In re Carlos B.

Filed 6/27/06 In re Carlos B. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Amy C. (Mother) appeals the juvenile court order terminating her parental rights to her son Carlos B. (Welf. & Inst. Code, § 366.26.)[1] Mother contends that insufficient efforts by the Ventura County Human Services Agency (HSA) to facilitate visitation denied her the opportunity to preserve her parental rights. She also contends that the agency failed to comply with the Indian Child Welfare Act (ICWA). We reverse and remand to permit compliance with the ICWA, but otherwise affirm.

FACTS

Mother has six children born between 1999 and 2005: Miguel C., Destiny Z., Carlos B., Precious C., Patrick B., and Anthony B. This appeal concerns Carlos B. who was born in December 2001.

In July 2002, the HSA filed a juvenile dependency petition covering Carlos, alleging that he was in substantial risk due to physical injuries indicating abuse. The petition alleged that Carlos had an unexplained skull fracture that was consistent with non-accidental trauma, as well as a fracture to the pubic rambus which is unusual in a child of Carlos's age. The court detained Carlos, and ordered reunification services with supervised visitation between Mother and Carlos.

In August 2002, HSA filed dependency petitions covering Miguel and Destiny, alleging that the injuries to Carlos placed Miguel and Destiny at substantial risk. The court detained Miguel and Destiny, and ordered reunification services with supervised visitation.[2]

In October 2002, the juvenile court declared the three children to be dependents of the court. (§§ 300, subd. (c), 361, subd. (c).) Miguel and Carlos were placed in foster care. Destiny was placed with a relative. The court ordered visitation as frequent as possible, consistent with the well-being of the children.

In March 2003, Mother sought to modify the October 2002 order to increase the frequency of visitation. The court denied Mother's request, finding that the frequency and supervised nature of then current visitation was reasonable. Mother appealed and, in an unpublished opinion, we affirmed the March 2003 order. (Ventura County Human Services Agency v. Amy C. (Apr. 20, 2004, B167021).) We concluded that the order, and its implementation by HSA, established a reasonable balance between Mother's visitation rights and the protection of her children, and that Mother had not sufficiently benefited from reunification services to justify liberalized or unsupervised visitation.

At the six-month review hearing in May 2003, the court extended reunification services as to Carlos for an additional six months. The court ordered the current level of supervised visitation to continue.

In October 2003, the court conducted a 12-month review hearing. An HSA report indicated that Mother had completed in-home parent aide services, and was participating in other case plan services. The report stated that Mother's parenting had improved, but that she was unemployed and had not obtained suitable housing. Visits had been twice a week for a period of time but were once a week by the time of the hearing. HSA recommended an additional six months of reunification services and continued supervised visitation.

At the hearing, the court stated that more frequent and unsupervised visitation was necessary, and the parties agreed to two unsupervised visits per week. The court found that prior reunification services had been reasonable, and extended reunification services for another six months. Mother appealed the October 2003 order and, in an unpublished opinion, we dismissed the appeal. (Ventura County Human Services Agency v. Amy C. (Sept. 29, 2004, B171265).) We stated that there was no change after the March 2003 order that supported increased visitation or showed that existing visitation adversely affected Mother's reunification with her children.

At the March 2004, 18-month review hearing, the court terminated reunification services and selected long-term foster care as Carlos's permanent plan. Although she did not have stable housing or employment, the court and HSA were optimistic that Mother would ultimately reunify with Carlos.

In June 2004, the court conducted a post-permanency review hearing. The court ordered the long-term foster care plan to remain in effect and unsupervised visitation to continue as often as possible consistent with the well-being of Carlos. Mother had been having unsupervised six-and-one-half-hour visits on Sundays. The HSA report, however, also stated that Mother had renewed a relationship with Patrick B., who had a violent criminal history and had been convicted of spousal abuse against a prior partner. The report concluded that Mother did not recognize the risk posed by Patrick B. to the well-being of her children.

In a December 2004 report, HSA stated that Mother had been the victim of physical abuse by Patrick B. and had appeared for visits with her children with a black eye and bruised lips. The report concluded that Mother was unable to protect herself from Patrick B. and had placed herself and her children at risk. Accordingly, HSA recommended the resumption of supervised visits with Carlos.

