)
In re J.N. (2006) 138 Cal.App.4th 450 (J.N.) is instructive. In J.N., the Department conceded that the mother was never asked whether she had any Indian ancestry. (Id. at p. 461.) But the Department argued that the error was harmless, because there was nothing in the record indicating that the mother had any Indian ancestry. (Ibid.) The J.N. court refused to "speculate about what mother's response to any inquiry would be" and remanded the matter for compliance with the ICWA. (J.N., at pp. 461-462.)
Here, the alleged father's whereabouts were unknown at the onset of the dependency proceedings. At that time, the social worker reported that she had "made an effort to locate individuals known to the alleged father to ascertain his American Indian ancestry. No individual has indicated that the father has American Indian ancestry. Therefore, the Indian Child Welfare Act does not apply as to the father." Following the jurisdiction and disposition hearing, the juvenile court found that the social worker's inquiry was reasonable as to the father's ethnic heritage and found that the ICWA did not apply. However, the social worker spoke with the father approximately six months later. There is no indication in the record that the social worker asked the father if he had any Indian ancestry or that he was sent the parental notification of Indian status form (form ICWA-020) to complete. Though the Department mailed a notice of the six-month review hearing to the father, it did not include the "Indian Child Inquiry Attachment" (form ICWA-010(A)). The juvenile court was informed at the six-month review hearing that the father had been located, but it did not determine whether the social worker had asked the father about if he had any Indian ancestry. As in J.N., we do not speculate as to the father's response to an inquiry about his ancestry and remand the matter for compliance with the ICWA.
The Department acknowledges that the social worker did not document whether she asked the father about his ancestry. However, relying on In re Charlotte V. (2016) 6 Cal.App.5th 51, the Department claims that the mother has failed to establish prejudicial error. In Charlotte V., the mother stated that she had Indian ancestry through the Blackfeet Nation. (Id. at p. 55.) After the requisite notice was sent, the tribe responded that the child was not an Indian child. (Id. at pp. 55-56.) On appeal, the mother argued that the notice was deficient because it excluded information about the grandmother, cousin, and great-grandparents, which it could have obtained from the grandfather, uncle, and cousin. (Id. at pp. 57-58.) The Charlotte V. court concluded that the mother had failed to establish prejudicial error. (Id. at p. 58.) Charlotte V. is readily distinguishable. In contrast to Charlotte V., here, there is nothing in the record indicating that the Department ever asked the father whether he had any Indian ancestry.
The Department relies on several other cases to support its position. In In re E.H. (2006) 141 Cal.App.4th 1330 (E.H.), the mother challenged the sufficiency of the evidence to support the finding of compliance with the ICWA. (E.H., at p. 1332.) After the social worker's report indicated that the ICWA might apply, the juvenile court ordered the mother, who was represented by counsel at the detention hearing, to reveal membership in an Indian tribe. (E.H., at p. 1332.) Several subsequent reports by the social worker stated that the ICWA did not apply. (E.H., at pp. 1332-1333.) The juvenile court ordered the mother, who was present at a subsequent hearing, to disclose membership, if any, in an Indian tribe. (Id. at p. 1333.) The reviewing court rejected the mother's ICWA claim and held that the mother was required to respond to the juvenile court's "exhortations and disclose the child's Indian ancestry or to object to the social worker's reports." (E.H., at p. 1335.) Unlike in E.H., here, the father was not present at the hearings and was not represented by counsel. Thus, we cannot assume that the father was ever asked or directed to reveal any Indian ancestry.
In In re Rebecca R. (2006) 143 Cal.App.4th 1426, the father appealed and argued that the record did not include the form indicating that he was ever asked whether the child had Indian heritage. (Id. at p. 1429.) The reviewing court rejected his argument, in part, because the provision requiring this form had not yet taken effect. (Ibid.) Here, California Rules of Court, rule 5.481(a)(1) and (3) were in effect.
