In re Amanda P.

Filed 6/21/07 In re Amanda P. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Peter E. Riddle, Judge. Reversed and remanded with directions.

Leslie P. appeals the judgment terminating her parental rights over Amanda P. She contends the adoptability finding is unsupported by substantial evidence, the juvenile court erred by declining to apply the beneficial relationship exception to termination (Welf. & Inst. Code,  366.26, subd. (c)(1)(A)),^[1]and the court and the San Diego County Health and Human Services Agency (the Agency) failed to comply with the requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.). We agree with the last contention.

BACKGROUND

In September 2001, when Amanda was one year old, she was removed from Leslie's custody and placed in foster care. This came about because Leslie pulled Amanda's hair, leaving a bald spot, and admitted slapping her, leaving a hand print on her face. Amanda was reunified with Leslie in August 2002 and jurisdiction terminated in early 2003.

In October 2004, when Amanda was four years old, the Agency filed a dependency petition in the instant case. Amanda was detained in a foster home. In November she was moved to another foster home. In January 2005 the juvenile court entered a true finding on allegations that Amanda had bruising under her eye and reported Leslie had hit her, Amanda acted out sexually and her behavior was out of control, Leslie was incarcerated and could not arrange for Amanda's care, and the identity of Amanda's father was unknown.^[2] On January 14 the court declared Amanda a dependent and

ordered her placed in a fourth foster home. After a month, she was moved to her fifth foster home. Some of the placement changes were necessitated by her difficult behavior. In December 2006, when the section 366.26 hearing concluded, Amanda was still in the fifth foster home.

Leslie was incarcerated from late 2004 until March 3, 2005. She was incarcerated again in early January 2006. When the section 366.26 hearing concluded, she was expecting to be released in February 2007. Upon her release, she planned to re-enter a residential treatment program.

ADOPTABILITY

"The issue of adoptability posed in a section 366.26 hearing 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." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649, italics omitted.) "[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." (Id. at p. 1650, italics omitted.) An adoptability finding does not require "that the minor already be in a potential adoptive home or that there be a proposed adoptive parent 'waiting in the wings.' [Citations.]" (Id. at p. 1649.) "All that is required is clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time." (In re Zeth S. (2003) 31 Cal.4th 396, 406, citing In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.) The Agency bore the burden of proof on this issue. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1557, 1559-1561.)

Amanda suffered from attention deficit hyperactivity disorder (ADHD) and post-traumatic stress disorder. Her therapist, who had been treating her for one and one-half years, testified Amanda was "in the middle part of her treatment." The therapist described her as "very friendly, outgoing, [and] excitable" and said she "establishes relationships fairly easily with others, including strangers," which presented a safety concern. Amanda's foster parent said she required 24-hour supervision and Amanda's therapist agreed she should not be left alone with children her age or younger. Amanda had "some behaviors that [were] very difficult to deal with," in that she had "tremendous difficulty with boundaries" and was "very intrusive." She took and destroyed property belonging to others, once poked another child with a pencil, kicked a two-year-old in the eye, threatened to kill a baby, and pinched a baby's cheek, leaving a mark. At the time of the hearing, Amanda was taking medication to lessen her impulsivity, her behavior had improved, and she had not taken items from others in several weeks. Her therapist believed that Amanda would have a fairly easy transition into an adoptive home, and hoped that a placement with structure, consistency, and an available and patient caregiver would result in a decrease of the problematic behavior.

According to the social worker, Amanda was adoptable in view of her health, age, intelligence, physical appearance, development, personality, functioning and ability to attach. While some adoptive families would not be appropriate for Amanda in light of her behavior, there were more than 20 families that were interested in a child such as Amandanotwithstanding her history of sexual molestation, stealing, ADHD, need for therapy and psychotropic medication, and need to be an only child or one of two children in the home. There was one particular family that was waiting for the "telling" and would be a wonderful match.^[3]

While behavioral problems (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154; In re Jennilee T., supra, 3 Cal.App.4th at pp. 224-225) make it more difficult to find adoptive homes, they do not necessarily preclude an adoptability finding. Here, substantial evidence supports the finding that Amanda was adoptable. (In re Josue G. (2003) 106 Cal.App.4th 725, 732; In re J. I. (2003) 108 Cal.App.4th 903, 911; In re Lukas B., supra, 79 Cal.App.4th at p. 1154.)

THE BENEFICIAL RELATIONSHIP EXCEPTION

Section 366.26, subdivision (c)(1) requires termination of parental rights upon clear and convincing evidence of adoptability, but an exception exists if "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." ( 366.26, subd. (c)(1)(A).) A beneficial relationship is one that "promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) "[T]he court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. 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." (Ibid.) The existence of a beneficial relationship is determined, in part, by "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs . . . ." (Id. at p. 576.)

Examining the evidence in the light most favorable to the judgment, we conclude that substantial evidence supports the finding that Leslie failed to meet her burden of showing a beneficial relationship. (In re Autumn H., supra, 27 Cal.App.4th at pp. 576-577; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)

Leslie never progressed beyond supervised visitation. While she was in local custody, there were visits at the jail. By September 2006, Leslie was in prison out of the county, there were apparently no further visits, and her only contact with Amanda was through letters with Amanda's therapist as the intermediary. Because there was no personal contact between Leslie and Amanda in the period before the hearing, Amanda's therapist was unsure how severing contact would affect Amanda, although she believed that Amanda would experience "some grief and loss." While Amanda enjoyed corresponding with Leslie, the therapist testified that a cessation of the correspondence would not necessarily impair Amanda's treatment. The social worker agreed that severing the relationship with Leslie would hurt Amanda, but believed the detriment would be outweighed by a new, stable, permanent placement, and the bond she would develop there. Amanda's therapist testified that Amanda needed a lot of attention, which she was not receiving in her current foster home. The therapist, the social worker and the foster parent believed Amanda needed a stable placement with structure, consistency and one patient caregiver to be with her, set limits and teach her new skills.

