In re K.B.

 

 

 

 

 

 

 

 

 

 

 

Filed 11/8/13  In re K.B. CA4/3

 

 

 

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.

 

 

 

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

 

FOURTH APPELLATE
DISTRICT

 

DIVISION THREE

 
>

In re K.B., a Person Coming Under the Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES AGENCY,         Plaintiff and Respondent,                           v.   K.B. et al.,         Defendants and Appellants.	G048198            (Super. Ct. No. DP021412)            O P I N I O N

                        Appeal from a postjudgment
order of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Deborah C. Servino, Judge.  Affirmed.

                        Jacob I. Olson, under
appointment by the Court of Appeal, for Defendant and Appellant K.B.

                        Marsha F. Levine, under
appointment by the Court of Appeal for Defendant and Appellant R.L.

                        Nicholas S. Chrisos,
County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel,
for Plaintiff and Respondent.

                        No appearance for the
Minor.

 

*                      *                      *

 

                        K.B. (father) and R.L.
(mother), parents of K.B. (the child), appeal from an order issued after the permanency
planning hearing that chose adoption as the permanent plan for the child and terminated
father’s and mother’s parental rights. 
(Welf. & Inst. Code, § 366.26; unless otherwise indicated, all
further statutory references are to this code). 
Both appellants contend the juvenile court erred in concluding the
parent-child relationship exception to terminating parental rights
(§ 366.26, subd. (c)(1)(B)(i)) did not apply in this case.  In addition, father argues the order must be
reversed because the lower court failed to provide proper notice as required
under the Indian Child Welfare Act (25
U.S.C. § 1901 et seq.; ICWA). 
Finding no error, we affirm the juvenile court’s order. 

 

FACTS AND PROCEDURAL BACKGROUND

 

                        This case began in
August 2010, when the Los Angeles Department of Child and Family Services
(LADCFS) filed a dependency petition on behalf of the child, born in June 2009,
arising from the parents’ history of alcohol abuse and domestic violence.  At the jurisdictional hearing, the parents
entered no contest pleas to the petition and the juvenile court found the failure
to protect (§ 300, subd. (b)) allegation true.  The

court
placed the child with mother under a family maintenance plan, while father was

authorized
monitored visitation plus referrals to participate in reunification programs
and testing.  Reports prepared in January
and March 2011 noted father had participated in weekly visits with the child
without any problems. 

                        Shortly after a March status
review hearing, LADCFS learned the child had suffered a six-inch long burn on
his chest and mother was found to be intoxicated while caring for him.  LADCFS removed him from her custody and filed
a subsequent petition.  The petition was
sustained and the child placed with a maternal aunt and uncle.  The court ordered that both parents receive href="http://www.mcmillanlaw.com/">reunification services.  Since both parents then resided in Orange
County, the court ordered the
proceedings transferred to Orange County.
 An order accepting the transfer was
entered in July.

                        In late September 2011,
custody of the child was placed with his maternal grandparents.  A status review hearing was conducted in
December.  The Orange County Social
Services Agency (SSA) reported both parents had visited with the child twice a
week and the maternal grandparents noted “the child loves to see his
parents.”  The assigned social worker
described each parent’s compliance with their reunification plans as
moderate. 

                        In May 2012, the social
worker reported both parents continued to consistently visit with the child and
had one overnight stay with him that went well. 
In a report for the twelve-month status review hearing, SSA described the
parents’ compliance with their reunification plans as substantial and noted it
was probable the child could be returned to their care at the eighteen-month
review.  Because of the parents’
progress, on May 3, 2012,
the SSA placed the child with the parents for a 60-day trial stay. 

                        The trial stay did not
last long.  SSA learned mother returned the
child to the maternal grandparents on May 10. 
Mother initially told the social worker the child was having some
difficulty adjusting to the new living arrangement.  She later admitted

taking
the child to the grandparents because father wanted her to drink with him and
when she refused, he became angry and struck her.  Mother reported the incident to the police
only after the social worker pressed her to do so. 

                        During the month of June
mother failed to visit the child while father visited him only once.  At a July status review hearing, the juvenile court
terminated reunification services for father. 
However, it gave mother one “last opportunity” to complete her service
plan. 

                        Before the
eighteen-month review hearing, both parents continued to regularly visit with the
child, except that father missed some visits due to work or illness.  In September, mother missed tests for drug
and alcohol use and began drinking again. 
In October, the court terminated mother’s service plan and scheduled the
case for a permanency planning hearing. 