In January 2005, the court conducted another post-permanency review hearing. HSA recommended that a section 366.26 hearing be set to change Carlos's permanent plan from long-term foster care to adoption. Its report indicated that Mother did not have full-time employment or a stable home, and lacked knowledge or understanding of the child's development. The report stated Mother had missed half of her visits in September and October 2004, and was pregnant with her sixth child. The court set a section 366.26 hearing, and ordered monitored visitation and preparation of a bonding and "interaction" study.

On October 18, 2005, the court conducted the section 366.26 hearing. The HSA report stated that Mother had failed to attend her visits with Carlos for 14 weeks (prior to May 2005) despite HSA attempts to accommodate her changing schedule. The report also stated that Mother continued her relationship with Patrick B. despite her representations to the contrary.

The bonding and interaction report by Dr. Clevert S. King was considered by the court. It concluded that Carlos had "only a weak attachment" to Mother. Dr. King stated that Carlos displayed no spontaneous affection for Mother. Instead, he displayed "avoidant behavior" and suffered no distress from his separation from Mother. He "bounded from the room eager to rejoin his foster family . . . ." Dr. King concluded that Carlos could overcome a permanent cessation of visits "with relatively mild effect," and that a more consistent relationship with Mother would not outweigh the benefits of a permanent home with adoptive parents. Dr. King stated that Mother was unprepared to assume full-time parenting, and posed a "potential risk to Carlos of future abandonment."

After the completion of testimony, the court terminated Mother's parental rights. The court concluded that it is "clear that [Carlos] is adoptable and it would be in his best interest to be adopted and that no exception applies." The court, however, faulted HSA's performance during the late spring and summer of 2005, stating that "[i]nadequate is too kind [a word]." The court stated that, after it became clear that parental rights would be terminated, HSA cancelled visits and "dropped any interest in giving [Mother] any help at all." Nevertheless, inadequacy at the end of the case did not "make any difference" because there "had been so many missed visits before" that were the responsibility of Mother.

Mother appeals the October 18, 2005, order.

DISCUSSION

Substantial Evidence Supports Termination of Parental Rights

Mother contends that the trial court erred in terminating her parental rights. She argues that the court should have given her an opportunity to preserve those rights through application of the beneficial relationship exception, a continuance of the hearing, or some other means. We disagree.

When, as here, the parent has failed to reunify and it is likely the child will be adopted, the court must select adoption as the permanent plan unless it finds "a compelling reason for determining that termination [of parental rights] would be detrimental to the child" under various statutory exceptions. (§ 366. 26, subd. (c)(1); In re Jamie R. (2001) 90 Cal.App.4th 766, 773.) The so-called "beneficial relationship" exception exists when the parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(A).)

The parent has the burden of establishing that the parent-child relationship promotes the well-being of the child to a degree that outweighs the well-being the child would gain in a permanent home with adoptive parents. (See, e.g., In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350; In re Autumn H. (1994) 27 Cal.App.4th 567, 574-575.) The juvenile 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." (Autumn H., at p. 575.)

Here, the evidence shows that Mother failed to meet her burden of proving that Carlos would be significantly harmed by severance of the mother-child relationship, or that the benefit of the relationship outweighed the well-being he would gain through adoption. (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576.) Mother conceded that "there is no way" she could establish a beneficial relationship because of HSA's "poor record" in providing the visitation necessary to establish such a relationship. On appeal, Mother repeats this concession, arguing that HSA "frustrated visitation over a substantial period of time, frustrating any opportunity the mother may have had to assert" the beneficial relationship exception. Nevertheless, Mother claims that application of the exception "would have been an appropriate remedy to cure" HSA's failure to provide adequate visitation. For the same reason, Mother suggests that the juvenile court could have continued long-term foster care or established legal guardianship as the permanent plan. She argues that, under those permanent plans, Carlos could continue his relationship with Mother while residing in a stable home.

We reject Mother's suggestion that the juvenile court properly could apply the beneficial relationship exception in a case where the necessary factual showing is admittedly absent. Similarly, we reject her suggestion that the court properly could order long-term foster care or guardianship as a permanent plan in the face of the statutory preference for adoption when a child is adoptable.

Mother also suggests that the court could have ordered a continuance. Under section 352, the "court may continue any hearing . . . beyond the time limit within which the hearing is otherwise required to be held" as long as the continuance is not "contrary to the interest of the minor," and gives "substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements." (Subd. (a).) Even if the court "could" have continued the section 366.26 hearing, the record fails to show a sound basis for doing so and clearly no abuse of discretion.