By the time of the section 366.26 hearing, Amanda was six and one-half years old. She had not lived with Leslie in more than two years. She had also been out of Leslie's care for a year during the previous dependency. Amanda frequently asked to see Leslie and had a bond with her. The bond, however, had an anxious and insecure quality. The social worker believed the relationship was friendly rather than parental. Amanda had endured repeated trauma while living with Leslie. Leslie's pattern of erratic, impulsive, egocentric and immature behavior, including her child welfare history, criminal history, and incarcerations, precluded her from meeting Amanda's needs.

The juvenile court did not err by failing to apply section 366.26, subdivision (c)(1)(A).

ICWA

Leslie identified five alleged fathers: Leonard B., Jackson B., Jonathan B., Fred D., and Michael M. Jonathan, Fred, and Michael were determined, through paternity testing, not to be Amanda's biological father. Leonard and Jackson, who have not participated in paternity testing, are members of the Barona tribe. The Agency attempted to contact them and give them notice of these proceedings, but neither has responded, expressed an interest in participating in the proceedings, or done anything to establish a connection with Amanda. There is no claim that notice was insufficient.

Leslie contends the ICWA notices, required by virtue of the tribal affiliation of alleged fathers Leonard B. and Jackson B., were incomplete, and the judgment must therefore be reversed. The Agency disagrees, arguing the tribal affiliation of Leonard and Jackson did not trigger the ICWA notice requirements because they did not acknowledge paternity and were merely alleged fathers. Amanda's appellate counsel joins in the Agency's contention.

We agree the notices were incomplete. The record reveals that in November 2004 the Agency sent ICWA notices to the Barona tribe and to the Bureau of Indian Affairs (BIA). The notices identified Leonard and Jackson by name, but omitted much of the requested information and did not include copies of the dependency petition. Furthermore, the Agency did not file certified mail receipts with the court showing that the notices had been delivered. In June 2006 the Agency sent notices of the section 366.26 hearing, then set for September, to the tribe and the BIA. These were not ICWA notices.

Although the notices given were insufficient, we conclude that under the particular facts of this case, no further notice is required. ICWA notice must be given when there is reason to believe that the child is eligible for membership in an Indian tribe and is the biological child of a member. (25 U.S.C.  1903(4), 1912(a).) ICWA defines "parent" as "any biological parent or parents of an Indian child . . . . It does not include the unwed father where paternity has not been acknowledged or established . . . ." (25 U. S. C.  1903(9); see also Cal. Rules of Court, rule 5.664(a)(4).)

Here, the evidence of the requisite biological nexus borders on sheer speculation. The mother identified five men as potential biological fathers. Three have been eliminated by paternity testing and, despite notice, the other two have declined to participate or even acknowledge the proceedings or Amanda. Although the Barona tribe and the BIA are aware of Leonard's and Jackson's tribal membership and the dependency action, neither has taken steps suggesting an interest in helping to determine whether there is a biological connection between Amanda and either Leonard or Jackson. Absent any biological evidence and the lack of an acknowledgment of paternity, notice requirements do not apply.^[4]

In reviewing the record, we observed that the ICWA notices listed a Cherokee tribal affiliation for the maternal grandmother. As this matter was not mentioned in the briefs, we asked counsel whether this information was accurate and, if so, whether it implicated ICWA. Counsel for Leslie and the Agency responded. The Agency's counsel states that because the record sheds no light on this matter, a limited remand is appropriate. Leslie's counsel states that Leslie "informed [counsel] the information is, indeed accurate, and there is tribal affiliation with the Cherokee Ban[d] on the maternal side of the family." In light of this information concerning Amanda's possible Indian heritage, we conclude the matter must be remanded to the juvenile court so that proper ICWA notice can be given. We agree with the Agency that a limited remand is appropriate. (In re Francisco W. (2006) 139 Cal.App.4th 695, 704-711.)

DISPOSITION

The judgment terminating parental rights is reversed. The matter is remanded to the juvenile court, with directions to order the Agency to give proper ICWA notice to all applicable tribes and the BIA. If, after proper notice, no tribe seeks to intervene or otherwise indicates Amanda is an Indian child, the court shall reinstate the judgment.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P. J.

McDONALD, J.

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^[1] Statutory references are to the Welfare and Institutions Code unless otherwise specified.

^[2] There were also reports that while in Leslie's care, Amanda was allowed to watch horror movies and was exposed to Leslie's sexual activity, and, in early 2004, Amanda was sexually molested while she lived with a relative during Leslie's incarceration.

^[3] During the "telling," which takes place after a prospective adoptive family obtains an approved home study, the child's social worker relates to the family the child's history, including birth records, medical information, therapeutic records, school records, and other information necessary to ensure a good match.

^[4] Our conclusion does not preclude the Agency from giving proper ICWA notice to the tribe or the BIA.