                        Shortly thereafter, the child
was again placed in the home of his maternal aunt and uncle.  The couple expressed a willingness to adopt him.  After the change in placement, the parents’
visits with the child became sporadic. 
Mother testified she entered a residential substance abuse program.  She had three visits with the child in
December, one in January 2013, and another in February.  During the February 2013 permanency planning
hearing, mother claimed she had spoken with the child once a week since
October.  Between October 2012 and
February 2013, father had a single one-hour visit with the child.  At the permanency planning hearing, father
testified he missed visits because of illnesses that resulted in his being
hospitalized. 

                        The href="http://www.fearnotlaw.com/">permanency planning hearing began
February 15, 2013.  After receiving SSA’s
report, plus testimony from parents and the maternal grandmother, and argument,
the juvenile court found the child adoptable. 
In addition, it tentatively ruled the parent-child relationship
exception applied.  The court continued
the hearing for a month to consider which alternate permanent plan would be
appropriate. 

                        But at the next hearing,
the court reversed its decision on the appropriate permanent plan.  Based on a review of her “notes and the
relevant case law,” the judge found “the parents have not shown
. . . that the beneficial parent-child relationship exception
applies . . . .”  As to
mother, the court found her visitation was consistent “until October [2012]”
when she “stopped visitation for . . . more than 30 days,” with
“even more sporadic [visitation in] December, January and February.”  It rejected mother’s claim the lack of
visitation was due to the distance between her residential facility and the
caretakers’ home because she “could have contacted the social worker” to
arrange visits.

                        As for father, even
assuming it could find his visitation was consistent, the court concluded “the
visits” were more akin to “that . . . of a friendly visitor or
relative than of the parental” nature, and thus “d[id] not meet th[e] threshold
of the second prong.”  The court then
concluded adoption was in the child’s best interest and terminated mother’s and
father’s parental rights. 

 

DISCUSSION

 

>1. 
The Parent-Child Relationship Exception

                        “By the time of a
section 366.26 hearing, the parent’s interest in reunification is no longer an
issue and the child’s interest in a stable and permanent placement is paramount. . . .  Adoption
is the Legislature’s first choice because it gives the child the best chance at
such a commitment from a responsible caretaker.”  (In re
Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.)  Here, neither father nor mother challenge the
juvenile court’s finding that clear and convincing evidence support a
conclusion the child was adoptable. 

                        Rather, the parents
argue they each satisfied the requirements for the parent-child exception under
section 366.26, subdivision (c)(1)(B)(i). 
“Once the court

determines
the child is likely to be adopted, the burden shifts to the parent to show that
termination of parental rights would be detrimental to the child under one of
the exceptions listed . . . .”  (In re
C.F. (2011) 193 Cal.App.4th 549, 553.) 
“Overcoming the statutory preference for adoption and avoiding the
termination of parental rights requires the parent to show both that he or she
has maintained regular visitation with the child and that the child would
benefit from continuing the relationship.  [Citation.]” 
(In re Marcelo B. (2012) 209
Cal.App.4th 635, 643

                        The parties acknowledge
appellate courts disagree on the appropriate standard of review concerning a
ruling on the parent-child exception. 
“Most courts have applied the substantial
evidence standard” (In re K.P.
(2012) 203 Cal.App.4th 614, 621), while “at least one court has concluded
that it is properly reviewed for abuse of discretion” (ibid.; see In re Jasmine D.,
supra, 78 Cal.App.4th at p. 1351). 
A third approach “incorporates both . . . standards of
review.”  (In re K.P., supra, 203 Cal.App.4th at p. 621.)  First, “whether a beneficial parental . . . relationship
exists . . . is, because of its factual nature, properly
reviewed for substantial evidence.”  (>Id. at p. 622.)  Second, “whether the existence of that
relationship . . . constitutes ‘a compelling reason for
determining that termination would be detrimental to the child[,]’ . . . â€˜calls
for the juvenile court to determine the importance of the relationship
in terms of the detrimental impact that its severance can be expected to have
on the child and to weigh that against the benefit to the child of adoption,’
is . . . reviewed under the deferential abuse of discretion
standard.”  (Ibid.; see also In re Bailey
J. (2010) 189 Cal.App.4th 1308, 1314-1315.) 