The remaining cases upon which the Department relies are also distinguishable. In In re O.K. (2003) 106 Cal.App.4th 152, In re Hunter W. (2011) 200 Cal.App.4th 1454, and In re Z.N. (2009) 181 Cal.App.4th 282, the reviewing courts held that the information provided by the parent was too vague or speculative to trigger the notice requirements of the ICWA. In In re J.M. (2012) 206 Cal.App.4th 375, In re Joseph P. (2006) 140 Cal.App.4th 1524, and In re Edward H. (2002) 100 Cal.App.4th 1, the issue was the adequacy of the notice sent to the Indian tribes. In In re S.B. (2005) 130 Cal.App.4th 1148, the Indian tribe intervened in the dependency proceedings. No such issues are present in the case before us.
The Department also cites a depublished opinion, In re K.W. (2006) 144 Cal.App.4th 1349, on which we are not authorized to rely. (Cal. Rules of Court, rule 8.115(a).)
In sum, the error was prejudicial and the matter must be remanded for compliance with the ICWA.
B. Adoptability
The mother next contends that there was insufficient evidence to support the juvenile court's finding of adoptability.
Here, the juvenile court stated: "First and foremost regarding whether this child, Rita, is adoptable, this wasn't even a close call as far as the Court is concerned. Rita is a healthy intelligent, curious, three-year-old child who has, from what I have read, a nice personality, a witty personality. Her disposition is good, and she has learned to give and receive affection and is developing the trust that she needs in a safe way. [¶] She has been in a concurrent home, and this particular home has an approved home study. So really, there is no doubt in my mind that this three-year-old child is adoptable."
Section 366.26 establishes that adoption is the most preferred permanent plan for a child after reunification services have been terminated. (§ 366.26, subd. (b)(1).) " 'The issue of adoptability . . . focuses on the minor, e.g., whether the minor's age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.]' (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) All that is required is clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.)" (In re Zeth S. (2003) 31 Cal.4th 396, 406.) " ' "[A] prospective adoptive parent's willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family." ' [Citation.]" (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.)
This court reviews the finding of adoptability under the substantial evidence test. (In re K.B. (2009) 173 Cal.App.4th 1275, 1290.) Under this standard, "[w]e resolve all conflicts in favor of the respondent on appeal and give respondent the benefit of all legitimate and reasonable inferences. Where the facts reasonably support more than one inference, we may not substitute our judgment for that of the trier of fact. Considering only the evidence favorable to respondent, the question is whether that evidence is sufficient as a matter of law. If so, we must affirm the judgment. [Citations.]" (In re Walter E. (1992) 13 Cal.App.4th 125, 139-140.)
Here, there were no health concerns with three-year-old Rita. The social worker described her as "an adorable girl with a very charismatic personality." She was very talkative, sociable, and entertaining. She had a very good memory and was very smart. At the time of the section 366.26 hearing, she had been living with the prospective adoptive parents for four months. Though she had been diagnosed with DSED, she was receiving attachment therapy and establishing a bond with them. Her speech had improved and she was making progress with her motor skills. Though she engaged in negative behaviors, such as aggressive acts, tantrums, and difficulty in sleeping, after visits with the mother, the prospective adoptive parents were committed to adopting her and had demonstrated that they could meet her needs. Thus, there was substantial evidence to support the juvenile court's finding that she was adoptable.
The mother's reliance on In re Ramone R. (2005) 132 Cal.App.4th 1339 is misplaced. In Ramone R., the child became a dependent of the court after he was severely burned on his lower body and was initially placed with a paternal cousin. (Id. at pp. 1343-1344.) However, after he "screamed throughout the day and night" and did not make eye contact with his caregiver, he was placed in a medically fragile infant (MFI) foster home. (Id. at p. 1344.) It was then decided to gradually transition the child to placement with a maternal aunt. (Ibid.) The child, "though still 'very needy, both emotionally and physically,' was said to be thriving in his MFI foster home. . . . He was prone to angry tantrums, and did not sleep at night; instead, he banged his head, kicked, screamed, and removed his clothes and bedding and threw them on the floor." (Id. at pp. 1344-1345.) Since the maternal aunt stopped visiting the child and no longer communicated with the social worker, this potential placement failed. (Id. at p. 1345.) A psychologist testified that she did not "think it would be easy" to find an adoptive family for the child and the foster mother testified that she had difficulty sleeping due to the child's behavior. (Id. at p. 1346.) Though the child had severe language delays, he had not been provided with speech therapy. (Id. at pp. 1346-1347.) The social worker had recently begun assessing a third relative as a potential adoptive parent. (Id. at p. 1351.) The reviewing court concluded that "there was simply no evidence suggesting Ramone would probably be adopted. DHS implicitly concedes the point by offering no argument to the contrary." (Ibid.) In contrast to Ramone R., here, Rita had many positive characteristics and was living with the prospective adoptive parents, who had demonstrated that they could meet her needs.