Section 352 has been invoked to prevent termination of reunification services where services were ordered by the court but not provided by the agency, or where the services provided were grossly deficient. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996 [failed to provide reunification services to incarcerated parent]; In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1797-1799 [no services provided for parent hospitalized with a treatable mental illness]; In re David D. (1994) 28 Cal.App.4th 941, 955-956 [visitation terminated as a punitive measure]; In re Daniel G. (1994) 25 Cal.App.4th 1205, 1213-1214 [no services provided during final 12 months of reunification]; In re Dino E. (1992) 6 Cal.App.4th 1768, 1778 [no reunification plan was ever created].) As one court has stated, section 352 provides an "emergency escape valve" in those rare instances in which the juvenile court determines the best interests of the child would be served by a continuance of the 18-month review hearing at which reunification services would otherwise terminate. (Elizabeth R., at pp. 1798-1799.)

The record in the instant case bears no resemblance to the records in the above-cited cases. Here, Mother was given almost 18 months of visitation after termination of reunification services and appeals the termination of parental rights, not the termination of reunification services.

Mother argues that HSA "orchestrated" termination of her parental rights by frustrating visitation with Carlos. No substantial evidence supports her accusation. She relies on the trial court's dismay over HSA's performance during a short period in 2005, but ignores the efforts made by HSA prior to that time to provide adequate visitation as well as the court's findings that visitation was reasonable during three years prior to the spring and summer of 2005. She also ignores the numerous missed visits that could not be attributed to HSA, and the detrimental effect of a relationship with an abusive man which necessitated the resumption of supervised visitation.

In addition, the record shows that Carlos has been in foster care since he was eight months old in July 2002, is settled and happy with his prospective adoptive parents, has little attachment to Mother, and is unlikely to suffer any detriment from termination of parental rights. These are not the circumstances that require use of an "emergency escape valve." We recognize that in most cases more reunification services might have been provided and the actual level of services is necessarily imperfect. "The standard is not whether the services provided were the best that might have been provided, but whether they were reasonable under the circumstances." (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) Here, the record as a whole amply supports the conclusion that HSA has provided reasonable reunification services.

HSA Failed to Comply with ICWA

Mother also contends that HSA failed to comply with the ICWA. (25 U.S.C. § 1901 et seq.) County counsel representing HSA concedes that neither HSA nor the juvenile court complied with the ICWA notice requirements, and we agree. Accordingly, we reverse the order terminating parental rights and remand the case solely for the purpose of ICWA compliance.

When a child subject to a dependency proceeding is or may be of Native American heritage, the ICWA requires notice to the relevant tribe and gives the tribe a right to intervene in the proceeding. (25 U.S.C. § 1912(a).) The court and the agency are responsible for compliance with the notice requirement. (Cal. Rules of Court, rule 1439(d); In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1409.) When notice is required but not properly given, the dependency court's orders are voidable. (In re Karla C. (2003) 113 Cal.App.4th 166, 174.)

A parent's suggestion that the child "might" be of Native American ancestry is enough to trigger the notice requirement. (In re Antoinette S., supra, 104 Cal.App.4th at p. 1408.) Here, there is a reference in the April 2005 HSA report that the ICWA may apply to Carlos, and that HSA had submitted certain forms to the Bureau of Indian Affairs. County counsel correctly acknowledges that this reference fails to establish full compliance with the notice requirements.

DISPOSITION

The October 18, 2005, order terminating appellant's parental rights to Carlos is conditionally reversed, and the matter is remanded so that the juvenile court may direct HSA to give proper notice in compliance with the ICWA. If no tribe indicates that the child falls within the meaning of ICWA within 60 days of notice, the juvenile court shall reinstate the order terminating parental rights. If the court determines that Carlos is subject to the ICWA, the court shall conduct further appropriate proceedings and apply the law applicable to an Indian child.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Charles W. Campbell, Jr., Judge

Superior Court County of Ventura

______________________________

Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.

Noel A. Klebaum, County Counsel, Linda Stevenson, Assistant County Counsel, for Plaintiff and Respondent.

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[1] All statutory references are to the Welfare and Institutions Code.

[2] HSA filed a dependency petition covering Precious C. in December 2002. Mother's parental rights as to Precious were terminated in May 2005, and we affirmed that order in an unpublished opinion. (Ventura County Human Services Agency v. Amy C. (Mar. 14, 2006, B184037).) Patrick B. was born outside Ventura County and his grandmother has been granted legal guardianship. The record contains no information regarding the status of Anthony B.