                        We need not determine
which of these approaches is most appropriate since under any of them, the
juvenile court properly rejected the parent-child exception in this case.  The court expressly found mother failed to
maintain regular visitation with the child and expressed some doubt that father
satisfied this requirement as well.  At
times

during
the dependency proceedings both parents were consistent in visiting the
child.  But during other periods, they
failed to do so.  After the unsuccessful
60-day trial stay in May 2012, mother did not see the child at all the following
month while father visited him only once. 
When the juvenile court scheduled the permanency planning hearing, both
mother and father failed to consistently visit the child.  Mother did not see him at all during the
remainder of October or in November.  She
visited him only three times in December and once each in January and February
2013.  During the same time span father
saw the child on a single occasion for an hour.  â€œâ€˜Sporadic visitation is insufficient to
satisfy the first prong . . . â€™ of the exception.”  (In re
Marcelo B., supra, 209 Cal.App.4th at p. 643; see also >In re Elizabeth M. (1997) 52
Cal.App.4th 318, 324 [“While the mother’s visitation . . . had
been consistent and positive during a previous period of time, during the six
months preceding the selection and implementation hearing it had been sporadic”].) 

                        Nor has either parent
established the court erred in finding the exception’s second requirement was
absent.  “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.”  [Citation.]  The existence of this relationship is
determined 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.”’”  (In re
Marcelo B., supra, 209 Cal.App.4th at p. 643.)  “Satisfying the second prong requires the
parent to prove that ‘severing the natural parent-child relationship would
deprive the child of a substantial, positive emotional attachment such
that the child would be greatly harmed.  [Citations.]  A biological parent who has failed to reunify
with an adoptable child may not derail an adoption merely by showing the child
would derive some benefit from continuing a relationship maintained
during periods of visitation with the parent.’” 
(Ibid.) 

                        While the child spent
much of his short life with his parents, the evidence reflects that interaction
was not beneficial to him.  This
proceeding arose from the parents’ problems with alcohol abuse and domestic
violence.  Initially left in mother’s care,
the juvenile court eventually took custody from her after the child was found
to have been injured and mother appeared to be intoxicated.  A later trial stay with both parents was a
spectacular failure when the parents, after nearly two years of family maintenance
and reunification services, immediately resorted to the behaviors that
initially lead to this proceeding.  Even
after mother was given one last opportunity to reconcile with the child, she
was unable to stay sober for more than a few months. 

                        Simply because the child
enjoyed his visits with both parents is not enough to find the parent-child
exception applies.  “Evidence that a
parent has maintained ‘“frequent and loving contact” is not sufficient to
establish the existence of a beneficial parental relationship.’”  (In re
Marcelo B., supra, 209 Cal.App.4th at p. 643.)  Thus, we conclude the juvenile court properly
rejected the parents’ request that it find the parent-child exception applied
in this case. 

 

>2. 
The ICWA

                        Under the ICWA, “[i]n 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 . . . of the pending proceedings
and of their right of intervention.”  (25
U.S.C. § 1912(a); see also § 224.1, subd. (d) [under California law,
“a ‘child custody proceeding’ within the meaning

of
. . . the Indian Child Welfare Act” includes “a proceeding for
. . . termination of parental rights”].) 

                        When this case was
initially filed, father told LADCFS that he might have some Indian ancestry on
his mother’s side.  Since the child was
initially placed in mother’s custody, the Los Angeles County Juvenile Court concluded
LADCFS did not have to comply with the ICWA’s notice requirements.  (See In
re J.B. (2009) 178 Cal.App.4th 751, 758 [the ICWA does not apply to “a
proceeding for placement with a parent”].)  Subsequently, the child was removed from
mother’s custody as well, but the juvenile court did not amend its order
concerning ICWA compliance. 

                        Upon the case’s transfer
to Orange County, SSA reported that “Los Angeles County Juvenile Court found
that the [ICWA] does not apply.”  In
subsequent reports, SSA did note “father indicated that he has American Indian
Ancestry,” but never attempted to comply with the ICWA and the Orange County
Juvenile Court also never ordered SSA do so.  

                        On appeal, father argues
the failure to comply with the ICWA’s notice requirements requires reversal of
the juvenile court’s termination of parental rights order.  Initially, SSA conceded father’s argument had
merit, but urged this court to limit the reversal solely to ensure compliance
with the ICWA and, in the event the child is either not found to be an Indian child
or no tribe claims him as a member, reinstate the order terminating appellant’s
parental rights.  (See >In re Nikki R. (2003) 106
Cal.App.4th 844, 855-856.) 

                        But in a footnote SSA
also mentioned that while this appeal was pending it had initiated compliance
with the laws governing Indian children. 
Recently, SSA filed a motion in this court requesting we take additional
evidence or augment the record with eight exhibits consisting of juvenile court
minute orders, an SSA interim review report, and documentation establishing
compliance with the notice requirements of the ICWA and state law.  SSA contends “[t]he attached reports and additional
documents resolve [f]ather’s ICWA concerns.” 
This court issued an order granting SSA’s motion and affording
appellants an opportunity to file supplemental briefs responding to the
motion.  Neither parent has filed a
response. 