C. Parental Relationship Exception
The mother also contends that the juvenile court erred when it failed to apply the parental relationship exception to adoption.
"Adoption must be selected as the permanent plan for an adoptable child and parental rights terminated unless the court finds 'a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.' " (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).) This is known as the parental relationship exception.
The proponent of the parental relationship exception bears the burden of producing evidence of the existence of a beneficial parental relationship. Because the existence of such a relationship is a factual issue, the court's finding on this point is reviewed for substantial evidence. (Bailey J., supra, 189 Cal.App.4th at p. 1314.) "[A] challenge to a juvenile court's finding that there is no beneficial relationship amounts to a contention that the 'undisputed facts lead to only one conclusion.' [Citation.] Unless the undisputed facts established the existence of a beneficial parental or sibling relationship, a substantial evidence challenge to this component of the juvenile court's determination cannot succeed." (Ibid.)
Even if the juvenile court finds a beneficial parental relationship, the parental relationship exception does not apply unless the court also finds that the existence of that relationship constitutes a "compelling reason for determining that termination would be detrimental . . . ." (§ 366.26, subd. (c)(1)(B).) A juvenile court's ruling on whether there is a "compelling reason" is reviewed for abuse of discretion as the court must "determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and . . . weigh that against the benefit to the child of adoption." (Bailey J., supra, 189 Cal.App.4th at p. 1315.)
" 'The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the child's life spent in the parent's custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child's particular needs.' [Citation.] 'Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.' [Citation.] Evidence of 'frequent and loving contact' is not sufficient to establish the existence of a beneficial parental relationship." (Bailey J., supra, 189 Cal.App.4th at pp. 1315-1316.)
Here, there was substantial evidence to support the juvenile court's finding that the mother had failed to show the existence of a beneficial parental relationship. Rita was three years old and had not been in the mother's custody for one year and three months. Though the mother consistently visited Rita and made efforts to contact the caregivers to discuss how Rita was doing during this period, she never progressed beyond supervised visitation due to her substance abuse. The mother was Rita's primary caregiver for two years and two months. However, Rita struggled with her fine motor and gross motor skills, and had delayed speech. She was also diagnosed with DSED shortly after the detention hearing. Children with this diagnosis have experienced a pattern of insufficient care. Thus, Rita had needs which were not met by the mother while in the mother's care. While in foster care, Rita never asked for her mother. Based on this record, there was substantial evidence to support the juvenile court's finding that there was not " 'a significant, positive, emotional attachment' " between Rita and the mother. (Bailey J., supra, 189 Cal.App.4th at p. 1316.)
The mother, however, cites to other portions of the record to support her position. She suggests an alternate interpretation of her question regarding what she was supposed to do with Rita for two hours, refers to some evidence that the supervised visits were positive, and focuses on letters by Charles J.'s mother and the maternal grandmother indicating that the mother had a strong bond with Rita. The mother also refers to her testimony that Rita did not display symptoms of DSED until she was placed into foster care. However, under the substantial evidence standard, this court must resolve all conflicts in the evidence in favor of the Department. Accordingly, we reject the mother's contention.
Since there was substantial evidence to support the juvenile court's finding that there was no beneficial parental relationship, we need not consider whether the juvenile court abused its discretion when it found that there was not a compelling reason for determining that termination of parental rights would be detrimental to the child.
III. Disposition
The order is reversed. On remand, the court shall require the Department to inquire of the father whether he has any Indian ancestry. If the father states that he has such ancestry, the Department shall be directed to fully comply with the ICWA's notice requirements. If any of the tribes identify the child as an Indian child, the court shall proceed in accordance with the ICWA. If the father states that he has no Indian ancestry or none of the tribes identify the child as an Indian child, the court shall reinstate its order terminating parental rights.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.