                        Generally, this court
has authority to receive additional evidence (Code Civ. Proc., § 909) and
augment the appellate record (Cal. Rules of Court, rules 8.410(b) &
8.155(a); see In re Christopher I.
(2003) 106 Cal.App.4th 533, 562). 
But in In re Zeth S. (2003) 31
Cal.4th 396, the Supreme Court overturned a decision by this court that
had reversed an order terminating parental rights based on statements appearing
in an attorney’s unsworn letter brief.  Applying
the general rule that “‘an appeal reviews the correctness of a judgment as of
the time of its rendition, upon a record of matters which were before the trial
court for its consideration’” (id. at
p. 405), Zeth S. concluded “consideration
of postjudgment evidence of changed circumstances in an appeal of an order
terminating parental rights, and the liberal use of such evidence to reverse
juvenile court judgments and remand cases for new hearings, would violate both
the generally applicable rules of appellate procedure, and the express
provisions of section 366.26 which strictly circumscribe the timing and scope
of review of termination orders, for the very purpose of expediting the
proceedings and promoting the finality of the juvenile court’s orders and judgment[]”
(id. at p. 413, fn. omitted). 

                        Nonetheless, in a later
decision, In re Josiah Z. (2005) 36
Cal.4th 664, the Supreme Court held the children’s appellate counsel could
move to dismiss an appeal filed by their trial attorney “based on [appellate
counsel’s] analysis of the[ children’s] best interests.”  (Id.
at p. 673.)  Josiah Z. distinguished Zeth
S., noting it concerned “an appellate court . . . solicit[ing]
postjudgment evidence in order to reopen and reconsider trial court findings
and reverse the trial court’s judgment.” 
(In re Josiah Z., supra, 36
Cal.4th at p. 676.) 

                        Subsequent appellate
decisions have granted requests to take additional evidence or augment the
appellate record in juvenile dependency appeals from orders terminating
parental rights to rebut claims the juvenile court failed to comply with the
ICWA.  In re A.B. (2008) 164 Cal.App.4th 832 affirmed a parental
rights termination

order
after granting a child welfare agency’s motion to augment the appellate record with
postjudgment evidence to overcome a claim the juvenile court initially failed
to comply with the ICWA.  >A.B. distinguished its ruling from >Zeth S. noting, “the Agency submitted to
the juvenile court a certified copy of a court record . . ., which is
subject to judicial notice. . . .  Further, the Agency
did not seek to augment the record with evidence pertaining to the substantive
merits of the juvenile court’s termination of parental rights, and the evidence
cannot be used to reverse the judgment on substantive grounds.  The ICWA inquiry issue is distinct from the
substantive merits of the court’s
ruling . . . .  Also, admission of the evidence
to affirm the judgment would promote the finality of the judgment and prevent
further delay.”  (In re A.B., supra, 164 Cal.App.4th at p. 841; see also >In re E.W. (2009) 170
Cal.App.4th 396, 403, fn. 2 [granting child welfare agency’s motion to
take evidence supporting ICWA compliance because “this evidence will assist in
supporting the juvenile court’s order and will not create unnecessary delay on
appeal”].) 

                        We conclude the holdings
in Joziah Z., A.B., and E.W. apply to
these appeals.  The exhibits submitted by
SSA consist of minute orders where the juvenile court reappointed counsel to
represent each parent, contacted father and his relatives and learned his
mother had “Choctaw Indian ancestry.” 
SSA sent notices with return receipt requested to the Bureau of Indian
Affairs and three Choctaw tribes; Choctaw Nation of Oklahoma, Jena
Band-Choctaw, and Mississippi Band of Choctaw Indians.  Each of the tribes responded.  Two tribes reported that neither the child
nor his relatives were members or eligible for membership in the tribe.  The third reported it was “unable to
establish Indian heritage.”  At a later
periodic review hearing, the juvenile court admitted SSA’s interim report
documenting its efforts to comply with the ICWA’s notice requirements and the
responses received from the respective tribes, and based on this evidence found
the ICWA does not apply to this case. 

                        As noted, we offered
both father and mother an opportunity to respond to SSA’s motion and neither
did so.  Given the nature of the new
evidence and the fact that its acceptance will promote finality of the case by
eliminating further delay, we conclude the record shows there has been full
compliance with the ICWA and therefore reject father’s contention. 

DISPOSITION

 

                        The
postjudgment order is affirmed. 

 

 

 

                                                                                   

                                                                                    RYLAARSDAM,
ACTING P. J.

 

WE CONCUR:

 

 

 

BEDSWORTH, J.

 

 

 

MOORE, J.